author: SCHOTT, Judge. PER CURIAM.

text:
    SAUVE HEIRS, INC. v. REYNAUD CONSTRUCTION CO., INC. and John D. Reynaud, Jr.
    No. CA 0631.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Rehearing Denied Dec. 21, 1983.

      Donald A. Meyer, Shushan, Meyer, Jackson, McPherson & Herzog, New Orleans, for defendant-appellee.
    C. Ellis Henican, Henican, James & Cleveland, New Orleans, for plaintiff-appellant.
    Ralph L. Kaskell, Jr., Deutsch, Kerrigan & Stiles, New Orleans, for third-party defendant-appellee J.J. Krebs & Sons, Inc.
    William J. Wegmann, Sr., Frederick R. Bott, Patricia Maureen Joyce, Deutsch, Kerrigan & Stiles, New Orleans, for third-party defendant-appellee J.J. Krebs & Sons, Inc.
    C. Murphy Moss, Jr., and George E. Cain, Jr., Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for third-party defendant-appellee Commonwealth.
    Before REDMANN, SCHOTT and CIAC-CIO, JJ.
   SCHOTT, Judge.

This is an action for damages for fraud allegedly committed in the sale of real estate from defendant, Reynaud Construction Company, Inc., to plaintiff, Sauve Heirs, Inc. Alternatively, plaintiff seeks compensation based upon mutual error in the contract of sale. Also joined as a defendant was John D. Reynaud, Jr. based on an indemnification agreement. This appeal is from the trial court’s dismissal of plaintiff’s case. The issues are whether plaintiff is precluded from recovering because a levee over a substantial part of the property it purchased constituted an apparent servitude in accordance with Richmond v. Zapata Development Corp., 350 So.2d 875 (La.1977), and if not, whether the facts support plaintiff’s position based on either fraud or mutual error. Other potential issues include the proper measure of damages, the liability of a surveyor, J.J. Krebs & Sons, as third party defendant, and the liability to Krebs of Commonwealth Land Title Insurance company, on third party demand.

The sale in question was confected on December 10, 1973, and transferred title to a number of lots in Sections 2 and 3 of Lake Trail Subdivision in Jefferson Parish as well as Parcel A, which is the focal point of this controversy. All the property was described as follows:

“Parcel “A” of Section III, which said Parcel “A” contains 3.468 acres and measures 179.70 feet front on 45th Street and a first depth of 4.68 feet along its line common to Lot 171, Square 13, Section III, by a second depth along the line adjoining Lot 171 of 204.17 feet and by a third depth along the westerly line of the subdivision of 555.56 feet and a depth on the opposite sideline (David Drive side) of 740.72 feet, with a width in the rear of 255.48 feet.”

According to the survey Parcel A is clearly located between 45th Street on the south and the right of way of the Pontchartrain Levee District on the north.

Following the purchase plaintiff sold all the property except Parcel A and four lots just south of it to Don Villarubia, who was to construct a bridge over the canal at 41st Street and cut Lake Trail Drive up the middle of the subdivision to Parcel A. As he was doing this work on September 30, 1974, he discovered that the Lake Pontchartrain levee was located on Parcel A. He reported this to the plaintiff’s principals, Charles McHale and Frank Spalitta, who in turn discovered that the southern boundary of the levee right of way was the northern side of 45th Street, so that Parcel A was wholly within the right of way and was virtually useless to plaintiff.

The subject sale was not a typical one, but, instead, was the culmination of a joint project launched by the parties in June, 1972. A proper understanding of the issues requires a discussion of this background. Plaintiff had held title to a forty-two feet wide strip of land stretching almost two miles from Interstate 10 Highway in Ken-ner toward Lake Pontchartrain. Defendant had an option to purchase an adjacent Tract X measuring about 185 feet wide. Both parties recognized the advantage of combining the properties for the purpose of a residential subdivision since neither property standing alone could be developed economically. The agreement they reached in June, 1972, provided for plaintiff to convey to defendant the Sauve tract and for defendant to purchase Tract X. Defendant would obtain from the governmental authorities approval of a subdivision of the property consisting of Section 1 between 31st Street and West Esplanade Avenue, Section 2 between West Esplanade and 41st Street, and Section 3 from 41st Street to Lake Pontchartrain, and upon completion of the development defendant would retain Section 1, plaintiff would get Section 3, and the parties would divide the lots in Section 2. The transfer of the property allotted to plaintiff would be for one-half the costs expended by defendant in the acquisition and development of the tract.

Although the basic concept seemed clear when the time came for defendant to convey to plaintiff its share of the project differences developed which took several months of difficult negotiations to resolve. However, in November, 1973, the parties finally entered into an agreement to purchase which spelled out exactly what lots plaintiff would take from Section 2 along with the whole of Section 3 and what price would be paid by plaintiff. In the agreement to purchase as in the act of sale Parcel A was included by the description given above.

When McHale and Spalitta contacted Krebs about Parcel A being within the levee right of way they were informed that in October, 1972, defendant’s attorneys, Louis Graham and J.B. Kiefer, had been sent a perimeter survey of the property which specifically showed the southern boundary of the right of way to be on the north side of 45th Street. This survey also showed a title problem on the western side of Section 3 consisting of a substantial encroachment on several lots in the northwest corner of Section 3.

According to Graham and Kiefer they never saw this survey but they were told of the title conflict and were shown a tracing in Krebs’ office showing the conflict but not the southern boundary of the right of way. They immediately studied their title files along with abstracts of the neighboring properties and concluded that there was no encroachment. They so informed Krebs and asked that the encroachment’s designation be removed. The survey was revised to delete the encroachment, but it still showed the southern boundary of the right of way to be at the north line of 45th Street. According to Krebs this corrected perimeter survey would have been sent to Reynaud, Graham and Kiefer, but they all denied having seen this survey.

In any event this perimeter survey dated October 24, 1972, was revised in July, 1973, to show the lots, squares, and streets of the subdivision in Sections 2 and 3. The last lots on the north side of Section 3 were shown to be at 45th Street. However, this revised survey incredibly omitted the southern boundary of the Pontchartrain Levee right of way. Instead, the survey indicated the presence of a viable, useful, and valuable piece of property designated as Parcel A located between 45th Street and the levee right of way line, ostensibly the southern boundary line but in actuality the northern boundary.

Plaintiff’s case of fraud against defendant is based on the theory that Reynaud, Graham and Kiefer all knew there was no Parcel A, that this information had been disclosed by the earlier Krebs’ surveys, and that they covered up this information and deceived plaintiff into believing it was getting Parcel A in the December act of sale based on the misleading latest Krebs survey. Alternatively, plaintiff contends that all parties were in error as to the existence of Parcel A, and since this was a principal cause for the contract plaintiff is entitled to compensation for the deficiency in the property it received.

The trial court found that plaintiff, through McHale and Spalitta, was on notice of the existence of the levee and should have conducted an examination to determine its location before the sale. The court reasoned that McHale’s and Spalitta’s discovery that the levee covered Parcel A in 1974 would have occurred before the sale had they but visited the property by walking westward along the levee from Williams Boulevard to the property. The court thus concluded that the levee was an apparent servitude against which the vendor’s warranty was inapplicable as in Richmond v. Zapata Development Corp., supra.

The record does not support this conclusion. In the Richmond case there were “extensive mineral recovery operations” being conducted on 360 acres of a 640 acre tract consisting of “a network of pipelines, tanks, lines, canals, structures, shacks, offices, houses, drilling equipment, rigs, both active and abandoned, roadways and other earthen works, ponds, pits, oil spills and pollutants.” The court concluded at page 880 that:

“.... just as an apparent servitude, an undisclosed mineral lease which produces on the property ample signs of its existence is a real charge of which it is the buyer’s business not to be ignorant and against which he cannot claim warranty.” Richmond v. Zapata Development Corp., supra at P. 880.

However, in the instant case the undisclosed levee right of way on Parcel A did not produce “ample signs of its existence.” This property was two miles long and none of the paper subdivision streets had been physically cut in Section 3 before the sale was passed. The record is not clear as to where the closest cross road through the property was located, but an aerial photograph indicates the presence of a canal running across the property at 41st Street with a road alongside. This appears to be about 2800 feet, or more than half a mile, south of the levee right of way. According to the Krebs plan this 2800 feet would accommodate lots in squares bounded by 41st, 42nd, 43rd, 44th and 45th Streets and would leave an additional 700 feet of depth to accommodate Parcel A before the right of way line was reached. Thus, the trial court charged plaintiff’s agents with the knowledge that, as they stood on the levee and looked south, there was only some 2800 feet of distance across this heavily wooded area to the canal, which no evidence shows would have been visible in any event, rather than some 3500 feet which the plan called for. To place such a burden on this purchaser would be unreasonable.

This conclusion is analogous to the one we reached in Powell v. Department of Highways, 383 So.2d 425 (La.App. 4th Cir.1980) writs refused, La., 389 So.2d 1129. There the Highway Department constructed a fence twenty-five feet beyond its right of way on plaintiff’s property. The argument was that prescription began to run against plaintiff when the fence was built because plaintiff was then charged with the duty of discovering that the fence’s actual location was beyond that shown on the Department’s plan prepared when it purchased the right of way from plaintiff twelve years earlier. In rejecting the Department’s argument we observed at page 428:

“.... There is no evidence to show that any of the property adjacent to or in the vicinity of plaintiff’s land was occupied or developed so that plaintiff had no reasonable point from which to measure or discover that the Department placed the fence in the wrong location.”

Having concluded that the trial court was in error in dismissing plaintiff’s suit on the basis of the Richmond case we must now grapple with the issues of fraud and mutual error. As to fraud, plaintiff had the heavy burden of establishing it by exceptionally strong proof beyond a mere preponderance of the evidence. LSA C.C. Art. 1847, Hall v. Arkansas-Louisiana Gas Co., 368 So.2d 984 (La.1979), modified, other grounds 453 U.S. 571, 10 S.Ct. 2925, 69 L.Ed.2d 856 (1981) Josephs v. Austin, 420 So.2d 1181 (La.App. 5th Cir.1982), writ den. La., 427 So.2d 870. The record does not reflect that plaintiff met that burden.

Reynaud was an experienced developer. Graham and Kiefer were attorneys specializing in real estate title work and agents for the title insurance company which was to insure plaintiffs title to Parcel A. It seems incongruous that these individuals never saw the first Krebs survey which showed the encroachment on the northwest corner of Section 3 and the levee right of way line running along the north side of 45th Street. This is especially so when we consider that one A.J. Goubler, an associate of the law firm of Messrs. Graham and Kiefer, wrote to Krebs for the law firm on October 23, 1972, making specific reference to the survey in the context of requesting that the conflict in the northwest corner be removed from the plan “as discussed with you by Mr. Graham and Mr. Reynaud.”

In this court plaintiff argues that defendant’s failure to call Goubler as a witness creates a presumption that his testimony would have been adverse to defendant. However, he was no longer associated with the law firm at the time of the trial and he was equally available as a witness for either party. See Crandall v. Scott, 350 So.2d 922 (La.App. 4th Cir.1977). The application of this rule of adverse presumption for failure to call a witness is particularly troublesome in this case not only because Goubler was available to both sides but also because plaintiff had the resources and the time to interview him and even take his discovery deposition to determine whether his testimony would have been favorable. In speculating on his testimony it is not unlikely that he would have supported the position taken by his former associates and that he would not have incriminated himself along with them. Furthermore, this rule must be tempered by the proposition that a party to a lawsuit needs only to prove his case. If he does so by calling one or more witnesses to testify concerning an issue he should not be penalized because he fails to call still another witness on the subject. On the other hand, the opposing party should not be allowed to sit back and take no action to produce a witness to a transaction and use that witness’s absence as mute refutation of the positive testimony of the adverse witnesses who did testify. Finally, since we are here dealing with the serious charge of fraud, we are unwilling to accept defendant’s failure to call Goubler as sufficient proof considering the unequivocal testimony of Reynaud, Graham, and Kiefer, the factors we have already discussed, and the circumstances surrounding plaintiff in this case.

When plaintiff began negotiating with defendant on this project in June, 1972, McHale and Spalitta were in possession of two surveys showing the Sauve tract and Tract X, one by Fontcuberta dated September 12, 1963, and the other undated, by Schuman. Both show the south boundary of the levee right of way to be coextensive with the north boundary of 45th Street. This is obvious to a lay person and it was so testified to by plaintiff’s expert witness, Louis Bisso. Surely it had to be known to McHale and Spalitta who were experts in land titles. But if the maps themselves did not establish this fact the description of the Sauve tract in the June, 1962, agreement dispels any doubt for it makes reference to the attached Schuman survey and reads in pertinent part from a beginning point on the south end of the tract as follows:

“.... thence in a northerly direction 10,-615" .... to its intersection with the right of way of the Lake Pontchartrain Protection Levee; thence along the right of way of the Lake Pontchartrain levee 105' more or less to a point, said point being on the westerly line of the property....”

When the Schuman survey and this description are compared to the Krebs survey available to McHale and Spalitta before the act of sale the conclusion is inescapable that Parcel A was indeed located in the right of way.

It is likewise significant that the Sauve tract was sold by plaintiff to defendant with warranty and part of the property sold back to plaintiff by defendant was the same property. Plaintiff now takes the anomalous position that it was supposed to get back something beyond that which it had in the first place.

We have made these observations in the context of dealing with plaintiff’s charge of fraud against defendant. We have concluded that these circumstances make plaintiff’s position as to fraud untenable, but we do not reach the same conclusion on the issue of error. Had Reynaud, Graham, and Kiefer testified that they knew as should McHale and Spalitta have known that Parcel A was within the right of way the result would have been obvious. Plaintiff’s suit could be dismissed without any difficulty. We could conclude that everyone knew Parcel A was burdened with the levee, but it was included for reasons known only to the participants. But Rey-naud, Graham and Kiefer doggedly and repeatedly testified that they didn’t know. On the contrary, they took the latest Krebs survey at face value and included Parcel A with the property conveyed to plaintiff. As to McHale and Spalitta, it seems that they forgot what they had conveyed to defendant and what was obvious from the Schu-man survey. With the passage of time and after months of hard bargaining and difficult negotiations with Reynaud over what property would be conveyed back to plaintiff they were misled by the Krebs survey into believing that there was a Parcel A. The stage was set for a classic mutual error of fact which is defined as that which proceeds from a mistaken belief in the existence of that which has none. C.C. Art. 1821.

C.C. Art. 1823 provides that for an error to invalidate a contract it must be on some point which was a principal cause for making the contract. According to McHale and Spalitta they were particularly interested in obtaining Parcel A because of its potential for commercial development. McHale testified that he never would have engineered this transaction had Parcel A not been available. On the other hand, Reynaud testified that he never even considered Parcel A in dealing the property to plaintiff. He claimed that the price of $402,000 paid by plaintiff was based upon a cost per square foot of the lots sold to plaintiff and Parcel A was assigned no value in these computations. Thus, he contends that the Parcel could not be a principal cause for the sale. The flaw in the argument is that no matter how unimportant he thought Parcel A was, it was so important to McHale and Spalitta that they would never have gone through with the purchase without it. Had the parties known there was no Parcel A this particular contract would never have been made. Perhaps Reynaud could have dealt additional lots to plaintiff to induce it to pay $402,-000 or perhaps the sale would have fallen through with defendant keeping everything including the near worthless Parcel A. But in either case the mutual error regarding Parcel A was necessarily a principal cause for both sides making the contract at issue and plaintiff is entitled to some relief.

The next, and perhaps most difficult, issue is the amount to which plaintiff is entitled. Plaintiff did not, and indeed, could not seek rescission of the sale, for by the time the error was discovered a substantial part of the property had been sold to a third party, Villarubia. Plaintiff sought to prove entitlement to the market value of a fictitious unencumbered Parcel A through the testimony and appraisal of various real estate sales experts. The law does not support this approach. Instead, the matter is controlled by C.C. Art. 2514 which provides as follows:

“Partial eviction, proportionate restitution of price.
If in case of eviction from a part of the thing, the sale is not canceled, the value of the part from which he is evicted, is to be reimbursed to the buyer according to its estimation, proportionably to the total price of sale.”

This article has been construed to mean that in the case of a partial eviction the buyer is relegated to an action against the seller for reimbursement of a proportionate amount of the purchase price. Collins v. Slocum, 317 So.2d 672 (La.App. 3rd Cir. 1975), writs refused (La.), 321 So.2d 362-364; Harville v. Campbell, 221 So.2d 273 (La.App. 2nd Cir.1969); O’Reilly v. Poche, 162 So.2d 787 (La.App. 4th Cir.1964). Unfortunately the statement of the law is quite simple compared to its application to the facts of this case. The task is to determine what portion of the purchase price is to be assigned to Parcel A in the fictitious unencumbered state the parties thought it was in. Plaintiff contends it played a great part in the price while defendant contends that little or no part of the price was assigned to it. The truth is somewhere in between.

Defendants take the position that the obligations of the parties can be determined from the initial agreement of June 14,1972, which provided the basic underlying “philosophy” to be followed as the project was developed. Plaintiff insists that this agreement was ultimately amended by negotiation and was replaced by the agreement to purchase of November 20,1973, and the act of sale of December 10, 1973. The record supports plaintiff’s position.

The June, 1972, agreement contained the following provisions:

1. Once defendant corporation acquired Tract X and the Sauve tract it was required to develop the property into a subdivision including the installation of all off site improvements in Sections 1 and 2. Upon acceptance of same by the City of Kenner and the Parish of Jefferson defendant was to convey to plaintiff certain portions of the property.

2. The price was to be computed by adding defendant’s costs for the acquisition of Tract X less the sum paid by plaintiff for the Sauve tract to defendant’s cost of the off site improvements in Section 2 only and its expenses for financing, certain attorney fees, title insurance premiums, engineering, costs incurred in the resubdivision procedure, the cost incurred in the acquisition of a closed street on the west side of the subdivision, property taxes, and some other miscellaneous matters. Upon determination of such costs and notification to plaintiff of same, it was to take title to its share of the property for one half of such total costs to be paid in cash.

3. The property was supposed to yield 120 lots in Section 1, 120 in Section 2, and 80 in Section 3 and defendant was to retain Section 1 with plaintiff acquiring Section 3. Defendant was to make available to plaintiff lots in Section 2 so that each party would “have the right to have and to hold one-half of the total resubdivided lots” with the choice of lots given to defendant. Special treatment was given to certain corner lots in Sections 1 and 2. Sauve was granted an option to purchase these at $2.00 per square foot within one year after governmental acceptance of the subdivision provided plaintiff took them all. Additionally, defendant would tender half of the sixteen corner lots in Section 2 under the overall terms of the agreement. However, defendant had “the right to retain up to fifty (50) lots situated in Section 2 (except the sixteen (16) corner lots aforesaid) at the exclusive choice and selection of Reynaud, of those lots which Sauve would otherwise be tendered title to at the sum of Five Thousand and No/100 Dollars ($5,000.00) per lot less the cost which Sauve would be required to pay in accordance with the formula herein-above set forth. In such event, Reynaud will only be required to deliver the balance of the lots remaining upon the payment of one-half (½) of the costs for same being paid by Sauve pursuant to the procedure hereinabove recited.”

4. The “costs” were to be “computed on a per square footage basis and the formula is to be interpreted in its application herein in this manner so as to arrive at the total cost” as summarized under No. 2 above.

The agreement could not be implemented as written for several reasons. The original plan of subdivision of Section 2 called for lots with fifty feet of frontage but this was rejected by the city with the result that there were only 113 lots in the section including the corners. Thus there were not fifty lots available to defendant under its option to purchase. In addition, defendant never developed Section 1 as the agreement required. Finally, the parties had considerable difficulty agreeing to the total costs which would set the price in accordance with the agreement. Nevertheless, they did agree that the object was to divide the property equally and for plaintiff to pay half the agreed costs to defendant. Months of negotiations ensued culminating in an agreement for plaintiff to take all of the frontage on West Esplanade Avenue in Section 1 (243.8 feet), 24 lots in Section 2, including eight corner lots, and all of the property north of 41st Street, i.e., Section 3 and Parcel A. While there is no question about the ultimate price of $402,100 there is a serious dispute over what that price represents.

According to defendant the price was arrived at by determining the cost per square foot of acquiring and developing the property using a generally agreed upon cost figure of $1,035,417, dividing it by the total square footage of 2,135,617 in the entire subdivision including streets but excluding Parcel A, and yielding .48 per square foot. This in turn was multiplied by 807,333.7 square feet consisting of the property sold to plaintiff exclusive of streets and exclusive of Parcel A. The ultimate price of $402,100 was arrived at with the addition of interest incurred because of plaintiff’s delay in taking title. From these figures defendant contends that Parcel A was never considered as having any value and played no part in the price so that plaintiff’s subsequent discovery that it had no value does not support any award of damages.

On the other hand, Spalitta flatly rejected the notion that square footage played any part in the ultimate settlement. He maintained that he was concerned with getting specific lots and had in his mind a sound figure of $400,000 as a settlement figure on the costs. McHale produced original notes he took at the final negotiations and testified from them that the parties had long abandoned the square footage approach. He explained that numerous conflicts had developed which caused the June, 1972, agreement to become inoperable. Among others, defendant could not develop Section 1 so that plaintiff’s obligations under that agreement were never triggered. Instead the parties were negotiating over lots and dollars and they ultimately agreed on the figure of $400,000. This figure was reduced by a $2400 bill defendant agreed to pay for engineering services in Section 3 and increased by $4500 which plaintiff agreed to pay for light standards and yielded the figure of $402,100.

We resolve this conflict in favor of plaintiff and find as a fact that these parties intended to make an overall settlement on a fifty-fifty basis so that the ultimate result was for plaintiff to receive half of the subdivision and to pay half the cost which the parties agreed to be $400,000. The remaining problem is to determine how much is due plaintiff for Parcel A which was included in its half and which was thought to be worth something but which, for all practical purposes, is worthless and practically nonexistent.

The first point to be clarified on this subject is that plaintiff is entitled not to the whole price of Parcel A but only half of the price. If A sells ten lots of equal value and size to B for $10,000 and the parties later discover that two of the lots are useless because of an encumbrance B may recover $2,000 from A. But if A and B hold the same ten lots, seek to divide them equally, and subsequently determine that two of B’s five lots are useless because of an encumbrance, B may recover one more lot or the price thereof. Thus, whatever value or price we find Parcel A to have, plaintiff is to recover fifty percent thereof.

The record makes it difficult to arrive at a conclusion and we have considered the possibility of a remand for this purpose as suggested by defendant. However, we have concluded that substantial justice can best be served by our arriving at a definite figure rather than relegating the parties to another round of protracted, expensive litigation with attendant expert witness fees to be paid by the parties.

The record shows that Section 2 yielded 729,864 square feet of lots (according to defendant exhibit R-ll) or 113 lots averaging 6459 square feet per lot. In the development of this section defendant incurred engineering fees of $7296.95, off site improvement costs for paving, sewerage and water of $297,821.20; and electric distribution costs of $45,431.65, or a total of $350,-549.80. Thus, the development cost per square foot for the developed land was .48, a figure which seems to have been accepted by both parties. Louis Bisso presented plans for the development of Parcel A (plaintiff’s exhibits Nos. 31 and 31C) which would yield 16 lots totaling 127,233 square feet, so that the cost of development at .48 per square foot would be $61,072.00. The testimony is fairly uniform that when the parties were dealing lots to each other they worked on the assumption that the lots were worth one dollar per square foot except for corner, commercial lots. Thus, Parcel A was worth $127,233.00 less the development cost of $61,072.00 or $66,-161.00. Allowing a slight premium for location close to the lake we increase this figure to $70,000.00 and award plaintiff its half, or $35,000.00.

One inequity remains for correction. Although Parcel A is unusable for development and therefore not suitable for the purpose intended by the parties it has some speculative value. Since we have compensated plaintiff for its full proportionate price (or the value of, say, eight other lots, plaintiff would presumably have received in a 50-50 split had the parties known the true condition of the sixteen lot equivalent of Parcel A), title to the parcel should remain in both parties. Surely, had they known about Parcel A’s true condition when they made their partition the logical option for them would have been to divide Parcel A or hold it in indivisión. Consequently, we will recognize the parties as owners of the parcel in indivisión leaving them to work with or divide it as they see fit.

Because of the result we have reached plaintiff has no cause of action against John D. Reynaud, Jr. under the indemnification agreement of June, 1982. We have attempted to correct an error in the ultimate contract between plaintiff and defendant corporation when they divided up or partitioned the property. The corporation was the sole beneficiary of the error and it alone must make the adjustment. Surely, the parties never contemplated such a result when the indemnification agreement was made.

Defendants’ third party demand against J.J. Krebs & Sons, Inc. must next be considered. In the prayer of the third party petition defendants sought indemnification for whatever they may be cast in judgment to plaintiff together with attorney fees they incurred in the defense of this suit. Defendants are not entitled to indemnification because the amount awarded to plaintiff is no more than what they would have dealt out to plaintiff in additional lots in Section 2 had both parties known the true circumstances of Parcel A. As to attorney fees for the defense of this suit we are unable to conclude that Krebs’ negligence in placing only the north boundary of the levee right of way on the survey thereby misleading both parties caused defendants to incur legal expenses in the defense of the suit. Once defendants became aware of the shortage of Parcel A they were under some duty to cooperate with plaintiff in the rectification of the error. The cause of their expenses was their own obstinate refusal to deal with the problem on an amicable basis and their stubborn insistence on trying to deprive plaintiff of any equitable adjustment of the partition.

Accordingly, the judgment dismissing plaintiff’s suit against defendant, Reynaud Construction Company, Inc., is reversed and set aside and there is judgment in favor of plaintiff, Sauve Heirs, Inc., and against defendant, Reynaud Construction Company, Inc., in the sum of $35,000.00 with legal interest from date of judicial demand until paid and for all costs of these proceedings; the judgment dismissing plaintiff’s suit against John D. Reynaud, Jr. is affirmed; and the third party demand against J.J. Krebs & Sons, Inc. is dismissed along with the demand of Krebs against Commonwealth Land Title Insurance Company and Commonwealth Title of New Orleans, Inc.

It is further ordered, adjudged, and decreed that plaintiff, Sauve Heirs, Inc., and defendant, Reynaud Construction Company, Inc., be recognized as owners in the indivi-sión, subject to the rights of the Pontchartrain Levee District of the State of Louisiana, of the following described property, to wit:

A certain portion of land situated in the Parish of Jefferson, State of Louisiana, designated as Parcel A, on a plan of survey of J.J. Krebs & Sons, Inc., dated September 13, 1974. According to said plan, Parcel A lies wholly within the right of way of the Lake Pontchartrain Protection Levee and measures as follows: Beginning at a point at the southeast corner of the parcel it measures 181.55' along the north side of 45th Street to a point at the end of 45th Street; thence 6.33' along the north side of Lot 171, Square 13, Section 3, of Lake Trail Subdivision, to a point; thence 134.66' along the north side of said Lot 171 to a point at the northeast corner of an “area of conflict;” thence 60.06' along the north side of said “area of conflict” to its northwest corner; thence 569.86' north to the northwest corner of the parcel; thence 250.42' east along the north side of the parcel; and thence 740.72' south to the point of beginning.

All costs of these proceedings are to be divided between plaintiff and defendant, Reynaud Construction Company, Inc.

AFFIRMED IN PART REVERSED IN PART AND RENDERED.

PER CURIAM.

We clarify an inconsistency in our original opinion to decree that costs of these proceedings are to be divided equally between plaintiff and defendant, Reynaud Construction Company, Inc.

Both applications for rehearing are denied.


source: Caselaw Access Project

author: LOBRANO, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kenneth LeCOMPTE, John LaGrange, Pedro Rodrigues, and John M. Hirschler.
    No. KA-0663.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Rehearing Denied Dec. 21, 1983.
    Writ Denied March 9, 1984.

      Hy Shapiro, Miami, Fla., and Frank G. DeSalvo, New Orleans, for appellants.
    Harry Connick, Dist. Atty., William Campbell, Jr. and John F. Craft, Asst. Dist. Atty., New Orleans, for appellee.
    Before GARRISON, LOBRANO and GU-LOTTA, JJ.
   LOBRANO, Judge.

The defendants, Kenneth LeCompte, John LaGrange, Pedro Rodrigues and John M. Hirschler were charged by bill of information with the unlawful possession of 16,-000 pounds of marijuana, a violation of LSA-R.S. 40:966(E). This bill was filed by the State after the United States District Court, Eastern District of Louisiana, granted a directed verdict acquitting all of the defendants of violations of 21 U.S.C.A. Sec. 841(a)(1) and 18 U.S.C.A. Sec. 2 allegedly the same crime charged in the present case.

At their arraignment on June 2, 1980, each defendant entered a plea of not guilty, and each filed a Motion to Suppress evidence and a Motion to Quash based on Collateral Estoppel and Double Jeopardy. After an evidentiary hearing, both motions were denied by the trial court. Thereafter, on June 9th, each defendant entered a plea of guilty to the crime charged, and specifically reserved his right to appeal the pretrial rulings under the holding in State v. Crosby, 338 So.2d 584 (La.1976). Each defendant was sentenced to 15 years at hard labor. However the court vacated the minimum mandatory terms pursuant to LSA-R.S. 40:966(D)(2), and sentenced LeCompte to five (5) years imprisonment. That sentence was suspended and the defendant was placed on five (5) years active probation. As a special condition of probation, he was ordered to pay a five thousand ($5,000) dollar fine to the Criminal District Court Operations Fund and serve one (1) year in the Orleans Parish Prison. The defendants, Hirschler and LaGrange, were sentenced to five (5) years at hard labor. That sentence also was suspended and each defendant was placed on five (5) years active probation with two special conditions: (1) each was to serve one (1) year in Orleans Parish Prison; and (2) each defendant pay a fine of fifteen thousand ($15,000) dollars to the Criminal District Court Operators Fund.

FACTS:

In early June of 1979, a confidential informant, Russell Janke, advised agents of the Drug Enforcement Administration (DEA) that he had personal knowledge of 35,000 pounds of marijuana stored in a warehouse on Tchoupitoulas Street in New Orleans. Janke stated that he made two deliveries of marijuana from this warehouse on June 15, 1979, and that the warehouse was leased to a person named “Ken”.. He gave no description of “Ken” nor did he know his last name. After a one hour search with DEA agents, Janke located the warehouse at 3715 Tchoupitoulas Street. Periodic surveillance was then conducted on the warehouse. Agent Molyneux was the agent in charge of the operation and he attempted to corroborate some of the information provided by Janke. During his investigation, Molyneux discovered that this warehouse had been leased to Kenneth Le-Compte several months before. Further investigation corroborated other information provided by Janke, i.e., hotels that Janke had stayed in; the service station where Janke stopped for diesel fuel when making deliveries of marijuana and information regarding “T-Bone”, a person involved in previous deliveries. As a result of the surveillance, a registration check was performed on approximately 25 to 30 vehicles seen at this warehouse. A photograph file was compiled from the drivers’ license photographs of the owners of these vehicles. From these photographs, Janke picked out several individuals that he stated were involved in the June deliveries of marijuana. One of these individuals was Kenneth Le-Compte.

Continued surveillance of the Tchoupitou-las Street warehouse revealed no criminal activity. Molyneux maintained his contact with Janke, meeting him seven times and speaking with him over the telephone numerous times during the course of the investigation. In August or September, Janke told Molyneux that Jerry Earnest, the person who drove the truck during the June 15th deliveries, had informed him that there were 75,000 pounds of marijuana in the Tchoupitoulas Street warehouse which had come from a vessel named “Nooder-kron”, found scuttled in the Gulf of Mexico. In mid-November, Janke informed Moly-neux that “another load was imminent” prompting a twenty four hour a day surveillance of the Tchoupitoulas Street warehouse. A video camera was erected which relayed a picture to DEA headquarters at 1001 Howard Avenue in New Orleans where all activity was monitored. During the surveillance, the agents’ witnessed several individuals travelling from the Tchoup-itoulas warehouse to a warehouse located at 1926-1928 Rousseau Street in New Orleans. LeCompte and Hirschler were identified as two of the persons moving between the two warehouses and an automobile registration check revealed that the owner of the Rousseau Street warehouse, John Hollis, was observed at both warehouses. A video camera, similar to the one erected at Tchoupitoulas Street, was installed so that the activity around the Rousseau Street warehouse could be monitored on a twenty four hour a day basis. The following activity was observed by DEA agents: On several occasions, Agent Molyneux observed a truck at the Tchoupitoulas Street warehouse which had K & G Trucking painted on the cab. Later, this same truck was observed entering the Rousseau Street warehouse where it was painted a different color, the license plate was changed and another company name, “B & H Trucking”, was painted on the side. A check revealed that those companies did not exist. Moly-neux was not sure when this activity was observed, however, he was certain it was within three or four weeks prior to the arrest of the defendants.

On November 8, 1979, a tractor trailer carrying two containers used for shipping cargo, was followed as it left the Rousseau Street warehouse and proceeded along the River Road toward Sorrento, Louisiana. Near Burnside, Louisiana, the containers were loaded off the truck by a hoist and placed on a barge pushed by a tug named “General Lee”. From this point, surveillance was conducted from a Coast Guard Cutter, a DEA vessel, a United States Custom Department aircraft and a DEA aircraft. The barge was 'followed down the Mississippi River, and on November 15,1979 entered the Gulf of Mexico near Breton Sound where a transmission, “Where are you located?” was intercepted by the Coast Guard. The reply to that question was not intercepted and after approximately one hour, the barge went back up the River where surveillance of the barge was lost near the Harvey Locks. The following day, Molyneux spoke with Janke who was confident that the load of marijuana would be delivered even though Jerry Ernest told Janke that his brother Homer (a main suspect in the investigation) felt “like they were being watched”. No other suspicious activity was observed at either warehouses from December 1, to December 11,1979, the date of the arrests. On that date, at approximately 3:30 p.m., a recreational vehicle and several pick up trucks were seen exiting the Rousseau Street warehouse. Prior to their exit, a man came out of the warehouse and looked up and down the street. The DEA agents were unable to follow these vehicles because of rush hour traffic and mechanical problems. Shortly thereafter, two U-Haul trucks entered the warehouse. At approximately 5:00 p.m., one of the U-Haul trucks exited the warehouse. Three DEA agents followed the truck down St. Charles Avenue where it entered Interstate Highway 10 west bound toward Ken-ner, Louisiana. The agents followed the truck to Williams Blvd. (approximately 15 miles) at which time the decision was made to stop the truck after it was ascertained that Kenneth LeCompte, a subject of the investigation was the driver. The truck had not violated any traffic laws while being followed by the agents.

Agent Chase, (who was in command due to Molyneux’s absence), used his blue lights and siren to force the truck to the side of the road. One DEA vehicle pulled in front of the truck, one in back and one alongside between the truck and the highway. Eight agents approached the truck with their guns drawn and pointed at LeCompte. Le-Compte was ordered out of the truck, patted down, searched and advised of his Miranda rights. In response to Chase’s questions, LeCompte stated he didn’t know what was in the truck and said, “Well, I was told to bring it up to New Orleans and park it on a side street and come back a short period of time later and pick it up, and I was bringing it out here to Kenner.” Le-Compte denied leaving the warehouse with the truck. When Chase asked permission to search the truck, LeCompte stated, “Yeah, I don’t have anything to hide. You can go ahead and search. It’s not my truck.” However, LeCompte did not have the key to unlock the padlock on the rear of the truck. Chase called the DEA office and requested that Agent Cazenavette bring a pair of bolt cutters to the scene.

Agent Woodfork arrived shortly thereafter with a pair of bolt cutters. Agent Caze-navette arrived about one hour later and brought a “Consent to Search” form which LeCompte refused to sign. LeCompte also rescinded his prior consent to search the truck. Nevertheless, the agents cut the padlock and found 39 bales of marijuana (2,000 pounds) on the bed of the truck. There was testimony that Agent Woodfork smelled marijuana prior to cutting the padlock on the truck. The agents then placed LeCompte under' arrest for possession of marijuana.

Later, the agents prepared an application for a search warrant for the Rousseau Street warehouse. Suspicious activity in connection with the warehouse continued. Telephone installation information had previously been obtained by the agents as to the telephone located at the Rousseau Street warehouse. At 11:00 p.m., Molyneux made a phone call to this number. The person who answered identified himself as George and stated he did not know Le-Compte. Later, Molyneux made a second call and asked the location of the person answering the phone. The person responded that he was speaking from a friend’s house. No mention was made of the warehouse. Subsequent to the second phone call, Agent Woodfork saw the warehouse door open and a large U-Haul truck stood facing out onto the street with its motor running. Defendants LaGrange, Hirschler and Rodriguez were seated in the cab of the truck. Earlier that evening Agent Wood-fork had smelled marijuana from under the door of the warehouse as well as observing sparks coming from under the roll-up door. Woodfork and Cazenavette, believing that the defendants were about to leave the premises, yelled “Federal Agents” and advised the defendant to come out of the truck. These facts were included in the search warrant application which was presented to the magistrate at approximately 12:30 a.m.

The defendants were placed under arrest and the warehouse secured until the search warrant was signed. Agent Cazenavette found two containers of marijuana on the bed of an eighteen wheel truck in the back of the warehouse. One container was open and Cazenavette could see marijuana debris scattered inside. The other container was padlocked. There is conflict in the testimony as to when a search of the second container occurred. The search of the trucks and the warehouse revealed approximately 14,000 pounds of marijuana. The testimony is clear that Agents Chase and Molyneux both knew that the search had already oc-cured when they approached the Magistrate with the warrant application. Neither informed the Magistrate that the search of the warehouse had already occured or that the defendants were in the custody of the DEA agents.

ERRORS PATENT AND SUFFICIENCY OF EVIDENCE:

We have reviewed this record both as to errors patent and for sufficiency of evidence. As to errors patent we find none. As to sufficiency of evidence we find that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found in this case that the essential elements of the crime of possession of marijuana LSA-R.S. 40:966(E) were proved beyond a reasonable doubt. State v. Walker, 369 So.2d 1345 (La.1979); State v. Edwards, 354 So.2d 1322 (La.1978); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Edwards, 400 So.2d 1370 (La.1981); State v. Baker, 338 So.2d 1372 (La.1976); State v. Alford, 323 So.2d 788 (La.1975).

ASSIGNMENT OF ERROR I.

Defendants assert that the District Court erred by denying the defendant’s Motion to Suppress Tangible Evidence. This assignment of error is divided into the following four subsections:

A. The arrest of the Defendant Le-Compte and subsequent search of his truck was without probable cause and, therefore, in violation of the Defendant’s right to be free from unlawful searches and seizures guaranteed by the Fourth Amendment of the United States Constitution and Article 1, Section 5 of the Louisiana Constitution.
B. The illegal search of the LeCompte truck tainted the probable cause necessary for both the warrantless entry into the Rousseau Street warehouse and the subsequent search warrant for the warehouse.
C. The agents did not have probable cause to arrest the defendants in the warehouse; therefore, any evidence obtained incident to this arrest must be suppressed, including evidence of their presence in the Rousseau Street warehouse.
D.The agents’ search and seizure of the Rousseau Street warehouse which preceded the issuance of the search warrant rendered the entire search of the warehouse unlawful.

A.

An arrest must be based on probable cause. The standards that apply in determining probable cause for a warrant-less arrest are the same as those necessary for obtaining a valid arrest warrant. State v. Elliot, 407 So.2d 659 (La.1981); State v. Nieto, 395 So.2d 733 (La.1981). Probable . cause exists when the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonable and trustworthy information, are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. Brinegar v. United States, ,338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Elliot, supra; State v. Herbert, 351 So.2d 434 (La.1977). It is to be judged by the probabilities and practical consideration of everyday life on which average men, particularly average police officers, can be expected to act. State v. Smith, supra.

The law is clear that while the officer need not have sufficient proof to convict, mere suspicion is not enough to justify an arrest. State v. Herbert, supra. Furthermore, the circumstances upon which the arresting officers act must show that criminal conduct is more probable than noncriminal activity. Equivocal conduct does not afford probable cause to arrest, where the possibility of criminal conduct is no greater than the possibility of innocent behavior. State v. Herbert, supra; State v. Thomas and Talbert, 349 So.2d 270 (La.1977). In circumstances where the arresting officers or agents do not know for certain that a crime has been committed, more and better evidence is needed to establish probable cause. State v. Hunter, 375 So.2d 99 (La.1979). The determination of the existence or lack thereof of probable cause is a substantive determination to be made by the trial judge from the facts and circumstances of the case. State v. Nicholas, 397 So.2d 1308 (La.1981), citing Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The trial judge’s conclusion as to the existence of probable cause are entitled to great weight. State v. Drott, 412 So.2d 984 (La.1982).

The crucial question presented by this assignment of error is whether the trial judge had sufficient facts and circumstances to determine, that the arresting officers had probable cause to believe Kenneth Le-Compte was committing or had committed a crime when he was arrested on December 11, 1979. There is no question that Le-Compte was arrested, not merely detained, when his truck was forced onto the shoulder of the highway. He was surrounded by DEA vehicles and was ordered out of the truck by eight DEA agents with their guns drawn and pointed at him. United States v. Ceballos, 654 F.2d 177 (2nd Cir.1981); State v. Zielman, 384 So.2d 359 (La.1980).

LeCompte was also fully searched and read his Miranda rights prior to the search of the truck and prior to Agent Woodfork smelling the marijuana from the rear of the truck. Thus, the arrest and search cannot be justified on the basis of LeCompte’s false statements and the odor of marijuana escaping from the truck. The question now follows whether there was probable cause for the agents to arrest Le-Compte at the moment they stopped him.

Much of the information relied on by the DEA in establishing the probable cause to arrest LeCompte and search the truck was provided by the confidential informant, Russell Janke. Even though Molyneux was the person in contact with the confidential informant but was not present when Le-Compte was arrested, he testified that all of the information he received from Janke was documented on DEA reports and was revealed to Agents Chase and Cazenavette and to other agents as well. Molyneux remained in contact with Janke throughout the investigation. He met with him seven times and spoke to him on the telephone on numerous occasions. Janke stated that he had been involved with the prior marijuana deliveries in June; had personally delivered 35,000 pounds of marijuana and had observed additional marijuana being stored in the warehouse on Tchoupitoulas Street. The additional information supplied by Janke originated with Jerry and Homer Earnest and were not based on any personal knowledge of Janke.

Hearsay statements of a confidential informant are not ipso facto unreliable. Although much of Janke’s information was hearsay, it was corroborated by the DEA investigation and the DEA believed the information to be reliable because he had cooperated with the FBI and IRS on previous occasions which culminated in arrests and convictions.

A finding of probable cause may be based on hearsay information received from a confidential informant. State v. Ragsdale, 381 So.2d 492 (La.1980); State v. Paciera, 290 So.2d 681 (La.1974); State v. St. Hill, 433 So.2d 395 (La.App. 4th Cir.1983). The informer’s information however, must first be measured against the criteria established by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). If the information is found to be inadequate under Aguilar, then any independent observation by the investigating officer which corroborate the information supplied by the informer should be considered. Aguilar is a two-prong test, consisting of (1) the “veracity” test and (2) the “basis of knowledge” test.

The “veracity” test is met when the officer states that the informant has supplied information which has led to arrests and convictions in the past. State v. Nieto, supra; State v. Gilbert, 354 So.2d 508 (La.1978). In the instant case the “veracity test is satisfied” as Janke had provided reliable information to other law enforcement agencies in the past.

The “basis of knowledge” test presents a more difficult problem. In State v. Paciera, supra, the court stated:

“Factors which support the credibility of the information reported include (a) direct personal observation by the informant, or (b) if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information.” Paci-era, at 686.

The information supplied by Janke concerning his personal observations satisfies the “basis of knowledge” test, Aguilar, supra; State v. Elliot, 407 So.2d 659 (La.1981). However, the information which came indirectly to Janke through Jerry and Homer Earnest does not. Nevertheless, probable cause to arrest and/or search may still be established by corroborating facts. This brings us to the question of whether the agent’s independent observations permitted “the suspicion engendered by the informant’s report to ripen into a judgment that a crime was probably being committed”. Spinelli v. United States, 393 U.S. 416, 89 S.Ct. 584 (1969). In State v. Tate, 407 So.2d 1133, 1137 (La.1981), the Louisiana Supreme Court stated:

“An informant’s tip can be significantly buttressed if either independent observations by the affiant corroborate sufficient details of the tip (whether suspicious or not) to negate the possibility that the informant fabricated his report, or independent observations by the affiant contribute to a showing of probable cause by revealing not merely normal patterns of activity but activity that reasonably arouses suspicion.”

The agents’ surveillance of the warehouses revealed suspicious activities which would tend to corroborate Janke’s reports that an on-going drug smuggling operation was being conducted. In mid-November of 1979, a tractor trailer truck carrying two shipping containers was followed from the warehouse on Rousseau Street to Burnside, Louisiana where the containers were offloaded onto a barge. Molyneux testified that this was the same method employed in previous drug smuggling operations. Also in mid to late November, a truck was repainted in the Rousseau Street warehouse and its license plate changed. The names on the side of the truck, “K & G Trucking and B & H Trucking”, were investigated and there was no record that these companies were in existence or had ever existed. The agents also observed that both of the warehouses were being frequented by the same people. The DEA believed that the warehouse on Rousseau Street was owned by the same group of people. In fact, the DEA observed that the majority of the activity was being transferred to the warehouse on Rousseau Street and after mid-November the investigation focused on this location. In addition, several of the people who frequented the warehouse, including LeCompte, were known to have been involved in the prior smuggling operations and, according to Janke, were part of the same organization that was planning to deliver another shipment of marijuana to the Tchoupitoulas Street warehouse. The DEA had already established that LeCompte was one of the drivers in the June smuggling operation and had been the lessee of the warehouse on Tchoupitoulas Street. John Hollis, the owner of the warehouse on Rousseau Street, was also seen frequenting the Tchoupitoulas Street warehouse.

We agree with the defendants that throughout this five month investigation, no marijuana was actually observed by the DEA agents at either warehouse nor did Janke supply any information concerning the warehouse on Rousseau Street. No trucks were seen being driven between the two warehouses which might indicate that the marijuana seen by Janke on Tchoupi-toulas Street was being transferred to Rousseau Street. However, all the facts, circumstances and observations of the agents taken as a whole would lead a reasonable man to believe that it was more probable than not that the warehouses were being used in an on-going drug smuggling operation. When the three pick-up trucks exited the warehouse followed by a U-Haul truck driven by LeCompte, a known drug smuggler, it was more probable than not that LeCompte was engaged in criminal activity, given all the other information and observations by the DEA. Thus, the agents had probable cause to arrest Kenneth Le-Compte, when he drove the U-Haul truck out of the Rousseau Street warehouse.

B.

Since we have determined that the trial judge was correct in his finding that probable cause existed to arrest LeCompte, the subsequent search of the rear portion of the truck was justified under the “automobile emergency exception” to the warrant requirement. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Based on Carroll and it’s progeny, the Louisiana Supreme Court in State v. Guzman, 362 So.2d 744 (La.1978) set out the two conditions that must be satisfied before a warrantless search of a vehicle is authorized:

“(1) there must be probable cause to believe that the vehicle contained contraband or evidence of a crime; and (2) there must be ‘exigent circumstances’ requiring an immediate warrantless search, i.e., the impracticability of obtaining a warrant due to the possibility that the car could be moved either by its occupants, if not arrested, or by someone else. An immediate warrantless search is, therefore, constitutionally permissible when ‘the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.’ Chambers v. Maroney, supra, 399 U.S. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 428” Guzman at 748.

In the instant case, the agents, based upon their ongoing surveillance of the defendant and the information received from the informant, arrested the defendant and searched the entire vehicle, including the rear container section. Any portion of a vehicle may be searched when probable cause exists to search the vehicle. State v. Cunningham, 412 So.2d 1329 (La.1982); State v. Hernandez, 408 So.2d 911 (La.1981). The facts in Cunningham and Hernandez are very similar to the present case. Probable cause was established by the detailed tip from a reliable informant and independant corroboration of that information by police surveillance. In addition, the police were also faced with exigent circumstances requiring that they either seize and hold the vehicle before presenting the probable cause issue to a magistrate or conduct an immediate search of the vehicle without a warrant. In Hernandez, the Louisiana Supreme Court stated:

“For constitutional purposes, given probable cause, it was reasonable for the officers to immediately search the inherently mobile conveyance rather than merely to immobilize it.” State v. Hernandez, supra, at 914.

Here, the arrest of LeCompte and search of the truck took place on an interstate highway. It was impractical for the officers to get an arrest warrant since Le-Compte may have escaped while waiting for the warrant. It would also have been impractical to obtain a search warrant under the circumstances. LeCompte could have disposed of the evidence, it could have been secreted away or lost.

C.

Defendants assert that the agents did not have probable cause to arrest LaGrange, Rodriguez and Hirschler inside the Rousseau Street warehouse and that any evidence obtained incident to these arrests must be suppressed. The same principles set forth above regarding warrantless arrests and searches also apply to this issue.

The agents testified that while they were watching the warehouse on the night of December 11, 1979, they smelled marijuana from under the open door at approximately 6:00 p.m. The agents by this time knew that the U-Haul truck which LeCompte drove out of the warehouse at 5:00 p.m. contained 2,000 pounds of marijuana. The agents were also aware of all of the information received by the prior surveillance. At 11:30 p.m. when the door of the warehouse opened and a tractor trailer truck waiting behind the door was facing the street with its engine running, the agents had probable cause to believe that a crime was being committed and that it was more probable than not that the truck contained contraband. Exigent circumstances existed as it was clear that the departure of the truck was imminent. Thus, the agents acted properly in preventing the truck from leaving and in arresting the occupants of the warehouse without waiting to secure a warrant. State v. Dupuis, 378 So.2d 934 (La.1979).

D.

The testimony regarding the search of the remainder of the warehouse is conflicting. The DEA agents claimed that they only did a cursory search to determine if any other persons were in the warehouse while waiting for the search warrant to be signed. They testified that only after the search warrant was signed did they make a thorough search of the warehouse. Defendant LaGrange testified that the agents searched the entire warehouse, including the closed container, within five minutes after entering the warehouse which, if true, would have occurred prior to the warrant being signed at 12:30 a.m. This conflict was resolved by the trial judge in favor of the DEA agents. His decision is supported by the facts in the record and is not manifestly erroneous or an abuse of discretion. “Credibility of witnesses is a matter in which the trial judge’s discretion is broad, and it is a matter concerning which he is particularly well situated to judge.” State v. Collins, 328 So.2d 674, 677 (La.1976).

This assignment of error lacks merit. ASSIGNMENT OF ERROR 2

Defendants contend that the trial court erred in denying their Motion to Quash based on double jeopardy and collateral es-toppel.

Louisiana is one of approximately twenty-seven jurisdictions in the United States which recognize the general view that a state prosecution following a federal prosecution for criminal acts arising from the same transaction does not place the defendant in double jeopardy in violation of his constitutional rights since the federal and state governments are separate sovereigns, each of which may subject the defendant to punishment for an infraction of its own laws. In State v. Smith, 359 So.2d 160 (La.1978) [citing State v. Forbes, 348 So.2d 983 (La.1977); State v. de la Beckwith, 344 So.2d 360 (La.1977)], the Louisiana Supreme Court restated its position that a subsequent state prosecution of defendants on a similar charge for which they were prosecuted in federal court is constitutionally permissible under both Federal and State Constitution. The court further held that the state prosecution was not barred by collateral estoppel:

“The doctrine of collateral estoppel simply means that, when an issue of ultimate fact has been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. The doctrine is embodied in the double jeopardy guarantee of the fifth amendment.” Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). “Since the first prosecution was in federal court, identity of parties, an essential requirement of collateral estoppel is lacking.” State v. de La Beckwith, supra. Smiths, supra at 163.

This assignment of error lacks merit.

For the foregoing reasons, the ruling of the trial court denying defendant’s Motions to Suppress Tangible Evidence and Motion to Quash Based on Double Jeopardy and Collateral Estoppel is affirmed.

AFFIRMED.

      . LeCompte had since requested the lease be given to the present lessee, Charles Clay.

      . The testimony is unclear as to which agent witnessed the movement between the two locations. Although Molyneux states that this activity occured .in November, his later testimony indicates that at least some of the movement took place at an earlier time.

      . Chase initially testified that LeCompte did not expressly refuse to allow the agents to search, however, he corrected his testimony when presented with the transcript from Federal Court wherein he testified that LeCompte stated “I am not going to give you consent to search the truck”.

      . Woodfork did not testify that he smelled marijuana outside the truck. Only Chase testified that Woodfork smelled the marijuana prior to the search but after LeCompte had been searched and read his rights.

      . Both agents testified that the search took place only after the warrant was signed by Magistrate Livaudais at 12:30 a.m. Defendant LaGrange testified that the agents searched the padlocked container at about 11:45 p.m., fifteen minutes after entering the warehouse.

      . Initially Agent Molyneux denied that he knew the search had taken place when he went to Magistrate Livaudais’ residence and Agent Chase testified that he was unsure. However, when presented with the transcript from the Federal Court trial, they corrected their respective accounts of the events and testified that they did, in fact, know this prior to requesting the warrant.

      . The rigid tests of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969) were swept aside by the recent U.S. Supreme Court case of Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), decided June 8, 1983. In that case, the Court adopted a more flexible “totality of the circumstances” test. This is a very practical, non technical method of determining probable cause which depends on the facts and circumstances in a given case. Since we find probable cause under the Aguilar test, it is not necessary to decide whether Gates is retroactive. We must comment, however, that probable cause would exist under that test also.

      . Janke knew that the persons leaving the warehouse on Tchoupitoulas Street also owned or leased three or four other warehouses in the New Orleans area. Janke was aware that one warehouse was located near Moisant Airport but did not know where the others were located.

      . LeCompte had been involved with a shipment of hashish in 1974 and was well known to DEA agents.

      . Janke had selected LeCompte’s photograph from the file complied from the driver’s licenses of owners of vehicles seen at the Tchoupi-toulas Street warehouse. Although this fact was not testified to at the hearing, it was included in the application for the search warrant.

      . We are duty bound to follow the decisions of our Supreme Court, and apply the law as set forth in those decisions. However, I must express my personal view that were the issue of double jeopardy “res nova” before this court, I would be of the opinion that the Federal prosecution constitutes the jeopardy contemplated by the Fifth Amendment.


author: LANIER, Judge. PER CURIAM.

text:
    FRED H. MORAN CONSTRUCTION CORPORATION v. Hameed A. ELNAGGAR, et al.
    No. 83 CA 0006.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.

      J. Arthur Smith, III, Baton Rouge, for plaintiff-appellee Fred H. Moran Const. Corp.
    Robert R. Rainer, Baton Rouge, for defendant-appellant Hameed A. Elnaggar, et al.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This suit commenced as one for executory process on a mortgage note for failure to timely make an installment payment. The mortgagors filed a petition for injunction to arrest the seizure and sale alleging that the executory proceeding was premature because the mortgagee regularly accepted late payment of monthly installments, the mortgaged property had serious redhibitory vices and defects which were the subject of pending litigation, and the mortgage signatures were procured by promises made by the mortgagee which were not kept. The mortgagors obtained a temporary restraining order arresting the sale and sought damages and attorney fees for wrongful seizure. The trial court granted a preliminary injunction, dismissed the claims for damages and attorney fees, ordered each side to pay their own expert witness fees and divided the court costs equally between the parties. The mortgagors devolutively appealed the rulings of the trial court which dismissed their claims for damages and attorney fees, ordered them to pay their own expert witness fees and cast them for one-half of the costs. The mortgagee answered the appeal asserting that the trial court committed error by granting the preliminary injunction, assessing it for its own expert witness fees and casting it for one-half of the costs.

FACTS

On August 20,1981, Hameed A. Elnaggar and Kathleen Jordan Elnaggar purchased a home and lot located in the Meadows Subdivision in East Baton Rouge Parish from Fred H. Moran Construction Corporation (Moran). The purchase price was $235,000. A down payment of $35,000 was made and the balance was financed by a promissory note secured by a mortgage on the property. ($5,000 of the down payment was paid when the sale and mortgage was executed, and a $30,000 unsecured demand note was given to Moran to be paid when the Elnag-gars sold their home in Denver, Colorado.) The mortgage note was payable in 36 monthly installments due on the fifth day of each month commencing on October 5, 1981.

During the period of August of 1981 through December of 1981, the Elnaggars discovered what they considered to be numerous defects in the mortgaged premises. They called upon Moran to repair these defects. Moran agreed to make some of the repairs but denied responsibility for others. On January 14,1982, Elnaggar made formal written demand upon Moran to make the repairs requested. Moran replied in writing on February 1, 1982, agreeing to perform some of the repairs but declining to do others. By a subsequent letter of February 9, 1982, Moran further proposed to give Elnaggar a check for the costs of repairs that Moran agreed to or have another contractor come in and make the repairs. On February 17,1982, Elnaggar advised Moran of additional defects including a water seep on the brick chimney wall and defects in the recessed planters in the living and dining rooms. By letter dated February 26, 1982, Moran denied responsibility for these additional defects.

During the period from August 1981 to March of 1982, Moran proposed to develop the property immediately adjacent to the Elnaggar home and lot as a new subdivision. Apparently, the Elnaggars and others actively opposed this development before the Parish Planning Commission and the Parish Council.

On March 8, 1982, the Elnaggars filed a redhibitory action against Moran alleging the defects that they had called upon Moran to remedy.

On July 30, 1982, Kathleen J. Elnaggar made out the monthly installment check for the payment due on the mortgage note on August 5,1982. Inadvertently, Mrs. Elnag-gar failed to deliver the check to the Baton Rouge Bank and Trust Company before leaving to go on vacation in Florida with her family prior to the installment’s due date. Moran learned that the August 1982 installment was not timely paid and on August 16, 1982, instituted this suit for executory process. The Elnaggars learned of the suit on August 18, 1982, and thereafter discovered that the payment check had not been delivered. The Elnaggars tendered the check in payment, but this tender was refused.

In preparation for the hearing on their request for a preliminary injunction, the Elnaggars hired consulting experts and allegedly discovered cracks in the sheetrock walls, exterior brick, floor and slab of their home and an upward bulge in the roof.

PRELIMINARY INJUNCTION

The defendant in an executory proceeding may arrest the seizure and sale of the property by injunction when the debt secured by the mortgage is extinguished or is legally unenforceable. La.C.C.P. art. 2751. The trial judge ruled that the Elnag-gars had made a prima facie showing of redhibitory defects and that if they were successful in their redhibitory action against Moran the debt would be extinguished. The trial judge also ruled that the debt was not legally enforceable at the time of filing suit because the mortgagee accepted late payment of the installments without objection over a period of time and thus waived his right to demand acceleration of the note without first placing the mortgagors in default or notifying them that future late payments would not be accepted. Moran contends that both of these rulings are in error.

The doctrine of forebearance is succinctly defined in First National Bank v. Higgs, 406 So.2d 673, 675 at footnote 1 (La.App. 2nd Cir.1981), as follows:

Forebearance is a circumstance which can give rise to estoppel. Forebearance exists when a creditor acquiesces in or tolerates substandard performance of an obligation by the debtor without exercising his rights to enforce the obligation, thereby implying that such conduct is sufficient.
When forebearance reaches the level of equitable estoppel the creditor will be barred from suddenly demanding strict performance in order to avoid injustice to the debtor. Calhoun v. Huffman, 217 So.2d 733 (La.App. 3d Cir.1969); Stern-berg v. Mason, 339 So.2d 373 (La.App. 1st Cir.1976). However, the creditor’s mere acquiescence or forebearance by not using all of his rights, when accompanied by protest or complaints to the debtor, does not rise to the level of estoppel which will later bar the creditor from using those rights to enforce the obliga-
tion. Burris v. Gay, 324 So.2d 11 (La.App. 2d Cir.1975), writs denied 326 So.2d 377 [La.1976],

In Sternberg v. Mason, 339 So.2d 373, 377 (La.App. 1st Cir.1976), writ denied 341 So.2d 901 (La.1977), appears the following:

An obligee is, of course, entitled to have the contract strictly complied with and to receive his payments promptly when due. However, when there has developed a course of conduct, i.e., routine late payments without complaint or objection over an extended period of time sufficient to create a justifiable belief that it is of no moment, it is essential in the interest of fairness that the obligee make known to the obligor his intent to discontinue acceptance of late payments.

The Elnaggars made their monthly installment payments at the Baton Rouge Bank and Trust Company for the account of Moran. The bank’s collection ledger shows the following payments:

DUE DATE DATE PAID
October 5,1981 October 8,1981
November 5,1981 November 6,1981
December 5,1981 December 21,1981
January 5,1982 January 20,1982
February 5,1982 February 9,1982
March 5,1982 March 5,1982
April 5,1982 April 5,1982
May 5,1982 May 5,1982
June 5,1982 June 7,1982
July 5,1982 July 7,1982

Fred H. Moran, Moran’s President, testified that after the Elnaggars filed the red-hibitory action, he started checking with the bank on when their monthly payments were made. He candidly admitted that no advance warning was given to the Elnag-gars that suit would be instituted if payment was late and that he authorized foreclosure because the Elnaggars were resisting his new subdivision. He learned that the August 5, 1982 payment was late on August 8th or 9th and authorized the filing of suit. When the Elnaggars tendered payment of the August installment, he instructed his attorney and the bank not to accept it.

The trial court ruled that Moran acquiesced in a course of conduct that tolerated routine late installment payments without complaint, that Moran did not put the Elnaggars on notice that no additional late payments would be accepted and that if payment was not timely executory proceedings would be initiated. The trial court concluded that the Elnaggars had proven the affirmative defense of forebearance as defined in Sternberg v. Mason. Nolan J. Cunningham Apartments, Inc. v. Dupre, 428 So.2d 1046 (La.App. 1st Cir.1983). After reviewing all the facts and circumstances of this case, we conclude these findings of fact of the trial court are not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

DAMAGES AND ATTORNEY FEES La.C.C.P. art. 2751 provides, in pertinent part, as follows:

In the event injunctive relief is granted to the defendant, if the court finds the seizure in the executory proceeding to be wrongful, it may allow damages to the defendant. Attorney’s fees for the services rendered in connection with the injunction may be included as an element of the damages. (Emphasis added).

The official revision comment for this part of Article 2751 provides as follows:

The second paragraph to this Article, which was enacted in 1981, is intended to give the trial judge the discretion to award damages and attorney’s fees where the seizure through executory process was wrongful. It is not intended to require that damages and attorney’s fees be awarded in every case where an injunction is issued, for example, where an injunction is issued because of a technical deficiency or a technical error.

(Emphasis added).

The trial judge exercised the discretion granted to him by Article 2751 and declined to award damages and attorney fees. He did not feel that such an award was justified because the installment payment was not made on its due date and Moran had all the necessary elements to support executory process. The defenses asserted by the Elnaggars were affirmative ones that were technical in nature and not evident from an examination of the sale and mortgage and the mortgage note. In view of all of the facts and circumstances of this case, we cannot say that the trial judge abused the much discretion accorded him by law.

COSTS

Both sides to this dispute contend that the trial court committed error by dividing the costs equally between them and requiring each side to pay its own expert witness fees. La.C.C.P. art. 1920 authorizes a trial court to render such judgment for costs or any part thereof against any party as it may consider equitable. Although the Elnaggars were successful in securing a preliminary injunction, they failed in their claim for damages and attorney fees. In this posture, the trial court did not commit error by dividing the costs equally between the parties and requiring each to pay it own expert witness costs. Toomer v. Charles Cinema, Inc., 425 So.2d 288 (La.App. 3rd Cir.1982); Purcell v. State Farm Insurance Company, 417 So.2d 16 (La.App. 4th Cir.1982); Young Oil Company of Louisiana, Inc. v. Durbin, 412 So.2d 620 (La.App. 2nd Cir.1982). The costs of this appeal are also to be divided equally between the parties. La.C.C.P. art. 2164.

CONCLUSION

For the foregoing reasons, the judgments of the trial court are correct and are affirmed. The costs of this appeal are to be divided equally between the parties.

AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In its application for a rehearing Moran contends that the Elnaggars have committed new and independent defaults which render moot their claim for injunc-tive relief on the ground of forebearance of prior late payments. Moran attaches an affidavit asserting these facts for this court to review. Moran argues that since the forebearance claim is now moot we should consider and reverse the allegedly erroneous redhibition ruling of the trial court so that a new suit for executory process can be filed. This court has no jurisdiction to review the new evidence contained in the affidavit. La.Const. art. V, § 10; La.C.C.P. art. 2132; Title Research Corporation v. Rausch, 433 So.2d 1105 (La.App. 1st Cir.1983). Moran may still litigate the redhibitory action filed by the Elnaggars on March 8,1982.

      . Because we have ruled that the trial court was correct in determining that the Elnaggars proved forebearance by Moran, it is unnecessary for us to pass on the redhibitory defects defense,


author: COVINGTON, Judge.

text:
    CERTIFIED COMMODITIES GROUP, INC. v. Vincent J. ROCCAFORTE.
    No. 83 CA 0038.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Rehearing Denied Nov. 22, 1983.

      James C. Bates, Baton Rouge, for plaintiff-appellant Certified Commodities Group, Inc.
    Stephen C. Riedhnger, Baton Rouge, for defendant-appellee Vincent J. Roccaforte.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

After a thorough review and evaluation of the record, we find that the record supports the facts found and the reasons assigned by the trial judge. The Illinois court was without jurisdiction; hence the foreign judgment cannot be made exec-utory in Louisiana. See Matter of Kenilworth Insurance Company, 428 So.2d 1187 (La.App. 5th Cir.1983).

Accordingly, we adopt his written reasons for judgment as our own and attach a copy as Appendix A, and affirm the judgment appealed, at appellant’s costs.

AFFIRMED.

IDIX A

CERTIFIED COMMODITIES GROUP, INC. NUMBER 254,955 DIVISION “H”

VS. 19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE

VINCENT J. ROCCAFORTE STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

The plaintiff, Certified Commodities Group, Inc., brought suit to make executory an Illinois judgment against the defendant, Vincent J. Roccaforte, a resident of Baton Rouge, Louisiana. Plaintiff originally filed suit against the defendant in the Circuit Court of Cook County, State of Illinois. Service of process was made on Fishman Merrick & Perlman, P.C. The Illinois court rendered a default judgment against the defendant.

This Illinois judgment was based upon a customer agreement between the defendant and Rosenthal & Company. Section 17 of this agreement appointed Fishman Merrick & Perlman, P.C. as the defendant’s agent for service of process. Payment was made by petitioner to Rosenthal & Co. in exchange for assignment of the claim and account due from the defendant. When this payment was made, the defendant’s account was closed. In accord with Section 14 of the customer agreement, this action terminated the agreement and thus terminated the appointment of Fishman Merrick & Perlman, P.C. as the defendant’s agent for service of process.

Therefore service of process upon Fish-man Merrick & Perlman, P.C. was insufficient to give the Illinois court jurisdiction over the defendant. No other basis for obtaining personal jurisdiction over the non-resident defendant exists in this case. Since the Illinois court was without jurisdiction, the foreign judgment cannot be made executory in Louisiana.

For these reasons, judgment is rendered in favor of the defendant and against the plaintiff, dismissing the plaintiffs suit at its costs.

Judgment will be signed accordingly.

Baton Rouge, Louisiana, this 21st day of September, 1982.

Daniel W. LeBlanc DANIEL W. LEBLANC JUDGE, DIVISION H