text:
    Robert L. “Bobby” FREEMAN, et al., v. David C. TREEN, Governor of the State of Louisiana, et al.
    No. 83-CA-0988.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1983.

      P. Raymond Lamonica, and H. Alston Johnson, III, Baton Rouge, for defendants-appellants, David C. Treen, E.L. “Bubba” Henry, and Willard A. Favre.
    Cynthia Young, Baton Rouge, for defendant-appellee, Mary Evelyn Parker.
    John L. Avant, Baton Rouge, and L. Phillip Canova, Plaquemine, for plaintiffs-ap-pellees, Robert “Bobby” Freeman, et al.
    Before COVINGTON, EDWARDS, SHORTESS, CARTER and ALFORD, JJ.
   EDWARDS, Judge.

In this appeal we are to decide only whether the trial court correctly issued a preliminary injunction in connection with a suit for declaratory and permanent injunc-tive relief. The issue involves essentially procedural rather than substantive questions. We mention this distinction to stress that the substantive issue in the main demand concerning, broadly, constitutional limitations both on the exercise of the Governor’s veto power and on judicial review of actions by a co-equal branch of government, though tentatively considered, are not decided.

The following facts are undisputed. As required by Article VII, section 11 of the Louisiana Constitution, Governor David C. Treen (Gov. Treen), submitted to the legislature an executive budget in House Bill 158, commonly referred to as the General Appropriation Bill, later enacted into law as Act No. 14 of the 1983 regular session of the legislature. That bill provided a total of $411,907.00 available to the office of Lieutenant Governor in four separate categories or “line items” — Salaries Continuing, $247,869.00; Other Compensation, $7,000.00; Related Benefits, $50,024.00; Operating Expenses, $107,014.00 — in the budget unit numbered 04-05-00. The budget made provisions for a staff of 11 employees.

After passage of the bill by the House, Lieutenant Governor Robert L. “Bobby” Freeman (Mr. Freeman) persuaded the Senate Finance Committee to increase the salaries continuing item by a lump-sum amendment of $133,637.00, raising the total to $545,544.00 with 15 employees. Mr. Freeman admitted the amount was added so as to preclude a gubernatorial line item veto of the additional funds. When informed that the increase was not in proper item form, Gov. Treen wrote Mr. Freeman advising him that his office could not be wholly exempt from budget cuts.

The House refused to concur in the Senate amendment, and the bill was sent to a conference committee composed of three House and three Senate members. At the committee meeting, a compromise amendment, proposed by Gov. Treen, adding $66,-819.00, or half of Mr. Freeman’s amendment, to the salaries item, was introduced but defeated by a three-to-three vote, split between the House and Senate members. With the original amendment intact, the bill was subsequently passed by the legislature, leaving the new total of $545,544.00 appropriated to the Office of the Lieutenant Governor.

Upon receipt of the bill, Gov. Treen vetoed the salaries continuing item totalling $381,506.00. He explained to Mr. Freeman that because LSA-R.S. 39:57(B), commonly referred to as the “BA-7” transfer, prohibits transfers of funds from salary categories to other categories, he could not veto a smaller amount in another item in order to have a lesser effect on the budget. Therefore, his only option was to veto the salaries item. However, because the BA-7 transfer allows transfers from other item categories to salary categories, he agreed to assist Mr. Freeman in procuring the salaries for his staff employees. Moreover, as a constitutional officer with a protected salary, Mr. Freeman could draw his pay on his own warrant under LSA-R.S. 49:202.

Thus, after the veto, $164,038.00 plus the $63,367.00 payable as salary to Mr. Freeman on his own warrant, for a total of $227,405.00, remained available in the operating budget of the Office of Lieutenant Governor.

Nonetheless, alleging the effective abolition of his office, Mr. Freeman and two others sued to have declared and permanently enjoined as unconstitutional the gubernatorial line item veto of the salaries continuing item from the operating budget of his office for the fiscal year 1983-84. He included in his petition a prayer for a preliminary injunction.

On August 19, 1983, after a hearing on the preliminary injunction, the trial court held the contested veto unconstitutional and issued a preliminary injunction prohibiting the defendants — Governor David C. Treen; Commissioner of the Division of Administration, E.L. “Bubba" Henry; State Treasurer Mary Evelyn Parker; and State Executive Fiscal Program Director, Division of Administration, Willard A. Favre — from in any way honoring the veto. The trial court denied both the defendants’ motion for a stay of the preliminary injunction pending appeal and their motion for a suspensive appeal. These rulings effectively reinstated the vetoed funds and mandated their expenditure from the state treasury.

On August 25, 1983, defendants devolu-tively appealed the issuance of the preliminary injunction and applied to this court both for a remedial stay of the preliminary injunction pending appeal and an expedited hearing. Under our supervisory jurisdiction, we granted a peremptory writ ordering the preliminary injunction stayed pending appeal and set hearings on the appeal for January 4, 1984.

Seeking either a reversal of the stay order or an earlier docket date for the appeal, Mr. Freeman applied to the Supreme Court for a writ of review. On September 30, the Supreme Court, 438 So.2d 580, granted the writ, remanded the case to this court and directed us to “hear arguments within fifteen days and to decide the case expeditiously.” Pursuant to that order, we set hearings on the appeal for October 12, 1983, before a five-judge panel.

It is well-settled that a party may obtain permanent injunctive relief in an ordinary proceeding upon a showing of irreparable injury, loss or harm unless some specific provision of law otherwise provides such relief. During the pendency of the main demand, a party may also obtain by summary process a preliminary injunction. The issuance of a preliminary injunction lies within the discretion of the trial court, but that discretion is reviewable if erroneously exercised. LSA-C.C.P. art. 3601; Smith v. West Virginia Oil & Gas Co., 373 So.2d 488 (La.1979). For several reasons we think the trial court erroneously issued the preliminary injunction in this case.

First, a preliminary injunction may issue only upon a prima facie showing, either by ordinary proof or by verified petition or affidavits, that the plaintiff will prevail on the merits and that irreparable injury or loss will result without the preliminary injunction. General Motors Acceptance Corp. v. Daniels, 377 So.2d 346 (La.1979); Melancon v. Assumption Parish Police Jury, 231 So.2d 690 (La.App. 1st Cir.1970). Mr. Freeman failed to make a prima facie showing either that the veto was unconstitutionally exercised or that it resulted in irreparable harm to the Office of Lieutenant Governor.

Mr. Freeman contends that at the time of the veto his office was effectively abolished because there were no obligatory funds available to pay his staff, which he reduced from a total number of fifteen to five as a result of the veto. He argues that because the BA-7 transfer can only be made with a joint approval of the Division of Administration and the Legislative Budget Committee, of which he is the Chairman, his office would be required to operate on staff funding provided solely within the discretion of another agency. In short, without a specific and irrevocable appropriation of funds for salaries, Mr. Freeman argues he is without sufficient funds to perform his constitutional functions as Lieutenant Governor.

The Lieutenant Governor has limited constitutionally mandated duties: he is to serve ex-officio as a member of each committee, board, and commission on which the Governor serves, and is to act as Governor whenever the Governor is temporarily absent from the state. LSA-Const. Art. IV. sections 6, 19.

To accomplish these duties, in addition to the $164,038.00 available for operating expenses, the Office of the Lieutenant Governor has access to various support services, without cost to his office, including office space in the state capítol, utilities, an apartment in the Pentagon building, security and chauffeur services from the Department of Public Safety, and use of the State-owned airplane and helicopter. See LSA-R.S. 49:202.1.

Moreover, Mr. Freeman produced no evidence demonstrating any difficulty in transferring funds to salaries by way of the BA-7 transfer system. At the time of the hearing, he had requested and received two BA-7 transfers placing $77,000.00 in the salary fund of his operating budget. The record contains no evidence of anticipated difficulty in obtaining future transfers.

His office is currently operating with a staff of five employees. He testified that he has successfully performed his constitutional duties in spite of the veto.

These facts do not support a showing that the Lieutenant Governor is without sufficient operating funds to perform his constitutional functions, nor do they demonstrate the effective abolition of his office by virtue of an unconstitutionally exercised veto.

Mr. Freeman further argues that the alleged unconstitutional veto unlawfully interfered with his ability to discharge his constitutional duties. Specifically, he argues that the veto deprived him of any means by which to retain the staff of his own choosing, with resulting irreparable harm.

The “irreparable injury” justifying the issuance of a preliminary injunction must be a loss sustained by an injured party which cannot be adequately compensated in money damages or for which there is no pecuniary standard for damage measurement. Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314 (La.1981). Moreover, “injunctive relief should not be granted unless facts supporting its justification are clear and convincing, and rules governing the use of injunctive process are strictly construed.” Olsen v. City of Baton Rouge, 247 So.2d 889, 893 (La.App. 1st Cir.1971).

Mr. Freeman testified at the hearing that his office presently employs five staff employees of his own choosing. He acknowledged that he had requested and received two BA-7 transfers placing a total of $77,000.00 in the salary fund of his operating budget. He admitted that with these transfers he had sufficient funding to operate his office at current salary levels until February of 1984.

According to. Mr. Mark Drennan, Mr. Freeman’s Expert Legislative Fiscal Analyst, if there are no further BA-7 transfers, the salary fund would be exhausted in January of 1984. If additional transfers are made, deducting $3,000.00 a month for operating expenses, the funding for salaries at current levels would run out in March of 1984. He testified, however, that a reasonable person might conclude that the Lieutenant Governor could perform his duties with a staff of only three employees. He also testified that the job could be done with fewer people at lower salaries.

Mr. Drennan testified that the original budget request of $545,544.00 for a staff of fifteen employees was excessive.

These facts do not demonstrate a clear and convincing need for the issuance of a preliminary injunction in order to prevent irreparable harm. The evidence establishes that Mr. Freeman in fact had sufficient funds to retain a staff of five employees at current salary levels until March of 1984 with additional BA-7 transfers. The evidence also establishes that Mr. Freeman could operate his office and perform his duties with a staff of five at lower salaries, for a presumably longer period than March of 1984. Since his office was functioning and would continue to function at least until January, there was no showing of irreparable harm.

Mr. Freeman cites several cases for the proposition that no showing of irreparable injury need be made when the action complained of is in violation of the law. He argues that because the veto was unconstitutional, it is therefore illegal, and he need not show irreparable injury. Each of the cases cited for this proposition, however, involved threatened actions by a municipality in direct violation of a prohibitory law. Those situations are easily distinguishable from the present case.

The case before us involves neither threatened actions involving a municipality nor a direct violation of a prohibitory law. The contested veto is an express gubernatorial power provided for by the constitution. When a constitutional provision is plain and unambiguous, its language must be given effect. Bank of New Orleans & Trust Co. v. Seavey, 383 So.2d 354 (La.1980). The Louisiana Supreme Court has held that a legislative act constitutional on its face can only be enjoined if unconstitutionally administered or applied. Singlemann v. Davis, 240 La. 929, 125 So.2d 414 (1960). That reasoning applies with equal force to the situation before us. Thus, it was incumbent upon Mr. Freeman to demonstrate the uneonstitutionality of the line item veto as exercised and applied. This, we think, he has not done. Absent that showing, the preliminary injunction should not have issued.

There are two additional reasons why the trial court erroneously issued the preliminary injunction in this case. The first reason is based upon the purpose to be served by the issuance of the preliminary injunction; the second, on the concept of separation of powers.

A preliminary injunction is essentially an interlocutory order issued in summary proceedings incidental to the main demand for permanent injunctive relief. It is designed to and serves the purpose of preventing irreparable harm by preserving the status quo between the parties pending a determination on the merits of the controversy. Schwegmann Bros. G.S. Markets v. Louisiana Milk Com’n, 290 So.2d 312 (La.1974). Before issuing the preliminary injunction, the trial court should consider also whether the threatened harm to the plaintiff outweighs the potential for harm or inconvenience to the defendant and whether the issuance of the preliminary injunction will disserve the public interest. Ledet v. Fischer, 548 F.Supp. 775 (M.D.La.1982); Dumas v. Treen, 551 F.Supp. 1156 (M.D.La.1981).

In the present controversy, the issuance of the preliminary injunction, rather than preserving the status quo, effectively mandated the expenditures of the vetoed funds from the state treasury at a time of declining state revenues and uniform budget cuts. While the plaintiff has ample opportunity to prove his case on the merits after full trial by ordinary proceedings, the State may have little opportunity to recover those funds once spent. Under these circumstances, because the threatened harm to the defendant outweighs the plaintiffs’ need for a preliminary injunction, and because the public interest is better served by fiscal restraint, the preliminary injunction should not have been issued.

Moreover, the Louisiana Supreme Court stated in Plaquemines Parish Com’n Council v. Perez, 379 So.2d 1373, 1382 (La.1980):

Because an injunction constitutes a form of active judicial interference with continuing activities, the courts have been very reluctant to grant such a remedy for the actions complained of by those of departments of executive and legislative branches of government, in the exercise of their authority. In Durrett Hardware & Furniture Company v. City of Monroe, 199 La. 329, 340, 5 So.2d 911, 915 (1942), this court noted:
“Under our system of government providing for distribution of powers between the legislative, executive and judicial departments, it is of vital importance that no one department unduly interfere with or hinder any other department while the latter is acting or assuming to act within the scope of the particular powers reserved to it....”

Serious constitutional questions are raised by this controversy: What is the precise amount of money which must be appropriated to the Lieutenant Governor in order to provide him with the practical and effective means for fulfilling his constitutional duties? What is the minimum number of staff employees that a Lieutenant Governor must have to carry out those duties? When may the Governor validly exercise his veto power over such appropriations without disabling the Office of Lieutenant Governor? To the extent these questions are justiciable, they are better answered in ordinary proceedings after a full trial on the merits. In this case, the trial court should not have issued the preliminary injunction based upon a summary resolution of issues of this magnitude.

Since we reverse the trial court's issuance of the preliminary injunction, we will not discuss the propriety of the trial court’s refusal to grant defendants a sus-pensive appeal.

REVERSED.

      . LSA-Const. Art. IV, sec. 5(G)(1) provides in part: "Except as otherwise provided by this constitution, the governor may veto any line item in an appropriation bill. Any item vetoed shall be void unless the veto is overridden as prescribed for the passage of a bill over a veto.” (Emphasis added.)

      . LSA-R.S. 39:57(B) provides:
      The expenditures of the budget units for which appropriations are made in the General Appropriations Act and the incurring of obligations to spend money shall conform strictly to the category of expenditures as specified in the appropriations established therein in the budget of each budget unit. The commissioner of administration, with the approval of the Legislative Budget Committee or its successor, is authorized to approve the transfer of funds, except those funds appropriated for salaries, step increases, and merit increases for personnel of the state of Louisiana from one category of expenditure to another, but such transfers shall only be made when sufficient evidence is presented to both the commissioner of administration and the Legislative Budget Committee or its successors, by submitting the request and evidence of the need for the change to both parties at the time of the initial request indicating that the operations of the unit are being or will be impaired without such transfers. AH unauthorized transfers from one allotment category to another will be charged against the appropriation for the next year; provided, however, that the division of administration, by unilateral action, may approve the transfer of funds, exclusive of salaries, which in the aggregate do not exceed twenty thousand dollars.

      . LSA-R.S. 49:202 provides: "The salary of the lieutenant governor shall be sixty-three thousand three hundred sixty-seven dollars per an-num, payable monthly on his own warrant.”

      . We do not decide whether the two other petitioners, Mary Olive Pierson and F. Barry Mari-onneaux, as citizens and taxpayers, have a sufficient connexity to the controversy to support their claim of standing.

      . Mr. Freeman relies on State ex rel. Brotherton v. Blankenship, 157 W.Va. 100, 207 S.E.2d 421 (1973) and Board of Elementary & Secondary Ed. v. Nix, 347 So.2d 147 (La.1977). In Blankenship, the West Virginia Supreme Court held unconstitutional a gubernatorial veto, similar to the one here, which eliminated all funding to the offices of the Secretary of State and the State Treasury, except the constitutionally mandated salary of the offices, because it left the offices without any effective means by which to operate. In the present case, however, $164,-038.00 was provided to the office of lieutenant governor. Blankenship is therefore distinguishable.
      In Nix, the Louisiana Supreme Court held unconstitutional the repeal of a certain statute which had allowed the Board of Elementary and Secondary Education to employ and fix the salaries of staff "necessary” to assist the board in administering its affairs. The court said the repeal had the effect of requiring the board to rely upon staff services and personnel selected and employed by the Superintendent of Education, and therefore unconstitutionally infringed upon the board’s constitutionally conferred policy-making functions. The court went on to say, however, that “we [do not] mean to imply that the board may unilaterally determine what employees are necessary for its performance of its constitutional function. The legislature, of course, itself has a constitutional power to pass upon requests of state agencies for funding of requested staff_” Nix, 347 So.2d at 156.
      Gov. Treen’s veto did not have the effect of requiring Mr. Freeman to rely on personnel not of his own choosing; while, at the same time, it is a constitutional power, similar to the legislature’s, which allows the governor to pass on certain requests for funding. To that extent, Nix is also distinguishable from the present case. But whether Nix or Blankenship supports Mr. Freeman's argument that his office has been effectively abolished is a decision better made after a full trial on the merits.


source: Caselaw Access Project

author: NORRIS, Judge.

license: Public Domain

text:
    MISSISSIPPI RIVER TRANSMISSION CORPORATION, Plaintiff-Appellant, v. George B. SIMONTON, Sheriff and Ex-Officio Tax Collector, Lincoln Parish, Louisiana, Defendant-Appellee.
    No. 15788-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      Shotwell, Brown & Sperry by Burt W. Sperry and James H. Napper, II, Monroe, for plaintiff-appellant.
    Barham, Adkins & Tatum by T.J. Adkins and R.W. Farrar, Jr., Ruston, for defendant-appellee.
    Before FRED W. JONES, Jr., SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Mississippi River Transmission Corporation appeals from a judgment rejecting its demands for the return of ad valorem taxes paid under protest pursuant to the provisions of La.R.S. 47:2110 to the sheriff and tax collector for Lincoln Parish and denying attorney’s fees to the defendant. For the reasons hereinafter discussed, we affirm the judgment in its entirety.

The facts giving rise to this litigation are undisputed and are set forth as follows: On January 25, 1978, Mississippi River Transmission Corporation (hereinafter referred to as “Mississippi”) filed a petition pursuant to La.R.S. 47:2110 praying for the refund of ad valorem taxes for the tax year 1977 attributable to its natural gas inventory stored in its underground storage facilities known as the East Unionville and West Unionville Storage Fields in Lincoln Parish, Louisiana. On December 21, 1978, Mississippi moved and it was ordered that the ad valorem taxes for the tax year 1978 on the stored gas be included in the suit and the amount paid be segregated and held by the tax collector pending the outcome of the suit. On December 27, 1979, the 1979 protested taxes were included within the coverage of this suit on motion of Mississippi and by order of the district court. Likewise, the 1980 taxes were included in this suit by motion and order filed December 31, 1980. By joint motion and order, Wayne Houck, the successor to George B. Simonton as Sheriff of Lincoln Parish, was substituted as the proper party defendant in this action. Mississippi filed an answer and reconventional demand in which it sought attorney’s fees.

Mississippi is a “natural gas company” as defined by the Natural Gas Act, 15 U.S.C. 717, et seq., subject to federal jurisdiction and regulation. Mississippi owns and operates an interstate natural gas pipeline system by which it transports and sells natural gas in interstate commerce. As a part of this system, Mississippi owns and operates underground natural gas storage reservoirs located in Lincoln Parish, Louisiana. These reservoirs are known as the East Unionville and the West Unionville Storage Fields (hereinafter collectively referred to as “storage fields”).

Mississippi’s storage fields and the system to transport gas to and from the storage fields were acquired and constructed and are operated and maintained by Mississippi pursuant to certificates of public convenience and necessity as required by the Federal Energy Regulatory Commission (hereinafter referred to as “FERC”) and its predecessor. All necessary orders and permits were also obtained from the Louisiana Department of Conversation, now known as the Office of Conservation.

Mississippi’s storage operations were initiated in order to serve its existing contractual customers in an orderly and uninterrupted fashion. All gas stored in the storage fields is committed to these contractual obligations. Storage operations commenced in the West Unionville Storage Field in 1969 and in the East Unionville Storage Field in 1973. These storage operations have been continuous since they were begun. The storage operations were not commenced or continued by Mississippi because it had surplus, uncommitted natural gas or because of “take or pay” contract problems with producers from whom it purchases natural gas. These storage fields are natural reservoirs selected by Mississippi due to their physical characteristics, adaptability to storage facilities and the volume of natural gas they would contain.

Natural gas enters Mississippi’s interstate system at various points in Louisiana and Texas. From the moment the gas enters Mississippi’s pipelines, it is committed to its customers in Arkansas, Missouri and Illinois, which it serves pursuant to certificates of public convenience and necessity issued by FERC. The system, the natural gas placed therein and the sales therefrom are certificated and subject to regulation by federal agencies, including principally the FERC. Mississippi makes no sales in the State of Louisiana of the natural gas that is withdrawn from the storage fields.

“Native”, “Cushion”, and “Working” gas comprise the categories of natural gas that are in the storage fields. Native gas consists of natural gas which was not recovered when the field was producing. Cushion gas consists of natural gas injected by Mississippi into the storage fields to provide the base pressure required for the operation of the storage fields. Working gas consists of the natural gas stored for varying periods of time in the storage fhlds pending its further transportation and delivery to customers. At all times, the volumes of cushion and working gas injected into and withdrawn from the storage fields are measured and known by Mississippi. The term “gas in storage” refers to both cushion and working gas.

The normal operation of the storage facilities is in two seasons. The “injection” season occurs generally in the summer months when there are periods of lower demand. The “withdrawal” season generally corresponds with the winter months when demands for natural gas are the greatest. While in the storage fields, the gas in storage remains subject to federal certificate and regulatory requirements and to the requirements of Mississippi’s existing contracts which provide for the delivery of gas outside of Louisiana. Mississippi could not divert the gas in storage to an intrastate market nor could Mississippi hold the gas for sale in expectation of increased profits.

Ad valorem taxes for the year 1977 were calculated upon the value of the average monthly volumes of cushion and working gas in the storage fields during 1976, as reported by Mississippi to the Louisiana Tax Commission. Ad valorem taxes for 1978,1979, and 1980 were calculated on the basis of gas in storage as of December 31st of the preceding year. Mississippi has timely paid the ad valorem taxes under protest for each of these years and has timely filed a petition seeking refund of the taxes paid pursuant to La.R.S. 47:2110. No ad valorem taxes were either due or assessed as to native gas.

The total dollar amounts of ad valorem taxes assessed on and attributable to Mississippi’s gas in storage were $326,562.96 for the tax year 1977; $210,246.53 for the tax year 1978; $180,444.21 for the tax year 1979; and $227,693.86 for the tax year 1980. The total dollar amounts of ad valo-rem taxes assessed on and attributable to Mississippi’s cushion gas were $217,850.15 for the tax year 1977; $155,813.70 for the tax year 1978; $106,389.91 for the tax year 1979; and $141,384.87 for the tax year 1980. The amounts attributable to cushion gas account for approximately 66% of the ad valorem taxes collected over the past four years. All of the volume of cushion gas was placed in the storage fields prior to and during the tax year 1977. Of that volume, 79.44% was produced from wells located outside of the state of Louisiana or from Federal Enclaves, and the remaining 20.56% was produced from wells located in the state of Louisiana and outside any Federal Enclave with Louisiana severance taxes having been paid thereon.

The total dollar amounts of ad valorem taxes assessed on and attributable to Mississippi’s working gas were $108,712.81 for the tax year 1977; $54,432.83 for the tax year 1978; $74,054.30 for the tax year 1979; and $86,308.86 for the tax year 1980. Of the working gas injected into the storage fields, the following amounts were produced from wells located outside of the state of Louisiana or from Federal Enclaves: 92.85% during the tax year 1977; 89.98% during the tax year 1978; 89.84% during the tax year 1979; and 82.64% during the tax year 1980. The remaining amounts of working gas injected were produced in Louisiana, and Louisiana severance taxes were paid thereon.

This case was submitted for the trial court’s decision on stipulations and the deposition of William C. Ade, the vice-president of supply and gas control with Mississippi. After considering the stipulations and the testimony of Mr. Ade, the trial court found that the storage fields in question were for the economic benefit and business purposes of Mississippi and rejected the demands of Mississippi. After finding that this was a suit involving the timely payment of taxes under protest, the demand of Mississippi for attorney’s fees was rejected.

Mississippi appeals assigning the following errors:

A. The District Court erred in failing to find that the volumes of cushion and/or working natural gas of the Plaintiff temporarily in storage for the tax years in question were goods in transit in interstate commerce and therefore exempted from state and local ad valorem taxation by the Commerce Clause (Article I, Section 8, Clause 3) and the Supremacy Clause (Article VI, Clause 2) of the United States Constitution.
B. The District Court erred in failing to find that the volumes of cushion and/or working natural gas of the Plaintiff temporarily in storage for the tax years in question were goods in transit in interstate commerce and therefore exempted from state and local ad valorem taxation by Article VII, Section 21(D)(3) of the Louisiana Constitution of 1974 and LSA-R.S. 47:1951.3.
C.The District Court erred in failing to find that the volumes of natural gas of the Plaintiff temporarily in storage for the tax years in question, which were purchased from and delivered to storage from sources outside of Louisiana and which were sold and delivered to customers outside of Louisiana, were exempted from state and local ad valorem taxation by Article VII, Section 21(D)(3) of the Louisiana Constitution of 1974 and LSA-R.S. 47:1951.3.

Defendant has answered the appeal seeking an amendment of the trial court judgment to award attorney’s fees under La. R.S. 47:1998.

Mississippi argues that the decision of the trial court that the gas in storage for the tax years in question was subject to state and local ad valorem taxation was erroneous because all of the volumes of the gas in storage were goods in transit and were subjects of or inseparably used in interstate commerce and were exempted from ad valorem taxes by the Commerce Clause and the Supremacy Clause of the United States Constitution as well as under Article VII, § 21(D)(3) of the Louisiana Constitution of 1974 and La.R.S. 47:1951.3. It is further argued that the “continuity of transit” of the interstate journey of the working gas was not interrupted or broken by the temporary storage of the gas for the tax years under the applicable federal jurisprudence and that the gas remained in interstate commerce while temporarily in storage in Lincoln Parish thereby making the taxes levied thereon an impermissible burden on interstate commerce. It is argued that because all of the volumes of cushion and/or working gas were temporarily in storage for the tax years after their having been purchased from and delivered to storage from sources outside of Louisiana and subsequently sold and delivered to customers outside of Louisiana that they were constitutionally exempted from the taxes levied by the prohibition contained in Article VII, § 21(D)(3) of the Louisiana Constitution of 1974.

An identical argument has been resolved by this court adversely to Mississippi’s position in United Gas Pipe Line Company v. Whitman, 390 So.2d 913 (La.App. 2d Cir.1980). However, Mississippi argues that the instant case is factually distinguishable. In United, the gas company operated a storage facility for natural gas in Bienville Parish, Louisiana, in a large underground geological formation which was formerly a producing natural gas field. Large quantities of working gas were piped primarily from out of state to the storage facility pending its ultimate withdrawal and delivery to out of state consumers during the winter season. United was assessed by the local tax collector for ad valorem taxes for the working and cushion gas in storage and thereafter filed suit for the recovery of the taxes it paid pursuant to La.R.S. 47:2110. United contended that the ad valorem taxes assessed on the working gas in storage were prohibited by the Commerce Clause of the United States Constitution because the gas was in transit in interstate commerce. In United, we held that the immunity from local taxation was lost because the storage of the working gas pending its ultimate withdrawal and delivery to out of state consumers was based on an economic decision of United necessitated by the character of its business, that is, the storage of the gas pending winter demand was an economically expedient method of assuring United the greatest amount of sales. Mississippi argues that the distinguishing features of the United decision are that in United, the long term purchase contracts had been entered into with natural gas producers and contained “take or pay” provisions which required that United either take the gas produced or pay for the annual volume of gas available for delivery. During the mid 1960’s, United’s supply of natural gas exceeded the demand and United elected to build the storage facility to store its excess gas. Although the original purpose of the storage facility was to alleviate “take or pay” problems, this situation did not exist at the time of the suit.

In the instant case, the storage fields were obtained for the purpose of meeting the increasing needs of Mississippi’s existing customers in the most effective manner. “Take or pay” problems were and are not an issue. The storage fields were natural gas fields from which production had been taken. Mississippi acquired these storage fields in 1969 and 1973 because their pipeline facilities and suppliers could not provide as much gas as was needed to supply its customers. Other alternative methods of solving this problem were considered by Mississippi’s management and the decision was made to acquire the storage fields as the most economically feasible method to operate its pipeline effectively to meet its customers’ needs. At the time that the storage fields were acquired, the country was in an “energy crunch”; therefore, Mississippi would have been unable to meet its customers’ needs during the peak season without these fields or some other method of storage. These storage fields are an important part of the continuing daily operation of the company. If the company was unable to utilize these fields, it would have a definite impact on its ability to serve its customers’ needs and the company’s profits. While Mississippi argues that the federal scheme of regulation known as the “Sales Refund Obligation” which requires Mississippi to refund the benefits of any extra sales above annual volume to its resale customers reduces the economic benefits of selling more gas through storage, this regulation is comparatively new and was not a consideration in the determination to utilize the storage fields in Lincoln Parish.

The trial court found that the storage of gas in Lincoln Parish was for an economic purpose and business benefit to Mississippi. This finding is supported by the record; thus, we cannot find that it is clearly wrong. Accordingly, the United decision is not factually distinguishable and the legal principles applied therein are equally applicable here. In United, we stated:

The commerce clause prohibits taxation by the states of property which is in transit in interstate commerce. However, by reason of a break or interruption in the interstate transit, the property may be deemed to have come to rest within a state and become subject to the power of the state to impose a non-discriminatory property tax. The crucial question to be settled in determining whether property moving in interstate commerce is subject to local taxation is that of its “continuity of transit.” Carson Petroleum Co. v. Vial, 279 U.S. 95, 101, 49 S.Ct. 292, 293, 73 L.Ed. 626, 629 (1929).
The general rule is that the interstate transit is continuous and the property is not subject to local taxation where the storage or delay is due to transportation, safety, or natural cause reasons. This immunity from local taxation is lost where the interruption is due to an intentional detention for the beneficial and business purposes and convenience of the owner. Enterprise Products Co. v. Whitman, 364 So.2d 634 (La.App. 2d Cir.1978) writ denied 366 So.2d 916 ([La.] 1979). “The question is always one of substance, and in each case it is necessary to consider the particular occasion or purpose of the interruption during which the tax is sought to be levied.” Independent Warehouses v. Scheele, 331 U.S. 70, 73, 67 S.Ct. 1062, 1065, 91 L.Ed. 1346, 1353 (1947).
The resolution of the present case requires the application of these well settled legal principles to the facts before us to determine the reason or purpose behind United’s decision to place the natural gas in storage in Bienville Parish.
⅜ sfc sjs * * *
We are of the opinion that the storage of the working gas in Bienville Parish pending its ultimate withdrawal and delivery to out of state consumers is based on an economic decision of United necessitated by the character of its business. * * * The storage of this gas pending winter demand is an economically expedient method of assuring United the greatest amount of sales. The commerce clause of the United States Constitution does not prohibit the taxing of this gas in storage.

Applying these well settled legal principles to the facts presented, we adhere to our opinion in United Gas Pipe Line Company v. Whitman, supra, and hold that because the storage of this gas pending its ultimate withdrawal and delivery to out of state customers is based upon an economic decision of Mississippi necessitated by the character of its business and is an economically expedient method of assuring Mississippi the greatest amount of sales, that the commerce clause of the United States Constitution does not prohibit the taxing of this gas in storage.

Further adhering to this opinion and our earlier opinion in Enterprise Products Co. v. Whitman, 364 So.2d 634 (La.App. 2d Cir.1978), we additionally hold that Louisiana Constitution Article VII, § 21(D)(3) is essentially a codification of Federal law as it existed at the time of the enactment of its predecessor provision and exempts goods and commodities stored in transit in interstate commerce which the state would have been prohibited from taxing under existing Federal law. Because the gas in the instant case was stored by Mississippi for its business purposes, it cannot be considered to be in transit in interstate commerce and there is no exemption from taxation under the Louisiana constitutional provision because the applicable exemption relates only to goods or commodities in transit. La.R.S. 47:1951.3 is simply a statutory effectuation of this constitutional provision and compels the same result. See United Gas Pipe Line Company v. Whitman, supra; Enterprise Products Co. v. Whitman, supra.

This suit was brought by Mississippi under La.R.S. 47:2110 attacking the legality of the ad valorem taxes levied on the gas in storage in Lincoln Parish and seeking the recovery of the taxes paid under protest. There is no provision in this statute requiring payment of attorney’s fees for the tax collector by the unsuccessful taxpayer. The contention that recovery is allowed under La.R.S. 47:1998 is without merit. United Gas Pipe Line Company v. Whitman, supra; Enterprise Products Co. v. Whitman, supra.

Accordingly and for the foregoing reasons, the judgment of the trial court is affirmed in its entirety at the cost of appellant.

JUDGMENT AFFIRMED.

      . La.R.S. 47:2110 provides:
      A. No court of this state shall issue any process whatsoever to restrain the collection of an ad valorem tax imposed by the state, or by any political subdivision thereof, under authority granted to it by the legislature or by the constitution. Any person resisting the payment of any amount of tax found due, or the enforcement of any provision of the tax laws in relation thereto, shall pay the amount found due to the officer designated by law for the collection of such tax and shall give the officer notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by the officer for a period of thirty days. If suit is filed within such time for the recovery of the tax, such amount so segregated shall be further held pending the outcome of the suit. If the taxpayer prevails, the officer shall refund the amount to the taxpayer with interest at the rate of two per centum per annum for the period from the date such funds were received by the officer to the date of such refund.
      B. The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action in any state or federal court having jurisdiction of the parties and subject matter for a full and complete adjudication of any and all questions arising in the enforcement of such right respecting the legality of any tax accrued or accruing or the method of enforcement thereof. In any such suit, service of process upon the officer designated by law for the collection of the tax shall be sufficient service, and he shall be the sole necessary and proper party defendant in any such suit.
      C.The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action at law in the state or federal courts where any tax or the collection thereof is claimed to be an unlawful burden upon interstate commerce, in violation of any act of the Congress of the United States, the Constitution of the United States, or the constitution of the state, or in the federal courts in any case where jurisdiction is vested in any of the courts of the United States. Upon request of a taxpayer and upon proper showing by such taxpayer that the principle of law involved in an additional assessment is already pending before the courts for judicial determination, the taxpayer, upon agreement to abide by the pending decision of the courts, may pay the additional assessment under protest but need not file an additional suit. In such cases the tax so paid under protest shall be segregated and held by the officer designated by law for the collection of such tax until the question of law involved has been determined by the courts and shall then be disposed of as herein provided.
      D. The right of action provided in this section shall be in addition to any rights elsewhere provided in this Sub-title, including R.S. 47:1998, affording taxpayers an opportunity to test the legality or correctness of their assessments or ad valorem taxes paid under protest before the courts of state.
      E. Any taxpayer in the state who has paid his taxes under protest as provided in Subsection A above, and who has filed suit under the provisions of R.S. 47:1856, R.S. 47:1857, or R.S. 47:1998, shall cause to issue in said suit notice to the officer or officers designated for the collection of said taxes in the parish or parishes where the property is located, and such notice shall be sufficient to cause said officer or officers to further hold said amount segregated pending the outcome of the suit.

      . Louisiana Constitution Article VII, § 21(D)(3) provides: ■
      Section 21. In addition to the homestead exemption provided for in Section 20 of this Article, the following property and no other shall be exempt from ad valorem taxation: ******
      (D)(3) Goods, commodities, and personal property in public or private storage while in transit through this state which are moving in interstate commerce though or over the territory of the state or which are in public or private storage within Louisiana, having been shipped from outside Louisiana for storage in transit to a final destination outside Louisiana, whether such destination was specified when transportation began or afterward.

      . La.R.S. 47:1951.3 provides:
      For the purpose of ad valorem taxation, raw materials, goods, commodities and personal property stored in transit in the state while moving in interstate commerce shall not be treated as incorporated into the mass of the property in this state during the time that such raw materials, goods, commodities or personal property, received from outside the state, are held by any owner in public or private storage to be shipped to a point outside the state of Louisiana, whether specified when transportation begins or afterward.
      All such property whether entitled to exemption or not shall be reported to the proper taxing authority on the forms required by law.

      . La.R.S. 47:1998 provides:
      A.Any taxpayer in the state dissatisfied with the action of the tax commission under the provisions of R.S. 47:1989 shall have the right to institute suit within thirty days of the decision of the tax commission in either the district court for the parish where the tax commission is domiciled or the district court of the parish where the property is located contesting the correctness of assessment. Any taxpayer who owns property assessed in more than one parish may institute this suit in either the district court for the parish where the tax commission is domiciled or the district court of any one of the parishes in which the property is located and assessed. Any taxpayer who has filed suit under this provision and whose taxes have become due shall pay said taxes under protest and shall cause to issue notice to the officer designated by law for the collection of such tax under the provisions of R.S. 47:2110(E).
      B. Any taxpayer in the state shall have the right to institute suit in either the district court, for the parish where the tax commission is domiciled or the district court of the parish where the property is located, for the purpose of contesting the correctness or legality of any change in assessment made against the property under written instructions of the tax commission, pursuant to R.S. 47:1990, which suits must be instituted within thirty days after the date of the written instructions of the tax commission ordering the change. Any taxpayer in the state who has filed suit under these provisions and whose taxes have become due shall pay said taxes under protest and shall cause to issue a notice to the officer designated by law for the collection of such tax under the provisions of R.S. 47:2110(E).
      C. The assessor shall bring suit, when necessary to protect the interest of the state, and shall also have the right of appeal and such proceedings shall be without cost to him or the state.
      D. In all suits relating to property taxes the judge shall hear and try such cases without delay, in chambers if necessary, without cost to the reviewers or the assessors.
      E. The plea of estoppel shall never be allowed by the court of this state in matters of local or municipal assessments where there are radical defects in the proceedings leading up to such local assessments, but such plea shall have full effect as against mere subsequent irregularities or informalities therein where no protest has been made thereto, provided that nothing contained in this Subsection shall apply to the levying of taxes for the security of any issuance of bonds.


author: FRED W. JONES, Judge.

text:
    James E. JONES et al., Plaintiffs-Appellees, v. AMERICAN FIRE-INDEMNITY INSURANCE COMPANY et al., Defendants-Appellant-Appellee.
    No. 15,808-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1983.

      Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendants-appellant-appellee.
    Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for plaintiffs-appel-lees.
    Before HALL, JASPER E. JONES and FRED W. JONES, JJ.
   FRED W. JONES, Judge.

Plaintiffs, husband and wife, were injured when the automobile in which they were riding [owned by the husband’s employer] was struck from the rear by another vehicle. Subsequent to the filing of this suit, settlement was effected with the tort-feasor [an “under-insured” motorist under our law] and his insurer. After a merit-trial, judgment was rendered pursuant to a jury verdict in favor of plaintiffs against the employer’s uninsured motorist (“UM”) carrier. The latter appealed, contending:

(1) The trial judge erred in holding, as a matter of law, that the employer’s comprehensive liability insurance policy, issued and delivered in Texas, provided UM coverage under Louisiana rather than Texas law.
(2) The jury committed error in finding that the plaintiff husband’s injuries were causally related to the rear-end collision, and in making an excessive award.
(3) The trial judge erroneously awarded legal interest from date of judicial demand rather than from date of judgment.

Plaintiffs also appealed, asserting that the jury award of $267,000 in damages to the husband was inadequate.

For the reasons hereinafter detailed, we affirm.

Context Facts

On May 23, 1979, James Jones, accompanied by his wife, Mary, and their children, was driving a car owned by his employer, Cameron Iron Works, Inc. (“Cameron”) in Caddo Parish, where the family resided. Jones, employed by Cameron since 1969, was a sales and service representative who was furnished the automobile as an employment fringe benefit. While stopped for a traffic light, the motor vehicle driven by Jones was struck forcefully from the rear by a car operated by Roger Donahue, also a resident of Caddo Parish.

This litigation ensued.

According to a stipulation entered into between the plaintiffs and Cameron’s automobile liability insurer, Compass Insurance Company (“Compass”), the following pertinent facts were established:

(1) Cameron, with its primary place of business in Houston, is qualified to do business in Texas and Louisiana.
(2) Cameron owns motor vehicles principally garaged and primarily utilized both in Texas and Louisiana. The vehicle in question was registered in Louisiana and had Louisiana license plates.
(3) Compass is qualified to do business both in Texas and Louisiana.
(4) Compass issued and delivered to Cameron in Texas a comprehensive automobile liability insurance policy covering its motor vehicles, including the car driven by Jones. There was no written rejection of UM coverage in connection with issuance of this policy.
(5) The minimum Texas UM coverage requires benefits of $10,000 per person and $20,000 per occurrence for bodily injury or death.

The policy issued by Compass to Cameron provided for single limits liability coverage of $500,000. The parties agreed that the issue of UM coverage was a question of law which should be decided by the trial judge and not the jury. Pursuant thereto, the trial judge ruled:

“It [the insurance policy] was executed and delivered in the State of Texas, but meant to, specifically, apply in Louisiana, to a Louisiana vehicle, titled in Louisiana, driven in Louisiana, stationed in Louisiana, the Louisiana law should have been complied with.
“[t]here is no mention of uninsured motorists insurance ... And so, it’s my opinion that the Louisiana uninsured motorists provision applies. Which means there is $500,000.00 worth of uninsured motorists protection, for the accident.”

After the merit-trial in March 1983, and pursuant to a jury verdict, judgment was rendered against Compass in favor of James Jones for $267,000 and in favor of Mrs. Mary Jones for $55,000, with interest on each award running from judicial demand, and with each award subject to a credit of $25,000 because of the prior settlement with the tortfeasor.

UM Coverage

Defendant Compass argues that, since the liability insurance policy was issued by a Texas insurance company to a Texas corporation and delivered in Texas, the Texas UM law [with its minimal mandatory coverage] should apply rather than the Louisiana UM statute.

In Jagers v. Royal Indemnity Company, 276 So.2d 309 (La.1973), our supreme court adopted an “interest analysis” as the proper vehicle for resolving conflicts of law problems in this state. As a result, Louisiana law was applied to a damage suit in this state between two Louisiana residents arising out of an accident in Mississippi.

We extended this rationale to contract law in Sutton v. Langley, 330 So.2d 321. (La.App. 2d Cir.1976). There, a Texas resident sued a Louisiana resident for injuries sustained in a Louisiana automobile accident. The plaintiff also sought to recover under the UM clause of a liability policy issued in Texas. At that time “stacking” of multiple UM coverages was permitted in Louisiana but not in Texas. Utilizing a “balance-of-interests” test to resolve the choice of law problem, we reasoned:

“We realize that Texas is not without interests in the uninsured motorist coverage question. That interest lies in the possible effect the application of Louisiana law might have on insurance rates for such coverage written in Texas for Texas residents. However, it must be said that this interest is minimal when one is dealing with a standard form insurance contract written by an insurer who does business in several, if not all, the states. Also, it must be recognized that in our mobile society the insurer could not reasonably contemplate the insured driving only in Texas and being subject to Texas interpretation of the policy provisions at all times. When Texas’ interest is compared to Louisiana’s interest in the regulation of awards to victims on its highways, and in protecting persons on its highways from damage by uninsured motorists, and in equally assessing the burden of that award to all culpable parties, it must be concluded that the interests of Louisiana prevail.” p. 328

We find that Louisiana has an even greater interest in the application of its law under the facts of this case than it did in Sutton. Here the automobile in question was garaged, registered and licensed in Louisiana. Obviously, the likelihood of the application of the Louisiana UM statute to its insurance policy should have been readily envisioned by Compass. Under these circumstances, the mere fact that the policy was issued and delivered in Texas should not relieve the insurance company of the necessity of complying with the Louisiana UM requirements. Consequently, the trial judge ruled correctly that Louisiana law with reference to UM coverage applied rather than Texas law.

Since Cameron did not reject UM coverage, our law provides for this in an amount “not less than the limits of bodily injury liability provided by the policy.” La.R.S. 22:1406(D). That coverage in this case was $500,000, as held by the trial judge.

The incidental argument of Compass that the liability policy in question is not an automobile liability policy within the meaning of the UM statute because it provided that the $500,000 coverage was subject to a $500,000 deductible is devoid of merit. All motor vehicles registered in Louisiana must be covered by liability insurance or the owner must be certified as self-insured. La.R.S. 32:861. Since Cameron concededly did not fall into the latter category, it was legally required to cover the car driven by Jones with liability insurance — which it purported to do. To permit circumvention of the law by insertion of a deductibility rider equalling the coverage would be contrary to public policy, and we so hold. Of course, any claim that Compass might have for reimbursement from Cameron because of the terms of this insurance policy is not pertinent to this litigation.

In summary, the trial judge did not err in determining that the UM coverage in this case was the sum of $500,000, under the terms of the Louisiana UM statute.

Jury Award to James Jones

Defendant Compass contends that the jury was clearly wrong when it found that Jones’ back condition was caused by the rear-end collision of May 23, 1979, and that its award of $267,000 was excessive.

Immediately following the accident Jones was taken to the emergency room of Schumpert Medical Center in Shreveport. Because of complaints of neck and back pain he was subsequently referred to Dr. Zum Brunnen, an orthopedic surgeon, who examined Jones on May 29, 1979, and on several other occasions in June and July. It was this doctor’s opinion that Jones suffered a mild cervical strain. However, he noted that plaintiff’s complaints of numbness in two toes of his right foot were consistent with an injury to the L-5 region of the patient’s back.

Dr. Etheredge, partner and fellow orthopedic surgeon of Dr. Zum Brunnen, examined Jones on July 23, 1979. Plaintiff was complaining of numbness in his leg and a low back pain which radiated down into his right leg. Dr. Etheredge again saw Jones on August 9 and August 28. He opined that plaintiff’s back complaint was due to the stretching, in the automobile accident, of a surgical scar resulting from a back operation undergone by Jones some years prior thereto.

Dr. Green, another Shreveport orthopedic surgeon, began treating Jones on August 28, 1979. Because plaintiff asserted that he had suffered from severe back and leg pains since the May 1979 rear-end collision, Dr. Green had him admitted to a hospital for evaluation and treatment by a “pain team”. Jones remained hospitalized for 16 days and then was discharged with a diagnosis of chronic low back pain, nerve root irritation, depression and anxiety. In view of the patient’s aversion to surgery, conservative treatment was prescribed and administered over the following months.

During an April 1980 visit Dr. Green found that Jones was complaining of increased back and leg pain. A tentative diagnosis of possible ruptured disc at the 4th and 5th lumbar level was made. Since a myelogram performed on Jones in May 1980 showed a defect in the back, the plaintiff underwent a laminectomy by Dr. Green on May 28, 1980, involving removal of part of the bony spine and incision of the sear tissue in the area of the 5th lumbar. The post-operative diagnosis was epidural scarring of the right 5th lumbar nerve root, which led Dr. Green to believe that the rear-end collision had aggravated scarring around a nerve which followed disc surgery performed on Jones in 1970. As explained by Dr. Green, scar tissue present since the initial back surgery in 1970 was stretched in the 1979 accident, causing the severe pain experienced by Jones.

Subsequent to the May 1980 laminecto-my, Jones was reported by Dr. Green to have experienced the following periods of hospitalization:

(1) October 9, 1981-October 13, 1981; diagnosis — depressive neurosis.
(2) April 1, 1982-April 5, 1982; diagnosis — musculo-ligamentous sprain of lumbar spine; physical therapy, traction prescribed.
(3) July 26, 1982-July 30, 1982; diagnosis — lumbo-sacral and musculoliga-mentous sprain. Also experiencing emotional problems.
(4) October 22, 1982-November 8, 1982; recurrent back and leg complaints and emotional problems.

Dr. Green concluded by stating that the 34 year old plaintiff was totally and permanently disabled because of his psychological problems and back condition.

Dr. Green referred Jones to Dr. Seiden, a Shreveport psychiatrist, who examined and treated plaintiff during the latter’s stay at a private mental hospital from September 29, 1982 until October 7, 1982. The diagnosis was “adjustment disorder with a depressed mood, severe depression with rage response.” Dr. Seiden believed that Jones was experiencing chronic back pain which increased his psychological problems which, in turn, caused an increase in the pain. He considered the plaintiff to be totally disabled from performing any gainful employment, and recommended six months of- intensive in-patient psychiatric treatment.

Jones had also been examined and treated by Dr. Kimbell, another Shreveport psychiatrist.

Compass argues that Jones’ back condition was attributable, not to the May 1979 rear-end collision, but to the strenuous manual labor performed in connection with his employment — as described in detail by other Cameron employees. Their testimony showed that plaintiff continued working for Cameron after the accident, purportedly engaging in rather demanding physical tasks, until he was fired on September 17, 1979.

The implied jury conclusion that there was a causal connection between the rear-end collision of May 1979 and plaintiff’s back condition was a finding of fact which we may not disturb in the absence of manifest error. Soileau v. South Central Bell Telephone Co., 406 So.2d 182 (La.1981). In view of the fact that Jones was able to work prior to the accident, the force of the collision, the complaints of back and leg pain immediately following the collision, and the overwhelming weight of the medical testimony to the effect that there was a logical relation between the trauma of the accident and the back ailment with its concomitant psychological disturbance, we cannot say that the jury was clearly wrong in its factual conclusion.

We turn now to the argument of Compass leveled at the alleged excessiveness of the award and that of Jones at its alleged inadequacy.

It is impossible for us to discern from the record exactly what portion of the award to Jones was allotted by the jury to general damages and what portion to special damages. Past medical expenses appeared to have been in the neighborhood of $20,000. Dr. Harju, a college economics professor, calculated that plaintiff’s lost wages and fringe benefits would amount to $656,575, assuming total and permanent disability. However, viewing all of the medical evidence in a light most favorable to plaintiff, the jury could reasonably have concluded that plaintiff’s psychological disturbance [apparently his most significant residual disability] could be alleviated by proper treatment, as attested to by Dr. Seiden. Therefore, there was record evidence to support a jury conclusion that plaintiff was not permanently foreclosed from gainful employment.

For these reasons, we cannot say that the jury award of $267,000 in favor of James Jones was either excessive or inadequate.

Running of Legal Interest

Defendant Compass asserts that the trial judge erred in decreeing that legal interest should run from date of judicial demand rather than date of judgment, citing in support thereof Guidroz v. Tauzin, 413 So.2d 682 (La.App. 3rd Cir.1982). There, relying upon the case of Hoefly v. Government Employees Insurance Company, 403 So.2d 853 (La.App. 2d Cir.1981), the court found that liability of the UM carrier was only in contract and that there was no solidary liability with the tortfeasor. Consequently, interest was to run from date of judgment. We note, however, that our Hoefly case was reversed by the supreme court in an opinion reported at 418 So.2d 575 (La.1982), in which the court found that the liability of the UM carrier and the tortfeasor was solidary, since they are “obliged to do the same thing.”

A judgment against the tortfeasor would have carried legal interest from date of judicial demand. La.R.S. 13:4203. Since the UM carrier is solidarily liable with the tortfeasor, it stands to reason that a judgment against it should also bear legal interest from date of judicial demand rather than date of judgment. The trial judge ruled correctly on this issue.

Decree

For the reasons set forth above, we affirm the judgment of the district court, with costs of appeal assessed one-half to plaintiffs and one-half to defendant.


text:
    STATE of Louisiana v. Lionel REED. In Re State of Louisiana.
    No. K-1642.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 6, 1983.
    Writ Denied Dec. 6, 1983.
    Harry F. Connick, Dist. Atty., Stephen Katzman, Asst. Dist. Atty., New Orleans, for relator.
    Milton P. Masinter, New Orleans, for respondent.
    Before WARD, KLEES and LOBRANO, JJ.
   ORDER

Writ granted. We reverse the Trial Judge’s ruling. We believe the testimony of the officers and the evidence seized is admissible. We distinguish this case from State v. Banks, 439 So.2d 407 (La.1983). We believe the Trial Judge erroneously construed Banks to mean that all evidence of probable cause to make an arrest must be excluded. We interpret Banks to mean that the hearsay evidence that established probable cause, to-wit, the unsworn statement of a confidential informant, is inadmissible because the informant cannot be confronted or cross-examined. In the instant case, the officers observed a hand to hand sale, there was probable canse to arrest both the purchaser and the seller, and the testimony of what the officers observed and the evidence seized after the arrest of both the purchasers and the seller is admissible. Hearsay statements are inadmissible, but testimony that a witness present in court gives, as to what he observed or as to what he seized is admissible. There is no denial of a right of confrontation or the right to cross-examine in the instant case.

Additionally, La.C.Cr.P. art. 703(F) provides in pertinent part: “... Failure to file a motion to suppress evidence in accordance with this Article prevents the defendant from objecting to its admissibility at the trial on the merits on a ground asserta-ble by a motion to suppress.”

Defendant is not obligated to accept at face value assertions by the State that a motion to suppress will not lie.


author: CURRAULT, Judge.

text:
    COLISEUM HOUSE, INC. d/b/a Coliseum House Hospital v. Henry J. BROCK.
    No. 83-CA-511.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Rehearing Denied Jan. 17, 1984.

      Wilbur Woods Reynaud, Lutcher, for defendant/third-party plaintiff-appellee, Henry J. Brock.
    Eugene R. Preaus, Virginia N. Roddy, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendant/third-party defendant-appellant, Protective Life Ins. Co.
    Before CHEHARDY, CURRAULT and DUFRESNE, JJ.
   CURRAULT, Judge.

This appeal arises from a judgment against third-party defendant, Protective Life Insurance Company (Protective) for benefits under a hospitalization policy insuring third-party plaintiff Henry J. Brock.

A review of the facts leading to the action between the parties reveals that on January 1, 1971, Protective Life Insurance Company issued group policy No. GD-3164-023 to the St. James Parish School Board under which qualified employees and their covered family members could become insured subject to the terms and conditions of that policy. Henry J. Brock, an employee of the school board, became insured under the policy; and, under the terms of said policy, Blane Brock, his son was eligible for certain medical benefits.

The Insuring Clause in the supplement to Group Policy No. GD-3164-023 which provides for major medical expense benefits limits benefits for the treatment of mental or nervous disorders to a maximum of Two Thousand Five Hundred Dollars ($2,500) during any one calendar year.

During the calendar year 1978, claims on behalf of Henry J. Brock were submitted to Protective Life Insurance Company (Protective) for expenses incurred in the treatment of his son who had been hospitalized at Ochsner Foundation Hospital (Ochsner) and Coliseum House (Coliseum) for treatment of a mental and/or nervous condition. In 1978, Protective paid basic benefits in the amount of Three Thousand Eight Hundred Twenty-Two Dollars and Eighty Cents ($3,822.80) to Ochsner and Three Thousand Twenty-Seven Dollars and Twenty Cents ($3,027.20) to Coliseum for a total of Six Thousand Eight Hundred Fifty Dollars ($6,850). Additionally, it paid major medical benefits of One Thousand Four Hundred Forty-Two Dollars and Eighty-One Cents ($1,442.81) to Ochsner and One Thousand Fifty-Seven Dollars and Nineteen Cents ($1,057.19) to Coliseum, totaling Twenty-Five Hundred Dollars ($2,500) for the treatment of Blane Brock.

In May and June, 1978, in response to billing by Coliseum, Henry J. Brock was advised by Protective that it had paid the maximum benefits available for the calendar year 1978. Although Blane Brock was hospitalized during May and June, 1978, and later in that year, no further claims were made upon Protective pursuant to the maximum benefits of the contract.

On January 31, 1980, Coliseum filed a petition on open account claiming that Henry J. Brock was indebted to them for Twenty-One Thousand Ninety-Four Dollars and Sixteen Cents ($21,094.16). Henry J. Brock thereafter filed a third-party demand against Protective, claiming that pursuant to LSA-R.S. 22:213.2, Protective was obligated to offer benefits for treatment of mental disorders under the same condition as benefits for the treatment of other illnesses. The third-party demand filed December 2, 1981, also contained a demand for penalties and attorney’s fees.

Protective answered the third-party demand denying its liability for the benefits claimed and denying the applicability of LSA-R.S. 22:213.2 to the policy of insurance at issue which was originally issued four years prior to the enactment of that statute.

A motion for summary judgment was filed on behalf of Protective on March 31, 1982, argued on April 20, 1982, and denied. Trial in this matter was held on June 10, 1982.

Following trial, appellant filed a peremptory exception of prescription under the terms of the contract.

On February 18, 1983, judgment was rendered in favor of plaintiff, Coliseum, and against defendant, Henry Brock, on the main demand and in favor of the defendant and against the third-party defendant, Protective, on the third-party demand. Protective filed a motion for new trial which was denied. It is from the judgment against the third-party defendant Protective which is now before this court on appeal.

Appellant Protective assigns the following as error by the trial court:

(1) The trial judge erred in denying appellant’s motion for summary judgment;

(2) The trial judge erred in overruling appellant’s exception of prescription;

(3) The trial judge erred in denying appellant’s motion for new trial.

The following issues are presented for our consideration:

(1) Whether the demand of the insured against the insurer had prescribed prior to filing of the third-party demand against the insurer;

(2) Whether LSA-R.S. 22:213.2 is applicable to a contract of insurance negotiated prior to its enactment; and, if so, whether the policy of insurance issued to the policyholder at the commencement of each annual term constituted a “new policy” within the terms of LSA-R.S. 22:213.2.

In order to facilitate our analysis of the issues, the court will address the second issue first in consideration of the effect our determination has on the prescription question.

Appellant argues that LSA-R.S. 22:213.2 is inapplicable to a contract of insurance first negotiated prior to its enactment and that the annual renewal does not constitute a “new policy” within the terms of the statute. The statute, added in 1975 to Title 22 of the Louisiana Revised Statutes of 1950, provides that:

“Every insurer authorized to issue policies of health and accident insurance in this state shall offer to all prospective group, blanket, and franchise policyholders at their option a provision in the insurer’s health and accident insurance policies which shall state that benefits shall be payable for services rendered for the treatment of mental and/or nervous disorders, under the same circumstances, conditions, limitations, and exclusions as benefits are paid under those policies for all other diagnoses, illnesses, or accidents; .... ” (Emphasis added)

The statute also provides that it “shall be applicable only to those policies issued on or after July 1, 1976.” Appellant asserts that the policy was issued in 1971, and that the trial court’s application of the statute to the contract is an improper retroactive application of a law, citing LSA-C.C.P. art. 8. We agree that as a general rule, “laws are deemed to be prospective in effect unless their language clearly indicates otherwise.” Green v. Liberty Mutual Ins. Co., 352 So.2d 366 (La.App. 4th Cir.1977), writ denied 354 So.2d 210 (La.1978); Guillory v. McClinton, 359 So.2d 223 (La.App. 1st Cir.1978).

LSA-R.S. 22:213.2 does not provide for retroactive-effect; however the trial court found that by the express provisions of the policy, each new annual term constituted a new contract and under the law reformed the contract so as to include the provisions of the statute during the period appellee’s son was hospitalized.

The contract herein states that:

“The initial term of this Policy shall commence at 12:01 A.M. (standard time at the Policyholder’s principal address as shown on the application) on the effective date of this Policy and end on the day immediately preceding the first renewal date. On the first renewal date of this Policy and on the same date in each year thereafter (the date of subsequent renewal dates) this Policy, if then in force, shall be automatically extended for a term of one year commencing with the renewal date and ending with the day immediately preceding the next renewal date unless the Policyholder or the Company has given to the other written notice at least thirty days prior to the end of the then current term that it does not desire to extend this Policy for an additional term.”

Thus, under the contract, there is no absolute right to insurance beyond one year. In such instances, each subsequent renewal is a separate contract, even though a new policy is not involved. Courville v. State Farm Mutual Automobile Insurance Company, et al., 393 So.2d 703 (La.1981); Fontenot v. State Farm Mutual Ins. Co., 119 So.2d 588 (La.App. 1st Cir.1960).

The statute herein was effective July, 1976. As the insurance contract renewed on January 1, 1977 was a new contract, the trial court correctly determined that at that time the statute became effective as to appellant, Protective.

Finally, reformation of a policy is appropriate where a violation of the statute occurs and no remedy is provided by the Insurance Code. Rudloff v. Louisiana Health Services & Indemnity Co., 385 So.2d 767 (La.1979); on rehearing (1980). See also Block v. Reliance Ins. Co., 433 So.2d 1040 (La.1983). In regard to the statute before us, the court in Burke v. Occidental Life Ins. Co. of California, 416 So.2d 177, 179 (La.App. 4th Cir.1982) noted:

“It is not unlawful for an insurance company to provide different coverage for physical and mental illnesses within the same policy, as long as the insured is given the opportunity to obtain similar coverage for mental and/or nervous disorders on the same terms as coverage for other diagnoses, illnesses, or accidents.”

Where, as here, the insurance company has failed to offer similar mental disability coverage, the policyholder is presumed to have opted for equal coverage. Burke, supra; Rudloff, supra. As the trial court correctly found LSA-R.S. 22:213.2 applicable to appellant, coverage as stipulated to by the parties in the amount of Ten Thousand Seven Hundred Dollars and Fifty-Three Cents ($10,700.53) is owed absent the impediment of contractual prescription.

The policy clause related to prescription provides as follows:

“[n]o action at law or in equity shall be brought to recover under ... [the] Policy prior to the expiration of sixty days after written proof of loss has been furnished in accordance with the requirements of ... [the] Policy. No such action shall be brought after the expiration of three years after the time when proof of loss is required by ... [the] Policy.”
Proof of loss is required,
“within 90 days after the termination of the period for which the Company is liable, and in case of claim for any other loss, within 90 days after the date of such loss. Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible, and in no event, except in the absence of legal capacity of the employee, later than one year from the time proof is otherwise required.”

Appellant argues that in May and June, 1978, appellee was advised that Protective had paid the maximum benefits available in that year for his dependent son. Subsequently no additional claims were filed with Protective on behalf of Blane Brock although he was hospitalized in May and June of 1978 as well as afterwards. Because no demand for additional medical benefits was made on Protective until December 2, 1981, appellant argues the claim prescribed under the express terms of the policy.

It is settled law in this state that provisions such as those quoted above are both valid and binding on the parties. Green v. People’s Benev. Industrial Life Ins. Co. of Louisiana, 5 So.2d 916, 917 (La.App. 2d Cir.1941), reh. den. (1941); King v. Pan American Life Insurance Company, 324 So.2d 535 (La.App. 1st Cir. 1975), writ refused (1976); Hughes v. First National Life Insurance Co., 272 So.2d 57 (La.App. 4th Cir.1973).

Appellant is thus correct that the finding of the court that, “the statutory ten (10) year prescriptive period would apply and not the period set out in the policy which policy period is contrary to the statutory provision” is clearly contrary to the law of this state. However, the court also found, and appellee argues here, that the actions of the insurance company caused appellee-Brock’s failure to file further proofs of loss and the delay in bringing legal action. We agree.

Generally the courts strictly apply contractual provisions relating to proofs of loss and prescription; however there are also circumstances in which the jurisprudence recognizes justifiable excuses. In Suire v. Combined Insurance Company of America, 290 So.2d 271 (La.1974), lack of knowledge of the existence of an insurance policy was considered a valid excuse. When the insurer induces delay by a reasonable belief that the claim will be settled, the courts have also relieved the insured from the prescriptive terms of the policy. Brocato v. Sun Underwriters Ins. Co. of N.Y., 53 So.2d 246, 219 La. 495, 29 A.L.R.2d 629 (1951). Notably, relief may be denied where the insured’s actions were not due to reliance on the insurance company’s assertions. Blum v. Cherokee Insurance Company, 336 So.2d 894 (La.App. 4th Cir.1976). In addition, the Louisiana courts recognize a limited exception to the running of statutory prescription where, in fact and for good cause, a plaintiff is unable to exercise his cause of action. Corsey v. State Dept. of Correction, 375 So.2d 1319 (La.1979). In that case, the court noted:

“The exception is founded on the ancient civilian doctrine of contra non valentem agere nulla currit praescriptio, predating and within the penumbras of modern civilian codes, and it has been recognized from Louisiana’s earliest jurisprudence ....
II.
As the cited comment notes, 12 Tul.L.Rev. at 253-54, this court in Reynolds v. Batson, 11 La.Ann. 729, 730-31 (1856), authoritatively lays down the three categories of situations in which our early jurisprudence held that the principle contra non valentem applied so as to prevent the running of liberative prescription: (1) Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s action; (2) Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; and (3) Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action.
Modern jurisprudence also recognizes a fourth type of situation where contra non valentem applies so that prescription does not run: Where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. (This principle will not except the plaintiffs claim from the running of prescription if his ignorance is attributable to his own willfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned.” (Citations and footnotes omitted) At pages 1321-1322.

See also Grant v. Carroll, 424 So.2d 389 (La.App. 2d Cir.1982). In Cruze v. Life Ins. Co. of Virginia, 184 So. 735 (La.App.1938), the doctrine was applied to similar facts involving the prescriptive period in a contract of insurance.

In the instant case, the appellant foreclosed action by appellee by unequivocally denying claims under the clear terms of the contract. The filing of further proofs of loss would have been fruitless since the contract only provided for Twenty-Five Hundred Dollars ($2,500) maximum major medical benefits for mental or nervous disorders which amount had been paid. By failing to offer the insured the proper benefits under the statute, however, the insurer effectively hid the insured’s rights which prevented appellee from pursuing the claim further. As the court noted in Corsey where the cause of action is not known or reasonably knowable by plaintiff, delay in prosecution of the claim can be excused under the doctrine of contra non valentem, as long as such ignorance is not attributable to plaintiff’s willfulness or neglect.

Insurance companies are regulated by statutory law. The statute herein requires the insurer to offer certain benefits to the insured; in effect to notify the insured of his additional rights. Corsey, supra. Thus, it was by the insurer’s fault that appellee was led to rely on the invalid provision of coverage, causing him to fail to file further claims and to delay suit on the contract until such time as he became aware that he was entitled to additional benefits. There was no reason for appellee to have suspected that he was being deprived of his legal rights. Under the cases cited, appellee was justified in both not filing further proofs of loss and in delaying his action beyond the prescriptive period by a few months.

As it is our opinion that the doctrine of contra non valentem is applicable in this case, appellee is entitled to relief and his failure to abide by the contract time limitation is excused.

For the foregoing reasons, after a review of the law and the evidence, the trial court judgment in favor of third-party plaintiff, Henry J. Brock, is hereby affirmed. Appellant is to pay all costs of this appeal.

AFFIRMED.

      . LSA-R.S. 22:669 was added by Acts 1981, No. 411, effective January 1, 1982 and is the successor statute to LSA-R.S. 22:213.2.
      LSA-R.S. 22:669(D) states that, "[a]ny policies, contracts or plans in effect on January 1, 1982 shall, on the anniversary date of such coverage, be covered in conformance with this section; however, all existing coverage shall be converted to conform to the provisions of this Section no later than January 1, 1983.”


author: DUFRESNE, Judge.

text:
    Wayne G. SARRATT v. CAPPAERT ENTERPRISES.
    No. 83-CA-477.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 1983.
    Rehearing Denied Jan. 17, 1984.
    Writ Denied March 16, 1984.

      W. Keith J. Hurtt, Jr., Metairie, for plaintiff-appellant.
    James C. Murphy, Jr., New Orleans, for defendant-appellee.
    Before CHEHARDY, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is an appeal by the legal successors of Wayne G. Sarratt, deceased plaintiff, from a judgment dismissing his suit in tort against F.L. Cappeart and his insurer, Home Indemnity Co., defendants, for failure of the above successors to timely substitute themselves as parties plaintiff in accordance with La.Code Civil Procedure Arts. 802-804. Because we find that the defendants failed to properly summon the successors as required by the above articles, we vacate the judgment appealed from, and remand the case for further proceedings in accordance with this opinion.

The purely procedural facts pertinent to this appeal are these. Wayne Serratt filed suit against F.L. Cappeart and his insurer for burns which he allegedly suffered in an apartment fire.

Trial was set for March 29, 1982, but in January of that year, defendants were notified that Sarratt had died in September, 1981. He was survived by four, then minor, children from a previous marriage: namely Michael, Paul, Diana and Mark Sar-ratt, as well as by his second wife, Karin Sarratt. Upon learning of Sarratt’s death, defendants sought and were granted an indefinite continuance of the trial.

On May 21, 1982, defendants filed a motion and order to summon Sarratt’s legal successors to appear and substitute themselves for the deceased plaintiff within the time allowed by law. In this motion, they specifically averred that they had been informed by Sarratt’s widow, Karin Sarratt, that she did not wish to substitute herself in the ease. They further averred that they did not know the address of the children of the deceased, Michael, Paul, Diana and Mark Sarratt, and moved to publish the summons to these minors in accordance with La.C.C.P. Art. 803.

A summons was issued on May 26, 1982, directing the four named children, but not Karin Sarratt, to appear and substitute themselves for their father within 60 days of the first publication of the summons. The first publication of the summons was on June 3, 1982; the second was on September 16, 1982.

On September 28, 1982, defendants sought dismissal of the suit on the grounds that more than 60 days had elapsed since the first publication of the summons on June 3, 1982, and that no legal successors had appeared to substitute themselves. Judgment in defendant’s favor, dismissing the suit with prejudice, was rendered and signed on September 29, 1982.

On November 30th, the “legal successors” of Wayne Sarratt appeared through counsel by way of a timely Motion and Order for Appeal from the judgment of September 29th. On December 3rd, defendants filed a motion asserting basically that as these successors had not substituted themselves timely, they had no standing to appeal. The trial judge nonetheless signed the Order of Appeal on December 8th. However, he set a hearing for January 7, 1983, to take up the question of the successors’ standing to appeal. Before that hearing, other pleadings of no consequence here were filed by both parties, and the hearing resulted in a judgment annulling the December 8th order of appeal. A writ was taken to this court by the four children alleging that the judgment vacating the order of appeal was void in that the jurisdiction of the trial court was divested when the appeal order was signed on December 8,1982. This court ruled that jurisdiction was indeed divested, that the judgment annulling the order of appeal was thus a nullity, and that the applicants had standing to appeal. Finally, it was ordered that the original order of appeal of December 8th be reinstated (La.App. 5th Cir.1983).

The case is therefore now before us on appeal from the judgment of September 29, 1982, which dismissed the suit with prejudice.

Before turning to the merits of this appeal, an exception filed by defendants attacking the procedural capacity of the minor successors of Wayne Sarratt to litigate must be addressed. Defendants argue in this exception that because minors lack the capacity to sue in their own name, and as the record fails to disclose that the minors here are represented through a tutor, they are barred from bringing the appeal. We reject this argument. While we recognize that L.S.A., C.C.P. Art. 683 states that unemancipated minors do not have the procedural capacity to sue, we point out that this lack of capacity must be urged by the dilatory exception, L.S.A., C.C.P. Art. 926(6), or it is waived Nicosia v. Guillory, 322 So.2d 129 (La.1975).

In the present case, the minors appeared apparently in their own name on November 30th, by way of a motion for appeal. Defendants responded on December 3rd by challenging the standing of these minors, but did not object then to their procedural capacity. The order of appeal, divesting the jurisdiction of the trial court, was signed December 8th. Under these particular circumstances, we hold that the failure of defendants to challenge the capacity of these children in their pleading filed before the signing of the order of appeal constitutes a waiver of that exception for purposes of this appeal. While we recognize that normally no appearance is made by an appellee before an order of appeal is signed, we rule here only that where such an appearance is made, matters properly raised by the dilatory exception must be urged then or they will be waived.

Turning to the merits of the case, there are three issues before us:

1.) Was the publication of the summons to the minor successors named therein done in accordance with C.C.P. Art. 803.

2.) Was Karin Sarratt ever summoned to appear?

3.) Is Karin Sarratt a party to this appeal?

As to the first issue, there is no dispute that the two publications in question were made over 100 days apart, and that the suit was dismissed almost two weeks after the second publication. The question before us is simply whether such publication was in accordance with C.C.P. Art. 803. We conclude that it was not.

That article provides that a summons to successors “shall be by two publications, not less than fifteen days apart,” and shall summon the successors to appear “within sixty days of the first publication.”

The successors argue here that since the September 16th publication summoned them to appear sixty days after the first publication of June 3rd, or August 3rd, a date long past, it could have had no valid effect. We agree. A legal notice which summons a person to perform an act by a date already past can have no legal effect, and to hold otherwise would lead to what this court considers an absurd result. Smith v. State Through Dept. of Public Safety, 366 So.2d 1318 (La.1978).

Defendants argue to the contrary that the statute only specifies that the publications shall be at least fifteen days apart, but sets no limit or when the second shall be made. They further contend that because the successors here were given almost four months to respond, that they thus had twice the time allowed by the statute to appear.

While it is true that the statute does not state specifically that the second publication must be within sixty days of the first, the fact that the successor is given sixty days from the first publication to appear leaves no doubt in this court’s mind that the second publication must be within sixty days of the first. To hold otherwise would lead to the absurd result which we have already mentioned.

While there is some admitted force to defendants second argument, we reject it also. The pertinent fact here is not that the successors may have received time to appear beyond the sixty days provided by statute. It is rather that upon the second publication, they were constructively informed of a right which on the face of the summons it was too late for them to legally enforce. It is our opinion here that a publication summoning a person to perform an act which the summons itself states, will be untimely and therefore futile, can have no legal effect.

The second question here is whether Karin Sarratt, the deceased plaintiffs widow, was properly summoned to appear as party plaintiff in accordance with Code Civil Procedure 802-4. It is clear from the record that she was not. The plain fact is that she was simply not named in the summons. Defendants contend that because she was sent a copy of the motion and order for the summons that she thus received sufficient notice of her right of substitution. We point out, however, that Arts. 802 and 803 specifically provide that a summons shall be issued by the court naming the legal successor when her name is known, and summoning her to appear timely and substitute herself for the deceased party. As no such summons was issued to Karin Sarratt, the time limitations of Arts. 803 and 804 have never run against her.

We also point out that the mere averment in the ex parte motion and order to summon successors that counsel had been told by Karin Sarratt that she did not wish to enter the suit is hardly a basis on which to dispense with the specific requirements of Arts. 802-804 that she be served with a summons directing her to appear timely or forfeit her legal rights.

The third issue is whether Karin Sarratt has appealed from the judgment dismissing the suit. We hold that she has. The motion and order ' for appeal was brought in the name of “Wayne G. Sarratt and his legal successors.” Article 801(1) of the Code of Civil Procedure defines legal successors as “the survivors designated in Article 2315 of the Civil Code, if the action survives in their favor.” Article 2315 provides that the action of a deceased plaintiff “shall survive ... in favor of: (1) the surviving spouse and child or children of the deceased.” Karin Sarratt is therefore unquestionably a legal successor of Wayne Sarratt, and as such, is an appellant here.

For the foregoing reasons, we hereby set aside the judgment of September 29, 1982, which dismissed the suit with prejudice, and remand the matter for further proceedings wherein all legal successors of Wayne Sarratt be allowed, if they so choose, to substitute themselves as parties plaintiff in accordance with Code Civ.Pro. Arts. 801, et seq.

JUDGMENT VACATED.

REMANDED FOR FURTHER PROCEEDINGS.