author: BOUTALL, Judge.

text:
    STATE of Louisiana v. Andrew KELLY, Jr.
    No. 83-KA-739.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 1984.
    William C. Credo, III, Asst. Dist. Atty., Research & Appeals, Gretna, for State of La., plaintiff-appellee.
    Martha E. Sassone, Staff Appeals Counsel, 24th Judicial Dist., Gretna, for Andrew Kelly, Sr., defendant-appellant.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   BOUTALL, Judge.

Appellant, Andrew Kelly, Jr., was charged by Bill of Information with violation of La.R.S. 14:62.2, simple burglary of an inhabited dwelling. After withdrawing a plea of not guilty to that charge, appellant pleaded guilty to the lesser included offense of simple burglary. After a pre-sentence investigation, appellant was sentenced to six years in the custody of the Department of Corrections. Defendant appealed, alleging as error that the trial court’s sentence was excessive. We find no merit in the allegation.

The sentence is affirmed.

Facts:

During the late evening of April 23,1983, the appellant went to the Travel Lodge Motel in Marrero, Louisiana to meet some friends. At approximately 11:55 p.m. he passed by Room 308, and, believing it to be unoccupied, he entered and started to rifle the contents of a suitcase located therein. When one of the tenants of the room, Mrs. Cheramie emerged from the dressing area, she screamed. The appellant fled, snatching the victim’s purse from the dresser as he left.

Alerted by the screams, Mr. Cheramie and an off-duty police officer who was in the vicinity gave chase. The appellant was apprehended in the motel parking lot. All of the victim’s property was recovered.

Appellant designated in his allegations of error filed with the trial judge pursuant to La.C.Cr.P. art. 844, that the trial judge committed reversible error by imposing an excessive sentence. However, appellant failed to brief or argue this assignment of error.

It is well settled that an assignment of error which is not briefed is considered abandoned. See rule 2-124 Uniform Rules of the Court of Appeal; State v. Triplett, 434 So.2d 1270 (La.App. 1st Cir.1983); State v. Dirden, 430 So.2d 798 (La.App. 5th Cir.1983). Therefore the court will not consider this assignment.

Although appellant abandoned that assignment of error, he did argue in his brief, for the first time, that the sentencing judge failed to comply with the sentencing guidelines of La.C.Cr.P. article 894.1. This assignment of error was not lodged in the trial court pursuant to La.C.Cr. art. 844. Rather, the defense incorporated it into the brief filed with this court.

L.S.A.-C.Cr.P. article 844 provides:

The party appealing shall designate, in writing, those errors which are to be urged on appeal. This assignment of error shall be filed within the time specified by the trial judge, but not later than five days prior to the return date. A copy of the assignment of errors shall be furnished to the trial judge by the appealing party on the date such errors are filed.
The trial judge may submit such per curiam comments as he desires.

In State v. Lavene, 343 So.2d 185, 187 (La.1977) the Louisiana Supreme Court held: “[Assignments of error are designations in writing of the errors to be urged on appeal and are to be filed with the trial court, which may submit per curiam comments. [Citation omitted]. Except for ‘patent error’, the reviewing court may consider only errors so designated. [Citation omitted].” See also State v. Spell, 399 So.2d 551 (La.1981) and State v. Spears, 350 So.2d 603 (La.1977).

Defendant briefs an assignment of error that was not lodged with the trial court as per article 844, therefore it is not properly before the court. Nevertheless we are constrained to recognize errors patent. Additionally we are inquiring into the matter due to the obvious confusion noted in appellant attorney’s brief, where the attorney insists on alluding to the defendant’s conviction for “attempted armed robbery.” With the above in mind, defendant’s proposition was examined.

The record reveals that the trial judge iterated his reasons for sentencing in remarkable detail, alluding to multiple art. 894.1 facts. The trial judge fully and thoroughly complied with the guidelines established by art. 894.1.

The sentence is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Michael DAVIS.
    Nos. 83-KA-691, 692, 693.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 1984.
    Writ Denied Sept. 28, 1984.

      Joseph Montgomery, Staff Appeals Counsel 24th Judicial Dist., Indigent Defender Bd., Gretna, for Michael Davis, defendant-appellant.
    William C. Credo, III, Asst. Dist. Atty., Research & Appeals, Gretna, for State of La., plaintiff-appellee.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   BOUTALL, Judge.

Michael Davis was charged with three separate bills of information for violation of R.S. 14:67 (theft), pleaded guilty and was sentenced to consecutive sentences. He appeals, assigning error in the sentences imposed for noncompliance with Code of Criminal Procedure article 894.1, and for illegality and excessiveness of sentences.

We do not consider the assignment of error based upon insufficient iteration of the reasons for sentencing as set out in C.CR.P. article 894.1, because we consider the sentences imposed are improper at least in part.

Davis was charged in three separate bills of information, all being violations of R.S. 14:67 (theft of merchandise). The first bill (24th J.D.C. Docket #83-205, our appeal # 83-KA-791) charged Davis with theft of merchandise valued at $776.92 from a Sears Roebuck Department Store. The second bill (24th J.D.C. Docket #83-767, our appeal # 83-KA-692) charged Davis with two counts of theft of merchandise valued at $190.79 and $264.95 from a D. H. Holmes Department Store. The third bill (24th J.D.C. Docket # 83-845, our appeal # 83-KA-693) charged Davis with theft of merchandise valued at $127.15 from a Radio Shack store. After pleading guilty to these charges the defendant was sentenced in the first case, Sears, to 6 years with the Department of Corrections to run consecutively with an 18 month sentence previously imposed in another section of court; in the second case, D. H. Holmes, two consecutive sentences of 2 years on each count; in the third case, Radio Shack, one consecutive sentence of one year; thus being sentenced to a total of 11 years consecutive to the previous theft sentence which is not before us.

Appellant contends that all of these charges arose out of a common plan or common course of criminal conduct and should have been charged as one charge for the aggregate of the amount of the theft. The criminal conduct of the defendant consisted of buying merchandise at a store, paying for it with a check on an account that had been closed, and then returning the merchandise to another branch store and receiving cash for it. These activities took place within the same month. While under the facts related to us it appears that the District Attorney could have charged defendant with the crime of issuing worthless checks, R.S. 14:71, he chose to charge defendant under the theft statute and no reason is suggested to us why this is improper. State v. Walters, 440 So.2d 115, 122 (La.1983).

The pertinent law is R.S. 14:67 which provides for different grades of the offense based upon the amount taken. That law further provides that when the taking is by a number of distinct acts of the defendant, the aggregate of the amount of the misappropriations or takings shall determine the grade of the offense. Code of Criminal Procedure article 481 further provides that an indictment for theft may include several counts against the same defendant for distinct acts of theft, and the aggregate amount of the thefts shall determine the grade of the offense or charge.

We find the bills of information to have been properly brought. We refer to the case of State v. Baker, 859 So.2d 110 (La.1978), as authority for the proposition that there is a difference between charges arising out of issuing worthless checks and the theft statute. In Baker the aggregation of the total amount of worthless checks to determine the grade of the offense was held to be within the arbitrary decision of the state to transform misdemeanors into felonies, etc. But in that case the Supreme Court pointed out that no such uncertainty as to charge or grade existed under the theft statute because the statute was mandatory noting as follows:

“This worthless check statute is not saved from uncertainty as is the theft provision which allows the grade of the offense to be determined by the aggregate taken, because the theft provision punishes “a misappropriation or taking by a number of distinct acts.” R.S. 14:67. The crime of theft is one crime (“a misappropriation or taking”) against a single victim through a series of separate actions. The legislature has made it one offense to pursue a certain course of conduct, viz., misappropriation of the property of another, even when that misappropriation takes place through a number of distinct acts. (Emphasis added) (359 So.2d 114).

We further refer to State v. Norris, 242 La. 1070, 141 So.2d 368 (La.1962), which held that under the appropriate sections of the law, distinct acts of taking are chargeable in one indictment, the total amount thereof to determine the grade of offense. Considering these cases with the wording of the statute, the defendant could properly be charged with a separate bill of indictment for the theft committed against each individual victim, there being no continuous action linking the three except the modus operandi devised by the defendant.

Yet the same authorities referred to above cause us to conclude that there is error in the sentence imposed in the second charge, theft from D.H. Holmes, which contains two counts and upon which defendant was sentenced to two consecutive terms of imprisonment. This is in clear violation of the statutes cited above. The sentence must be imposed upon the aggregate amount and cannot be separated into counts, with a separate sentence upon each count. The result reached here is that the defendant received 4 years sentence (2 plus 2) when the grade of the offense permits a maximum of 2 years.

Accordingly, we hold that the sentence imposed in Docket # 83-767 is improper and must be set aside. Because the sentences in each of the three charges were imposed simultaneously and upon considerations relating to each other, we must set aside all three sentences and remand this matter to the district court for a reconsideration of the sentences and imposition of proper sentence under the principles announced herein.

The sentences in the cases appealed are set aside and these matters are remanded for imposition of sentence.

SENTENCE SET ASIDE AND REMANDED.

      . Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
      Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.
      When the misappropriation or taking amounts to a value of one hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.
      When the misappropriation or taking amounts to less than a value of one hundred dollars, the offender shall be imprisoned for not more than six months, or may be fined not more than five hundred dollars, or both. If the offender in such cases had been convicted of theft two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than one thousand dollars, or both.
      When there has been a misappropriation or taking by a number of distinct acts of the offender, the aggregate of the amount of the misappropriations or takings shall determine the grade of the offense.


text:
    Charles Francis BARBERA v. MIDWAY LAND COMPANY, INC., et al.
    No. 83-CA-736.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 1984.
    Rehearing Denied Sept. 17, 1984.

      Steven F. Griffith, Sr., Destrehan, and Joseph Y. Bologna, New Orleans, for Charles Francis Barbera, plaintiff-appellant.
    Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, and Leon C. Vial, III, Hahn-ville, for Midway Land Company Inc., et al. def endants-appellees.
    Before BOUTALL, BOWES and GAU-DIN, JJ.
   BOUTALL, Judge.

This is a petitory action involving ownership of certain batture land on the Mississippi River in St. Charles Parish. From a judgment in favor of the defendants, the plaintiff appeals.

Charles Francis Barbera (“Charles”) seeks to be declared the rightful owner of batture land that he alleges formed part of a larger tract that his late father, Charles Barbera (“Barbera”), owned as his separate property. The plaintiff claims to have inherited the batture in his father’s succession. The defendants, presently in possession, are Midway Land Company, Inc. (“Midway”), CharlesTowne Homeowners Association, Inc. (“CharlesTowne”), Point Landing, Inc., Donald Wood, Glenn Douglas Wood, American River Transportation Company, and Archer, Daniels, Midland Company. Midway and CharlesTowne are transferees of the original tract. Donald Wood and Glenn Douglas Wood are principal shareholders of Midway and Point Landing (a lessee), which companies merged into Wood Resources Corporation after the suit was filed. The other two defendants are lessees of Midway (Wood Resources Corporation).

In 1917 Charles Barbera purchased a large tract of land situated on Almedia Plantation from Robert Frank Foy. Barb-era sold the tract to Myown Farms, Inc. in 1941. In 1972 a subsequent owner, United Acceptance Corporation, donated a portion of the tract to CharlesTowne for a “Common Area.” Midway purchased the remainder of the tract in 1976. Sometime after 1941 and before 1972, Barbera had died and his succession had been opened. On August 13, 1979, a supplemental and amended judgment of possession was signed. That judgment recognizes Charles as the sole heir of his father’s one half of the community and of all his separate property, including that portion of the Almedia tract that lies between the Jefferson Highway and the Mississippi River.

The plaintiff alleges that the tract his father acquired from Robert Frank Foy in 1917 extended to the river and included the batture. He contends that the sale from Barbera to Myown Farms did not include the batture, that the batture was not transferred in subsequent sales, that he inherited the land from his father, and that the defendants and their lessees are trespassers.

Charles filed a petitory action on March 12,1980. A motion for summary judgment was filed by the defendants on the ground that the boundary of the land acquired by Barbera in 1917 was.the public road, not the river; however, that motion was denied. After a trial of the merits, judgment was rendered on August 12, 1983, declaring that Charles Francis Barbera is not the owner of the land in question; further, that the 1941 purchaser, Myown Farms, Inc., and its successors and assigns, are not the owners but the court will not disturb their possession of the land. In his reasons for judgment the trial judge stated that the land was not included in maps referred to in the act transferring the original tract to Barbera; and where there is a discrepancy between the map and the property description the map controls. As Barbera had never owned the batture, Charles had not inherited it nor did Myown Farms purchase it from Barbera.

The issues before us are, first, whether the common ancestor held title to the bat-ture land and, second, if so whether any rights to title were transmitted to the defendants.

The Civil Code articles governing ownership of an immovable, as amended in 1979, provide:

“Art. 531. Proof of ownership of immovable.
One who claims the ownership of an immovable against another in possession must prove that he has acquired ownership from a previous owner or by acquisitive prescription. If neither party is in possession, he need only prove a better title.”
“Art. 532. Common author
When the titles of the parties are traced to a common author, he is presumed to be the previous owner.”

Proof of title to an immovable in a petitory action is set out in La.C.C.P. art. 3653, as amended in 1981, as follows:

“To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:
(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.
When the titles of the parties are traced to a common author, he is presumed to be the previous owner.”

Under the facts of this case, where it is undisputed that the titles of both parties are traced to a common owner, Barbera, and the defendant is in possession, the burden of proof is on the plaintiff to prove his title back to the common owner. Weaver v. Hailey, 416 So.2d 311 (La.App. 3d Cir.1982); Comment, 55 Tul.L.Rev. 192 (1980). Accordingly, we must first determine whether the court was correct in finding that the Foy to Barbera sale of 1917 failed to transfer the batture land to Barbera.

Louisiana jurisprudence regarding land at the water’s edge dates back to the nineteenth century and involves property transfers taking place as early as the eighteenth century. The early cases held that where an estate is bounded by the Mississippi River or is described as fronting on the river then it is understood to include the rights to any alluvion that may form, at the same time being subject to any diminution from erosion of the banks. Morgan v. Livingston, et al, 6 Mart. (O.S.) 19 (La.1819), and cases cited therein. Morgan was followed in LaBrancke’s Heirs v. Montegut, 47 La.Ann. 677, 17 So. 247 (1895) and Meyers v. Mathis, 42 La.Ann. 471, 7 So. 605 (1890). See also Hayward v. Noel, 225 So.2d 638 (La.App. 1st Cir.1969). The right to accretion is an accessory of the riparian estate. However, once alluvial soil has so built up along the water’s edge as to appear above the water at its ordinary stage, the resulting land or batture becomes susceptible of ownership separate from the riparian estate. Maginnis Land & Improvement Co. v. Marcello, 168 La. 997, 123 So. 653 (1929); State v. Richardson, 140 La. 329, 72 So. 984 (1916). If the batture has so formed at the time of sale of property belonging to a riparian estate, it must be specifically mentioned in the act to be transferred to the new owner. Ferriere v. City of New Orleans, 35 La.Ann. 209 (La.1883); Cambre v. Kohn, 8 Mart (N.S.) 572 (La.1830); Tassin v. Rhynes, 366 So.2d 580 (La.App. 3rd Cir.1978), writs refused 368 So.2d 123 (La.1978); Tregre v. Lasseigne, 413 So.2d 218 (La.App. 4th Cir.1982).

The property description in the 1917 act of sale between Foy and Barbera reads as follows:

“A CERTAIN LOT OF GROUND, together with all the improvements thereon, and all the rights, ways, servitudes, privileges and advantages thereunto belonging or in anywise appertaining and together with all the batture, accretion, accession and riparian rights, forming part of the ALMEDIA PLANTATION, situate in the Parish of St. Charles, in this State, composing part of the originla (sic) lots Numbers Sixteen (16) and Seventeen (17) on a map of certain surveys made on May 16th., June 6th., and December 2nd., 1911, by J.W.T. Stephens, Civil Engineer; and designated as Lot Number TWO (2) according to a sketch of Survey made by S.J. Achie, Jr., Surveyor, June 20th., 1917, annexed to and made part of an act of sale passed before the undersigned Clerk of Court and Ex-Officio Notary Public, this day, being a sale by the Vendor herein to Joseph Barbera; said lot is bounded by the Mississippi River, on the upper line by land this day sold to Joseph Barbera, on the lower line by land this day sold to Angelo Palmisano, and measuring Two hundred and thirty-four (234) feet front on the Mississippi River and running back between opening lines to the Yazoo & Mississippi Valley R.R. Right of Way with a front on said right of way, of Two hundred and sixty (260) feet, and contains 18.935 Acres.
“Being a portion of the same property which was acquired by said Vendor by purchase from Dunbar G. Laplace, by an act passed before Thomas E. Furlow, a Notary Public in and for the Parish of Orleans, Louisiana, on the 29th., day of March, 1915; said act being duly registered in the Conveyance Office of the Parish of St. Charles, Louisiana, in Conveyance Book “S” at folio 194 et seq.” [Emphasis supplied.]

Clearly the property description conveys the batture and riparian rights to Barbera. However, the appellees urge that the boundary on the map is the road, and it matters not whether the property description includes the batture. Where there is a conflict between the map and the written description, the map controls. Maginnis Land & Improvement Co. v. Marcello, supra; Isacks v. Deutsch, 114 So.2d 746, (La.App. 1st Cir.1959).

The appellant argues that the sale transferred not only the lot as shown on the plan but also the batture along with the lot. He bases his claim on the property description in the 1917 sale, quoted above, which stated that the land was bounded by the Mississippi River and included “all the batture, accretion, accession and riparian rights.” He urges that the map drawn in 1911 and the plan drawn from it in 1917 which is part of the act of sale, are in agreement with the description. Moreover, the fact that the property description in the 1941 sale, Barbera to Myown Farms, does not mention the river and batture while the map and description both clearly mark the boundary as Jefferson Highway is proof that the batture land remained in his father’s hands.

We believe that the appellant is correct and that the sketch of the survey made by S.J. Achee, Jr., on June 20, 1917, annexed to the act, and the earlier map of surveys made in 1911 by J.W.T. Stephens are consistent with the transfer of the tract of land, or lot, together with the batture attached. The presence of a road and levee between an estate and the river’s edge does not destroy the owner’s right to the bat-ture. Morgan v. Livingston, supra; Meyers v. Mathis, supra; Succession of Delachaise v. Maginnis, 44 La.Ann. 1043, 11 So. 715 (1892). According to the surveys, the batture in our own case was sufficiently visible at the time of sale to be susceptible of ownership separate from the riparian estate under the jurisprudence cited above; therefore, if the 1917 property description had not specifically referred to the batture and riparian rights, the batture would not have been included in the transfer to Barb-era.

We consider now whether Barbera transferred any rights to the batture land to Myown Farms in 1941, which subsequently transferred to the defendants. The description and survey on which that sale was based clearly restrict the land sold to the plot between the northerly right of way line of the Jefferson Highway and the right of way of the Yazoo and Mississippi Valley Rail road. The description refers specifically to four corners marked by iron pipes which are designated on the map as “A”, “B”, “C”, and “D”, and is in accordance with Landry’s 1941 plan annexed. There is no mention of a transfer of bat-ture or riparian rights. The property description reads as follows:

“That portion of ground, together with all the buildings and improvements thereon, and all of the rights, ways, privileges, servitudes, appurtenances and advantages thereunto belonging or in anywise appertaining, situated in the Parish of St. Charles, State of Louisiana, forming part of Almedia Plantation, in Section 40, Township 12 South, Range 9 East, east of the Mississippi River, comprising part of original Lots 16 and 17 on surveys made by J.W.T. Stephens, C.E., on May 16, June 6 and December 2, 1911, and designated as Lot 2 on a plat of survey by S.J. Achee, Jr., surveyor, dated June 20, 1917. According to a plat of survey made by HE. Landry, C.E. & S., dated September 11, 1941, annexed hereto for reference, said portion of ground is also designated as Lot 2 and measures 264-6 feet front on the northerly right of way line of the Jefferson Highway and extending in depth between its westerly side line, bearing North 17 degrees 44 minutes West for a distance of 3509 feet, and its easterly side line, bearing North 17 degrees 18 minutes West, a distance of 3424.2 feet to the south right of way line of the Y & M.V.R.R. where it measures 263.1 feet; all four corners being witnessed by a 2 inch galvanized iron pipe marked A, B, C and D on said plat, and enclosing 19.68 acres, more or less, bounded on the north by the right of way of the Y. & M.V.R.R., on the south by Jefferson Highway, on the east by Lot 3, property of Angelo ‘Palmasa-na’ and on the west by Lot 1, property of Joseph Barbera.
“Being the same property acquired by Charles Barbera from Robert Frank Foy, act dated June 29, 1917, passed before C.W. Rossner, N.P., registered in C.O.B. T, folio 175, on July 2,1917.” [Emphasis supplied.]

We hold that Charles Francis Barb-era has carried his burden of proof of ownership of the batture land in dispute, having acquired through his father, Charles Barbera, by action of law as heir to his father’s separate property. Midway (Wood Resources Corporation) and CharlesTowne do not hold title to the batture as successors in title to Barbera’s vendee, Myown Farms, as Barbera was never divested of the batture.

Accordingly, we set aside and reverse that portion of the judgment declaring that Charles Francis Barbera is not the owner of the land comprising the public road, levee, and batture fronting Lot 2, part of Almedia Plantation, as per sketch by S.J. Achee, Jr. dated June 20, 1917 and annexed to and made part of an act of sale by Robert Frank Foy to Joseph Barbera on June 29, 1917, and we render judgment in favor of Charles Francis Barbera and against defendants decreeing Charles Francis Barbera to be the owner of the following described property:

“A CERTAIN LOT OF GROUND, together with all the improvements thereon, all the rights, ways, servitudes, privileges and advantages thereunto belonging or in anywise appertaining and together with all the batture, accretion, accession and riparian rights forming part of the ALMEDIA PLANTATION, situated in the Parish of St. Charles, in this State, composing part of the original LOTS NOS. 16 and 17 on a map of certain surveys made on May 16, June 6, and December 2,1911, by J.W.T. Stevens C.E., and designated as LOT NO. 2 according to a sketch of survey made by S.J. Achie, Jr., Surveyor, June 20, 1917, annexed to and made part of an act of sale passed before Charles William Ross-ner, Clerk of Court, ex-officio Notary Public, on the 29th day of June 1917, being a sale by Robert Frank Foy to Joseph Barbera; said Lot is bounded by the Mississippi River, on the upperline by the land sold on June 29, 1917 to Joseph Barbera and on the lowerline by land sold to Angelo Palmasano on June 29, 1917, and measuring Two hundred thirty four feet (234') front on the Mississippi River and running back between opening lines to the Yazoo and Mississippi Valley Railroad right of way with a front on said right of way of Two Hundred Sixty feet (260') and contains 18.935 acres. “Less and except
“That portion of ground together with all the buildings and improvements thereon, all the rights, ways, privileges, servi-tudes, appurtenances and advantages thereunto belonging or in anywise appertaining situated in the Parish of St. Charles, State of Louisiana forming part of the ALMEDIA PLANTATION, in Section 40, township 12 south, range 9 east, East of the Mississippi River comprising part of the original LOTS 16 and 17, on surveys made by J.W.T. Stephens, C.E., on May 16, June 6, and December 2, 1911, and designated as LOT 2 on a plat of survey by S.J. Achie, Jr., Surveyor, dated June 20, 1917. According to a plat of survey made by H.E. Landry, C.E. & S., dated September 11, 1941, annexed to act before Dufour Bayle, NP., on October 6,1941, said portion of ground is also designated as LOT NO. 2 and measures 264.6 feet front on the northerly right of way line of the Jefferson Highway and extending in depth between its westerly sideline, bearing north 17° 44 minutes west, for a distance of three thousand five hundred nine feet (3509') and its easterly sideline, bearing north seventeen degrees (17°) eighteen minutes west, a distance of 3424.2 feet to the south right of way line of the Y. & M.V.R.R., where it measures 263.1 feet; all four corners being witnessed by a two inch galvanized iron pipe marked A, B, C and D, on said plat, and enclosing 19.68 acres more or less, bounded on the north by the right of way of the Y. & M.V.R.R., on the south by Jefferson Highway, on the east by Lot 3, property of Angelo Palmasano, and on the west by Lot 1, the property of Joseph Barbera. Being the same property sold by Charles Barbera in a sale dated October 6, 1941, before Dufour Bayle, NP., for the Parish of Orleans, and recorded in COB SS, Folio 267, et seq.”

We affirm that portion of the judgment declaring that Myown Farms, Inc., its successors and assigns are not the owners of said land.

We set aside and reverse that portion of the judgment declaring that the possession of the aforesaid land by Myown Farms, Inc., its successors and assigns will not be disturbed, and remand for further proceedings consistent with this judgment.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.


author: KLIEBERT, Judge.

text:
    PARISH OF JEFFERSON v. JEFFERSON SOCIETY FOR the PREVENTION OF CRUELTY TO ANIMALS.
    No. 83-CA-560.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 1984.
    H.A. Vondenstein, Louis G. Gruntz, Gret-na, for plaintiff-appellant.
    Maureen O’Connor Sullivan, Anthony J. Rollo, Jr., McGlinchey, Stafford, Mintz, Cellini & Lang, P.C., New Orleans, for defendant-appellee.
    Before BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   KLIEBERT, Judge.

The Parish of Jefferson filed a summary action against the Jefferson Society for the Prevention of Cruelty to Animals (JSPCA) to enjoin them from:

(1) Operating an animal shelter in Jefferson Parish;
(2) Using the term “Jefferson” in its name;
(3) Actively picking up stray, abandoned, unwanted and allegedly abused animals;
(4) The unlawful adopting out of animals without first obtaining them from the Jefferson Parish Animal Shelter with the approval of its director and the Jefferson Parish Council;
(5) Holding and retaining custody or taking of any animals and that they be ordered to release to the Jefferson Parish Animal Shelter any such animals presently in its possession;

all as itemized in Paragraph XI of the Parish’s petition. The JSPCA filed an exception of no right of action and an answer simultaneously.

After hearing oral arguments (not contained in the record) and receiving stipulations of the litigants, the trial judge found the JSPCA had been recognized by the Jefferson Parish Council as a humane organization as required by Section 4-11(18) of the Jefferson Parish Code of Ordinances and, accordingly, dismissed the plaintiff’s demand contained in parts (1), (4) and (5) above itemized and dismissed the exception of no cause of action insofar as it was directed towards parts (2) and (3) above itemized.

Originally neither the plaintiff nor the defendant filed briefs. Following the date of the scheduled hearing, motions to be allowed to file briefs were filed. In the brief accompanying the Parish’s motion, it urged error in that the trial judge: (1) ruled on a peremptory exception of no cause of action filed simultaneously with the answer without first having a hearing on the merits, all in violation of C.C.P. Article 929; and (2) considered exhibits attached to the petition in ruling on the exception of no cause of action, in violation of C.C.P. Article 931. For the reasons hereafter stated, we affirm the trial judge’s ruling.

The record reveals that the parties agreed to allow the trial judge to rule on the exception of no cause of action as a matter of law prior to considering any evidence. Likewise, after the court ruled on the exception of no cause of action as agreed to by the litigants, the parties entered into a joint stipulation permitting the trial judge to deny plaintiff’s injunction with respect to items (1), (4) and (5) and reserved the Parish’s right to appeal the trial judge’s legal conclusion on the exception of no cause of action and to subsequently bring in evidence bearing on its request for an injunction as to items (2) and (3).

Notwithstanding the stipulation, on appeal the Parish makes no effort to urge error as to the trial court’s legal conclusion. Rather, it urges error in the trial judge’s manner of proceeding, i.e., considering the exception of no cause of action prior to the merits of the suit and considering exhibits attached to the petition in making his conclusion on the exception.

By agreeing to the court’s suggested method of proceeding, the Parish waived any objections it may have had to the method of proceeding. Further, in view of the joint stipulation, the judgment appealed from was in essence a consent judgment reserving to the Parish the right to appeal only the validity of the trial court’s legal conclusion which led' it to grant the exception of no cause of action. The Parish has made no effort to urge error on the only issue which it could raise on the appeal.

Therefore, we affirm the trial court’s judgment and remand the case for the same to proceed in accordance with that judgment.

Each party is to bear his cost of the appeal.

AFFIRMED AND REMANDED.


text:
    HOWARD MOTORS, INC. v. James E. BEESON and Sam Gattuso. James E. BEESON and Sam Gattuso v. CNA INSURANCE COMPANY d/b/a Continental Casualty Company. SPINATO CHRYSLER PLYMOUTH, INC. v. HOWARD MOTORS, INC.
    Nos. 83-CA-807 to 83-CA-809.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 1984.

      Ewell P. Walther, Jr., Paul L. Zimmer-ing, Kyle D. Schonekas, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for Howard Motors, Inc.
    Nel F. Vezina, Roy J.D. Gattuso, Vezina & Associates, Gretna, for James E. Beeson and Sam Gattuso.
    Frank M. Repass, III, Raymon G. Jones, Deutsch, Kerrigan & Stiles, New Orleans, for CNA Ins. Co., d/b/a Continental Cas. Co.
    A.J. Capritto, New Orleans, for Spinato Chrysler Plymouth, Inc.
    Before KLIEBERT, GAUDIN and DU-FRESNE, JJ.
   KLIEBERT, Judge.

Following a fire on the leased premises on May 13, 1981, Howard Motors, Inc., the original lessee, filed suit against their lessors, James E. Beeson and Sam Gattuso, for money damages. The basis for lessee’s claim was the lessors’ alleged breach of the lease agreement by their failure to repair the damages caused by the fire. The lessors defended on the grounds the lease had terminated under its own provisions, hence, they were not required to make the repairs. Incorporated in lessors’ answer was a re-conventional demand for money damages based on the allegation lessee remained in possession of the leased premises notwithstanding its termination.

By a separate action, lessors sued their insurer, CNA Insurance Company, to recover under its fire insurance policy the total fire coverage of $75,000.00, together with penalties and attorney fees, as provided for under LSA-R.S. 22:658, because of insurer’s arbitrary and capricious failure to pay the claim within 60 days of receipt of lessors’ proof of loss.

Also, by a separate suit, Spinato Chrysler Plymouth, Inc., a sublessee of Howard Motors, Inc., sued Howard for damages based on Howard’s breach of the sublease for failure to repair the damages caused by the fire.

All three suits were consolidated for a bench trial. After trial, the judge concluded the claims by the lessee and the subles-see turned on whether the damages caused by the fire could be repaired within 120 days. Having found as a fact that the damages could not be repaired within this time frame, he rendered judgment on April 15, 1983 dismissing the claims of Howard and those of Spinato, as well as the Beeson and Gattuso reconventional demand against Howard. He also found CNA’s delay in making payment under the fire policy was not unreasonable. Consequently, in the same judgment, he dismissed Howard’s claim against CNA for penalties and attorney’s fees.

Both lessee and lessors appealed the judgment. Spinato and CNA did not appeal nor did they answer the appeal. The questions raised on the appeal are the same as those raised in the trial court, i.e., (1) was the lease breached by either the lessee or the lessors, and (2) were the lessors entitled to statutory penalties and attorney’s fees from their insurer? For the reasons hereafter stated, under the headings indicated, we affirm the trial court on both issues.

BREACH OF THE LEASE

On the appeal, Howard’s three contentions are: (1) there was an anticipatory breach of the lease by the lessors, (2) the lessors are estopped from contending they had no obligation to repair the fire damaged building, and (3) the trial judge erred in finding as a matter of fact that the repairs could not be performed within the 120 day time frame. The anticipatory breach contention is grounded in Gattuso’s statement to Spinato, the day after the fire, that he would not repair the fire damage to the building for the rents then being paid under the lease. The estoppel contention is grounded in lessors’ allegation in the petition filed against CNA claiming future rentals as an item of damages for failure to timely pay the insurance claim.

Lessors, on the other hand, contend none of the contentions made by Howard are relevant. The trial judge concluded, and we agree, all issues between the lessors and the lessee, and those between the lessee and the sublessee, turn on the interpretation of the following provision contained in the lease:

“If through no fault, neglect or design of Lessee, the premises are destroyed by fire or other casualty or damaged to such an extent as to render them wholly unfit for occupancy, then this lease shall be cancelled. If, however, the premises can be repaired within 120 days from date of fire or casualty, then this lease shall not be cancelled, and Lessor shall notify Lessee within 30 days from date of fire or casualty that Lessor will repair the damage, and Lessee shall be entitled only to such a reduction or remission of rent as shall be just and proportionate.” (Emphasis Supplied)

This provision is the one contained in the standard New Orleans Real Estate Board commercial lease form. The exact provision was at issue in Degrey v. Fox, 205 So.2d 849 (4th Cir.1968). The Fourth Circuit Court of Appeal held that, under the first sentence of the clause, the lease is cancelled if the fire renders the property unfit for occupancy. The second sentence conditions the first in that the lessor may avoid cancellation of the lease if he can repair the premises in 120 days. During the repair period, the lessee is entitled to remission of the rents.

Here the evidence is clear. After the fire, the leased premises were unfit for occupancy. Spinato vacated the premises immediately after the fire. Its employee testified that the car dealership was unable to operate from the leased premises. Mechanical engineers described the remains of the building as “junk”. Although the experts differ on other issues, none said the premises were fit for occupancy. Their difference was with respect to the time needed to make the repairs.

Once the fire rendered the building unfit for occupancy, by complying with the notice and construction period stated in the lease, the lessor could, but was not obligated to, repair the building. Degrey v. Fox, supra. Although Civil Code Article 2697 grants the option of maintaining the lease to the lessee under the lease provisions here involved, the option to repair is in the lessor, not the lessee.

Shortly after the fire, Gattuso inspected the premises while accompanied by Spinato. At that time, Gattuso informed Spinato he would not repair the building for the rentals then being paid under the lease. Now, Howard argues the refusal to repair was an anticipated breach which entitled Howard to immediate damages for the breach. We agree Louisiana recognizes an anticipatory breach of a contract. See Marek v. McHardy, 234 La. 841, 101 So.2d 689 (1958). Andrew Development Corporation v. West Esplanade Corp., 347 So.2d 210 (La.1977). However, here the fire rendered the lease premises unfit for occupancy; therefore, the fire terminated the lease, save for the lessors’ option to give timely notice of his election to repair the premises within the 120 day period. Thus, we view Gattuso’s statement as an expression of his intention not to exercise lessors’ option to repair because it was not economically feasible to do so rather than an anticipatory breach. Moreover, shortly after Gattuso made the statement lessors gave to Howard the formal written notice of their decision not to repair the leased premises. Therefore, we believe Howard’s contention as to an anticipatory breach is without merit.

Howard also contends lessor’s allegations in the suit against CNA claiming the insurer’s failure to pay the insurance claim resulted in their inability to rebuild the structure estops lessors from now contending it had no obligation to repair the fire-damaged building. Since the fire terminated the lease and lessors were under no obligation to effect the repairs, Howard’s contention as to an estoppel is irrelevant to the situation present here.

Further, even assuming arguendo that lessee, rather than lessors, had the repair option, we cannot say the trial judge erred in finding that the building could not be repaired within 120 days. From our review of the record we believe there was more than ample evidence to support the trial judge’s finding of fact. Although the essence of the expert’s testimony was that the actual construction time would be something less than 120 days, it is apparent, even from expert testimony introduced by Howard, that when the time to examine and test the residual structure and obtain plans, permits and prices for the repairs is considered and added to the actual construction time, it is reasonable to conclude the time necessary to restore the leased premises to its condition immediately prior to the fire would exceed 120 days.

For the reasons above stated, we affirm the trial judge’s dismissal of Howard and Spinato’s claims. We next consider lessee’s contention the lessors breached the lease.

By letter dated May 20, 1981, lessors informed lessee the May 13, 1981 fire can-celled the lease. On June 24, 1981, Howard, through its counsel, informed counsel for lessors that it did not consider the lease cancelled.

Lessors reconvened in the trial court for and now claims from Howard damages and attorney fees contending Howard breached the lease entitling them to damages under the following lease provisions:

“At the expiration of the lease, or its termination for causes, Lessee is obligated to immediately surrender possession and should Lessee fail to do so, he consents to pay any and all damages, but in no case less than five times the rent per day, with attorney fees, costs, etc....” (Emphasis Supplied.)

Howard and Spinato, the sublessees claiming through Howard’s lease, were not in physical possession of the lease premises. Further, the lease premises were not fit for occupancy. Consequently, the lessors were free to take physical possession of the property at any time it chose to do so. Under those circumstances the above quoted provision is not applicable.

CLAIMS FOR STATUTORY PENALTIES AND ATTORNEY FEES AGAINST INSURER

The parties have stipulated that Beeson and Gattuso filed a proof of loss effective May 14, 1981. On May 20, 1981, CNA’s local representative requested permission from her home office to hire an investigator to investigate the possibility of arson, based on information she received from another investigator. On June 1, 1981, INS Investigations Bureau (INS) was retained to conduct the investigation. INS furnished CNA with three reports concerning their investigation; the first of which was dated June 12, 1981 concluded the fire was of an incendiary origin and the insureds had a motive for setting the fire. The second report dated July 20, 1982 reiterated INS’s suspicions and concluded the further investigation, in cooperation with local fire officials, was in order. The final report, dated August 20, 1981, concluded that since there were no further developments in the investigation the case was to be closed. This report was stamped as having been received by the CNA Group on August 24, 1981.

On October 20, 1981, CNA’s local agent noted in his file that he was awaiting a decision from CNA to settle the claim. On October 23, 1981, CNA’s local agent attempted to tender payment to the insureds through their attorney. The attorney, on behalf of his client, refused the offer of $75,000.00. Rather, he informed them that he would seek penalties and attorney’s fees in a suit filed to collect the proceeds.

Appellants now contend that CNA’s failure to pay their claim was “arbitrary, capricious, and without probable cause”, subjecting them to penalties and attorney’s fees, under LSA-R.S. 22:658. CNA contends the delay in payment was reasonable because of their suspicions of arson. They rely on Benoit v. American Mutual Ins. Co. of Boston, 236 So.2d 674 (3rd Cir.1970), which they contend is factually similar to the instant case. In Benoit, the court concluded that the insurer had sixty (60) days from the last date that they maintained a reasonable suspicion of arson in which to make payment.

The trial judge found CNA’s delay in payment was reasonable because of the suspicion of arson, hence, they were not arbitrary or capricious in failing to pay the claim within sixty (60) days from the date the proof of loss was received. We agree and hence affirm the trial judge.

Each party is to bear his own cost of the appeal.

AFFIRMED.


author: DUFRESNE, Judgé.

text:
    FRANK L. BEIER RADIO, INC. v. Janet Duet, Divorced wife of/and Roy P. BROWN.
    No. 83-CA-834.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 1984.
    Writ Denied Oct. 12, 1984.

      Eric A. Holden, Metairie, for plaintiff-appellant.
    Robert G. Creely, Michael F. Somoza, Gretna, for defendant-appellee.
    Before KLIEBERT, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judgé.

This is a suit in redhibition, alternatively for quanti minoris, in which the plaintiff, purchaser of defendants’ metal warehouse building, complains of a defective roof.

The basic facts are as follows:

Plaintiff, Frank L. Beier Radio, Inc. agreed to purchase a constructed, but not wholly finished, prefabricated metal warehouse-type building from defendants, Janet Duet and Roy Brown.

The warehouse was constructed by a subsequently named defendant, Rudy Brown Builders, Inc. who was to have built the structure with two finished office space bays and two unfinished office space bays.

During negotiations leading to execution of an agreement to purchase, and upon a simple inspection prior to the act of sale, plaintiffs representatives noticed and became aware of some leaks in the roof which were listed on a “punch list” of items which would have to be corrected by the defendants-sellers. Included in those “punch list” items were reference to a minor water stain problem.

The punch list, called Addendum “A” to the purchase agreement, lists in item 2, “Seller agrees to waterproof and repaint cement Block Wall” and in item 10, “Repair all leaks where roof meets brick wall.” When asked to explain the items on the punch list, Mr. Fred Weber, the real estate agent representing the defendant, Roy P. Brown, stated that there was “noticeable water seepage” along the top of one of the back walls. He also testified that in drawing up the agreement to purchase for the plaintiff, he considered the roof leakage:

MR. WEBER: When we first examined the rear wall we were not knowledgeable of what was causing the leakage showing on the wall. I agree I am not an expert in repair work either but we did try to cover whatever was the cause back there, whether it was through inadequate waterproofing or whether there was in turn a leak at the point that was causing it to show water. We also reiterated in here repair all leaks where roof meets brick wall in the event it was not just water coming through the concrete bricks, it was an attempt to cause a correction to be made from that in a waterproofing company or someone would come in there and examine it specifically.
MR. HOLDEN: That is item number 2?
MR. WEBER: That is the comparison between item 2 and why we put it more or less as a continuation of number 10, repair all leaks. I did not presume to inspect it. It was obviously [sic] there was something wrong and we tried to cover that, that that would be corrected, whatever the cause was.

On or before June 4, 1979, the date the punch list was prepared as an Addendum to the first agreement to purchase, a second agreement to purchase was executed on August 21, 1979, which also included an Addendum with the same items as on the first punch list to be repaired. The second agreement to purchase differed from the first only in that it deleted the provision in which the defendant, Roy Brown agreed to rent one of the bays.

Mr. Weber further stated that he knew the purchasers were aware of roof leaks in the rear wall of the building prior to signing the agreement to purchase. He also stated that he visited the building with the purchasers four or five times prior to the June 4, 1979 agreement and that he discussed with them the leakage problem. Prior to this June 4, 1979 agreement and through September 4, 1979, Mr. Weber, the plaintiff-purchaser, and the defendants-sellers negotiated about the problems on this punch list.

It wasn’t until September 4, 1979, did the plaintiff and defendants agree to place in an escrow account $5,000.00 of the purchase price to ensure that the “punch list” items were completed. Being assured that all items contained on the “punch list” were completed, the plaintiff directed a letter to Delta Title Corporation authorizing the release of the funds remaining in the escrow account.

Eric Beier, Vice President and Secretary of Frank L. Beier Radio, Inc. and appearing as one of the plaintiff’s representatives testified that prior to the execution of the agreement to purchase, he was aware of the leakage problems in the building and while he said he saw only stains, he admitted he thought there were leaks where the roof met the back wall. He testified that when he looked at the back wall of the building, he definitely assumed that there was water leakage and that obviously something was wrong. Eric Beier visited the building two or three times before the act of sale and thought that his brothers had also been there.

There was no leaks in the building from September 4, 1979, until December 17, 1979. During that time, the plaintiff had construction work done on the inside of the building and a tenant occupying the building. Mr. Beier stated that the first notice of roof leaks in the building he received was on or about December 17, 1979, yet he admitted that his company authorized the release of escrow funds on February 15, 1980, almost two months later. Yet, Mr. Beier also testified that at the time the authorization to release the escrow funds was given, he had no knowledge of the leaks.

At all times, the defendants defend this suit by stating plaintiff was aware of the water leakage problem prior to the act of sale.

The plaintiff contends that only subsequent to its purchase of the building did it discover the warehouse had severe water leakage into the interior emanating from the front wall of the building. The defendants failed to correct the defect complained of and thus, plaintiff was reluctantly compelled to hire a metal building erector, Mr. Fred Martin, who examined the structure. He recommended and completed replacement of the structure’s roof and valley gutters. The plaintiff asserts that the building continued to leak until Mr. Martin completed the necessary repairs.

Consequently, the plaintiff filed this suit in order to recover the costs of repairs, damage, attorney’s fees and court costs. Furthermore, the plaintiff argues that it would not have purchased the building had it known of the severe defect, thus plaintiff seeks recovery in redhibition or quanti mi-noris.

After a trial on the merits, the trial court gave written reasons for judgment wherein it found that since the plaintiff was aware of the “serious water problem before the sale, that a checklist was made of deficiencies, and that the sale price of the building was negotiated down from the $225,000.00 to $200,000.00” created serious obstacles for plaintiff’s recovery. The court commented further:

“In short, the price of the building was negotiated down because of deficiencies in layout and condition; money was placed into escrow, and an addendum prepared therewith speaks of leakage problems. All the testimony taken together indicates that the purchaser knew of a serious leakage problem before the sale, although perhaps not the extent of the problem. Nevertheless, the purchaser is charged with knowledge, and the purchaser’s claims are rejected.”

The trial court also held that information included in the deposition testimony of Mr. Fred Martin, the person hired by the plaintiff-purchaser to repair the severe roof (i.e., leakage) problems, was “insufficient to make a determination whether or not he is an expert,” and thus refused to recognize Mr. Martin as an expert witness. The court did allow limited use of Mr. Martin’s testimony as a fact witness, but did not allow any testimony which the court deemed to be Mr. Martin’s “opinion” to be admitted. Therefore the trial court found, although of lesser import, that plaintiff was “unsuccessful in attempting to qualify an expert to show that extensive repairs, which were, in fact, performed, were necessary to cure the problem.”

As a result of the trial court ruling in favor of the defendants, plaintiff has appealed to this court for relief and assigns the following specification of errors to wit:

1.) The lower court erred in failing to qualify Fred Martin as an expert in construction and repair of prefabricated metal frame buildings and to admit and consider Fred Martin’s testimony relative to the defects in the building.

2.) Even if Fred Martin does not properly qualify as an expert, which is denied, the lower court erred in failing to admit and consider Fred Martin’s testimony, as Louisiana law has recognized that a redhibition plaintiff need not prove his case by expert testimony.

3.) The lower court erred in failing to find that the defects complained of were, in fact, redhibitory in nature, that these defects were not disclosed nor were they known to the purchaser prior to the sale, and thus that purchaser should be entitled to recovery.

4.) The lower court erred in failing to find that because defendant Roy P. Brown and Rudy Brown Builders, Inc. were active in the construction of the subject building, they should be recognized as “bad faith” manufacturers under Louisiana law due to their presumed knowledge of the defects in the building sold and their failure to disclose such defects.

It is well established in Louisiana that factual determinations of the trial court are subject to review under the manifest error doctrine in this State.

“ ‘manifestly erroneous’, in its simplest terms means ‘clearly wrong’.” Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The decision as to the qualification of a witness as an expert is within the discretion of the trial judge and will not be reversed absent a finding that it is clearly erroneous as a matter of law, Roberts v. Tiny Tim Thrifty Check, 367 So.2d 64 (La.App. 4th Cir.1979); Maddox v. Percy, 351 So.2d 1249 (La.App. 1st Cir.1977).

This court and all appellate courts of this State have recognized the discretion of the trial court to properly exclude the testimony of any witness as an expert. We have earlier decided that:

“The qualifications of an expert witness rest within the sound discretion of the trial judge, and the judge’s determination will not be disturbed by the appellate court; absence a clear abuse of the trial judge’s discretion (i.e., manifest error). The trial judge must be allowed much discretion in determining a witnesses’ qualifications and competence to testify as an expert, and the reviewing court must not disturb the trial judge’s ruling unless the error is clear and involves a misconception of law.” (citations omitted) Hunnicutt v. Kent, 434 So.2d 91, (La.App. 5th Cir.1982).

After reviewing the evidence, we agree with the trial court and find no error in the trial court’s decision not qualifying Mr. Martin as an expert assuming for argument, our decision would differ from that of the trial court in this respect, the error would be harmless as the more serious obstacles deal with plaintiff’s knowledge of the water leakage problem.

The more dispositive issue presented in this appeal revolves around whether the plaintiff knew or should have known of the serious water leakage in the roof of the warehouse.

This resolution of this issue will ultimately determine the outcome of this appeal, whether it be in redhibition or for breach of contract with a necessary reduction in the purchase price. Did the plaintiff know the condition of the roof?

Throughout the trial record, we find contradictions between plaintiff and defendants. One fact is constant throughout this litigation and is recognized by all parties: the structure suffered from water leakage, but did the plaintiff know of its severity? The trial court concluded that “all parties knew of the serious water problem before the sale” and accordingly, negotiated from this standpoint. We agree with the trial court’s factual conclusion.

As clearly explained earlier, when there is a conflict in testimony, the appellate court should not disturb the reasonable findings of the trial court even though the reviewing court feels that its evaluation and inferences are also reasonable, Greco v. Jordon, 419 So.2d 42 (La.App. 5th Cir.1982). In Greco, the standard of our review was made clear:

“The standard of appellate review as explained Canter v. Koehring, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) is that even though the Appellate Court may feel that its own evaluations and infer-enees are as reasonable, it should not disturb reasonable findings of the trial court when there is conflict in the testimony. When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the Appellate Court should not disturb this factual finding in the absence of manifest error, i.e., unless it is clearly wrong.”

The record supports the trial court’s finding that the plaintiff-purchaser knew of the leakage problem because both the purchaser’s representative and it’s representative so stated. In addition, the purchaser negotiated the sale to its advantage based on the fact that there were leaks. The purchasers offered the seller $200,000.00 for a building listed at $225,000.00. Plaintiff contends that Fred Weber, the real estate agent, “expressly testified that the price was not reduced in contemplation of known defects in the construction of the building.” The trial transcript reveals that what Mr. Weber testified is that he, Mr. Weber, knew of no other reason for the reduction of the purchase price; he did not state that there were no other reasons.

In addition to negotiating a lower purchase price, an agreement to purchase was negotiated, to which a punch list of items to be completed or repaired was attached. This punch list included roof leaks in two separate categories. Further, to ensure that these items were satisfactorily repaired or completed, $5,000.00 of the purchase price was placed in escrow, with the remainder of funds to be released only upon plaintiff’s authorization. The plaintiff did in fact authorize the forwarding of the remainder of the funds to Roy Brown in February, 1980, even though Eric Beier stated that he had become aware of the roof leakage he alleges is the redhibitory defect in December, 1979. Mr. Weber testified that he did not know which party required the punch list and escrowed funds; it is difficult to imagine any seller requesting a punch list to be included as a condition of sale, a portion of the sale price he is to receive be escrowed, or a reduction in the sale price of $25,000.00.

The plaintiff-purchaser’s knowledge of the defects it alleges in this suit will defeat its claim in redhibition.

LSA. C.C. Arts. 2520-2522 provide:

ART. 2520. Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.
ART. 2521. Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.
ART. 2522. The buyer can not institute the redhibitory action, on account of the latent defects which the seller has declared to him before or at the time of the sale. Testimonial proof of this declaration may be received.

One of the essential elements of the redhibitory action is the existence of a defect unknown to the purchaser at the time of the sale which would have influenced the purchaser not to buy the thing if he had known of the defect. The purchaser has a duty to inspect the thing to discover any apparent defects and also cannot bring a redhibitory action on account of any defects which, though not discoverable by a simple inspection, the seller informed him of before or at the sale. The policy which underlies this article is to remedy the unequal bargaining positions of the buyer and seller in negotiating a sale and to provide a remedy for buyer when the item he purchases is not the item he thought he purchased due to some vice or defect, unknown to him and not readily discoverable.

When in fact a purchaser knows of the defects in the thing and used this knowledge in arriving at a deal with the seller, the defects are not redhibitory and the seller cannot bring an action in redhibition.

To void the sale, the court would have to have found redhibitory vices or defects, LSA.-C.C. Art. 2520. In a redhibition suit the judge may decree a reduction in the purchase price if warranted, LSA.C.C. Art. 2543. However, the law is clear, the reviewing court must give great weight to factual conclusions of the trier of fact; and, where there exists substantial conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact of the trial court should not be disturbed by the appellate court in absence of manifest error. We further find that the record is absent of any evidence of bad faith on the part of the seller-defendant, Roy Brown.

Here this case is dependent upon the assessment of the credibility of the witnesses. There is a reasonable factual basis for the trial court’s finding and it is not manifestly erroneous.

Accordingly, we affirm the judgment of the trial court against the plaintiff, Frank L. Beier Radio, Inc. and in favor of the defendants, Janet Duet, Roy P. Brown, and Rudy Brown Builders, Inc.

All costs of this appeal are to be paid by the plaintiff.

AFFIRMED.


author: DUFRESNE, Judge.

text:
    ROBERSON ADVERTISING SERVICE, INC. v. WINNFIELD LIFE INSURANCE COMPANY.
    No. 83-CA-842.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 1984.

      Camille F. Gravel, Jr., Susan M. Theisen and Anna E. Dow, Alexandria, for defendant-appellant.
    Victoria L. Bartels, New Orleans, for plaintiff-appellee.
    Before KLIEBERT, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Roberson Advertising Service, Inc.— Plaintiff, brought this action on open account to recover the sum of $7,627.00, together with interest, costs and reasonable attorney fees from Winnfield Life Insurance Company — Defendant.

Plaintiffs action proceeded to trial where the trial court rendered judgment in its favor based on the theory of unjust enrichment. Defendant appeals and presents three issues for our consideration:

1. Whether Roberson had the right to rely on the authority of Jim Dulaney to contract for Roberson’s services after receipt of the April 7, 1978, letter from Ben Johnson informing Roberson that all orders had to be authorized by him.
2. Whether Roberson is entitled to a judgment based on unjust enrichment when there was no showing that Winnfield derived a benefit from the alleged services; when Roberson had been put on notice that authorization for all orders must come from Winnfield’s main office; when Roberson had an action at law to recover the debt; and when there was legal justification for the improvement and the enrichment.
3. Whether Roberson is entitled to interest dating from judicial demand on a judgment based on unjust enrichment.

The plaintiff filed suit on open account for $7,627.00, representing two invoices for advertising services rendered in 1979. Defendant denied the debt on the basis that its officers and employees had no knowledge of the advertising services rendered and that the services were not authorized by any officer, director or employee who had the capacity to make such a contract for these services at the time in question.

The record reveals that Michael Roberson, the vice-president of the plaintiff advertising company had previously contracted advertising business with the defendant corporation through its Kenner agency director, James Dulaney. Prior to the disputed transaction which forms this appeal, Michael Roberson had contracted on several occasions with regard to the printing and distribution of circulars. Bills for these services were sent to either Winnfield’s agency in Kenner or to Natchitoches, the location of Winnfield’s main office. Before invoicing, James Dulaney would approve the promotional presentation and then plaintiff would print and distribute the circulars advertising the Winnfield Insurance Company.

The original invoices would be mailed to James Dulaney at the Jefferson branch office. Evidence of past transactions indicate that these invoices would be forwarded to the main office, which would then issue checks in payment for the services. These checks would be signed by Ben Johnson, President of Winnfield Life Insurance Company.

Notwithstanding these prior contractual commitments, Ben Johnson testified that James Dulaney became untrustworthy in handling accounts for Winnfield because he over extended his purchasing authority.

Ben Johnson testified that he had informed Roberson Advertising that all further orders would have to be authorized by him, at the main office, and that under no circumstances was anyone to order anything in the name of Winnfield without said authorization.

In support of this testimony, a letter dated April 7, 1978 from Ben Johnson’s office was placed into evidence.

After April 7, 1978, Roberson transacted business directly with Ben Johnson in Natchitoches.

However, the plaintiff filed a claim for services rendered which were not authorized by Ben Johnson. In a letter dated January 9, 1980, written by Michael Roberson and addressed to Ben Johnson, reference is made to two outstanding invoices which are the subject of this appeal. Advertisement circulars were printed and distributed as per the request of James Dulaney on June 1979. Furthermore, Dulaney informed Roberson that the check for payment would not be issued until January 1, 1980, for accounting purposes. Since it was now

1980, Roberson considered these two outstanding invoices due and demanded payment thereon.

The evidence in the record reveals that James Dulaney had placed advertisement requests on June 7,1979 and June 20, 1979, with no substantiated authorization and Roberson filled the subject orders in direct contravention of the letter dated April 7, 1978 from Ben Johnson’s office expressly revoking James Dulaney’s purchasing authority.

The trial judge provided in his written reasons for judgment, citing Minyard v. Curtis Products Inc., 251 La. 624, 205 So.2d 422 (La.1967) that where there is no express law, the judge is bound to decide according to equity.

He indicated that the plaintiff in the case at bar has proved the requisite elements of unjust enrichment. Namely that the defendants received a benefit from the plaintiff’s services.

Quoting from his judgment, the trial court reasoned as follows:

“Plaintiff, in his petition prayed for $7,627.00 plus interest from date of judicial demand, reasonable attorney fees and all costs of the proceedings. This amount was evidenced by the previously mentioned invoices. This court does not find that the factual basis of this case warrants this award to plaintiff. Relying on La.Civil Code Art. 21, it is hereby determined that equity would require that defendant, Winnfield Life Insurance Company, be condemned to pay one half of, or the sum of THREE THOUSAND EIGHT HUNDRED THIRTEEN AND 50/100 ($3,813.50) DOLLARS together with interest from date of judicial demand and all costs of these proceedings. Plaintiff is not entitled to recover attorney fees as prayed for since recovery was not based on R.S. 9:2781.
Defendant can not in fairness retain the benefits received without cost; it is obliged by equitable principles to repay the value of said benefits to the plaintiffs, who had furnished the services in good faith reliance on the agreement with Mr. Jim Dulaney. Winnfield Life Insurance Company had allowed Dulaney to engage in the acquisition of advertising services in the past and had previously accepted the services. Winnfield must have felt that these services were beneficial and had paid for them in the past. Accordingly, in the interest of justice, Winnfield Life Insurance Company is bound to compensate Roberson Advertising Service, Inc. for the services rendered.”

Despite the finding that the plaintiff filled the June, 1979, advertisement orders without “substantiated authorization” the trial court reasoned that the plaintiff was entitled to a judgment based on unjust enrichment; we disagree.

Although we agree with the trial court’s conclusion that James Dulaney had no authority to bind Winnfield without the expressed authorization of its President, Ben Johnson, and that there was not any ratification of such actions. We must disagree with the legal application of the principle of unjust enrichment in this case.

Under Louisiana law, an agency relationship is created by either express appointment of a mandatory under Civil Code Article 2985 or by implied appointment arising from apparent authority, Lou-Ark Equipment Rentals Co. v. Hong Ah-Fong, 355 So.2d 1019 (La.App. 4th Cir.1978). The record is clear that if any agency relationship existed between James Du-laney and Winnfield Insurance regarding Dulaney’s capacity to bind Winnfield, it was terminated effective April 7, 1978. It is settled law in this State that an agency relationship cannot be presumed, it must be clearly established. The record does not support the implication of apparent authority-

In any event, even if agency was indicated, Roberson had an affirmative duty to determine the extent and scope of Dula-ney’s authority to bind Winnfield, Lou-Ark Equipment Rentals, supra.

We will concede that a contract entered into by an agent, though voidable for lack of authority to act may be ratified by the principal. Rebman v. Reed, 286 So.2d 341 (La.1973). In the law of agency, ratification is the adoption by one person (Winnfield) of an act done on its behalf by another (Dulaney) without authority. It amounts to a substitute for prior authority.

Relative to the issue of Winn-field’s ratification, we conclude that the burden of proof is on Roberson, and a clear and absolute intent to ratify Dulaney’s acts must be shown by the facts. Sanders v. Rudd, 427 So.2d 1271 (La.App. 2nd Cir.1983). The record in this case is absent of any facts which support any such ratification.

The legal rationale relied upon by the trial court is couched within the principle of actio de in rem verso, or unjust enrichment. The trial court concluded that the plaintiff carried its burden of proof and established the five necessary elements, of unjust enrichment, namely:

1. An enrichment
2. An improverishment
3. A connection between the enrichment and the impoverishment
4. Absence of legal justification for the enrichment and impoverishment
5. An absence of a remedy at law.

Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (La.1967) and G. Woodward Jackson Co., Inc. v. Crispens, 414 So.2d 855 (La.App. 4th Cir.1982).

Considering the above mentioned elements, we are convinced after careful review of the record, that the equitable remedy of unjustified enrichment should not have been applied in this case.

The basic principle of an unjustified enrichment is that the plaintiff suffers an economic detriment for which he should not be responsible, while the defendant receives an economic benefit for which he has not paid.

Justice Albert Tate, writing in the Tulane Law Review, stated that in practical terras the five conditions mentioned above mean that an impoverished plaintiff has a cause of action against an enriched defendant if:

“(i) the defendant receives an “enrichment” (an economic benefit received by his estate, whether by an addition to it or by a prevention of an economic detriment to it, without his furnishing compensation intended to be adequate for it);
(ii) the plaintiff has sustained an “impoverishment” (an economic detriment suffered by the plaintiffs estate, whether because of the loss of a previously acquired asset or because of the prevention of justified expectation of gain);
(iii) the enrichment and the impoverishment are connected (the economic benefit to the one patrimony results from the economic detriment to the other, either by direct transfer or indirectly through an intervening party, without any corresponding transfer of compensation intended to be adequate);
(iv) no legal cause justifies the enrichment (in the sense that no lawful contract or provision of law was intended to permit the enrichment or to prevent the impoverishment or to bar attack on the enrichment or the impoverishment); and
(v) no other legal remedy is practically available to the impoverished plaintiff by which the impoverishment might be or might reasonably have been avoided (this is the principle of “subsidiarity” by which the extraordinary remedy of unjustified enrichment, not provided by the Civil Code, is regarded as unavailable where another legal remedy could have prevented the impoverishment).”
Justice Tate,
The Louisiana Action for Unjustified Enrichment, 50 Tul.L.Rev. 883 (1976) and 51 Tul.L.Rev. 446 (1977).

The application of this principle is narrowed by the assignment of specific legal meaning to each of the elements which must be pleaded and proved. Tate, supra.

In the present case we find the record absent of sufficient facts which would cause this case to fall within the narrow limits of the doctrine’s application. Thus, we reverse the decision of the trial court. Plaintiff fails or is negligent in establishing the most critical elements of the actio de in rem verso.

The court below found that the plaintiff could not collect on the open account because it had contracted with an agent which it knew did not have the authority to so contract. The reasons for this have been shown above. There is a rule of law, therefore, which prevents the plaintiff from collecting on the open account. An enrichment or impoverishment has legal justification when it flows from proper application of a rule of law. G. Woodward Jackson Co. Inc. v. Crispens, 414 So.2d 855 (La.App. 4th Cir.1982). Actio de in rem verso must be denied when the relief sought would subvert the purpose of a rule of law.

The purpose of the rule of law concerning the agent’s authority to contract on behalf of the principal is to protect the principal from liability for contracts it does not wish or need and which may harm the principal. If courts allow third parties who deal with agents, without authority to collect from the principal, the principal could not be protected from the actions of agents even if he took affirmative action to protect himself.

The law has provided a remedy for the plaintiff here, that of the suit on the open account. Simply because the plaintiff has been prevented by a rule of law from collecting any money, this court should not allow it to recover in equity. The law has provided a remedy and has also provided a defense. No recourse to equity is needed.

The district court appears to have drawn deep into the civilian well and utilized the benefits derived from the language of Civil Code Article 21. The decision was rendered according to equity, but not in accord with positive law. Justice Tate further wrote that:

“More fundamentally, basing the action for unjustified enrichment on article 21 is open to valid intellectual criticism. While the wording of the article provides a tempting and convenient pigeonhole for the action, basing the action on “equity” and “natural law” violates the principle of Louisiana Civil Code articles 1760 and 2292. These limit the source of obligations to contracts, quasi-contracts, offenses, quasi-offenses, and obligations imposed by law (e.g., tutorship, neighborhood). By reason of these provisions, it is arguably unsound to say that the equity, natural law, and reason of article 21 are the sources of a judicially enforceable obligation.”

For the foregoing reasons, the decision of the trial court is reversed. All costs of this appeal are to be paid by the plaintiffs.

REVERSED AND RENDERED.


text:
    Stanley KIRKLIN v. Sidney KELLER, Jr. and Kaiser Aluminum & Chemical Corporation.
    No. 83-CA-843.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 1984.
    Writ Denied Oct. 5, 1984.
    Barry J. Landry, Becnel, Landry & Bec-nel, Reserve, for plaintiff-appellant.
    J. Ashley Moore, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-ap-pellees.
    Before KLIEBERT, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is a suspensive appeal by plaintiff, Stanley Kirklin from a decision of the trial court, granting defendants’ Motion for Summary Judgment and dismissing plaintiff’s action. The suit is based in tort resulting from an employment injury.

The plaintiff alleges that he sustained injuries as a consequence of a battery at work by a fellow employee, Sidney Keller, Jr. while Keller was acting in his supervisory capacity. The plaintiff subsequently received workmen’s compensation benefits due to the injuries suffered. Thereafter, the plaintiff brought suit in tort against the tortfeasor, Sidney Keller, Jr. and his employer, Kaiser Aluminum & Chemical Corporation, the latter of which filed a motion for summary judgment seeking dismissal as to itself and its employee. The trial court granted the motion, holding the undisputed material facts to be in favor of the defendants. The plaintiff has perfected this appeal. The sole issue presented to this court on appeal is whether there is some genuine issue relative to a material fact in this case.

The incident giving issue to the present litigation occurred on January 5, 1980, when Sidney Keller, an employee supervisor for Kaiser Aluminum & Chemical Corporation working in the course and scope of his employment noticed a dangerous operating error on the job site. Someone had opened a valve and was putting a liquid in a pressure vessel, the bottom valve of which had not been closed.

Mr. Keller proceeded upstairs to inquire as to who was responsible for this dangerous operating error. He spotted Mr. Webster and Mr. Kirklin walking across the catwalk from the number one header to the number two header near tank 30.

Mr. Keller inquired of Mr. Webster whether he was responsible for not closing the bottom tank valve before attempting to close the vessel. Mr. Webster replied that he had not, but that Mr. Kirklin had.

Supervisor Keller then turned and commenced talking with Mr. Kirklin. Mr. Keller describes the sequence of events at this point as follows:

"... I turned, and started talking to Kirklin, and he started to walk away from me. So, I grabbed him by his arm on impulse. I didn’t pull him. I just grabbed him. I said, ‘Kirklin, I’m not finished talking to you.’ I finished talking to him and he left. He never once flinched or made any motion that I hurt him. He worked 16 hours that day, never told the foreman on the oncoming shift that he was hurt or that I had hurt him. On January 5th, which is still the same day, because we got relief at 10:00 at night or 10:30 at night we’re relieved, and I walked into the control room, and he told me he was going to have to go to his doctor because I hurt him the night before, his arm or his shoulder or something. I said, ‘Kirklin, you’ve got to be kidding.’ He said, ‘No., I’m not.’ ”

The plaintiff contends that the touching of the defendant, Sidney Keller, Jr. was more of a violent grab and pulling. Thus, the plaintiff’s version of the incident differs only as to the intensity or force of the touching, he states:

“And I was going to close the valve off and the foreman was talking to another operator at the time when I was passing by. He grabbed me and pulled me back and he said, ‘You need your job. When I’m talking to you, don’t walk away.’ But he was never talking to me. When he pulled me real hard and pulled me back. And his pulling me the night before caused some pain in my neck and back and he told me to go to work and by about an hour and 15 minutes later, he came back and said, ‘Well, I’m going to take you to the dispenser because I was supposed to take you when you first told me.’ ”

It is an undisputed material fact that the defendant, Sidney Keller, Jr. touched the arm of the plaintiff, Stanley Kirklin. Notwithstanding this fact, we must carefully examine the record and determine whether there was any intent to cause harm or injury.

The pronouncement by our Supreme Court, relative to intentional tort in an employment injury is found in Bazley v. Tortorich, 397 So.2d 475 (La.1981). In Bazley, the Supreme Court sets out what is required for an act to be intentional: the actor must either (1) desire that physical results of his act or, (2) know that the consequences are certain, or substantially certain, to result.

The applicable workmen’s compensation law, LSA-R.S. 23:1032, reads in pertinent part:

“... nothing in this chapter shall affect the liability of the employer, or any officer, director, stock holder, partner or employee or principal [sic] to a fine or penalty under any statutes or the liability, civil or criminal, resulting from an intentional act...”

Thus, the exclusive nature of the workmen’s compensation remedy does not apply to intentional acts. “Intentional acts” has been construed to mean the same as “intentional tort” in reference to civil liability. Bazley, supra.

Bazley requires that the result be at least “substantially certain”. “Substantially” means: about, practically, nearly, almost, essentially or virtually. Webster’s includes “sure” and “inevitable”, among its definitions of “certain”. The language of Bazley then might be restated as “virtually sure” or “really inevitable”. We are strained to find in this case, the minimum standard as announced in Bazley.

The Supreme Court interpreted the “intentional act” exception to the immunity provided by LSA-R.S. 23:1032 to mean that the defendant, Sidney Keller, Jr., either desired to bring about the physical results of his acts or believed that they were substantially certain to follow from what he did.

As Bazley points out, “ ‘act’ refers to an external manifestation of will which must be voluntary, and ‘intent’ is present when the offender either desires the consequences of his act or when he knew that the consequences were reasonably certain to result from his act.”

After thoughtfully reviewing the record and positive law germane to this appeal, we have concluded that the conduct of the defendant, Sidney Keller, Jr., although offensive to the plaintiff, was not committed for the purpose of, nor intended to injure his fellow employee, Stanley Kirklin. Consequently, the conduct of Sidney Keller, Jr. does not fall within the purview of an “intentional act.”

With respect to the judicial soundness of granting defendants’ Motion for Summary Judgment, we find no error. LSA-C.C.P. Article 966 provides that a motion for summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that mover is entitled to judgment as a matter of law, Bertrand v. Howard Trucking Company, Inc., 406 So.2d 271 (La.App. 3rd Cir.1981).

It is an uncontroverted fact that the defendant, Keller touched the plaintiff, Kirklin; the only fact dispute is the intensity of the touch. Assuming this offensive act was with vigor, the question becomes was the defendant Keller substantially certain that the consequence of his act would cause injury? Our answer, after careful review, is in the negative.

The law in our State is clear, that a motion for summary judgment should be granted only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law. The burden of showing that there is not an issue of material fact is on the mover, and all doubts must be resolved against the granting of the motion for summary judgment and is favor of a trial on the merits, Chaisson v. Domingue, 372 So.2d 1225 (La.1979).

In light of the facts in the record, and the jurisprudential rule that all doubts are to be resolved against the granting of summary judgment, we conclude that the defendants have met the burden of proving that there is no genuine issue of material fact, and the trial court was correct in granting defendants’ motion.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: PONDER, Judge.

text:
    REP, INC. v. Sammy J. SCIORTINO d/b/a Sammy’s.
    No. CA 84 0174.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 1984.
    Anthony S. Taormina, Mortillaro & Taor-mina, Metairie, Patrick W. Pendley, Freemen & Pendley, Ltd., Plaquemine, for plaintiff — REP, Inc.
    Patrick W. Pendley, Freeman & Pendley, Ltd., Plaquemine, for defendant — Sammy J. Sciortino d/b/a Sammy’s.
    Before COVINGTON, COLE and PONDER, JJ.
   PONDER, Judge.

Appellee has filed a “Motion to Dismiss Suspensive Appeal” on the ground that the suspensive appeal bond was not timely filed.

The relevant dates are:

1) Judgment rendered in open court at the conclusion of trial, August 18, 1983;

2) Judgment signed October 21, 1983;

3) Motion for appeal received by clerk of court November 30, 1983;

4) Appeal bond filed January 24, 1984;

5) Record lodged with the court, February 10, 1984;

6) Motion to dismiss filed.

Admittedly the appeal bond was not filed within the 30 day delay provided in La.C. C.P. art. 2123. However, the motion to dismiss was not filed within the three days allowed by C.C.P. art. 2161. See Peters v. Life General Security Insurance Company, 393 So.2d 1286 (La.App. 1st Cir.1980), writ denied 392 So.2d 1054 (La.1981).

MOTION TO DISMISS DENIED.

      . Art. 2123.
      Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of:
      (1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
      (2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
      (3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.

      . Art. 2161
      An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant. Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.


author: YELVERTON, Judge.

text:
    AGRICULTURAL EQUIPMENT CO., INC., Plaintiff-Appellee, v. Frank MELONCON, Defendant-Appellant.
    No. 84-580.
    Court of Appeal of Louisiana, Third Circuit.
    July 19, 1984.
    Stewart M. Thomas, Jennings, for plaintiff-appellee.
    DeJean, DeJean & DeJean, Robert F. DeJean, Sr., Opelousas, for defendant-appellant.
    Before YELVERTON, GUIDRY and CUTRER, JJ.
   YELVERTON, Judge.

MOTION TO DISMISS

Plaintiff-appellee, Agricultural Equipment Co., Inc., moves to dismiss the appeal of defendant-appellant, Frank Meloncon, on the ground that the appellant failed to timely pay the estimated costs of the appeal as required by LSA-C.C.P. Art. 2126, resulting in the record being lodged in this court beyond the original return date.

The order of appeal was filed by the trial judge on February 22, 1984, returnable to the Court of Appeal on April 22, 1984. The record was not lodged with this court until June 15, 1984.

The plaintiff-appellee filed in the trial court a Motion to Dismiss the appellant’s appeal, claiming that the defendant had not paid the costs of the appeal. On June 1, 1984, at the hearing on the rule to show cause why the appeal should not be dismissed, counsel for the defendant-appellant paid the estimated costs of the appeal in open court. The trial court extended the time for payment of costs to June 1, 1984, in a minute entry dated June 13, 1984, and denied the plaintiff's motion to dismiss the appeal.

When the record of appeal has been lodged with the appellant court by the return date or extended return date, together with filing fees, the question of appellant’s failure to pay timely the cost and fees required is moot. City of Natchitoches v. The Keg of Northwestern, 349 So.2d 466, 467 writ denied, 351 So.2d 176 (La.1977). Appeals are favored and will be maintained absent a clear showing of a legal ground for dismissal. Davidge v. Magliola, 346 So.2d 177 (La.1977).

We also note that an appellee may not bring into question the abuse of discretion of the trial court in granting an extension of the return date under the provision of LSA-C.C.P. Art. 2126 by means of a Motion to Dismiss. It was incumbent upon the appellee if he disputed this decision to have filed writs with this court.

MOTION DENIED.


author: CUTRER, Judge.

text:
    Benjamin LYMAN, Plaintiff-Appellant, v. TOWN OF SUNSET, et al., Defendants-Appellees.
    No. 84-552.
    Court of Appeal of Louisiana, Third Circuit.
    July 19, 1984.
    Koury & Koury, Joseph Koury, Colleen McDaniel, Lafayette, for plaintiff-appellant.
    Allen, Gooch, Bourgeois, Breaux & Robi-son, P.C., Sera Russell, III, Lafayette, Gu-glielmo, Lopez & Tuttle, James T. Gugliel-mo, Opelousas, Olivier and Brinkhaus, John Olivier, Sunset, Andrus & Doherty, Alex Andrus, Opelousas, for defendant-appellee.
    Before GUIDRY, CUTRER and YEL-VERTON, JJ.
   CUTRER, Judge.

MOTION TO DISMISS

Defendant-appellee, the Town of Sunset, moves to dismiss the appeal of plaintiff-appellant, Benjamin Lyman, on the grounds that the judgment appealed from is a non-appealable interlocutory judgment.

The trial court rendered judgment against the plaintiff assessing him with attorney fees for his failure to comply with discovery as required by law. The plaintiff has appealed.

An appeal may be taken from a final judgment or interlocutory judgment which may cause irreparable injury. LSA-C.C.P. Article 2083. A final judgment is one that determines the merits in whole or in part. A judgment that only determines preliminary matters in the course of an action is an interlocutory judgment. LSA-C.C.P. Article 1841.

Discovery orders such as those that assess attorney’s fees for failure to comply with discovery as required by statute, are considered to be interlocutory orders that are non-appealable and do not cause irreparable harm. Roy v. Moity, 225 So.2d 315 (La.App. 3rd Cir.1969); Keaty v. Furlow, Inc., 449 So.2d 499 (La.App. 3rd Cir.1984).

We, therefore, conclude that the judgment rendered is an interlocutory judgment and that there has been no showing of irreparable injury. The plaintiff-appellant may obtain appellate review upon an appeal from the merits of the case. Accordingly, we dismiss the appeal at plaintiff-appellant’s cost.

APPEAL DISMISSED.