author: WATKINS, Judge. PONDER, Judge, CARTER, Judge,

text:
    Wilford Leroy THOMPSON, Jr. v. COPOLYMER INTERNATIONAL INC., et al.
    No. 83 CA 0061.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writs Denied April 23, 1984.
    M.H. Gertler, New Orleans, Clinton Hyatt, Baton Rouge, for plaintiff-appellee Welford Leroy Thompson, Jr.
    Frank Fertitta, Baton Rouge, for defendants-appellees H.T. Branton and Branton Insulation Inc.
    Dominic Gianna, New Orleans, for defendant-appellee Allied Chemical Corp.
    Jesse Adams, New Orleans, for defendants-appellees Rubicon Chemical and K.E. Whattman.
    Richard Vale, Metairie, for intervenor-ap-pellee Employers Mut. Liability Ins. Co. of Wisconsin.

      James Doyle, Lake Charles, for defendant-appellee Fidelity & Cas. Co. of New York.
    Robert Vandaworker, Baton Rouge, for defendants-appellees Copolymer Intern. Inc., C.E. McKay, D.H. Neufeld, Copolymer Rubber & Chemical Corp.
    Edward Gray, Richard Nevils, John Dale Powers and David Vaughn, Baton Rpuge, for defendants-appellees Armand H. Hull-inghorst, J.P. Scheve, Hullinghorst Industries Inc.
    Paul H. Spaht, Baton Rouge, for defendants and third party plaintiffs-appellants McCarty Corp., M.R. McCarty.
    R. Michael Caldwell, Baton Rouge, for third party defendant-appellee Cover-All Underwriters Inc. of La.
    Daniel Caruso, New Orleans, for third party defendant-appellee Merit Ins. Co.
    George Richard, New Orleans, for third party defendant-appellee Prestige Cas. Co.
    Felix Weill, Baton Rouge, for third party defendant-appellee General Acc. Fire & Life Assur. Corp.
    Stephen Vogt, Baton Rouge, for third party defendant-appellant Employers Fire Ins. Co. and for third party defendant-ap-pellee Commercial Union Ins. Companies.
    Before PONDER, WATKINS, CARTER, SAVOIE and CRAIN, JJ.
   WATKINS, Judge.

Wilford Leroy Thompson, Jr., brought the present suit seeking damages in the sum of $2,500,000.00 for an alleged condition of asbestosis brought on by his employment by a succession of employers in the years 1952 through 1978 while working in contact with asbestos as an insulation worker. Among the defendants named were The McCarty Corporation and Marvin R. McCarty. The McCarty Corporation was dismissed as a co-defendant on the sustaining of an exception of no cause of action, which does not form part of the subject of this appeal. McCarty was retained as co-defendant in his status as an executive officer of The McCarty Corporation and as allegedly having been guilty of an “intentional act”. Plaintiff worked for The McCarty Corporation in the year 1972.

The McCarty Corporation and Marvin R. McCarty individually before the sustaining of the exception mentioned above, had filed a third party demand against their various insurers under workmen’s compensation and general liability policies for the period from July 1, 1968, through the date of filing of the third party demand, February 29,1980. The insurers named are Commercial Union Insurance Company, The Fidelity & Casualty Company of New York, General Accident Fire & Life Assurance Corporation, Ltd., and Cover-all Underwriters Incorporated of Louisiana. Later, on April 22, 1982, a Supplemental and Amending Third Party Petition was filed on behalf of McCarty and The McCarty Corporation naming as an additional third party defendant National Union Fire Insurance Corporation. The sole relief sought in either the original third party demand or the supplemental demand was a money judgment against the insurers in the event third party plaintiffs were held liable to Thompson, the plaintiff in the principal action.

On May 21, 1982, National Union filed a pleading styled Motion for Summary Judgment seeking summary judgment in its favor dismissing the third party demand against it. On July 1, 1982, The McCarty Corporation and Marvin R. McCarty filed a pleading styled Motion for Declaratory Judgment seeking a declaratory judgment against General Accident Fire & Life Assurance Corporation, Ltd., National Union Fire Insurance Company, The Employers’ Fire Insurance Company, and Fidelity & Casualty Company of New York. The declaratory judgment sought to determine two issues, (1) whether the insurers were required to defend The McCarty Corporation and Marvin R. McCarty, and (2) whether the insurers were obligated to pay any judgment rendered against The McCarty Corporation and Marvin R. McCarty.

The Motion for Summary Judgment filed by National Union and the “Motion for Declaratory Judgment” mentioned immediately above were decided together by judgment dated October 13, 1983, without a trial and without the transcription of a hearing (so far as we can determine, none being available), and written reasons for judgment were assigned. In the portion of the judgment that concerns the present appeal, National Union was dismissed as a third party defendant, and The Employers’ Fire Insurance Company was declared obligated to defend Marvin R. McCarty in the present proceeding and was declared obligated to pay any money judgment rendered against Marvin R. McCarty, subject to any applicable limit of liability. The well-reasoned reasons for judgment state that Louisiana has adopted the “injurious exposure” theory of liability in asbestosis cases, by virtue of the U.S. 5th Circuit’s decision in Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.1981), which cited with favor Insurance Company of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir.1980). As is well brought out in the Forty-Eight Insulations case, other theories of sequential liability have been advanced in asbestosis cases, which Forty-Eight Insulations rejected.

We find it unnecessary to determine whether the Louisiana courts should adopt the “injurious exposure” theory in asbestosis cases, or another theory, as the issue was not properly placed before the trial court in a procedural posture permitting determination.

The issue was decided on the basis of McCarty’s pleading styled Motion for Declaratory Judgment. We are unable to determine whether the Motion constitutes a petition for declaratory judgment or a motion for summary judgment.

If the pleading constitutes in effect a petition for declaratory judgment, we note that it is fundamental to Louisiana law that a declaratory judgment can be rendered only after the holding of a trial on the merits if the determination involves an issue of fact. LSA-C.C.P. art. 1879. In the present case, we gather from a reading of the pleadings, answers to interrogatories, and the deposition of Dr. Clay A. Waggenspack, Jr., plaintiff’s treating physician, that serious issues of fact exist as to whether plaintiff indeed had asbestosis and if he did, under what period of employment it was caused, contracted, and/or manifested itself. Without a trial on the merits to determine these issues, the issue is not ripe for determination.

On the other hand, we could view the Motion for Declaratory Judgment as a Motion for Summary Judgment. However, the relief principally sought in the Motion filed by McCarty is a determination of the issue of liability prospectively before the principal issue, the awarding of a money judgment, is determined. As was noted in Smith v. Hanover Insurance Co., 363 So.2d 719 (La.App. 2d Cir.1978), cited approvingly in Dryades Savings and Loan Association v. Lassiter, 400 So.2d 894 (La.1981), this form of determination the courts cannot give. A summary judgment may grant less than all of the relief prayed for. However, as these cases note, at least some of the relief sought in the plaintiff’s demand (in this case, the third party plaintiff’s demand), must be sought on the motion for summary judgment. Here, third party plaintiff McCarty sought but one form of relief in his two third party demands, a money judgment against the insurers in the event he was cast in judgment. The relief sought on the so-called Motion for Declaratory Judgment was (1) a prospective determination of liability and (2) a declaration of obligation to defend. Neither of these two forms of relief was sought in the original third party demand or the amended third party demand. Hence, the form of summary relief sought could not properly be granted, and the hybrid declaratory-summary judgment granted must be vacated and set aside.

As the issue of the liability of National Union is interrelated to the factual issues involving asbestosis discussed above, as to which genuine issues of material fact are present, we consider it inappropriate to rule upon the ultimate liability of National Union at this time and reverse the summary judgment granted by the lower court in its favor.

The judgment of the trial court is reversed, vacated, and set aside, and the matter remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PONDER, J., concurs and assigns reasons.

CARTER, J., dissents for written reasons assigned.

PONDER, Judge,

concurring.

I believe the motion for declaratory judgment to be invalid. The articles on declaratory judgment seem to contemplate an ordinary proceeding, not a summary one.

Counsel’s reliance on Code of Civil Procedure Article 2592(1) I believe to be misplaced, because the provision allowing the use of summary proceedings to dispose of an incidental question should not allow the ignoring of the provisions on declaratory judgments and the safeguards provided there.

Even if the motion be available, however, the motion did not state the basis on which relief should be granted and no evidence was taken at the hearing. It is true that certain interrogatories had been answered and certain documents filed. The codal articles on summary judgment allow the considering of pleadings, depositions, admissions on file and affidavits. I have found no corresponding provisions for summary proceedings.

If declaratory judgment be available under these circumstances, there would seem to be no bar to the use of a motion for summary judgment after petition filed, discovery made, and the material facts found to be undisputed. Certainly, that procedure would be preferable to the abbreviated and capsuled procedure employed herein.

Even if declaratory judgment under these circumstances be declared unavailable, third party plaintiff has a remedy. He Can proceed with his own defense and later seek the costs and penalties from the recalcitrant insurance company or companies. There are hints that this might be burdensome on third party plaintiff but we have no proof.

On the question of summary judgment, there are still some questions of fact to be resolved. I point to the questions of whether plaintiff has asbestosis, when symptoms became manifest if he does have asbestosis, when he worked for McCarty Corporation since the response of McCarty Corporation was to the effect that the earning card for 1972 was the only record of plaintiffs employment that McCarty Corporation would find while plaintiff has stated that he was employed there from a date unknown until December, 1972, and that he worked for McCarty Corporation off and on for a period of approximately 10 years.

Furthermore, the motions were granted on the basis that Louisiana accepts the so-called injurious exposure theory of liability as adopted by the Federal Court in Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir., 1981). I am reluctant to adopt such a far-reaching conclusion without development of more facts, both of this specific case and of the medical aspects of asbestosis.

I concur.

CARTER, Judge,

dissenting.

I respectfully disagree with my learned brethren and agree with the trial court that the motion for declaratory judgment by summary process under the facts presented was both procedurally correct and substantively sound.

The' suit for declaratory judgment presented no issues of fact and only one issue of law, viz., what theory of recovery Louisiana courts will recognize in asbestosis cases, and as a result of this, who will be obligated to defend McCarty. I fail to see the tenuous distinction that my learned brethren make in the majority opinion as to the unavailability of declaratory judgment in a summary manner. and likewise, its availability if an ordinary proceeding is instituted. Although the case sub judice came before us in a summary proceeding, the information in the record is the identical evidence that would have been presented in an ordinary proceeding. Therefore, I see no reason for refusing to hear the case at this time and in its present form.

We are presented with a situation where McCarty bought and paid for liability insurance coverage through several different companies over many years. However, once suit was filed against McCarty, each insurer, relying on a different theory of recovery, contended that some other insurer rather than itsélf was responsible for providing coverage. Indeed, one of the insurers sought to be dismissed from the suit on a motion for summary judgment. I believe we can and should decide the coverage issue that has been presented to us, and thereby require the proper insurer to provide a defense and ultimately assume liability in the event judgment is rendered against McCarty.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    James Earl VARNADO, et ux. v. CONTINENTAL INSURANCE COMPANY and Malcolm Orillion.
    No. 83 CA 0313.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Ralph Brewer, Baton Rouge, for plaintiffs-appellees James Earl Varnado, et al.
    Ronald F. DeFrances, Baton Rouge, for defendants-appellants Continental Ins. Co. and Malcolm Orillion.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This is a suit for damages for personal injuries received by plaintiff, Gwendolyn Varnado, when her car was hit by the car driven by defendant, Malcolm Orillion. Mr. Varnado was also a party plaintiff. The trial court judgment found the plaintiff 20% at fault, the defendants (Orillion and his insurer) 20% at fault, and an unknown driver of a third car to be 60% at fault. Damages of $5,669.62 were found to have been sustained, but were reduced by plaintiff’s percentage of fault to $4,535.70. Defendants, Orillion and his insurer, liable in solido with the absent driver, were cast in judgment for that amount. Defendants appeal contesting the trial court’s apportionment of fault, and the plaintiffs answer the appeal, seeking an increase in damages.

FACTS

On March 4, 1981, at approximately 9:00 A.M., Gwendolyn Varnado was traveling in the left lane of a one way, two lane street in Plaquemine, Louisiana. It had been drizzling intermittently.

Mrs. Varnado was traveling at approximately 20 or 25 miles per hour, following a white Cadillac and keeping a distance of some two or three car lengths behind it. The Cadillac made a sharp stop and an abrupt left turn. In attempting to avoid hitting the Cadillac’s rear, Mrs. Varnado applied her brakes. This sent her car skidding partially into the right lane in a clockwise manner. The front of her car then was hit by Mr. Orillion either before it came to a halt or one or two seconds after it stopped.

Mrs. Varnado sustained whiplash-type injuries and missed a couple of days of work.

After trial on the merits, the trial court rendered judgment as recited above and additionally ordered defendants to pay all costs. Motion for a new trial was denied.

SPECIFICATION OF ERROR

Defendants claim that the trial court erred in: 1) apportioning fault among the actors in that too high a percentage of fault was attributed to defendants and to the unknown driver, and too low a percentage to the plaintiff; 2) considering the unknown driver when finding fault and in placing the burden of his absence solely on them; 3) awarding an excessive amount for pain and suffering; 4) denying their motions to dismiss and for a new trial; and 5) ordering them to pay all the court costs.

Plaintiffs answer, claiming that the trial court erred in assigning any fault to Mrs. Varnado and in awarding an insufficient amount to them.

ISSUES

THE APPORTIONMENT OF FAULT

As stated above, the trial court applying La.Civ.Code art. 2323, apportioned the fault thusly: 20% to the plaintiff, 20% to defendant-Orillion, and 60% to the unknown and absent driver.

The trier of fact’s finding as to the percentages of fault is factual, just as findings of contributory negligence under the old law were factual, and such a determination will not be disturbed on appeal unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Chaney v. Cunningham, 411 So.2d 519 (La.App. 1st Cir.1982). The finding of negligence (and formerly contributory negligence) presents a question of law when the inquiry is made as to the extent of a defendant’s duty under the duty/risk analysis. See Dulaney v. Travelers Insurance Company, 434 So.2d 578 (La.App. 1st Cir.1983). Johnson, Comparative Negligence and the Duty/Risk Analysis, 40 La.L.Rev. 319 (1980).

We find no manifest error in the trial judge’s assessment of fault. He found that the absent driver made a sudden turn into a private driveway without signal-ling. In light of the rainy weather such a move was unreasonable and justifiably resulted in that driver being credited with 60% of the fault.

Mrs. Varnado was found to have been keeping a proper lookout, in that she avoided striking the Cadillac which suddenly stopped. The judge found her at fault though, for failing to reduce her speed in view of the wet pavement. Such a failure caused her to be too close to the Cadillac when it turned and precipitated her skid into the right lane. That 20% of the fault was attributed to her is not error.

Mr. Orillion, the defendant driver, was found to be at fault because of his failure to keep a proper lookout and to reduce his speed in consideration of the conditions. The judge specifically placed credence in the testimony of those witnesses who stated that it was one or two seconds after plaintiff had stopped her skid that defendant hit her; he found this to be ample time in which defendant could have stopped. .Hence, there was justification for finding this defendant 20% at fault.

COMPUTING THE FAULT OF THE ABSENT TORTFEASOR AND THE BURDEN OF ABSENCE

Defendants claim that the driver of the white Cadillac, who was found to be 60% at fault, should not have been considered by the trial judge when he was apportioning fault. They further aver that if the absent tortfeasor is considered, the negligent plaintiff, as a solidary co-debtor, should also share the burden brought on by that absence.

Addressing defendants’ first assertion, we find that the trial judge was correct in considering the absent and presumably unknown tortfeasor. La.Code Civ.P. art. 1917 orders the trial court, in nonjury cases dealing with delictual damages, to “make specific findings that shall include those matters to which reference is made in Paragraph B of Article 1811 of this Code.” Article 1811, Paragraph B 2 refers to the degree of fault of “another involved person, other than the person suffering injury, death or loss ...”. Paragraph B 1 refers to the fault of a party from whom damages are claimed. Therefore the implication is that the other person referred to in B 2 includes one not a party to the suit.

The question then arises: how to allocate the burden of the absent tortfeasor’s percentage of fault? Defendants contend that since plaintiff was found to be partially at fault, she is solidarity liable with the defendants and the driver of the Cadillac. This is so, they say, because La.Civ.Code art. 2103, in pertinent part reads:

“When two or more debtors are liable in solido, whether the obligation arises from a contract, a quasi-contract, an offense, or a quasi-offense, the debt shall be divided between them. If the obligation arises from a contract or a quasi-contract, each debtor is liable for his virile portion. If the obligation arises from an offense or a quasi-offense, it shall be divided in proportion to each debtor’s fault.”

. Additionally, La.Civ.Code art. 2104 states:

“If one of the codebtors in solido pays the whole debt, he can claim from the others no more than the part and portion of each.
“If one of them be insolvent, the loss occasioned by his insolvency must be equally shared amongst all the other solvent codebtors and him who has made the payment.”

As discussed in Professor Chamallas’ article, Comparative Fault and Multiple Party Litigation in Louisiana: A Sampling of the Problems, 40 La.L.Rev. 373 (1980), Article 2104 is mostly incompatible with the comparative negligence legislation. The article speaks of the “whole debt” paid by one of the codebtors in soli-do. Defendants here were not liable for the whole debt, but only for 80% of plaintiff’s damages, as plaintiffs 20% fault has already been subtracted. Furthermore, the article speaks of sharing the loss of the insolvent debtor (here, unknown debtor) “equally” by the solvent codebtors; the preceding article, 2103, orders the debt be divided in proportion to each debtor’s fault.

We believe, rather, that La.Civ.Code art. 2324 governs this situation. It states:

“Art. 2324. He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person for the damage* caused by such act. “Persons whose concurring fault has caused injury, death or loss to another are also answerable, in solido; provided, however, when the amount of recovery has been reduced in accordance with the proceding article, a judgment debtor shall not be liable for more than the degree of his fault to a judgment creditor to whom a greater degree of negligence has been attributed, reserving to all parties their respective rights of indemnity and contribution.” (emphasis added)

The second paragraph readily covers the present situation. It suggests that defendants here along with the absent driver, whose, concurring fault caused injury and loss to another (plaintiff), are both debtors in solido; plaintiff was 20% at fault for injuries to himself and not “another,” and thus is excluded from the company of soli-dary codebtors. And because the judgment creditor was not attributed with a greater degree of fault than the judgment debtors (even though the proportions are equal-20%), defendants, as in solido judgment debtors, are still liable for the whole amount. The risk of inability to collect from an absent tortfeasor is thus placed on the party at fault and on the defendant when fault is equal.

Thus, though a particular case such as this produces less than equitable results, article 2324, represents the legislature’s rough compromise on solidarity among co-tortfeasors.

MOTION TO DISMISS AND MOTION FOR NEW TRIAL

For reasons already stated, the trial court did not err by denying defendants’ motion to dismiss made at the end of plaintiffs case nor did it err in denying the motion for a new trial. The motion to dismiss was properly denied because plaintiff had established a ease of negligence on defendant’s part by a preponderance of the evidence. See Bradley v. Hunter, 413 So.2d 674 (La.App. 3rd Cir.1982) writ denied, 415 So.2d 952 (La.1982).

The court’s denial of the motion for a new trial was correct in that the judgment was not contrary to the law and the evidence.

QUANTUM

Mrs. Yarnado had had no neck or back trouble before the accident. After the accident, Mrs. Varnado experienced some pain in those areas.

She saw’ Dr. Halley, an orthopedic surgeon, on March 4,12,19, 27 and April 20 of 1981. Mrs. Yarnado complained to him of pains in her back and neck; some muscle spasms in her neck were observed. The doctor said that Mrs. Varnado improved somewhat upon each visit. X-rays proved negative and no residual infirmities were expected. He prescribed pain medication and muscle relaxants for a short while.

Mrs. Varnado described her ailment as a “a come and go” pain. She missed two days of work as a result of it. The pain lasted about a month in this level of severity, then subsided; today, the pain returns if Mrs. Varnado performs strenuous activity-

Considering the foregoing, we find $5,000 as an award for her pain and suffering to be within the trial court's much discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

PAYMENT OF COSTS

Defendants-appellants ask that we amend the trial court’s order that they be taxed for all costs to an order that both the plaintiffs and defendants pay the costs proportioned to the degree of fault.

The judge may assess costs, or any part thereof, against any party, as it may consider equitable. La.Code Civ.P. art. 1920. We find no abuse of discretion on the part of the trial judge in assessing costs against the defendants-appellants.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed. All costs, both in this court and in the trial court, are assessed against defendants-appellants.

AFFIRMED.

      . "Art. 2323. When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.

      . See Sampy v. Roy Young, Inc., 425 So.2d 284 (La.App. 3rd Cir.1982), where the court preter-mitted the question of whether the assessment of percentages of fault is a legal or factual matter.

      . This case presents in stark detail the large difference in possible outcomes under this article. If defendants had been found 19% at fault the unknown driver 61% and plaintiff 20%, plaintiff could only have received 19% of her damages.

      . Suggestions that we use a “rates approach,” i.e. comparing plaintiff's negligence (20%) with defendant’s (20%) to produce a 1.1 ratio, are not supported by the statutory language. The Civil Code or Code of Civil Procedure would have to be further amended for the use of this approach to be proper.


author: ALFORD, Judge.

text:
    Robin HOOD & Suzy Greene v. ASHBY PARTNERSHIP dba Maison Coteau Apartments.
    No. 83 CA 0319.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Paula Cobb, Baton Rouge, for plaintiffs/appellees.
    Frank H. Dickinson, III, Baton Rouge, for defendant/appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Plaintiffs, Robin Hood and Suzy Greene, filed this suit against defendant, Ashby Partnership dba Maison Coteau Apartments, seeking a return of a security deposit given to secure the performance of a written lease agreement between plaintiffs and defendant. In addition to the return of the deposit, the plaintiffs also sued for damages and attorney’s fees. After a trial on the merits, the lower court ruled that the plaintiffs were entitled to the return of their security deposit, and additionally, awarded them $250.00 in attorney’s fees; however, the plaintiffs’ demand for damages was rejected. The defendant has appealed this decision.

The transcript reveals the following facts. On May 3, 1982, plaintiffs Robin Hood and Suzy Greene entered into a written contract of lease with the defendant. The object of the agreement was an apartment located close to the Baton Rouge campus of Louisiana State University. The contract contained the following language relating to the term of the lease: “This lease is for a term commencing on the 3rd day of May 1982, and ending on the last calendar day August 3rd, 1982.” It can readily be seen that there exists some ambiguity as to the precise term of the lease. Does the lease terminate on the “last calendar day” of August, 1982, or on August 3, 1982? After a thorough review of the record, we think the parties intended August 3, 1982, to be the expiration date. The plaintiffs were in hopes of finding a dormitory room at L.S.U. for the fall, 1982 semester. Thus, they needed an apartment only during the summer months and until they could secure a dormitory room. This, they surmised, would be sometime around the first of August.

In addition to the provision for a term, the lease also provided the following stipulation entitled “Automatic Renewal”:

If Lessee, or Lessor, desires that this lease terminate at the expiration of its term, he must give to the other written notice at least 30 days prior to that date. Failure of either party to give this required notice will automatically renew this lease and all of the terms thereof. This provision is a continuing one and will apply at the expiration of the original term and at the expiration of each subsequent term.

The testimony reveals that sometime during the first week in August of 1982, plaintiffs tendered defendant a check representing rent for the entire month of August. Additionally, plaintiffs also testified that at the time they gave defendant written notice they would be vacating the apartment at the end of August. The rent check and notice of termination were given to Yvonne Ross, one-time manager of the defendant’s apartments who moved out of state before the trial and was not available to testify.

At the end of August, the plaintiffs vacated the apartment. Immediately after moving out, the plaintiffs requested the return of their damage deposit from Mrs. Ross’s husband and allegedly provided him with a forwarding address. He informed them that it usually took 30 days for a request to be processed because of bookkeeping considerations. The plaintiffs testified they left the apartment undamaged and clean.

Approximately thirty days later, the plaintiffs’ security deposit had not been returned nor had the plaintiffs received an itemized list of expenses reflecting sums expended by defendant in rehabilitating plaintiffs’ apartment into rentable condition. In response, the plaintiffs allegedly called Yvonne Ross who informed plaintiffs their check was not ready. Subsequently, never having received any money, the plaintiffs filed suit in City Court in Baton Rouge. At trial, the plaintiffs insisted that they provided defendant with written notice of termination, a forwarding address where defendant could mail plaintiffs’ check, and that they vacated the apartment in an undamaged and clean condition.

The only witness to testify for the defendant was Earl Myers, general manager of the defendant corporation. Essentially, Myers sought to establish three points by his testimony: 1) The plaintiffs had not complied with the lease and thus were not entitled to the return of their security deposit; 2) The plaintiffs had not provided defendant with written termination of their occupancy or given defendant a forwarding address; and 3) The plaintiffs left the carpet in the apartment in such a damaged condition that the amount of money it would cost to repair the carpet would exceed the amount given as security.

As noted earlier, the lower court held in favor of the plaintiffs on the question of the return of their security deposit and attorney's fees. However, because the trial court felt that the plaintiffs had not proven that they had supplied defendant with a forwarding address (and he had some doubts as to whether written notice of termination was given), he concluded that defendant’s failure to return the deposit within one month after the termination of the lease was not willful, and thus did not expose defendant to the penalty provision of La.R.S. 9:3252. The trial judge did not give reasons explaining why he though the plaintiffs were entitled to the return of their deposit, nor did he seem to pay any attention to the contract of lease signed by the plaintiffs.

The appellant urges two assignments of error on appeal. These assignments may be combined into one argument: the lower court erred when it ignored the automatic renewal provision of the lease and its effect on La.R.S. 9:3251 C.

The Lessee’s Deposit Act in Louisiana is contained within four provisions of the Revised Statutes. These statutes provide as follows:

§ 3251 A. Any advance or deposit of money furnished by a tenant or lessee to a landlord or lessor to secure the performance of any part of a written or oral lease or rental agreement shall be returned to the tenant or lessee of residential or dwelling premises within one month after the lease shall terminate, except that the landlord or lessor may retain all or any portion of the advance or deposit which is reasonably necessary to remedy a default of the tenant or to remedy unreasonable wear to the premises. If any portion of an advance or deposit is retained by a landlord or lessor, he shall forward to the tenant or lessee, within one month after the date the tenancy terminates, an itemized statement accounting for the proceeds which are retained and giving the reasons therefor. The tenant shall furnish the lessor a forwarding address at the termination of the lease, to which such statements may be sent.
B. In the event of a transfer of the lessor’s interest in the leased premises during the term of a lease, the transferor shall also transfer to his successor in interest the sums deposited as security for performance of the lease and the transferor shall then be relieved of further liability with respect to the security deposit.
C. Paragraph A of this Section shall not apply when the tenant abandons the premises, either without giving notice as required or prior to the termination of the lease.
§ 3252.
The willful failure to comply with R.S. 9:3251 shall give the tenant or lessee the right to recover actual damages or two hundred dollars, whichever is greater, from the landlord or lessor, or from the lessor’s successor in interest. Failure to remit within thirty days after written demand for a refund shall constitute willful failure.
§ 3253.
In an action brought under R.S. 9:3252, the court may in its discretion award costs and attorney’s fees to the prevailing party.
§ 3254.
Any waiver of the right of a tenant under this part shall be null and void.

La.R.S. 9:3251 C. clearly states that Section A of § 3251 shall not apply when the tenant abandons the premises without giving the proper notice or prior to the termination of the lease. The standard lease employed in this case required the plaintiffs to provide defendant with notice of termination thirty days prior to the expiration of the term. Failure to do so would result in the automatic renewal of the lease. Thus, thirty days prior to August 3, 1982, or by July 4, 1982, the plaintiffs were required to notify the defendant they would be moving. If they did not provide such notice by that date, the lease would be automatically renewed.

The record in this ease is clear that the plaintiffs did not provide the proper notice to the defendant, and, in effect, abandoned the apartment prior to the termination of the lease in contravention of La.R.S. 9:3251 C. As noted above, the lease agreement in question had a three month term — May 3, 1982 until August 3, 1982. The lease also had a provision which required notice of termination thirty days prior to the expiration of the original term. This provision was clear, unambiguous and situated very near the beginning of the contract. (Additionally, at the conclusion of the lease, situated immediately above the signature of the plaintiffs, the following sentence is written in bold, all-capital letters: “Read your lease before signing.”) Thus, according to the express terms of the contract, freely entered into by all parties, the plaintiffs were required to give defendant notice of termination thirty days prior to August 3, 1982, or July 4, 1982. Moreover, as per the automatic renewal provision (which was also captioned in bold, all-capital letters), if notification was not forthcoming by July 4, 1982, the lease was automatically renewed for another three months, or until November 4, 1982.

It is unquestioned that plaintiffs did not provide the thirty day notice. Indeed, they freely admit that notice was not provided until the first week in August (and even then the trial judge had some doubts as to whether the August notice was in writing). This notice was without legal effect. By not providing the thirty day notice on July 4, 1982, the plaintiffs had already “agreed” to extend the lease until November 4, 1982. As such, when the plaintiffs vacated the apartment on August 31, 1982, they were abandoning the premises prior to the termination of the lease.

It is axiomatic that agreements legally entered into have the effect of law upon the parties thereto, and courts are bound to give legal effect to these agreements according to the true intent of the parties, as generally determined by the words of the contract when these are clear and specific. La.C.C. articles 1901 and 1945; Snedegar v. Noel Estate, Inc., 438 So.2d 677 (La.App. 2nd Cir.1983). Furthermore, because a court may not impute to the parties the use of language without meaning or effect, some effect must be given to every word or clause in the contract. Lambert v. Maryland Casualty Company, 418 So.2d 553 (La.1982). When we apply these principles to the case sub judice, we think the effect to be given the automatic renewal provision must result in the conclusion that the plaintiffs violated the lease by failing to give the proper notice of termination and thereby abandoned the premises before the expiration of the lease term.

Of course, our inquiry cannot end here. The question is presented as to whether or not the enactment of La.R.S. 9:3251 C. means that a tenant automatically must forfeit his entire deposit because of noncompliance with a lease obligation, or does it simply mean that if the tenant does not fulfill his lease obligation completely, the lessor need not furnish an itemized list of expenses, or need not furnish it within one month of termination, but still must return any security deposit money not expended on repairs?

Consistent with our earlier analysis, we first turn to the lease agreement entered into by the parties for further guidance. Under the caption “Security Deposit” we find the following language:

Notwithstanding any other provisions expressed or implied herein, it is specifically understood and agreed that the entire security deposit aforesaid shall be automatically forfeited as liquidated damages should Lessee vacate or abandon the premises before the expiration of the lease_ (emphasis in original).

This contractual provision seems to address the very question raised above. However, because we feel that the forfeiture provision may, in some respects, conflict with La.R.S. 9:3254, we prefer to extend our inquiry one step further.

In early 1975, this court decided the case of Garb v. Clayton-Kent Builders, Inc., 307 So.2d 813 (La.App. 1st Cir.1975). The holding in the Garb case was based upon the law in effect prior to the 1974 Amendments to the Lessee’s Deposit Act. Among other things, these amendments added what is now subsection C. of La.R.S. 9:3251. The law prior to the 1974 amendments did not provide for a situation where the lessee abandons the premises, either without giving notice as required or prior to the termination of the lease, but nevertheless demands his deposit back. Thus, the decision in Garb was not predicated upon the existence of La.R.S. 9:3251 C.

In Garb, the tenant vacated the premises without giving the notice as required in the lease and then filed suit for the return of the damage deposit. While finding the lessor had not violated the Lessees’ Deposit Act, the court did make some interesting observations; and, although they are only peripheral to the holding in the case, they do shed light upon the problems presently before the court. Thus, we quote from the court’s opinion as follows:

We find that the statute does not sanction forfeiture of a deposit solely because of Lessee’s alleged noncompliance with or breach of a lease obligation. On the contrary, a Lessor’s right to retain all or part of a deposit is expressly conditioned upon the retainage being reasonably necessary to remedy a stated default by Lessee or to restore the premises when unreasonable wear and tear has resulted from the Lessee’s occupancy. When the privilege of retainage exists and is exercised by a Lessor, the statute imposes upon Lessor the obligation of accounting for the retainage by means of .an itemized statement which must include reasons therefor. We think the obvious purpose of requiring itemization is to prevent a Lessor from arbitrarily withholding a deposit, and at the same time furnish a criterion for determining whether the retainage is reasonably necessary to alleviate the alleged default of the Lessee or to cure the effect of unreasonable wear and tear found upon termination of Lessee’s occupancy. 307 So.2d at 815. (emphasis supplied).

As noted above, the law upon which the Garb case was predicated was specifically amended by the enactment of La.R.S. 9:3251 C. We think the amendments to the Lessee’s Deposit Act must result in a conclusion different from the one reached by the court in Garb.

It has been previously written that the purpose of the Lessee’s Deposit Act was, and is, to provide lessees with mechanisms to recover rent deposits and to prevent arbitrary withholding thereof, and that by providing for damages and attorney’s fees where the landlord wrongfully retains a security deposit, the arbitrary retention of the deposit will be discouraged. Altazin v. Pirello, 391 So.2d 1267 (La.App. 1st Cir.1980); Curtis v. Katz, 349 So.2d 362 (La.App. 4th Cir.1977), writ denied, 351 So.2d 179 (La.1977).

We do not feel that the enactment of La.R.S. 9:3251 C. changes or defeats the purposes of the Lessee’s Deposit Act. It simply requires the tenant to abide by the terms of a lease he may enter into, or to the law of notice set forth in our Civil Code in article 2686. If he fails to do so, then as a sanction the tenant may not recover any of his security deposit. Therefore, we feel that La.R.S. 9:3251 C. sanctions the forfeiture of the entire security deposit where the lessee breaches a lease obligation relating to the proper notice to be given, or where the tenants abandon the premises prior to the expiration of the term. In the case sub judice, the plaintiffs clearly violated the express provisions of La.R.S. 9:3251 C. and, as such, are not entitled to the return of their security deposit. Of course, neither are they entitled to attorney’s fees. Accordingly, we hold that the lower court was manifestly erroneous in granting plaintiffs the return of their security deposit and attorney’s fees, and we reverse the trial judge’s decision at appel-lee’s cost.

REVERSED.


author: LANIER, Judge.

text:
    Lelio MIX v. Victor MOUGEOT and Paul W. Mougeot d/b/a Mougeot’s Meat Packing Company.
    No. 83 CA 0360.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Samuel C. Cashio, and Richard J. Ward, Jr., Maringouin, for plaintiff-appellee.
    C. Jerome D'Aquila, New Roads, for defendants-appellants.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit for workmen’s compensation benefits and medical expenses alleging that an employee, Lelio J. Mix, Jr., was totally and permanently disabled by a job-delated accident. The employers, Victor Mougeot and Paul W. Mougeot d/b/a Mougeot’s Meat Packing Company (Moug-eot’s), filed a peremptory exception of prescription which was overruled by the district court. After a trial, the district court rendered judgment in favor of Mix for compensation benefits for temporary total disability of $3,000 (25 weeks at $120 per week) and assessed Mougeot’s a statutory penalty attorney fee of $500. Mougeot’s suspensively appealed this judgment. Mix answered the appeal asserting that the district court committed error by failing to award medical expenses and the statutory penalty of 12% of the total amount of the claim and requested an increase of the attorney fee awarded.

FACTS

On March 22,1978, Mix was employed by Mougeot’s as a butcher. Mix testified that around 2:00 or 8:00 p.m. on that date he sustained a hernia when he slipped and fell while carrying a hindquarter of beef from Mougeot’s cooler. On March 23, 1978, Mix saw Dr. James L. Christopher who diagnosed his injury as a right indirect inguinal hernia. Mix returned to work on March 24, 1978, with the permission of Dr. Christopher but quit about one week later because he could not continue the work. Mix again saw Dr. Christopher about one or two weeks after the accident and was told that he needed surgery to repair the injury. The operation was scheduled for April 18, 1978, but was cancelled because neither Mix nor Mougeot’s had insurance to cover the cost of the operation. When Mougeot’s failed to make arrangements to pay for the operation, Mix decided to go to the Earl K. Long Hospital (a charity hospital) for the operation. The surgery was successfully performed in the latter part of July 1978. Approximately two weeks after the surgery, Mix went for a checkup and was told he could return to work in four to six weeks if he felt able to do so. Mix eventually went back to work around the latter part of September or the first part of October 1978 for a different employer.

PRESCRIPTION

Mix filed this suit on March 21,1979, and alleged that he was injured on March 22, 1978. Mougeot’s contend that the evidence shows that Mix was injured two weeks prior to March 22, 1978, and that the district court committed error by overruling the exception of prescription.

Suits for this type of workmen’s compensation claim must be filed within one year after the date of the accident. La.R.S. 23:1209. The burden of proving prescription is on the party pleading it. Langlinais v. Guillotte, 407 So.2d 1215 (La.1981). This rule is applicable to workmen’s compensation accidents. Quine v. Ideal Cement Company, 351 So.2d 1303 (La.App. 1st Cir.1977), writ denied, 353 So.2d 1035 (La.1978).

At the trial of the exception of prescription, Mougeot’s called Dr. Christopher, Paul Mougeot and Victor Mougeot as witnesses. Mix presented the testimony of Veletta Cline Mix (his wife), William Dero-sin (nicknamed “Rassey”) and himself.

Dr. Christopher testified that he first saw Mix on March 23, 1978. At that time, Mix gave Dr. Christopher a history of having fallen down two weeks prior while moving a hindquarter of beef off some hooks. However, Dr. Christopher admitted that on May 24, 1978, he signed an accident report which indicated that the accident occurred on March 23, 1978. Dr. Christopher also indicated that he had no independent recollection of his conversation with Mix but was relying on the notes that he made at the time. Paul Mougeot and Victor Moug-eot both testified that Mrs. Mix called them and informed them that Mix had been injured and was going to see a doctor. Neither was able to give a specific date when this occurred.

Mrs. Mix testified that on March 22, 1978, her husband came home from work and told her that he got hurt on his job. Mix was in pain that night and Mrs. Mix made an appointment with Dr. Christopher for him the next day, March 23,1978. Mrs. Mix called the Mougeot brothers the next day and told them that her husband had been injured when he fell while picking up a hindquarter of meat in the cooler. William Derosin testified that on March 22, 1978, Mix told him that he had slipped in the cooler and hurt himself. Derosin did not see Mix fall. Mix testified that he was injured on March 22,1978, and reported the accident to William Derosin right after it occurred. Mix saw Dr. Christopher the day after his accident. Mix denied telling Dr. Christopher that he had fallen down two weeks prior.

The action of the trial judge of overruling the plea of prescription indicates that he accepted the. testimony of Mix, Mrs. Mix and Derosin and disregarded that of Dr. Christopher and determined that Moug-eot’s failed to meet their burden of proof. When there is a conflict in the testimony of witnesses, an appellate court should not disturb a trial court’s evaluation of the weight of the evidence unless this evaluation is manifestly erroneous or clearly wrong. Grace Apartments v. Hill, 428 So.2d 862 (La.App. 1st Cir.1983); Oncale v. Clement, 411 So.2d 543 (La.App. 1st Cir.1982). The trial court’s ruling on the plea of prescription is based on a reasonable evaluation of the weight of the evidence and is not clearly wrong.

This assignment of error is without merit.

LENGTH OF DISABILITY

Mougeot’s contend that the trial court award of workmen’s compensation benefits of $3,000 ($120 for 25 weeks) is erroneous. They contend that Mix only suffered a temporary total disability for 12 weeks entitling him to benefits of $1,440. They do not contest the fact that an accident occurred or that Mix was temporarily totally disabled for a period of time.

An employee in a workmen’s compensation case has the burden of proving to a legal certainty and by a reasonable preponderance of the evidence the nature and extent of his disability. Daney v. Argonaut Insurance Company, 421 So.2d 331 (La.App. 1st Cir.1982). The employee claiming temporary total disability must show the “probable duration of such disability.” La.R.S. 23:1222. The trial court’s factual determination as to the length of disability is entitled to great weight and will not be disturbed except upon a showing of manifest error. Fontenot v. Cagle Chevrolet, Inc., 417 So.2d 1338 (La.App. 3rd Cir.1982), writ denied, 421 So.2d 1125 (La.1982); Hookfin v. Schwegmann Bros. Giant Super Markets, Inc., 398 So.2d 1218 (La.App. 4th Cir.1981). On March 22,1978, Mix was earning $180 per week. La.R.S. 23:1221(1) provides that an employee shall be paid a sum equal to sixty-six and two-thirds per centum of his wages during the period of disability for an injury producing temporary total disability. Mix is entitled to sixty-six and two-thirds percent of $180, or $120 per week during the period of his disability.

Mix was injured on March 22, 1978. He continued working for about a week thereafter but had to stop because the pain of his injury was too severe. Mougeot’s argue that because Dr. Christopher scheduled Mix’s operation for April 18,1978, and testified that Mix would only be disabled for twelve weeks thereafter, that the total length of disability is fourteen weeks and the remaining period of disability is not attributable to them. This argument cannot prevail because Mix did not have his operation in April of 1978 because neither he nor Mougeot’s had insurance and Moug-eot’s failed to make arrangements to pay for the operation. Mix on his own went to a charity hospital. After diagnostic procedures and a delay for an emergency, the hernia was successfully surgically repaired in the latter part of July of 1978. Two weeks after the surgery, Mix reported for a checkup and was told he could resume work in four to six weeks. Mix testified that he tried to go back to work between six to eight weeks after his operation. Mrs. Mix testified that it took Mix seven weeks to get well. Dr. Christopher testified that under normal circumstances it should take Mix six weeks to recover from his operation. Mix actually returned to work with another employer at the end of September or beginning of October 1978. Considering this evidence, we find that the ruling of the trial court that the probable duration of Mix’s disability was a twenty-five week period from the end of March to the end of September of 1978 is not clearly wrong. The award of $3,000 in workmen’s compensation benefits is affirmed.

This assignment of error is without merit.

MEDICAL EXPENSES

Mix answered Mougeot’s appeal and contended that the trial court committed error by failing to award him the medical expenses he actually incurred in effecting his cure.

An employer is required to pay all necessary medical, surgical and hospital expenses and expenses for medicines incurred by an employee who suffers a work-related injury. La.R.S. 23:1203; Oregon v. Tri-State Road Boring, Inc., 434 So.2d 65 (La.1983).

At the trial, Mix filed into evidence invoices showing medical bills and expenses incurred as a result of his injury totaling $192.51. The failure of the trial court to recognize this claim was error. The trial court’s judgment is amended to include an award of $192.51 to cover Mix’s medical expenses.

STATUTORY PENALTIES

Mougeot’s contend that the district court committed error by awarding Mix a statutory penalty attorney fee when he failed to comply with the written notice requirement of La.R.S. 23:1201.2.

La.R.S. 23:1201.2(A) provides, in pertinent part, as follows:

Any employer whose liability for claims arising under the provisions of this Chapter is not covered by insurance, shall pay the amount of any claim due under the provisions of this Chapter, within sixty days after receipt of written notice. Failure to make such payment within sixty days after receipt of notice, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the employer to a penalty, in addition to the amount of claim due, of 12% of the total amount of such claim, payable to the claimant, together with all reasonable attorney’s fees for the prosecution and collection of such claim,
(Emphasis added).

We agree that the trial court erred in awarding the attorney fee but reach that conclusion for reasons other than those asserted by Mix. When items of special damage are claimed, a litigant must specifically allege the claim in his petition. La.C.C.P. art. 861. Attorney fees are items of special damage which must be specifically alleged. Lanier Business Products, Inc. v. First National Bank of Rayville, 388 So.2d 442 (La.App. 2nd Cir.1980). In his petition, Mix did not allege that his claim was not paid within sixty days after receipt of notice or that such action by Mougeot’s was arbitrary, capricious or without probable cause, nor did he pray for statutory penalties of 12% of the total amount of the claim and a reasonable attorney fee. Under the particular facts and circumstances of this ease, the failure of Mix to make the necessary allegations denied Mougeot’s a reasonable opportunity to assert affirmative defenses, present evidence or be notified that the penalty claim was at issue. Lanier Business Products, Inc. v. First National Bank of Rayville, 388 So.2d at 446; Cf. Carter’s Insurance Agency, Inc. v. Franklin, 428 So.2d 808 (La.App. 1st Cir.1983). In this procedural posture, the trial court should not have granted the attorney fee award and that portion of the judgment is reversed.

Mix answered the appeal and claimed that the trial court committed error by failing to award the portion of the statutory penalties provided for in La.R.S. 23:1201.2(A) which authorizes an award of 12% of the total amount of the claim. This claim was neither alleged nor prayed for in the trial court. By analogy, this element of the award is an item of special damage and must be specifically alleged. For the reasons set forth above, we deny this claim for that portion of the statutory penalty.

Mix also answered the appeal seeking an increase in the attorney fee for the services provided by counsel in this appeal. Because the issue of the appropriateness of an award of a statutory penalty was not claimed or litigated in the trial court, we do not deem it appropriate to grant such an award in this court and deny that portion of the claim. Lanier Business Products, Inc. v. First National Bank of Rayville, 388 So.2d at 446; Contra: Boudreaux v. Mazda Motors of America, Inc., 347 So.2d 504 (La.App. 4th Cir.1977), writ denied, 350 So.2d 1223 (La.1977).

DECREE

For the foregoing reasons, the judgments of the trial court overruling the exception of prescription and granting an award of $3,000 for workmen’s compensation benefits are affirmed; the trial court judgment is amended to award Mix the sum of $192.51 for medical bills and expenses; the judgment of the trial court awarding Mix a statutory penalty attorney fee of $500 is reversed; and the claims of Mix by way of the answer to the appeal for the statutory penalty of 12% of the total amount of the claim and an increased attorney fee award for the" appeal are denied and dismissed. Mix is entitled to legal interest on each weekly compensation benefit payment from its date due until paid. La.C.C. art. 2924; Shatoska v. International Grain Transfer, Inc., 430 So.2d 1255 (La.App. 1st Cir.1983). Mix is entitled to legal interest on the unpaid medical expenses from the date of judicial demand until paid. Mougeot’s are cast for all costs of this appeal.

AFFIRMED IN PART; AMENDED IN PART; AND REVERSED IN PART.

      . Although Mougeot’s did not file an answer as required by La.R.S. 23:1315, the parties proceeded to trial apparently pursuant to the authority of La.R.S. 23:1317.

      . The surgeon who performed the operation was not called as a witness and the hospital records were not filed in the record.

      . Legal interest is due from the time that the debt becomes due. La.C.C. art. 1938. In a workmen’s compensation case, the employer owes reimbursement of the medical expenses to the employee not later than sixty days after the employee gives notice of the claim. La.R.S. 23:1201.2. The record in the instant case does not show when or if such notice was given for the medical expenses.


text:
    Wayne P. BUNCH v. TOWN OF ST. FRANCISVILLE.
    No. 83 CA 0382.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Stanley E. Branton, St. Francisville, for plaintiff.
    Jesse L. Means, Jr., St. Francisville, for defendant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit for a declaratory judgment by an applicant for a building permit against the Town of St. Francisville (Town) seeking a ruling that the Town’s zoning ordinance permits two-family dwellings on property zoned R-l. The trial court rendered judgment in favor of the applicant. The Town took this devolutive appeal.

FACTS

On September 30, 1982, Wayne P. Bunch submitted an application to the Town for a permit to construct a double town house (two-family dwelling) in an area of the Town zoned R-l. On October 12,1982, the governing authority of the Town (Mayor and Board of Aldermen) determined that two-family dwellings were not permitted in areas zoned R-l and denied the permit. Prior to that time, there had been no applications for permits to build apartments or multi-family dwellings in areas zoned R-l. The Town had previously received applications for permits for the construction of apartments (multi-family dwellings) in areas zoned R-2 and R-3 and the applicants were directed to apply for zoning changes to the R-4 category, which changes were granted in some cases.

APPLICABLE PROVISIONS OF ZONING ORDINANCE

The pertinent provisions of the Town’s zoning ordinance are as follows:

Section 2.1 R-l Residential Districts
2.101 In R-l Residential districts only the following uses of property shall be permitted: dwellings; ...
2.104 Area Regulations — For all buildings except accessory uses....
2. Lot Size
a. There shall be a minimum lot width of seventy-five (75') feet.
b. Every lot shall contain an area of not less than nine thousand (9,000) square feet per family unit.
Section 2.2 R-2 Residential Districts
2.201 In R-2 Residential Districts all of the permitted uses of R-l Districts shall apply and garage apartment.
2.204 Area Regulations for all buildings except accessory uses....
2. Lot Size
a. There shall be a lot width of a minimum of sixty-five (65') feet.
b. Every lot shall contain an area of not less than six thousand, five hundred (6,500) square feet per family unit.
Section 2.3 R-3 Residential Districts
2.301 In R-3 Residential Districts all of the permitted uses of R-2 Districts shall apply; however, smaller lots are permitted.
2.304 Area Regulations — For all buildings except accessory uses....
2. Lot Size
a. There shall be a lot width of a minimum of fifty (50') feet.
b. Every lot shall contain an area of not less than five thousand (5,000) square feet per family unit.
Section 2.4 R-4 Residential
2.401 Permitted Uses — All uses permitted in R-l Residential Districts; apartments; hotels; multi-family dwellings;
9.108 Dwelling — A building used entirely for residential purposes and shall not be construed to include trailers. A single-family dwelling is a building that contains only one living unit; a two-family dwelling is a building that contains only two living units; and a multiple dwelling is a building that contains more than 2 living units.
9.109 Family — One or more persons occupying a living unit as an individual housekeeping organization as distinguished from a group occupying a boarding house, lodging house, or hotel.
9.112 Living Unit — The rooms occupied by a family. The living unit must include a kitchen.

RULES FOR INTERPRETING ORDINANCES

The statutory and jurisprudential rules for the construction and interpretation of state statutes are applicable to the construction and interpretation of municipal and parochial ordinances. Lieber v. Rust, 388 So.2d 836 (La.App. 2nd Cir.1980), affirmed, 398 So.2d 519 (La.1981); Louisiana Television Broadcasting Corp. v. Total C.A.T.V., 341 So.2d 1183 (La.App. 1st Cir.1976), writ refused, 343 So.2d 1076 (La.1977). When a law or ordinance is clear and free from all ambiguity, it must be given effect as written. La.C.C. art. 13; La.R.S. 1:4; Hebbler v. New Orleans Fire Department, 310 So.2d 113 (La.1975); Roman Catholic Church of Archdiocese of New Orleans v. State, Department of Labor, Office of Employment Security, 387 So.2d 1248 (La.App. 1st Cir.1980), writ denied, 394 So.2d 607 (La.1980).

When interpreting a law (ordinance), the court should give it the meaning the lawmaker intended. It is presumed that every word, sentence or provision in the law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. Conversely, it will not be presumed that the lawmaker inserted idle, meaningless or superfluous language in the law or that it intended for any part or provision of the law to be meaningless, redundant or useless. The lawmaker is presumed to have enacted each law with deliberation and with full knowledge of all existing laws on the same subject. The meaning and intent of a law is to be determined by a consideration of the law in its entirety and all other laws on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the law and with the obvious intent of the lawmaker in enacting it. Where it is possible to do so, it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question which harmonizes and reconciles it with other provisions. A construction of a law which creates an inconsistency should be avoided when a reasonable interpretation can be adopted which will not do violence to the plain words of the law and will carry out the intention of the lawmaker. La.C.C. art. 17; State v. Cazes, 262 La. 202, 263 So.2d 8 (1972); Bowes v. Lake Charles Municipal Fire and Police Civil Service Board, 425 So.2d 787 (La.App. 3rd Cir.1982); Clark v. Board of Commissioners, Port of New Orleans, 422 So.2d 247 (La.App. 4th Cir.1982); Legros v. Conner, 212 So.2d 177 (La.App. 3rd Cir.1968).

When the expressions of a law are “dubious”, the most effectual way of discovering the true meaning of the law is to consider the reason and spirit of it, or the cause which induced the lawmaker to enact it. La.C.C. art. 18; Nash v. Whitten, 326 So.2d 856 (La.1976); Groves v. Board of Trustees of Teachers’ Retirement System of Louisiana, 324 So.2d 587 (La.App. 1st Cir.1975), writs denied, 326 So.2d 378, 380 (La.1976). When a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is to be preferred over one which renders part thereof ridiculous or nugatory. Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980); Freechou v. Thomas W. Hooley, Inc., 383 So.2d 337 (La.1980). If there is an irreconcilable conflict between the provisions of a law, only one provision can prevail. Macon v. Costa, 437 So.2d 806 (La.1983).

When an administrative body (such as the governing authority of the Town) over a long period of time has placed an interpretation upon an ambiguous law, the interpretation of such body is entitled to great weight in the determination of the meaning of the law. (This is known as the doctrine of contemporaneous construction.) Lieber v. Rust, 388 So.2d at 841; City of Crowley v. Prejean, 173 So.2d 832 (La.App. 3rd Cir.1965), writ refused, 247 La. 878, 175 So.2d 110 (1965); Curet v. Hiern, 95 So.2d 699 (Orl.La.App.1957).

Because zoning ordinances are in derogation of the right of private ownership of property, they must be strictly construed in favor of the property owner. City of West Monroe v. Ouachita Association For Retarded Children, Inc., 402 So.2d 259 (La.App. 2nd Cir.1981); City of Oakdale v. Benoit, 342 So.2d 691 (La.App. 3rd Cir.1977), writ refused, 344 So.2d 670 (La.1977).

INTERPRETATION OF ORDINANCE

The Town contends that the trial court committed error by failing to interpret the term “dwellings” in Section 2.101 establishing the R-l classification as limited only to single-family dwellings, by failing to recognize the intent of the governing authority of the Town to limit the R-l zoning classification to single-family dwellings and by failing to apply the doctrine of contemporaneous construction to interpret the ordinance.

Section 2.101 of the Town’s zoning ordinance permits the construction of “dwellings” in R-l residential districts. The word “dwelling” is defined in Section 9.108 of the ordinance as a building used entirely for residential purposes (excluding trailers). Section 9.108 classifies dwellings as single-family, two-family and multiple. Section 9.109 defines a family as one or more persons occupying a living unit as an individual housekeeping organization. A living unit is defined in Section 9.112 as the rooms (not building) occupied by a family. This definition obviously contemplates that more than one living unit may reside in a building. Section 2.104(2)(b) requires that every lot in a R-l zoning district “shall contain an area of not less than nine thousand (9,000) square feet per family unit.’’ (Emphasis added). This provision clearly contemplates that more than one family unit may reside on a lot classified R-l, but is silent on whether these family units may reside in the same building or in separate buildings.

Section 2.401 of the ordinance specifically authorizes the construction of apartments and multi-family dwellings in residential areas zoned R-4. If we interpret the word “dwellings” in Section 2.101 for R-l zoning to mean single-family, two-family and multiple dwellings as defined in Section 9.108, then the specific authority for constructing apartments and multi-fam-ily dwellings provided by Section 2.401 for R-4 zones is meaningless because that type of construction is permitted in a R-l zone. Conversely, if the R-l, R-2 and R-3 zones are limited to single-family dwellings and the R-4 category applies to multiple family dwellings, the two-family dwelling classification of Section 9.108 is rendered meaningless. If Sections 2.101, 2.401 and 9.108 are interpreted literally, their provisions are in conflict.

As previously indicated, there is a presumption that every word, sentence or provision of a law is intended to serve some useful purpose. Further, if a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is preferred over one which renders part thereof meaningless. Interpretations which create inconsistencies should be avoided. Because Section 2.401 specifically permits construction of apartments and multi-family dwellings in areas zoned R-4, it is reasonable to infer that it was the intent of the Town that these types of constructions can be built only in that zone. Since the word “dwellings” in Section 2.101 is not limited by its definition in Section 9.108 only to single-family dwellings, it is reasonable to infer that single-family and two-family dwellings may be constructed in an area zoned R-l. This interpretation is partially supported by the terms of Section 2.104(2)(b) which contemplates that more than one family unit may reside on a lot in an area zoned R-l and by the definition of living unit in Section 9.112 which refers to rooms, not buildings. This interpretation gives meaning to the conflicting provisions of the ordinance and does not render any meaningless. This interpretation also follows the rule that ambiguities or conflicts in a zoning ordinance must be construed in favor of the landowner. If the Town wishes for the ordinance to provide otherwise, it should amend the ordinance to specifically say so.

In brief, the Town indicates its original zoning ordinance was-adopted in 1961, the ordinance was revised in 1978 primarily to add more zoning categories and the residential R-4 category was added in 1978 to provide for apartments and mul-ti-family dwellings. The only evidence in the record of these facts is the zoning ordinance which is marked prepared for review on October 19, 1978, revised January 18, 1979, and signed by the Mayor on May 22, 1979, with amendments dated March 24, 1981, and April 14, 1981. There is no evidence in the record to show what were the provisions of the Town’s zoning ordinance prior to the ordinance that is filed in the record. This court has no authority to consider facts referred to in brief which are not in evidence. Title Research Corporation v. Rausch, 433 So.2d 1105 (La.App. 1st Cir.1983). There is no legislative history in the record to aid us in interpreting this ordinance. See, for example, Lieber v. Rust, 388 So.2d at 840-841; Ethyl Corporation v. Collector of Revenue, 351 So.2d 1290 (La.App. 1st Cir.1977), writ denied, 353 So.2d 1035 (La.1978).

The doctrine of contemporaneous construction is not applicable in this case. The record does not reflect that the Town over a long period of time has interpreted Section 2.101 to bar the construction of two-family dwellings. The stipulation made in the trial court applied to applications for apartments and multi-family dwellings in R-2 and R-3 areas where zoning variances were often granted.

DECREE

For the foregoing reasons, the ruling of the trial court is correct and is affirmed. The Town is cast for all costs in the trial court and in this court, totaling $154.50. La.R.S. 13:4521 and 13:5112.

AFFIRMED.

      . The facts were stipulated by the parties. The only evidence received was a certified copy of the zoning ordinance with amendments.


author: SHORTESS, Judge.

text:
    Alice Fay Price Van Lieu, wife of/and Robert VAN LIEU v. WINN-DIXIE OF LOUISIANA, INC.
    No. 83 CA 0390.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      W. Noland Thomas, Houma, for plaintiff and appellee.
    Carlos E. Lazarus, Houma, for defendant and appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Alice Van Lieu (plaintiff) and her husband, Robert Van Lieu, brought suit against Winn Dixie of Louisiana, Inc. (defendant) seeking to recover damages as a result of her slip and fall in defendant’s store located on Prospect Street in Houma, Louisiana. The trial court stated: “After considering all of the witnesses’ testimony, the court is convinced that a foreign substance was on the floor and was the cause of Mrs. Van Lieu’s slip, fall, and injuries.” The court further found that defendant failed to exculpate itself from the presumption of negligence because the court did not believe that the area where plaintiff fell had been periodically cleaned. Finding that plaintiff was not guilty of contributory negligence, the trial judge rendered judgment for her and her husband.

On February 1, 1981, at approximately 3:00 p.m., plaintiff, accompanied by Jolene Van Lieu, her six-year-old daughter, entered defendant’s store to cash a check and to purchase some candy and cigarettes. They proceeded into the store and walked down an aisle between two idle cash registers. Jolene turned and approached a candy rack, and plaintiff followed her. As she approached Jolene, she slipped, fell and hit either a candy or magazine display rack near a check-out counter. As a result of the fall, plaintiff suffered a broken thumb, cervical and lumbar strains, soreness and pain in her left knee, and torn cartilage in her right knee which required surgery on two occasions.

Plaintiff testified that she slipped on a foreign substance that was clear, slick, and dirty. Both Mr. Van Lieu and Audrey Dupre, a friend of the family who was waiting in the car, testified that plaintiff’s pants were wet when she came out of the store. Mr. Van Lieu additionally stated that when his wife showed him the accident site, he looked and saw a wet substance which could have been water and which covered approximately a two- to three-foot area.

Jude Duplantis, the assistant manager in charge at the time of the accident, testified that it had been raining. He stated that he had an opportunity to observe the accident site fifteen to twenty minutes before the accident and that no foreign substance was present. Duplantis was also permitted to testify that Michael Jolet, the bag boy, told him that nothing was on the floor at the place where plaintiff fell.

Jolet testified that he came on duty at 3:00 p.m. on the day of the accident. The accident report filed by Duplantis indicates that plaintiff fell at 3:15 p.m. His immediate duties were to bring the buggies in from outside and to sweep and spot mop the floor. He stated that he sweeps from the front of the aisles to the back of the store but that he never cleans between the registers until night because the registers are busy. Jolet said the floor is usually slippery on rainy days because of the water people bring in on their shoes and that drips from the buggies when they are brought in from the rain. On the day of the accident he saw a very heavy-set lady lying on the floor. He was then called to the office and told to mop the wet spot so no one else would fall. He cleaned up a slippery substance from the place where he saw plaintiff on the floor. He remembered that it had been raining that day and thought that the wet substance was just water and dirt people had tracked in from the street. Prior to the accident, he had mopped up black spots and water from other areas of the store, but he did not mop in between the registers.

Defendant says that the trial court erred in (1) finding that “no cleaning or mopping of the area in which Mrs. Van Lieu fell was done prior to Mrs. Van Lieu’s fall,” (2). in failing to apply the standard of Maryland v. Winn-Dixie Louisiana, Inc., 393 So.2d 316 (La.App. 1st Cir.1980), writ denied, 398 So.2d 530 (La.1981), and (3) in finding that plaintiff was not guilty of contributory negligence. The trial court’s award of damages was not made an issue by either side in this appeal.

The duty of a store owner to protect customers from foreign substances is one of reasonable care under the circumstances. Reasonable protective measures, including periodic inspections, must be taken to keep the aisles and floors free of substances or objects that may cause customers to fall. Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Kavlich v. Kramer, 315 So.2d 282 (La.1975).

Once plaintiff proves that a foreign substance caused the fall and injury, the presumption arises that the fall was caused by the store owner’s negligence. The burden then shifts to the defendant to exculpate himself from liability. Gonzales, 326 So.2d at 488; Kavlich, 315 So.2d at 285; Buras v. Great Atlantic And Pacific Tea Company, Inc., 417 So.2d 141 (La.App. 1st Cir.1982); Maryland, 393 So.2d at 317. The owner usually exculpates himself by showing that periodic inspections were made of the floor area. However, defendant may also rebut the presumption of negligence by introducing direct evidence of a lack of constructive notice, i.e., that the foreign substance had only been on the floor for a short period of time. Maryland, 393 So.2d at 317-318.

Plaintiff testified that a wet substance was on the floor and that it caused her to slip and fall. Both Audrey Dupre and Mr. Van Lieu stated that plaintiffs pants were wet after the accident. Jolet said that he cleaned up a wet, slippery substance on the floor at the site where plaintiff had been lying. The trial judge found that a foreign substance caused plaintiffs fall. This finding was not “clearly wrong.” Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Defendant contends that the presumption of negligence was rebutted by proof that periodic inspections were made. Additionally, defendant relies on Maryland for the proposition that a store owner should be relieved of liability if evidence establishes that the foreign substance was on the floor for only a brief time.

Jolet, the employee in charge of mopping at the time, testified that he only cleaned between the registers at night. Although it was Jolef s duty to sweep and mop the entire store, it is difficult to believe that he could have cleaned the entire store in the fifteen minutes that elapsed between the time he came on duty and the accident. Duplantis even testified that he did not believe that Jolet swept the entire floor. The trial judge did not believe that the area where plaintiff fell had been cleaned prior to her fall. This conclusion is not manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Although the evidence indicated certain established cleaning procedures, these were insufficient to exculpate defendant from the presumption of negligence in the instant case because the area in question was not cleaned periodically during the day, but only at night when the store was not busy.

Under Maryland, 393 So.2d at 318, a store owner may exculpate himself from the presumption of negligence notwithstanding the fact that he failed to prove that periodic inspections were made if he can establish by direct evidence that the foreign substance had been on the floor for such a short period of time that it did not have constructive notice.

The facts in the instant case do not warrant an application of the principle of Maryland, 393 So.2d at 318. In Maryland, direct evidence showed that cole slaw and its container had been on the floor only two minutes before the accident. The assistant . manager testified that he passed the exact spot of the accident twice and did not see the cole slaw or the container. Although Duplantis stated that he walked past the accident site and had an opportunity to view any foreign matter on the floor, he did not say that he looked at the exact spot. Additionally, water is not as readily visible as cole slaw and a container. While two cashiers testified that they also had an opportunity to view the site, nothing in their testimony indicated that they looked at the exact spot. In fact, the record reveals that it was their duty to stand in front of the registers during slow times to look for customers and shoplifters as well as to look for foreign substances on the floor. In all probability, the wet spot did not attract their attention. Unlike the defendant in Maryland, 393 So.2d at 318, defendant here failed to produce direct evidence of its lack of constructive notice. The trial court’s finding that defendant failed to exculpate itself from the presumption of negligence either by proving periodic cleanups and inspections or by proving that the slippery substance was on the floor for only a brief time was not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Defendant contends that plaintiff was guilty of contributory negligence. Although Mr. Van Lieu stated that the wet substance was clearly visible, he did not look at the spot until after plaintiff fell. At the time of her fall, plaintiff was attempting to watch her child who was distracted by the candy display. The trial court found that defendant failed to carry its burden of proving that an ordinary, prudent person would have observed the substance and avoided it. It was not clearly wrong in so finding. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

After defendant had perfected an appeal, Peter J. Abadie, Jr., attempted to intervene in this court. He alleged that he represented plaintiffs in this action from March of 1981 until October 1, 1983, when he was discharged. Intervenor sought to be compensated for the professional services he rendered as plaintiffs’ attorney in this matter. The order of intervention provided, “IT IS ORDERED, ADJUDGED AND DECREED that the motion of Peter J. Abadie, Jr. to intervene be referred to merits.” An intervention may be filed only while suit is pending and before judgment on the main demand. Cook v. Matherne, 432 So.2d 1039 (La.App. 1st Cir.1983); Thibeaux v. State Farm Mutual Automobile Insurance Company, 285 So.2d 363 (La.App. 3rd Cir.1973), writ refused, 287 So.2d 191 (La.1974); Louisiana Power and Light Company v. Charpentier, 165 So.2d 614 (La.App. 1st Cir.1964). We cannot authorize the filing of the intervention in this court because it was untimely.

For the above reasons, the trial court’s judgment is affirmed. All costs of this appeal are taxed to defendant.

AFFIRMED.


author: LANIER, Judge. '

text:
    Sam CIOLINO, et al v. Jack CASTIGLIA. Jack CASTIGLIA v. Sam CIOLINO, et al.
    Nos. 83 CA 0405, 83 CA 0406.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Allen B. Pierson, Jr., Ponchatoula, for Ciolino.
    W. Hugh Sibley and Richard D. McShan, Greensburg, for Castiglia.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge. '

This is an appeal from judgments overruling exceptions of Ms pendens and res judicata filed by the appellants and granting a preliminary injunction against the appellants from interfering with or using a fifteen foot wide lane which is the subject of a possessory action filed by the appellee.

PROCEDURAL FACTS

On March 8, 1982, Sam Ciolino and Joe Spalitta (appellants) filed suit against Jack Castiglia (appellee) contending that they were owners of two tracts of immovable property in Tangipahoa Parish, Louisiana, located adjacent to and north of immovable property owned by- Jack Castiglia, that Jack Castiglia erected a gate and did grading work on their property and that they were entitled to an injunction prohibiting Castiglia from using or trespassing on their property and declaring Castiglia had no right-of-passage or servitude to use the property. On April 21, 1982, Castiglia answered the petition and admitted erecting a gate and doing grading work in the area but asserted that it was not on the property of Ciolino and Spalitta. Castiglia further asserted that the work was done on property acquired by him by record title and/or by prescription, was owned by him and was used as a right-of-way to his other property. On May 28, 1982, Ciolino and Spalitta obtained a preliminary injunction prohibiting Castiglia from trespassing on or using their property. On September 23, 1982, Ciolino and Spalitta filed a contempt rule against Castiglia alleging- that he violated the preliminary injunction by operating his tractor and bushhog on their property. On October 18, 1982, Ciolino and Spalitta filed an amended contempt rule contending that on October 4, 1982, they were having bulldozer work done on their property and that Castiglia threatened the bulldozer operator and made verbal threats toward them.

On October 19, 1982, Castiglia filed a possessory action against Ciolino and Spalitta (Castiglia v. Ciolino-Spalitta) requesting recognition of his right to possess a six acre tract of land with a fifteen foot wide road running across the property for a distance of 1,162 feet. Castiglia prayed that a preliminary injunction issue prohibiting Ciolino and Spalitta from interfering with his possession of this property. Cas-tiglia asserted that on October 4, 1982, Ciolino and Spalitta interfered with his peaceful passage over the roadway by tearing up the road and placing trees in the right-of-way. Castiglia also alleged that the suit filed by Ciolino and Spalitta against him (Ciolino-Spalitta v. Castiglia) in March of 1982 was a disturbance in law of his possession. On October 29, 1982, Castiglia amended his petition by adding a $10,000 claim for damages.

Also on October 29, 1982, a hearing was held on the contempt rule in Ciolino-Spal-itta v. Castiglia. After hearing the evidence, the district court took the matter under advisement. On November 17, 1982, an opinion was rendered that Castiglia was in contempt of court. Castiglia was ordered to pay a fine of $100 plus costs and serve two days in the parish jail, which penalty was suspended and Castiglia was placed on inactive probation on the condition that he refrain from any further contemptuous acts. This contempt judgment was read and signed on December 23, 1982.

On November 19, 1982, the district court conducted a hearing in Castiglia v. Ciolino-Spalitta on Castiglia’s request for a preliminary injunction. Prior to taking evidence at this hearing, Ciolino and Spalitta in a single pleading filed a declinatory exception of lis pendens and peremptory exceptions of prescription and res judicata. During the course of this hearing, the entire record of Ciolino-Spalitta v. Castiglia was filed in the record of the instant case. On January 18, 1983, the district court rendered reasons for judgment which referred the exception of prescription to the merits, overruled the exceptions of lis pendens and res judicata and granted the preliminary injunction against Ciolino and Spalitta for the following reasons:

A complete review of the evidence before the court at this stage of the proceeding convinces the Court that an injunction should issue in this matter. The questions about ownership of the land in question and/or the questions about the right to use the road in question are all valid and very complicated. No clear determination can be made without a trial on the merits. In the meantime plaintiff could very well suffer severe irre-pandable (sic) damages if the injunction were denied. Plaintiff is enjoined in another proceeding from using the road,

This suspensive appeal was taken on February 9, 1983. La.C.C.P. art. 3612.

EXCEPTION OF LIS PENDENS

Appellants contend that the trial court committed error by overruling their exception of lis pendens.

The record reflects that in a single pleading the appellants filed a declina-tory exception of lis pendens (La.C.C.P. art. 925[3] as defined in La.C.C.P. art. 531) with peremptory exceptions of res judicata (La. C.C.P. art. 927[2]) and prescription (La.C. C.P. art. 927[1]). Prior to August 30, 1983, if a defendant filed a declinatory exception with a peremptory exception, he made a general appearance which waived the objections raised in the declinatory exception (except lack of jurisdiction over the subject matter), unless he was required by law to plead the exceptions together. La. C.C.P. arts. 7, 925 and 928; International Matex Tank Terminals v. System Fuels, Inc., 398 So.2d 1029 (La.1981); Brunet v. Evangeline Parish Board of Supervisors of Elections, 376 So.2d 633 (La.App. 3rd Cir.1979), writs denied, 377 So.2d 1240 (La.1979) and 380 So.2d 623 (La.1979); Polmer v. Spencer, 256 So.2d 766 (La.App. 1st Cir.1971), writ refused, 260 La. 1133, 258 So.2d 380 (La.1972); L’Enfant, Developments in the Law, 1980-1981: Louisiana Civil Procedure, 42 La.L.Rev. 676, 681 (1982). Our research fails to reveal any law which required that the declinatory exception of lis pendens be filed with the peremptory exception of res judicata or prescription. By filing the declinatory exception with the peremptory exceptions, the appellants have waived the declinatory exception. Because the appellants have waived this ex-eeption, it cannot form a part of this appeal, and this portion of the appeal is dismissed.

EXCEPTION OF RES JUDICATA

The appellants contend that the trial court committed error by overruling their exception of res judicata.

An appeal may be taken from a final judgment or from an interlocutory judgment which may cause irreparable injury. La.C.C.P. art. 2083. A judgment overruling the peremptory exception of res judicata is interlocutory and is not appeala-ble absent a showing of irreparable harm. Cheramie v. Vegas, 413 So.2d 1343 (La.App. 1st Cir.1982). Because the appellants have failed to allege or demonstrate irreparable injury, this portion of the appeal will be dismissed. La.C.C.P. art. 2162; Pavlo v. Pavlo, 396 So.2d 390 (La.App. 1st Cir.1981); Fontenot v. O’Brien, 302 So.2d 399 (La.App. 1st Cir.1974).

The ruling on the exception of res judicata cannot be contested as part of the appeal from the judgment on the preliminary injunction. Interlocutory judgments affecting exceptions which do not involve irreparable injury may only be raised with an appeal from a final judgment. Cf. Firemen's Pension and Relief Fund for City of Lake Charles v. Boyer, 420 So.2d 1323 (La.App. 3rd Cir.1982); Carville v. City of Plaquemine, 303 So.2d 289 (La.App. 1st Cir.1973). Although the preliminary injunction judgment is appealable (La.C.C.P. art. 3612), it is still an interlocutory judgment. Louisiana National Bank v. Hebert, 398 So.2d 632 (La.App. 4th Cir.1981); Southwest Sales and Manufacturing Company, Inc., v. Delta Express, Inc., 342 So.2d 281 (La.App. 3rd Cir.1977), writ denied, 345 So.2d 48 (La.1977). Further, La. C.C.P. art. 3612 does not authorize appellate review of interlocutory judgments affecting exceptions with an appeal from a judgment on a preliminary injunction.

PRELIMINARY INJUNCTION

The appellants assert that the trial court committed error by granting Castiglia a preliminary injunction prohibiting them from using the fifteen foot wide lane.

The principal argument supporting this assignment of error is that the trial judge was clearly wrong in determining that Castiglia had proven irreparable injury, loss, or damage would result unless the preliminary injunction were issued as required by La.C.C.P. art. 3601. This argument cannot prevail because the preliminary injunction is being sought as an ancillary remedy to a possessory action and is controlled by La.C.C.P. art. 3663 and not by La.C.C.P. art. 3601. The purpose of a preliminary injunction which is ancillary to a possessory action is to preserve the status quo during the pendency of the action. Meche v. Graham, 421 So.2d 461 (La.App. 3rd Cir.1982). An action for injunctive relief brought under the provisions of La.C. C.P. art. 3663 requires no showing of irreparable injury, loss, or damage. Louisiana Power & Light Company v. Holmes, 422 So.2d 684 (La.App. 3rd Cir.1982), writ denied, 425 So.2d 774 (La.1983); Red River v. Noles, 406 So.2d 294 (La.App. 3rd Cir.1981); Ryan v. Pekinto, 387 So.2d 1325 (La.App. 1st Cir.1980), writ denied, 394 So.2d 615 (La.1980); A. Yiannopoulos, Property § 229 in 2 Louisiana Civil Law Treatise, 610-616 (2d ed. 1980).

Even though Castiglia need not prove irreparable injury, loss, or damage as required by Article 3601, he must still show that he is entitled to the relief sought and must make a prima facie showing that he will prevail on the merits of his possessory action. Cf. General Motors Acceptance Corporation v. Daniels, 377 So.2d 346 (La.1979); Talley v. Capital Bank and Trust Company, 411 So.2d 530 (La.App. 1st Cir.1982); Richland Parish Bus Drivers Association v. Richland Parish School Board, 393 So.2d 809 (La.App. 2nd Cir.1981); Daigre Engineers, Inc. v. City of Winnfield, 385 So.2d 866 (La.App. 2nd Cir.1980). Prima facie evidence is evidence sufficient to establish a given fact and which, if not rebutted or contradicted, will remain sufficient. State v. Williams, 400 So.2d 575 (La.1981); State, ex rel. Dupas v. City of New Orleans, 240 La. 820, 125 So.2d 375 (1960); Watkins v. Zeigler, 147 So.2d 435 (La.App. 2nd Cir.1962).

The elements of proof in a possessory action are set forth in La.C.C.P. art. 3658 as follows:

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

A possessor for purposes of the possessory action is defined in La.C.C.P. art. 3660 as follows:

A person is in possession of immovable property or of a real right therein, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper.

The grantee of a right to use or occupy immovable property may be a possessor entitled to bring a possessory action. Parkway Development Corporation v. City of Shreveport, 342 So.2d 151 (La.1977). A disturbance in fact is defined in La.C.C.P. art. 3659 as follows:

A disturbance in fact is an eviction, or any other physical act which prevents the possessor of immovable property or of a real right therein from enjoying the possession quietly, or which throws any obstacle in the way of that enjoyment.

At the hearing on his rule for the preliminary injunction, Castiglia testified that he did not own the lane, but had a privilege or title to use the road which he inherited from his father in part and acquired in part by purchase from his brothers and sisters. Castiglia also testified that he had been grading the road for forty-six or forty-seven years. Sadie Cioli-no testified that he was the owner of the road and that Jack Castiglia had the privilege or right-of-way to use the road. He also testified that Jack Castiglia’s father was allowed to use the road as far back as 1914 and that for many years Jack Castig-lia has graded and trimmed the road. The transcript of the contempt rule in the Ciolino-Spalitta v. Castiglia record, which was filed into the record of the preliminary injunction in the instant case, shows that on October 4, 1982, at the direction of Joe Spalitta, Richard L. Parrish was operating a bulldozer along the road and was knocking trees down to block the road. A confrontation ensued between Parrish and Mr. and Mrs. Castiglia. Castiglia’s suit was filed on October 19, 1982. This evidence is prima facie evidence of the' essential elements of a possessory action and is sufficient to entitle Castiglia to the preliminary injunction.

The judgment of the district court granting the preliminary injunction is correct and is affirmed.

DECREE

For the foregoing reasons, the appeals of the judgments overruling the exceptions of lis pendens and res judicata are dismissed and the judgment granting the preliminary injunction is affirmed. Appellants are to pay all costs of this appeal. Costs in the district court shall be determined upon a final judgment on the merits.

APPEAL DISMISSED IN PART; AFFIRMED IN PART.

      . The transcript of the November 19, 1982 hearing shows that the exceptions were filed with the court, but the exceptions are marked filed November 22, 1982, by the Clerk of Court.

      . Pursuant to Act 60 of 1983, La.C.C.P. arts. 7 and 928 were amended to allow the filing of all exceptions at the same time without waiving any.

      . In any event, the overruling of an exception of lis pendens is not an appealable judgment. Ponsony v. Debaillon, 7 Mart. (n.s.) 204 (La.1828).

      .The appellants also assert that the trial court committed error by allowing Castiglia to bring a new suit seeking a preliminary injunction contrary to the preliminary injunction already in effect against him after the appeal period for that judgment had passed. This assignment of error is essentially a reiteration of the exception of res judicata.

      . No documentary evidence of title was presented by either Sadie Ciolino or Castiglia.

      . In his pleadings, Castiglia contends that the filing of suit by Ciolino and Spalitta against him is a disturbance in law as defined in La.C.C.P. art. 3659. This contention cannot prevail because Castiglia was an adverse party in that proceeding. Bodcaw Company v. Enterkin, 273 So.2d 325 (La.App. 3rd Cir.1973).