author: PRICE, Judge.

text:
    FRANKS PETROLEUM, INC., Plaintiff-Appellee, v. Maxie K. MAYO, et al., Defendant-Appellee.
    No. 15659-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Rehearing Denied Oct. 20, 1983.
    Writ Denied Dec. 16, 1983.

      Blackwell, Chambliss, Hobbs & Henry by Frank N. Chambliss, West Monroe, for defendant-appellant Robert Don Russell.
    Gaharan <& Wilson by Joseph Wilson, Jena, for plaintiff-appellee.
    Charles A. Traylor, II, West Monroe, for defendant-appellee, Maxie K. Mayo.
    Before PRICE, MARVIN and SEXTON, JJ.
   PRICE, Judge.

This concursus proceeding was invoked by plaintiff, Franks Petroleum, to determine the rights to royalties from an oil and gas lease covering property included in a drilling and production unit established by the commissioner of conservation. The adverse parties on this appeal are Robert Don Russell, appellant, and Maxie K. Mayo, ap-pellee, who both claim ownership of a ⅛⅛ interest in the subject property.. Appellant Russell contends the trial court erred in applying the after acquired title doctrine to perfect a link in the chain of title through which Mayo acquired ownership of the property. The dispositive issue is whether the conveyance constituting the link in question was a quit claim deed which precludes the application of this doctrine.

The case was submitted to the trial court on a stipulation of facts which established the following ownership history of the property in question. This property was once part of a 43 acre tract comprised of 10 acres on the East Side of the S.E. ¼ of the S.W. ¼, the West 1.2 of the S.W. ¼ of the S.E. ¼, and all that part of the West ½ of the N.W. ¼ of the S.E. ¼ South of the Claiborne Road in Section 25, Township 18 North, Range 2 East, Ouachita Parish, Louisiana. The portions in dispute are the 10 acres of the East Side of the S.E. ¼ of the S.W. ¼ and that part of the West ½ of the N.W. ¼ of the S.E. ¼ South of Claiborne Road.

The entire tract was formerly owned by Edward and Henrietta Mayes, parents of seven children including Frances Mayes Griffin, a common ancestor in title of both Mayo and Russell. In 1954 after the deaths of her parents, Mrs. Griffin conveyed to her son, Eddie Senion, her interest in property described as the “East ½ of the N.W. ½ of the S.E. ¼; West ½ of the S.W. ¼ of the S.E. ¼ of Section 25, Township 18 North, Range 2 East South of Claiborne Road containing 43 acres, more or less.” It is conceded that this is an inaccurate description of the 43 acre tract in which she inherited an interest from her parents.

In 1960 Eddie Senion acquired a ⅛⅛ interest in the entire 43 acre tract from his cousin Herman Sherman. In 1962 Senion conveyed to Hobson Norris, Mayo’s immediate ancestor in title, “all his right, title, and interest in and to” the entire 43 acre tract as per the precise description of the property inherited by Senion’s mother from her parents. There is no question that this transaction effectively conveyed to Norris a ¼⅛ interest in the West Half of the S.W. ¼ of the S.E. ¼ of Section 25 by virtue of the previous conveyance by Mrs. Griffin to Senion which contained a proper description of this portion of the tract.

Frances Mayes Griffin died in 1970, leaving Eddie Senion as her sole heir. On August 17, 1973, Hobson Norris conveyed to Maxie Mayo an undivided ½⅛ interest in the entire tract as described in the conveyance to him from Senion. On November 15, 1973, Senion conveyed the property in dispute i.e., the 10 acres of the East Side of the S.E. ¼ of the S.W. ¼ and that part of the West ⅛ of the N.W. Vi of the S.E. ¼ lying south of Claiborne Road, to Betty Beason, who later conveyed same to Robert Don Russell on June 11, 1974.

Based on these facts, the trial court held that Senion’s acquisition of an undivided ¼⅛ interest in the disputed property upon his mother’s death in 1970 inured to the benefit of his vendee Hobson Norris and his subsequent transferee, Mayo, by virtue of the after acquired title doctrine. He therefore found that Mayo is entitled to the royalties attributable to the disputed ¼⅛ interest in the property. Appellant Russell contends that the doctrine of after acquired title is not applicable to the 1962 conveyance by Senion to Norris because it was a quit claim deed.

The jurisprudential doctrine of after acquired title was discussed by the Louisiana Supreme Court in Guice v. Mason, 156 La. 201, 100 So. 397 (1924):

If property is sold by a vendor who has no title thereto, but who afterwards acquires title, the acquisition of title inures to the benefit of the vendee.

Appellant is quite correct in his contention that the doctrine is inapplicable to transactions evidenced by quit claim deeds. The doctrine is generally limited to cases where the vendor warranted title to the conveyed property, and has been extended to a sale without warranty under certain circumstances, but is not applicable to conveyances by quit claim deed, since such a deed transfers only the present interest of the grantor and not the property itself. See Waterman v. Tidewater Associated Oil Company, 213 La. 588, 35 So.2d 225 (1947). Thus the sole issue is whether the September 24, 1962 conveyance from Eddie Senion to Hobson Norris is a quit claim deed so as to preclude application of the after acquired title doctrine, in which case Russell would have the better claim to the property.

Appellant bases his position that the conveyance in question is a quit claim deed on language inserted in the cash sale deed form by which the transfer was effected, specifying that the vendor was conveying “all of his right, title, and interest in and to the following described property ...” preceding the legal description of the property. He contends that such restrictive language means that Senion conveyed only whatever interest he had in the property at the time of the conveyance. Thus the question before us is primarily one of contract interpretation.

Contracts must be construed in such a way as to lead to logical conclusions and to give effect to the obvious intention of the parties. They must be interpreted in a common-sense fashion, according to the words of the contract their common and usual significance. La.C.C. Art. 1946. The contract must be viewed as a whole and, if possible, practical effect given to all its parts, according to each- the sense that results from the entire agreement so as to avoid neutralizing or ignoring any of them or treating them as surplusage. La.C.C. Art. 1955. When there is anything doubtful in agreements, we must ascertain the common intention of the parties. La.C.C. Art. 1950. Some effect is to be given to every word or clause if possible, for a court may not impute to the parties the use of language without meaning or effect, and terms that present two meanings must be taken in the sense most congruous to the matter of the contract. La.C.C. Arts. 1951, 1952. See Lambert v. Maryland Casualty Company, 418 So.2d 553 (La.1982).

The instrument in question is described as a cash sale deed and the conveyance clause therein states that the property is sold “with full guarantee of title, and with complete transfer and subrogation of all rights and actions of warranty against all former proprietors.” The language relied upon by appellant is not solely indicative of an intent to quit claim any interest in the property. It is also commonly employed to indicate that the vendor owns a fractional or undivided interest in the property being conveyed. This clause therefore does not, in and of itself, establish the intent of the parties to this transaction since Senion and his immediate ancestor in title did in fact have only a fractional interest in the property described. On the other hand, the fact that the conveyance clause states that the vendor did “grant, bargain, sell, convey, and deliver” the property does not conclusively indicate an ownership interest. See Waterman v. Tidewater Associated Oil Company, supra.

As pointed out in brief by appellee, Franks Petroleum, the 1954 conveyance from Griffin to Senion is probative of the issue before us. The trial court held, and we agree, that the obvious intent of the recorded act was to transfer Mrs. Griffin’s entire interest in the 43 acres in Section 25 which she acquired from her parents. Granted, the description was inaccurate, omitting the description of part of the property and improperly describing property in which Mrs. Griffin had no interest. We do not necessarily hold that this conveyance containing an inaccurate description is sufficient to put third parties on notice of the transfer of the disputed property. However, since the only interest Mrs. Griffin had in Section 25 was the 43 acres formerly owned by her parents, and the act of transfer declared that she was conveying her entire interest in 43 acres in Section 25, we feel this evidences her intent to convey to Senion her interest in the property now in dispute and his intent to acquire that interest.

Accordingly, since Eddie Senion intended by this transaction to acquire his mother’s interest in the disputed property, it can readily be inferred that he intended to transfer that undivided interest in the 1962 conveyance to Hobson Norris. We therefore agree with the trial court that the act in question was not intended to be a mere quit claim deed which would exclude any implication that the vendor has any title or interest in the property.

Having established that the 1962 conveyance from Senion to Norris was not intended to be a quit claim deed, the doctrine of after acquired title becomes applicable to their transaction. Thus, even if Eddie Sen-ion did not acquire valid title to his mother’s Vrth interest in the property through the 1954 conveyance, and did not validly convey that interest to Norris in 1962, he definitely acquired that interest when she died in 1970 leaving him as her sole heir. This acquisition of title inured to the benefit of his vendee Hobson Norris and to Norris’ transferee Maxie Mayo. Mayo is thus entitled to the mineral royalties attributable to this interest in the property.

For these reasons the judgment appealed is affirmed. All costs of this appeal are assessed against defendant-appellant Robert Don Russell.


source: Caselaw Access Project

author: NORRIS, Judge.

license: Public Domain

text:
    Roy H. LEDBETTER, Plaintiff-Appellee, v. Edmund Tom MYERS, Defendant-Appellant, and Economy Fire & Casualty Company, Third Party Defendant-Appellee.
    No. 15654-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.

      Brown, Wicker & Amman by R. Douglas Wood, Jr., Monroe, for plaintiff-appellee.
    Bruscato, Loomis, Deal & Street by C. Daniel Street, Monroe, for defendant-appellant.
    Davenport, Files & Kelly by Mike C. Sanders, Monroe, for third party defendant-appellee.
    Before PRICE, FRED W. JONES, Jr., and NORRIS, JJ.
   NORRIS, Judge.

On July 14, 1982, an accident involving Roy H. Ledbetter and Edmund Tom Myers occurred on 1-20 near Ruston when Myers’ car left the eastbound lane, crossed the median of the interstate and struck Ledbet-ter’s vehicle. On October 21, 1982, Ledbet-ter filed a suit for damages against Myers and Economy Fire and Casualty Co., the alleged liability insurer of the Myers’ automobile. Economy thereafter moved for summary judgment seeking dismissal as a party defendant on the ground that Economy did not insure Myers on the date of the accident. The trial court granted the motion and Myers appeals. Finding Economy’s affidavits and exhibits insufficient to warrant the granting of a summary judgment, we reverse.

On June 9, 1981, Economy issued policy No. EF-2-242-268 to Edmund Tom Myers to provide six months coverage on his 1976 Pontiac Catalina and another vehicle. The policy was renewed December 9, 1981, and provided coverage through June 9, 1982. No premium was paid by June 9, 1982 to extend coverage through the period including July 14, 1982. According to the insurance company’s representatives, a premium notice was mailed to Myers prior to June 9, 1982, indicating a willingness to renew the policy for the renewal period beginning June 9, 1982, and expiring December 9, 1982. Such premium notices are generally mailed 30 to 45 days prior to the expiration of a policy term with an “Automobile Policy Renewal Certificate,” and endorsements. It is the general practice of Economy to mail a second pink copy of the premium notice on the due date if the premium is not paid by the due date. This copy purportedly informs the insured that if payment is not received within fifteen days of the due date, the policy will be cancelled. According to the affidavit of Thomas E. Brim, head of the accounting department, he personally prepared for mailing and supervised the mailing of the pink copy of the premium notice which was purportedly mailed to Myers on June 9,1982. Neither the affidavit of Brim, nor the affidavit of Joseph B. Serafini, the regional claim manager of Economy, states on personal knowledge that either mailed or supervised the mailing of the initial premium notice.

In response to the motion for summary judgment, Myers filed a Memorandum in Opposition and an affidavit in which he stated that “... contrary to the indications submitted by ECONOMY FIRE AND CASUALTY COMPANY, he did not receive any Premium Notice prior to June 9, 1982.” In the Memorandum in Opposition, Myers objected to the consideration by the trial court of the affidavits of Serafini and Brim attached to Economy’s motion on the basis that they were not based on personal knowledge but rather were based on conclusions and reports from the company’s records and contained an outline of procedures customarily followed by the company for cancellation of automobile liability policies. He further objects to Brim’s affidavit on the basis that there is nothing contained within the affidavit that states that he or anyone else actually mailed the premium notice.

Myers argues in this court that the trial court was in error in granting the motion for summary judgment and raises three issues:

1. Whether or not the affidavits filed in support of the Motion for Summary Judgment can be considered in view of the fact that they are not made on personal knowledge.
2. Whether or not Defendant-Appellant Edmund Tom Myers was given notice of the willingness of Economy Fire and Casualty Company to renew his policy.
3. Whether or not a genuine issue of material fact exists.

The applicable law is found in La.R.S. 22:636.1 which provides in pertinent part:

A. As used in this chapter:
* * sfc * ⅜⅞ ⅞:
(6) “Nonpayment of premium” means failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums on a policy, or any installment of such premium, whether the premium is payable directly to the insurer or its agent or indirectly under any premium finance plan or extension of credit.
B. A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons:
(1) Nonpayment of premium; or
* * ⅜ * * ¾:
D. No notice of cancellation of a policy to which Subsections B or C applies shall be effective unless mailed or delivered by the insurer to the named insured at least twenty days prior to the effective date of cancellation; provided, however, that where cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason therefor shall be given. Unless the reason accompanies or is included in the notice of cancellation, the notice of cancellation shall state or be accompanied by a statement that upon written request of the named insured, mailed or delivered to the insurer not less than fifteen days prior to the effective date of cancellation, the insurer will specify the reason for such cancellation. This subsection shall not apply to nonrenewal.
E. No insurer shall fail to renew a policy unless it shall mail or deliver to the named insured, at the address shown in the policy, at least twenty days advance notice of its intention not to renew. This subsection shall not apply; (1) if the insurer has manifested its willingness to renew; or (2) in case of nonpayment of premium; provided that, notwithstanding the failure of an insurer to comply with this subsection, the policy shall terminate on the effective date of any other insurance policy with respect to any automobile designated in both policies.
Renewal of a policy shall not constitute a waiver or estoppel with respect to grounds for cancellation which existed before the effective date of such renewal.
F. Proof of mailing of notice of cancellation, or of intention not to renew or of reasons for cancellation, to the named insured at the address shown in the policy, shall be sufficient proof of notice.
* * * * * *

As stated in Ray v. Associated Indem. Corp., 373 So.2d 166 (La.1979):

It is well settled in our jurisprudence that a motion for summary judgment should be granted if, and only if, the pleadings and related filings show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. C.C.P. 966; Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978); Andrew Development Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment, and any doubt is resolved against granting the motion in favor of a trial on the merits. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

Upon trial of the motion for summary judgment, the burden rests upon the mover to show convincingly that there exists no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. Manuel v. Shaheen, 316 So.2d 878 (La.App.3d Cir.1975). La.C.C.P. Art. 967 provides:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.
If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavits facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees. Any offending party or attorney may be adjudged guilty of contempt.

The failure of an affiant to affirmatively show that their statements were made on personal knowledge does not prevent judicial consideration of his affidavit. An affidavit which does not measure up to a formal standard is subject to a motion to strike. In the absence of such a motion, or other objection, the lack of showing of personal knowledge is waived unless it is clear from the affidavit itself that it is not based on personal knowledge. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). In the instant case, there was a timely objection made to the sufficiency of the affidavits and their not being based on personal knowledge.

La.C.C.P. Art. 966 provides:

The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

Because the mover has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. To satisfy his burden, the mover must meet a strict standard by a showing that it is quite clear what the truth is and that excludes any real doubt as to the existence of any genuine issue of material fact. The papers supporting the mover’s position are closely scrutinized, while the opposing papers are indulgently treated, in determining whether the mover has satisfied his burden. Vermilion Corp. v. Vaughn, supra.

Myers argues in brief that the holding of Ray v. Associated Indem. Corp., supra, is dispositive of the issue presented by this case and mandates a reversal of the trial court’s ruling. We disagree. In Ray, the sole issue presented for the court’s resolution was whether or not the insurance company had given notice to the insured of its willingness to renew an automobile liability policy under La.R.S. 22:636.1 E. The court there concluded that La.R.S. 22:636.1 E is applicable until the willingness to renew is manifested to the insured. Because at the time that the company is required to renew the policy or give advance notice of its willingness not to renew the policy, the continuation premium is not yet due, section E applies and results in an automatic renewal of the policy on the appropriate date. Our reading of Ray reveals one factual distinction from the instant case. In Ray, the insurance company admitted that it had made no efforts to cancel the policy after the premium was not paid. It simply relied on its communication of the intent to renew to the insured. In Ray, the insured specifically denied receiving a premium notice. Thus, the court concluded that a material issue of fact was raised by this denial which precluded the granting of a summary judgment and required a trial on the merits to resolve.

In the instant case, Myers specifically denied receiving a premium notice prior to June 9, 1982. However, Economy does not dispute that the policy was renewed but argues that after this date, the appropriate procedure was followed to cancel the policy under the provisions of La.R.S. 22:636.1. Thus, they argue that the affidavit of Myers does not raise a material issue of fact because the material issue presented by this case is whether or not Myers received the cancellation notice purportedly mailed on June 9, 1982.

We agree that Myers’ affidavit does not address the pivotal issue presented by this ease. His denial of having received any premium notice prior to Juné 9, 1982, does not raise a material issue of fact. However, even though there was no affidavit to the effect that Myers did not receive a cancellation notice, after reviewing the documents filed on behalf of the proponents of the motion for summary judgment, we conclude that Economy did not meet the requirement of showing that there was no material issue of fact and that it was entitled to judgment as a matter of law on the basis of its own filings. Because Economy did not meet this burden, it was unnecessary that Myers file an affidavit or other documents to refute the mover’s position because failure of an adverse party to file counter-affidavits does not automatically entitle one to a summary judgment. Jewell v. Thompson, 386 So.2d 689 (La.App.3d Cir.1980). Only if the documents supporting the motion for summary judgment are sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue. It is only at this point that the opponent may no longer rest on allegations and denials contained in its pleadings. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980).

The affidavit relied upon by Economy to constitute proof of mailing as required by La.R.S. 22:636.1 F, states in pertinent part:

That he [affiant Thomas Brim] personally performed the Accounting Department functions described in the affidavit of Joseph B. Serafini .. . and in particular, he prepared for mailing and supervised the mailing of the pink copy of the Premium Notice which was mailed to the insured on June 9,1982 advising Edmund Tom Myers that his policy would be can-celled for non-payment of premium. [Bracketed material added.]

Admittedly, the phrase “supervised the mailing” of is somewhat ambiguous. However, in brief and at argument, counsel for Economy frankly admits that Brim himself did not take the notice to the post office and mail it, that he could not recall which one of the many company employees could have and might have taken the mail to the post office on June 9, 1982 and that he had no personal knowledge of the actual mailing of a cancellation notice. Thus, the affidavit of Brim is impeached by the concessions made by Economy on appeal as it is admitted that the affidavit is not what it purports to be in this respect. This concession is a candid admission that Brim’s statement that he “supervised the mailing” is insufficient to establish a prima facie case that a notice of cancellation was mailed.

La.R.S. 636.1 F provides that proof of mailing of notice of cancellation shall be sufficient proof of notice. Based on the affidavits filed of record, we conclude that there has been no proof of mailing of a cancellation notice sufficient to warrant the granting of the motion for summary judgment. On the basis of the affidavits and counsel’s admissions, it is unclear what the truth is as to the actual circumstances surrounding the mailing of a cancellation notice and that a question of fact still exists as to whether or not one was actually mailed. In Cuccia v. Allstate Ins. Co., 262 La. 545, 263 So.2d 884 (1972), the insurance company presented proof of mailing in the form of an affidavit from the mail room supervisor of the insurance company declaring that a cancellation notice correctly addressed was mailed on a certain date from Atlanta, Georgia. The court concluded that this affidavit was sufficient to constitute a prima facie case that the cancellation notice to the insured was mailed according to the requirements of law; however, it was also stated that this presumption was rebuttable rather than absolute. Thus, when the insured denied receipt of the notice, a material issue of fact was established. However, in the instant case, we conclude that the affidavits do not present a prima facie case that any required notice of cancellation was mailed. Therefore, it was unnecessary that Myers file an affidavit denying the receipt of a cancellation notice to raise a material issue of fact.

When we closely scrutinize the mover’s papers, we are compelled to conclude that Economy has failed to satisfy its burden of making a showing that it is quite clear what the truth is regarding the mailing of a notice of cancellation and that it has failed to make a showing that excludes any real doubt as to the existence of any genuine issue of material fact. Any doubt is resolved against granting the motion in favor of a trial on the merits.

Accordingly, the judgment of the trial court granting the motion for summary judgment is reversed and the case is remanded to the district court for further proceedings. Costs of this appeal are cast against Economy Fire and Casualty Co.

JUDGMENT REVERSED.

      . While it is not material to the issue raised by this appeal, we note that Economy’s motion for summary judgment is only raised in connection with the main demand filed by the plaintiff. Myers has third-partied Economy in a subsequent third party demand which is not made a part of this appeal.


text:
    Joyce Bell WEST, Plaintiff-Appellant, v. Bobby Payne WEST, Defendant-Appellee.
    No. 15655-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.

      Pringle & Herzog by R. Perry Pringle, Shreveport, for plaintiff-appellant.
    Lowther & Boone by William R. Boone, Many, for defendant-appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr., and NORRIS, JJ.
   NORRIS, Judge.

In this separation proceeding, Joyce Bell West appeals a judgment on rule rejecting her demand for past due alimony, contempt and attorney’s fees against her husband. The primary issue presented by this appeal is the propriety of the trial court’s ruling that Bobby Payne West is entitled to receive credit under a theory of set-off or compensation for three alimony payments in the amount of $2550 against sums of money which Mrs. West removed from two community checking accounts.

The factual posture of this case is undisputed. On September 9, 1982, Mrs. West filed a suit for separation. On September 21, 1982, a hearing was had on a rule to determine alimony pendente lite and for a preliminary injunction. On that date, the parties entered into a stipulation which awarded Mrs. West alimony pendente lite in the amount of $850 per month and both parties were enjoined from harassing each other and from alienating or encumbering any of the community assets. However, two community checking accounts were specifically excluded from the preliminary injunction and Mr. West was to account to the community for all funds utilized therefrom.

On September 30, 1982, Mrs. West went to Many, Louisiana, and withdrew $250 from the Sabine Bank and Trust Company and $4184.69 from the People’s State Bank, these being the accounts excluded from the preliminary injunction, which sums she represented to be approximately one-half of the funds in each of the accounts on those dates. Additionally, she wrote a check in the amount of $300 from the People’s account for the payment of her apartment rent.

Thereafter, Mr. West wrote two checks, one in October and one in November, 1982, each in the amount of $850 in payment of the alimony due for each of those months. When Mrs. West presented these checks to the bank for payment, they were not honored because there were insufficient funds in the account on which they were written. In December, 1982, a check was written by Mr. West in the amount of $850 for that month’s alimony payment and was sent to Mrs. West by certified mail. Because Mrs. West was in Hawaii visiting her daughter, the letter containing the check was returned unclaimed. Even after Mr. West became aware that the checks were not honored by the bank and after the third check was returned to him, he made no further efforts to make these alimony payments.

On January 20, 1983, Mrs. West filed a rule to make past due alimony executory, for contempt and for attorney’s fees. Thereafter, Mr. West filed a rule for contempt against Mrs. West alleging that she had violated the terms of the preliminary injunction by making the withdrawals from the community accounts. These rules were consolidated for purposes of trial, and both rules for contempt were rejected by the trial court. However, Mr. West was given credit for the three unpaid alimony installments against the withdrawals made by Mrs. West. Because Mr. West has neither answered Mrs. West’s appeal nor appealed from the judgment rejecting his demands, the issues presented thereby are not contained within this appeal.

Mrs. West assigns the following errors:

I. The District court erred in allowing a set-off of the past due alimony payments against any sums which may have been taken or alienated from a community bank accounts) for the reason that any claims as to community property should be determined in a separate partition proceeding and are not equally liquidated and demandable as a prior judgment of alimony.
II. The District Court erred in not finding past due and executory the sum of $2550.00 together with reasonable attorney’s fees and all costs, owed plaintiff-appellant by defendant-appellee and in not finding defendant-appellee in contempt of court for his failure to pay said amounts.

The concept of compensation or set-off is provided for in La.C.C. Arts. 2207-2209. In order for compensation or set-off to be applicable, there must be a contemporaneous existence of distinct debts, each equally liquidated and demanda-ble. Hartley v. Hartley, 349 So.2d 1258 (La.1977). An essential prerequisite to determining whether or not a plea of compensation is applicable to a claim is the determination of the liquidity of the claim. While it is clear from the facts presented that Mr. West has a potential claim against Mrs. West for community funds, which is very likely to be contested, that claim is properly determined in a partition of the community property, rather than as a defense to a claim for unpaid alimony. Hartley v. Hartley, supra; Hamilton v. Hamilton, 421 So.2d 291 (La.App. 1st Cir.1982); Thomas v. Thomas, 400 So.2d 1120 (La.App. 1st Cir.1981); Castille v. Castille, 358 So.2d 1002 (La.App. 3d Cir.1978); Dees v. Dees, 382 So.2d 1057 (La.App. 2d Cir.1980). Based on the rule of law enunciated in the aforementioned cases, the trial court was in error in finding that compensation or set-off was available to Mr. West to offset or reduce the debt owed to Mrs. West for unpaid alimony. Therefore, Mrs. West is entitled to judgment in the amount of $2550 representing the arrearages owed as well as interest from the date that each installment became due. Thompson v. Courville, 372 So.2d 579 (La.App. 3d Cir.1979). Under the provisions of La.R.S. 9:305, she is additionally entitled to recover reasonable attorney’s fees, which based on our evaluation of the work performed from our review of the record in the court below and in this court [See In the Matter of Andras, 410 So.2d 328 (La.App. 4th Cir.1982) ], we fix in the amount of $600.00 and all costs of this proceeding.

Mrs. West further contends that the trial court erred in failing to find Mr. West in contempt for his failure to pay alimony. The trial court is vested with great discretion in determining whether or not a party should be held in contempt for failure to follow the court’s orders. Litton v. Litton, 299 So.2d 458 (La.App. 2d Cir.1974). Admittedly, the trial court failed to find Mr. West in contempt because it found no alimony arrearage because of the credit allowed. However, based on the particular facts and circumstances of this case, we cannot say that the trial court would have abused its great discretion had it failed to find Mr. West in contempt after a finding that the arrearages were due and owing to Mrs. West. Thus, we are unwilling to make such a finding in this ease. Absent a showing that a finding of contempt is necessary to the resolution of the case, we prefer to leave such matters to a trial court because of its better position to determine how best to deal with litigants in effectuating the court’s orders.

Accordingly, the judgment of the trial court is amended to render judgment in favor of Joyce Bell West in the amount of $2550 with legal interest thereon from the date that each installment of alimony owed became due, for attorney’s fees in the amount of $600.00 and for all costs of this proceeding, and as amended the judgment is affirmed.

JUDGMENT AMENDED and as amended AFFIRMED.

      . The actual terms of the stipulation regarding the preliminary injunction are not reflected in the record. Apparently, there was an oral stipulation in open court which is not made a part of the record which has been made available for our review. The judgment reflecting the stipulation reads as follows in pertinent part:
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a preliminary injunction issue herein against BOBBY PAYNE WEST and JOYCE BELL WEST enjoining and restraining both parties from in any manner whatsoever alienating, encumbering or disposing of any of the assets belonging to the community of acquets and gains existing between JOYCE BELL WEST and BOBBY PAYNE WEST.
      * * * * * *
      IT IS FURTHER ORDERED ADJUDGED AND DECREED that the preliminary injunction above referred to shall not apply to the two (2) bank accounts; bank account # 018 469 1 located at Sabine State Bank & Trust Co., Many, LA and bank account # 05 6619 5 located at the People’s State Bank, Many, LA, provided however, that BOBBY PAYNE WEST will have to account to the community for all funds utilized.

      . La.C.C. Arts. 2207-2209 provide:
      Art. 2207. When two persons are indebted to each other, there takes place between them a compensation that extinguishes both the debts, in the manner and cases hereafter expressed.
      Art. 2208. Compensation takes place of course by the mere operation of law, even unknown to the debtors; the two debts are reciprocally extinguished, as soon as they exist simultaneously, to the amount of their respective sums.
      Art. 2209. Compensation takes place only between two debts having equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demandable.
      The days of grace are no obstacle to the compensation.

      . La.R.S. 9:305 provides:
      ■When the court renders judgment in an action to make past due alimony or child support executory, or in an action to enforce child visitation rights, except for good cause, the court shall award attorney fees and costs to the prevailing party.


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

text:
    SUCCESSION OF Taylor JOHNSON. Clara Johnson AGEE, Plaintiff-Appellant, v. Clara Ann BOLTON and David Earl Bolton, Defendants-Appellees.
    Nos. 15661-CA, 15662-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Rehearing Denied Oct. 20, 1983.
    Writ Denied Dec. 16, 1983.

      Sharp & Sharp by James Sharp, Jr., Monroe, for plaintiff-appellant.
    Levy & Shealy by Robert W. Levy, Ru-sten, for defendants-appellees.
    Before PRICE, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

The primary issue presented in the appeal of these consolidated cases is whether two illegitimate children of a decedent had been formally acknowledged by him and, if so, whether the children acquired inheritance rights by virtue thereof.

Taylor Johnson (“decedent”), who was never married, died intestate on January 2, 1982. On February 1, 1982, decedent’s sister, Clara Agee, secured a court order appointing her administratrix of his succession, conditioned upon the filing of an inventory and furnishing security.

Alleging that they were duly acknowledged illegitimate children of the decedent, on October 19, 1982 Clara Bolton Mardis and David Earl Bolton filed a rule in the succession proceeding to revoke the appointment of Clara Agee as administratrix because of her failure to provide security within the time provided by law.

On October 29,1982, Clara Bolton Mardis and David Earl Bolton also filed in the succession proceeding a “petition for recognition as acknowledged illegitimate children and for possession.” On November 15,1982 the two filed a motion requesting the district judge to hold a hearing on the petition “so that movers can present evidence of their acknowledged illegitimate status.”

Clara Agee’s appointment as administra-trix was revoked on December 1, 1982 because of her failure to qualify for that position in accordance with the law.

Although no one was cited as a defendant in the petition by Clara Bolton Mardis and David Earl Bolton to be recognized as decedent’s duly acknowledged illegitimate children, an answer thereto was filed by Clara Agee attacking the validity of the asserted formal acts of acknowledgment and asking that the petition be dismissed. Clara Agee also filed a variety of motions and exceptions directed at the petition, all of which were either referred to the merits or overruled.

On January 12, 1983, in a separate proceeding, Clara Agee sued Clara Bolton Mar-dis and David Earl Bolton “to declare null and void two instruments, both of which purports to be acts of formal acknowledgment of illegitimate children.” After the filing of an answer by defendants, this case and the litigation in the succession proceeding were consolidated for trial purposes.

At the merit-trial the following relevant facts were established: J.B. Bolton and Ozena Bradshaw were married in 1936 and never divorced. In 1948, during the existence of his prior marriage, J.B. Bolton engaged in a marriage ceremony with Essie Bell Bolton. These two lived together until permanently physically separating in 1954. Essie Bell Bolton gave birth to David Earl Bolton on March 6, 1956 and to Clara Bolton (now Mardis) on November 1,1957. On February 23,1961 Taylor Johnson executed, on standard Louisiana Public Welfare forms, notarized statements in the presence of witnesses acknowledging that he was the father of the two above named children born to Essie Bell Bolton.

In a written opinion the trial judge found that, because of J.B. Bolton’s existing marriage to Ozena Bradshaw, his marriage to Essie Bell Bolton was a nullity; that, without this legal impediment, Taylor Johnson and Essie Bell Bolton were capable of marrying; and that the decedent did in fact formally acknowledge Clara Bolton Mardis and David Earl Bolton as his natural children. Consequently, judgment was rendered in the succession proceeding (No. 15,-661-CA) recognizing Clara Bolton Mardis and David Earl Bolton as the sole heirs of the decedent and entitled to possession of all his property, and in the other suit (No. 15,662-CA) dismissing the action with prejudice. Clara Agee has appealed these judgments.

Although raising a number of peripheral procedural issues, the thrust of appellant’s argument on appeal appears to be twofold, as follows: (1) Because of her good faith, Essie Bell Bolton’s marriage to J.B. Bolton was a putative one; appellees were entitled to the civil effects thereof under La.Civil Code Art. 118, one of which was a prohibition against being declared illegitimate; and appellees were presumed to be the children of J.B. Bolton. (2) Alternatively, in 1961 [when decedent executed the formal acknowledgments] the only benefit accruing to illegitimates acknowledged thereunder was to alimony [support] rather than inheritance rights.

A marriage which is invalid because one of the contracting parties was legally married at the time of its confection is an absolute nullity and may be impeached by either of the parties to the marriage or by any other party in interest. La.C.C. Arts. 93,113; Prieto v. Succession of Prieto, 165 La. 710, 115 So. 911 (1928); Clark v. Clark, 192 So.2d 594 (La.App. 3rd Cir.1966).

The trial judge correctly held that the marriage of J.B. Bolton and Essie Bell Bolton was an absolute nullity because of Bolton’s existing marriage to Ozena Bradshaw. However, even a null marriage contracted in good faith by either of the parties produces civil effects in favor of the children born of the marriage. La.C.C. Arts. 117, 118.

In 1961, La.C.C. Articles 203 and 204 provided as follows:

Art. 203. The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in presence of two witnesses, by the father and mother or either of them, whenever it shall not have been made in the registering of the birth or baptism of such child.
Art. 204. Such acknowledgment shall not be made in favor of children whose parents were incapable of contracting marriage at the time of conception; however, such acknowledgment may be made if the parents should contract a legal marriage with each other.

Without presuming to prejudge ap-pellees’ rights under Articles 117 and 118 with reference to J.B. Bolton, we conclude that nothing contained therein pertaining to the civil effects of a putative marriage would have rendered Essie Bell Bolton legally incapable of contracting a marriage with Taylor Johnson when appellees were conceived or which would have prevented the decedent from formally acknowledging the paternity of appellees, which he did in compliance with Article 203.

La.C.C. Article 919, which excluded acknowledged illegitimates from participating in the succession of their father when the latter was survived by designated parties, was declared unconstitutional in Succession of Brown, 388 So.2d 1151 (La.1980). Brown was later held to apply retroactively to January 1, 1975, as well as prospectively. See Succession of Clivens (on rehearing), 426 So.2d 585 (La.1983).

It was further noted in Clivens that “the filiation amendments [time limitations for filing suit] to articles 208 and 209 apply only to unacknowledged illegitimates. Acknowledged illegitimates are under no similar compulsion to sue within a time frame to establish filiation.”

Since the decedent here died subsequent to January 1, 1975, his acknowledged children may not be deprived of their inheritance rights and thereby be penalized for their illegitimacy. Consequently, there is no merit to appellant’s contention that ap-pellees are restricted to claiming support from the succession of their deceased father because this was the only entitlement provided to acknowledged illegitimates by Article 203 in 1961.

Deeming it unnecessary to discuss in detail the asserted errors committed by the trial judge in his disposition of numerous motions and exceptions, we simply hold that he ruled correctly on these questions and adopt his stated reasons as our own.

Finally, appellant complains that the trial court erred in assessing court costs against her. Although the language of the judgment in this respect may be somewhat ambiguous, we construe it as applying only to those court costs directly connected with this litigation and not those associated simply with settling of the succession.

For these reasons, we affirm the judgments in these consolidated suits, with costs of appeal assessed to appellant.


text:
    Otis L. ALLEN, Plaintiff-Appellee, v. Henrietta Christina BRANDT, Defendant-Appellant.
    No. 15668-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    C. William Gerhardt, Shreveport, for defendant-appellant.
    James B. Wells & Associates (A Professional Law Corporation) by James B. Wells, Bossier City, for plaintiff-appellee.
    Before PRICE, FRED W. JONES, Jr., and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

The central issue posed by this appeal is whether the plaintiff, in obtaining a default judgment awarding property damages resulting from an automobile accident, established a prima facie case by competent evidence. Answering in the negative for the reasons hereinafter explained, we set aside the judgment and remand for a new trial.

On February 9, 1983 plaintiff sued defendant in the Bossier City Court for property damage to his car in the sum of $1721.43 and for $500 for loss of use of his vehicle, allegedly resulting from an automobile accident on February 5, 1983 caused by defendant’s negligence. Personal service was made on the defendant on February 9, 1983.

A default judgment in favor of plaintiff and against defendant for $1721.43 was signed on February 23,1983. On February 28, 1983 defendant moved for a new trial, asserting that the default judgment was contrary to the law and evidence and, further, was obtained in violation of an agreement between the attorneys representing the involved parties. Following denial of the motion, this appeal was perfected.

According to the transcript of the default proceeding in the city court, plaintiff testified that the accident in question occurred when the defendant [traveling to the left of and in same direction as plaintiff on four lane thoroughfare] abruptly turned her vehicle in front of plaintiff’s car. However, in order to prove the damage to his automobile, plaintiff simply identified and offered in evidence a copy of a repair estimate made at a local shop. Judgment was rendered for this amount.

La.C.C.P. Article 4916 [governing courts of limited jurisdiction] provides in part:

A. If the defendant fails to appear at the trial, and the plaintiff proves his case, a final judgment in favor of plaintiff may be rendered. No prior default is necessary.
B. The plaintiff may obtain a final judgment only by producing relevant and competent evidence which establishes a prima facie case....

Our jurisprudence has established that in securing a default judgment the plaintiff must prove all the essential allegations of his petition as fully as if they had been specifically denied and, further, that hearsay evidence does not sustain the burden of proving a prima facie case. Ducharme v. Guidry, 392 So.2d 755 (La.App. 3rd Cir.1980); Jones v. Ledet, 383 So.2d 1308 (La.App. 3rd Cir.1980).

On its face a written estimate of property damage prepared by a third party is hearsay and, where no repairs have been made, a plaintiff in a default proceeding is not permitted to make out a prima facie case for recovery of damages by simply filing in evidence the described written estimate. Miles v. New Orleans Public Service, Inc., 393 So.2d 877 (La.App. 4th Cir.1981).

In this case the plaintiff did not testify that his car had been repaired for the figure shown on the written repair estimate. The repairman who assessed the damage to the motor vehicle was not called to testify. Under the circumstances, the probative force of the tendered evidence depended on the competence and credibility of an individual other than the person testifying. For that reason it was hearsay evidence. Since none of the recognized exceptions to the hearsay rule are applicable, this evidence could not establish a prima facie case for the recovery of damages in the default proceeding. Consequently, the trial judge erred in denying defendant’s motion for a new trial. See Hardy v. Kidder, 292 So.2d 575 (La.1974).

Having disposed of the appeal on this basis, we pretermit the necessity of considering appellant’s complaint that the default judgment was procured as a result of ill practices.

For the reasons set forth, the default judgment appealed from is set aside and the case is remanded to the city court for a new trial. Appellee is cast with costs of appeal, with assessment of other costs to await final disposition of the case.


author: SEXTON, Judge.

text:
    Tommie Holleman YOUNG, Plaintiff-Appellee, v. Herman Neil YOUNG, Defendant-Appellant.
    No. 15677-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Writ Denied Nov. 18, 1983.

      Kidd & Kidd, by Paul Henry Kidd, Jr., Monroe, for defendant-appellant.
    Culpepper, Teat & Caldwell by Bobby L. Culpepper, Jonesboro, for plaintiff-appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

The defendant herein appeals a judgment making past due pendente lite alimony ex-ecutory. The alimony made executory accrued subsequent to a judgment of divorce while that judgment of divorce was being appealed. On appeal, defendant-appellant contends that he should not be liable for alimony pendente lite in the interim between the rendition of the divorce decree which found his wife at fault and terminated her alimony pendente lite, and the rendition of the appellate decision which affirmed the trial court’s judgment terminating alimony pendente lite. Thus, precisely the same issue is presented here as was decided adversely to this appellant in Morris v. Morris, 426 So.2d 318 (La.App. 2d Cir.1983).

For the reasons set out in the majority opinion in Morris, supra, the judgment herein appealed is affirmed.

AFFIRMED.

      . The author is still of the view expressed in the dissent in Morris v. Morris, 426 So.2d 318, 321 (Sexton, J., dissenting). However, it is clear that at least four of the seven members of this court are firmly of the opposite view. Therefore, as designated author, I present the opinion in this fashion, believing it would be fruitless at this point to cause another discussion of the views so recently aired in Morris.


text:
    Paris K. SANDERS, Plaintiff-Appellant, v. CITY OF BLANCHARD, Defendant-Appellee.
    No. 15678-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.

      Woods, Nossaman & Cassell by Joe Cas-sell, Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by Sidney E. Cook, Jr., Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff sued defendant Town of Blanchard for alleged damages resulting from the failure of that municipality’s Clerk of Court to process an appeal from his conviction in Blanchard Mayor’s Court for careless and reckless driving. Defendant municipality Blanchard responded, filing a motion for summary judgment. The trial court granted the motion for summary judgment, dismissing plaintiff’s claims. We reverse.

Plaintiff in this cause is Paris K. Sanders. Sanders filed suit against the Town of Blanchard on January 5, 1983. Plaintiff alleged that he was prosecuted in criminal proceedings by the Town of Blanchard for careless and reckless driving, and was convicted of that offense in the Blanchard Mayor’s Court. The record is unclear but it appears the conviction was in February, 1981. Plaintiff alleged, moreover, that he timely filed a motion to appeal his traffic offense conviction. Plaintiff further claimed that the Town of Blanchard is vicariously liable for the following acts and omissions on the part of its Clerk of Court: the Clerk failed to process his appeal after plaintiff timely filed a motion for appeal; the Clerk “falsely” reported plaintiff’s traffic conviction to the Department of Public Safety; the Clerk “maliciously and without probable cause ... caused [plaintiff’s] driving record to reflect false information.” Plaintiff further alleged, in a subsequent affidavit, that the clerk’s failure to process his appeal caused him to lose his job.

Defendant Town of Blanchard answered plaintiff’s petition, generally denying plaintiff’s allegations. The Town of Blanchard subsequently filed a motion for summary judgment. The motion averred that plaintiff had never made either an oral or written motion for appeal, that his appellate rights had been forfeited by his own inaction, and that his appellate rights had thus not been impaired by the Clerk’s failure to process his appeal. The essential thrust of defendant’s motion was that the Clerk of Court had not erred in failing to process the appeal, since plaintiff Sanders had never made a motion for appeal. The claim that plaintiff Paris Sanders had never submitted a motion for appeal was supported by the affidavit of Clerk of Court Patsy Guin, in which Ms. Guin “state[d] of her own personal knowledge that the record contains no written or oral motion of appeal on behalf of Paris K. Sanders in the matter entitled ‘Town of Blanchard vs. Paris K. Sanders.’ ”

The Town of Blanchard contended, as an alternative basis for the motion for summary judgment, that even if plaintiff Sanders had made a motion for appeal and the Clerk of Court had failed to process this appeal, plaintiff’s appellate rights were preserved under LSA-C.Cr.P. Arts. 915-918. These articles, particularly Article 917, clearly provide that a clerk’s failure to process an appeal “shall not operate as an abandonment” of a criminal defendant’s appellate rights.

In plaintiff’s response to defendant Blanchard’s motion for summary judgment, he emphatically reasserted that he had submitted a motion for appeal. Plaintiff’s response included an affidavit by Mr. Sanders, in which Mr. Sanders deposed that he “had appeared in Open Court at Blanchard and Orally moved for an appeal of the conviction of Careless and Wreckless (sic) Driving and was ordered to post a bond for his appeal.” Plaintiff’s affidavit further alleged that he had remitted $200.00 to Clerk of Court Patsy Guin to satisfy his appellate bond obligation. Attached to the affidavit was the copy of a receipt for the sum of $200.00, which sum was “received of Paris Sanders,” by Patsy Guin on behalf of the “Village of Blanchard, Louisiana.” Plaintiff’s affidavit asserted that the $200.00 payment acknowledged by the receipt constituted the bond for his appeal from the traffic conviction.

In addition to plaintiff’s affidavit and copy of the $200.00 receipt, plaintiff filed in the record a letter by his former counsel to the Mayor of Blanchard which stated that “Mr. Sanders has previously moved for an appeal by oral motion which we understand was granted.”

Plaintiff further filed a request for admissions, seeking a defense admission that the $200.00 receipt acknowledged the payment of an appeal bond. Plaintiff also sought admissions by defendant that Mr. Sanders had made a motion for appeal, that the Clerk of Court had failed to process his appeal, and that the Clerk had transmitted a record of defendant’s conviction to the Department of Public Safety.

In defendant Town of Blanchard’s response to plaintiff’s request for admissions, defendant admitted the issuance by the town of the $200.00 receipt, but denied that the receipt acknowledged the payment of an appeal bond. Defendant’s response admitted that it had transmitted a record of plaintiff’s conviction to the Department of Public Safety, but denied that plaintiff had ever made a motion for appeal.

After assessing the forementioned pleadings, affidavits and documentary evidence, the trial court rendered judgment on March 14, 1983, sustaining defendant’s motion for summary judgment and dismissing plaintiff’s claims. Plaintiff appealed.

In assessing a motion for summary judgment, the courts are to consider all of the pleadings, depositions, affidavits, answers to interrogatories, and admissions that have been filed in the cause. Summary judgment shall be granted if these filings demonstrate that “there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. Art. 966.

While summary judgment serves an important procedural purpose, the Courts have historically utilized this procedure with considerable trepidation and hesitance since its use effectively deprives a party of his “day in court.” See Ferina v. Howard, 285 So.2d 805 (La.App. 3d Cir.1973). Thus, the movant has the burden of showing the absence of genuine issue as to any material fact. Duvalle v. Lake Kenilworth, Inc., 396 So.2d 1268 (La.1981). The inferences drawn from affidavits and pleadings must be viewed in the light most favorable to the party opposing the motion. Duvalle, supra. Any doubts as to the existence of material factual issues and the granting of the summary judgment, are to be resolved against the granting of the summary judgment, and in favor of a trial on the merits. Blount v. Exxon Corp., 395 So.2d 355 (La.App. 1st Cir.1981); Parker v. South Louisiana Contractors, Inc., 340 So.2d 322 (La.App. 1st Cir.1976). A summary judgment is not appropriate where the trier of fact must weigh conflicting evidence in order to reach a conclusion upon which reasonable men could differ. McMoris v. Sheppard, 315 So.2d 342 (La.App. 4th Cir.1975).

In short, a summary judgment is no substitute for a trial on the merits. Millet v. Johnson, 381 So.2d 1293 (La.App. 4th Cir.1980), writ denied, 383 So.2d 788 (La.1980); Prine v. Kinchen, 341 So.2d 1149 (La.App. 1st Cir.1976), writ denied, 343 So.2d 199, 200 (La.1977).

It is clear that there is a genuine dispute of fact herein: Plaintiff has repeatedly insisted, by pleading and affidavit, that he made a motion for appeal; defendant has with equal persistence denied that plaintiff ever made such a motion. Therefore, the question to be resolved by this court is whether the disputed fact — plaintiff’s alleged motion for appeal — is material. If the disputed fact is material, a summary judgment may not be legally granted.

A fact is “material” if its existence or non-existence may be essential to plaintiff’s cause of action under the applicable theory of recovery. Facts are “material” if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of a legal dispute. The definition of materiality has been well expressed in law review commentary:

A material fact is one which forms an element of the cause of action of the case. It is not one that is peripheral only but rather it is material to the basic questions to be determined. It is a fact that is essential to the case and without which it could not be supported.... A material fact is determined by the law applicable to the particular case before the court, and, therefore, it is necessary that the law applicable to the case be carefully considered in determining the [materiality] of any fact.
Comment, Development of Jurisprudence in Louisiana Relative to Summary Judgment Since 1960, supra, at 129. (Emphasis added).

If plaintiff did not move for an appeal, the clerk of court could have had no duty to process his “non-existent appeal,” and there could therefore be no primary negligence of an employee upon which to predicate the vicarious liability of the Town of Blanchard. If, on the other hand, plaintiff did move for an appeal, the clerk of court arguably violated a duty by failing to process this apeal, and the Town of Blanchard could be vicariously liable for this omission on the part of its employee. The fact of plaintiff’s motion for appeal is thus material, and since this material fact is the subject of the litigant’s sharply conflicting claims, it is genuinely at issue.

The clerk of court has a clear statutory duty to process an appeal. LSA-C.Cr.P. Arts. 915, 917 and 918. Moreover, noncompliance with statutory mandates may be indicative of tortious conduct. See Broyles v. Yarbrough, 374 So.2d 705 (La.App. 1st Cir.1979), writ denied, 380 So.2d 71 (La.1980); Greene v. Wright, 365 So.2d 551 (La.App. 1st Cir.1973). It is axiomatic that employers suffer vicarious liability as a result of the tortious conduct of their employees. LSA-C.C. Arts. 2317 and 2320. Public entities such as this defendant, the Town of Blanchard, are not exempt from vicarious liability. Article 12, Section 10(A) of the Louisiana Constitution of 1974 unequivocally makes it clear that Louisiana does not adhere to the concept of sovereign immunity. This provision mandates that, “Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.”

Given the clerk’s alleged noncompliance with mandatory statutes and the constitutionally mandated civil exposure of public entities, plaintiff arguably has a sound cause of action. Thus, a reasonable mind could conclude that plaintiff has a cause of action, and that defendant-movant is not. entitled to judgment as a matter of law. Where rational minds could reasonably find that movant was not entitled to judgment as a matter of law, summary judgment is inappropriate. See Munson v. Safeco Insurance Co., 411 So.2d 578 (La.App. 1st Cir.1982); Johnson v. Ortego, 408 So.2d 397 (La.App. 1st Cir.1981); Clement v. Taylor, 382 So.2d 231 (La.App. 3d Cir.1980).

We note the astute observation of defense counsel that the Code of Criminal Procedure provides that criminal appellate rights cannot be lost through the omissions of clerks, that plaintiff thus suffered no harm, and that defendant is therefore entitled to (summary) judgment as a matter of law. Code of Criminal Procedure Articles 915 and 917 do indeed provide that criminal appellate rights will not be forfeited through the omissions of the clerk of court. However, the instant plaintiff is suing here not for the injury occasioned by criminal sanction. He sues instead for the civil damages allegedly incurred when he lost his job as a result of the transmittance of his conviction to the State Department of Public Safety, without an intervening opportunity to contest his conviction by timely appeal. We need not speculate how this harm occurred, nor need we speculate whether in fact there is a causal link between this loss and the alleged failure of the clerk to timely process his appeal. These are factual questions more appropriately resolved at a trial on the merits.

We accordingly reverse the trial court’s judgment sustaining the motion for summary judgment and dismissing plaintiff’s claims, and remand this cause to the district court for further proceedings not inconsistent herewith, all costs of this appeal to be assessed to defendant-appellee Town of Blanchard.

REVERSED AND REMANDED.


author: MARVIN, Judge.

text:
    Leonard J. FABIANO, Jr. dba Hobart Sales & Service, Plaintiff-Appellee, v. Bobby BRYAN, dba Bryan Catfish Farm, Defendant-Appellant.
    No. 15680-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Joseph A. Cusimano, Jr., Farmerville, for defendant-appellant.
    Jerry L. Finley, Denham Springs, for plaintiff-appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

In this action for the sales price of a water-cooled ice maker, the defendant-vendee appeals, contending that a sale never existed because he bargained for an air-cooled, and not a water-cooled, unit.

This action was filed in December 1975 and was tried in February 1980 before a district judge who left the district bench before the case was submitted. Eventually the ease was submitted to the successor district judge on the record and transcript of the earlier trial and the judgment appealed was rendered in 1983. Our review of the record in these circumstances is made independently and without the recognition and weight usually afforded to the trier of fact when credibility issues are presented. Allstate Insurance Company v. Shemwell, 142 So.2d 866 (La.App. 2d Cir.1962).

While defendant answered plaintiff’s action with only a general denial, plaintiff was given fair notice by defendant’s response to requests for admission of facts that defendant was contending that he did not contract for a water-cooled ice-maker. See Paxton v. Ballard, 289 So.2d 85 (La.1974); Townsend v. Cleve Heyl Chevrolet-Buick, Inc., 318 So.2d 618 (La.App. 2d Cir.1975).

Defendant signed plaintiff’s invoice acknowledging delivery of the ice-maker and defendant’s wife, who worked in defendant’s business, later gave plaintiff a check for the amount of the ice maker which was not honored but was returned to plaintiff because of insufficient funds. Under these circumstances, defendant has effectively asserted that the written contract of sale, and his acceptance of the delivery, installation, and, for at least four months, the operation of the ice maker, was the result of either a mistake or error on his part or the failure of the consideration on vendor’s part. In such cases, the burden of proof of the defense rests with defendant. Art. 1005, CCP.

The ice maker was delivered in August 1974. The installer of the unit, an independent contractor hired by plaintiff, testified that he discussed the advantages of the water cooled unit with defendant when it was installed and that defendant was concerned with the flow of water from the machine. Plaintiff later installed a pump to obtain water for the cooling of the machine from defendant’s pond rather than from defendant’s water well when defendant complained that the machine made too much of a demand on the water well. The check was given plaintiff by defendant’s wife on December 31, 1974.

Defendant admitted that plaintiff and the installer discussed the advantages of the water cooled unit with him before and during its installation, that he helped lift the machine to its place of installation, that he complained that the machine was too demanding on his well, and that he discussed with the installer of the pump in December 1974 why the pumping of water from his pond would not work. Defendant also admitted that he made, but never consummated, arrangements with his bank to obtain money to pay for the ice maker. Defendant’s wife admitted that she knew that the account did not have sufficient funds to cover the check when she wrote it. Plaintiff testified that the ice maker was being used when he obtained the check in December 1974. After a demand on defendant in March, suit was filed by plaintiff in December 1975.

We agree with the trial court that plaintiff has presented the more credible version and that defendant has failed in his burden.

For the reasons assigned by the trial court in an excellently supported and detailed opinion, which we have here summarized, we shall affirm the judgment.

The vendor, in answer to defendant’s appeal, seeks interest from September 2, 1974, the date the machine was installed, and seeks attorney fees under LRS 9:2781, 2782. The trial court awarded interest from the date of judicial demand. CC Art. 1938 provides that debts bear interest from the time they become due, unless otherwise stipulated. CC Art. 2553 and 2554 provide that interest on sales begins to run from the date of sale, when the price is then due, or when the seller has granted a term for payment, the interest begins at the end of that term. The ice maker was installed on September 2,1974, and payment was due at that time. Defendant argues that plaintiff only prayed for interest from the date of judicial demand and should be limited to that amount. A party’s recovery of legal interest is not limited by his prayer for relief. CCP Art. 862; Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978), footnote 6; Mathews v. Mathews, 415 So.2d 234, 237 (La.App. 2d Cir.1982). We amend the judgment to award interest from the date of the installation of the icemaker, September 2, 1974. McElroy Metal Mill, Inc. v. Hughes, 322 So.2d 822 (La.App.2d Cir.1975).

LRS 9:2781 authorizes attorney fees where the debt sued upon is an open account. LRS 9:2782 authorizes attorney fees where the suit is on an obligation created by a check which has been dishonored for nonsufficient funds. These statutes were enacted after the transaction occurred and after suit had been filed. Laws which are substantive in nature can have no retroactive application. CC Art. 8; LSA Const. Art. 1, § 23. The trial court correctly denied attorney fees.

The judgment appealed is amended to allow legal interest from September 2,1974, and as amended, is AFFIRMED.


author: MARVIN, Judge. HALL, Judge,

text:
    Joel Landis CROWSON and Anna Beth Crowson, Plaintiffs-Appellees, v. RESERVE LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 15682-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.
    Rehearing Denied Oct. 20, 1983.
    Whitehead & McCoy by Kenneth D. McCoy, Natchitoches, for defendant-appellant.
    Culpepper, Teat, & Caldwell by Bobby L. Culpepper, Jonesboro, for plaintiffs-appel-lees.
    Before HALL, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

In this action on a health insurance policy, the insurer appeals a judgment awarding the insured $951 plus attorney fees and penalties which represent the cost of her medical treatment and hospitalization following a miscarriage. We reverse.

The insurer relies on an exclusion in the limitations and exclusions section of the policy which says:

“This policy does not provide benefits for: “pregnancy, childbirth, miscarriage, abortion or any complication arising therefrom, except as provided in the ‘Maternity coverage,’ if any, issued with this Policy.”

No maternity coverage was “issued” with the policy.

The surgical benefits section of the policy, however, effectively provides that the insurer will pay the insured 16 percent of $1,000 maximum coverage (or $160) for

“dilation and currettage (nonpuerperal), and/or removal of polyps.”

The remainder of the $951 judgment included charges for hospital room ($140), miscellaneous hospital expenses ($625), physician’s visit ($10), and out-patient treatment ($16). The insurer alternatively contended that the amount that might be owed under the policy should be limited to the $160 surgical benefit.

Plaintiff’s pregnancy was confirmed by a gynecologist on October 7, 1980. Because of an incomplete spontaneous abortion or miscarriage, plaintiff was hospitalized on October 31. The dilation and currettage was surgically performed on November 1, and plaintiff was discharged from the hospital on November 2, 1980.

The gynecologist repeated the professionally accepted and dictionary definition of puerperal and his understanding of non-puerperal, but refused “to be involved in what an insurance policy covers and what it doesn’t cover.” Puerperal pertains to the puerperium which is defined as the period of confinement of the mother after childbirth or the time following childbirth that it takes the mother’s uterus to return to its normal size. Webster's Third New International Dictionary, 1971. Nonpuerperal is not defined in the several dictionaries we have examined, but obviously is the negative of puerperal.

The surgical benefits section provides coverage for a nonpuerperal D & C but not for a puerperal D & C. Because puerperal literally pertains to the period of time after childbirth, the trial court apparently considered that benefits are specifically provided for a D & C which is required before the puerperium, unless the general exclusion section, quoted above, prevails over the specific inclusion of this coverage. Appellee argues in this vein.

An insurer is required to clearly express exclusions to its insuring obligations and any doubt or ambiguity is to be resolved against the insurer and in favor of what reason and probability dictate was intended by the parties with respect to coverage. Benton Casing Service, Inc. v. Avemco Ins., 379 So.2d 225, 232 (La.1979).

The term nonpuerperal D & C was apparently intended to mean any D & C other than one required as a result of the termination of a pregnancy either by childbirth or by miscarriage. The gynecologist testified that the word “puerperal” most often is talked about “after full delivery ... but it could include after miscarriage, also.” When considered in that sense, the term “nonpuerperal D & C” does not conflict with the language of the general exclusion that no benefits are provided for pregnancy, childbirth, miscarriage, abortion, or any complication arising therefrom, unless maternity benefits are issued with the policy.

The gynecologist explained that a D & C is sometimes performed for reasons other than after termination of a pregnancy, for instance where a patient experiences abnormal uterine bleeding or for the purpose of detecting cancer in the lining of the uterus. Obviously a D & C performed other than after the termination of a pregnancy would not be a complication arising from miscarriage or pregnancy and the exclusion would not apply. Notwithstanding the literal meaning of nonpuerperal (relating to the period of time after childbirth, the puerper-ium), the policy language is not ambiguous when construed in the ordinary sense. This construction gives meaning to both the specific insuring clause and the general exclusion clause and does not create doubt or ambiguity requiring a contrary result.

This case was submitted to the trial court on a stipulation of fact and the deposition of the gynecologist. Our review in such cases is independent of any presumption of correctness on the part of the trial court. See Fabiano v. Bryan, 438 So.2d 719 (La.App. 2d Cir.1983).

At appellees’ cost, we reverse and render judgment rejecting appellees’ demands.

HALL, J., concurs and assigns written reasons.

HALL, Judge,

concurring,

I concur in the majority opinion and its reasoning. It is not necessary, however, to define the D & C surgery performed in this case as being either puerperal or nonpuer-peral. Even if it is was nonpuerperal and would otherwise be covered under the surgical benefits section of the policy, the coverage provided by the surgical benefits section is limited by the express exclusions contained in a later section of the policy. Surgical benefits otherwise provided are excluded where the surgery is required as a complication of pregnancy, childbirth, abortion, or miscarriage, as is clearly the situation here.


text:
    CALDWELL COUNTRY CLUB, Plaintiff-Appellee, v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT (Department of Public Works), Defendant-Appellant.
    No. 15683-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.

      James B. Frederick, Jr., Sharon F. Lyles, Robert W. Stratton, Baton Rouge, for defendant-appellant.
    Cameron C. Minard, Columbia, for plaintiff-appellee.
    Simon, Peragine, Smith & Redfearn by H. Bruce Shreves & Michael R. Daigle, New Orleans, for third party-defendants-appel-lees, Fidelity Fire Ins. Co.
    Don C. Burns, Dist. Atty., Columbia, for third party-defendant-appellee, Caldwell Parish Police Jury.
    Before PRICE, HALL and SEXTON, JJ.
   PRICE, Judge.

Defendant, Department of Transportation and Development (Department of Public Works) appeals from a judgment for $12,000 to plaintiff, Caldwell Country Club, as a result of improvements to a drainage channel which allegedly caused flooding and silting of plaintiff’s golf course. We affirm in part, reverse in part, and amend the judgment of the trial court for the following reasons.

Hurricane Creek is the natural drainage channel for a populated area in Caldwell Parish in the vicinity of Clarks and Gray-son, draining a residential area as well as a school complex. It flows in a southerly direction and borders the western side of plaintiff’s, Caldwell Country Club, golf course. In its original state, the drainage artery was simply a somewhat narrow, meandering creek which drained into a swampy, low area. Due to the natural condition of the creek, water drainage was impeded and the northern areas bordering the channel experienced flooding after heavy rains. At the request of the Caldwell Parish Police Jury, the Department of Transportation and Development examined the area and presented plans and specifications to improve the drainage along the creek. In February 1978, the Police Jury passed a resolution authorizing the Department of Transportation and Development to perform the proposed improvements to Hurricane Creek. The resolution provided that the Police Jury would procure all of the rights-of-way or servitudes necessary for the construction. Additionally, the resolution provided that the Police Jury would hold the Department harmless from any claims for damages arising out of the project. In December 1978, the Department contracted with McCaskill Contractors to perform the construction, entitled Drainage Improvements of L-3 of W-40 and W-40, State Project Number 567-11-02. The project basically entailed straightening and deepening of the creek and was designed for a five-year storm frequency. Originally, the excavation was planned to extend approximately seven and one-half miles, continuing approximately one mile and a half beyond the golf course. There was approximately a thirty-seven foot drop in elevation from around the beginning of the project to the swampy area. However, the project was terminated adjacent to the golf course at a point where a high pressure gas transmission line crossed the creek. It was found that the expense to lower the pipeline to permit the excavation beyond this point was not economically justified. Additionally, because the area where the project was terminated was located at the bottom of the watershed, the Department concluded that it would not be cost effective to continue the excavation as originally planned, since the improvement would not greatly reduce the probability of flooding in this low area. The excavation began in late December 1978. In January and February 1980 plaintiff experienced considerable flooding and silting over portions of the golf course following heavy winter rains. Plaintiff then brought this action seeking damages, naming the Department of Transportation and Development as defendant. The department consequently instituted a third party demand against the Caldwell Parish Police Jury, McCaskill Contractors, and American Fidelity Fire Insurance Company, insurer of McCaskill.

After a trial on the merits, the court entered judgment in favor of plaintiff against the defendant, Department of Transportation and Development, finding that the undertaken improvements had caused the flood damage to the golf course. The court declared that the hold harmless clause contained in the Police Jury resolution was a “contract of adhesion” which is unenforceable and therefore rejected the Department’s third-party demand against the Police Jury. The court further found no evidence of negligence on the part of the contractor, William McCaskill, and dismissed the third party claims against him and his insurer, American Fidelity Fire Insurance Company.

On appeal, the Department seeks reversal of that portion of the judgment finding it liable for plaintiffs damages and the rejection of its third party demand against the Police Jury. In answer to the appeal, the plaintiff requests an increase in damages and a mandamus directing the Department to continue the project to a termination point beyond plaintiff’s property as originally planned.

The aforementioned facts raise the following issues for this court:

(1) Whether the trial court was correct in finding the department liable and if so, was the amount of damages awarded to plaintiff appropriate.
(2) Whether the trial court was correct in finding the hold-harmless clause contained in the resolution was a contract of adhesion thus dismissing the Department’s third party demand against the Police Jury.
(3) Whether the trial court was correct in holding that a mandamus was an inappropriate remedy for plaintiff.

LIABILITY

The trial court found that the damage to the golf course was caused by the channel improvement and that the Department of Transportation and Development was liable under La.C.C. Art. 667. We affirm this decision finding that upon a review of the evidence, it is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Although the evidence presented at trial clearly established that the golf course did suffer somewhat severe flooding in early 1980, there was insufficient evidence to support the conclusion that the excavation and improvement to Hurricane Creek in any way contributed to or aggravated the flooding. In fact, the testimony of the expert witnesses testifying on behalf of the Department of Transportation and Development clearly established that the improvement of Hurricane Creek did not increase the amount of water channeled down to the golf course but rather increased the speed at which the water was transported to the low-lying areas. Furthermore, the testimony of these experts established that because of the location of the golf course at the bottom of a large flood plain, the heavy rains would have resulted in flooding of the course regardless of the improvements to the creek. Finally, the testimony of the witnesses on both sides regarding the history of flooding on the golf course negates a finding that the excavation of Hurricane Creek caused the flooding in January and February 1980. The testimony and evidence set forth hereinabove make it clear that the plaintiff failed to prove that the flooding was caused by or aggravated by the works on Hurricane Creek and thus is not entitled to any damages caused by the flooding alone.

While the flooding was not caused or increased by the channel improvements, the evidence supports a finding that the siltation was. The golf course had flooded on previous occasions but when the flood waters receded there was little or no siltation nor damage to the course. However, when the course flooded after the improvements to Hurricane Creek, the receding flood waters deposited up to six inches of silt on portions of the course. Although it is impossible for plaintiff to prove conclusively that the excavation of the creek caused the siltation, the circumstantial evidence establishes that it is more probable than not that the siltation was, in fact, caused by the excavation. Obviously, an excavation project such as this left considerable loose soil in and around the drainage channel. Additionally, the very purpose of the project was to increase the flow of water down the channel so as to reduce flooding which would naturally erode some soil off the freshly exposed sides and bottom of the creek. In his testimony, one of the defendant’s experts stated that the sil-tation could have been a result of the improvements. Therefore, it is more probable than not that the excavation of Hurricane Creek caused the runoff water to be more heavily laden with soil thus resulting the siltation when the flood waters receded.

La.C.C. Art. 667 provides that although a proprietor may do with his estate whatever he pleases, he cannot make any work on it which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. Although there was no evidence of substandard conduct on the part of the parish, contractor, or the Department, proof of negligence is not required to recover under the article.

In a case involving damages to a residence resulting from works on a right-of-way the Supreme Court discussed La.C.C. Art. 667 as follows:

Article 667 is therefore a limitation the law imposes upon the rights of proprietors in the use of their property. It is a species of legal servitude in favor of neighboring property, an expression of the principle of sic utere. An activity, then, which causes damage to a neighbor’s property obliges the actor to repair the damage, even though his actions are prudent by usual standards. It is not the manner in which the activity is carried on which is significant; it is the fact that the activity causes damage to a neighbor which is relevant. This being ascertained, it remains only to calculate the damage which ensued.
Chaney v. Travelers Insurance Company, 249 So.2d 181 (La.1971) at page 186.

DAMAGES

Upon finding the Department liable for the damage to the plaintiff’s golf course, the court assessed damages in the amount of $12,000. On appeal, plaintiff seeks an increase of damages to $41,487.39.

It is well-settled that upon review, the appellate court should not disturb the judge’s assessment of damages unless it is found to be a clear abuse of discretion by the trial court. Martin v. Roberts, 331 So.2d 541 (La.App. 1st Cir.1976); Ashley v. Roberts, 331 So.2d 539 (La.App. 1st Cir.1976) and citations therein.

The plaintiff established that the damages incurred were a result of the excavation. However, plaintiff’s evidence as to extent of these damages was very speculative in nature. The Club had no records or receipts to show the expenses incurred in removing the silt from the affected portions of the golf course. Rather, the evidence consisted of estimates. While this court recognizes that the Club probably lost some revenues because portions of the course were unusable for a period of time, the evidence regarding these losses was highly speculative. Furthermore, the evidence does not support a finding that the . golf course sustained any permanent damage.

In light of general insufficiency of plaintiff’s evidence concerning these damages, it is the opinion of this court that the trial court abused its discretion in awarding plaintiff $12,000. Accordingly, we reduce the amount of plaintiff’s damages to $5,000.

CONTRACT OF ADHESION

The trial court found that the hold harmless clause contained in the resolution passed by the Police Jury was a “contract of adhesion” and therefore invalid. The court stated that the Police Jury was forced to adopt the hold harmless clause in order to obtain the channel improvements and that the jury felt the clause only applied to the work of the contractor not the design or technical work by the department. Upon finding the hold harmless clause invalid, the court rejected the Department’s third party demand against the Police Jury. This finding was clearly wrong.

The Supreme Court in Golz v. Children’s Bureau of New Orleans, Inc., 326 So.2d 865 (La.1976) at page 869 defined a contract of adhesion as a “... standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party.”

The Police Jury specifically requested that the department provide its expertise, perform, and fund the channel improvements which cost in excess of $100,000. In return for these services the Police Jury agreed to obtain rights-of-way and necessary servitudes for the improvements and to hold the department harmless from any claims for damages arising out of the project. The evidence showed that the resolution was prepared by the department.

It does not appear that there was such a difference in bargaining position between the parties so as to justify the application of the principle of contract of adhesion. The acceptance of the resolution was not forced upon the Police Jury and the assumption of liability by the Police Jury for all claims of damages arising out of the project is clear and unequivocal.

In its brief, the Police Jury argues that because the improvements were not continued beyond the golf course as originally planned, it should not be held liable. The Police Jury states that the project contemplated in the resolution was never completed and the improvements on the channel in effect constituted a different project. This court finds that the work performed by the Department was substantially the same as the project contemplated by the parties at the time the resolution was adopted. The termination of the project a mile and a half short of the original design in no way altered the purpose of the project nor did it significantly affect the function of the improvements.

It must be remembered that this transaction was not a “contract” in the usual sense of the word. The Department got no benefit from the transaction whereas the Police Jury received valuable services in exchange for passage of the resolution. The obligations undertaken by the Department far exceeded the minimal obligations assumed by the Police Jury. It would be grossly inequitable to relieve the Police Jury of one of its obligations at this time.

MANDAMUS

At trial and on appeal, plaintiff requested that a mandamus issue against the Department of Transportation and Development directing it to extend the channel excavation approximately one mile and a half beyond the golf course as originally planned in the project. The trial court found that a mandamus was an inappropriate remedy in this case and this court affirms that finding.

A writ of mandamus is an extraordinary remedy set forth in the Code of Civil Procedure. La.C.C.P. Art. 3863 provides that a mandamus may be directed to a public officer to compel performance of a ministerial duty which is required by law. The jurisprudence is clear that a mandamus may not issue to compel performance of an act which contains any element of discretion, however slight. Rather, the act must be purely ministerial. See Clarco Pipeline Company v. Parish of East Baton Rouge, 383 So.2d 1296 (La.App. 1st Cir.1980), Bye v. Giarrusso, 292 So.2d 742 (La.App. 4th Cir.1974), Kamo v. Louisiana Tax Commission, 233 So.2d 592 (La.App. 4th Cir.1970), and Schwegmann Bros. Giant Super Markets v. Edwards, 323 So.2d 810 (La.App. 4th Cir.1975).

Certainly the decision of the Department as to where to terminate the improvement project contained a large element of discretion and the remedy of mandamus is clearly inappropriate.

Furthermore, the evidence shows that the continuation of the excavation beyond the golf course would not alleviate the flooding experience by plaintiff. The golf course was located in a large flood plain and the channel ended in a swamp area which was only approximately seven and one-half feet lower in elevation than the golf course. To contain water drainage, quite extensive excavation would be required and this was not felt to be cost effective by the department.

For the above reasons, the judgment of the trial court finding the Department of Transportation and Development liable is affirmed: The judgment is amended to reduce the amount awarded from $12,000 to $5,000; that portion of the judgment relieving the Caldwell Parish Police Jury of liability and dismissing the third party demand of the department against the police jury is reversed and judgment is hereby rendered in favor of defendant, Department of Transportation and Development, against the third party defendant, Caldwell Parish Police Jury for the sum of $5,000, together with all costs of these proceedings in the trial and appellate courts.


text:
    In the Matter of the Commitment of Roy Tatum SCOTT.
    No. 15767-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 1983.

      Culpepper, Teat & Caldwell by James D. Caldwell, Jonesboro, for respondent-appellant, Roy Tatum Scott.
    John C. Blake, Dist. Atty., Jonesboro, for State of Louisiana-appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

Scott appeals his judicial commitment under the Mental Health Law, LRS 28:1 et seq., to the Central Louisiana State Hospital, contending that he should have not been committed to a particular institution, that the Mental Retardation Law (LRS 28:380 et seq., effective August 1, 1983) should apply to him instead, and that in any event, the evidence taken at the hearing does not meet the statutory burden of proof under the Mental Health Law.

We agree with Scott’s latter contention, reverse the commitment, and do not reach Scott’s other contentions.

The state sought the commitment under the Mental Health Law by petition filed on March 14, 1983. The trial court appointed counsel for Scott and ordered Drs. Dennie and Kahout to independently examine Scott and to file written reports with the court pursuant to LRS 28:54(D). No reports had been filed by these doctors when the commitment hearing was held on April 14,1983.

Dr. Marouner, who was the state’s director of mental health and substance abuse programs in the northern-most 29 parishes of the state, was the only witness at the hearing. He had never examined Scott but had reviewed a “partial packet” of Scott’s records from the Feliciana Forensic Facility where Scott had been confined. He also said he had reviewed Scott’s record at the mental health center in Jonesboro. Dr. Marouner identified a letter from Dr. Ahab of the Feliciana Forensic Facility written about a month before the action was filed to a judge of the 2d Judicial District Court. This letter recommended that civil commitment proceedings be instituted against Scott. Over the objections of Scott’s counsel, the court allowed Dr. Marouner’s testimony about Scott’s mental state and thereafter rendered the judgment committing Scott.

LRS 28:55, the statute under which the state proceeded, requires the court to find “by clear and convincing evidence that the respondent is dangerous to [himjself or others or is gravely disabled, as a result of substance abuse or mental illness, ...” before rendering a judgment of commitment. Subpart E. Under the circumstances shown, the state has not met its statutory burden. At best, and even' assuming the admissibility of the contents of the Dr. Ahab letter, the mental condition of Scott after the institution of the action has simply not been shown by any [clear and convincing] evidence.

The judgment appealed is reversed and this cause is remanded with directions that the state, through the District Attorney, be ordered to reinstitute proceedings to promptly determine in accord with law, whether or not, and the degree to which, Scott may require commitment because of his mental state. Compare State v. Williams, 392 So.2d 641 (La.1980).

REVERSED and REMANDED.


author: SCHOTT, Judge.

text:
    STATE of Louisiana v. Jessie JACKSON.
    No. K 1308.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 4, 1983.
    Writ Denied Nov. 28, 1983.
    Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for relator.
    Dwight Doskey, Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for respondent.
   SCHOTT, Judge.

We grant writs on the application of the State from the trial court’s granting of defendant’s motion to quash a bill of information charging him as an habitual offender under LSA-R.S. 15:529.1. He presently stands convicted of violating R.S. 40:966, possession of heroin, and the previous conviction proffered to enhance the penalty is of a violation of R.S. 14:95.1, possession by a felon of a firearm.

No impediment exists to the use of such previous conviction for this purpose. State v. Williams, 358 So.2d 943 (La.1978) and State v. Sanders, 337 So.2d 1131 (La.1976) proscribed the enhancement of the penalty for a violation of R.S. 14:95.1 under the Habitual Offender Law, reasoning that the legislature, in enacting R.S. 14:95.1? had already built into the statute enhancement of penalty provisions which previously applied to a violation of R.S. 14:95.

However, these cases do not preclude the use of the previous felony conviction of a violation of R.S. 14:95.1 to enhance the sentence in this case for a conviction of possession of heroin in violation of R.S. 40:966.

Accordingly, the order of the trial court granting the motion to quash the habitual offender bill under R.S. 15:529.1 is annulled and set aside and the case is remanded for sentencing under the habitual offender bill.

REVERSED AND REMANDED.


text:
    Claude Lewis EVANS v. Fredna Jean EVANS.
    No. 54489.
    Supreme Court of Mississippi.
    Oct. 12, 1983.
    C.A. Henley, Jr., Jackson, Kellis Madison, Pearl, for appellant.
    Harold Leon Miller, Pearl, for appellee.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

PATTERSON, C.J., BROOM, P.J., and DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

BOWLING, J., not participating.


text:
    Joseph Leon HALL v. STATE of Mississippi.
    No. 54494.
    Supreme Court of Mississippi.
    Oct. 12, 1983.
    Thomas L. Kesler, Sams & Kesler, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lowndes County; Harvey Buck, Judge.

Before WALKER, P.J., and ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED.

PATTERSON, C.J., BROOM, P.J., DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

BOWLING, J., not participating.