author: KLIEBERT, Judge.

text:
    SUCCESSION OF Frederick A. ZIIFLE.
    No. 83 CA 258.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.
    Writ Denied Dec. 9, 1983.

      Carol A. Breithoff, New Orleans, for plaintiff-appellant.
    Marcella M. Ziifle, Gretna, for executor-appellee.
    CHEHARDY, KLIEBERT and CUR-RAULT, JJ.
   KLIEBERT, Judge.

This is an appeal by Mireya Ponce Ziifle, plaintiff and surviving spouse in community of the decedent, Frederick A. Ziifle, from a judgment which dismissed, on exceptions of no right or cause of action, her petition to annul and set aside two previous judgments of the trial court and her request, by separate petition, for a preliminary injunction against continued enforcement of the judgments. The first judgment sought to be annulled was a money judgment of $26,-625.00 which emanated from the surviving spouse’s failure to abide by a judgment, rendered on June 30, 1980, ordering her to render an accounting for community funds expended on her separate property and to deliver community property then in her possession to the executor in order for it to be partitioned by sale. On appeal, the surviving spouse assigns as error the trial judge’s (1) refusal to grant the preliminary injunction, (2) his sustaining the exception of no cause of action and no right of action, thereby dismissing the petition to annul the judgments, and (3) admission of evidence over the objection of the surviving spouse. For the reasons which follow, we reverse and remand.

To put the issues in proper perspective, it is necessary to review the setting in which they arose and how they arose.

The decedent died testate on April 22, 1978. Sixteen months prior to his death, decedent married the present plaintiff, who was twenty-six years his junior. There were two separations during the marriage. The first commenced in August, 1977 and terminated in December, 1977. The plaintiff and the decedent had been living separate and apart since February, 1978 and a separation suit was pending at the time of his death.

The entirety of the decedent’s estate was left to Vernon Ziifle, his brother, and Bertha Ziifle Towner, his sister. The brother was also qualified as the dative testamentary executor. The litigation between the surviving spouse and the executor and/or heirs commenced when she filed a petition claiming the marital fourth. On appeal, the Fourth Circuit upheld a judgment of the trial court, denying the plaintiff’s claims on the grounds she was not in necessitous circumstances and, therefore, not entitled to the marital fourth.

Thereafter, on January 18, 1980, the executor filed a petition against the surviving spouse entitled “Petition for Accounting and Partition” to have her account to the succession for community funds of $17,-000.00 alleged to have been used to pay a separate debt of the spouse and to account to the succession for various items (jewelry, auto, etc.) listed in the descriptive list as community property.

Attached to the petition was a rule for her to show cause why the community property (jewelry, auto, etc.) listed in the descriptive list should not be delivered to the executor for partition by sale. The petition and rule were personally served on the surviving spouse and initially set for hearing on February 5, 1980. After several reset-tings, it was set for hearing on April 1, 1980.

On that date, the surviving spouse filed a motion to traverse the descriptive list alleging, among others, that the items she was being requested to account for as community property were actually donated to her by the decedent and, hence, were her separate property. As a result, the trial judge withheld his ruling as to the status of the property and gave the surviving spouse time to respond to the executor’s memorandum. On April 11,1980, the surviving spouse filed her responding memorandum and then, on April 15,1980, filed an answer to the executor’s Petition for Accounting and Partition. There was a certificate of service by the surviving spouse’s attorney certifying that a copy of the answer was sent to the executor’s attorney by mail.

On April 28, 1980, the trial judge rendered a judgment holding that four of the items listed in the descriptive list were community property. On the same date, the executor moved for entry of preliminary default in the suit for accounting and partition despite the fact that an answer had been filed. Then, on June 30,1980, the default was confirmed and the surviving spouse ordered “to render an accounting of the community property and of the community funds expended on her separate estate.”

On August 11, 1980, after the surviving spouse failed to comply with the June 30, 1980 judgment, the executor filed a rule for a writ of distringas which was personally served on .the surviving spouse. Initially set for September 16, 1980, the rule was re-set for hearing on October 14,. 1980. While this rule was pending, the surviving spouse’s attorney, Mr. Lehmann, by order dated October 18, 1980, withdrew from his representation. On October 14, 1980, Mr. Arthur Dumaine filed, on behalf of the surviving spouse, a motion for continuance and the matter, was re-set for hearing on November 18, 1980. The surviving spouse testified as to some confusion, at least on her part, as to when the rule was originally set. Also, there is a conflict between the order setting the rule for November 18, 1980 and the minute entry of October 14, 1980 which shows the rule was continued without date.

Mr. Dumaine filed no other pleading and made no appearance at the November 18, 1980 hearing. After the hearing on November 18,1980, the trial judge ordered the issuance of the writ of distringas. This resulted in the Sheriff’s seizure of movable and immovable property belonging to the separate estate of the surviving spouse.

Notwithstanding the issuance of the writ of distringas, the surviving spouse did not comply with the June 30, 1980 judgment. Therefore, on February 11,1981, the executor filed a rule alleging the surviving spouse’s continued failure to comply with the judgment. The trial judge appointed the Sheriff, under the provisions of La.C. C.P. Article 2004, to render on behalf of the surviving spouse the accounting called for by the June 30,1980 judgment and ordered the surviving spouse to show cause on March 31, 1981 why the judgment should not be made executory in the amount accounted for by the Sheriff. This rule was served on Mr. Arthur Dumaine, attorney.

The March 31, 1981 hearing was not attended by the surviving spouse or her attorney. The trial judge took the matter under advisement and on May 15th, 1981, based on an accounting rendered by the Sheriff, rendered a judgment of $26,625.00 in favor of the Succession and against the surviving spouse. To satisfy the money judgment, the executor, through the issuance of a writ of fieri facias had the Sheriff seize and sell at public auction the surviving spouse’s separate movable and immovable property. Notice of the seizure was made on Mr. Arthur Dumaine. On the first offering, no bids in excess of two-thirds of the appraised value of $95,000.00 were received. On the second offering, the property was purchased by the executor and his sister for $35,000.00.

On December 22, 1981, through Mr. Michael Mullins, an attorney, the surviving spouse filed a suit to annul the judgment of May 15, 1981 on the grounds it was obtained by ill practices as contemplated by La.C. C.P. Article 2004 and more particularly “due to the fact that no competent evidence was introduced at the hearing on May 31, 1981 to substantiate the particular items of damages claimed by the holder of the judgment” and to set aside the sale made on December 16, 1981. Mr. Vernon Ziifle and Mrs. Bertha Ziifle Towner were made defendants. On December 29, 1981, Mr. Mullins filed a motion to withdraw as counsel for the surviving spouse and was permitted to do so by order dated January 18, 1982.

After declinatory and dilatory exceptions were filed, by the purchasers at the sale, present counsel, on January 12,1982, filed a motion to be recognized and was made attorney of record for the surviving spouse. On January 12, 1982, the original petition filed by Mr. Mullins was amended and supplemented to allege: (1) the seizure of the movables was unlawful, (2) the judgment of May 15,1981 was erroneous and rendered in an invalid proceeding, and (3) the judgment and seizure failed to give the surviving spouse notice and deprived her of her property without procedural and substantive due process of law, in violation of the State and Federal Constitutions. Alternatively, in the event the property sold could not be returned to the surviving spouse in kind, she sought to recover from Mrs. Bertha Ziifle Towner and Vernon Ziifle, individually and in his capacity as executor, $150,-000.00 as the value of the property as well as damages for an unlawful seizure and sale of the surviving spouse’s movable and immovable property.

Thereafter, on January 28, 1982, the executor obtained garnishment under fieri fa-cias, directed to the surviving spouse’s employer, in further execution of the May 15, 1981 judgment. Also, the executor filed exceptions of no cause of action and of no right of action to the petition for annulment, as amended. The exception of no cause of action was grounded in the contention that allegations in the original petition of incompetent evidence was not an ill practice as contemplated by La.C.C.P. Article 2004 and the two grounds for invalidity alleged in the supplemental petition are not the grounds for nullity specified in La.C. C.P. Article 2004. The exception of no right of action was grounded in the contention the Sheriff’s sale to the executor and his sister may not be attacked or affected by an attack on the validity of the judgment upon which the sale was based.

In response to the garnishment, the surviving spouse filed a petition for a restraining order and for a preliminary injunction restraining the garnishment and any other further execution of the May 15,1981 judgment. The trial judge apparently refused to grant the restraining order but did set a hearing for a preliminary injunction for February 22, 1982.

The transcript of the February 22, 1982 hearing is sketchy and confusing. It indicates the surviving spouse was granted permission to amend her petition to allege the nullity of the judgment of June 30, 1980. The pleadings filed subsequent to the hearing are substantially broader but were also approved by the court. It is also apparent there was confusion between the attorneys and the court as to the nature of the hearing; i.e., whether it was a combined hearing for a preliminary injunction and arguments on the exceptions or a combined hearing on the preliminary injunction and the merits of the petition for annulment or merely a hearing on the preliminary injunction. At times the trial judge restricted admission of evidence as to the nullity because he considered the hearing was solely on the petition for a preliminary injunction with the annulment to be considered at some subsequent time. Nevertheless, at other times evidence bearing on the nullity was admitted over objections of counsel; i.e., correspondence between counsel for the executor and former counsel for the surviving spouse, and he went on to rule on the nullity actions.

After the hearing, on March 4, 1982, the surviving spouse filed in the record a second supplemental and amending petition to allege the judgment of May 15, 1981 was invalid because (1) it erroneously cast the surviving spouse in judgment for the entire $17,000.00 used to pay for the separate property rather than only one-half of same, and (2) it was obtained in a summary proceeding without citation and service on her and was based on the judgment of June 30, 1980 which was an absolute nullity because it was obtained by default notwithstanding the filing of an answer prior to the taking of the default. The petition further alleged that the May 15, 1981 judgment was never served on her and prayed for additional damages. The surviving spouse also amended her petition for injunctive relief to allege that the May 15, 1981 judgment was based on the default judgment of June 30, 1980 which was an absolute nullity and, therefore, the execution of the June 30, 1980 and of the May 15, 1981 judgments should be enjoined. On March 23,1983, the executor filed, against the latest amended petition to annul the judgment, an exception of no cause of action grounded in the contention that it failed to state a ground for nullity under either La.C.C.P. Article 2002 or Article 2004 which contain the sole grounds for nullity of a judgment and that she has no right to assert the invalidity of the June 30, 1980 judgment or the May 15, 1981 judgment because the surviving spouse acquiesced in the execution of the judgment of May 15,1981 and, hence, under La.C.C.P. Article 2003, cannot attack its validity.

On March 5,1982, based on the February 22, 1982 hearing, the trial judge rendered judgment denying the surviving spouse’s petition for a preliminary injunction and upheld the exceptions of no cause and no right of action, thereby dismissing the surviving spouse’s petition to annul the judgments of June 30,1980 and of May 15,1981. Written reasons for his judgments were filed in the record. The reasons for the judgment appear to go beyond the judgment and to cite reasons which would be applicable to a dismissal of the suit to annul the judgments after a trial on the merits. In those reasons, the trial judge found the default judgment of June 30,1980 was taken by default, notwithstanding the previous filing of an answer, but ruled it could not be annulled because it was acquiesced in by the plaintiff. Additionally, he found that although the May 31, 1981 judgment was obtained in an originally erroneous summary manner after proper notice to the plaintiff, since no complaint had been raised as to the summary process it was now too late to complain.

We believe the trial court erred. The exception of no cause of action raises the question of whether the law affords any remedy to a plaintiff solely on the basis of the allegations of the petition. Morton v. Washington National Insurance Company, 420 So.2d 1019 (La.App. 5th Cir.1982). Evidence is not allowed to support or controvert the objection. LSA-C.C.P. art. 931.

The petition here was supplemented and amended twice. The allegation of nullity for reason of the answer being filed prior to default was included in both the second supplemental and amending petition and the petition for injunctive relief. Thus, the petitions did state a cause of action for nullity under La.C.C.P. Article 2002 (Vices of form).

An exception of no right of action, on the other hand, raises the question of whether plaintiff belongs to that particular class to which the law grants the remedy. Morton, supra. The evidence here is limited to the lack of interest of the plaintiff to institute the suit, i.e., whether plaintiff is a person in whose favor the law extends a cause of action for the particular relief sought. Budd Construction Company, Inc. v. City of Alexandria, 401 So.2d 1070 (La.App. 3d Cir.1981); Babineaux v. Pernie-Bailey Drilling Co., 262 So.2d 328 (La.1972). Evidence which goes to a defense is prohibited. Babineaux, supra.

In this case, the trial judge apparently granted the exception of no right of action because the appellant prayed for items of recovery disallowed by law, i.e., annulment of a sheriff’s sale and placing her back into possession of same. After a judicial sale has been consummated, the only recovery is to the proceeds. Guaranty Savings Assur. Co. v. National American Bank, 407 So.2d 795 (La.App. 4th Cir.1981), writ denied. Whatever the merits of this objection, however, it is improper to grant an exception of no right of action for that reason since there is no doubt appellant was a member of the class entitled to bring an action for recovery of the proceeds. Furthermore, whenever the petition can be cured of defects, an amendment must be allowed by the court. LSA-C.C.P. art. 934.

For the aforementioned reasons, then it was error to grant either of the peremptory exceptions of no cause and/or no right of action.

On the next issue, i.e., whether the preliminary injunction was properly denied, two questions had to be considered: (1) whether there was irreparable injury; and (2) whether the mover presented a prima facie case.

LSA-C.C.P. art. 2298 provides specifically that injunctive relief shall issue under a writ of fieri facias (inter alia):

(4)When the judgment sought to be executed is absolutely null.

Thus, irreparable injury does not need to be shown where, as in this case, the allegations raised the issue of a null judgment. Therefore, appellant here needed only to present a prima facie case that the judgment under which the garnishment is sought is an absolute nullity to obtain the injunctive relief.

The evidence in this regard clearly reveals that the default judgment, which is the source of all further proceedings, was taken despite the fact that an answer had been filed prior to that date. The judgment is on its face a nullity subject to annulment at any time. LSA-C.C.P. art. 2002.

A prima facie case is defined by Black’s Law Dictionary as:

“At first sight, on the first appearance; on the face of it; ... a fact presumed to be true unless disproved by some evidence to the contrary.”

The only contrary evidence introduced here focused on the question of acquiescence to the null judgment. Although this defense, if successful, could relieve defendant of liability, it is not clear all of the evidence bearing on the question is in the record, since the trial court at times restricted the evidence stating that the merits were not being litigated. Additionally, the plaintiff-appellant’s activities in this matter show no intent to acquiesce in that she went through four attorneys, apparently causing a great deal of confusion for all involved. In one instance in particular, a rule on the distringas was apparently set for October 14, 1980. Appellant changed attorneys in the meantime, and a new date for the hearing was set for that reason. However, although an order shows the new date was November 18, 1980, the minute entry for October 14, 1980 notes the case was continued without date. The surviving spouse testified that she made an appearance (she did not recall the date), but that no one else was present and her attorney informed her by telephone that the case was continued without date.

For the foregoing reasons, and in the further interest of justice, the preliminary injunction should have issued and the merits of the case tried at some time subsequent to February 22, 1980. Therefore, the judgment of the trial court is set aside and the case remanded to the trial court with instructions to issue the preliminary injunction and set the case for trial on the merits. All costs to be borne by the appellee.

REVERSED AND REMANDED.

      . See In Re: Succession of Frederick A. Ziifle, 378 So.2d 500 (La.App. 4th Cir.1979).

      . An order attached to the motion to traverse the descriptive list shows it was set for hearing on May 13, 1980. A minute entry indicates that the proceedings were continued without date on May 13, 1980. The record does not indicate whether the motion to traverse was ever tried.

      .A yellow gold aquamarine and diamond cocktail ring; a gold cross with diamonds; a refrigerator, and a 1977 Ford Granada.

      . The amount was determined by adding the $17,000.00 of community funds used to pay the mortgage on the surviving spouse’s separate property to one-half of the current value of the items determined by the April 28, 1980 judgment to be community property. The Sheriffs account was based on the value reflected by the descriptive list rather than current value.

      . There is some indication a suit to enjoin the sale was also brought by Mr. Mullins on behalf of the surviving spouse but the same is not in the record before us.

      . The prayer of the petition asks solely for a restraining order and a preliminary injunction. It does not ask for a permanent injunction.

      . The former trial judge had been Judge Louis DeSonnier. At this point in time, Mr. Peter Feringa, Jr. was serving as judge ad hoc.


source: Caselaw Access Project

author: GAUDIN, Judge.

license: Public Domain

text:
    John E. PICKRON & Judith A. Pickron Husband & Wife, v. Mrs. Betty Webre KREBS, Individually and Betty Webre as Testamentary Executrix of the Succession of John M. Krebs.
    No. 5-363.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.
    Writ Denied Dec. 16, 1983.

      William J. Wegmann, New Orleans, for defendants-appellants.
    Mack E. Barham and Ralph S. Hubbard III, New Orleans, for plaintiffs-appellees.
    BOUTALL, GAUDIN and DUFRESNE, JJ.
   GAUDIN, Judge.

This action for reduction of the purchase price was instituted in the 24th Judicial District Court by Mr. and Mrs. John E. Pickron, who had obtained the residence at 6818 Louisville Street in New Orleans from Mr. and Mrs. John M. Krebs.

The trial judge rendered judgment in favor of the Pickrons in the amount of $4,847.70, and from this decree both plaintiffs and defendants have appealed.

The Pickrons believe that the trial judge erred in not awarding attorney fees, while the Krebs’ main contentions are that prescription had set in before suit was filed and that damages should not have been awarded.

We affirm the trial judge’s determination that the suit was timely filed and we affirm the award of $4,847.70. In addition, we award $2,500.00 as attorney fees.

FACTUAL BACKGROUND

The act of sale was passed on August 20, 1976. The home had no apparent vices and the sellers did not advise of any latent or hidden defects.

In December of 1976, the Pickrons discovered a small leak in the den. Several broken shingles were replaced by Henry’s Sheet Metal Works, who suggested additional work. On April 22, 1977, the Pick-rons had the roof inspected by Hibernia Roofing and Metal Works, but no additional repairs were recommended.

In November of 1977, however, another leak developed and the Pickrons employed Roy Rhoades to make the repairs. Mr. Rhoades inspected the roof in December, 1977, and told the Pickrons that the 10-foot beam supporting the den roof was sagging and could collapse. Testimony of various expert witnesses indicated that a structural defect was indeed present. An eight inch steel beam should have been installed instead of a much smaller wooden beam.

To support the roof and prevent it from falling, a large post had to be installed in the middle of the den.

Alleging that the inadequate beam constituted a hidden structural defect, the Pickrons filed suit on October 25, 1978, which was two years and two months after the purchase.

PRESCRIPTION

Mr. and Mrs. Krebs do not strenuously argue that the amount of $4,847.70 was excessive, but they do maintain that the suit was not filed in time.

The trial judge could have applied either of two Civil Code articles dealing with prescription.

LSA-C.C. art. 2534 reads:

“The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.
“This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser...”

LSA-C.C. art. 2546 deals with prescription when the seller is in bad faith:

“In this case, the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery • of the vice...”

The trial judge found Art. 2546 applicable, imputing knowledge of the hidden defect to Mr. Krebs and deciding that the one-year prescriptive period did not commence until discovery of the faulty beam in December, 1977. The earlier roof leaks were not indicative of a defective beam.

Although a land surveyor by trade, the record shows that Mr. Krebs had knowledge of engineering and construction. He drew up the plans and specifications for the addition, he obtained the necessary building permits, he hired the carpenters and he personally supervised the construction work.

We cannot say that the trial judge erred by placing Mr. Krebs in the shoes of a craftsman or builder with regard to the prescription articles.

ATTORNEY FEES

LSA-C.C. art. 2545 authorized attorney fees if the seller conceals a vice or defect and omits to declare it. Although the trial judge stated that he did not believe that either Mr. or Mrs. Krebs actually knew that the supporting beam was inadequate, such knowledge is imputed if the seller is qualified as Mr. Krebs was and does in fact plan and supervise the construction work. See Schamens v. Crow, 326 So.2d 621 (La.App. 2nd Cir.1975).

Considering the amount of recovery, and the required legal endeavors, we award $2,500.00 as attorney fees.

CONCLUSION

We hold that a person with engineering and construction knowledge who plans, designs and personally supervises the building of an addition to a residence is presumed to be aware of any structural defect, and the lack of knowledge regarding any structural defect is imputed to him.

Accordingly, we find, as did the trial judge, that knowledge of the defect was imputed to Mr. Krebs, that the structural defect was not known until December, 1977, and that the suit was filed within a year of discovery.

We affirm the award of $4,847.70 to the Pickrons, and we award, in addition, the sum of $2,500.00 as attorney fees. In all other respects, the district court judgment is affirmed.

AMENDED AND AFFIRMED.


author: REDMANN, Chief Judge. LOBRANO, Judge, WARD, Judge,

text:
    MARTZELL, MONTERO AND LAMOTHE v. Robert CHATELAIN.
    No. C-1136.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 17, 1983.

      Thomas Keasler Foutz, Martzell & Gay, New Orleans, for respondents.
    Robert P. Chatelain, Metairie, applicant in pro. per.
    Before REDMANN, C.J., and GULOTTA, KLEES, LOBRANO and WARD, JJ.
   REDMANN, Chief Judge.

We granted certiorari to review the overruling of defendant’s exception of nonjoin-der of necessary parties in plaintiffs’ suit against one of three clients for legal services rendered at that client’s request for the benefit of all three.

Defendant’s application suggested to this court, especially from the failure of plaintiffs’ letter describing the agreement to act as counsel and specifying an hourly rate to expressly so declare, a facial unlikelihood that defendant (a lawyer; the other two were a non-lawyer and a corporation) was to be responsible for 100% of plaintiff’s fees, whether alone or in solido with the other clients. Plaintiffs’ response did not directly attack this unlikelihood. We nevertheless recognize that a lawyer might well refuse to rely on a corporation and a stranger of unknown financial responsibility and insist instead to a known fellow lawyer that he agree to pay 100% of the fees to represent all (though, we repeat, one would expect a letter confirming employment and stating its other terms to have recited such an agreement).

This court also noted plaintiffs’ theoretical policy argument that it is possible to decide a suit against one of three joint obligors without joining the other two, as by judgment for a third of the total fees (in which ease the one cast would surely have no claim against the other two because they are not responsible for his third — and for the same reason cannot third-party them as joint obligors, La.C.C.P. 1111). But C.C.P. 926 expressly lists nonjoinder of a necessary party as a basis for the dilatory exception, and art. 643 expressly declares that joint obligors are necessary parties; and art. 933 provides, in effect, that upon such a dilatory exception the necessary parties must be joined under pain of dismissal of the suit. We deemed it not within a court’s power to disregard so express a statutory entitlement in a case to which it apparently applies.

We therefore granted certiorari in an order containing the above reasons.

This court’s refusal of writs on an earlier overruling of an exception of nonjoinder of indispensable parties had suggested “The potential co-obligors may be ‘necessary’ ... parties .... ” Despite that express suggestion by this court, at the hearing in the trial court on the exception of nonjoinder of necessary parties plaintiffs did not offer testimony or other evidence that the bargain was that defendant would pay the full amount of the fees. The only evidence in the record is plaintiffs own letter to defendant. Plaintiffs’ brief merely argues again the legislative unwisdom of C.C.P. 926.

We accept that it is defendant’s burden, on his exception of nonjoinder of necessary parties, to establish prima facie that the obligation sued on is a joint one. We do not deem it defendant’s burden to prove jointness beyond doubt, and we concede that plaintiffs might yet prevail on this issue at trial on the merits. But we believe that plaintiffs ought not be allowed to sit in further silence at the hearing on the exception of nonjoinder when their own letter, attached by them to their petition, supports defendant’s position by its silence. See La. C.C. 2080.

We therefore conclude that the exception of nonjoinder of necessary parties must be maintained because of C.C.P. 643 and 926, with leave to amend to cure the petition’s defect, C.C.P. 933.

We recognize the possibility that plaintiffs might prove defendant’s personal liability for 100% at trial on the merits, in which case, if we have maintained the exception, the other clients will have been joined for naught. But we deem that possibility preferable to a contrary possibility, namely that plaintiffs might prove only a joint obligation (as their letter implies), in which case, if we have not maintained the exception, defendant will have been denied the joinder he is expressly entitled to under C.C.P. 643 and 926.

The judgment under review is therefore reversed, and the exception of nonjoinder of necessary parties is maintained, with leave to plaintiffs to amend within a time to be fixed by the trial court.

LOBRANO and WARD, JJ., dissent.

LOBRANO, Judge,

dissenting.

I respectfully dissent from the majority’s reversal of the trial judge’s ruling in the matter. Plaintiff has sued defendant, Cha-telain, alleging that he, Chatelain, is responsible in solido for certain attorney fees. Chatelain excepts to the suit alleging that two other parties should be brought in as necessary parties since they are responsible as joint obligors. The trial court overruled the exception.

Plaintiff bears the burden on the merits that defendant is responsible for all of the debt. Defendant can third party the alleged joint obligors, or he can argue on the merits that he is only responsible for ⅛ of the debt, or none of the debt. The majority cites Art. 643 of the Code of Civil Procedure stating that joint obligors are necessary parties. I do not disagree with that. But the very next sentence of that same article states that “... one or more solidary obli-gors may be sued to enforce a solidary obligation without the necessity of joining all others in the action.” This is exactly what plaintiff has done.

I believe the trial court was correct, and would deny the writ.

WARD, Judge,

dissenting.

I am of the opinion that the Trial Judge’s ruling should be affirmed. Relator has not made a showing of irreparable harm and any error allegedly made by the Trial Judge when he denied the exception of nonjoinder may be reviewed on appeal. This court, in countless decisions, has refused writ applications to review a Trial Judge’s denial of a dilatory exception because there was no showing of irreparable harm.

Nonetheless, even if irreparable harm had been shown, I would affirm. The burden of proof lies upon the party who raises the exception, in this case, the relator, Robert Chatelain; not upon respondents, Martzell, Montero, and Lamothe, as the majority holds. The Trial Judge obviously found that relator Chatelain had not proven the exception; that is, he did not prove that he was only jointly liable for his pro rata share of the debt arising from an employment contract.

Even if Martzell, Montero, and Lamothe were charged with the burden of proof, I believe they have carried it. The only apparent evidence of the oral contract of employment is the letter referred to by the majority confirming the agreement. A casual reading of that letter shows that Mart-zell, Montero and Lamothe contracted with Chatelain alone, not with CMTS or its other corporate officers. The letter to Chatelain from a member of the firm is set out below with underlining supplied to support my opinion.

This will confirm your conversation with Jack [Martzell] in which you hired our firm to represent CMTS Investments, Inc., and its individual officers, including you, in connection with the injunction litigation presently pending in the Civil District Court and other courts in the State of Louisiana. This will also confirm your conversation with Jack wherein you agreed to hire our firm at the hourly rate of $150 per hour for services of any attorney in the office.
We look forward to representing you in this matter and hope that it can be brought to a successful conclusion shortly. (Emphasis added).

Although Chatelain filed affidavits to support his claim that his obligation, if any, is joint, those affidavits show only that Martzell, Montero and Lamothe promised Chatelain that they would represent Chate-lain, CMTS, and the other corporate officers, not that they would look to the others for payment of a pro rata share. An agreement to represent three does not exclude a promise by one (Chatelain) to pay the freight for all.

Confusion exists because the majority and counsel fail to distinguish between an obligation of Chatelain alone, and one that he owes with others, either jointly or in solido. A joint or solido obligation by definition presupposes that more than one is liable. If the contract is only with Chate-lain, then only Chatelain is liable under the contract, and he is liable for the whole debt. Martzell, Montero and Lamothe did not contract with CMTS and its other corporate officers. Martzell never once spoke with anyone other than Chatelain, and there is nothing — no corporate resolution, no letter of authority, nothing — to indicate Chatelain had authority to contract for both CMTS, and its corporate officers.

If in the unlikely event Jack Martzell was so stupid to agree that Chatelain would be liable only for one-third and that others whom he had never met and about whom he knew nothing would be liable for the remaining two-thirds, then liability would only be joint, Art. 643 applies; there is non-joinder. But for the majority to conclude Art. 643 applies, it must first reach this conclusion.

When the majority relies upon Art. 643 which provides that joint obligors are necessary parties, the majority must have necessarily assumed as proven that which was not proven; to-wit: the parties are indeed only jointly liable. As a matter of fact, this is the issue of this case, a question that should be left to a trial on the merits, not decided by this Court as a preliminary step before holding there is nonjoinder of necessary parties.

One cannot reach the conclusion there is nonjoinder under Art. 643 unless one also concludes there was several liability. One cannot conclude there was several liability unless one decides the merits of this case. If trial on the merits shows Chatelain is liable only severally, then Martzell, Montero and Lamothe are the losers, not Chatelain, because they failed to join others who were liable. If, on the other hand, as Chatelain argues, they are severally liable, then he has the right to file a third party petition to make them defendants, and if he is found liable for the whole he may demand indemnity from the others. If he is not found liable for the whole thing, he loses nothing, because he is then liable only for his pro rata portion of the debt.

If Chatelain, CMTS, and other corporate officers agreed that each would be liable for the whole debt, then they bound themselves in solido; Art. 643 applies; there is not nonjoinder; the dilatory exception falls. Since of the three only Chatelain was present, I do not believe this is the case. However, if it were, then one debtor may be sued for the whole, and he, of course, may file a third party demand for contribution. While I do not believe the record supports this conclusion, I find that conclusion to be more reasonable than the majority’s which necessarily assumes Chatelain bound himself only jointly for a pro rata share, and that Martzell agreed with absent parties that they too would only be bound jointly for a pro rata share.

Finally, maintaining the exception and offering Martzell, Montero and Lamothe a choice of either amendment or dismissal forces them to pursue a theory of the case contrary to their belief of the facts, and now as an alternative they must allege facts they believe to be false or face dismissal of their lawsuit.


author: AUGUSTINE, Judge.

text:
    Shannon M. RAINEY v. CREDITHRIFT OF AMERICA # 5 INC. and Caruso Auto Sales aka Johnny Caruso Auto Sales.
    No. CA-0299.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 18, 1983.

      Reed & Reed, Bruce G. Reed, J.D., New Orleans, for defendant-appellee.
    Jules A. Fontana, Jr., New Orleans, for defendant-appellant.
    Patrick D. Breeden, New Orleans, for plaintiff-appellee.
    Before AUGUSTINE, WARD, and WILLIAMS, JJ.
   AUGUSTINE, Judge.

The present dispute arises from plaintiff Shannon M. Rainey’s purchase of a used 1975 Chevrolet Monza from an automobile dealership which held itself out to the public as “Caruso Auto Sales”. The terms of that July 1977 transaction called upon Rai-ney to make a cash down payment of $1,283.70 and to finance the remainder of the total purchase price through Credithrift of America, according to credit arrangements made by Caruso. Plaintiff’s promissory note to Credithrift for the financial balance was secured by a chattel mortgage. As part of the transaction, Caruso and Cre-dithrift issued a joint disclosure statement, as required by the Truth in Lending Act (TILA), 15 U.S.C. § 1601, et seq.

Following the sale of the automobile, plaintiff filed this suit against Johnny Caruso and Credithrift, alleging several disclosure violations under TILA and its accompanying “Regulation Z” (12 C.F.R. § 226.1 et seq.). The trial court granted plaintiff’s motion for summary judgment, and this appeal followed.

The specific issues presented by this appeal are these:

I. Whether Caruso Auto Sales sufficiently identified itself to the plaintiff, in accordance with Regulation Z.
II. Whether the defendants’ failure to include notary fees as a component of the finance charge presents a violation of TILA and Regulation Z.
III. Whether the contradiction between the disclosure statement (which identifies plaintiff’s security as a “chattel mortgage”), and the mortgage contract itself (which is captioned “collateral chattel mortgage”) is remediable under TILA and Regulation Z.

Our consideration of the merits of this case is guided by the knowledge that the stated purpose of the Act and its accompanying regulations is to assure meaningful disclosure of credit terms to consumers, and thereby, to facilitate comparison shopping in the market for credit. A creditor’s noncompliance with TILA’s disclosure requirements was intended by the Act to be aggressively prosecuted by the consumer, who has, to date, receive the benefit of the federal judiciary’s rigorous scrutiny toward transactions governed by the Act. When challenged, the creditor assumes the burden to prove compliance with TILA, and even slight deviations from the disclosure requirements are remediable by the consumer.

I. Failure to Identify Creditor

Regulation Z., specifically 12 C.F.R. § 226.6(d), requires that if two or more creditors make a joint disclosure, each creditor shall be clearly identified. The joint disclosure statement issued by defendants in this matter named “Caruso Auto Sales” as the “arranger of credit”. Plaintiff contends that such a disclosure violates TILA and Regulation Z because “Caruso Auto Sales” is not the true identity of any legal entity, but is merely a trade name for the partnership formed by John and Steve Caruso. We agree.

Defendant Johnny Caruso has admitted through pleadings that Caruso Auto Sales purports to be the name of the partnership formed between himself and his brother, Steve Caruso.

Under Louisiana law,

“No person shall transact any business under an assumed name or under any designation .. . unless such person files in the office of the register of conveyances in the City of New Orleans ... a certificate setting forth the name under which the business is to be conducted and the real full name of the person owning ... or transacting the business, with the post office address of such person.” La. R.S. 51:281.

With particular reference to partnerships, La.R.S. 51:283 provides:

... “This Sub-part shall not prevent the lawful use of a partnership name or designation, if the partnership name or designation includes the real name of at least one of the persons transacting the business”. (Emphasis added).

Applying the above precepts, it is clear that unless the Caruso partnership registered its assumed name, Caruso Auto Sales, the firm has failed to properly identify itself in the conduct of its business, as its partnership name does not include the real name of any person. As we stated earlier, it is Caruso who has the burden to show compliance with TILA. That burden has not been met here, for nowhere in the record do we find evidence of the partnership’s registration in accordance with Louisiana law. “Caruso Auto Sales” must therefore be regarded as the mere trade name of the Caruso firm.

In Lawrence v. Franklin Investment Co., Inc., 468 F.Supp. 499 (D.D.C.1978), it was squarely held that “a trade name may not be sued, and disclosure of the trade name alone presents a barrier to discovering the actual identity of the creditor ...” Id. at 501. See also, Vines v. Hodges, 422 F.Supp. 1292 (D.D.C.1976). The principle underlying Lawrence also holds true in Louisiana: Code of Civil Procedure Art. 736 provides that a person who does business under a trade name is the proper defendant in an action to enforce an obligation created by or arising out of the doing of such business. Since, in Louisiana (as under federal law) a trade name may not be sued, it follows that Caruso’s disclosure of its trade name alone violated TILA and Regulation Z, § 226.6(d). Accordingly, the summary judgment against Caruso is hereby affirmed. However, we cannot agree with the trial court that Credithrift should share Caruso’s liability, for when multiple creditors make a joint disclosure, each is responsible only for those disclosures which are within his knowledge and the purview of his relationship with the customer. Reg. Z, § 226.6(d). But Credithrift cannot be held responsible to know whether Caruso properly registered its partnership name, and thus cannot be held to have known that “Caruso Auto Sales” was merely a trade name. That part of the trial court’s judgment finding Credithrift to be in violation of Reg. Z, § 226.6(d) is therefore reversed.

II. Notarial Fees

In furtherance of TILA’s purpose to promote the consumers’ informed use of credit, both the Act and Regulation Z require that the creditor disclose the “finance charge” and its component parts. Certain types of fees and charges are specifically exempted from the disclosure requirement, however. Reg. Z, § 226.4(b)(1) provides:

(b) Itemized charges excludable. If itemized and disclosed to the customer, any charges of the following types need not be included in the finance charge:
(1) Fees and charges prescribed by law which actually are or will be paid to public officials for determining the existence of or for perfecting or releasing or satisfying any security related to the credit transaction.

Plaintiff contends that the defendants’ failure to include notary fees which were assessed pursuant to her purchase of the automobile violates the above-cited regulation. She relies upon an unofficial staff interpretation of § 226.4(b)(1), issued by the Federal Reserve Board, which opined that inasmuch as notarial fees are not “prescribed by law” within the meaning of that section, they must be included in the finance charge. Plaintiff seeks to clothe the FRB opinion with the authority of law, and she invokes the great deference which courts must pay to administrative agencies in the interpretation of their own regulations. Plaintiff cites Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980) for the proposition that “unless demonstrably irrational, Federal Reserve Board staff opinions construing the Act (TILA) or Regulation (Z) should be dispositive...

Although we acknowledge the Mil-hollin directive to accord great deference to the staff opinions of the Federal Reserve Board, we do not find such deference to be appropriate here, for as Milhollin itself stated, unofficial interpretations have no special status comparable to that of official FRB staff interpretations. Id. at 568, n. 10, 100 S.Ct. at 798, n. 10. Clearly, the FRB opinion upon which plaintiff relies is an unofficial interpretation. Accordingly, we pay greater deference to the federal judiciary. Williams v. Bill Watson Ford, Inc., 423 F.Supp. 345 (E.D.La.1976) and George v. General Finance Corp. of Louisiana, 414 F.Supp. 33 (E.D.La.1976) squarely hold that a notary’s fee falls within the exception of § 226.4(b)(1) and need not be included in the finance charge if it is separately itemized on the disclosure statement.

Adopting the holdings of the above-cited cases, we find that the creditors’ failure to include notary fees among the “finance charges” presents no violation of the Act or of Regulation Z. The $3.00 notary fee assessed in this case, although not in-eluded among the “finance charges”, was separately itemized on the disclosure statement. Defendants have given substantial and accurate disclosure and are therefore in compliance with § 226.4(b)(1).

III. Caption of Mortgage

In transactions governed by the Act and Regulation Z, a creditor must disclose a description of any security interest held by the creditor in connection with the extension of credit. 15 U.S.C. § 1639(a)(8); 12 C.F.R. § 226.8(b)(5). The disclosure statement issued to the plaintiff in this matter identifies the type of security retained by the defendant as a “chattel mortgage.” The mortgage itself, however, is identified by its caption as a “collateral chattel mortgage”. The two forms of security thus referred to are by no means synonymous. Plaintiff urges that, inasmuch as the security actually retained by the defendant creditor is a chattel mortgage, the caption of her mortgage contract conveys “additional in- . formation” which contradicts the disclosure statement, and that such a disclosure violates Regulation Z, § 226.6(c).

Defendants counter that “collateral mortgage” is a term of art which has assumed a unique meaning among Louisiana lawyers, a meaning whose peculiar nuances do not even occur to the average consumer, much less mislead or confuse him. In the mind of the average layman, appellants argue, a “collateral mortgage” is simply one which stands as security for a debt; in this case, the automobile is the “collateral”, and its mortgage is a “collateral” mortgage. Appellants remind us that except for Louisiana’s penchant for this exotic breed of security — “the strange alchemy of the pledge of a mortgage” — this colloquial understanding of “collateral” would be vindicated, as it is in every other State in the union, by its dictionary meaning:

“Collateral — Designating, or pert, to, an obligation or security attached to another to secure its performance; as, a collateral assurance to a deed; to give collateral securities with one’s note for a loan; hence, secured or guaranteed by additional security; as a collateral loan; a collateral note.” Webster’s New International Dictionary, 3d Ed.; unabridged. 1934. (Emphasis his).

Were it not for the relentlessly strict interpretation accorded TILA and Regulation Z by their chief interpreters, the federal courts, we would be moved by appellants’ argument, which we consider to have some merit. But it has been repeatedly held that it is not necessary that the consumer actually have been deceived in order to find a violation. Zamarippa v. Cy’s Car Sales, Inc. 674 F.2d 877, 879 (11th Cir.1982); Smith v. Chapman, 614 F.2d 968, 971 (5th Cir.1980). Indeed, to find a violation of Regulation Z, we need not hold that the “additional information” contained in the caption is misleading or confusing to the average consumer. It is sufficient that the “additional information ... be stated ... so as to ... contradict ... the information required by this part to be disclosed.” § 226.6(c). (Emphasis added).

There can be no question that the defendants’ disclosure form, which identifies their security as a chattel mortgage, is contradicted by the caption of the mortgage which identifies it as a “collateral chattel mortgage” — under Louisiana law, they are simply not the same.

The only remaining question is whether such an innocuous error is remediable under the Act. The great majority of federal cases concerning the standard of scrutiny to be applied in assessing violations of TILA mandate strict compliance with the technical requirements of the Act. Smith v. Chapman, supra, at 971; Williams v. Western Pacific Financial Corp., 643 F.2d 331, 339 (5th Cir.1981). Even minor statutory and regulatory strictures must be followed in detail. Charles v. Krauss Co., Ltd., 572 F.2d 544 (5th Cir.1978), and “once the court finds a violation, no matter how technical, it has no discretion with respect to the imposition of liability”. Grant v. Imperial Motors, 539 F.2d 506, 510 (5th Cir.1976); Charles v. Krauss, supra, at 546. Shroder v. Suburban Coastal Corp., 550 F.Supp. 377 (S.D.Fla.1982). (Emphasis added).

Applying the foregoing standards, we find that the contradiction between the caption of the mortgage and the disclosure statement is sufficient to trigger a violation of § 226.6(e). See Gennuso v. Commercial Bank and Trust Co., 566 F.2d 437 (3rd Cir.1977); Ives v. W.T. Grant, Co., 522 F.2d 749 (2d Cir.1975). Accordingly, summary judgment as to each defendant is affirmed and the case is remanded for determination of damages.

AFFIRMED and REMANDED.

      . In 1980, TILA was amended by “TILSA”, the Truth in Lending Simplification Act. The facts of this case arose prior to the effective date of the amending legislation.

      . 15 U.S.C. § 1602 defines “creditor” to include “a person who regularly arranges for the extension of consumer credit, which is payable in more than four installments or for which the payment of a finance charge is or may be required, from persons who are not creditors. ..”.

      . 15 U.S.C. § 1638.

      . Reg. Z„ § 226.8(b) and (c).

      . FRB Letter of March 18, 1977, No. 1166; Consumer Credit Guide No. 31,559. The reported text of the letter reads as follows:
      “This is in reply to your letter * * * requesting several official staff interpretations on various subjects. Most of your questions have been addressed in such an interpretation contained in a separate letter to you. This letter is an unofficial letter dealing with the question you raised about the proper treatment of notary fees.
      You have asked whether fees paid to notaries in Louisiana are required to be disclosed as components of the finance charge under § 226.8(d)(3) of Regulation Z. In Louisiana both real estate and chattel mortgages must be acknowledged before a notary public. You state that notaries are considered ‘public officials’ in connection with this perfection of security interests but that the amount of the fee charged is not prescribed by law. As you have noted, notary fees in connection with real estate transactions are excluded from the finance charge by virtue of § 226.4(e)(4). Although there is no comparable specific mention of notary fees with regard to personal property transactions, you ask whether these fees are excludable from the finance charge by virtue of § 226.4(b)(1). Section 226.4(b)(1) provides that ‘[f]ees and charges prescribed by law which actually are or will be paid to public officials ... for perfecting ... any security related to the credit transaction’ are excludable from the finance charge. You argue that since State law requires a notary to acknowledge the chattel mortgage and since notaries are public officials under State law, notary fees therefore come within this provision.
      Staff does not agree with your analysis of this provision. It is staff’s opinion that the term ‘fees and charges prescribed by law’ requires that law set the specific amount of the fees and charges. Support for our view that the words ‘prescribed by law’ in § 226.4(b)(1) refer to the amount of the fee appears from an examination of § 226.4(b)(2). This latter paragraph, which excludes from the finance charge so-called ‘non-filing insurance’ premiums not in excess of the fees and charges described in paragraph (b)(1), clearly uses as its measure the amount of the fees referred to in paragraph (b)(1).

        Since, in staffs opinion, these notary fees are not prescribed by law, as contemplated by the regulation; they must be included in the finance charge and itemized under § 226.8(d)(3), except as provided in § 226.4(4).
      This is an unofficial staff interpretation of Regulation Z. I trust it is responsive to your inquiry.”

      . Prior to its repeal by Pub.L. 96-221, effective upon the expiration of two years & six months after March 31, 1980, 15 U.S.C. § 1639(a)(8) read as follows:
      (a) “Any creditor making a consumer loan or otherwise extending consumer credit in a transaction which is neither a consumer credit sale or under an open end consumer credit plan shall disclose each of the following items, to the extent applicable: ...
      (8) A description of any security interest held or to be retained or required by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates.”

      . § 226.6(c) provides in pertinent part:
      “Additional information. At the creditor’s or lessor’s option, additional information or explanations may be supplied with any disclosure required by this part, but none shall be stated, utilized, or placed so as to mislead or confuse the customer or lessee or contradict, obscure, or detract attention from the information required by this part to be disclosed.”

      . Prof. Harry Sachse, Report to the Louisiana Law Institute on Article Nine of the Uniform Commercial Code, 41 Tul.L.Rev. 785, 799 (1967), cited in Nathan & Marshall, The Collateral Mortgage, 33 La.L.Rev. 497 (1973).


text:
    James L. JEFFERS, Jr. v. Victoria P. HANSEN and Bonaparte’s Retreat, Inc.
    No. CA-0355.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 18, 1983.

      See also La.App., 440 So.2d 825.

      Bruce C. Waltzer, Fine, Waltzer & Bag-neris, New Orleans, for petitioner-appellant.
    James E. Swayngim, New Orleans, for petitioner-appellant.
    Anthony J. Milazzo, Jr., Kenner, James P. Screen, New Orleans, for defendants-appel-lees.
    Before AUGUSTINE, WARD and WILLIAMS, JJ.
   AUGUSTINE, Judge.

Plaintiff James L. Jeffers is the former manager of a French Quarter bar known as Bonaparte’s Retreat. The bar is located at 1007 Decatur Street in New Orleans, which premises were, at one time, leased by Bonaparte’s Retreat, Inc., whose majority stockholder and secretary-treasurer is Victoria P. Hansen. This dispute arose when Hansen, acting on behalf of the corporation, entered the bar and seized the premises to prevent Jeffers’ continued management. Jeffers then filed this suit for injunction and damages against Hansen and the corporation, alleging that Hansen’s conduct constitutes trespass and wrongful eviction.

The defendants answered, denying the allegations, and in turn, filed a reconven-tional demand alleging Jeffers’ breach of contract for employment. Following trial on the merits, the trial court rejected plaintiff’s principal claims, but, nevertheless, allowed Jeffers to recover certain monies which he had deposited with the defendant corporation pursuant to his contract. Jef-fers now prosecutes this appeal, urging that the trial court erred in not recognizing the merit of his principal allegations of trespass and wrongful eviction.

THE CONTRACT

At the center of this controversy is the contract itself, executed by these disputing parties in authentic form on September 30, 1977. The agreement is styled “Contract for Employment” and its terms allow Jef-fers the right to operate Bonaparte’s Retreat according to the following provisions:

“WHEREAS, Said corporation desires to employ and retain the services of a Manager, and that one James L. Jeffers, Jr. has applied for employment as a Manager of said business known as Bonaparte’s Retreat, Inc.
THEREFORE, It is mutually agreed: 1) That effective October 1, 1977 James L. Jeffers, Jr. is employed as Manager of Bonaparte’s Retreat, Inc. under the terms and conditions hereinafter set forth:
2) Unless voluntarily terminated or for violation of the provisions of this contract or for violation of the liquor laws and regulations of the State of Louisiana and the City of New Orleans, said employment shall remain in effect until March 14, 1999.”

Other provisions called upon Jeffers, as manager, to deposit $3,000 with the corporation, Bonaparte’s Retreat, Inc., “for the faithful performance of the contract.” The contract further obligated Jeffers to pay to the corporation the sum of $1,000 per month “as revenue, after the payment of all expenses, except monthly rental, but including repairs, maintenance and all licenses, supplies, salaries, etc.” (Emphasis added). The contract stipulated that Jeffers “shall be reimbursed monthly for that sum which aggregates net receipts after the payment of the sum guaranteed to the corporation monthly and all expenses of the corporation except rent ...” (Emphasis added). The agreement also bound Jeffers to keep all records of operations and expenses, and to make those records available for inspection by Hansen, the corporate secretary-treasurer. Finally, as incentive for Jeffers’ faithful compliance with the contract, Hansen bound the corporation to offer to Jeffers a sublease of the premises occupied by Bonaparte’s Retreat in the event that Bonaparte’s received permission from the owner of the premises to grant such a sublease.

PLAINTIFF’S ALLEGATIONS

The conduct which gave rise to this litigation occurred on March 24,1978. As of that date, the relationship between Jeffers and Hansen, which had begun smoothly enough six months earlier, had turned antagonistic. For reasons to be stated later in this opinion, Hansen had grown to suspect Jeffers of false dealing with respect to the corporation’s revenues. When Jeffers was hospitalized for injuries sustained during an altercation at Bonaparte’s, Hansen went to the business premises at 1007 Decatur Street and conducted a first-hand inspection of the corporation’s records, which had been kept in Jeffers’ possession. Hansen’s discoveries convinced her that Jeffers had not faithfully carried out his obligations for some time and, accordingly, she took immediate action, closing the business and changing all locks, thus preventing Jeffers from continuing his alleged course of mismanagement. Shortly afterward, Hansen notified the plaintiff that he was discharged from employment.

Jeffers contends that because his contract with Bonaparte’s is a sublease of the premises located at 1007 Decatur Street, and not a contract for employment, Hansen’s conduct constituted trespass and unlawful eviction. Plaintiff’s argument is founded upon parol evidence regarding his negotiations with Hansen prior to and contemporaneous with the signing of the contract. These negotiations, in plaintiff’s view, modify the written agreement and reflect the parties’ true intention to perfect a sublease.

According to Jeffers, it had been Hansen’s intention from the beginning to duplicate with him the contractual arrangement which had bound Bonaparte’s previous managers, two individuals named Herman and Oreck, who had subleased the premises from the corporation with the permission of the owner-lessor. Shortly after Herman and Oreck gave up their sublease and left the business in 1977, Hansen placed an advertisement in a local newspaper offering the bar for a long-term lease. Jeffers responded to the offer and negotiations ensued. At that time, plaintiff contends, Hansen explained to Jeffers the sublease provisions of the former managers’ contract and promised that Jeffers’ rights and duties concerning the premises and the operation of the business would be the same as theirs. Jeffers acknowledges, of course, that the express terms of his contract do not purport to sublease the premises. Nevertheless, he argues, it was the intention of both parties to circumvent the corporation’s lease which, by that time, contained a prohibition against the corporation’s sublease of the premises to third parties. Plaintiff asserts that the evidence of Hansen’s intent to accomplish indirectly that which could not be done directly (or legally, we might add) is found in that provision of the contract which obligates Jeffers to pay to the corporation a sum of $1,000 per month, in advance, for the privilege of operating the defendant’s business. The plaintiff contends that such payment constitutes rent. Finally, it is argued that the last paragraph of the contract (wherein Hansen obligates the corporation to offer a sublease to Jef-fers in the event that the owner-lessor remove the prohibition against sublease) is merely a promise to later cast in formal, written terms that which had already been accomplished by the parties’ oral agreement.

The issue thus raised is whether parol evidence of agreements made prior to or contemporaneously with the execution of authentic act can be admitted to transform the unambiguous character of the act from a contract of employment to a contract of lease.

The Louisiana Civil Code clearly answers the above question in the negative:

“The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.” Article 2236.
“Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.” Article 2276.

Louisiana courts have consistently interpreted the above articles to mean that in the absence of any claim of fraud, error, or ambiguity in the written instrument itself, the terms of an authentic act are conclusive and cannot be varied or contradicted by parol evidence. Morrison v. Richards, 343 So.2d 375 (La.App. 4th Cir.1977); Weysham v. Aiavolasiti, 227 So.2d 798 (La.App. 4th Cir.1969); Summers v. Summers, Bros. Inc., 385 So.2d 489 (La.App. 1st Cir.1980).

Plaintiff in this action has alleged neither fraud nor error in the formation of the agreement. Nor is the language of his contract ambiguous or susceptible to misconstruction — in the clearest terms, the act contains the essential attributes of a contract for employment. It does not purport to be anything else. Accordingly, plaintiff cannot be heard to contradict his own act or to transform it into something which it is not. It follows that Hansen’s conduct on March 24, 1978 did not constitute either trespass or wrongful eviction, since Jeffers did not obtain by his contract any recognizable interest in the premises.

DEFENDANT’S ALLEGATIONS

Inasmuch as Jeffers’ employment was stipulated by the contract to be for a certain term, his discharge, to be legally justifiable, must be founded upon good cause. Ingram v. Kaiser Aluminum and Chemical Corp., 323 So.2d 921 (La.App. 4th Cir.1975); La.Civil Code Art. 2749. “Good cause” for termination exists when the employee materially breaches specific terms of his contract.

The defendants allege that Jeffers materially breached the contract for employment in several respects:

First, Hansen and the corporation maintain that Jeffers hired personnel whom he allowed to operate the bar without a manager’s license, in violation of city ordinance and state law. This violation is alleged to constitute a breach of paragraph 2 of the contract.

Second, defendants contend that Jeffers purchased liquors to be sold at Bonaparte’s from a local supermarket rather than from a licensed distributor, and that such conduct also constitutes a violation of city ordinance and state law and is therefore a breach of paragraph 2 of the contract.

Third, it is alleged that Jeffers refused to make all records of operations and expenses available to the corporation, in breach of paragraph 6 of the contract, and moreover, that those records which were made available were knowingly falsified, thus subjecting the corporation to potential liability to city, state and federal tax authorities and jeopardizing the corporation before city and state liquor licensing boards.

The trial court did not render reasons for judgment in favor of the defendant-appellees. We therefore apply the fundamental rule that when a trial court fails to render specific findings of fact, a reviewing court must evaluate the record in a light most favorable to the party who prevailed at trial. Commercial Union Credit v. Stidom, 408 So.2d 285 (La.App. 2d Cir.1981).

With respect to the first of the defendants’ allegations, Victoria Hansen testified that on one occasion, she went to Bonaparte’s expecting to find Jeffers, only to discover that he was not on the premises, and it appeared that his managerial functions had been assumed by an unlicensed employee named James Majoria. Hansen further testified that no licensed personnel were present during the time that she remained on the premises waiting for Jeffers to return. On other occasions, Hansen said, she telephoned the bar to speak with the plaintiff and was told by Majoria that Jef-fers was not in. Following these incidents, Hansen admonished the plaintiff that to allow unlicensed personnel to operate the bar without licensed managers on the premises was a violation of the law and of his contract. According to Hansen, Jeffers dismissed these warnings in the most casual manner. The plaintiff’s lack of concern in this regard surfaced at trial when, confronted with the fact that his own records showed Majoria to be regularly employed at the bar, Jeffers responded that, in effect, it was none of the corporation’s business whom he hired, and that he had the sole authority in such matters.

Construing the above testimony in a light most favorable to the appellees, we regard it as proven by a preponderance that plaintiff Jeffers breached his employment contract by allowing unlicensed persons to operate Bonaparte’s Retreat during the absence of licensed managers, in violation of state law and city ordinance.

With regard to defendant’s second contention, that Jeffers breached the contract by purchasing liquor for resale at Bonaparte’s from other than a licensed wholesale distributor, the most reasonable reading of the trial record supports the conclusion that the defendants have proved their allegation by a preponderance of the evidence. Hansen testified that at the time she entered the premises on March 24,1978, she discovered in Jeffers’ office numerous receipts for liquor purchased in large volumes from a local supermarket on several occasions between October 1977 and March 1978.

Though, at first, the plaintiff denied having purchased the liquor, upon examining the receipts, he admitted that a few were his, and explained that the purchases were for his own personal consumption. He could not convincingly explain, however, why the other receipts were in his office or how they got there, and his overall testimony on this point was discernibly evasive. Given that the volume of liquor represented by the receipts is far in excess of that which reasonably might be consumed by personal use over the course of the period in question, we regárd it as sufficiently proven that Jeffers purchased the liquor for resale at Bonaparte’s.

Such conduct is prohibited by federal statute, specifically, 26 U.S.C. § 5117, which forbids dealers to purchase liquor for resale from any person other than a wholesaler. The violation of federal law involved in this case does not directly contravene any express provisions of plaintiff’s contract, which regards as breach only violations of state or local law. Nevertheless, there is a duty, implied in every contract for employment, to perform, in a law-abiding manner and to refrain from activity which will jeopardize the employer in the eyes of the law. Because Jeffers was Bonaparte’s primary agent in the management of the bar, his illegal acts were attributable to his principal, the corporation, which was thereby subject to reproval or even prosecution by federal authorities. State and local licensing boards might have considered Jeffers’ illegal purchases to be sufficient to revoke Bonaparte’s permits. It follows, therefore, that Jeffers’ violation of federal law in the performance of his managerial duties presents valid ground for his dismissal.

With respect to whether Jeffers breached the contract by failing to make corporate records available to the secretary-treasurer, Jeffers himself admitted that he persistently refused to relinquish Bonaparte’s cash register tapes to Hansen, despite her repeated requests for them. Jef-fers admitted that these tapes, which contain a transaction-by-transaction account of Bonaparte’s liquor sales, are the only accurate means by which to measure the total volume of sales for any given period, and that they are absolutely necessary to Bonaparte’s accurate computation of monthly state and local taxes.

Moreover, the plaintiff admitted that he kept two different sets of records, one for his personal use, and the other marked for submission to Bonaparte’s Retreat, Inc. Those which Jeffers kept for himself contained an accurate account of Bonaparte’s monthly liquor sales, and were consistent with the figures reported on the cash register tapes which Jeffers maintained in his possession. The records submitted to the corporation, however, were deliberately falsified by Jeffers to reflect a smaller volume of liquor sales. As Jeffers admitted, he did not want Hansen to know how well the bar was doing, for fear that she might fire him in order to manage the successful business herself. The plaintiff’s own testimony abundantly proves his failure to perform faithfully a primary obligation of his contract.

Aside from the fact that Jeffers’ refusal to submit important corporate records was a direct violation of his contract, his deliberate falsification of records concerning corporate income was a most serious breach of fidelity which, again, subjected the corporation to criminal liability and even the loss of its operating licenses. Considering that Bonaparte’s sole reason for being, according to the corporate charter, was the continued maintenance of the bar, it follows that Jef-fers’ conduct jeopardized the very existence of the corporation. His discharge was unquestionably warranted.

Finally, the question is raised whether the defendants were entitled to “self-help” in closing the bar in order to prevent Jeffers’ continued management.

Jeffers asserts that, even if this court were to construe his agreement with the corporation as an employment contract rather than a lease of the premises, Hansen should have proceeded, first, by putting him in default, and second, by instituting an action for dissolution of the contract. Plaintiff finds support for these contentions in La.C.C. Art. 2046, which provides:

“A resolutory condition is implied in all commutative contracts, to take effect, in case either of the parties do not comply with his engagements; in this case the contract is not dissolved of right; the party complaining of a breach of contract may either sue for its dissolution with damages, of, if the circumstances of the case permit, demand specific performance. (Emphasis Added).

We do not consider plaintiff’s arguments to have merit. First, regarding the asserted necessity to put Jeffers in default, it is unquestionable that the plaintiff’s breaches of contract were active rather than passive. In such instances, the law does not require the obligee to put the breaching party in default. ' Moreover, it is absurd to speak about putting an employee in default when his wrongful conduct cannot be undone by future performance, however perfect it may be. As it was stated in Jennings-Heywood Oil Syndicate v. Houssiere-Latreille Oil Co., 119 La. 793, 44 So. 481 (1907), “... the sole object of putting in default is to let the obligor know that the obligee desires that he should perform his contract.” In the case at bar, that which the employer seeks is not the employee’s future performance, but his discharge.

Second, Art. 2046 cannot be interpreted so as to deprive an employer of the right to discharge an employee for cause, yet that would be the result if we were to acknowledge plaintiff’s argument. The Civil Code provides a specific remedy for those who are wrongfully discharged:

“If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.” La.C.C. Art. 2749.

By its own terms, Article 2749 presupposes the right of an employer to discharge for cause, and not merely to sue for dissolution of the employment contract. It is for the employee to initiate legal action to remedy his wrongful termination.

CONCLUSION

Finding no error in the proceedings below, we affirm the judgment of the trial court in all respects.

AFFIRMED.

      . The trial court correctly held that Victoria Hansen did not sign the contract in her individual capacity, but rather as secretary-treasurer for Bonaparte’s Retreat, Inc.

      . As of the signing of this contract, the owner of the premises did not allow its lessee, Bonaparte’s, to sublease the premises to any third party, that prohibition being contained in Bonaparte’s own lease.

      . Sec. 5-67 of the Code of the City of New Orleans provides that “[No] alcoholic beverage outlet shall operate without someone in attendance with managing authority over such establishments.”

      . La.R.S. 26:71 requires retailers who operate alcoholic beverage outlets to obtain liquor permits from the State of Louisiana. See also Sec. 5-7 et seq., Code of the City of New Orleans.

      . In fact, the records which Jeffers submitted to the corporation showed Majoria to be only an occasional employee.

      . 26 U.S.C. § 5117 provides that:
      “a) “It shall be unlawful for any dealer to purchase distilled spirits for resale from any person other than—

        (1) a wholesale dealer in liquors who has paid the special tax as such dealer to cover the place where such purchase is made; or
      (2) a wholesale dealer in liquors who is exempt, at the place where such purchase is made, from payment of such tax under any provision of this chapter; or
      (3)a person who is not required to pay special tax as a wholesale dealer in liquors.”


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

text:
    Niven D. MORGAN, Plaintiff-Appellee, v. Jo Ann FULLER et al., Defendants-Appellants.
    No. 15743-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Rehearings Denied Nov. 10, 1983.
    Writ Denied Dec. 16, 1983.

      Law Offices of Percy A. Ford, Jr. by Percy A. Ford, Jr., West Monroe, for defendant-appellant, Floyd Britton.
    Blackwell, Chambliss, Hobbs & Henry by K. Tod Cagle, James A. Hobbs, West Monroe, for defendant-appellant, Jo Ann Fuller.
    Brown, Wicker. & Amman by D. Milton Moore, III, Monroe, for defendant-appellant, Monroe Pulpwood, Inc.
    Wright & Hennen by Patrick H. Wright, Jr., and Dennis Hennen, Monroe, for plaintiff-appellee, Niven D. Morgan.
    Before MARVIN, FRED W. JONES, Jr., and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

In a possessory action coupled with a claim for damages for wrongful cutting of timber, judgment was rendered maintaining the possessory action and assessing treble damages [under La.R.S. 56:1478.1] against the timber cutter [Britton], his vendor [Fuller], and one of Britton’s vendees of the timber [Monroe Pulpwood, Inc.].

The named defendants appealed, with all three contending the trial judge erred in applying the “treble damage” statute. Additional errors urged by the respective defendants were:

(1) Britton — the trial court erred in rejecting his third party demand against Fuller.
(2) Fuller — the trial judge committed error in maintaining Morgan’s possesso-ry action.
(3) Monroe Pulpwood, Inc. — the trial court erred in finding that this defendant was engaged in a joint adventure with Britton and also in rejecting its third party demand against Britton and Fuller.

Plaintiff answered the appeal, alleging the trial court erred in failing to award damages for mental anguish, in not awarding the requested sum for cost of reforestation, and in awarding expert witness fees of $600 rather than $1350.

Context Facts

Niven Morgan acquired record title in 1939 to the following described property located in Ouachita Parish:

E ⅛ of NW ¼ and that part of W ½ of NW ¼ lying North of Gaskin’s Branch, all in Sec. 2, Twp. 17 North, Range 1 East, less and except the r/w for the public road.

A sheriff’s deed in 1971 purported to convey to Jo Ann Fuller title to the following described property in Ouachita Parish:

SW ¼ of NW ¼; NW ¼ of SW xk\ all in See. 2, Twp. 17 North, Range 1 East. Under a timber deed executed in February 1980

Fuller conveyed to Floyd Britton for $28,-000 all merchantable timber standing on the above described 80 acre tract. Britton proceeded to cut the timber thereon, including that on the approximate 3.5 acre tract in the SW ¼ of NW Vi lying north of Gaskin’s

Branch, as shown on the following rough sketch:

Upon learning of the timber cutting on the 3.5 acres, Morgan filed this suit on January 26, 1981, asking for recognition of his possession of the 3.5 acre tract and for treble damages for the wrongful cutting of the timber thereon. Made defendants, in addition to those named above, were San-tiam Southern Company, Inc. (“Santiam”) and C.A. Reed Lumber Company, Inc. (“Reed”) — both alleged purchasers of some of the timber cut by Britton.

Ruling of Trial Court

After trial on the merits, in written reasons for judgment the trial judge found that:

(1) Morgan had maintained the required possession of the 3.5 acres.
(2) Fuller, Britton and Monroe Pulpwood “should have known they had crossed the boundary between Morgan and Fuller’s property in order to cut the timber.”
(3) The fair market value of the timber cut on the 3.5 acres was $11,363.30.
(4) Since Fuller, Britton and Monroe Pulpwood were in bad faith, they were solidarily liable to plaintiff for treble damages under La.R.S. 56:1478.1.
(5) Since Santiam and Reed simply purchased saw logs from Britton and did not actively participate in the wrongful cutting, the claims against them would be rejected.

Maintenance of Possessory Action

Pertinent to the possessory action are the following articles of our Code of Civil Procedure:

Article 3655. The possessory action is one brought by the possessor of immovable property or of a real right to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.
Article 3658. To maintain the possessory action the possessor must allege and prove that:
(1) He had possession of the immovable property or real right at the time the disturbance occurred;
(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659; and
(4) The possessory action was instituted within a year of the disturbance.

Article 3661. In the possessory action, the ownership or title of the parties to the immovable property or real right is not at issue.

No evidence of ownership or title to the immovable property shall be admitted except to prove:

(1) The possession thereof by a party as owner;
(2) The extent of the possession thereof by a party; or
(3) The length of time in which a party and his ancestors in title have had possession thereof.

Article 3662. A judgment rendered for the plaintiff in a possessory action shall:

(1) Recognize his right to the possession of the immovable property.
(3) Award him the damages to which he is entitled and which he has prayed for.

The Louisiana Civil Code deals with the subject of possession in the following relevant articles:

Article 3424. To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing. Article 3425. Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing.
Article 3442. When a person has once acquired possession of a thing by the corporeal detention of it, the intention which he has of possessing, suffices to preserve the possession in him, although he may have ceased to have the thing in actual custody, either by himself or by others.

Our jurisprudence has consistently recognized the principle that when a contiguous tract of land is conveyed by a single deed, possession exercised on any part of that tract extends, constructively, to the limits of the land as called for in the deed itself. La.C.C. Art. 3437; Marks v. Collier, 216 La. 1, 43 So.2d 16 (1949); Case v. Jeanerette Lumber & Shingle Co., 79 So.2d 650 (La.App. 1st Cir.1955).

There is no question but that plaintiffs 1939 deed covered the 3.5 acres in the SW ¼ of NW ¼ lying north of Gaskin’s Branch [slightly overlapping property to which Fuller secured a deed in 1971]. It was undisputed that soon after acquisition of the 123 acre tract plaintiff began to grow crops on part of it and subsequently engaged in other acts of possession such as: raising hogs on a portion of the land; selling and having timber cut therefrom; removing a house and barn; executing mineral leases covering the tract and receiving royalty payments from a producing well. Plaintiff has paid property taxes on the 123 acres since 1939. Although not living thereon, plaintiff has made three or four inspection trips to the property each year and has for some time arranged for a caretaker [who lives nearby] to oversee the tract.

There was no evidence that plaintiff ever had timber cut from the 3.5 acres involved in this litigation, nor used that specific small marshy area for other like purposes. Be that as it may, under the cited jurisprudence plaintiff’s exercise of corporeal possession of other parts of the property described in his deed operated as constructive possession of the entire tract, including the 3.5 acres. Consequently, the trial judge was correct in his determination that plaintiff successfully complied with the requirements of La.C.C.P. Art. 3658 and in maintaining the possessory action.

Applicability of “Treble Damage” Statute

Prior to 1974 the measure of damages for the unlawful cutting of timber was as follows: if the trespass was reckless and willful, the trespasser was deemed guilty of moral bad faith and liable for the converted value of the timber without allowance or deduction for costs and expenses. Where the trespasser believed himself to be owner of the timber but should have known otherwise, either from information available to him or other ascertainable facts which would have placed a reasonably prudent man on notice, he was held to be in legal bad faith and the actual expenses incurred by him in converting the timber were deducted in assessing damages. In cases where the trespasser was in good faith [believed the timber belonged to him and had no valid reasons to suppose otherwise] he was held liable only for stumpage value. Kennedy v. Perry Timber Co., 219 La. 264, 52 So.2d 847 (1951).

In 1974 the following statute [now R.S. 56:1478.1] was enacted:

A. It shall be unlawful for any person to cut, fell, destroy or remove any trees, growing or lying on the land of another, without the consent of the owner or legal possessor.
B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed or removed.
C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed or removed, except however, that the provisions of this section shall apply only to trees cut or removed across ownership lines, marked boundary lines, or outside of designated cutting area lines, and that no provision herein shall apply to cutting operations within an area covered by a contract or agreement with the owner. (emphasis added)
D. The provisions of this section shall not apply to the clearing and maintenance of rights of way or to utility service situations where a utility is acting in good faith to minimize the damage or harm occasioned by an act of God; the provisions of this Act shall not apply to land surveying by or under the direction of a registered professional land survey- or, duly registered under the laws of the state of Louisiana.

Although somewhat inartfully drafted, the statute viewed in its entirety appears to manifest an intent by the legislature to impose a severe penalty [treble damages] upon those who flagrantly disregard the property rights of timber owners. See Smith v. Myrick, 412 So.2d 677 (La.App. 2d Cir.1982); Garrett v. Martin Timber Company, Inc., 391 So.2d 928 (La.App. 2d Cir.1980).

We note, however, that the statute expressly excludes from its sanctions “cutting operations within an area covered by a contract or agreement with the [purported] owner.” Since Britton was cutting timber under such a contract within the geographical area covered by that written instrument he would not be subject to treble damages.

Although this finding disposes of the issue in question, we add that the record does not support a conclusion that Britton was “willful and intentional” in his trespass [apparently meaning in “bad faith”] or that he crossed a marked boundary line.

According to the evidence, Gaskin’s Branch runs in a northwesterly-southeasterly direction across the forty in question. It is relatively narrow and lies in a marshy area. On the east side of the forty it has 1 ½ foot banks and on the west side has 4 foot banks.

Plaintiff testified that in the early 1940’s he marked his property line running along the north side of Gaskin’s Branch by painting yellow lines on trees. However, because these lines were fading, some 20 years ago he made blaze marks with a hatchet on trees about 100 yards apart along that same boundary line.

Plaintiff also stated that in 1978 he observed remnants of an old barbed wire fence embedded at intervals in trees along the south side of the branch. He added that the timber standing north of the branch was much larger than that south of the branch.

Floyd Britton [57 years old, in timber business since 1944] denied ever having heard of Gaskin’s Branch prior to this litigation. Britton testified that because of his uncertainty about the location of the north boundary of the Fuller property, he contacted O.W. Schulz [forester for Monroe Pulpwood] and had him locate and mark that line.

Schulz corroborated the testimony of Britton on the latter point. Though not a surveyor, Schulz stated that he has been frequently called upon in the timber business to assist in tasks of this nature, which normally entailed locating corners and using a compass to run a line to another corner.

Schulz testified that he found what he ascertained to be the northwest corner of the Fuller tract at a witness tree and then proceeded east where, upon reaching the east line, he found another tree with a marking on it. He placed orange flags along this line for the benefit of Britton and his timber cutters.

Schulz denied observing any signs indicating that Gaskin’s Branch was a boundary line.

Claude Britton, brother of the defendant, Floyd Britton, testified that he had been caretaker of plaintiff’s property for some 31 years. He had cut pulpwood on the property every five years for the past 30 years. Britton denied that there was a marked line [either painted or blazed] along either bank of Gaskin’s Branch.

The evidence that defendant Brit-ton sought the assistance of an experienced forester [upon whom he presumedly could rely] in locating the north line of the tract covered by his timber deed effectively refutes any contention that his trespass was willful and intentional. There was no reason for him to believe that a small branch which meandered across the northeast corner of the property in question might be the boundary of the Fuller tract, rather than the straight line marked by Schulz. Furthermore, viewing plaintiff’s testimony relative to boundary signs in a light most favorable to him, bits and pieces of an old fence line embedded in trees on the south line of the branch and old blaze marks placed at 100 yard intervals north of the branch would not suffice to indicate to an individual in Britton’s position that he was crossing a boundary line. Neither would the existence of larger trees on the north side of the branch in itself alert the trespasser to the imminence of a violation. Any finding of the trial judge to the contrary is manifestly erroneous.

Our determination that Britton was not subject to the imposition of treble damages under La.R.S. 56:1478.1 for his trespass automatically relieves Fuller and Monroe Pulpwood from that assessment also. Regardless, neither of these two defendants should have been cast for treble damages even if Britton had been. The evidence was that the latter was Fuller’s vendee, not her agent or employee — as required by the statute. The record is also devoid of evidence that Britton and Monroe Pulpwood were involved in a joint venture with reference to the Fuller timber. Brit-ton did in fact sell some of the saw logs to that defendant, but sold the pulpwood and other saw logs elsewhere.

For these reasons, we find that the trial judge erred in casting the defendants-appellants for treble damages.

Proper Measure of Damages

Since the trespasser Britton is not liable to plaintiff for treble damages, what is the proper measure of damages? As we have previously explained [see Kennedy, supra], this depends upon whether, from the evidence, this defendant should be characterized as having been in moral bad faith, in legal bad faith, or in good faith.

Our prior determination [in discussing applicability of “treble damage” statute] that Britton’s trespass was not willful and intentional, negates a finding of moral bad faith.

Since there was no evidence that, because of facts or information available to him, Britton should have been on notice that the timber on the 3.5 acre tract did not belong to him, neither can we say that he was in legal bad faith.

Based upon this reasoning, we conclude that the timber cutter was in good faith when he trespassed upon the 3.5 acres possessed by plaintiff. Consequently, this defendant is liable to plaintiff for the stumpage value of the timber removed from that particular tract.

The determination by the trial judge that the stumpage value of the timber removed from the 3.5 acres was $11,-363.30 is a finding of fact, not manifestly erroneous since supported by record evidence, which we shall not disturb.

Since we have concluded that Brit-ton was a good faith trespasser, plaintiff’s contention that he is entitled to damages for mental anguish is rejected. Garrett v. Martin Timber Company, Inc., supra, p. 933.

However, plaintiff is entitled to recover damages for the cost of clearing and reforesting the 3.5 acres. Thibodeaux v. Western World Insurance Co., 391 So.2d 24 (La.App. 3rd Cir.1980). The trial judge erred in failing to grant recovery for that element of damages, which the record shows amounted to $3,633.50.

Plaintiff’s argument that the trial judge’s award for expert witness fees should be increased is without merit. The record does not reveal an abuse of the broad discretion accorded to the trial court in fixing expert witness fees. See Kelley v. Stringer, 422 So.2d 189, 194 (La.App. 2d Cir.1982).

Solidary Liability of Fuller and Monroe Pulpwood

There is no solidary liability on the part of Fuller and/or Monroe Pulpwood with Britton since, as explained above, the evidence does not show that Britton was acting as their agent or employee or that he was engaged in a joint venture with either or both of them at the time of the timber cutting.

Britton’s Third Party Demand Against Fuller

Although the timber deed from Fuller to Britton contained no express warranty, our law supplies that warranty. La. C.C. Article 2501. As a consequence, Brit-ton'has a right to recover from Fuller any damages he has sustained by virtue of the breach of warranty. La.C.C. Article 2506(4). Under the circumstances of this particular case, Britton is entitled to judgment against Fuller on the third party demand for the amount of damages assessed against him in favor of Morgan. The trial judge committed error in failing to render judgment accordingly.

Decree

For the reasons set forth above:

(1) The fourth paragraph of the district court judgment, in favor of Morgan and against Britton, Fuller and Monroe Pulpwood, in solido, for $34,089.90 and costs is amended and recast to read as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, NIVEN D. MORGAN and against defendant, FLOYD BRITTON, for the sum of $14,996.80, together with legal interest from date of judicial demand until paid and for all costs of these proceedings, including expert witness fees of $600, but rejecting plaintiffs demands and dismissing his suit as to defendants, Jo Ann Fuller and Monroe Pulpwood, Inc.”

(2) The sixth paragraph of the district court judgment is amended and recast to read as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all third party demands be denied, except that there is judgment in favor of third party plaintiff, Floyd Britton, and against the third party defendant, Jo Ann Fuller, for the full amount of the judgment as above set forth in favor of Niven Morgan against Floyd Britton.”

(3) Otherwise, the judgment appealed is affirmed.

Costs of appeal are assessed in the proportion of one-third each to Fuller, Britton and Morgan.