author: SCHEB, Judge.

text:
    H. I. RESORTS, INC., a Florida Corporation, Appellant, v. Dewey TOUCHTON, d/b/a Touchton Realty, Appellee.
    No. 75-1561.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 1976.

      J. Hardin Peterson, Jr., of Peterson, Carr, Harris & Seacrest, Lakeland, for appellant.
    R. Scott Bunn, of Straughn, Sharit, Bunn & Chilton, Winter Haven, for appellee.
   SCHEB, Judge.

This case presents the question whether a buyer which defaults on several contracts procured for it by a broker may be liable to that broker for commissions.

Specifically, the plaintiff/appellee Touch-ton sought recovery for commissions from defendant/appellant in respect to two land transactions occurring in Boynton Beach, Florida, referred to as the Moore and Waite parcels, where the plaintiff produced contracts in July and September 1973, respectively; a transaction in Sanibel Island, Florida, known as the Anderson parcel, on which the plaintiff produced a contract in September 1973; and an Arkansas deal known as the Inman property contracted for in August 1973. The court directed a verdict in favor of the defendant as to the parcel in Arkansas, but the remaining transactions were considered by the jury which awarded the plaintiff a general verdict of $26,375. By stipulation of the parties $6,038.09 was added to the verdict. After allowing $788.57 as interest, and $282 for court costs, the trial judge entered an amended final judgment in favor of the plaintiff for $33,483.66. This appeal ensued with the defendant contending the trial court erred in failing to direct a verdict in its favor as to all the transactions in issue. On cross-appeal, the plaintiff contends that the court erred in directing a verdict against it on the Inman transaction. We affirm in part, reverse in part, and remand for entry of a modified judgment in favor of the plaintiff.

The plaintiff and defendant had a series of business relationships during 1972 and 1973. During this time the defendant, through its chairman of the board, Robinson Callen, purchased several properties through the plaintiff and paid the plaintiff a series of real estate commissions. During their early relationship in July 1972, the plaintiff broker agreed with Mr. Callen that the plaintiff:

“. . . waive[d] any right to a forfeited earnest money deposit and . assign[ed] any portion of said forfeited monies normally retained by the broker to H.I. Resorts, Inc. and/or Robinson Cal-len.”

The plaintiff claimed, however, that such understanding did not prevail in respect to the various transactions in this suit. Rather, plaintiff Touchton testified that his claims for commissions were based upon a subsequent meeting with Callen in May 1973. According to Touchton’s testimony, at that time they had a meeting in Callen’s home during which Callen said he wanted to expand H.I. Resorts by acquiring several new sites for motels. He wanted Touchton to visit these prospective sites, at Touch-ton’s own expense, and procure contracts if the land proved desirable. In response to this new proposal, Touchton asked Callen:

“Mr. Callen, in other words, if I obtained a binding contract at the price and terms acceptable to you and the contingency of the contract are met at these various locations then I at that time I have performed and earned a commission.”

and Callen replied “yes.”

Boynton Beach Transactions

When Callen, on behalf of the defendant, indicated an interest in obtaining motel sites in the Boynton Beach area, plaintiff associated a Boynton Beach real estate broker, Larry Giddens. Thereafter these brokers produced a contract dated July 19, covering a parcel of land and signed by the seller, Moore. It is unclear as to the exact date on which Callen signed this agreement; however, an addendum signed by Moore but not by Callen is dated July 24. Since his co-broker Giddens expressed concern about his right to receive a commission on the transaction, Touchton requested Cal-len to reduce to writing his agreement about paying a commission. By letter dated July 23, addressed to both Touchton and Giddens, Callen referred to the Moore property and stated:

“. . . when, as and if I and/or a corporation of which I am a principal takes title to the above property, I will pay total commission of twenty thousand dollars.”

At trial, Touchton testified that he received this letter, glanced at it and filed it, not realizing at the time that it did not correctly state their oral agreement. On rebuttal, he testified that if he had perceived the “as, if or when” clause, he would have strenuously objected to it.

In the other Boynton Beach transaction, Touchton and Giddens produced a contract signed by Waite in September 1973. Unlike the Moore contract, the Waite contract contained an express provision whereby Callen had agreed “. . .to pay Larry T. Gid-dens and Dewey Touchton, cooperating brokers, a commission of $6,375.00.” When the defendant failed to close both the Moore and Waite transactions, the sums deposited as earnest money were forfeited.

Defendant contends that his agreement of July 1972, contemplated there would be no liability for commissions on either the Moore or Waite deals since the earnest money was forfeited; and further, that Cal-len’s letter of July 23, 1973, to Touchton and Giddens on the Moore deal, emphasized the understanding was that there would be no liability on the defendant unless title passed to the buyer. Furthermore, at trial defendant objected to testimony about the alleged oral contract of May 1973, on the ground that testimony was inconsistent with the understanding evidenced by the letters of July 1972 and July 23, 1973, and therefore, violated the Parol Evidence Rule. Defendant contends the trial judge erred in denying its motion for a directed verdict on both transactions.

We find no merit to these contentions as they relate to the July 1972 agreement. Clearly the Parol Evidence Rule would not bar introduction of evidence of a subsequent oral contract which modified the former existing agreement between the parties. 13 Fla.Jur., Evidence, § 387.

We next consider these contentions as they relate to the letter of July 23, 1973, in which the buyer set forth his understanding of the prior oral agreement.

To begin with, the defendant did not plead estoppel or prove any change of position in reliance upon plaintiff’s silence. In a case remarkably similar, a similar type letter was sent to confirm an oral brokerage contract. The broker receiving it voiced no objection to the understanding evidenced by the letter he received, but at trial, contended the letter did not accurately state his understanding. There, the court held that silence upon receiving the letter, while of evidentiary value on the question of whether the letter accurately reflected the conversation and agreement of the parties, did not constitute an assent as a matter of law. Thus, the court upheld a verdict in favor of the party who had received the letter and voiced no objection. See Trainer v. Fort, 1933, 310 Pa. 570, 165 A. 232. We agree with the court’s holding in Trainer.

While we recognize that a buyer is not liable for a real estate commission in the absence of an agreement, Tutko v. Banks, Fla.App.3d 1964, 167 So.2d 110, here the alleged oral contract of May 1973, was a basis for recovery. While the testimony of the parties sharply conflicted as to their understanding of when a commission was due, we conclude there was sufficient evidence on behalf of Touchton for the jury to find as it did in respect to liability of the defendant as to both the Moore and Waite deals. Since on a motion for directed verdict all facts and reasonable inferences are weighed in favor of the nonmovant, Hartnett v. Fowler, Fla.1957, 94 So.2d 724, the court did not err in failing to grant the defendant’s motion for directed verdict as to the Moore and Waite transactions.

But, the court erred in permitting the jury to make an award to Touchton for not only his commission but also for a commission for Giddens as well. Touchton and Giddens both assisted the defendant in obtaining properties. Giddens originally was associated by Touchton. There is some conflict in the evidence as to whether Giddens was a sub-agent of Touchton’s or whether, as a result of the relationship which developed with Callen, he had become an agent for the defendant. Giddens was not a plaintiff in this litigation. The record reflects that during the conference on instructions, Touchton’s counsel advised the court that Touchton waived any right of recovery for any sums due Giddens. Notwithstanding, over the defendant’s objection, the court instructed the jury that if they found Giddens to be a sub-agent:

“. . . plaintiff is entitled and obligated to bring the action for the commissions due on the transaction, and, he, in turn, is obligated to divide his commission with any co-broker or sub-agent.”

And, over the defendant’s further objection, the plaintiff was permitted to argue for commissions due both himself and Giddens. On appeal, plaintiff argues the court’s instruction was correct, since Giddens was Touchton’s sub-agent. In view of the waiver on behalf of Touchton, it is unnecessary to determine whether Giddens’ right of action would be vested in Touchton or whether he was the defendant’s agent entitled to maintain a direct action. Cf., Whidden v. Morse, Fla.App.2d 1968, 213 So.2d 625.

Plaintiff Touchton, in his posture in this suit, was entitled to recover only on his behalf. The trial judge erred in not instructing the jury to this effect.

Sanibel Island Transaction

Touchton associated San Carlos Realty as a co-broker and obtained a signed contract for the defendant in September 1973, on a motel site on Sanibel Island, referred to as the Anderson tract. The contract acknowledged receipt of $10,000 earnest money and provided the seller would pay a commission in that amount to the broker, with the stipulation that if the earnest money was forfeited, the deposit was to be divided, with $5,000 to be paid to the seller and $5,000 to be divided between the two brokers. Defendant defaulted and the parties to the contract directed Touch-ton to distribute $5,000 of the earnest money back to defendant and $4,000 to the seller, leaving only $1,000 to be divided between the two brokers. Touchton complied, withdrawing $425 as his own share and leaving $75 in his escrow account.

Touchton’s complaint asked for $2,075 as commission for this transaction. At trial he derived this figure by subtracting the $425 already received from the $2500 due under the terms of the contract. Yet, over defendant’s objection, the trial judge instructed the jury the plaintiff could recover against the defendant as a buyer on a quantum meruit basis and permitted the plaintiff to argue he was entitled to $30,000 on this transaction.

Since the plaintiff’s own testimony acknowledged entitlement to a specific sum for commission, we have considerable doubt that it was proper to allow an instruction on a quantum meruit theory. See Tobin & Tobin Insurance Agency, Inc. v. Zeskind, Fla.App.3d 1975, 315 So.2d 518; Solutec Corp. v. Young & Lawrence Associates, Inc., Fla.App.4th 1971, 243 So.2d 605. However, we need not reach this or the other points raised by the defendant, for when the Anderson deal terminated, Touchton, as escrow agent, acknowledged the seller was the responsible party for a commission and then disbursed the escrow funds remaining, paying unto himself the sum he claimed. And, while he contends this was in compliance with requirements of Florida Real Estate laws and regulations, upon his check to H. I. Resorts he wrote the notation, “Refund in full settlement of binder deposit re: Anderson — Periwinkle tract as per agreement.” He gave no notice of reserving any rights against the defendant. Upon disbursement of these funds, Touchton waived any further rights to a commission from the buyer. The plaintiff received commissions to the extent of his legal entitlement. We conclude that the trial court erred in failing to grant defendant’s motion for a directed verdict on this transaction since the evidence was not legally sufficient to sustain plaintiff’s claim.

Arkansas Transaction

In August 1973, while checking out some potential motel sites, Touchton signed a contract to purchase a tract of land in the Alma, Arkansas area. He assigned his rights to purchase to the defendant and was reimbursed for his initial deposit. This tract, known as the Inman property, was scheduled to close on October 2,1973. Five days before closing the defendant was informed of a title defect. Defendant successfully argued to the trial court that he had never been advised that the defect in title had been corrected and further that no one had ever tendered a deed or made a demand for performance against him. Eventually the defendant demanded a return of the deposit. The evidence supports the defendant’s contention that the transaction was abandoned. The trial judge did not err, therefore, in directing a verdict in favor of the defendant on this transaction.

We find that taken in the light most favorable to the plaintiff, there was evidence which justified only so much of the jury’s verdict of $26,375 as would sustain an award of $10,000 to the plaintiff in respect to the Moore transaction and $3,187.50 as a result of the Waite transaction. To this, $6,038.09 must be added as stipulated by the parties. Accordingly, we reverse in part, affirm in part, and remand to the trial court for vacation of the amended final judgment of $33,483.66, and for entry of a judgment in favor of the plaintiff in the amount of $19,225.59, plus interest thereon, together with such court costs, not to exceed $282, as the trial judge determines appropriate.

BOARDMAN, Acting C. J., and GRIMES, J., concur.

      . On cross-appeal the plaintiff does not challenge the trial court’s ruling which directed a verdict in favor of the defendant on a further transaction involving the Royal parcel on Sani-bel Island.

      . Our review of the entire record strongly suggests that the jury’s verdict of $26,375 was composed of an award of $20,000 on the Moore contract and $6,375 on the Waite parcel, with no allowance on the Anderson transaction.

      . This is consistent with the testimony of Gid-dens who explained that if the Moore and Waite transactions did not close, that he was not entitled to receive any commissions.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    Homer Clifford CLARK, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-149.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 1976.

      Edward C. Flood, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was charged with having committed on January 16, 1975, the crimes of breaking and entering with intent to commit a felony, to wit: grand larceny, and grand larceny of certain drugs and equipment from a doctor’s office. He was convicted of both offenses and given concurrent sentences.

The only point on appeal having any merit arises from the following testimony given by a policeman on direct examination during the state’s case, to wit:

“Q Could you tell us what date subsequent to January 16 did you encounter Mr. Clark, or approximately what date?
A It was in early February. I arrested him for sale and possession of heroin.”

Appellant’s counsel immediately moved for a mistrial. The court then instructed the jury to disregard the reference to other charges pending against the appellant and asked each juror if he could put such reference out of his mind. Upon receiving affirmative answers from each of the jurors, the motion for mistrial was denied.

The admission of evidence of arrest for unrelated crimes has often been held to constitute reversible error. E. g., Whitehead v. State, 279 So.2d 99 (Fla.2d DCA 1973). The true rule, however, is that evidence will not be excluded merely because it relates to facts which point to the commission of a separate crime so long as it is relevant to the crime for which the defendant is being prosecuted. Williams v. State, 110 So.2d 654 (Fla.1959).

The evidence that the appellant had been placed under arrest was relevant to this case because it was in subsequent conversations with the police that appellant made inculpatory statements concerning the crimes for which he was being prosecuted. Moreover, it was necessary that the fact of appellant’s arrest be explained in order that an intelligent account of the circumstances of his making the statement could be given. Cf. Frederiksen v. State, 312 So.2d 217 (Fla.3d DCA 1975).

If the officer had only referred to the fact of placing appellant under arrest, we would have no qualms about the judgment. However, his gratuitous statement that he had arrested appellant for sale and possession of heroin went too far. Understandably, those involved in the trafficking of heroin are held in the highest disrepute by law-abiding members of the community. It is too much to ask a juror to put this out of his mind while he is deliberating over the defendant’s guilt of another crime. Cf. Jones v. State, 305 So.2d 827 (Fla.4th DCA 1975). While it might be argued that the nature of the crime with which appellant was charged had a slight relevance to the case because the inculpatory statements were made as part of an effort by appellant to try to get out of the heroin charge,- we think the prejudice implicit in the officer’s reference to having arrested appellant for the sale and possession of heroin completely outweighed any probative value and precluded the possibility of appellant receiving a fair trial. See Seaboard Air Line Railroad Company v. Ford, 92 So.2d 160, at page 166 (Fla.1957).

The judgment and sentence are reversed, and the case is remanded for a new trial.

HOBSON, Acting C. J., and SCHEB, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellant, v. Carol M. NICHOLSON, Appellee.
    No. 76-415.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 1976.
    Arthur C. Fulmer, of Lane, Massey, Trohn, Clarke, Bertrand & Smith, Lake-land, for appellant.

      Robert M. Chambers, of Stanley, Dur-rance & Wines, Auburndale, for appellee.
   HOBSON, Acting Chief Judge.

This is an interlocutory appeal by the defendant, State Farm, from a partial summary judgment in favor of the plaintiff, Carol M. Nicholson, for reimbursement of costs under her insurance contract incurred as a result of an accident.

Nicholson was injured in a traffic accident on December 3, 1974, when the police vehicle she was driving collided with an automobile. Nicholson then sought, pursuant to her insurance contract, reimbursement for costs in accordance with the personal injury protection (hereinafter PIP) benefits afforded under that contract. State Farm resisted payment, asserting that the three-wheeled police motor vehicle, which the plaintiff occupied at the time of the accident, was specifically excluded under the Florida Automobile Reparations Reform Act (hereinafter “the Act”), F.S. § 627.736(4)(d)(l) as a “motorcycle.” After a hearing the trial court found that the vehicle involved was not a motorcycle which is excepted from such coverage. Thereafter the trial court, as a result of this interpretation of the exclusionary term “motorcycle,” held that Nicholson was entitled to recover PIP benefits from State Farm.

The relevant statute in the Act is F.S. § 627.786(4)(d)(l) which provides that benefits obtain for,

“Accidental bodily injury sustained in this state by the owner while occupying a motor vehicle or while not an occupant of a motor vehicle or motorcycle if the injury is caused by physical contact with a motor vehicle.”

“Motor vehicle” is defined under the Act as,

“. . . [A] sedan, station wagon, or jeep type vehicle not used as a public livery conveyance for passengers and includes any other four-wheel motor vehicle used as a utility automobile and a pickup or panel truck which is not used primarily in the occupation, profession, or business of the insured.” F.S. § 627.732(1).

The latter subsection does not give meaning to the term “motorcycle” as excluded in § 627.736(4)(d)(l) above. Nor does the Act contain any definition of that term. The central question is, then, whether this three-wheeled motor vehicle is excluded, under the PIP provisions of the Act and the insurance policy herein, as a “motorcycle.” For the following reasons we think not and therefore affirm the judgment below.

The term “motorcycle” is defined by Webster’s Third New International Dictionary (1966) as “a 2-wheeled tandem automotive vehicle having one or two riding saddles and sometimes having a third wheel for the support of a sidecar.” This definition has been cited in a recent Florida case denying coverage to an insured killed while riding a motorcycle under an insurance policy providing benefits for accidental bodily injury sustained while driving or riding within any automobile. Loftus v. Pennsylvania Life Insurance Company, Fla.App.4th 1975, 314 So.2d 159. Although controlled by the policy therein, Loftus, supra, held that the term “automobile,” in light of applicable law, modern definitions, and the practical rule that courts will not distort the definition of words utilized in the normal course of the English language in order to impose liability upon an insurer, is not synonymous with the term “motorcycle.” Cf. Florida Farm Bureau Mutual Insurance Company v. Pitzer, Fla.App.4th 1976, 330 So.2d 499.

Similarly, common definitions of the word “motorcycle” contemplate two-wheeled vehicles. See, e. g., 27A Words and Phrases, “Motorcycle.” Although the appellant urges that the language in the recent case of Brandal v. State Farm Mutual Automobile Insurance Company, Fla. App.1st 1976, 327 So.2d 867, suggests that all vehicles of less than four wheels are excluded by F.S. § 627.736(4)(d)(1), we think, despite the reference in that opinion to non-coverage of motor vehicles with less than four wheels, that the case holds otherwise. The First District Court said,

“. . . [T]he language employed to set forth the legislative intent leaves no doubt that, as to an occupant of a two-wheel motorcycle, coverage for personal injury protection does not apply. That is the only issue we determine here.”

The remaining problem with the statute and cases cited is the placement of a three-wheel motor driven vehicle within or without the Act’s coverage, specifically F.S. § 627.736(4)(d)(l). The parties have provided no Florida cases or statutes which are dispositive of this issue. However, two cases from other jurisdictions are directly applicable to the facts herein. See Womack v. Life & Casualty Insurance Co. of Tennessee, La.App.1st 1938, 184 So. 357; LeCroy v. Nationwide Insurance Company, 1959, 251 N.C. 19, 110 S.E.2d 463. In Womack, supra, involving an accident policy insuring against bodily injuries received while riding inside a motor-driven truck but excepting from coverage accidents or collisions on motorcycles, the court there held a similar, if not identical, three-wheeled vehicle was not a motorcycle and was a “traffic car” within the policy’s coverage.

In LeCroy, supra, the insured was covered under a policy providing medical benefits for injuries incurred as a result of being “struck by an automobile.” He was subsequently injured when struck by a three-wheeled “mailster.” The North Carolina Supreme Court, in passing on whether this vehicle was an automobile or a motorscooter, held that the physical characteristics of this “mailster” were determinative in including this motor vehicle within the category known as automobile. Womack, supra, and the analysis used therein, was cited with approval by the court in LeCroy.

We think, without evidence of legislative preference, that the, number of wheels alone is not persuasive in characterizing this police motor vehicle as a motorcycle or a motor vehicle as per F.S. § 627.-736(4)(d)(l). As revealed by the photographs included in the record on appeal the vehicle herein is a three-wheeled Cushman motor-driven vehicle, very similar to the one described in LeCroy, supra. It has an enclosed bench seat with a roof, windshield wipers, and flexible doors to shield the driver from the weather. Significantly, steering is done by means of a steering wheel located inside in the center of the driving cabin. The vehicle, described as a “utility vehicle,” also has two wheels in the rear joined by an axle with the third wheel in front, thereby enabling it to stand upright whether in operation or not. Additionally, there exists a storage area behind the enclosed portion of this utility vehicle which is also capable of being covered.

It is clear that the utility vehicle described herein is sufficient to fall within the categories designated as a “traffic car” or “automobile” in Womack and LeCroy, supra. Indeed, this vehicle, unlike the ones in Womack and LeCroy, supra, has a steering wheel rather than handlebars. Although the appellant urges that we adopt the definition of motorcycle employed in the Florida Traffic Control Law, F.S. § 316.003(22) (any motor vehicle . designed to travel on not more than three wheels), that definition is too restrictive in that it only considers the number of wheels involved in assessing the character of the vehicle. We think the better view and the intent of the legislature in enacting the no-fault act was to exclude from coverage the normal meaning attributed to the word “motorcycle,” given the applicable law and modern definitions. That definition is normally associated with a two-wheel tandem vehicle which the operator straddles without benefit of any enclosure and which must be balanced in operation to maintain equilibrium. The legislature, because of these features, undoubtedly sought to exclude these types of vehicles since the propensity for accidental injury during operation is so much higher. This same fear cannot be attributed to a person riding in an enclosed vehicle with protection from the elements and other vehicles. In conclusion, we hold that the utility vehicle herein was not a motorcycle within the meaning of the Florida Automobile Reparations Reform Act, F.S. § 627.730, et seq.

The partial summary judgment is AFFIRMED.

BOARDMAN and SCHEB, JJ., concur.


author: PER CURIAM.

text:
    Mary Elizabeth SIMA, Appellant, v. Celestine Raymond SIMA, Appellee.
    No. 76-1239.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 1976.
    J. E. Satterfield of The Legal Aid Society, Clearwater, for appellant.
    Sondra Goldenfarb, Joseph G. Donahey, Jr., Clearwater, for appellee.
   PER CURIAM.

Pursuant to the authority of Lee v. Lee, 309 So.2d 26, Fla.App.2d 1975, a trial court has jurisdiction to hear evidence and decide whether a modification of rehabilitative alimony should be granted or, if the circumstances warrant, a complete revisitation of the alimony question.

Therefore, the trial court erred in holding that it was limited in its jurisdiction to only extending the rehabilitative alimony.

Accordingly, the order appealed is reversed and the case remanded for a hearing in accordance with this opinion.

HOBSON, Acting C. J., and GRIMES and SCHEB, JJ., concur.


author: RAWLS, Acting Chief Judge RAWLS, Acting Chief Judge.

text:
    Shirley BARKSDALE, Appellant, v. PAUL W. DAVIS, INC., a Florida Corporation, Appellee.
    No. Z-385.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1976.
    Rehearing Denied Oct. 19, 1976.

      C. Ray Greene, Jr., of Greene & Greene, Jacksonville, for appellant.
    Rogers, Towers, Bailey, Jones & Gay, and Stephen H. Durant of Martin, Ade, Birch-field & Johnson, Jacksonville, for appellee.
   RAWLS, Acting Chief Judge

As stated by appellant-plaintiff Barks-dale, the sole issue on this appeal is:

“Is the order entered by the lower court granting a motion amending its final judgment entered one year, eighteen days before, contrary to law where the same motion was previously denied eleven months, nineteen days before?”

The answer is in the affirmative. We reverse.

On March 29, 1973, Barksdale sued Paul W. Davis, Inc., pursuant to a construction contract entered into between “Shirley Ann Barksdale” (appellant) and “Paul W. Davis, Inc.” on June 26, 1972. Printed at the top of this form contract in large capital letters was the name “PAUL W. DAVIS SYSTEMS, INC.”. Service of process was attempted to be effected upon Paul W. Davis, who instructed the sheriff’s office to serve “Paul W. Davis, Inc. of Jacksonville”. Process was effected by the sheriff’s office serving “Wilford McCormick, as President of . Paul W. Davis, Inc.”.

Answer to Barksdale’s complaint and counterclaim were filed by the law firm of Rogers, Towers, Bailey, Jones & Gay, which stated at the outset: “Defendant, Paul W. Davis, Inc., answers the complaint filed herein as follows. . . . ” Final Judgment was entered on May 1, 1974, in favor of Barksdale, wherein the trial court found, inter alia: “ . . . That the Court has jurisdiction of the defendant Paul W. Davis, Inc. and the subject matter of this cause.” On May 10, 1974, a petition to amend final judgment was filed in the trial court by the law firm of Rogers, Towers, Bailey, Jones & Gay, wherein they alleged that they were retained by Wilford McCormick, President of Paul W. Davis, Inc. of Jacksonville; that the said McCormick had no relationship with Paul W. Davis, Inc.; that on April 30, 1974, they ascertained that a misnomer existed as to the proper name of the defendant in that Wilford McCormick accepted service as President of Paul W. Davis, Inc., and that Wilford McCormick was, in fact, President of Paul W. Davis, Inc. of Jacksonville, a franchisee of Paul W. Davis Systems, Inc.; that at the trial of the cause copies of official records of the Secretary of State were proffered to the court, however, the court entered final judgment against Paul W. Davis, Inc. The petition prayed that the final judgment be amended by adding the words “of Jacksonville” so the misnomer could be corrected. The trial court denied the foregoing petition on July 2, 1974. No appeal was taken.

The instant appeal is taken from an order filed by the trial court on May 19, 1975, granting a petition to intervene filed by Paul W. Davis Systems, Inc., and granting a motion to amend final judgment filed by Paul W. Davis Systems, Inc., by striking Paul W. Davis, Inc., and inserting in lieu thereof Paul W. Davis, Inc. of Jacksonville.

The foregoing facts bring to mind the ancient confidence game of “which shell is the pea under”. We are not here confronted with a stranger to the litigation. The initial form contract was blazoned at the top with the name “PAUL W. DAVIS SYSTEMS, INC.”, and above a line entitled “Authorized Signature” was printed “PAUL W. DAVIS, INC. OF”. Paul W. Davis, President of Paul W. Davis Systems, Inc., the successor of Paul W. Davis, Inc., had actual knowledge of the pending suit, and it was at his specific direction that Wilford McCormick was served. The law firm of Rogers, Towers, Bailey, Jones & Gay appeared as attorney for Paul W. Davis, Inc., and defended the suit. The trial judge was apprised prior to and after final judgment of the misnomer claim and twice denied such. Under these facts, the final judgment was voidable — not void. Thus, the trial court erred in entertaining the petition to intervene and motion to amend final judgment more than one year after the final judgment was entered and almost a year after it had denied the petition to amend final judgment.

REVERSED.

SMITH, J., and SWIGERT, WILLIAM T., Associate Judge, concur.

On Petition for Rehearing

RAWLS, Acting Chief Judge.

Upon consideration of appellee’s timely petition for rehearing, the following sentence found on page 865 of this court’s opinion filed on August 3, 1976, is hereby deleted:

“Thus, the trial court erred in entertaining the petition to intervene and motion to amend final judgment more than one year after the final judgment was entered and almost a year after it had denied the petition to amend final judgment.”

Footnote 3 is also deleted.

Otherwise the petition for rehearing is denied, and we adhere to our views expressed in the original opinion.

SMITH, J., and SWIGERT, WILLIAM T., Associate Judge, concur.

      . Paul W. Davis, Inc., was incorporated January 26, 1967. The corporate name was changed by an amendment to the charter on February 17, 1972, to Paul W. Davis Systems, Iric. Otherwise the corporate structure was unchanged.

      . The Motion to Amend Final Judgment filed by Paul W. Davis Systems, Inc., and verified by Paul W. Davis states, inter alia:
      “2. At about the time of the change of name above described [Paul W. Davis, Inc. to Paul W. Davis Systems, Inc.], a corporation known as Paul W. Davis, Inc. of Jacksonville (hereinafter ‘DAVIS OF JACKSONVILLE’) was formed. The stockholders of DAVIS OF JACKSONVILLE were Wilford McCormick and Donald King. Wilford McCormick served as president.
      “3. DAVIS SYSTEMS and DAVIS OF JACKSONVILLE are separate legal entities:
      (a) None of the stockholders of DAVIS SYSTEMS are or have been stockholders of DAVIS OF JACKSONVILLE.
      (b) DAVIS OF JACKSONVILLE entered into a franchise agreement with DAVIS SYSTEMS in January of 1974 which expressly provided that:
      ‘Franchisee [Davis of Jacksonville] agrees that it, jointly and severally, shall indemnify and hold harmless franchisor [Davis Systems], jointly and severally, from and against any and all claims, demands, actions, causes of action, damages, losses, judgments, and expenses, including attorneys’ fees, arising out of or resulting from the operations of Paul W. Davis, Inc. of Jacksonville;’ ”
      (As previously stated, the instant contract between “Shirley Ann Barksdale” and “Paul W. Davis, Inc.” was executed June 26, 1972.)

      . Craven v. J. M. Fields, Inc., 226 So.2d 407 (4 Fla. App. 1969).


author: DIXON, Justice.

text:
    STATE of Louisiana v. Mose Milton FULTON.
    No. 57763.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellant.
    Bruce B. McKeithen, McKinley, Lacroix & McKeithen, Monroe, for defendant-appel-lee.
   DIXON, Justice.

The defendant, Mose Milton Fulton, was charged by bill of information with having violated R.S. 18:1531 in causing to be published and distributed written material concerning a candidate for public office without identifying himself thereon. The defendant filed a motion to quash, contending that R.S. 18:1531 is unconstitutional, abridging the rights of freedom of speech and press guaranteed by the First and Fourteenth Amendments to the United States Constitution and Louisiana Constitution Article 1, § 7 (1974). The trial judge sustained the motion to quash, finding the statute overbroad, imposing an unwarranted restriction on the freedom of expression. From the ruling granting the motion to quash, the State appeals, pursuant to Louisiana Constitution Article 5, § 5(D) (1974).

R.S. 18:1531 provides:

“No person shall publish or distribute or cause to be published or distributed any printed, multigraphed, photographed, mimeographed, typewritten, or written pamphlet, circular, card, dodger, poster, advertisement, or any other statement, relative to or concerning any candidate for election or nomination in any primary, general, or special election to any state, parochial, municipal, district, or ward office, unless it contains the name of the person responsible for its publication or distribution. If an association, organization, committee, or corporation is responsible for the publication or distribution, there shall be included the full and correct names and addresses of all the officers and of its entire membership or shareholders.
Whoever wilfully violates this Section shall be fined not less than one thousand dollars nor more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than one year nor more than ten years, or both.”

The defendant is charged with having caused to be printed and distributed, approximately one week before the Monroe election for Commissioner of Finance, handbills containing derogatory accusations directed at Gerald Womack, a candidate for that office. The handbills did not contain any identification of the person responsible for their printing and/or distribution.

In Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), the defendant was convicted of violating a Los Ange-les ordinance that made criminal the distribution of any handbill in any place under any circumstances which did not have printed on the cover or face thereof the name and address of the person or persons responsible for the printing and distribution of the handbills. In finding this statute unconstitutional, the Supreme Court stated:

“There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression. ‘Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.’ Lovell v. City of Griffin, 303 U.S. [444] at page 452, 58 S.Ct. [666] at page 669 [82 L.Ed. 949]. Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers. John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books. Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time the Letters of Junius were written and the identity of their author is unknown to this day. Even the Federalist Papers, written in favor of the the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.” 362 U.S. 60, 64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559.

This court, in City of Bogalusa v. May, 252 La. 629, 212 So.2d 408 (1968), declared a Bogalusa city ordinance forbidding the distribution of circulars unless they contained the identification of the distributor unconstitutional, relying on the Talley case, supra.

The only difference between the Los An-geles ordinance declared unconstitutional in Talley and the statute in this case is that R.S. 18:1531 is limited to handbills “relative to or concerning any candidate for election or nomination.” We are of the opinion that such a limitation does not save the statute from the constitutional infirmities found in the Talley and Bogalusa cases, supra.

In the case of People v. Bongiorni, 205 Cal.App.2d Supp. 856, 23 Cal.Rptr. 565 (1962), the California court rejected a contention that Talley did not govern a statute that was limited to handbills concerning elections only:

“The People have cited a number of decisions from other states which would appear to be somewhat contrary to the rule laid down in the Talley case. An examination of the ordinance involved in the Talley case reveals that the only substantial difference between that enactment and Section 12049 of the Election Code is that the latter statute is confined to circulars or handbills by which it is sought to influence the result of elections, while the ordinance involved in the Talley case applied to handbills or circulars generally. It is to be noted that there is nothing in either enactment by which it is sought to define the type of statement or utterance that is prohibited.
As the enactment is worded, it would be as much a violation to issue a handbill laudatory of a candidate as one that sought to damage his reputation. This Court is unable to find sufficient distinction between the distribution of handbills generally and the distribution of handbills concerning elections to justify departure from the rule laid down by the United States Supreme Court.”

In Commonwealth v. Dennis, 329 N.E.2d 706 (Mass.1975), the defendant was convicted of violating a statute which made it a crime to write, distribute, print or post anonymous circulars and posters designed to aid or defeat any candidate for nomination or election to public office. In finding that the statute was unconstitutional, the court noted, at 329 N.E.2d 706, 708:

“Although from what we have said it is apparent that the defendant’s exception to the denial of his motion to dismiss the complaint must be sustained, we believe it appropriate to indicate that there are significant First Amendment problems with any statute which requires the author of a publication to reveal his identity-
In Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), the Supreme Court, struck down an ordinance prohibiting the distribution of any handbill not containing the name and address of the person who printed, wrote, compiled or manufactured it and the person who caused it to be distributed. The court said that ‘[t]here can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression.’ Id. at 64, 80 S.Ct. at 538. The court noted the historical importance and constructive effect of certain anonymous writings and concluded that the government did not have the right to compel disclosure in the circumstances before it. ‘[[Identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance.’ Id. at 65, 80 S.Ct. at 539.
It seems clear that any public interest in revealing the source of a communication so that the recipient may assess its content in light of that source does not furnish a constitutionally sufficient justification for a prohibition of all anonymous campaign literature.”

In People v. Duryea, 76 Misc.2d 948, 351 N.Y.S.2d 978 (1974), aff’d 44 A.D.2d 663, 354 N.Y.S.2d 129 (1974), the defendants were charged with violating a statute that made it criminal to print, publish or distribute, or to order the printing, publishing or distributing of handbills, circulars, pamphlets and the like concerning political parties, candidates, etc., whether in favor or against such, in connection with any election, without reproducing thereon the name and address of the printer and/or distributor and the person ordering the printing and/or distribution. In finding the law unconstitutional, the court stated:

“I conclude, therefore, that even granting that the compelling nature of the concern for ‘the integrity of political campaigns’ is sufficient to permit some limitations on totally free expression, this statute is not narrowly enough drawn to further the State’s legitimate interest. It is in no way limited to deterring campaign defamation and financing violations. It makes anonymity a crime when anyone (candidate, political organization, private organization or private individual) prints or distributes any literature ‘in quantity’ (poster, handbill or letter) containing any statement (reckless, responsible, political, personal, true, false, favorable, unfavorable, scurrilous or discreet) concerning any candidate (declared or undeclared) or issue on the ballot (constitutional amendment or proposition) ‘in connection with’ any party or governmental election.
It thereby prohibits, for example, a congregant from anonymously distributing leaflets on behalf of an amendment to the State Constitution which is against the wishes of his religious sect. It prevents a group of workers from anonymously publicizing a candidate or ballot proposition unacceptable to their employer. It prevents a government contractor from anonymously criticizing the performance of its incumbent benefactor. In short it prevents anyone from anonymously propagandizing on behalf of candidates or ballot issues that the powers-that-be dislike. It deters anyone who fears retribution, whether his anxieties are justified or not, from freely expressing his positions on political matters at the crucial time of an election. Its subtle message is to conform. Toe the party line. Publicly identify yourself if you disagree. Let everyone know who you are. Otherwise be silent and abide with the status quo.
What exigent interest compels restrictions on a private individual simply handing out flyers on a street corner criticizing the performance of a candidate seeking re-election? What overriding need is there for a regulation inhibiting a group of citizens from communicating its views on the merits of a constitutional amendment or a sewer bond issue? The District Attorney suggests that anonymity is no longer necessary, relevant or beneficial to the political process. Fear of reprisals are largely illusory now, the prosecutor claims, and anonymity is most often the vehicle of the irresponsible. Moreover, it is argued, ideas are best evaluated when their source is known. Then was Junius the last patriot when he wrote, anonymously, that we ‘detest the pageantry of a king, and the supercilious hyprocrisy of a bishop’ (Letters, No. 35, December 19, 1769)? People are rarely beheaded nowadays, but was the regime of George III the last tyrannical establishment?
Of course, the identity of the source is helpful in evaluating ideas. But ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market’ (Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173 [1919] [Holmes, JJ.) Don’t underestimate the common man. People are intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. And then, once they have done so, it is for them to decide what is ‘responsible’, what is valuable, and what is truth.
For the foregoing reasons, it is apparent that, assuming these defendants have the standing to raise the overbreadth issue, Section 457 of the Election Law of the State of New York must be declared unconstitutional as overly broad in that it unfairly and unnecessarily sweeps within its criminal sanctions activity that is the protected right of every citizen under the First Amendment.” 351 N.Y.S.2d 978, 995.

Lower federal courts have considered statutes very similar to Louisiana’s and found them to be unconstitutional. In Zwickler v. Koota, 290 F.Supp. 244, 252 (E.D.N.Y.1968), vacated on other grounds, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), the district court struck down the predecessor of the law subsequently struck down in People v. Duryea, supra (the laws had identical language), stating:

“Anonymity alone, according to defendant, is the touchstone of the offense, but only if perpetrated in a political environment. Government assistance to a public figure, however, in ferreting out a ‘traducer’ whom he may the more readily identify and from whom he may seek civil damages as balm for his individual smart at criticism of his official performance weighs in the balance as too high a toll to be exacted from First Amendment freedom of expression for all. The freedom to animadvert upon public figures and affairs primes all others.”

In Printing Industries of Gulf Coast v. Hill, 382 F.Supp. 801 (S.D.Tex.1974), vacated 422 U.S. 937, 95 S.Ct. 2670, 45 L.Ed.2d 664, a Texas statute stating that any printed or published political advertising shall also have printed on it the name and address of the printer or publisher and the person paying for the advertising was declared unconstitutional, the court stating at page 811:

“It is also important to remember that the rights of the first amendment will be curtailed at a time when they are most vital — during an election campaign. Surely, if the first amendment was designed to assure a free government by free men, then the political discussions of an election year are the most important of all. Yet, the State would curtail these discussions precisely at that time. That this state of affairs places a substantial burden upon the first amendment is clear to this court and needs no further elaboration.”

In order to justify a restraint on protected expression, such as compulsory disclosure of the source of a political leaflet, the State must demonstrate that there is a compelling State interest in such restraint. Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945); National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963). Moreover, the limitation must be no greater than is necessary to protect that compelling interest. Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974).

In Buckley v. Valeo, 421 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the United States Supreme Court upheld the financial disclosure requirement of the Federal Election Campaign Act. However, in doing so, the court noted 96 S.Ct. at page 664:

“Section 434(e), as we have construed it, does not contain the infirmities of the regulations before the Court in Talley v. California, supra, and Thomas v. Collins, supra. The ordinance found wanting in Talley forbade all distribution of handbills that did not contain the name of the printer, author, or manufacturer, and the name of the distributor. The city urged that the ordinance was aimed at identifying those responsible for fraud, false advertising, and libel, but the Court found that it was ‘in no manner so limited.’ 362 U.S. [60], at 64, 80 S.Ct. [536], at 538 [4 L.Ed.2d 559]. Here, as we have seen, the disclosure requirement is narrowly limited to those situations where the information sought has a substantial connection with the governmental interests sought to be advanced. Thomas held unconstitutional a prior restraint in the form of a registration requirement for labor organizers. The Court found the State’s interest insufficient to justify the restrictive effect of the statute. The burden imposed by § 434(e) is no prior restraint, but a reasonable and minimally restrictive method of furthering First Amendment values by opening the basic processes of our federal election system to public view.”

R.S. 18:1531 is not narrowly limited to those situations where the information sought has a substantial connection with the governmental interests sought to be advanced. Rather, it forbids the distribution of any pamphlets and the like relating to a candidate for election unless the pamphlet discloses the name of the person responsible for its publication. As the trial judge pointed out, even a bumper sticker saying “Elect Smith” could be the basis for prosecution.

R.S. 18:1531 is incompatible with basic constitutional guarantees. We are cited to no cases where such a statute has been upheld. No substantial reason has been advanced for ignoring the uniform jurisprudence and clear constitutional provisions reprobating such statutes. Therefore, for the reasons expressed in the authorities here cited, R.S. 18:1531 must be declared unconstitutional.

The judgment of the trial court sustaining the motion to quash is affirmed.

      . La.Const. art. 5, § 5(D) provides:
      “In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional; (2) the defendant has been convicted of a felony or a fine exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed.”

      . Zwickler v. Koota was a declaratory judgment action. Zwickler had been convicted of violating the law by distributing anonymous handbills in connection with the 1964 congressional elections. His conviction was reversed on state law grounds. People v. Zwickler, 16 N.Y.2d 1069, 266 N.Y.S.2d 140, 213 N.E.2d 467. Afterward, Zwickler brought this suit to have the law declared unconstitutional. In the interval, the particular congressman Zwickler intended to criticize had left Congress to accept a position on the New York Supreme Court. The Supreme Court held this development precluded the issuance of a declaratory judgment, and vacated the judgment of the district court, noting “we accordingly intimate no view upon the correctness of the District Court’s holding as to the constitutionality of the New York statute.”

      . After the district court decision in this case, the Texas legislature enacted the Political Funds Reporting and Disclosure Act of 1975, which substantially amended the statute in issue in the case. The Supreme Court therefore remanded the case for consideration in light of the new amendments.


author: DIXON, J.,

text:
    STATE of Louisiana ex rel. David B. KELLY v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58357.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re David B. Kelly applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. There is no merit to this application.

DIXON, J.,

concurs in the denial. There has been an evidentiary hearing on the grounds alleged in this application, written reasons for denial by the district court and denial of writs by this court.


text:
    John R. PEREZ, Jr. v. Hon. Edwin W. EDWARDS, Governor, State of Louisiana, et al.
    No. 58469.
    Supreme Court of Louisiana.
    Aug. 12, 1976.
   In re: Johnnie A. Jones, Intervenor, applying for writ of certiorari. 336 So.2d 1072.

Writ refused. Insufficient reason is shown to justify a result contrary to that reached by us in No. 58,469, Perez v. Edwards, 337 So.2d 519, wherein the application was refused.


text:
    STATE of Louisiana ex rel. Rickey LOTT v. C. Paul PHELPS, Director, Louisiana, Dept. of Corrections, et al.
    No. 58257.
    Supreme Court of Louisiana.
    Sept. 22, 1976.
   In re: Rickey Lott applying for writ of habeas corpus.

Writ refused. We have examined the record of appeal (See, State v. Lott, 263 La. 941, 269 So.2d 822 (1972) and find no basis for the allegation of ineffective assistance of counsel alleged. See also evidentiary hearing in our Docket No. 52,225 and ruling of U.S. District Court for Western District of La. (Civil Action # 17,880.)


text:
    STATE of Louisiana ex rel. Larry HUDSON v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58322.
    Supreme Court of Louisiana.
    Sept. 24, 1976.
   In re: Larry Hudson applying for remedial writ and habeas corpus.

Writ denied. Relief sought has been passed upon by previous applications to this court. See State ex rel. Hudson v. Henderson, 262 La. 413, 263 So.2d 48 and 294 So.2d 545.


text:
    Robert N. SAMUELS v. FIRESTONE TIRE AND RUBBER COMPANY.
    No. 58352.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: Robert N. Samuels, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 333 So.2d 729.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Beatrice GRANT v. Lelia Caine Harrison ANDERSON.
    No. 58379.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: Beatrice Grant applying for certiorari, or writ of review to the Court of Appeal, Second Circuit, Parish of Bossier. 331 So.2d 862.

Not considered, not timely filed.


text:
    STATE of Louisiana ex rel. Lawrence Joseph SMITH v. Ross MAGGIO, Warden Louisiana State Penitentiary.
    No. 58345.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: Lawrence Joseph Smith, applying for writ of habeas corpus.

Writ denied. The defendant is not entitled to credit for pre-sentence incarceration against a sentence imposed prior to the 1970 amendment of La. Code of Crim. Procedure, Art. 880. See State v. Williams, 262 La. 769, 264 So.2d 638 (1972).


text:
    Emily BERTRAND et al. v. STATE FARM FIRE AND CASUALTY COMPANY et al.
    No. 58359.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: Emily Bertrand, Ind., etc., et al. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 333 So.2d 326.

Writ denied. No error of law.


text:
    STATE of Louisiana v. Andrew OWENS.
    No. 58346.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: Andrew Owens, applying for writ of habeas corpus.

Application denied; No showing is made in this application to warrant the exercise of our jurisdiction.


text:
    Isaac Foreman HAWKINS et al. v. Johnny BURLEIGH.
    No. 58340.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: Isaac Foreman Hawkins, et al. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Evangeline. 333 So.2d 359.

Writ denied. Upon the facts found by the court of appeal, the result is correct.


text:
    STATE of Louisiana ex rel. Ruben SMITH v. STATE of Louisiana et al.
    No. 58298.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: Ruben Smith, applying for writ of habeas corpus and remedial writs of certiorari.

Writ denied: The applicant is not entitled to the relief sought. See also transcript of plea of guilty of November 5, 1971.


text:
    STATE of Louisiana v. Richard O. WALLER.
    No. 58236.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: State of Louisiana, applying for supervisory writs.

Application denied: No error in the ruling of the district court.


text:
    Joseph A. OGEA v. Joseph C. JACOBS et al.
    No. 58364.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: Joseph A. Ogea, applying for writs of certiorari, prohibition, and mandamus.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Isom J. Guillory, Judge of the Twenty Seventh Judicial-District, Court for the Parish of St. Landry, to transmit to the Supreme Court of Louisiana, on or before the 8th day of October, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 10th day of November, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Donald E. LESTER v. EMPLOYERS MUTUAL LIABILITY INSURANCE CO. OF WISCONSIN et al.
    No. 58368.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: Donald E. Lester applying for certiorari, or writ of review, to the Court of Appeals, Third Circuit, Parish of Natchi-toches. 333 So.2d 672.

Writ denied. No error of law shown.


text:
    Helen Marie Reed AYMOND et al. v. STATE of Louisiana, DEPT. OF HIGHWAYS.
    No. 58378.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: State of Louisiana, Department of Highways applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 333 So.2d 380; 333 So.2d 383.

Writ denied. No error of law under the facts found by the court of appeal.


text:
    Emily BERTRAND, as Administratrix of the Estate of Bradley Keith Bertrand, etc. v. STATE FARM FIRE AND CASUALTY COMPANY et al.
    No. 58358.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: Emily Bertrand, as Administratrix of the Estate of Bradley Keith Bertrand, etc. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 333 So.2d 322.

Writ denied in part, granted in part: No error of law is shown as to denial of damages sought; However, as to the adminis-tratrix’s claim for the funeral expenses of the child, not passed upon by the court of appeal, the writ is granted, and the case is remanded to the court of appeal for its determination of the issue.


text:
    Sallie Bertrand LeBLANC v. STATE FARM FIRE AND CASUALTY COMPANY et al.
    No. 58415.
    Supreme Court of Louisiana.
    Sept. 29, 1976.
   In re: State Farm Fire and Casualty Co. and Robert James Chandler applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 333 So.2d 327.

Writ denied. No error of law.


text:
    E. L. HENRY et al. v. Edwin W. EDWARDS, Governor of the State of Louisiana.
    No. 58675.
    Supreme Court of Louisiana.
    Sept. 30, 1976.
   In re: Joint application of E. L. Henry, Frank P. Simoneaux, Walter O. Bigby, Kevin P. Reilly, John J. Hainkel, Jr., Michael F. Thompson, Ron Faucheau and David Poyn-ter; Edwin W. Edwards.

Writ denied. We will not exercise our supervisory jurisdiction in this case since the case has not been passed upon by the Courts below which Courts can give immediate consideration to this matter.


text:
    Matthew GUSTAIN v. AETNA CASUALTY AND SURETY CO.
    No. 58396.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Matthew Gustain, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 333 So.2d 369.

Application denied; on the facts found by the Court of Appeal the judgment is correct.


text:
    STATE of Louisiana v. Richard D. LAFOND.
    No. 58641.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Harry F. Connick, District Attorney, Parish of Orleans, applying for writ of certiorari.

Writ denied. We cannot say an abuse of discretion on the part of the trial judge has been shown.


text:
    STATE of Louisiana ex rel. Bernard FRANCIS v. Hon. Charles A. WARD, Judge, Criminal District Court, Parish of Orleans.
    No. 58502.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Bernard Francis, applying for writ of mandamus.

Writ denied. The issue is moot.


text:
    Colia PRESTON v. CHRYSLER MOTORS(S) CORPORATION et al.
    No. 58403.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Brignac Dodge, Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 334 So.2d 486.

Writ denied. No error of law.


text:
    Mrs. Barbara Lemoine Jemison, wife of/and James E. JEMISON, Jr. v. Donald J. KENNELLY et al.
    No. 58400.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Seale H. Vincent and General Accident Fire and Life Assurance Corp., Ltd. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 333 So.2d 367.

Writ denied. No error of law.


text:
    Inez JACKSON v. ED’S CAB COMPANY et al.
    No. 58398.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Inez Jackson applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 333 So.2d 701.

Writ denied. On the facts found, the result is correct.


text:
    Thomas C. FARRELL, Jr., et al. v. HODGES STOCK YARDS, INC., et al.
    No. 58383.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Louisiana Southern Railway Co., applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. Bernard. 333 So.2d 745.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Sylvester Ray JOHNSON v. STATE FARM MUTUAL AUTOMOBILE INS. CO.
    No. 58391.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Sylvester Ray Johnson applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 334 So.2d 478.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Thomas C. FARRELL, Jr., et al. v. HODGES STOCK YARDS, INC., et al.
    No. 58387.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Hodges Stock Yards, Inc. et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. Bernard. 333 So.2d 745.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Charles B. W. PALMER v. Luvenia CROCKERHAM.
    No. 58390.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Charles B. W. Palmer, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 334 So.2d 508.

Writ denied. The judgment of the Court of Appeal is correct.


text:
    PALMER AND PALMER v. Minnie STEWART.
    No. 58389.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Palmer and Palmer applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Helena. 334 So.2d 520.

Writ denied. No error of law.


text:
    C. I. T. FINANCIAL SERVICES CORP. v. C. L. ROBINSON et al.
    No. 58385.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: C.I.T. Financial Services Corp., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Concordia. 335 So.2d 501.

Writ refused. On the facts found, the result is correct.


text:
    Dr. Herbert Ray EVERS v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS.
    No. 58386.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Dr. Herbert Ray Evers, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 336 So.2d 36.

Not considered. Applicant failed to apply for a rehearing to the adverse judgment in the Court of Appeal. Rule XI, § 5, Rules of Court of Appeal.


text:
    James S. KING, Jr. v. Mrs. Everett CRAWFORD and Wilbur Smith, et al.
    No. 58392.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Mrs. Everett Crawford, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Washington. 334 So.2d 476.

Writ refused. No error of law.


text:
    Andrew J. LOWERY v. CENLA BEVERAGE, INC.
    No. 58395.
    Supreme Court of Louisiana.
    Oct. 1, 1976.
   In re: Cenla Beverage, Inc. applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of Rapides.

Writ denied. The result is correct.


text:
    STATE of Louisiana v. Paul E. BOETTCHER.
    No. 58694.
    Supreme Court of Louisiana.
    Oct. 5, 1976.
   In re: Paul E. Boettcher applying for writ of review.

Writ refused. Petitioner is not entitled to extraordinary relief sought under our supervisory jurisdiction. See reasons assigned by trial judge.


text:
    STATE of Louisiana v. Kenneth Ray SMITH.
    No. 58690.
    Supreme Court of Louisiana.
    Oct. 5, 1976.
   In re: Kenneth Ray Smith applying for writ of certiorari.

Writ denied. The application does not merit favorable action. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).


text:
    STATE of Louisiana v. Alcide J. WEYSHAM.
    No. 58686.
    Supreme Court of Louisiana.
    Oct. 5, 1976.
   In re: Alcide J. Weysham applying for supervisory writs of certiorari and/or review, mandamus and prohibition.

Writ denied: In the absence of palpable error, we do not interfere with orderly proceedings in the trial court. The petitioner has an adequate remedy by review in the event of conviction.


text:
    In re Cynthia NORMAND et al. v. CITY OF NEW ORLEANS et al.
    No. 58716.
    Supreme Court of Louisiana.
    Oct. 7, 1976.
   In re: Travelers Ins. Co., applying for remedial writ.

Application denied; the showing made does not warrant the exercise of our jurisdiction.


text:
    STATE of Louisiana v. Chester MORRIS, Jr.
    No. 58737.
    Supreme Court of Louisiana.
    Oct. 11, 1976.
   In re: Chester Morris, Jr., applying for writs of certiorari, prohibition, mandamus and for a stay order.

Writ granted; preliminary examination ordered prior to trial. See Art. 1, sec. 14, La.Const. of 1974.


author: LANDRY, Judge. LANDRY, Judge.

text:
    A. E. LANDVOIGT, INC. v. LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM.
    No. 10529.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    On Rehearing Sept. 20, 1976.
    Writs Refused Dec. 3, 1976.

      Victor A. Sachse and Frank Simoneaux of Breazeale, Sachse and Wilson, Baton Rouge, for appellant.
    William R. Carruth, Jr., Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   LANDRY, Judge.

Plaintiff A. E. Landvoigt, Inc. (Appellant) appeals from judgment dismissing its claim against defendant Louisiana State Employees’ Retirement System (System) for a loan origination and processing fee of $135,000.00, representing one per cent of a loan commitment by System to Harry J. Hart (Developer) and West Side Twelve Corporation (WS 12), allegedly due Appellant for processing of any loans sought by Hart from the System on behalf of Hart individually or any Hart corporation. We reverse and render judgment in favor of Appellant.

Appellant is a mortgage banking firm incorporated under the laws of Maryland; its main office is in Arlington, Virginia. Appellant’s business involves preparation and processing of mortgage loans from potential investors to developers. Essentially, Appellant gathers information concerning the financial needs of developers or other prospective borrowers and attempts to match these needs with interested investors. A typical operation involves presentation of a developer “package” to an investor, including appraisals of construction costs, architectural, legal and engineering costs, land values, interest rates, feasibility studies and an estimation of income to be generated by the project. If the investor approves the project and grants the developer a loan commitment, Appellant receives a loan origination and processing fee of one per cent of the loan commitment, which is standard compensation for such services in the mortgage banking business, and which fee is considered earned when a loan commitment is granted, irrespective of whether the loan is consummated.

A mortgage banker also services the loans it processes. Servicing includes primarily the collection of mortgage payments and remittance thereof to the lender. It also involves reporting delinquencies to the lender as well as payment of taxes and insurance on the mortgaged property. Mortgage bankers customarily receive a fee of one-eighth of one per cent of the declining loan balance as compensation for loan servicing.

Appellant maintains no office in Louisiana. Neither does Appellant have any employees, agents or representatives living in thjs state. It is conceded that Appellant has not qualified to do business here.

At this juncture, it suffices to note that Appellant’s activity in this state consists solely of processing a single loan from System to Developer and, incidental thereto, entering into an agreement with System for the servicing of said loan. Included in the servicing agreement is the following provision upon which Appellant’s action is founded:

“16. Company (System) agrees to protect Correspondent (Appellant) on all future business of clients introduced to Company by Correspondent by requesting said client to process his application through Correspondent.”

On April 23, 1973, while negotiations concerning the loan servicing agreement were in progress, Appellant wrote System a letter relative to said proposed agreement which communication pertinently states:

“The people introduced in this transaction who should be referred to us on future transactions are as follows:
Hart & Fulco Enterprises, Inc.
Hart Construction, Inc.
Louisiana Equity & Funding, Inc.
Fulco Realty
Harry Hart
Roy Fulco
Les O’Neal”

The loan to Developer was closed in July, 1973. Appellant received its one per cent fee from Developer for having processed the application.

On July 13, 1973, System issued a loan commitment in the sum of $13,500,000.00 to WS 12, represented by Harry J. Hart, President, and Harry J. Hart, individually, for a land development project in West Baton Rouge Parish, Louisiana. Hart and WS 12 paid System a fee of $405,000.00 for granting the commitment. Part of the commitment agreement consisted of Hart’s granting System a continuing personal guarantee to repay $2,700,000.00 of the loan if granted. System acknowledges it did not request Hart to process this application through Appellant. Appellant maintains said failure constituted a breach of hereinabove quoted paragraph 16 of the servicing agreement, thus entitling Appellant to the damages sought herein.

System argues that the servicing agreement was not a binding contract insofar as paragraph 16 is concerned because Hart was not obligated to process loans through Appellant if requested by System to do so. Alternatively, System urges there was no violation of the agreement because the application in question was by WS 12, which concern was not identified as Appellant’s client. System also contends that Appellant is precluded from enforcing any claim in the courts of this state because Appellant failed to comply with applicable state registration laws, namely, LA-R.S. 51:701(8) and (9). Lastly, System alleges Appellant has failed to prove that damages were sustained, or the extent thereof.

Appellant contends the servicing agreement is a binding contract, and that System violated its terms by declining to request Hart to process the WS 12 application. Appellant also maintains it was not required to register as a mortgage broker as provided by former LA-R.S. 51:701(8) and (9), later repealed by Act 493 of 1974, because Appellant was approved by the Federal Housing Administration as a mortgagee, and therefore exempt from the statute in question. Alternatively, Appellant contends repeal of Section 701(8) and (9), above, by Act 493 of 1974 removed the penalty provisions of the former statute, including the prohibition against suit in this state to enforce a contract confected in violation of former Section 701. In the further alternative, Appellant suggests its exemption from local registration pursuant to Section 701, above, because Appellant is engaged in interstate commerce.

The lower court held that while WS 12 was in effect the alter ego of Hart, System was not bound to request WS 12 to process its application through Appellant because System could have made the loan to WS 12 even if Hart refused to process through Appellant after request by System. The trial court also found Appellant subject to registration under Section 701, above, based on the conclusion that Appellant was” doing business in Louisiana and that Appellant could not claim the exemption afforded brokers engaged exclusively in interstate commerce. Lastly, the trial court held Appellant failed to establish damage or loss in that Appellant offered no proof that Hart would have processed the WS 12 application through Appellant had the System requested Hart to do so.

We agree with the trial court’s determination that a loan to WS 12 was a loan to Hart in contemplation of Paragraph 16 of the servicing agreement. As noted above, the application was made jointly in the name of Hart, individually, and WS-12 represented by Hart as its President. We likewise recall Hart’s personal guarantee of a substantial percentage of the loan. In addition, we note that the System’s Director, Roy P. Schaefer, conceded the System’s probable intent was to make the loan to Hart individually, regardless of the corporate form Plart might use for the particular project involved.

However, we disagree with the trial court’s conclusion that Paragraph 16 of the servicing agreement did not bind System to make the request of Hart because System could have issued the commitment even though Hart might have failed to request Appellant to handle the processing. Conceding the correctness of this contention, it does not follow that System was not obligated to make the request. The contract provision clearly and unambiguously imposes upon System the onus of making the request. That Appellant was not assured benefits as a result of such a request is a matter of no moment. We readily perceive that a prospective borrower would be greatly influenced by a request or recommendation of a prospective lender, even though such a request be not mandatory. There can be little doubt but that the intended beneficiary of such a recommendation or request would receive a valuable advantage over his competitors. System’s failure to make the request deprived Appellant of this advantage, and therefore constituted a breach of the contract obligation.

The following statutory provisions are pertinent herein:

LA-R.S. 51:701(8) and 710(D), as reenacted by Acts 61 and 66 of 1969, and prior to amendment of Act 493 of 1974, provided :

51:701(8):
“ ‘Loan broker’ means any person who engages in the business of purchasing wages or salaries or who acts as a go-between, finder or agent of a lender or borrower of money for the purpose of procuring a loan of money, or who engages in the business of guaranteeing or endorsing notes and other evidences of indebtedness. ‘Loan broker’ does not include any business approved by the Federal Housing Administration -as an approved mortgagee, insofar only as any of its mortgage loan business is concerned, nor shall it include any business which is otherwise regulated or supervised by any agency of the Federal or State government or any corporation not considered to be transacting business in this state under the provisions of R.S. 12:302.”
51:710(D):
“It shall be unlawful for any person to transact business in this state, either directly or indirectly, as a loan broker or as a mortgage loan company unless such person is registered in the office of the commissioner pursuant to the provisions of this Section.”
LA-R.S. 51:715(F) states:
“No person who has made or engaged in the performance of any contract in violation of any provision of this Part or any rule or order hereunder, or who has acquired any purported right under any such contract with knowledge of the facts by reason of which its making or performance was in violation, may base any suit on the contract.”
LA-R.S. 12:302 recites:
“302. Acts not considered transacting business.
Without excluding other activities which may not constitute transacting business in this state, a foreign corporation or a business association shall not be considered to be transacting business in this state, for the purpose of being required to procure a certificate of authority pursuant to R.S. 12:301, by reason of carrying on in this state any one or more of the following activities:
H. Transacting any business in interstate or foreign commerce.”

Act 493 of 1974 amended LA-R.S. 51:701(8) and 710(D), deleting therefrom all reference to loan brokers.

We pretermit consideration of whether Appellant was a loan broker as defined in the pertinent statutes, and also pretermit discussion of whether Appellant was exempt from the provisions of Section 701(8) because Appellant was allegedly a business approved by the Federal Housing Administration as an approved mortgagee. We do so upon finding that the activity of Appellant, in this instance, amounted to transaction of business in interstate commerce and as such was exempt, pursuant to LA-R.S. 12:302, from the registration provisions of LA-R.S. 51:701(8) and 710(D).

As previously noted, Appellant maintains no office in Louisiana and has no agents, employees or representatives residing in or making calls upon prospective borrowers or lenders in this state. Appellant’s first contact with prospective Louisiana lenders or borrowers occurred in the spring of 1973, when Appellant learned of Hart’s interest in acquiring a loan through a California company whose business is publishing names and projects of potential developers for use by mortgage banking corporations, to which publication Appellant subscribes. Appellant first searched among New York investors for a source of funding for Hart’s project but found no interest in that area. Later, at a mortgage banker’s convention, Appellant learned of the System’s interest in real estate loans and contacted the System relative to Hart’s proposed project. This initial contact was ensued by negotiations between all parties concerned, the bulk of which negotiations were carried on by mail and telephone. During the entire process, Appellant’s representatives made but two trips to Louisiana. On April 10 and 11, 1973, Appellant’s President, Edward T. Briner, and Executive Vice President, J. Richard Leon, flew to Louisiana for consultation with the System’s Director, Roy P. Schaefer, Jr., and to inspect the motel in Bossier City, Louisiana, for which riart was seeking financing. On April 11, 1973, the System’s Board of Directors met and approved a loan commitment to Hart in the sum of $335,000.00. Briner returned to Louisiana on April 16, 1973, to personally pick up the loan commitment which was accepted by Developer on May 24, 1973. Meanwhile, negotiations were under way via mail and telephone regarding the terms of a Mortgage Servicing Agreement whereby Appellant would service the pending loan if it were ultimately confected. Appellant sent the System a servicing agreement form prepared by Appellant. The document was submitted to System’s counsel who proposed certain changes. A copy of the amended document was sent back to Appellant who recommended certain further revisions. Ultimately, the agreement was revised by System’s counsel to the mutual satisfaction of both parties. System signed the contract in Baton Rouge, Louisiana, and forwarded the document to Appellant who executed the agreement at Appellant’s home office. The instrument bears the date of May 29, 1973. In servicing the mortgage agreement made pursuant to Developer’s Bossier City loan, Appellant received, by U. S. mail, all monthly payments due by Developer thereunder at Appellant’s collection office in Washington, D. C. Appellant then wired System its portion of the payments via remittance to System’s bank in Baton Rouge, Louisiana. In fulfilling Appellant’s obligations under the servicing agreement, Appellant has made only one trip to Louisiana. So far as the record shows, the mentioned service agreement is the only such transaction conducted by Appellant in this state.

The test for determining whether a loan broker is engaged in intrastate business is the same as that employed in deciding whether a foreign corporation’s activity in a given state is such as to remove the corporation’s sphere of operation from one in interstate commerce to a local state operation thus subjecting the corporate entity to local licensing and regulation. It is well settled that in this regard the question of intrastate corporate activity must be determined in the light of the circumstances of each individual case. Hattiesburg Manufacturing Co., Inc. v. Pepe, La.App., 140 So.2d 449; Kirkeby-Natus Corporation v. Campbell, La.App., 210 So.2d 103; Equitable Discount Corporation v. Jefferson Television Sales and Service, La.App., 169 So.2d 567; J. Perez, S. A. v. Louisiana Rice Growers, Inc., La.App., 139 So.2d 247.

We conclude the nature and extent of Appellant’s Louisiana activities constitute operation in interstate commerce. Such limited activity is insufficient, in our view, to constitute intrastate operation subjecting a foreign corporation to state licensing and regulation. Redi-Spuds, Inc. v. Dickey, 230 La. 406, 88 So.2d 801; Charles Pfizer & Co., Inc. v. Tyndall, La.App., 287 So.2d 552; Equitable Discount Corporation v. Jefferson Television Sales and Service, La.App., 169 So.2d 567; Hattiesburg Manufacturing Co. v. Pepe, La.App., 140 So.2d 449.

We are mindful of that line of authority which permits action in a state court against a foreign corporation having sufficient “minimal contact” within a state to satisfy the requirements of federal constitutional due process under local so called “Long Arm Statutes”. See McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; Fisher v. Albany Machine & Supply Co., La.App., 246 So.2d 218. It is our view that the jurisprudence established by these authorities is inapplicable in determining whether an activity constitutes intrastate operation sufficient to support state regulation. We are of the further view that the jurisprudence concerning the amount of business activity required to support state regulation demands considerably more local activity than is necessary to subject a nonresident to a state’s jurisdiction for purposes of litigation. We find the latter test has not been met in this instance.

Appellant concedes Paragraph 16 of the servicing agreement does not vest it with an exclusive correspondency. Appellant also admits that had Developer refused to permit Appellant to process the WS 12 application after having been so requested by System, Appellant would have had no enforceable right in the matter. However, Appellant urges that System’s failure to perform deprived Appellant of the possibility of earning a fee with regard to the WS 12 transaction.

We find Appellant is entitled to damages, and that the extent of the recovery must be determined in the light of LA-C.C. Article 1934(3), which provides that where the object of a contract is other than the payment of money, damages due for breach are the amount of the loss sustained and the amount of profit of which the offended party is deprived. The article also recognizes exceptions wherein damages may be awarded for contractual breach in which damages cannot be calculated altogether in pecuniary loss. In such instances, much discretion is left to the court or jury in the assessment of damages.

Applying the foregoing principle herein, we note that Appellant offered no proof of actual loss as a result of System’s breach. Neither did Appellant offer testimony to establish loss of profit. While Appellant claims the entire commission of $135,000.-00, it is clear that Appellant would have incurred expense in processing the application. Although the record contains no evidence of normal loan processing expenses, we assume from the testimony of Appellant’s representatives that such expenses would have been considerable. Obviously, Appellant has not sustained a loss in the entire amount of the fee.

Lost profits may be recovered as damages where they are not speculative or uncertain in nature and are susceptible of proof with reasonable certainty. George W. Garig Transfer, Inc. v. Harris, 226 La. 117, 75 So.2d 28; Southern Television Electronics v. Read, La.App., 244 So.2d 624.

Appellant has failed to establish loss of profits with that degree of certainty legally required. Whether Developer would have processed the WS 12 application through Appellant if requested by System is a matter of sheer speculation under the facts of this case. It may be presumed that Developer would have so reacted if requested. However, Mr. Schaefer testified that Developer made it clear that Developer did not intend to borrow money from System, but that Developer desired the commitment solely for use in obtaining the actual loan from another source. If Developer’s intent was as signified by Schaefer, Developer may well have declined to permit Appellant to process the loan.

Nevertheless, we find Appellant is entitled to compensatory damages for the System’s breach. Under the recently announced rule espoused by the Supreme Court in Gonzales v. Xerox Corporation, et al., La., 320 So.2d 163, we shall assess damages herein rather than remand this matter to the trial court for performance of this function.

Exercising the broad discretion vested in us pursuant to the hereinabove cited authority, we find that Appellant is entitled to nominal damages, and also find that under the circumstances an award of Five Thousand and No/100 ($5,000.00) Dollars will do substantial justice between the parties.

It is ordered, adjudged and decreed that the judgment of the trial court be and the same is hereby reversed and set aside, and that there be judgment herein in favor of Appellant, A. E. Landvoigt, Inc., and against defendant, Louisiana State Employees Retirement System, in the full sum of Five Thousand ($5,000.00) Dollars, together with legal interest thereon from date of judicial demand, until paid; all costs of these proceedings for which defendant may be legally cast shall be paid by defendant.

Reversed and rendered.

ON REHEARING

Before LANDRY, COVINGTON and PONDER, JJ.

LANDRY, Judge.

Plaintiff and defendant having each urged numerous errors in our original decree, we granted both litigants a full rehearing to reconsider all facets of our initial opinion.

After hearing the argument and considering the briefs of the parties in support of their averred errors in our prior judgment, we conclude that all issues raised on rehearing were adequately considered and properly disposed of in our first decree.

Accordingly, the original opinion rendered herein is affirmed without amendment or modification. Each party to this litigation shall pay the cost of its application for rehearing.