text:
    B. Leonard CRITCHER, Plaintiff-Appellee, v. SOUTHLAND LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 15699-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Wilkinson & Carmody, by Arthur R. Car-mody, Jr., Shreveport, for defendant-appellant.
    Glen H. Smith, Shreveport, for plaintiff-appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

A former general agent sued defendant insurance company for damages based upon the alleged breach of an agreement by the defendant to send plaintiff and his wife on an all-expense paid trip to San Francisco as an award for the agent’s successful participation in a sales promotion campaign. Defendant appealed a judgment in favor of plaintiff, contending the trial judge erred “in failing to recognize and honor the implied condition that this convention trip was due only agents in good standing at the time it was hosted.”

Because we agree with the trial judge that a valid contract was confected between the parties and that defendant breached this contract, for the reasons hereinafter explained we affirm.

B. Leonard Critcher entered the life insurance business in the early 1970’s. As a general agent or insurance broker he was authorized to write policies for several different companies, with those agency contracts generally terminable at the will of either Critcher or the insurance company. However, until 1980 Critcher’s primary affiliation was with Pilot Life Insurance Company (“Pilot”). This meant that the agent wrote the majority of his policies for Pilot and received from that company a base salary together with fringe benefits.

On September 1, 1979, by virtue of a written contract Critcher became a general agent for Southland Life Insurance Company (“Southland”). It was understood, though, that his primary affiliation remained with Pilot and that he also would continue to write policies for several other companies.

Soon after his appointment as a general agent for Southland, Critcher began receiving from that company brochures and other printed material encouraging him to participate in an insurance sales promotion campaign. The qualifying period for meeting the stipulated quota of sales ran from January 1, 1980 to December 31, 1981. The reward for agents who met the quota was an all-expense paid trip for them and their spouses to Southland’s “Conference of Champions” to be held in San Francisco in March 1982. At that time Southland had some 400 general agents.

Desiring to win the described trip, as soon as the qualifying period opened Critcher began to write insurance policies with Southland, in preference to other companies he might have selected to give the business. His volume of sales was such that South-land recognized him as an “early qualifier” at a mid-year conference in Dallas in March 1981. In February 1982 the company extended to Critcher a written invitation to attend the San Francisco conference at the expense of Southland. Critcher accepted the invitation and, together with his wife, began preparations to make the forthcoming trip.

In the meantime, in 1980 Critcher terminated his primary affiliation status with Pilot. Subsequently, that relationship was assumed with Philadelphia Life Insurance Company (“Philadelphia”).

By letter dated March 16, 1982 Critcher was advised by Southland that their agency contract was terminated. He was notified shortly thereafter that the invitation to attend the San Francisco convention was can-celled. This litigation ensued.

The thrust of the defense was that the San Francisco convention was impliedly restricted to those who were Southland agents in good standing at the actual time the convention was held, since the obvious purpose of the convention was to promote company interests, which included training of agents. Defendant also pointed out that the promotional material distributed by Southland to its agents contained the following pertinent clause:

“The Company reserves the right to be the sole judge as to whether an Agent or General Agent qualifies for an award, recognition, club or trip.”

It was explained that Critcher’s agency contract with Southland was terminated when the latter learned of the agent’s affiliation with Philadelphia, a business competitor upon whom Southland did not look with favor.

We agree with the trial judge that plaintiff’s suit is an action for breach of contract. Consequently, resolution of the litigation involves the examination and application of our codal articles dealing with contracts.

Essential to the formation of a contract is consent of the parties, as evidenced by an offer and acceptance. La.Civil Code Articles 1797, 1979.

When one party proposes and the other assents, the obligation is complete, and by virtue of the right each has impliedly given to the other, either of them may call for the aid of the law to enforce it. La.C.C. Article 1803.

Somewhat analogous to the case at bar is Schreiner v. Weil Furniture Co., 68 So.2d 149 (Orl.Ct. of App.1953). There the plaintiff was a prizewinner in a “count-the-dots” contest advertised by the defendant in a local newspaper. However, when plaintiff sought to claim her prize defendant attempted to vary the award from that described in the newspaper advertisement. Ruling in favor of plaintiff, the court commented:

“It is possible to make offers to anyone, or to everyone, who may perform a specified act or make a specified promise. The commonest illustration of such offers is furnished by offers of reward for the apprehension or conviction of criminals, or for the return of lost or stolen property-
“There is no doubt that as a result of Mrs. Butscher’s [plaintiff] success in the contest the defendant must be held bound to his obligation. When plaintiff performed all of the requirements of the offer in accordance with the published terms, it created a valid and binding contract, under which she became entitled to the promised rewards. That there was a serious and mutual consideration is obvious.”

Closer to our case from a factual standpoint is decision from another jurisdiction— Brown v. Morrisey & Walker, Inc., 106 N.J.L. 307, 150 A. 330 (1930). The defendant relator, to stimulate sales, had orally promised to his salesmen a cash prize in addition to their commissions if they met a specified quota. Affirming a judgment in favor of a salesman who had achieved the goal but was denied the cash prize, the court held:

“The offer of a prize may mature into a binding contract in favor of a successful contestant who has complied with the terms of the offer.” p. 333

Adverting to our facts, we find that Southland’s printed material pertaining to the San Francisco trip constituted an offer which could be accepted by one of its agents by the performance of certain acts — the sale of a specified quota of insurance. Nowhere was the offer restricted only to those who might be agents of Southland at the time the convention was actually held. By his performance [meeting the sales quota] Critcher made the unilateral contract binding upon the offeror.

Southland received as .consideration for its award of the all-expense paid trip the additional business accruing to it when Critcher deliberately selected Southland over his other companies when writing insurance policies. The incentive, of course, was the prospect of the free trip for the agent and his wife. Southland argues that the convention was to serve primarily as a training session for its agents. We note in our review of the promotional material distributed by the company to its agents that the major portion is devoted to touting the culinary delights and sightseeing attractions of the San Francisco area rather than opportunities for educational enlightenment. In effect, Southland is contending that the reward for an agent’s writing additional business [for the company’s benefit] is the privilege of attending a conference [for the company’s benefit].

Further, acceptance of defendant’s argument that its offer was impliedly restricted to those who were agents at the actual time of the convention would have made the contest meaningless from the standpoint of a general agent, since his agency contract was generally terminable at the will of the company.

We also find no merit in defendant’s assertion that it expressly reserved the right to be the sole judge as to whether an agent qualified for the trip. According to the record evidence, Southland did in fact exercise its right and notified Critcher of his qualification for the trip.

For these reasons, we affirm the city court judgment, at appellant’s cost.


source: Caselaw Access Project

author: SEXTON, Judge.

license: Public Domain

text:
    EAST CARROLL PARISH POLICE JURY, Plaintiff-Appellee, v. Joseph R. ELLIOTT, Defendant-Appellant.
    No. 15700-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Voelker, Ragland, Brackin & Crigler by James C. Crigler, Jr., Lake Providence, for defendant-appellant.
    Hamilton & Carroll by Orlando N. Hamilton, Jr., Oak Grove, for plaintiff-appellee.
    Before PRICE, HALL and SEXTON, JJ.
   SEXTON, Judge.

The defendant-appellant, a farmer of rice and soybeans in East Carroll Parish, appeals an adverse judgment herein rendered on January 28, 1983, issuing preliminary and permanent injunctions.

In that judgment the defendant was directed to remove at his expense a dam or weir constructed by him in Drainage Canal L-6E, and was further enjoined and restrained from erecting or constructing “any dam, weir or other type barrier or obstruction” in that same canal, or any other drainage canal in East Carroll Parish.

This dispute actually arose in 1978 when the defendant constructed a weir or dam across the canal in question. Upon his refusal to remove that weir, plaintiff filed suit and judgment was rendered against the defendant on February 20, 1979 ordering removal of the weir within sixty days. Subsequent to the issuance of a suspensive appeal to this Court, and while the appeal was pending, the parties entered into a compromise agreement which allowed the installation by the defendant of a weir in the canal at a certain point and under certain restrictions. In this compromise agreement, the defendant agreed that the top height of the weir would not exceed 82.5 feet mean sea level and that he would construct a control gate 5' wide and 4' deep to be opened and closed on the orders of a three man commission to be appointed by the police jury. The defendant also agreed to withdraw his pending appeal. The police jury retained the authority to review the permit by January 1 of each year and to revoke the permit if the weir was no longer used for irrigation purposes or in the event conditions in the water shed area changed such that the Louisiana Department of Public Works determined that the weir obstructed drainage. It was also stipulated that the control gate would remain open at all times except during the irrigation season. Implicit in the agreement was defendant’s obligation to properly maintain the weir.

In written reasons for judgment the trial court specifically found that the weir of the defendant was too high and that the gate in the weir was not up to specifications. The trial court further found that the defendant had constructed two earthen dams, each higher than the permissible height of the weir, and had placed culverts in the canal blocking drainage without the authority of the police jury. The court stated “all of the facts described are found to block the drainage canals so that the Defendant, his agent or employees could impound water for irrigation of their crops, without regard for the authority of the police jury, the court or neighboring farmers.” Thus, apparently the trial court agreed that the actions of the defendant in constructing the dams and installing the culverts implicitly violated the compromise agreement.

Before us the defendant-appellant asserts three specifications of error. The first is that the trial court erred in finding that the weir was of an improper height and that the gate was not up to specifications. Secondly, it is asserted that the trial court erred in finding the construction of the two dams violated the terms of the permit. Finally, error is asserted “in finding that defendant failed to maintain the weir.” We will pretermit discussion of appellant’s third assignment because we are unable to determine that the trial judge made such a finding, or that such a finding entered into the decision of the trial judge.

With respect to that part of Assignment No. 1 concerning the gate not being up to specifications, the evidence in that regard came from Terry D. Denman, a civil engineer called by plaintiff. He testified that the gate was indeed 5' wide and 4' in depth, but that it would not allow a flow of four feet of water. He testified that only 2.9 feet of water could flow through the gate. Thus, the import of the expert engineer’s testimony was that the gate was of satisfactory dimensions but that the flow of water did not match those dimensions. The compromise agreement between the parties only specified the dimensions of the gate and made no requirement with respect to the volume of water which should flow through the gate. Therefore, to the extent that the trial court found that the gate was not up to specifications, the trial court was in error. We thus proceed to consider Specification of Error No. 1 with respect to the question of the height of the weir only.

The principal evidence in this respect again comes from plaintiff’s expert civil engineer, Mr. Denman, and is dramatized by the photographs P-7A-D and P-8D, as well as P-6, the engineer’s diagram of the canal which depicts the weir, bank structure and location of water flow. This latter, P-6, is particularly helpful when compared to the photographs as it shows the precise elevation of various points along the weir.

The record indicates that the weir had to be substantially repaired on two separate occasions. The first occurred sometime in 1979 when the west side of the weir apparently was damaged by an explosion. Later in 1980, subsequent to dredging work by the police jury in close proximity to the weir, the east bank washed out around the weir. The record makes it clear that the work necessary to complete effective repairs on each side was difficult because of the nature of the weir, the stream, and the damage.

P-6 and the photographic evidence referenced previously make it clear that the weir is measureably above the authorized 82.5 foot level only in the areas where repair occurred. It is actually lower in the main channel area. On the east side it only rises above the 82.5 foot level at the point where the weir crosses the old bank line (the location of the east bank prior to the extensive washout there). The only place the weir is too high in the main portion of the canal is on both sides of the gate — and there by only scant inches. The gate is located toward the west side of the canal, and the weir is about six inches too high on the east side of the gate and is about four and one-half inches too high on the west side of the gate. From the point where the weir is four and one-half inches too high on the west side of the gate, it rises steadily to the point where it contacts the west bank. It is approximately two and one-half feet too high at that point. It was necessary for the defendant to pour a good deal of concrete in order to stabilize the weir on that end subsequent to the apparent explosive damage. Considering the nature of the weir, the canal, and the damage, that deviation does not appear unreasonable. Most importantly, it was not demonstrated that this height deviation was so substantial as to effectively retard a significant volume of water.

All factors considered, we are not convinced that the record is sufficient to support the trial judge’s holding concerning the impropriety of the weir’s height. Actually, the evidence is that the height of the weir is substantially in compliance with the compromise agreement.

Thus we consider the final and decisive issue of whether the trial court erred in determining that the earthen dams operated to violate the compromise agreement.

Subsequent to the washout on the east side of the weir previously referenced, plaintiff constructed an earthen dam across the canal thirty or forty feet in front of the weir. Several days later, a massive rain caused that weir to wash out. The defendant’s son, David Elliott, who constructed the dam, testified that he precipitated the washout of the dam by removing the plastic sheeting which he had placed on top to enable the dam to retain its structural integrity. After the massive rain, the defendant reconstructed this dam, and he asserted that both dams were lower than the weir. However, photographs introduced in evidence indicate that this dam was several feet thick and the testimony of all witnesses except the defendant and his son preponderates that it was substantially higher than the weir. There was no opening or gate therein.

Obviously the dam was a substitute for the weir. There seems to be no real disagreement that it was intended not only to facilitate repairs on the weir, but also to provide defendant with an irrigation capability. In placing such a substitute the defendant was obligated to be certain that it substantially complied with the terms of the agreement with respect to size and a capability for regulating water flow — particularly considering defendant’s delay in repairing the weir. We agree with the defendant’s contention that the unique metal sheeting required to repair the weir and the fact that it was not available locally, preponderates that the defendant was not unduly remiss in making repairs on the weir. Thus, the delay itself should not be a basis for finding that the defendant violated the agreement. However, it heightened defendant’s obligation to construct and maintain any substitute in accordance with the terms of the agreement.

The record is replete with evidence that the dam was a large structure, more than substantially exceeding the height of the weir. It contained no gate or capability for the release of excessive water. In fact, the evidence preponderates that substantial low land flooding occurred at least once and perhaps twice as a result of the existence of the dams. Also, photographs in evidence indicate that the dam retained a substantial body of water which appears to be in excess of the capacity of the weir. These factors, as well as others not specifically enumerated, amply support a conclusion that the nature, dimensions and capacity of the dams which were a substitute for the weir exceeded the- terms of the compromise agreement.

Therefore, the record being in support of the trial judge’s determination in this factual regard, it is not manifestly erroneous and will not be disturbed by us on appeal. Ar-ceneaux v. Domingue, 365 So.2d 1330 (La.1978). The judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

      . “This is to certify that the East Carroll Parish Police Jury hereby grants a permit to Joseph R. Elliott, his heirs, successors or assigns, to construct and install a metal weir in parish drainage canal L6E at a point approximately 200 feet south of the intersection of Parish drainage canals L6E and L6E1, located in T21NR11E, Section 22, East Carroll Parish, Louisiana according to the following requirements and stipulations:
      1. Elevation at top of weir shall be a height of 82.5 feet MSL.
      2. A control gate 5 feet wide and 4 feet in depth shall be constructed in approximate center of weir at the expense of Joseph R. Elliott, his heirs, successors or assigns.
      3. Control gate shall be opened and closed by a three-man Commission appointed by the East Carroll Parish Police Jury and said Commission are hereby required to open said control gate whenever elevation of drainage water at the weir is at 83.5 feet MSL and remain opened until elevation reaches 82.5 feet MSL and control gate may be closed whenever elevation of drainage water is 82.5 feet MSL at the weir.
      4. East Carroll Parish Police Jury retains the authority to review this permit on or before January 1 of each year and may revoke the permit should the East Carroll Parish Police Jury become aware that the weir will no longer be used for irrigation purposes. In the event that the weir will no longer be used for irrigation purposes and the permit is revoked for that reason it is hereby agreed that Joseph R. Elliott, his heirs, successors or ■ assigns, shall remove said weir at the expense of Joseph R. Elliott, his heirs, successors, or assigns.
      5. Joseph R. Elliott agrees to withdraw his appeal to the Second Court of Appeals of Lawsuit Docket # 11,646, Sixth Judicial Court, East Carroll Parish Louisiana upon the execution of this permit.
      6. The East Carroll Parish Police Jury retains the authority to review this permit on or before January 1 of each year and in the event that additional woodlands are cleared in the watershed area lying north of said weir in the future, or conditions change, such that the La. Dept, of Public Works determines that the weir obstructs drainage, or the La. Dept, of Public Works determines that it is in the best interest of East Carroll Parish for the weir to be removed, the Jury may revoke this permit and in this event, the weir shall be removed or altered upon the recommendations and authority of the East Carroll Parish Police Jury and said alteration or removal shall at the expense of Joseph R. Elliott, his heirs, successors or assigns.
      7. Control gate shall remain opened at all times except during the growing irrigation season.”


author: MARVIN, Judge.

text:
    PROSPERITY PARK, INC., et al., Plaintiffs-Appellees, v. Albert Jefferson BRITTON, et al., Defendants-Appellants.
    No. 15701-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Rehearing Denied Nov. 10, 1983.

      Lacour & Calloway by Brady Louis Jones, III, Baton Rouge, for defendant-appellant, Albert J. Britton.
    Paul Henry Kidd, Monroe, for plaintiffs-appellees.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   MARVIN, Judge.

The holder of two mortgage notes that were originally negotiated by a corporation he had earlier created, appeals a judgment ordering the clerk of court to cancel the inscription of the two mortgages on the public records. We reverse and remand.

The defendant, holder of the notes, is Albert Britton, who was the sole incorporator, stockholder, and executive officer of the corporation, Prosperity Park, Inc., until he and his wife became embroiled in litigation here and in Ohio to dissolve their property and their marriage. As a result of that litigation, Mrs. Britton became the liquidator of Prosperity Park. In that capacity, as well as individually, she and her attorney, who are recent vendees of respective tracts of the property from Prosperity Park, are co-plaintiffs with Prosperity Park in this action. Mrs. Britton now owns about 13 acres of the property. Her lawyer now owns about 140 acres of the property. Defendant Britton represented himself in the lower court.

The issues concern Britton’s dealings with a bank, individually and through the corporation, the corporation’s payment of his debts and vice versa, who owes whom what, and whether any debt which might be owed him by the corporation is secured by the mortgage notes he holds.

The Facts

The Brittons were married in 1972. While apparently residing in Ohio, he bought the Louisiana property (approximately 153 acres) partially on credit ($69,-350) in 1975. Britton’s vendor transferred Britton’s $69,350 note to the Ouachita National Bank. On December 6, 1976, and apparently while experiencing marital difficulty, Britton incorporated Prosperity Park and transferred the property to the corporation in return for 10,000 shares of its stock. The deed from Britton to the corporation mentions that the property is sold subject to the $69,350 indebtedness. During the trial of this action, Britton introduced a resolution of Prosperity Park dated December 7, 1976, expressly acknowledging its indebtedness to Britton, individually, for at least $100,000 for his personal funds he used to acquire and improve the corporation.

Britton made payments to the bank ($23,-405 on April 16, 1976 and $21,905 on April 16, 1977) to reduce the $69,350 balance on his 1975 vendor’s lien note to $34,675. On June 9,1977, Britton borrowed $15,336 from the bank. Britton made payments on this second indebtedness to reduce its balance to $8,655 by May 11, 1978.

On July 14, 1977, Prosperity Park executed the $100,000 mortgage note in question in this appeal and apparently then or later gave it to the bank. On May 11,1978, Prosperity Park executed the $50,000 mortgage note in question in this appeal and gave it to the bank. It appears that these notes were given to the bank to secure a loan of $46,539 made to Prosperity Park on May 11, 1978. According to the bank records, most of this loan was used on that date to pay in full the balance of Britton’s indebtednesses to the bank ($34,675 balance on the 1976 loan and $8,655 balance on the 1977 loan).

The Brittons were legally separated in Ohio on December 13, 1978. On June 4, 1979, Prosperity Park conveyed the property in question to Britton’s sister, Mrs. Barton, for $100 cash and subject to the corporation’s mortgage indebtedness to the bank. Mrs. Barton then sought to evict Mrs. Brit-ton from the property. Barton v. Britton, Docket No. 14,169 of this court, unpublished opinion dated June 10, 1980.

By virtue of a judgment of the Ohio court of August 27, 1979, Mrs. Britton became the owner of all of the stock of Prosperity Park. That judgment was made ex-ecutory in Louisiana (Britton v. Britton, Docket No. 14,617 of this court, unpublished opinion dated August 24, 1981) and Mrs. Britton replaced Mr. Britton as liquidator of Prosperity Park on October 17,1980. As liquidator, she then sued Mrs. Barton to set aside the sale of the corporate property on grounds of lesion beyond moiety. ⅛ that action, the value of the property was determined to be $241,000 in 1979. We affirmed a judgment conditionally setting aside the sale. Prosperity Park v. Barton, 404 So.2d 1307 (La.App. 2d Cir.1981).

The action out of which this appeal arises was filed in the district court on December 13, 1982. Still pending in the district court is an action to inventory and partition the community estate that once existed between the Brittons, and other litigation.

Either on May 22, 1980, or on May 11, 1982, Britton paid the balance that Prosperity Park owed on its 1978 loan ($42,475) and obtained the mortgage notes in question from the bank. He apparently thereafter demanded payment on these notes as well as payment on other “indebtednesses” owed him by the corporation. See fn. 1.

Britton has employed appellate counsel who raises three errors, the essence of which relate to Prosperity Park’s December 7, 1976, acknowledgment of the indebtedness to Britton and to Britton’s later payment of the $42,475 to the bank to satisfy the Prosperity Park debt. Britton’s first contention is that summary process was not authorized for this action. This is a procedural objection which' must be raised through a dilatory exception and which is waived unless pleaded. Defendant did not file the dilatory exception in the trial court and cannot object here to summary process below. CCP Art. 926.

Britton contends here that when Prosperity Park paid his personal indebtednesses to the bank on May 11, 1978, that a novation occurred and his debts to the bank were extinguished. He argues then that he later paid Prosperity Park’s debt of $42,475 to the bank because the mortgage notes which secured that indebtedness primed his unsecured claims against the corporation (of at least $100,000 plus the amount he paid to obtain the mortgage notes). In this respect, he contends that he became legally subrogated to the rights of the bank against Prosperity Park and implies that he should be “secured” by the mortgage notes. CC Art. 2161.

The appellees argue that Britton did not plead these matters as an affirmative defense in the lower court and that we should not consider these contentions. CCP Art. 1005. Alternatively, appellees argue that Britton was a debtor of Prosperity Park because Prosperity Park paid Britton’s debts to the bank in 1978 ($43,330) and that even if the corporation owes Britton the $42,475 he later paid the bank to satisfy the debt of Prosperity Park, this obligation was confused and extinguished because Britton was both a creditor ($42,475) and a debtor ($43,330) of Prosperity Park. CC Art. 2217. Appellees assert that the trial court did not believe Britton’s testimony that the corporation formally acknowledged by the resolution on December 7, 1976, the indebtedness of $100,000 to Britton.

This record reveals only that the trial court stated before it ruled that it would not be ruling on the validity of the several debts, and implied that it would rule solely on whether any of these debts were secured by the mortgages. If the trial judge gave reasons when it later ruled, these reasons are not contained in this record. We cannot infer from these circumstances that the trial court determined that the December 7, 1976, resolution was a later fabrication by Britton, as appellees contend. We do review the record in the light most favorable toward upholding the judgment appealed. Commercial Union Ins. Co. v. Stidom, 408 So.2d 285 (La.App.2d Cir.1981). At the conclusion of the trial, Britton urged the trial court to rule that day on the mortgages, “if not by law, by equity, you know, so [he] could get a portion of [his] fair share.” We do not find that Britton filed any brief in the lower court.

In Edwards v. Standard Oil Co. of Louisiana, 175 La. 720, 144 So. 430, 431 (1932), we are cautioned that “it is improper, unless the whole law has been examined, to give judgment or advice upon a view of a single clause of it.” We are asked to review a record that leaves much to be desired. This record does not reveal the extent to which Britton separated his personal affairs from that of his corporation. This record does not reveal when Britton gave the bank the $100,000 mortgage note dated July 14,1977, whether, or in what capacity, he held the note before he gave it to the bank. The record does not reveal in what capacity he later received this note and the $50,000 mortgage note back from the bank. This record does not reveal the source of the money which was used to pay the debts to the bank between the time Prosperity Park was incorporated on December 6, 1976, and the time the bank was finally paid by Brit-ton, nor how much of the value of the corporate property resulted from direct contributions from either Mr. or Mrs. Britton. We are also unable to determine from this record when and whether a community existed in Louisiana, and to what extent, if any, community funds were used to enhance the corporation, or debts to the community from the corporation were created.

Our decisional ability is further handicapped by what may appear from some things in the record. The bank officer who testified on behalf of appellees was able to explain nothing about the loans to Britton and to Prosperity Park because he did not make them for the bank. In that respect we are left with what the bank’s “history card” on each loan shows in skeleton form. The cards are apparently computer ledger printouts which leave much to be desired. The card on the 1975 vendor’s lien note makes no reference to Prosperity Park. The card on the $15,000 Britton note of June 9, 1977, seems to indicate, that Prosperity Park was somehow connected with that loan. The card on the Prosperity Park loan of May 11,1978, seems to indicate that Britton was somehow connected with that loan.

While Prosperity Park did not assume the vendor’s lien debt on the property and thereby become personally liable to the bank on that debt, and while the bank may have substituted debtors when Prosperity Park “paid off” Britton’s individual debts to the bank on May 11, 1978, these findings would not necessarily resolve the character of the legal relationship and entanglement between Britton, Prosperity Park, and Mrs. Britton. The fact of Britton’s later payment of Prosperity Park’s debt to the bank also does not resolve the character of the relationships mentioned. Depending on circumstances not revealed by this record, Britton, at that time, could have been a debtor, or a creditor, perhaps once secured or perhaps a third party, or a negotiorum gestor, and subrogated legally perhaps upon making the payment.

In this action, appellees alleged that Brit-ton had demanded payment of the mortgage notes from Prosperity Park and that he sought to employ the notes to support his contention that Mrs. Britton owed him on the dissolution of the community. Ap-pellees asserted that Britton’s contentions were not germane to this action to cancel the inscription of the notes, but properly were the subject of the pending action for dissolution pending under another docket number in the district court. Appellees prayed for judgment for $65,000 and for the cancellation of the mortgage inscriptions. The judgment of the district court was rendered shortly after the trial. That judgment considered Britton’s answer and evidence to be “insufficient,” and ordered that the clerk of court “proceed” to cancel the inscriptions.

Appellees, however, under their own allegations, had the burden of proving that nothing was owed by Prosperity Park to Britton and that the mortgage notes secured nothing. Britton did not have the burden of proving otherwise. Like the trial court, we are unable to rule on who owed whom what and we must find that the trial court was clearly wrong in ordering the mortgage inscriptions cancelled from the public records under the circumstances.

REVERSED, at appellee’s cost, and remanded.

      . This record reveals that Britton filed executo-ry process to foreclose on the two mortgage notes on January 28, 1983, and that on January 31, 1983, Mrs. Britton obtained a writ of attachment on the notes, alleging that Britton owed her $725,000.

      . The bank “history card” on this loan shows that the loan was paid May 22,1980. The bank officer who testified for appellees said that the loan was paid May 11, 1982. The amounts used in testimony and in the briefs vary from those shown on the bank records. In the lesion action, the judgment allowed Mrs. Barton 30 days in which to elect whether to pay the difference between the value of the property to the corporation and in the event of her failure to make the election, that a judgment would be rendered cancelling the sale upon the corporation depositing $51,183 plus interest into the registry of the court. Mrs. Barton apparently claimed that she paid the $51,183 to the bank after she acquired the property on June 4, 1979. The trial court judgment to the effect mentioned was signed January 13, 1981. 404 So.2d at p. 1310.


text:
    STATE of Louisiana, Appellant, v. Richard L. WALL, Appellee.
    No. 15703-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Richard Carney and Catherine Estopinal, Shreveport, Asst. Dist. Attys., for appellant.
    Johnson, Thornton, Hunter & Feinberg by Frances Baker Jack, Shreveport, for ap-pellee.
    Before MARVIN, JASPER E. JONES and SEXTON, JJ.
   MARVIN, Judge.

This review on the State’s application for writs presents the novel question of the validity of a second pat-down search by a policeman who found a small container of cocaine in defendant’s pocket within a minute after another policeman had arrested defendant for an unrelated offense and had conducted, perhaps perfunctorily, the first pat-down, finding nothing.

When defendant was booked at the jail, a second container of cocaine was found. Defendant moved to suppress both containers of cocaine and a pistol which was earlier taken from defendant. The trial court suppressed the first container, but not the second container or the pistol. Defendant sought writs, which were denied because defendant had an adequate remedy by an appeal in the event he was convicted. We granted the State’s application to review the suppression of the first container.

During the early morning hours of December 26,1982, defendant, who admittedly was “somewhat drunk,” entered the Steak & Egg Kitchen in Shreveport to obtain a take-out breakfast for himself and others. He apparently went from table to table wishing the patrons a Merry Christmas. After some argument or at least a loud discussion with customers at one table about the defendant’s intrusion, defendant went to his parked automobile where he took his pistol from the front seat and stuck it under his belt in the small of his back and returned to the restaurant. Defendant was wearing a ski vest which extended to his belt line. The restaurant manager telephoned police and reported that a man with a gun was in the restaurant.

Officer Griffith, and shortly behind him, Officer Newman, responded to the police radio transmission of the situation. Griffith drove to the rear of the building and first observed defendant from that angle before going to the front door of the restaurant. Upon reaching the front door, Griffith could see a weapon “tucked in the back of [defendant’s] pants sticking out from under [his] vest ... just the top handle of the gun ... a nickel-plated .45 automatic ... when I came up close to him the vest was over the gun. You could only see [the pistol] when you [were] standing directly behind him.”

After Griffith disarmed defendant and took him outside, the second officer, Newman, arrived. Griffith testified that the manager of the restaurant also came outside and told them that defendant was being loud and disorderly in the restaurant and that she was willing to “sign charges” on defendant, but signed charges were not taken because defendant was going to be charged with carrying a concealed weapon. After defendant was arrested and apparently was patted down and given Miranda warnings and was handcuffed by Griffith, Newman then conducted his pat-down search, finding the first container of cocaine. This occurred within a minute following defendant’s arrest by Griffith and apparently before defendant was placed in Griffith’s patrol car.

Defendant was booked for violation of LRS 14:95 A.(l), illegal carrying of weapon, intentionally concealed on one’s person. Partial concealment may or may not be sufficient to satisfy the element of intentional concealment. “If a part [of the weapon] is subject to view, not through any intention for it to be openly displayed but merely by virtue of sloppy concealment, then it seems there may be intentional concealment even though there is not full concealment. These are jury questions and there should not be any simplistic rule .. [or] mechanistic standard as that of whether the weapon was partially or fully concealed.” State v. Fluker, 311 So.2d 863, 866, fn. 3, (La.1975).

The trial court found that Officer Griffith had probable cause to arrest defendant and that the arrest was lawful. Probable [reasonable] cause to arrest is something more than mere suspicion and something less than sufficient proof to convict. State v. Davis, 407 So.2d 666 (La.1981). We find no error in that conclusion of the trial court. A search without a warrant, but incident to a lawful arrest is not considered an unreasonable search and is justified because it affords some protection to arresting officers and prevents loss or destruction of evidence. State v. Sharp, 390 So.2d 1288 (La.1980).

Notwithstanding the finding of lawful arrest, the trial court suppressed the container of cocaine found by Officer Newman apparently because it “failed to find why [Newman] should have searched [defendant after Griffith searched defendant].” A lawful arrest, at least for a reasonable time and to a reasonable degree, destroys somewhat the privacy of the person and takes that privacy out of the realm of protection from police interest in weapons, means of escape, and evidence. U.S. v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). Items taken from defendant without a warrant and while in custody 10 hours after the initial arrest were there not suppressed. Edwards, in fn. 9 at p. 808, 94 S.Ct. in fn. 9 at p. 1239, recognized that there may be some custodial searches that might “violate the dictates of reason either because of their number or their manner of perpetration.” The circumstances in this case, in our opinion, however, do not border on unreasonableness either in number or in perpetration even on a review of the testimony most favorably toward defendant.

The writ is made peremptory and the ruling of the trial court suppressing the fruit of the pat-down search by Officer Newman is reversed and this case is remanded for further proceedings.


author: NORRIS, Judge.

text:
    SUCCESSION OF Alonzo LEWIS.
    No. 15,705-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Writ Denied Jan. 6, 1984.

      Touchstone & Wilson by David M. Touchstone, Shreveport, for plaintiff-appellee.
    Nelson & Achee by Harry R. Nelson, Shreveport, for defendant-appellant.
    Before HALL, FRED W. JONES, Jr. and NORRIS, JJ.
   NORRIS, Judge.

A class of heirs appeals a judgment rejecting its demands to nullify a court authorized sale of succession property and to declare the administration of the succession to be null and void. We affirm.

Alonzo Lewis died intestate at his domicile in Caddo Parish on December 28, 1952, without ascendants or descendants but survived by his widow and numerous collateral heirs. At the time of Lewis’ death, his succession consisted primarily of a 50.709 acre tract of land situated in Caddo Parish which he had inherited from his parents and on which he and his wife had resided until his death. His wife continued to reside on the property until sometime prior to her death in 1976. No judicial proceedings were instituted in connection with this succession until June 24,1981, when Rose Simmons Thompson, Claudell Washington and Cleveland Washington, all descendants of three of the deceased’s sisters, petitioned the court to have Mrs. Thompson appointed administratrix of the succession. Mrs. Thompson was duly qualified on June 24, 1981, without opposition. Prior to her qualification as administratrix, Mrs. Thompson entered into a contract with Touchstone and Wilson, attorneys at law, to represent the executrix and an agreement with Johnson Realty to sell the immovable property. After her qualification, a formal listing agreement was signed with Johnson Realty. On December 24, 1981, Mrs. Thompson signed a sales agreement with William N. Parker, representative of Consolidated Well Servicing, Inc. for sale of the property at a price of $1900 per acre. On February 11, 1982, she petitioned the court for authority to sell the tract of land at the agreed upon price at private sale. Contained within the original petition for private sale was a prayer that the listing agreement and the sales agreement be ratified by the court. By ex parte order, the sale was ordered advertised and the earlier acts of the administratrix were ratified. On March 16,1982, the court homologated the petition for private sale and an act of sale was passed on April 19, 1982, all without opposition. The consideration for the sale was a cash down payment of $14,820 with the balance being due in five annual installments bearing interest at the rate of 11% per annum. No appeal was taken from the judgment homologating the petition for private sale.

On August 13, 1982, the administratrix filed a rule for the purpose of taking evidence regarding the heirship of the descendants of Alonzo Lewis ordering certain of the heirs to show cause whether or not they had an interest in the succession.

Thereafter on August 18, 1982, the twenty eight heirs filed a rule in the form of a class action for all of the heirs under La.C.C.P. Art. 591 asserting that there was no need for an administration in this succession and that the private sale of the property should be declared to be a nullity. In addition to the administratrix, Consolidated Well Servicing, Inc., as initial purchaser of the property and Falcon Land Development Corporation, as the subsequent purchaser of the land from Consolidated were made defendants in rule.

After considering the evidence presented at the rule, the trial court rejected all of the demands of the class of heirs and the class appeals without assigning errors. After reading the brief of the appellant, it appears that the following issues are raised in this appeal by the class:

(1) Whether or not an administration of this succession was necessary?
(2) Whether or not the failure to appoint an attorney for the absent heirs renders the sale of the property null?
(3) Whether or not the sale was lesion-ary?
(4) Whether or not the administratrix acted without authority in executing the listing agreement, employing the attorney and surveyor and the legal effect of these actions?
(5) Whether or not the sale of the property was no more than an attempt to partition the property and if so, whether it should come under the articles governing partition?

In connection with the initial argument, advanced on behalf of the class, it appears the contention is that because Lewis died in 1952, no judicial proceedings were necessary in connection with his succession because it was opened at the time of death and closed by the acceptance of the heirs evidenced by their acts of possession in the form of the sale of timber and the execution of oil, gas and mineral leases on the property. Thus, it is argued that no open succession existed to permit the qualification of the adminis-tratrix and her qualification should be annulled because all of the heirs could and did become vested with ownership of the property without need for an administration or judgment of possession prior to the institution of these judicial proceedings.

It is unnecessary that we address the correctness of this interpretation of the applicable law at the time of the decedent’s death because it is clear and well settled that the law has always been that all of the heirs must have unequivocally and unconditionally accepted the succession to have avoided an administration. See Succession of Sharbino v. Administration, 285 So.2d 545 (La.App.3d Cir.1973); 24 La.L.Rev. 319; Official Comments to La.C.C.P. Art. 3001. The trial court made an express finding that all of the heirs had not accepted the succession unconditionally. This is a finding of fact which is not manifestly erroneous based upon the evidence presented to it. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Therefore, the succession of the deceased exists as a separate, distinct legal entity from the date of death until it is terminated by proceedings had pursuant to an administration or its unqualified acceptance by all of the heirs. See Danos v. Waterford Oil Co., 225 So.2d 708 (La.App. 1st Cir.1969).

At the time that this judicial proceeding was initiated, the Louisiana Code of Civil Procedure was in effect. This code is remedial legislation which is applied retrospectively. Orleans Parish School Board v. Manson, 241 La. 1029, 132 So.2d 885 (1961). In fact, the legislation under which it was enacted specifically provides:

Section 4. (A) This act is hereby declared to be remedial legislation.
(B) The provisions of the Louisiana Code of Civil Procedure enacted by Section 1 hereof, so far as applicable, shall govern and regulate the procedure in all civil actions and proceedings:
(1) Instituted on or after the effective date of this act; and
(2) Pending on the effective date of this act ...

Therefore, the Louisiana Code of Civil Procedure, particularly Articles 2811 et seq, is applicable to the proceedings before the court and it was necessary that judicial proceedings be instituted in order that the succession be properly terminated.

The question as to whether a succession should be placed under administration is, to a considerable extent, within the sound discretion of the trial judge. Succession of Perot, 223 La. 412, 65 So.2d 895 (1953). The appointment was regularly made by a competent court, no opposition was made to it, and the estate had been partially administrated at the time of the attack. More than a year had passed from the date of the qualification of the adminis-tratrix until the institution of these proceedings. Such delayed attacks are viewed with disfavor. Succession of Perot, supra. Under the provisions of La.C.C.P. Art. 3001 , it is clear that an administration was properly invoked in this case.

The class finally argues that the proceedings in qualifying the administratrix were invalid because no attorney was appointed to represent the absentee heirs under La.C.C.P. Art. 3171. The fact that no attorney was appointed to represent the absentee heirs does not, of itself, affect the validity of the administratrix’s appointment. Succession of Perot, supra.

Therefore, the trial court was not in error in refusing to annul the administration of this succession. The class further argues that the proceedings in connection with the sale of the land were invalid because no attorney was appointed to represent absentee heirs under the provisions of La.C.C.P. Art. 3171 which provides:

If it appears from the record, or is otherwise proved by an interested party, that an heir of an intestate, or a legatee or presumptive legal heir of a deceased testator, is an absentee, and there is a necessity for such appointment, the court shall appoint an attorney at law to represent the absent heir or legatee.

This article stresses and only authorizes the appointment of an attorney for absent heirs when there appears to be a necessity therefor; this provision is in keeping with the jurisprudence prior to the Code which held that such an appointment was essential only when the necessity therefor was shown during the course of a pending administration of a succession. See Succession of Kellogg, 51 La.Ann. 1304, 26 So. 262 (1899).

In Middle Tennessee Council, Inc. v. Ford, 274 So.2d 173 (La.1973), the court held that the designation of an attorney for an absentee is not an arbitrary requirement of law but one that is dependent upon the circumstances of each case. The appointment only becomes essential in a ease where the necessity is shown during a pending administration of a succession. Notwithstanding the failure to appoint an attorney for absent heirs, the appointment of an attorney is merely directory, and the failure to appoint one is, at most, only a relative nullity.

Even if the face of the record reflected a necessity for the court to appoint an attorney for the absent heirs in connection with the sale, we conclude that the trial court was not in error in refusing to set aside this sale because of this irregularity. Generally, in the absence of fraud or ill practice by the purchaser, a private sale by an order of court in a succession proceeding will not be disturbed. Such a purchaser does not have to look behind the judicial order commanding the sale to determine the truth of the facts upon which the court has acted but need only be satisfied that the court has jurisdiction. Pete v. Estate of Pete, 253 So.2d 650 (La.App.3d Cir.1971). The order to sell protects a bona fide purchaser from any irregularities contained in the proceeding. Sterling v. C. Marshall Martin, Inc., 409 So.2d 1231 (La.App. 1st Cir.1982). Compare Hammond v. Gibbs, 176 So.2d 465 (La.App. 2d Cir.1965). In this proceeding, the court authorizing the sale was a court of proper jurisdiction. Therefore, it follows that unless the irregularity or ill practice complained of is in some manner attributable to the purchaser or is an absolute nullity, this private sale of property by order of court should not be disturbed. La.C.C.P. Art. 2004 provides that a judgment obtained by fraud or ill practices may be annulled. The criteria set forth for annulling a judgment under this article are explained in Johnson v. Jones-Journet, 320 So.2d 533 (La.1975):

[HJowever; the jurisprudence set forth two criteria to determine whether a judgment had, in fact, been obtained by actionable fraud or ill practices: (1) the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) the enforcement of the judgment would have been unconscionable and inequitable. [Footnote omitted.]

The trial court is permitted discretion in deciding when a judgment will be annulled because of fraud or ill practice. Kem Search Inc. v. Sheffield, 434 So.2d 1067 (La.1983) states:

[S]everal of the most important reasons for deferring to the trial judge’s exercise of discretion are: His observation of the witness, his superior opportunity to get “the feel of the case,” (Citation omitted.) and the impracticability of framing a rule of decision where many disparate factors must be weighed (Citation omitted.). On occasion, when a problem arises in a context so new and unsettled that the rule-makers do not yet know what factors should shape the result, the case may be a good one to leave to the lower court discretion. [Emphasis added.]

Such a rule of law is particularly applicable to the instant case. It is well settled that reviewing courts will defer to the trial judge’s reasonable discretion when his decision is based on a correct application or interpretation of the law. See Kem Search, Inc. v. Sheffield, supra. We conclude that the trial court did not abuse its discretion in finding that the sale or the judgment on which it was based should not be set aside for fraud, ill practice or irregularity. Our review of the record reveals no evidence which could remotely be related to any fraud, bad faith or ill practice on the part of the purchaser. Furthermore, there has been no showing made that the heirs have been deprived of any legal right which would render the enforcement of the judgment and the resulting sale unconscionable and inequitable. We have carefully reviewed this record and have found that there are in excess of sixty heirs to this property. Of these heirs, twenty-eight have brought this action on behalf of all of them. At the hearing, there was no evidence presented from any heir who was an absentee at the time the sale was ordered and consummated and who would have been entitled to the appointment of an attorney that he or she did not want the property sold, or would have opposed the sale or had no actual notice that the property would be sold. Furthermore, the trial court found the price obtained to be fair.

A different result would attach if it was found that the sale price obtained for the property had been unfair or inadequate because this would remove the case from the ambit of La.C.C.P. Art. 2004 and place it in the category of absolute nullity. If property has been sold for a woefully inadequate consideration, then the sale would be absolutely null. Actual value is the value at which the property could reasonably be expected to sell at the time. Middle Tennessee Council, Inc. v. Ford, supra. Value is a question of fact. The trial judge found that the price received for the property was a fair valuation. Such findings are best left to the discretion of the trial judge, particularly when the opinions of experts are involved, because these are matters which the trial judge is in a particularly advantageous position to determine since it is, in effect, a question of credibility. See Middle Tennessee Council, Inc. v. Ford, supra. The only evidence presented to the court established that a fair price was paid for the property under the circumstances of this sale. The class presented no credible evidence to prove that the price obtained was less than the actual value of the property.

The Class next argues that the sale is defective because there was no current valuation of the property for the court to review prior to the sale. There is no legal requirement that an administrator or ad-ministratrix provide the court with a current appraisal for sale of succession property under La.C.C.P. Art. 3281. The requirements of Article 3281 were complied with and the trial court was obviously convinced that the price obtained was a fair one. This argument is without merit.

The Class next argues that the sale was lesionary. Since we have previously arrived at the conclusion that the sale price was fair and represented the actual value of the property, there can be no issue of lesion. Thus, the alternative demands based on claims of lesion are without substance. See Middle Tennessee Council, Inc. v. Ford, supra.

The next basis on which the class seeks to set aside the sale is the invalidity of the agreements entered into by the administratrix with the attorney, the surveyor, and the realtor because the contracts were not approved by the court contending that the administratrix must acquire prior authorization from the court in accordance with law. This contention is more properly addressed in an opposition at the time that the administratrix attempts to homologate the Tableau of Distribution. Accordingly, we pretermit any discussion of the merits of this argument, other than to hold that it does not form a sufficient basis to nullify the sale.

Finally, the class argues that the attorney and the administratrix have acknowledged from the beginning that it was their intention to sell the property thereby contending that the procedures pertaining to partition should have been followed. See La.C.C.P. Arts. 4601 et seq. This argument is equally without merit. It is clear that under La.C.C.P. Art. 3261 that a sale of succession of property may be for any purpose. See also Succession of Voland, 296 So.2d 406 (La.App. 4th Cir.1974); Succession of Pipitone, 204 La. 391, 15 So.2d 801 (1943).

For the foregoing reasons, the judgment appealed from is affirmed at the cost of appellant.

JUDGMENT AFFIRMED.

      . La.C.C.P. Art. 3001 provides:
      The heirs of an intestate shall be recognized by the court, and sent into possession of his property without an administration of the succession, on their ex parte petition, when all of the heirs are competent and accept the succession unconditionally, and the succession is relatively free of debt. A succession shall be deemed relatively free of debt when its only debts are succession charges, mortgages not in arrears, and debts which are small in comparison with the assets of the succession.
      The surviving spouse in community of an intestate shall be recognized by the court on ex parte petition as entitled to the possession of an undivided half of the community, and of the other undivided half to the extent that he has the usufruct thereof, without an administration of the succession, when the succession is relatively free of debt, as provided above.


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

text:
    William N. WOOD, Plaintiff-Appellant, v. Kasemsri P. WOOD, Defendant-Appellee.
    No. 15706-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      John S. Odom, Jr., Shreveport, for plaintiff-appellant.
    James B. Wells & Associates, P.C. by J.B. Wells, Bossier City, for defendant-appellee.
    Before HALL, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

William Wood obtained by default a judgment of separation from his wife, Ka-semsri Wood, with the latter receiving custody of the children and child support. A few weeks thereafter Mrs. Wood sued her husband for a legal separation and, in connection therewith, filed a rule directing him to show cause why the default judgment rendered in his favor should not be set aside because of fraud and misrepresentation.

Wood filed an answer to the rule and trial was had thereon. Judgment was subsequently rendered setting aside the above described default judgment. Mrs. Wood was also granted incidental relief, including alimony pendente lite.

Defendant-in-rule Wood appealed the judgment, contending the trial judge erred in:

(1) Allowing a collateral attack, by summary proceeding, against a final judgment and in failing to notice on his own motion that plaintiff-in-rule had no right of action and stated no cause of action.
(2) Setting aside the default judgment even though the evidence failed to establish fraud or ill practices on the part of Wood in obtaining the judgment.

Appellant also filed in this court exceptions of no cause of action and no right of action.

Finding no manifest error in the trial judge’s fact-finding and that he correctly applied the law to those facts, for the reasons hereinafter explained, we affirm.

Procedural and Factual Context

William Wood, a member of the U.S. Air Force, married Kasemsri Wood in 1971 in the bride’s native country of Thailand. The couple had two children.

On November 2, 1982, while stationed at an air base in Bossier Parish, Wood sued his wife for a legal separation on the ground of cruel treatment. A hearing on the incidental rule to show cause why certain preliminary injunctions should not issue was fixed for December 7,1982. Personal service was made on the defendant on November 8, 1982.

No response to the pleadings was filed. A preliminary default was entered on November 24,1982 and a judgment confirming the default, awarding Wood a legal separation, was rendered on December 1, 1982.

On January 13, 1983, Mrs. Wood filed in the same proceeding a “petition in rule to set aside judgment and for separation from bed and board, child custody, child support and alimony pendente lite.” Wood was ordered to show cause on January 25, 1983 why relief requested in the rule, including annulment of the default judgment, should not be granted. As noted above, Wood filed an answer to the rule. Trial of the rule was had on January 25, 1983.

Mrs. Wood testified that, upon receiving personal service of the separation suit, she contacted the legal office at Barksdale Air Force Base and was furnished the names of three local attorneys. She later asked assistance from the Caddo Parish Legal Aid office but the request was denied because of her income as a waitress. Thereafter Mrs. Wood discussed her case with a private attorney who quoted her a fee of $750. She did not retain him.

According to Mrs. Wood, after moving out of the matrimonial domicile and filing the separation suit, Wood regularly returned to visit her and the children and slept with her on several occasions, the last of which was the night of December 15, 1982. She insisted that, during this period, her husband advised her repeatedly that he had “dropped” the separation suit, that it was unnecessary for her to retain an attorney, and that she would not have to go to court.

Wood admitted visiting his wife and children frequently after instituting the proceedings for a legal separation, but explained that this was primarily to stay with his 10 and 13 year old boys while the mother was absent. Although categorically denying ever telling his wife that the separation suit had been dismissed, Wood conceded having advised her that her attendance at the December 7, 1982 rule hearing was unnecessary since she already had child custody and would receive an award for child support.

Ruling of Trial Judge

In written reasons for judgment, after reviewing the trial testimony, the trial judge stated:

“The Court believes that the action taken by Mr. Wood following his withdrawal from the family home in discussing the case with his wife on many occasions and telling her that he would see that she got the children and sum of $300 per month child support, led Mrs. Wood to believe that her rights would be fully protected if she did not retain counsel. The Court accepts Mrs. Wood’s testimony to the effect that her husband advised her on more than one occasion that she did not need a lawyer. The Court holds that Mr. Wood’s conduct is an “ill practice” under Article 2004 of the Code of Civil Procedure.”

Applicable Law

A final judgment obtained by fraud or ill practices may be annulled provided the plaintiff brings suit within one year of the discovery of the ground for action. La.C.C.P. Article 2004. Since this is a relative rather than an absolute nullity, basis for the attack upon the judgment must be asserted in a direct action and may not be raised collaterally. Nethken v. Nethken, 307 So.2d 563 (La.1975).

In the Nethken case a husband had obtained by default a separation from his wife. After lapse of the required delays he sued the wife for a divorce. She answered the latter, asking for annulment of the pri- or default judgment because it was secured through mistake and error. On its own motion the state supreme court noted that the wife had “no right” to demand the nullity in what the majority characterized as a collateral attack. However, the court proceeded to find on the merits that the husband had not engaged in ill practices. Justice Barham dissented, pointing out that the wife’s attack upon the default judgment was direct rather than collateral. In a brief per curiam opinion rendered in connection with an application for rehearing, the court stated that “since we have found that in fact the husband did not procure the judgment of separation by any ill practice, we prefer to rest our holding upon this factual finding.” It then expressly declined to adopt as its rationale the prior allusions to “no right” of action because of a collateral rather than direct attack upon the judgment.

A collateral attack upon a judgment has been defined as “an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling it.” See Nethken, supra, p. 565. In her petition for a rule to set aside the default judgment, Mrs. Wood alleged certain misrepresentations on the part of her husband concerning the dismissal of his suit and asked that the judgment be set aside. Although Mrs. Wood has combined this action with a suit for a legal separation, annulment of the default judgment was a predicate to success in the separation action. Consequently, we construe hers as a direct rather than a collateral attack upon the default judgment.

We agree with the appellant that use of a summary proceeding to attack the default judgment was improper. However, appellant failed to raise this issue by interposing an exception in the trial court.

An objection to unauthorized use of summary proceeding is a dilatory exception which must be pleaded prior to answer or is deemed waived. La.C.C.P. Articles 926, 928. Levy v. Billeaud, 399 So.2d 775 (La.App. 3rd Cir.1981); Casey v. Casey, 397 So.2d 832 (La.App. 4th Cir.1981).

In re Lomm, 195 So.2d 416 (La.App. 4th Cir.1967) involved an appeal taken by the curator of an interdict from a judgment on a rule awarding an attorney fee. Appellant filed an exception labeled “no cause or right of action” in the appellate court, seeking dismissal of the rule because of improper use of summary proceeding. Disposing of this contention, the court stated:

“It is true, as appellant contends, that summary proceeding (by rule to show cause) cannot be used to fix and recover attorney’s fees; an attorney is required to bring ordinary process for that purpose. (citations omitted) However, under LSA-C.C.P. Arts. 926, 928 and 2593 the objection to the unauthorized use of summary proceeding is a dilatory exception which must be pleaded prior to answer or judgment by default and such an exception to a rule to show cause must be filed prior to the time assigned for trial of the rule. Here appellant made no objection to the form of proceeding in the trial court. His first and only objection thereto is contained in the exception he filed in this court. That exception seeks dismissal of the rule solely on the ground that attorney’s fees cannot be collected in a summary proceeding. Clearly this is not, as labeled, either of the peremptory exceptions of no right or no cause of action; it is the dilatory exception to the unauthorized use of summary proceeding which cannot be initially filed in the appellate court. By failing to timely file the exception in the trial court appellant has waived his right to object to the improper summary proceeding.” (p. 418)

Also see Chauvin v. Nelkin Ins. Agency, Inc., 345 So.2d 132, 133 (La.App. 1st Cir.1977).

For these reasons, we conclude that appellant Wood waived any objection to his wife’s improper use of summary proceeding to attack the default judgment by failing to raise this objection in the trial court through timely filing a dilatory exception.

Appellant argues, however, that his exception of no cause of action and no right of action filed in this court should be sustained. As to the first, by alleging significant misrepresentations of fact on the part of her husband which, if proven, would entitle her to annulment of the default judgment, Mrs. Wood clearly stated a cause of action.

With reference to the exception of no right of action based upon the assertion that this is a collateral attack upon a final judgment by use of a summary proceeding, we conclude (as did the court in the Lomm case, supra) that this is simply a mislabeling of the dilatory exception of unauthorized use of summary proceeding, which we dealt with above. Obviously, the remedy afforded by law in this case [annulment of the default judgment] may be invoked by this particular plaintiff. Consequently, she has a right of action. Nethken, in light of the clarification of the original opinion on the rehearing application, does not support appellant’s position. To the extent that cases from other circuits may impliedly buttress his argument, we do not elect to follow them. Therefore, we overrule the exceptions filed by appellant in this court.

Finally, the appellant argues that Mrs. Wood did not prove by the required preponderance of the evidence that her husband obtained the default judgment as a result of fraud or ill practices.

Our state supreme court, in Johnson v. Jones-Journet, 320 So.2d 533 (La.1975), construing La.C.C.P. Article 2004, explained:

“Article 2004 is drawn primarily from article 607 of the Code of Practice, which, in addition to announcing the general rule that judgments obtained by fraud or ill practices were subject to annulment, set forth as illustrations bribery of the judge or witnesses, production of forged documents, and perjury by the party obtaining the judgment. These illustrations were not considered exhaustive of actionable fraud or ill practice, however; the jurisprudence set forth two criteria to determine whether a judgment had, in fact, been obtained by actionable or ill practices: (1) the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) the enforcement of the judgment would have been unconscionable and inequitable.
“When the Code of Civil Procedure replaced the Code of Practice in 1960, the former rule was retained as article 2004. Although the illustrations were deleted ‘... there was no intention to change the law.’ Hence, the criteria of relief set forth in the jurisprudence still obtains.” P. 537.

Further elaborating upon the ramifications of Article 2004, the court in Chauvin v. Nelkin Insurance Agency, Inc., 345 So.2d 132 (La.App. 1st Cir.1977) stated:

“The applicable rule is that fraud which justifies annulment of a judgment is not confined to conduct which is fraudulent in the strict sense of the term. The provisions of LSA-C.C.P. 2004 are not limited to cases of actual fraud or intentional wrongdoing but encompasses those situations wherein judgment is obtained through some improper practice or procedure which operates, even innocently, to deprive the party cast of some legal right, and where enforcement of the judgment would be unconscientious and inequitable, (citation omitted) p. 134

As Chauvin proceeded to observe, each case must be considered “from the viewpoint of its own peculiar circumstances."

In the recent case of Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1988) the court commented:

“The trial court is permitted discretion in deciding when a judgment should be annulled because of fraud or ill practice, (citations omitted) .. . several of the most important reasons for deferring to the trial judge’s exercise of discretion are: His observation of the witness, his superior opportunity to get ‘the feel of the case,’ (citation omitted) and the impracticability of framing a rule of decision where many disparate factors must be weighed (citation omitted). On occasion, when a problem arises in a context so new and unsettled that the rule-makers do not yet know what factors should shape the result, the case may be a good one to leave to lower court discretion.”

Here, the trial judge accepted as credible Mrs. Wood’s description of her husband’s misrepresentations concerning his dismissal of the separation suit and obviously discounted the husband’s denials. We are mandated to accord great weight to this credibility assessment, absent a clear abuse of the trial court’s broad discretion, which we do not find. Since these misrepresentations led Mrs. Wood to believe that contesting the separation suit was unnecessary, that she did not need to retain an attorney nor appear in court, she was clearly deprived of a legal right and enforcement of the default judgment would be both unconscionable and inequitable. Therefore, the trial judge correctly found that the default judgment should be set aside because it was obtained through fraud or ill practices.

Decree

For the reasons set forth above, appellant’s exceptions of no cause of action and no right of action, filed in this court, are overruled; the judgment of the district court in the summary proceeding is affirmed, at appellant’s cost.


author: PRICE, Judge.

text:
    STATE of Louisiana, Respondent, v. Steven M. SUMMERS, Relator.
    No. 15712-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      Jack Wright, Jr., New Orleans, for relator.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Geary S. Aycock, Asst. Dist. Atty., Monroe, for respondent.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   PRICE, Judge.

Defendant Steven Summers pled guilty to charges of possession of marijuana in violation of La.R.S. 40:966 following the trial court’s denial of his pre-trial motion to suppress evidence seized from his residence. He reserved his right to seek a writ of review on the motion to suppress and this court granted his application therefor, finding merit in his contention that the evidence was unlawfully seized.

The following facts were established at the hearing on the motion to suppress. Officers of the Monroe City Police Department knocked on the door of defendant’s residence, pursuant to a citizen’s complaint identifying the car parked in the driveway of that house as one which had been observed being noisily and recklessly driven. Defendant answered the door and told the officers, in response to their inquiries, that the vehicle was his. When they asked to see his driver’s license, Summers went back into the house to get it, leaving the officers outside the door.

They testified they noticed an unusual, somewhat sweet odor while standing at the door, and then stepped inside the house in order to maintain their observation of defendant, at which point the odor became more apparent. Once inside, the officers noted a burning candle and a hand-rolled cigarette on the coffee table and one of them picked it up, handing it to the other.

Defendant had returned by this time and, as one of the officers started to check the house to determine if others were present, Summers grabbed the cigarette and put it in his mouth. A struggle ensued when one of the officers tried unsuccessfully to keep defendant from swallowing the cigarette by putting his hands around his throat.

In the meantime, a young woman had entered the room from another part of the house and witnessed the struggle. This was defendant’s girlfriend and co-tenant. She and defendant were both informed of their Miranda rights and defendant was then arrested and placed in the patrol car..

Officers from the Narcotics Unit, whose assistance had been requested by the patrol officers, then questioned the woman and secured her signature on a consent to search form. The ensuing search resulted in the seizure of a small amount of marijuana found in the house.

The trial court found the marijuana admissible as the product of a legal search based on the voluntary consent of a co-tenant. He also held the officers had sufficient cause to step inside the open door to keep the suspect in view and investigate the suspicious odor.

This court finds merit in defendant’s contention that the holdings of the trial court are in error and the motion to suppress should have been granted.

It is well settled that a search and seizure conducted without a warrant is presumed unreasonable unless it is justified by one of the narrowly drawn exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Hernandez, 410 So.2d 1381 (La.1982). Once a defendant shows that a warrantless search occurred, the state bears the burden of affirmatively showing the search is justified under one of these exceptions. State v. Franklin, 353 So.2d 1315 (La.1978).

The officers admitted the defendant did not voluntarily permit their entry into the home. He merely left the front door unattended in order to comply with their request to see his license. In State v. Jones, 358 So.2d 1257 (La.1978), where police officers went to the defendant’s apartment to investigate a complaint of loud music and subsequently forced their way in on the basis of their belief that they smelled marijuana smoke, the Louisiana Supreme Court held that imagined smells cannot suffice as probable cause to invade the sanctity of a home. It further stated:

To permit governmental agents to search on such a basis would undermine the right of individuals guaranteed by our state constitution “shall be secure ... against unreasonable searches, seizures, or invasions of privacy.” La. Const. of 1974, Art. 1, Section 5. The constitutional sanctity of a home against unreasonable government intrusion should not depend on the unfounded imagination of police officers, or the potential for fabrication that thereby would result.

Furthermore, as stated by the Supreme Court in State v. Kuhlman, 293 So.2d 159 (La.1974) in invalidating the warrantless search of defendant's home:

The search of a home without a warrant is banned notwithstanding probable cause to believe that it contains contraband or other seizable articles. Such a search, moreover, is not validated by what it brings to light. The traditions of time immemorial sustains this firm constitutional policy protecting the privacy of the home.
[T]he substantive restriction against the invasion of private homes without a search warrant ... forms a sacred feature of our American heritage. Curtailing the substantive restriction . .. impairs the protection of the right of privacy of all the homes in our state—those of both the just and the unjust.

Thus, even if the officers’ sense of smell would suffice to support a belief that contraband was present, though we make no such finding here, the warrantless intrusion was still unjustified. We also fail to find any exigent circumstances which might validate the entry where a defendant being questioned regarding a suspected traffic violation is cooperatively going to get a driver’s license requested by an officer standing in his doorway. See State v. Abadie, 390 So.2d 517 (La.1980). Thus, unless the search was validated by the consent of defendant’s co-tenant, the evidence seized must be suppressed as the product of an illegal search.

Defendant contends the trial court erred in finding that the consent to search given by his co-tenant, Marsha Holloway, was free and voluntary. A valid consent to search is a well recognized exception to the warrant requirement and a voluntary consent, even when given after an illegal detention, is valid under circumstances showing no exploitation of the illegality. State v. Mitchell, 360 So.2d 189 (La.1978).

Where a consent to search is obtained after an illegal detention or entry, the issue is whether the post-arrest consent is the product of free will or the result of exploitation of the previous illegality. State v. Ragsdale, 381 So.2d 492 (La.1980); State v. Mitchell, supra. The consent must be obtained by means sufficiently distinguishable from the illegality to be purged of the primary taint. See Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Bennett, 383 So.2d 1236 at 1242 (La.1980).

In deciding this issue the court should consider not only whether the police informed the one giving the consent to search that he need not comply with their request, but also the temporal proximity between the arrest and the act (of consent) alleged to be coerced, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. State v. Mitchell, supra.

After the struggle between the officers and defendant and his initial detention, the officers had called for and received the assistance of officers of the Narcotics Division, who obtained Miss Holloway’s signature on the consent to search form. Though never placed under formal arrest, she was at all times following the initial entry under the direct supervision and control of at least two police officers. She had just witnessed a struggle in which a police officer placed his hands around her boyfriend’s neck in a vain attempt to keep him from swallowing, and had seen him arrested and taken into custody.

In her testimony at the hearing on the motion to suppress, Miss Holloway stated she was scared when she signed the form, and the officers admitted that she was upset at the time. She testified that she signed the consent form because one of the officers said that he could get a warrant in 10-20 minutes and she would have to allow the search. She also stated the officers said she would remain under their surveillance while they went for the warrant.

Narcotics Officer McClanahan testified that he told her that even if marijuana was found, he would not arrest her unless he could find some evidence to connect her with it. This could be construed, however, by someone in Miss Holloway’s position as a threat that he would assume her possession of any marijuana found if he was forced to get a warrant.

Considering the intrusion of the initial illegal entry into Miss Holloway’s home, the short time between that entry and her signing of the consent to search' during which she was under police control at all times, the intervening events and the other attendant circumstances mentioned above, we believe the initial illegal entry and search was instrumental in provoking Holloway’s consent which was therefore not an act of her free will.

In a case where the question of consent is an issue of fact depending primarily upon an evaluation of the credibility of witnesses, the trial court’s determination is entitled to great weight upon review. State v. Dunbar, 356 So.2d 956 (La.1978). In the instant case, however, the trial court committed an error of law in failing to consider the factors relating to the exploitation of the officer’s illegal act. The essentially uncontradicted evidence shows that the consent was not sufficiently an act of free will so as to purge the taint of the initial illegality. Therefore, the evidence seized should be suppressed.

For the foregoing reasons, the judgment on the motion to suppress is reversed, and the motion is granted. Defendant’s conditional guilty plea is set aside, the conviction reversed, and the case remanded to the trial court for further proceedings.

REVERSED AND REMANDED.


text:
    John B. ANDERSON, dba Paloma Ranch, La. Div., Plaintiff-Appellee, v. Oval C. MILLER, Defendant-Appellant. John B. ANDERSON, dba Paloma Ranch, La. Div., Plaintiff-Appellee, v. Theo BERRY, Defendant-Appellant.
    Nos. 15713-CA, 15714-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Kidd & Kidd by Paul Henry Kidd and Jerry L. Jones, Monroe, for defendants-appellants.
    Snellings, Breard, Sartor, Inabnett & Trascher by Charles C. Trascher, Monroe, for plaintiff-appellee.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   MARVIN, Judge.

In these consolidated actions, each defendant lessee of a common lessor appeals a judgment evicting him from property he once leased. We affirm.

Each appellant contends that the trial court erred in overruling his exception of no cause of action. Each exception is based on the failure of the petition to allege that the plaintiff, John B. Anderson, d/b/a Palo-ma Ranch, La. Div., is the owner of the property, when the lease attached to plaintiff’s petition shows the lessor as Paloma Ranch La. Div. and is signed by Randy Schares, Paloma Ranch, as landlord, and by each defendant as tenant. The lease is on a printed form entitled CROP-SHARE-CASH FARM LEASE. When considered under the lease provisions of the Louisiana Civil Code, this contract establishes a lessor-lessee relationship for a term and for a minimum price per acre.

The allegations of plaintiff’s petitions fully conform to the requirements of law, including the provisions relating to eviction of lessees, CCP Arts. 4701-4735.

Ownership of the leased premises is not an issue when the lessor seeks to evict one who possesses as lessee. A lessor may be someone other than an owner. CC Arts. 2681, 2682. Jackson v. Muse, 190 So. 162 (La.App. 1st Cir.1939) and cases cited therein. All that is necessary to maintain eviction is for the lessor to allege and show that a lessee’s right of occupancy has ceased because of the termination of the lease, that the lessor wishes to obtain possession, and that the lessee has failed to comply with the required notice to vacate. CCP Arts. 4701, 4731.

At the trial on the merits, Schares testified that he was employed by Anderson, d/b/a Paloma Ranch, to manage and lease the property for Anderson and that he entered into the lease with each defendant as a part of his duties. Each defendant admitted possessing under the lease and receiving notice of termination and to vacate. Schares’ testimony was clearly admissible as he was testifying on behalf of the plaintiff in the action who was his principal. Reliance on Patrick v. Patrick, 230 So.2d 759 (La.App. 2d Cir.1970), is misplaced because Schares was not testifying against his principal. Patrick held that statements of an alleged agent are inadmissible to prove the fact of the agency where the statements of the alleged agent are sought to be used against the alleged principal. Similarly, Kavalary v. Hansen, 367 So.2d 1336 (La.App. 4th Cir.1979), does not avail appellants because Kavalary was suing in his own name as agent and had the burden of proving his procedural capacity.

We have held that each appellant was a lessee. The fact that they might also be characterized as occupants and as sharecroppers, as appellants argue, does not change the result. CC Art. 2671. Appellants occupied or sharecropped the respective property as lessees under the terms of a written lease and are subject to the provisions of the eviction laws of this state. These laws authorize summary proceedings for eviction of a lessee. Appellants’ argument that a petitory action, and not a summary proceeding, was the “proper” remedy for plaintiff, does not deserve our further consideration. Appellants were not possessing as co-owners of the property with plaintiff, but again were mere lessees who do not come within the rule regarding eviction of co-owners stated in Champagne v. Broussard, 401 So.2d 1060 (La.App. 3d Cir.1981).

At the cost of each appellant, judgment in each action is AFFIRMED.


author: HALL, Judge.

text:
    JIMMY DAVIS, INC., Plaintiff-Appellant, v. Bill C. DOWNEY, Clerk of Court of Ouachita Parish and Recorder of Mortgages, and Billy Joe Blanchard, Defendants-Appellees.
    No. 15718-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.

      Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for plaintiff-appellant.
    Bill C. Downey, in pro. per.
    Bruscato, Loomis, Deal & Street by C. Daniel Street, Monroe, for defendant-appel-lee, Billy Joe Jordan.
    Before PRICE, HALL and NORRIS, JJ.
   HALL, Judge.

The plaintiff in this mandamus action appeals from a trial court judgment which sustained a dilatory exception to the unauthorized use of summary proceedings and a peremptory exception of no cause of action, and dismissed plaintiff’s suit. We reverse the judgment appealed and remand the action to the district court for further proceedings.

The plaintiff, Jimmy Davis, Inc., filed this summary proceeding against the Clerk of Court and Recorder of Mortgages for Ouachita Parish, Bill C. Downey, and Billy Joe Blanchard, a judgment creditor holding a judicial mortgage against Jimmy L. Davis, Inc., seeking the issuance of a writ of mandamus compelling the clerk to make a notation on the recorded judgment that it does not apply to the property of Jimmy Davis, Inc. and to cancel and erase the judgment insofar as the same may affect any property of Jimmy Davis, Inc. Plaintiff’s petition alleges, as a basis for the requested relief, that the two corporations are separate and distinct legal entities.

The Clerk of Court answered plaintiff’s petition acknowledging the existence of the recorded instrument in question, alleging that it does not purport to affect Jimmy Davis, Inc., and declaring that his office stood ready to comply with any orders rendered by the district court in this matter. The judgment creditor, Blanchard, in addition to the dilatory and peremptory exceptions previously mentioned, in compliance with LSA-C.C.P. Art. 3783, also filed an answer acknowledging the existence of the judicial mortgage and alleging that it does not purport to be against Jimmy Davis, Inc. From the trial court’s judgment sustaining Blanchard’s exceptions and dismissing its suit, the plaintiff appealed.

Exception of Unauthorized Use of Summary Proceedings

The primary issue presented for our resolution is whether or not the extraordinary remedy of mandamus is authorized in this instance. We conclude the issuance of that writ is available to this plaintiff.

A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or in any case where the delay involved in obtaining ordinary relief may cause injustice. LSA-C.C.P. Art. 3862. A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. LSA-C.C.P. Art. 3863. The issuance of a writ of mandamus in those instances necessary to preserve the integrity, reliability and utility of the public records has long been recognized and approved by the courts of this state. State v. Code, 215 La. 485, 41 So.2d 62 (1949); Cappel v. Hundley, 168 La. 15, 121 So. 176 (1929); State v. Dunn, 148 La. 460, 87 So. 236 (1921); Settoon v. Settoon, 413 So.2d 634 (La.App. 1st Cir.1982); American Bank & Trust Co., Etc. v. F & W Const., 357 So.2d 1226 (La.App. 2d Cir.1978); Dupuy v. Demarest, 342 So.2d 263 (La.App. 4th Cir.1977); Gauguin, Inc. v. Addison, 288 So.2d 893 (La.App. 1st Cir.1973); Commercial Farms, Inc. v. McCain, 278 So.2d 513 (La.App. 3d Cir.1973); Executive House Building, Inc. v. Demarest, 248 So.2d 405 (La.App. 4th Cir.1971); Realsco, Inc. v. Green Acres Civic Association, 169 So.2d 570 (La.App. 4th Cir.1964); State v. 8-Mile Post Plumbing Supplies, 63 So.2d 749 (La.App.Orl.1953).

In essence, the plaintiff requests that the recorder note on the face of the mortgage records the separate identities of the similarly-named corporations involved for the purpose of clarification and to prevent any confusion which might arise from examination of the public records. The requested clarifying notation is important in this instance due to the extreme similarity of the corporate names involved and may be classified as the performance of a ministerial duty designed to preserve the integrity, reliability and utility of the public records.

Strictly speaking, the above-cited authorities stand for the proposition that a writ of mandamus will issue to compel the cancellation or erasure of a mortgage or other instrument acting as an illegal or improper encumbrance upon an individual’s immovable property. In such cases the writ issues in furtherance of the clerk’s ministerial duty to properly maintain the public records as set forth in Chapter 2 of Title XXII of Book III of the Revised Civil Code, Arts. 3342-96. Mandamus promotes not only the integrity, reliability and utility of the public records but also the swift cancellation of an improper encumbrance without the injustice necessarily involved in the delays attendant to an ordinary proceeding. While the requested clarifying notation is not strictly a demand for cancellation or erasure, it is analogous in character to such a request and the issuance of a writ of mandamus in this instance furthers the policies and comprehensive ministerial duties of the Clerk of Court and Recorder of Mortgages discussed above.

Implicit in the clerk’s duty to promptly and properly record instruments such as the judicial mortgage here involved is the duty to make notations of identity on the recorded instruments necessary to facilitate the proper examination, use and effect of the public records. Otherwise, the workings of the system whereby individuals are charged with notice under the law of this state are unreasonably hampered. Among the duties of the clerk is the duty to promptly deliver correct certificates of mortgage upon request. LSA-C.C. Arts. 3392 and 3393. The requested notation will no doubt aid in the performance of that ministerial duty.

Whenever the judgment debtor’s identity is questionable and whenever the rights of the judgment creditor might be affected, it is appropriate for the clerk to refuse to make a notation such as that requested in this case without the judgment creditor’s consent, or in the absence thereof, a court order. Upon the clerk’s refusal to perform such a ministerial duty or function, the proper recourse, recognized by numerous prior decisions, is the institution of a mandamus action against the clerk with notice to the judgment or mortgage creditor. Under this expedited procedure, the creditor has ample opportunity to oppose the notation, cancellation, release, or whatever action is sought to be compelled without needlessly subjecting the party seeking relief to the injustice attendant to the delays necessarily involved in proceeding by ordinary process to clarify the debtor’s identity or to determine the validity or scope of the purported encumbrance.

We hold that the use of mandamus in this instance is authorized because the relegation of the plaintiff to the institution of an ordinary proceeding to obtain the requested relief would cause injustice and the writ is directed to a public officer to compel the performance of a ministerial duty required by law.

Having found that the writ of mandamus lies in this situation, it necessarily follows that the defendant’s dilatory exception to the unauthorized use of summary proceedings is without merit. LSA-C.C.P. Art. 3781 provides that mandamus proceedings may be tried summarily.

Exception of No Cause of Action

Plaintiff’s petition alleges the existence of the judicial mortgage and that the plaintiff is a separate and distinct legal entity from the judgment debtor. Plaintiff’s petition requests that Blanchard be made a party to and given notice of the proceedings, which was done in this case. Plaintiff’s petition concludes with a prayer for relief ordering the clerk to make a notation on the judgment recorded that it does not affect any property belonging to the plaintiff and to cancel or erase the judgment insofar as it affects any of plaintiff’s property.

Here, the exact notation prayed for goes beyond the compulsion of the mere ministerial duty of noting or clarifying the judgment debtor’s identity and is beyond the scope of the clerk’s authority. The notation that the judicial mortgage does not affect the property of another is an act requiring a legal interpretation which the clerk is not authorized to make.

However, it is obvious that the essence of the relief plaintiff seeks is to establish that Jimmy L. Davis, Inc. against whom the recorded judgment was rendered is not the same juridical person as the plaintiff, Jimmy Davis, Inc., and to have the clerk make a notation on the face of the judicial mortgage to that effect. The plaintiff seeks to compel the performance of a ministerial duty by a public officer through the issuance of a writ of mandamus, a cause of action recognized and authorized by our law. Plaintiff has pleaded the existence of the judicial mortgage and the separate identities of the two corporations involved. Upon presentation of sufficient proof or on the basis of the defendant’s admission of separate identity, the plaintiff would be entitled to relief consistent with those allegations of its petition, although not entitled to a notation in the precise language or wording contained in its prayer for relief. LSA-C.C.P. Art. 862. Since the allegations of plaintiff’s petition disclose a cause of action, the trial judge erred in sustaining defendant’s peremptory exception.

Decree

For the reasons assigned, the judgment of the district court sustaining the dilatory exception to the unauthorized use of summary proceedings and the peremptory exception of no cause of action is reversed and the exceptions are overruled. The action is remanded to the district court for further proceedings consistent with the views expressed in this opinion. All costs of this appeal are assessed against defendant-ap-pellee, Billy Joe Blanchard.

Reversed and remanded.