author: PRICE, Judge.

text:
    Norman CARTER, Plaintiff-Appellant, v. Dianne FLANAGAN, et al, Defendants-Appellees.
    No. 16327-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      Northwest Louisiana Legal Services, Inc. by Donald L. Bullock, Shreveport, for plaintiff-appellant.

      Wayne H. Cobb, Jr., Curator Ad Hoc, Shreveport, for Dianne Flanagan, defendant-appellee.
    Hal V. Lyons, Shreveport, for Rogers Loan Co., Inc., defendant-appellee.
    Thomas & Burchett, by Dewey E. Bur-chett, Bossier City, for J. Waddy Tucker & Nat. Union Fire Ins., defendants-appellees.
    Before PRICE, MARVIN and NORRIS, JJ.
   PRICE, Judge.

Plaintiff, Norman Carter, brought this action seeking cancellation of a fraudulent conveyance and mortgage affecting his residence in Caddo Parish. Defendants are Dianne Flanagan, the perpetrator of the fraud, and Rogers Loan Co., who granted a loan to Flanagan based on the security of a mortgage granted by Flanagan on the subject property.

Rogers Loan filed a third party demand against J. Waddy Tucker, a notary before whom the fraudulent conveyance was executed, alleging negligence on the part of the notary. Tucker also brought a third party demand against the plaintiff Carter based on unjust enrichment. The trial court awarded judgment in favor of plaintiff on the original demand, and in favor of both third party plaintiffs on the incidental demands. Plaintiff appeals the judgment ordering him to pay Tucker $3,881.87, representing the balance owed by Carter on a mortgage note to Republic Bank. This note was paid off out of the proceeds of the loan from Rogers Loan in the course of the fraudulent transaction perpetrated by Flanagan.

Defendant Flanagan and an accomplice who purported to be Norman Carter appeared before Tucker and executed a cash sale deed by which Carter’s house was conveyed to Flanagan. Flanagan then took a certified copy of the deed and induced Rogers Loan Co. to make her a loan with a mortgage on the house as collateral. As a mortgage certificate showed the property was already burdened by a mortgage given by Carter to Republic Bank, Rogers required the sum of $3,881.87 from the loan proceeds be paid to Republic to pay off the balance owed on the Carter mortgage.

The forgery was discovered when the real Norman Carter continued to make payments on the note to Republic, which refunded the payments and informed him that his loan had been paid off by check from Rogers Loan Co. He began to inquire into the matter and it was discovered that the man who signed the cash sale deed conveying the property to Flanagan was an imposter. Plaintiff then filed this suit against Flanagan and Rogers to have both the cash sale deed and the mortgage can-celled. He also filed a criminal complaint against Flanagan who promptly left the area for parts unknown to avoid criminal prosecution. Rogers then filed a third party demand against J. Waddy Tucker, the notary on the cash sale deed, and his liability insurer for damages sustained in making the loan based on his negligence in failing to check the identification of the parties executing the sale. Tucker filed a third party demand against Carter for the benefit received by him in having his debt to Republic liquidated as a consequence of these illegal transactions.

After trial on the matter, judgment was rendered in favor of Carter, ordering cancellation of the deed and the mortgage and dismissing the third party claims without prejudice. Upon the partial granting of a motion for new trial, reargument was heard and an amended judgment rendered, granting the third party demand of Rogers against Tucker in the amount of the balance due on its loan to Flanagan, and Tucker’s third party demand against Carter.

Carter appeals only the granting of Tucker’s third party demand, contending he is not liable for repayment of the portion of the loan used to pay off his mortgage note under the principles of unjust enrichment or any other theory of law. None of the other parties have appealed or answered the appeal. Thus, the only issue before this court is whether Tucker is entitled to recover from Carter on the basis of unjust enrichment.

The essential basis for the remedy for enrichment lacking in legal cause is the principle of natural justice which requires that no one should be enriched at the expense of another. This principle is embodied in our law by Louisiana Civil Code Articles 21 and 1965. Certain limitations, designed to restrict the use of equity to cases where one party truly receives a windfall from another without legal cause, are placed on such actions by the jurisprudence of Louisiana courts.

The prerequisites which must be satisfied to successfully invoke the action for unjust enrichment were set forth by the Louisiana Supreme Court in Edmonston v. A-Second Mortgage Co., 289 So.2d 116 (La. 1974). There must be: (1) an enrichment, (2) an impoverishment, (3) a connection between the enrichment and the impoverishment, (4) an absence of justification or cause for the enrichment and the impoverishment, and (5) no other remedy at law available to the impoverishee.

In the instant case there was clearly an enrichment of Carter in the sense that an economic benefit has been added to his patrimony. The balance due on his note to Republic Bank has been satisfied without payment on his part. He no longer owes the money to the bank and his property is free and clear of the mortgage.

There was likewise an obvious impoverishment of Tucker in that he has been held to account to the loan company for all funds disbursed in the loan transaction, including the sum which went to Republic Bank for payment of Carter’s note. This circumstance also establishes the causal connection between the enrichment and the impoverishment. There has thus been an unjust enrichment in terms of an economic benefit added to Carter’s patrimony to the economic detriment of Tucker’s patrimony, through the intervention of Flanagan and Rogers Loan, without the corresponding transfer of an adequate compensation. See Tate, The Louisiana Action for Unjust Enrichment, 50 Tul.L.Rev. 883 (1976).

The two remaining requirements for recovery under unjust enrighment — lack of justification and absence of any other remedy at law — give rise to the critical questions on this appeal.

Not every unjust enrichment warrants usage of equity. Courts may resort to equity only in cases of unjust enrichment for which there is no justification in law or contract. In other words, an enrichment is justified if it is the result of, or finds its explanation in, the terms of a valid juridical act between the impoverishee and the enrichee or between a third party and the enrichee. Edmonston v. A-Second Mortgage, supra.

In the instant case there was no juridical act between the enrichee and either Tucker (the impoverishee) or Rogers (a third party). We do not perceive any other type of justification in law for this enrichment since Carter was not ultimately caused any damage as a result of the fraudulent execution. Carter has received a true windfall as a result of a fraudulent scheme and Tucker is out the sum of money which Flanagan used to pay the note. In view of the singular absence of connexity in law or contract between the enrichee and the im-poverishee or the third party, we find that there is a lack of cause for this enrichment.

We further conclude the fifth requirement for a successful action for unjust enrichment has also been met. The action is available only where there is no other remedy at law. It is subsidiary in nature and will not be allowed to defeat the purpose of a rule of law directed to the matter at issue. Edmonston, supra. A plaintiff can recover in unjust enrichment only if there is no other practical remedy available by which the impoverishment might be or might reasonably have been avoided. Tate, The Louisiana Action for Unjustified Enrichment, supra.

The primary responsibility for the impoverishment caused here lies, of course, with Flanagan as the perpetrator of the fraud. However, as noted by the trial court, it is conceded by all parties that her whereabouts are unknown even though she is being actively sought by law enforcement officials. This is not a case in which the impoverished party has chosen not to pursue a viable means of recovery from the person ultimately responsible for the losses caused on all sides, as in Royal Oldsmobile Co., Inc. v. Yarbrough, 425 So.2d 823 (La.App. 5th Cir.1982), cited by Carter. On the contrary, that avenue has effectively been denied the third party plaintiff by Flanagan’s disappearance. Thus, there is no practical remedy available to Tucker against Flanagan.

This case involves the payment of the debt of another by Rogers and the ensuing obligation of Tucker to repay it. However, the principles of quasi contract enunciated in the Louisiana Civil Code are not applicable here. The money cannot be recovered from the bank as payment of a thing not due under Article 2301 since the debt was owed and Republic presumably accepted payment in good faith. Nor is this case governed by the law on negotiorum gestio, Civil Code Articles 2295-3000, because there was no intent to benefit Carter on the part of either Tucker or Rogers.

Carter points to two rules of law which he contends would be defeated by allowing Tucker to recover under unjust enrichment. He argues first that Tucker’s negligence precludes recovery because equity may not be used to aid one “who comes into court with unclean hands.” Rhodes v. Miller, 189 La. 288, 179 So. 430 (La.1938). We do not perceive that Tucker’s conduct, under the particular circumstances of this case, is the type of unlawful or inequitable conduct which the “clean hands” rule was designed to deter.

Flanagan and the Carter imposter had consulted with Tucker’s law partner on the matter of executing the cash sale deed and provided all the necessary information. On the day the act was to be passed, Tucker, who knew nothing of the facts underlying the transaction, was the only person available in the office to conclude the formalities and did so under the obvious assumption that all other particulars had been handled by the other attorney or his secretary. This does not excuse his negligence, by any means, but he was as much a victim of the fraud as anyone else.

The Rhodes court stated:
The courts recognize the rule that every suitor who seeks relief at their hands must himself be free from any unlawful or inequitable conduct with respect to the matter or transaction in question. This rule is known in equity as the rule of “clean hands.”
The court must apply the rule not because it is a matter of defense, but because it is against public policy to hear the case if the unconscionable character of the matter or transaction be established. The court acts for its own protection rather than for the protection of the defendant. Id., 179 So. at p. 432.

Considering the factual situation of this case, we do not believe allowing recovery despite Tucker’s fault would subvert the policy behind this rule designed to protect the court system from manipulation by those who invoke the law against others but deny its applicability to themselves. Due to the finality of the judgment against him from which no appeal was taken, Tucker’s liability is settled. In his third party demand, he simply seeks reimbursement of a part of the damages he must pay from one who received a benefit to which he was not entitled by having his debt paid for him.

Carter also urges recovery would defeat the rule of law that a person paying by mistake cannot recover the payment where the mistake was caused entirely by his own gross carelessness, citing Metropolitan Life Ins. Co. v. Mundy, 167 So. 894 (La.App. 1st Cir.1936). We disagree.

That case involved the construction of Louisiana Civil Code Article 2310 which provides that one who, through mistake, has paid the debt of another to whom he believed himself indebted has a claim to restitution from the creditor. The court, in denying recovery to the plaintiff, characterized the mistake referred to by the code article as the honest or unavoidable mistake that a usually prudent person might make under certain circumstances. It was the gross carelessness of the plaintiff in Metropolitan in paying out the proceeds of a life insurance policy when it was fully aware that there were conflicting claims to the funds which led the court to deny recovery.

The instant case is clearly distinguishable from the circumstances in Metropolitan. The mistaken payment here was made due to the fraud of Flanagan, rather than simply a mistaken belief of indebtedness to Carter on the part of the loan company which initially paid the debt. It is true the mistake giving rise to the situation is attributable to Tucker. However, the party who paid the debt is not seeking return of the money from the creditor. We do not believe Article 2310 or its limitations were intended to apply to a factual situation such as this, where one party has paid due to the mistake of another, who incurs liability for the mistaken payment and seeks reimbursement from the true debtor.

Even if this principle found application here, the negligence is not in the nature of such gross carelessness as described in Metropolitan that it would bar recovery on an equitable basis. It is more in the nature of an honest mistake. Thus, we find that allowing recovery for unjust enrichment would not do damage to that particular rule of law.

Having found all the prerequisites for recovery on the basis of unjust enrichment to be present, we discern no error in the trial court judgment in favor of Tucker in the amount by which Carter was enriched in the payment of his debt by a third party. In fact, the judgment was eminently fair in providing that Carter make a monthly payment in acquittance of the debt, as he would have to the bank, thereby ensuring no more hardship to him than if the note had not been paid at all.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    PEACOCK’S, INC., et al, Plaintiffs-Appellants, v. SOUTH CENTRAL BELL, et al, Defendants-Appellees.
    No. 16329-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for G & G, Inc. d/b/a Peacock’s, Inc.
    Blanchard, Walker, O’Quinn & Roberts by Roy S. Payne, Shreveport, for St. Paul Fire & Marine Ins. Co.
    Tucker, Jeter & Jackson by T. Haller Jackson, III, Shreveport, for South Cent. Bell.
    Bodenheimer, Jones, Klotz & Simmons by G.M. Bodenheimer, Shreveport, for American Intern. Sec. d/b/a Shreveport Alarm Co., Inc.

      Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for Potter Elec. Signal Co.
    Nelson & Achee by Roland Achee, Shreveport, for J.J. Gumberg.
    Before PRICE, JASPER E. JONES and NORRIS, JJ.
   PRICE, Judge.

This case arises from the burglary of a jewelry store owned by plaintiff G & F, Inc. d/b/a Peacock’s Jewelers (Peacock’s) located in Shreve City Shopping Center in Shreveport, Louisiana. Peacock’s is joined as plaintiff by its insurer, St. Paul Fire & Marine Insurance Co., which had paid $401,405.05 of the almost $2,000,000 loss suffered in the burglary at the time suit was filed. Defendants are South Central Bell Telephone Company and other companies associated with the store’s alarm system and security of the building in which Peacock’s was located. This appeal is solely concerned with the granting of a partial summary judgment in favor of Bell.

The burglary occurred during the late morning hours of Sunday, December 12, 1982. The door to the equipment room containing the telephone connections for the shopping center had been left unlocked for some time before the burglary because the lock was broken. The special telephone circuit connecting the jewelry store, along with other retail establishments in the shopping center, with Shreveport Alarm Company was located in this room. These circuits had been tagged by Bell employees to identify them according to the retail establishment and the alarm company.

The burglars entered the equipment room, identified the circuit for Peacock’s alarm system, disabled the system, and removed merchandise from the store undetected. Plaintiffs contend Bell should be held liable for negligence in failing to notify Peacock’s of the broken lock and for clearly identifying the circuit connecting the store’s alarm system. Bell filed a motion for summary judgment, contending first that there was no negligence on the part of its employees and, second, that even if negligence could be established, its liability is limited to the proportionate charge for service for the period during which the circuit was disabled. This contention is predicated upon the provisions of the Telephone Company Regulations approved and adopted by the Louisiana Public Service Commission, specifically the Private Line Services Tariff C2.1.3.

The trial court granted a partial summary judgment in favor of Bell, holding that the tariff is applicable to the instant situation and that the phone company’s liability for ordinary negligence, if any, is limited as per the tariff. Liability for willful misconduct is not limited by the tariff and plaintiffs amended their petition to allege such misconduct, but the trial court found the affidavits submitted by Bell established that there was no willful misconduct by the company’s employees in connection with this incident. He therefore dismissed all claims against Bell, with the exception of a claim for the limited damages for any ordinary negligence. Plaintiff appeals this judgment, contending the phone company tariff is inapplicable and, alternatively, that summary judgment was improper because there is a genuine issue of fact as to the willfulness of defendant’s misconduct.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law. La.C.C.P. Art. 966. The motion for summary judgment must be granted when reasonable minds must inevitably conclude that the mover is entitled to judgment based on the facts before the court. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La. 1980).

The tariff relied upon by Bell defines private line service as the furnishing of company facilities for communication between specified locations 24 hours daily seven days per week. It further provides in Section C2.1.3:

(A) The Telephone Company’s liability, if any, for its willful misconduct is not limited by this tariff. With respect to any other claim or suit, by a customer or by any others, for damages associated with the installation, provision, termination, maintenance, repair, or restoration of service, and subject to the provisions of
(B) through (G) following, the Telephone Company’s liability, if any, shall not exceed an amount equal to the proportionate charge for the service for the period during which the service was affected. This liability shall be in addition to any amounts that may otherwise be due the customer under this tariff as an allowance for interruptions.

Thus, the issues for our disposition are whether this provision of the tariff should be applied to this particular occurrence and, if so, whether willful misconduct on the part of Bell employees negates the limitation of liability.

Plaintiffs insist that the tariff was not intended to apply to the factual circumstances present here. We must disagree. The definition of private line service — furnishing of company facilities for communication between specified locations 24 hours daily seven days per week — clearly encompasses the type of service involved in providing the constant connection desired in maintaining an alarm system. Plaintiffs’ claim against Bell is based on their contention that the conduct of its employees enabled the burglars to disengage the alarm system and escape immediate detection.

The tariff limits Bell’s liability for damages associated with, among other things, maintenance or termination of service. The affidavits presented by Bell establish that tagging of the lines was for the purpose of keeping telephone workmen from attaching to or interrupting the special circuits provided for alarm systems while repairing other lines. We are of the opinion that identification of the lines is directly linked to maintaining service and thus falls within the purview of the tariff. Furthermore, since plaintiffs contend Bell’s failure to inform Peacock’s of the unlocked door affected the integrity of the alarm system, we find that this claim is also sufficiently directly connected with maintenance of private line service to fit within the meaning of the wording of the tariff. We therefore conclude that plaintiffs’ claim for damages is predicated upon acts or omissions sufficiently associated with the maintenance of private line service to fall within the intended application of the tariff.

Having determined that the tariff finds application to plaintiffs’ claim, the next inquiry is whether the limitation of liability is valid. Plaintiffs contend such a limitation is contrary to public policy. Article IV, Section 21(B) of the Louisiana Constitution of 1974 empowers the state Public Service Commission to regulate all common carriers and public utilities and requires that the commission adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties. The commission shall exercise all necessary power and authority over any local public utility for the purpose of fixing and regulating the rates charged or to be charged by and services furnished by such public utility. La.R.S. 45:1163. The power, authority, and duties of the commission shall affect and include all matters and things connected with, concerning and growing out of the service to be given or rendered by such public utility. La.R.S. 45:1164. Thus, with respect to intrastate communications, the Louisiana Public Service Commission is endowed with authority to approve and adopt any necessary and reasonable regulatory tariffs and orders affecting or connected with service or operation of telephone utilities. See South Central Bell Telephone Co. v. Louisiana Public Service Commission, 352 So.2d 999 (La. 1977).

It has been held that regulatory tariffs, required by law to be filed with an administrative commission, do not merely constitute a contract but have the force and effect of laws. Carter v. American Telephone & Telegraph Co., 365 F.2d 486, at p. 496 (5th Cir.1966), U.S. Cert. denied 385 U.S. 1008, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). The tariffs referred to include a statement of services available, equipment available, and the rules and regulations which govern the relations between a telephone company and the user of its services, in addition to the rates charged for services rendered. See 74 Am.Jur.2d Telecommunications, Section 26.

The validity of this particular tariff appears to be res nova. However, similar limitations of liability by the phone company in situations primarily involving directory listings have been upheld by Louisiana courts. In those cases, it was found that a contractual clause limiting the telephone utility’s liability for errors or omissions was reasonable and valid, and did not contravene good morals or public policy. See Roll-Up Shutters, Inc. v. South Central Bell Tel. Co., 394 So.2d 796 (La.App. 4th Cir.1981), writ denied 399 So.2d 599 (La.1981), and cases cited therein. Similar clauses limiting liability in contracts between burglar alarm protection companies and retail establishments have been found enforceable and not violative of public policy. See Lazybug Shops, Inc. v. American Dist. Telegraph Co., 374 So.2d 183 (La.App. 4th Cir.1979), writ denied 376 So.2d 1271 (La.1979); Alan Abis, Inc. v. Burns Electronic Security Services, Inc., 283 So.2d 822 (La.App. 2d Cir.1973).

A tariff filed by Western Union with the Federal Communications Commission limiting the telegraph company’s liability for errors and omissions in the transmission of messages was given effect in Crowley Industrial Bag Co. v. Western Union Co., 204 So.2d 725 (La.App. 3d Cir.1967), writ refused 251 La. 859, 206 So.2d 711 (1968). This case was noted in Willhite v. South Central Bell Tel. Co., 693 F.2d 340 (5th Cir.1982). While the dispute in Willhite was resolved on the ground that the phone company was not negligent, the court in dicta cited various cases in which tariffs limiting the phone company’s liability for negligence have been upheld in its rendering of services, as well as Crowley Industrial Bag Co., supra, and other cases enforcing the Western Union tariff, implying a general validity of such exculpatory tariffs.

The general public as a whole would bear the burden if unlimited liability is placed upon a public utility for every service it provides to the individual. The potential liability would be enormous if the telephone company were required to virtually burglar-proof the lines it provides to connect alarm systems. We therefore cannot say that a limitation of that liability is unreasonable, nor that it violates public policy. In light of the jurisprudence upholding other similar tariffs and contractual clauses, and the conclusion that the tariff is a reasonable measure for the protection of the general public, the limitation of liability will be enforced here.

The final question is whether the trial court erred in holding the pleadings and affidavits showed no willful misconduct by Bell employees, thus leaving no genuine issue of material fact. Plaintiffs contend the tariff does not insulate Bell from full liability for their damages because the conduct of its employees was willful.

The meaning of the terms “willful”, “wanton”, and “reckless” was considered in Cates v. Beauregard Electric Cooperative, Inc., 316 So.2d 907 (La.App. 3d Cir. 1975), wherein the court stated:

... The usual meaning assigned to do (sic) the terms is that the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow, (citations omitted)

Willful has generally been given the same meaning in the law as intentional — i.e., that the result which occurred was intended by the actor. Johnson v. Chicago Mill & Lumber Co., 385 So.2d 878 (La.App. 2d Cir.1980).

Black’s Law Dictionary, Revised Fourth Edition, defines “willful” as follows:

Proceeding from a conscious motion of the will; voluntary.
Intractable; having a headstrong disposition to act by the rule of contradiction.
Intending the result which actually comes to pass; designed; intentional; not accidental or involuntary.
Conscious; knowing; done with stubborn purpose, but not with malice.
Premeditated; malicious; done with evil intent, or with a bad motive or purpose, or with indifference to the natural consequences; unlawful; without legal justification, (citations omitted)

Willfulness cannot exist without purpose or design. State v. Vinzant, 200 La. 301, 7 So.2d 917 (La.1942).

Bell has admitted, through the affidavit of its Supervisor of Business Services in Shreveport, that it did tag the lines in the manner alleged by plaintiff, for the benefit of its own workmen so the special circuits would not be disconnected unless necessary. The affiant also attested that he was aware of the unlocked door and did not notify Peacock’s, but did report it to someone with the firm responsible for management of the shopping center and Palais Royal, one of the neighboring stores. Peacock’s counter affidavit in opposition to the motion for summary judgment simply reiterated that it was unaware of the broken lock and the tagging of the lines, and had the phone company informed its employees, steps would have been taken to repair the lock and to request removal of the tags.

We discern no factual dispute with regard to the character of defendant’s actions. There is no apparent willingness on the part of defendant that a burglary should befall the jewelry store. The actions with respect to the door and the line tags were felt to be reasonable steps to take by defendant’s employees. Their judgment may not have been entirely reasonable, but the acts complained of are not of such a purposeful character as to evidence a conscious design that this harm should befall plaintiff.

We therefore find the trial court was correct in finding no genuine issue of material fact and that Bell was entitled to a partial summary judgment with its liability for ordinary negligence limited to the extent provided in the tariff. The question of negligence vel non was properly deferred to a trial on the merits.

For the foregoing reasons, the judgment appealed is affirmed. All costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.

      . This finding is not to be construed as determination that Bell had a duty to inform Peacock’s. It is based purely on the supposition that Bell was negligent with regard to the doorlock for the sole purpose of determining the applicability of the tariff in the context of the propriety of a summary judgment.


author: MARVIN, Judge.

text:
    ANADARKO PRODUCTION COMPANY, Plaintiff-Appellee, v. CADDO PARISH SCHOOL BOARD, et al., Defendants-Appellants.
    No. 16332-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.
    Writ Denied Nov. 16, 1984.

      Blanchard, Walker, O’Quin & Roberts by John T. Cox, Jr. and J. Jay Caraway, Shreveport, for defendant-appellant, Margaret Smith Bryan.
    Beard & Sutherland by Fred H. Sutherland, Shreveport, for Caddo Parish School Bd:, defendant-appellee.
    Hargrove, Guyton, Ramey & Barlow by Joseph L. Hargrove, Jr., Shreveport, for Anadarko Production Co., plaintiff-appel-lee.
    Before PRICE, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

Former LRS 9:5806 B, now incorporated into LRS 31:149, was enacted by Act 278 of 1958 to make imprescriptible mineral servi-tudes that were created when landowners reserved mineral rights in a sale of land to school boards and other named agencies of the state.

In this appeal arising out of a concursus proceeding, we reverse the trial court’s judgment to the contrary and hold that the 1958 statute is to be applied retroactively to a mineral servitude created in 1954 when a landowner, Ms. Margaret Smith Bryan, sold 80 acres to the Caddo Parish School Board for a cash consideration and reserved all of the oil, gas, and mineral rights.

After acquiring a mineral lease from the school board in 1978 and from Ms. Bryan in 1981, the plaintiff in the concursus proceeding, Anadarko, drilled and began producing minerals in 1982 from a unit which included the 80 acres. This concursus action was then provoked between the two lessors. Ms. Bryan appeals the trial court judgment.

TRIAL COURT’S RATIONALE

The trial court reasoned that when a mineral servitude is created by a reservation in the sale of land, the servitude owner-vendor bargains for and “expects” to have 10 years within which to exercise his rights and the landowner-vendee “expects” the land to be freed of the servitude if the servitude rights are not timely exercised. This is a correct paraphrase of the law relating to the 10 years non-use liberative prescription. See LRS 31:16, 27-61; Frost-Johnson Lumber Co. v. Nabors Oil & Gas Co., 149 La. 100, 88 So. 723 (1921); CC Arts. 789, 3546.

The trial court also correctly recognized the general rule that laws of libera-tive prescription are retrospectively applied. More fully stated, this principle derives from cases which hold that such laws are mere expressions of the legislature’s view of sound public policy, and that the “shelter” provided by such laws is subject to legislative change and does not create a “fundamental” right in an individual. Chase Securities Corporation v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945); United States v. Nebo Oil Co., 190 F.2d 1003, 1009-1010, (5th Cir.1951). Statutes which either shorten or extend the period of prescription have been held subject to the legislative power as long as the period of time provided by the statute has not elapsed to make the prescriptive “bar” complete. Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885). The right to the effect of the prescription is not considered as “vested” until the period is completed, and before the period is completed, that right may be affected or destroyed by legislative enactment suspending or interrupting the period. Calvit v. Mulhollan, 12 Rob. 266 (La.1845).

The trial court did not retrospectively apply the 1958 statute because it concluded that the Louisiana Legislature could not have been “expected” to modify the 10-year non-use period without clearly stating that the change in the law was to be applicable to periods of time then running. We must respectfully disagree. An expectancy founded upon the premise that an applicable law of liberative prescription will not be legislatively modified is not regarded as a “vested” or fundamental right that is entitled to constitutional protection. Nebo Oil Co., 190 F.2d at p. 1009; Shreveport Long Leaf Lumber Co. v. Wilson, 195 La. 814, 197 So. 566 (1940); DeArmas v. DeArmas, 3 La.Ann. 526 (1848); State v. Alden Mills, 202 La. 416, 12 So.2d 204 (1943).

Nebo Oil Co. involved the retroactive application of a similar imprescriptibility statute, Act 315 of 1940, which became LRS 9:5806 A. That law made imprescrip-tible servitudes created by mineral reservations in sales of land to the United States. See LRS 31:149-152. Other cases have also discussed the retroactivity of Act 315 of 1940, the language of which was followed, although not verbatim, in Act 278 of 1958. The arguments in those cases included the argument made here by the school board that retroactive application of the act would impair the obligations of the contract in violation of U.S. Const. Art. 1, Sec. 10, and would result in divestiture of vested rights.

The first case was Whitney Nat. Bank of New Orleans v. Little Creek Oil Co., 212 La. 949, 33 So.2d 693 (1947). That case did not pass on the constitutionality of Act 315 of 1940 because the United States was not a party to the action. In dicta, the court stated that it believed the act to be applicable even though it did not expressly provide for retroactivity, because of the general rule that laws of liberative prescription are applied retroactively.

The constitutional issues were raised in Nebo Oil Co., supra, and in Letter Minerals, Inc. v. California Co., 241 La. 915,132 So.2d 845 (1961). Nebo Oil Co., arose out of the same factual situation as Whitney, supra. The United States purchased a tract of land from Bodcaw Lumber Company in 1936 to become a part of the Kisatchie National Forest. The sale of the land was made “subject to” a prior sale of the mineral rights by Bodcaw to Good Pine Oil Company in 1932. The court found that no vested rights had been affected by retroactive application of Act 315 of 1940 because a landowner’s expectation that a mineral servitude will lapse within the prescribed period is nothing more than a mere expectancy or hope that the applicable laws of prescription will continue without change. This expectation was held not to be a vested right protected by the constitution. The court further found that application of the act did not impair the obligations of the contract in violation of U.S. Const. Art. 1, Section 10. Although laws of evidence, such as statutes of limitations, may affect the validity, construction, duration, or discharge of contracts, these laws are not regarded as necessarily affecting the obligation of contract. United States v. Nebo Oil Co., supra.

In Leiter, supra, the Louisiana Supreme Court construed Act 315 of 1940 at the request of the United States Supreme Court. The United States there argued that the mineral reservation in the deed created a servitude for a stated and certain time and that if the act were applied under those circumstances, it would unconstitutionally impair the obligation of the contract. The Louisiana Supreme Court declined to construe the reservation clause, but stated the possible application of the act under the conflicting interpretations of the clause. The court said that if the reservation was indeed one for a specific or certain time stated in the contract, then Act 315 of 1940 would not be applicable, and further found that if the Act were applicable, it would be unenforceable as an unconstitutional impairment of the obligation of contract. The court said that if the reservation clause, on the other hand, did not establish a servitude for a certain time, but rather established one of uncertain or indefinite duration, then the period of prescription would be fixed by law. Under the latter circumstances the court said that Act 315 of 1940 would be retroactively applicable and, as applied, would be constitutional.

In this case, the mineral reservation established a servitude of indefinite duration (the latter circumstance of Leiter Minerals, supra) and is governed by the general laws of prescription. The servitude which was established in 1954 would have prescribed by 10 years non-use in 1964 if the legislature had not enacted Act 278 of 1958. The Caddo Parish School Board did not provide a certain time period for the expiration of the servitude and had only an expectancy or hope that the law would not change. We find that retroactive application of Act 278 of 1958 under these circumstances does not affect vested rights and does not impair the obligations of the contract. United States v. Nebo, supra; Leiter Minerals, supra.

We do not find, as the school board contends, that United States v. Little Lake Misere Land Company, Inc., 412 U.S. 580, 93 S.Ct. 2389, 37 L.Ed.2d 187 (1973), had the effect of overriding the decisions in Whitney, Nebo, and Leiter. Although these cases were discussed in Little Lake Misere, the basis for the Supreme Court’s opinion was that federal law should be applied over Louisiana law because the Lake Misere land was acquired by the United States under the express authority of the Migratory Bird Conservation Act, a special law of Congress. No law of Congress is here involved.

We find that the servitude created in the 1954 deed was not one for a definite term set by the contract, but was instead a servitude of indefinite term that was subject to the law of liberative prescription of the State of Louisiana. Act 278 of 1958 applied to the 1954 servitude because the 10-year period had not accrued in 1958. Accordingly, we reverse the judgment of the trial court and render judgment in favor of Ms. Margaret Smith Bryan

(1) Recognizing as yet valid the mineral servitude created on July 30, 1954, in the sale of land described as the East Half of the Southeast Quarter of Section 9, Township 16 North, Range 15 West, Caddo Parish, Louisiana, containing 80 acres, more or less, by Ms. Margaret Smith Bryan to the Caddo Parish School Board;

(2) Declaring Margaret Smith Bryan to be entitled to all sums attributable to the 25 percent royalty interest under the lease executed to Anadarko Production Company by Margaret Smith Bryan on June 29,1981; and

(3) Assessing all costs of these proceedings to the Caddo Parish School Board.

REVERSED AND RENDERED.

      . See LSA-R.S. 31:149 and Comment following. Act 278 of 1958 provided in pertinent part that:
      When land is acquired by conventional deed or contract ... by a ... school board ... from any person, firm, or corporation, and by the act of acquisition ... oil, gas or other mineral or royalties are reserved, the rights so reserved shall be imprescriptible and shall remain vested in the person ... from whom the land was acquired ...”

      . The deed from Mrs. Bryan, dated July 30, 1954, conveyed the East half of the Southeast quarter of Section 9, Township 16 North, Range 15 West, in Caddo Parish, and contained this reservation:
      The vendor herein reserves all right, title and interest in and to all minerals in, on or under the above described property less and except the right of egress and ingress for drilling any oil and/or gas operations, said vendor, however, reserving directional drilling and unitizing privileges.


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

text:
    SHREVEPORT GREAT EMPIRE BROADCASTING, INC., Plaintiff-Appellee, v. SUMMERGROVE FLOOR COVERING et al., Defendants-Appellants.
    No. 16349-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.

    Love, Rigby, Dehan, Love & McDaniel by J. Philip Goode, Jr., Shreveport, for defendants-appellants.
    Cook, Yancey, King & Galloway by Edwin L. Blewer, Jr., Shreveport, for plaintiff-appellee.
    Before JASPER E. JONES, FRED W. JONES and SEXTON, JJ.

       Marvin and Norris, JJ., would grant for purpose of remanding for additional evidence.

   FRED W. JONES' Jr., Judge.

Defendants appealed a judgment awarding plaintiff damages for breach of contract.

For the reasons hereinafter set forth, we reverse.

Plaintiff is a Louisiana corporation which owns two radio stations in Shreveport. While constructing a new building to house the radio stations, plaintiff accepted a bid from the partnership of Summer-grove Floor Covering to install carpet in said building for the price of $18,000.

In conjunction with this agreement defendants agreed to purchase $18,000 worth of advertising from plaintiff’s radio stations over a five year period, at the rate of $3,600 per year.

The contract the parties agreed to stated in pertinent part:

“Agreement made and entered into this 8th day of November, 1979 by and between KWKH-KROK/Shreveport Great Empire Broadcasting, Inc., a Louisiana Corporation herein referred to as stations and Ralph Jones and James Cox, a partnership d.b.a. Summergrove Floor Covering with its principal place of business at 9254 Mansfield Road hereafter referred to as dealer.
In consideration for carpeting and other decorative services at the stations new building for a predetermined sum of $18,-000 payable on approval of completed installation, dealer hereby guarantees to buy $18,000 in advertising from stations over a five-year period of time beginning December 1, 1979 and ending November 30, 1984. Dealer hereby guarantees an annual minimum purchase of $3,600 per year from stations.”

The carpet was installed to plaintiffs satisfaction and defendants were paid in full for the installation.

In January 1980 the partnership made its initial purchase of advertising in the amount of $2,415. In the summer of 1980 an additional $2,550 of advertising was purchased, after which no further purchases were made.

On September 17, 1982 plaintiff filed suit against the partners, Ralph Jones and James Cox, and the partnership of Sum-mergrove Floor Covering for the sum of $5,119.62.

After trial on the merits judgment was rendered in favor of plaintiff as prayed for. Defendants then made a timely motion for a new trial which was granted by the trial court.

After the new trial, the lower court, on November 17, 1983, rendered judgment for plaintiff against Summergrove Floor Covering and Ralph Jones for $5,835. This sum represented the amount of advertising defendants failed to purchase in the first three years of the contract. The amount due in the fourth and fifth years had not accrued; therefore, the trial court rendered judgment without prejudice to any rights which would subsequently accrue to plaintiff under the contract.

. On appeal defendants argue the trial court erred in awarding the gross amount of the contract then due. They assert recovery in a breach of contract suit is limited to the proven lost profits resulting from the breach, which plaintiff failed to prove.

We find defendants’ argument is well taken. In Campbell v. Lelong Trust, 327 So.2d 533 (La.App. 2d Cir.1976), we stated:

“A court is not justified in fixing damages in the absence of definite proof. The plaintiff has the burden of proving the damage suffered by him as a result of the breach of contract. In a breach of contract action, the plaintiff is entitled to recover the amount of loss he has sustained and the profit of which he has been deprived. LSA-C.C. art. 1934. While the absence of independent, corroborating evidence may not be fatal to the plaintiffs burden of proof, the lack of even a minimal degree of detail or specificity as to the extent of loss precludes an award. Casadaban v. Bel Chemical & Supply Company, Inc., 322 So.2d 854 (La.App. 1st Cir.1975).

The record in this case is devoid of evidence concerning plaintiffs lost profit, if any, resulting from the breach of contract. To hold defendants liable for the gross amount of the contract due, without providing the advertising time, would violate recognized tenets of justice.

This resolution of the issue pretermits the necessity of discussion of defendants’ other arguments.

For these reasons we reverse the judgment of the trial court and render judgment in favor of defendants and against plaintiff, dismissing the latter’s suit, with costs of court in the district court and on appeal assessed to plaintiff.


author: BOUTALL, Judge. PER CURIAM.

text:
    Mrs. Diane Waguespack wife of Jacques v. LEGRAND Jacques LEGRAND.
    No. 83-CA-850.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 1984.
    Rehearing Denied Sept. 19, 1984.
    Russell J. Schonekas, Tucker & Schone-kas, New Orleans, for plaintiff-appellant Diane Waguespack LeGrand.
    Ernest V. Richards, IV, Metairie, for defendant-appellee Jacques LeGrand.
    Before BOUTALL, CHEHARDY and CURRAULT, JJ.
   BOUTALL, Judge.

This case arises from a rule for change of custody brought by the non-custodial divorced parent. From a judgment ordering that custody be changed, the parent who has lost custody appeals.

Diane Waguespack LeGrand and Jacques LeGrand were divorced in 1973. Mrs. Le-Grand was awarded custody of the couple’s three children, Jacques LeGrand, Jr., Christine LeGrand, and Nicole LeGrand, with visiting rights to Mr. LeGrand. In September, 1978 and again in August, 1979 the mother filed motions regarding past due alimony and visitation, while the father moved to gain custody. On September 7, 1979, the court rendered judgment ordering that custody of Jacques, Jr. be granted to the father while the daughters were to remain with their mother. The father was found to be in contempt for failure to pay support, and visiting hours were changed. In May, 1982 Mr. LeGrand petitioned for custody of Christine and Nicole, but the rule was dismissed when no one appeared for the hearing.

The present litigation began in December, 1982, when Mr. LeGrand again filed a rule for custody, on grounds that Mrs. Le-Grand continually left the girls “alone and unattended at all hours of the day and night,” that they wished to live with their father, and that it was detrimental to their well being to remain with their mother because of the emotional and psychological strain existing between daughters and mother. Mrs. LeGrand countered with a rule for contempt, alleging that the father violated the conditions of visitation in several ways, including taking Christine, the older daughter, to Las Vegas without her knowledge or permission. Following a hearing of both motions, on September 23, 1983, the trial judge ordered a change of custody, awarding permanent custody of Christine and Nicole to Mr. LeGrand, and he dismissed the rule for contempt against the father. Mrs. LeGrand appeals the judgment.

The issues raised by the appellant are: (1) whether the appellee carried his burden of proving the conditions under which the children were living had changed significantly since the original decree and that the conditions were now detrimental to them; and (2) whether the trial judge correctly gave great weight to the wishes and desires of the children in awarding custody to the father.

In December, 1982, when this litigation arose, LSA-C.C. art. 157 read as follows, in pertinent part:

“A. In all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, or to both jointly by agreement of both the husband and wife, in accordance with the best interest of the child or children; however, an award of joint custody may be granted only when the husband and wife are both domiciled in the state of Louisiana. If either parent changes his or her domicile to another state, the other may petition for sole custody.
“No preference shall be given on the basis of the sex of the parent in cases where custody is awarded to only one parent. Such custody hearing may be held in private chambers of the judge.”

The legislature had amended article 157 in 1977 to provide for permanent custody after separation or divorce to either husband or wife, “in accordance with the best interest of the child or children.” A 1979 amendment to the article codified the jurisprudence to make the best interest requirement applicable to change of custody cases as well as to original awards.

The Supreme Court considered the standard of proof in change of custody cases in light of the 1979 amendment in Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). In an earlier case, Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), the court set out four principles relevant to custody changes, as summarized in Bordelon v. Bordelon, supra, at 1328:

“... (1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children. (2) The general rule is that it is in the best interest of the children to grant custody to the mother, especially when they are of tender years, unless the mother is morally unfit or otherwise unsuitable. (3) When a trial court has made a considered decree of permanent custody, the party seeking a change of custody has a heavy burden of proving that the present custody is deleterious to the children as to justify removing them from the environment to which they are accustomed. (4) The decision of the trial judge is entitled to great weight. Eventually, the first principle concerning the welfare of the children came to be construed as requiring custody changes to be in the best interest of the children.... [citations omitted.]”

The Bordelon court interpreted legislative intent in the 1979 amendment to article 157 as removing the Fulco burden. It went on to explain, at 1328:

“... In requiring proof that continuation of present custody was deleterious to the child before permitting a change of custody, Fulco, supra, we were, in substance, limiting the rule of the best interest of the child to only those situations where the danger of physical or psychological harm to the child required a change of custody. In amending the child custody statute, the legislature gave no indication that such a stringent substantive limitation on custody changes was applicable, and this Court is in no position to read such a requirement into the statute. Thus, the best interest of the child, and not the possibility of harm, is the sole criterion applicable to change of custody cases.”

The Bordelon court reaffirmed the importance of stability of environment in a determination of the child’s best interest. It said, at 1329, that:

“... A court should consider the prior history of the child’s custody when asked to change custody. Generally, it might not be in the best interest of a child to be regularly moved from parent to parent. But this is a single consideration to be weighed with all other factors relevant to a determination of the best interest of the child.”

See also Ashley v. Gasper, 392 So.2d 178 (La.App. 2nd Cir.1980). The court also reaffirmed the great weight placed on the trial judge’s determination, which may be overturned only where there is a clear abuse of discretion. Fulco, supra; Cleeton v. Cleeton, 383 So.2d 1231 (La.1980).

The weight placed upon the wishes or desires of the child as to whether custody should be changed varies from case to case. In none of the cases has custody been changed solely on that basis. The most recent Supreme Court case, Johnston v. McCullough, 410 So.2d 1105 (La.1982), held that stability and continuity were more important considerations than the wishes of a twelve-year-old boy and his father who sought custody. This principle was reiterated in Morgan v. Huddlestone, 430 So.2d 304 (La.App. 3rd Cir.1983) in the case of a thirteen-year-old boy who wished to leave his home with his mother and sisters to live with his father. However, in Theriot v. Huval, 413 So.2d 337 (La.App. 3rd Cir.1982), the court placed more weight on the preferences of the children in ordering a change of custody. The court considered carefully the home environment available under placement with either parent, and felt the change was in the children’s best interest. They did not wish to be uprooted from their home town when their mother moved to another town, and one daughter was antagonistic to the mother’s paramour. The court stated at 341:

“... [I]t is proper to give more than casual consideration to the wishes of the children in light of their feelings of insecurity which would be experienced if placed with a certain parent .... ”

In the case before us the plaintiff argues that the father failed to carry his burden of proving that present custody was deleterious to the girls’ welfare and that there had been a material change in their circumstances. The decisions relied upon by the plaintiff were rendered prior to Bordelon v. Bordelon, supra. Counsel cited Brummett v. Hudson, 338 So.2d 1 24 (La.App. 1st Cir.1976); Monsour v. Monsour, 347 So.2d 203 (La.1977), and Shanklin v. Shanklin, 376 So.2d 1036 (La.App. 1st Cir.1979). The facts and trial in Shanklin took place prior to the enactment of the 1979 amendment to LSA-C.C. art. 157. As discussed above, the standard of proof has been relaxed somewhat.

It is difficult to determine from the rather meager transcript whether the father did successfully prove, as required by the current law, that a change in custody is in the best interest of the children. Testimony was heard in open court from Diane LeGrand, Jacques LeGrand, Jr., and Donna Lahners. Christine and Nicole testified before the judge alone in his chambers, as is permitted by article 157, over the objection of counsel for Mrs. LeGrand.

The trial judge gave oral reasons for his decision and indicated it was primarily based upon the girls’ testimony in chambers. He stated that both girls told him they would run away if ordered to remain with their mother. He said:

“... At fifteen and a half and a child of her [Christine’s] intelligence, the ball game’s over .... ”

Nicole, age thirteen, told him that if custody were granted to her father she would not even wish to visit her mother.

The attorneys failed to elicit a clear picture of the girls’ home and school life while in their mother’s custody. The record is not convincing as to the truth of Mr. Le-Grand’s allegation that the girls were left alone in the house “at all hours.” Mrs. Donna Lahners, a friend of Mr. LeGrand who lived four blocks away testified that the girls called her frequently at night because they were alone and frightened. When asked to be more specific about time, she said they called anywhere from 8:00 p.m. to 11:00 p.m. However, Mrs. LeGrand testified that in fact both girls on occasion did baby-sitting outside the home, and Nicole (age thirteen) was allowed to sit until 11:00 p.m. The mother worked nearby, and was available by telephone. On the two week nights when she worked until 9:00 p.m. Mrs. LeGrand came home to prepare the evening meal and then returned to work.

The record does reflect that the relationship of mother and daughters has become one of animosity and tension. Nine days before the trial Christine (age fifteen) left home to stay in a hotel with her older brother, communicating only with her father, and missing school. While there are strong indications that Christine’s leaving was instigated by the father, there are no indications she left unwillingly. The mother admitted to slapping Christine on occasion for being rude to her, and during a recess in the trial she slapped Nicole for disobeying her by going outside with her father. Mrs. LeGrand complained in her testimony that the father undermined her attempts to discipline the girls. Her testimony confirms the trial judge’s conclusion that she had lost control of the girls.

The plaintiff argues that the court was incorrect in basing his decision to change custody on the girls’ wishes. The judge did not divulge specifics of the girls’ testimony other than their saying that they would run away if the mother’s custody continued. From his oral reasons for judgment, we deduce that his interview with the girls in chambers convinced him that placement with the father was in the best interest of the children. He said:

"... And I told them that with a change of custody maybe things would change their opinions, their attitudes ....”

Although we are not able to review the girls’ statements, we must afford the finding of the trial judge great weight. We believe he was correct and that the girls’ best interest would be served by relief from the atmosphere of tension and conflict. Accordingly, we affirm that portion of the judgment awarding permanent custody of Christine LeGrand and Nicole Le-Grand to their father, Jacques LeGrand.

Counsel for the appellant complains in his brief and argument of the judge’s failing to find the father in contempt for violation of the conditions of visitation, although he does not list the dismissal of the appellant’s rule as an issue before this court as reason for reversal.

The applicable articles of the Louisiana Code of Civil Procedure are as follows, in pertinent part:

“Article 221. A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.
“Contempts of court are of two kinds, direct and constructive.”
“Article 224. A constructive contempt of court is any contempt other than a direct one.
“Any of the following acts constitutes a constructive contempt of court: ...
“(2) Willful disobedience of any lawful judgment, order, mandate, writ or process of the court:”

The penalty permitted by law for contempt is set out in LSA-R.S. 13:4611: a fine of not more than $250.00 or imprisonment for not more than thirty days or both. Considerable conflict in the jurisprudence has existed over the proper procedure for seeking review of a judgment of contempt, whether by direct appeal or by application for supervisory writs. Additionally, dependent on the nature of the case, it is important that a determination be made as to the nature of the contempt proceeding, whether civil or criminal. The test evolved is to look to the purpose of the sentence imposed: whether to coerce compliance with the court order or simply to punish for wilful disobedience of the court order.

We consider that the determination of the civil or criminal nature of the contempt proceeding is paramount in a case such as this wherein the trial judge has refused to find the defendant in contempt. Rarely have the appellate courts entertained an appeal under such circumstances.

In Kent v. Stewart, 413 So.2d 583 (La.App. 1st Cir.1982), the court entertained and reviewed a contempt proceeding against a group of property owners which arose from an alleged violation of an injunction. In a consideration of the merits, the court affirmed the trial judge’s finding of no violation of the injunction, contempt of court, or malicious harassment. On the other end of the spectrum, in the case of LeBlanc v. LeBlanc, 404 So.2d 530 (La.App. 4th Cir.1981), a case involving custody rights, the court held that an appellant father was without standing to appeal the court’s refusal to hold the mother in contempt.

In Robertson v. Robertson, 258 So.2d 125 (La.App. 2nd Cir.1972), a case involving alleged interference with visitation rights, the court held that the trial judge’s denial of contempt penalties was solely within his authority, stating at page 127:

“... A proceeding against a party to show cause why he should not be punished for contempt in refusing to obey the orders of a court is not designed for the benefit of a litigant, though infliction of a punishment may inure to the benefit of the mover in the rule. The object of the proceeding is to vindicate the dignity of the court. State ex rel. Duffy & Behan v. Civil District Court for Parish of Orleans, 112 La. 182, 36 So. 315 (1904). The court below did not feel its dignity had been impeached, and it is not our place to say otherwise.”

In our assessment of these cases, we would distinguish between the apparently apposite treatment accorded these appeals by referring to the nature and purpose of the contempt proceeding.

In Kent the proceeding there is in connection with the protection of rights resulting from an injunction that had been issued and whether certain actions of the defendants were in violation of the injunction. As opposed to that in Robertson and LeBlanc the effects of the activity complained of were finished and the sole purpose of the contempt proceeding was to punish.

The case before us is based upon allegations of wilful violation of visitation privileges by the father of children. Even if the allegations were proven, a judgment of contempt could not restore to the mother her violated rights and could serve only to punish the father for past acts. Additionally, if we were to reverse the judgment of contempt, we would simply remand the matter to the trial court to impose punishment under the statutes. To reiterate the rule discussed above, when the purpose of the contempt sentence is simply to punish, the contempt proceeding is in the nature of a criminal proceeding. In this case it is clear that punishment is the sole purpose and this is in the nature of a criminal proceeding. It is basic law that when a defendant is acquitted on the merits the judgment is not appealable. See Code of Criminal Procedure Article 912. Simply put, this court does not have jurisdiction to entertain such an appeal.

For the reasons above stated, the judgment appealed is affirmed at appellant’s costs.

AFFIRMED.

ON APPLICATION FOR REHEARING.

PER CURIAM.

We consider the reference to Civil Code Article 157 and Star Chamber proceedings to be disrespectful and frivolous. Courts have frequently conferred with children outside the presence of the parents other than in open court. See Vidrine v. Demourelle, 363 So.2d 943 (La.App. 3rd Cir. 1978); Duffie v. Duffie, 387 So.2d 654 (La.App. 1st Cir.1980); Prattini v. Daughtry, 396 So.2d 447 (La.App. 4th Cir.1981); Plemer v. Plemer, 436 So.2d 1348 (La.App. 4th Cir.1983); Granger v. Ortego, 434 So.2d 663 (La.App. 3rd Cir.1983). See also attached copy of Acts 1981, No. 283, which amended LSA-C.C. 157.

The motion for rehearing is denied.

APPENDIX

Act 283

ACT No. 283

House Bill No. 147.

By: Messrs. Byrnes and Fernandez. AN ACT

To amend and reenact Article 146, Paragraph A of Article 157, and Article 250 of the Louisiana Civil Code and to amend and reenact Articles 4031 and 4262 of the Louisiana Code of Civil Procedure, relative to custody and tutorship of children pending litigation and after separation or divorce, to provide for joint custody, to provide for natural cotutorship, and otherwise to provide with respect thereto.

Be it enacted by the Legislature of Louisiana:

Section 1. Article 146, Paragraph A of Article 157, and Article 250 of the Louisiana Civil Code are hereby amended and reenacted to read as follows:

Art. 146. Custody of children pending the litigation

Art. 146. A. If there are children of the marriage whose provisional keeping is claimed by both husband and wife, the suit being yet pending and undecided, it shall be granted to the husband or the wife in accordance with the best interest of the children, or, if both husband and wife agree to joint custody and the court deems it in the best interest of the children, the court may award joint custody. In all cases, the court shall inquire into the fitness of both the mother and father and shall award custody to such parent or to both parents, if they agree to joint custody, as the court finds will in all respects be in accordance with the best interest of the child or children. Such custody hearing may be held in private chambers of the judge.

B. An award of joint custody shall be made only when both husband and wife are domiciled in the state of Louisiana. If either parent changes his or her domicile to another state, the other may petition for sole custody. For purposes of this Article “joint custody” shall mean the husband and wife may share the physical custody of children of the marriage and shall enjoy the natural cotutorship of such children in accordance with Article 250.

* sf: * * * *

Art. 157. Custody and tutorship of children; visitation rights of grandparents

A. In all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, or to both jointly by agreement of both the husband and wife, in accordance with the best interest of the child or children; however, an award of joint custody may be granted only when the husband and wife are both domiciled in the state of Louisiana. If either parent changes his or her domicile to another state, the other may petition for sole custody.

No preference shall be given on the basis of the sex of the parent in cases where custody is awarded to only one parent. Such custody hearing may be held in private chambers of the judge.

In all cases in which the custody of the child or children is awarded to one parent, the parent with legal custody shall of right become natural tutor or tutrix of said child or children to the same extent and with the same effect as if the other party had died. In all cases in which the custody of the child or children is awarded jointly to both parents, they may share the physical custody of the child or children and shall be entitled to become the natural cotutors of such child or children in accordance with Article 250.

⅜! $ $ ⅝ ⅜ ⅜!

Art. 250. Persons entitled to tutorship

Art. 250. Upon the death of either parent, the tutorship of minor children belongs of right to the other. Upon divorce or judicial separation from bed and board of parents, the tutorship of each minor child belongs of right to the parent under whose care he or she has been placed or to whose care he or she has been entrusted; however, if the parents are awarded joint custody of a minor child, then the cotutorship of the minor child shall belong to both parents, with equal authority, privileges, and responsibilities, unless modified by agreement of the parents and approved by the court awarding joint custody.

All those cases are called tutorship by nature.

* * * * * ⅜

Section 2. Articles 4031 and 4262 of the Louisiana Code of Civil Procedure are hereby amended and reenacted to read as follows:

Art. 4031. Minor domiciled in the state

A petition for the appointment of a tutor of a minor domiciled in the state shall be filed in the district court of the parish where the surviving parent is domiciled, if one parent is dead, or in the parish where the parent or other person awarded custody of the minor is domiciled, if the parents are divorced or judicially separated.

If the parents who are divorced or judicially separated are awarded joint custody of a minor, they shall petition jointly for appointment as cotutors in the district court of the parish in which the proceedings for divorce or judicial separation were instituted.

LSA-C.C. 157

Art. 157. Custody of children; visitation rights of grandparents

A. In all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the parents in accordance with Article 146.

B. If subsequent to the granting of a divorce or separation one of the parties to the marriage dies and is survived by a minor child or children of the marriage, the parents of such deceased party may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interests of the child or children.

Amended by Acts 1970, No. 436, § 1; Acts 1977, No. 448, § 1; Acts 1979, No. 718, § 1; Acts 1981, No. 283, § 1; Acts 1982, No. 307, § 1, eff. Jan. 1, 1983.

Construction and Effective Date — 1982 Amendment

Sections 3 and 4 of Acts 1982, No. 307 provide:

“Section 3. The provisions of this Act shall not be construed to automatically modify existing custody orders and agreements in effect on January 1, 1983.

“Section 4- The provisions of this Act shall be effective on January 1, 1983.”

Acts 1972 Regular Session No. 4, [R.S. 9:572], provides:

“If one of the parties to a marriage dies and is survived by a minor child or children of the marriage, the parents of such deceased party may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interests of the child or children.”

1979 Amendment: In par. A added “without any preference being given on the basis of the sex of the parent”, substituted “may be held” for “shall be held”, and deleted, before “The party under”, “In no event shall the pendente lite custody rights presently existing be affected by this Act.”

1981 Amendment: Rewrote par. A which previously read:

“A. In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent. Such custody hearing may be held in private chambers of the judge. The party under whose care the child or children is placed, or to whose care the child or children has been entrusted, shall of right become natural tutor or tu-trix of said child or children to the same extent and with the same effect as if the other party had died.”

On authority of LSA-R.S. 24:253, in paragraph A, as contained in Act 283 a second undesignated paragraph was run into the first paragraph, a third undesig-nated paragraph was designated paragraph B, and former paragraph B was redesigna-ted as paragraph C.

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      . For a detailed discussion of this issue see City of Monroe v. Evans, 385 So.2d 912 (La.App. 2nd Cir.1980) and cases cited therein.

      . See State v. Austin, 374 So.2d 1252 (La.1979); Goins v. Goins, 437 So.2d 947 (La.App. 2nd Cir. 1983); State v. Hope, 449 So.2d 633 (La.App. 1st Cir. 1984), and cases cited therein.