text:
    Ellen Watson FUORI, wife v. Michael A. FUORI, husband.
    No. 10724.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.

      Keith M. Whipple, Houma, for appellant.
    Lloyd J. Bourgeois, Houma, for appellee.
    Before SARTAIN, EDWARDS and CHIASSON, JJ.
   CHIASSON, Judge.

Michael A. Fuori, husband and appellant, has brought this appeal from a judgment granting Ellen Watson Fuori, wife and appellee, a separation from bed and board. In his Reasons For Judgment the Trial Judge provided the following summary of the facts of this case:

“Ellen Watson and Michael Fuori were married in the State of New York on June 30, 1936. They lived with Mr. Fuori’s father for approximately four years in Central Islip, New York. Then they moved into a little house adjacent to Mr. Fuori’s father’s house. Mr. Fuori went away to flying school, first in Suffolk County and then on Cape Cod. After Mr. Fuori returned from Cape Cod, the Fuoris lived in Central Islip until Mr. Fuori got a position in Texas as a pilot. Mr. Fuori went to Texas first, and was afterwards joined by his two brothers, and Mrs. Fuori and their young son. Later, Mr. Fuori’s sister joined them in Texas. They lived in Texas for approximately two years until Mr. Fuori got a job in New York as a test pilot. They then lived in Central Islip about a year and a half. At the end of World War II, Mr. Fuori was laid off from his job as a test pilot and got a job at the Aviation Country Club in Hicksville. Mr. and Mrs. Fuori continued to live at Central Islip. This lasted for about a year, until Mr. Fuori got a job working for Miss Betty Costive in Miami, Florida. Mr. Fuori lived in Florida alone for about a year, and then he sent for his wife and son to come to Florida as he had found a place for the summer. They were to look for a permanent home while they were in Florida. They stayed in Florida for about two and half or three months. Then, although it appears that the contentions of the parties to this suit vary, this Court finds, as -was testified, that Mrs. Fuori found some letters written by another woman to Mr. Fuori. Mrs. Fuori went back to New York and stayed at William Fuori’s house. Afterward, Mrs. Fuori lived in and was employed in Brookville and Long Island. About two months later, Mrs. Fuori was visited by her husband, who said he had taken a job with Texaco in Louisiana to start in November of 1948, and they would then be back together again. Mrs. Fuori offered to come to Louisiana, but her husband said she should wait. She again offered to come to Louisiana when her husband was up in New York a little later, but her husband discouraged her saying that he did not like Louisiana, and it would be detrimental to Mrs. Fuori’s health for her to live here. Mr. Fuori also said he would get a transfer to New York. In about 1950, Mrs. Fuori bought a house in Farmingdale, New York, where she still lives. Throughout the years, Mrs. Fuori repeatedly offered to join her husband in Louisiana, but her husband advanced the same reasons for her not to come to Louisiana. Her husband visited her at least once a year in New York, during vacations and sometimes at Christmas, and they went out together and generally conducted themselves as husband and wife.
“In about 1949 Mr. Fuori met Miss Dorothy Hurst, who lives in Houma, and started dating her. At first he dated her rather unfrequently, but they gradually began seeing one another more and more until recently, Mr. Fuori saw Miss Hurst almost every day. They went out together, and Miss Hurst visited Mr. Fuori’s house in Houma and he visited her apartment in Houma.
“Mrs. Fuori gradually found out about Miss Hurst. Once when she telephoned Mr. Fuori in Houma, a high-pitched voice, believed to be that of Miss Hurst, answered the telephone. Also, when the Fuoris’ son, William Fuori, who was then grown, flew to Louisiana with his father when his father was about to have a rather serious operation, Mr. Fuori told William that Miss Hurst would meet them at the airport.
“In 1970, Mrs. Fuori filed suit against Mr. Fuori before this Court for separation from bed and board. The parties became reconciled, and the suit was dismissed. However, Mr. Fuori continued to see Miss Hurst. The present action was filed on April 17, 1974, by Mrs. Fuori against Mr. Fuori, seeking separation from bed and board on the grounds of cruel treatment. A temporary restraining order was issued that day forbidding Mr. Fuori from alienating community property. This temporary restraining order was extended on motion of plaintiff from time to time.
“Before the suit for separation was filed in Louisiana, a suit for divorce was filed in New York by Mr. Fuori against Mrs. Fuori. Service of process upon Mrs. Fuori, through her New York attorney, was not effected until after the present separation suit was filed.
“Counsel for Mr. Fuori filed an exception to the jurisdiction of this Court in the separation suit, a motion to stay the present separation suit until the divorce suit was decided in New York, and a motion to dissolve the temporary restraining order against alienating community property on the grounds that Article 149 of the Louisiana Civil Code was unconstitutional. This Court held that it had jurisdiction, refused to issue a stay order, and refused to dissolve the temporary restraining order, assigning written reasons for judgment. Defendant sought supervisory writs, which were denied on the grounds that an adequate remedy was had by appeal. (See transcript of Appellate record, 10103, p. 16) Counsel for plaintiff filed a contempt rule on the grounds that defendant had violated the temporary restraining order by alienating community property. This issue was referred to the merits. Counsel for plaintiff also filed an alimony rule for alimony pendente lite. Alimony for Mrs. Fuori from Mr. Fuori was awarded in the amount of $858.80 per month, payable semi-monthly. Mrs. Fuori was also awarded the rental income from the New York property. Defendant appealed from this ruling, and the judgment of the trial Court was affirmed.”

After a trial on the merits, the Trial Court rendered judgment decreeing a separation from bed and board, perpetuating the preliminary injunction and permanently enjoining the appellant from disposing or encumbering any of the property belonging to the community of acquets and gains existing between he and his wife. In addition, the Trial Court found the appellant to be in contempt of Court for alienating community assets in violation of the temporary restraining order which was issued by the Court. The appellant was ordered to reimburse the community of acquets and gains the value of the assets alienated, $20,900.00. The appellee was awarded alimony pendente lite in the amount of $858.80 per month.

The errors complained of by the appellant are that the District Court:

1. did not have jurisdiction in the matter;

2. erred in granting a separation;

3. erroneously issued a permanent injunction ;

4. erroneously held the appellant in contempt and erroneously ordered him to reimburse the community; and

5. erred in declaring the property acquired by the appellant to be community property.

As to the appellant’s first specification of error, Article 10 of the Louisiana Code of Civil Procedure provides:

“A. A court which is otherwise competent under the laws of this state has jurisdiction of the following actions or proceedings only under the following conditions :
“(7) An action of divorce, or of separation from bed and board, if one or both of the spouses are domiciled in this state and, except as otherwise provided by law, the grounds therefor were committed or occurred in this state, or while the matrimonial domicile was in this state”.

The appellant, Mr. Fuori, is domiciled within this state. The grounds for separation from bed and board, cruel treatment in the form of the appellant seeing another woman over a period of twenty-five years, occurred in this state. Since one of the parties is domiciled in this state and the grounds for separation occurred in this state, the District Court had jurisdiction.

Article 138 of the Louisiana Civil Code provides:

“Separation from bed and board may be claimed reciprocally for the following causes:
“(3) On account of habitual intemperance of one of the married persons, or excesses, cruel treatment, or outrages of one of them toward the other, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable.”

The cruel treatment alleged by the appel-lee was the association of the appellant with another woman for a period of approximately twenty-five years and the refusal of the appellant to discontinue this relationship. In Holmes v. Holmes, 23 So. 324 (La.1898), the association of the husband with another woman over a period of seven years, which association led to mutual aversion, was cruel treatment sufficient to put the husband at fault. The appellant contends that the appellee is not entitled to a separation because she is not free from fault. In essence, the appellant’s contention is that when the appellee left the appellant in Florida, she abandoned the matrimonial domicile and has since refused to return to it. The appellant also argues that since this abandonment there has been no reconciliation condoning the appellee’s fault.

The refusal of the wife to follow her husband or the abandonment of the matrimonial domicile by her can constitute fault on her part. Richards v. Garth, 223 La. 117, 65 So.2d 109 (1953); Smith v. Smith, 148 So.2d 827 (La.App., 4th Cir., 1963); Douglas v. Douglas, 146 So.2d 227 (La.App., 3d Cir., 1962). However, where given cause, the wife may leave the matrimonial domicile without her being considered at fault. Bush v. Bush, 232 La. 747, 95 So.2d 298 (1957); Richards v. Garth, supra. The Trial Court found, based on the appellee’s testimony, that the reason the appellee left the parties’ temporary summer home in Florida was some letters found by the appellee written by another woman to the appellee’s husband. An Appellate Court will not substitute its judgment for that of the Trial Court in evaluating the credibility of witnesses or in making determinations of fact, in the absence of manifest error. May v. Finest Foods, Inc., La.App., 303 So.2d 192 (4th Cir. 1974); Bailey v. Vinton Nursery, Inc., La.App., 285 So.2d 317 (3rd Cir. 1973); Louisiana National Bank of Baton Rouge v. Heroman, La.App., 280 So.2d 362 (1st Cir. 1973). In addition, there is no evidence establishing appellant’s contention that the appellee refused to join him in Louisiana. The record indicates that the reason the appellee remained in New York was that the appellant did not want her to join him in Louisiana. Because the appellee did not abandon the matrimonial domicile without cause or refuse to join the appellant in Louisiana, she is not at fault. Therefore, the appellee does not need to prove reconciliation.

The appellants’ third specification of error is that the Trial Court erroneously granted a permanent injunction in the Judgment of Separation, prohibiting him from disposing of or encumbering any of the property belonging to the community of acquets and gains.

Appellant’s contentions are:

(1) No statutory authority exists for the issuance of such an injunction ;
(2) It is a contradiction of terms to restrain appellant from disposing of the property belonging to the “community” when the judgment of separation dissolves the “community” once the judgement has become final. ■

It would appear that the only reported case in which a Court granted a permanent injunction prohibiting the husband from alienating or encumbering community property as a part of a judgment of separation from bed and board was Talbert v. Talbert, 192 La. 837, 189 So. 448 (1939). In that case the injunction was part of the judgment and not an issue before the Court.

Article 3601 of the Louisiana Code of Civil Procedure provides:

“An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law. . . . ”

The law specifically provides for injunctions in suits for separation from bed and board:

1. “During the suit for separation, the wife may, for the preservation of her rights, require an inventory and appraisement to be made for the movables and immovables which are in possession of her husband, and an injunction restraining him for disposing of any part thereof in any manner.”

La.C.C. Art. 149.

2. “Either party to an action for separation from bed and board or divorce may obtain injunctive relief without bond prohibiting the other party from disposing of or encumbering community property.”

La.C.C.P. Art. 3944.

In Arcemont v. Arcemont, La.App., 162 So.2d 813, 815, the Court held:

"The judgment for separation from bed and board carried with it the dissolution of the community of acquets and gains and the parties thereafter occupied the status of co-owners of the property.” (Citing several authorities.)

Under C.C.P. Art. 3601, any person may obtain an injunction upon showing irreparable injury, loss, or damage and this would include a husband or wife who are co-owners.

Even assuming that the husband or wife is not entitled to an injunction as a matter of right under the statutes quoted above, the evidence presented in this case supports the Trial Court’s finding of irreparable injury and the issuance of an injunction under C.C.P. Art. 3601.

The next issue raised by the appellant is that of the judgment of the District Court finding him in contempt and ordering him to reimburse the community the sum of $20,900.00. The appellant contends he was not in contempt because his action was not the “wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court. . . ”, which constitutes constructive contempt under Art. 224(2) of the Louisiana Code of Civil Procedure.

In New Orleans F. F. Ass’n Loc. 632 v. Cit yof New Orleans, La.App., 260 So.2d 779 (4th Cir. 1972), “wilful disobedience” was defined as “an act or a failure to act that is done intentionally, knowingly and purposely, without justifiable excuse.” In that case the Trial Court found that the city was not in contempt because its position “was taken in good faith and on the basis of a conscientious belief in the validity of its interpretation of the law”: and because of the financial position of the .city. While appellant’s sell order with regard to the stock was issued prior to issuance of the initial restraining order, the funds derived from the sale of said stock were not received and transferred by appellant until after the restraining order was in effect. The appellant in this case offers no “justifiable excuse” for the alienation of the community funds and his immediate transferral of the funds to a third party justifies the Trial Court’s determination that his actions were not taken in good faith. The appellant was in constructive contempt of Court and is required to return to the community the value of the assets alienated.

The final contention of the appellant is that the Trial Court erred in decreeing that a community of acquets and gains existed between the parties. The articles of the Civil Code which establish the community provide:

“Every marriage contracted in this state, superinduces of right partnership or community of acquets or gains, if there be no stipulation to the contrary.”

La.C.C. Art. 2399.

“All property acquired in this State by non-resident married persons, whether the title thereto be in the name of either the husband or wife, or in their joint names, shall be subject to the same provisions of law which regulate the community of acquets and gains between citizens of this State.”

La.C.C. Art. 2400.

“A marriage, contracted out of this State, between persons who afterwards come here to live, is also subjected to community of acquets, with respect to such property as is acquired after their arrival.”

La.C.C. Art. 2401.

The appellant contends that under the facts of the present case these articles do not provide for the existence of a community of acquets and gains between the parties. That is, these articles do not specifically provide for the existence of a community where the parties were not married in this state and only one of the parties is a resident of this state.

This contention was answered by the Supreme Court of this state in Succ. of Dill, 15S La. 47, 98 So. 752 (1923), wherein the Court held that under Civil Code Article 2400 all property acquired in this state by married persons becomes community property regardless of where both or either of them reside, unless they have contracted otherwise. The parties to this litigation have not contracted otherwise.

Therefore, the judgment appealed from is affirmed at appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: SARTAIN, Judge. BAILES, Judge Pro Tem.

license: Public Domain

text:
    Bryan DUMEZ et al., Plaintiffs-Appellees, v. LOUISIANA HIGH SCHOOL ATHLETIC ASSOCIATION et al., Defendants-Appellants.
    No. 10504.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 1, 1976.

      Charles Hughes, Bogalusa, for defendants-appellants.
    Gerald A. Bosworth, Houma, for plaintiffs-appellees.
    Before LANDRY, SARTAIN, BLANCHE, BAILES and PICKETT, JJ.
   SARTAIN, Judge.

In April of 1974, some seventeen high school students were declared ineligible to participate in interscholastic baseball athletics by the Louisiana High School Athletic Association (Association). The parents (appellees) of eight of these students instituted the present action against the Association, Vandebilt Catholic High School, H. L. Bourgeois High School, Ter-rebonne High School, and South Terre-bonne High School (collectively referred to herein as LHSAA) seeking a permanent injunction prohibiting LHSAA from enforcing the Association’s ruling. In due course the matter was heard and a previously issued temporary restraining order was made permanent via the preliminary injunction. From this judgment, LHSAA has appealed.

The Association is a voluntary organization of some four hundred forty-four high schools, public and private. Membership is restricted to the schools themselves. While the schools are represented by their respective principals, neither the principals, students nor coaches are members. The Association has complete control over interscholastic athletics in the state by virtue of the member schools’ adherence to its rules and regulations. A Commissioner of athletics is charged with the duties of managing the affairs of the Association, ruling on eligibility requests, interpreting and enforcing the rules, etc. Any ruling of the Commissioner may be appealed to an Executive Committee.

The students in question were participating on interscholastic baseball teams of their respective high schools in Terrebonne Parish. At the same time these students also participated in various practice sessions held by the Babe Ruth Baseball League in Houma, Louisiana. When such dual participation came to the attention of the four high schools, each principal thereof reported the same to the Commissioner. The Commissioner found and ruled each of the students in violation of the Association’s “independent team rule” and as a consequence thereof declared the students suspended from participation in interscholastic baseball for one year, the games they played in forfeited, and imposed a nominal fine on the schools.

The “independent team rule” is found in Art. I, sec. 12 of the Association’s ByLaws:

Section 12. Playing With or Against Independent Teams
Rule 1 — A student shall not be permitted to take part in any branch of athletics not sponsored by the school while he is a member of a school team or squad, in that same sport. The penalty for the violation of this rule will be one year’s suspension from participation in the sport in which the violation occurs.
EXCEPTION — This rule is waived for golf, tennis and swimming.

On appeal to the Executive Committee the ruling of the Commissioner was upheld. This litigation followed.

The Babe Ruth Baseball League was instituted by the Houma Athletic Recreation Committee (H.A.R.C.) for the purpose of allowing boys between the ages of thirteen and sixteen years to participate in an organized summer baseball program. Actual competition in the league does not begin until the school session is terminated for summer vacation. Charters for membership in the league are issued on an annual basis by the National Association of Babe Ruth Leagues, Inc.

Each year copies of the Association’s handbook are mailed to the principal of each member high school. In addition, the Association furnishes posters to be displayed in prominent locations on the school campus, i. e., bulletin boards and athletic locker rooms. These posters, in pertinent part, read:

“ATTENTION ATHLETES!
ONE INELIGIBLE STUDENT . MIGHT. DISQUALIFY YOUR WHOLE ' TEAM. KNOW YOUR ELIGIBILITY RULES.
Consult your coach and principal on any questions concerning eligibility.
TO BE ELIGIBLE FOR THE HIGH SCHOOL TEAM YOU MUST
* * *
10. Not Take Part in Any Branch of Athletics Not Sponsored by Your School While You are a Member of a School Team or Squad in that Same Sport.
This rule is waived for golf, tennis and swimming.”
* * *
A brief review of the evidence is appropriate.

APPELLEES’ WITNESSES

Mr. Richard Diamond, President of Babe Ruth League in Houma, stated that he had been associated with its summer baseball program for eighteen years. During this period of time he had observed that student athletes had taken part in Babe Ruth practice sessions while they were also members of their respective school’s team. He was not aware of the rule in question and contended that inasmuch as high school coaches observed Babe Ruth practices, these coaches or other school employees should have notified Babe Ruth personnel that such activity was in violation of the eligibility rule. He acknowledged that he knew of no occasion where the Association ever acquiesced in any violation when it had been brought to the attention of the Association.

Mr. Hays Bonvillon became active in Babe Ruth League as a charter member in 1954 or 1955. He also served as a coach of one of its teams for some fifteen years, or until 1970. He stated that during this period of time he had numerous players on his Babe Ruth team who were all members of their school’s team. He knew of no instance where such dual participation was reported to the school.

Teddy Duhe was a student athlete in 1960-1961. He was a member of his high school’s baseball team and also practiced with a Babe Ruth team on weekends. He named some seven other athletes who did the same thing. Duhe was not familiar with the eligibility rule; consequently, he did not knowingly violate the same.

Allen Bonvillian (1954-1958), Richard Haydel (1957-1961), Louis Guenoit (1954—1958), Al Badeaux, Jr. (1956-1960) and Eddie Rullaro (1957-1961) testified that while they were members of their respective high school teams, they also practiced with the Babe Ruth team. None of these witnesses knew of the rule nor could they recall ever having been advised of its existence.

Jay Luke, one of the students declared ineligible, testified that he was not informed of the rule by his coach and did not knowingly violate the same. He stated that he was encouraged to practice with the Babe Ruth team by his high school coach (Bryan Guenoit). He was not questioned as to whether he had ever seen a copy of the poster, mentioned above. It was stipulated that if thirteen of the remaining affected students were called to testify, their testimony would be the same as Luke’s.

LHSAA’S WITNESSES

Mr. Frank Spruiell, the Commissioner of Athletics for the Association, became associated with the Association in 1966. He served as an assistant to the then Commissioner for five years and- as its Commissioner since 1971. Prior to 1966 he taught at the high school level for fourteen years and in college for two years. He stated that the rule now under consideration has been in the Louisiana Association rule book for twenty-five years. He also said that the same rule or its equivalent is in the by-laws of the Associations of each of the fifty states of the United States. The purpose of the rule is to limit the participation of a student athlete in a given sport, both in competition and in practice. He explained that excessive athletic endeavors is deemed detrimental to a student’s academic pursuits.

The instant infractions were made known to him when he was attending a track meet in Thibodeaux, Louisiana. During the course of the evening, the matter was discussed with a representative of each of the schools involved. He asked for full particulars which were forwarded to him by the schools. In due course, it was determined that the seventeen students were actually engaged in organized practices with the Babe Ruth team while they were also members of and playing with their respective high school squads.

Commissioner Spruiell documented some nine incidents where the violations of this rule were reported to the Commission’s office and the action taken was identical to that complained of here. On no occasion where there was a rule violation that was made known to the Commissioner’s office was action not taken, i. e., the student suspended and any high school game in which the student participated declared forfeited.

Lucas J. Marcello is the athletic director and head football coach at South Terre-bonne High School. He is also employed by the City of Houma as director of its summer recreation program (H.A.R.C.) of which the Babe Ruth League is a part. The Board of Directors of H.A.R.C. is composed of twenty volunteers. A number of these are public school employees. Marcello’s duties with H.A.R.C. did not commence until the school’s summer recess. This witness was an active school coach from 1950 to 1970. He stated that from the commencement of his coaching career he knew the rule and so advised his student athletes. When he was coaching baseball he would release his younger players from his school squad and recommend that they play with the Babe Ruth team for experience, once the latter program was underway. He had no personal knowledge of any dual participation on the part of students during these twenty years. He also stated that Coach Pierce at South Terrebonne High School had notified his senior varisity players of the rule. Three of the students involved are from South Terrebonne High School. Coach Marcel-lo acknowledged that Babe Ruth coaches were not informed of the rule.

Donald J. Landry, principal at South Terrebonne High School, testified that the rule has been enforced during the last seven years he has served as principal. He also stated that the posters were placed on the school’s bulletin boards.

John Pettigrew, a local attorney, stated that he played baseball at Terrebonne High School from 1963 to 1965. He was informed by his school coach that you could not participate simultaneously in both programs.

John W. Chaisson has served at Terre-bonne High School for the last four years as assistant principal. For some eight years prior thereto he coached baseball in the Houma area public schools. For three years (approximately 1967 to 1970) he was baseball coach at Terrebonne High. He knew of the rule and so informed his student athletes. They could participate in one or the other program, but not both at the same time. This witness was one who was identified as having done so during his student years by Louis Guenoit, above. He (Chaisson) categorically denied such participation and further added that during his high school years his coaches advised him of the rule.

It was this witness who discovered the infractions of the rule in the instant matter. He overheard Coach Whatley say that young Craig Falgout had injured himself during a Babe Ruth practice and could not play for his high school team. Coach Whatley did not know that it was a violation. A conference ensued between Chais-son and the four coaches o fthe schools involved. It was determined by those present that it was a violation to engage in dual participation and the matter was reported to the Commission by the principals of the respective schools.

Warren Sevin has served at Terrebonne High School for a period in excess of fifteen years, the last seven as its principal. He has been familiar with the rule ever since he has had an administrative position with the school, that is, for the past twelve years. He stated that at the beginning of each academic year, the administrative and athletic staffs met at which time copies of the Association’s official handbook are distributed to each coach and a general discussion is had relative to the rules. Further, copies of the posters mentioned above are framed and placed at five prominent locations on their school’s campus.

The following questions by the trial judge and this witness’s response thereto is noted:

THE COURT:
Let me ask you a question. From what I have gathered from what some of these people and youngsters have said, once you join the Babe Ruth pro-
gram, it is sort of one of these lifetime deals that you consistently are in the organization and either you have to get way too old or die before you are striked from the roll. If you have one of your coaches that would participate in Babe Ruth and a youngster would go out on a Sunday afternoon and play in a practice session, I guess that is not the exact terminology but he would be out there with a group of boys in the Babe Ruth team at a practice session, do you think that that boy would be violating the specific letter and spirit of the rule P
MR. SEVIN:
If the circumstances were such that two or three people were playing pitch and catch and the coach was there or parties around them, it would be questionable as to whether or not that situation would be a violation. However, the situation we were aware of which occurred this last spring, last April, it was considerably more than that. It was from the facts we know definitely was an organized practice.
THE COURT:
It was a practice session.
MR. SEVEN:
Yes, it was.

Mr. Louis Dallas Rogers presently serves as assistant superintendent of schools in Terrebonne Parish. He was principal of Terrebonne High School for fourteen years, 1956 to 1968. He recalls the existence of the rule as far back as 1948 when he was an assistant coach. Mr. Rogers also coached Little League and Babe Ruth baseball teams. He stated that he always advised his Babe Ruth teams that they could jnot participate in both programs. He could not state if other coaches of Babe Ruth teams did the same. He knew of no instance during his long tenure in both programs where either party knowingly permitted dual participation or that the Association with knowledge of an infraction ever acquiesced in the same.

Finally, it was stipulated that the rule had been uniformly applied by the Association.

CONCLUSIONS OF FACT

We think the following conclusions are pertinent. It is evident that from time to time various student athletes did in fact participate in both programs. Some of the student athletes were not informed of the rule and others were. Most of the Babe Ruth teams are coached by volunteers, including parents and other interested citizens. These volunteer coaches did not nor can they be expected to know the rule in question.

It is apparent that the instant athletes were not verbally informed of the rule. This hit and miss affair has apparently continued for many years. We think the reason is due in large part to the fact that Babe Ruth practice commenced prior to and actual competition within the league commenced after the high school baseball season was over. The directors and/or coaches of each were primarily concerned with their immediate task and had no reason to believe that their common endeavors might prove conflicting.

Not one single witness on either side of this controversy accused the other of knowingly permitting or encouraging the infraction of this particular eligibility rule.

The basis for the district court’s decision is found in the trial judge’s written reasons for judgment:

“This Court must necessarily conclude that the affected players were misled by their coaches who allowed them to practice Babe Ruth and play for their respective schools at the same time. This is not to say that the affected players were purposely misled, but in the Court’s opinion, being misled is enough. If any action should have been taken by LHSAA, it should have been directed against the schools, but not the innocent parties affected. Therein lies the serious inequity, although indirectly the student would ultimately share the fate of the school. Here, the youngster is branded as the wrongdoer and this is not so. With reference to the coaches at the various high schools, it is the Court’s opinion that they are indeed agents of the LHSAA. The defendant, LHSAA, so stated in their brief at page 15:
“ ‘The uninformed may think some rules unwise, or unfair, but the men whose business it is to supervise high school athletics in this state — the coaches and the principals acting through their association — have thought otherwise. Such is the rule. Such is the system.’
“See Patrick v. Patrick, 230 So.2d 759 (La.App., 2d Cir. 1970).
“Naturally, any action by an agent clothed with authority binds the principal. That is one reason why the injunc-tive relief as prayed for be granted. As stated by counsel for the plaintiffs in his brief at page 12, and I agree:
“ ‘We just cannot allow coaches who are agents of the LHSAA to encourage an activity then have the LHSAA punish one for engaging in that activity.’
“This action flies in the face of both due process of law and equal protection of law as guaranteed by both State and Federal Constitutions.”

LHSAA contends that the trial court erred by (1) intervening in the internal affairs of a voluntary association; (2) in holding that the action of the association violated the students’ constitutional rights to equal protection and due process; and, (3) in failing to hold that the action of the Association under the present circumstances was reasonable and necessary. We shall discuss these points in the order mentioned.

VOLUNTARY ASSOCIATION

Our courts have long adhered to the general rule that they will not interfere in the internal affairs of a private association so long as its affairs and proceedings are conducted fairly and honestly, and after due notice to everyone involved. Heuer v. Crescent City River Pilot’s Association, 158 So.2d 221 (La.App., 4th 1963), writs denied, 245 La. 580, 159 So.2d 288. This rule has been cited in numerous cases involving the Association. Marino v. Waters et al., 220 So.2d 802 (La.App., 1st 1969); David v. LHSAA, 244 So.2d 292 (La.App., 1st 1971); Sanders v. LHSAA, 242 So.2d 19 (La.App., 3rd 1970); Watkins v. LHSAA, 301 So.2d 695 (La.App., 3rd 1974); and, Chabert v. LHSAA, 323 So.2d 774 (La.,1975).

With the exception of Sanders, the cited cases prior to Chabert did not address themselves to a consideration of the nature of the action complained of, i. e., whether the action of the Association is purely private or whether such action is under “col- or” of state law. In this regard, we now note that students, coaches and principals are not members of the Association. Accordingly, when the eligibility rule now under consideration is invoked and sanctions are imposed against one or more students, resulting litigation is not, contrary to LHSAA’s contention, involved solely with the internal affairs of a voluntary association.

We also note that everyone of our public schools that engages in interscholastic athletic competition is of necessity a member of the Association. The facilities used for athletic contests are public properties and the school administrators (principals, etc.) and coaches are paid out of public funds. In addition, we agree with the view expressed by all of the parties to this litigation that participation in interscholastic athletics is an integral part of the overall academic process. Under these conditions, it matters not that the association considers itself to be a private, voluntary organization. Its actions in regulating public school athletic activities and imposing sanctions for violations of its rules constitute “state action”.

Therefore, the Association’s activities are subject to court scrutiny when a litigant contends he is denied equal protection or due process of law by the enforcement of its rules. Chabert, above.

Prior to considering the constitutional questions it should be emphasized that ap-pellees have no quarrel with the rational basis for or the purposes of the rule, that is, to protect student athletes from excessive athletic endeavors. Their grievance concerns the application of the rule to them under the facts here presented.

EQUAL PROTECTION

We construe appellees’ position on their claims of denial of equal protection to be based on the assumption that the Association in the past has not uniformly invoked the suspension the rule imposes or that the Association has not been consistent in acting in the face of known violations. While the evidence detailed above shows that for a number of years various students did engage in dual participation, the record is entirely devoid of any evidence that such participation was known by the principals who represented the schools or by any officer of the Association. As to the coaches of the four schools involved, the trial judge stated in his written reasons that they did not “purposely” mislead the students.

It was stipulated between counsel for the parties to this action that on each occasion that a violation of this eligibility rule was revealed to the Association, the latter’s actions were consistent and uniform. Immediate investigations followed and suspensions of one year were imposed. Under these circumstances, the affected students in the instant action have not been denied equal protection of the law.

DUE PROCESS

On the question of due process, appel-lees’ contentions relate to both substantive and procedural aspects thereof.

As stated above, appellees have no quarrel with the purpose (rational basis) of the rule in question. However, they do argue that it must have been misunderstood by the coaches, else these coaches would not have encouraged the affected students to participate with the independent, Babe Ruth, teams. It is well recognized that a rule or law, if ambiguous or vague, may fall short of the constitutional requirement for due process. We can not say, and the record does not confirm, what the coaches’ interpretation of this rule was. The rule itself must stand the test of clarity. Inasmuch as it is applicable to high school students, the test to be applied is that it must be capable of comprehension by a student who is possessed of average intelligence. Viewed in this light, a simple reading of the rule and reference thereto on the posters satisfies us that it is not vague or ambiguous.

Appellees cite Wright v. Arkansas Activities Assn., 501 F.2d 25 (8 Cir. 1974) for the proposition that judicial intervention is warranted when as association attempts to “inflict sanctions on non-members of the group” without notice. In Wright, the Association’s rule provided that no member school could commence or conduct football practice except during a designated period. Coach Wright conducted practice sessions in violation of the rule. The Association gave the school a choice, either fire Wright or be suspended from football competition for one year. The school authorities asked Wright to resign his employment. The court found that the rule was silent as to any sanction and held that inasmuch as the scope of the rule depended upon the subjective appraisal of the Association, the rule itself violated the fundamental requirement of fairness (due process) by not containing a warning in language that the “common world” could understand. Such is not the case with the rule in the instant controversy because the same specifically states that the sanction for its violation is one year’s ineligibility.

With respect to the procedural aspect of due process, appellees argue that they were not “verbally informed” of the rule. As stated above, the Association forwarded copies of the handbook and posters to each of its member schools. Copies of the handbook were not given to the students nor the contents therein explained to them by the coaches. However, the posters were displayed in promiment locations on the schools’ campuses. The question then is: Does the placement of these posters satisfy the due process requirement of reasonable notice ? We think it does.

We can not see the wisdom of nor the necessity for LHSAA furnishing the literally thousands of high school athletes with copies of its rule book. We do think that it is essential that they do advise students of a rule where the violation of that rule imposes a penalty and if the manner of notice is through a poster, then it behooves the student athlete to inform himself accordingly. Moreover, it is just as reasonable to assume in the instant case that the import of the rule would have escaped the attention of or gone unheeded by these students even if they had had copies of the rule book just as it escaped their attention notwithstanding the presence of the posters.

Appellees have argued that the executive director of the Commission pronounced them ineligible for student participation without giving them an opportunity to be heard. This issue is not without merit inasmuch as the rule does contain penal provisions that would render a student ineligible by virtue of his conduct where he would otherwise remain eligible. However, this particular issue is mooted because an appeal was had to the executive committee and a hearing was conducted by the committee with the opportunity given for everyone to present their grievances. Absent any complaint by appellees either in brief or oral argument, it must further be assumed that the same evidence as presented in these proceedings was also presented to and considered by the Executive Committee.

APPLICATION OF THE RULE

We now turn to the real issue in this litigation. The essence of appellees’ case is their claim that under the facts here presented the imposition of the suspension is unfair. Stated another way, they claim that the circumstances giving rise to their suspensions should have been given consideration in mitigation of the infractions and that the suspensions should not have been imposed. The trial judge found that the action of suspending the students without some further action being taken against the coaches or the schools constituted a serious “inequity” as to the students. However, his basis for enjoining the Association was on his determination that the coaches were the agents of the Association and as such had the authority to bind the Association. We can not agree with this conclusion. If this be proper grounds, then the hundreds of high school coaches in this state could render any rule utterly worthless. The interscholastic athletic arena would be reduced to a confused mass of participants without standards or limits.

Appellees are, therefore, in effect asking the court to rescind or modify the penalty of suspension, a judgment of the Association’s final authority, its Executive Committee.

No case has been cited and our research has found none where a court has been called upon to rescind or modify a ruling of an athletic commission for purely miti-gative reasons. Rather, absent the violation of a constitutional right or statutory law, we find no justification for judicial intervention in the affairs and proceedings of the Louisiana High School Athletic Association and its member schools.

Accordingly, for the above reasons, the permanent injunction issued by the district court is hereby set aside, recalled and vacated and judgment is rendered herein in favor of the defendants and against appel-lees dismissing the latters’ suit at their cost.

REVERSED AND RENDERED.

BAILES, J. pro tem., dissented and filed opinion.

BAILES, Judge Pro Tem.

(dissenting).

I must dissent from the holding of the majority that due process requirements have been satisfied.

As stated by the majority, “The rule itself must stand the test of clarity. Inasmuch as it is applicable to high school students, the test to be applied is that it must be capable of comprehension by a student who is possessed of average intelligence. Viewed in this light, a simple reading of the rule and reference thereto on the posters satisfies us that it is not vague or ambiguous.” (Emphasis supplied.)

The mere statement and conclusion of the majority that a simple reading of the rule and reference thereto on the posters satisfies us that it is not vague or ambiguous does not satisfy the premise of clarity. The conclusion of the majority begs the question. As stated by the majority it is applicable to high school students (grades 9 through 12) and the test to be applied is whether it is capable of comprehension by a student of average intelligence.

The majority has quoted Rule 1 in full thus there is no need to quote it again. However, the majority has not considered nor quoted Rule 2 which has specific application to summer baseball participation. Rule 1 in general terms states that a student is not to take part in any branch of athletics not sponsored by the school while he is a member of the school team, however, Rule 2 makes an explicit exception.

Rule 2 provides:

“Boys who play summer baseball or girls who play summer softball, provided they do not sign a professional contract, will not have their high school eligibility affected by playing, provided such play takes place after his school team has completed its baseball season and, before he becomes a member of any school team in the fall. They can neither play nor practice with such teams during the school year except as stated above.”

There is no question that actual play or competition in the Babe Ruth league does not begin until the school session is terminated for summer vacation.

The lack of clarity of the rules is best demonstrated by the fact that seventeen of the students (of average intelligence and understanding) in the athletic program thought there was no violation of the rule. In addition, a number of their coaches were of the same understanding. Thus, a substantial number of persons were of the opinion that participation to the limited extent of practice was not proscribed. My own interpretation of the rules (Rule 1 and 2), after due deliberation, is that such activity is not proscribed.

The inescapable conclusion is that the rules at best are ambiguous. To put these students under the sanctions imposed by LHSAA is plainly and clearly a denial of due process.

I respectfully dissent.

      . Including the suspension in 1967 of four students on a basketball team of Vandebilt Catholic High School; one student on a baseball team of Terrebonne High School in 1971. The remaining incidents occurred in different parts of the state at seven other schools in 1974 and 1975.

      . Tim Porche is a litigant herein. Ernest Bennett and Wayne Lyon are not litigants nor are their names listed in the stipulation following the testimony of Jay Luke.


author: COVINGTON, Judge:

text:
    Joe E. ANZALONE v. Harbert S. GREGORY. ENTERPRISE ELECTRIC, INC. v. Harbert S. GREGORY.
    Nos. 10700 and 10701.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.

      Guy L. Deano, Jr., Covington, and James Wilkinson, III, New Orleans, for defendant-appellant in both suits.
    Henry A. Mentz, Jr., Hammond, John W. Greene, Covington, for plaintiffs-appel-lees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This appeal arises from judgments in consolidated actions. In the first action, Joe E. Anzalone, the prime contractor [Contractor], brought suit against Harbert S. Gregory [Owner], for the balance of $10,000.00 allegedly due under a construction contract for the building of defendant’s home in St. Tammany Parish. The second action was brought by Enterprise Electric, Inc., the electrical contractor [Enterprise], against the homeowner for the sum of $2,829.18, allegedly due for special and extra work done at the specific request of the Owner. The Owner denied both claims, reconvened against the Contractor in the first action, and third-partied the Contractor in the second action.

After trial, the lower court rendered judgment in favor of the Contractor in the amount of $10,000.00 in the first action, in favor of Enterprise in the amount of $2,551.48 in the second action, and rejected all claims of the Owner, who has appealed. We amend and, as amended, affirm.

On August 25, 1970, the prime contractor and the homeowner entered into a written construction contract, for a total price of $105,087.00, including the lot in Tche-functa Estates. By the time of the completion, the total price was to have been paid, less 10% to be held during the lien period.

The Owner had an architect prepare the plans for his home, which plans were presented to Anzalone so that a bid could be submitted. The original plans called for an elaborate electrical system, which turned out to be unfeasible. After negotiations, the parties agreed on a basic electrical system which became a part of the construction contract. Anzalone subcontracted that portion to Enterprise.

Although the Owner essentially complains of uncompleted work, work done in an unworkmanlike manner, and deviations from the specifications of the contract, the real dispute in both cases is over the electrical work. Parenthetically, the Owner is a graduate Electrical Engineer.

Appellant also contends that the trial court erred in allowing parol evidence to show a separate agreement with Enterprise, or to vary the terms of the initial construction contract with Anzalone. There is no merit to this contention. Pa-rol evidence was not offered to vary the terms of the original written construction contract, but rather to show a subsequent, new and independent agreement between the Owner and Enterprise, intended to modify the original contract. Parol evidence is admissible for this purpose; Parlor City Lmiber Co. v. Sandel, 186 La. 982, 173 So. 737 (1937); Cassibry, Louisiana’s Parol Evidence Rule: Civil Code Article 2276 (Comment), 35 La.L.Rev. 779, 790 (1975); McMurdo, Building Contracts in Louisiana (Comment), 7 La.L.Rev. 564, 571 (1947).

In the case of Salley v. Louviere, 183 La. 92, 98, 162 So. 811, 813 (1935), it is stated:

“It is well settled that this article of the Civil Code [LSA-C.C. 2276] does not forbid the proving by parol evidence of a subsequent agreement to modify or to revoke a written agreement.”

Particularly pertinent to the matter before the court are the cases of Grossie v. Lafayette Construction Co., Inc., 306 So.2d 453 (La.App. 3 Cir. 1975), writ denied, La., 309 So.2d 354, and Jimco, Inc. v. Gentilly Terrace Apartments, Inc., 230 So.2d 281 (La.App. 4 Cir. 1970).

In Grossie, at page 456:

“Parole evidence is clearly admissible to prove a subsequent verbal agreement, modifying or even abrogating a written contract, if the contract is not one required by law to be in writing.”

And, in the Jimco, Inc. case, at page 283:

“There is no statute in Louisiana making it mandatory that a private owner enter into a written building contract, record it and furnish bond to construct an edifice.”

Thus, since a construction contract need not be in writing, parol evidence is admissible to prove a subsequent verbal agreement, or to modify or even abrogate a written construction contract; W. R. Aldrich Company v. Spallita, 285 So.2d 835, 836 (La.App. 1 Cir. 1973).

The facts show that the Owner and Enterprise did in fact enter into a subsequent, side agreement relative to certain extra and special electrical work. At the proper time, Enterprise began installing the electrical system and the Owner visited the building site on many occasions. As the work progressed, certain changes were made, including moving outlets, installing new ones, et cetera, all with the approval of the Owner, but made directly with Enterprise and not through the prime contractor, Anzalone.

Enterprise was fully paid for its subcontracting work on the initial contract, but not for the work done under the separate agreement. The Contractor was paid in full except for $10,000.00 which was retained during the lien period.

However, we find that the sums awarded are not correct. On direct examination, Tr. 239, Mrs. Anzalone testified that the balance due by Gregory after various credits, is $9,794.92; this is in accord with exhibit “Anzalone 8”. Further, it is not contradicted that neither Anzalone nor Enterprise did driveway electrical (“yard lighting”) work. In connection therewith, Anzalone Exhibit 7, signed by Gregory and Anzalone, sets forth that Gregory paid $62,141.82 on November 2, 1971, and that $10,000.00 was to be retained during the lien period, which was to start upon completion of all unfinished items. This document contains the language "... yard lights to be installed upon completion of landscaping . . . ”. Defendant’s exhibits 8 and 9 indicate that Enterprise, in March, 1972, after being notified that the landscaping was completed, agreed to install it . . just as soon as the weather permits . . .”. Nevertheless, Enterprise did not do so and deducted that portion of its bid amount in its settlement with Anzalone. After giving Enterprise prior written notice of his intention, with a copy to Anzalone’s attorney, Gregory got three bids and used the lowest bid to get this work done; this amounted to $875.00, Tr. 324. Therefore, the award to Mr. Anzalone is reduced to the claimed amount, $9,794.92, less said $875.00, or $8,919.92.

The award to Enterprise must also be reduced. Gregory’s testimony, Tr. 253, that change orders 4 and 5, amounting to $20.11, shown in P-11, were for the contractor’s convenience is both logical and uncontroverted. Purported change orders 6 and 7 contain $20.34 in charges for work contained in the original plan. One of the changes indicated by P-14 was made at the start of the wiring and entailed less material and no more labor than the original plan; the other change in P-14 was for the convenience of the contractor. Therefore, the charges of $117.90 reflected therein are not warranted. The $12.92 charge in P-15 for alleged change order 24 is a duplication of a portion of P-13. The $25.00 charge in P-17, change orders 20 and 21, were on the original plans. Obviously the contractor erred in billing Gregory for this. Gregory was justified in believing that Enterprise’s superintendent, Osbon, would get additional fire detectors (Gregory’s materialman having shipped three less than needed) as a favor — instead, Enterprise charged him $12.50 merely to order them; this expense for “labor” is not justified. Gregory’s testimony, Tr. 353, is undisputed to the effect that the work was never done which would allow the flood lights in the back of the house to be switched separately. He testified that he made this request but that the single switch had already been installed and “. . .1 didn’t make them change it.” The $81.25 charge for this work, shown in P-22, is disallowed. So is the $173.95 charge in the same exhibit; the electrostatic filter was not installed by Enterprise, Tr. 355. A portion of the charges on P-22 were repeated on P-23. This charge of $52.18 had to do with bracket lights in order that the medicine cabinet doors would open. While Gregory did not feel that he should have to pay for moving the brackets, he did agree to do so as Mr. Osbon felt that it should be classified as an error. However, he did not agree to pay for it twice. The $73.28 charge, P-25, for extra work on air conditioning was among the funds paid by Gregory to Anzalone and Enterprise should have billed the Contractor for that item. The portion of P-26 which comprises charge order 18, amounting to $22.42, is erroneous because the receptacle and circuit for a built-in ironing board were on the original plans.

To summarize the Enterprise judgment, the bills submitted by it total $3,106.88 and it allowed a credit of $277.00. Evidently the trial court inadvertently deducted the latter sum twice and thereby arrived at its figure of $2,551.48. The corrected amount would be $2,829.18; deducting the $611.21 which we disallow reduces the judgment to $2,217.33.

Accordingly, the judgments are amended, reducing the award to Anzalone to $8,919.-92 and reducing the award to Enterprise to $2,217.33. As thus amended, the judgment in each of these consolidated cases is affirmed at appellant’s cost.

AMENDED AND, AS AMENDED, AFFIRMED.


author: EDWARDS, Judge.

text:
    Charles B. W. PALMER v. Luvenia CROCKERHAM.
    No. 10852.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 1, 1976.
    Charles B. W. Palmer, Amite, for appellant.
    Joseph H. Simpson, Amite, for appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

Appellee sued to enjoin appellant from having appellee’s property seized and sold under executory process. After hearing on the rule of the matter, the trial court took the case under advisement. On June 10, 1975 the trial court rendered and signed judgment enjoining appellant, revoking the previously issued order of seizure and sale, and restoring to appellee the possession of her property. The appeal followed.

The threshold issue for our consideration is appellee’s contention that the appeal was not perfected timely and therefore should be dismissed.

The record reflects the following chronology of events:

(1) Judgment rendered and signed on June 10, 1975;
(2) Notice of judgment mailed to counsel by clerk on June 10, 1975;
(3) Motion for new trial filed by appellant on June 23, 1975;
(4) Petition and order for devolutive appeal filed on June 23, 1975;
(5) Appeal bond filed in blank (amount of bond left blank) on October 1, 1975;
(6) Motion for new trial denied on October 2, 1975;
(7) Appeal bond fixed at $250.00 on October 8, 1975.

The delay for applying for a new trial commences to run the day after the clerk has mailed notice of signing of judgment, La.Code Civ.P. art. 1913. Since notice was mailed on June 10, the last day for timely application for new trial was June 19. The application filed on June 23, 1975 was therefore untimely.

The delay for taking a devolutive appeal is fixed by La.Code Civ.P. art. 2087. The appeal must be taken and security therefor furnished within ninety days of the expiration of the delay for applying for a new trial where, as here, no application for a new trial is timely filed.

Even were we to consider the bond filed in blank on October 1, 1975 as legally sufficient security (which issue we pretermit ruling on as unnecessary), the appeal would still be untimely as the ninety day delay expired on September 17, 1975.

It is incumbent upon the appellant to ascertain the amount of the appeal bond and file timely his bond in that amount. His failure to do so deprives this Court of jurisdiction of the appeal. See Hunter v. Honoré, 217 So.2d 475 (La.App. 1st Cir. 1968).

APPEAL DISMISSED.


text:
    Frank MULCAHY v. The STATE of Louisiana Through the DEPARTMENT OF CORRECTIONS.
    No. 10704.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Byron D. Magbee, Baton Rouge, for appellant.
    Wm. J. Guste, Jr., Atty. Gen., and Robert Funderburk, Staff Atty., Dept, of Justice, Baton Rouge, for appellee.
    Before SARTAIN, EDWARDS and CHIASSON, JJ.
   EDWARDS, Judge.

Plaintiff, a former inmate of the Louisiana State Penitentiary, sues the State of Louisiana through the Department of Corrections, for damages allegedly sustained as a result of a beating inflicted by prison guards, and subsequent mistreatment and lack of medical attention. From the trial court’s ruling dismissing his suit, plaintiff now appeals.

Plaintiff specifies as error the failure of the trial court to find in his favor in the following particulars: (1) the State’s employees beat the plaintiff; (2) the State falsely accused, sentenced, and punished plaintiff; (3) the State’s employees sprayed plaintiff with mace without reason; and (4) the State failed to provide plaintiff with any medical care for his injuries.

On April 17, 1972 a “free man,” one of the guards at the State Penitentiary at Angola, was killed. Plaintiff, an inmate at that time, testified that, because of the killing, security was very tight that day. About 9:30 P.M. several hundred of the inmates, plaintiff included, were lined up by twos preparatory to moving into the dormitories. According to plaintiff, someone shouted an obscene remark about Bobby Oliveaux, one of the guards. Tommy Foster, another guard, was standing near plaintiff and pulled him out of line. Plaintiff protested that he hadn’t made the remark, but to no avail. He stated that Foster was joined almost immediately by Bobby Oliveaux and Junior Oliveaux, and Bobby Oliveaux began beating him about the head and back. He was then roughly escorted up the walk toward the gate to the control center, some 100 yards away. Plaintiff related that Bobby Oliveaux punched him several times behind the ear on the way up the walk and rammed his head into the gate upon arrival there. Plaintiff was then brought into the administrative lock down where, he testified, he was struck in the face several times by Bobby Oliveaux, breaking his nose. Bleeding and naked, he was then put in the “hole,” a small cell occupied at that time by five other prisoners. He testified that, despite his requests for medical attention, none was provided. Because of this remark which he maintained he was falsely accused of making, plaintiff stated that he served 18 days in the administrative lock down cell, during which time he was sprayed with mace once by some guards.

Plaintiff’s witnesses, all -but one of which were in the double line with plaintiff when the remark was passed, gave varying accounts of the events. While Dominque, Fulghum and Langworthy all insisted plaintiff was not the author of the remark, there was less agreement as to the subsequent events. Jay Assunto said that Bobby Oliveaux struck the plaintiff three or four times and saw blood around his eyes and forehead. Willie Dominque, who saw no blood, did testify that he saw the guards pushing the plaintiff against the gate when they reached the end of the walk. Roy Fulghum, who was standing facing the plaintiff in line, stated that Oliveaux “jugged” the plaintiff in the side with his night stick, but saw no other blows passed there or as the plaintiff was taken up the walk. Neither did he see the guards ram the plaintiff into the gate. Kenneth Langworthy, who was standing next to the plaintiff in line, never saw anyone hit him at any time. Anthony Costa, the fifth witness, testified that he was put into the administrative lock down cell about 12 hours after plaintiff. Costa said the plaintiff had some bruises on his side and back, but noticed no other injuries.

The defendant’s witnesses were in accord that no blows were inflicted on plaintiff nor was he rammed into the control center gate. Lt. Tommy Foster testified further that he was standing about three feet from the plaintiff, facing him, and saw and heard the plaintiff make the remark. Finally Bobby Oliveaux denied ever striking plaintiff, either on the walk or in the lock down.

The trial court stated in written reasons that:

“While the Court accepts as true that plaintiff at some time received some injuries while he was an inmate at Angola that is all that it can say that plaintiff has proved by a preponderance of the evidence. The remainder of the evidence is so contradictory, so fraught with inconsistences and downright contradictions even among plaintiff’s witnesses that it cannot adopt the conclusion that plaintiff has borne his burden of proof.”

Plaintiff says he was viciously beaten by defendant’s agents, while they just as adamently deny it. The trial judge did not believe the plaintiff’s version, and plaintiff now asks us to reverse his ruling. We cannot.

The trial court’s finding of fact, based upon its evaluation of the credibility of the witnesses, is entitled to great weight. This is a limiting, yet salutary, principle of review. It is based as well on the proper allocation of trial and appellate functions as on the obvious advantage of the trial judge in evaluating live witnesses. Canter v. Koehring, 283 So.2d 716 (La.1973). Appellate review of facts found in the trial court must not be unbridled; on appeal a case is reviewed, not re-tried.

Plaintiff further contends that at least some of the testimony adduced in his favor, that relating to the denial of medical attention, was uncontested by the defendant and must therefore be accepted as true. While this is the general rule, it is not without exception. See Hollier v. Broussard, 220 So.2d 175 (La.App. 3rd Cir. 1969) and McIntire v. McBeath, 57 So.2d 707 (La.App.Orl. Cir. 1952). The trier of fact may take into consideration other circumstances besides opposing testimony in determining the witness’s credibility. If, in evaluating a witness’s credibility, the trier of fact finds him wanting, he may accord to that testimony whatever weight he deems appropriate.

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

AFFIRMED.


author: ELLIS, Judge: BLANCHE, Judge

text:
    Mrs. Blanche E. EVERETT v. James Floyd EVERETT.
    No. 10728.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 20, 1976.

      C. Alvin Tyler, Baton Rouge, for appellant.
    Walton J. Barnes, Baton Rouge, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

Plaintiff Blanche E. Everett was granted a separation from defendant James Floyd Everett on February 8, 1951, at which time plaintiff was awarded $100.00 per month as alimony and child support. On March 22, 1957, child support payments were discontinued, and Mr. Everett was ordered to pay $50.00 per month in alimony to plaintiff. On August 19, 1971, defendant moved to have the alimony payments discontinued on the ground that he had been forced to retire due to ill health, and that plaintiff was in good health and gainfully employed. Plaintiff reconvened for an increase. On January 28, 1972, judgment was signed refusing both the main and reconventional demands, and continuing in effect the alimony of $50.00 per month.

On May 8, 1975, Mr. Everett once again filed a rule to discontinue the alimony, alleging that the surgical removal of his right lung because of lung cancer prevented him from maintaining the employment necessary in order for him to comply with the alimony judgment. He further alleged that Mrs. Everett is no longer in necessitous circumstances because she earns $425.00 per month, and owns immovable property valued at over $20,000.-00.

On October 21, 1975, the trial court rendered judgment recalling and dismissing defendant’s rule, from which judgment defendant has appealed.

The trial judge’s reasons for judgment are as follows:

“James Floyd Everett filed this rule to terminate permanent alimony in the amount of $50.00 a month which has been awarded to his former wife in a judgment read and signed on March 22, 1957. In 1971, Mr. Everett filed a similar rule, and on January 28, 1972, judgment was read and signed ordering him to continue paying the sum previously fixed.
“Mrs. Everett owns a modest unencumbered home on a three and one-half acre tract where she has resided for approximately thirty years. She is employed at Our Lady of the Lake hospital with a net pay every two weeks of $165.96. She also has liquid assets in the form of savings and checking accounts amounting to approximately $2,500.00.
“Mr. Everett is retired, but has an income of approximately $730.00 a month from Social Security, retirement benefits and other sources. His present wife is employed, earning a gross salary of $650.00 a month. They own their home, which is subject to a mortgage, and have other assets.
“In 1971, when Mr. Everett previously attempted to terminate the payments, his income was $579.00 a month, and his present wife was earning $515.00 a month. Mr. Everett contends that there has been a change in circumstances in that he is now in ill health. However, the record reveals that most, if not all, of his medical expenses are covered by insurance.
“It is incumbent upon Mr. Everett to prove a change in his circumstances or in the former Mrs. Everett’s to an extent that termination of the alimony payments is warranted. Bernhardt v. Bernhardt, La., 283 So.2d 226; O’Brien v. O’Brien [La.App.], 308 So.2d 333. After considering all of the evidence this Court concludes that there was no substantial evidence relative to change in the financial circumstances of either party of a nature to justify termination of the nominal alimony award previously made.
“Mr. Everett further contends that his former wife should be compelled to completely exhaust her liquid assets, relying upon Webster v. Webster [La.App.], 308 So.2d 302. However, this Court is of the opinion that this case is more analogous to Bryant v. Bryant [La.App.], 310 So.2d 648, and that since this is the later case from the same Court of Appeal, it should control.
“Accordingly, judgment is rendered and will be signed recalling, vacating and setting aside the rule nisi issued herein.”

We would also point out that Mrs. Everett testified that she needed $409.97 for her maintenance. Her net salary, plus the $50.00 per month alimony, plus reasonable interest on her savings still falls short of that amount. We do not believe that she should be forced to deplete her modest estate, when to do so would only increase the burden on her husband in the near future. We find that Mrs. Everett does not have sufficient means for her support, and is in necessitous circumstances within the meaning of Article 160 of the Civil Code.

The judgment appealed from is therefore affirmed, at Mr. Everett’s cost.

AFFIRMED.

BLANCHE, Judge

(dissenting).

It is ludicrous to call the $50 which the first Mrs. Everett receives from her ex-husband “alimony.” It is more appropriate to call it a “tribute” which she has exacted from him through judicial edict since March 22, 1957.

MRS. EVERETT’S CIRCUMSTANCES

Mrs. Everett is employed at Our Lady of the Lake Hospital and her take-home pay is $331.92 per month. She has two savings accounts, one in the Louisiana National Bank with a balance of $231.13 and in which she regularly deposits $5 per month, and another at the Capital Building and Loan Association with a balance of $2,545.18, in which she usually deposits $25 per month. (See copy of entries made in savings account books filed in evidence.)

Additionally, she received in the community property settlement which took place approximately thirty years ago the home place. She has given two lots from this property, of approximately one acre each, to her two children and has approximately 3.284 acres left on which is located the debt-free home. The land was valued by Chester A. Driggers, an expert real estate appraiser well known to our courts, at $5,000 per acre. Mr. Driggers was unable to appraise the house because Mrs. Everett would not allow him inside to inspect its condition. To explain this conduct, her lawyer stated that Mrs. Everett had elected “not to let a strange man in her house.” The trial judge said that her property was probably worth between $14,000 to $17,000, and simple arithmetic indicates it would be worth at least $10,000 more had she not given two lots away. Mrs. Everett also owns an automobile.

The foregoing circumstances were considered by my colleagues and the trial judge as not sufficient for her maintenance and as being alleviated by a $50 per month alimony payment.

MR. EVERETT’S CIRCUMSTANCES

In my view the first Mrs. Everett’s circumstances are so far from necessitous that the circumstances of Mr. Everett are irrelevant. However, for the record, Mr. Everett was found to have a bronchogenic carcinoma of the right lung and consequently, a right pneumonectomy was performed by Dr. Charles A. Beskin in March of 1975. Follow-up x-rays show compensatory emphysema of the left lung. Mr. Everett had to borrow $500 to pay the remainder of his doctor and hospital bills. He also claimed to be spitting up blood at the time of trial and to need further medical care, and it is undisputed that he is unable to work.

Mr. Everett’s income consists of the following: retirement income from Standard Oil in the sum of $208 per month; Social Security, $211 per month for himself and $311 per month for his three children of the second marriage. His wife works and has take-home pay of $480 per month, and as a matter of law, these earnings fall into the community, so, therefore, Mr. Everett can claim $240 per month of these earnings toward the totality of his financial circumstances: I do not believe it can be argued that the Social Security benefits received by his children should be counted toward his circumstances.

Mr. Everett had to move from his former residence on Seneca Street and is now residing in a $34,000 house on which there is a $24,000 mortgage, with payments of $260 per month.

An analysis of the present living expenses of Mr. Everett reveals that he has every bit as much difficulty making ends meet as does Mrs. Everett, and if she is in necessitous circumstances, so is he.

THE ERROR

I believe the law considers alimony paid to the wife under the provisions of LSA-C.C. Art. 160 as a pension, and it is only payable when she is without “sufficient means” for her maintenance. “Maintenance” has been defined previously as food, shelter and clothing. It is not to be confused with alimony paid under the provisions of LSA-C.C. Art. 148, which has reference to “sufficient income” of the wife, payable in proportion to her needs and to the means of her husband.

The proof that Mrs. Everett is able to save on her salary, though laudable, is also proof that she does not require $50 per month from Mr. Everett for her maintenance. We committed grievous error by not taking Mrs. Everett “off of his back” under the foregoing circumstances of her means and his poor health in the later years of his life.

Finally, it is called to my attention that while I was not the author of Bryant v. Bryant, 310 So.2d 648 (La.App. 1st Cir. 1975), I did concur with my colleagues in that opinion where the wife had an interest in property valued at more than $15,-000. I reaffirm my concurrence in that opinion because a lack of liquidity of the wife’s means in that case contributed nothing toward her maintenance except shelter.

For the above reasons, I respectfully dissent.


author: MORIAL, Judge.

text:
    Franklin A. CLARK v. SOUTHERN PARKING COMPANY, INC., et al.
    No. 7700.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.

      Wootan, Howcott & Whittington, Ronald P. Whittington, New Orleans, for plaintiff-appellant.
    Hammett, Leake, Hammett, Hulse & Nelson, Craig R. Nelson, Porteous, Toledant, Hainkel & Johnson, James L. Donovan, New Orleans, for defendants-appellees.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff, Franklin A. Clark, has appealed a judgment dismissing his personal injury and workmen’s compensation suit. We affirm.

Both claims are made in connection with an incident of May 14, 1973, in which plaintiff, employed as a parking attendant by Southern Parking Company, Inc., drove an automobile over a wall and demolished it as he was attempting to park it. (He was fired the next day.)

The personal injury claim against the owner of the vehicle, Eugene M. Parrish, and his liability insurer, Government Employees Insurance Company, is based on plaintiff’s contention that Parrish negligently failed to caution him the brakes were defective and the car idled fast when he left his car at the parking lot. He alleged these two factors combined to cause him to lose control of the car as he attempted to park it. Although the trial judge assigned no written reasons for judgment, it is obvious that he dismissed the plaintiff’s personal injury claim because there was no proof of negligence. Three witnesses — including one called by plaintiff — testified' the Parrish vehicle had brakes after it was wrecked by plaintiff.

Similarly, the evidence fails to support plaintiff’s claim for workmen’s compensation. The medical testimony of Dr. Alvin Johnson, a general practitioner who treated plaintiff for months to the tune of $900.00 plus, was unimpressive. This general practitioner testified Clark exhibited symptoms to support complaints of neck, back and shoulder pain. However, Dr. Arthur Axelrod, the general surgeon who treated plaintiff immediately after the accident, stated the minor injuries incurred by plaintiff subsided without residual disability within a week of the accident. Dr. Howard Stokes, an orthopedist who examined plaintiff within six weeks of the accident, found no disability and concluded plaintiff’s complaints of pain in the back, shoulder and neck were not genuine. Because the medical evidence fails to support complaints of disability, plaintiff’s suit for workmen’s compensation benefits must be dismissed.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


author: CHIASSON, Judge.

text:
    LOUISIANA NATIONAL BANK OF BATON ROUGE v. TRIPLE R. CONTRACTORS, INC., et al.
    No. 10751.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Writ Granted Oct. 20, 1976.
    Robert M. Day, Baton Rouge, for Louisiana Nat. Bank.
    Prentice L. G. Smith, Jr., Baker, for Zachary Millworks, Inc.
    Guy Módica, Baton Rouge, for Keller Building Products, Inc.
    Donald C. Theriot, Baton Rouge, for Marshall Electric, Inc.
    William R. Aaron, Baton Rouge, for Charles Madere, d/b/a Madere’s Tile.
    Albert J. Lord, Zachary, for Bank of Zachary.
    Carey J. Guglielmo, Baton Rouge, for National Gypsum Co.
    Norman L. Sisson, Baton Rouge, for All State Building Materials.
    Charles W. Borde, Jr., Denham Springs, for Double J. Mechanical Contractors, Inc.
    Charles O. Simmons, Jr., James Don Thomas, II, Baton Rouge, for Structural Supply.
    Charles W. Wilson, E. Drew McKinnis, Judith A. Chevalier, Baton Rouge, Kenneth G. Fink, Jr., Denham Springs, for Louisiana National Building.
    Before SARTAIN, EDWARDS and CHIASSON, JJ.
   CHIASSON, Judge.

On October 17, 1972 Triple R. Contractors, Inc. mortgaged to Louisiana National Bank (LNB) 4.89 acres of a 6.60 tract Triple R owned in East Baton Rouge Parish. The mortgage was given to secure a loan to be used to construct a 94 unit apartment complex on the property mortgaged. These 94 units were to he Phase I of a larger project. Colwell Mortgage Trust provided 90% of the funds for the project, 10% of the funds being provided by LNB. At the completion of Phase I, the mortgage and the note which it secured were to be assigned to Colwell Trust which would pay LNB its 10%.

Between October 17, 1972 and March 29, 1973, Triple R acquired an additional 2.58 acres adjacent to the original 6.60 acre tract. On March 29, 1973, Triple R mortgaged to LNB a 9.18 acre tract composed of the original 6.60 acres and the additional 2.58 acres. This mortgage was given to secure a loan to be used to construct a 97 unit apartment complex on that portion of the 9.18 acre tract, 4.29 acres, not used in Phase I construction. These 97 units were to form Phase II of the project. Recorded with the March 29, 1973 mortgage was an affidavit signed by a licensed civil engineer to the effect that no work had begun on and no materials had been furnished to the 4.29 acres involved in Phase II. Financing of Phase II was the same as Phase I with 90% of the funds being provided by Colwell Mortgage Trust.

On March 29, 1973 appellant, LNB, also executed and recorded an Act of Modification which amended the October 17, 1972 mortgage to include the entire 9.18 acre tract and to refer to the Phase I building site as 6.60 acres.

Phase I was accepted as complete on January 2, 1974 and a clear lien certificate was issued by the Clerk of Court on February 4, 1974. The mortgage on Phase I was then assigned to Colwell Mortgage Trust.

Prior to the completion of Phase II, defendant, Triple R, defaulted under the terms of both the Phase I and Phase II mortgages and notes. As a result Colwell Mortgage Trust instituted foreclosure proceedings against the Phase I complex and LNB instituted foreclosure proceedings against the Phase II complex.

A number of interventions claiming ma-terialman’s liens were filed against the Phase II property by persons who had furnished supplies and materials to that project. On February 12, 1975 the property was adjudicated to LNB by Sheriff’s sale subject to any liens and encumbrances which primed the mortgage in favor of LNB. LNB then brought this rule to have its mortgage recognized as superior to the claims and liens of the intervenors and to have LNB declared to be entitled to the said property free and clear of all liens and other encumbrances.

After a hearing on the rule the Trial Court rendered a judgment with written reasons in favor of the intervenors ap-pellees. It is from this judgment that the appellant, LNB, brings his appeal.

In his brief counsel for the appellant argues that the Trial Court erred as follows:

“1. In failing to find of this project was ‘ — a separate phase of subdivision development and pursuant to separate and distinct construction contracts’ within the precise meaning and definition of R.S. 9:4816(a);
“2. In finding that the engineer’s Affidavit of No Work of March 29, 1973, was insufficient in that it did not 'cover the entire ‘job site’;
“3. In finding that the ‘property mortgaged’ and the ‘job site’ are the same; and
“4. In finding that the bank knew or should have known of the inadequacy of the engineer’s certificate and therefore could not rely on the engineer’s Affidavit to establish its superiority.”

The Trial Court found that the evidence adduced established that the construction of these apartments was one project, albeit, built in two phases. .This decision was based on consideration of a number of facts. The apartment units built under Phase I and Phase II are now one apartment complex; the complex has one integrated mechanical system and one central driveway; Phase I debts were paid with money from the Phase II mortgage and the development was conceived as one project from the beginning. An additional factor which supports the finding of one project is the Planning Commission decision which would not have permitted construction of Phase II as a separate complex. The evidence clearly supports the Trial Court’s finding.

The first error specified by the appellant is that the Trial Court did not find the two projects separate phases of subdivision development.

R.S. 9:4816(A) provides:

“Any person furnishing service or material or performing any labor for the contemporaneous and continuous construction or improvement of two or more ■buildings or works by a single general contractor under a single construction contract, which buildings or works are situated on adjacent lots or parcels of land of a single owner, may file a single privilege upon all said buildings or works and upon the lands on which they are situated. Such a privilege shall secure the payment in principal and interest of the entire amount due for all service, material or labor, furnished and performed, and the costs of recording said privilege. Proof of the performance of labor on, or the delivery of materials to any of the said buildings or works shall be sufficient to establish the performance of labor on, or the delivery of materials to all such buildings or works. Such a privilege shall not attach to or bear upon any building or upon the land on which it is situated, where all materials and service have been furnished and all labor performed upon that particular building or portion of land on which it is situated, more than sixty days prior to the filing of said privilege. Such a privilege shall not attach to or bear upon buildings or works or the land on which they are situated, constructed or improved by other general contractors on adjacent lots or parcels of land, or constructed or improved by the same general contractor .on adjacent lots or parcels of land, during a separate phase of subdivision development and pursuant to separate and distinct construction contracts.”

The purpose of this statute is to allow for efficiency in subdivision development. Bernard Lumber Co. v. John F. Cerise Co., 148 So.2d 819 (La.App., 44 Cir., 1963). It permits the supplier of materials to be used in the construction of multiple buildings or works situated on adjacent lots or parcels of land in those cases where construction is continuous and performed under a single construction contract to make delivery of materials to one location and to obtain a privilege on the multiple works by the filing of a single lien. This statute is not intended to create additional rights for a mortgagee, rather it is intended to make the filing of liens in multiple works projects built under single construction contracts simpler. Because this project was not developed under a single construction contract and because ap-pellees are not attempting to obtain a privilege on multiple works under a single lien this statute does not apply to the present case. The phrase “. . . Such a privilege shall not attach to or bear upon buildings . . . constructed . . . during a separate phase of subdivision development . . .” refers only to the privilege granted in the first sentence of R.S. 9:4816; it does not affect the ranking of privileges under R.S. 9:4801.

The Private Works Act, R.S. 9:4801 et seq., provides a set of rules by which a mortgagee may obtain priority over competing claims. R.S. 9:4801 provides for a materialman’s lien and for a ranking of that lien. A person who supplies materials used in the construction or improvement of immovable property at the owner’s request or with the owner’s consent has a privilege on the land and improvements for which the materials were furnished. This privilege is superior to all claims except laborer’s liens, taxes and local assessments for public improvements, and bona fide vendor’s privileges or mortgages where the vendor’s privilege or mortgage existed and was recorded before the work was begun or any material was furnished. For LNB’s mortgage to prime the liens of the materialmen, the mortgage must have been recorded before work or labor was begun or any material was furnished to the job site.

R.S. 9:4819(A)(1) and (3) provides:

“(A) The phrase ‘before the work or labor is begun or any material is furnished’, as used in R.S. 9:4801-9:4817, both inclusive, shall be defined as follows :
“(1) In the event that the work or construction is new, then ‘work or labor is begun or material is furnished’ is defined as having begun when either excavation has been started so that it can be observed on inspection, or material has been furnished and delivered to the job site which is visible upon inspection and which material when delivered had a value in excess of one hundred dollars provided, however, that test piling shall be excluded from this definition.
“(3) In any event, if an affidavit, duly signed by an architect, a licensed civil engineer or registered land surveyor, before a notary public, has been filed in the office of the clerk and recorder of the parish in which the property is located or in the case of Orleans Parish, in the mortgage office thereof, which affidavit certifies that he has inspected the job site on a certain date and at a certain time and that no work has begun or material furnished to the building site, either on new construction or or on the improvement, repair or reconstruction of existing construction; and such affidavit is filed immediately prior to the filing of a bona fide mortgage or bona fide vendor’s lien, or within two business days thereafter, then any lender, including banks, savings and loan associations, life insurance companies, credit unions or other institutional lenders, and other interested parties may rely on the facts recited in said affidavit and shall maintain any and all privileges to and priority over other liens and claims as conferred by Title 9, and particularly, 9:4801, 9:4812, and 9:4813. The filing of such an affidavit will in no wise prejudice the rights of the furnishers of labor or material to file and perfect liens to which they may be entitled, but if materials have been furnished after the affidavit of the engineer, architect or surveyor has been filed, then a materialmen’s lien is subordinated to the bona fide mortgage or vendor’s lien.”

The engineer’s affidavit of March 29, 1973 on which LNB relied covered only the 4.29 acres upon which Phase II was to be built. The statute requires that material be visible on the “job site” and that the affidavit certify that no materials have been furnished to the “building site”. The “building site” is not just the area under the building. Myevre v. Liberty Realty & Security Co., 156 La. 496, 100 So. 694 (1924). The Trial Judge found as a matter of fact, under the circumstances of this case, that the “job site” was coextensive with the property mortgaged. There is no evidence in the record that the 9.18 acre tract was divided into two separate job sites or work areas. On the contrary, the evidence supports the Trial Court’s conclusion that the apartment complex was one project built in two phases. When the evidence before the trier of fact furnishes a reasonable factual basis for the Trial Court’s finding, the Appellate Court on review should not disturb this finding in the absence of manifest error. Canter v. Koebring Company, La., 283 So.2d 716 (1973). Since the engineer’s affidavit did not cover the entire “job site” it was legally insufficient.

LNB knew or should have known of the inadequacy of the engineer’s affidavit. Since LNB was financing the construction of Phase I it knew or should have known that there was construction on the 9.18 acre tract. LNB may not rely on the engineer’s affidavit where it knew or should have known of the insufficiency of the affidavit.

Because the mortgage covering Phase II of the project was not filed before work had begun or any material was furnished, LNB’s mortgage does not prime the liens of the appellees.

Therefore the judgment of the Trial Court in favor of the intervenors-appel-lees is affirmed, cost to be paid by the appellant.

AFFIRMED.