author: STOKER, Judge.

text:
    ACADIAN HERITAGE REALTY, INC., Plaintiff-Appellee, v. The CITY OF LAFAYETTE, Defendant-Appellant.
    No. 83-242.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Writ Denied April 2, 1984.

      Voorhies & Labbe, Marc W. Judice, Lafayette, for defendant-appellant.
    Koury & Koury, Constance A. Koury, Fruge & DeJean, Kenneth W. DeJean, Lafayette, for plaintiff-appellee.
    J.M. Wooderson, Lafayette, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

The City of Lafayette appeals from a judgment rendered against it and in favor of Acadian Heritage Realty, Inc. (Acadian) for damages in the amount of $299,653.87.

Acadian originally filed suit seeking to enjoin the City from beginning any type of operations on property it had purchased for the purpose of establishing a sanitary landfill. Acadian amended its petition after operation of the landfill had begun seeking damages for the alleged negligent operation and placement of the landfill. After trial on the merits between Acadian and the City, the trial court rendered judgment in favor of Acadian as stated above. The City appeals.

This case was previously before this court as a result of a judgment in favor of a number of intervenors in this suit. See Acadian Heritage Realty, Inc. v. City of Lafayette, 434 So.2d 182 (La.App. 3rd Cir.1983), writs denied 440 So.2d 733 (La.1983), hereinafter referred to as Acadian # 2. In this case separate trials were held, one between the intervenors and the City and the other between Acadian and the City. The claim of the intervenors was the subject of the appeal in what we refer to as Acadian # 2. Although the record from the intervenors’ trial was made part of the record in Acadian’s trial, Acadian took no part in the intervenors’ trial. In this appeal we consider only those matters resolved as a result of Acadian’s trial.

In its original brief on appeal, the City made the following assignments of error:

“I. The trial court erred in making determinations of fact concerning the operation and condition of said landfill particularly as said operation affects any of the health or well-being of the residents due to any possible water pollution.
“II. The trial judge erred in ruling that the Defendant-Appellant is liable for ‘incidental damages’ suffered by the public generally as a result of the construction of sanitary landfill.
“III.. The sanitary landfill operation did not constitute a nuisance as to Plaintiff-Appellees, (sic) Acadian Heritage.
“IV. The trial judge erred in exceeding her ‘much discretion’ allowed the tryer of fact by accepting the unsupported opinion of Plaintiff-Appellees (sic) expert and rejecting well founded evidence presented by Defendant-Appellant’s experts, therefore, the quantum awarded is excessive.
“V. The trial court erred in overstepping the bounds of participating in the trial on the merits as an advocate for Plaintiff-Appellees, (sic)
“VI. The trial court erred in ordering a ‘conditional permanent injunction’ be issued against the Defendant-Appellant.”

By way of supplemental briefs, the City added the following assignments of error:

“VII. The trial court erred in awarding damages to Plaintiff-Appellee for Oak-ridge property as that property was sold by Plaintiff-Appellee before trial at a profit.
“VIII. The trial court erred in allowing damages for the decrease in the market value of property without ruling as to whether the sanitary landfill is an ultr-ahazardous activity as dictated by the Supreme Court in Hero Lands Co. v. Texaco, 310 So2d 93 ([La.] 1975).”

For reasons set out below, we amend the award of damages to Acadian and otherwise affirm the judgment of the trial court.

FACTS

On April 5, 1978, Dorothy Bundrick and Michael DeClouet purchased a 6.83-acre tract of land for $40,980. They subsequently sold the land to Acadian for $32,-810 on November 7, 1978. At the time of trial Mrs. Bundrick was the president and sole shareholder of Acadian. Mr. De-Clouet’s status is not clear.

Acadian began development of the 6.83-acre tract in May of 1978 as Brookshire Subdivision. On February 20, 1979, Acadi-an purchased another piece of property consisting of approximately twelve arpents for $90,000. This property was originally intended for development as Oakridge Subdivision. Brookshire is located approximately 1200 feet east of the landfill and Oakridge is adjacent to it.

On May 4, 1979, the City purchased a 60.78-acre tract which it intended to develop into a sanitary landfill. Acadian unsuccessfully sought to enjoin the construction of the landfill. After operation of the landfill began in May of 1980, Acadian amended its petition seeking damages for the negligent operation and placement of the landfill.

The damages awarded to Acadian consist primarily of the loss of anticipated profits from the development of Brookshire and Oakridge Subdivisions.

Although some of the City’s assignments of error are overlapping, we will attempt to address each one individually.

I. WATER POLLUTION

The City objects to the trial court’s finding as to water pollution and thoroughly discusses the reliability of water samples presented on behalf of itself and Acadian. With regard to this issue the trial court stated:

“For brevity’s sake the Court will not go into great detail regarding these samples. While it is alarmed by the results of some of these tests, there does not seem to be enough evidence for it to reach an opinion as to the conclusion to be drawn at this time. Ms. Roberts stated that bacteria may appear one day and be absent the next; therefore, the fact that none appeared does not disprove contamination. The Court feels the situation should be monitored carefully since there was such negligence exhibited in the excavations at the site.”

It is apparent from the above quotation that the trial court did not find that water in the area was presently contaminated. The court did find that due to the manner in which digging was conducted at the landfill there was a possibility of future contamination. This finding is adequately supported by the record.

An important feature of this property is its underlying clay base. The clay will prevent or at least retard the seepage of leachate, i.e. contaminated water, into the water table and subsequently into neighboring wells. In excavating the site for filling, ground stakes were not placed to indicate how deep the digging should go. The measurement was made only by estimation and there was testimony that clay and dirt were kept available to fill areas that had been cut too deep. There is a distinct possibility that the clay was penetrated allowing the leachate easier access to the water table. Various testimony also indicates that there were drainage problems at the landfill. This could result in the formation of leachate.

There is no clear error in the trial court’s limited findings regarding contamination of the water.

We have discussed the matter of the threat or potentiality for water pollution because the City has made it a significant issue on appeal. However, with respect to Acadian’s claim for damages, the relevancy of the issue is not too apparent. As we see it, the trial judge’s findings concerning the absence of pollution in fact, but with a possibility that there might be pollution in the future, simply buttresses the trial court’s general conclusion that the area surrounding the landfill suffered a diminution in land value merely because the landfill and landfill operation existed.

II. DAMAGES FROM LANDFILL EXISTENCE

The City takes the position that any decrease in the market value of Acadian’s property resulted solely from the existence of the landfill and not from its operation. The City asserts further that the decrease in value due to the mere existence of the landfill is not compensable.

Although we find that some of the decrease in value of the land was due to the negligent operation of the landfill, we find further that damages resulting from the “stigma” attached to the landfill may be recovered.

When this case was first before this court on the issue of whether Acadian had a cause of action for damages resulting from the mere construction of the landfill, we held that Acadian did have such a cause of action. Acadian Heritage Realty, Inc. v. City of Lafayette, 394 So.2d 855 (La.App. 3rd Cir.1981), hereinafter referred to as Acadian #1. As was pointed out in a concurrence to that opinion, there should be a balancing of interests to determine whether a plaintiff should recover for any inconvenience or damage suffered.

In the appeal concerning the inter-venors in this matter, we made such a balancing of interests and found that there should be recovery. Acadian #2. We reach the same result in this case. As stated frequently at the trial of this case, a landfill is a unique operation. Some of the obvious effects of even a well-run landfill are increased traffic, increased noise level from the required machinery, and a change in the general appearance of the area. As clearly demonstrated at trial, the public perceived these negative effects even before operation of the landfill had begun. This perception caused damage to Acadian for which they should recover.

III. LANDFILL AS A NUISANCE

As in the previous appeal from the judgment in favor of intervenors, the City argues that the trial court erred in finding that the activities on the landfill constituted a nuisance. We disagree. The landowners and residents in the area surrounding the landfill testified almost without exception that there were noxious odors emanating from the landfill, that the roads leading up to the landfill became more littered, that there was excessive noise in the area, and that there was an increased problem with flies and rodents. Existence of some of these problems was supported by photographs submitted into evidence. Existence of others is also supported by findings of various inspectors of the landfill.

Problems reported by inspectors at various times at the landfill are those which could cause the complaints by neighbors. Of particular importance is the continued problem of the failure to cover the garbage daily with six inches of dirt. The apparent purposes of the cover are to prevent escaping odors and to discourage flies and rodents. Also noted as a problem on at least one report was the presence of the flies and excessive odor down wind from the landfill. Landfill employees were using a lemon-scented disinfectant in an attempt to control the flies. Inspectors from the Department of Natural Resources recommended that an insect spray or fly repellent be used.

Based on the evidence presented at trial we cannot say that the trial court was “clearly wrong” in finding that the landfill constituted a nuisance.

IV. AMOUNT OF DAMAGES

A. Brookshire Subdivision

Acadian developed Brookshire to include seventeen residential lots. Mrs. Bun-drick testified that she anticipated selling three of the lots without homes in order to stimulate interest in the area and the remaining fourteen lots with homes. Four of the lots were either sold or committed through purchase agreements during the first five months of 1979 prior to the announcement of the landfill. Three of the lots sold for $10,000 and one for $9,500.

During the remainder of 1979 only three more sales were made. One was a lot for $9,000 and two were lots on which homes had been built. In order to sell the homes, Acadian agreed to pay closing costs on the transactions. Two more lots with homes were sold in January of 1980 and Acadian paid closing costs on these sales also. There were no further sales until December of 1980 when two lots were sold as a package to a developer for $8,000 each. Three more lots were sold in the second half of 1981 for $10,500 each and three lots remained unsold at the time of trial.

There was sufficient testimony at trial to establish that the difficulty in selling lots after May of 1979 was due to the announcement and subsequent development of the landfill. Certain price reductions and other concessions had to be made by Acadian in order to make sales.

In the development of a subdivision, time is a crucial factor. Usually a mortgage on property securing loans for development is discharged in part as each lot is sold. Therefore, a slowdown in sales will cause additional interest to accrue. Because of the difficulty in making sales, Acadian incurred additional debt in order to pay the interest on its loans for the development and purchase of Brookshire. Guaranty Bank & Trust Company had a mortgage on Brookshire securing the loan made for the purchase of the property. Guaranty also made loans to Acadian totaling $90,000 for the development of the subdivision. Steve Hollier, vice-president of Guaranty, testified that Acadian became delinquent on its account in the latter part of 1979. At one point Acadian could pay neither the interest nor the principal, and the loans had to be refinanced. He stated further that before the loans were paid out in January of 1981, Acadian had paid a total of $50,160.75 in interest ($65 in 1978> $26,605.62 in 1979, $21,163.32 in 1980, and $2,326.81 in 1981).

Mrs. Bundrick testified that there is still a $65,000 mortgage on the three unsold lots. This mortgage is held by Mr. Paul DeClouet who paid the bank which was threatening to foreclose on the property. Proceeds of this lawsuit were also pledged to secure the loan. It is not entirely clear what portion of the $65,000 was needed to pay the interest incurred as a result of the landfill. Mrs. Bundrick stated that the $65,000 included “principal and interest.” Presumably the principal she referred to is the amount Mr. DeClouet paid the bank and the interest is that owed to Mr. De-Clouet on the new loan. It is apparent that not all of the $50,160.75 in interest paid to the bank is attributable to the delays caused by the landfill. However, an additional undetermined amount of interest is owed to Mr. DeClouet due to the landfill.

Although all of Acadian’s financial transactions and arrangements are not entirely clear to us, we conclude that the trial court was not clearly wrong in concluding that the $65,000 mortgage, less certain reductions we will next discuss, was attributable to inability to sell lots because of the landfill.

In awarding damages regarding the $65,-000 mortgage, the trial court reduced the award by the land cost of the three unsold lots apparently on the basis that this was a part of the principal still owed to Guaranty Bank when Mr. DeClouet made his loan. Because the Guaranty Bank mortgage covered both purchase of the land and the cost of development, we find that the award regarding the $65,000 should have been reduced by the amount of the land and development cost attributable to each of the unsold lots.

The trial court incorrectly calculated the land cost of each lot. The purchase price for the property was $32,810, the amount paid by Acadian, rather than $40,980, the amount originally paid by Mrs. Bundrick and Michael DeClouet. The amount paid by Acadian is the proper figure to use since it is the plaintiff in this suit. Thus the cost of each lot was $1,930 ($32810 -h 17) rather than $2,410.58 ($40980 -h 17) as indicated by the trial court. The cost of developing the subdivision was $68,072. With development cost added to the purchase price of the land ($68,072 + $32,810 = $100,882), the total cost of each lot was $5,934.24 ($100,882 -h 17) rather than $6,414.82. The award for the $65,000 mortgage should be reduced by $17,802.72 ($5,934.24 x 3). The amount should be $47,197.28.

The trial judge also awarded Acadian the amount of the closing costs on the four lots with homes which were sold. The reasoning is that payment of the closing costs was a concession that Acadian would not have had to make without the landfill as a factor. These costs total $19,596.92. (The judgment incorrectly gives the amount as $19,597.02.)

No damages were awarded regarding the four lots which were sold prior to the announcement of the'landfill, and damages for the four lots with homes were awarded as stated above. For the remaining nine lots, six of which were sold but without homes, the trial court calculated damages according to the profit Acadian expected to make on the lots with homes built on them.

Acadian expected to sell the lots with homes for $58,500 each. The evidence shows that this was .a reasonable expectation. Construction costs for the homes would have been $42,000 each. Thus the net profit for nine lots would have been $95,091.84, computed as follows:

Nine homes @ $58,500 each $526,500.00
Construction @ $42,000 each -$378,000.00
Development @ $5,934.24 each - 53,408.16
-431,408.16
$ 95,091.84

Since six of these nine lots on which damages were calculated were actually sold, even though without homes, we feel that the above figure should be reduced by the apparent net profit on the sale of these lots. Acadian asserts that it did not in fact profit from these sales due to the continued refinancing of Brookshire, however, that aspect of damages has been covered by the award regarding the $65,000 mortgage. We find that Acadian’s total profit on the six lots was $20,894.56. Two of the lots sold for $8,000, one for $9,000, and three for $10,500. We subtracted the cost of each lot at $5,934.24 from each of the purchase prices in order to determine the profit. Thus the total lost profits on Brook-shire are $74,197.28 ($95,091.84 - $20,-894.56).

We are aware that the City raises several arguments regarding the ability and accuracy of Acadian’s experts on real estate appraisal and development. There was substantial disagreement between the City’s experts and Acadian’s experts regarding the best use of the property and its value both before and after the construction of the landfill. The award of damages by the trial court was not based on the past or present value of the land, but on the loss of profits by Acadian. Such an award is not clearly wrong, therefore, we do not find a discussion of land values to be necessary.

We are also not persuaded by the City’s argument that the decrease in sales was a result of the general economic situation at the time or that this situation would have caused the expected profits on the subdivisions to be less. There was sufficient evidence to show that the slowdown in sales was solely attributable to the landfill and that Acadian’s profit expectation was realistic.

B. Oakridge Subdivision

Although the Oakridge property was purchased before announcement of the landfill, development had not yet begun on it. After announcement of the landfill, Acadian was unable to obtain financing for the development. In any event, the development no longer seemed feasible in light of the problems suffered by Brookshire.

Acadian anticipated that the presence of Brookshire would enhance the value of Oakridge, making its twenty-five lots worth at least $14,000 each. There is sufficient evidence to support this view. As with Brookshire, Acadian expected to sell most of the lots with homes.

When it became clear that Oakridge could not be developed for residential use, Acadian made efforts to develop it for industrial use. This attempt was unsuccessful and the land was ultimately sold to Mr. Oran Vincent for $100,124.44. Included in this purchase price was Mr. Vincent’s assumption of the mortgage on the property with a remaining debt of $55,963.44 and the discharge of a $44,161 debt owed Mr. Vincent by Acadian Heritage. Mrs. Bundrick testified that money had been borrowed from Mr. Vincent in order to pay the notes on Oakridge.

Because Acadian had not yet begun actual development of the Oakridge property, the trial court found that damages based on the sale of homes in the area was too speculative and awarded damages for lost profits based on the sale of developed lots. The expected cost of the development of the lots was $128,478. This cost added to the purchase price of the land, $90,000, gives a per-lot cost of $8,739.12 ($218,478 -T- 25). The estimated income on twenty-five lots of $350,000 ($14,000 each) less the cost of $218,478 equals an expected profit of $131,522, the amount awarded by the trial court.

The City argues that because Acadian sold the property prior to trial for a profit, it should not be allowed to recover these anticipated profits. We disagree. Acadian sold the property only in an effort to mitigate its damages. Had it not done so, it would have been left with increased debts due to refinancing and growing interest payments.

We also find that the sale to Mr. Vincent was not made at a profit to Acadian, but was made only for an amount which covered the additional debt already incurred by Acadian in order to meet its original obligation on the purchase of the property. The trial court did not abuse its discretion in awarding damages.

C. Total Damages

The sum total of damages due Acadian is as follows:

Brookshire
Loss of profits on 9 houses $74,197.28
Settlement charges paid by Acadian 19,596.92
Outstanding debt 47,197.28
$140,991.48
Oakridge
Loss of profits on 25 lots 131,522.00
TOTAL $272,513.48

V. PARTICIPATION OP THE TRIAL JUDGE

The City asserts that at one point in the trial, the trial judge departed from her role of impartiality and became an advocate for the plaintiff. We disagree. Trial of this case consumed six days in addition to the five days of trial with the intervenors. At various points throughout the hearings, it appears that both counsel and the judge became somewhat impatient. While this is unfortunate, particularly with respect to the trial judge, we do not find that the City was prejudiced. The incidents complained of by the City resulted primarily from the trial judge’s attempt to have all pertinent information before her in making her decision.

VI. “CONDITIONAL PERMANENT INJUNCTION”

As in the previous appeal dealing with the intervenors, the City argues that the trial court judgment of September 10, 1981, issuing a “conditional permanent injunction” was incorrect. That issue was not considered in Acadian # 2 because there was no order of appeal from the judgment in question in that record.

Although an order of appeal from that judgment now appears in the record before us, we cannot consider it in this appeal of Acadian. That judgment was rendered after trial on the merits between the interve-nors and the City. Acadian was not a party to those proceedings nor was the judgment rendered in its favor.

We note that the order of appeal now appearing in the record is marked as having been officially filed on July 26, 1983, after the judgment in favor of intervenors had been affirmed and a rehearing denied. The matter has not been properly raised for our consideration.

VII. DAMAGES FOR (OAKRIDGE) SOLD PROPERTY

This assignment has been discussed under the section entitled “IV. AMOUNT OF DAMAGES.”

VIII. ULTRAHAZARDOUS ACTIVITY REQUIREMENT

The City argues that under Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975), the landfill must be found to be an ultrahazardous activity before damages can be awarded for loss of property value. In support of this claim, the City cites the following from the Court’s per curiam opinion denying an application for rehearing.

“We have not held that allegations of damage based upon a depreciation of land value because of ordinary constructions and activities on a neighbor’s property necessarily state a cause of action. The opinion has held that allegations that the maintenance of an ultra-hazardous construction on defendant’s servitude has caused them damage does under the factual allegation state a cause of action.”

We are of the opinion that the above quotation indicates that the holding was limited to the case under consideration which did involve an allegation of an ultr-ahazardous construction. The opinion does not hold that such an allegation was necessary to state a cause of action.

We have previously held that the construction of a sanitary landfill adjacent to and in close proximity to property owned by plaintiff gives rise to a cause of action for damages caused by this proximity which impairs the market value and full use of the neighboring estate. Acadian # 1. We now hold that Acadian has proved its damages and is entitled to recover.

CONCLUSION

For the above reasons, we reduce the amount of the judgment against the City of Lafayette to $272,513.48. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendant-appellant.

AMENDED AND AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Charles CONNER, Plaintiff-Appellant, v. FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 83-336.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      Raleigh Newman, Lake Charles, for plaintiff-appellant.
    Plauche, Smith and Nieset, Frank M. Walker, Jr., Lake Charles, for defendants-appellees.
    Stoekwell, Sievert, Viccellio, Clements & Shaddock, Robert S. Dampf, Lake Charles, for third party plaintiff-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

Charles Conner brought this suit to recover damages for personal injuries allegedly sustained by him in an automobile collision which occurred on October 17, 1980. Named as defendants were Patricia Ouzts; Florida Farm Bureau Casualty Insurance Company (hereafter Florida Farm Bureau), Ms. Ouzts’ insurer; and, State Farm Mutual Automobile Insurance Company (hereafter State Farm), plaintiffs underinsured motorist carrier. State Farm filed a third party demand against Patricia Ouzts and Florida Farm Bureau for contribution and indemnity. After trial on the merits, the jury returned a special verdict, finding that both the defendant, Patricia Ouzts, and the plaintiff, Charles Conner, were negligent, which negligence proximately caused the accident; attributing 60% of the fault to the defendant and 40% to the plaintiff; and, finding that the total amount of damages sustained by the plaintiff was $25,000.00. The trial judge entered judgment on November 12, 1982, in accord with the jury’s verdict, in favor of Charles Conner and against Florida Farm Bureau and Patricia Ouzts in solido in the principal sum of $15,000.00. Plaintiff and defendants were cast for costs at the trial level in the proportions of 40% and 60%, respectively. The judgment made no specific disposition of State Farm’s third party demand. Plaintiff thereafter filed a motion seeking reformation of the jury verdict or additur or new trial which motion was denied by the trial judge on January 12, 1983.

Plaintiff appeals devolutively from the denial of his motion and from the judgment. The defendants neither appeal nor answer the appeal.

The issues on appeal concern the correctness of the trial court’s ruling which denied plaintiff’s motion for reformation of the jury verdict, new trial or additur; quantum; and, whether the jury clearly erred in finding plaintiff 40% negligent.

FACTS

The accident occurred one mile south of Sulphur in Calcasieu Parish, at the intersection of Louisiana Highway 27 and Car-lyss Drive at approximately 6:40 a.m. on October 17, 1980. Carlyss Drive is a two lane, blacktop road which runs east and west. Louisiana Highway 27 runs north and south. A “T” intersection is formed at the point where Carlyss Drive and Highway 27 meet. There is a stop sign controlling east bound traffic on Carlyss Drive at this intersection. Louisiana Highway 27, also known as the “Hackberry Highway”, is a blacktop two lane road. There are no traffic controls for Highway 27 at this intersection other than a solid yellow no passing line. The posted speed limit on Highway 27 is 55 m.p.h. It had been raining earlier that morning and the roads were wet and slick.

Immediately prior to the accident, the defendant, Patricia Ouzts, was operating a vehicle heading east on Carlyss Drive on her way to work at PPG, accompanied by Mike McCray and Fred Fell. The plaintiff, Charles Conner, was driving a pickup truck traveling south on Highway 27 following a van. The right turn signal had been activated on the van which had pulled at least partially onto the right apron indicating a right turn onto Carlyss Drive. Ms. Ouzts, intending to turn left on Louisiana Highway 27, had brought her vehicle to a stop at the intersection. As the van commenced its right turn onto Carlyss Drive, Ms. Ouzts proceeded into the intersection, at which time her passenger, Mr. Fell, observed plaintiffs vehicle and shouted a warning. Ms. Ouzts applied her brakes but skidded halfway into the southbound lane of Highway 27 where the left front portion of her car was struck by the front of the Conner truck.

As a result of the accident, plaintiff sustained certain injuries to his neck and was treated by several physicians and a chiropractor. The extent and causation of plaintiff’s claimed disabilities are vigorously contested by the parties.

The plaintiff requested that this matter be tried to a jury. Counsel for plaintiff submitted several requests for special jury instructions to the court but none relative to an award of damages under comparative negligence. The trial judge gave, among others, the following instructions relative to damages before the jury retired:

“If you find that Charles Conner in part caused his injury that will not prevent recovery by him, it only reduces the amount of his recovery. In other words, if you find that this accident was due partly to the fault of Charles Conner, then you would write in that percentage as your finding on the special verdict form I will give to you. Such a finding would not prevent the plaintiff from recovering. The Court would merely reduce the plaintiff’s total damages by the percentage that you insert. If you find that Charles Conner was negligent, you might find any percentage from 1 to 100....
If you find, in accordance with the instructions I have given you, that any injuries which are subject to this action were a result of the negligence of Charles Conner and also the fault of Patricia Ouzts, you should assign a percentage of such negligence to plaintiff’s conduct and assign a percentage of such fault to defendants’ conduct without reference to the total amount of damages which may have been sustained in this accident.”

Counsel for plaintiff failed to object to the sufficiency of these charges. Nor did he object to the form or substance of the special verdicts submitted to the jury.

The jury returned the following interrogatory verdict sheet:

“VERDICT SHEET
(1) Was the defendant, Patricia Ouzts negligent, and, if so, was this negligence a cause-in-fact of the accident?
ANSWER: Yes /
No_
If your answer is “Yes”, proceed to Question Number 2. If your answer is “No”, you need not proceed any further. Have your foreman sign and date the end of this verdict sheet and notify the bailiff.
(2) Was the plaintiff, Charles Conner negligent, and, if so, was this negligence a cause-in-fact of the accident?
ANSWER: Yes ✓
No_
If your answer is “Yes”, proceed to Question Number 3. If your answer is “No”, proceed to Question Number 4.
(3) If your answer to Question Numbers 1 and 2 are “Yes”, then, taking the combined fault or negligence of Patricia Ouzts and Charles Conner that caused the damages if any, of the plaintiff, as One Hundred Percent (100%) — What percentage of that fault or negligence is attributable to the defendant, Patricia Ouzts, and what percentage if any, is attributable to the plaintiff, Charles Conner?
ANSWER:
(a) Percentage of fault or negligence
attributable to the defendant, Patricia Ouzts: 60 %
(b) Percentage of fault or negligence attributable to the plaintiff, Charles +
Conner: 40 %
TOTAL 100 %
If your answer to Question No. 1 was “Yes”, please answer the following question relating to the amount of damages, if any. Have your foreman sign and date the end of this verdict sheet and notify the bailiff.
(4) What damages, if any, do you find that plaintiff, Charles Conner sustained as a result of this accident? Write in a dollar amount.
ANSWER:
$ 25,000,00
Is/ C. E. Watkins
FOREMAN
Lake Charles, Louisiana
October 22,1982”

At the hearing on plaintiffs motion for reformation of the jury verdict or additur or new trial, plaintiff introduced affidavits of all of the jurors to the effect that the jury award was intended to represent only 60% of the damages suffered by plaintiff, i.e., they intended that the plaintiff receive $25,000.00 without any further deductions.

DENIAL OF MOTION TO REFORM JURY VERDICT

Plaintiff contends that the jury made an error in calculation in answering the jury interrogatories and asserts the right to have the jury verdict reformed under LSA-C.C.P. Article 1951, which provides as follows:

“A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.”

By its clear terms, this article is made applicable to the amendment of final judgments and has no application to reformation of jury verdicts. See Hebert v. Hebert, 351 So.2d 1199 (La.1977). The motion to reform the jury verdict was therefore properly denied.

We also conclude that the trial judge properly denied the motion for new trial and the alternative motion for additur. Plaintiff did not object to the jury instructions at trial and does not now complain of their insufficiency nor does he complain of the interrogatories which in fact track the language of LSA-C.C.P. Art. 1811. As aforestated, at the hearing on the motion, plaintiff relied solely on the affidavits of the jurors to show that the jury was nonetheless confused in answering the interrogatories. The effect of these affidavits is to impeach the verdict of the jury. As a general rule, a juror cannot be heard to impeach the jury’s verdict. Renz v. The Texas & Pacific Railway Company, 138 So.2d 114 (La.App. 3rd Cir.1962); Dieudonne v. Guidry, 336 So.2d 990 (La.App. 3rd Cir.1976); Washington v. Lake City Beverage, Inc., 352 So.2d 717 (La.App. 3rd Cir.1977), writ refused, 354 So.2d 1050 (La.1978); Lachney v. Jones, 373 So.2d 595 (La.App. 3rd Cir.1979), writ denied, 376 So.2d 959 (La.1979).

The purpose of this rule as stated in 53 AmJur. “Trial” Section 1105, frequently cited in Louisiana eases, is as follows:

“The rule is founded on public policy, and is for the purpose of preventing litigants or the public from invading the privacy of the jury room, either during the deliberations of the jury or after-wards. It is to prevent over-zealous litigants and a curious public from prying into deliberations which are intended to be, and should be, private, frank, and free discussions of the questions under consideration. Further, if after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, it would open the door for tampering with jurors and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under sanction of oath.
“Testimony of the jurors to impeach their own verdict is not excluded because it is irrelevant to the matter in issue, but because experience has shown that it is more likely to prevent them to promote the discovery of the truth ...”

In our view, the circumstances of this case provide no reason for a departure from this general rule. 53 Am.Jur. “Trial”, Section 1110, 1115; 88 C.J.S. Trial § 423; Rains v. Diamond M. Co., 396 So.2d 306 (La.App. 3rd Cir.1981), writ denied, 399 So.2d 623 (La.1981).

There is absolutely no ambiguity in the instructions of the court or in the interrogatories submitted to the jurors. The question posed to the jury was “What damages, if any do you find that plaintiff, Charles Conner sustained as a result of this accident? Write in a dollar amount.” In no way can this question be construed as eliciting a net amount response. The court’s instructions were likewise clear and to the effect that the jury should assess the total amount of damages sustained by plaintiff and the court would reduce the plaintiff’s total damages by the percentage of plaintiffs negligence as found by the jury. The jury was not required to calculate anything, only to assess damages. There being no calculation required nor calculation made, there was no error in calculation. To accept plaintiff’s argument in this regard would mean that the jury found plaintiff’s damages to have been $41,666.66 and then reduced it by 40% to reach their verdict of $25,000.00. Such a scenario seems highly improbable.

The case was tried in the courtroom before the jury as a collective body. At the hearing, the evidence was presented by affidavit. We do not know how the jurors were approached, the question-posed, how that question was posed, or the circumstances under which it was posed.

In each jury trial, the jury instructions given to a jury cover many written pages and involve many legal issues. If the losing side in a jury trial is permitted to approach the jurors individually following the trial and probe to find a point in the jury instructions on which the jury was ■confused, no jury verdict would be sacred. The wisdom of the well settled rule discussed above is apparent. We are compelled to agree with the recent statement of our brothers of the Fifth Circuit:

“Finally, the plaintiffs’ complaint that the jury was ‘too confused’ to return a proper verdict is totally without merit. Confusion of the jury is one of the hazards one must foresee when trying a case to a jury; it is the obligation of the parties — or, more properly, their attorneys — to present their side of the evidence in such a way that the jury will understand it ...
“Further, except for polling and certain types of extreme irregularities such as tampering, the law does not allow any inquiry into the method or thought process by which a jury reaches its verdict

Nailor v. International Harvester Company, et al, 430 So.2d 784, (La.App. 5th Cir.1983).

Peremptory grounds for granting a new trial in a jury case are present if it be proven the jury was bribed or behaved improperly so that impartial justice has not been done. LSA-C.C.P. Art. 1814. Otherwise, the trial judge is granted wide discretion in allowing or denying the motion. LSA-C.C.P. Art. 1973. Miller v. Chicago Insurance Company, 320 So.2d 134 (La.1975). We find no error in the trial court’s conclusion to deny plaintiff’s application for new trial.

NEGLIGENCE OF PLAINTIFF

Plaintiff contends that the jury committed manifest error in finding that he was guilty of conduct which was a cause in fact of the accident. Our careful review of the record convinces us that there is merit to this contention.

That the negligence of Ms. Ouzts was a substantial cause of the accident is clearly established in the record and is not at issue on appeal. The defendants contends however that the jury apparently concluded that Conner had pulled at least partially into the northbound lane in order to pass the right turning van in violation of the statutory prohibition against passing in that area and therefore properly found plaintiff guilty of negligence which proximately caused the accident.

Although we find that the record reasonably supports such a factual finding by the jury, this substandard conduct will not support a finding of negligence on the part of plaintiff unless such conduct was a cause in fact of the accident. Breithaupt v. Sellers, 390 So.2d 870 (La.1980); Dixie Drive It Yourself System New Orleans Company v. American Beverage Company, 242 La. 471, 137 So.2d 298 (La.1962); Carey v. Ory, 421 So.2d 1003 (La.App. 3rd Cir.1982), writ denied 426 So.2d 178 (La.1983).

Whether plaintiff’s conduct was a cause in fact of his injury is a question of fact which must be proved by the defendants by a preponderance of the evidence. Coleman v. Jackson, 422 So.2d 179 (La.App. 3rd Cir.1982). In the instant case, plaintiff was traveling on the favored thoroughfare and had the right of way. The defendants concede and all of the evidence indicates that the point of impact was entirely in the southbound lane. Even though plaintiff may have been partially in the northbound lane, in violation of the statutory prohibition against passing, the collision would have occurred irrespective of this conduct and was solely a result of Ms. Ouzts’ conduct. The defendants do not point out, and the record does not reveal, any other substandard conduct on the part of plaintiff which might be considered a cause in fact of his injuries.

We conclude that the jury’s determination that the legal cause of the accident was attributable 40% to the plaintiff is clearly wrong. We therefore reverse this finding and attribute 100% of the fault to the defendant, Ms. Ouzts.

QUANTUM

Plaintiff contends that the amount of the award was so inadequate as to constitute an abuse of the much discretion afforded the trial court on the measure of damages under LSA-C.C. Art. 1934.

In resolving this issue, we are aided by the following expressions of the standard of review:

“Adequacy or inadequacy of an award should be determined by the facts and circumstances peculiar to the case under consideration.”

Boutte v. Hargrove, 290 So.2d 319 (La.1974) at pp. 321-322.

“Unless the record demonstrates that the trial court abused the ‘much discretion’ provided for in fixing damages (C.C.1934), the appellate court should not disturb the award. Fox v. State Farm Mutual Automobile Insurance Co., 288 So.2d 42 (La.1974)- The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court.”

Bitoun v. Landry, 302 So.2d 278 (La.1974) at pg. 279.

The thrust of plaintiff’s argument is that inasmuch as the provable special damages greatly exceeded the total of $25,000.00, the award clearly constitutes an abuse of discretion. However, plaintiff’s argument begs the question of whether plaintiff actually carried the burden of proving the alleged items of special damages.

The evidence presented at trial raises serious issues of causation of plaintiff’s claimed disabilities and the extent of plaintiff’s injuries. Although there were several claims for special and general damages, the jury award was made by unitemized general verdict which leaves the jury’s findings of causation and the extent of plaintiff’s injuries as well as the assessment of particular items of damages unas-certainable.

In view of the conflicting medical testimony which the jury was required to evaluate and the fact that plaintiff’s credibility was seriously put at issue, we find that the evidence reasonably supports a conclusion by the jury that the plaintiff had significant neck problems prior to the subject accident, and that while the subject accident may have aggravated those complaints, he had completely recovered from any injury occasioned by the accident by February of 1981 when he was released to return to full duty.

Under the circumstances, we are unable to find that the jury abused its much discretion.

For the above and foregoing reasons, the judgment of the trial court is amended to increase the award to Charles Conner from the sum of $15,000.00 to the sum of $25,-000.00 and to cast defendants for all costs in the trial court. In all other respects, the judgment is affirmed. Costs of appeal are assessed to defendants.

AMENDED AND-AFFIRMED.


author: DUFRESNE, Judge.

text:
    STATE of Louisiana v. Curtis TULLOS.
    No. 83-KA-597.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 1984.
    Barry Landry, Reserve, for defendant-appellant.
    Harry Morel, Dist. Atty., John Crum, Asst. Dist. Atty., Greg Champagne, Asst. Dist. Atty., 29th Judicial Dist. Court, Ed-gard, for plaintiff-appellee.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Defendant, Curtis Tullos, was convicted by a jury of Second Degree Murder (R.S. 14:30.1) and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence.

From this verdict, the defendant now appeals and has assigned the following error for our review:

1. That the trial judge committed error in allowing the State to introduce selected parts of an inculpatory statement in evidence where the State failed to carry its burden of proof in showing the defendant freely and intelligently waived his right to remain silent.

In the early morning hours of June 29, 1981, Curtis Tullos, the defendant; Joseph Alexia, the victim; and Larry Knight, the state’s witness, were headed north on Interstate 55 from LaPlace to Hammond, Louisiana. Tullos was driving, Alexia was the front seat passenger and Knight was in the back seat. All three had been drinking.

Just before leaving Hammond to go to LaPlace, the ear had backfired and caught fire. The fire was put out and as the three were preparing to leave, Tullos directed Knight, who had been in the front seat, to get in the back seat. Tullos retrieved the bumper jack from the back, threw it inside the car, and since the door was broken, he climbed in through the window.

On their way back to Hammond, Alexia and Tullos got into an argument about Tullos’ little sister, who couldn’t be located at that time. As they approached the Rud-dock exit off the 1-55, Alexia told Tullos to stop the car, that he would get out and find a way home. Tullos pulled over to the side of the elevated roadway and Alexia got out and stood on the embankment next to the guard rail. Tullos slid out after him, taking the bumper jack. The two stood arguing by the side of the roadway near the rear of the car. Knight had been lying down on the back seat, but looked up to see Tullos making a motion as if to strike with the jack in his hand. Although Knight did not see the blow to Alexia, the next thing he saw was Alexia’s feet going over the bridge. Tullos then threw the jack over the side and got back in the car and drove on towards Hammond. No conversation was exchanged between Knight and Tullos. After a brief stop in Pontchatoula for gasoline, Knight fell asleep until they arrived in Brookhaven, Mississippi. It was there that they were arrested and subsequently returned to Tangipahoa Parish.

The body of Joseph Alexia was found lying in the swamp under the 1-55 on June 29, 1981 in St. John the Baptist Parish. A car’s bumper jack was found about four and a half or five feet from the body. The autopsy revealed a total of five cuts from a blunt object on the right side and the back of the head and on the chin. The skull was severely crushed; however, there were no other injuries found on the body. Later investigation revealed particles of hair, blood and flesh on the jack.

On July 1, 1981, the defendant, Curtis Tullos, made a taped statement in which he admitted striking Joseph Alexia on the head with a bumper jack after which the victim went over the side of the elevated portion of the interstate highway. On January 5, 1983, the defense moved for production and discovery of any inculpatory statements made by the defendant while in custody. In a response dated February 23, 1983, the state agreed to provide the defense with a copy of the statement; An amended answer, filed by the state on March 18, 1983, produced an earlier statement made by the defendant, while still in Brookhaven, Mississippi. On March 21, 1983, the state filed a notice of intention to use and introduce the defendant's statement of July 1, 1981, as evidence at the trial.

This notice of intention was filed the day of trial, however, Lá.C.Cr.P. Art. 768 states in pertinent part th,at “[ujnless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement.”

Although it is not clear exactly when the defense was served with notice of the state’s intention, pretrial discovery had been granted to the defendant’s satisfaction.

The record fails to reveal that the defense ever filed a Motion to Suppress either statement made by the defendant. La.C. Cr.P. Art. 703(F), as amended by Acts 1980, No. 431, states in pertinent part that “[f]ai-lure to file a motion to suppress evidence in accordance with this article prevents the defendant from objecting to its admissibility at the trial on the merits on a ground assertable by a motion to suppress.”

Since this change was made relatively recently (but prior to the commission of the crime), there is no caselaw which could have given guidance on this issue. The law is, however, very specific and accordingly, it is suggested that as a result of the defendant’s failure to move to suppress the confession, there is neither statutory nor judicial justification for his objection to its admittance at trial. It follows, therefore, that the defense’s contemporaneous objection at trial was without authority and accordingly, does not preserve the issue of admissibility of the statement for appellate review. However, the issue raised by the defense in his Assignment of Error will, out of an abundance of caution, be considered here.

The defense submits in his brief two issues which should be reviewed to determine if he freely and intelligently waived his Fifth Amendment right to remain silent and his Sixth Amendment right to an attorney. The defense notes first, that the defendant was not advised of his right to an attorney at the outset of his statement and secondly, that the defendant’s request to discontinue the questioning was not honored by the interrogating officers.

The state sought to introduce the confession of July 1,1981, into evidence, but prior to doing so it was encumbant upon the prosecutor to lay a predicate for its introduction, as per La.C.Cr.P. Art. 773. More specifically, La.R.S. 15:451 states, “[bjefore what purposes [purports] to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” The burden of proof falls to the state as per the dictates of La.C.Cr.P. Art. 703(D). State v. Thibodeaux, 414 So.2d 366 (La.1982).

In compliance with the statutorily directed procedure, the state presented the four police officers who participated in the taping of the defendant's statement to offer proof of the voluntary nature of the confession.

Detective Sergeant Oubre testified that no coercion was employed by the officers to obtain the taped statement and although he and Sergeant Rodrigue had personally explained the defendant’s rights to him, no request was made for an attorney. Sergeant Oubre did concede, however, that the officers continued their questioning of the defendant even after he stated that he did not wish to continue.

Detective Sergeant Rodrigue also testified that neither coercion nor duress was used to obtain the statement and that he had verbally advised the defendant of his rights just prior to the recording. He added that the defendant read and signed the rights form at that time. The sergeant agreed that the transcript of the taped statement did not reflect that the defendant was advised of his right to have an attorney present during the statement. Sergeant Rodrigue observed that “[i]t was just something left out.” He also testified that other questions were asked of the defendant after he had made a request to stop, but in his opinion, the defendant “wanted to talk, but he didn’t want to talk in detail of what happened.”

The state presented and marked for identification the rights of arrestee form and waiver signed by the defendant on July 1, 1981, at 2:20 p.m. Also introduced was a transcription of the taped statement given by the defendant on that same date.

After argument from both parties, the court ruled that the taped statement would be admitted into evidence. Since the issues presented by the defense questions the vol-untariness of the statement, a review of the matter should begin' with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Supreme Court unequivoeably held that the state may not introduce any statements obtained from the defendant while under interrogation unless the state can prove that the following warnings were given to and understood by the defendant: “[the] right to remain silent, that any statement he does make may be used as evidence against him, and that he does have a right to a presence of an attorney, either retained or appointed.” Supra, 86 S.Ct. at 1612.

Two of the investigating officers testified that they had verbally advised the defendant of his constitutional rights just prior to the taped statement. The prepared form entitled Statement of Miranda Rights/Waiver of Rights, printed in bold face type, was signed by the defendant and witnessed by Sergeant Rodrigue. The date and time noted op the sheet is July 1, 1981, 2:20 p.m., three minutes before the start of the taped statement. Chief Johnson testified that he knew the defendant to have completed grade school and was capable of reading and understanding his rights.

State v. McNeal, 337 So.2d 178, 180 (La.1976) held that Miranda did not dictate how the accused should be advised of his rights, only that it is incumbent upon the police to make sure that he understand them and that if the defendant should opt to waive his rights, “he do so intelligently and voluntarily.”

Here the defendant had signed the waiver form acknowledging that he understood his rights. As the confession was taped and not transcribed until a later date, signature thereon was not possible. The initial questions on the tape all began with “You understand ...” and the defendant responded affirmatively. Even though the admonition as to the availability of an attorney was omitted, it did appear in the printed rights form.

State v. Jackson, 414 So.2d 310, 312 (La.1982) held that “[t]he admissibility of a confession is in the first instance a question for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the statement will not be overturned unless they are not supported by the evidence, [citations omitted],”

In the instant case, the trial court ruled that the confession was admissible into evidence. The court determined that the defendant had voluntarily signed the waiver of his Miranda rights even though there was a presumption that the warning that he had a right to an attorney may have been omitted in the initial reading of the rights. Since there was a valid waiver, the court concluded that the recorded statement was admissible. We agree. The statement was properly admitted because at its inception, the defendant freely and intelligently waived his rights.

In the second allegation made by the defense, it is suggested that the police persisted in questioning even after he asserted his right to discontinue the interrogation. On cross examination, the investigating officers conceded that their questioning of the defendant was not halted after it had been distinctly requested by him.

The Supreme Court in Miranda further admonished that:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, that interrogation must cease, [footnote omitted]. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Supra, 86 S.Ct. at pp. 1627-28.

The Miranda decision set forth the rule to be followed in the protection of the defendant’s rights, but did not give a clear standard to be applied. The court summarized by saying that “unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored....” the defendant must be advised of what has become to be known as the Miranda rights. Supra, 86 S.Ct. at p. 1630.

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 326, 46 L.Ed. 313 (1975) first devised the standard by which a reviewing court could determine whether the dictates of Miranda had been followed. The court concluded “that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ [footnote omitted].”

The Louisiana courts have applied this standard with a further adaptation. State v. Shea, 421 So.2d 200, 209 (La.1982) determined that “[w]hether an accused’s rights are ‘scrupulously honored’ should depend on the particular facts of each case. Stated another way, it depends of the totality of the circumstances.”

Three recent cases have applied the “totality of the circumstances” approach in determining the admissibility of confessions.

State v. Harper, 430 So.2d 627 (La.1983) dealt with the reception into evidence of taped statements made by the defendant. Although the defendant had previously invoked his right to an attorney, he later chose to waive that right and two days later twice initiated contact with investigating officers. The court noted that “the question of whether the accused’s rights are ‘scrupulously honored’ depends on the totality of the circumstances involved in the particular facts of each case.” Supra, p. 633. Some of the factors to be considered are: who initiated further questioning, time span between invocation of right and later interrogation, disclosure of iMi-randa warnings before each interrogation, whether waiver of rights forms were signed and exertion of pressure on accused by police to exact a confession.

In State v. Germain, 433 So.2d 110 (La.1983) the court applied the holding of Miranda and of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The defendant had chosen to exercise his right to an attorney before making any statement and then later, waiving that right, initiating further conversation with the investigating officer even after repeated warnings of his rights. After reviewing the circumstances, the court found that the defendant had waived his rights under Miranda and the additional requirement of Edwards, that the accused himself initiate any further contact with the police, was also met.

In State v. Mitchell, 437 So.2d 264 (La.1983), the court noted that the trial court had properly analyzed the totality of the circumstances in the case in its determination that the defendant’s confession was freely and voluntarily given.

In the instant case, the defendant opted not to say any more about the incident on the interstate. One of the officers immediately asked for a few more questions in clarification. The defendant did agree to a few more questions.

At the point in the statement that the defendant announced that he did not wish to answer any more questions, the interrogation should have stopped. Up until this point, there was no infringement on the defendant’s rights. However, the defendant had admitted to hitting Joseph Alexia over the head with the bumper jack and throwing him over the side of the elevated interstate highway. What followed the crucial request to stop could be construed as simply a more detailed account of the events of the night in question and therefore harmless error. See State v. Gibson, 391 So.2d 421 (La.1980).

From the transcript, it would appear that the defendant did not want to discuss why he had killed Joseph Alexia. Gleaned from what was testified to by Larry Knight, the argument between Tullos and Alexia centered on Alexia’s knowledge of and behavior towards Tullos’ younger sister, Pam Broussard. When the investigating officers asked about her specifically, Tullos again refused to answer. Except for matters directly concerning his sister, Tullos was cooperative.

From a comprehensive review of the defendant’s statement, we are of the opinion that the introduction of the admissable part of the statement was, at most, harmless error. The defendant had already confessed to the crime and that part of the statement is equally, if not more inculpatory than the latter portion. The record adequately shows that the defendant was advised of his rights and freely and voluntarily made the statement which was admitted into evidence.

This assignment is without merit. The admission of the taped statement of the defendant into evidence does not constitute reversible error.

Accordingly, the conviction and sentence of the defendant, Curtis Tullos, is affirmed.

AFFIRMED.


text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION v. William J. O’DONNELL, et ux.
    No. 83-CA-660.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 1984.

      Boles & Mounger, Charles H. Ryan, Monroe, for plaintiff-appellant.
    Stephen J. Simone, Metairie, Hess & Washofsky, Keith Credo, New Orleans, for defendant-appellee.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This appeal arises from a judgment granting a preliminary injunction of the disbursement of the proceeds of a sale of a house pursuant to executory process, as well as the granting of a stay order of eviction proceedings in the district court.

The facts reveal that plaintiff, Federal National Mortgage Association, (FNMA), instituted a suit by executory process to foreclose on a mortgage against defendants, Mr. and Mrs. O’Donnell, by petition filed September 2, 1982. These defendants were alleged to reside at 6094 Glenn Street in Metairie, Jefferson Parish, Louisiana, the address of the mortgaged property. The order authorizing the issuance of exec-utory process as prayed for was signed by the court on September 7, 1982. On September 20, 1982, the deputy sheriff served the notice of seizure for Mrs. O’Donnell through a thirteen year old named by the sheriff as Tharanta. The notice of seizure which he attempted to serve on Mr. O’Donnell was returned unserved with the notation “subject deceased as per his daughter Tharanta.” Tharanta in reality was Samantha, the granddaughter of the O’Donnell’s.

On October 20, 1982, FNMA filed a supplemental petition alleging that Mr. O’Donnell was deceased and requesting service on Mrs. O’Donnell as surviving spouse in community under C.C.P. Article 2671, which was authorized by order of the court dated October 25, 1982. The deputy attempted to serve Mrs. O’Donnell with this notice of seizure nine times, but was unable to find her in order to make service, and made a return to this effect.

FNMA then petitioned the Court to appoint an attorney to represent Mrs. O’Donnell as surviving spouse in community on the grounds that she was an absentee, and on December 17, 1982, the court appointed Keith Credo as attorney on behalf of Mrs. O’Donnell. Mr. Credo was served and he eventually located Mrs. O’Donnell in an apartment residence in the City of New Orleans. After speaking to her on the telephone, he mailed her copies of all the pleadings by letter dated January 19, 1983, which she received. Mr. Credo then notified the attorney for the plaintiff of Mrs. O’Donnell’s new address in New Orleans and requested plaintiff to proceed no further as defendant claimed the note was not overdue.

FNMA took no further action, and on March 2, 1983, the sheriff sold the mortgaged property to a third party.

Before the sheriff could disburse the funds from the sale, Mrs. O’Donnell obtained a temporary restraining order prohibiting him from doing so, and staying any eviction proceedings of the occupants of the mortgaged property. This was accomplished by a petition filed on March 17, 1983, the day after the recording of the sheriff’s deed, on the grounds that the sheriff’s sale was a nullity for lack of proper service of the notice of seizure on Mrs. O’Donnell.

After conducting a hearing on April 13, 1983, the court held that the manner of service of the notice of seizure on Mrs. O’Donnell was insufficient, and on May 19, 1983, the court signed1 a judgment authorizing issuance of a preliminary injunction (1) prohibiting the sheriff from disbursing the funds from the sale of the mortgage property, and (2) enjoining any eviction proceedings of any occupants from the mortgaged property. FNMA thereupon perfected this appeal of the judgment granting the preliminary injunction and stay order.

Appellant (FNMA) alleges two issues for review by their appeal:

ISSUE NO. 1

In proceeding to foreclose on a mortgage by executory process, which requires the service of notice of seizure where one of the mortgagors of community property is deceased, and the plaintiff proceeds only against the surviving spouse in community under Code of Civil Procedure Article 2671, is service of the notice of seizure on the survivor once only, legally sufficient and complete, or must the surviving spouse be served twice, once in her individual capacity, and a second time in her capacity as surviving spouse in community of the deceased mortgagor?

On this issue, Mrs. O’Donnell asserts that the domiciliary service was insufficient to provide notice in that due process requires that defendant be apprised of the nature of the claim. Citing Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), appellee quotes:

“parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified (citations omitted). It is equally fundamental that the right to be heard must be granted at a meaningful time and in a meaningful manner.”

Mrs. O’Donnell submits that notification in a meaningful manner implies notice of the nature of the claim. Further, while Mrs. O’Donnell doesn’t so state, it seems that personal service would be required for a meaningful notice in executory process. Executory process, it should be noted, is a harsh remedy whose procedure must be complied with strictly, LSA-C.C.P. art. 2631, Commercial Credit Corporation v. Nolan, 385 So.2d 1246; (La.App. 3rd Cir.1980), and whose enforcement has been the subject of close due process scrutiny in the past. Thus, the trial court did not err in failing to relate the notice back to this service.

ISSUE NO. 2

When valid and complete service of the notice of seizure in a proceeding to foreclose on a mortgage by executory process has been made on an attorney validly appointed to represent an absentee defendant, is it necessary in order to satisfy requirements of due process of law to serve that defendant again after her whereabouts and location are known and she becomes available for personal service?

FNMA claims that since there is no specific requirement as to how notice of seizure is to be made upon the surviving spouse in community, appellant is free to make this notice in any way possible. Mrs. O’Donnell urges that this argument totally ignores the concept of jurisdiction. The Code of Civil Procedure contemplates certain mechanisms by which a court may acquire jurisdiction over defendants. LSA-C.C.P. Art. 6 provides:

“Jurisdiction over the person is legal power and authority to render a personal judgment against a party to an actual proceeding. This jurisdiction must be based on:
(1) Service of process on the defendant, or on his agent for service of process;
(2) Service of process on the attorney at law appointed by the court to defend an action or proceeding brought against an absent or incompetent defendant who is domiciled in this state; or
(3) The submission of a party to the exercise of jurisdiction over him personally by the court, or his express or implied waiver of objections thereto.

Mrs. O’Donnell notes that inherent in this most basic procedural article is the concept that the court only has jurisdiction over those parties who are properly brought before it. A court does not have blanket authority, that is authority to do anything not prohibited, as FNMA is apparently arguing. This most basic concept dates back to Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878).

Thus, Mrs. O’Donnell states that the court lacked jurisdiction to deny any rights belonging to Mr. O'Donnell, without prior notice to his appropriate representative that these actions were to be taken. This argument may have also had merit in that once the defendant became deceased, Mrs. O’Donnell became the representative of his interest and, under that capacity, should have been served, as FNMA attempted to do, personally as a surviving spouse in community.

The arguments related to whether appointment of the curator was proper, as Mrs. O’Donnell was not an absentee, was not appealed by either party and cannot now be addressed.

Likewise, both FNMA’s assertions related to the propriety of the nullity action and Mrs. O’Donnell’s reply in that regard are not properly before this court. That issue is one to be determined on the merits as no evidence was presented in the injunction hearing in this regard. The trial court in its ruling made three findings of fact:

(1) That the service of the first notice of seizure by domiciliary service was effected on Mrs. O’Donnell on September 20, 1982,

(2) That the grounds for the appointment of the attorney for Mrs. O’Donnell on the grounds that she was an absentee was proper;

(3) That, despite the foregoing, after the plaintiff (FNMA) became aware of the correct address of Mrs. O’Donnell in New Orleans, plaintiff was legally obligated as a matter of due process to have service of the notice of seizure made on her at her apartment in New Orleans; and, because of failure to do so, the service of the notice of seizure was not legally completed and was insufficient for purposes of due process in a foreclosure by executory process.

As a matter of law, a preliminary injunction is an interlocutory procedural device designed to preserve the existing status pending a trial of the issues on the merits of the case. Even though the hearing on the summary proceedings to obtain the preliminary injunction may touch upon or tentatively decide merit issues, the principal demand is determined on its merits only after a full trial under ordinary process. In the Matter of the Liquidation of Kenilworth Insurance Co., 428 So.2d 1187, writs denied (La.App. 5th Cir.1983). This rule is subject to the exception that if the parties have expressly agreed to submit the case for final decision at the hearing on the rule for a preliminary injunction, the ruling on the preliminary injunction may definitively dispose of the merit issues. Smith v. West Virginia Oil & Gas Co., 373 So.2d 488 (La.1979), and cases cited therein.

The applicant for a preliminary injunction need make only a prima facie showing that he will prevail on the merits. The preliminary injunction requires less proof than is required in an ordinary proceeding for permanent injunction. See General Motors Acceptance Corp. v. Daniels, 377 So.2d 346 (La.1979). While a preliminary injunction is an interlocutory judgment, LSA-C.C.P. Art. 3612 allows appeals of right from preliminary injunctions. This article is an exception to the general rule that no appeals may be taken from interlocutory judgments. See State ex rel. Guste v. City of New Orleans, 363 So.2d 678 (La.1978).

The trial judge in a preliminary injunction hearing has great discretion to grant or deny the relief. Our review is limited to whether the trial court abused its discretion in this regard. For that reason, the question before this court is simply whether plaintiff presented a prima facie case that she can prevail on the merits. At the hearing on the injunction, the parties and the court, for some reason, restricted the evidence to the question of proper notice. As recited in the facts, the court found in plaintiffs favor because it was concerned with the possible violation of Mrs. O’Donnell’s due process rights in light of the heavy scrutiny executory process is subject to. FNMA, however, argues that the notices received, either domiciliary or through the curator, were sufficient under the law to apprise Mrs. O’Donnell of the pending sale. Whatever the effect of domiciliary service, which may be questionable under due process, the appointment of a curator in executory proceedings is provided for in LSA-C.C.P. Art. 2674, “(1) when the defendant is an absentee.” All proceedings against such a defendant shall be conducted contradictorily against the attorney appointed to represent the unrepresented party. LSA-C.C.P. Art. 5091.

The jurisprudence does not require personal service after the curator has been served and the whereabouts of the party become subsequently known. Further, appellant urges that plaintiff had actual knowledge as evidenced by the record; and thus, appellee’s due process rights could not have been violated.

Our research indicates, at least to the issue of service on the curator, that FNMA may be technically correct in that procedural due process only guarantees that a person have prior notice and an opportunity to be heard before his property is taken. State v. Mitchell, 337 So.2d 1186 (La.1976). However, due process also “guarantees no particular form of procedure, it protects substantial rights.” NLRB v. Mackay Co., 304 U.S. 333, 351, 58 S.Ct. 904, 913, 82 L.Ed. 1381 (1938). (Emphasis added).

Despite the foregoing, our review of the record indicates a potential abuse of the executory proceedings subsequent to the notice received by appellee. The question arising from the evidence is whether the foreclosing appellant behaved in a manner calculated to prevent appellee from pursuing her legal remedies. If such is shown to be the case, i.e. that appellant decided to go through with the sale, after possibly agreeing to stop the sale, it is suggested, additional notice would have been required to protect appellee’s due process rights.

In conclusion, a review of the law and the evidence indicates the trial judge did not abuse his discretion in granting the injunction and stay order in that a serious question was presented as to the possible violation of Mrs. O’Donnell’s constitutional right to due process. Since this is a preliminary matter, the issues related therein should be fully litigated at a trial on the merits and the case remanded for that purpose.

We need not address the domiciliary service issue in that a prima facie case of improper service was presented in the trial court due to the evidence relating to events following proper notice on the curator. Mrs. O’Donnell has, in addition, provided meritorious argument that the domiciliary service required personal notice under due process and that, as her husband was deceased, FNMA necessarily was required to serve the remaining spouse in her represented capacity as the interests of the spouses changed by the husband’s death. As to curator’s service, that service was sufficient, but there may have been a need for new service following any agreements to stop the sale. The other arguments relate to issues not properly before the court and need not be addressed here.

For the foregoing reasons, the judgment of the trial court is affirmed and the case is remanded for further proceedings.

AFFIRMED AND REMANDED.


author: CHEHARDY, Judge.

text:
    Angela Gagliano TRINCHARD v. Glen TRINCHARD. Glen G. TRINCHARD v. Angela Gagliano TRINCHARD.
    Nos. 83-CA-697, 83-CA-698.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 1984.
    Morphy, Faulkner & DiMaria, Alvin J. Dupre, Jr., Metairie, for Angela Gagliano Trinchard, plaintiff-appellant.
    David A.M. Ware, and Evan Trestman, New Orleans, for Glen Trinchard, defendant-appellee.
    Before CHEHARDY, BOWES and GAU-DIN, JJ.
   CHEHARDY, Judge.

This is an appeal by Angela Gagliano Trinchard from a judgment awarding her the sum of $100 per month as child support for her two sons, aged three and four.

The evidence presented at trial of the rule to set child support was minimal. The parties stipulated to each other’s expense lists. The evidence established that Mrs. Trinchard earns a net monthly salary of $850 and interest income of approximately $80 a month, totaling $930 a month. She listed total monthly expenses, for both herself and the children, as $1,724. Glen Trinchard, appellee, stated his income at present is entirely from worker’s compensation benefits of $183 per week (approximately $793 per month). He listed his total expenses as $1,565.

Based on these lists, and perfunctory testimony relating thereto, the trial judge set the child support at $100 per month.

Mrs. Trinchard’s expense list is as follows:

Rent $375.00

Groceries 150.00

Utilities 85.00

Telephone 26.00

Medical 37.00

Insurance 66.00

Haircuts 12.00

Clothing Self 50.00

Children 50.00

Personal items 35.00

Child care 315.00

Taxes 215.00

Recreation 125.00

Gifts 58.00

Vacation 125.00

Total $1,724.00

Mr. Trinchard listed the following expenses:

Rent $350.00

Groceries 100.00

Utilities 80.00

Telephone 25.00

Medical 50.00

Insurance 70.00

Car note 215.25

Car operation and maintenance 50.00

Haircuts 10.00

Clothing 25.00

Personal items 50.00

Taxes 200.00

Gifts 100.00

Vacation 200.00

Installment debt 40.00

Total $1,565.25

The trial judge is vested with great discretion in determining the amount of child support; absent a showing of abuse of discretion, the appellate court will not disturb the trial court’s award. Hudson v. Hudson, 421 So.2d 1188 (La.App. 2 Cir.1982). It is obvious that neither party has enough income to cover his or her minimum expenses, even if their lists are pared to the bare necessities. Accordingly, we cannot say the trial judge erred in awarding the mother only $100 per month for the two children.

Appellant has cited this court’s decision in Custard v. Custard, 424 So.2d 474 (La.App. 5 Cir.1982). In that case, we stated, “We are of the opinion that the trial judge erred as a matter of law in giving greater weight to the husband’s inability to pay than the necessities of the children and their best interest.” Appellant would have us apply the same reasoning to the case at bar.

The Custard case was distinguishable on its facts, however. The father, from whom the child support was due, carried two obligations which caused his financial problems, the first being a house mortgage note of $754.13, and the second the sum of $367.48 for payment of loans or charge accounts. Our decision that Mr. Custard should pay an increased amount of child support was implicitly based on the principle that neither equity nor practical inability to pay overrides the support obligation imposed on a parent of minor children or allows a parent to avoid paying his or her share of the obligation where the inability arises solely from that parent’s own neglect and failure. Moore v. Moore, 380 So.2d 180 (La.App. 2 Cir.1980).

Here, there is no showing that Mr. Trinchard’s inability to pay arises from his own neglect or failure. Mr. Trinchard’s worker’s compensation payment for permanent total disability, minus attorney’s fees on the worker’s compensation, gives him a take-home pay of only $146 per week. He has been ordered to pay $100 a month; considering that his income is inadequate to cover his basic living expenses, we find no abuse of discretion in the award made by the trial judge.

Needless to say, Mrs. Trinchard may seek an increase in child support should an appropriate change of circumstances occur.

Considering the foregoing, the judgment of the district court is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    John LIGGIO, Sr. v. Hilmi JUDEH, et al.
    No. CA-1704.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 8, 1984.
    T. Robert LaCour, Kenner, for plaintiff-appellee.
    Allen I. Boudreaux, Jr., McGinity & Bou-dreaux, New Orleans, for defendants-appellants.
    Before GARRISON, BARRY and LO-BRANO, JJ.
   JUDGMENT ON MOTION TO DISMISS

BARRY, Judge.

Plaintiffs filed a rule for possession of premises alleging defendant violated their lease by failing to obtain proper insurance and maintain the property. Defendants answered that the premises were fully insured and the lease had not been violated. The trial judge granted the eviction, ordered the premises vacated, and defendants appealed suspensively.

Plaintiff now seeks to dismiss the appeal pursuant to LSA-C.C.P. Art. 4735 which provides:

An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction.... (Emphasis added.)

Defendants’ opposition asserts that plaintiffs’ motion is based on an error or defect and pursuant to C.C.P. Art. 2161 the motion cannot be maintained unless filed within three days of the return date or the date the record or appeal is lodged. However, a motion to dismiss based on Art. 4735 strikes at the foundation of defendant’s right to a suspensive appeal, is not an error, defect or irregularity as contemplated by Art. 2161, and need not be filed within three days.

Defendants also argue that affirmative defenses were introduced by testimony at trial without objection and under LSA-C. C.P. Art. 1154 the pleadings were enlarged to include these defenses, meeting Art. 4735 requirements. We disagree.

Defendants’ Answer amounted to a general denial without an affirmative defense because it did not raise new issues which would defeat the lessor’s claim, even if the claim was found to be true. Modicut v. Bremer, 398 So.2d 570 (La.App. 1st Cir.1980). To suspend a judgment a defendant must literally comply with Art. 4735, Rourke v. Cloud, 398 So.2d 57 (La.App. 3d Cir.1981). Testimony under oath does not meet the requirement. See Ducote v. Callico, 307 So.2d 642 (La.App. 4th Cir.1974). McMillan v. Chauvin, 281 So.2d 181 (La.App. 4th Cir.) writ denied 283 So.2d 770 (La.1973).

Failure to comply with Art. 4735 prohibits a suspensive appeal, but the appeal can be maintained as devolutive. Freeman v. Coglaiti, 411 So.2d 471 (La.App. 1st Cir.1981).

Therefore, IT IS ORDERED that defendants’ suspensive appeal be converted to a devolutive appeal.


author: GULOTTA, Judge.

text:
    The IRWIN BROWN COMPANY v. MORTON’S AUCTION EXCHANGE, INC.
    No. CA-1004.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1984.

      Satterlee, Mestayer & Freeman, Henry F. Mestayer, New Orleans, for plaintiff-ap-pellee.
    Rudolph R. Schoemann, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and LO-BRANO, JJ.
   GULOTTA, Judge.

Morton’s Auction Exchange, Inc. (Morton’s) appeals from a $4,140.27 judgment plus interest, costs and attorney’s fees in favor of Irwin Brown Company (Irwin Brown) for freight forwarding services rendered on an open account. We affirm, except as to the attorney’s fees award.

Irwin Brown, a freight forwarder and custom house broker for Morton’s, a New Orleans antique dealer, filed suit on an open account for amounts pertaining to two invoices for services rendered in arranging the export of antiques from Morton’s to an antique dealer in England and a separate import from England to New Orleans. Morton’s reconvened, alleging that Irwin Brown’s incorrect advice as a freight forwarder had caused Morton’s to pay extra charges for the shipment to England and an earlier export to Venezuela.

After a trial on the merits, the trial court rendered judgment in favor of plaintiff for the balance due after applying certain credits in Morton’s favor. The judgment further dismissed Morton’s reconventional demands.

Appealing, Morton’s contends the trial court erred in: 1) failing to find plaintiff’s claim has prescribed; 2) dismissing Morton’s reconventional demand based on plaintiff’s negligent performance; and 3) awarding attorney’s fees to plaintiff. Although we reject the first two contentions, we reverse and set aside the award of attorney’s fees.

PRESCRIPTION

Relying on LSA-C.C. Arts. 3534 and 3536, Morton’s contends that Irwin Brown’s suit is untimely because it is one for “vessel freight”, which is subject to a one year prescriptive period. According to Morton’s, plaintiff “stands in the shoes of the ocean carrier for whom it prepared the bill of lading for the freight and the delivery of merchandise shipped aboard the ocean carrier’s vessel” and cannot assert a claim in open account to avail itself of the three year prescriptive period under LSA-C.C. Art. 3538. We disagree.

Irwin Brown arranged the shipping for Morton’s, but did not transport or carry the goods shipped. Under these circumstances, plaintiff’s claim is not for “vessel freight” or “delivery” but rather for services rendered as the freight forwarder. The one year prescriptive periods of LSA-C.C. Arts. 3534 and 3536 have no application to our case.

Both Morton’s vice-president, David Goldberg, and plaintiff’s export manager, Virginia West, testified that Irwin Brown had acted as a freight forwarder for Morton’s for eight or nine years before the instant dispute. A ledger card- recording Morton’s account with Irwin Brown was introduced into evidence. This evidence establishes the existence of an open account, “... a situation where there have been running or current dealings between the parties and the account has been kept open with the expectation of further dealings.” Colonial Products Co. v. Park Place Homes, Inc., 282 So.2d 574 (La.App. 4th Cir.1973). Indeed, Goldberg himself testified, “... we had an open account.”

Accordingly, we conclude the trial court properly found plaintiffs claim to be in open account and, therefore, timely filed.

RECONVENTIONAL DEMAND

We likewise reject Morton’s argument that the increased shipping costs resulted from plaintiff’s fault or neglect. According to Morton’s, Irwin Brown’s misquotation of shipping rates, improper preparation of .the bill of lading, and wrong choice of an ocean carrier caused defendant to incur unexpected shipping charges.

The evidence discloses that Morton’s vice-president, David Goldberg, telephoned Irwin Brown to inquire about the rates for shipping a 20 ft. container of used household furniture from New Orleans to British Antique Exporters in Grennock, England. Irwin Brown’s export manager, Virginia West, quoted Goldberg the applicable commercial rates based on volume and weight for such furniture. These rates also appear in a letter from Irwin Brown to Goldberg. Goldberg did not inform plaintiff that the shipment in fact contained antiques, which are shipped at a higher rate than used household furniture.

When Morton’s could not pack all the items into the one container, Goldberg called Irwin Brown to inquire whether the excess cargo could be shipped in a separate 11 ft. crate, and was told by West that the same rates applied. Morton’s also sent Irwin Brown a letter listing dimensions, weight and in toto values of the container and crate to be shipped to British Antiques Exporters. Irwin Brown did not have an itemized list of “circa values” indicating the age of the objects shipped, however.

Based on Goldberg’s information, Irwin Brown subsequently prepared a bill of lading designating the shipment from “Morton’s Auction Exchange” to “British Antique Exporters” and describing the cargo as “USED HOUSEHOLD FURNITURE SET UP”. The agent for the steamship company carrying the goods, Atlanticargo, then rated the bill of lading according to established tariffs.

Morton’s thereafter received a copy of the bill of lading listing freight charges in the amount of $3,317.00. This sum included a cost of $1,250.00 to ship the 20 ft. container and $2,067.00 to ship the smaller crate.

When Goldberg complained to Irwin Brown about this differential in rates, he was informed that a clerk at the shipping company had erroneously billed the shipment as a “personal” rather than a “commercial” one. Personal, non-commercial shipments are billed at cheaper rates for containerized cargo, but at higher rates for separate “break bulk” or non-containerized cargo (such as a smaller crate). Commercial shipments, on the other hand, are billed at a uniform rate whether or not containerized, though at a higher rate than personal shipments. Plaintiff’s president, Sandra Brown, further informed Goldberg that the shipping company would issue a corrected statement at an increased charge for this commercial shipment.

Goldberg thereupon told Brown that the shipment was a “personal” one that he was sending to himself. At Goldberg’s request, Brown drafted a second bill of lading designating the cargo as “USED HOUSEHOLD PERSONAL EFFECTS NOT FOR RESALE”. This revised document named “David Goldberg” as both the shipper and consignee, and “Norman Lefton”, who was the owner of British Antique Exporters, as the party to be notified in England.

When the shipment reached England, however, it was inspected by “The Adherence Group”, (TAG), a policing neutral body hired by steamship companies to handle cargo inspection. TAG had been alerted by an agent in its New Orleans office who was suspicious of the consignment by Morton’s of “Used Household Furniture” to British Antique Exporters. TAG discovered the shipment, in fact, contained antiques, and Morton’s ultimately paid $10,-126.03 in shipping charges at the higher rate applicable to antiques.

It is Morton’s contention that Irwin Brown was negligent in failing to advise Morton’s that the shipment could be checked by TAG, in failing to segregate the antiques from the non-antiques to avoid having the entire shipment go at the higher rate, and in improperly preparing bills of lading that obviously indicated on their face that an antique dealer was sending antiques to another dealer. Furthermore, according to Morton’s, the cargo could have been shipped at a much reduced cost on another independent ocean carrier, the Bank Line, not policed by TAG. We disagree.

It is apparent from the testimony of Virginia West and Sandra Brown, plaintiff’s employees, that the initial freight quotations and the preparation of the bills of lading were based upon the cargo description furnished by Morton’s to Irwin Brown. The evidence supports conclusions that plaintiff did not know the shipment contained antiques, and that Irwin Brown correctly quoted rates to Morton’s for a commercial shipment of household furniture. It was only after investigation of the shipment by TAG that the true nature of the shipment was ascertained and the higher shipping rate for antiques imposed. The increase in charges resulted not from any negligence or fault on the part Irwin Brown, but rather from Morton’s failure to furnish complete information to its freight forwarder.

Morton’s further contends that the increased shipping costs resulted from Irwin Brown’s failure to use a “non-conference” shipping company charging lower rates and not subject to inspection by TAG.

Although Robert Cisco, a custom house broker, testified that the goods could have been shipped for about $1,600.00 from New Orleans to England on the non-conference “Bank Line”, he had no documentation to indicate it was operating at the relevant time. Moreover, Donald Thomas of TAG testified that all non-conference carriers would have rates approximately the same as the Atlanticargo Service used by Irwin Brown. Based on credibility, the trial judge properly concluded that Morton’s had suffered no loss attributable to Irwin Brown concerning the shipment to England.

Furthermore, evidence is lacking to support Morton’s claim for loss in connection with the earlier shipment to Venezuela. Morton’s asserted in its amended re-conventional demand that it had been charged $11,114.65 to ship this cargo but had been quoted a price of only $1,600.52 by Irwin Brown.

According to Sandra Brown, plaintiff correctly quoted Morton’s the shipping “rate” per unit to Venezuela, but never quoted a “total figure” for the cost of the actual shipment. Although the $1,600.52 figure would be correct for shipping only one container with less expensive contents, Morton’s in fact shipped three containers of higher value to Venezuela, and was correctly billed $11,114.65, in accordance with the previously quoted rates. This testimony considered, we cannot say that the trial judge erred in dismissing defendant’s re-conventional demand for the “excess” charge on the Venezuelan shipment.

ATTORNEY’S FEES

The trial court’s award of 25% attorney’s fees to plaintiff was pursuant to LSA-R.S. 9:2781, which authorizes an award of reasonable attorney’s fees for the prosecution and collection of a claim on open account. Morton’s attacks Irwin Brown’s entitlement to attorney’s fees on two grounds: 1) that the claim asserted is one based on a contract of affreightment or carriage and not on open account; and 2) that plaintiff has failed to comply with LSA-R.S. 9:2781’s requirement of a correct written demand setting forth the amount owed as a prerequisite to recovery of attorney’s fees.

Because we have earlier concluded in this opinion that plaintiff’s claim is on open account, we reject Morton’s first contention on the attorney’s fee question. We do find merit, however, to the argument that plaintiff has failed to comply with the statutory requirements of LSA-R.S. 9:2781 for recovery of attorney’s fees in an open account suit.

In order to recover attorney’s fees under this statute, the claimant must furnish a “written demand ... correctly setting forth the amount owed and a copy of the invoices in support thereof_” Un-. less the amount demanded is correct, attorney’s fees are not due. See A Better Place, Inc. v. Giani Investment Co., 445 So.2d 728 (La.1984); Ferd. Marks-Smither & Co. v. Homes Furnishing, 430 So.2d 239 (La.App. 4th Cir.1983); Fleet Tire Serv v. Schwegmann Bros., Etc., 408 So.2d 54 (La.App. 4th Cir.1981); and Scarborough v. Nelson, 371 So.2d 1261 (La.App. 3rd Cir.1979).

Irwin Brown’s demand letter to Morton’s and the later petition were both for $6,323.88, the total of a $4,314.03 invoice (less a $945.73 credit invoice) and a $2,960.58 invoice. At trial, however, Irwin Brown’s president, Sandra Brown, testified that the $2,960.58 invoice was subject to a $2,188.61 credit. Although the amount of the judgment indicates the trial judge properly included both credits in his calculation, the amount owed is not the same as the amount previously demanded. Under these circumstances, plaintiff cannot recover attorney’s fees in accordance with LSA-R.S. 9:2781.

Finally, we reject Brown’s claim that Morton’s is now precluded from asserting the incorrectness of the demand since it failed to raise it during trial. The statutory entitlement to attorney’s fees requires a written demand for payment for the correct amount. It is plaintiff's burden to establish entitlement to attorney’s fees. It is not defendant’s responsibility to point out how plaintiff failed to establish that claim. We cannot conclude that defendant’s failure to raise this argument in the trial court prevents him from raising it in this court.

Plaintiff’s reliance on LSA-C.C.P. Art. 1635 is misdirected. In this case, we are not concerned with an objection to the court’s ruling or order as contemplated in the codal provision, but with an argument directed to the correctness of the trial court’s judgment presently on appeal. Under these circumstances, we find no merit to plaintiff’s argument.

Accordingly, the judgment of the trial court in favor of the Irwin Brown Company and against Morton’s Auction Exchange, Inc. in the sum of $4,140.27 with interest from judicial demand and all costs, is affirmed. That portion of the judgment awarding attorney’s fees of 25% of the principal amount of the judgment with interest is reversed and set aside. Costs of the appeal are to be divided equally between the parties.

AFFIRMED’ IN PART AND REVERSED IN PART.

      . LSA-C.C. Art. 3534 provides in part:
      The following actions are prescribed by one year: ... That for the payment of the freight of ships and other vessels, the wages of the officers, sailors and others of the crew....
      LSA-C.C. Art. 3536 provides in part:
      The following actions are also prescribed by one year: ... That for the delivery of merchandise or other effects, shipped on board any kind of vessels....

      . After the ship had departed from New Orleans, Strachan Shipping Company, the shipping agent, issued a correction notice charging $7,472.25 at the uniform commercial rate of $205.00 per cubic foot of cargo for the entire shipment. This revised rate was the same as that originally quoted by Irwin Brown to Morton’s.

      . LSA-C.C.P. Art. 1635 provides:
      "Formal exceptions to rulings or orders of the court are unnecessary. For all purposes it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.”