text:
    Kemp WESLEY, Plaintiff-Appellant, v. CLAIBORNE ELECTRIC CO-OP, INC., Nationwide Insurance Company; and Federated Rural Electric Insurance Company, Defendants-Appellees.
    No. 16027-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.
    Rehearing Denied March 28, 1984.
    Writ Denied May 25, 1984.

      McKinley & O’Neal by Hodge O’Neal, III, Monroe, for plaintiff-appellant.
    Mayer, Smith & Roberts by Walter 0. Hunter, Jr., Shreveport, for defendants-ap-pellees Claiborne Electric and Nationwide Ins. Co.
    Theus, Grisham, Davis & Leigh by J. Bachman Lee, Monroe, for defendant-appel-lee Federated Rural Electric Ins. Co.
    Before PRICE and FRED W. JONES, Jr., JJ„ and WILLIAM A. CULPEPPER, J. Pro Tern.
   PRICE, Judge.

This is a suit for workers’ compensation filed by claimant against his employer, its former compensation insurer, and its present compensation insurer. Claimant appeals from the trial court holding that any claim arising from a heart attack which he suffered in October 1979 has prescribed.

On April 23, 1982, claimant filed a petition for workers’ compensation benefits, alleging that he suffered a heart attack while on the job sometime prior to May 1, 1981, and claiming full compensation for total permanent disability. Federated Rural Electric Insurance Co., compensation carrier for Claiborne Electric since June 1, 1980, simply denied the occurrence of a job-related accident. Claiborne Electric and Nationwide Insurance Co., the compensation carrier until May 31, 1980, filed an exception of prescription, contending that claimant’s heart condition was the result of a previous heart attack which occurred in October 1979 and any compensation claim arising therefrom has now prescribed since filed more than two years after any accident.

At the hearing on the exception, the following chronology was established. Claimant suffered his first heart attack in October 1979 while on the job, had triple bypass surgery, and returned to work in March 1980. The employer elected to handle this claim through its group medical insurance carrier and completed the necessary forms, which claimant signed. All of his medical expenses were paid and claimant received some sick leave and/or vacation payments from defendant during this time. He also received a lump sum payment of $800 some time in March 1980.

"Claimant returned to work performing the same labor, cutting and clearing rights-of-way, in March 1980 and worked until April 1981 when he suffered his second heart attack. He attempted to return to work again after this incident, but finally quit on May 4, 1981. He received sick pay and vacation pay thereafter until the last week in May. Then in August 1981 claimant received a check for $550.

Claimant completed the fourth grade in school, but cannot read or write other than to identify and sign his name. All insurance claim forms were completed by the employer which elected to treat his heart condition as nonwork-related. Claimant admittedly did not know the difference between his employer’s group insurance carrier and its workers’ compensation carrier.

The trial court held that any claim arising from claimant’s October 1979 heart attack has prescribed under La.R.S. 23:1209 and dismissed any claim arising therefrom as to both the employer and the compensation insurer. Plaintiff appeals, contending the trial court erred in failing to find an interruption or suspension of prescription, or failing to estop defendants from urging a plea of prescription of the October 1979 occurrence.

La.R.S. 23:1209 provides for three different time limitations on workers’ compensation claims: one year from the date of the accident, one year from the last compensation payment for total disability or three years from the last payment for partial disability, or one year from the time the injury develops if not immediately manifest, but no more than two years after the accident. Since this claimant was aware of the manifestations of his disabling heart condition by October 1979, any claim arising from that occurrence would not be timely unless some interruption or suspension of the time limitation is established. While this issue may appear to be moot in light of the later incident, its significance lies in the possibility that it might later be determined on the merits that claimant's sole claim arises from the 1979 occurrence and the 1981 occurrence was simply a manifestation of that condition. We therefore must consider the correctness of the trial judge’s determination that claimant failed to establish a tolling of the prescriptive period.

There is no dispute that the first heart attack occurred in October 1979 and no suit was filed until April 1982. Thus, the suit is prescribed on its face and the burden falls upon claimant to show that the running of the time limitations was interrupted in some manner.

It is well settled that an employer who lulls an injured employee into a false sense of security may not later interpose a plea of prescription to the worker’s untimely suit for compensation benefits. Landry v. Ferguson, 279 So.2d 185 (La.1973); Dupaquier v. City of New Orleans, 260 La. 728, 257 So.2d 385 (1972). The claimant in such a case must demonstrate that “words, actions, or inactions on the part of the employer or insurer induced him to withhold suit until the time for prescription had passed.” Miller v. Olinkraft, Inc., 395 So.2d 902 (La.App. 2d Cir.1981); Malone & Johnson, Workers’ Compensation, § 384, 13 La.Civ.Law Treatise 261 (2d Ed.1980).

This claimant completed the fourth grade but remained unable to read or write. He completed no forms, merely signed what the employer told him to sign and did not know the difference between sickness and accident benefits under the group medical insurance and workers’ compensation benefits. His medical expenses were all taken care of during both illnesses. He received weekly checks from his employer for a time while he was unable to work and a later lump sum payment which remains unexplained. Shortly thereafter he returned to work and continued his employment until May 1981 sometime after the second heart attack.

We believe that where a claimant shows that during his period of disability, he has received wage continuation payments from or through his employer which could reasonably be construed as compensation benefits or payments in lieu of compensation, the defendant must bear the burden of showing claimant actually understood the nature of the payments or was unreasonable in the construction he placed on the payments. See Williams v. International Lubricant Corporation, 341 So.2d 17 (La.App. 4th Cir.1976), writ denied 342 So.2d 872 (La.1977). It is clear that while this claimant did not understand the nature of the payments he received while unable to work, he believed his employer was overseeing his interests and making payments in lieu of regular wages lost as a result of his heart condition.

As stated by the court in Williams:

... An employee, with a layman’s knowledge of statutory entitlement to some type of benefits after an injury occurs on the job, is easily subject to intentional or unintentional delusion when the employer shortly after disability initiates payment of benefits in an amount equal to or greater than maximum compensation benefits. Under such circumstances it is reasonable for an employee (who receives no contrary indication from his employer at that time) to believe that the payments are in fulfillment of his employer’s statutory obligation to compensate him for the loss of salary. It is also reasonable that during the period of the payments the employee would refrain from consulting counsel in the belief that he is receiving the benefits to which he is entitled. On the other hand, the employer is well aware of the difference between compensation benefits and sick pay benefits, and in order to claim that prescription ran during the payment of sick pay benefits, the employer must show that the employee was not reasonable in such a belief.

This particular claimant obviously had a less than average knowledge of the benefits to which he was entitled and there is no evidence to indicate his employer even attempted to explain the nature of the payments made. Inasmuch as his medical needs were being met and he received payments with which to meet his living expenses until he was able to return to work, he evidently did not consider seeking counsel from anyone as to his right to compensation. It is thus clear that this claimant was unaware that these payments were sick pay benefits rather than payments from his employer to compensate for his loss of income. He was thus lulled into a sense of security, whether intentionally or unintentionally, which caused him to withhold assertion of his claim until he found himself permanently disabled and receiving no benefits from any source.

Under the liberal rules of construction afforded the workers’ compensation statute, we find these defendants are estopped to plead prescription with regard to claimant’s October 1979 heart attack.

For the reasons assigned, the judgment appealed is reversed and the case is remanded for further proceedings consistent with the holding of this opinion.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Larry G. EVANS, Plaintiff-Appellant, v. CENTURY READY MIX CORPORATION, et al., Defendants-Appellees.
    No. 16041-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      Joe D. Guerriero, Monroe, for plaintiff-appellant.
    McLeod, Swearingen, Verlander & Dollar by Richard A. Bailly, Monroe, for defendants-appellees.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Plaintiff sued defendant for damages predicated on breach of a sales contract between the two parties. The trial court sustained defendant’s exception of no cause of action and dismissed plaintiff’s claim. He appeals.

The exception of no cause of action questions whether the law affords any remedy to plaintiff under the allegations of the petition. It is triable on the face of the petition. For purposes of its determination, all well-pleaded facts are accepted as true and all doubts are resolved in favor of the sufficiency of the petition. La.C.C.P. Articles 927, 931. Johnson v. Edmonston, 383 So.2d 1277 (La.App. 1st Cir.1980).

The allegations of plaintiffs petition show that plaintiff bought ready mixed concrete from defendant for use in a construction job for Littleton Truck Lines. Plaintiff and defendant were both sued by Littleton for defective workmanship in connection with the constructin project performed by plaintiff using the concrete mix provided by Century. Plaintiff was exonerated from fault in that suit and sole liability was placed on Century as the seller of substandard concrete mix.

Plaintiff alleges he paid attorney fees and expert witness fees in defending the suit by Littleton, and lost income by spending 16 working days preparing for and attending the trial. He seeks reimbursement from Century for these expenses and lost income, contending they were incurred due to defendant’s breach of contract.

The trial court sustained the exception of no cause of action by which defendant responded to plaintiff’s petition. On appeal plaintiff contends the trial court erred in finding that damages such as those he claims here were not within the contemplation of the parties to the sales contract under La.C.C. Article 1934. He argues it should have been anticipated that expenses of litigation would be incurred in the event of a breach of the sales contract. We disagree.

Where good-faith performance of a contract is attempted, the damages for the failure of the result are limited to those damages within the contemplation of the parties at the time they contracted. La. C.C. Article 1934(1); Seymore v. Louisiana Soil Stabilization Co., Inc., 381 So.2d 571 (La.App. 2d Cir.1980). Plaintiff seeks recovery of income allegedly lost as a result of preparing for and participating in trial of the suit against him and defendant. He makes no allegation of fraud or bad faith on the part of defendant. We agree with the trial court that this item of damages is not such as would be reasonably contemplated as a possible item of damages in the sale of construction materials.

It would be reasonable to anticipate that if one sells a defective product his buyer might incur expenses in correcting the defect or replacing the defective material. However, it is our view this seller should not be held to contemplate that plaintiff would suffer a loss of earnings by having to completely shut down his business operations to prepare and defend a suit by a third party as a result of the substandard quality of the concrete. This is but a remote and indirect consequence of the breach of contract and does not fall within the ambit of the reasonable contemplation of the parties as provided in La.C.C. Article 1934.

As to the claim for attorney fees, it has long been the settled rule that a party may not recover this expense except where authorized by statute or provided for by contract. General Motors Acceptance Corporation v. Meyers, 385 So.2d 245 (La.1980). The law does not provide for an award of attorney fees in a suit for breach of contract against a good faith seller. Nor does plaintiff’s petition contain any allegation of such an agreement in the oral contract between the parties. Therefore, plaintiff has failed to state a cause of action for recovery of attorney fees incurred in the previous suit.

We must likewise reject plaintiffs claim for expert witness fees incurred in defending the suit brought by Littleton. It is also well established that expenses incurred in preparation for a defense to a lawsuit are not recoverable against the opposite side. Holden v. Clearview Dodge Sales, Inc., 416 So.2d 335 (La.App. 4th Cir.1982), writ denied 421 So.2d 248, 249 (La.1982); Liberto v. Villard, 386 So.2d 930 (La.App. 3d Cir.1980); Universal C.I.T. Credit Corp. v. Jones, 47 So.2d 359 (La.App. 2d Cir.1950). Furthermore, an expert witness fee is properly assessed as an item of costs of the suit in which they are incurred, not as an item of damages. Wright v. Ouachita Coca-Cola Bottling Co., Inc., 415 So.2d 309 (La.App. 2d Cir.1982). We find the trial court properly concluded this element of damages is not recoverable in the present suit.

The items of damages sought by plaintiff are not recoverable in a suit for breach of contract. Therefore, the trial court properly sustained defendant’s exception of no cause of action.

For the foregoing reasons, the judgment appealed is affirmed and all costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


author: HALL, Judge.

text:
    FRANKS PETROLEUM, INC., Plaintiff-Appellee, v. Martiel Colvin BABINEAUX, et al., Defendants-Appellants. FRANKS PETROLEUM, INC., Plaintiff-Appellee, v. Joe C. COLVIN, et al., Defendants-Appellees. (Two Cases).
    Nos. 16046-CA to 16048-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      Rellis P. Godfrey, Shreveport, for defendants-appellants, John A. Colvin and Mattie Sue Colvin.
    Shotwell, Brown & Sperry by C.A. Martin, III, Monroe, for plaintiff-appellee, Franks Petroleum, Inc.
    Walker, Holstead & Smith, Ruston, for defendants-appellees, Virginia Colvin Mea-dors, Clyde C. Colvin, Jr., James Harry Babineaux, Judith Babineaux Wells, Joe C. Colvin, Gerald Glen Colvin, Fred H. May, Jr., Mabel May, Harold Butler Colvin, Emmett Lee Colvin, Willis Carroll Colvin, May Larance Colvin, Luther Colvin, Douglas Colvin, Terrelle Gray Colvin, and Kerr-McGee Corp.
    Before HALL, JASPER E. JONES and SEXTON, JJ.
   HALL, Judge.

In this concursus proceeding brought by the operator of producing gas units, the district court resolved the dispute between two sets of record co-owners, identified as the “Group A defendants’’ and the “Group B defendants”, by holding that the Group A defendants had acquired full title to the properties involved by acquisitive prescription based on adverse possession by them and their ancestors for more than 30 years after notice of such adverse possession to the Group B defendants and their ancestors. From judgments recognizing the Group A defendants and those holding under them as entitled to the mineral and/or royalty interests involved, the Group B defendants appealed. Finding that the issues were correctly resolved by the district court in its comprehensive, studious reasons for judgment, we affirm.

On appeal, the appellants urge that the trial court erred in holding that a recorded ex parte judgment of possession sending the Group A defendants into possession of the properties involved constituted sufficient notice that their possession was as owners and adverse to the Group B defendants, and that the court erred in failing to find that the only actual notice of adverse possession was given in 1950, less than 30 years prior to the commencement of this litigation.

The property was acquired by C.C. Col-vin and his brother, John A. Colvin, in 1874. The Group A defendants are the heirs of C.C. Colvin and his wife. The Group B defendants are the two children of one of the 10 children of John A. Colvin and his wife. The widow and all the other heirs of John A. Colvin executed quitclaim deeds of their interests in the properties to the Group A defendants in 1937 and 1938. The quitclaim deeds recited that C.C, Colvin purchased the interest of John A. Colvin in the property, and paid for the interest, but that the deed was lost or destroyed and was not recorded. The consideration for the quitclaim deeds was stated to be the consideration paid by C.C. Colvin to John A. Colvin and the vendors acknowledged that John A. Colvin received full payment.

The trial court correctly found that C.C. Colvin and then his heirs exercised full and complete possession of the property from as early as 1900 through the time this litigation was commenced by living on the property, farming it, growing timber, making timber sales, selling sand and gravel, having the property surveyed, marking boundaries, and the like. The trial court also correctly found that the evidence was insufficient to support any possession whatsoever by John A. Colvin or his heirs. These findings are not seriously questioned on appeal.

There is in evidence a timber deed dated in 1899 by which C.C. Colvin sold timber on the subject property. John A. Colvin signed as a witness to the timber deed.

In 1937, a judgment of possession was rendered in the Succession of C.C. Colvin and his wife, and was duly recorded, in which their heirs were recognized as the owners of the “whole interest in and to” the subject property.

In 1950 appellants were specifically told in a conversation with one of the C.C. Col-vin heirs that John A. Colvin had sold his interest in the property, the deed was lost, and that they did not own any interest in the property. However, they had earlier knowledge that other heirs of John A. Col-vin had quitclaimed their interest, and they were approached to sign papers to get the property “straight.”

Subsequently, the heirs of C.C. Colvin partitioned the property, purporting in the recorded instrument to deal with the full interest in the property.

Appellants urge that the possession of their co-owners must be regarded as possession on behalf of all the co-owners of the property, and that such possession did not become adverse to them until they were given actual notice in the 1950 conversation, less than 30 years prior to their asserting their claim to title. Appellants particularly urge that the trial court erred in holding that the ex parte judgment of possession served as notice to them of the adverse nature of the possession of their co-owners.

Particularly applicable to the issues in this case are LSA-C.C. Arts. 3439 and 3478:

LSA-C.C. Art. 3439:

“A co-owner, or his universal successor, commences to possess for himself when he demonstrates this intent by overt and unambiguous acts sufficient to give notice to his co-owner.
“Any other precarious possessor, or his universal successor, commences to possess for himself when he gives actual notice of this' intent to the person on whose behalf he is possessing.”

LSA-C.C. Art. 3478:

“A co-owner, or his universal successor, may commence to prescribe when he demonstrates by overt and unambiguous acts sufficient to give notice to his co-owner that he intends to possess the property for himself. The acquisition and recordation of a title from a person other than a co-owner thus may mark the commencement of prescription.
“Any other precarious possessor, or his universal successor, may commence to prescribe when he gives actual notice to the person on whose behalf he is possessing that he intends to possess for himself.”

These Civil Code articles were adopted by Act 187 of 1982, effective January 1, 1983. The provisions are new, but as noted in the comments thereto, do not change, the law. See prior Articles 3512 and 3515.

The well-settled jurisprudential general rule is that an owner in indivisión cannot acquire by prescription the rights of his co-owners in the property held in common. Possession by one co-owner is generally considered as being exercised on behalf of all co-owners. It is equally well settled that an exception to the general rule is recognized in those instances where the possessing co-owner gives notice to the other co-owners that he intends to possess as owner adversely and contrary to the common interest. Under such circumstances, one owner in common may prescribe against a co-owner provided such possession be clearly hostile and notice be given thereof. Givens v. Givens, 273 So.2d 863 (La.App. 2d Cir.1973).

Under Civil Code Articles 3439 and 3478 and the jurisprudence, actual notice to other co-owners of the possessing co-owner’s intent to possess for himself is not necessary. Actual notice is required in the case of other precarious possessors, but not in the case of co-owners.

In determining whether a particular case falls within the exception rather than the general rule, mere occupancy, use, payment of taxes, and similar acts of possession will not suffice to constitute notice of adverse possession to an owner in common. However, where a co-owner possesses under a recorded instrument apparently conveying title (even though the purported conveyance is invalid), the recorded instrument, together with the acts of possession, constitutes notice to other co-owners and the possession is then regarded as hostile to the interests of the other co-owners, rebutting the presumption that possession is for the benefit of all co-owners. Givens v. Givens, supra.

Civil Code Article 3478’s provision that the acquisition and recordation of a title from a person other than a co-owner may mark the commencement of a prescription is illustrative, not exclusive. Rec-ordation of an instrument translative of title is only one example of overt and unambiguous acts sufficient to give notice to co-owners.

A recorded instrument may constitute notice to co-owners even though it is not translative of title. Thirty years acquisitive prescription is founded upon possession, not a deed translative of title. The function of the recorded instrument is simply to serve as an overt manifestation that a co-owner exclusively possessing is doing so by virtue of his claim to exclusive ownership. It is objective evidence that he possesses adversely to those who may claim to be his co-owners. Dupuis v. Broadhurst, 213 So.2d 528 (La.App. 3d Cir.1968). In Dupuis, a partition, not transla-tive of title, coupled with active and open possession for 30 years, was held to negate the presumption that the possessing owner was possessing for other co-owners. Likewise, in Minton v. Whitworth, 393 So.2d 294 (La.App. 1st Cir.1980), the language of a recorded partition was held to be a clear indication that the parties thereto considered themselves to be the owners of the full interest in the property and to constitute notice to co-owners that subsequent possession of the property was adverse and hostile to their interests.

A recorded invalid donation was held to constitute adequate notice in Givens, supra, and a simulated sale was given the same effect in Detraz v. Pere, 183 So.2d 401 (La.App. 3d Cir.1966).

It was not error for the trial court to hold that the recorded ex parte judgment of possession which purported to send the C.C. Colvin heirs into possession of the “whole interest” in the subject property was an act of notice to the other record co-owners of the intended adverse possession of the C.C. Colvin heirs. Boyet v. Perryman, 240 La. 339, 123 So.2d 79 (1960), relied on heavily by appellants, is not applicable. That case held only that an ex parte judgment of possession does not purport to be a transfer of title and cannot serve as a basis for 10 years acquisitive prescription. It has no relevancy to the issue of notice of adverse possession as between co-owners and 30-years acquisitive prescription based on adverse possession.

Perhaps more significant than the judgment of possession are the declarations contained in the quitclaim deeds recorded in 1937 and 1938. The declarations serve as notice to the other co-owners that the C.C. Colvin heirs were possessing as owners for themselves and adversely to the John A. Colvin heirs under a lost or destroyed deed from John A. Colvin. This declaration was joined in by John A. Col-vin’s widow and all of his heirs except the appellants.

There is also evidence that the appellants were aware, prior to the 1950 conversation mentioned previously, of the claim by the C.C. Colvin heirs to full ownership of the property and their exclusive possession as full owners.

The intent of C.C. Colvin and his heirs to possess for themselves was demonstrated by overt and unambiguous acts sufficient to give notice to their co-owners, marking the commencement of acquisitive prescription more than 30 years prior to the commencement of this litigation. These acts included the actual physical acts of possession described earlier in this opinion, the timber deed by C.C. Colvin which was witnessed by John A. Colvin, the recorded declarations contained in the quitclaim deeds, the recitals of the recorded judgment of possession, and communications among the family which indicate an awareness on the part of appellants of their co-owners’ intent to possess for themselves, all commencing or occurring more than 30 years ago. The judgment of the district court recognizing appellees’ acquisition of the interests of appellants by 30-years acquisitive prescription is correct.

The appellants initially pled the invalidity of the quitclaim deeds on the grounds of lack of or insufficiency of consideration. Although this issue was not addressed in the trial court’s reasons for judgment, the judgment rejecting in full appellants’ demands for recognition of an ownership interest in the property had the effect of rejecting their claims in this respect. No formal specification of error is directed to this issue, but appellants, in brief, ask that the issue be decided on this appeal, and the plaintiff, in brief, has responded. Suffice it to say that the appellants have failed to demonstrate or establish that the consideration recited in the quitclaim deeds was not accurately stated or sufficient to support the transfers made in acknowledgment of the prior transfer by their ancestor for money consideration and to comply with the vendors’ natural obligation to execute the disposition their ancestor and former owner had made. See LSA-C.C. Arts. 1758 and 1759.

For the reasons assigned, the judgment of the district court is affirmed at appellants’ costs.

Affirmed.


author: SEXTON, Judge.

text:
    Brian WILSON, Plaintiff-Appellant, v. PROGRESSIVE STATE BANK & TRUST COMPANY, Defendant-Appellee.
    No. 16054-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      Bruscato, Loomis, Deal & Street by Albert E. Loomis, III, Monroe, for plaintiff-appellant.
    Traylor & Kramer by Chet D. Traylor, Winnsboro, for defendant-appellee.
    Before HALL, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff filed suit seeking damages from defendant for seizing and selling a pickup truck and welder. The defendant answered, alleging that the act of sale by which the plaintiff purported to obtain the pickup and welder from his father was fraudulent and void. The trial court found in defendant’s favor. We affirm.

Plaintiff in this cause is Brian Wilson, aged 20, an offshore worker residing in Franklin Parish. Plaintiff’s father is Sherman Wilson. Defendant is Progressive State Bank & Trust Company (hereinafter referred to as Progressive).

On February 15, 1983, plaintiff Brian Wilson filed suit against defendant Progressive for the wrongful seizure and sale and/or tortious conversion of the pickup and welder — which were allegedly owned by Brian Wilson — pursuant to a judgment rendered against Brian’s father, Sherman Wilson. Defendant Progressive alleged in its answer that the pickup and welder which it has seized and sold were owned by its judgment-debtor Sherman Wilson, not Brian Wilson; and that the alleged sale of these chattels by Sherman to Brian was merely a sham or simulated sale. At trial, plaintiff introduced into evidence separate bills of sale to the pickup and welder, by which these chattels were allegedly conveyed by Brian to Sherman Wilson. The plaintiff also introduced certificates of registration and title listing Brian Wilson as the legal owner of the 1969 Dodge.

In a judgment rendered July 31, 1983, the trial court rejected plaintiff’s claims, finding that the purported sale of the pickup and welder was merely a simulated sale; that the truck and welder were still owned by Sherman Wilson; that the chattels were therefore appropriately seized and sold pursuant to a judgment obtained against Sherman Wilson; and that therefore Brian Wilson had no legal damages claim herein. In appealing, plaintiff’s single specification of error provides the only issue in the case. The plaintiff contends that the trial court erred in placing the burden on the plaintiff to show that a simulation occurred, and in thus holding that plaintiff had failed to carry that burden.

A simulated sale is one in which the parties do not have genuine intent to transfer or convey property, even though such sale be clothed in concrete form or legal formalities. It is a formal contract without existence in fact, and generally embodies a conspiratorial understanding between the parties against third persons in which the parties “place their property and rights in the name and under the control of others, without any consideration whatever, and without the intention of ownership being actually transferred.” Viguerie v. Hall, 107 La. 767, 31 So. 1019, 1022 (1902). A simulated sale does not transfer property, and it occurs where the parties have no good faith intent to transfer ownership. It is a sham, and as a result, an absolute nullity. See, generally, Russell v. Culpepper, 344 So.2d 1372 (La.1977); Succession of Terral, 312 So.2d 296 (La.1975); Hall v. Allred, 385 So.2d 593 (La.App. 3d Cir.1980); Bell v. Bell, 339 So.2d 1333 (La.App. 3d Cir.1976); Adams v. Trichel, 304 So.2d 740 (La.App. 2d Cir.1974).

A simulation may be proved by indirect or circumstantial evidence since, by its inherent nature, a simulation often only admits of circumstantial proof. Dare v. Mynick, 168 So.2d 845 (La.App. 2d Cir.1964). The burden of proof is ordinarily placed upon he who attacks a sale as a simulation. However, when a legal presumption of simulation is applicable, the burden of proof shifts to the party to the sale to establish that it was authentic and not merely a simulation. Louisiana law contains both a codal and a jurisprudentially based presumption of simulation. The codal presumption emanates from Civil Code Article 2480 and is applicable where the vendor retains possession of the thing sold under usufruct or precarious title. The jurisprudential presumption is applicable where the evidence establishes the existence of facts and circumstances which create a highly reasonable doubt as to the reality of the putative sale. Where either the codal or jurisprudential is applicable, the burden of proof shifts to the party to the purported sale to establish its actuality. To rebut this presumption, the party to the purported sale must establish a good faith transaction resulting in a true alienation of ownership for consideration. Russell v. Culpepper, supra; Dietz v. Dietz, 80 So.2d 414 (La.1955); Boagni v. Waterbury, 403 So.2d 856 (La.App. 3d Cir.1981); Roy v. Roy, 382 So.2d 253 (La.App. 3d Cir.1980); Ingram v. Freeman, 326 So.2d 565 (La.App. 3d Cir.1976); Grant v. Anderson, 306 So.2d 853 (La.App. 2d Cir.1975).

We conclude that the trial court was not manifestly erroneous in finding that the purported sale by Sherman Wilson to Brian Wilson of the truck and welder was a simulation. The codal presumption of simulation may not have been applicable herein since there was no showing of a usufruct or a precarious title. However, the jurisprudential rule which shifts the burden of proof to the vendor or vendee to establish the actuality of the sale was applicable here, because of circumstances creating a highly reasonable doubt as to the reality of the transfer which will hereinafter be detailed. Thus, the burden of proof here was properly placed on Brian Wilson to establish the validity of the sale, and not on Progressive to prove its invalidity.

Progressive’s judgment against Sherman Wilson, which the truck was seized to satisfy, was rendered on June 17, 1982 in the amount of $2,821.90. The judgment resulted from a petition for a deficiency judgment subsequent to executory process on a mobile home which Progressive had seized.

The plaintiff Brian Wilson contended that he agreed to purchase the pickup and welder from his father in mid-June of 1982, and at that time paid his father half of the cash price of $1,900.00. He testified he paid the second installment in cash on July 18 at the house trailer of Sherman’s mother, Malloy Thornton, who was deceased by the time of the trial. No receipt was given for this cash sale.

Donald Gene Austin, a friend and roommate of Brian Wilson, testified that on July 18, he saw Brian Wilson hand his father, Sherman, some money at Malloy Thornton’s trailer. However, Mr. Austin could not determine the amount of money paid. Mr. Austin also testified that separate bills of sale for the pickup and welder were signed, as was the title to the pickup.

The writ directing the seizure and sale of the pickup and welder issued on July 27. Franklin Parish Deputy Johnny Marshall located Sherman Wilson on August 4 putting gasoline in the truck and informed him of the court order for seizure of the vehicle and welder. The deputy instructed Sherman Wilson to drive the truck and welder to the courthouse. That same evening Deputy Marshall released the pickup to allow Sherman Wilson to drive home and instructed Wilson to return in the pickup the next morning. Wilson returned the next morning, Thursday, August 5, and Deputy Ed Hatten gave Sherman Wilson another extension of time, instructing him to return with the truck and welder the following Monday, August 9.

On approximately August 5 or August 6, Brian and Sherman Wilson went to the law office of Chet Traylor, the attorney representing Progressive, and left a copy of the bill of sale with Mr. Traylor’s law partner. This was done in an attempt to put Progressive on notice of the alleged sale of July 18. On the morning of Saturday, August 7, Sherman Wilson took a copy of the bill of sale to the truck to the home of Mr. Traylor in a further attempt to convince him of the change in ownership. The bill of sale presented to Mr. Traylor was not notarized, and apparently did not contain the signatures of any witnesses.

On August 11, a Winnsboro notary public notarized the bill of sale acknowledging the sale of the truck, and he also notarized the certificate of title to the truck. On that same day, these two documents were taken by Brian Wilson to the Department of Motor Vehicles office in Winnsboro, to obtain a certificate of registration in his name to the 1969 Dodge truck.

On August 12, the Dodge truck and welder were seized by a parish deputy at the apartment at which Brian Wilson resided. At some point subsequent to the actual seizure, Brian Wilson took certificates of title to the truck, and the bill of sale to the welding machine, to Progressive Bank officer Gary Willis. Gary Willis testified, however, that although Brian Wilson protested that he was the legal owner of the seized truck, he refused to show the documents of ownership to him (Gary Willis). The seized pickup and welder were sold by Progressive at a sheriff’s auction on October 20, 1982.

Thus, sufficient factors exist which would have enabled the trial court to reasonably conclude that Sherman Wilson con-fected a simulation to place the truck beyond the reach of his creditor. The finding that an actual sale did not occur is bolstered by the fact that Brian Wilson was four months delinquent on a house note at the time of the alleged sale, and the inference may reasonably be made that Brian Wilson did not possess sufficient funds to purchase the truck and welder. Moreover, had the exchange of consideration alleged by Brian Wilson actually occurred, it stands to reason that Sherman Wilson would have utilized the proceeds of the purported sale to pay off the judgment and thereby preclude the seizure. It does not appear that any such attempt was made.

Implicit in the determinations of the trial judge is the rejection of the defense evidence with respect to the giving of consideration. The transfer of title itself is not conclusive evidence of ownership. Ingram v. Freeman, supra. Just as in Ingram, the trial judge in the instant case obviously felt that the circumstances surrounding the timing of this conveyance raised a substantial doubt concerning the motive of the transaction.

It is significant that, prior to the truck’s actual seizure, it was the father, Sherman Wilson — and not plaintiff Brian Wilson, the supposed owner of the truck — that made insistent and repeated efforts with both Progressive’s attorney and the sheriff’s department to delay the seizure. It is worthwhile to note that Deputy Ed Hatten testified that when title to the truck was presented to him on August 5, it was still in Sherman Wilson’s name. When Sherman Wilson talked to Chet Traylor, Progressive’s counsel, on the morning of August 7, he stated to Chet Traylor that he was attempting to save — and preclude seizure — of his own vehicle. It is relevant that Brian Wilson apparently made no protest that the truck was his, until after the seizure was effectuated, this protestation being made to Progressive’s officer Gary Willis. Although Brian Wilson testified to the contrary, Deputy Ed Hatten testified that Brian Wilson made no protestation that the truck belonged to him when it was seized on August 12, 1982.

A further important indication that the alleged sale was a simulation is the fact that the truck stayed principally in the possession of Sherman Wilson subsequent to the purported conveyance. Sherman Wilson drove the truck, kept it at his residence regularly, used it to work in, and was found putting gas in it on August 4 when the truck was first constructively seized by Deputy Johnny Marshall of the Franklin Parish Sheriff’s Department.

A simulation has in the past been found where a party faces an impending civil liability, and purports to convey the only property that may be used to satisfy the monetary obligation inherent in the civil liability. Ingram v. Freeman, supra. The trial court’s judgment is also supported by this court’s decision in Grant v. Anderson, supra. In Grant, this court stated that a close relationship between the parties to a sale, the continued possession by the vendor of the object of the sale, and a failure to satisfactorily explain payment of the purchase price are evidentiary factors which militate in favor of a finding of simulation. The Grant court declared the purported sale of a pickup a simulation, where the parties to the alleged sale had a close relationship, and the alleged vendor continued to remain in possession of the pickup.

In summary, the record amply supports the trial court's determination that the transaction was “highly suspicious as being made to avoid the defendant’s seizure of the property,” and to thus transfer the burden of proof. The further conclusion that the plaintiff did not carry the burden necessary to substantiate his claim is likewise well supported.

The judgment appealed is affirmed at plaintiff-appellant’s cost.

AFFIRMED.


author: JASPER E. JONES, Judge.

text:
    PETERS, SMITH & COMPANY, Plaintiff-Appellee, v. Jack L. SMITH, Defendant-Appellant.
    No. 16057-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 1984.

      Brown, Wicker & Amman by William D. Brown, Monroe, for defendant-appellant.
    Grant, Dean, Kneipp, Luffey, Price & Dunn by Donald L. Kneipp, Monroe, for plaintiff-appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

In this action upon a contract of sale of a partnership interest the defendant, Jack L. Smith, appeals a judgment against him in the amount of $15,874.28 in favor of the plaintiff partnership, Peters, Smith & Co. The judgment also had the effect of rejecting the appellant’s reconventional demand against the plaintiff. The plaintiff’s suit was based upon an alleged overpayment to the defendant for his 50% interest in the partnership.

BACKGROUND FACTS

In the latter part of 1978 Smith, an experienced real estate developer, approached Ben Peters with a proposal to construct on certain property in Monroe owned by Ben and his brother John, a building to be leased by Handy City. On January 24, 1979 a formal partnership agreement was executed between the Peters brothers and Smith for the purpose of undertaking the Handy City project. In the partnership agreement Ben Peters was designated as the managing party. It was agreed by all of the parties that the construction firm of Peters, Merritt & Oliver Co., Inc., in which Ben Peters owned an interest, would be the general contractor for the construction of the Handy City building for the price of the cost of constructing the building plus 10%. Construction was commenced in early 1979.

In April of 1979, at a time when the project was only about 20% complete, Smith approached Ben and John about buying their interest in the project and was advised by them that they were not interested in selling. Very soon thereafter Smith offered to sell his interest in the partnership to John and Ben and they agreed to buy it. The parties executed on April 30, 1979, a letter of agreement which contained a formula to be used to determine the sale price for Smith’s interest in the project. Smith was advanced $50,-000.00 by the partnership at the time of the execution of the letter agreement.

On February 5, 1980 as the project neared completion Ben Peters sent to Jack Smith a formal act of sale wherein Smith conveyed his interest in the project to Ben and John Peters for a recited consideration of $50,000.00. In his letter of transmittal Ben Peters advised Smith that the purpose of the sale was to preserve the buyer’s first user status and that it must be executed before Handy’s occupancy of the building. Smith acknowledged that he was aware of the purpose for which Ben Peters sought the execution of the sale but feared that the recited $50,000.00 consideration in the sale would supersede the terms of the letter agreement which provided the formula for the determination of the consideration for the sale and under which formula the price that he could receive for his sale could exceed the $50,000.00. For this reason when Smith executed the document before his attorney and notary, he instructed his attorney to retain possession of it because of a dispute which he had with Ben Peters about some money. He also instructed his attorney to advise Ben Peters that the document had been signed and this was done. Ben Peters called Smith’s attorney and attempted to obtain the document but Smith’s attorney refused to deliver it to him. The document was apparently signed on March 19, 1980 and Handy City moved into the building on March 20th. The act of sale executed by Smith was. lost by Smith’s attorney but a copy of it was filed in evidence as an exhibit at trial.

Subsequent to the completion of the building a certified public accountant audited the partnership records and determined the total cost of the project was $830,-222.81. When this total cost figure was used in the formula contained in the April 30, 1979 letter it was then determined that Smith was entitled to receive for his interest in the partnership the sum of $34,-880.60. He had received an advance payment on the sales price at the time of the execution of the April 30, 1979 letter of $50,000.00. According to the formula he had therefore been overpaid $15,101.40. Subsequent to the audit an additional bill was received which when included within the cost of the total project reflected that the overpayment was in fact $15,874.28. Demand was made upon Smith for the overpayment without avail and this suit was initiated. The appellant answered denying the debt and reconvening for $190,-000.00 additional consideration for his sale of his partnership interest allegedly owed under the formula of the April 30, 1979 letter agreement.

The appellant makes the following assignments of error:

(1) he contends the trial court erred in determining the plaintiff partnership was the proper party to assert the cause of action for the refund. Appellant is here contending that he sold his interest in the partnership to Ben and John Peters individually rather than to the partnership composed solely of them;
(2) that the trial court committed error by including within the total cost of the project interest on the interim loan used to secure funds for the construction of the Handy City building. The amount of the interim interest was $49,705.77. Appellant contends the interim interest should be disallowed because managing partner Ben Peters secured the interim loan without the written consent of the other two partners, which written consent was required by the articles of partnership;
(3) appellant contends the trial judge erroneously included within the total cost of the project a $25,000.00 real estate commission paid to realtor Bloomingfield who had rendered no service in connection with the Handy City project.

Inherent in appellant’s assignments of error 2 and 3 is his contention in brief that when these two allegedly incorrect project costs are eliminated from the total cost of the project that he is then entitled to recover on his reconventional demand the sum of $22,241.48 calculated in accordance with the formula contained in the April 30th letter agreement.

Though not included in appellant’s formal assignments of error he asserts as an alternative argument in brief that the sales agreement received by him on February 5, 1980 and which he signed on March 19, 1980 and required his attorney to retain possession of, was in fact a new agreement between he and the brothers Ben and John Peters the terms of which superseded the April 30, 1979 letter agreement. He contends the sale signed by him March 19th establishes a specific consideration of $50,-000.00 for the sale without reference to any formula and for this reason plaintiff was not entitled to recover the overpayment determined by the formula in the letter agreement.

ISSUE OF PROPER PARTY PLAINTIFF

The trial judge in his written reasons for judgment gave the following reasons for rejecting the appellant’s contention that the partnership was not the proper party plaintiff:

“... the evidence is quite clear that the defendant was paid his $50,000 advance by the partnership, such payment being made through three checks drawn on the partnership account. There is no contention or evidence that that sum was a gift by the partnership to the defendant; and, if it were a loan, the partnership would be entitled to recover the entire amount. Instead, all parties acknowledge that the three partnership checks were paid as advances to the defendant in connection with the April 30 letter. Hence, this contention, made for the first time following trial, questioning the standing of plaintiff, or the proof thereof, is unimpressive.”

The record fully supports the trial judge’s conclusion.

We note that in the appellant’s answer to the partnership's petition he sets forth a reconventional demand against the partnership for $190,000.00 on the theory that under the formula contained in the letter agreement the defendant was entitled to this additional amount, as consideration for his sale of his interest in the property to the partnership. The defendant in effect does here acknowledge that either his sale initially was direct to the partnership or that the partnership had acquired from brothers John and Ben by assignment the defendant’s interest in the partnership and had assumed the obligation of brothers John and Ben under the letter agreement, that being to pay the consideration as per the formula in the letter agreement.

We further note that in the pre-trial stipulation executed by the defendant’s attorney wherein the contested issues of fact are set forth there is no issue referring to the correctness of the partnership as the proper party plaintiff, but rather included in defendant’s contentions in the pre-trial statement is a contention that the partnership owes him some unpaid consideration for his interest in the partnership.

We have also carefully reviewed the testimony of Ben Peters and find the totality of it clearly expresses the intention that he and John Peters were acting for and on behalf of the partnership in acquiring the interest of Smith in the partnership. We conclude this assignment of error is without merit.

WAS THE INTEREST EXPENSE INCURRED ON THE LOAN FOR THE INTERIM FINANCING A CORRECT ITEM TO BE INCLUDED WITH THE TOTAL PROJECT COST

Ben Peters testified that he and Jack Smith discussed at length where to obtain the interim financing. Smith wanted to do the interim financing with Central Bank and Peters wanted to do the interim financing with Ouachita National Bank. Each agreed to obtain from their respective favorite bank an interest quote on the interim financing and that they would then use the bank who quoted the most favorable interest rate. The interest quote secured by Smith from Central Bank was higher than the 9¾% interest quote obtained by Peters from the Ouachita National Bank, and it was for this reason they agreed to secure the interim financing through the Ouachita National Bank.

The appellant was aware the interim financing was essential to the construction of the project and was aware that the loan had been consummated with Ouachita National Bank before he executed the letter agreement of April 30, 1979. He further testified that interim interest was a proper cost to be included in the total development cost. His sole reason here for contending that the interim interest should be eliminated from the total project cost is because of the provision in the articles of partnership requiring the written consent of the partners for any loan secured by the managing partner.

The appellant actively participated in the selection of the interim financeer and was aware the loan was necessary and that it was in fact made and some interest cost incurred before the letter agreement. This conduct and knowledge of appellant waived the requirement that he consent in writing to the interim loan.

The trial judge was correct when he included the cost of the interest on the interim financing as an item of total project cost.

WAS THE BLOOMINGFIELD REALTOR FEE PROPERLY INCLUDED IN THE TOTAL PROJECT COST

It is true that Mr. Bloomingfield performed no services in connection with the Handy City project. The evidence reveals that Handy City required the payment by the partnership of a fee to Bloom-ingfield of $25,000.00 and though the requirement was resisted by appellant and Ben Peters, Handy City continued to insist upon it. The dispute was resolved by Handy City agreeing to increase the annual rent from $106,000.00 to $108,000.00 in consideration of the partnership paying Bloom-ingfield $25,000.00. This transaction is analogous to Handy City requiring an additional 25 square feet of floor space and agreeing to pay additional rent for it. Under these circumstances cost of the additional floor space would be clearly included within the total cost of the project. Handy City’s requirement here was directly related to their occupancy of the building and the rent which they were going to pay for this occupancy and it was in fact part of the project.

We further note that the appellant makes no complaint about the inclusion within the total cost of the project the cost of buying a lease held by a business known as Gabby's affecting the land on which Handy City desired their building to be constructed. The circumstances under which the Bloomingfield real estate commission was paid was no more unrelated to the total cost of the project than was the cost of buying Gabby’s lease.

We further observe that appellant testified it was commonplace for fees paid brokers who secured leases to be included within the total cost of developing a project. In effect, the $25,000.00 here paid was directly related to, if not the securing of Handy’s initial lease, at least to securing an amendment thereto increasing the rent. It is therefore analgous to a brokerage fee for securing a lease within the development.

We further note that the $25,000.00 was paid to Bloomingfield before the appellant executed his letter agreement of April 30, 1979. He actively participated in the negotiations which resulted in this payment. He testified that he determined the value of the project to be $900,000.00 which was an essential element of the formula contained in the letter agreement by which his selling price was to be determined. He testified he included the amount of the annual rent to be received from Handy as an element in his determination of the $900,000.00 value. The annual rent to be received from Handy had been increased from $106,000.00 to $108,000.00 as a result of the Bloomingfield transaction before Smith used the rent figure in connection with his value determination.

For all of the reasons discussed we conclude the trial judge properly included the $25,000.00 Bloomingfield fee within the total cost of the project.

PURPOSE OF SALES AGREEMENT SIGNED BY SMITH ON MARCH 19, 1980

The appellant contends in the alternative that the plaintiff has no right to claim a refund for overpayment based upon the audit reflecting that he received $50,-000.00 when he was only entitled to approximately $34,000.00 because the sale sent for his execution on Feb. 5, 1980 constituted a compromise settlement under the provisions of C.C. Art. 3071.

The plaintiff contends this sale was not intended to supersede the April 30, 1979 letter but rather was designed solely to protect its first user status for tax purposes. Plaintiff points out that the sales document was contemplated by the provisions of the last paragraph of the letter agreement wherein appellant agreed to sign any document necessary for the preservation of the buyer’s first user status.

Ben Peters’ letter of transmittal of the document to Smith specifically pointed out that the purpose of the sale was to preserve the first user status for the plaintiff. Appellant acknowledged in his testimony that he was aware of this purpose, although he feared that it might also be used by the Peters brothers as a device to preclude giving him additional money in the event he was found entitled to it under the formula of the letter agreement.

We find that when the sales agreement is evaluated in light of the last paragraph of the letter agreement and the stated purpose for it contained in the letter wherein it was transmitted there is no basis for Smith’s belief that it had any legal significance beyond its use to preserve for the plaintiff the first user depreciation status which was sought to be protected.

We further note that no dispute existed as of the time the sales agreement was signed by Smith on March 19, 1980 because the audit was not prepared until July 29, 1980. It was only following the transmission of the audit to Smith on August 1, 1980 and the request on this date for the refund of the overpayment that the dispute became clearly evident.

It is further significant that the sales document, which was lost by Smith’s attorney, had not been signed by John Peters and may not have been signed by Ben Peters.

We also observe that Smith instructed his attorney to retain possession of this document and his attorney refused to deliver it to Ben Peters. Smith was controlling the document until it was determined whether he was entitled to additional funds under the letter agreement formula and in the event he was, to prevent the possible use of the document to deny him the additional money. An evaluation of the testimony of Smith’s attorney establishes that Smith told him to retain possession of the sales agreement because Ben Peters owed him some money. Smith only signed the sale to comply with his obligation under the last paragraph of the letter agreement and he had no intention for the document to supersede the letter agreement and he took the necessary precaution to be certain that it could not be used for that purpose by retaining control of it. He cannot now attempt to assert that the sale signed by him on March 19,1980 was intended by the parties as a compromise and settlement of their respective rights which superseded the letter agreement.

This alternative assignment of error has no merit.

Judgment AFFIRMED at appellant’s cost.

      . April 30, 1979
      Jack L. Smith
      P.O. Box 2421
      Monroe, La. 71201
      RE: Peters, Smith & Co., a Louisiana Partnership
      Dear Jack:
      This letter is to confirm our agreement wherein Johnny and I have agreed to buy your interest in the present partnership of Peters, Smith & Company. The consideration for the sale will be one-half of the difference between a sale price of $900,000.00 and the total project cost to be ascertained prior to Handy City taking occupancy of the building. Our most recent estimated cost of the project was $786,723.00 which, when divided by two, gives a consideration to you of approximately $56,638.00.
      We agreed as further consideration, to disburse a substantial portion of the money or $50,000.00 to you upon our working out of the terms mentioned herein. Accordingly, enclosed please find our check for $32,000.00 which constitutes the sum of $50,000.00 minus two previous advances of $13,000.00 and $5,000.00 respectively.
      A further consideration of this sale was for you to execute the necessary documents of any nature whatsoever in order to allow us to continue our first user status.
      With kindest regards,
      Yours very truly,
      /Benjamin M. Peters, Individually
      Benjamin M. Peters, Individually and as Agent and Attorney-In-Fact for John R. Peters, Jr.
      Accepted, Monroe, Louisiana
      April 30, 1979
      /Jack L. Smith
      Jack L. Smith
      BMP:dc
      Enclosure

      . We glean from the record that the first user of an improvement has the right under internal revenue regulations to take the depreciation in the calculation of his income taxes.

      . C.C. Art. 3071:

      A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
      This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. ...


author: LOBRANO, Judge.

text:
    Archie SAUCIER v. DRS. HOUSTON, ROY, FAUST & EWIN and St. Paul Fire & Marine Insurance Company.
    No. C-1894.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 23, 1984.
    Writ Denied April 23, 1984.
    H. Martin Hunley, Jr. and C. William Bradley, Jr., New Orleans, for relator.
    Floyd J. Reed, New Orleans, for respondents.
    Before CIACCIO, LOBRANO and WILLIAMS, JJ.
   LOBRANO, Judge.

This writ presents the issue of retroactive application of La.R.S. 9:5628. That statute became effective on September 12, 1975 and provides as follows:

A. No action for damages for injury or death against any physician, chiropractor, dentist or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.

Prior to the enactment of that statute a medical malpractice action prescribed by the passage of one year from the date of the tort, or in the event of delayed discovery, by the passage of one year from the date of discovery. La.C.C. Arts. 3536, 3537.

The facts of the instant ease are as follows. In June of 1975, relators performed x-rays on plaintiff which allegedly demonstrated disease of the lungs, and relators neither advised plaintiff of the condition nor treated him for it. La.R.S. 9:5628 became effective September 12, 1975. Plaintiff discovered his condition in April 1979, and he filed his complaint in September of 1979.

If La.R.S. 9:5628 is applied retroactively, clearly plaintiff's claim is barred by the three year period. The lower court refused to do so, and relators have perfected this writ.

It is a well established general rule of law that statutes of limitation are remedial in nature and as such are generally accorded retroactive application. State v. Alden Mills, 202 La. 416, 12 So.2d 204 (1943); Shreveport Long Leaf Lumber Co. v. Wilson, 195 La. 814, 197 So. 566 (1940). However, in Lott v. Haley, 370 So.2d 521 (La.1979) the Louisiana Supreme Court refused to apply La.R.S. 9:5628 retroactively because of the peculiar facts of that case. The alleged malpractice occurred on January 21,1972. The injury was discovered on April 1, 1976, and suit was filed March 21, 1977. Clearly, under the law prior to the enactment of the subject statute the suit was timely. However, applying the statute retroactively, the three year limitation would have expired January 21, 1975. The Supreme Court pointed out that procedural and remedial laws are not accorded retroactive effect where it would operate to unconstitutionally disturb vested rights. They further stated:

“However, in the instant case, La.R.S. 9:5628 operates to eliminate plaintiffs vested right to sue on his pre-existing cause of action without providing a reasonable period following its enactment to assert his claim. Absent such a provision, we conclude that La.R.S. 9:5628 cannot be retroactively applied in the instant case because to do so would divest plaintiff of his vested right in his cause of action in violation of the due process guarantees under the state and federal constitution.”

Clearly, in Lott, giving retroactive application to La.R.S. 9:5628 would have deprived plaintiff of his cause of action since the three year limitation would have expired on January 21, 1975, eight months prior to the enactment of the statute. Thus, plaintiff would have had no opportunity to file his claim.

However, in Ramirez v. St. Paul Fire and Marine, Ins., Co., 433 So.2d 219 (La.App. 3rd Cir.1983), our brethren of the Third Circuit applied the statute retroactively and barred plaintiff’s cause of action. The facts of that case are very similar to the instant case. There, the alleged malpractice occurred on June 10, 1975. The injury was discovered on August 9, 1980 and suit filed on August 5, 1981. Since the effective date of the statute is September 12, 1975, the Court reasoned:

“It is our opinion that two years and nine months was a reasonable period of time within which to allow plaintiff to bring her action. If we were to allow plaintiff three years following enactment of the statute to assert her claim, her action would still have prescribed as she failed to institute it until August 5, 1981.” Ramirez, supra at 221.

In the Federal District Court case of Fust v. Arnar-Stone Laboratories, No. 80-0084 decided January 9, 1984 the Court found that the claim was barred by the three year peremptive period. The facts of that case show that the alleged malpractice occurred sometime between March of 1975 and November of 1975. The suit was filed on January 7, 1980. In dismissing plaintiffs suit as being untimely, the District Court interpreted Lott as allowing retroactive application of La.R.S. 9:5628 in those instances where an aggrieved party is given a reasonable period of time after September 12, 1975 to file suit. The Court held that Ramirez was a correct interpretation of Lott.

The Second Circuit case of Zeno v. Lincoln General Hospital, 376 So.2d 1284 (La.App. 2nd Cir.1979 followed the holding of Lott and refused to give retroactive application of La.R.S. 9:5628. However, in that case the alleged malpractice occurred in 1969, and thus the 3 year period expired prior to the enactment of the statute. Clearly its retroactive application would have divested plaintiff of a vested right in his cause of action.

Under the facts of the instant case, we are of the opinion that the rationale of Ramirez is controlling. The retroactive application of the statute does not divest plaintiff of anything other than approximately three additional months within which to file suit. Even assuming we were to extend the period to three years from the effective date of the act, that is until September 12,1978, plaintiff would still not have been timely. We are of the opinion that the rationale of Lott does not apply in the instant case since plaintiff had 2 years and 9 months within which to file his claim. Although it is argued that since he didn’t discover the injury until April of 1979, it would have been impossible to file within the prescribed three years, that issue is properly for the legislature. In essence plaintiff complains that the statute is unfair. Nonetheless, the legislature saw fit to put a three year peremptive period on malpractice claims. We see no legal reason to disturb that in this case.

Accordingly, a writ of mandamus is directed to the trial court directing that summary judgment be granted in favor of defendants and that plaintiffs suit be dismissed.


author: PONDER, Judge.

text:
    Jake B. REED v. LOUISIANA HY-PRO, INC., et al.
    No. 83 CA 0314.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff-appellant Jake B. Reed.
    Thomas A. Lane, Baton Rouge, for defendant-appellee Louisiana Hy-Pro Inc. and U.S. Fidelity & Guar. Co.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiff appealed the judgment awarding him some workmen’s compensation benefits but denying penalties and attorney’s fees.

The issues are the extent of plaintiff’s disability and the denial of penalties and attorney's fees.

We affirm in part and reverse and render in part.

Plaintiff sustained an injury to his right chest and shoulder area and burns to his left foot and ankle while in the course and scope of his employment as a heavy equipment operator for defendant, Louisiana Hy-Pro, Inc. Defendant, United States Fidelity and Guaranty Company (USF & G), paid plaintiff compensation benefits from April 2, 1981 through May 28, 1981 and again from April 21, 1982 to the date of trial.

The trial court found that plaintiff was entitled to compensation benefits for the forty-seven week period between May 28, 1981 and April 21, 1982; and that thereafter plaintiff was entitled to disability benefits only through October 28, 1982. Penalties and attorney’s fees were denied.

Dr. Charles R. Chesnutt, an expert in the field of industrial medicine, treated plaintiff following the accident on April 2, 1981. He diagnosed a contusion to the chest, but x-rays revealed no rib fracture or other abnormality. Dr. Chesnutt later prescribed a rib belt for support.

Dr. Chesnutt testified that plaintiff suffered a second degree burn to the left foot and ankle with one or two small areas of third degree burn. The injury presented slow steady healing and on April 27, 1981, Dr. Chesnutt noted that plaintiff was to return in three days to discuss the possibility of a skin graft operation. Plaintiff did not return on that date. The last time Dr. Chesnutt examined plaintiff was on December 28, 1981, at which time he believed plaintiff’s foot was healed.

Plaintiff was referred by his attorney to Dr. Marvin Clifton. Dr. Clifton’s report, dated March 18, 1982, prescribed medication for plaintiff and recommended physical therapy.

Jeffrey Samson, the USF & G claims adjuster handling plaintiff’s claim, testified that when he received Dr. Clifton’s medical report, he requested that plaintiff be examined by an independent doctor. Samson selected Dr. Joseph W. Laughlin, whose initial examination of plaintiff on April 21, 1982, was similar to Dr. Clifton’s. Samson reinstituted compensation benefits beginning that date.

Dr. Laughlin, an expert in the field of orthopedics, recommended that plaintiff undergo physical therapy for his right shoulder and left foot and ankle and that he undergo the physical therapy program pri- or to return to employment. Dr. Laughlin did not assign a disability rating.

Plaintiff underwent physical therapy from July 6, 1982 through July 16, 1982. Dr. Laughlin reexamined him on July 29, 1982 at which time there was significant improvement in the range of motion of the left ankle and shoulder area. Dr. Laughlin noted in his report that plaintiff had significantly improved to the point that he felt plaintiff was able to return to work. He prescribed a shoe with special liners to prevent skin irritation to the foot.

Dr. Laughlin next examined plaintiff on September 30, 1982, noting further improvement. Dr. Laughlin recommended that plaintiff try to return to work on a regular status.

Plaintiff was last examined by Dr. Laughlin on October 28, 1982. Plaintiff noted no particular pain in the right shoulder area but stated he continued to have intermittent pain in the right rib cage which seemed to plaintiff to be aggravated by some activities at work. The corrective shoe provided plaintiff a significant amount of relief and examination of the ankle revealed a full range of motion. Dr. Laugh-lin told plaintiff he would see him on an “as needed” basis as regular examinations were not necessary. He again indicated plaintiff could return to work.

Plaintiff testified the physical therapy did a lot of good, but that when he tried to return to work he was too slow and was in pain. He testified he still suffers pain.

We believe that plaintiff failed to prove that he suffers substantial pain rendering him incapable of performing the tasks of his former employment or of any other gainful employment. The medical evidence shows that he can return to work without restriction. The trial court’s finding that plaintiff was not totally and permanently disabled was not clearly wrong.

The trial court also found that giving a liberal interpretation to the medical evidence, and particularly to Dr. Laughlin’s last medical report, disability benefits were due only through October 28, 1982. We find no manifest error.

Plaintiff alleges that he is entitled to penalties and attorney’s fees because of USF & G’s termination of benefits on May 28, 1981.

Samson testified that his decision to terminate benefits was based on Dr. Ches-nutt’s medical report which stated that Dr. Chesnutt assumed plaintiff was well because plaintiff had not returned for followup appointments.

Plaintiff testified he was arrested and incarcerated on either April 29, 1981, or May 1, 1981 and remained in jail until early October, 1981. Upon his release plaintiff went back to Dr. Chesnutt. Samson testified he did not know that plaintiff was in jail until some time after his incarceration.

We do not have the benefit of Dr. Ches-nutt’s report as it was not introduced into evidence. USF & G offered no other evidence as to facts it relied on to terminate benefits. There is no indication in the record as to whether Dr. Chesnutt released plaintiff to return to work or what plaintiff’s medical condition was when payments were stopped. Nor does the record indicate whether Samson made further inquiries into plaintiff’s condition or work status.

A compensation insurer is only liable for penalties and attorney’s fees when its failure to pay benefits is arbitrary, capricious or without probable cause. La.R.S. 22:65s.

An injured employee’s benefits may not be stopped on the basis of inconclusive medical reports. It is incumbent upon insurers to make reasonable efforts to ascertain the employee’s exact medical condition at the time benefits are stopped. Orgeron v. Tri-State Road Boring, Inc., 434 So.2d 65 (La.1983); Salvador v. Slidell Industries, Inc., 415 So.2d 511 (La.App. 1st Cir.1982).

Under these circumstances, we find that USF & G’s termination of benefits based solely on Dr. Chesnutt’s report which assumed plaintiff was well, was arbitrary and capricious and the compensation insurer is liable for penalties and attorney’s fees.

USF & G will be cast in judgment for a penalty of twelve percent of the $7,332.00 due for the forty-seven week period in which compensation benefits were not paid.

The award of attorney’s fees is in the form of a penalty and the amount need not be proven. Orgeron v. Tri-State Road Boring, Inc., supra. We believe an award of $3,000.00 for the attorney’s services, including the trial and appeal in this matter, is reasonable and appropriate.

For the foregoing reasons, the judgment of the trial court is reversed insofar as it denies plaintiff recovery of penalties and attorney’s fees. Plaintiff is awarded the penalty amounting to twelve percent of the total amount of the claim due and $3,000.00 in attorney’s fees. In all other respects, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

      . La.R.S. 22:658:
      All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the' event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney's fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.


text:
    STATE of Louisiana ex rel. Mark A. FORD v. Paul SEAWELL, Record Custodian, et al.
    No. 83 CA 0320.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Mark A. Ford, in pro. per.
    Martha Morgan, for Secretary of Dept, of Corrections, Baton Rouge, for defendants-appellees Paul Seawell, Record Custodian, and Donna M. McGehee, Asst. Record Custodian.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiff, an Angola inmate, appealed the dismissal of his writ of mandamus to require that defendants correct his parole eligibility date and bring him before the parole board.

The issues on appeal are the applicability of the writ of mandamus and the application of good time credit to plaintiffs sentence.

In 1976 plaintiff was sentenced to serve four eighteen year sentences and a five year sentence, all to run concurrently. After an appeal in 1979, one of his eighteen year sentences, for burglary of a pharmacy, was reduced to nine years, to run concurrently with the other sentences but to be served without benefit of parole, probation or suspension of sentence.

Plaintiff filed a writ of mandamus alleging that defendants, record custodians of the Department of Corrections, erred in setting his parole eligibility date as September 18,1984, by requiring that he serve the full nine year sentence prior to becoming eligible for parole and in failing to give him credit for good time on the nine year sentence. Defendants filed a peremptory exception of no cause or right of action which was denied.

The court, upon the commissioner’s recommendation, held that the Department of Corrections had the authority to establish procedures for the awarding of good time credit and that this was an exercise of discretion, not subject to mandamus even if the method selected did not give maximum benefit to some prisoners. The writ of mandamus would lie if the calculations were not uniformly or correctly made.

A writ of mandamus may be used to compel performance when there is no element of discretion left and the act is purely ministerial. La.C.C.P. art. 3863. Clarco Pipeline Co. v. East Baton Rouge Parish, 383 So.2d 1296 (La.App. 1st Cir.1980), writ dismissed, 386 So.2d 355 (La.1980). Mandamus will also lie to correct an arbitrary abuse of discretion, but will not be issued in doubtful cases. Smith v. City of Alexandria, 300 So.2d 561 (La.App. 3rd Cir.1974), writ denied, 303 So.2d 186, 187 (La.1974).

La.R.S. 15:571.3, as it read at the time of plaintiffs sentencing and as it currently reads, gives the Department of Corrections the power to establish procedures for awarding and recording good time and determining when it has been earned toward diminution of a sentence. A twenty-five day per month limit on good time credit existed at the time plaintiff was convicted.

The testimony of Paul Seawell, a records system analyst for the Department of Corrections, stated that with concurrent terms, the policy was to make the subject serve the longest term possible. Good time could only be earned on one sentence when concurrent sentences were being served, to keep the prisoner within the twenty-five day limit on good time credit. He further testified that the Department of Corrections has set up a uniform procedure in which a parallel of concurrent sentences is done to determine which will control good time credit, which is allowed on only one sentence.

We find no evidence that the procedures used for awarding good time are not applied uniformly or that the application of credit to only one of several concurrent sentences in a manner resulting in longer incarceration is an abuse of discretion.

For these reasons, the trial court judgment is affirmed with costs assessed to the plaintiff.

AFFIRMED.

      . La.C.C.P. art. 3863:
      A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law, or to a former officer or his heirs to compel the delivery of the papers and effects of the office to his successor.

      . La.R.S. 15:571.4:

        A. The computation of good time earned by prisoners in parish prisons shall be on the pro rata basis of two months earned good time for twelve months actually served time during each of the first and second years of incarceration, three months earned good time for twelve months actually served time during each of the third and fourth years of incarceration, and four months earned good time for each twelve months actually served time after the serving of four full years from date of incarceration.
      When, after allowance of good time earned on the above basis, the sum total of time actually served plus the total of good time earned shall leave less than one year of the sentence originally imposed or of the time to which the sentence has been commuted; the date on which the prisoner may be released shall be determined in the following manner:
      (1) If the expiration date of sentence without any further allowance for good time earned will occur in the second twelve months period from date of incarceration, then the prisoner may earn one-seventh off of the unexpired sentence for good time.
      (2) If the expiration date of sentence without any further allowance for good time will occur in the third or fourth twelve months period from date of incarceration, then the prisoner may earn one-fifth off of the unexpired sentence for good time.
      (3) If the expiration date of sentence, without any further allowance for good time earned will occur in the fifth twelve months period subsequent thereto, then the prisoner may earn one-fourth off of the unexpired sentence for good time.
      B. Upon the recommendation of the warden or superintendent of the adult correctional institutions of the Department of Corrections, the secretary of the Department of Corrections may authorize the awarding of good time in the amount prescribed by law toward the diminution of sentence for an inmate in the custody of the Department of Corrections. Recommendations for good time credit shall be made on the basis of a thorough evaluation of the individual inmate's behavior, work performance, and efforts toward self-improvement. Good time for an inmate’s sentence shall be computed on the basis of twenty-five days per month for time actually served, which amount shall be applied toward diminution of sentence, if the crime for which he was sentenced was committed prior to September 10, 1977. Good time for an inmate’s sentence shall be computed on the basis of fifteen days per month for time actually served, which amount shall be applied toward diminution of sentence, if the crime for which he was sentenced was committed on or after September 10, 1977. Determination shall be made on a monthly basis as to whether good time has been earned, and good time not earned during a particular month shall not be credited at a later time. Good time which has been earned shall not be forfeited except as provided in Subsection C of this Section.
      C. Any inmate convicted of escape shall forfeit all good time earned on that portion of his sentence served prior to his escape. An inmate who has been returned to the custody of the Department of Corrections because of a violation of parole granted after July 26, 1972 shall forfeit all good time earned on that portion of the sentence served prior to the parole, up to a maximum of one hundred eighty days. In all other cases forfeiture of good time shall not exceed the maximum number of days allowable for any one month of time served as provided in Subsection B of this Section.


text:
    HOPE DEVELOPERS and Charbonnet, Inc. v. Ann Cook OURSO.
    No. 83 CA 0338.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    See also, La.App., 434 So.2d 592; La.App., 439 So.2d 450.
    William C. Shockey, Baton Rouge, for plaintiffs-appellees Hope Developers and Charbonnet Inc.
    Gerard E. Kiefer, Baton Rouge, for defendant-appellant Ann Cook Ourso.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Defendant appealed the trial court’s judgment ordering the cancellation of a notice of lis pendens.

The sole issue on appeal is whether the cancellation of the Ms pendens was proper. However, we have determined that the case is moot.

Defendant, Ann Cook Ourso and William C. Ourso, were legally separated on August 11, 1980 and executed a community property settlement on August 15, 1980. In that agreement defendant conveyed her interest in the community, including her undivided interest in property held by Hope Developers, a partnership in commendam, and stock in Charbonnet, Inc., in return for $216,000.00, represented by a note payable on demand.

The parties then signed a counter letter, in which Mr. Ourso agreed to pay the obligation as soon as he was financially able.

Defendant filed a suit to rescind the community property agreement, alleging lack of or failure of consideration and a notice of Ms pendens regarding the property transferred in the community property settlement. Charbonnet, Inc. and Hope Developers then filed this suit seeking cancellation of the notice of Ms pendens and contended that Hope Developers owned the property at the time of the execution of the community property settlement and that some of the property described in the notice had been transferred to Charbonnet, Inc. prior to its filing.

The trial judge ordered the cancellation of the notice in January, 1983 and defendant filed a devolutive appeal.

Plaintiffs failed to carry their burden in a previous motion to dismiss on the grounds of mootness because they did not attach a certified copy of the judgment in Mrs. Ourso’s suit. Hope Developers v. Ourso, 439 So.2d 450 (La.App. 1st Cir.1983).

A judgment was rendered in defendant’s suit seeking rescission of the community property agreement on February 9, 1983. The trial court dismissed the suit but did not order the cancellation of the notice of lis pendens pursuant to La.C.C.P. art. 3753, because it had already been cancelled by the trial court judgment in the case sub judice. No appeal was taken from the dismissal of Mrs. Ourso’s suit and that judgment is final. The counsel for both parties did not see fit to inform us of this action. We deem this less than full cooperation with this very busy court.

Any decision rendered herein would have no practical relief in light of the above facts. Even if we could find that the cancellation was improper, a reinstatement of the lis pendens would be impossible since Mrs. Ourso’s case has been dismissed by a final judgment. The case is moot.

Therefore, for the above reasons, we dismiss the appeal for being moot and costs are assessed equally to the appellant and the appellees.

APPEAL DISMISSED.

      . Hope Developers is a partnership in commen-dam with 70% of the ownership belonging to Mr. Ourso and 30% belonging to Mr. Thomas Benton. Charbonnet Corporation is a corporation that develops and markets the Hope Developers's properties and is also owned by Mr. Ourso and Mr. Benton in the same proportions.

      . Defendant initially filed a suit on the note after Mr. Ourso did not pay it on demand. The two suits were consolidated. Judgment was rendered in favor of Mrs. Ourso on the first suit and Mr. Ourso appealed. That appeal was later dismissed after the parties reached a settlement.


author: EDWARDS, Judge.

text:
    Lonnie S. DIDIER, et al. v. DEPARTMENT OF STATE CIVIL SERVICE.
    No. 83 CA 0340.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Richard C. Cadwallader, A Professional Law Corp., Baton Rouge, for appellants.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for appellee.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Lonnie S. Didier and twenty-five other appellants are all employees of the Monitoring and Evaluation Section (MES) and the Resource Development Section (RDS) of the Office of Human Development of the Louisiana Department of Health and Human Resources.

Beginning in September of 1979, appellants sought, using Civil Service procedures, to effect changes in their employee classes, titles and salaries so as to coincide with wholesale similar changes effected on behalf of other Office of Human Development employees.

On May 8, 1981, appellants were granted changes in their various positions and titles, effective March 24, 1981, by the Department of Civil Service. Appellants’ request that their new classifications and pay be made retroactive to September 1, 1980, was initially rejected but was later agreed to by George Hamner, Director of the State Department of Civil Service, subject to the availability of funds. On November 12, 1981, the State Interim Emergency Board made said funds available. Subsequently, on February 4, 1982, Allen Reynolds, acting Director of the State Department of Civil Service, George Hamner having retired, refused to disburse the available funds on the ground that Civil Service had no authority to do so.

Claiming discrimination, Mr. Reynolds’ February 4 decision was appealed to the Louisiana State Civil Service Commission whereupon the Department of State Civil Service moved for summary disposition, urging that appellants had failed to allege discrimination with the specificity required by Civil Service Rule 13.11(d). Following a hearing conducted and treated as based on a peremptory exception of no cause of action, the Louisiana Civil Service Commission, by a plurality of three to two with two other members not participating, issued an opinion dismissing appellants’ case for failing to allege discrimination with the specificity required by Rule 13.11(d). The present appeal followed.

In this court, the only issue is whether or not appellants alleged discrimination with sufficient specificity to satisfy Civil Service Rule 13.11(d). Essentially, we must determine whether appellants have stated a cause of action under Rule 13.11(d).

Rule 13.11(d) provides in pertinent part:

“A notice of appeal must
(d) Contain a clear and concise statement of the actions complained against and a clear and concise statement of the basis of the appeal. Where discrimination is alleged to be a basis for appeal, specific facts supporting the conclusion of discrimination must be alleged in detail. ...”

Appellants’ letter of appeal sets forth, in great detail, the entire chronology of this matter. In addition, some thirteen documents, comprising relevant materials necessary to support appellants’ allegations of discrimination, are attached to said letter.

The peremptory exception of no cause of action, LSA-C.C.P. Art. 927(4), tests the legal sufficiency of a petition. For deciding such an exception, all well pleaded allegations of the petition, as well as those appearing from annexed documents, must be taken as true. If a petition states a cause of action as to any ground, the exception must be overruled and any doubt as to the sufficiency of the petition must be resolved in favor of the plaintiff. Haskins v. Clary, 346 So.2d 193 (La.1977); Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Godwin v. East Baton Rouge Parish School Board, 372 So.2d 1060 (La.App. 1st Cir.1979), writ denied 373 So.2d 527 (1979).

In its opinion, the Civil Service Commission majority stated:

“Appellants allege in great detail the circumstances concerning the personnel package for MES and RDS. Appellants allege that recommendations concerning their positions were submitted to the Department of State Civil Service on March 26, 1980, in June of 1980 and on August 27, 1980. They allege that tentative specifications were completed by the Department of State Civil Service on February 19, 1981, and were sent to the Department of Health and Human Resources for further action. They also allege in detail what happened thereafter. However, appellants provide no facts concerning the establishment of the new classes for the Division of Evaluation and Services (DES) other than that their new classes were approved retroactive to August 27, 1979. Appellants do not state when the DES package was submitted to the Department of State Civil Service, when the tentative specifications for the DES positions were completed or when interim approval was granted for the DES classes. Thus, there is no factual basis alleged in the notice of appeal upon which the Commission could conclude that appellants were treated differently from other employees of DES.”

In contrast to the majority, the dissenting Commission members opined that:

“In the request for appeal, appellants allege that the recommendations for the establishment of the new classes were all part of one package. Appellants also alleges [sic] that the new classes for employees of the Division of Evaluation and Services were established retroactively but that the new classes established for their positions were not established retroactively. The undersigned Commissioners conclude that discrimination was properly alleged and would deny the Request for Summary Disposition and would refer this appeal to a hearing on the merits.”

We agree with the dissent. A reading of the record, consisting in great part of appellants’ pleadings and attachments, clearly shows that appellants, while not wording their appeal most artfully-, have claimed discrimination on several grounds, albeit somewhat repetitive:

1.That for the Department of State Civil Service to select March 24,1981, rather than September 1,1980, as the date for appellants' class, title, and pay increases was discriminatory in comparison to treatment afforded other Office of Human Development employees;
2. That delaying appellants’ class, title, and pay increases for the period from September 27, 1979, until April 9, 1981, was discriminatory in view of the treatment afforded other Office of Human Development employees;
3. That approving other Office of Human Development employees for new classes and salaries retroactive to August of 1979 but for denying same to appellants was discriminatory;
4. That having reclassified appellants, it is discriminatory not to award back pay to the date on which their additional duties commenced; and
5. That to withhold retroactive pay already granted is discriminatory.

Citing Mayeaux v. Department of State Civil Service, 421 So.2d 948 (La.App. 1st Cir.1982), as being on all fours with the present case, the Civil Service Commission urges that we affirm their dismissal of appellants’ case. Aside from the fact that the sufficiency of each petition must be tested by its own language, and aside from the fact that appellants have provided massive, albeit not exhaustive, facts and documents to buttress their allegations, we would point out Thoreson v. Department of State Civil Service, 433 So.2d 184 (La.App. 1st Cir.1983), as being more on point.

In Thoreson, the Department of Civil Service, while seeking a rehearing, urged via exception that this court did not have subject matter jurisdiction to review cases in which the Civil Service Commission used its legislative and executive powers to entertain appeals. Judge Shortess, in denying the exception specifically noted that the Civil Service Commission could, pursuant to Rule 13.10(e), hear the appeal of any classified person alleging discrimination by the application or change of a pay plan.

In the present case, Lonnie S. Didier and the other appellants have alleged discrimination based on, among other things, the application or change of a pay plan (the nonpayment of retroactive pay). Clearly, appellants have specified their allegations sufficiently to satisfy Civil Service Rule 13.11(d).

We do not speculate on the outcome of appellants’ case. We merely hold that appellants are entitled to their day in court, before the Civil Service Commission, on the merits.

For the foregoing reasons, the opinion of the Louisiana State Civil Service Commission is reversed and the case is remanded for a hearing on the merits with costs to be assessed after final determination.

REVERSED AND REMANDED.