text:
    FAIRFIELD DEVELOPMENT COMPANY, Plaintiff-Appellant, v. Vessie L. JACKSON, Defendant-Appellee-Appellant.
    Nos. 15593-CA, 15594-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Rehearing Denied Oct. 20, 1983.

      Smitherman, Lunn & Chastain by W. James Hill, III, Shreveport, for plaintiff-appellant.
    S.P. Davis, Shreveport, for defendant-ap-pellee-appellant.
    Before PRICE, HALL and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff sued defendant to obtain specific performance of defendant’s obligation to assign and pledge certain security interests to plaintiff. Defendant filed a peremptory exception of no cause of action, and the trial court sustained the peremptory exception, dismissing plaintiff’s claims. Plaintiff filed a second suit against defendant seeking payment of an amount owed by defendant under contract. Defendant filed a dilatory exception of prematurity, and the trial court sustained the dilatory exception, dismissing plaintiff’s claim. Plaintiff has appealed the judgment rendered against it in both suits, and both of plaintiff’s appeals have been consolidated herein. We affirm and amend the trial court’s judgment in sustaining the peremptory exception of no cause of action in the first suit; we reverse the trial court’s judgment in sustaining the dilatory exception of prematurity in the second suit.

Plaintiff in this cause is Fairfield Development Company (hereinafter referred to as Fairfield), a Louisiana partnership domiciled in Shreveport, Louisiana. Defendant herein is Vessie L. Jackson, a resident of Shreveport. Plaintiff and defendant entered into a contract on November 2, 1981. This contract defined the parties’ legal relationship, and created the reciprocal obligations from which the suits treated in this appeal arose.

The contract entered into by the parties contemplated that Fairfield and Jackson would form two separate partnerships. The first of these partnerships was North-side Villa Limited Partnership, 50.1% of which was to be owned by Jackson, and 49.9% of which was to be owned by Fair-field. The second partnership, Bayou Gal-ion Limited Partnership, was to be identically constituted, with Jackson owning a 50.1% share, and Fairfield owning a 49.9% share. The purpose of both partnerships was the sponsorship and development of housing subdivisions: the Northside Villa Limited Partnership was to develop the Northside Villa housing project in Shreveport, and the Bayou Gabon Limited Partnership was to develop the Bayou Gabon housing project in Mer Rouge, Louisiana. In sum, plaintiff Fairfield and defendant Jackson were to form two separate partnerships, with each partnership designed to sponsor a separate development; defendant was to own a majority interest, and plaintiff a minority interest, in each of the partnerships.

The contract entered into by the parties acknowledged that the bulk of the financing needed for the two development projects would be provided by a loan from HUD. The contract provided that the balance of the needed financing not obtained from HUD would be provided by Fairfield under two distinct finance arrangements.

The contract provided, with respect to the first of these financing arrangements, that Fairfield would make loans of $10,000 and $45,000 to Jackson. Under the terms of the contract, these two loans were to be secured by the pledge to Fairfield of the assignments of Jackson’s majority interest in both Northside Villa and Bayou Gabon partnerships.

Under the second financing arrangement contained in the contract, Fairfield obligated itself to make indeterminate advances to the two partnerships for developmental costs exceeding the loan obtained from HUD. The contract provided that Jackson would be liable for his 50.1% share of these advances. The contract provided that Jackson syndicate and sell a sufficient portion of his interests in both partnerships to repay his 50.1% share of the advances made by Fairfield. The contract further mandated that Jackson sell sufficient additional partnership interests to repay the $10,000 and $45,000 loans made by Fairfield to Jackson. Under the terms of the contract, the proceeds of the syndication were to be deposited in a special escrow account. This escrow account was to be used to repay the loans and advances made by Fairfield, with Jackson entitled to any remaining balance.

Plaintiff Fairfield filed a suit for specific performance on September 20, 1982, alleging that Jackson had breached the security agreement contained in the contract, by failing to pledge assignments of his (Jackson’s) interests in the two partnerships as security for the $45,000 and $10,000 loans. Defendant Jackson filed a peremptory exception of no cause of action, and in a judgment filed February 7, 1983, the trial court sustained defendant’s peremptory exception and dismissed plaintiff’s suit.

On December 6, 1982, plaintiff Fairfield filed a second suit against Jackson seeking $89,264.30 — Jackson’s 50.1% share of the advances made by Fairfield for development costs. Jackson filed a dilatory exception of prematurity, and in a judgment filed February 11, 1983, the trial court sustained the dilatory exception, dismissing plaintiff’s suit. Fairfield’s appeals from the two judgments rendered against it will be separately treated in this opinion.

I.

Plaintiff’s suit for specific performance of defendant’s obligation to pledge assignments of his interests in both partnerships

In its petition for specific performance, plaintiff alleged that it had loaned $10,000 to Jackson, and that it had tendered a loan of $45,000 to Jackson which Jackson had refused. Plaintiff further alleged that while Jackson had pledged to Fairfield an assignment of his interest in Bayou Gabon Limited Partnerships, he had refused — after several oral and written demands — to pledge to Fairfield an assignment of his interest in Northside Villa Limited Partnership. Fairfield urged in its petition, as a legal conclusion, that Jackson was civilly obligated under the terms of their contract to pledge assignments of his interests in both Northside Villa and Bayou Gabon bm-ited partnerships to secure the $10,000 and $45,000 loans made by Fairfield to Jackson. It is undisputed that plaintiff has repaid the $10,000 loan. Plaintiff therefore prayed that the court order Jackson to execute a pledge to Fairfield of an assignment of his interest in Northside Villa Limited Partnership.

In its petition, Fairfield cited a single provision of its contract with Jackson. Fairfield claimed that this provision contractually obligated Jackson to pledge to Fairfield an assignment of Jackson’s interest in Northside Villa Limited Partnership. This provision of the contract, quoted in the petition, provided that:

FDC has loaned Jackson $10,000.00, which loan is represented by a sixty (60) day note dated October 30, 1981. If a firm commitment and financing is obtained for Northside Villa, and deemed adequate by both parties, FDC will loan Jackson an additional $45,000.00. The two above amounts will be secured by a note and mortgage on real property as well as the assignment of Jackson’s interest in the Limited Partnerships as security.

The peremptory exception of no cause of action is appropriately sustained when, assuming the truth of plaintiff’s allegations, plaintiff’s petition has not stated a cause of action for which relief may be given under the applicable substantive law. Frain as Tutrix of Beason v. State Farm Insurance Co., 421 So.2d 1169 (La.App. 2d Cir.1982); Millette Enterprises, Inc. v. State Division of Administration, et al., 417 So.2d 6 (La.App. 1st Cir.1982). In adjudging the propriety of the peremptory exception of no cause of action, it is crucial to note that “[n]o evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” LSA-C.C.P. Art. 931. Thus, the question of whether plaintiff has stated a cause of action is to be decided on the face of plaintiff’s petition. Adserv Corp. v. Lincecum, 385 So.2d 432 (La.App. 1st Cir.1980); Johnson v. Edmonston, 383 So.2d 1277 (La.App. 1st Cir.1980).

The obligation to provide security for a separate obligation is accessory in nature, while the obligation guaranteed by this security is considered principal. If the principal or secured obligation is satisfied, the accessory obligation to provide security for that principal obligation is by its very nature extinguished. An accessory obligation may not exist without the coexistence of the principal obligation to which it lends support. Therefore, the extinction of the principal obligation simultaneously extinguishes the accessory or security obligation. See LSA-C.C. Arts. 1771, 2205, 3035, 3076, 3284 and 3285; Louis Werner Saw Mill Co. v. White, 16 So.2d 666 (La.App. 2d Cir.1942), reversed on other grounds, 205 La. 242, 17 So.2d 264 (1944); Comment, Tilting Against Windmills: A Solidary Rejoinder, 41 La.L. Rev. 1279 (1981).

Applying this law to the facts alleged in plaintiff’s petition, it is apparent that plaintiff has not stated a cause of action. Plaintiff relies on the above quoted contractual provision to establish Jackson’s obligation to pledge an assignment of Jackson’s interest in Northside Villa Limited Partnership. However, it is clear from this critical contractual language that this pledge was intended to secure only the $45,-000 and $10,000 loans made by Fairfield to Jackson. This is clear insofar as the contract explicitly refers to these two loans, and then states immediately thereafter, in the next sentence of the contract, that “The two above amounts will be secured by ... assignments of Jackson’s interest in limited partnerships as security.”

Thus, under the express terms of the contract, the assignments of Jackson’s interests in the limited partnerships were intended to secure only the two aforementioned loans of $45,000 and $10,000. The obligation to assign his partnerships interests to Fairfield was merely accessory to the principal obligation of repaying the forestated loans.

Plaintiff acknowledges the repayment of the $10,000 loan, and expressly states that Jackson refused the $45,000 loan. Thus, the principal obligation to repay the loans was satisfied and extinguished, and under the codal scheme, the accessory obligation to provide security for the repayment of these loans was also thereby extinguished. Simply stated, the obligation to provide security for the repayment of the loans was extinguished when Jackson discharged his obligation to repay the loans themselves.

We therefore conclude that the trial court was correct in sustaining the peremptory exception of no cause of action. Defendant Jackson is not obligated to pledge to Fair-field an assignment of his interest in North-side Villa Limited Partnership to secure the repayment of a $10,000 loan and a $45,000 loan, for the simple reason that Jackson has previously discharged his obligation to repay these loans.

It should be noted that the trial court granted Fairfield a preliminary injunction during the pendency of this suit to prohibit Jackson from alienating or disposing of his interest in the Northside Villa Limited Partnership. The trial court thereafter dismissed Jackson’s rule to dissolve the injunction after the granting of the order of appeal. Jackson appealed this action. However, the trial court’s dismissal of this rule to dissolve the injunction is void because this action was taken by the trial court after an appeal was granted, and after the trial court was therefore divested of its jurisdiction. LSA-C.C.P. Art. 2088. Therefore, the trial court ruling setting aside the rule to dissolve the injunction was improper and is hereby vacated.

We affirm the trial court’s judgment in sustaining the peremptory exception of no cause of action. However, we note plaintiff’s appellate contention, contained in brief, that the contractual instrument quoted in its petition did not reflect the true contract or agreement reached by the parties. It is significant, in this respect, that a civil contract has a separate existence apart from the writing in which it is recorded. LSA-C.C. Art. 1762. We therefore amend the trial court’s judgment to allow plaintiff 15 days from the finality of this decision to amend its petition to state a valid cause of action. See LSA-C.C.P. Art. 934.

II.

Plaintiff’s suit to recover 50.1% of the advances made by it to finance the development of Northside Villa and Bayou Gallon housing projects

On December 6, 1982, Fairfield filed suit against Jackson for $89,264.30, which amount represents Jackson’s 50.1% share of the advances made by Fairfield for development costs. Jackson filed a dilatory exception of prematurity, and in a judgment filed February 11, 1983, the trial court sustained the dilatory exception, dismissing plaintiff’s suit.

In analyzing the issue of prematurity, it is necessary to focus on other provisions of the same contract which constituted the basis for Fairfield’s first suit against Jackson. The relevant provisions of this contract provide:

It is understood by both parties to this agreement that there will be development costs in excess of the HUD mortgage [which will be financed by Fairfield] .... Fifty and one-tenth (50.1%) of this “shortfall” ... will be owed to [Fairfield] by Jackson at final endorsement of the HUD mortgages on the projects.
Prior to first occupancy of the apartments on the property, Jackson will sell partnership interests from his 50.1% ownership at least in the amount of $124,-000.00
These proceeds [from the syndication sale] will be deposited in an escrow account at the Commercial National Bank .... The first $55,000.00 of which will be paid as it accumulates to [Fairfield] in repayment of the [$10,000 and $45,000 loans]. The balance of the [escrow] proceeds will accumulate until final endorsement of the HUD mortgage loan at which time will be known the exact balance owed by Jackson for his 50.1% of the [advances made by Fairfield]. This amount will be paid from the aforementioned escrow account. Should this account be inadequate, Jackson will sell further partnership interests immediately to pay [Fairfield]. Should this account be in excess of Jackson’s amount owed, this balance will be paid to Jackson.

It is clear, from the foregoing contractual provisions, that Fairfield has assumed the obligation of providing all financing needed for the two housing projects in excess of that obtained from HUD. Jackson, on the other hand, has obligated himself in the first instance to syndicate and sell — prior to first occupancy — enough shares in his partnership interests to repay the two loans made by Fairfield, and his 50.1% share of the advances made by Fairfield. The contract imposes upon Jackson the additional obligation of repaying his 50.1% share of the advances for development costs made by Fairfield, which repayment was stipulated to be due “at final endorsement of the HUD mortgages on the projects.” Thus, the contract contains Fairfield’s obligation to finance, and Jackson’s dual obligation to syndicate a portion of his partnership interests and repay Fairfield’s advances at a stipulated time.

Fairfield contends that Jackson has breached his obligation to syndicate prior to first occupancy of the housing units included in the two developments. This contention is supported by exhibits which indicate that first occupancy occurred on November 8, 1982, and by correspondence which clearly implies that Jackson has continually refused to syndicate any portion of his interests in the limited partnerships, despite formal demands. On the basis of this alleged breach of their contract, Fairfield seeks judgment for Jackson’s 50.1% share of the cost advances made by Fairfield.

Jackson resists plaintiff’s demands in his exception of prematurity contending that, under the terms of the contract, Jackson’s payment of his 50.1% share of Fairfield’s advances is not due and demandable until “final endorsement of the HUD mortgages on the project.”

Thus, the sole issue presented by this second portion of the consolidated appeal, is whether Fairfield s suit for repayment of 50.1% of its advances is premature.

A suit is premature if it is brought before the right to enforce it has accrued. LSA-C.C.P. Art. 423. Prematurity is determined by the facts existing at the time suit is filed. Weldon v. Republic Bank, 414 So.2d 1361 (La.App. 2d Cir.1982). “On the trial of the dilatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition ....” LSA-C.C.P. Art. 930. In short, evidence may be considered in assessing prematurity. Superior Oil Co. v. Humble Oil and Refining Co., 257 La. 207, 241 So.2d 911, per curiam on rehearing, 241 So.2d 914 (La.1970). We are thus able to consider the documentary evidence filed herein which indicates that first occupancy in Northside Villa Apartments occurred on November 8, 1982, and that Jackson had not, prior to this time, syndicated his interests in the limited partnerships. The exhibits further show that plaintiff has made several formal demands on Jackson to execute his syndication obligation. We note also, from the filings submitted, that final endorsement of the HUD mortgages had not occurred.

In analyzing the prematurity of the instant suit, it is crucial to characterize the obligations upon which this suit is predicated. It is evident in the first instance that Jackson’s obligation to syndicate prior to first occupancy is an obligation to do. See LSA-C.C. Arts. 1761, 1905. Moreover, Jackson’s obligation to repay Fairfield’s loans and advances — which obligation accrues at the final endorsement of the HUD mortgages — is apparently an obligation to give. LSA-C.C. Art. 1906.

More crucial to the resolution of this appeal is the characterization of these obligations as separate and distinct, or as sub-parts of the same obligation. Based on the codal definitions provided by Civil Code Articles 2108 and 2109, we conclude that Jackson’s obligations to syndicate and repay Fairfield are components of, and together comprise, a single obligation. In civilian terms, these dual obligations constitute a single indivisible obligation.

Article 2108 states that “[a]n obligation is divisible or indivisible, according as it has for its object, either a thing which, in its delivery or a fact which, in its execution, is or is not susceptible of division, either material or intellectual.” Article 2109 states that:

“The obligation is indivisible, though the thing or the fact which is the object of it, be by its nature divisible, if the light, in which it is considered in the obligation, does not admit of its being partially executed.”

Applying these codal definitions to the civil duties owed herein, it is clear that Jackson’s obligations to syndicate and repay Fairfield together constitute but a single, indivisible obligation. Partial execution was not intended by the parties. Clearly, it was never envisioned that one obligation would be executed without the other. The obligation to syndicate would have no meaning absent the obligation of repayment, since syndication was solely a means to finance repayment. Moreover, the obligation of repayment might prove impossible for the obligor Jackson without prior syndication. In function, in purpose, and in the intent of the parties, these obligations of syndication and repayment are so inextricably related and intertwined that they can be viewed in no other light than as complementary duties constituting a single obligation. It is axiomatic that in the parties’ intentions, the obligation to syndicate existed only to accumulate an escrow account and implement the obligation of repayment. In short, the obligations to syndicate and repay were constituent parts of the same indivisible obligation.

Given our conclusion that Jackson’s obligations to syndicate and repay are constituent components of a single indivisible obligation, it is next necessary to apply the codal rules governing the maturity and accrual of actions to this single multi-predi-cate obligation.

Article 1933 provides that when a passive breach has occurred, damages are due — and the action has accrued — “from the time that the debtor has been put in default.” A passive breach occurs where an obligor allows a contractually stipulated term to expire without discharging his obligation. LSA-C.C. Art. 1931. Article 2052 provides that “[w]hat is due only at a certain time, can not be demanded before the expiration of the intermediate time .... ” See also, LSA-C.C.P. Art. 423.

It might be contended that the application of these codal principles leads to conflicting conclusions about whether this action is premature. It might be contended, for example, that under Article 1933 the action for breach of the syndication obligation had accrued and that under Article 2052 the action for repayment was premature. Thus, it could be urged that Jackson passively violated the syndication obligation by failing to syndicate during the prescribed time, and that under Article 1933, an action for this passive breach accrued when Fairfield put Jackson in default by formal demand. It could be further urged that the action for repayment of the advances was premature until endorsement of the HUD mortgage, under Article 2052, since “[w]hat is due only at a certain time, can not be demanded before the expiration of the intermediate time .... ” However, we reject that approach because of our conclusion herein that Jackson’s two-fold duties constitute a single indivisible obligation, and because it would be illogical to say that the same obligation was both ripe and premature.

The better view is that this single obligation is not premature, but is ripe. This result is reached when Code Articles 1933 and 2052 are contextually interpreted to yield a harmonious effect. While Article 2052 establishes the general principle that a creditor may not accelerate at will a debt- or’s debt, we do not believe the codal redactors intended to extend the protection of this article to obligors who had breached a sub-obligation integrally related to other components of an indivisible obligation. It is our belief, in short, that Article 2052 was not intended to extend its protection to obligors who had not complied in good faith with the terms of their contract. In our view, Article 2052 was meant to protect only debtors that had substantially complied with their contractual obligation. The rule of Article 2052 must be read in conjunction with the rule of Article 1933 that an action against an obligor who passively violates his obligation accrues upon formal demand or “putting in default.”

We thereby conclude under Articles 1932 and 2052, that where an obligor breaches a sub-obligation which is an integral component of a larger indivisible obligation, an action thereby accrues for enforcement of the entire indivisible obligation — even though the time stipulated for the performance of other sub-obligations comprised in the indivisible obligation has not expired. In short, breach of an integral part of the indivisible obligation constitutes breach of the entire indivisible obligation.

We note that the result which is mandated herein by the Civil Code is also supported by jurisprudential doctrine. Louisiana courts have adopted the doctrine of anticipatory breach. Marek v. McHardy, 234 La. 841, 101 So.2d 689 (1958); Lawton v. Louisiana Pacific Corp., 344 So.2d 1129 (La.App. 3d Cir.1977). The principle thesis of this doctrine is that an obligee has a cause of action when an obligor’s acts or omissions reduce his ability to execute, or signify his intent to repudiate, a contractual obligation. Comment, The Doctrine of Anticipatory Breach of Contract, 20 La.L.Rev. 119 (1959). It is clear, under this doctrine, that plaintiff Fairfield has a cause of action for anticipatory breach: Jackson’s failure to syndicate indicates his unwillingness or inability to repay Fairfield.

DECREE

The trial court’s judgment sustaining the peremptory exception of no cause of action and dismissing plaintiff’s claims in Suit No. 15,593 is affirmed. However, this judgment is amended to allow plaintiff Fairfield fifteen days from the finality of this decision to amend its petition to state a valid cause of action. The trial court’s order dismissing Jackson’s rule to dissolve the preliminary injunction previously granted against him is vacated. This cause is remanded for further proceedings not inconsistent herewith. The trial court’s judgment sustaining the dilatory exception of prematurity in Suit No. 15,594 is reversed, and this cause is remanded for further proceedings not inconsistent herewith. The costs of this consolidated appeal are to be equally borne by plaintiff Fairfield and defendant Jackson.

AFFIRMED, AMENDED and REMANDED in part; REVERSED and REMANDED in part.


source: Caselaw Access Project

author: FRED W. JONES, Jr., Judge.

license: Public Domain

text:
    James T. HUBBARD, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION et al., Defendants-Appellees.
    No. 15599-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.

      Bodenheimer, Jones, Klotz & Simmons by James P. Bodenheimer, Shreveport, for plaintiff-appellant.
    Hudson, Potts & Bernstein by Gordon L. James, Monroe, for defendants-appellees; Patricia S. Harris and Judith A. Zakens, Detroit, Mich., of counsel.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

The primary issue posed by this appeal from summary judgments in favor of defendants is whether, in an action to rescind the sale of an automobile because of alleged redhibitory defects, recovery may also be had for damages if it is proven that the vendee had a heart condition which was exacerbated by mental anguish over the car defects and that this heart problem led to his death.

In June 1978 James T. Hubbard sued Rountree-Olds Cadillac Company, Inc. (“Rountree”) to rescind the sale, because of alleged redhibitory defects, of a 1977 Cadillac purchased by plaintiff from defendant in June 1977. Plaintiff further sought damages for a deteriorated heart condition assertedly due to “anxiety, anguish and anger encountered by Petitioner as a result of having to make many returns of the vehicle to defendant ... for repairs and attempted repairs of the defects in his vehicle.” Also made defendants were General Motors Corporation (“GM”), as the manufacturer of the motor vehicle, and its liability insurance carrier.

Subsequently, Mrs. Ethel Hubbard filed an amended petition in this litigation, alleging that her husband [original plaintiff] died of a heart attack in October 1978 and substituting herself as party plaintiff to recover his damages and also to recover, individually, for his death which Mrs. Hubbard contended was due to mental anxiety over the vices in the Cadillac.

Rountree and GM filed motions for summary judgment, asking for rejection of that part of plaintiff’s demand seeking recovery for “loss of income, pain, suffering and disability, both mental and physical, medical expenses and wrongful death resulting from the alleged anguish and anxiety.”

Judgments were rendered in the district court sustaining the described motions for summary judgment, dismissing all of plaintiff’s demands for damages [generally for mental anguish allegedly resulting in worsening heart condition and subsequent death] other than those relating to return of the purchase price and attorney fees.

On appeal plaintiff argues that, contrary to the line of jurisprudence relied upon by defendants, she is not seeking damages for the purely nonpecuniary effects of mental anguish but is asking recovery for damages for the pecuniary loss occasioned by her deceased husband’s heart problems and ensuing demise. Plaintiff further contends that recovery for mental anguish resulting from redhibitory defects should be allowable under La.Civil Code Article 2545, pointing out that this codal article has been recently jurisprudentially described as a “hybrid” article under which damages in tort may be awarded under La.C.C. Article 2815 as well as damages in contract under La.C.C. Article 1934.

Article 1934 provides in part:

Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions and modifications:
3. Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.
In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud or bad faith of the debtor.

Prior to Philippe v. Browning Arms Company, 395 So.2d 310 (La.1981) on rehearing, our jurisprudence consistently denied damages for mental anguish over redhibitory defects in automobiles. Typical of the cases are Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976); Wallace v. Ford Motor Co., 395 So.2d 884 (La.App. 2d Cir.1981); Cobb v. Coleman Oldsmobile, Inc., 393 So.2d 402 (La.App. 1st Cir.1980). As the court in Meador explained:

“[w]e would interpret Article 1934(3) as follows: Where an object, or the exclusive object, of a contract, is physical gratification (or anything other than intellectual gratification) nonpecuniary damages as a consequence of nonfulfillment of that object are not recoverable.”

However, in the Philippe case our state Supreme Court held:

“There is no compelling reason to require a person injured by a defective product he has purchased to proceed either in contract or in tort. The seller’s (manufacturer’s) act of delivering a defective thing, when he knows of the defect, gives rise to delictual, as well as contractual, liability.... (emphasis added)
“We conclude that the right and the extent of recovery by the purchaser of a thing against the seller or manufacturer is governed by the codal articles providing for responsibility in the seller-purchaser relationship, as applied through C.C. art. 2315.”

In light of the established jurisprudential interpretation of Article 1934(3), plaintiff would be precluded from recovery in contract for her husband’s mental anguish over the defects in the Cadillac, even though this anxiety might have resulted in a deteriorated heart condition and, finally, his death. The critical question posed for our consideration is whether the rationale underlying Philippe would allow plaintiff to recover for her husband’s mental anguish-related heart condition and demise [under Article 2545] if the evidence preponderantly supported the allegations of her petition relative to the redhibitory defects and causative link between those vices and the heart problems.

The granting of a motion for summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits filed, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La.C.C.P. Art. 966.

Summary judgment is not to be used as a substitute for a full trial of a controverted factual issue which is material to the decision of the case. The likelihood that a party will be unable to prove his allegations at trial does not constitute a basis for rendering a summary judgment. Phillips as Tutrix of Phillips v. Roy, 431 So.2d 849 (La.App. 2d Cir.1983).

Plaintiff in this case alleged that the automobile purchased from Rountree, manufactured by GM, contained numerous hidden defects which gave rise to this redhibi-tory action and that anguish over those vices aggravated the vendee’s heart condition, ultimately resulting in his death. Rather than controverting these factual assertions in some appropriate manner, in their motions for summary judgment defendants simply relied upon the pre-Phi-lippe jurisprudential rule that “damages for mental anguish and inconvenience are not recoverable in suits for redhibition.” Consequently, with the case in this posture there is no genuine issue as to a material fact. The only question is whether, upon proof of the alleged facts, plaintiff would still be denied recovery because damages of this nature are not legally recoverable in a redhibitory action.

According to Philippe, the act of delivering a defective thing when the vendor (manufacturer) knows of the defect is in itself tortious conduct. Plaintiff has adequately alleged the commission of a tort in the described manner. Whether she can successfully prove the redhibitory defects and the causative link between the alleged tort and her deceased husband’s heart condition is a matter for trial on the merits. That she may be unsuccessful is not a relevant consideration at this juncture.

In summary, although there is no genuine issue as to a material fact in the case for purposes of considering the motions for summary judgment, defendants are not entitled to summary judgments as a matter of law. For these reasons, we reverse the judgments of the district court sustaining the motions for summary judgment; overrule the motions for summary judgment; and remand the case to the district court for further proceedings consistent with this opinion. Costs of appeal are assessed to the appellees.


author: JASPER E. JONES, Judge.

text:
    Kaye West Lee Cozart HUDSON, Plaintiff-Appellee, v. James Harold COZART, Jr., Defendant-Appellant.
    No. 15605-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.

      Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for defendant-appellant.
    James B. Wells & Associates by James D. Slack, Bossier City, for plaintiff-appellee.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

Plaintiff brought this action for an increase in child support from her former husband, James Cozart. Cozart appeals a default judgment granting the increase. We reverse.

The sole issue on appeal is whether plaintiff presented sufficient evidence at the confirmation of default hearing to entitle her to the increased child support.

Plaintiff and Cozart were granted a divorce in Nashville, Tennessee on July 28, 1980. The divorce decree gave plaintiff custody of the couple’s three children and ordered Cozart to pay her $100.00 per month child support for each child. In the present action plaintiff prayed for and was granted an increase in child support to $250.00 per month per child.

The standard for testing the sufficiency of evidence at a confirmation of default hearing is found in La.C.C.P. 1702 which provides:

“A judgment of default must be confirmed by proof of the demand sufficient to make out a prima facie case ...”

For a default judgment to be granted it must be based upon competent evidence. Holbrook v. Palermo, 352 So.2d 419 (La.App.3d Cir.1977). Hearsay evidence not admitted under one of the exceptions to the exclusionary rule is not competent evidence and does not sustain the burden of proving a prima facie case. Carte Blanche Plumbing and Heating Repair Service, Inc. v. Van Haeler, 337 So.2d 654 (La.App.4th Cir.1976). If the judgment is rendered on the basis of inadmissible hearsay evidence, it must be set aside. Courville v. Southern Casualty Insurance Company, 304 So.2d 93 (La.App.3d Cir.1974).

In order to make out a prima facie case for the modification of a support award the party seeking the modification must show that the person (or persons) for whose benefit the support was granted has undergone a substantial change in the circumstances giving rise to the need for support. Updegraff v. Updegraff, 421 So.2d 1165 (La.App.2d Cir.1982). If the sought after modification is an increase in support, it must also be shown that the person ordered to pay has the financial ability to pay the additional amount prayed for. See Kees v. Kees, 292 So.2d 307 (La.App.1st Cir.1974).

We are unable to find that the trial judge committed manifest error in deciding that plaintiff presented sufficient evidence of the increased need of the children for additional support. Taken as a whole, the record indicates that the children are now in private school while they were not when the Tennessee divorce was rendered. An affidavit of expenses and income by plaintiff was admitted into evidence and verifies that the private school has caused her additional expense. Plaintiff testified the affidavit contained a list of her monthly needs and income. The total amount of the needs exceeded her income by $1,069.00. We also note that at the time of the confirmation hearing the children were some 2½ years older than they were when the amount of child support was set. The increased age of the children gives rise to additional expenses.

Though plaintiff established the increased need of the children, the trial judge erred in granting the increase. Defendant’s ability to pay the additional amount was not established by competent evidence. The only evidence presented on this issue was a letter from defendant’s Tennessee attorney to plaintiff’s attorney outlining defendant’s earnings and expenses. Plaintiff’s attorney took the stand to verify from whom he received the letter. Plaintiff did not testify on this issue.

The letter from the Tennessee attorney was pure hearsay and should not have been admitted. Plaintiff does not point out, nor can the court find, any exceptions to the hearsay rule under which the letter was admissible. The supreme court has held that a similar letter was inadmissible in a confirmation of default hearing. O’Brien v. D’Hemecourt, 118 La. 996, 43 So. 654 (1907). The letter there presented a stronger case for admission than the one here. It was sent to plaintiff’s attorney by the defendant’s employer who had first hand knowledge of what the defendant made. Here the letter came from an attorney who probably had no personal knowledge of the defendant’s income.

Plaintiff contends that OBrien could be cited to support her position. The admission of the letter there was held not to be reversible error because there was other evidence sufficient to establish the defendant’s ability to pay. The plaintiff’s attorney conducted an independent investigation into the defendant’s earnings and testified as to the results of the investigation. The letter was used solely to corroborate the attorney’s findings.

In the instant case plaintiff’s attorney did not conduct an independent investigation of defendant’s ability to pay. He had no first hand knowledge of this information. All he testified to at trial was who sent him the letter. He even admitted in his testimony that he had no way of knowing whether the expense statement was correct. Since there was no other evidence of defendant’s ability to pay, OBrien does not add any support to plaintiff’s case.

We find that defendant’s ability to pay was established solely by incompetent hearsay testimony. We REVERSE the trial court’s judgment confirming the default and increasing the child support. Cost of the appeal is assessed against the plaintiff. We remand the case for further proceedings in accordance with law.

      . Plaintiffs petition also sought to have the Tennessee divorce judgment recognized in Louisiana. That relief was granted. Defendant does not question it on appeal.

      . The Tennessee attorney also sent copies of two statements that were attached to the defendant’s payroll checks. The source and identity of these statements were not established at trial other than by the hearsay testimony of plaintiffs attorney. Under these circumstances they are not competent evidence to establish defendant’s ability to pay.

      . The defendant filed an answer before the judgment was appealed.


text:
    Howard D. SNEDEGAR, Plaintiff-Appellee, v. NOEL ESTATE, INC., Defendant-Appellant.
    No. 15616-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Writ Denied Nov. 28, 1983.
    Weinstein & Hiller by Richard E. Hiller, Shreveport, for defendant-appellant.
    Touchstone & Wilson, Ltd. by David M. Touchstone, Shreveport, for plaintiff-appel-lee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Appealing a judgment in favor of plaintiff-lessee ordering specific performance of an option to purchase clause of a lease contract, defendant-lessor contends the trial judge erred in holding that:

(1) The option to purchase clause in the original lease, requiring the lessee to timely reimburse the lessor for payment of property taxes as consideration for exercise of the option, was eliminated by a subsequent modification of the option to purchase provision.
(2) Modified option to purchase clause was valid despite absence of time limit for exercise.

Concluding after our examination of the record, for the reasons hereinafter explained, that the trial judge correctly disposed of the issues posed by this litigation, we affirm.

Howard Snedegar leased from Noel Estate, Inc. [represented by its president, James Noel], effective March 15, 1971, a 1 and ½9⅛ acre unimproved tract [part of 8.5 acres owned by lessor] fronting on Greenwood Road in Shreveport, for $208.25 per month. The lease contract, prepared by Noel, contained the following provisions relating to an option to purchase:

“3. LESSEE will reimburse LESSOR all monies paid by him for ad valorem tax assessment against the tract or the improvement involved, timely. This reimbursement is the LESSEE’S consideration for the right to buy.
“5. However, it is agreed and clearly understood that should the LESSEE desire to buy the said tract, the purchase price will be pegged at the sum of forty one thousand six hundred and fifty dollars ($41,650.00) and is exclusive to the LESSEE, AND can be paid the owner or his assignee, by the LESSEE,- or his heirs. That cash payment when made will cancel and nullify the lease, and place the LESSEE, on record as the owner, through proper instrumentation.”

During the five year primary term of the lease Snedegar placed improvements on the lease property [at a total cost of some $80,-000] for use in his business of selling recreational vehicles. The lessee was assessed for and paid ad valorem taxes on these improvements, separate from the land itself.

In 1976 Noel prepared and the parties executed a five year extension to the original lease, agreeing that:

“(1.) The continued evaluation of the LESSOR’S real property at the figure of forty-one thousand six hundred and fifty dollars ($41,650.00), which the LESSEE is granted exclusively the right to purchase with guaranty of title, at any time he elects within the next five years.
“(2.) Previous to the purchase, LESSEE will pay a cash rental timely for each month the sum of three hundred and twenty dollars ($320.00), which payment is pegged for five (5) years.
“(3.) All other features as they apply are retained from the previous lease.”

In 1979 Snedegar approached Noel with a request to purchase a strip of land lying adjacent to and east of the lease property. Agreement was reached on a 30-foot strip for which Snedegar paid $15,600. Although no act of conveyance was executed at the time, Noel prepared in his handwriting the following styled “addenda to former lease-purchase agreement.” dated October 4, 1979:

“Dear Mr. Snedegar:
For the promises and considerations made me, I as owner, chief officer and stockholder of the Noel Estate, Inc. do, herewith, bind myself to convey to you the present optioned lot, plus a 30' strip off the East side to you, or your son, exclusively, for the sum of $43,000.00, cash, when exercised.
I also understand that were I to desire to buy one of your trailers, campers, or various vehicles I shall be sold the same at your costs, net.
Conveyance by either party shall be a cash-sale deed, whenever you elect so long as it is under the term arrangements made with joint consent in my sale exclusively to you; or, without time limits as to my purchase of your vehicle, so long as you are in business.”

In October 1980 Noel requested that Sne-degar “release” the 30-foot strip for which the latter paid in 1979. Upon Snedegar’s refusal, Noel informed the lessee that he could no longer exercise the option to purchase because of his failure to timely reimburse the lessor for its payment of ad valo-rem taxes on the lease property. In response, Snedegar filed this suit for specific performance in December 1980. In essence, the defense was the above described position asserted by Noel.

At the trial it was established that in mid-1971 Snedegar made inquiry of Noel concerning the amount of property taxes the lessee would owe that year and was advised that Noel would not have this information until his receipt of the tax assessment at the end of the year. Both parties conceded that the subject was not raised again until October 1980. In fact, Noel testified that he “did not even think about the tax requirement” between the time of the 1971 conversation and Snedegar’s refusal to “release” the 30-foot strip in 1980.

It was also revealed at the trial that defendant had executed six different leases [including plaintiff’s] covering various portions of the 8.5 acre tract and received one tax bill for the entire tract. Obviously, therefore, Snedegar would not have been in a position to know any exact tax liability of his until it had been computed by Noel.

In a written opinion the trial judge reasoned as follows:

“[N]othing in Exhibit C [1979 addenda to original lease] changes the original lease or the extension of the lease signed in 1976. However, Exhibit C changes the option to purchase considerably ....
“Since it is admitted by the parties that there had been no discussion of the reimbursement of ad valorem taxes since 1971, and there is nothing in Exhibit C which can be construed to require the reimbursement of ad valorem taxes as a condition of the option granted in 1979, the Court holds that all Mr. Snedegar had to do in order to exercise the option contained in Exhibit C was to comply with his obligations as set out in Exhibit C, i.e., pay $42,000.00 cash, and sell Mr. Noel a vehicle at cost. Certainly this last consideration amounted to considerably more than the reimbursement of ad valorem taxes on the property over the ten year period, which were stipulated to total $1,442.26 through the first quarter of 1981....
“In summary, the Court believes that Exhibit C is a new agreement with regard to the option to purchase.”

The thrust of defendant’s argument on appeal is that the 1979 addenda to the original lease was not a new contract with reference to the option to purchase and, consequently, did not eliminate the requirement for timely reimbursement of property taxes as a predicate for exercise of the option to purchase.

As set forth above, paragraph 3 of the original lease provided that the lessee “will reimburse” the lessor all monies paid by the latter for ad valorem taxes assessed to the lease property “timely”, and that this reimbursement would constitute the consideration for lessee’s option to purchase. This clause is somewhat ambiguous and is susceptible to the interpretation that timely reimbursement of property taxes was a condition of the lease as well as consideration for the option to purchase. However, as evidenced by the subsequent conduct of the parties, neither understood nor intended this to be a condition of the lease. The inaction of the lessor is particularly significant since it was incumbent upon Noel to advise Snedegar of his pro-rata share of the property taxes.

Agreements legally entered into have the effect of law upon the parties thereto. Such contracts may be modified or abrogated by the mutual consent of the parties. La.C.C. Art. 1901; Bruhl v. White, 346 So.2d 734 (La.App. 1st Cir.1977); Prisock v. Boyd, 199 So.2d 373 (La.App. 2d Cir.1967).

Courts are bound to give legal effect to contracts according to the true intent of the parties, as generally determined by the words of the contract when these are clear and specific. La.C.C. Art. 1945(2) and (3).

In this codal context we have examined the 1979 addenda to the original lease and agree with the trial judge that it obviously constituted a significant modification of the prior option to purchase clause, in the following respects:

(1) Purchase price of the lease property was increased from $41,650 to $42,000.
(2) Provision added obligating lessor to convey 30 foot strip [previously paid for by lessee].
(3) Lessee obligated to sell lessor, at cost, a recreational vehicle.
(4) No mention of reimbursement of property taxes as consideration for exercise of option to purchase.

We further point out that the affirmative covenants of the lessee stipulated in the contract of lease were sufficient consideration for the option to purchase, without the legal necessity to add any other specific consideration. See Kinberger v. Drouet, 149 La. 986, 90 So. 367 (1922).

Defendant’s argument that the 1979 modification of the original lease is invalid for failure to state a time limit is without merit. An option agreement which is part of a lease having a definite term [as here] is necessarily limited to the term of the lease. Kinberger v. Drouet, supra; Smith Enterprises, Inc. v. Borne, 245 So.2d 9 (La.App. 1st Cir.1971).

For these reasons, we affirm the judgment of the district court, at appellant’s cost.


author: MARVIN, Judge.

text:
    Faye SMILEY, Plaintiff-Appellant, v. CITY OF WINNFIELD POLICE DEPARTMENT, Defendant-Appellee.
    No. 15624-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Rehearing Denied Oct. 20, 1983.
    Writ Denied Dec. 16, 1983.
    Robert L. Royer, Alexandria, for plaintiff-appellant.
    Douglas H. Allen, Winnfield, for defendant-appellee.
    Charles B. Bice, Winnfield, for Civil Service Bd.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   MARVIN, Judge.

Ms. Smiley appeals a judgment upholding her dismissal as a classified police officer of the defendant city. LRS 33:2561. She contends that the trial court erred in finding her dismissal was in good faith and for cause and that White v. City of Winnfield Fire Department, 384 So.2d 471 (La.App. 2d Cir.1980), should control.

White involved the same resolution of the city, adopted in 1977, which is here presented and which requires all city employees to reside within the city “to insure the proper discharge of . .. duties of the various departments of the city.”

White did not pass on the authority of a city to adopt such a policy but reversed White’s discharge as a city fireman because it was not shown that the services of the fire department were rendered less efficient or were impaired by reason of White’s residing outside the city limits. Fireman White had been employed many years before the 1977 resolution was enacted and had lived outside the city. He was fired in 1978 when he refused to move into the city limits. White worked 24 hours on and 48 hours off duty and it was shown that he was not on call when off duty. We noted “a total absence of any evidence to establish that the off-duty residence requirement has any relationship to the efficiency of the ... Fire Department.” 384 So.2d at p. 473.

Ms. Smiley, on the other hand, knew of the city’s policy before she accepted employment in 1977. In order to obtain her position, she moved from Sikes into the city limits of Winnfield. She moved outside the city limits in 1981, knowing of the effect of the resolution. Ms. Smiley was subject to being “called” to work as a radio operator when she was off duty, even though such calls did not frequently occur. It was also shown that all employees of the police department resided within the city and were on call when off duty.

The rule in question, here, the city’s residence requirement, must bear a real and substantial relation to the public service offered by the particular department. McIntosh v. Monroe Mun. Fire, etc., 389 So.2d 410 (La.App. 2d Cir.1980). Subsections 3 and 15 of LRS 33:2500, subd. A contemplate that a municipal employee may be discharged for the “commission ... of any act ... contrary to the public interest or policy” or for “willful violation of any ... rule, regulation or order adopted under [statutory] authority.” Fireman McIntosh was discharged because of his violation of a department rule which prohibited “intoxication while off duty.” 389 So.2d at p. 412. McIntosh was on call when off duty. We said, “intoxication off duty and on-call can be reasonably presumed to affect the efficiency of the public service offered by the fire department.” 389 So.2d at p. 413.

The critical issue is whether the city’s residence requirement for employees bears a real and substantial relation to the services offered and expected by the police department and whether the efficiency of the department would be affected by violation of the requirement. Under the circumstances shown by this record, where all police department employees are on call when off duty, and where Ms. Smiley was aware of the requirement when she accepted employment, we answer the issue in the affirmative. It is not injudicious to speculate that the ability of the police department to respond in full force to emergencies would be affected if any sizeable percentage of its employees who were off duty, but on call, resided at varying distances outside the city limits.

The evidence supports the conclusion that Ms. Smiley was discharged by the city in good faith and for cause. She was informed on June 16, 1981, that unless she moved back into the city limits she would be discharged effective July 1, 1981.

At appellant’s cost, judgment is AFFIRMED.


text:
    Paul Eugene EMOND, Jr., et ux., Plaintiffs-Appellants-Appellees, v. TYLER BUILDING AND CONSTRUCTION COMPANY, INC. et al., Defendant.
    No. 15630-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Rehearing Denied Oct. 20, 1983.

      Cook, Yancey, King & Galloway by Charles G. Tutt, Shreveport, for plaintiffs-appellants-appellees.
    Nelson Moak, Benton, for defendant-ap-pellee, Tyler Bldg. & Const. Co.
    Frederick L. Miller, Shreveport, for defendant-appellant, Robert E. Jones & Assoc., Inc.
    William L. Lowe, Shreveport, for third-party defendant and appellee, Mike Harlan.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

This is an action by home owners, the Emonds, against the builder of their home, Tyler Building and Construction Co., Inc., and the designer of its foundation, Robert E. Jones & Associates, Inc. Tyler made a third party demand against Jones. The Emonds and Jones both appeal a judgment, rendered after a trial on the merits, awarding judgment in favor of the Emonds against Tyler but sustaining an exception of no right of action and rejecting their demands against Jones and awarding judgment in favor of Tyler on its third party demand against Jones. We amend and affirm.

On June 2,1978, the Emonds purchased a house on lot 21 of the Steeple Chase subdivision in Shreveport, Louisiana. The Emonds bought the house from Tyler who had built it on a foundation designed by Jones. The house suffered extensive damage in July 1980, when its foundation failed.

The Emonds brought this action seeking a reduction in the price of the house, damages and attorney’s fees. Tyler made a third party demand against Jones. Jones interposed an exception of no right of action to the main demand.

After a four day trial on the merits the district judge granted judgment on the main demand in favor of the plaintiffs and against Tyler in the amount of $17,265.35 and on the third party demand in favor of Tyler and against Jones in the amount of $15,665.35.

Jones’ motion for a new trial was denied and these appeals followed. The appeals raise the following primary issues:

1) do the Emonds have a right of action against Jones;
2) was the design of the foundation a cause of the damage to the house;
3) was the foundation negligently designed;
4) may the Emonds recover for the reduced market value of their house; and
5) may the Emonds recover for their mental anguish.

Issue # 1

Jones has interposed an exception of no right of action to the main demand. The basis for the exception is that there is no privity of contract between Jones and the Emonds.

The exception of no right of action tests whether the plaintiff is in the class to which the law extends a remedy. Frazier v. Green Steel Bldg., Inc., 409 So.2d 1290 (La.App. 2d Cir.1982).

Though the petition is couched primarily in terms of an action on a contract or in redhibition, it also alleges that Jones committed the tort of malpractice and thereby injured the plaintiffs. The plaintiffs, the victims of the alleged tort, are the proper parties to assert the action.

The exception of no right of action is not well founded and should have been overruled.

Issue # 2

Jones argues that the damages were caused not by its design of the foundation as found by the district judge, but instead by improper site preparation and the characteristics of the soil.

Causation is a question of fact upon which, the trial judge’s findings may not be disturbed absent manifest error. Causey v. Monroe, 421 So.2d 1151 (La.App. 2d Cir.1982), writ denied, 426 So.2d 180 (La.1983). Conduct is a cause in fact of an injury if it is a substantial factor in bringing about the harm. Taylor v. State, 431 So.2d 876 (La.App. 2d Cir.1983).

The foundation for the plaintiffs’ house was actually designed by Ron Smith, an employee of Jones. Smith designed the foundation without having the soil of lot 21 tested and without examining the site. He designed the foundation without the grade beams required by sound engineering practice.

Had Smith, an engineer, ordered soil testing the unstable characteristics of the soil on the lot would have been discovered and could have been protected against. Smith’s failure to order soil testing and his failure to include the grade beams required by sound engineering practices were both substantial factors in the failure of the foundation and resultant damage to the plaintiffs.

The district judge’s conclusions as to causation are correct.

Issue # S

We now consider whether the foundation was negligently designed. This involves two inquiries: first, whether the engineers owed a duty to the plaintiffs to protect against the risk encountered and, second, whether that duty was breached.

An engineer owes a duty to exercise the degree of professional care and skill customarily employed by others of his profession in the same general area. Am. Fid. Fire Ins. v. Pavia-Byrne Engineering, 393 So.2d 830 (La.App. 2d Cir.1981), writ denied, 397 So.2d 1362 (La.1981). This duty extends in favor of both owners and users of the project upon which the engineer works. See Am. Fid. Fire Ins. v. Pavia-Byrne Engineering, supra. (Engineers duty extended to surety of project); Gurtler, Hebert & Co. v. Weyland Mach. Shop, 405 So.2d 660 (La.App. 4th Cir.1981) (architect’s duty extended to sub-contractor).

It cannot be seriously argued that the Emonds and Tyler are not within the scope of the duty owed by Jones. Further, the risk that was encountered, damage from the failure of an inadequate foundation, is one which the engineer should have protected against.

The decisive question with respect to Jones’ liability to Tyler and the Emonds is whether its employee, Smith, breached its duty to them. There are two possible breaches of this duty suggested by the record: first, the failure of the engineer to have the soil tested in order to determine how the foundation should be designed to meet the soil characteristics of the site; and, second, the failure of the engineer to include the grade beams required by sound engineering practice.

With respect to the first possible breach Jones contends that the professional standard of engineers in the Shreveport area was to rely on soil data furnished by the FHA. The flaw in this position is that the evidence does not support it. The record indicates that, though some engineers rely exclusively on FHA data, this is not a general practice followed by all engineers. The record also shows that, to whatever extent that practice is followed, it is one that has developed among some Shreveport engineers and is not in accord with sound engineering principles.

The testimony of plaintiff’s three engineers corroborated to some extent by one of the defendant’s engineers, fully support these conclusions and the trial judge’s determinations are fully supported by the evidence. Jones’ employee, Smith, breached his professional duty in failing to obtain soil data for lot 21 before designing the foundation.

With respect to the second possible breach we note particularly the testimony of Mr. Stanley Cothern, a civil engineer called as an expert witness by Jones. Coth-ern testified that sound engineering principles required that grade beams be placed at least every twenty feet in a foundation of the type designed for the house in question. He álso indicated that they may have to be placed even closer for additional strength under some soil conditions. The foundation of the Emond home does not have grade beams even every twenty feet.

The duty owed to the Emonds and Tyler was breached by the engineer’s failure to design a foundation which met even the minimum requirements of sound engineering principles.

The foundation was negligently designed by Jones’ employee, Smith, and Jones is responsible to the Emonds and Tyler for the damages suffered.

Issue # 4

The Emonds contend they are entitled to recover for the loss of market value of their home due to the structural problems. The trial judge found that no loss of market value had been adequately proven.

Damages for loss of market value may be recovered, see Firmin v. Frantom, 354 So.2d 1089 (La.App. 2d Cir.1978), but the plaintiff must prove them as he must prove every element of damages claimed. Reid v. Allstate Ins. Co., 407 So.2d 34 (La.App. 3d Cir.1981).

The plaintiffs attempted to prove this element of damages through the testimony of Mr. Francis Grigsby, a Shreveport realtor. Though Grigsby’s primary experience is as a realtor and his appraisals are not widely accepted in the Shreveport financial community, he was allowed to testify as an expert on the strength of one course in appraising and his experience in the field.

Grigsby opined the Emonds’ house was worth $5,000 less than an identical house without foundation problems. He admitted that his procedure in appraising the house was “pretty subjective.” His testimony also shows that his appraisal was based on the incorrect assumption that the house was one year old rather than its actual age of three years at the time of the appraisal.

The weight given the testimony of an expert is determined by his qualifications, experience in the field and the facts upon which his opinion is based and the trial judge has considerable discretion, which should not be disturbed absent manifest error, in accepting or rejecting such testimony. Henderson v. Diamond Datsun, Inc., 413 So.2d 542 (La.App. 4th Cir.1982).

The trial judge did not err in finding the testimony of Grigsby insufficient to prove a loss of market value. Though Grigsby has done some appraising his educational qualifications for such work are quite limited. Further, his opinion was based on an incorrect assumption of facts. These circumstances combine to render his opinion of no probative value.

The demands for loss of market value were correctly rejected as not proven.

Issue # 6

The plaintiffs complain of the failure of the trial judge to award damages for mental anguish.

The trial judge considered the availability of such damages against defendant Tyler only. The demand for mental anguish damages against defendant Tyler was properly rejected. See Ostrowe v. Darensbourg, 377 So.2d 1201 (La.1979) (mental anguish damages not recoverable in an action based on a contract).

However, the plaintiffs’ action against defendant Jones is founded in tort and, therefore, mental anguish damages caused by injury to plaintiffs’ property may be allowed against this defendant. Hayward v. Carraway, 180 So.2d 758 (La.App. 1st Cir.1965), writ refused, 248 La. 909, 182 So.2d 662; Nickens v. McGehee, 184 So.2d 271 (La.App. 1st Cir.1966), writ refused, 249 La. 199, 186 So.2d 159 (La.1966); Lambert v. Allstate Insurance Company, 195 So.2d 698 (La.App. 1st Cir.1967).

The record shows that the Emonds are home oriented people. They were seriously and justifiably upset by the dilapidated condition of their almost new home and the difficulties and inconveniences occasioned by the attempts to repair it. We find that the plaintiffs are entitled to an award of $8,000, $4,000 each, for damages due to mental anguish.

Other Matters

In brief, Jones contends that all claims against it are prescribed and states that prescription was pleaded in its answer to the third party demand. The record contains no such pleading and the minutes do not indicate that any such pleading was ever filed. Prescription must be specially pleaded and cannot be raised by the court, C.C.P. art. 927, thus, the issue of prescription is not properly before us and we decline to pass on it.

Jones contends alternatively that in the event its design of the foundation of the house is found to be a cause of the damages to the house that it should not be found liable to Tyler on the third party demand for the full extent of the damages. Jones argues that Tyler’s omissions at the time the house was built also contributed to causing the damages. Jones contends that Tyler failed to properly drain the lot and failed to properly pack the fill under the house and these omissions contributed to the shifting of the foundation and the damages to the house.

The trial judge made the specific finding that the major defects in the house were caused by the improper design in the foundation. The testimony of plaintiffs three experts corroborated to some extent by two of defendant’s witnesses provides substantial evidence to support this finding of fact by the trial judge. We note that the trial judge specifically denied any award on the third party demand for cost of improving draining and lime injection to preclude water from draining under the slab. We find no manifest error in the trial judge’s award of damages on the third party demand.

We have awarded to plaintiff the same damages against Jones that the trial court awarded against Jones on the third party demand with the exception of attorney’s fees and damages for mental anguish. We have excluded attorney’s fees from plaintiff’s damage award against Jones because plaintiff’s claim against Jones is solely in tort and attorney’s fees cannot be awarded in this action as they have not been authorized by contract or statute. We have awarded plaintiffs mental anguish damages against Jones as this element of damages is proper in a tort action.

The Emonds request an increase in their award of attorney’s fees for services on this appeal. The award of attorney’s fees is only against defendant Tyler and as no additional relief was obtained against that defendant we decline to increase the award of attorney’s fees.

Conclusion

For the foregoing reasons the judgment is amended and recast as follows and as amended is AFFIRMED.

“IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the plaintiffs, Paul and Maureen Emond and against the defendants, Tyler Building and Construction Co., Inc., and Robert E. Jones and Associates, Inc., in solido, in the amount of Eight thousand Six hundred Sixty-five and 35/100 ($8,665.35) Dollars with legal interest from date of judicial demand until paid;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the plaintiffs, Paul and Maureen Emond, and against defendant, Tyler Building and Construction Co., Inc., in the additional amount of Eight thousand Six Hundred and No/100 ($8,600.00) Dollars with legal interest from judicial demand until paid;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the plaintiffs, Paul and Maureen Emond, and against defendant, Robert E. Jones and Associates, Inc., for mental anguish damages in the additional amount of Eight Thousand and No/100 ($8,000.00) Dollars with legal interest from judicial demand until paid;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of third party plaintiff, Tyler Building and Construction Co., Inc., and against third party defendant, Robert E. Jones and Associates, Inc., in the amount of Fifteen Thousand Six hundred Sixty-five and 35/100 ($15,665.35) Dollars, with legal interest from judicial demand until paid;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of third party defendant, Mike Harlan, rejecting the demands of Tyler Building and Construction Co., Inc., against said third party defendant;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that expert witness fees of Roy Jones, Gary Strong and Phillip Lindsay be set at $150.00, $200.00 and $200.00, respectively and taxed as costs;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Robert E. Jones and Associates, Inc., pay all costs of this proceeding.”

AMENDED AND AFFIRMED.

      . The plaintiffs’ claim, asserted against a professional who did not sell, build or distribute the item in question, is not an action in redhibition.

      . Jones is also liable to Tyler for breach of its contract to properly design the foundation for &e house.


text:
    Jo Ann Rae Quattlebaum SOBBERRI, et al., Plaintiffs-Appellants, v. Helen Marie COOKSTON, Defendant-Appellee.
    No. 15631-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Writ Denied Nov. 28, 1983.
    Culpepper, Teat & Caldwell by James D. Caldwell, Jonesboro, for plaintiffs-appellants.
    Douglas H. Allen, Winnfield, for defendant-appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr., and NORRIS, JJ.
   JASPER E. JONES, Judge.

Appellants brought this action to annul the sale by their father, C.B. Quattlebaum, of his undivided ⅜ interest in a tract of land located in Winn Parish for the reason that he was insane at the time of the sale. Appellants appeal the trial court’s judgment rejecting their demands. We affirm.

Mr. Quattlebaum sold his interest in the land on January 3, 1941, to defendant’s father, W.C. Cookston. Appellants allege they are entitled to have the sale set aside because their father lacked the mental capacity to contract at the time he executed the sale. To support this claim, appellants introduced into evidence a certified copy of a commitment proceeding instituted in 1936 against their father at his residence in Angelina County, Texas, wherein he was found by a jury to be insane and in need of restraint. There was no direct evidence relating to Mr. Quattlebaum’s mental capacity at the time he signed the deed.

The theory of appellants’ case is that the Texas commitment proceeding is equivalent to a Louisiana interdiction. Because the commitment occurred before the sale, appellants claim the commitment should be conclusive evidence of their father’s incapacity to contract under La.C.C. 1788.

The trial judge found appellants’ claim had prescribed and further found the Texas proceeding was not entitled to full faith and credit because it did not contain a signed judgment of interdiction.

The appellants assign as error these determinations made by the trial judge.

We agree the trial judge erred in deciding the case had prescribed. La.C.C.P. 927 provides the court cannot supply the objections of prescription and res judicata which must be specially plead. Defendant never filed a plea of prescription and the court had no right to supply it for her.

We find it unnecessary to determine whether the absence of a signed judgment in the Texas commitment proceeding deprived it of full faith and credit, under Art. 4, Sec. 1 of the U.S. Constitution, because we conclude the Texas proceeding is not analogous to the Louisiana interdiction proceeding.

Even if there was a signed judgment in the Texas commitment proceeding, this would not establish the invalidity of the deed. Appellants have introduced into these proceedings no evidence of any Texas law to prove the effect of the Texas commitment proceedings. They have not established that under the laws of the State of Texas the commitment proceeding had the effect of a Louisiana interdiction proceeding as provided for in C.C. 1788, supra. The conflict of law rule provides that in absence of proof to the contrary the law of another state is assumed to be the same as that of the forum. Succession of Gibson, 186 La. 723, 173 So. 185 (1937); Franks v. Louisiana Health Services & Indemnity Company, 382 So.2d 1064 (La.App.2d Cir.1980).

We therefore assume that the Texas law would give the same effect to a Texas judgment of commitment as Louisiana law gives to a Louisiana commitment proceeding. Louisiana law distinguishes commitment to a mental institution from interdiction. While the statutes providing for commitment have been updated over the years, the basic distinction remains the same. The difference between an interdiction and a commitment is set forth in the following quote in Vance v. Ellerbe, 150 La. 388, 90 So. 735 (1922), at 740:

“We find, therefore, that the law provided then, and has continued to do so until the present day, two separate proceedings for dealing with persons of unsound mind — the one for the restraining and confining of insane persons for their own and the public’s protection, which is ex parte and in the name of the state; and the other dealing with the civil and property rights of such persons. One is informal, and need not be set aside when the patient recovers; while the other is highly formal, and requires all of the solemnities of contested judicial proceedings, including a formal judgment to restore civil rights after the mental derangement has ended.”

The defendant established in the lower court that the law of Texas, at least at the time of the proceeding here involved, provided for two separate proceedings analogous to Louisiana interdiction and the Louisiana commitment law. In the Texas decision of Clark v. State, 35 S.W.2d 488 (Tex.Civ.App.1931), the court described the two separate proceedings, to-wit:

“Our civil statutes provide for two lunacy proceedings; one in chapter 12 of title 69 (articles 4267-4284), the other in title 92 (articles 5547-5561). The style of title 69 is “Guardian and Ward”; the style of title 92 is “Lunacy-Judicial Proceedings in Cases of.” The primary purpose of the lunacy proceedings, authorized by chapter 12 of title 69, is for the appointment of a guardian for the person and estate of an alleged lunatic. Articles 4267 and 4272, R.S. 1925. Such case shall be docketed in the name of the county, as plaintiff, and in the name of the alleged lunatic, as defendant. The state of Texas is not a party to such a cause of action, and neither is the state, or society at large, primarily concerned in such a cause A different purpose is manifested by the insanity proceedings authorized under title 92. The case is docketed in the name of the state of Texas, as plaintiff, and in the name of the alleged lunatic, as defendant. Article 5550. The primary purpose of the proceedings under title 92 is to determine whether the alleged lunatic should be confined because of his danger to, and the safety of, society.” Clark v. State, supra, at 491.

A comparison of the language of the Clark opinion with that of Vance shows that the Texas proceedings under title 92 are analogous to Louisiana commitment. Those under title 69 more closely equal interdiction under the civil code. The proceedings against Mr. Quattlebaum were brought under title 92.

Though the defendant established the existence of the two Texas procedures, she, as well as the appellants, failed to establish the effect of the Texas commitment under Texas law, and for this reason we are relegated to the application of the Louisiana law as to the effect of the Texas commitment. In Louisiana a commitment produces none of the civil effects of interdiction under the civil code. Nash v. Bowden, 178 La. 602, 152 So. 305 (1934). In our present mental health law (La.R.S. 28:1 et seq), we find the jurisprudential rules on the effect of commitment reflected in Vance v. Ellerbe and Nash v. Bowden, stated in 28:171(a)(b). It is there provided that commitment for mental illness shall not affect the party’s right to enter into contracts and that involuntary commitment does not create a presumption that the person is incompetent.

The applicants seek to use the Texas commitment proceeding as conclusive evidence of their father’s incapacity to contract. These proceedings do not have this legal effect under Louisiana law, because under our law a commitment has none of the effects of interdiction under the civil code and cannot be given the effect of an interdiction judgment which provides conclusive evidence of incapacity to contract under La.C.C. 1788.

Appellants have offered no proof that their father was insane in 1941 when he signed the deed, however, even if they had established his insanity at that time they would not have established a cause of action for the following reasons:

If a party to a contract dies more than 30 days after the contract is executed, and no interdiction proceedings have been instituted against him, the contract may not be contested on the grounds of insanity unless the mental condition first became apparent within 10 days before his death. La.C.C. 403,1788(5). Banks v. Johns, 289 So.2d 194 (La.App. 1st Cir.1973). These rules do not apply to a contract which itself contains evidence of the insanity of the party to the act whose competence is the subject of the attack. C.C. 1788(5). There was no interdiction proceeding instituted against Mr. Quattlebaum and the deed was executed many years before his death. The evidence of his insanity manifested itself many years before his death. The deed contained no evidence of insanity. Under these circumstances the appellants had no cause of action to void the deed on the basis of insanity-

For these reasons we AFFIRM the judgment rejecting appellants’ demands at their costs.

      . C.B. Quattlebaum died in 1973. Appellants bring this action as his heirs.

      . The portions of C.C. 1788 relevant to appellants’ claim provide:
      “The contract, entered into by a person of insane mind, is void as to him for the want of that consent, which n$>ne but persons in possession of their menthl faculties can give. It is not the judgment of interdiction, therefore, that creates the incapacity; it is evidence only of its existence, but it is conclusive evidence, and from these principles result the following rules:
      1. That, after the interdiction, no other evidence than the interdiction itself is necessary to prove the incapacity of the person, and to invalidate any contract he may have made after the day the petition for interdiction was presented, and that no evidence to show that the act was made during a lucid interval, or to contradict the judgment of interdiction, can be admitted.”

      . The record of these proceedings introduced into evidence does not name the statute under which they were brought. We arrive at this conclusion from the title of the proceeding, Complaint in Lunacy No. 568, and from the fact that the interrogatories presented to the jury for their special verdict were taken from article 5552 of title 92. We further noted that the case was styled “The State of Texas v. C.B. Quatt-lebaum.” The factors here observed are among those described in the Texas case of Clark v. State, supra, as indicating a Texas commitment action rather than an action in Texas analogous to our interdiction proceedings.


text:
    Thomas V. AYERS and Robert G. Vernon, Plaintiffs-Appellants, v. David KENT d/b/a the Louisiana Hayride, and Hayride — USA! Inc., Defendants-Appellees.
    No. 15632-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.

      Walker, Feazel & Tooke by Barry G. Feazel, Shreveport, for plaintiffs-appellants.
    J. Ransdell Keene, Shreveport, for defendants-appellees.
    Before JASPER E. JONES, FRED W. JONES, Jr., and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

This appeal involves a matter of contract interpretation — to be specific, whether the parties intended to include in an agency contract a tape of certain Elvis Presley performances at “The Louisiana Hayride” at the beginning of his professional career.

After hearing testimony and considering evidence pertaining to this issue the trial judge answered the question in the negative and dismissed plaintiffs’ suit. Appealing the adverse judgment, plaintiffs in effect argue, in multiple assignments of error, that the trial court erred in this finding.

Our review of the record leads to the conclusion, for the reasons hereinafter detailed, that the trial judge was not clearly wrong in his fact-finding and that he correctly applied the law to those facts. Consequently, we affirm.

In the spring of 1980 David Kent [owner of “The Louisiana Hayride”] and Thomas Ayers [self-described “socio-musicologist”] held tentative discussions concerning the possible packaging into album form the recorded performances over the years by past Hayride artists and syndication of the Hayride radio program. As subsequently revealed, Kent possessed some 1758 hours of audio tapes containing the works of a variety of performers, including Elvis Presley as a neophyte.

Further exploring the possible endeavor, during the first part of June 1980 Ayers introduced Kent to Robert Vernon, veteran entertainment world promoter and producer. After additional conversations these three reached a verbal agreement which was reduced to writing by Kent in the following “Memorandum of Understanding” dated June 12, 1980:

“As sole owner of “The Louisiana Hayride” by name and in fact, including all tape recordings and other memorabilia now in the possession of Hayride — USA, Inc., I hereby authorize Thomas V. Ayers and Robert G. Vernon to act as agents, jointly and separately, for me with a view toward packaging and syndicating certain of the past performances of country music stars. Should they be able to obtain acceptable distribution, they are to receive 49% of the profits from this venture. I reserve the right of approval of the material to be used and the final conditions of a formal agreement to be written when a formal proposal is ready •for our consideration.
“The duration of this agreement shall not exceed 60 days from the above date.”

Following the death of Elvis Presley, and sometime prior to the June 12 agreement with Ayers and Vernon, Kent had excerpted from the Hayride recordings and placed on tape nine of the songs sung by Presley at the Hayride. The tape included an explanatory narration by Kent and an interview with Frank Page, who was involved in arranging Presley’s first public performances. Kent anticipated that the tape would be made into an album. Pursuant thereto, on March 31, 1980 he executed a written agreement with Bruce Hamilton, Jerry Osborne and a New York law firm, for a six month term, to represent him in negotiations with RCA for packaging the “Elvis tape” into an album and merchandising the product.

On June 25, 1980, Kent executed the following “option” in favor of Ayers and Vernon:

“For the sum of $25,000,1, David Kent, being the sole owner of the name, production and broadcast known as “The Louisiana Hayride”, do hereby grant to ROBERT VERNON and THOMAS AYERS an option for 60 days from the above date, to purchase all my right, title and interest in that certain tape recording tentatively titled ‘ELVIS .. . WHERE IT ALL BEGAN’, it being a narrative and excerpts of original performances on the Louisiana Hayride broadcasts of Elvis Presley (more fully identified by the script attached) for the sum of $185,000 plus a royalty of $1.00 for each record sold containing this material, said sums to be paid as follows:
DAVID KENT to receive $148,750 and 85$ for the sale of each record.
BRUCE HAMILTON to receive $5,000. JERRY OSBORNE to receive $5,000. ROBERT VERNON and THOMAS AYERS to receive $26,250 and 15$ for the sale of each record.
It is agreed that the sum of $185,000 is to be paid at the time of relinquishing this tape to the purchaser.”

Ayers and Vernon never exercised this option. However, through their efforts Kent was later introduced to Jerry Wilson, a Georgia attorney involved in business aspects of the music industry. After negotiations pertaining to works of Elvis Presley possessed by Kent, by contract dated August 4, 1980 Wilson and two associates bought the “Elvis tape” for $185,000 plus a future royalty of $1.00 on each album sold. The recited cash consideration was transmitted to Kent in three installments and, upon the receipt of each, he remitted 15% thereof to Ayers and Vernon as an agency fee.

On July 24, 1981 Ayers and Vernon filed suit against Kent, alleging that the “Elvis tape” was included in the June 12 memorandum agreement and, consequently, plaintiffs were entitled to 49% of the proceeds of the sale rather than 15%. Kent answered, asserting in substance that the parties never intended that the June 12 contract should cover the “Elvis tape” and that plaintiffs were due no more than the 15% they received under the terms of the June 25 “option”.

The thrust of the trial testimony of Ayers and Vernon was that the tape recordings in Kent’s possession, referred to in the June 12 agreement, included performances by Elvis Presley. Therefore, it was the intention of the parties to cover in their contract the “Elvis tape”. Attendant to this was the obligation to pay the agents 49% of the sale proceeds as compensation for their efforts to secure a buyer.

Kent categorically denied any intent by the parties to include the “Elvis tape” in the June 12 contract as evidenced by the following facts: he had previously contracted with other parties for packaging the “Elvis tape”; the June 12 memorandum referred to only “certain of the past performances of country music stars” and reserved to Kent the “right of approval of the material to be used”; the June 25 agreement with plaintiffs dealt specifically with the “Elvis tape”.

In his testimony Kent explained that the term “packaging” as employed in the June 12 agreement meant the selection of taped performances, compilation of them into album form and distribution of the albums. “Syndication” referred to securing a sponsor and arranging for the airing of the Hayride program on a number of radio stations. As Kent pointed out, plaintiffs neither “packaged” nor “syndicated” the “Elvis tape”.

In his oral opinion the trial judge accepted as most credible Kent’s explanation of the intent of the parties with reference to the June 12 contract, finding persuasive the logic of the defendant’s testimony as outlined above. As a result, the trial court ruled that plaintiffs were entitled only to 15% of the “Elvis tape” proceeds [which they had already received] and to 15% of each $1.00 Kent would receive as a royalty from future album sales, rather than the 49% claimed by plaintiffs.

When the terms of a written contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, parol evidence may be considered to clarify the ambiguity and to show the intention of the parties. Dixie Campers, Inc. v. Vesely, 398 So.2d 1087 (La.1981).

Apparently conceding that the June 12 memorandum agreement was not clear on the disputed question of whether the “Elvis tape” was included therein, the parties in this case presented without objection parol evidence of surrounding circumstances to support their respective contentions. As did the trial judge, we find most persuasive the factors described above which militate in favor of Kent’s interpretation of the June 12 contract. We also note as significant Wilson’s testimony that, upon receiving in his presence the final installment of their Í5% “up-front payment”, Ayers and Vernon appeared to be “ecstatic” and made no complaint that the fee failed to comply with any prior understanding they had with Kent.

On its face the June 12 contract did not cover all of the Hayride recordings in Kent’s possession since it referred to only certain of the past performances of country music stars. Further, Kent expressly reserved the right of approval of the material to be packaged.

In the final analysis, the trial judge’s interpretation of the disputed contractual terms was based upon his assessment of witness credibility — to which we traditionally and as a matter of sound policy accord great weight. Unable to conclude that the trial judge was clearly wrong in his findings, we affirm the district court judgment, at appellants’ cost.


text:
    Deannie SANDERS, Plaintiff-Appellee, v. CADDO PARISH SCHOOL BOARD, Defendant-Appellant.
    No. 15644-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Beard & Sutherland by Larry Feldman, Jr., Shreveport, for defendant-appellant.
    C. William Gerhardt, Shreveport, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this workers compensation action, the School Board appeals a judgment awarding one of its cafeteria workers total and permanent disability under the odd-lot doctrine.

The Board contends the trial court erred in finding a causal connection between the employee’s lifting incident and the eventually excised lumbar disc, in finding total and permanent disability, and in assessing generally court costs to the Board. The issues relating to the employee’s accident and her disability are essentially factual. Finding the resolution of these issues to be clearly supported by the record, we affirm the judgment with some modification as to costs which are not assessed in dollar amounts as is required by LRS 13:5112.

Plaintiff had worked for the Board for about 16 years prior to the lifting incident which occurred on October 10, 1980. Plaintiff was primarily a meat cook but also assisted in serving food and mopping and cleaning the cafeteria and kitchen. She asked another employee (Ms. Young) to help her lift a container of meat from a cafeteria freezer. Young’s hand slipped and plaintiff bent forward to catch the container and prevent the meat from spilling on the floor. Plaintiff felt a “pull” in her back, but continued working that day. Ms. Young, the Board’s witness, testified that she remembered that the container of meat slipped when she and plaintiff were lifting it, that this had occurred on a Friday, and that plaintiff telephoned her on Sunday night and informed her that she had hurt her back when handling the meat on Friday and that she was not going to be at work on Monday.

On October 13, 1980, plaintiff first saw Dr. Fleming and filed an accident report with the Board. Dr. Fleming found muscle spasm in the lower back and recommended bed rest and no activity. He also saw her on six occasions through December 15,1980, at which time he referred her to Dr. Mead, an orthopedist. Dr. Fleming apparently told plaintiff on November 17 that she could return to work. He also testified that plaintiff told him on November 5,1980, that she had gone back to work and had again hurt her back. Plaintiff denied telling this to Dr. Fleming. Dr. Mead saw plaintiff several times between December 15, 1980, and September 1982. He hospitalized plaintiff in February 1981, performed a myelo-gram, and surgically excised the protruding and degenerated L5 lumbar disc on March 5, 1981. Dr. Mead agreed that the lifting incident or accident at least “aggravated” that disc. In August 1981, Dr. Mead thought plaintiff had a 10 percent permanent disability and could not work lifting, stooping, bending, or carrying any weight over 10 pounds. His opinion in September 1982 was that she should not attempt a job requiring repetitive bending, stooping, or lifting anything over 15-20 pounds.

The Board’s Director of Food Services and plaintiff explained plaintiff’s duties. Meat comes in various containers which weigh from 10 to 50 pounds. Turkeys, for instance, weigh about 14 pounds each and are packed three to a box. Plaintiff sometimes would be lifting these items, even with the assistance of others. Plaintiff also would be required to stoop and bend while attending to the cooking, preparation, and service of food, and to the performing of such physical functions while mopping floors, cleaning tables, transporting garbage, and cleaning ovens.

Plaintiff is a 44-year-old, markedly obese woman, with an 8th grade education. She had some experience as a farm worker before she began working for the Board. In the opinion of an expert vocational counsel- or, who tested and interviewed her, plaintiff was below average in academic skills and communication and social skills, and could not be placed or trained for any type of employment because of her physical and intellectual shortcomings.

Under these circumstances, the trial court did not err in finding that plaintiff could not return to her employment and that she should be classified as an odd-lot worker. The trial court could have believed plaintiff when she said she did not return to work after October 10,1980, contrary to Dr. Fleming’s statement that she told him she had returned to work. All in all, we find no error in the trial court’s conclusion that plaintiff was totally and permanently disabled. When a reasonably stable market for employment does not exist for a worker because of her physical and mental impairment, incapacity, training, age, availability of employment, or any other relevant factor, she may be considered totally and permanently disabled under the odd-lot doctrine. Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980).

LRS 13:5112 allows costs to be assessed against a political subdivision or agency as the court deems proper. That section requires, however, that the award “shall express such costs in a dollar amount” in the judgment. The judgment appealed expresses in dollar amounts the costs of expert witnesses, hospital reports, and depositions, but does not express other costs in dollar amounts. Costs which are not expressed in dollar amounts may be so expressed and assessed in further adversary proceedings in this action.

We shall amend the judgment to delete the assessment of costs generally and will allow these unexpressed costs to be expressed and assessed by the trial court in further adversary proceedings. As amended, we affirm the judgment in all other respects, including the costs which are expressed in dollar amounts.