author: TALIAFERRO, Judge.

text:
    McCLUNG v. TOWN OF WINNFIELD.
    No. 7523.
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1950.
    H. L. Allen, Winnfield, for appellant.
    Oglesby & Oglesby, Winnfield, for appel-lee.
   TALIAFERRO, Judge.

, Plaintiff sustained physical injury .when in the nighttime- he drove his automobile-into a hole 26 inches east and west by 48 inches north and south, in a bridge within the corporate limits of.the Town of Winn-field, Louisiana, which was owned and 'maintained by the town. ' He sued for damages and predicates the action upon the 'alleged negligence of the town in allowing the hole to exist for a considerable length of time, all to the knowledge of its officers and employees; and not to have placéd barricades and/or lights about it in the nighttime so that motorists and others traveling the street whereon the bridge is located would be apprised of the presence of the dangerous hole.

Defendant resists the demands on the primary ground that it was not actionable negligence on its part to allow the .hole to remain unrepaired; and, secondly, that if it be held that this defense is not tenable, plaintiff is barred from recovery because .of his own contributory negligence, in that he frequently drove over the bridge after the hole developed and well knew of. its presence; that had he exercised ordinary care for his own safety he would not have driven his car heedlessly into the hole.

Defendant called in warranty the National Automobile and Casualty Insurance Company on the theory that it was obligated under the terms of a policy of insurance, to defend the Town of Winnfield in this character of suit, and to pay any judgment that might be.rendered against it. Exceptions of no cause , and -no right of action interposed by the insurance company were sustained. No appeal ha's been prosecuted from this ruling. Trial on the merits resulted in judgment for the plaintiff in the sum of $2,500. Defendant appealed to this Court. Here, appellee prays for an increase in the award.

The Court assigned lengthy written reasons for the judgment.

The bridge in question forms a link in Boundary Street, is decked with boards, and extends north and south. It is 20 feet wide and is practically level at each end with the abutting asphaltic surfacing of the streets. Upon the decking at the ends of the boards, on each side, there rests a timber, 6;by 6 inches, the entire length of the bridge. The hole began at the timber along the east side of the bridge and extended westerly said distance of 26 inches.

The bridge was without rails or other superstructure, which would provide notice of its location.

Plaintiff often drove ' his car over and along Boundary Street and knew for several weeks that the hole had developed to the proportions herein stated.

At the time of the accident and for several years prior, plaintiff was engaged in -selling insurance on industrial debit in and around Winnfield. Immediately prior to the accident he had- been south of the bridge collecting insurance premiums from some of his customers. ’ The business'for the day ■having been completed, he reversed his course and headed northerly along the street, and was going in this direction when the accident occurred. His vehicle was going at a moderate speed. The front right wheel fell into the hole. This suddenly stopped the car’s momentum. Plaintiff was thrown somewhat violently against the wheel and dash.

Plaintiff alleged and testified that about the time he reached the bridge he was blinded by the headlights of an on-coming car, and because of this and the lack of jolt when his car entered upon the bridge, coupled with the fact that his mind was engrossed with thoughts concerning his business, he did not -realize for an instant he was upon the bridge; that h'e, to give the other car its entire side of the bridge, instantly pulled his car to the right, for the moment being oblivious of the fact that the hole was directly in his path of travel. Defendant seriously challenged the correctness" of plaintiff’s contention in these respects, but the Court, with assigned reasons, resolved the issue for-the plaintiff. Study of the pertinent testimony has not convinced us of error in this ruling.

The hole developed because of boards decaying and being knotked out o'f place by traffic, which, it is shown, is somewhat heavy over the street at the locus of the bridge. It has once been repaired by new boards being laid over it, but these were knocked loose and again it became a hazard to traffic. As said heretofore, this condition had existed for several weeks be-

fore the accident, and was known to exist by the town’s mayor and at least some of its policemen. The astounding fact is that at date of trial, nearly six months subsequent to the date of the accident, the hole remained open.

In view of the uncontroverted facts, the town’s negligence is so palpable that citation of authorities to support and warrant the conclusion would seem unnecessary. To discharge its duty with respect to physical condition of its streets and bridges, a municipality is not, by law, required to maintain them in a state of perfect repair, but they are required to maintain them in reasonably efficient state of repair. Obvious, patent points of hazard and danger, under pain of responsibility for damages to others resulting therefrom, especially when known to officers and agents, should have immediate and adequate repair.

In the case of Clinton v. City of West Monroe, 187 So. 561, this Court gave mature consideration to the principle here discussed. As disclosed from the syllabi, it was held: “A municipality which permitted drainage ditch between 20 and 25 feet wide at the top and nearly 7 feet deep at the center and the banks of which were nearly perpendicular, to remain unguarded at end of street, was ‘grossly negligent,’ particularly where one automobile had already driven into ditch.”

The more serious question tendered is that of the alleged contributory negligence of the plaintiff, in view of the admitted fact that the hole’s presence was well known to him. But, when all the pertinent facts and circumstances are weighed and considered, may it not be reasonably said that plaintiff’s negligence or lack of care, if any, was not the proximate cause of the accident? He was driving as might be expected, near the center of the street, unmindful that he was so near the bridge. His thoughts were devoted to business just transacted and/or to that which lay before him for the following day. Suddenly, the bright lights of the on-coming car focused1 upon him. The natural and spontaneous impulse was to so steer his car as to make sure the other car was given ample space to pass, and in doing this the knowledge of the presence of the hole was, in a way, momentarily effaced. Unless these conclusions be-adopted, the adverse conclusion that plaintiff wilfully drove into the hole, arises. To-so conclude would be absurd. The plea of contributory negligence is not well founded-

Plaintiff suffered no serious physical injury from the accident, save to the-right knee. The physicians who examined the knee are uncertain whether the cap or the cartilage about it has been ruptured. X-ray pictures do not reveal injuries of this-character. They all agree that only an operation would disclose true conditions, and that such an operation, even though the cap were removed, would eliminate the disability and discomfort of which plaintiff complains. The cost of such an operation would not be excessive, nor would there be involved any danger of fatal results.

There is no doubt that plaintiff has experienced some pain because of the knee’s condition, and a large amount of discomfort therefrom. We agree with one of the prominent physicians who testified in the case that plaintiff is largely exaggerating the extent of disability that he ascribes to the knee. However, it cannot be said that the knee’s condition has not militated against plaintiff performing his insurance business duties as effectively as formerly. But all of this can be corrected by an operation with no attending possibility of fatal results.

The trial judge was in a better position than we to determine a proper award of damages in the case. We perceive of no valid reason for disturbing his finding on this question.

For the reasons assigned, the judgment from which appealed, is affirmed with costs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AETNA INSURANCE COMPANY, Appellant, v. SOUTHEASTERN FIDELITY INSURANCE COMPANY, Appellee.
    No. 84-801.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Montalto & Blank and Richard Blank, Miami, for appellant.
    Thompson & Clark and Warren M. Cheek, Jr., Neil Colvin, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. §§ 324.021(7)(a), 627.7263, Fla.Stat. (1977).


text:
    P.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-910.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1984.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Renee E. Rus-ka, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellant was adjudicated delinquent on charges of burglary and second-degree grand theft. We reverse because we conclude that the State’s proof that (1) the juvenile was found sitting in a vehicle parked some 75 to 100 yards from the premises which had been recently burglarized and (2) the locked trunk of the vehicle which was neither owned nor under the control of the juvenile contained property stolen from the burglarized premises is manifestly insufficient to sustain the adjudication. See Davis v. State, 436 So.2d 196 (Fla. 4th DCA 1983), rev. denied, 444 So.2d 418 (Fla.1984); Gains v. State, 417 So.2d 719 (Fla. 1st DCA 1982); A.Y.G. v. State, 414 So.2d 1158 (Fla. 3d DCA 1982); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972).

Reversed with directions to discharge the appellant.


author: GULOTTA, Judge.

text:
    STATE of Louisiana v. Wayne WILLIAMS.
    No. KA-1872.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Rehearing Denied Dec. 27, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., E. Sue Bernie, Asst. Dist. Atty., New Orleans, for appellee.
    John J. Dolan, New Orleans, for appellant.
    Before GULOTTA, SCHOTT and WARD, JJ.
   GULOTTA, Judge.

Defendant appeals his conviction and twelve year sentence (with credit for time served) for manslaughter, a violation of LSA-R.S. 14:31. We affirm.

Before turning to defendant’s assignments of error, we have reviewed the documents in the record and the 150 page transcript of the jury trial. We find no errors patent on the face of the record. Moreover, having viewed the evidence in the light most favorable to the State, we conclude that there was sufficient evidence for the jury to have found the defendant guilty beyond a doubt of every element of the offense. State v. Raymo, 419 So.2d 858 (La.1982). In this circumstantial evidence case, the record sufficiently excludes every reasonable hypothesis of defendant’s innocence. LSA-R.S. 15:438; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Wright, 445 So.2d 1198 (La.1984).

Although defendant has filed six assignments of error, he characterizes four of them in his brief to be “without merit” or “not arguable”. We therefore consider those assignments as waived. Because the remaining two assignments substantially deal with the same issue, we consider them together as one.

In essence, defendant complains the trial court erred in dismissing a juror for cause during the trial and substituting an alternate juror instead of declaring a mistrial.

Before trial, twelve jurors and an alternate were selected and sworn. After the testimony of two state witnesses, the jury was removed from the courtroom and the State requested the trial court to dismiss a juror who had been excused for cause twice earlier that month for her statement that she “could not be fair to the State because of personal problems”. Defendant objected. The trial court denied the State’s motion at that time because the bill of information had already been read and two State witnesses had been called. In the interest of justice, however, the judge conducted an in camera interview of the juror with a court reporter present. After the juror, in response to the trial court’s inquiry, indicated she could not give the State a “fair trial” because she had a brother in Angola, the trial court dismissed the juror and ordered the alternate to replace her.

A juror may be challenged for cause if that juror is not impartial [LSA-C.Cr.P. 797(2) ]; however, that juror cannot be so challenged after having been accepted by the challenging party, unless the ground for the challenge was not known prior to acceptance (LSA-C.Cr.P. Art. 795). This article further provides that a challenge for cause must be made before the indictment is read to the jury. Comment B under LSA-C.Cr.P. Art. 795, however, notes that Art. 795 does not cover the problem of discovery of a disqualification of a juror after the first witness is sworn at the trial on the merits (as in the instant case).

In State v. Fuller, 454 So.2d 119 (La.1984), after all the evidence had been presented, a juror disregarded the judge’s sequestration order. After conducting an evidentiary hearing, the trial judge chose to replace the transgressing juror with an alternative juror. In Fuller, supra, the Louisiana Supreme Court held that the replacement of the juror with an alternate was a proper exercise of the discretion of the trial judge. According to the Fuller court:

“The trial court has discretion to utilize the service of an alternate juror, rather than to grant, a mistrial, upon a proper finding that this is the best course of action. Thus, when it was shown that a juror was unable to continue to serve because of the physical disability that was involved in State v. Spencer, 446 So.2d 1197 (La.1984), or was “disqualified” from further service because of the blatant display of prejudices and partiality that was involved in State v. Marshall, 410 So.2d 1116 (La.1982), the replacement of the juror with the alternate has been approved by this court.”

See also LSA-C.Cr.P. Art. 789, which provides the trial judge with authority to use an alternate juror to replace a principal juror who has been disqualified “prior to the time the jury retires to consider its verdict”. State v. Marshall, 410 So.2d 1116 (La.1982).

Under the circumstances of the instant case, where the State was not aware of the grounds for challenging the juror before acceptance, we cannot say the trial judge erred in dismissing the challenged juror and replacing her with an alternate after the in camera interview disclosed the jur- or’s bias.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.


author: GARRISON, Judge.

text:
    John K. FIORITA v. ELECTRIC COAL COMPANY, the VESSEL ABC and the XYZ Company (Electro-Coal Transfer Corporation).
    No. CA 1841.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Rehearing Denied Dec. 27, 1984.
    Writ Denied Feb. 15, 1985.
    Herbert Ball Bowers, III, New Orleans, for plaintiff-appellant.
    Russell M. Cornelius, Normann & Nor-mann, New Orleans, for defendant-appel-lee.
    Before REDMANN, C.J., and GARRISON and KLEES, JJ.
   GARRISON, Judge.

Plaintiff, John Fiorita, was injured on May 8, 1979 while egressing from the vessel ABC onto a dock operated by the Elec-tro-Coal Transfer Corporation. Plaintiff filed a petition for damages under maritime and tort law on May 8, 1980 in the Twenty-Fifth Judicial District Court in Plaquemines Parish. In this petition, plaintiff incorrectly named the “Electric Coal Company” as a defendant. The correct name of this party is the “Electro-Coal Transfer Corporation”.

Service was made on the “Electric Coal Company” through the Secretary of State on May 19, 1980. Upon learning that the incorrect name of the defendant had been used on the petition and on the service of process, the plaintiff’s attorney mailed a letter to the Electro-Coal Transfer Corporation on June 24, 1983 advising them that the personal injury action had been instituted three years earlier. This letter was received by the defendant on June 28,1983. Electro-Coal Transfer claims that this letter constituted their first notice and knowledge that an action had been instituted against them by the plaintiff.

On July 22, 1983, the defendant filed exceptions of insufficiency of service of process, insufficiency of citation and vagueness. These first two exceptions were based upon La.C.C.P.Art. 1261 which specifies that service of citation and/or process on a domestic corporation must be made by personal service on any one of its agents designated to receive service of process. The plaintiff cured these defects by amending his citation to show that service of process should be made on Electro-Coal through its designated agent. This agent was personally served on August 15, 1983 and these two exceptions were subsequently dismissed. The vagueness exception was also dismissed after the plaintiff agreed to submit to appropriate discovery and/or appropriate amendment to the petition. The defendant then filed the peremptory exception of prescription alleging that more than one year had elapsed between the injury and the service of process made on the defendant in accordance with C.C.P. 1261. The trial judge maintained this exception and dismissed the plaintiffs action. From this judgment, plaintiff appeals.

On appeal, the plaintiff alleges that:
(1) the trial court erred in finding that the defendant did not have sufficient notice of the action to permit the amended service to relate back to the filing of the original petition.
(2) the trial court erred in not ordering amendment of the petition to reflect the proper name of the defendant so that this amendment could relate back to the date of the filing of the original petition.

An amended petition relates back to the date of filing of the original pleading when the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. La.C.C.P.Art. 1153. In the case of Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983), the Louisiana Supreme Court established the following criteria for determining whether C.C.P.Art. 1153 allows an amendment which changes the identity of the party or parties sued to relate back to the date of filing of the original petition:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

The defendant concedes that plaintiff’s amendment satisfied # 1, # 3 and # 4 of this criteria; however, the defendant claims that the plaintiff did not satisfy the second requirement in this list. The defendant alleges that it did not receive notice and had no knowledge of the institution of the action until the receipt of plaintiffs letter dated June 24, 1983. Therefore, the defendant did not conduct an investigation of this accident and claims that it would now be substantially prejudiced in maintaining a defense on the merits because four years have elapsed since the accident in question. The plaintiff contends that the defendant had knowledge of the plaintiff’s accident and injuries because an employee of the defendant drove the plaintiff to a hospital following the accident. Therefore, plaintiff claims that the knowledge of the defendant’s employee was imputed to the defendant and that this knowledge put the defendant on notice of the possible institution of an action.

We agree with the defendant’s arguments that it is unfair to require a party to initiate an investigation in anticipation of litigation and that knowledge of an injury does not constitute notice of the institution of an action. The defendant’s designated agent for service of process was not properly served with notice of this action until August 15, 1983, more than four years after the plaintiff sustained his injuries. The trial judge was correct in maintaining defendant’s exception of prescription and in dismissing plaintiff’s action. To do otherwise would result in prejudice to the defendant in maintaining a defense on the merits because the original pleading which incorrectly named the defendant as the “Electric Coal Company” and which improperly directed service to be made on the Secretary of State did not give notice to the Electro-Coal Transfer Corporation of the institution of an action against them by the plaintiff.

Therefore, the judgment of the trial court is affirmed.

AFFIRMED.


author: GROVER L. COVINGTON, Chief Judge.

text:
    Marie BROWN v. WINN-DIXIE LOUISIANA, INC. et al.
    No. 14909.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Granted Jan. 25, 1985.
    Herbert W. Barnes, Jr., Houma, for plaintiff and appellant.
    Robert L. Morris, Houma, for defendant and appellee.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVINGTON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this Court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   GROVER L. COVINGTON, Chief Judge.

On remand from the Louisiana Supreme Court, this matter is before us on the question of quantum. While shopping at the supermarket of defendant, Winn-Dixie Louisiana, Inc., plaintiff slipped on rice, which had been spilled in the aisle and fell to the floor, landing on her knee.

As a result of the fall, the plaintiff sustained an injury to her left knee and to the little finger of her left hand. At the time of the mishap, she complained of these injuries. There was almost immediate swelling of the knee with subsequent burning sensation and discoloration, and swelling of the knuckle of the finger, with the nail broken. She went to Dr. Saul Landry, a general practitioner, the next day for treatment of her injuries. He treated her for a sprained knee. It did not respond to conservative treatment, so she went to Dr. Christopher Cenac, an orthopedist. He diagnosed her condition as a torn medial cartilage.

Subsequently, surgery was required on the knee. She was in the hospital for five days. While in the hospital, she was placed in a cast, which remained for two months. Later she underwent physical therapy for several months, and was doing therapy exercises at home at the time of the trial. The knee injury was painful for a considerable period of time. It is still subject to intermittent swelling and pain, and there is some instability of the knee. Her functional disability consists mainly of an inability to stand or remain on her feet for long periods of time. She can’t bend her knee and it “locks” on her. She often has to put hot towels on it and can’t stoop; nor can she wear high heel shoes. Dr. Cenac gave Mrs. Brown an impairment rating of 10 percent of the left leg.

In Kyle v. City of New Orleans, 357 So.2d 1389 (La.App. 4th Cir.1978), writ denied 359 So.2d 1307 (La.1978), the appeal court affirmed an award of $25,000 for general damages to a seaman who suffered a 30 percent lower extremity disability.

In Monnerjahn v. Aetna Life & Casualty Co., 350 So.2d 1249 (La.App. 4th Cir. 1977), an award of $25,000 for general damages was made to a truck driver who could not return to his occupation because of 50 percent residual disability of the lower extremity.

The court in Burnell v. Sportran Transit System Company, 421 So.2d 1199 (La.App. 2nd Cir.1982), writ denied 423 So.2d 1183 (La.1982), awarded $20,000 general damages to a woman who sustained a fractured and displaced kneecap, which required surgery, along with other injuries. She suffered a significant degree of pain for an extended period of time.

In Cardwell v. Jefferson Rentals Division of J-R Equipment Corporation Assurance Company, 379 So.2d 255, 263 (La. App. 4th Cir.1979), the plaintiff suffered a torn cartilage of the knee. After routine treatment and surgery, he was released by his doctor as fit to return to work, except for climbing and standing for long periods of time. The appeal court reduced the award to $25,000, and remarked:

An examination of the jurisprudence on rewards [awards] for similar injuries indicates that $25,000 would be appropriate. Bordelon v. Sentry Insurance Company, 359 So.2d 1046 (La.App. 4th Cir.1978); Scott v. I.L. Lyons & Co., Ltd., 329 So.2d 795 (La.App. 4th Cir. 1976); Phillips v. Williams, 323 So.2d 808 (La.App. 4th Cir.1975).

Accordingly, we find that $25,000 will adequately compensate plaintiff for her general damages. The record sent to us does not reflect the special damages; however, we also find that the plaintiff is entitled to recover the special damages established in the record. The awards for damages are to bear interest from the date of judicial demand until paid, with all costs to be borne by defendant, Winn-Dixie Louisiana, Inc.

RENDERED.

      . Plaintiff, Marie Brown, filed suit to recover damages for personal injuries sustained by her when she slipped and fell in the Winn-Dixie Store in Houma. Judgment was rendered against her in the trial court. On appeal, we affirmed. 417 So.2d 44 (La.App. 1st Cir.1982). Writs were granted by the Supreme Court on October 1, 1982, 420 So.2d 452, and our decision was reversed on June 26, 1984, 452 So.2d 685 (La.1984). The case was remanded to this Court for consideration of quantum.


author: SAVOIE, Judge.

text:
    SEARS, ROEBUCK & COMPANY v. Christian and Dennis LAROSE.
    No. 83 CA 1153.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Cordell H. Haymon, Baton Rouge, for plaintiff-appellee Sears, Roebuck & Co.
    Daniel H. Taylor, Baton Rouge, for defendants-appellants Christian and Dennis Larose.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

Appellants, Christian and Dennis Larose, appeal the city court’s judgment in favor of appellee, Sears, Roebuck & Company, in this suit on open account. We affirm.

Appellants’ joint account with Sears became delinquent in June, 1982. In December, 1982, Sears contacted its attorneys and requested that a demand letter be sent demanding full payment of the account balance of $1,246.65. On December 15, 1982, a demand letter was sent to appellants by certified mail requesting payment within thirty days after receipt of the letter. Appellants received the letter on January 3, 1983. Mr. Larose went to the local Sears store on January 12, 1983, and discussed the account with the collection manager. No payment was made at that time. The parties disagree as to the result of this conference. Appellants contend that Sears agreed to extend the time for payment, while Sears maintains that no agreement was made. Suit was filed by Sears’ attorneys on February 9, 1983. Unaware that suit had been filed, Mr. Larose returned to the store on February 9, 1983, and paid twenty dollars on his account. No further payments were made.

ACTION OF THE CITY COURT

Appellants timely filed, in city court, an answer as well as a reconventional demand which alleged that the parties had entered into a new agreement allowing additional time for payment. After trial on the merits, the city court rendered judgment in favor of Sears in the amount of $1,262.95 plus interest from the date of judicial demand, attorney’s fees of twenty-five percent and costs. Credit was given for the twenty dollar February payment. The re-conventional demand was dismissed. Appellants appeal that judgment.

ASSIGNMENTS OF ERROR

Appellants allege the city court erred in:

1. awarding attorney’s fees when the award was not made in strict compliance with La.R.S. 9:2781; and
2. failing to sustain appellants’ exception of prematurity and/or estoppel.

I.

Appellants argue that it was improper to award attorney’s fees because the demand letter did not meet the requirements of La.R.S. 9:2781. Specifically, they point out that the balance set forth in the demand letter was $1,246.65 while the amount in the petition and awarded in the judgment was $1,262.95.

The city court found that the amount set forth in the demand letter was an accurate statement of the amount owed in December, 1982. When suit was filed in February, 1983, additional interest charges had accrued. Therefore, the amount set forth in the petition was an accurate statement of the amount owed at that time.

The demand letter must correctly set forth the amount due at the time the letter was written. The amount stated in the demand letter and the amount recovered in the judgment do not have to be the same for a party to recover attorney’s fees under La.R.S. 9:2781. Texas Industries, Inc. v. Roach, 426 So.2d 315 (La.App. 2d Cir.1983).

Appellants further contend that the requirements of § 2781 were not met because appellees did not prove the invoices were enclosed with the demand letter. The letter clearly stated that a copy of an itemized statement of the account was enclosed. Copies of both the letter and the statement were introduced at trial.

A similar situation arose in United Distributors, Inc. v. Redfern, 449 So.2d 580 (La.App. 1st Cir.1984) where ledger cards but no copies of invoices were attached to the demand letter. The court held that ledger cards could not be substituted for copies of invoices as required by § 2781. A statement of account is very similar to ledger cards. Since the invoices were not mailed with the demand letter, the requirements of § 2781 were not met and that portion of the judgment assessing attorney fees must be reversed.

II.

Appellants allege that the city court committed reversible error in failing to sustain appellants’ exception of prematurity and/or estoppel.

Prematurity is a defense which must be raised through the dilatory exception pursuant to the Louisiana Code of Civil Procedure. The dilatory exception must be pleaded prior to answer. If the exception is not filed prior to answer, the objection is waived. La.C.C.P. arts. 926, 928; Wood v. Wood, 440 So.2d 906 (La.App. 2d Cir.1983). Since appellants raised their objection of prematurity in the answer, the objection is waived.

Appellants’ final argument is that Sears should be estopped from demanding payment of the total amount due. This argument has two parts. First, appellants argue that by allowing delinquent payments over a period of time, Sears led appellants to believe that they would be given time to catch up on their payments. The evidence shows that Sears did accept late payments and payments below the required minimum. The evidence also shows that Sears notified appellants of the late and/or insufficient payments and requested that the amount due be paid. Finally, appellants failed to make any payment at all. The last payment was made on October 12, 1982. In early December, Sears contacted its attorneys to have a demand letter written, requesting payment of the amount due within thirty days. We find that Sears did not lull appellants into a false sense of security, but rather constantly tried to obtain full payment.

Second, appellants contend that after receipt of the demand letter, the parties entered into an agreement which gave appellants additional time to pay. They argue that the agreement constituted a novation.

The city court found there was no evidence of such an agreement. Further, the city court correctly concluded that even if there had been an agreement, it would not be binding since there was no proof of a novation.

Novation is not presumed; the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt. La.Civil Code art. 2190. There was proof of neither a full discharge of the original debt nor an agreement which clearly intended to constitute a novation. Accordingly, the city court did not err in dismissing the recon-ventional demand based on novation.

For the foregoing reasons, we affirm the judgment of the trial court against defendant in the amount of $1,242.95 plus interest from the date of judicial demand. We reverse the award of attorney’s fees. Costs are to be borne by appellants.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . It was stipulated that as of the date of the demand letter, defendants owed this amount to Sears.


author: EDWARDS, Judge.

text:
    Fred G. PEARSON, Jr. v. AETNA CASUALTY AND SURETY COMPANY and Pala Incorporated.
    No. 83-CA-1162.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Hobart O. Pardue, Jr., Springfield, for plaintiff-appellee.
    Robert E. Couhig and Lisa Tompkins, New Orleans, for defendants-appellants.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

The defendants, Aetna Casualty and Surety Company (Aetna) and Pala Incorporated, suspensively appeal a preliminary judgment awarding the plaintiff, Fred Pearson, Jr. $183.00 in weekly workman’s compensation benefits from January 1, 1983, until a hearing is held on the merits. We affirm..

Plaintiff filed suit on March 16, 1983, claiming permanent and total disability from a knee injury allegedly suffered on April 30 when he fell down a flight of stairs at work, and obtained an order scheduling a hearing on the merits for May 20, 1983. Service was made on Aetna through the Secretary of State on March 18. The defendants did not file an answer within ten days from that date as required by LSA-R.S. 28:1315. Consequently, plaintiff filed a motion for and obtained a preliminary judgment, under LSA-R.S. 23:1316, on April 6, 1983.

On April 12, the defendants filed an answer and a motion to set aside the preliminary judgment. After a hearing on April 29, judgment was rendered on May 10 denying the motion. The defendants sought writs from that judgment, which this court denied, ruling that their proper remedy was by appeal under Braddy v. Triangle Timber, Inc., 345 So.2d 1252 (La.App. 1st Cir. 1977). They then filed this appeal on June 10, 1983.

Defendants contend that the court below erred in granting the preliminary judgment first because their failure to answer within ten days of service of process was not intended to nor did it actually delay the trial on the merits.

Before its amendment in 1983, LSA-R.S. 23:1316 read as follows:

If the time fixed for filing the answer, or the delay granted for the filing thereof has elapsed without any answer having been filed, then upon simple request of the petitioner the court shall immediately enter a preliminary judgment in favor of the petitioner in accord with the facts set forth in the petition and the provisions of this Chapter, providing for payment of such compensation as is claimed to be payable until such time as the hearing of the issues on the merits is fixed by an order of the court at the request of the defendant; such hearing on the merits shall be fixed in the same manner as the first hearing is fixed under R.S. 23:1315, or by the agreement of the parties.

The purpose of this statute is to insure an expeditious resolution of workman’s compensation claims and, by providing the claimant with speedy relief until the merits can be decided, to prevent an employer from forcing a claimant into a compromise settlement by starving him out. It is intended to penalize delay. See generally, Hill v. Southern Advance Bag & Paper Company, 151 So. 241 (La.App. 2nd Cir. 1933); See also Bickford v. Lutz, 339 So.2d 1268 (La.App. 1st Cir.1976); Naquin v. Coal Operators Casualty Company, 157 So.2d 276 (La.App. 3rd Cir.1963).

Under the plain wording of the statute, a claimant is entitled to a preliminary judgment “upon simple request” whenever two conditions occur: the time for filing the answer expires and the defendant fails to answer. See Hollinsworth v. Crossett Lumber Co., 153 So. 722 (La.App. 2nd Cir.1934). It is clear to us that by this wording a failure to answer within the time limits provided is by itself proof enough of delay. The plaintiff therefore need not show any actual or attempted delay by other actions of the defendant, nor may a defendant avoid the penalty or have a preliminary judgment set aside by showing that his failure to answer either did not delay the trial on the merits or is otherwise excused by the circumstances.

Indeed, we agree with our brethren of the fourth circuit that the statute mandates a preliminary judgment once the two stated conditions occur. In Dolloile v. Landry, 234 So.2d 492 (La.App. 4th Cir.1970), instead of granting the plaintiffs request for a preliminary judgment, the trial court granted the defendant further delay for filing his answer. In vacating that ruling and ordering the trial judge to enter a preliminary judgment, the court said:

In this case the defendant had not filed his answer by the date fixed for hearing, which was three months after service of the petition. On the basis of the record before us the plaintiffs request for a preliminary judgment made on that date should have been granted. The court had no discretion to do otherwise under LSA-R.S. 23:1316. The statute clearly says the court shall immediately enter a preliminary judgment. Its refusal to do so and the granting of further extension of time for defendant to answer was not authorized.

Id. at 495.

Insofar as those cases which the defendants cite from the second and third circuits contain language indicating a contrary interpretation, we decline to follow them. See Walden v. Collins, 262 So.2d 848 (La.App. 2nd Cir.1972); and Naquin v. Coal Operators Casualty Company, 157 So.2d 276 (La.App. 3rd Cir.1963). Consequently, we need not discuss those circumstances which defendants argue excuse their failure to answer by March 28, 1983.

Defendants’ second argument is that the trial court erred in granting the preliminary judgment because the plaintiff did not file a verified petition as required by LSA-R.S. 23:1311.

Want of verification of the petition is a defect of form which is curable by amendment of the pleadings. See LSA-C.C.P. arts. 863, 891 and 933; See also Montagne v. Tinker, 201 So.2d 701, 703, n. 3 (La.App. 3d Cir.1967). Objections to formal defects of the petition must be raised through the dilatory exception and pleaded before answer or are waived. LSA-C.C.P. arts. 926 and 928. Since defendants filed no such objections in the proceedings below, they may not make them now for the first time on appeal.

For the foregoing reasons, the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.

      .Before its amendment by La. Acts 1983, 1st Ex.Sess., No. 1, § 1, LSA-R.S. 23:1315 read as follows:
      The petition shall be filed with the clerk of court and the judge shall fix by order a time and place for the hearing thereof, not less than three weeks after the date of service of the petition. A copy of the petition and of the order shall be served as a summons in a civil action upon the adverse party within four days after the filing of the petition.
      Within ten days after the service of the petition the adverse party shall answer the same and shall admit or deny the substantial averments thereof and shall state the contention of the defendant with reference to the matter in dispute as disclosed by the petition. The answer shall be verified in like manner as required for a petition. The court may in its discretion grant further time for filing the answer or hearing the petition and allow amendments of the petition and answer at any stage of the proceedings.

      . See La. Acts 1983, 1st Ex.Sess., No. 1, § 1, eff. July 1, 1983.

      . A defendant’s proper response to a preliminary judgment entered against him is to request a hearing on the merits. See Bickford v. Lutz, 339 So.2d at 1271.

      . Naquin is distinguishable. In that case, the third circuit held that the trial court’s refusal to grant plaintiffs motion for a preliminary judgment is an interlocutory judgment which is not appealable without a showing of irreparable harm. The plaintiff was unable to establish irreparable harm, entitling him to an appeal, without proof of actual delay. The court therefore dismissed the appeal. As noted above, this circuit has interpreted LSA-R.S. 23:1351 to authorize appeals from preliminary judgments, whether classified as interlocutory or final, in Braddy v. Triangle Timber, Inc., 345 So.2d 1252 (La.App. 1st Cir.1977). Thus, a plaintiff need not establish irreparable harm by a showing of actual delay before he can appeal. The fourth circuit agrees. Sciortano v. Levitz Furniture Co., 375 So.2d 1197 (La.App. 4th Cir.1979). The third circuit does not agree, Vizina v. Industrial Indemnity Co., 3HA So.2d 753 (La.App. 3rd Cir. 1979), nor we presume does the second circuit, since Hill v. Southern Advance Bag and Paper Co., 151 So. 241 (La.App. 2nd Cir.1933), has not been overruled.


text:
    Mary E.M. FEINHALS v. John Timothy FEINHALS.
    No. 83-CA-1164.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      M.J. Legardeur, Jr., Covington, for plaintiff-appellant.
    Stanley H. Levin, New Orleans, for defendant-appellee.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

When Mr. and Mrs. Feinhals were divorced, Mrs. Feinhals was awarded custody of the couple’s three minor children. The trial court denied Mrs. Feinhals’ request for alimony but awarded her $1,050 per month as child support. She appealed, seeking to have the award increased to $2,250. Mr. Feinhals answered, seeking a reduction of the award. We affirm.

The trial court has wide discretion in setting the amount of child support and the award will not be set aside absent an abuse of discretion. Ducote v. Ducote, 339 So.2d 835, 839 (La.1976); Nelms v. Nelms, 413 So.2d 1341, 1342 (La.App. 1st Cir.), writ denied, 415 So.2d 944 (La.1982). Parents are obligated to support, maintain and educate their children. LSA-C.C. art. 227. In the case of separation or divorce, “[c]hil-dren are to be maintained at the same standard of living ... [as] if they were living with the noncustodial parent.” Nelms v. Nelms, 413 So.2d at 1342. In determining the amount of child support, the trial court must consider all pertinent circumstances, the needs of the children and the ability of the parent to pay. Ducote v. Ducote, 339 So.2d at 838; Marcus v. Burnett, 282 So.2d 122, 124 (La.1973); Nelms v. Nelms, 413 So.2d at 1342 (citations omitted).

Considering all of the circumstances, we find no abuse of discretion in the trial judge’s award. The record shows that the Feinhals family enjoyed a high standard of living. The family home in Coving-ton contained approximately 3500 square feet, the house payment was approximately $1500 per month, and after the separation, the house was listed for sale at $385,000. The children attended Catholic schools and summer camps.

When Mrs. Feinhals’ temporary job in Mandeville ended, she was unable to find other employment in the area. Consequently she took a job in Dallas with an annual salary of $15,000, and at the time of trial was making plans to move to Dallas with the children. Thus her projections for the children’s expenses could not be made with as much certainty as if she had remained in Covington.

Moreover, the court must consider the father’s ability to pay as well as the children’s needs. Mr. Feinhals testified that the family had lived largely on loans from his family’s corporation and returns on his capital investments in that corporation. Mrs. Feinhals corroborated his testimony that he had great difficulty in getting the most recent loans from the corporation, thus lending credence to his statement that he is $30,000 over his loan limit and will be unable to obtain further loans from the corporation. On the other hand, Mr. Fein-hals still retains his interest in this corporation, which owns immovable property with a net value of $240,000. Mr. Feinhals and his mother are the only shareholders, yet the record does not establish his percentage of ownership.

Although Mr. Feinhals apparently spent a good deal of time working for his family corporation, he never received a salary, and during the twenty year marriage he was not otherwise employed except as a kitchen cabinet salesman. At the time of trial he was earning $67 to $139 per month from commissions on kitchen cabinets sales. Nevertheless, Mr. Feinhals had completed a college degree in biology education at about the time the couple separated, but decided not to pursue a teaching career because he believed a teacher’s salary, in the neighborhood of $15,000 per year, was inadequate. Furthermore, at the time of trial, he had just been licensed as a real estate agent and intended to begin actively soliciting real estate listings as of August 1983.

In awarding child support it is proper for the court to consider that a parent could find a higher paying job if he desired. Guinn v. Guinn, 405 So.2d 620, 621 (La.App. 3rd Cir.1981). Furthermore, a parent will not be relieved of his primary obligation to his children because of an unstable financial condition he brings upon himself. Laiche v. Laiche, 237 La. 298, 111 So.2d 120, 121 (1959); Durbin v. Durbin, 424 So.2d 1130, 1132 (La.App. 1st Cir.1982) (citations omitted). Thus, Mr. Feinhals may not avoid or lessen his obligation to his children merely by refusing gainful employment. The trial court concluded, and we agree, that Mr. Feinhals has the means to support the children.

At the time of trial, Mr. Feinhals had been making the entire $1500 a month house payment on the family home. In addition to the child support award, the judgment further ordered Mrs. Feinhals to reimburse Mr. Feinhals for one-half of the house payments, such reimbursements to be due when the house is sold. Mrs. Fein-hals argues that this reimbursement effectively reduces the monthly child support to $300, which she contends is grossly inadequate.

We do not agree that Mrs. Feinhals’ obligation to reimburse half of the house payment operates as a setoff to the child support award. Once the couple was judicially separated, the community terminated and each party became an owner in indivisión of one-half of the former community property. Dhuet v. Taylor, 383 So.2d 1061, 1062 (La.App. 1st Cir.1980) Therefore, Mrs. Feinhals is responsible for half of the house payments on the property she owns in indivisión with Mr. Feinhals. Her discharge of that obligation by reimbursing him when the house is sold in no way decreases the amount of child support he is ordered to pay.

Accordingly, the trial court judgment is affirmed, each party to pay his own costs.

AFFIRMED.

      . One of the couple’s four children had reached majority before the separation and thus the determination of child support concerned only the three children who were still minors at that time.


text:
    BALEHI MARINE, INC. v. FIREMEN’S INSURANCE COMPANY OF NEWARK, NEW JERSEY.
    No. 83-CA-1184.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied Jan. 14, 1985.
    Patrick J. Berrigan, Slidell, for plaintiff-appellee.
    Joseph R. Ward, Jr., New Orleans, for defendant-appellant.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

This is an action by an insured against its insurer, seeking recovery under an insurance policy. From a judgment in favor of plaintiff, defendant appeals.

The claim arose out of an accident on November 17,1980, at Balehi’s shipbuilding facility which resulted in the destruction of a forty-foot by sixty-foot section of a steel building. Balehi immediately notified Firemen’s of the loss, and the Firemen’s claim representative met with Balehi’s representatives for an on-site inspection of the damage and to discuss the repair and the restoration of the building.

The damage caused a virtual shut-down of the shipbuilding operations, and the parties agreed that it was essential to make the repairs as quickly as possible so as to get the shipyard back in operation. With that goal in mind Balehi offered to use its crew and equipment to do the repair work. Clarke Harper, Firemen’s adjuster, told Balehi to proceed with the work.

Balehi repaired the damage and sent Firemen’s a bill for $60,550.42. Upon receiving the bill, Mr. Harper secured from other contractors estimates totaling $29,-344.75 for the cost of the repair. He then subtracted the $1,000 deductible and forwarded a draft to Balehi in the amount of $28,344.75 for full payment of the claim. Balehi rejected the draft and filed this suit. Firemen’s answered, admitting the existence of a policy, but adding that the policy itself was the best evidence of its contents, and denying any allegation that “may tend to enlarge, contradict or contravene the terms, provisions, exclusions, conditions and all other content of said policy.” At the close of plaintiff’s case, defendant moved for a directed verdict on the grounds that the plaintiff had presented no evidence that the policy in question actually covered the loss sustained. The court simply denied the motion without giving any reasons, and Firemen’s proceeded with its case.

Mr. Harper admitted that he told the Balehi representatives to begin the repair work, but the exact terms of that agreement are in dispute. In his reasons for judgment, the trial judge dealt only with the dispute regarding the terms of the agreement, and consequently the amount of damages. He did not address the issue of coverage.

On appeal defendant again raises the issue of coverage as well as the issue of amount of damages. The party seeking to recover under an insurance policy has the burden of pleading and proving that his claim falls within the policy. Carriere v. Triangle Auto Service, 340 So.2d 665, 666 (La.App. 4th Cir.1976) (citing Myevre v. Continental Casualty Co., 245 So.2d 785 (La.App. 4th Cir.1971)). This is true despite the fact that defendant adjusted the claim, told Balehi to make the repairs, and even tendered a check to settle the claim. “[EJstoppel cannot be invoked to bring within the coverage of a[n insurance] policy ... risks not included nor contemplated by its terms.” Loubat v. Audubon Life Insurance Co., 248 La. 183, 177 So.2d 281, 283 (1965). See also Smith v. Republic National Life Insurance Co., 335 So.2d 739, 741 (La.App. 2d Cir.), cert. denied, 338 So.2d 706 (La.1976); Ledoux v. Old Republic Life Insurance Co., 233 So.2d 731, 735-36 (La.App. 3d Cir.1970).

The strength of this principle is apparent in Hunter v. Office of Health Services, 385 So.2d 928 (La.App. 2d Cir.), cert. denied, 393 So.2d 737 (La.1980), in which the insurer had misled the plaintiff by indicating it afforded coverage in its answer, and in answers to interrogatories, and by defending the action for five years. Nine days before trial, the insurer discovered there was no coverage under the policy, and then notified plaintiff thereof. Rejecting plaintiff’s estoppel argument, the court said that to grant estoppel in that case would effectively extend coverage beyond that set forth in the policy. Id. at 937-38.

We have found no evidence in the record that the insurance policy in question does cover the loss. The policy in evidence covers damage due to fire, lightning, wind, hail, explosion, smoke, aircraft or vehicles, riot, and vandalism, and provides that any other peril to be insured against must be by endorsement in writing on or added to the policy. Although both parties have alluded to the existence of a collapse hazard endorsement, there is none in the record.

When the insurer admits the existence of a policy but denies liability for the claimed loss and the policy is not in evidence, the court may remand to allow plaintiff to introduce the policy into evidence. See Lucas v. Doe, 371 So.2d 336 (La.App. 4th Cir.1979); Carriere v. Triangle Auto Service, 340 So.2d at 666. In the instant case, the policy was introduced, but the facts suggest that the policy in evidence may be incomplete. Therefore, we remand for additional evidence on the issue of coverage so that plaintiff may introduce the complete policy. We need not review the question of quantum until coverage is shown.

REMANDED.

      . In a non-jury trial, the proper procedure is a motion to dismiss on the grounds "that upon the facts and law, the plaintiff has shown no right to relief.” LSA-C.C.P. art. 1672 B.

      . According to Balehi, they agreed that Balehi would furnish labor at $20 per man hour, regular time, and $30 per man hour, overtime, and materials at cost plus 20%, while using its own equipment for the job at no additional charge. Firemen’s contends, however, that Balehi was to do the job for a price that would not exceed the cost of having someone else do the work.


text:
    Lorphy J. BOURQUE v. L.C. ELECTRO-COMM., INC.
    No. CA 83 1185.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    William F. Dodd, Houma, for plaintiff-ap-pellee.
    Randall M. Alfred, Houma, for defendant-appellant.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVINGTON, JJ.

       Judge John S. Covington of the 19th Judicial • District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this Court pro tempore.

   GROVER L. COVINGTON, Chief Judge.

This is an appeal by the defendant, L.C. Electro-Comm., Inc., from a default judgment in favor of the plaintiff, Lorphy J. Bourque, in the amount of $6,680.88 for past due wages, also, the court awarded penalties for non-payment and attorney’s fees.

Lorphy J. Bourque brought this suit against his employer for commissions due him on sales of telephone equipment made by him prior to his termination of employment by defendant. To support his claim, plaintiff filed a copy of a demand letter from his attorney to the -defendant together with certified mail receipts signed by an officer of the defendant company and copies of sales contracts with copies of checks written by purchasers. The defendant bases its appeal on the ground the evidence offered by the plaintiff was not competent evidence since it was hearsay, and thus the plaintiff failed to prove a prima facie case in support of the judgment.

Although the minutes of the court indicate that testimony was offered at the trial prior to the rendition of the default judgment, no transcript of the testimony was made part of the record on appeal. There was also no narrative of the facts, either written and signed by the parties or prepared by the trial court. LSA-C.C.P. arts. 2130 and 2131 require the appellant to secure either a transcript of the testimony or a narrative of the facts.

Since the appellant has the duty to secure either a transcript of the testimony or a narrative of the facts, failure to provide either one of these leaves this court with nothing to review. DeLaneuville v. Duplessis, 385 So.2d 385 (La.App. 1st Cir. 1980). There being nothing to review, the presumption is that the trial court judgment was supported by competent evidence, so it must stand. The judgment is affirmed at appellant’s cost. Succession of Walker 288 So.2d 328 (La.1974); Clark v. Clark, 411 So.2d 548 (La.App. 1st Cir.1982).

AFFIRMED.

      . The demand letter was received about 11 weeks after the employment was terminated and about 3 weeks before suit was filed.

      . Art. 2130. A party may require the clerk to cause the testimony to be taken down in writing and this transcript shall serve as the statement of facts of the case. The party may agree to a narrative of the facts in accordance with the provisions of Article 2131.

      .Art. 2131. If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.


author: LOTTINGER, Judge.

text:
    In the Matter of the SUCCESSION OF Simon ALEXANDER, Jr.
    No. CA 83 1190.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied Jan. 14,1985.

      Raymond Charles Vinet, Baton Rouge, for plaintiff-appellee.
    Randall A. Shipp, Baton Rouge, for defendant-appellee.
    Doris Falkenheiner, Baton Rouge, for defendant-appellant.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVINGTON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   LOTTINGER, Judge.

In this succession proceeding, appellant, Dorothy Lee Alexander Scott, petitions to prove filiation under La.Civ.Code Arts. 208 and 209. From a judgment maintaining the peremptory exception of prescription, Ms. Scott appeals.

From the record we glean the following: Simon Alexander, Jr. died on November 24, 1982; he never married; he was survived by an illegitimate daughter (appellant), a brother and several sisters; decedent’s brother filed a petition for possession on behalf of himself, the remaining heirs, but excluding appellant. Ms. Scott the appellant, born on August 26, 1937, filed a petition for possession and for revocation of the appointment of Clarence Taylor, decedent’s nephew, as administrator. In her petition she alleges the decedent informally acknowledged her. She prayed that she be recognized as the sole heir of the decedent.

ASSIGNMENTS OF ERROR

In appealing Ms. Scott alleges that the trial judge refused to allow her to present testimony on the issue of informal acknowl-edgement and in maintaining the peremptory exception of prescription.

In her brief she submits that the following issues are present:

1. May an illegitimate daughter establish that she was acknowledged by her father by means other than a declaration executed before a notary public and two witnesses, or in the registering of the child’s birth or baptism of such child?
2. Is an informally acknowledged illegitimate required to prove filiation under Article 208 and 209 of the Louisiana Civil Code?
3. Does Article 209 of the Louisiana Civil Code violate the Equal Protection Clauses of the Constitution of the United States and the Louisiana Constitution of 1974?
4. Did the trial court commit error by refusing to allow appellant to present evidence at the trial of the peremptory exceptions?

REQUIREMENT TO PROVE FILIATION

Appellant argues that as an informally acknowledged illegitimate she is not required to bring an action to prove filiation. The basis of the argument is that an informal acknowledgment meets the requirement of La.Civ.Code art. 203, citing McDer-mott v. Fund, 258 La. 657, 247 So.2d 567 (1971); State v. De Lavallade, 215 La. 123, 39 So.2d 845 (1949); Succession of Corsey, 171 La. 663, 131 So. 841 (1930); Succession of Richardson, 392 So.2d 105 (La.App. 1st Cir.1980), writ refused, 396 So.2d 1324 (1981); Allen v. Anderson, 55 So.2d 596 (La.App.Orl.Cir.1951).

We find none of the cases controlling. All of these cases predate the amendments to La.Civ.Code arts. 208 and 209. They stand for the simple proposition that an illegitimate may establish by proof that they were acknowledged by a parent by means other than that prescribed by La. Civ.Code art. 203. However, such an informal acknowledgment does not dispense with the action to prove filiation as prescribed by La.Civ.Code art. 209.

Article 209 requires “a child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203” to prove filiation. Article 203 provides for acknowledgment by declaration before a notary public and two witnesses by the father and mother or either of them or in the registering of the birth or baptism of the child. The legislature in amending La. Civ.Code arts. 208 and 209 has in essence said that an Article 203 acknowledgment is self proving, whereas any other must be proven in an action to establish filiation.

Appellant does not allege or attempt to prove that she is the legitimate child of the decedent, either at birth, or by initiative of a parent, nor that she was acknowledged under Article 203. Where acknowledgment does not meet the requirements of Article 203, the individual must prove filiation. Thus, she is one of those persons required to prove filiation under Article 209.

CONSTITUTIONALITY OF ' LA.CIV.CODE ART. 209

On the issue of the constitutionality of Article 209 appellant apparently attempts to draw some distinction between an illegitimate never acknowledged, formally or informally, and one informally acknowledged. Article 209 provides for the proof necessary and sets a time limit within which a filiation suit must be filed. All individuals required to prove filiation are treated equally. Setting a time limit within which to sue to prove filiation is substantially related to a permissible state interest, e.g. state land titles and orderly disposition of property. Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978); Succession of Brown, 388 So.2d 1151 (La.1980). Thus we find Article 209 constitutional.

PRESCRIPTION

Appellant argues that since she was acknowledged, though informally, by the decedent, she was not required to bring the filiation action under Article 209. We have previously concluded that appellant is one of those persons required to prove filiation under Article 209. The trial court’s refusal to allow appellant to present evidence to prove an informal acknowledgment at the hearing on the peremptory exception of prescription was not error in light of our previous ruling because the only issue before the court at that time was the timeliness of suit and not whether Article 209 was applicable.

The action to prove filiation “must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs.” La.Civ.Code Art. 209. Additionally in amending and reenacting Article 209, Act 720 of 1981 § 2 provided that “any person against whom the time period provided in this Act would otherwise have accrued except for the provisions of this Section shall have one year from its effective date to bring a proceeding to establish filiation of a child....”

Since appellant was at least 40 years of age as of the date of death of the decedent the requirement of bringing suit within 19 years of the child’s birth was inapplicable, and the special provision of filing suit within one year of the effective date of Act 720 was thus applicable to appellant. The Acts of the Legislature of 1981 went into effect on September 11, 1981. Thus, since appellant’s claim was not filed until May 5, 1983, the trial judge was correct in maintaining the peremptory exception of prescription.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . The year of her birth is also mentioned as 1942 in the record. However, for purposes of this opinion, whether her birth was in 1937 or 1942 does not make any difference.

      . Acts 1981, No. 720 and Acts 1980, No. 549.


text:
    Eugene HYORTH v. LOUISIANA DEPARTMENT OF CORRECTIONS, et al.
    No. 83 CA 1193.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Rehearing Denied Dec. 28, 1984.

      Eugene Hyorth, in pro per.
    Karen L. Godwin, La. Dept, of Justice, Baton Rouge, for defendant-appellant.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVINGTON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this Court; that term begins on January 1, 1985. In the interim, the Supreme court has appointed him to this court pro tempore.

   GROVER L. COVINGTON, Chief Judge.

This is an appeal by plaintiff, Eugene Hyorth, an inmate at Louisiana State Penitentiary, from a judgment of the district court in his favor which granted him “a nominal award of One Hundred and No/100 ($100.00) Dollars” against the Louisiana Department of Corrections and denied his claim against Major James A. Teer. The Department also appealed. However, in its brief, it abandoned the appeal and urged affirmance of the judgment. We affirm.

The record establishes, and it is admitted, that the Department lost several items of the plaintiffs personal property during the time that plaintiff had to leave the Louisiana State Penitentiary on a court order. The Department is, thus, responsible for the loss. The items lost were two shirts, two work shoes, two blankets, three pillow cases, one jacket, two pairs of tennis shoes, two pairs of slides and one photo album. Some of the items were state-issued items, which were replaced except for shoes.

After a hearing before a commissioner, it was recommended that an award of $100 be made in favor of Hyorth. This recommendation was accepted and adopted in a judgment signed by the district court. We agree with the trial court’s adopting of the commissioner’s award.

The only evidence offered by the plaintiff was his own testimony. From the plaintiff’s testimony, it appears that he was most concerned over the loss of the photo album. The album and its photographs are primarily of sentimental value to the plaintiff.

On the issue of the amount of the recovery, plaintiff failed to show the actual value of any of the missing items. Courts cannot substitute their notions of monetary value for sentimental value. However, in a case such as the instant one where it is established that the plaintiff has suffered some damages as a result of the loss of the property by the Department, though the amount is not definitely ascertainable, the court must fix the quantum as best it can, and, in this connection the trial judge is vested with much discretion. Augustine v. Dickenson, 406 So.2d 306 (La.App. 3rd Cir. 1981). Moreover, in absence of proof of actual damages, the court should make an award of nominal damages. Fiesta Foods, Inc. v. Ogden, 159 So.2d 577 (La.App. 1st Cir.1963).

The record fully supports the trial judge’s award of nominal damages; he committed no manifest error.

Accordingly, we affirm the judgment appealed. We assess costs against the Department in the amount of $366.38.

AFFIRMED.


author: JOHN S. COVINGTON, Judge Pro Tem.

text:
    Celeste Couvillion SANCHEZ v. Steven SANCHEZ.
    No. 83 CA 1201.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Randall A. Shipp, Baton Rouge, for plaintiff-appellant.
    Pamela Moses, Baton Rouge, for defendant-appellee.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON , JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   JOHN S. COVINGTON, Judge Pro Tem.

Celeste Couvillion Sanchez (plaintiff) appeals from a judgment setting child support payments at two hundred and fifty ($250.00) dollars per month for two minor children, issue of her marriage to Steven Sanchez (defendant).

In a judgment of separation, plaintiff received custody of the children and an award of $250 per month child support. Subsequently, she sought a divorce, permanent custody and $600 per month child support. After a hearing, the trial judge granted the divorce and custody as requested, but awarded only $250 per month in child support. Plaintiff appeals only that portion of the judgment setting the child support award.

Plaintiff assigns as error that: (1) the trial judge erred in failing to give effect to a “reservation of rights” incorporated in the judgment of separation, which reserved to each party the right to seek modification of the initial child support award without the burden of alleging or proving a change of circumstances; (2) the trial judge erred in failing to try the issue of child support de novo; and (3) the child support award is inadequate and constitutes an abuse of discretion. As the first assignment of error was not briefed, it is considered abandoned. Rule 2-12.4, Uniform Rules, Courts of Appeal.

We reverse and remand.

Plaintiff contends that the trial judge erred in failing to try the issue of child support de novo, and further that she was improperly required to show a change of circumstances in order to justify an increase in the child support award. She cites Castille v. Buck, 411 So.2d 1156 (La.App. 1st Cir.1982), for the proposition that a judgment for child support rendered in a separation proceeding becomes merged with a subsequent divorce decree, and by that merger becomes ineffective.

Initially, we note that the trial judge rendered neither oral nor written reasons for judgment, nor did she give any indication apparent in the record of the burden of proof to which she held the plaintiff on the issue in question. Plaintiffs argument is mere speculation, based upon the fact that the award remained the same as it had been, $250 per month.

While we are aware of jurisprudential authority for plaintiff’s position, we believe that the rationale of Lewis v. Lewis, 404 So.2d 1230 (La.1981), precludes adoption of her point of view. In Lewis, the Supreme Court held that although an award of alimony pendente lite terminates automatically upon judgment of divorce, the obligation to support a child does not. The court stated:

“Our previous opinions holding that support awarded to minor children ceases upon the rendition of a judgment of divorce were in error and are overruled to the extent they are inconsistent herewith.” Citations omitted. 404 So.2d 1230, 1234.

Although the court in Lewis did not determine the precise issue facing us here, its rationale supports our conclusion that any party seeking modification of an initial award of child support must show a change of circumstances to justify it. This applies to both custodial and non-custodial parents, seeking either an increase or reduction in payments. In reaching this conclusion, we align ourselves with our brethern of the Third Circuit Court of Appeals, who decided the issue similarly in Clooney v. Clooney, 446 So.2d 981 (La.App.3rd Cir.1984).

This assignment of error is without merit.

Plaintiff contends that the child support award of $250 per month is so insufficient as to constitute an abuse of discretion on the part of the trial judge. Durbin v. Durbin, 424 So.2d 1130 (La.App. 1st Cir. 1982).

Unfortunately, due to the incompleteness of the record, we are unable to fairly and completely resolve this issue. Both parties have alluded in their briefs to the absence from the record of their income and expense statements, which were used as a basis for their testimony (and in some instances as a substitute for testimony). From our perusal of the record, it appears that through an apparent oversight, the statements were never formally introduced into evidence.

Due to the absence from the record of these statements, and due to the sparseness of the testimony on facts essential to resolution of the issue, we feel unable to fairly decide the case on the merits. We are aware of the principle that trial court judgments are presumed to be correct and that items of evidence missing from the record, whether through negligence or mere oversight, are presumed to support the trial court’s judgment. Field v. Merrit, 449 So.2d 7 (La.App. 1st Cir.1984); United Pentecostal Church v. Interstate Surplus Underwriters, 368 So.2d 1104 (La.App.2d Cir.1979), writ denied 371 So.2d 621 (La.1979).

However, appellate courts are given the power to remand an action for proper consideration when the record is so incomplete that the court is unable to pronounce definitively on the issues presented or where the parties have failed, for whatever reason, to produce available evidence material to a proper decision. LSA-C.C.P. Art. 2164; Dardar v. Texoma Contractors, Inc., 446 So.2d 890 (La.App. 1st Cir.1984); Crews v. Crews, 432 So.2d 377 (La.App. 1st Cir.1983); Bodin v. Bodin, 392 So.2d 759 (La.App.3rd Cir.1980).

Under the particular circumstances of this case, we feel that the interest of justice requires that the judgment of the trial court as to the child support award be reversed and the case be remanded for a new trial solely on the issue of child support.

For the foregoing reasons, the judgment of the lower court is reversed solely as to the award of child support, and the case is remanded for further proceedings consistent with law and the views expressed here-inabove. Costs of this appeal are to be divided between the plaintiff and the defendant.

REVERSED AND REMANDED.

      . The appellate decisions have not been consistent on this issue. Some cases held that a noncustodial parent seeking a reduction in child support payments in a divorce action must prove a change in circumstances. Wasson v. Wasson, 402 So.2d 718 (La.App. 1st Cir.1981); Dugas v. Dugas, 374 So.2d 1278 (La.App.3rd Cir.1979); Vanier v. Vanier, 344 So.2d 1077 (La.App.3rd Cir.1977). Others held that a custodial parent seeking an increased award for child support had no burden to show a change of circumstances. Morrison v. Morrison, 316 So.2d 453 (La.App.3rd Cir.1975); Manuel v. Broderson, 298 So.2d 333 (La.App.3rd Cir.1974); Plauche v. Plauche, 444 So.2d 800 (La.App. 4th Cir.1984). The distinction was justified on policy grounds. Wasson, supra.

      . In Clooney, the court held that a custodial spouse in a divorce proceeding must establish a change in circumstances to warrant an increase in child support when support had been determined previously in a separation action.


author: COLE, Judge.

text:
    Thelma P. NELDARE v. BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY, et al.
    No. 83 CA 1202.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      F. Louis Gonzales, Baton Rouge, for plaintiff-appellant Thelma P. Neldare.
    Thomas D. Benoit, Baton Rouge, for in-tervenor-appellant Board of Trustees, State Employees Group Benefit.
    A. Clay Pierce, Jr., Baton Rouge, for defendant-appellee Board of Supervisors of Southern University, A & M College and Rockwood Ins. Co.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The issue in this worker’s compensation case is whether or not plaintiff suffered a work-related accident.

Plaintiff, Thelma P. Neldare, claims she was injured in an accident on November 26, 1979 while working as a custodian at Southern University. There were no eyewitnesses to this alleged accident. Plaintiff’s account of this incident is as follows. Upon returning to work after the Thanksgiving holidays, standing water was found in the Fine Arts building where plaintiff worked. Plaintiff and a co-worker, Nathaniel Taylor, bailed the water into buckets which they then emptied at another location. While lifting a bucket plaintiff felt a sharp pulling in her back and heard a popping noise. She immediately told Mr. Taylor what had occurred, and later in the afternoon informed her supervisor, Tom Jackson. Several days later she also related the incident to Dr. Whitfield, the chairman of the theatre department. However, she did not file a written accident report until almost a year later, in October of 1980.

It was established at trial that plaintiff continued to work for a period of time following the alleged accident, although she claimed she experienced increasing problems with her back. On December 20, 1979 she. underwent a double hernia operation. She thereafter returned to work in February and worked for approximately two months. On December 8, 1980 she underwent back surgery. She has not returned to work since that date.

A claim for worker’s compensation benefits was first asserted by plaintiff in June of 1980. Upon denial of this claim, she filed the present suit. The State Employees Group Benefit Program (S.E.G.B.P.) intervened to seek recovery of medical benefits paid to plaintiff to the extent they were attributable to a work related accident. The trial court concluded the evidence did not adequately establish the occurrence of an accident and rejected the claims of plaintiff and intervenor. Both have appealed.

A worker’s compensation claimant must establish the occurrence of a work-related accident by a preponderance of the evidence. Johnson v. Louisiana State University, 417 So.2d 467 (La.App. 1st Cir.1982). The testimony of the claimant alone may be sufficient to meet this burden of proof if there is nothing discrediting his testimony and if it is supported by the surrounding circumstances. Id. The trial court’s evaluations of credibility and its findings of fact regarding the occurrence of an accident are entitled to great weight and will not be disturbed in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In the present case the trial court rejected plaintiff’s testimony as to the occurrence of an accident, finding it lacked credibility. We find no error in this determination, noting there was evidence introduced at trial which cast doubt upon plaintiff’s credibility. Insurance forms submitted to S.E.G.B.P. either by her or on her behalf indicated the injury for which she was receiving treatment was not work-related. They further indicated symptoms of plaintiff’s back problems began in July of 1980 rather than November of 1979 as she testified at trial.

Plaintiff admits signing these forms. However, she maintains they were completed by personnel at her chiropractor’s office and that she signed without reading them. This argument is without merit. A person who signs a written document is presumed to know its contents and he cannot repudicate it by claiming he failed to read the document. See Smith v. Leger, 439 So.2d 1203 (La.App. 1st Cir. 1983). It is also significant that plaintiff failed to file a written accident report with her employer until almost a year after her alleged injury. Additionally, contrary to plaintiffs claim, her former supervisor stated he was not informed by her of an alleged injury until after his retirement in June of 1980.

Furthermore, plaintiff failed to offer reliable evidence supporting her contention that the accident was work-related. To corroborate her testimony she presented two witnesses whom she allegedly informed of her accident shortly after its occurrence. However, there were serious discrepancies between the testimony of these witnesses and statements made by them prior to trial. The testimony of one of these witnesses, Nathanial Taylor, was, in fact, diametrically opposed to a previous statement he had given to an insurance adjuster. In the former statement Taylor denied any knowledge of an accident, but at trial he claimed to have personal knowledge of its occurrence.

In view of these circumstances and considering the great weight accorded the trial court’s evaluations of credibility, we find no error in the judgment dismissing the claims of plaintiff and intervenor. All costs are to be divided equally between the appellants.

AFFIRMED.

      . Plaintiff's supervisor, Tom Jackson, was deceased at the time of trial. Accordingly, his pre-trial deposition was admitted in evidence.


text:
    In the Matter of the SUCCESSION OF Emile S. LANDRY.
    No. 83-CA-1207.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied Jan. 29, 1985.
    Edwin S. Patout, New Iberia, for plaintiff-appellant.
    James J. Adams, Lafayette, for defendant-appellee.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER, and JOHN S. COVING-TON , JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   JOHN S. COVINGTON, Judge Pro Tem.

Plaintiff appealed the trial court’s judgment which dismissed plaintiff’s suit, wherein plaintiff sought to annul a donation inter vivos, establish filiation and to be placed in possession of the property of the succession.

The sole issue presented in this case is whether the trial court erred as a matter of law in holding that plaintiff had no cause or right of action to seek to annul donations inter vivos made to defendants, to be recognized as an heir and to be placed in possession of the undisposed property of the unopened succession of Emile S. Landry.

Emile S. Landry died intestate in January of 1971. His succession has never been judicially opened. The decedent was married but once and then to. Aggie Aucoin Landry. Of this marriage, two children were born, namely, Doris Landry Hebert and Beryl Landry Williams, the defendants herein. On August 26, 1966, Emile S. Landry donated certain immovable property to his daughters, Doris and Beryl. On January 22, 1981, appellant, Gladys Landry Pellerin filed this suit against defendants, alleging that she is an acknowledged illegitimate child of Emile S. Landry.

We affirm the trial court’s dismissal of this action.

Appellant asserts that she has a cause and right of action to seek to annul the donation under the provisions of La.C.C. art. 1497 , as amended by Act No. 641, 1982. Appellant urges that this article provides additional remedies for illegitimate children and that therefore, the Louisiana Supreme Court’s holding in Succession of Clivens, 426 So.2d 585 (La.1980), on rehearing, that the Succession of Brown, 388 So.2d 1151 (La.1980), would only be retroactive to January 1, 1975, is inapplicable to the instant suit. Appellant specifically refers to Paragraph B of this article, which states that the provisions of the article are to be given retroactive effect and provides a one-year grace period for those persons whose rights were adversely affected under the provisions of the article. Appellant argues that the legislative intent, in amending La.C.C. art. 1497, was to provide illegitimate children with the right to bring an action to annul a donation inter vivos.

We disagree. La.C.C. art. 1497 was not amended to create new actions for illegitimate children but was amended rather to foster the stability of titles to immovable property by providing that third persons who have acquired immovable property from a donee pursuant to an onerous transaction have acquired a clear title. Therefore, we find that appellant does not fall within the class of individuals intended to be protected by the one year grace period.

We find that Succession of Brown, supra, and Succession of Clivens, supra, control our disposition of the present case. Succession of Brown held La.C.C. art. 919, which denied inheritance to an acknowledged illegitimate from a parent survived by legitimate descendants, to be unconstitutional. Thereafter, in Succession of Clivens, the Supreme Court held that Succession of Brown is to be applied retroactively, but only to January 1, 1975, the effec-five date of the Louisiana Constitution of 1974. In Clivens, the Supreme Court upheld La.C.C. art. 919 against the illegitimate heirs of a decedent who died prior to January 1, 1975.

Appellant contends that Succession of Clivens is distinguishable from the present case in that this case involves a succession that has never been judicially opened. Appellant suggests that because of this factor, the reasons for limiting the retroactivity of Succession of Brown are not present and that accordingly, the equal treatment to illegitimates mandated by Brown should be accomplished. Appellant argues pursuant to Succession of Trosclair, 423 So.2d 745 (La.App. 4th Cir.1982), that no property has been acquired based on the old rule, there has been no reliance on the prior law, no prior judgments have to be overturned and no injustice or hardships would result from a retroactive application of Brown to this case.

Once more, we disagree with appellant. According to La.C.C. arts. 940 and 941, a succession is opened and the heirs are immediately seized with ownership of the property of the succession upon the death of the deceased. Therefore, we are not persuaded by appellant’s argument that a procedural formality, such as the judicial opening of a succession, should be a determining factor regarding inheritance rights. Substantive rights of inheritance in and to the succession property are determined by the applicable substantive law in effect on the date of the death of the deceased. Harlaux v. Harlaux, 426 So.2d 602 (La.1983), Succession of Theriot, 428 So.2d 1017 (La.App. 1st Cir.1983).

Therefore, since plaintiffs alleged father died in 1971, and since Clivens mandates the application of La.C.C. art. 919, we hold that the trial court was correct in its judgment that plaintiffs petition states no cause or right of action.

For the above reasons, the judgment of the trial court is affirmed at the cost of the appellant.

AFFIRMED.

      . Art. 1497. Nullity of donation inter vivos of entire patrimony
      A. The donation inter vivos shall in no case divest the donor of all of his property; he must reserve to himself enough for subsistence. If he does not do it, a donation of a movable is null for the whole and a donation of an immovable is null for the whole unless the donee, as to such immovable, has alienated by onerous title the immovable given to him. Except as provided in paragraph B hereof, if a donee has alienated by onerous title the immovable which has been given to him, the donation of such immovable shall not be declared null on the ground that the donor did not reserve to himself enough for his subsistence; however, the donee is bound to return the value that the immovable had at the time of its donation to the donee.
      B. The provisions of this article are hereby made retroactive to any donation inter vivos made prior to September 10, 1982. Any person whose rights are adversely affected under the provisions of this article and whose rights have not prescribed or otherwise been extinguished or barred on September 10, 1982 shall have one year from that date to initiate an action or proceeding to declare null a donation inter vivos as provided herein or be forever barred from exercising such right or cause of action. Amended by Acts 1982, No. 641, § 1.


author: WATKINS, Judge.

text:
    Mrs. Lucille KEMP v. Robert THOMAS, Jr.
    No. 83 CA 1222.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Craig L. Raster, Baton Rouge, for plaintiff-appellee.
    Otha Curtis Nelson, Sr., Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

This appeal arises out of suit for eviction of the appellant, Robert Thomas, Jr. for non-payment of rent. Appellant contends that he owns an interest in the leased premises and as a result the City Court was without jurisdiction over the subject matter of this proceeding since it involved the question of title to an immovable. Lucille Kemp, the appellee, has full record ownership of the leased premises under a Judgment of Possession rendered November 2, 1982 in the Succession of Laura Turner. Appellant has filed a petition to annul this Judgment of Possession along with a filiation suit to establish a forced heirship right in the leased premises. Both of these actions were dismissed at the district court level, and both are now pending on devolutive appeals.

Finding that appellee had proven record ownership and a verbal lease with appellant who was in default and that the amount was within its jurisdictional limits, the City Court rendered a judgment of eviction on July 29, 1983. We affirm.

On July 29, 1983, the appellant sus-pensively appealed the judgment of eviction in forma pauperis without posting a bond. Although a suspensive appeal was initially granted, on October 17, 1983, on a rule to show cause filed by appellee, the City Court reversed itself under the authority of LSA-C.C.P. art. 5185 which provides that a person proceeding in forma pauperis “is not entitled to a suspensive appeal unless he furnishes the necessary security”. Under LSA-C.C.P. art. 4735, an appeal does not suspend eviction unless the defendant has complied literally with the suspensive appeal requirements of this article. Rourke v. Cloud, 398 So.2d 57 (La.App.3d Cir.1981). Appellant did not make bond and so this present appeal is being maintained devolutively.

The principal issue raised by appellant is whether a pending devolutive appeal in a proceeding in another court questioning the ownership of the leased premises deprives

a City Court of jurisdiction in an eviction proceeding. Appellant argues on appeal that since he has alleged an ownership interest in the leased premises, that there is a dispute as to title between him and the appellee-lessor depriving the City Court of jurisdiction under LSA-C.C.P. art. 4849. He further argues that the two lawsuits seeking to annul the Judgment of Possession and to establish filiation, although both were dismissed and are now pending on devolutive appeal, preclude appellee from proceeding with a summary eviction proceeding.

The record established that appellee was the sole record owner of the property; that she had leased the property to appellant; that appellant was in default of the rental due; and that the requisite notice was given. The provisions of LSA-C.C.P. art. 4701, et seq. having been met we find no error in the ruling of the trial court that appellee was entitled to relief under the summary eviction procedure set forth in these articles of the Code of Civil Procedure.

Appellant’s contention that the City Court lacked jurisdiction because of the issues of ownership raised by him in the two other suits now on appeal is clearly without merit. We know of no reason and are cited no authority for holding that a pending devolutive appeal from judgments dismissing lessee’s suits to annul a Judgment of Possession and to establish filiation should bar the record owner proceeding with summary eviction proceedings. Skannal v. Jones, 384 So.2d 494 (La.App. 2nd Cir.1980).

For the foregoing reasons, the judgment of the City Court is affirmed at appellant’s costs.

AFFIRMED.

      . LSA-C.C.P. art. 5185 reads as follows:
      When an order of court permits a party to litigate without the payment of costs, until this order is rescinded, he is entitled to:
      (1) All services required by law of a sheriff, clerk of court, court reporter, notary, or other public officer in, or in connection with, the judicial proceeding, including but not limited to the filing of pleadings and exhibits, the issuance of certificates, the certification of copies of notarial acts and public records, the issuance and service of subpoenas and process, the taking and transcribing of testimony, and the preparation of a record of appeal;
      (2) The right to the compulsory attendance of witnesses for the purpose of testifying, either in court or by deposition, without the payment of the fees, mileage, and other expenses allowed these witnesses by law;
      (3) The right to a trial by jury and to the services of jurors, when allowed by law and applied for timely; and
      (4) The right to a devolutive appeal, and to apply for supervisory writs.
      He is not entitled to a suspensive appeal, or to an order or judgment required by law to be conditioned on his furnishing security other than for costs, unless he furnishes the necessary security therefor.
      No public officer is required to make any cash outlay to perform any duty imposed on him under any article in this Chapter.

      . LSA-C.C.P. art. 4735 reads as follows:
      An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.


author: ALFORD, Judge.

text:
    Alpha LANDRY v. Fannie BOURQUE
    No. CA 83 1226.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied March 15, 1985.
    Victor Marcello and James Marchand, Donaldsonville, for plaintiff-appellant.
    Miriam T. Attaya, Gonzales, for defendant-appellee.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment dismissing plaintiff-appellant’s petition for damages allegedly resulting from a breach of a purchase agreement. Plaintiff, Alpha Landry, entered mto a purchase agreement with defendant-appellee, Fannie Bourque, for the sale of a 2.5 acre tract of land in Ascension Parish. The agreement provided that the sale would be passed before a notary within sixty days from date for the sum of $45,000.00, and that a deposit would be given; however, no amount was specified for the deposit. Defendant contends he is entitled to damages because plaintiff sold the property to a third party within the sixty day term.

After a trial on the merits, the trial court dismissed plaintiffs petition on the grounds that: 1) there was a lack of consideration for the purchase agreement, and 2) plaintiff breached his obligation to bring defendant before a notary to close the sale within the sixty day period. We reverse.

All contracts must have a lawful cause. LSA-C.C. art. 1893. However, the cause of the obligation need not be expressed. LSA-C.C. art. 1894. “By the cause of the contract ... is meant the consideration or motive for making it ...” LSA-C.C. art. 1896. In this case, the true motive for the contract was the mutuality of obligations flowing from the agreement, i.e., the respective obligations to buy and to sell. The trial court placed great emphasis on the fact that the purchase agreement called for a deposit. However, a review of the contract reveals that no amount was specified; thus, the parties obviously did not consider it an essential element of the agreement.

We also disagree with the trial court’s finding that plaintiff breached his obligation by not bringing defendant before a notary to close the sale prior to the expiration of the sixty day term. A contract can be violated either actively or passively. An active breach consists of a party performing an act that is inconsistent with the obligation. LSA-C.C. art. 1931. Defendant was guilty of an active breach of the contract by selling the property to a third party during the term of the purchase agreement. See, Starke Taylor & Sons, Inc. v. Riverside Plantation, 301 So.2d 676 (La.App. 3rd Cir.1974); 7 Litvinoff, Louisiana Civil Law Treatise — Obligations, Book 2 § 235 (1975). Therefore, because defendant actively breached the contract, plaintiff was not required to place her in default and damages flowed from the moment of the breach. LSA-C.C. art. 1932.

Loss of profit is an item of damages recoverable for breach of contract. LSA-C.C. art. 1934. “The general rule is that while damages for loss of profits may not be based on speculation and conjecture, such damages need be proven only within a reasonable certainty [citations omitted]. Broad latitude is given in the proving of lost profits as damages.” Lavigne v. J. Hofert Co., 431 So.2d 74, 76 (La.App.1st Cir.1983). The purchase agreement specified that plaintiff was to buy the property for $45,000.00. Plaintiff testified that he had negotiated to sell the property as soon as he acquired it to Dr. Philippe for $60,-000.00. This testimony was corroborated by Dr. Philippe. Accordingly, we are of the opinion that plaintiff met his burden of proving his lost profits in the amount of $15,000.00 due to defendant’s breach.

Therefore, for the foregoing reasons, the judgment of the trial court is reversed, and judgment is rendered in favor of plaintiff-appellant, Alpha Landry, for $15,000.00. Costs of this appeal are taxed to defendant-appellee.

REVERSED AND RENDERED.