author: CHEHARDY, Judge.

text:
    Sheila Fry Fouchi, wife of Frank E. FOUCHI v. Frank E. FOUCHI. Frank E. FOUCHI v. Sheila Fry FOUCHI.
    Nos. 82 CA-213, 82-CA-214.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Rehearing Denied Jan. 17, 1984.
    Writ Denied Feb. 27, 1984.

      Joan B. Montero, Metairie, for Sheila Fry Fouchi Hornbostel, plaintiff-appellee.
    Adelaide Baudier, Metairie, for Frank E. Fouchi, defendant-appellant.
    Catherine Quaid, intervenor, in pro. per.
    Donald Eppling, intervenor, in pro. per.
    James L. Valicenti, intervenor, in pro. per.
    Before CHEHARDY, KLIEBERT and BOWES, JJ.
   CHEHARDY, Judge.

This appeal arises from a bitterly-disputed community property partition between Frank E. Fouchi and his former wife, Sheila Fry Hornbostel. The proceedings, on January 6 and 7, 1982, combined traversal of the inventory with trial on the merits of the partition. Mr. Fouchi has appealed, as have three intervenors, Catherine Quaid, J.L. Valicenti and Donald Eppling. (The fourth intervenor, W.C. Moore, died shortly before trial of this matter and no succession representative has been substituted for him.) Mrs. Hornbostel has answered the appeals, seeking damages for frivolous appeal.

Quaid, Eppling, Valicenti and Moore all intervened in the partition suit to recover on promissory notes they alleged were debts of the community. The judgment dismissed their demands. On appeal, Mr. Fouchi seeks first to have the judgment annulled. Alternatively, he desires to have the debts to the intervenors included in the inventory as community debts. He also appeals the trial judge’s finding that the value of the former community home was $55,000; Mr. Fouchi contends the value is less. In addition he appeals the finding of the trial judge that he is liable for the value of silver flatware found missing from the family home when an inventory of the community was taken after the Fouchis separated. Finally, he contends Mrs. Hornbos-tel owes reimbursement to the community for funds allegedly “siphoned off” into her separate account. Quaid, Eppling and Vali-centi have appealed the dismissal of their claims.

Nullity of the Judgment

The threshold issue raised by Mr. Fouchi is the validity of the judgment per se. He contends it is null because the district court judge who presided at the trial had become an appellate court judge by the time he signed the judgment.

The usual procedure to annul a judgment is by a direct action brought in the trial court. LSA-C.C.P. art. 2006. Nonetheless, the jurisprudence has held that where the judgment attacked is an absolute nullity, it may be attacked collaterally and in any court. Franz v. Franz, 315 So.2d 79 (La.App. 4th Cir.1975), and cases cited therein. Such a collateral attack, however, must be predicated on defects patent on the face of the record. Decuir v. Decuir, 105 La. 481, 29 So. 932 (1901); Amer. Bank & Tr. Co. v. Marbane Inv., Inc., 337 So.2d 1209 (La.App. 3rd Cir.1976).

“No principle of law has received greater and more frequent sanction, or is more deeply imbedded in our jurisprudence, than that which forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face ab initio. [Citations omitted.]” Nethken v. Nethken, 307 So.2d 563, 565 (La.1975).

Because the ground for the nullity asserted here, the capacity of the trial judge to sign the judgment, does not appear in the record, we conclude the proper forum for appellant Fouchi to assert the nullity action is the district court, where he may present evidence of the alleged nullity in a direct proceeding.

With this threshold question surmounted, we face the merits of the substantive issues. Mr. Fouchi’s brief is lengthy and raises many issues. Examination of the judgment discloses, however, that many of these disputed points were actually decided in Mr. Fouehi’s favor and are now moot, because Mrs. Hornbostel did not challenge the trial court’s dispositions in her answer to the appeal. The only issues remaining are the validity of the intervenors’ claims against the community, the valuation of the family home, whether the disappearance of the silver items Mrs. Hornbostel claims were in the home when she moved out should be assessed against Mr. Fouchi, whether Mrs. Hornbostel owes any reimbursement to the community, and whether Mrs. Hornbostel is entitled to damages against the other parties for frivolous appeal.

Interventions of Eppling and Valicenti

Messrs. Eppling, Moore and Valicenti intervened to assert claims against the community for loans made to Mr. Fouchi. They filed pleadings in proper person, alleging each had loaned Frank Fouchi $9,000 cash in 1972 to assist him in starting a nightclub, but only part of the loans had been repaid.

The trial judge dismissed these claims, stating in his reasons for judgment he found the claims to be “wholly without merit” because of the parties’ conflicting testimony and because the interventions were not supported by corroborating evidence.

As mentioned above, apparently Mr. Moore died prior to the trial, and was unrepresented at the proceedings. No personal representative has appeared for him, nor has an appeal been made on his behalf. Accordingly, we need not discuss his claim.

Mr. Valicenti testified by deposition. In his testimony, he stated that between the time his intervention was filed and the time of trial, Mr. Fouchi had repaid the balance of the loan under an oral compromise as to the amount of interest. Mr. Fouchi claims reimbursement from the community as subrogee of Mr. Valicenti, in the amount of $9,200.

The trial judge’s reasons for judgment not only set forth the basis for his determination, but also provide a good summary of the evidence. Accordingly, we incorporate them into our opinion:

“ * * * The intervenors, Valicenti and Eppling, each testified to loans made in cash for which each received an I.O.U. in the amount of $9,000.00 from Frank Fou-chi. These sums along with $9,000.00 from W.C. Moore were allegedly delivered by Frank Fouchi in cash to one Joe Caronna to be held by him for an investment to be made by Fouchi in a modern lounge and supper club to be run by Caronna. Testimony indicated that after the death of Caronna in 1972, notes were executed in January, 1973, on which payments of principal and interest were made. The original notes were made to Donald Cole, Leo Praetorius and J.L. Valicenti. In January, 1976, the original note was destroyed and a new note executed to each alleged creditor. Cole and Praetorius were allegedly acting as agents for Moore and Eppling.
“Payments on these notes were made until January, 1979, when the original notes were again allegedly destroyed and new notes issued.
“Again, in January of 1982, the previous original notes were destroyed and new notes issued.
“Copies of the 1973 and 1976 notes do not bear a signature. The 1979 notes were executed after termination of the community.
“Frank Fouchi produced detailed records prepared by himself of payments made on these notes. The intervenors did not even produce a personal record of receipt of payments. No corroborating evidence was introduced in support of any transfers of money between the parties. There was not introduced into evidence one cancelled check, nor bank record of the intervenors to support disbursement of funds to Fouchi, nor account of Fouchi showing receipt of the funds. All parties denied any claim either for interest received or interest paid in preparing income tax returns.
“Although Frank Fouchi produced detailed ledgers from the beginning of his marriage showing payment of medical costs for the birth of his first child in 1958 and grocery checks for the same year, he denied having any written records of his transactions with Caronna or the intervenors except for the current promissory notes and copies of previous notes.
“Answers to interrogatories * * * indicate that intervenors received payments only in 1981 and to the extent of $275.00 to Eppling and $300.00 to Moore. Vali-centi indicated that he no longer had records of payments from Fouchi, yet he testified in his deposition to a record of payments prepared by [Fouchi’s attorney]. This represents a gross conflict in the testimony presented at trial and the payment schedules in connection with the testimony of Valicenti and Fouchi. Additionally there is a conflict between the sworn descriptive list of March 5, 1979 * * * showing payments in 1977 to Prae-torius and Cole of $320.00 and to Valicen-ti of $310.00, whereas Fouchi’s computations show payments of $400.00 to each party.
“Eppling’s W-2 for 1973 * * * indicated his wages from Delgado to be slightly over $11,000.00 for that year. He testified to having other sources of income but failed to provide his I.R.S. returns or any bank records to support his even having sufficient funds to make this loan, although all documents were subpoenaed.
“Because of the conflicting testimony of the parties and the fact that the interventions have not been supported by corroborating evidence, this court finds the claims to be wholly without merit.”

It is clear the trial judge’s decision on the interventions was based solely on credibility determinations. It is well-established law that the credibility determinations of the trier of fact may not be reversed unless clearly wrong:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973).

We do not find the trial judge clearly wrong in his determinations. Mr. Fouchi would have us believe a total of $27,000 in cash changed hands, without the lenders keeping records of either the loans or the alleged repayments, and without Mr. Fou-chi- — an apparently careful record keeper— obtaining any type of receipt from Caron-na, to whom he allegedly entrusted the entire bundle of cash. The peculiarity of these alleged loan transactions would be a “réd flag” to any court.

Mrs. Hornbostel denied any knowledge of these loans. Mr. Fouchi attempts to impeach her credibility by pointing out that she had admitted, in a prior hearing, that her allegations in her petition for separation were false insofar as they concerned certain specific charges of cruelty made against Mr. Fouchi. At the trial of the partition proceeding, under cross-examination, Mrs. Hornbostel again admitted that these allegations were false, but asserted she was telling the truth in the partition proceeding. She testified that the only time she had lied was in her petition for separation, and that this had been done on the advice of the attorney who had represented her at that time.

Considering all this, we cannot say the trial judge committed manifest error in his credibility determinations. It is readily apparent from the lengthy record that the learned judge had presided at a number of other hearings at which Mr. Fouchi and Mrs. Hornbostel testified relative to their domestic disagreements. He was, thus, very familiar with the case, and with the people involved. We find no reason to substitute our judgment for his.

Intervention of Catherine Quaid

Catherine Quaid, who is Mr. Fou-chi’s mother, intervened to assert claims for loans she made to the Fouchis at various times during their marriage, evidenced by a series of promissory notes from Frank Fouchi. The notes ranged in date from December 1957 to June 1968, in amounts varying from $200 to $2,000. Her claim was supported by Mr. Fouchi, who also asserted a claim for reimbursement for interest paid by him on the notes. Mrs. Hornbostel, however, denied the money was intended as loans; she testified she had always understood the money given them by Mrs. Quaid had been intended as gifts. Mrs. Hornbostel also raised an exception of prescription to the notes.

To overcome the exception, Mr. Fouchi entered into evidence photocopies of a notebook belonging to Mrs. Quaid which listed the amounts of the notes and the interest payments he had allegedly made on them since 1969. Mr. Fouchi and Mrs. Quaid testified all these payments were in cash, and the only evidence they had of them was Mrs. Quaid’s notations in her notebooks. He had no receipts from Mrs. Quaid. Both he and Mrs. Quaid testified they had not claimed the interest, either as a deduction or as income, on their income tax returns.

Mrs. Quaid was unable to produce can-celled checks to show the transfers for most of the loans; she testified she had withdrawn the money from her homestead accounts and endorsed the homestead checks directly over to Mr. Fouchi. Similarly, Mr. Fouchi was unable to establish deposits of funds in the Fouchi community checking accounts for most of the alleged loans.

In connection with a $1,300 loan in 1968, for which Mr. Fouchi produced a collateral pledge agreement by which he pledged some stock to Mrs. Quaid, the trial judge found there was no withdrawal of funds shown from Mrs. Quaid’s account, nor any corresponding deposit of funds to the Fou-chi account. The transactions were allegedly in cash.

Based on the above evidence, the trial judge held,

“Due to the aforesaid failure of consideration, lack of enhancement to the community and prescription, the claims of Catherine Quaid are denied as is any reimbursement due Frank Fouchi in connection with these claims.”

This conclusion, like that on the other intervenors’ claims, is based primarily on a credibility determination by the trial judge. Without interest payments, the notes unquestionably would have prescribed by 1982, when the trial was held. Apparently the judge disbelieved Mrs. Quaid and Mr. Fouchi and concluded no interest payments had actually been made. Considering the great discretion accorded the trier of fact, we cannot say he was unreasonable or clearly wrong in his determination.

As to the loan for which Mr. Fouchi allegedly pledged stock as security, there was no evidence to establish that he made actual delivery of the stock certificates to his mother. LSA-C.C. arts. 3152 and 3158 require that the creditor be put in possession of the pledged item for the pledge to be valid. A valid pledge will interrupt prescription on a note as long as the pledgee retains possession of the pledged item. Without evidence of possession by Mrs. Quaid, the pledge cannot be upheld; accordingly, the January 15, 1968 note must be held to be prescribed also.

Fair Market Value of the Family Home

The trial judge found the fair market value of the family home to be $55,000 as of the date of trial, January 7, 1982. Mr. Fouchi seeks to have this valuation reduced to $45,000, with an allowance of $7,600 for repairs “necessary to make the place marketable.”

Both Mr. Fouchi and Mrs. Hornbostel presented testimony of expert appraisers at trial. The notary and appraisers appointed by the court to inventory the community had placed the value of the house at $55,-000 on February 18, 1980. Previous appraisals of the house in 1978 had placed the value at between $45,000 and $46,000. At trial, Mr. Fouchi’s appraiser testified he had appraised the property on November 23, 1981, at which time he placed the value at $45,000, and estimated it would require $7,600 to put the house in marketable condition. Mrs. Hornbostel’s appraiser placed the value as of November 10, 1981 at $65,-000. Each submitted a written appraisal in support of his opinion.

Mr. Fouchi argues his appraiser had the best qualifications, and accordingly that the trial judge erred in not accepting his appraiser’s estimate of the value.

The trial judge stated, in his reasons for judgment,

“Sufficient comparables were shown by both parties to indicate that the property is worth more today than it was in 1978. A conservative appreciation factor of eight percent (8%) per annum on the $45,000.00 value agreed by both parties in 1978 would place the property at approximately the figure set forth by the notary and appraisers in the inventory. Since the true market value can only be ascertained by placing the property on the market, the value previously set by the notary and appraisers is accepted by this court.”

The trial judge is granted considerable discretion in the acceptance or rejection of expert testimony. Ford v. Dixie Buick, Inc., 400 So.2d 228 (La.App. 4th Cir.1981). We find no abuse of discretion by the trial judge in the valuation thus placed on the property.

Liability for Silver Items

Mrs. Hornbostel testified the silverware in question had been acquired early in their marriage. The pattern had been discontinued, and so their collection stopped at six place settings plus some serving pieces. She said it was seldom used, and did not testify precisely when she last saw it, but did state it was in the house when she moved out.

Both Mr. Fouchi and Mrs. Quaid testified there was no silver in the house when they took an inventory after legal proceedings for separation had begun. Mrs. Quaid testified she had never seen such items in the house, while Mr. Fouchi said he had not seen the silverware for a long time, and was not sure where his wife stored it. He attempted to establish, by implication, that the silver may have been stolen by friends of his children who visited the house when Mrs. Hornbostel was living there, after the Fouchis had physically separated.

In his reasons for judgment, the trial judge stated,

“The Court finds that the silver service was in the Fouchi home at the time the premises was vacated by Sheila Fouchi Hornbostel. As this item was in the control of Frank Fouchi since that time, he shall be held accountable for its disappearance. McElwee v. McElwee, 255 So.2d 883 (La.App. 2d Cir.Ct.).
“Accordingly, the silver service shall be placed on the inventory of movables at 4620 Tartan Drive, valued at $4,100.00.” [We note the value assigned the silver in the reasons for judgment is incorrect. The value assigned the silver in the judgment itself is $4,523.00, which is the value established at trial.]

This, too, is a matter turning on the credibility of the witnesses. The trial judge had the witnesses before him, and could observe their demeanor while they testified; we have only a written transcript. With no other evidence beyond the above-mentioned testimony, we cannot say the trial judge’s evaluation of the witnesses’ credibility was unreasonable, and there is nothing to establish he was clearly wrong. Accordingly, his finding that Mr. Fouchi was accountable for the disappearance of the silver is affirmed.

Reimbursement of the Community by Mrs. Hornbostel

At issue is the amount of $4,325, which Mr. Fouchi claims Mrs. Fouchi “siphoned” from community accounts and deposited in an account in her name in California. Testimony by William Fry, Mrs. Hornbostel’s father, established her family had sent her cheeks totalling $4,100 as gifts in the late 1960’s. Mr. Fry stated Mrs. Hornbostel later returned $2,500 to him to invest for her, but that eventually this money was all returned to her gradually as she needed funds. He also testified to an additional $400 which she sent to be deposited in her savings account in California. He did not know what happened to this, as Mrs. Hornbostel kept the records on it.

Mrs. Hornbostel testified the $4,100 initially had been deposited in a Louisiana checking account in her name, and she had returned $2,500 to her father to invest for her. The rest, she said, “was in the community somewhere,” and had probably been used for family expenses. The $2,500 she had returned to her father she later withdrew for living expenses.

Mr. Fouchi testified that to his knowledge at least $3,000 of the money received from Sheila’s family was expended on the community.

The effective date of the dissolution of this marital community is March 4, 1977, the date on which the petition for separation was filed (because the judgment of separation is retroactive to the date the petition is filed). Accordingly, it is governed by the pre-1980 community property laws.

Under the old law, to obtain restitution of her separate funds, a wife needed only to show they were delivered to the community for its use. Slater v. Culpepper, 233 La. 1071, 99 So.2d 348 (1957). Where the wife fails to meet that burden, her claim must be denied. Reynolds v. Reynolds, 388 So.2d 1135 (La.1980), on rehearing.

Although both Mr. Fouchi and Mrs. Hornbostel had requested reimbursement in the district court, the trial judge denied their requests, stating he believed that the loans or gifts by the parents were donations to the community rather than to the parties individually, and that the parties had not overcome the strong presumption that property acquired during the existence of the community was community property. We find no manifest error in that ruling.

However, the trial judge did not discuss whether Mrs. Hornbostel owed the community reimbursement for the monies deposited in her California bank account, and invested by her father on her behalf. Such a silence is to be construed as a denial of that claim.

Considering the testimony, it is clear that most if not all of the money was spent for community purposes. Even that money in the California accounts was ultimately returned to Mrs. Hornbostel, who testified she spent it for family expenses. Mr. Fou-chi himself stated at least $3,000 had been spent on community expenditures. Absent proof that any amount in excess of $3,000 is still in Mrs. Hornbostel’s possession or, alternatively, that it was not spent for community purposes, as she said it was, she is not liable to reimburse the community.

Mrs. Hornbostel’s Claim for Damages for Frivolous Appeal

Having disposed of the issues raised by the intervenors and Mr. Fouchi, we turn to the single issue raised by Mrs. Hornbostel’s answer to the appeal. She claims damages for frivolous appeal, asserting,

“The entire case regarding all interventions has resembled one grand charade. To carry this charade to the Appellate Court without any evidence other than testimony of the parties, prescribed notes and reams of documents created and prepared by appellant and interve-nors in anticipation of this trial is clearly an abuse of the judicial process. * * * ”

Damages for frivolous appeal are awarded under LSA-C.C.P. art. 2164 only when it clearly appears that the appeal was taken solely for the purpose of delay or that counsel for the appellant does not seriously believe in his legal position. Mathews v. Mathews, 415 So.2d 234 (La.App.2d Cir.1982). We are not convinced these appeals fall into either of these categories, and therefore we reject the demand for damages for frivolous appeal.

Finally, we note that Mrs. Hornbostel’s brief raises several issues we do not discuss because she did not appeal and did not assert these claims in her answer to the other parties’ appeals. LSA-C.C.P. art. 2133 states, “The answer filed by the ap-pellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer.” (Emphasis added.)

Conclusion

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

AFFIRMED.


source: Caselaw Access Project

author: DUFRESNE, Judge.

license: Public Domain

text:
    Reinhard BAACH v. Glenn D. CLARK, Protective Casualty Ins. Company and State Farm Insurance Company. Glenn D. CLARK v. Reinhard BAACH.
    Nos. 83-CA-413, 83-CA-414.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Rehearing Denied Jan. 17, 1984.
    Writ Denied March 23, 1984.

      Don A. Almerico, Norco, for plaintiff-appellant.
    Adrianne L. Baumgartner, New Orleans, for plaintiff-appellant and defendant-appellant.
    G. Walton Caire, Edgard, G.M. Pierson, Baton Rouge, E.P. Lobman, Metairie, for defendant-appellee.
    Before BOWES, KLIEBERT, and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal on a consolidated matter involving claims for personal injuries as the result of a rear end automobile collision.

Reinhard Baach-appellant instituted a tort action against Glenn D. Clark-appellant, Clark’s automobile liability insurer, Protective Casualty Insurance Company, and State Farm Mutual Automobile Insurance Company based on Baach’s underin-sured motorist coverage seeking recovery for personal injuries. Subsequently, Clark filed a similar tort suit against Baach; both lawsuits were consolidated for trial in the district court.

The judgment of the district court rendered in favor of Glenn Clark and against Reinhard Baach, found Baach’s omission and acts of commission, constituted fault and were the cause in fact and legal cause of the rear end vehicular collision. The court further found that Clark in no way contributed to the accident. From this judgment, Baach perfected this appeal. We affirm.

The questions presented on appeal are:

1.) Whether Clark fulfilled his burden of proof required to exculpate himself from the presumption of negligence raised by a rear end collision.
2.) Whether the doctrine of sudden emergency should have been employed.

This automobile accident occurred on October 29, 1980, at approximately 6:00 A.M., on Louisiana Highway 61, a four lane expressway commonly referred to as Airline Highway within the community of LaPlace, Louisiana, Parish of St. John the Baptist. The weather condition that morning could be characterized as overcast with only early morning light and the hard surface of the highway was level and wet. The traf-fie was moderate to heavy. Glenn Clark was driving his 1978 Toyota pick-up truck on La. 61 in an easterly direction in the right hand lane. Reinhard Baach was operating his 1967 Chevrolet pick-up truck in the same direction of travel immediately preceeding the Clark vehicle. Clark’s vehicle was overtaking Baach’s vehicle so he decided to change lanes to the left hand lane (inside lane closest to the median) to pass Baach. In the process of this maneuver, Clark’s vehicle struck the Baach vehicle in the rear, causing personal injuries and property damage to both parties. The evidence relative to the aforementioned facts is uncontroverted. At trial and here on appeal, the facts surrounding the legal cause of the accident are disputed.

As an aid to exercise of the appellate function of a review of facts, the Supreme Court of Louisiana in Davis v. Owens, 368 So.2d 1052 at 1056 (La.1979) reiterated the following:

“In reviewing the questions of fact and conclusions of fact involved in this suit for damages, the Court of Appeal is mandated to leave undisturbed factual findings of the trial court based upon evidence which furnishes a reasonable factual basis for those findings, unless it finds manifest error. ‘Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable’ Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973). If, however, the appellate court concludes that the trial court’s factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance.” Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The issue on appeal is the reason why Clark rear-ended Baach. There exists inconsistent testimony as to this factual determination. The significant difference is between the testimony of Clark and his witness, Lawrence Macaluso, and that of Baach. Both Clark and Macaluso testified that debris had fallen off Baach’s pick-up truck onto Clark’s lane of travel, causing him to hit the material, then run into the rear of Baach’s vehicle. Whether the debris negligently fell off Baach’s pick-up truck is vital to the just resolution of the issue of liability.

Clark testified that at a distance of approximately 8 to 10 standard car lengths he observed the Baach vehicle. After gaining on the Baach vehicle, Clark attempted to change lanes to left-hand or inside lane of travel, but was unable to do so because of other cars blocking his ingress. At that time, Clark hit debris which was strewn in the road. Clark testified that after hitting this debris, his immediate response was to hit his brakes. As a result of hitting the debris and immediately applying his brakes, the accident occurred. Where did this debris come from?

In support of Clark’s testimony, Lawrence Macaluso, who was standing at a convenience store and able to observe the accident, testified that he heard a noise of an object fall from the truck. The object struck the following truck who hit his brakes and slid into the first truck. He also testified that debris was strewn up and down the highway for about 75 yards. Macaluso did state that although he did not see the objects fall out of the Baach truck, from his viewpoint, he did hear these objects fall and he saw Clark’s truck strike the debris and run into the rear of Baach’s truck.

The trial court’s finding that the sole and proximate cause of the accident was the negligent operation of Baach’s vehicle is supported by the testimony regarding the objects which fell from the unsecured load which was being carried in the open bed of Baach’s pick-up truck. Even though Baach attempted to suggest that debris did not fall from his pick-up truck, we agree with the trial court that the testimony of Clark and Lawrence Macaluso supports the reasonable factual inference that the material did indeed fall from Baach’s vehicle.

Glenn Clark, the driver of the following vehicle was issued a traffic citation because of rear ending Reinhard Baach. However, it is well established under Louisiana law, the violation of a traffic ordinance is negligence per se; but this presumption is rebuttable. For such negligence to bar recovery, it must have been a proximate cause of the resulting collision. Therefore, when a rear end collision occurs, the driver of the following vehicle is generally presumed to be negligent. He will only be exonerated where he can reasonably explain the cause of his running into the vehicle ahead. Thames v. Zerangue, 401 So.2d 648 (La.App. 3rd Cir.1981).

In Laird v. State Farm Insurance Co., 290 So.2d 343, at 346 (La.App. 4th Cir.1974) the Fourth Circuit clearly stated the above legal principle as follows:

“In accordance with the method outlined in Pierre v. All-State Insurance Co. 257 La. 471, 242 So.2d 821 (La.1970) we determine legal cause by first determining whether the act complained of was a substantial factor in causing the accident, then by determining what duty was imposed and whether the risk created by a breach of that duty was one for which the statute intended to offer protection and finally by determining whether there was a breach of that duty.
“Every act leading up to an accident is not a cause-in-fact; to be deemed a legal cause, the act must be a substantial factor without which the accident would not have occurred.”

In other words, if the collision would have occurred irrespective of Baach’s fault, that is negligence; then it was not a cause-in-fact of the injuries sustained by Clark.

Before we apply the foregoing methodology of the “duty-risk” analysis to the facts at hand, we must first look to these pertinent provisions of Louisiana’s Highway Regulatory Act which provides:

“Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply.
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” LSA-R.S. 32:79.
A. “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” LSA-R.S. 32:81.

Additionally, under the traffic laws of Louisiana, a motorist is required to maintain reasonable vigilance or to see that which he should have seen and to exercise reasonable care under the circumstances.

It is firmly established that the operator of a following vehicle is required to keep his car under control, to observe closely a forward vehicle, and to follow at a safe distance. As mentioned earlier, if a rear end collision occurs, the following motorist is presumed negligent. In order for the following motorist who collides with a preceding vehicle to exculpate himself, he must show that he closely observed the forward vehicle, that he followed at a safe distance under the circumstances, or that the driver of the lead vehicle negligently created a hazard which the following vehicle could not reasonably avoid.

In light of the foregoing, we must review the determinations of causation on the facts as presented in this litigation.

The trial court judge found that Glenn Clark was not negligent and in no way contributed to the accident, but that the sole and proximate cause of the accident was the negligent operation of the Baach vehicle. From the testimony illicited at trial, the trial court judge found Clark free from fault in all of the following: in following too close; in failing to maintain proper vigilance; in traveling too fast under the circumstances; and in not seeing what he should have seen under the circumstances.

It would appear from the testimony and the preponderance of the evidence that Clark had used due diligence in the operation of his vehicle. Appellate Courts must give weight to the conclusions reached by the trier of fact, and where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal, absent clear error. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) and Perniciaro v. Brinch, 384 So.2d 392 (La.1980).

In the subject case, the trial judge accepted the version of the facts attested to by Clark and his witness. We find no clear error in the trial court’s acceptance of Clark’s version of the facts and its conclusion that he was not negligent.

With regard to the second issue raised on appeal, Baach asserts that the trial court erred in applying the Sudden Emergency Doctrine in absolving Clark of liability. According to the doctrine, one who finds himself in imminent danger, without sufficient time to weigh and consider all of the circumstances or means of avoiding danger, is not guilty of negligence if he fails to choose what subsequently appears to be the better method. Kahoe v. State Farm Mutual Automobile Insurance Company, 349 So.2d 1345 (La.App. 1st Cir.1977). Mr. Baach contends that the debris in the road; whether from his truck or not, did not create an emergency of a magnitude sufficient to warrant the application of the doctrine, and that the trial court erred in relying on it.

We need not consider whether the debris on the highway created such an emergency. After careful review of the record, we find that the trial court gave no indication that it relied on this doctrine in absolving Clark from fault. Furthermore, the application of the doctrine is not necessary to conclude that Clark was free from negligence.

Our review of the record convinces us that the trial court’s determination was based on its acceptance of Clark’s and his witness’s version of the facts, and not on an application of the Sudden Emergency Doctrine.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.


author: SAVOIE, Judge.

text:
    Joseph G. JACKSON v. Noel A. BRUMFIELD d/b/a Tiger Towing.
    No. 83 CA 0052.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Byron Magbee, Baton Rouge, for plaintiff-appellee Joseph G. Jackson.
    Warren D. Ponder, Baton Rouge, for defendant-appellant Noel A. Brumfield d/b/a Tiger Towing.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

This is a suit for wrongful conversion. Defendant, Noel A. Brumfield d/b/a Tiger Towing, appeals the trial court’s determination that it wrongfully converted plaintiffs, Joseph G. Jackson’s, vehicle.

On November 1, 1979, plaintiff, while driving his 1978 Lincoln Continental Town-car, was involved in an automobile accident in Baton Rouge. After a police investigation, his allegedly inoperable vehicle was towed to a lot owned and operated by the defendant. The next day, plaintiff returned to his home in Wisconsin, leaving the vehicle at defendant’s lot. In February, 1980, more than 90 days after the accident, defendant notified plaintiff that the vehicle would be sold to satisfy storage and towing charges.

The defendant obtained two “appraisals” on February 27, 1980 in the identical amounts of $325.00. Subsequently, application was made to and granted by the Department of Public Safety, State of Louisiana, to sell the vehicle. On March 24, 1980, the same day that the permit was granted, the vehicle was sold by the defendant to Veronica Ann Hudson for $325.00.

The trial court found that the statute of which the defendant availed himself for the privilege of selling the vehicle (i.e., L.S.A.R.S. 32:521(F)) was inapplicable. Further, it found L.S.A.-R.S. 32:521(E) was applicable and that the defendant had failed to comply with its provisions. Having found that the defendant failed to comply with the terms of L.S.A.-R.S. 32:521(E), the trial court held that a cause of action for breach of contract and wrongful conversion existed. Plaintiff was awarded $7,575.00, the value of the vehicle as per NADA and $3,000.00 for mental anguish and inconvenience. The expert witness fee for Mr. Martin McAuliffe was fixed at $75.00.

Defendant asserts the trial court erred in holding that (1) the plaintiff carried his burden of proof that the appraisals required by L.S.A.-R.S. 32:521(F) were insufficient to comply with the statute, (2) awarding damages to the plaintiff for breach of contract and wrongful conversion, and (3) in the alternative, awarding the plaintiff $10,575.00 for breach of contract and wrongful conversion.

L.S.A.-R.S. 32:521(F) provides in pertinent part:

“If, however, the vehicle is in a wrecked or salvaged condition, or has been reduced in value below one-half the NADA Book Value of a similar vehicle in average operable condition, and if the storage and/or wrecker service costs and charges have equaled to, or surpassed the highest of two appraisals made by a competent, qualified, independent appraiser, ...” (Emphasis added).

This statute requires as an essential element of any action to secure authority to sell a stored vehicle for charges owed, that two appraisals be made by a competent, qualified, independent appraiser. In the instant case, the trial court found that the “appraisals” obtained by the defendant were of absolutely no use and to be completely disregarded.

The court gave great weight to Mr. Martin McAuliffe, Senior Property Adjuster for Prudential Insurance Company, the only qualified appraiser to testify at trial. He stated that as of December 9, 1979, the vehicle’s damages amounted to $2,857.17, plus $142.15 for towing and storage charges. He further testified that the vehicle’s value as per NADA valuation was $7,575.00 if the vehicle was in average condition. Mr. McAuliffe stated that he considered the vehicle to be in average condition except for the amount estimated for the vehicle’s damages. Based upon these facts, the trial court concluded that the defendant had failed to comply with the statute’s provisions.

Great weight must be given to the factual conclusions reached by the trier of fact. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), and we may not substitute our own evaluations and inferences for the reasonable evaluations and inferences of the trier of fact unless those conclusions are clearly erroneous. Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980); and Esta v. Dover Corporation, 385 So.2d 439 (La.App. 1st Cir.1980), writ denied, 392 So.2d 690 (La.1980).

We find that the trial court was correct in completely disregarding the defendant’s “appraisals.” Accordingly, the defendant has failed to meet an essential element of the aforementioned statute and has wrongfully converted plaintiffs automobile. As such, this assignment of error is without merit.

Defendant next contends that the trial court erred in awarding damages to the plaintiff for a breach of contract and wrongful conversion under a theory of mitigation of damages. Defendant cites us four eases which he contends required plaintiff to mitigate his damages. See Aultman v. Rinicker, 416 So.2d 641 (La.App. 2nd Cir.1982); Ackel v. Coca Cola Bottling Company, 385 So.2d 30 (La.App. 4th Cir.1980); Carpenter v. Hartford Accident and Indemnity Co., 333 So.2d 296 (La.App. 1st Cir.1976); and Darnell v. Taylor, 236 So.2d 57 (La.App. 3rd Cir.1970). We find these cases to be inapplicable in this sense in that tinder Louisiana jurisprudence, an injured party has a duty to exercise reasonable diligence and ordinary care in attempting to minimize his damages after the injury has been inflicted. In the instant case, plaintiff was not injured by the defendant until the wrongful conversion occurred. As such, he had no duty to mitigate damages until after defendant’s act of selling plaintiff’s vehicle. At that point in time, there was no way in which plaintiff could mitigate his damages save filing suit. He was under no duty to mitigate damages prior to defendant’s act of selling the vehicle. Accordingly, we find defendant’s contention is totally without merit.

Defendant lastly contends, in the alternative, that the trial court erred in failing to reduce the damages awarded by the amount remitted to the plaintiff by his insurer. Such amount was $2,857.17. This is tantamount to pleading that a stipulation ' pour autrui has been created in the defendant’s favor.

Contracts for the benefit of others, or stipulations pour autrui, must be in writing and clearly express the parties’ intent to do so. L.S.A.-C.C. arts. 1890, 1902; Fontenot v. Marquette Casualty Co., 258 La. 671, 247 So.2d 572 (1971); and Berry v. Berry, 371 So.2d 1346 (La.App. 1st Cir.), writ denied, 373 So.2d 511 (La.1979). Here, the record is devoid of any such intent by either the plaintiff or Prudential. As such, defendant’s contention is without merit. However, we find that the trial court failed to correctly measure the damages sustained by the wrongful conversion as to the vehicle’s value.

The measure of damages for conversion in Louisiana consists of the return of the property or the value of the property at the time of the conversion. Haymon v. Holliday, 405 So.2d 1304 (La.App. 3rd Cir.1981). In the instant case, Mr. McAuliff gave an estimated NADA value quotation of an undamaged vehicle to be $7,575.00. The trial court found that the vehicle had sustained damages in the amount of $2,857.17. As such, the value of the vehicle in its damaged state at the time of the conversion was $4,717.83. However, the trial court awarded plaintiff the vehicle’s value in an undamaged state. We find that the trial court was clearly wrong. Accordingly, we amend the trial court’s award to reflect the value of the damaged vehicle at the time of its conversion (i.e., $4,717.83).

Defendant also contends that the trial court’s award of $3,000.00 to plaintiff for mental anguish and inconvenience is excessive. The trial court is awarded great discretion in awarding general damages for mental anguish caused by tortious conversion. Holland v. First National Bank of Crowley, 398 So.2d 186 (La.App. 3rd Cir.1981). We find that the trial court did not abuse its discretion in the award to plaintiff for mental anguish and inconvenience. As such, defendant’s assignment of error is without merit.

For the above and foregoing reasons, judgment of the trial court is affirmed in all respects except as to the award for the vehicle’s value for wrongful conversion. In this respect, judgment is amended to reflect the vehicle’s true value, $4,717.83, at the time of the conversion. Defendant, Noel A. Brumfield d/b/a Tiger Towing, is to pay all costs.

AMENDED AND AS AMENDED, AFFIRMED.


author: CARTER, Judge:

text:
    Lloyd PICKERING, d/b/a American House Movers, et al. v. The CITY OF BATON ROUGE, Parish of East Baton Rouge and J. Ben Meyers, Jr.
    No. 83 CA 0060.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Stephen M. Irving, Baton Rouge, for plaintiff-appellee Lloyd Pickering d/b/a American House Movers and Demolishing Co., et al.
    James J. Zito, Baton Rouge, for defendants-appellants City of Baton Rouge, Parish of East Baton Rouge.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is an appeal from a trial court judgment ordering the city to grant a permit to move a building into the parish and enjoining the city from refusing to issue such permits in the future.

Lloyd Pickering, d/b/a American House Movers and Demolishing Company, J.W. Johnson, d/b/a Capital City House Movers, and Alex Pickering, d/b/a Baton Rouge House Movers, filed suit against the City of Baton Rouge, the Parish of East Baton Rouge, and J. Ben Meyers, Jr., a city-parish building official. Lloyd Pickering applied for a permit to move a building from New Orleans into the city of Baton Rouge. J. Ben Meyers, Jr., a building official with the city-parish, denied the permit. The basis of the denial was a memorandum opinion rendered by an assistant parish attorney setting forth that moving permits would not be issued for buildings unless they are “up to standard” at the time they are to be moved into the parish. The remaining plaintiffs joined' in the suit complaining that other permits had been denied on the same grounds. In their suit, plaintiffs requested a review of the city’s decision denying a permit to Lloyd Pickering and declaratory and injunctive relief concerning the parish attorney’s interpretation of the disputed provisions of the Baton Rouge City Code.

The trial court ruled in favor of the plaintiffs, and defendants were ordered to issue to Lloyd Pickering a permit to move the house. Further, defendants were enjoined from refusing to issue permits to move buildings into the parish on the grounds that the buildings do not meet the City-Parish Building Code prior to being moved. Defendants thereafter perfected this devol-utive appeal. Plaintiffs answered the appeal requesting damages for frivolous appeal.

We note at the outset that the trial court judgment was signed on November 10, 1982, and a devolutive appeal was perfected by defendants on December 16, 1982. An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment. LSA-C.C.P. art. 3612. Therefore, the appeal from that portion of the judgment relating to the preliminary injunction was not timely perfected and is not properly before this court. However, the remainder of defendants’ appeal was taken within the sixty day delay provided for devolutive appeals from final judgments and is properly before the court. LSA-C.C.P. art. 2087; Brickman v. Board of Directors of West Jefferson General Hospital, 363 So.2d 86 (La.App. 4th Cir.1978); Pier 1 Imports, Inc. v. Pitcher, 264 So.2d 674 (La.App. 1st Cir.1972).

The sole issue on appeal is whether the trial judge was correct in ordering the permit to be issued.

Appellants contend that the ruling of the trial judge gave the appearance that the city ordinance was unconstitutional. Appellants further argue that because the ordinance is neither unreasonable nor arbitrary, the ruling of the trial court should be reversed.

A review of the record convinces us that the constitutionality of the ordinance was never at issue. Plaintiffs do not allege in their petition that the ordinance is unconstitutional. They merely allege that the opinion of the parish attorney concerning the ordinance is “arbitrary, unreasonable, and incorrect” and that under the jurisprudence interpreting Art. 1, Sec. 2 of the 1974 Louisiana Constitution, they are protected from arbitrary and unreasonable government action. Further, the judgment rendered by the district court does not declare the ordinance or any part of it unconstitutional. Therefore, we need not consider the constitutionality of the ordinance on appeal.

Appellants contend that the city is properly interpreting and enforcing the code by refusing to allow houses that are not up to city-parish standards to be moved into the city. Appellants further contend that such an interpretation is necessary in order to give force to the legislative intent which is to prevent the entrance of hazardous buildings into the city-parish. Concerning the permit for Lloyd Pickering, appellants argue that allowing him to move the building would create a hazardous situation and would present a threat to the health and safety of the public.

The facts are undisputed. The parties stipulated that Lloyd Pickering was denied a permit to move a building into the parish “because of a Parish Attorney’s opinon [sic] which stated that all property to be moved from outside the Parish into the Parish must be up to Building Code standards at the time structures are moved, and for no other reason.”

The disputed provision of the Baton Rouge City Code is found in Title 8A, Chapter 2, Sec. 12 and provides:

“It shall be unlawful for any person or persons, firm or corporation to move any building which has been condemned or buildings not up to city-parish standard into the City of Baton Rouge or Parish of East Baton Rouge outside the corporate limits of the cities of Baker and Zachary.”

The parish attorney has interpreted this section of the code as follows:

“The section clearly states that the buildings have to be up to standard at the time they are moved into the Parish in order for them to remain. Thus, it appears that on the facts you have given me, permits should not be issued on the buildings unless they were up to standard at the time they came into the Parish.”

We believe that the opinion of the parish attorney is incorrect in light of the fact that he relied solely on the ordinance quoted above and failed to consider additional provisions of the code.

The provisions of Title 8, Chapter 5 of the Baton Rouge City Code regulate the moving of buildings. In Section 506 of Title 8, the Code sets forth the standards for issuance of a moving permit. The circumstances under which a permit shall be denied include the following: (1) the building proposed on the new site does not meet the building, plumbing, and electrical codes; (2) zoning, fire prevention or other ordinances would be violated by the building in its new location; (3) the building is deteriorated or otherwise structurally unsafe and if moved would endanger persons and property in the city; or (4) for any reason persons or property in the city would be endangered by the moving of the building.

The code also requires that a person seeking a permit to move a building must first file an application for such permit (Title 8, Chapter 5, Sec. 503). The application must include detailed construction plans showing the improvements to be made at the new site. All of the improvements shall conform to the provisions of the building code. In addition, the code provides a penalty of $200.00 or imprisonment for sixty days or both where the improvements are not completed within six months of the time the plans are submitted. (Title 8, Chapter 5, Sec. 505).

Finally, the code lists duties of the per-mittee. (Title 8, Chapter 5, Sec. 507). Among the duties listed is the following: “Comply with the building code, the fire zone, the zoning ordinance and all other applicable ordinances and laws upon relocating the building in the city.”

Laws must be construed as a whole and each part must be given effect where such a result can be reasonably achieved. It cannot be presumed that meaningless clauses and phrases were enacted. Groves v. Board of Trustees of Teach. Retire. Sys., 324 So.2d 587 (La.App. 1st Cir.1975), writs denied, 326 So.2d 378, 380 (1976).

We recognize that Title 8A, Chapter 2 of the Baton Rouge City Code does prohibit moving buildings which are not up to the city-parish standard into the city. However, we find that this absolute prohibition of Title 8A is applicable only in circumstances where one has not complied with the codal requirements of Title 8 which are outlined above. To hold otherwise would render useless large portions of Title 8 which were enacted to regulate the moving of buildings.

We note that under our holding every section of the code is given effect, and accordingly, the city retains the right to deny permits. For example, the city may deny a permit where the applicant has not complied with codal requirements concerning the submission of proposed construction plans, or where despite such compliance, the city determines that allowing the building to be moved would endanger persons or property within the city.

Therefore, we affirm the ruling of the trial court ordering the city to grant plaintiff-Lloyd Pickering a permit to move a building from New Orleans to Baton Rouge. Although appellants have argued in brief that moving the building was hazardous to the health and safety of the public, this allegation is not substantiated by the record. It was stipulated at trial that the permit was denied solely on the basis of the parish attorney’s opinion regarding the Title 8A provision, i.e., the permit was denied because the building was not up to standard at the time it was to be moved. Because of our interpretation of the provision in question, we affirm the ruling of the trial court ordering the city to grant plaintiff-Lloyd Pickering a permit.

Appellees have answered the appeal requesting damages for frivolous appeal, including reasonable attorney fees. In support of this, appellees allege that the position of appellants is completely without merit.

Under LSA-C.C.P. art. 2164, appellate courts have the authority to award such damages. However, appeals are favored under the law and damages for frivolous appeal will not be granted unless they are clearly due. Maxwell v. State, Dept. of Transp., Etc., 391 So.2d 1230 (La.App. 1st Cir.1980), writ denied, 394 So.2d 281. Damages will be awarded only when there are no serious legal questions, when the appeal is taken solely for the purpose of delay, or when it is evident that appellant’s counsel does not seriously believe in the position he advocates. Salmon v. Hodges, 398 So.2d 548 (La.App. 1st Cir.1979); Jackson v. East Baton Rouge Par. Sch. Bd., 348 So.2d 739 (La.App. 1st Cir.1977).

We find that the contention by ap-pellees that the appeal is completely without merit is not a sufficient basis to award damages for frivolous appeal.

For the above reasons, the judgment of the district court is affirmed. Costs on appeal are to be paid by appellants.

AFFIRMED.

PONDER, J., concurs in the result.


author: CRAIN, Judge.

text:
    Lowell V. LEWIS v. HORACE MANN INSURANCE COMPANY, et al.
    No. 83 CA 0068.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    John deGravelles, Baton Rouge, for plaintiff.

      Ben L. Day, Baton Rouge, for Lowell V. Lewis and State Farm Ins.
    Horace Lane, Baton Rouge, for State Farm Ins. Uninsured Motorist Carrier for plaintiff.
    Edward P. Lobman, Metairie, for Paul Ivanyisky and Horace Mann Ins. Co.
    Don Broussard, Lafayette, for Travelers Ins. Co. — intervenor.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from a judgment of the trial court finding defendant, Paul A. Iva-nyisky, negligent and plaintiff, Lowell V. Lewis, contributorily negligent in an automobile collision, thus rejecting plaintiffs claim for damages.

FACTS

The accident occurred on October 15, 1979 at approximately 9:30 p.m. at the intersection of Louisiana Highway 43 (La. 43) and U.S. Highway 190 (U.S. 190) in the town of Albany, Louisiana,, located in Livingston Parish. The speed limit in Albany is 35 m.p.h. The defendant was travelling south on La. 43 and had maintained a speed of 5-10 m.p.h. after crossing railroad tracks some 300 feet before the intersection. He entered the intersection and turned left on U.S. 190 without signaling. He did not observe plaintiffs vehicle approaching him from the south on La. 43 and entering the intersection as he began his turn. The two vehicles collided in the intersection causing the complained of damage.

Plaintiff subsequently filed suit in tort for damages against Paul A. Ivanyisky and his auto liability insurer, Horace Mann Insurance Company (Horace Mann), and his own uninsured motorist carrier, State Farm Mutual Automobile Insurance Company (State Farm). The defendants answered denying liability and alternatively pled contributory negligence of the plaintiff. The defendants also reconvened against plaintiff and his insurer, State Farm, for damages for repair of Ivanyisky’s truck.

After trial on the merits, the trial judge found that defendant, Paul A. Ivanyisky, was negligent in making a hazardous left turn without ascertaining whether the way was clear to do so, and that such negligence was a proximate cause of the accident. The trial judge also found that the plaintiff was contributorily negligent by driving under the influence of alcohol and speeding. Based on those findings, the trial court dismissed the plaintiffs main demand against Ivanyisky, Horace Mann and State Farm. He also dismissed Ivanyi-sky and Horace Mann’s reconventional demand against the plaintiff and State Farm. This appeal is only from that portion of the judgment dismissing plaintiffs claim against Ivanyisky, Horace Mann, and State Farm.

On appeal, plaintiff lists only two assignments of error:

1. The trial court erred as a matter of law in failing to properly apply the doctrine of “last clear chance” to the facts of this case.

2. The trial court erred in finding that the alleged contributory negligence of Lowell V. Lewis proximately caused the accident sued on.

CONTRIBUTORY NEGLIGENCE

The trial court based its finding of contributory negligence on the fact that appellant was “driving while under the influence of the beers, which he had previously had and he was exceeding the speed limit in the municipality at the time and was also exceeding the safe speed considering the fact that he was approaching a major intersection in the small town of Albany.”

In the case of Bennett v. United States Fidelity and Guaranty Company, 373 So.2d 1362, 1366 (La.App. 1st Cir.1979), writ denied 376 So.2d 1269 (1979), in a factual situation remarkably similar to the one at hand, this court stated that in order for a claim to be barred by contributory negligence, “(T)he record must support the conclusion that the accident could have been avoided had plaintiff been going within the posted speed limit or if he had not consumed alcohol.” In Bennett, as in the case before us, the defendant made a left turn crossing the path of the plaintiff’s oncoming vehicle. The trial court held that the defendant’s negligence was the sole legal and proximate cause of the accident despite the fact that the plaintiff admitted to alcohol consumption prior to the accident and the record established that the plaintiff was exceeding the speed limit by approximately 15 miles per hour. This court affirmed the lower court’s holding stating:

The record does allow one to speculate as regards impairment of driving ability in relation to vital time and distance measurements. However, speculation will not suffice to show that when Ms. Spears executed her left turn the plaintiff was a considerable distance away and that at least partly because of his speed and slow reaction time the accident occurred. 373 So.2d at pg. 1366.

We also note the following from Bland v. Interstate Fire and Casualty Co., 311 So.2d 480, 482 (La.App. 4th Cir.1975): “The fact that a motorist involved in an accident was speeding or intoxicated does not in and of itself require a finding of liability. Speed and intoxication do not directly cause accidents, but rather influence behavior and result in acts or omissions which cause accidents.”

We agree with the trial judge’s factual finding that the plaintiff was under the influence of alcohol to some degree and was exceeding the speed limit. However, the record is void of evidence that these were substantial factors contributing to the accident. Bland, 311 So.2d at 482. We find absolutely no evidence offered by the defendant that tends to prove that the accident could have been avoided had the plaintiff been going within the posted speed limit or if he had not consumed alcohol. The only evidence offered as to the extent of plaintiff’s intoxication was plaintiff’s own admission that he consumed three to five beers during the four hour period preceding the accident and the investigating officer’s testimony that he smelled alcohol on the plaintiff’s breath following the accident. Plaintiff testified he could have been going as fast as 45 miles per hour — 10 miles in excess of the posted speed limit. Lamar Picou, a witness in the vicinity, estimated the plaintiff’s speed to be “well over 55” by how it sounded as plaintiff drove by. However, Picou did not see the accident. The defendant never observed plaintiff prior to the accident. Plaintiff testified that defendant was some 150 feet from the intersection when he saw him, and he appeared to be going to travel straight north through the intersection since there was no turn indicated. The plaintiff was within 20 to 30 feet of the defendant when the defendant turned suddenly.

Based on this evidence alone, we cannot conclude that the plaintiff’s speed nor the fact that he had consumed an undetermined amount of alcohol was a substantial contributory cause of the accident. We therefore find it necessary to conclude that the negligence of defendant, Paul A. Ivany-isky, was the sole legal and proximate cause of the accident.

DAMAGES

The appellant was employed offshore as a gas compressor technician at the time of the automobile accident. Prior to that collision, he had injured his back in a work-related incident occurring offshore on October 12, 1979. He was transported on shore on October 15, 1979, for the purpose of getting his back examined by Dr. Laughlin G. Winkler in Hammond, Louisiana. It was later that same day that Lewis was involved in the automobile collision in which he sustained injuries to his neck and left knee. He entered the emergency room of the hospital' and was again examined by Dr. Winkler. Dr. Winkler subsequently referred the appellant to Dr. Lawrence Pambrough, an orthopedic surgeon, in connection with the knee injury. The appellant testified at trial that his back condition basically remained the same after the automobile accident.

Lewis was able to return to work as scheduled after the collision; however, he continued to see both Dr. Winkler and Dr. Fambrough through the end of 1979 for both his back and knee problems. On January 8, 1980, Lewis reinjured his left knee when his foot slipped off a ladder at work. The appellant claimed his knee “gave way”, causing him to slip. He again saw Drs. Winkler and Fambrough. After no improvement, Dr. Winkler referred Lewis to Dr. Stuart Phillips, an orthopedic surgeon in New Orleans. Dr. Phillips diagnosed the injury as chondromalacia—a softening of the undersurface of the knee cap which causes pain when it grinds against the patella. Steroid injections were unsuccessful in easing the pain, therefore Dr. Phillips operated on appellant’s knee on May 21, 1980. After recovery from the surgery, the knee only caused Lewis occasional pain upon climbing or bending.

It was Dr. Phillips’ opinion that all Lewis’ knee problems, including the injury caused by his knee “giving way” on the job, were directly attributable to the injury sustained in the auto accident. He further stated that a feeling of “giving way” in the knee is a characteristic symptom of chon-dromalacia. Dr. Phillips estimated that Lewis had a 20% loss of function in the left knee and a 10% loss of function of the left leg. He indicated Lewis would have permanent pain beneath the kneecap upon kneeling or climbing.

Appellant stopped working in April 1980, principally due to his back problem. Before he left work, he was earning approximately $26,000.00 per year. He returned to work on August 25, 1981 at a similar salary.

Based on the above evidence, we find that the knee injury caused by that accident appellant had on the job on January 8, 1980, resulted from a knee condition which was directly attributable to the automobile collision of October 15, 1979. We do not find that plaintiff is entitled to lost wages for that period of time it took for him to recover from the knee surgery, since he was unemployed at the time, having left work earlier principally due to a back condition.

Accordingly, we find the defendant, Paul A. Ivanyisky, liable to Lewis for the following damages:

Medical Expenses $ 3,890.45
General Damages 20,000,00
$23,890.45

For the reasons assigned, the judgment of the trial court is reversed and set aside, and defendants Paul A. Ivanyisky and Horace Mann are ordered to pay the plaintiff damages in the amount of $3890.45 for medical expenses and $20,-000.00 for general damages for pain and suffering. Plaintiff’s suit against defendant State Farm is dismissed. All costs are to be paid by the defendants including expert witness and deposition costs.

REVERSED AND RENDERED.

      . State Farm provides plaintiff with underin-sured motorist coverage which is excess insurance over the $25,000 in liability insurance provided by Horace Mann. Horace Mann’s policy limits are sufficient to cover the damages assessed.


author: ALFORD, Judge.

text:
    LIVINGSTON PARISH POLICE JURY v. Walter SMITH.
    No. 83 CA 0069.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Frank Koles, III, Asst. Dist. Atty., Livingston, for plaintiff.
    Byron Magbee, Baton Rouge, for defendant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment of the Twenty-First Judicial District Court, Parish of Livingston, enjoining appellant from blocking a drainage ditch located on his property and further ordering appellant to remove any obstructions to said ditch placed there by him. The trial judge determined that irreparable injury to a public road would result if appellant were not enjoined from filling in the ditch on his property. We affirm.

Appellant’s ancestor in title, Delmas Harris, requested that appellee construct the ditch sometime prior to his selling the property to a Mr. Tate in 1967. Appellant purchased the property in 1970. Mr. Harris testified that he made the request to the Livingston Parish Police Jury in an attempt to alleviate drainage problems occurring on his land as well as the land of his neighbors.

The ditch on Mr. Smith’s property connects with two public drainage ditches which run parallel with Poirrier Lane in Livingston Parish. The ditch which runs on the west side of Poirrier Lane crosses under the road via a culvert and intersects with the ditch on the east side before joining the Smith ditch. Expert testimony was presented on behalf of the Police Jury showing that if the Smith ditch is not allowed to flow freely, the ditches which parallel Poirrier Lane will not drain properly thereby causing the foundation of the road to deteriorate. The trial judge found that the continuing nature of the damage justified the granting of the injunction regardless of the fact that any particular instance of repair could be accomplished for a determinable price.

Appellant maintains that the trial judge erred in his legal interpretation of irreparable injury as found in LSA C.C.P. art. 3601. It is appellant’s contention that Mr. Alex Theriot, an expert in civil engineering, who testified that the resulting damage to the road caused by standing water could be repaired at a cost of $500.00 to $1,000.00, defeated appellee’s required showing of irreparable injury. In order for a showing of irreparable injury to be made, the party seeking an injunction must prove that the alleged loss can not be adequately compensated monetarily or that the alleged damage can not be measured by a pecuniary standard. LeBlanc v. Lyons, 401 So.2d 626 (La.App. 3rd Cir.1981). We are of the opinion, as was the trial judge, that the continuing nature of the damage in this case can not be adequately compensated monetarily.

Additionally, given the fact that this is a public road used by the residents of the community, it is our position that the continual process of having its foundation weakened will subject those who use it to a needless danger. We are unable to see how this danger can be adequately compensated monetarily or measured by a pecuniary standard.

Appellant next argues that the trial judge erred in accepting the proposition that the Livingston Parish Police Jury has any rights whatsoever in the ditch. It is important to note that the ditch was initially constructed by appellee at the request of a former owner prior to his having sold the property in 1967. At that time, LSA C.C. art. 765 (Amended by Acts 1904, No. 25), provided that a continuous and apparent servitude could be acquired by possession of ten years. Servitudes of drainage through ditches are both apparent and continuous. Wild v. LeBlanc, 191 So.2d 146 (La.App. 3rd Cir.1966). The testimony presented at trial clearly shows that the Smith ditch remained open and free flowing for a period in excess of ten years. We are of the opinion that appellee has shown possession of the ditch for ten years, thus creating a continuous and apparent servitude of drainage through the ditch.

Appellant finally urges that the trial judge erred in allowing certain rebuttal evidence to be introduced which showed that Mr. Smith consented to appellee’s cleaning of the ditch. Having reached the decision that the Livingston Parish Police Jury acquired the servitude in question by possession of ten years, we need not address this issue.

Therefore, for the foregoing reasons, the judgment of the trial court is affirmed with costs of this appeal to be borne by appellant.

AFFIRMED.

      . We are unable to ascertain from the record if Mr. Smith filled in the ditch in 1978 or 1979. However, it makes no difference in that the servitude was acquired by possession of ten years at the latest in 1977.


author: EDWARDS, Judge.

text:
    Beatrice BUTLER v. CHARITY HOSPITAL OF NEW ORLEANS, DEPARTMENT OF HEALTH AND HUMAN RESOURCES.
    No. 83-CA-0070.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Mary E. Howell, Howell & Bayer, New Orleans, for appellant.
    Phillip H. Kennedy, Staff Atty., Dept, of Health and Human Resources, New Orleans, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall, Director, Dept, of State Civil Service.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Appellant, Beatrice Butler, appeals a State Civil Service Commission ruling dismissing as untimely her appeal for back pay allegedly owed her for the performance of duties as an Account Clerk II when she was classified only as a Typist Clerk II (later promoted to Typist Clerk III), a lower paying position with fewer duties. We affirm.

Butler was informed on May 15, 1981, by a letter from Charity Hospital of New Orleans, hereinafter Charity, that she had been performing the duties of an Account Clerk II since October of 1979 and would thereafter be restricted to the duties consistent with her job classification as a Typist Clerk II.

On June 15,1981, Butler through counsel filed a notice of appeal postmarked June 12, 1981, with the Director of the Civil Service Commission, hereinafter CSC, in accordance with Civil Service Rule 13.12(a), seeking as relief back pay and other benefits allegedly due her for the 18 months she worked as an Account Clerk II.

On March 26, 1982, a public hearing was held before a referee appointed by the CSC. At the hearing, counsel for Charity filed a motion for summary disposition of the appeal. The gravamen of Charity’s motion was that plaintiff had failed to appeal within the delays provided for in Civil Service Rule 13.12(a)(2). The referee heard appellant’s testimony on the motion, but without making a ruling proceeded with the presentation of evidence on the merits.

On October 8, 1982, the CSC rendered its decision granting Charity’s motion. After reviewing the record furnished to it by the referee, the CSC made the following findings of fact, undisputed in this appeal.

Appellant was hired as a Typist Clerk II by Charity in October of 1979 and was assigned to the Accounts Receivable Department where she worked with three co-employees classified as Account Clerks II. According to the job descriptions she herself prepared — one when she was first hired, another in April of 1980, and a third at some later date — she was to perform duties strictly associated with desk work, such as typing and correspondence. However, her actual duties consisted of basic collection work relating to patients’ accounts, the same duties performed by her three co-employees.

In a staff meeting held in June of 1980 which she attended, her then-supervisor Ed Anderson announced plans for reorganizing the office and promoting all Typist Clerks II in the office to positions of Account Clerks II.

In February of 1981, a Mr. Connelly circulated a notice of positions available at Charity and appeared at a staff meeting, which Butler also attended, to discuss promotional opportunities and testing requirements for qualifying for promotion, as provided in the Civil Service Rules.

In March, 1981, replacing Ed Anderson, Ms. Joyce Morgan was hired by Charity as an Accounts Administrator II and assigned to a task force to reorganize the office and allocate positions according to their proper Civil Service job descriptions. After initial reorganization was completed some time in April of 1981, appellant’s actual duties were restricted to those consistent with her job classification as a Typist Clerk II. She was given written notice of such restrictions by the letter dated May 15, 1981. At some undisclosed point during this period, appellant apparently tested or otherwise qualified for promotion, for in September of 1981 she was promoted to the position of Account Clerk II, effective January 15, 1982.

In April of 1981, appellant contacted a union representative to discuss her job situation. She was told that she had an appeal-able case and could file with the CSC. In hopes of a forthcoming motion, she decided to wait before taking any action. After receipt of the May 15 letter formally notifying her of her newly restricted duties, appellant decided to appeal to the CSC.

The single issue before us is whether appellant’s appeal to the CSC was timely or not.

Civil Service Rule 13.12 provides the delay period for all appeals to the CSC. Under that rule, a notice of appeal complying with the provisions of Rule 13.11 must be postmarked and received in the Office of the Director of the CSC, or addressed to him,

1. Within thirty (30) calendar days after the date on which appellant received written notice of the action on which the appeal is based when written notice before or after the action is required by these Rules; or
2. Within thirty (30) calendar days after the date when appellant learned or was aware that the action complained of had occurred when no written notice is required by these Rules or, if required, was given tardily or not at all.

The CSC found that appellant had learned of or was made aware of the action complained of on at least three separate occasions — in June of 1980 at the staff meeting with Ed Anderson, in February of 1981 when Mr. Connelly circulated the letter concerning available positions at Charity, and in April of 1981 when appellant consulted with her union representative who told her she had an appealable case. None of these findings are disputed in the present appeal.

Appellant, however, urges three reasons why the appeal delay did not commence to run until May 15, 1981, the date of the letter informing her of her newly restricted duties.

First, appellant, citing Pailet v. Office of Health Services, Etc., 387 So.2d 1274 (La. App. 1st Cir.1980), argues that casually acquired information and informal conversation with a union representative do not constitute sufficient “notice” under due process to begin appeal delays.

Unlike the present case, Pallet construed Rule 13.12(a)(1), providing for the commencement of appeal delays from the date required written notice is received, in light of the notice provisions in Rule 12.2, which contain the procedures for suspensions without pay. According to Rule 12.2, after a suspended employee is so notified on or before the effective date of his suspension, the appointing authority must also furnish him with detailed reasons for the suspension within 15 days of its effective date. Reasoning that the purpose of provisions requiring reasons to be given an adversely affected employee is to afford him due process so that he might know with reasonable particularity the facts and circumstances he may be called upon to rebut on appeal, we held that the appeal delay for suspension commences to run on the date appellant receives the detailed written reasons for his suspension, rather than on the date he is notified of the suspension.

Thus, Pallet’s holding is limited to a specific situation under the rules where written notice must be given an employee adversely affected by the actions of the appointing authority. Since not all appeal-able cases under the Rules involve adverse actions requiring such written notice, Pallet does not support the proposition that due process requires written notice in every appealable case before appeal delays commence to run. To read Pallet otherwise would be to completely invalidate the provisions of Rule 13.12(a)(2).

We said in Legros v. Dept. of Public Safety, Etc., 364 So.2d 162 (La.App. 1st Cir.1978), writ refused, 366 So.2d 562 (La.1979), that the CSC is a quasi-judicial body, and so long as its rules are reasonable and do not violate basic constitutional rights, they must be recognized and enforced by the courts.

The obvious purpose of Rule 13.-12 is to provide a time limit on the right to appeal. Consistent with the purpose stated in Pallet of affording an adversely affected employee due process in preparing his appeal, a 30-day delay period commences on the date the employee receives written notice when the Rules require written notice be given. However, due process does not give an employee an interminable length of time in which to appeal. It is not unreasonable to require an employee to appeal within 30 days of the date he receives actual knowledge of some adverse action by the appointing authority or of some violation of the Rules giving rise to an appeal, whether written notice is received or not required to be given at all.

Since the action complained of in the present case is not one for which written notice is required under the Rules, the delay period for appellant’s appeal began on the date when she actually learned of the alleged violation and of her right to appeal. The undisputed facts place this at the latest some time in April of 1981, when she spoke with her union representative. Therefore, her notice, filed on June 12, 1981, was untimely.

Second, appellant argues that the CSC should have applied the equitable doctrine contra non valentem agere praescriptio non currit lex as an exception to the 30-day delay period contained in Rule 13.12.

According to Nathan v. Carter, 372 So.2d 560, 562 (La.1979),

[t]his equitable doctrine has been applied to cases wherein defendant has concealed the fact of the offense or has committed acts (including concealment, fraud, misrepresentation, or other “ill practices”) which tend to hinder, impede, or prevent plaintiff from asserting his cause of action, as long as plaintiffs delay in bringing suit is not willful or the result of his own negligence. (Citations omitted.)

Without deciding whether this doctrine is a viable exception to Civil Service Rule 13.12, we find nothing in the record supporting appellant’s allegation that Charity willfully mislead, hindered or in any way impeded appellant from exercising her right of appeal.

Finally, appellant argues that because the action complained of was a “continuing” violation of the CSC Rules, the appeal delays did not commence running until the date of the last harmful act, namely, May 15, 1981.

In support of this argument, appellant cites various decisions which hold that “[wjhere the cause of the injury is a continuous one giving rise to successive damages, prescription dates from cessation of the wrongful conduct causing the damage.” South Central Bell Telephone v. Texaco, Inc., 418 So.2d 531, 533 (La.1982); accord., Wilson v. Hartzman, 373 So.2d 204 (La.App. 4th Cir.1979); Parro v. Fifteen Oil Co., 26 So.2d 30 (La.App. 1st Cir.1946).

All of the cases relied on by appellant involved a judicial construction of Civil Code Article 3537 (the prescription statute for offenses and quasi-offenses) in connection with the concept of a “continuing tort.”

The situation before us involves neither a continuing tort nor an interpretation of Civil Code Article 3537. In light of Legros, discussed above, we see no reason to extend this tort theory to Civil Service actions. See White v. Dept. of Health and Human Resources, 385 So.2d 400 (La.App. 1st Cir.), writ refused, 386 So.2d 358 (La.1980).

For the reasons given, the judgment of the State Civil Service Commission is affirmed at appellant’s cost.

AFFIRMED.

      . Without detailing its baroque provisions, we note that the Civil Service Rules contain various requirements and procedures governing entrance to and promotion within the Classified Service. See Chapters 7 and 8 of the Civil Service Rules. Essentially, qualifications for any position are determined by the successful completion of an entrance or promotional examination and the attainment of a specific rating placing the applicant on an "eligible list” from which appointments to available positions may be made by the Director. Certain noncompetitive promotions are allowed at the Director’s discretion, provided the employee is designated for promotion by his appointing authority and otherwise qualifies for the position to which he desires to be promoted. See Rule 7.8.

      . For example, Rule 13.10(d) gives an employee a right to appeal an adverse allocation or reallocation of his position to another class if under Rule 5.3 he fails to obtain upon written request a reasonable review of his case by the Director because of discrimination. The Rules do not require written notice of the Director's refusal to review the adverse allocation. Thus, appeal delays commence to run under subsection two of Rule 13.12(a) rather than under subsection one.

      . Appellant alleges Charity detailed her to a special duty for more than one month without approval of the Director in violation of Civil Service Rule 8.16(d). It is questionable whether a violation of this rule gives rise to an appeala-ble case. Civil Service Rule 6.22 provides for a temporary increase in pay when an employee is detailed to a special duty, but only with the approval of the Director. An employee is not given a right to such increase. Whether a violation of Rule 8.16(d) gives rise to an appealable case, Rule 8.16(d) contains no written notice provisions in any event.