author: GRIMES, Judge. HOBSON, Acting Chief Judge,

text:
    INDIANA MORTGAGE & REALTY INVESTORS, a Maryland Business Trust, Appellant, v. PEACOCK CONSTRUCTION COMPANY, Appellee.
    No. 76-1735.
    District Court of Appeal of Florida, Second District.
    July 13, 1977.
    As Corrected July 19, 1977.
    Rehearing Denied Aug. 11, 1977.
    William C. Martin, III of Akerman, Sen-terfitt & Eidson, Orlando, for appellant.
    Julian Clarkson, Fort Myers, for appellee.
   GRIMES, Judge.

This is an appeal from a final judgment awarding a contractor an equitable lien on foreclosed land prior in dignity to the lien of the mortgage.

Landco, Inc. owned property in Punta Gorda on which it determined to build a condominium project. Landco obtained a construction loan commitment from appellant (Indiana) for $1,800,000. Pursuant to the loan agreement, Landco executed a note to Indiana in this amount which was secured by a mortgage recorded on July 18, 1973. Appellee (Peacock) entered into a contract with Landco for the construction of the condominium for a contract price of $1,200,000. Subsequent change orders increased the contract price to $1,351,522. Peacock was not a party to the loan agreement. Notice of commencement was recorded on July 24, 1973. Peacock began work in December of 1973 and completed the project in June of 1975.

On August 19, 1975, Indiana filed suit to foreclose the $1,800,000 mortgage together with a subsequent mortgage of $32,825. Peacock and various subcontractors and materialmen were joined as defendants in the suit. Peacock filed a counterclaim for the balance of monies owed on the construction contract. Following a nonjury trial, the court directed that the mortgages be foreclosed and the property sold at public sale but concluded that Peacock was entitled to an equitable lien on the land superi- or to both mortgages in the amount of $209,881.46. Indiana appeals that portion of the judgment which awarded Peacock the prior lien.

Peacock’s prior lien was predicated entirely upon a telephone conversation between its president Cassius Peacock, Jr., and Donna Crane, Indiana’s loan disbursements representative. Mr. Peacock said that he called Indiana on August 16, 1974, to inquire of the status of the loan because at that time Landco owed his company some $257,000 on draw applications previously submitted. He said he first obtained from Ms. Crane information concerning the several disbursements to Landco which had already been made because he wanted to compare these payments with what his company had been receiving. He then inquired how much money was undisbursed in the construction loan fund but was advised that this information could not be divulged. Mr. Peacock then testified:

“So I said, Tf I tell you how much money is yet to be paid us, can you tell me whether or not that’s enough to finish the job?’ And she said, ‘How much do you show?’
So I told her and she said there was enough left in the construction loan fund to cover that amount of money.”

Mr. Peacock could not recall the figure that he gave as being the cost of finishing the project, but he said that he would have arrived at the correct amount by making an appropriate computation from figures reflected on the last draw request.

Ms. Crane admitted that she had several telephone conversations with Mr. Peacock while the project was under construction, but she said she had no specific recollection of the conversation of August 16, 1974, about which Mr. Peacock testified. She said that she would not have advised Mr. Peacock that there were sufficient undis-bursed loan funds to pay for the completion of the project because she was not authorized to do so.

The records reflect that on August 16, 1974, the balance of the undisbursed construction loan fund was about $100,000 short of what would have been necessary to pay Peacock in full for its previous unpaid draws plus the remainder of the money that would be owing to Peacock upon the completion of the work. All loan disbursements subsequent to August 16, 1974, were used either to pay subcontractors or materialmen on the project, to pay interest on the construction loan pursuant to the loan agreement or to pay Peacock. All payments received by Peacock after that date were by way of Indiana’s checks payable jointly to Landco and Peacock. When the project was completed, Landco still owed Peacock $191,284.18 plus interest. There were no remaining undisbursed loan funds.

In support of the judgment, Peacock relies primarily upon our opinion in J. G. Plumbing Service, Inc. v. Coastal Mortgage Company, 329 So.2d 393 (Fla.2d DCA 1976), which was issued just three months before the trial in this cause. In that case we said:

“. . .we readily agree that a construction lender should not be permitted to affirmatively mislead subcontractors and materialmen so as to induce them to continue to work upon and supply materials to the job to their detriment. A construction lender who falsely advises a ma-terialman or subcontractor that the mortgage is not in default must suffer the consequences if further work and materials are incorporated into the project in reliance thereon. Such action would be equivalent to the fraud and misrepresentation which the courts have traditionally sought to remedy where possible through the imposition of an equitable lien.”

Accepting Peacock’s version of the facts, as we must for purposes of this appeal, we do not believe that the telephone call of August 16, 1974, furnished a sufficient basis upon which to predicate the imposition of an equitable lien on the property. The parties were not in privity. The mortgage was not in default at the time of the conversation. There was no promise to retain monies specifically for the benefit of Peacock. No funds were disbursed in violation of the loan agreement. There was no agreement to underwrite the contractor’s obligations under the construction contract. There was no evidence that Indiana was seeking to induce Peacock to continue to work on the project. In the words of J. G. Plumbing Service, Inc., the only duty flowing from the mortgagee in this posture was not to “affirmatively deceive” the contractor to his detriment. The mistaken observation that there seemed to be enough money left in undisbursed loan funds to complete the project falls short of what we contemplated as “affirmative deception” equivalent to fraud and misrepresentation which would justify the imposition of an equitable lien. See also Gancedo Lumber Company, Inc. v. Flagship First National Bank of Miami Beach, 340 So.2d 486 (Fla.3d DCA 1976). To permit a telephone conversation of this nature under the circumstances of this case to result in subordinating the mortgage to an equitable lien would inject an unnecessary degree of uncertainty into the construction loan industry.

There is a second reason why this judgment must be reversed. Peacock’s answer to the complaint simply constituted a general denial. Thereafter, Indiana filed a motion for summary judgment supported by an appropriate affidavit. Peacock then moved to amend its answer by adding a counterclaim in which it sought a judgment against Indiana to the extent of a 10% retainage which Indiana was alleged to have withheld from the loan disbursements. The court granted Indiana’s motion for summary judgment except with respect to priorities between Indiana and Peacock.

Indiana made a second effort to obtain a summary judgment upon all issues and scheduled a hearing for January 29, 1976. Two days prior to the hearing, Peacock filed an unsworn statement in opposition to the motion and attached thereto copies of unauthenticated documents which counsel asserted “might relate to the motion for summary judgment filed by the plaintiff.” These documents included copies of the construction loan agreement, checks representing disbursements by Indiana, receipts and partial releases of liens, and change orders, There was no indication how any of these documents presented issues of fact even if they were appropriately before the court in the absence of a sworn statement. The court once again denied Indiana’s motion for summary judgment as it related to priority over the contractor’s claim.

At this point in the proceeding, there were neither pleadings nor proof directed to deception on the part of Indiana nor reliance by Peacock on statements made by Indiana. ■ In opposition to the contention that Indiana should have been granted a summary judgment against Peacock at either the first or the second hearing, Peacock points to a portion of a memorandum filed by appellant following the second hearing which stated:

“The plaintiff does not wish to preclude Peacock from having its day in court on its counterclaim and suggests that the court’s order granting the plaintiff’s motion for summary judgment specifically reserve that issue for later determination.”

This statement did not constitute a concession of anything bearing upon lien priorities because the counterclaim as then on file was making a direct claim against Indiana for monies allegedly consisting of undis-bursed loan funds and did not include a claim for an equitable lien on the land. It was only after the motion for summary judgment was denied a second time that Peacock further amended its counterclaim to interpose a claim for an equitable lien upon the property. Therefore, Indiana was entitled to summary judgment before the issue of “affirmative deception” was ever introduced into the case.

REVERSED.

SCHEB, J., concurs.

HOBSON, Acting C. J., concurs specially with opinion.

HOBSON, Acting Chief Judge,

concurring specially.

I concur in the conclusion because I agree with the first ground for reversal which is stated in the opinion. However, I would not reverse for failure to grant a summary judgment.


source: Caselaw Access Project

author: RAWLS, Acting Chief Judge.

license: Public Domain

text:
    STATE ex rel. Gary Norwood RENO, Petitioner, v. Honorable Everett RICHARDSON, Circuit Judge, Fourth Judicial Circuit, in and for Duval County, Florida, and Honorable Dale Carson, Sheriff of Duval County, Respondents.
    No. GG-366.
    District Court of Appeal of Florida, First District.
    July 15, 1977.
    Donald F. Perrin of Schneider, Dunay & Lee, P.A., Jacksonville, for petitioner.
    Joel L. Goldman of Goldman, Presser, Lewis & Nussbaum, Jacksonville, for respondents.
   RAWLS, Acting Chief Judge.

By petition for writ of habeas corpus, Reno presents the following query: May a trial court imprison a husband for contempt for failure to pay a third party on a joint debt of the husband and wife? The answer is no.

A salient provision set out in the final judgment entered December 6, 1976, dissolving the marriage of Reno and his wife is:

“7. The Husband shall pay the joint obligation to C.I.T. Finance Company, Ba-byland Furniture, and May-Cohens, and shall hold the wife harmless from default on same.”

On June 2, 1977, in hearing various motions filed by the wife, the trial court entered an “Order Allowing Husband’s Withdrawal of Counsel and Imposition of Contempt Penalty” wherein, after finding that the Husband has had the past capacity to pay the obligations imposed upon him by the Final Judgment, and that he has wilfully failed to do so”, ordered him to pay or otherwise satisfy the claim of C.I.T. Finance Company against the wife and the husband. A further provision of the order directed the husband to appear before the court at 9:00 a.m. on July 5, 1977, and present proof of satisfying the C.I.T. claim, and upon failure so to do that he would be sentenced to 60 days in the Duval County Jail. An “Order on Commitment for Contempt” was entered by the trial court on July 5,1977, which found that the husband, although able to do so, wilfully failed and refused to make the payment to C.I.T. and directed that he be confined in the Duval County Jail for 60 days with the additional provision that the husband could purge himself of the contempt by paying C.I.T. and the commitment costs.

Squarely in point is the Supreme Court’s opinion in State v. Mason, 4 So.2d 255 (Fla.1941). There, the trial court had, in a divorce decree, required the husband to pay a bank certain sums of money “in restitution to the plaintiff [wife] of sums of money dissipated from her estate during the existence of their marriage”. Upon a hearing seeking the adjudication of the husband to be in contempt for failure to pay the bank, the trial court, after finding that the husband had the capacity to pay the delinquent sums, sentenced him to 30 days in jail unless he purged himself by the payment to the plaintiff of the sums due. The Supreme Court observed that even though the liability had its origin in financial transactions between the husband and the wife on the one part and the bank on the other part, the decree was not based upon any marital duty of the husband to the wife; thus, it was based upon a civil debt contemplated and proscribed by Section 16 of the Declaration of Rights, Constitution of Florida (1885). The rationale of State v. Mason has been followed by the Second District Court of Appeal in State v. Phillips, 193 So.2d 26 (Fla. 2nd DCA 1966), and by this court in Corbin v. Etheridge, 296 So.2d 59 (Fla. 1st DCA 1974). See also Burke v. Burke, 336 So.2d 1237 (Fla. 4th DCA 1976).

The decree, being one requiring the payment of a debt then due to a third party, is not a decree that may be enforced by proceedings in contempt. The petition for writ of habeas corpus is granted with directions that petitioner, Gary Norwood Reno, be discharged from custody.

SMITH and ERVIN, JJ., concur.

      . The husband and his counsel were present.

      . Article I, Section 11, Florida Constitution (1968), is identical to Section 16 of the 1885 Constitution.


author: BOYER, Acting Chief Judge. ERVIN, Judge, MILLS, Judge,

text:
    REALTY MARTS INTERNATIONAL, INC., Appellant, v. Mae H. BARLOW and William C. Coe, Appellee.
    No. CC-411.
    District Court of Appeal of Florida, First District.
    July 20, 1977.
    John M. Davis of Fitzgerald & Davis, Milton, for appellant.
    Patrick G. Emmanuel of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for appellee.
   BOYER, Acting Chief Judge.

This is the second appearance of this case before this Court. See Realty Marts, Inc. v. Barlow, 312 So.2d 544 (Fla. 1st DCA 1975). The relevant factual background is recited in our prior opinion and no useful purpose will be served by repetition here. The record reveals that upon remand the learned trial judge held a hearing at which the defendants, appellees here, adduced evidence following which the trial court entered a final judgment reciting “that the plaintiff, Realty Marts International, Inc., take nothing by this action and that defendants, Mae H. Barlow and William C. Coe, go hence without day.” It is from that final judgment that Realty Marts now appeals.

Appellees yet urge that appellant was not entitled to a commission for the reason that its agent failed to notify the property owners that the subject property had been shown to the ultimate purchaser. That point was settled by this Court’s prior opinion wherein we stated “A realtor is under no obligation to notify the property owner every time the property is shown.” Sub judice the record reveals without contradiction that the owners were notified that appellant’s salesman had shown the property to the purchaser prior to the sale by the owners to the purchaser, albeit that the purchaser had gone directly to the owners after having been shown the property by appellant’s salesman but before the salesman notified the owner that the purchaser was his prospect, and before the ultimate sale took place. The law is well settled that an owner is liable for a commission where, with the knowledge of pending negotiations between the broker and the purchaser, the owner completes the sale of which the broker is the procuring cause. (12 C.J.S. Brokers § 93b.)

In our prior opinion (at page 545) we stated “In the case sub judice the record supports the position that appellant did everything that was required by a realtor to be done in order to entitle the realtor to a commission.” Our examination of the record after remand reveals that no evidence was adduced by the defendants (ap-pellees) which effectively refuted that holding. The record is clear that appellant, via its salesman, found a customer and showed the property to the customer who was ready, willing and able to purchase. Those elements are best demonstrated by the un-contradicted fact that the customer became the ultimate purchaser without the intervention of any other broker.

The owners now attempt to escape liability for payment of the commission by alluding to minor variations between the terms of the ultimate sale and the terms recited in the contract prepared by appellant’s salesman and by him submitted to the purchaser prior to the purchaser contacting the owners directly. Our examination of the record reveals that contention to be without merit. A broker may not be so easily deprived of his earned commission. If that were so in every instance a crafty prospect could reject the contract submitted by the broker, go behind his back to the owner, modify the terms without affording the broker an opportunity for negotiations, purchase the property and thereby evade, on behalf of the seller, the payment of a commission. Such is not the law of the State of Florida.

The record revealing that a prospective purchaser produced by appellant who was ready, willing and able to purchase the subject property, and who did in fact purchase the property, on substantially the same terms as negotiated by the broker, the broker is entitled to the commission agreed upon between it and the owners, defendants in the trial court and appellees here. Accordingly, we reverse and remand with directions to vacate the final judgment here appealed and to enter judgment in favor of appellant and against appellees, in accordance herewith.

REVERSED.

ERVIN, J., concurs specially.

MILLS, J., dissents.

ERVIN, Judge,

specially concurring.

I concur in Judge Boyer’s opinion because I feel the conclusion reached in the prior decision, which reversed the trial court’s order granting the sellers’ motion for involuntary dismissal at the conclusion of the broker’s case, is now the law of the case. While I might have arrived at a different conclusion had I participated in the disposition of the original appeal, I feel that the parties are now bound by this court’s prior opinion.

True the issue previously before us was different from that now presented. The prior case dealt only with the propriety of the lower court’s order granting the motion for involuntary dismissal. The test for such a motion is whether “on the facts and the law the party seeking affirmative relief has shown no right to relief . . . .” Fia.R. Civ.P. 1.420(b). Moreover the same principles governing motions for directed verdicts in nonjury cases apply to motions for involuntary dismissal. Gibson v. Gibson, 180 So.2d 388 (Fla. 1st DCA 1965). Here we are testing the sufficiency of all the evidence presented at the nonjury trial, have found it legally insufficient and have entered judgment in favor of the broker.

The fact that the issues on a later appeal may be different does not necessarily require a different result when the evidence in both appeals is substantially the same. Recently we applied the doctrine of the law of the case as justification for dismissing a plenary appeal even though different issues were before the court in the earlier interlocutory appeal; the facts, however, were substantially the same. Schempp v. Schempp, 339 So.2d 672 (Fla. 1st DCA 1976).

My review of the record convinces me that there were no factual distinctions of any substance which occurred upon remand. The facts recited in this court’s prior majority opinion were essentially the same facts presented later by both parties. Whatever is once established between the same parties in the same case continues to be the law of the case so long as the facts on which such decision was predicated continue to be the facts in the case. McGregor v. Provident Trust Co., 119 Fla. 718, 162 So. 323 (1935). Moreover where the majority of the court has determined the law as to a given set of facts, the entire court is bound by such a determination even though some of the members of the court may have previously dissented. Russo v. State, 142 Fla. 596, 196 So. 293 (1940).

Consequently, the evidence before us being substantially the same as before, I feel committed to the conclusion previously reached by a majority of this court: “The evidence . . . indicates that appellant was the procuring cause of the sale, and the property was in fact sold to appellant’s prospect.” 312 So.2d at 545.

MILLS, Judge,

dissents:

I dissent.

I would affirm for the reasons stated in my dissent in Realty Marts, Inc. v. Barlow, 312 So.2d 544 (Fla. 1st DCA 1975).


author: MILLS, Acting Chief Judge.

text:
    In Re the Interest of W. L. C., an infant. Joseph Edward ARD and Mary Ard, his wife, Appellants, v. Shirley Mae GUSTAFSON and Division of Family Services, Appellees.
    No. CC-60.
    District Court of Appeal of Florida, First District.
    July 22, 1977.

      Seymour H. Rowland, Jr., Ocala, for appellants.
    Phil Trovillo, P.A., Ocala, for appellee (Division of Family Services).
   MILLS, Acting Chief Judge.

Joseph and Mary Ard (Ards) appeal from a final judgment denying their petition for custody and their petition for adoption of W. L. C., a minor, granting the cross-petition of Shirley Mae Gustafson (Gustafson) for adoption of the minor, and denying the petition of the Division of Family Services (Division) for termination of parental rights and for custody of the minor. The Ards contend the trial court erred in denying their petitions, in granting Gustafson’s petition and in finding that Gustafson was a person permitted to adopt under Chapter 63, Florida Statutes (1975).

No useful purpose would be served by reciting the evidence adduced at the various hearings held over a period of many months. Suffice it to say that the record discloses competent substantial evidence to support the trial court’s denial of the Ard’s petition for custody and petition for adoption. We affirm.

Not only does the record fail to support the granting of Gustafson’s cross-petition for adoption but she is not a person permitted to adopt under Section 63.042(2)(d), Florida Statutes (1975). This section provides in pertinent part:

“(2) The following persons may adopt:
(d) A married person without the other spouse joining as a petitioner, if the person to be adopted is not his spouse, and if:
1. The other spouse is a parent of the person to be adopted and consents to the adoption; or
2. The failure of the other spouse to join in the petition or to consent to the adoption is excused by the court for reason of prolonged unexplained absence, unavailability, incapacity, or circumstances constituting an unreasonable withholding of consent.”

Gustafson was married. Her husband did not join the petition nor did he consent to the adoption of the minor. The trial court did not excuse this failure to join or consent for any of the reasons set forth in Section 63.042(2)(d). We reverse.

The Division did not appeal the adverse ruling on its petition nor did the Ards assign this as error on their appeal. We affirm.

Affirmed in part and reversed in part.

SMITH and ERVIN, JJ., concur.


text:
    Carmella Jean TRUDEAU, Appellant, v. STATE of Florida, Appellee.
    No. 76-1084.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1977.
    Rehearing Denied Aug. 12, 1977.

      Bruce M. Lyons of Lyons & Sanders Law Offices, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   KOVACHEYICH, ELIZABETH A., Associate Judge.

Appellant-defendant appeals a judgment of conviction of second degree murder in the death of her husband by the use of a firearm, and a sentence of thirteen (13) years imprisonment, minimum three (3) years incarceration. Defendant was charged initially by indictment with murder in the first degree. She plead guilty to murder in the second degree. Of the three points involved in this appeal, only one has merit, and on the same, we reverse.

The Court erred in not allowing the defendant to introduce evidence at sentencing on the issue of the defendant’s mental condition, both prior to, and subsequent to the shooting incident herein.

At the sentencing hearing, appellant’s attorney requested the opportunity to present psychiatric testimony in order to establish mitigating circumstances. Although the lower court initially indicated that it would grant such a hearing and allow testimony, the court changed its mind when the prosecutor objected, and denied the request, despite the fact that the court recognized that the defendant was entitled to an evidentia-ry hearing under the rules.

By denying the defendant the opportunity to present evidence which was relevant to the sentence that would be given herein, the lower court clearly violated Rule 3.720, Florida Rules of Criminal Procedure, which provides that the trial court shall “(b) Entertain submissions and evidence by the parties which are relevant to the sentence.”

This rule has been construed to be mandatory upon the sentencing court. See Mask v. State, 289 So.2d 385 (Fla.1974) wherein the Supreme Court stated that Rule 3.720(b) now makes it mandatory for the trial court, at a sentencing hearing, to receive evidence by the parties of aggravating or mitigating circumstances. In Culbertson v. State, 306 So.2d 142 (2d D.C.A. 1975) the cause was remanded for resen-tencing since the trial court failed to accord appellant’s counsel the opportunity, upon timely request, to present' matters which were relevant to sentencing. In Messer v. State, 330 So.2d 137, 142 (Fla.1976), the Supreme Court, construing Section 921.141, Florida Statutes, remanded to the trial court for the purpose of holding another sentencing hearing where counsel “. was effectively deprived of establishing an important mitigating circumstance when he was not afforded the opportunity to present psychiatric testimony to the jury during the sentencing portion of the proceedings. . ."

In the instant case, sub judice, a medical doctor and qualified psychiatrist, was present in the courtroom, and available to testify at the sentencing. The lower court erred in not permitting the evidentiary hearing requested by appellant’s counsel prior to the imposition of the sentence herein. The sentencing court’s failure to accord the appellant an evidentiary hearing deprived the appellant of the opportunity to present testimony on the issue of what period of incarceration, if any, should be the proper sentence in this case.

However, on the other two points raised in this appeal, the lower court was correct in not allowing the defendant to introduce evidence on the issue of whether the negotiated plea should be specifically enforced or whether, alternatively, the plea should be withdrawn. Further, the lower court was correct in not setting aside the plea to the reduced charge of murder in the second degree, sua sponte, on the basis that there was a breach of the terms of the negotiated plea between the court, the prosecutor, and the defendant as to the sentence. During the taking of the plea herein, both the availability of probation, and, parole after six (6) months, were mentioned, but, the court specifically said “I am certainly not making any guaranty that there won’t be a jail sentence imposed.” In Costello v. State, 260 So.2d 198 (Fla.1972), the Supreme Court states “. . . It is not enough for a defendant to argue that he was under an impression that a promise of a lesser penalty had been made by the judge or prosecutor. A reasonable basis for such an impression must be shown . .”

The record on appeal clearly indicates that at the time of the sentencing herein, counsel for the defendant asked his client if she would like the opportunity to withdraw her previously entered plea, and after a private conference with his client, announced in open court that against his advice and that of her friends, the defendant insisted that she .wanted to take whatever sentence the court wished to give her in this matter, knowing full well that the court would sentence the defendant to the minimum three years pursuant to Section 775.-087, Florida Statutes. It was reasonable for the court to rely upon the foregoing expression that the plea as entered by the defendant herein, would stand, and there was no obligation upon the court, on its own motion, to inquire further. Thus, this case is distinguishable from Enos v. State, 272 So.2d 847 (4 D.C.A.1973).

Accordingly, the judgment of conviction is affirmed, but the sentence is reversed and this cause is remanded to the lower court for further proceedings consistent with the views expressed herein.

AFFIRMED in part; REVERSED AND REMANDED in part, with directions.

MAGER, C. J., and CROSS, J., concur.


text:
    Fred R. AMSLER and Russell N. Worobec, Appellants, v. AMERICAN HOME ASSURANCE COMPANY, a New York Corporation, Gulf Insurance Company, a Missouri Corporation, P. Thomas Boroughs and Mairs, Wood, Muller & Boroughs, P. A., Appellees.
    Nos. 76-1256, 76-1730.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1977.
    Rehearing Denied Aug. 12, 1977.

      Eli H. Subin of Subin, Shams, Rosenbluth & Moran, Orlando, for appellants.
    W. L. Kirk, Jr., of Pitts, Eubanks, Ross & Rumberger, P.A., Orlando, for appellee, Gulf Insurance Co.
    Goble D. Dean of Dean, Ringers, Morgan & Lawton, Orlando, for appellee, American Home Assurance Co.
    Fred M. Peed of Peed & King, P. A., Orlando, for appellees P. Thomas Boroughs and Miars, Wood, Muller and Boroughs, P. A.
   KOYACHEVICH, ELIZABETH A., Associate Judge.

This is the consolidation of two appeals from orders granting the separate motions of two co-defendants to dismiss amended complaints, with leave to amend, and if no amended pleading, dismissal with prejudice. Appellants-plaintiffs contend that the second amended complaint does state causes of action, and that the orders dismissing same should be reversed. We agree, in part, as to the second and third causes of action, and reverse; however, as to the first cause of action, we affirm the lower court.

The first cause of action alleged that defendant Boroughs, as attorney for a Florida limited partnership, Briarcliff Apartments, Ltd., drafted a limited partnership agreement which provided in part that secondary financing could not be placed on partnership property without the prior consent of 51% of the total limited partnership interest. Professional negligence, contrary to the general practice among attorneys in his community, is then alleged against attorney Boroughs for failure to obtain the written consent of the plaintiffs, Amsler and Worobec, whom he knew were limited partners and whom he knew owned and held a 65% interest, prior to recording secondary financing on the partnership property. If plaintiffs had known of the proposed financing, they would not have approved it. The failure of the Briarcliff project is then attributed to the aforementioned alleged negligence of Boroughs, and his appellee-defendant law firm and their insurers are then charged with responsibility for the alleged negligence of Boroughs. Plaintiffs allege that they are the intended beneficiaries of those insurance policies. Although the second amended complaint states that the general partners were William Biggs and David Fyffe, they were not joined as parties to the action; rather, the plaintiff limited partners sued solely on their own behalf.

The sufficiency of this cause was challenged on three major grounds: 1) The allegations were insufficient to sustain the legal conclusion that attorney Boroughs had a duty to obtain the limited partner plaintiffs’ written consent to the creation of secondary financing on partnership property; 2) the action was brought by improper party plaintiffs in violation of Section 620.-26, Florida Statutes, since plaintiffs were limited partners suing the alleged partnership attorney; and 3) assuming arguendo that Section 620.26 did not prohibit plaintiffs from suing defendant Boroughs, the pleading was deficient in that it failed to join the general partners, Biggs and Fyffe, who were indispensible parties to the action.

The lower court was correct in dismissing this cause, as it was chosen to be plead by plaintiffs. The allegations of the first cause of action were insufficient to sustain a legal conclusion that defendant attorney Boroughs had a duty to obtain plaintiffs' written consent. Plaintiffs do not allege that Boroughs served as the attorney for the limited partnership for the creation of the secondary financing documents; they merely allege that Boroughs knew of the transaction and delivered the documents for recording. There are no allegations of ultimate facts upon which it can be concluded that the plaintiffs relied upon Boroughs to notify them regarding the secondary financing or to have required proof that plaintiffs’ written consent had been given, and, that Boroughs knew of this reliance. It was essential that the element of duty be properly alleged.

Further, Section 620.26, Florida Statutes, which is Section 26 of the Uniform Limited Partnership Act, states: “A contributor, unless he is a general partner, is not a proper party to proceedings by or against a partnership, except where the object is to enforce a limited partner’s right against or liability to the partnership.” Until now, no appellate court in Florida has considered this Section of the ULPA. However, the Supreme Court of the State of Washington expressly held in Lieberman v. Atlantic Mutual Insurance Company, 62 Wash.2d 922, 385 P.2d 53 (1963) that limited partner plaintiffs lack standing to institute suit in light of ULPA Section 26 which prohibited limited partners from instituting an action against an insurance company on a fire insurance policy insuring partnership property. Florida adopts the common law aggregate theory of partnership as opposed to the entity theory. See Epstein & Bro. v. First National Bank of Tampa, 92 Fla. 796, 110 So. 354 (1926); Fidelity & Casualty Company of New York v. Homan, 116 So.2d 444 (2d D.C.A.1959). Any duty which Boroughs might have owed to plaintiffs would be owed to the entire membership of the limited partnership, and only the general partners would have had the right to institute such action.

Thus, the lower court was correct in granting the motion to dismiss the first cause of action of the second amended complaint, and we affirm the same.

However, the lower court was not correct in dismissing the second and third causes of action. These causes were brought only by the plaintiff Amsler and were based upon factual allegations totally separate and apart from those alleged in the first cause of action, and properly alleged and stated causes of action.

The second cause of action alleged that Amsler gave Boroughs as trustee, and attorney, a $15,000.00 check which he accepted and was made payable to him as trustee, in connection with the purchase of certain real estate; that Boroughs did not perform his duties as trustee; that he relinquished those duties without notifying Am-sler, and that he refused to account for the check which he denied receiving. This cause properly alleged that a fiduciary relationship existed between Amsler and Boroughs. A fiduciary, be he an attorney or not, must account for and deliver over property or money of a beneficiary or client which has been entrusted for a specific purpose. See Wilkerson v. Olcott, 212 So.2d 119 (4 D.C.A.Fla.1968). Further, equity imposes a constructive trust where a trustee or other fiduciary has abused the confidence placed in him, and fails to account for entrusted funds. See Wilkins v. Wilkins, 144 Fla. 590,198 So. 335 (1940). A cause of action is stated herein for accounting and declaration of a constructive trust against Boroughs and the members of his law firm.

The third cause of action is against all of the defendants, and alleged that Boroughs was negligent in the performance of Ms duties as a trustee, wMch he accepted, had a duty to use care, and breached that duty; further, that he failed to meet the standard of professional conduct prevailing in the community; and that damages directly resulted to plaintiff from the alleged negligence by Boroughs. Plaintiff alleged that he was the intended beneficiary of professional liability insurance contracts issued by the defendant insurance companies to cover the defendant law firm. A third party beneficiary may sue a liability insuror jointly in a direct action against its insured. See Shingleton v. Bussey, 223 So.2d 713 (Fla.Sup.Ct.1969). Negligence is plead.

Accordingly, we affirm the lower court in its dismissal with prejudice of the first cause of action in the second amended complaint, but reverse the lower court regarding the second and third causes of action in the second amended complaint, specifically finding that each of said counts states a cause of action, and remand the same for further proceedings herein in the lower court.

AFFIRMED in part; REVERSED in part, and REMANDED, with directions.

MAGER, C. J., and CROSS, J., concur.


author: SMITH, Judge.

text:
    VANGUARD CONSTRUCTION COMPANY, INC., Stanley Poole, Ranald Stewart, and Michael Glantz, Appellants, v. The LEWIS STATE BANK, a Florida Banking Corporation, Appellee.
    No. Z-324.
    District Court of Appeal, State of Florida, First District,
    July 22, 1977.

      M. Stephen Turner of Thompson, Wads-worth & Messer, Tallahassee, for appellants.
    John D. Buchanan, Jr. of Henry & Buchanan; Tallahassee, for appellee.
   SMITH, Judge.

Vanguard and three of its officers appeal from a deficiency judgment entered for the bank following a foreclosure sale of land mortgaged to the bank to secure Vanguard’s debt. The individual appellants endorsed the corporate note and therein consented “to any extensions or renewals without further notice.” They did not individually execute the later extension agreement between Vanguard and the bank, although appellant Stewart signed as president of Vanguard. The extension agreement increased interest payable from 11 to 15 percent. The circuit court entered a deficiency judgment against Vanguard for the difference between the principal debt and the land’s market value at the time of foreclosure, with interest at the contract rates, and against the individuals for same principal deficiency, with interest at 10 percent. The trial court rejected the claim of all appellants that a deficiency judgment was in the circumstances inequitable, and rejected the individuals’ claim they were discharged by the extension at increased interest to which, they say, they did not consent.

The trial court did not err in declining to discharge the individual endorsers. The bank’s loan officer testified without contradiction that “the principals,” meaning the three endorsers, requested the extension agreement. The endorsers' answer, prepared by former counsel, raised no claim of discharge, although it pleaded other affirmative defenses. The issue of discharge was not otherwise raised before entry of the foreclosure judgment. After the sale, in which the bank successfully bid a nominal sum for the land, the endorsers raised the issue obliquely by a motion for judgment on the pleadings and by argument at the hearing on deficiency issues. The trial court treated the issue as litigated, at least by argument, and ruled on the issue when entering the deficiency judgment. The necessity for pleadings required by Diversified Ent. of Florida, Inc. v. Holt, 188 So.2d 693 (Fla. 2d DCA 1966) was therefore waived. See Fla.R.Civ.P. 1.190(b). However, the trial court’s consideration of argument on the issue cannot here obviate the endorser’s lack of evidence showing error in the ruling. Except for the absence of their endorsements on the written extension agreement, the record contains no evidence that these officers of Vanguard, all of whom requested the extension and one of whom signed it for Vanguard, did not consent to the extension. Therefore, even assuming that endorsers may be discharged by their lack of consent to an extension agreement binding the principal obligor to pay greater interest, the absence of their physical endorsements of the extension agreement is not conclusive on the issue of their consent, which may be established by other evidence. See A. Stearns, Law of Suretyship 129 (5th ed. 1951):

“Parties to a contract may always alter it by mutual agreement and this is as true of suretyship contracts as others. Accordingly, if the creditor and principal modify their contract, and the surety consents thereto, he will not be discharged. Such consent need not be expressly given, but may be implied from the surrounding circumstances or from his conduct.”

Nor did the trial court err in its disposition of the claim of all four appellants that any deficiency judgment is in these circumstances inequitable. The amount of the appraisal which the bank secured before making the loan did not, as a matter of law, foreclose the bank from proving in deficiency proceedings that the market value of the property foreclosed and bought in for a nominal bid was less than the appraisal. The trial court properly considered equitable and other relevant factors in determining the amount of the deficiency judgment, and we should defer to that court’s finding. Maudo, Inc. v. Stein, 201 So.2d 821 (Fla. 3d DCA 1967).

AFFIRMED.

MILLS, Acting C. J., and DRURY, ARV-EL, Associate Judge, concur.

      . See § 687.11(1), Fla.Stat. (1975): “No individual secondarily liable as endorser, guarantor, surety, or otherwise on any corporate obligation shall be required ... to pay any interest in excess of 10 percent per annum, and any interest claimed . . against such individual in excess of 10 percent per annum shall be forfeited. . .

      . Matters outside the pleadings may not be considered on such a motion. Reinhard v. Bliss, 85 So.2d 131 (Fla. 1956).

      . See Miami Nat’l Bank v. Fink, 174 So.2d 38 (Fla. 3d DCA 1965), cert, den., 180 So.2d 658 (Fla. 1965); Simpson, Handbook on the Law of Suretyship 357-58 (1950). But see Taines v. Capital City First Nat’i Bank, 344 So.2d 273 (Fla. 1st DCA 1977), in which we held accommodation parties not discharged when they consented to “any extensions or renewals of this note.” The accommodation parties contended the extension agreement “drastically altered” the obligation of the original note, in part by changing the principal obligor’s obligation for interest from the Chase Manhattan prime rate (but not less than 8% nor greater than 15%) to a constant 10%. Although no difference between the Chase Manhattan prime rate hnd 10% was in fact shown, the opinion in Taines did not turn on the absence of that proof. Contrast Chris Craft Ind., Inc. v. Van Valkenberg, 267 So.2d 642, 646 (Fla. 1972), in which the Supreme Court held a guarantor not discharged when he consented to “any extensions, renewals, alterations, amendments or waivers ... of any of the terms and provisions of said promissory note including . . . the . . amount and time of payment . . . .” It is unclear whether in Chris Craft the same result would have attached to the accommodation party’s earlier consent only to “all extensions and renewals.”


author: MARCUS, Justice.

text:
    Ele Waylan PEARCE v. Maxine Bailey, wife of Ele Waylan PEARCE.
    No. 59842.
    Supreme Court of Louisiana.
    July 1, 1977.
    Garland R. Rolling, Metairie, for defendant-applicant.
    John H. Wells, New Orleans, for plaintiff-respondent.
   MARCUS, Justice.

Maxine Bailey, wife of Ele Waylan Pearce, obtained a separation from bed and board from her husband, Ele Waylan Pearce, based upon their having lived separate and apart for one year without reconciliation during that time. More than a year and sixty days from the date the judgment of separation was signed, Mr. Pearce filed for divorce pursuant to La.R.S. 9:302. Mrs. Pearce answered the suit praying for an award of permanent alimony. A judgment of absolute divorce was rendered between the parties; the issue of permanent alimony was pretermitted in the judgment. Subsequently Mrs. Pearce filed a rule to show cause against her former husband why he should not be condemned to pay her permanent alimony. She specifically alleged that Mr. Pearce was solely at fault for causing the initial separation in that he had abandoned her. After a hearing, the matter was taken under advisement. Being of the opinion that Mrs. Pearce was free of fault and entitled to alimony under La. Civil Code art. 160, the trial judge ordered that the rule for alimony be made absolute and rendered judgment in favor of Mrs. Pearce and against Mr. Pearce condemning him to pay the sum of $100 per month to his former wife. Mr. Pearce took an appeal from the judgment rendered by the trial court; Mrs. Pearce answered the appeal praying for an increase in the alimony award. Inasmuch as the original panel of the court of appeal was unable to reach a unanimous verdict, the matter was resubmitted on briefs to a panel of five judges, whereupon the court of appeal, by a vote of three to two, set aside the alimony award and remanded the case to the trial court to permit Mrs. Pearce to present further evidence to establish her freedom from fault. Upon Mrs. Pearce’s application, we granted certiorari to review the correctness of this judgment.

The record reflects that Mr. and Mrs. Pearce separated after twenty-four years of marriage. At the hearing on the rule for alimony, Mrs. Pearce testified that her husband had abandoned her on January 6, 1971, the couple’s wedding anniversary, after an argument concerning their only daughter’s choice of a boyfriend. Mrs. Pearce explained that she strongly disapproved of the young man’s background and the long hours her daughter was spending at his home. When she discovered that her daughter was still dating the boy, contrary to her promises that she would stop seeing him, Mrs. Pearce became angry and a family argument ensued culminating in the decision of the daughter and Mr. Pearce to pack their things and move out of the house. Other than their disagreements over their daughter’s boyfriend, Mrs. Pearce testified that she had always loved her husband and had never given him any cause to abandon her. She firmly denied ever having locked Mr. Pearce out of the house or having thrown his clothes into the yard. Mrs. Pearce candidly admitted that she had suffered from a drinking problem fifteen years earlier but maintained that she had controlled the problem through membership in Alcoholics Anonymous and had not had anything at all to drink of an alcoholic nature for more than a year before Mr. Pearce left home. She indicated that she and her husband belonged to a square dancing club and enjoyed this activity as well as taking rides in the family automobile.

In justification of his abandonment of Mrs. Pearce, Mr. Pearce charged his wife with gross misconduct caused by excessive drinking. Without referring to specific incidents, he claimed that she was moody, would get angry and refuse to speak to him, would throw things, overturn furniture, throw food on the floor and put his clothes out in the yard. He stated that he and his daughter had left home for four days once before for these reasons. Mr. Pearce claimed that the couple’s arguments occurred from one to three times a week and that he had never done anything to provoke any of the arguments. He testified that he had abandoned his wife on their anniversary because she was “fussing” and “yelling” at him and their daughter and hitting the daughter in the back seat of the car on the way home from a local restaurant.

Mr. and Mrs. Pearce’s daughter, with whom Mr. Pearce was living and sharing expenses at the time of the hearing on the alimony rule, also testified against her mother. She essentially repeated the charges of excessive drinking and misconduct made by her father. Like her father, she gave no explanation for the incident which precipitated her father’s leaving home except to attribute the disturbances to drinking. She admitted, however, that her relationship with her boyfriend (whom she had married by the time of the hearing in this case) had been an issue between herself and her mother up to the time she and Mr. Pearce moved out of the house. Despite the frequent references to her mother’s drinking problem, the daughter admitted that she had never actually observed her mother drinking. Mr. Pearce similarly acknowledged that he was not sure he had ever seen Mrs. Pearce take a drink during the year before he left her and revealed that he had probably not even seen any liquor in the house during that period of time. Although both father and daughter suggested that Mrs. Pearce’s general behavior supported their opinion that she drank excessively, neither reported any specific instances of smelling alcohol, slurred speech, lack of motor coordination, or any other evidence of excessive consumption of alcohol.

La. Civil Code art. 160 provides in pertinent part:

When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
2. The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; or

We have held that, under this statute respecting an award of alimony to a wife without “fault,” the word “fault” contemplates conduct or substantial acts of commission or omission by the wife viola-tive of her marital duties and responsibilities. A wife is not deprived of alimony after divorce simply because she was not totally blameless in the marital discord. Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959); Davieson v. Trapp, 223 La. 776, 66 So.2d 804 (1953); Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457 (1952); Adler v. Adler, 239 So.2d 494 (La.App. 4th Cir. 1970). To constitute fault, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958). The question of a wife’s fault under the statute providing for alimony when a wife has not been at fault and has not sufficient means for her support is a factual one. Morgan v. Morgan, 260 So.2d 336 (La.App. 4th Cir. 1972). We have recognized that a trial court’s findings of fact on the issue of a wife’s “fault” will not be disturbed on appeal unless found to be manifestly erroneous. Williams v. Williams, 215 La. 839, 41 So.2d 736 (1949); Fletcher v. Fletcher, 212 La. 971, 34 So.2d 43 (1948). In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility. Trosclair v. Trosclair, 337 So.2d 1216 (La. App. 1st Cir. 1976). The factual findings of the trial court are therefore to be accorded very substantial weight on review. Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir. 1976).

After carefully reviewing the record, we are unable to say that the trial judge abused his discretion in weighing the evidence and awarding alimony to Mrs. Pearce. The vague and unsubstantiated charges of excessive drinking and gross misconduct on the wife’s part were specifically contradicted by her own denial of consumption of alcohol prior to her husband’s leaving home and her assertions that the primary cause of family strife was not difficulty between herself and her husband, but disapproval of her daughter’s companion. Under the particular facts and circumstances of this case and in view of the conflicting testimony, we are satisfied that the trial judge’s ruling on the wife’s freedom from fault is adequately supported by the record and is not manifestly erroneous. Accordingly, we reverse the judgment of the court of appeal which set aside the ruling of the trial court and remanded the case for presentation of further evidence.

The trial judge awarded Mrs. Pearce alimony in the amount of $100 per month. The amount necessary for maintenance of a divorced wife is to be determined by the circumstances of each particular case. Frederic v. Frederic, 302 So.2d 903 (La.1974); Brown v. Harris, 225 La. 320, 72 So.2d 746 (1954). In fixing the amount of support, the trial judge is vested with considerable discretion. Ducote v. Ducote, 339 So.2d 835 (La.1976). We are unable to say that the trial judge abused his discretion in the instant case in fixing the alimony award at $100 per month.

DEGREE

For the reasons assigned, the judgment of the court of appeal is reversed and set aside and the judgment of the district court awarding Maxine Bailey Pearce $100 per month alimony is reinstated and made the judgment of this court.

      . La.Civil Code art. 138(9).

      . La.R.S. 9:302 provides:
      When there has been no reconciliation between the spouses for a period of one year or more from the date the judgment of separation from bed and board was signed, the spouse who obtained this judgment may sue for and obtain a judgment of absolute divorce. If .no such divorce action is instituted within a year and sixty days from the date the judgment of separation- -from'- bed árid board was signed, the other spouse may sue for and obtain a judgment of absolute divorce.
      If an appeal is taken, a suit for divorce may not be commenced until the day after the date upon which the judgment becomes definitive as provided by Article 1842 of the Louisiana Code of Civil Procedure or until the expiration of the time stated in the preceding paragraph, whichever is later.
      When a judgment of divorce is obtained by the husband against whom the judgment of separation from bed and board was rendered, the wife has the same rights to recover alimony as if she had obtained the divorce.
      The provisions of this section do not affect in any way the right of the spouse who obtained the judgment of separation from bed and board to retain- the custody and care of the children, as provided by law.

      . La.Const. art. 5, § 8(B) (1974).

      . 344 So.2d 75 (La.App. 4th Cir. 1977).

      . 346 So.2d 216 (La.1977).


text:
    Kenneth R. COMPTON v. Ivy Marie BERTAUT.
    No. 60219.
    Supreme Court of Louisiana.
    July 11, 1977.
   In re: Kenneth R. Compton applying for writs of certiorari, mandamus and prohibítion

ORDER

This case is transferred to the Fourth Circuit Court of Appeal for appropriate action. Article 5, § 5(D) of the 1974 Constitution giving the defendant a right of direct appeal to the Supreme Court when imprisonment exceeding six months has been imposed refers only to criminal cases, that is, misdemeanor convictions. The present matter is a contempt adjudication in a civil matrimonial action. Hence, the Court of Appeal has supervisory jurisdiction.


text:
    STATE of Louisiana v. Michael K. STRAHAN.
    No. 60311.
    Supreme Court of Louisiana.
    July 21, 1977.
   In re: State of Louisiana applying for remedial writs

Writ granted. The reasons assigned by the trial judge for his ruling are incorrect. After claiming his legal rights, a defendant may change his mind, waive his rights, and make a voluntary statement. See State v. Peevy, La., 321 So.2d 324 (1975); State v. Law, 214 Kan. 643, 522 P.2d 320; Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Moreover, we do not interpret the affidavit, the sole basis for the ruling, as an immediate request for counsel. Hence, we reverse the ruling and remand the case to the trial court for reconsideration of the question of whether the statement was freely and voluntarily made after a waiver of Miranda rights based on all the evidence.

SUMMERS, J., concurs, on the sole basis that the ruling of the trial judge is erroneous and should be reversed.


author: PER CURIAM: SARTAIN, Judge.

text:
    Frank L. THORNTON et al. v. Sharon MORAN et al. Sharon MORAN v. Frank L. THORNTON et al.
    Nos. 10952, 10953.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    On Rehearing June 13, 1977.
    On Limited Rehearing July 11, 1977.
    Writs Refused Oct. 21,1977.

      Henry L. Klein, New Orleans, Hugh C. Uhalt, New Orleans, of counsel for defendant appellant, Sharon Moran.
    David W. Robinson, Baton Rouge, of counsel for defendants appellants, G.E.I. C.O.
    Robert P. Kennon, John S. White, Jr., Baton Rouge, of counsel for plaintiffs ap-pellees, Frank Thornton, et al.
    James E. Moore, Baton Rouge, of counsel for defendant appellee, Price A. K., Inc.
    Dermot S. McGlinchey, Frederick Alexi-us, New Orleans, of counsel for defendant appellee, Chrysler Corp.
    Paul H. Due and Richard J. Dodson, Baton Rouge, for Government Employees Ins. Co., appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   PER CURIAM:

These consolidated cases were before this Court once before, Thornton v. Moran, 341 So.2d 1136 (La.App. 1st Cir. 1976), wherein this Court after reviewing thoroughly the record in a bifurcated trial wherein opposite results were reached, and this Court being ever mindful of the manifest error rule and the “reasonable conclusion of fact” rule as enunciated in Canter v. Koehring, 283 So.2d 716 (La.1973) and Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976), we concluded that neither result was manifestly erroneous and affirmed.

Writs were applied for by the Thorntons as well as their insurer, Government Employees Insurance Company, and in a 4 to 3 decision were granted ex parte as follows:

“Judgment of court of appeal reversed; case remanded to court of appeal to resolve the difference in the factual findings between the jury and the judge in these consolidated cases and to render a single opinion based upon the record. La. Const. Art. 5, § 10(B); Rights of parties to reapply for writs in accordance with law after court of appeal renders decision in accordance with views herein expressed are reserved.”

Therefore, after this Court has already concluded factually that there was such reasonable credible evidence in this record to support the jury’s finding that Sharon Moran did not have the last clear chance to avoid the accident, and that there was also reasonable credible evidence to support the trial judge’s finding that she did have such last clear chance, we are mandated “to resolve the differences in the factual findings between the jury and the judge * * *

Although this conclusion necessarily resulted in inconsistent results, the end was achieved by a consistent application of the review-functional rule as articulated by our Supreme Court. We have been unable to construe the Canter and Dyson edict as demanding a harmonization of the differ-enees between the factual findings of two different triers of fact considering the same factual situation in order that a consistent result be attained, albeit at the sacrifice of consistency in the application of the function of the reviewing court.

For the sake of judicial economy, bifurcated trials are becoming much more common. As suits are consolidated to enact these economies, we find some issues tried by judge and some by jury in the same trial. As in the instant case, the identical parties were involved in each suit. Further, it is to be expected that opposite results can be reached in each suit. Certainly this has taken place where separate suits are filed arising out of the same accident, tried separately with different results, and after being appealed separately are affirmed. Even though we now see bifurcated trials in consolidated suits, with the recent Supreme Court decision of Jones v. City of Kenner, 338 So.2d 606 (La.1976), wherein the Supreme Court allows jury trials as against the insurer of the public body, and the judge trying all issues as to the public body, we certainly expect to see an increase in such trials. No guidance is enunciated by the Supreme Court as to the possibility of judge and jury reaching opposite results. What happens if the jury finds against the insurer and the judge finds in favor of the public body? Must the intermediate appellate courts resolve the differences? As to a possible solution see concurring opinion by Lottinger, J. in Duplantis v. United States Fidelity & Guaranty Corporation, 342 So.2d 1142 (La.App. 1st Cir. 1976).

Regardless, because of the granting of this writ in this case, this court is left with the distinct impression that irrespective of the manifest error rule, the reasonable conclusion of fact rule, and in particular, Justice Tate, “Manifest Error” Further observation on appellate review of facts in Louisiana civil cases, 22 La.L.Rev. 605 (1962), none of these rules are applicable where opposite results are reached in bifurcated trials, and the intermediate appellate courts are mandated to resolve the differences regardless of the reasonableness of the conclusions of fact.

We now assume that the review-functional rule now requires us, as an intermediate appellate court, in bifurcated cases, to reconcile or resolve any differences in the factual findings between the trial judge and the jury by determining which witnesses are more credible, to ascertain which of the triers of fact accorded a more reasonable measurement to the evidence in reaching a decision, and to decide which of the said triers of fact gave a more reasonable evaluation and drew a more reasonable inference from the facts, all in order that we might harmonize the judgments). We also assume that the same requirement is now placed on the trial judge.

All of the facts surrounding the accident giving rise to this litigation, the testimony of the witnesses, and the conclusion of the trial judge are set forth in detail in our original opinion and they shall not be repeated here.

In applying the “more reasonable measurement” to the evidence, we conclude that the trial judge’s application of the last clear chance doctrine must yield to the absence of fault conclusion inherent in the result reached by the jury. Our reason for selection is that both judge and jury found Mr. Thornton to be negligent. Neither found that the Thornton vehicle had stalled for the period of time claimed by the Thorntons. We accord greater consideration to Mr. Thornton’s duty to stop in the median before entering the highway than -the-trial-judge’s finding that-Miss Moyan had “a distance of between 167 and 350 feet” to avoid the accident. Miss Moran’s duty to avoid the accident did not commence until the Thornton vehicle began its left turn maneuver into the northbound lane. Considering the very slow speed of the Thornton vehicle as it traversed the median, Miss Moran had every reason to believe that it would stop before entering her lane of travel. R.S. 32:124.

For these reasons, the judgment of the district court in the Thornton suit (# 10,-952) is reversed and set aside and judgment is rendered herein in favor of the defendants and against plaintiffs dismissing the same.

In the Moran suit (# 10,953), the judgment is affirmed in all respects.

All costs of these suits are assessed against GEIC and Frank L. Thornton.

JUDGMENTS REVERSED AND RENDERED (# 10,952) AND AFFIRMED (# 10,953).

ON REHEARING

SARTAIN, Judge.

In Suit No. 10,952 (Thornton, et al. v. Moran, et al.), we granted a limited rehearing on the applications of Mr. and Mrs. Thornton to reconsider our decision on remand, wherein we reversed a judgment in their favor against Government Employees Insurance Company, their uninsured motorist insurer, and Miss Moran. In their applications they urge, inter alia, that their judgments against Miss Moran are now final because following our first decision (341 So.2d 1136), Miss Moran had failed to apply to this court for a rehearing or to the Supreme Court for writs of review. They cite as authority the following cases: Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Piper v. Olinde Hardware & Supply Company, Inc., 288 So.2d 626 (La.1974); Breaux v. State, 326 So.2d 481 (La.1976); Chivoletto v. Johns-Manville Products Corp., 330 So.2d 295 (La.1976).

The general rule as announced in the above cases is to the effect that the Supreme Court has authority to review all issues and grant any relief in favor of litigants to whom that court has granted a writ of review to the same extent as if the matter had been appealed directly to that court. However, the court has consistently declined to grant relief in favor of a party to whom a writ of review was refused or to a party who had not applied for such review. In these latter situations, the judgment as to such a party has been held to be a final one.

In the instant case (Thornton, et al. v. Moran, et al.), our records reveal* that whereas Government Employees Insurance Company did apply timely for a rehearing in this court and for a writ of review to the Supreme Court following our original decision, Miss Moran did not.

Applying the above cited jurisprudence, our decision on remand should be recalled and set aside insofar as it pertains to the claims of Mr. and Mrs. Thornton but not as to Government Employees Insurance Company.

Therefore, in Suit No. 10,952 (Thornton, et al v. Moran, et al.), our decision on remand insofar as the same reversed the judgment of the district court in its entirety is hereby recalled and set aside and judgment is rendered herein reversing the judgment of the district court only as to Government Employees Insurance Company. In all other respects our decision on remand is reinstated.

All applications for rehearing in Suit No. 10,953 (Moran v. Thornton, et al), are denied. We withheld action on these applications so that the delays for seeking writs of review would be concurrent. See: Rule XI, Section 5, Uniform Rules — Courts of Appeal.

DECISION ON REMAND, REVERSED IN PART, AMENDED IN PART, AND AS AMENDED, REINSTATED.

      . A bifurcated trial is one where some issues or parties are tried by the judge, and some by a jury.

      . Justice Summers dissented from the “ex parte in chamber reversal of the judgment of the Court of Appeal without a hearing and opportunity for the parties to be heard.” Justices Calogero and Dennis dissented being “of the opinion the writ should be granted and the case taken up in this Court in the normal course, with oral arguments followed by written opinion.”


author: MORIAL, Judge. REDMANN, Judge,

text:
    Donald Edward TEAL v. ALLSTATE INSURANCE COMPANY, Joyce Bucher and Alexander Bucher.
    No. 8125.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 13, 1977.

      Lambert J. Hassinger, New Orleans, for plaintiff-appellee.
    Porteous, Toledano, Hainkel & Johnson, John J. Hainkel, Jr., New Orleans, for defendants-appellants.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

Defendants Joyce Bucher, her husband Alexander Bucher and Allstate Insurance Company appeal from a judgment awarding plaintiff Donald Teal damages for injuries sustained in an automobile-motorcycle collision at the intersection of General De Gaulle Drive and Herald Street in Algiers at 4:30 P.M. on August 23, 1974.

General De Gaulle Drive is a four lane highway, divided by a wide median, with two lanes of traffic proceeding in the same direction on each side of the median. A white line separates the two lanes of traffic, each of which is approximately ten feet wide. There are no parking or stopping lanes on General De Gaulle Drive. The speed limit on the thoroughfare is 45 mph.

Mrs. Joyce Bucher was proceeding in a westerly direction in the right hand lane of General De Gaulle. About three or four blocks before the intersection of De Gaulle Drive and Herald Street, defendant noted that the traffic was moving from the right to the left lane and observed a stopped truck towing a boat and trailer in the right lane less than a car’s length from the corner of Herald Street and General De Gaulle. Defendant moved into the left lane and remained in that lane of travel until she passed the obstruction. She then attempted to negotiate a right turn into Herald Street from her position in the left lane. Plaintiff, riding a Honda 305 motorcycle, was in the right lane about fifty feet from the intersection when he realized defendant was making a turn across his path. He immediately applied his brakes, but could not prevent the bike from skidding into the rear bumper of defendant’s automobile. Plaintiff sustained a fracture of the tibia and fibula bones of his right leg, lacerations, contusions and abrasions.

The trial judge found Mrs. Bucher to be negligent in attempting to make a right turn from the left lane without ascertaining that the maneuver could be safely made. The court found no contributory negligence on the part of the plaintiff.

The trial court awarded plaintiff $1,406.32 for medical expenses, $12,800.00 in lost wages and $15,000.00 for general damages. The court did not find that defendant was entitled to a credit for the sick leave and annual leave benefits paid to plaintiff while he was out of work. We affirm.

Defendant argues on appeal that plaintiff was contributorily negligent in his operation of the motorcycle between rows of traffic in violation of LSA-R.S. 32:191.1(B) and (C). Defendant also contends that plaintiff failed to exercise extreme caution in operating his vehicle in a congested traffic situation.

Defendant also contests the amount of damages awarded by the trial court. Defendant argues that plaintiff was only clearing $460.00 a month prior to the accident and also that he was not entitled to recover for the full seventeen months he was out of work because of benefits received from his employer during part of this period. Defendant also argues that the award of $15,000.00 in general damages is excessive in view of plaintiff’s injuries.

In reviewing the evidence we find the conduct of Mrs. Bucher to be the proximate cause of the accident. Mrs. Bucher testified that prior to making the turn she repeatedly checked the right lane to her rear yet she did not observe plaintiff’s motorcycle at any time. John Bryant, an objective witness, was driving in the left lane and was separated from defendant’s vehicle by one car. He testified that plaintiff was near the front part of his vehicle in the right lane when it became apparent that defendant was negotiating the turn. Therefore, we can conclude that plaintiff was about two car lengths behind defendant in the right lane prior to her making the turn and certainly within her field of vision. In Jones v. Armstead, 169 So.2d 268 (La.App. 1 Cir. 1964), the court found a driver making a right turn negligent for looking in his mirror and not seeing the following car, stating: “To look and not [to] see [a] vehicle is equivalent [to] not looking at all and is negligence.” Therefore, we conclude that the trial court was correct in finding defendant negligent in not observing plaintiff in spite of her testimony that she repeatedly surveyed the area before negotiating the turn.

We now turn to the issue of plaintiff’s contributory negligence. Defendant relies on LSA-R.S. 32:191.1 (B) and (C) as a basis for finding plaintiff negligent. Those sections provide as follows:

(B) The operator of a motorcycle shall not overtake and pass in the same lane occupied by the vehicle being overtaken.
(C) No person shall operate a motorcycle between lanes of traffic or between adjacent lines or rows of vehicles.

We do not find section (B) to be applicable to the facts of this case. There is no evidence in the record to support a finding that plaintiff was attempting to overtake a vehicle traveling in his lane of traffic.

The evidence as to the amount of space available to traffic in the right lane in light of the parked truck and boat is in conflict. When questioned about the location of the boat and trailer Mrs. Bucher testified that there was only about one and a half to two feet between the left side of the boat and the center white line. She stated that a vehicle could not have passed through that space and have remained within the right lane of travel.

Plaintiff testified that the truck and boat were straddling the curb and that there was approximately five to six feet between the left side of the boat and truck and the center white line. He estimated that the boat was six to seven feet wide. He stated that the handlebars of his Honda 305 are two and a half to three feet wide. He said that he had all the room he needed to pass the obstruction.

John Bryant, a witness who was driving in the left lane next to plaintiff testified that he did not recall the truck and boat straddling the curb, but believed they were parked very close to the curb. He estimated that the boat was five to six feet wide and that there was two to four feet of space between the left side of the boat and the center white line. He said that there was six to seven feet between the right side of his vehicle and the left side of the boat. He said plaintiff was traveling to his right in the center of this six or seven feet. He was not able to see which lane plaintiff was in at the point of impact.

We do not find that plaintiff was operating his vehicle in violation of Section C. The evidence shows that the boat and truck were straddling or parked very near to the curb. The boat was approximately six feet wide, thus taking into consideration that each of the lanes were ten feet wide, plaintiff had at least four feet in the right lane within which to operate his two and a half to three foot wide motorcycle past the obstruction.

We also reject defendants’ argument that plaintiff operated his vehicle imprudently in light of the congested traffic situation. The evidence reflects that plaintiff was traveling at a speed below the maximum speed limit and that he was keeping a proper lookout at all times prior to the accident. We find no negligence in the manner in which he operated his vehicle.

DAMAGES

The medical expenses awarded to plaintiff are not in dispute. We do not find that the award of $15,000.00 in general damages to be excessive. Plaintiff suffered a displaced comminuted fracture of the mid-shaft of the tibia and fibula of his right leg as well as severe lacerations, contusions and abrasions. He was hospitalized for four days and was placed in a plaster cast for one month. He wore a walking cast until April 1975 and was then placed in a plastic brace. Plaintiff sustained permanent scars and a shortening of his leg. He sustained a 15% permanent disability to his leg and his treating physician, Dr. Horn testified that he was not pleased with the amount of healing obtained. We find no abuse of discretion on the part of the trial judge in awarding plaintiff $15,000.00 in general damages. Bitoun v. Landry, 302 So.2d 278 (La.1974); Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963).

We are in agreement with the trial judge’s determination that plaintiff was entitled to recover lost wages for the entire seventeen months he was out of work. A plaintiff is allowed to recover wages compensated by sick leave or annual leave that is accumulated. The rationale is that the plaintiff’s forced present use of this leave precludes its future use and prejudices whatever credits might have inured to plaintiff’s benefit upon retirement because of its accumulation. Dunlop v. Armendariz, 265 So.2d 352 (La.App. 4 Cir. 1972).

We also agree with the trial judge’s computation of lost wages although we find a small variation in our computation. Plaintiff’s 1974 income tax return shows plaintiff’s earnings to be $9,364.00 of which $2,839.00 was sick pay received during the period he was out of work. Therefore, plaintiff earned $6,525.00 in the first eight months of 1974 or $815.00 a month. This entitles plaintiff to $13,855.00 in lost wages for the seventeen month period he was out of work. The trial court was correct in deducting an amount for taxes which plaintiff would have been required to pay and basing the award on plaintiff’s net income. Morgan v. Liberty Mutual Insurance Company, 323 So.2d 855 (La.App. 4 Cir. 1974). We do not have sufficient evidence before us to determine the actual tax due by plaintiff for this period. However, plaintiff is not appealing the amount of damages and defendant has not briefed us on the particular issue of the tax deduction. Therefore, we conclude that the tax deduction of the trial judge is correct and affirm the amount of the award.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

REDMANN, Judge,

concurring.

Since the trial judge found “no contributory negligence on the part of plaintiff” one must conclude that he disbelieved disinterested witness Byrant’s testimony (corroborating Mrs. Bucher) that the stopped truck and boat-on-trailer blocked the narrow right lane leaving only two or three feet clear, and believed instead plaintiffs self-serving testimony that the truck and boat were pulled half off the roadway, “straddling the curb”, leaving five or six feet clear in that right lane. If those are the facts plaintiff remained wholly within the right lane, with much room to spare, and breached no duty towards self or Mrs. Bucher.


author: MORIAL, Judge.

text:
    Jerome P. HALFORD v. REPUBLIC UNDERWRITERS INS. CO.
    No. 8508.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 26, 1977.

      Edward J. Norton, Jr., New Orleans, for plaintiff-appellee.
    Mouton, Roy, Carmouche, Hailey, Bivins & McNamara, Lafayette, for defendant-appellant.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

Jerome P. Halford sued Republic Underwriters Insurance Company on a homeowner’s insurance policy to determine the full extent of coverage under the policy for losses of personal property incurred in the burglary of his home on March 16, 1974. He also made a claim for $198.40 which was the cost of repairs to the door of his home which had been damaged by the burglars. Plaintiff’s total claim for his losses was $5,648.40. The defendant admitted that the policy was in full force and effect on March 16, 1974 and that Section (c) of the policy afforded protection against the theft of unscheduled personal property. However, defendant contended that plaintiff’s claim was in excess of the policy limits as to money and jewelry and erred in seeking replacement cost rather than actual cash value, and submitted a draft to plaintiff in the amount of $2,162.02 as full payment of the claim. Plaintiff returned the draft and sued to recover the full amount of his losses, penalties and attorney’s fees. Plaintiff alleged that defendant had handled his claim in an arbitrary and capricious manner in violation of LSA-R.S. 22:658.

The trial judge rendered judgment in favor of plaintiff in the amount of $2,525.92, awarded penalties of 12% of $862.98 (excess of judgment over tender) and $700.00 for attorney’s fees. Both parties claim the trial judge erred in awarding penalties and attorney’s fees. Plaintiff disagrees with the trial judge’s interpretation of the policy and valuation of his losses. He asks for an increase in the principal amount of the judgment and a corresponding increase in the penalties and attorney’s fees.

The homeowner’s policy at issue provided for $10,500.00 coverage of unscheduled personal property under Coverage C. Several limitations were placed on Coverage C under the “Additional Conditions” part of the policy. Section 2b of that part provides:

* * * * * *
“b Under Coverage C, this Company shall not be liable for loss in any one occurrence with respect to the following property for more than:
(1) $100.00 in the aggregate on money, bullion, numismatic property and bank notes;
‡ ‡ ‡ sfc * *
(4) $500.00 in the aggregate for loss by theft of jewelry, watches, necklaces, bracelets, gems, precious and semi-precious stones, gold, platinum and furs including articles containing fur which represents its principal value;”
¡fr * ‡ % s¡« ifc

Upon notification by plaintiff of his losses, defendant retained the services of the General Adjustment Bureau, Inc. (GAB) to adjust plaintiff’s claim under the terms of the policy. Plaintiff gave a statement of his losses to Robert Schoener, a GAB adjuster on April 2, 1974 and requested a proof of loss form. Plaintiff could not provide an estimate of the cost of repairs to his door at that time. Plaintiff listed forty-five items as stolen including a TV, radio, other electrical appliances, firearms, jewelry, tools, sweaters, liquor and cash money. Plaintiff repeated his request for a proof of loss form on'April 26, 1974. Plaintiff submitted the door repair bill to defendant on May 13, 1974 and again demanded a proof of loss form threatening to sue if he did not immediately receive the form. Plaintiff received a form on May 15. Plaintiff provided defendant with the age and replacement value of each of the stolen items. Defendant rejected plaintiff’s proof of loss and submitted a company draft to plaintiff on July 9,1974 for $2,162.02 as full payment of the claim. The draft itself contained language to the effect that it constituted a full release of the claim. However, a GAB representative stated in an accompanying letter that the language on the draft did not affect plaintiff’s right to further pursue his claim by litigation. Plaintiff returned the draft stating that it was totally unacceptable and informed defendant that he was filing suit.

A pre-trial conference was held and the parties stipulated that the replacement values assigned to the items by plaintiff were acceptable to both sides. Defendant offered no evidence at trial refuting these values. There was no stipulation made nor evidence presented as to the actual cash value of the items at the time of the loss. However, at trial, the judge depreciated the values of the majority of the items to reflect their actual cash values. He gave no explanation as to how he arrived at the depreciated figures. The trial judge also recognized both limitations of liability set out hereinabove and reduced the claim in accordance with the provisions of the policy. The trial judge concluded that cuff links are jewelry and losses thereof are subject to the jewelry limitation clause of the policy.

On appeal plaintiff argues that cuff links and a money clip are functional items and are not subject to the jewelry limitation. Plaintiff also argues that the trial court was in error in arbitrarily reducing the value of the lost property without the benefit of evidence or a specific method of. valuation set out in the policy.

Plaintiff argues that the trial court’s finding that defendant acted in an arbitrary and capricious manner should be affirmed. He argues that the defendant rejected his proof of loss without a reasonable explanation and did not make a payment of the claim within sixty days of the proof of loss in violation of LSA-R.S. 22:658.

We reject plaintiff’s argument that cuff links are not jewelry within the meaning of the policy. The Webster’s Third New International Dictionary (G & C Merriam Company, Springfield, Massachusetts, 1971) defines jewelry as ornamental pieces made of materials that may or may not be precious, often set with genuine or imitation gems and worn for personal adornment. Cuff links are defined as ornamental devices consisting of two pieces joined by a shank or bar for passing through buttonholes to fasten a cuff. Except for three inexpensive pairs of cuff links, plaintiff’s cuff links ranged in value from $175.00 to $375.00 and were made of gold or silver metals. We find that plaintiff’s cuff links were correctly categorized as jewelry. We also find that plaintiff’s money clip which was faced with a silver dollar was an ornamental piece and subject to the jewelry limitation of the policy.

We also disagree with plaintiff’s contention that the policy does not set out a method of valuation for coverage under Section C. The first page of the policy which applies to the entire contract provides:

“In consideration of the provisions and stipulations herein * * *, this Company, for the term shown in the Declarations * * * does insure the Insured named in the Declarations and legal representatives to the extent of the actual cash value of the property at the time of loss, * * (emphasis provided)

Pursuant to that language the trial judge was correct in reducing the value of each item from its replacement cost to its actual cash value at the time of the loss.

The final issue before us is whether or not defendant acted arbitrarily and capriciously in its payment of plaintiff’s claim. LSA-R.S. 22:658 provides:

“All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.”

Plaintiff argues that defendant acted arbitrarily and capriciously in not informing plaintiff of the basis for the company’s loss valuation. Plaintiff also contends that he gave a statement of his losses to the adjuster on April 2 and that payment should have been made within sixty days of that date. Plaintiff also argues that defendant did not make a valid tender within the meaning of LSA-R.S 22:658. Plaintiff contends that he was unsure as to whether or not the offer was final or subject to further negotiation.

Defendant argues that it received plaintiff’s final proof of loss on May 23,1974 and that it tendered payment on July 9, 1974 forty-seven days after the proof was submitted. Defendant argues that the payment properly reflected the limitations of the policy and points out that the trial judge recognized these limitations in computing plaintiff’s claim. Defendant points out that the trial judge only awarded plaintiff $363.88 more than the amount tendered and that indicates that the payment offered was reasonable and not arbitrary and capricious. We conclude that the trial court was in error in concluding that defendant acted in an arbitrary and capricious manner.

LSA-R.S. 22:658 is a penal statute and must, therefore, be strictly construed. One who claims penalties and attorney’s fees under the statute has the burden of proving submission to the defendant of “satisfactory proof of loss” as a necessary predicate to a showing that the defendant was arbitrary, capricious and without probable cause in failing to pay benefits. Gatte v. Coal Operators Casualty Co., 225 So.2d 256 (La.App. 3 Cir. 1969).

We find that defendant tendered payment to plaintiff within sixty days of presentation of satisfactory proof of loss. The record establishes that plaintiff submitted the repair bill which completed his itemization of losses on May 13,1974. Prior to that date, defendant did not have a complete monetary estimate of plaintiff’s losses. Even using May 13 as the point in time when a proof of loss was presented, defendant made a payment to plaintiff within the sixty day requirement of LSA-R.S. 22:658.

We also find that defendant made a valid tender of payment to plaintiff in submitting the draft for $2,162.02 without prejudice to plaintiff’s further pursuit of his claim. We do not find that defendant acted arbitrarily and capriciously in offering this amount. Plaintiff received a letter from the GAB adjuster dated June 27, 1974 stating his claim exceeded the policy limits. A reading of the policy reveals that these limitations are unambiguously set forth in the part on “Additional Conditions.” Robert Schoener, the adjuster testified that he had a telephone conversation with plaintiff about the adjustments on the claim, but plaintiff refused to concede that his claim should be reduced in any manner. Where an insurer’s interpretation of its policy is reasonable, the denial of a claim is not arbitrary so as to require the imposition of the penalty and the insurer has a right to the judicial determination of the issue. Cotlar v. Gulf Insurance Co., 318 So.2d 923 (La.App. 4 Cir. 1975). We find that the defendant correctly interpreted the provisions of its policy. The trial judge agreed that plaintiff’s claim had to be adjusted to reflect the limitations of the policy. We find it significant that the draft tendered was very close in amount to the principal amount awarded. We agree with defendant’s argument that the difference could easily have been caused by the use of a slightly different rate of depreciation by the trial judge. We have no evidence before us indicating defendant used an improper rate of depreciation. We find that the defendant made a reasonable tender of payment under its policy and the trial court was in error in finding their actions to be arbitrary and capricious. We reverse the trial court’s award of penalties and attorney’s fees.

For the foregoing reasons that part of judgment awarding plaintiff penalties of 12% of the amount of the award and $700.00 attorney’s fees is reversed and in all other respects the judgment of the district court is affirmed.

REVERSED IN PART AFFIRMED IN PART.