author: JASPER E. JONES, Judge.

text:
    Lennie Redwine PYLATE, Appellee, v. William M. INABNET, Et Al., Appellants.
    No. 16528-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      Hudson, Potts & Bernstein, by James A. Rountree, Monroe, for appellants.
    Thompson L. Clarke, St. Joseph, for ap-pellee.
    Before PRICE, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

This is a lawsuit for damages arising from the breach of a lease agreement. The plaintiff is lessor, Lennie Redwine Pylate, and defendants are lessee, William M. Inab-net and Pioneer Investment of Tensas Parish, Inc., the assignee of the lease. The defendants also appeared as plaintiffs in reconvention, contending the lease was breached by Pylate and asking for damages resulting from that breach, for compensation for improvements to the property made by the defendants and for attorney’s fees. The defendants appeal a judgment holding them responsible for breaching the lease. The judgment awarded plaintiff eight months unpaid rent, two years unpaid taxes, compensation required to repair damage to the premises, damages for movable property removed from the premises by defendants and attorney’s fees. The defendant’s demands were rejected. Plaintiff has answered this appeal, requesting her award for rent be increased to reflect her entitlement to twenty months unpaid rental payments. We affirm in part and reverse in part.

On May 22, 1981 plaintiff and Inabnet contracted a lease agreement for a three year term commencing June 1, 1981 covering the property on which the Lake Bruin Motel & Cafe was doing business. The lease stipulates a monthly rental of $1,568.75 and does not state what day of the month the monthly rent is due. The lease requires Inabnet to pay the annual ad valorem taxes on the leased premises and provide liability insurance with limits of $100,000.00 on the leased premises naming the plaintiff as a co-insured.

The lease also stipulates the premises were in good order at the time of delivery, and requires Inabnet to return the property at the termination of the lease in the same condition as received, ordinary wear and tear, excepted. Inabnet is required by the lease to make all necessary repairs to the property, and the lease also disclaims plaintiff’s responsibility for any damage caused by any vices or defects in the leased property.

The lease provides in the event Inabnet violates any of the above stated conditions, “lessor shall have the right to declare this lease in default and to regain possession of the leased premises without further liability on the part of the lessee.” The lease also provides in the event of a breach by the Inabnet, ownership of all movables located on the leased premises used in connection with the business conducted thereon reverts to the plaintiff, and any attorney’s fees incurred as the result of a breach is the responsibility of the party cast in judgment.

On May 29, 1981 plaintiff sold Inabnet the good will, stock, merchandise, and fixtures of the Lake Bruin Motel & Cafe. Inabnet assigned his rights under the lease and the sale to Pioneer Investments on June 18, 1981. Pioneer was organized by and is principally owned by Inabnet and for this reason we shall refer to the defendants as appellant or Inabnet.

Inabnet made all rent payments between June and December, 1981, at various times during those months. However, he did not pay the taxes nor acquire the insurance on the property as required by the lease. On January 18, 1982 plaintiff sent Inabnet a letter notifying him the lease “is now null and void and of no effect,” citing Inabnet’s failure to timely pay the monthly rental and “other obligations” as grounds for rescinding the lease. Shortly after receiving this letter Inabnet attempted to pay the January rent, but his payment checks were returned, with plaintiff claiming the lease was at an end. Plaintiff made no effort to evict Inabnet until July, 1982 when the property was seized under a writ of sequestration.

In February, 1982 the State Department of Health & Human Resources (DHHR) reopened an investigation of the sewage system servicing the Lake Bruin Motel & Cafe which was begun in 1975 and continued into 1981. DHHR concluded as a result of its investigation the sewage system was defective and water was seeping from the sewer to the ground surface and into Lake Bruin. On May 25, 1982 DHHR ordered Inabnet to replace the defective sewage system with a new one which would cost over $26,000.00. Inabnet refused to comply, citing the tremendous cost of such a replacement and the pendency of this suit which had been filed by plaintiff and DHHR ordered the Lake Bruin Motel & Cafe to cease operation as of July 1, 1982. The writ of sequestration issued on July 30th, and Inabnet voluntarily abandoned the property by returning the keys through his attorney to plaintiff on August 6, 1982. No rental payments were made by Inabnet following the return to him in January of his checks tendered in payment of the January rent.

Plaintiff filed her petition on March 16, 1982, alleging Inabnet’s failure to pay property taxes, insurance premiums, rent for December, 1981 and January, 1982, and Inabnet’s failure to comply with health regulations as grounds for rescission of the lease. The original petition prayed for reimbursement of the property taxes and insurance premiums paid by the lessor, back rent, and $5,000.00 attorney’s fees. This petition was amended to include a demand for $26,959.65 for property damage done to the building on the leased property and for damages for the value of movables removed from the premises belonging to the plaintiff, and the attorney’s fee demand was increased to $10,000.00. Inabnet answered denying plaintiff’s charges and reconvened for $40,000.00 for reimbursement of defendant’s expense incurred making improvements to the property. This recon-ventional demand was amended by Inabnet demanding $70,000.00 damages for business losses caused by plaintiff’s defective maintenance of the sewage system on the leased property. The writ of sequestration was cancelled by joint stipulation of the parties on August 28, 1983.

At the trial Inabnet admitted his failure to pay property taxes and to purchase liability insurance although he contended he had never received notice that these items were due. Inabnet also testified he was unaware of the defective sewage system until such time as DHHR began investigating the system and that he abandoned the leased property in July, 1982 as the result of his business being closed down by DHHR as a result of the defective sewage system which in his opinion was beyond repair. Plaintiff testified Inabnet was aware of the defect in the sewage system at the time he took possession of the leased property and entered the lease agreement despite his knowledge of this fact.

Inabnet admitted removing from the building several items of movable property, some of which were included in the sale from plaintiff to Inabnet and some of which he otherwise purchased. Plaintiff claimed the ownership of all the movable property on the premises used in the business reverted to her upon Inabnet’s default on the lease as per the lease agreement. Plaintiff and her corroborating witnesses, mostly former employees of the Lake Bruin Motel & Cafe, all testified that Inab-net damaged the building on the leased property, particularly its ceiling and a water heater, during Inabnet’s efforts to make mostly cosmetic improvements to the building. Richard Netterfield, a general contractor engaged by Mrs. Pylate to assess the damage done to the building, testified he had examined the leased property and had determined that it would cost $1,959.65 to repair the damage done to the building.

On the basis of this testimony and the documentary evidence introduced with it the district judge found Inabnet’s actions were grounds for dissolution of the lease agreement, citing particularly his failure to timely pay the monthly rentals. Plaintiff was awarded $9,750.00 representing the value of the removed movables; $12,550.00 representing eight months unpaid rent from December, 1981 to July, 1982; $1,959.65 for the cost of the repair of damages done to the building as per the contractor’s estimate; $1,147.89 for 1981 and 1982 taxes; and $11,841.65 in attorney’s fees. Inabnet’s demands for lost profits and for the refund of sums spent on improvements to the leased property as the result of his claim for breach based on the defective sewage system were rejected for lack of evidence.

Inabnet's appeal and plaintiff’s answer to the appeal raise the following issues for the court’s consideration:

1) whether .the sewage system was in fact defective at the time the lease was contracted, and if so, whether such defect constitutes a breach of a lessor’s legal obligation to deliver leased property to her lessee in a condition suitable for the property’s intended use;
2) whether this duty to deliver can be disclaimed by the lessor and, if so, under what conditins will this disclaimer preclude an action by the lessee for breach;
3) what remedy the lessee is entitled to if the property leased is not suitable for his intended purpose;
4) whether a lessor is excused from putting his lessee in default when the lessee has passively breached the lease agreement by failing to pay property taxes when due and provide liability insurance as required by the lease by virtue of a lease provision entitling lessor to declare the agreement in default upon lessee’s failure to comply with his obligations under the terms of the contract;
5) whether a party’s failure to meet his obligations under a contract precludes his bringing a suit for damages against the other party for breach of that same agreement;
6) whether the trial judge’s award of damages for movable property removed from the premises and attorney’s fees was proper;
7) whether the plaintiff is entitled to back rent from December, 1981 until the issuance of the writ of sequestration and abandonment of the property by the defendant in July, 1982 as determined by the trial judge, or whether as plaintiff claims she is entitled to back rent until August, 1983 when the writ of sequestration was dissolved by joint stipulation of the parties; and
8) whether a lessor is liable to his lessee for-improvements made to the premises by the lessee.

DEFECTIVE SEWAGE SYSTEM

Appellant contends the sewage system was defective at the time the lease contract was executed and the plaintiff was aware of this fact at the time the contract was made. Inabnet contends he was unaware of this fact until the beginning of the investigation by DHHR in 1982. Inabnet claims the failure of the sewage system to function properly resulted directly in the closing of the Lake Bruin Motel & Cafe, thus rendering the leased property unfit for its intended purpose and for this reason plaintiff breached her obligation to deliver the leased property to him in a condition suitable for its intended use. Plaintiff argues no such duty exists, and even if such an obligation existed, the lease provisions requiring Inabnet to make all necessary repairs and which stipulates the premises are in good order at delivery eliminate any legal duty imposed on plaintiff as these provisions constitute a representation by Inabnet that he assumes all potential defects of the leased premises. Plaintiff contends the trial judge was correct in her factual determination that no such defect existed at the time the lease was made and in the event a defect did exist Inabnet was aware of any potential defect at the time he entered into the lease contract.

John Hicks, Regional Sanitarian for DHHR, testified at trial on these matters. He stated plaintiff was aware of a sewage problem on the leased property as early as April, 1975, when DHHR informed plaintiff the system would not function because of soil conditions. Complaints from neighbors of sewage seeping up to ground surface and into Lake Bruin between 1976 and 1979 resulted in several other incidences of notification to plaintiff from DHHR that the sewage system on the property was unsatisfactory. Plaintiff was reinformed of the defective condition in April, 1981 when DHHR determined that the sewage system was failing perculation tests.

Hicks testified DHHR began reexamination of the system on the property in February, 1982 and DHHR sent Inabnet a letter to this effect on February 26th. On March 9, 1982 DHHR sent Inabnet another letter ordering Inabnet to replace the septic tank and field line system in place with an extended aeration package which, according to estimates submitted by McMannus Construction Company, would cost over $26,000.00. Hicks testified DHHR sent another notice to Inabnet on May 25, 1982, threatening closure of the Lake Bruin Motel & Cafe if Inabnet failed to comply with DHHR’s previous order. Citing the pend-ency of this litigation and the cost of the replacement project, Inabnet asked DHHR for a ninety day extension to comply with the order. This request was turned down on July 1, 1982, and on that date DHHR ordered Inabnet to cease operations.

Plaintiff testified she knew the sewer was not working properly and was aware of her five to six year dispute with DHHR over the sewage system prior to her making the lease agreement with Inabnet. Plaintiff admitted she knew the DHHR required a new sewage system on the premises prior to her making the lease with Inab-net and she never informed Inabnet of this fact. She testified she informed Inabnet of a problem with the sewage system, but she also stated that she advised him the problem was minor and all Inabnet needed to do was keep the lines clean and free of obstruction in order to avoid any problem.

The sewage system was defective at the time of the lease agreement and plaintiff was aware of this fact. She failed to notify the lessee of the serious defect.

Contrary to plaintiffs assertion that a lessor does not warrant his property against defects and that his only obligation is to notify his lessee of a potential defect, LSA-C.C. art. 2695 states lessor’s warranty obligation to be: “The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in the case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they had arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”

This warranty can be disclaimed in the lease contract and such a waiver of warranty is not against public policy. Tassin v. Slidell Mini-Storage, Inc., 396 So.2d 1261 (La. 1981). However, this case holds that such disclaimer must be in clear, unequivocal language and is of no effect when the lessor knows or should have known of the defect prior to the confection of the lease agreement and has taken no steps to remedy this defect.

A lessee’s representation in a lease that he takes the property “as is” does not constitute a waiver of the warranty imposed by Article 2695. Reed v. Classified Parking System, 232 So.2d 103 (La. App. 2d Cir.1970). A lease provision requiring the lessee to make all necessary repairs is not a valid disclaimer of lessor’s warranty obligation. Houma Oil Co., Inc. v. McKey, 395 So.2d 828 (La.App. 1st Cir. 1981); Moity v. Guillory, 430 So.2d 1243 (La.App. 1st Cir.1983). A clause stating lessee accepts the property in “first class condition” and ending with the lessee’s promise to return the property in that first class condition is not a valid waiver of lessor’s warranty obligation. Moity v. Guillory, supra.

In Moity a lessor alleged the lessee breached the lease by moving out and sought unpaid rent, late rental charges, lease deposit, and the cost of restoring the leased premises. The lessee reconvened, asking for termination of the lease on the grounds the property was unfit for its intended use. The property leased was a residence which was in horrendous condition at the time the lease was executed; the premises had no plumbing, no heat, no hot water, several windows were broken and the roof leaked. The residence was not fit for its intended purpose which was human habitation. Despite his knowledge of some of these conditions defendant signed the lease agreement, partially because he was desperately in need of a place to live and partially because he believed he could fix the place up with reasonable effort. The defendant abandoned the leased premises after failing in a six month effort to repair the defects. At a trial on this matter Moity, the defendant in reconvention, availed himself of most of the defenses asserted by the lessor in the instant case — that the lease agreement provides a waiver of the fitness warranty; that the lessee acquiesced in the lease by continuing to live on the premises for six months after being made aware of the defective condition; and that lessee, by failing to notify the lessor of the defects thereby lost his right to bring suit against the lessor for these defects. The trial court rejected all these contentions, denied the plaintiff’s claims against his lessee, and awarded defendant termination of the lease and a refund of his rent deposit. This judgment was essentially affirmed on appeal.

A lessee has the right to abandon the leased premises without having to pay rent for the unexpired term of the lease and is immediately entitled to sue for cancellation and/or for damages when either the lessor already knows about the defect and refuses to do anything about it or when the defect is so severe that it renders the property totally unfit for its intended use. Freeman v. G. T. S. Corp., 363 So.2d 1247 (La.App. 4th Cir.1978); Mecca Realty v. New Orleans Health Corp., 389 So.2d 403 (La.App. 4th Cir.1980). See also Brignac v. Boisdore, 272 So.2d 463 (La.App. 4th Cir.1973); affirmed, 288 So.2d 31 (La.1973).

Plaintiff had an obligation to deliver the leased property to Inabnet free of the serious plumbing defect and her failure to do so constitutes a breach of her obligation implicit in the lease agreement by virtue of LSA-C.C. art. 2695. Nothing in the lease agreement constitutes a disclaimer or a waiver of this obligation. Even if the provisions of the lease could be construed to contain such a waiver it would have had no legal effect because plaintiff had knowledge of the defective sewer system at the time the lease was executed and failed to correct the defect LSA-R.S. 9:3221, Tassin v. Slidell, supra. The serious sewage defect rendered the leased property totally unfit for its intended business purpose, and not only did plaintiff, who was aware of this defect long before the lease was entered into, do nothing to remedy the situation, she failed to notify her lessee of the serious problem. These circumstances relieve Inabnet of any obligation he had to notify his lessor of the problem and ask her to repair the defect. The seriously defective condition of the sewage system also constitutes “a serious disturbance of possession” which entitled the lessee to dissolution of the lease.

INABNET’S FAILURE TO PAY PROPERTY TAXES AND SECURE LIABILITY INSURANCE

Plaintiff breached the lease agreement by violating the warranty of fitness implicit in this lease agreement. Inabnet violated the terms of the lease by failing to pay property taxes and provide liability insurance on the leased premiums as required, by the expressed provisions of the contract. Inabnet testified he did not know when these items were due; however, he admitted he was aware that the lease required him to pay the taxes and provide the insurance and he admitted his failure to do so. Counsel for appellant asserts repeatedly in brief that Inabnet’s breach of the contract is not an issue in dispute. At issue, according to the appellant, is whether Inabnet’s failure to comply with these requirements is actionable as a passive breach of contract without the lessor having put the lessee in default.

LSA-C.C. art. 1911 specifies that a party who breaches a contract can be put in default “by the terms of the contract, when it specially provides that the party, failing to comply, shall be deemed tp be in default by the mere act of his failure.”

The instant lease provides: “Should lessee at any time violate any of the conditions of this lease, or fail to comply with any of lessee’s obligations hereunder, or fail to pay the rent, water bill or similar charges punctually, at maturity, as stipulated ... lessor shall have the right to declare this lease in default and to regain possession of the leased premises without further liability on the part of the lessee.”

In Investor Inns, Inc. v. Wallace, 408 So.2d 978 (La.App. 2d Cir.1981) this court construed the following paragraph in a lease agreement:

“If lessee should default in payment of any two consecutive installments of rent, lessor may at its option declare all remaining installments of rent due and eligible and bring suit to enforce collection thereof or may demand a cancellation of his lease and of all rights and obligations of the parties hereunder.”

The court held this provision provided for a contractual placing in default when the lessee missed two rental installments. Under these circumstances this court held that under the provisions of LSA-C.C. art. 1911(1) no formal placing in default was required as a prerequisite to filing an eviction proceeding.

The contractual default provision in the Wallace case and the quoted provision of the Pylate-Inabnet lease are conceptually identical. “Regaining possession of leased premises” is essentially the same thing as “cancellation of this lease.” Moreover, the payment of taxes and providing the insurance, which were conditions of this lease, was declared by the express terms of the contract to be a part of the rent. The taxes were due January 1st and were past due at the time of the January 18th demand letter written by Pylate to Inabnet. Inabnet’s duty to provide the liability insurance had been in existence since the day the lease was executed. In the case of Bray v. Arthur Treacher’s Fish & Chips, 409 So.2d 1274 (La.App. 2d Cir.1982) this court found the failure of a lessee to provide insurance required by the lease entitled the lessor to cancel the lease. Inab-net was in contractual default for failure to pay these taxes and for failure to buy liability insurance naming the lessor a co-insurer as required by the lease.

We conclude Inabnet had breached the lease in these respects and no prior placing in default was required for the plaintiff to demand termination of the lease.

MUTUAL BREACH

Plaintiff and Inabnet are each at fault in causing the termination of the lease agreement. Each were in default. Neither are entitled to specific performance of the agreement. Pratt v. McCoy, 128 La. 570, 54 So. 1012 (1911); Seeger v. Seeger, 169 La. 611, 125 So. 732 (1929); Danziger v. Tessitore, 13 La.App. 450, 126 So. 700 (Orleans 1930); Williams Lumber Co. v. Stewart Gast & Bro., 21 So.2d 773 (La. App. Orleans 1945); Pennington v. Drews, 218 La. 258, 49 So.2d 5 (1950). Penalty damages which are synonymous with liquidated damages which are agreed upon in the contract and which are designed to enforce the principal obligation cannot be collected where there exist a legal excuse for the nonperformance of the principal obligation. Godchaux v. Hyde, 126 La. 187, 52 So. 269 (1910); Danziger v. Tessitore, supra; Pennington v. Drews, supra; Associates Commercial Corp. v. Bayou Management, 426 So.2d 672 (La.App. 1st Cir.1982); Moity v. Guillory, supra.

An agreement to pay attorney fees upon breach of a contract is an agreement to pay liquidated damages. Guaranty Bank & Trust Co. v. Quad Drilling Corp., 284 So.2d 351 (La.App. 1st Cir.1973).

The agreement in the lease by Inabnet to forfeit to the plaintiff all movable property belonging to him on the leased premises and used in the motel, lounge and restaurant business in the event he defaulted is also a provision for liquidated damages in the event of breach. Because of plaintiffs breach of the primary obligation under the contract she was not entitled to the award of the penalty damages for the value of Inabnet’s movable property which he removed from the leased premises nor was she entitled to the attorney fee award.

Inabnet’s breach of the lease deprives him of any right to seek attorney’s fees from Pylate.

Though plaintiff’s breach of the lease deprives her of the right to collect penalty damages, she retains the right to enforce the collection of compensatory damages. In Williams Lumber Co. v. Stewart Gast & Bro., supra, plaintiff, who had breached a contract to deliver a large quantity of lumber, was found entitled to receive the price for lumber actually delivered. In Moity v. Guillory, supra, a lessor, who had breached the warranty of fitness and was denied specific performance of the lease and a rent deposit designed as a penalty to enforce this obligation, was found entitled to the rent for the period the lessee actually occupied the premises. In Freeman v. G. T. S. Corp., supra, a lessor, who breached the warranty of fitness and was denied the right to enforce the lease and, collect the rent for the unexpired term, was found entitled to the rent during the period the lessee actually occupied the leased premises. In the case of Associates Commercial Corp. v. Bayou Management, supra, a lessor who breached a lease by refusing unreasonably to consent to a sublease, was denied early termination penalty provided for in the lease but was found entitled to the rent following the breach for the period of time the premises was occupied by the lessee.

The district judge’s award for rent covers the period from December 1, 1981 through July, 1982 at the rate of $1,568.75 per month for a total sum of $12,550.00. Plaintiff claims the proper compensation for rent should include all rent payments unpaid until August, 1983 when the property was returned to Pylate’s possession by joint stipulation of the parties. Plaintiff cites Inabnet’s refusal to return the leased property when put in default and the closing of the Lake Bruin Motel & Cafe as a result of Inabnet’s action depriving Pylate of the use and benefit of the leased property until August, 1983 as grounds for the increased award.

A lessee’s liability for rental payments ceases upon his eviction from the leased premises by virture of a writ of sequestration obtained on the leased property. Pirkle & Williams v. Shreveport Jitney Jungle, 140 So. 837 (La.App. 2d Cir.1932).

Plaintiff’s contention is therefore without merit because she evicted Inabnet on July 30, 1982 by seizing the leased premises.

The record established that Inab-net occupied the premises through July and that he had not paid the rent for the last seven months. Contrary to the trial judge’s finding the evidence establishes he paid December’s rent. Plaintiff is entitled to the unpaid rent while Inabnet occupied the premises which is the sum of $10,-981.25.

Plaintiff’s claim of $1,965.00 for actual damages which Inabnet did to the leased premises was supported by the record. The need for the repair of these damages and the cost of the repairs were established by the testimony of Richard Netterville, a contractor, and by documents and pictures offered in connection with his testimony. We find no manifest error in this trial court determination and plaintiff is entitled to the sum of $1,969.00 as compensatory damages as the cost to repair the leased premises.

IMPROVEMENTS

Inabnet testified at trial he spent over $47,000.00 improving the leased property and submitted extensive documentation of this fact as an offer of proof. The sum of the Inabnet’s testimony is that most of these improvements consisted of the following: placing of awnings over the windows on the building, complete renovation of the bar inside the lounge, removing air-conditioning ducts inside the building and placing them on the roof, placing new carpeting and a new hardwood floor in the lounge, putting wallpaper on the walls, installing a new ceiling, and installing new-lighting and a chandelier in the lounge. While Inabnet stated he spent some money to replace broken windows, to fix the plumbing in a bathroom, to fix a few air-conditioning units in the motel, and to fix a stove in the restaurant, by his own admission most of the work done by Inabnet was for cosmetic purposes. Inabnet admitted the building and the fixtures were usable at the time he took possession of the premises and his primary purpose for making the extensive changes to the building was to make the building, particularly the lounge, look like “The Back Seat,” a lounge in Monroe. A review of the documentary evidence contained in the offer of proof supports a conclusion that over 90% of the expenditures made by Inabnet were for these cosmetic improvements.

Freda Womack, former manager of the Lake Bruin Motel, testified the facility was entirely usable and in good working condition and that none of the improvements were required to place the leased property in a usable posture. We note this facility was constructed in 1975 and there should have been no extensive deterioration in the few years that elapsed between the time it was built and the date of the lease. Mrs. Womack also testified, as did several other former employees of the Lake Bruin Motel & Cafe, that although plaintiff was continually aware of Inabnet’s efforts to remodel the property, she was opposed to his actions throughout and she repeatedly voiced her opposition to Inabnet’s actions. Inab-net denied plaintiff opposed his work to improve the leased premises. Plaintiff made no effort to stop the work. We conclude she consented to the improvements.

A lessee is entitled to make improvements and repairs which are necessary to place the property in a condition to be used for its intended purpose, and the lessee is entitled to compensation for such works. LSA-C.C. art. 2694; Walters v. Coen, 223 La. 912, 67 So.2d 175 (1953). If Inabnet had spent $26,000.00 replacing the defective sewer system this would have been an expense which he would have been entitled to recover under this rule from the plaintiff. However, this rule is inapplicable to the case at hand since the evidence establishes most of the improvements here must be considered cosmetic rather than necessary. Some of the funds expended by Inabnet were for normal maintenance which he was obligated to perform by the terms of the lease.

Ownership of and reimbursement for nonessential improvements made by the lessee to leased property is governed by LSA-C.C. art. 2726: “The right of the lessee to remove improvements and additions he has made to the thing let is governed by LSA-C.C. art. 493.” Article 493 provides in turn:

“Buildings, other constructions permanently attached to the ground and plantings made on the land of another with his consent belong to him who made them. They belong to the owner of the ground when they are made without his consent. Things incorporated in, or attached to an immovable so as to become its component parts ... belong to the owner of the immovable.
One who has lost the ownership of a thing to the owner of an immovable may have a claim against him or against a third person in accordance with the following provisions.”

These “following provisions” include LSA-C.C. art. 495, which outlines the remedy available to someone who incorporates or attaches to an immovable things that become its component part.

The rules contained in LSA-C.C. art. 495 were formerly contained in LSA-C.C. art. 2726. In the case of Abbeville Lbr. Co. v. Richard, 350 So.2d 1292 (La. App. 3d Cir. 1977) the court held that former LSA-C.C. art. 2726 gave the lessee in a lease contract which required him to return the leased premises to the lessor in the same condition received by him, the right to remove the improvements provided he left the premises in the state it was in when he received it. If the improvements were made with lime and cement under former LSA-C.C. art. 2726 the lessor could elect to retain them upon paying a fair price. The present LSA-C.C. arts. 493 and 495 have changed the wording of being attached with lime and cement to becoming a component part of the immovable but the concept remains the same. The right of a tenant to claim reimbursement from the lessor in an appropriate case is not terminated by virtue of a breach of the lease or by his abandonment of the leased premises. Leake v. Hardie, 245 So.2d 729 (La.App. 4th Cir.1971); Walters v. Coen, supra.

In Riggs v. Lawton, 231 La. 1019, 93 So.2d 543 (1957), the court held a lessee cannot force a lessor to compensate the lessee for improvements left on the property where there is no attempt to remove such improvements. In Taylor Lumber Company, Inc. v. Fuller, 292 So.2d 878 (La.App. 1st Cir.1974), the lessee left a slab of concrete placed by him on the leased premises upon the termination of the lease which the lessor thereafter used in connection with his sawmill business. The lessee contended the use of the slab by the lessor constituted an election to retain it under former LSA-C.C. art. 2726 (a concept now in LSA-C.C. art. 495) which required the lessor to pay for the improvements. The court rejected this contention and stated:

“The jurisprudence clearly indicates that a lessee who makes improvements to leased premises with lime and cement, does so at his own risk knowing that he cannot compel lessor to pay the value of such improvements which lessor may elect not to retain. Consequently, if a lessee leaves such improvements in a position and condition so that the lessor may not resume lessor’s prior operations without using the improvements, the mere resumption of business with such use does not per se constitute an appropriation an use tantamount to an election to retain. Under the circumstance, we find that lessor made his election in a response to lessee’s reconventional demand wherein lessor opted that lessee remove the slab.”

Inabnet had a right to remove improvements placed on the leased premises provided he left the premises in the condition in which he received it. He did not move the improvements which had for the most part become a component part of the leased premises. Plaintiff could have elected to retain them and pay for them in the manner provided for in LSA-C.C. art. 495. There is no evidence plaintiff made an election to retain the improvements. Plaintiffs use of her property which necessarily results in the use of improvements placed upon the premises by Inabnet and not removed by him does not constitute an election by her to retain the improvements within the contemplation of LSA-C.C. art. 495 and her use of the improvements under these circumstances does not make her liable to pay for them. Taylor Lumber Co. v. Fuller, supra. Inabnet’s conduct of making improvements to the leased premises and abandoning them upon the termination of the lease does not result in plaintiff being required to pay for them. Riggs v. Lawton, supra.

Inabnet defaulted in the performance of his obligations under the lease. He acquiesced in his constructive eviction by virtue of the defective sewer without making demand upon plaintiff to correct the defect. He abandoned the leased premises without making any effort to remove any improvements from the leased premises. He has not established that he sought plaintiffs permission to remove any improvements which could have been removed without damage to the premises and been denied the right to remove them. He has not established that plaintiff elected to retain the improvements and pay for them. All of these circumstances establish that Inabnet had not proved he is entitled to any indemnity from plaintiff for the expenses he incurred in making improvements to the leased premises.

CONCLUSION

For the reasons assigned we have concluded that plaintiff is entitled to the rent for the seven month period that Inabnet occupied the premises from January, 1982 through July, 1982, which he has not paid, at the monthly rate of $1,568.75, which results in the total unpaid rent being $10,-981.25.

Plaintiff is also entitled to the prorated ad valorem taxes for the portion of 1981 and 1982 that are designated as rent by the lease, the amount of which is $1,147.89. Plaintiff is also entitled to the sum of $1,959.65 which it will cost to repair the damages done to the leased premises by Inabnet.

Plaintiff is entitled to no award for the value of Inabnet’s movables which he removed from the leased premises nor is she entitled to an attorney fee award.

All Inabnet’s claims for damages were rejected by the trial court and on appeal he only sought cost of improvements made to the leased premises and attorney fees and he is entitled to neither.

We REVERSE AND SET ASIDE the judgment of the trial court dated February 3, 1984 and the amended judgment dated February 8, 1984 and recast the judgment to read as follows:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the lease between Lennie Redwine Pylate and William M. Inabnet dated May 22, 1981, including the option to purchase therein contained, which was assigned to Pioneer Investments of Tensas Parish, Inc., is declared canceled and of no further legal effect.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Lennie Red-wine Pylate and against William M. Inab-net and Pioneer Investments, of Tensas Parish, Inc., in the amount of $14,088.79, together with legal interest ^from date of judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all demands of William M. Inabnet and Pioneer Investments of Tensas Parish, Inc., are rejected.
All costs of these proceedings are assessed equally between plaintiff and defendants.”

      . LSA-R.S. 9:3221. Assumption of responsibility by lessee; liability of owner
      The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

      . LSA-C.C. art. 495. Things incorporated in, or attached to, an immovable with the consent of the owner of the immovable
      One who incorporates in, or attaches to, the immovable of another, with his consent, things that become component parts of the immovable ... may, in the absence of other provisions of law or juridical acts, remove them subject to his obligation of restoring the property to its former condition. If he does not remove them after demand, the owner of the immovable may have them removed at the expense of the person who made them or elect to keep them and pay, at his option, the current value of the materials and of the workmanship or the enhanced value of the immovable.

      . Former LSA-C.C. art. 2726. Improvements and additions made by lessee, removal or compensation
      The lessee has a right to remove the improvements and additions which he has made to the thing let, provided he leaves it in the state in which he received it.
      But if these additions be made with lime and cement, the lessor may retain them, on paying a fair price.


source: Caselaw Access Project

author: WALKER, Presiding Justice,

license: Public Domain

text:
    Alex Jackie PEARSON v. Linda Ann PEARSON.
    No. 54361.
    Supreme Court of Mississippi.
    Sept. 26, 1984.
    Rehearing Denied Nov. 14, 1984.

      William Carl McGehee, Jr., Edwin E. Kerstine, Natchez, for appellant.
    David W. Hall, Riley, Pintard & Hall, Natchez, for appellee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   WALKER, Presiding Justice,

for the Court:

Alex Pearson, appellant, filed a petition for a writ of habeas corpus in the Chancery Court of Wilkinson County, Mississippi, seeking to enforce his custody rights granted to him in a divorce decree entered in the District Court of Cameron County, Texas. The chancery court, after hearing evidence on the writ and cross-bill filed by appellee, Linda Pearson, denied appellant’s writ and modified the Texas decree granting Linda custody of Walter Vincent Pearson, born May 5, 1977 and Jessica Lynn Pearson, born September 7, 1978. Aggrieved with the lower court’s holding, the appellant has perfected an appeal before this Court.

Alex Jackie Pearson, a chief petty officer with the United States Coast Guard, and Linda were married on February 16, 1974. Of this union, the couple had two children, Walter and Jessica. Linda also had a daughter, Tanya, age ten at the time of trial, from a former marriage.

Mr. Pearson’s position with the Coast Guard required the couple to relocate on several occasions during their marriage. While the couple was stationed in Brownsville, Texas, in December 1980, Linda abandoned her family including her child, Tanya, and began living with a man named Pat Brewer. Sometime after her relation ended with Brewer, she sought the company of a man named Lonnie who lived with her until December of 1981, two months prior to trial.

Upon appellant’s petition, the couple was divorced May 11, 1981 in the State of Texas. Mrs. Pearson waived service of process and entry of appearance at the hearing. Appellant was appointed as managing conservator of the children and Linda was named possessory conservator with reasonable rights of visitation. According to appellant, Linda did not seek modification of the divorce decree until the time of this trial.

Following the divorce, Alex cared for his two children as well as Tanya, who was not his child, until she was returned to Natchez, Mississippi, the home of her grandparents. Linda kept in contact with the children and Alex, and visited with them approximately seven times during the eight months following the divorce.

In November of 1981 Linda first learned that Alex would possibly be transferred from Port Arthur, Texas to Hawaii. In February of 1982 Alex notified Linda that his transfer plans were definite and invited her to visit the children. On February 6 Linda and Tanya visited with Alex and the children in Port Arthur. After depositing her suitcase in Alex’s home, she asked permission to take the children shopping for some new clothes. Reluctantly, Alex consented to the shopping trip. Instead of taking the children shopping, Linda placed them in her car and drove them to her parents’ home in Natchez, Mississippi, refusing to surrender them to the appellant.

The appellant thereafter employed counsel and filed his petition for writ of habeas corpus invoking his rights to custody of the children under the Texas divorce decree. Linda filed her cross-bill seeking custody of the children on the basis that there had been a material change in circumstances. A hearing was held and at the conclusion the chancellor modified the Texas decree with regard to custody and granted custody of both minor children to Linda.

In our opinion the chancellor erred for two reasons. First, after hearing the evidence with regard to the conduct of Linda in going to Texas, and in violation of the criminal laws of Texas and the divorce decree of the Texas courts, surreptitiously returning the children to Mississippi, the chancery court should have sua sponte dismissed the appellee’s cross-bill seeking modification of the Texas decree as to the custody of the children. In Taliaferro v. Ferguson, 205 Miss. 129,143, 38 So.2d 471, 473 (1949), we said:

A court of equity will never interfere and lend its aid to one whose own conduct in connection with the same transaction has been so unconscientious and unjust, and has so violated the principles of equity and righteous dealing which it is the purpose of the very jurisdiction of the court to sustain.

Jessica and Walter should have been returned to the appellant immediately absent any urgent circumstances which would necessitate a modification of the Texas decree. In this case there were none. The chancellor found appellant was and had been a good parent to the children and commended him for the manner in which he had taken care of them.

Second, the chancellor erred in his ruling that there had been a change in circumstances which would adversely affect the children. He based this on the fact that the appellant was being transferred to the State of Hawaii and that this would have the effect of depriving the appellee of her visitation rights as provided for under the Texas decree, inferring, without so stating, that this would adversely affect the children.

We are of the opinion and hold that where one spouse has custody of children under a divorce decree and their employment or livelihood requires that they move or be transferred to another state of this nation, that this does not constitute a change in circumstances which would adversely affect the children, under ordinary conditions, even though it might cause a hardship on the other spouse with regard to existing visitation privileges. The fact that Hawaii or Alaska happens to be the state of transfer is of no consequence. See Cheek v. Ricker, 431 So.2d 1139 (Miss. 1983); Brocato v. Walker, 220 So.2d 340 (Miss. 1969).

The judgment of the lower court is reversed and the appellee, Linda Ann Pearson, shall forthwith make the children, Walter Vincent Pearson and Jessica Lynn Pearson, available to the appellant, Alex Jackie Pearson, and the lower court shall enforce this order with all of its authority.

REVERSED AND RENDERED.

ROY NOBLE LEE, P.J., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.

      . Parent who retains primary custody of a child. Tex. [Fam.] Code Ann. § 14.02 (Vernon 1974).

      . Parent who has limited possession of or access to a child as designated by court decree. Tex. [Fam.] Code Ann. § 14.04 (Vernon 1975).

      . The Uniform Child Custody Jurisdiction Act, Mississippi Code Annotated sections 93-23-1 through 93-23-47, effective July 1, 1982, in part addresses the court’s role in exercising its jurisdiction over a foreign custody decree wherein a non-custodial parent improperly removes a child from a parent having custody or improperly removes a child from a parent having custody or improperly retains a child after a visit or temporary relinquishment of physical custody.


author: SAVOIE, Judge.

text:
    William J. MOSS v. Anthony J. GUARISCO, Sr., Sam C. Barbera, Jr., General Motors Corporation, Pontiac Motor Division, Guarisco Motor Company, Inc. and Guarisco-Barbera Pontiac-Cadillac-GMC, Inc.
    Nos. 83 CA 0973, 83 CA 0974.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Rehearing Denied Nov. 21, 1984.
    Writ Denied Jan. 25, 1985.

      Peter P. Piccione, Lafayette, and John E. Conery, Conery & Breaux, Franklin, for plaintiff.
    Nathan A. Levy, Jr., Joseph R. Streva, Jr., and Lawrence Burleigh, Levy & Bur-leigh, Morgan City, for Anthony Guarisco, Sr.
    George H. Robinson, Jr., Liskow & Lewis, Lafayette, for General Motors Corp.
    Jerome J. Barbera, III, Thibodaux, for Guarisco-Barbera Pontiac-Cadillac-GMC and Sam J. Barbera.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

Appellant, Anthony J. Guarisco, Sr., appeals the decision of the trial court in these consolidated cases for breach of contract brought by appellees, William J. Moss and Guarisco-Moss Motors, Inc.

These cases were previously before this court when Moss appealed the trial court’s sustaining of the peremptory exception of no cause of action as to defendants, General Motors Corporation, Pontiac Motor Division, Sam C. Barbera, Jr., Guarisco-Barb-era Pontiac-Cadillac-GMC, Inc., and Guaris-co Motor Company. The only remaining defendant was Guarisco as to the breach of contract issue. At that time, the suits alleged breach of contract, inducement to breach contract, and illegal conspiracy in restraint of trade. This court affirmed the trial court’s ruling and remanded the case solely for trial on the issue of breach of contract of the Moss-Guarisco buy-sell agreement as to Guarisco.

FACTS

Anthony and John Guarisco each owned fifty percent of Guarisco Motors, Inc. in Morgan City, a franchised dealership for Pontiac, Cadillac and GMC. John held the franchise. In early 1978, Pontiac encouraged them to sell the dealership. All contact with General Motors concerning the dealership was handled through the Pontiac division in Memphis, Tennessee.

William Moss, sales manager for Service Chevrolet, Inc. of Lafayette, was interested in acquiring his own dealership and with his employer’s permission was looking for one. Moss learned of the possible sale of Guarisco Motors and contacted Anthony Guarisco in early 1978 about purchasing that dealership. At that time, Guarisco advised Moss that the dealership would be for sale in the near future and suggested that he remain in contact. In August, 1978, Moss was informed by Guarisco that he had to buy out his brother’s interest before he could formally act. Guarisco did agree to negotiate with Moss in the meantime. Moss then contacted Pontiac regarding the requirements for a transfer of the franchise from Guarisco to him. Pontiac informed him that a formal application accompanied by a written buy-sell agreement between Moss and Guarisco would have to be submitted for approval.

Moss and Guarisco met several times in October to discuss details of Guarisco’s sale of the dealership to Moss. These discussions resulted in a formal buy-sell agreement, a copy of which Moss delivered to Guarisco at the dealership on October 18, 1978. Since Guarisco and his brother, John, were to formalize their partition on October 20, thus making Guarisco 100% owner of the dealership, Guarisco signed the agreement on October 19, but dated it October 20, 1978. (The partition was finalized on November 3,1978.) Moss also submitted documents for the formation of the corporation called for in the buy-sell agreement, but Guarisco never signed them. The buy-sell agreement was recorded in the St. Mary Parish public records on October 23, 1978. In accordance with the buy-sell agreement, Moss deposited $50,000 into Guaranty Bank and Trust Company of Morgan City on October 23, 1978.

Meanwhile, Barbera had been discussing with Guarisco the acquisition of the dealership. On October 13, he met with Pontiac officials in Memphis to discuss the matter. He had a letter of intent from Guarisco, dated October 11, 1978, to sell the dealership to him, Barbera. Apparently, all persons who inquired about the dealership were given similar letters.

On October 20, 1978, Moss telephoned Pontiac to inform them that he had mailed the application that day. The Pontiac zone business manager who handled applications for new dealerships took the call and set up an appointment for Moss to go to Memphis to discuss his qualifications. This Pontiac representative called Guarisco that day to inform him of Moss’ application. Guarisco told the representative that he also wanted Barbera to be considered and that application would be submitted soon.

At this point, it is necessary to understand Pontiac’s role and the manner in which a franchise is awarded. Pontiac had the absolute right to decide to whom a franchise will be awarded and unless Pontiac approved an applicant, there could be no sale of a dealership to that.applicant. All of the parties were aware of this at all times. Normally, however, it was Pontiac’s policy to have the present franchise holder recommend the applicant he preferred. If that applicant was acceptable, the franchise was awarded to him regardless of the qualifications of the other applicants. Moss was unaware of this policy and Guarisco’s knowledge is unclear. Since Guarisco had also expressed an interest in Barbera, Pontiac returned Moss’ application, unopened, on October 23, 1978, and called to inform Moss of their action.

Subsequently, Guarisco went to Memphis to confer with Pontiac. Guarisco told the representative that he had signed a buy-sell agreement with Moss, but he did not consider it binding. Pontiac again requested Guarisco to submit the name of the applicant he preferred. Later, on November 6, Guarisco wrote Pontiac to withdraw Moss’ name from consideration and to state his preference for Barbera. Barbera, who was unaware of the Moss-Guarisco agreement, submitted his application and the Barbera-Guarisco buy-sell agreement dated November 17, 1978, to Pontiac. Eventually, the franchise was awarded to Barbera. In January, 1979, Guarisco and Barbera formed a corporation pursuant to their buy-sell agreement and operation of the new dealership was begun.

Moss filed suit on December 22, 1978 against Guarisco after Guarisco refused Moss’ written demand for performance of the October 20, 1978 buy-sell agreement. Notice of lis pendens was filed in the St. Mary Parish public records simultaneously with the suit.

In anticipation of acquiring the Morgan City dealership, Moss quit his job with Service Chevrolet effective October 18, 1978. In 1977, Moss earned $31,865.00, had the use of an automobile and its expenses, an expense account, an opportunity to purchase family vehicles at cost and several other benefits. During his employment in 1978, he earned $45,398.00 and had the same benefits. He was unemployed from October 18,1978 until he opened the Honda franchise in Lafayette known as Moss Motors, Inc. in December, 1979. Since that time, he has added several other franchises to that dealership and has been quite successful. As the result of that success, he has become involved in several other business interests which include the purchase of a condominium in Florida and the possible acquisition of a Jaguar dealership in Florida. At the time of trial, he was negotiating for a Chevrolet dealership in Morgan City.

ACTION OF THE TRIAL COURT

After trial on the merits, the trial court found that the Moss-Guarisco buy-sell agreement was valid and binding and that Guarisco had breached it. Rather than ordering specific performance, the trial court awarded $300,000 damages to Moss and against Guarisco, with interest and all costs. The trial court also awarded attorney’s fees to Barbera, as third-party plaintiff. Barbera had filed a third-party demand which entitled him to recover damages from Guarisco only if specific performance had been ordered on the Moss-Guarisco agreement. Guarisco appeals the judgment of the trial court insofar as it relates to the buy-sell agreement. Therefore, the attorney fee award to Barbera is final.

ASSIGNMENTS OF ERROR

Appellant raises the following issues for review on appeal:

1) whether the Moss-Guarisco buy-sell agreement was binding;
2) whether Guarisco, as a party to a contract, should be held liable for the breach of an agreement subject to a condition if fulfillment of the condition is in the power of a third person (Pontiac) not a party to the contract;
3) whether the trial court erred in reconsidering Guarisco’s alleged interference with the performance of the agreement, as Guarisco contends this issue was res judicata in view of the previous decision of this court; and
4) whether, if Guarisco is found liable, damages awarded are excessive.

I. AND II.

Appellant contends that the Moss-Guaris-co buy-sell agreement was not binding. At trial, he testified that Moss tricked him into signing the agreement. This contention was not raised in his brief. The trial court found that the evidence was to the contrary and, based upon the law and evidence, concluded that it was a valid and binding contract when executed.

The courts are required to give legal effect to all written contracts according to the true intent of the parties. La.C. C.art. 1945. We conclude that the trial court was correct in finding that the buy-sell agreement was binding. This assignment of error is without merit.

Next, appellant contends that he, as a party to a contract, should not be held liable for the breach of an agreement subject to a condition, where fulfillment of the condition is in the power of a third person (Pontiac) not a party to the contract.

The trial court found that Pontiac did not approve Moss not because he was unacceptable, but rather, because Guarisco preferred Barbera. The trial judge also found that it is Pontiac’s policy to accept the preference of the selling dealer if that applicant is otherwise acceptable to Pontiac. Further, there is evidence in the record that Pontiac at one point notified Guarisco that they would not consider Barbera because Moss contacted them first. Shortly thereafter, Guarisco requested that Moss’ name be withdrawn from consideration and recommended that Barbera be awarded the franchise.

The fulfillment of the Moss-Guarisco buy-sell agreement was dependent upon two occurrences: (1) that Guarisco recommend Moss receive the franchise and (2) that Pontiac approve his application. The agreement falls within the definition of a contract with a mixed condition under L.S. A.-C.C. art. 2025, since fulfillment of the contract was dependent on the will of one of the parties and on the will of a third person. Guarisco’s obligation to recommend Moss to Pontiac was a potestative condition under L.S.A.-C.C. arts. 2024, 2034 and 2035. Pontiac’s approval of Moss was a suspensive condition as defined in L.S.A.C.C. art. 2043.

True, nowhere in the agreement was it stated that Guarisco had an obligation to recommend Moss to Pontiac. However, there was no point in making the agreement had the parties not intended that Guarisco make this recommendation. “Every condition must be performed in the manner that it is probable that the parties wished and intended that it should be.” L.S.A.-C.C. art. 2037. It is highly improbable that two astute businessmen would engage in such meaningless activity and such a theory is unsupported by the evidence. Therefore, the trial court concluded correctly that Guarisco’s recommendation was an essential part of the contract.

Guarisco contends that since the trial court found that there was no contract between the parties that he could fulfill, no breach was possible. Therefore, he argues that he should not be held liable. As previously noted, the reason the contract was not fulfilled was caused by Guarisco’s failure to recommend Moss.

“The condition is considered as fulfilled, when the fulfillment of it has been prevented by the party bound to perform it.” L.S.A.-C.C. art. 2040. The law does not permit a party whose obligation depends on a condition to allege as a defense the non-fulfillment of the condition where the failure of the condition was caused through his fault. George W. Garig Transfer v. Harris, 226 La. 117, 75 So.2d 28 (La.1954). To find Guarisco free of liability would allow him to take advantage of his own wrong. This clearly is not the intent of the law and will not be done in this instance. The trial court found that Pontiac did not award the franchise to Moss solely because Guarisco did not recommend Moss. As a result, Moss suffered damage. The trial court found that Guaris-co was responsible for those damages. The law and the evidence support the trial court’s findings. We agree with these findings. The first two assignments of error are without merit.

III.

Guarisco alleges that the trial court erred in reconsidering his alleged interference with performance of the agreement because the issue was res judicata in light of the prior appellate decision in this case.

Previously, this court remanded the case for trialon the issue of Guarisco’s alleged breach of contract. In pertinent part, the opinion stated: “On remand, it will be the task of the trial court to determine whether specific performance of the Moss-Guarisco buy-sell agreement is warranted under the circumstances of the case, should plaintiffs prevail ex contractu against Anthony J. Guarisco, Sr.” It is clear that the court found that Moss’ petition stated a cause of action for breach of contract against Guar-isco and remanded the case for trial on that issue. Thus, the remand 'was not limited solely to the question of specific performance, but rather the entire breach of contract issue. This court made no judgment on the breach of contract issue. Accordingly, the issue is not res judicata and this assignment is meritless.

IV.

Finally, Guarisco alleges that the damages awarded by the trial court are excessive. He contends that the trial court’s award puts Moss in a better position than he would have been in had the agreement been fulfilled. Guarisco argues that Moss’ success with the Honda franchise in Lafayette offset any damages Moss may have incurred from not obtaining the Morgan City Pontiac franchise.

Evidence presented at trial did show that Moss’ dealership in Lafayette was very successful, much more so than the Morgan City dealership. Moss worked most of 1979 to obtain and set up the Lafayette Honda franchise which began operations in December, 1979. We conclude that Moss would have been unable to take over the Morgan City dealership and start the Lafayette dealership at the same time. Therefore, Moss’ damages are limited to the time it took for Moss to earn from the Honda dealership what he would have earned from the Pontiac dealership.

L.S.A.-C.C. art. 1934 provides in part: “Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived ...”

Moss is entitled to recover for any damages he incurred as well as the loss of profits resulting from the breach of contract. The loss of profits must be proven with reasonable certainty and cannot be based upon speculation and conjecture. Moss has the burden of proving damages. See Recherche, Inc. v. Jewelry Jungle, Inc., 377 So.2d 1329 (La.App. 1st Cir.1979), writ denied, 379 So.2d 254 (La.1980).

In 1979, Barbera received in salary, benefits and bonus a total of $81,000. Moss would have received an additional $3,000 in salary under the Moss-Guarisco buy-sell agreement had it been fulfilled. In 1980 and thereafter, Moss earned more through the Lafayette dealership than Barbera earned in Morgan City. There is no evidence, only speculation, that Moss would have done better in Morgan City than Barbera. Damages cannot be awarded on the basis of speculation.

The trial court awarded Moss $300,000 but gave no reasons why it awarded that particular amount. As above stated, we find that the record supports damages in the amount of $84,000 only. Therefore, we find that the trial court erred in its award of damages.

Accordingly, the judgment of the trial court is amended to reduce the amount of the award from $300,000 to $84,000. In all other respects, the judgment of the trial court is affirmed. All costs are to be borne by appellant.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Moss v. Guarisco, 409 So.2d 323 (La.App. 1st Cir.1982).

      . Article 2025.
      A mixed condition is one that depends at the same time on the will of one of the parties and on the will of a third person, or on the will of one of the parties and also on a casual event.

      .Article 2024.
      The potestative condition is that which makes the execution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to bring about or to hinder.
      Article 2034.
      Every obligation is null, that has been contracted, on a potestative condition, on the part of him who binds himself.
      Article 2035.
      The last preceding article is limited to potesta-tive conditions', which make the obligation depend solely on the exercise of the obligor’s will; but if the condition be, that the obligor shall do or not do a certain act, although the doing or not doing of the act depends on the will of the obligor, yet the obligation depending on such condition, is not valid.

      . Article 2043.
      The obligation contracted on a suspensive condition, is that which depends, either on a future and uncertain event, or on an event which has actually taken place, without its being yet known to the parties.
      In the former case, the obligation can not be executed till after the event; in the latter, the obligation has its effect from the day on which it was contracted, but it can not be enforced until the event be known.

      . Moss, supra, at 334.


author: EDWARDS, Judge.

text:
    STATE of Louisiana v. Jerry C. MORGAN.
    No. 83-KA-1022.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Rehearing Denied Nov. 21, 1984.
    Writ Denied Feb. 4, 1985.

      J. Mark Rolling, Asst. Dist. Atty., Amite, for plaintiff-appellee.
    Ron S. Macaluso, Hammond, for defendant-appellant.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

Defendant, Jerry C. Morgan, was charged by grand jury indictment with aggravated battery in violation of LSA-R.S. 14:34. After trial, a six-person jury found defendant guilty as charged. He was sentenced to five years imprisonment at hard labor and fined $5,000.00 plus costs, including jury costs in the sum of $3,010.34. The court suspended the prison sentence and fine, but not the costs, and placed defendant on active probation for five years subject to the following conditions: that (1) defendant pay the costs of court in equal installments of $200.00 until paid in full; (2) restitution be made to the victim, the amount and manner to be determined at a later date pending the outcome of the civil trial related to this same matter; (3) defendant attend an organized church of his choice on a regular basis; (4) defendant not be in any place that sells alcoholic beverages; (5) defendant spend eighty hours performing civic duty; and (6) defendant spend six months in the parish jail as a condition of probation, this six months to be suspended as long as there are no probation violations. Defendant now appeals his conviction and sentence.

On January 16, 1983, an altercation occurred at the Huddle Lounge in Hammond, Louisiana, in which defendant, a twenty year old man, hit the victim, Roland Chutz, a fifty-three year old man, about the face and eyes, injuring him to the extent that hospitalization and surgery were required. Defendant, his mother, and a friend of the family, who witnessed this incident, testified that the victim provoked the attack by spitting in defendant’s face, by cursing defendant’s father and by coming toward defendant with his fists clenched. Defendant testified that he hit Chutz twice with his fists and then only after provocation. The State, however, sought to prove that defendant hit the victim with a club or a stick.

Three coeds from Southeastern Louisiana University in Hammond, who were patrons of the lounge that evening and within close proximity of the victim, testified that defendant had a club or stick in his hand. Two of the three said that the victim was sitting at the bar facing away from the door, that defendant approached him from behind, turned him around, hit him with the club, and then with his fists. The third coed testified that upon hearing a loud noise, she turned around and saw defendant with the club in his hand, and that he then dropped the club and began hitting the victim with his fists. Neither the three coeds nor the bartender who broke up the fight heard any loud voices or any abusive language prior to the incident. Defendant testified that he had no more than four beers. The victim said he had nine or ten highballs. The club or stick allegedly used by the defendant was not entered into evidence at trial.

Although defendant made six assignments of error, he briefed only three, and consequently the remaining three assignments of error are abandoned. Rule 2-12.4 Uniform Rules, Courts of Appeal. Defendant assigns as error the trial judge’s refusal to allow defense counsel to question prospective jurors during the voir dire as to whether they would promise to return a verdict of not guilty if the State failed to prove defendant’s guilt beyond a reasonable doubt. The request was stated as follows:

Will you promise me that if you serve on this jury and after deliberations if ... and after discussion with other jurors ... you are not convinced beyond a reasonable doubt that Jerry should be convicted of a crime, do I have your solemn promise that you will return a verdict of not guilty?

Voir dire transcript, 133. The trial judge reasoned that such a request was tantamount to asking a prospective juror for a commitment in advance as to his response regarding the case, and since such a promise would amount to juror misconduct, LSA-R.S. 14:130(1), he refused to allow the question.

The prosecutor in State v. Schouest, 351 So.2d 462 (La.1977), asked a prospective juror on voir dire if he would vote guilty if the prosecution convinced him beyond a reasonable doubt that the defendant was guilty. According to the court, the prosecutor’s reference to a promise to return a verdict of guilty if warranted by the facts was only a reminder of the juror’s sworn duty, and therefore permissible. Defendant argues that his question was the converse of the Schouest prosecutor’s question, and therefore also only a reminder of the juror’s sworn duty.

It is true that the mere use of the word “promise” during voir dire to remind the jury of its sworn duty is not necessarily prejudicial to the accused. State v. Young, 337 So.2d 1196, 1200 (La.1976). Nevertheless, the disallowance of an otherwise proper question on voir dire does not automatically result in reversible error. State v. Frith, 412 So.2d 1000, 1004 (La.1982) (citing State v. Robinson, 404 So.2d 907, 911-12 (La.1981)). For a proper evaluation of the ruling of the trial court, the entire record of the voir dire examination must be considered. Id.

The Louisiana Constitution provides that the accused shall have the right to voir dire examination of prospective jurors and to challenge jurors peremptorily. La. Const, art. I, § 17. In addition, the Louisiana Code of Criminal Procedure provides that the court, the state and the defendant shall have the right to examine prospective jurors, and that the scope of the examination shall be within the discretion of the court. La.C.Gr.P. art. 786. The trial judge’s ruling will be disturbed only in the event of clear abuse of discretion. State v. Robinson, 404 So.2d 907, 911 (La.1981) (citation omitted).

Upon a thorough review of the entire voir dire examination, we are convinced that defendant was not deprived of his constitutional or statutory rights by the judge’s refusal to allow this question. It is clear from the transcript of the voir dire that the jurors understood that the burden was on the State to prove guilt beyond a reasonable doubt. Despite his refusal to allow this question, the judge gave the defense attorney wide latitude in examining prospective jurors so that the defendant’s right to intelligently exercise challenges was not infringed. See State v. Frith, 412 So.2d at 1005. We find no abuse of discretion on the part of the trial court. This assignment of error lacks merit.

Defendant next contends that the evidence was insufficient to convict him of aggravated battery. He argues that the element of the use of a dangerous weapon in the commission of the battery was not proved beyond a reasonable doubt. The standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Thomas, 439 So.2d 629, 632 (La.App. 1st Cir.1983) rev’d in part, 452 So.2d 1177 (La.1984) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Although defense witnesses testified that the defendant hit the victim with his fists only, three of the State’s witnesses testified that the defendant held a club in his hand and two of those State witnesses said they actually saw defendant hit the victim with the club. Furthermore, the doctor who treated the victim after the incident testified that the wounds could have been caused either by fists or by a blunt instrument.

When there is conflicting testimony as to factual matters, the jury alone determines the credibility of witnesses. LSA-C.Cr.P. art. 802(3); State v. Klar, 400 So.2d 610, 613 (La.1981). The verdict indicates that the jury accepted the testimony of the State’s witnesses that defendant, without provocation, hit the victim with a club, and the jury’s evaluation of credibility is not reviewable on appeal. State v. Snoddy, 332 So.2d 800, 802 (La.1976). The evidence was sufficient to convict defendant of aggravated battery and, therefore, this assignment of error lacks merit.

Defendant’s final assignment of error concerns a condition of probation. His sentence of five years at hard labor and $5,000.00 plus costs was suspended and he was placed on active probation for five years. The judge imposed six special conditions of probation. Defendant complains only of one condition, that requiring him to regularly attend an organized church of his choice.

Although this is not the first time church attendance has been made a condition of probation in Louisiana, see State ex rel. Wright, 387 So.2d 75, 76-77 (La.App. 4th Cir.1980), it appears to be the first time the condition has been challenged. Article 895 of the Code of Criminal Procedure authorizes the trial judge to impose any specific condition reasonably related to defendant’s rehabilitation. Moreover, the trial court has wide discretion in the imposition of sentences within the statutory limits, and trial court sentences will not be set aside absent a manifest abuse of discretion. State v. Thomas, 428 So.2d 950 (La.App. 1st Cir.), cert. denied, 434 So.2d 410 (La.1983). The trial judge’s reasons indicate that he believed this condition to be directly related to defendant’s rehabilitation. We believe, however, that such a condition violates the establishment clauses of the United States Constitution and the Louisiana Constitution, which forbid laws “respecting an establishment of religion.” U.S. Const, amend. I; La. Const, art. I, § 8.

Courts have given the establishment clause a broad interpretation; there is a “wall of separation” between church and state. Everson v. Board of Education, 330 U.S. 1, 8, 67 S.Ct. 504, 508, 91 L.Ed. 711 (1947).

“Neither a state nor the federal government can force or influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbe-liefs, or church attendance or non-attendance.”

Seegers v. Parker, 256 La. 1039, 241 So.2d 213, 217 (1970) cert. denied, 403 U.S. 955, 91 S.Ct. 2276, 29 L.Ed.2d 865 (1971) (quoting Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947)). Probation by its very nature restricts personal freedom. Nevertheless, we have a strong tradition of separation of church and state, and making church attendance a condition of probation threatens this separation. Accordingly, we vacate the condition of probation that defendant regularly attend an organized church of his choice. The conviction and sentence are otherwise affirmed.

AFFIRMED IN PART AND REVERSED IN PART.

        See also Drollinger v. Milligan, 552 F.2d 1220 (7th Cir.1977), in which the probation condition of church attendance was not challenged.


author: ALFORD, Judge.

text:
    Willie HUGHES v. LIVINGSTON PARISH SCHOOL BOARD.
    No. 83 CA 1024.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Rehearing Denied Nov. 21, 1984.
    Writ Denied Jan. 25, 1985.

      Hobart. O. Pardue, Jr., Springfield, Robert C. Williams, Baton Rouge, for plaintiff.
    J. Donald Cascio, Denham Springs, for defendant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

Defendant-appellant, Livingston Parish School Board, appeals an adverse award of attorney’s fees granted to plaintiff-appel-lee, Willie Hughes, as a result of a reapportionment suit filed by Hughes.

The Livingston Parish School Board was authorized by LSA-R.S. 17:71.5 to reapportion itself based upon the 1980 census. On January 22,1981, the school board finalized appointment of a reapportionment committee. On June 23, 1981, Hughes filed suit, demanding that the school board be reapportioned and that new elections be conducted for all school board members. Hughes also demanded attorney’s fees. Hughes alleged that the multi-member voting districts used for school board elections violated Article 1, Section 3 of the Louisiana Constitution of 1974, and that he “is a victim of discrimination because of his race in that members of his race consist of approximately fifteen (15%) percent of the population of Livingston Parish, but there are no black members of the Livingston Parish School Board and that their voting strength is diluted...”

According to defendant, the United States Department of Commerce certification of the 1980 census was obtained on October 14, 1981. The record indicates that a default judgment was secured on November 20,1981. This default judgment was subsequently annulled and a new trial was granted. The following skeletal chronology of events is evidenced by the record. On February 18, 1982, the school board formally resolved to reapportion itself into nine single-member districts. The resolution was received by the United States Attorney General on February 26, 1982, and supplemented on March 5, 1982. An approval letter from the Attorney General’s office to the school board’s lawyer is dated May 4, 1982. On March 21, 1983, Hughes’ suit was dismissed, reserving to Hughes his claim for attorney’s fees only. On May 24, 1983, attorney’s fees were awarded to Hughes in the amount of $6,937.50.

The general rule of law is that attorney’s fees are not allowed except when authorized by statute or contract. Frank L. Beier Radio v. Black Gold Marine, 449 So.2d 1014 (La.1984). There is no contractual basis for attorney’s fees in this case. Further, we are not aware of nor have we been cited to any Louisiana statute which would allow attorney’s fees in an action of this kind based on Louisiana law. Accordingly, we note that an award of attorney’s fees in this case based on Louisiana law would be erroneous.

However, Hughes’ petition clearly alleges discrimination based upon race due to the multi-member districts of the Livingston Parish School Board. The Louisiana Code of Civil Procedure sets forth a system of fact pleading. LSA-C.C.P. arts. 854, 891, 1003,1004. Pleading the theory of the case is rejected and recovery may be had under any legal theory justified by the facts pleaded in the petition. Franklin v. Able Moving & Storage Co., Inc., 439 So.2d 489 (La.App. 1st Cir.1983). Accordingly, we find that Hughes factually stated a demand for recovery under federal law, specifically,' 42 U.S.C.A. § 1983.

Absent congressional intent to vest exclusive jurisdiction of federal claims in federal courts, state courts have concurrent jurisdiction to enforce rights under federal statutes. Since jurisdiction over suits brought under § 1983 has not been restricted to federal courts, an action thereunder may also be maintained in state court. Ricard v. State, 390 So.2d 882, 883 (La.1980). The Federal Civil Rights Attorney’s Fees Awards Act, 42 U.S.C.A. § 1988, provides in pertinent part that in a civil action to enforce 42 U.S.C.A. § 1983 (among others) the trial court, “in its discretion may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” This section is applicable in state proceedings brought pursuant to 42 U.S. C.A. § 1983. Maine v. Thiboutot, 448 U.S. 1, 9, 100 S.Ct. 2502, 2506, 65 L.Ed.2d 555 (1980).

The standard for awarding attorney’s fees under 42 U.S.C.A. § 1983 when a civil rights case has been mooted is stated in Coen v. Harrison County School Board, 638 F.2d 24, 26 (5th Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 647 (1982).

It is undisputed that a plaintiff need not obtain formal relief in adversary proceedings to be a prevailing party for purposes of § 1988; it is enough that his suit has served to vindicate his rights, whether by court decision, consent judgment, or voluntary compliance by the defendant after the filing of the suit. The proper focus is on whether the plaintiff has succeeded on the central issue, as exhibited by the fact that he has obtained the primary relief sought. Iranian Students Ass’n [v. Edwards], 604 F.2d [352] at 353 [5th Cir.1979]; Criterion Club [v. Board of Com’rs of Dougherty County], 594 F.2d [118] at 120 [5th Cir.1979]; Brown [v. Culpepper], 559 F.2d [274] at 277 [5th Cir.1977]; Hanrahan v. Hampton, 1980, 446 U.S. 754, 757, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670, 674; Robinson v. Kimbrough, 5 Cir. 1980, 620 F.2d 468, 475-76; S.Rep.No. 1011, 94th Cong., 2d Sess. 5, reprinted in (1976) U.S.Code Cong. & Ad.News 5908, 5912. To recover an attorney’s fee, however, it is not sufficient the plaintiff has obtained what he asked for; it is also necessary that his suit be, if not the sole reason for his success, at least a major factor in bringing it about.

In other words, a plaintiff may recover under § 1988 if his lawsuit was a significant catalytic factor in achieving the primary relief sought through litigation despite failure to obtain formal judicial relief.

Although the trial court issued no written reasons for judgment, we are of the opinion that he was well within his discretion in finding that Hughes was entitled to attorney’s fees. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Defendant’s witness testified on direct examination that Hughes’ lawsuit did not prompt reapportionment. However, the trial court judge was in a better position to judge credibility on both direct and cross examination than are we. From his judgment, it is obvious to us that the testimony and the record taken together indicated that Hughes’ lawsuit was, in fact, a “major factor” or “catalyst” in bringing about the result sought by the lawsuit. From our review of the record, we agree. Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed against defendant-appellant in the amount of $387.50.

AFFIRMED.

      . § 1983. Civil action for deprivation of rights
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
      School boards are amenable to suit under § 1983. Kingsville Independent Sch. Dist. v. Cooper, 611 F.2d 1109 (5th Cir.1980).

      . § 1988 provides in pertinent part:
      In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.