author: COBB, Judge. DAUKSCH, Chief Judge,

text:
    TRAVELERS INSURANCE COMPANY, an insurance corporation, Petitioner, v. Lillian HABELOW, individually and as guardian on behalf of Benjamin Habelow, Incompetent, Respondent.
    No. 81-874.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 1981.

      Ronald L. Harrop of Gurney, Gurney, & Handley, P. A., Orlando, for petitioner.
    William G. Osborne of Robertson, Williams, Duane, Lewis & Ranson, P. A., Orlando, for respondent.
   COBB, Judge.

The petitioner, Travelers, seeks common-law certiorari to the Orange County Circuit Court, which rendered an order on July 6, 1981, directing the petitioner to produce for inspection by the claimant below all matters contained in its workmen’s compensation claim file, including attorney-client communications. Travelers asks that this discovery order be quashed insofar as it encompasses such communications, relying on Skorman v. Hovnanian of Fla., Inc., 382 So.2d 1876 (Fla. 4th DCA 1980), and Roberts v. Jardine, 366 So.2d 124 (Fla. 2d DCA 1979). See also § 90.502, Fla. Stat. (1979).

The trial court’s order apparently was predicated on Stone v. Travelers Insurance Company, 326 So.2d 241 (Fla.3d DCA 1976), a “bad faith” case. This reliance was misplaced because in defending a personal injury action on behalf of its insured, as in Stone, the attorney for the carrier is also the attorney for the insured and a fiduciary relationship exists which is not present in the instant situation. Cf. Baxter v. Royal Indemnity Co., 285 So.2d 652 (Fla. 1st DCA 1973), cert. discharged, 317 So.2d 725 (Fla. 1975). Here, the petitioner and the respondent are in an adversarial contract dispute.

The respondent also asserts that the attorney-client privilege has been waived by the petitioner. This argument was not presented to the trial court and was not the basis for that court’s ruling. Moreover, the record before us does not support this argument.

Accordingly, we grant the petition and herewith quash the discovery order entered by the trial court on July 6,1981, insofar as it encompasses attorney-client communications. See West Volusia Hosp. Authority v. Williams, 308 So.2d 634 (Fla. 1st DCA 1975).

FRANK D. UPCHURCH, Jr., concurs.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent. The operative paragraph of the trial court order as it reads in its entirety is as follows:

2. Plaintiffs’ Request to Produce any and all claims files from either the home, branch, or district office pertaining to the workmen’s compensation claim of Plaintiff, Benjamin Habelow, and production of any and all investigative, correspondence, or payment files and any and all other files which pertain to the Plaintiffs’ workmen’s compensation claim, is hereby granted and defendant has 7 days to comply-

Because the order of the trial judge does not require the production of attorney-client communications and because the defendant never objected to the production of the discovery matters specifically on the basis of attorney-client privilege, I suggest we should not take jurisdiction in certiorari.

Thus, whether or not this case is anala-gous to a “bad-faith” case is not a question for us to decide. We should decide it only after the question is first and squarely put before and decided by the trial court upon proper objection by the defendant.

I would deny certiorari.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Brian K. ORLOVSKY, Appellant, v. SOLID SURF, INC., a Florida Corporation d/b/a Solid Surf Skateboard Park and Robert E. Spence, Appellees.
    No. 79-552.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 1981.
    Patrick W. Gent of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauder-dale, for appellant.
    Fred S. Schmunk, Jr., Fort Lauderdale, for appellees.
   MOORE, Judge.

In this personal injury action, the appellant, Brian Orlovsky, sued a corporation, Solid Surf, Inc., and its managing officer, Robert Spence, for negligence in the operation of a skateboard park. The appellant challenges an order dismissing all counts of his complaint against Spence and striking only his punitive damage claim against Solid Surf. The order did not dismiss appellant’s other claims against Solid Surf.

Initially, we must determine whether this court has jurisdiction to entertain this appeal. As to appellee, Spence, the order completely dismissed him from the case. Consequently, the judicial labor in the suit against Spence has ended. Accordingly, we have jurisdiction to review the dismissal as a final appealable order. See Let’s Help Florida v. DHS Films, Inc., 392 So.2d 915 (Fla.3d DCA 1980).

As to appellee, Solid Surf, on the other hand, the trial court’s order did not completely dismiss it from the case. Accordingly, the order is not final as to Solid Surf and, as such, is not appealable. Weltz v. Mann, 383 So.2d 324 (Fla.5th DCA 1980). See also Gibbs v. Reliance Insurance Company, 399 So.2d 1108 (Fla.5th DCA 1981). We, therefore, will not review the propriety of the trial court order insofar as it struck appellant’s punitive damage claim.

After reviewing the order insofar as it dismissed Spence from the lawsuit, we reverse. Essentially, appellant’s complaint alleged that Spence negligently operated the skateboard park by renting defective equipment and failing to take precaution against injuries. Spence moved to dismiss the complaint against him alleging that it fails to state a cause of action because he could not, as a mere officer of Solid Surf, be held liable for appellant’s injuries. We disagree. A corporate officer is potentially individually liable for his tortious acts even though such acts were committed in the scope of his employment by the corporation. Adams v. Brickell Townhouse, Inc., 388 So.2d 1279 (Fla.3d DCA 1980); Ramel v. Chasebrook Construction Company, 135 So.2d 876 (Fla.2d DCA 1961), 8 Fla.Jur.2d Business Relationships § 339. 19 Am. Jur.2d, Corporations, § 1382 succinctly sets forth this rule and its underlying rationale as follows:

A director or officer of a corporation does not incur personal liability for its torts merely by reason of his official character; he is not liable for torts committed by or for the corporation unless he has participated in the wrong. Accordingly, directors not parties to a wrongful act on the part of other directors are not liable therefor. If, however, a director or officer commits or participates in the commission of a tort, whether or not it is also by or for the corporation, he is liable to third persons injured thereby, and it does not matter what liability attaches to the corporation for the tort. A contrary rule would enable a director or officer of a corporation to perpetrate flagrant injuries and escape liability behind the shield of his representative character, even though the corporation might be insolvent or irresponsible. (Footnotes omitted.)

Applying this rule, we find that the complaint sufficiently states a cause of action against Spence. For purposes of a motion to dismiss, all facts of the complaint are accepted as true. Fletcher v. Williams, 153 So.2d 759 (Fla. 1st DCA 1963); Carter v. Sterling Finance Company, 132 So.2d 430 (Fla. 1st DCA 1961); Nunez v. Alford, 117 So.2d 208 (Fla.2d DCA 1960). A motion to dismiss should not be granted if the pleader sets forth facts in his complaint upon which relief can be granted on any theory. Martin v. Highway Equipment Supply Co., 172 So.2d 246 (Fla.2d DCA 1965). The appellant’s complaint clearly alleged that Spence was personally involved in the tortious conduct resulting in appellant’s injuries. Thus, a legal basis exists for Spence’s individual liability and the trial court erred in dismissing Spence from the case.

Accordingly, we reverse the trial court’s order dismissing Spence as a party defendant and dismiss this appeal as it relates to the punitive damage claim against Solid Surf.

REVERSED.

ANSTEAD and HERSEY, JJ., concur.


author: PER CURIAM.

text:
    In the Matter of the FORT LAUDERDALE SYMPHONY ORCHESTRA ASSOCIATION, INC., Appellant, v. STATE of Florida DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT SECURITY, Appellee.
    No. 79-1694.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 1981.
    Reed A. Bryan III of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Laud-erdale, for appellant.
    Ollie L. Evans, Miami, for appellee.
   PER CURIAM.

The Fort Lauderdale Symphony Orchestra Association seeks review of a final agency order rendered by the Department of Labor and Employment Security finding the Association liable for unemployment compensation taxes on the ground that its musicians and conductor are “employees” pursuant to Section 443.03(5), Florida Statutes (1977). Applying the criteria set out in Florida Gulf Coast Symphony, Inc. v. Department of Labor and Employment Security, 386 So.2d 259 (Fla.2d DCA), review denied, 389 So.2d 1108 (Fla.1980), we conclude that while the conductor is an employee, the musicians performing for the Association are independent contractors. Accordingly, the order is affirmed as it pertains to the conductor and reversed as to the musicians.

AFFIRMED IN PART; REVERSED IN PART.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


text:
    Judy Anne BECK, Appellant, v. STATE of Florida, Appellee.
    No. 79-2040.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 1981.

      Richard L. Jorandby, Public Defender, and James K. Green of Brown & Green, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged with and found guilty of aggravated battery and second degree murder. Of the five points she recites on appeal, only one requires discussion; namely, whether it was harmful error for the trial court to exclude from evidence a pair of blue jeans offered by the defense. Although we find it was error, we hold the error was harmless and affirm.

The victim died of a deep stab wound to the abdomen which severed the aorta. The stabbing occurred during a fracas involving appellant, the victim and one Danny Carlton. In an effort to develop the fact that the fatal wound may have been made by Carlton instead of appellant, substantial testimony was elicited to the effect that at one point Carlton was sitting on the prostrate victim and when Carlton got up, his blue jeans were very bloody in the crotch area.

Appellant’s brief contends her defense was that Carlton probably inflicted the wound and the record contains testimony that Carlton said after the fray that he thought he had killed the victim. Appellant said at one point in her testimony: “How do I know that Danny didn’t stab him when he was on the ground.” Further, the criminologist called by the State testified that he had analyzed the stains on the blue jeans delivered to him for that purpose as well as blood drawn from the victim; that the victim’s blood was type 0 and that the substantial amount of stains located in the crotch and upper leg areas of the jeans was human blood, type 0, and had originated on the outside.

Outside of the presence of the jury, the defense had Danny Carlton testify in an effort to lay a proper predicate for the admission into evidence of the blue jeans. He testified that the blue jeans being shown him were his and that they were in substantially the same condition at the time of trial as they were when he removed them after the fracas. On cross-examination he said that on the day following the incident he gave the pants to Gloria White who was renting the house outside of which the fatal fight occurred and that he had not seen them since. The defense then proffered the testimony of an investigator from the public defender’s office who testified as to delivery to the criminologist on May 21, 1979, about two months after the stabbing, and as to receipt from someone in the criminologist’s office. Gloria White did not testify nor was there testimony as to when she delivered the blue jeans, thereby effecting a testimonial break in the chain of custody. The State objected to the admission of the proffered evidence on two grounds and the trial court sustained the objection on the first ground that a chain of custody had not been established. It did not rule on the State’s second objection as to identity, i. e., Carlton’s testimony on cross-examination that it was “possible” the blue jeans were not his.

We do not consider the identity of the pants to be in issue notwithstanding the concession by Carlton on cross-examination of the foregoing “possibility.” Were identity the issue, it has been said that the question of chain of custody would not be relevant. In United States v. Derring, 592 F.2d 1003, 1006 (8th Cir. 1979), the court quoted United States v. Mahone, 537 F.2d 922, 930 (7th Cir.) cert. denied 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976): “[T]he chain of custody is not relevant when a witness identifies the object as the actual object about which he has testified.”

The issue, however, is the condition of the blue jeans on the night of the stabbing; and a chain of custody is, without question, relevant. Deeb v. State, 131 Fla. 362, 179 So. 894 (1938). A body of law had developed on the subject when the physical evidence has been offered by the prosecution. Since Stunson v. State, 228 So.2d 294 (Fla. 3d DCA 1969) cert. denied 237 So.2d 179 (Fla.1970), Florida courts have recognized the principles initially set forth in United States v. S. B. Penick & Co., 136 F.2d 413 (2d Cir. 1943) and later recited in Gallego v. United States, 276 F.2d 914, 917 (9th Cir. 1960):

Before a physical object connected with the commission of a crime may properly be admitted in evidence there must be a showing that such object is in substantially the same condition as when the crime was committed. This determination is to be made by the trial judge. Factors to be considered in making this determination include the nature of the article, the circumstances surrounding the preservation and custody of it, and the likelihood of intermeddlers tampering with it. If upon the consideration of such factors the trial judge is satisfied that in reasonable probability the article has not been changed in important respects, he may permit its introduction in evidence. (Citations omitted.)

See also United States v. Gagnon, 635 F.2d 766 (10th Cir. 1980); United States v. Brown, 482 F.2d 1226, 1228 (8th Cir. 1973). From what can be seen from the foregoing, custody is one factor the trial court must consider in satisfying itself that the physical evidence has not been changed in important aspects.

In Stunson, supra, while the record failed to reveal evidence by live witnesses who could establish continuous possession, the whereabouts of contraband were supported by witnesses; and the reviewing court affirmed the trial court’s admission of the evidence. In doing so, the Third District said: “the test is whether or not there is an indication of probable tampering with the evidence.” Subsequent cases have applied that test. In Stevens v. State, 245 So.2d 92 (Fla. 1st DCA 1971), notwithstanding appellant’s contention that the chain of custody had not been proven, the court affirmed the trial court’s admission of contraband because the prosecution proved there had been no tampering. In Peek v. State, 395 So.2d 492, 495 (Fla.) cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981), although appellant contended the State did not prove a chain of custody, the court affirmed the admission of contraband because there was no hint of tampering. See also Carey v. State, 349 So.2d 820, 823 (Fla. 3d DCA) cert. denied 354 So.2d 979 (Fla. 1977); Bernard v. State, 275 So.2d 34 (Fla. 3d DCA 1973).

In the present case, the record completely fails to support any likelihood of tampering with the evidence. Consequently, notwithstanding the absence of proof of chain of custody in this case, we believe the trial court erred in sustaining the State’s objection to the introduction of the evidence.

Based on our determination of error, we now must decide whether the error was harmful, requiring reversal. It was established by numerous witnesses, and never seriously disputed by the state, that the blue jeans were soaked in the crotch area with the deceased’s blood. Whether the blood came from a wound that actually caused the death of the deceased or from some other wound, and whether Carlton or the appellant was responsible for the fatal wound, were issues for the jury to resolve, and they did so apparently contrary to appellant’s contentions. Be that as it may, the appellant was not deprived of demonstrating to the jury that Carlton’s pants were stained with the victim’s blood, which was the only purpose to be served by introduction of the pants into evidence.

Accordingly, finding no reversible error, we affirm.

ANSTEAD, MOORE and GLICKSTEIN, JJ., concur.


text:
    John Frank HASS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1448.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 1981.
    Maurice Graham of Brimmell & Graham, P.A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction. It appears, however, that appellant has been denied access to the factual portions of the presentence investigation report. This report is not part of the record on appeal and we therefore are unable to determine whether disclosure will have an impact on sentencing. We none-the-less are required to vacate the sentence and remand for compliance with Rule 3.713(b), Florida Rules of Criminal Procedure, and for resentencing.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

BERANEK and HERSEY, JJ., and OWEN, WILLIAM C., Jr., (Associate Judge, retired), concur.


author: BERANEK, Judge.

text:
    Mary Jo THOMAS, Appellant, v. Ella WYATT, Appellee.
    No. 81-410.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 1981.
    D. Culver Smith, III, and James A. Reynolds, Jr., of Adams, Coogler, Watson & Smith, P.A., West Palm Beach, for appellant.
    F. Kendall Slinkman, West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals an adverse final judgment arising from a personal injury action. The facts viewed in a light favorable to the jury’s verdict are that plaintiff was babysitting at defendant’s home when defendant returned in an alleged inebriated condition. A verbal argument of disputed intensity resulted over payment for the babysitting. Defendant ordered her German Shepherd dog to attack plaintiff. Although disputed, there was evidence that the dog advanced toward the plaintiff. Plaintiff ran from the house and was injured when she fell in the driveway. Suit was brought and the case was submitted to the jury on the theories of (1) assault, (2) statutory dog owner’s liability under Section 767.04, Florida Statutes (1977), and (3) negligence. The jury returned a special verdict wherein they found that defendant had committed an assault on plaintiff, that an unprovoked and aggressive act by defendant’s dog had caused damage to plaintiff, and that defendant was guilty of 70% negligence and plaintiff was guilty of 30% negligence. The jury returned a verdict of $30,000 compensatory damages and $10,000 punitive damages. The three separate theories of (1) assault, (2) statutory liability, and (3) negligence were treated separately in the special verdict form and instructed upon separately. The jury found in favor of the plaintiff on each theory and at no time was plaintiff required to elect between the theories. Although the three theories of liability were treated separately, the jury was asked to assess plaintiffs total damages arising from the “incident” without separating these damages as to the theories of liability.

On appeal, defendant asserts error as to the assault theory and the statutory dog owner’s liability theory. No attack is made upon the negligence theory, and no objection is raised as to the plaintiff’s reliance upon three separate and possibly inconsistent or duplicitous theories of liability.

Defendant asserts error in regard to the trial court’s failure to direct a verdict on the assault theory and in the instructions given on assault under the case of Spivey v. Battaglia, 258 So.2d 815 (Fla. 1972). It is argued that plaintiff’s falling in the driveway was not a “substantially certain” result following from the assault upon plaintiff. Although we have some difficulty with the rationale of the Spivey decision, it is not necessary for us to deal with it directly. Plaintiff’s theory here was that of assault rather than assault and battery. The instructions on assault defined the essential element as the violence offered rather than physical contact. Since the jury was not asked to separate the damages assessed between the different theories of liability, we assume that the jury followed the instructions and awarded damages under the assault theory for plaintiff’s reasonable fear of imminent peril. We conclude that the trial court did not err in failing to direct a verdict on the assault theory or in the instructions to the jury on this theory.

The only other attack on the judgment is directed at the court’s instructions given on the statutory dog owner’s liability count. We have reviewed these instructions and conclude that they are in accordance with the law and were certainly not so deficient as to constitute prejudicial error. No attack has been made on the negligence aspects of the case. Plaintiff proceeded to trial and verdict upon three separate theories and prevailed upon all three. The judgment for compensatory damages is supportable based upon the statutory dog owner’s liability theory even if error occurred in some other aspect of the case. We recognize that punitive damages were based upon the assault theory alone, but we conclude that no error has been demonstrated in this regard and affirm the final judgment in toto. In doing so we caution that no argument is raised as to the basic inconsistency between negligence and assault which requires a showing of an intentional act.

AFFIRMED.

LETTS, C. J., and GLICKSTEIN, J., concur.


text:
    Paul W. LEVINE and Marcia Levine, his wife, Appellants, v. ARVIDA CORPORATION, a Delaware Corporation, Jerry D. Anden, Sandra L. Anden, Dan Biele, AA Insulation of Palm Beach County, Inc., a Florida Corporation, and Stephen Chefan, Appellees.
    No. 80-1862.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1981.

      Paul B. Erickson of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for appellants.
    Louis N. Scholnik of Graham, Hodge & Larson, P.A., Fort Lauderdale, for appellee, Stephen Chefan.
   BERANEK, Judge.

This is an appeal in a mortgage foreclosure action. The matter in question is an order dated October 30, 1980, by which the trial court disbursed approximately $114,-000 in excess funds resulting from the foreclosure sale. Finding no reversible error, we affirm.

The facts are complex. The appellants are Mr. and Mrs. Levine, and the only ap-pellee making an appearance before this Court is Stephen Chefan, the recipient of the excess funds.

It is alleged that Levine entered into a written but unrecorded agreement with a Mr. Anden whereby Anden was to convey to Levine two lots in Boca Raton and a share in certain profits growing out of a joint business venture. In return, Levine was to convey other real estate, cash, and stock to Anden. As a result of disputes between the parties, Levine sued Anden seeking specific performance of his agreement to convey the real estate. With the complaint Levine also filed a notice of lis pendens based on the unrecorded agreement. This specific performance suit has never been tried, but it is clear that the conveyance of the lots was to be subject to a prior mortgage on the property held by Arvida Corporation.

Anden, the owner of the property, defaulted on the mortgage and approximately a month after the specific performance suit was filed, Arvida filed suit to foreclose. Arvida sued both Anden as the debtor and owner of the property and Levine as having an alleged equitable interest in the property. On August 8, 1980, a final judgment was entered in the foreclosure action, which, including interest and attorneys’ fees, was approximately $110,000. On August 22, 1980, Anden conveyed the real estate in question to Mr. Chefan, who was previously a stranger to the transaction. Levine learned of the conveyance to Chefan on August 28, 1980, and five days later, on September 2, 1980, Chefan recorded his warranty deed from Anden. On September 15, 1980, the foreclosure sale occurred with the mortgagee, Arvida, and Levine as bidders. Levine bought the property at the sale for $215,000, and eventually received a certificate of title. After the Arvida judgment was completely satisfied, an excess of approximately $114,000 remained. At this point, Levine’s pending specific performance action was obviously moot since Levine himself was now the owner of the property through purchase at the foreclosure sale. Entitlement to the $114,000 became the next matter in controversy.

On October 2,1980, appellee/Chefan filed a motion to intervene in the foreclosure action as a defendant and a motion for disbursement of all excess funds to him as the record title owner of the property. On the following day, October 3, 1980, Levine filed a motion to transfer which sought transfer of the question of the disbursement of excess funds to the judge who was hearing the specific performance suit. The grounds for the motion to transfer were stated to be “judicial economy.” With the consent of all parties, the trial court entered an order allowing Chefan’s intervention in the suit as a party defendant. On the same day, the court held a hearing on Chefan’s motion for disbursement of all excess funds. Counsel for Levine and Chefan appeared and argued the entire record of both pending suits and the facts as established by certain depositions. We have not been provided with a transcript of the hearing. The order resulting from the hearing does not reflect consideration of Levine’s motion to transfer. No order was entered on this motion, but the effect of the disbursement order moots the subject of transfer. The court granted Chefan’s motion to disburse funds and authorized the Clerk to turn over all excess monies to Chefan.

On appeal, Levine contends the trial court erred in finding that he did not have a vested interest in the property and in distributing the excess proceeds to Chefan because Chefan was not a bona fide purchaser of the property. Levine further asserts the trial court erred in not granting his motion to transfer.

Levine did not file any pleadings in response to Chefan’s motion to disburse nor did he file any pleading asserting his entitlement to the excess proceeds. Without pleadings or transcript it is difficult to determine the issues litigated. The court’s order frames the issues apparently presented as whether Levine’s lis pendens filed in the specific performance action created a vested interest in the property on behalf of Levine. The court concluded the lis pen-dens did not create a vested interest because the lis pendens was not founded upon a recorded instrument or mechanic’s lien, no prior court order had been entered permitting the filing of a lis pendens, no bond had been posted, and the lis pendens had expired. The court relied upon Kirk v. Baumann, 336 So.2d 125 (Fla.2d DCA 1976); and Sunrise Point, Inc. v. Foss, 373 So.2d 438 (Fla.3d DCA 1979). We find no error in this ruling.

Levine also contends the trial court erred because Chefan was not a bona fide purchaser. Without a transcript of the hearing, we find it difficult to consider this issue. Furthermore, the order itself makes no finding whether Chefan was a bona fide purchaser. We are not certain that Che-fan’s knowledge of the controversy between Levine and Anden would affect his entitlement as owner to the excess proceeds but, in any event, we have not been shown that the trial court committed reversible error in this regard if he ruled on the issue at all.

Similarly, regarding the motion to transfer, there is no direct ruling and we are again unable to determine what occurred before the trial court. The request for a transfer was based upon “the interest of judicial economy,” as stated in the motion and appears to have been a matter within the discretion of the trial court. No abuse has been demonstrated in this regard.

Appellant relies upon Rosen v. Dorn-Kothe, 126 Fla. 717, 171 So. 646 (1936), wherein the Supreme Court awarded a contract purchaser an amount equal to the purchaser’s down payment out of the excess funds arising from a foreclosure sale. We find no indication that a claim for a down payment was ever specifically presented in the trial court, either by pleading or proof. Absent such an indication, we find no error.

Appellant having failed to demonstrate reversible error, the order below is hereby affirmed.

AFFIRMED.

DOWNEY, J„ and OWEN, WILLIAM C., Jr., Associate Judge, concur.

      . An opinion was initially issued on September 16, 1981, which is hereby withdrawn. The present opinion is issued on rehearing.

      . No objection has been made to this procedure either before the trial court or on appeal. The trial court’s consideration of factual representations was apparently at the request of both counsel.


author: LEAR, Judge.

text:
    R. P. YADAV v. Vera PROCELL.
    No. 14319.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    R. Gray Sexton, Baton Rouge, for plaintiff-appellee.
    Gerard E. Kiefer, Baton Rouge, for defendant-appellant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Plaintiff-appellee, R. P. Yadav, obtained judgment against defendant-appellant, Vera Procell, in the sum of $1,521.89. From this adverse judgment, defendant-appellant filed a motion for suspensive appeal. The Baton Rouge City Court judge fixed the bond at $2,500.00. Judgment was signed on October 10, 1980, and a “Motion for an Appeal” was signed on October 15, 1980, designating December 15, 1980, as the return date. In his motion, defendant-appellant sought and was granted a suspensive appeal. Appellant was required to post bond timely. The record reflects that the bond was not filed until January 15, 1981, more than thirty (30) days after the motion for appeal was granted. The bond comes too late. Appellant has not met the requirements of law and, therefore, his sus-pensive appeal must be and is dismissed at appellant’s cost. However, his devolutive appeal is maintained.

SUSPENSIVE APPEAL DISMISSED; DEVOLUTIVE APPEAL MAINTAINED.

      . Art. 2123. Delay for taking suspensive appeal
      Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of:
      (1)The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
      (2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
      (3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914. (Emphasis ours.)


author: COLE, Judge.

text:
    R. P. YADAV v. Vera PROCELL.
    No. 14319.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    R. Gray Sexton, Baton Rouge, for appel-lee (plaintiff).
    Gerard E. Kiefer, Baton Rouge, for appellant (defendant).
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

This case involves a rear-end collision which occurred on Perkins Road at the foot of the Perkins Road overpass. On December 13, 1979, a Lincoln Continental driven by Amy Alexander and a Toyota Corolla driven by Daisy Mehrotra (owned by R. P. Yadav) were being driven in a westerly direction on Perkins Road. A car driven by Vera Procell (owned by Camille Cutrone) was traveling north on Christian Street, approaching the Christian Street and Perkins Road intersection. Ms. Procell failed to stop at the stop sign and proceeded to make a left-hand turn onto Perkins Road, directly in front of the Alexander car. This maneuver caused the Alexander vehicle to come to a sudden stop and fishtail slightly. Ms. Alexander managed to avoid a collision and the Procell vehicle accelerated away from the intersection and proceeded up the incline of the overpass. The Mehrotra car, traveling approximately five (Toyota) car lengths behind Ms. Alexander, was unable to stop in time and collided with the Alexander automobile.

R. P. Yadav filed suit against Procell and Cutrone for property damage in the amount of $1,500.00. The case was tried and judgment rendered in favor of Yadav, finding Procell had been negligent in entering the intersection without stopping and finding no contributory negligence on the part of Ms. Mehrotra.

Ms. Procell has appealed, arguing the court erred in failing to find Ms. Mehrotra contributorily negligent. After carefully examining the record we conclude there has been no manifest error on the part of the trial court. Ms. Procell’s negligence created the dangerous situation and the accident between the Alexander and Mehrotra vehicles was unavoidable.

At trial, Officer Terry Wilson of the Baton Rouge Police Department testified he had been driving east on the Perkins Road overpass and witnessed the entire accident. He stated both the Alexander and Mehrotra vehicles were traveling at the same speed, which he approximated to be about 30 miles per hour. He and Ms. Mehrotra both testified the Mehrotra car was about five car lengths behind the Alexander car.

Appellant’s main contention is that since Ms. Alexander was able to stop in time to avoid an accident then Ms. Mehrotra should have been able to do the same. Appellant argues the Alexander vehicle had only thirty feet in which to stop while the Toyota had 75 to 100 feet in which to stop. This calculation was based on Officer Terry’s estimation that the Toyota was 15 to 20 feet long. We do not accept this stopping distance as being accurate. There was no formal accident investigation or other evidence establishing the distance of the Alexander car from the intersection (i. e., the number of feet in which it had to stop). The Alexander car was not faced with having to avoid a collision with a stationary automobile in its path. To the contrary, the Procell vehicle was moving at all times and was described to have “accelerated” out of the intersection. It is an unfair comparison to say that because the Alexander vehicle avoided the collision, the Mehrotra car should have been able to do the same. The Mehrotra car was faced with the dilemma of avoiding a collision with a stationary automobile in its path which is more difficult to prevent than the situation Ms. Alexander faced.

The trial court obviously concluded appellant did not bear the burden of proving contributory negligence.

Because we find no manifest error in the trial court’s decision, we affirm the judgment. Appellant is to pay all costs.

AFFIRMED.

      . Ms. Mehrotra testified that the Alexander vehicle was almost or completely stopped when she hit it.


author: COVINGTON, Judge.

text:
    Sherry PENALBER v. Kirby BLOUNT and Livingston Parish Police Jury.
    No. 14335.
    Court of Appeal of Louisiana, First Circuit.
    March 16, 1981.

      Michael Connelly, Baton Rouge, for plaintiff Sherry Penalber.
    James E. Durbin, Denham Springs, for defendant Kirby Blount.
    Gayle Sheffield, Amite, for Livingston Parish Police Jury.
    Michael Lee, Livingston, for Town of Livingston.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

ON SHOW CAUSE ORDER TO DISMISS APPEAL

In this tort suit, plaintiff was awarded the principal sum of $14,500. The Livingston Parish Police Jury was the party cast in judgment. Because of the apparent, unusual time lapse between the date of judgment, January 29, 1980, and the filing of the Police Jury’s petition for a suspensive appeal, November 4, 1980, (the order was signed November 24, 1980), we issued an order for the appellant to show cause why the appeal should not be dismissed as untimely. Appellant and appellee have filed briefs on this issue.

The key issue is whether the requisite notice of judgment was mailed to the appellant. Trial was had on November 27, 1979, taken under advisement, and written Findings of the Court (Reasons for Judgment) were handed down on January 22, 1980. A week later, judgment was signed.

Under the provisions of the second paragraph of LSA-C.C.P. art. 1913, the parties were entitled to written notice of judgment from the office of the Clerk of Court: “Except as otherwise provided by Article 3307 [irrelevant here], when a case has been taken under advisement by the court notice of a final judgment therein shall be mailed by the clerk of court of the parish where the case was tried to the counsel of record for each party, and to each party not represented by counsel.”

The record must reflect that this has been done; LSA-C.C.P. art. 1913, fourth paragraph:

“The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.”

A diligent search of the record does not indicate that these mandatory duties were executed. The only copy of a notice of judgment is one certified by the Deputy Clerk of Court on October 31,1980. It does not indicate on what date it was mailed, if in fact it was mailed.

LSA-C.C.P. art. 1974 provides that the seven days delay for applying for a new trial does not commence until the day after the Clerk has mailed the notice required by Article 1913.

Under LSA-C.C.P. art. 2123, a suspensive appeal may be taken within thirty days of the expiration of the delay for applying for a new trial, as provided by article 1974, if no application is filed timely.

There is nothing in the record to indicate the critical date from which the delays for applying for a new trial, or the delays for appealing, could be tolling. Appeals are favored under our law and jurisprudence. In the absence of a proper [dated] notification to counsel of the judgment having been signed, there is uncertainty as to date, and that doubt must be resolved in favor of the right to appeal. Ouachita Equipment Rental, Inc. v. Dyer, 386 So.2d 193 (La.App. 3 Cir. 1980); Moon v. Moon, 244 So.2d 301 (La.App. 1 Cir. 1970); Wilson v. McNabb, 152 So.2d 352 (La.App. 1 Cir. 1963).

For the reasons assigned, we find that the appeal is timely. Therefore, we recall and vacate our Rule to Show Cause why the appeal should not be dismissed.

RULE TO SHOW CAUSE RECALLED AND VACATED.


author: EDWARDS, Judge.

text:
    Sherry PENALBER v. Kirby BLOUNT, Livingston Parish Police Jury, and the Town of Livingston.
    No. 14335.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Writ of Certiorari Denied Dec. 4, 1981.
    See 407 So.2d 1189.
    Michael Connelly, Baton Rouge, for plaintiff Sherry Penalber.
    James E. Durbin, Denham Springs, for defendant Kirby Blount.
    Gayle Sheffield, Amite, for Livingston Parish Police Jury.
    Michael Lee, Livingston, for Town of Livingston.
    Before CHIASSON, EDWARDS, and LEAR, JJ.
   EDWARDS, Judge.

Appellee, Sherry Penalber, sustained injuries when the front wheels of the automobile in which she was riding fell through a cattle guard on McLin Road in Livingston Parish. Penalber brought this action against the driver of the automobile, Kirby Blount, the Town of Livingston, and the Livingston Parish Police Jury. After trial on the merits, the trial court rendered judgment in favor of Sherry Penalber and against the Livingston Parish Police Jury. Sherry Penalber was awarded $14,500 in damages. Her claims against the driver of the car and the Town of Livingston were dismissed.

The judgment in this case was rendered on January 29,1980. On April 10,1980, the police jury voted to pay Penalber $14,500 to satisfy her judgment On April 22, 1980, the police jury rescinded its prior resolution which had authorized payment of the judgment.

Penalber filed a petition on September 2, 1980, requesting the district court to issue a writ of mandamus ordering the police jury to pay the judgment. The trial court denied the writ of mandamus.

On November 24, 1980, the police jury secured an order for a suspensive appeal. This appeal was held to be timely despite the unusual time lapse between the date of judgment and the petition for appeal. Penalber v. Blount, 405 So.2d 1376 (La.App. 1st Cir. 1981). The notice of the signing of judgment did not indicate the date on which it was mailed. Therefore, there was no date established from which the delays for appealing could run.

Penalber answered the police jury’s appeal, seeking an increase in the damage award and asserting that the district court erred in denying the requested writ of mandamus. The Town of Livingston also answered the appeal, asserting that the police jury’s appeal was frivolous and seeking an award of damages for its defense of the suit. Subsequently, all parties filed a Joint Motion to Partially Dismiss Appeal, which was granted. All portions of the appeal were dismissed with the exception of that part dealing with Penalber’s application for a writ of mandamus.

LSA-Const. Art. 12, Sec. 10(C), provides: “Procedure; Judgments. The legislature shall provide a procedure for suits against the state, a state agency, or a political subdivision. It shall provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which judgment is rendered.”

The appropriation of funds by a public body is a discretionary, not ministerial duty, and cannot be compelled by a writ of mandamus. Fontenot v. Department of Highways, 358 So.2d 981 (La.App. 1st Cir. 1978).

Plaintiff acknowledges that mandamus will not lie to compel appropriations of funds by a public body. However, she asserts that the original police jury resolution, which authorized payment of the judgment, was passed pursuant to a settlement agreement. She notes that the accrual of legal interest has brought the total judgment value to over $20,000. Penalber contends that mandamus should be available to enforce this settlement agreement.

The record on appeal contains no evidence of any such compromise agreement. LSA-C.C. Art. 3071 requires that such an agreement be reduced to writing. In the absence of a valid written compromise agreement, the police jury had the discretion to rescind its earlier resolution authorizing payment of the judgment.

Plaintiff has failed to demonstrate that the trial court erred in denying the writ of mandamus.

For the foregoing reasons, the judgment of the district court is affirmed. All costs of this appeal are to be paid by appellee, Sherry Penalber.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    PINE TREE REALTY, INC. v. STAN WEBER & ASSOCIATES, INC.
    No. 14314.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Rehearing Denied Dec. 10, 1981.

      M. J. Le Gardeur, Covington, for plaintiff-appellee.
    Stephen A. Fritch, New Orleans, for defendant-appellant.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by plaintiff, Pine Tree Realty, Inc., against defendant, Stan Weber & Associates, Inc., for one-half of a real estate commission collected by defendant from the sale of immovable property. From a judgment in favor of plaintiff, defendant has appealed.

From a thorough review of the record and the trial judge’s written reasons for judgment, we glean the following facts. Plaintiff’s sole real estate agent is Mary Lynn LeGardeur. The buyers, Mr. and Mrs. John Kemp, were referred to her by a mutual friend. They were interested in finding a Victorian-style home in the Covington area. Mrs. LeGardeur showed them two houses on July 20, 1979. One house was a new home and the other was an older home. Both houses were exclusive listings of defendant but were included in the St. Tammany Parish Board of Realtors’ Multiple Listing Service. Mrs. LeGardeur testified that Mr. Kemp did not seem too impressed with either house. After touring the two houses Mrs. LeGardeur told the Kemps that she was going out of town for several weeks and to contact a Ms. Champagne, an agent of defendant, if they were interested in either house. She gave the Kemps some blank forms and the telephone number of Ms. Champagne. Mr. Kemp telephoned for Ms. Champagne, but she too was out of town, and he was referred to Mrs. Deekert. Mr. Kemp told Mrs. Deekert that Mrs. Le-Gardeur had shown them some houses and that they would like to see more houses. She showed them several of the homes including the older home they had previously seen. She was informed by the Kemps that Mrs. LeGardeur had previously shown them that home. Several weeks later the Kemps entered into a purchase agreement for the older home. A final agreement was signed on August 22, 1979.

In September of 1979 Mrs. Deekert telephoned Mrs. LeGardeur concerning another matter, and in conversation thanked Mrs. LeGardeur for referring the Kemps to her. When asked which house the Kemps had purchased, she told Mrs. LeGardeur that they had purchased the older house. Mrs. LeGardeur requested part of the commission and after discussing same with her superior, Mrs. Deekert offered Mrs. Le-Gardeur a referral fee. Mrs. Deekert admitted that had it not been for Mrs. Le-Gardeur’s referral of the Kemps, she would not have sold the house to them.

The parties entered into the following stipulation: “In the absence of agreement to the contrary, it is generally accepted that realtors who agree to work together, participate or cooperate to complete a transaction should divide the commission equally.”

In its written reasons for judgment the trial court said “it has been stipulated by plaintiff and defendant and this court so finds that in the absence of any agreement to the contrary, it is the custom of the profession that all realtors who participate or cooperate in the completion of a transaction share in the commission equally.” The trial court concluded that Mrs. LeGardeur was a substantial factor in the purchase of the property by the Kemps, and thus awarded her one-half of the commission.

The defendant-appellant contends that the trial judge erred in finding that an agreement to compensate the plaintiff existed at any time, notwithstanding the stipulation entered into evidence at trial, which only supplied a missing term, and could not be substituted for an agreement itself; and in finding that Mrs. LeGardeur was a substantial factor in the transaction.

As to the first assignment of error, defendant basically argues that before it can be required to share a commission with another real estate agent, there must be an agreement between the two agents that a commission will be shared. Defendant argues that practices or customs of the trade cannot provide the basic agreement, although they may supply missing terms as the stipulation in the case at bar reveals. Defendant-appellant is apparently arguing that the only understanding to be derived from the stipulation is that once realtors have agreed to work together, the commission is divided equally unless there is an agreement to the contrary.

Mrs. Deckert testified that the purpose of placing property in the multiple listing service is so that other brokers will know the property is on the market and that they can and will show the property and sell it. It would be unrealistic to conclude that by placing property in a multiple listing service to encourage others to attempt to sell it that the selling brokerage would be willing to spend its time and effort without the expectation of being compensated. As such, a broker or agent who places property in a multiple listing service must expect to divide the commission with the agent who is the procuring cause of a sale. Certainly the listing agent can place restrictions on its participation in the division of a commission with another agent. However, as pointed out by the stipulation, in the absence of any agreement to the contrary, the commission is divided equally.

We therefore conclude that when defendant placed the subject property in the multiple listing service it agreed with other realtors that if they were the procuring cause of a sale the commission would be divided. We find no indication by the defendant nor agreement with it that the division of the commission would be anything other than an equal split.

Secondly, defendant-appellant argues that Mrs. LeGardeur was not the procuring cause of the sale. The record is clear, and Mrs. Deckert, agent for defendant, admitted that if Mrs. LeGardeur had not referred the Kemps to her, the sale would not have taken place. Mrs. LeGardeur initially showed the subject property to the Kemps. Though the buyers did not reach the decision at that showing that they would purchase the property, sufficient interest was generated that after looking at several other pieces of property they eventually returned to the subject property and purchased same.

We agree with the trial judge that Mrs. LeGardeur was the procuring cause, and that the commission be split equally.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at defendant-appellant’s costs.

AFFIRMED.


author:
COVINGTON, Judge.
      WATKINS, Judge,

text:
    Cathy Ann Hebert CUSIMANO, et al. v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY.
    No. 14341.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Rehearing Denied Nov. 23, 1981.
    John B. Noland, Baton Rouge, for Cathy Ann Hebert Cusimano, Jo Ann Hebert Judi-ce, Donna Ann Hebert & Fidelity National Bank of Baton Rouge, as Tutor of the Property of the minors, Pamela Ann Hebert and Donald Joseph Hebert, Jr.
    Horace C. Lane, Baton Rouge, for St. Paul Fire and Marine Ins. Co.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

Plaintiffs, as assignees, seek to recover against the errors and omissions insurer of an insurance broker for damages allegedly resulting from the broker’s failure to provide the assignor automobile liability insurance in accordance with his request. From an adverse judgment in the trial court, defendant, St. Paul Fire and Marine Insurance Company, has perfected the present appeal.

Plaintiffs are the children of the late Donald J. and Bobbie C. Hebert, who were killed in a traffic accident, which occurred December 23, 1976. As a result of the deaths of their parents, plaintiffs filed a wrongful death action against, among others, Champ’s Truck Service, Inc.; Cavalier Insurance Company, Champ’s automobile liability insurer; and Interstate Fire & Casualty Company, a surplus line carrier for the Champ’s vehicle.

For several years prior to the accident resulting in the death of plaintiff’s parents, the president of Champ’s and its primary shareholder, Ford P. “Champ” Luscy, had obtained Champ’s liability insurance through Louisiana Companies, an insurance brokerage firm. Until late 1975, the policy limits requested by and obtained for Champ’s by Louisiana Companies were $100,000 per person and $300,000 per accident (100/300).

In late 1975, Luscy undertook an expansion of his trucking business. Included within this expansion was the acquisition of Kaiser Aluminum as a client. Kaiser required its haulers to have liability insurance with policy limits of $250,000 per person and $500,000 per accident (250/500). Hence, Luscy telephoned Louisiana Companies and spoke with its vice-president, Robert Grace, Jr. During this conversation, Luscy informed Grace that he needed and wanted that additional coverage, and requested Grace to send a certificate to Kaiser attesting to those policy limits.

As a result of Luscy.’s request for increased coverage, Grace consulted Markel Services, an insurance broker specializing in insurance for trucking companies. Initially, Markel tried to get Cavalier, Champ’s primary carrier, to increase its coverage to the required amount, but Cavalier declined to do so. Then, Markel was able to obtain a surplus line policy for Champ’s through Interstate, providing coverage of $150,000 per person and $200,000 per accident in the event that Champ’s liability for any accident exceeded the coverage provided by Cavalier. The policy sent to Luscy by Interstate on its face indicated that Champ’s now had coverage with total limits of $250,-000 per person and $500,000 per accident.

After being advised of the excess policy, Louisiana Companies forwarded to Kaiser a certificate showing Champ’s new policy limits. Although the policy limits were increased, it was not explained to Luscy that, under certain circumstances, the full amount to be paid by the combined policies was $400,000, instead of the $500,000 shown on the face of the policy.

At the time of the accident in which plaintiffs’ parents were killed, the foregoing was the status of the insurance coverage of Champ’s. However, until two weeks prior to the scheduled trial date of the wrongful death suit, Luscy believed that he had actual 250/500 coverage. At that time, Luscy was notified that his insurers would only pay a total of $400,000 under their policies. Nevertheless, in view of the strong possibility of a higher judgment if the case went to trial, Luscy settled with the plaintiffs for the sum of $500,000. Of this amount, the insurers paid $400,000, with the balance of $100,000 on the settlement represented by Luscy’s promissory note in that amount. The plaintiffs were also assigned Luscy’s cause of action against Louisiana Companies arising from its alleged fault in failing to secure adequate insurance, with policy limits of 250/500 as requested. Pursuant to that assignment, plaintiffs brought the present action against Louisiana Companies’ errors and omissions insurer, St. Paul.

At the conclusion of trial, the trial court rendered judgment for plaintiffs against St. Paul in the amount of $100,000, with interest and costs. The trial court, in its oral reasons, found that Louisiana Companies had failed to provide the coverage requested by Champ’s and that it had been at fault in failing to inform Champ’s of its inability to acquire the requested coverage. Moreover, the trial court concluded that Luscy was not at fault in failing to discover from a reading of the policy that he was not provided with the requested coverage.

On appeal, defendant asserts the following three specifications of error:

“I.
“The District Court erred in finding that the policy of insurance obtained by Louisiana Companies was not the precise coverage specified and ordered by Champ’s Trucking [Truck] Service, Inc.
“II.
“The District Court erred in holding that Mr. Luscy could reasonably have believed the maximum coverage of $500,000 applied in an accident where only two persons sustained bodily injury. The Court also erred in failing to hold the insured to his duty to inspect the policy after it is delivered to see if it meets his specifications.
“HI.
“The District Court erred in concluding that the insurance broker had a legal duty to warn his client that the maximum coverage of $500,000 would apply only where three or more people sustained bodily injury — where the client already knew of this requirement in the base policy — and no explanation for individual examples of coverage was ever requested by the client.”

Specifications I and II

These specifications of error question factual findings of the trial court. See Kieran v. Commercial Union Insurance Company of New York, 271 So.2d 889 (La.App. 4 Cir. 1973). In the first specification of error, defendant attacks the finding of the trial court that Louisiana Companies failed to procure the proper coverage as requested by Luscy. The basis of this attack is that the combined coverage provided to Champ’s by Cavalier and Interstate actually amounted to 250/500 coverage. In this regard, defendant refers to the testimony of Grace to the effect that the combination of Cavalier’s 100/300 coverage and Interstate’s 150/200 coverage amounted to 250/500 coverage.

The trial court found that, when Luscy requested 250/500 coverage, he was seeking insurance which would pay $250,000 to each person, with a $500,000 total, based upon the evidence that Luscy was a layman as to insurance matters and that, under the circumstances, he acted reasonably in believing that a 250/500 policy would pay the maximum amounts if two persons were injured. There is no dispute that the coverage actually procured did not provide the maximum limits in the situation that actually occurred.

It is well established that an insurance agent or broker who undertakes to procure insurance for a client owes an obligation to use reasonable diligence in attempting to place or obtain the requested insurance and has a duty to notify the client promptly if it has failed to obtain the requested insurance. The client may recover from the broker or agent the loss sustained as a result of the failure to procure the desired coverage if the actions of the broker or agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage. Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728 (La.1973); Trahan v. Bailey’s Equipment Rentals, Inc., 383 So.2d 1072 (La.App. 3 Cir. 1980), writs denied, 390 So.2d 1342 and 391 So.2d 455 (La.1980).

After a thorough review of the evidence, we are convinced that the trial court’s findings are fully supported by the record.

In the second specification of error, defendant contends that the trial court erred in failing to require of Lusey to inspect the insurance policy to see if it furnished the requested coverage; or if the trial court did impose such duty, it erred in finding that Luscy had met this duty. In support of its contention that an insured has a duty to inspect the policy to ascertain if it meets the requested coverage, defendant relies on Kieran v. Commercial Union Insurance Company of New York, supra.

In Rieran, the court affirmed a judgment in favor of the insurance broker, concluding that the trial court had not erred in finding that the broker had not breached his duty to use reasonable diligence to procure the requested coverage and to notify the client if he failed to do so. In the course of its opinion the Court made the following statement: ,

“On the contrary, the fault, if any, was on the Hughes’ [clients] part in not advising Mrs. Cassard [broker] the cars were used in the family business and in not reading the clear provisions of their policy. See Hanover Insurance Company v. Orgeron, La.App., 206 So.2d 814.”

Rieran is distinguishable from the instant case. Luscy clearly informed the broker of the needed coverage. The broker did not use reasonable diligence in procuring the requested coverage, yet it did not so inform Luscy of the situation. No information was withheld by Lusey from the broker, as was done in the Rieran case. Moreover, the face of the policy suggests, if it does not indicate, that Luscy was furnished with the requested coverage. There was no fault on the part of Luscy.

Specification III

In its last specification of error, defendant contends that, under the circumstances of the instant case, Louisiana Companies had no duty to inform Luscy that it was unable to procure the specifically requested insurance coverage, contending that Luscy already knew that his primary policy (with Cavalier) would only pay $300,-000 where three or more persons were injured or killed, so he must have known that the excess coverage contemplates the same type of situation. For this contention, defendant cites Porter v. Utica Mutual Insurance Company, 357 So.2d 1234 (La.App. 2 Cir. 1978).

Porter does not support the proposition advanced by defendant. The basis of the Porter decision is that the plaintiffs did not request the type of coverage at issue, and that the agent did not agree to procure the particular coverage. In the instant ease, the record establishes that Luscy did request a specific increased coverage, and Louisiana Companies undertook to procure it; but the broker failed to obtain the requested coverage, without informing the client of the situation.

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to defendant-appellant, St. Paul Fire and Marine Insurance Company.

AFFIRMED.

WATKINS, J., dissents and assigns reasons.

WATKINS, Judge,

dissenting.

I dissent from the majority’s holding that the insurance agency, Louisiana Companies, was at fault or negligent, and that, hence, St. Paul, its errors and omissions insurer, is liable for the amount of the note Luscy was forced to sign in effecting a settlement of the tort claim.

Luscy, President of Champ’s Truck Service conveyed ambiguous instructions to Grace, the Vice President of the agency, Louisiana Companies. Although there is some variation in the testimony of Grace and Luscy on the instructions given by Lus-cy to Grace in obtaining the excess insurance, it is apparent that what happened was that Luscy told Grace via telephone that he wanted additional insurance up to $250,000-$500,000 to satisfy the requirements of Kaiser Aluminum Chemical Company, with which Champs Truck Service wished to enter into hauling contracts. The excess insurance obtained from Interstate Fire & Casualty Company met Kaiser’s requirement, as is evidenced by Kaiser’s acceptance of the certificate of insurance setting forth Champ’s insurance. The verbal communication between Champ’s and Louisiana Companies through Luscy and Grace is ambiguous. It could be taken to mean that Luscy wanted additional insurance to obtain a straight $250,000-$500,000 policy, under which, the evidence reveals, there would have been full $500,000 coverage if two or more persons had been injured in a single occurrence. However, the verbal communication could also be taken to mean that Luscy merely wanted $250,000-$500,000 coverage sufficient to meet Kaiser’s requirement. The insurance did meet or satisfy Kaiser’s requirements, and did in fact provide $250,000-$500,000 coverage. Thus, from Grace’s viewpoint, and I suspect from Luscy’s viewpoint until the accident giving rise to the present litigation occurred, Champ’s or Luscy was afforded the insurance sought. It was only after the accident in question occurred that Luscy objected to the policy.

The terms of the policy are very clear. The pertinent portions of the face of the excess policy read as follows:

"INTERSTATE FIRE & CASUALTY COMPANY Chicago, Illinois
3. Schedule of Underlying Insurance: Insurer and Policy Number Cavalier Insurance #9638140-013
4. Limits of Liability: The limit of the Company's liability shall be stated herein, subject to all the terms of this policy having reference thereto.
COLUMN 1_IN EXCESS OF COLUMN 11 COLUMN 111
Underlying
Coverage_Company Limits_Limits_Total Limits
A Bodily injury $150,000.00 Each Person $100,000.00 $250,000.00
Automobile $200,000.00 Each Occurrence $300,000.00 $500,000.00 "

The purchaser of an insurance policy has a duty to inspect his policy when it is delivered to him and to determine whether it meets his specifications. Kieran v. Commercial Union Insurance Co. of N. Y., 271 So.2d 889 (La.App. 4th Cir. 1973). In this case it requires only simple arithmetic to see that when there are underlying limits of $100,000 for each person, if two persons are injured in a single occurrence, those underlying limits add up to $200,000, and that sum added to the $200,000 limit under the excess coverage offered by Interstate adds up to $400,000, which is the coverage Champ’s was in fact supplied. It would take a hasty, superficial, and unbusinesslike reading of the policy limits, which appear on the face of the policy, to conclude that in such a situation the total limit would have been $500,000.

I am convinced that the excess policy provided by Louisiana Companies fairly met the coverage requirements specified by Lus-cy. Luscy’s testimony indicates that at best, from his view, his instructions to Grace were inexact and ambiguous. The excess policy clearly complied with a reasonable understanding of his instructions to Grace. If Luscy had properly inspected the policy upon receipt he would have timely had the opportunity to notify Grace that it did not contain the coverage that he now claims he had originally requested.

I, therefore, find no fault on the part of Louisiana Companies, and respectfully dissent from the holding of the majority.

      . We previously issued an opinion in connection with the wrongful death action which is styled Hebert v. Ordoyne, 388 So.2d 407 (La. App. 1 Cir. 1980).

      . The $400,000 total liability of the insurer is reckoned as follows: Cavalier, Champ’s primary insurer, was only obligated to pay a maximum of $100,000 per person injured or killed as a result of the fault of Champ’s. Since two persons, Mr. and Mrs. Hebert, were killed, Cavalier’s liability was limited to $200,000, even though its maximum policy limits were $300,-000 (if another person had been killed or injured through Champ’s fault). The maximum limits on Interstate’s excess policy were fixed at $200,000. Hence, under these circumstances, the total maximum limits amounted to $400,000.


author: ELLIS, Judge:

text:
    Dudley CURRY and Shirley Curry v. IBERVILLE PARISH SHERIFF’S OFFICE, et al.
    No. 14342.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Rehearing Denied Dec. 10, 1981.

      William C. Dupont of Dupont, Dupont & Dupont, Plaquemine, for Dudley Curry and Shirley Curry, plaintiffs-appellants/appel-lees.
    Emile C. Rolfs, III, Baton Rouge, for North River Ins. Co., defendant-appellant/appellee.
    James F. Abadie of Roy, Kiesel, Patterson & Abadie, Baton Rouge, for Allstate Ins. Co., defendant-appellant/appellee.
    John I. Moore of Taylor, Porter, Brooks & Phillips, Baton Rouge, for Iberville Parish Sheriff’s Office, Donald Daigle and National Fire and Marine Ins. Co., defendants-appellants/appellee.
    Thomas S. Halligan, Asst. Atty. Gen., Baton Rouge, for State of Louisiana, defendant-appellant/appellee.
    Sheila Moore Gordon, Atty., Legal Section, Louisiana Dept, of Health & Human Resources, Baton Rouge, for State of Louisiana, Dept, of Health & Human Resources, intervenor-appellee.
    Before ELLIS, COVINGTON and LOT-TINGER, JJ.
   ELLIS, Judge:

This case arises out of an automobile accident involving an automobile belonging to Dudley and Shirley Curry, an automobile belonging to the Iberville Parish Sheriff’s Office and an automobile operated by Edward G. Robinson. At about 1:30 a. m. on July 17, 1977, the Curry vehicle, operated by Mrs. Curry with Mr. Curry as a passenger, was heading south on La. Highway 1, a two-lane blacktop highway. The Currys intended to make a left turn off the highway into the parking lot of Dup’s, a nightclub. Their car was followed by a motor home and one or two other vehicles. As she approached Dup’s, Mrs. Curry slowed down and activated her left turn indicator. Mrs. Curry testified that she saw no one approaching from either direction and began her turn. Just when her front wheels were into Dup’s driveway, the Curry vehicle was struck in the left rear quarter panel by the Iberville Parish Sheriff’s Office vehicle, operated by Donald J. Daigle, an auxiliary deputy sheriff.

Mr. Daigle testified that he was driving south on Highway 1, going to White Castle to pick up someone. He came up behind a Winnebago motor home, turned on his blue lights and began to pass. When he was halfway around the Winnebago, going 55 or 60 miles per hour, he saw the Curry vehicle, making its turn. He applied his brakes and turned toward the shoulder, but was unable to avoid striking the Curry automobile.

No one was injured in this collision, and the record does not reveal the extent of damage to either vehicle. Mr. Curry got out of his vehicle and walked to the rear to survey the damage. While he was so engaged, a third vehicle, operated by Edward G. Robinson, approached from the' south and struck the Curry vehicle, propelling it into the sheriff’s car, and seriously injuring Mr. Curry, who was between the two vehicles.

Plaintiffs in this suit are Mr. and Mrs. Curry. The defendants as to whom the suit was tried were Mr. Daigle; National Fire and Marine Insurance Company, the sheriff’s automobile liability insurer; North River Insurance Company, the sheriff’s general liability insurer; Allstate Insurance Company, Mr. Daigle’s personal liability insurer; and the State of Louisiana, as Mr. Daigle’s employer. Mr. Daigle and National Fire third partied Mrs. Curry and Edward G. Robinson. The State third partied Mrs. Curry, Mr. Daigle, National Fire, Allstate, North River and Mr. Robinson. Issue was never joined as to Mr. Robinson.

After trial on the merits before a jury as to all defendants except the State, and before the judge as to the State, judgment was rendered in favor of Dudley Curry and against Mr. Daigle and North River for $520,000.00, and in favor of Mrs. Curry and against the same two parties for costs. The suit was dismissed as to Allstate, National Fire, and the State of Louisiana, and all incidental demands were dismissed.

On motion for new trial, the court found the State to be liable to plaintiffs as Dai-gle’s employer, and, apparently, granted it indemnity against Daigle and North River under its third party demand. From these judgments all parties have appealed, presenting to this court questions as to liability, contributory negligence, coverage, and quantum.

Donald J. Daigle was an auxiliary deputy sheriff. According to the record, he received no salary or compensation other than a small uniform allowance, but when on duty, had all the authority of a regular deputy sheriff, and performed the same duties as regular deputies. He received no training other than the experience of working with other deputies. On the night of the accident, he was on patrol in a sheriff’s car, which was equipped with blue lights and a siren. He had been directed by his dispatcher to go to a bar in White Castle and furnish transportation to a woman there. Apparently, this was a routine function performed by Iberville Parish deputies.

Mr. Daigle testified that after the first accident, which happened as set forth above, he immediately reported it to the dispatcher and was just hanging up his microphone when the second accident happened. He testified that he did not turn off his blue lights until after the State Police arrived on the scene some time later, and that he had taken no steps to protect the scene of the accident before the second accident occurred. There is other testimony in the record from a number of witnesses that the blue lights were off after the first accident, and that two or three minutes elapsed between the first and second accidents. The second accident happened when Mr. Robinson, in a highly intoxicated condition, failed to see the partial obstruction of the highway by the Curry vehicle, and struck it.

Mr. Daigle is said to be negligent in two respects: first, in executing his passing maneuver, and, second, in failing to perform his duty as a deputy sheriff by protecting the scene of the accident. We pre-termit discussion of the first accident, since it is clear from the record that Mr. Curry’s injuries were not caused thereby. As to the second point, the evidence is clear that a deputy is charged with the responsibility of protecting an accident scene. There is ample evidence that Mr. Daigle had two to three minutes in which to perform that duty, which was more than enough time. We agree with the jury that his failure to do so was a cause in fact of the second accident. Since his negligence was in connection with his official duties, the insurer of the sheriff’s office, and the State of Louisiana, as his employer, are also liable. Foster v. Hampton, 352 So.2d 197 (La.1977). We do not believe that Mr. Daigle’s status as an unsalaried auxiliary deputy can operate to relieve the State from its obligation. Mr. Daigle was acting as a deputy sheriff, with the full authority of that position bestowed on him by the Sheriff, which brings him squarely within the holding of Foster v. Hampton, supra.

National Fire, the Sheriff’s automobile insurer, and North River, his general liability insurer, each argues that coverage of this accident is excluded by their respective policies. North River argues that Mr. Daigle’s liability arises out of the use of an automobile and coverage is excluded by the terms of its policy. National Fire argues that Mr. Daigle’s liability arises from a failure to perform his official duties, and is therefore not covered by its automobile liability policy.

We agree with the holding of the trial judge that North River affords coverage to Mr. Daigle and that National Fire does not. Mr. Daigle’s negligence is based on his failure to secure and protect the scene of the accident. The fact that he might have utilized the blue lights on his vehicle as one means of carrying out his duty is not sufficient to make the second accident arise out of the use of the automobile. See LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La.1978), for a case similar both in fact and result.

No error is assigned by any party to the finding of the court that no coverage of this accident was afforded to Mr. Daigle by Allstate, his personal automobile liability insurer.

After the first accident, Mr. Curry got out and walked around the back of his automobile to inspect the damage. Apparently, he was between his car and the sheriff’s car when the second accident occurred, and was struck and knocked into the ditch by his own vehicle. Since these two vehicles were partly on and partly off the highway, as was the point of impact between them, we do not know if Mr. Curry was on the paved surface of the road or the shoulder when the second accident happened. It is contended that Mr. Curry’s conduct in knowingly placing himself in a position of peril, on a public highway, constituted contributory negligence which precludes his recovery.

The jury, in answering the interrogatories propounded to it, found that Mr. Curry was negligent, but that his negligence was not a proximate cause of the accident. Clearly, the findings of the jury in the above respects are contradictory. Since we can place no greater weight on the one finding as opposed to the other, we will reach our own conclusion from the evidence as above detailed.

In Dupas v. City of New Orleans, 354 So.2d 1311, at 1313, (La.1978), the court said:

“As we summarized in Smolinski v. Taulli, 276 So.2d 286, 290 (La.1973) (citations omitted):
‘Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection. The standard of conduct to which the plaintiff must conform for his own protection is that of a reasonable man under like circumstances. The party relying upon contributory negligence has the burden of proving it.
‘Failure to take every precaution against every foreseeable risk or to use extraordinary skill, caution, and foresight does not constitute negligence or contributory negligence.... [The victim] is required only to use reasonable precautions, and [his] conduct in this regard is not negligent if, by a commonsense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances.’ ”

Viewed in the light of the above principles, we do not find that Mr. Curry was unreasonable in his actions in going to inspect the damage to his vehicle. The road was only slightly obstructed by the two cars involved in the accident, and Mr. Curry may very well have been off the paved surface of the highway when the second accident occurred. His position proved to be perilous because of the failure of Mr. Daigle to protect the scene of the accident and the failure of Mr. Robinson to see what he should have seen. Mr. Curry is not barred by his conduct from recovery.

The jury awarded Mr. Curry a total of $520,000.00 in damages. Mr. Curry suffered a severely fractured right leg, a broken right arm, and abdominal and other internal injuries, accompanied by internal bleeding and a massive retroperitoneal he-matoma. An exploratory laparotomy was performed, his right leg injury was debrid-ed, and an open reduction of the leg fractures was done. Mr. Curry remained in the intensive care unit until July 29, when he was removed to the orthopedic floor. On August 2,1977, an open reduction and fixation of his broken right arm was performed. Physical therapy was commenced shortly thereafter and continued until his discharge from the hospital on September 2, 1977. Physical therapy continued for four months thereafter.

In April 1978, Mr. Curry was readmitted to the hospital for skin grafts over the wounds on his right leg. The grafts failed to take, and the graft sites became infected. On May 31,1978, his right leg was amputated just below the knee because of chronic osteomyelitis and gangrene. In November 1978, he was fitted with an artificial leg.

The expert testimony in the record makes it clear that Mr. Curry will have difficulty walking on grades and uneven surfaces; that his ability to climb stairs and ladders will be greatly impaired; and that his ability to function as a heavy equipment operator would be greatly impaired because of loss of dexterity and sensory perception in the right leg and foot. There was ample evidence in the record from which the jury might have concluded that Mr. Curry was not able to perform the duties of a heavy equipment operator with safety. Mr. Curry is not trained in any other occupation and has a fifth grade education.

The expert economist who testified found that Mr. Curry’s economic loss because of his injury totalled $483,679.46, including $68,058.46 in lost earnings up to the time of trial, $346,669.00 in future lost wages, allowing a deduction for minimum wage, and a net loss of fringe benefits of $68,852.00. This figure was based on the presumption that Mr. Curry would be employed at all times. The record reflects, however, that there are periods when no work is available, and this was not taken into account by the expert. When the figure is reduced by 25 per cent, and the past and future medical expenses are taken into account, about $120,000.00 remains as the award made by the jury for pain and suffering. We think this award is amply supported by the evidence, and that the total award of $520,-000.00 is well within the range of discretion accorded the trier of fact.

Finally, we agree with the finding of the trial judge that the State of Louisiana is entitled to full indemnification from Daigle and North River. The liability of the State arises from the provisions of Article 2320 of the Civil Code, and is purely secondary. Under this circumstance, the State is entitled to reimbursement from its negligent servant. Johnson v. Dabbs, 194 So.2d 816 (La.App. 1st Cir. 1967).

Since the judgment below is unclear as to the last point discussed, it will be amended so as to provide specifically for judgment in favor of the State of Louisiana on its third party demand against Donald J. Daigle and North River Insurance Company, in solido, for any amounts it may pay as a result of the judgment against it in favor of plaintiffs. As amended, the judgment is affirmed, at the cost of Donald J. Daigle and North River Insurance Company.

AMENDED AND AFFIRMED.


author: PONDER, Judge.

text:
    THARPE AND BROOKS, INC. v. ARNOTT CORPORATION, et al.
    No. 14031.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Rehearing Denied Dec. 10, 1981.

      A. Morgan Brian, Jr., New Orleans, for plaintiff.

      Judith Atkinson Chevalier, Baton Rouge, for Davidson Sash and Door, defendants.
    Bernard S. Smith, Covington, for interve-nors.
    James R. Strain, Slidell, for Dossman, Keller, and St. Tammany Elec.
    Patrick J. Berrigan, Slidell, for Radcliff Materials, and Slidell Refrig.
    J. Patrick Beauchamp, Metairie, for Can-cienne.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

These appeals involve a ranking between plaintiff mortgagee and seven intervening lien claimants on a private construction project.

The issues are: res judicata, no right and no cause of action, ranking of mortgage, involving particularly the validity of the affidavit attesting no work had begun or materials furnished to the building site pri- or to the mortgage recordation, hearsay testimony and the ranking of intervening lien claimants.

Defendant, Arnott Corporation, contracted with Bakerfield Electric, Inc., as prime contractor, to build a motel. Plaintiff, Tharpe and Brooks, Inc., agreed to supply defendant with interim financing. The note was executed on September 17, 1973. On December 18,1973, plaintiff received an affidavit from a registered land surveyor attesting that no work had begun or materials delivered to the building site. That same day plaintiff filed in the mortgage records the site inspection affidavit, the mortgage and the building contract with an addendum.

In early 1974, Arnott severed relations with Bakerfield and thereafter itself en-

deavored to finish the project. When, in late 1974 and early 1975, Arnott defaulted on its obligations, claims against the project were recorded. Plaintiff filed executory proceedings to foreclose its mortgage. Several lien claimants intervened in the suit. Plaintiff then filed a rule to rank, which was dismissed on oral motion when plaintiff’s then counsel failed to appear on the hearing date. The property passed by Sheriff’s deed to plaintiff and was later sold by plaintiff to a third-party, Midland. Thereafter, plaintiff filed another rule to rank all the recorded claims and the mortgage. The court denied the intervenors’ exceptions of res judicata, and no right and no cause of action and held that plaintiff’s mortgage had priority over all liens except those for the labor of Doyle Dossman, George J. Neumiller d/b/a Delmar Plumbing and Leon Koury. Plaintiff appeals as do intervenors Washington, East, Eddie Knippers and Associates, Inc., and Lav-ergne.

We amend and affirm.

It is asserted that the trial court’s dismissal of the first motion of rank liens forecloses Tharpe’s second motion to rank. Louisiana Code of Civil Procedure Articles 2596 and 1672. In the absence of any indication to the contrary, the oral order for dismissal was without prejudice, an interlocutory judgment, that left the plaintiff free to bring another action. LeBlanc v. Travelers Indemnity Co., 262 La. 403, 263 So.2d 337 (1972). The trial court was correct in denying the exception of res judica-ta.

Intervenors’ exception of no right of action on the grounds that Tharpe was not the owner of the property at the time it filed the renewed rule to rank is without merit. The trial judge was correct in finding that Tharpe, as vendor of the property had the duty to warrant the sale and thus had the right to file the rule to test the liens. Louisiana Civil Code, Article 2501. La.R.S. 9:4821, relied on by appellants, added in 1976, does not have the effect of preventing one not the owner to prosecute the action if he has an interest.

Intervenors also assert that the foreclosure was invalid because Tharpe did not produce proper authentic evidence, specifically, proof of the corporate mortgagee’s authority to execute the mortgage. The proper methods to raise procedural objections to executory process are suspensive appeal and injunction. Louisiana Code of Civil Procedure, Article 2642. The trial court correctly denied the exceptions of no cause or right of action.

Intervenors asserted that the trial court erred in allowing a brother to identify the deceased surveyor’s signature on the affidavit of no work. However, the witness’ familiarity with his brother’s signature was sufficiently established; the signature was adequately identified. Although intervenors contend that the affidavit is deficient due to lack of a seal required by LSA-R.S. 37:695, as it read at the time the affidavit was made, there is no requirement under LSA-R.S. 9:4819(A)(3) that a seal be placed on the affidavit of “no work”. We find no error.

Intervenors further contend that Tharpe’s mortgage was not valid under LSA-R.S. 9:4812 because there was no proof of the date of pledge of the collateral mortgage note. The date of pledge was adequately proven in the record.

Tharpe could rely on the affidavit of no work, even though work had previously occurred and been “undone” prior to the inspection, in the absence of a showing of fraud on the part of Tharpe. The trial judge was not manifestly incorrect in finding Tharpe did not have knowledge that work had occurred on the site.

We therefore conclude, as did the trial court, that only laborer’s liens took precedence over the mortgage to Tharpe.

Intervenors complain of the exclusion of testimony of Horace Womack, the president of the prime contractor as to a telephone conversation with Mr. Hinton, who represented Arnott Corporation, in which Mr. Hinton purportedly told Womack of a conversation with defendant’s attorney. This testimony was clearly hearsay; the trial court was correct in sustaining the objection.

Intervenors’ contention that the trial judge erred in failing to allow testimony as to the payment of certain invoices becomes irrelevant, when we conclude that only labor liens would prime Tharpe’s mortgage.

Intervenors’ final contention was that the trial court erred in not finding that each claimant was a laborer and thus primed Tharpe’s mortgage. A subcontractor is not subrogated to the rights of a laborer for the wages he has paid his laborers, but, the fact that he has signed a contract does not prevent him from claiming a laborer’s privilege if he meets the other qualifications. Pringle Associated Mortgage Corporation v. Eanes, 208 So.2d 346 (1st Cir. 1968), amended in part 254 La. 705, 226 So.2d 502.

Robert Washington entered into a contract to do electrical work for Arnott Corporation for $51,000.00, covering labor, materials, overhead and profits. While he may have performed some of the labor himself, he testified that over $6,000.00 of his lien was for wages paid to his employees and that approximately $2,000.00 of the lien was for materials. We do not believe the purpose of the laborers’ lien priority covers this example. Furthermore, his conclusion that the remaining $4,200.00 should be given him as laborer’s wages is not warranted; he was unable to substantiate his claim with specific information as to the hours he worked, the amount of his overhead or the measure of his profit.

Robert East, who contracted with Arnott Corporation to provide heating, air conditioning and ventilation work, filed a lien in the amount of $21,445.00. The trial court found that although East had a lien, it was not a laborer’s lien that primed Tharpe’s mortgage. East testified that 25% of the lien was for his own labor and supervisory work. He did not establish the type of work he performed nor the amount for labor alone. We find no error.

Eddie Knippers and Associates, Inc. contracted to furnish carpentry work. Although Knippers may have a right to a lien for wages paid to laborers under City Bank and Trust Company v. Caneco Construction Inc., 341 So.2d 1331 (3rd Cir. 1976), writ denied 345 So.2d 52, it does not have the exceptional priority given to laborers’ lien by LSA-R.S. 9:4812.

Huey Lavergne filed a lien on July 11, 1975, and an intervention on July 12, 1978, asserting his lien. The effect of recordation and the privilege perempts if notice of filing of suit is not filed within one year of recordation. The trial court held that Lav-ergne’s lien had prescribed.

Intervenors contend that a notice of suit does not have to be filed if a sheriff’s sale has previously occurred and alternatively that Tharpe should have raised prescription and peremption as an affirmative defense. The requirement of lis pendens, or notice of filing of suit, must be complied with unless a sheriff’s sale occurs within the year of recordation and a fund is created for the benefit of lien claimants. Federal National Bank and Trust Company v. Calsim, Inc., 340 So.2d 611 (4th Cir. 1976), writ denied 342 So.2d 1110, 1111. In the present case, the sheriff’s sale occurred prior to the filing of the lien. Lav-ergne’s lien was not cancelled by the sale and he was not relegated to a fund created for his benefit. Under the statute, Lav-ergne had to file an action and give notice of that action within the one year period.

A peremptive provision destroys the previously existing right, with the result that, upon expiration of the stated period, a cause of action or substantive right no longer exists to be enforced. Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (1971). Therefore, it was not necessary, that Tharpe file a special plea. Succession of Pizzillo, 223 La. 328, 65 So.2d 783 (1953).

Tharpe appealed from the trial court’s recognizing the priority of the laborer’s liens of Dossman, Neumiller and Koury. Neumiller contracted with East to do plumbing. Tharpe contends that both of these men are either prime contractors or subcontractors and are not entitled to the special status of a laborer.

The trial court awarded Dossman priority for the personal labor performed by Dossman under an oral contract with Ar-nott to spray paint the sheetrock. The language of LSA-R.S. 9:4812 provides that “any person ... performing any labor” may record his lien. It does not deny a lien to those contracting directly with the owner. Executive House Building, Inc. v. Demarest, 248 So.2d 405 (4th Cir. 1971). This would be especially true when the contract was solely for labor that was understood to be performed by the contractor himself. Pringle Associated Mortgage Corp. v. Eanes, supra.

Tharpe further contends that since Dossman’s contract was with the owner, it falls under LSA-R.S. 9:4802(A) and must be recorded in order for Dossman to perfect his lien. Although Dossman contracted directly with the owner he was not a general contractor under § 4802. See Executive House Building, Inc. v. Demarest, supra. In view of the provisions of LSA-R.S. 9:4812, giving protection even when the contract is not recorded, we find the contention without merit.

Part of Neumiller’s claim was for guarding the project site from vandals; the rest was for wages not paid to him by East. Neumiller’s contract with East was for wages of $400.00 per week for labor only. We agree that he should have priority for labor. While the calculations are quite confusing, we believe that the figure of $780.00 for materials bought for Arnott Corporation, $700.00 for truck rental and for $400.00 paid to Neumiller’s son for repair work should not be awarded laborer’s lien priority. We therefore amend the judgment so as to award him $9,412.00 instead of $10,112.00.

Tharpe contends that Koury, who was employed by Arnott, as a “job coordinator or construction manager” did not perform manual labor that would qualify him for a laborer’s lien. The question is not without some doubt; the trial court held that Koury’s lien was for labor. While Koury did not perform manual labor in the most common sense of the word, his work of coordinating the job for Arnott Corporation was labor. Compare Devillier v. City of Opelousas, 247 So.2d 412 (3rd Cir. 1971). His lien primes Tharpe’s mortgage.

Tharpe contends that Koury’s lien is invalid since it was not filed until after the foreclosure sale and recordation of the sheriff’s deed to Tharpe. However, Koury’s lien was timely filed since work continued under the direction of Arnott to within sixty days of the filing.

Tharpe contends that Koury’s timely recorded lien should be relegated to the proceeds of the sale. It should be noted that certain rules respecting a sale under a writ of fieri facias also apply to executory writs. Louisiana Code of Civil Procedure, Article 2724. This includes Louisiana Code of Civil Procedure, Article 2372 which provides that the property is sold subject to any real charge with which it is burdened superior to the right of the seizing creditor. Koury’s lien followed the property into the hands of the purchaser and is superior to Tharpe’s mortgage.

For these reasons the judgment is amended so as to decrease the amount awarded Neumiller to $9,412.00. As amended the judgment is affirmed.

Costs are assessed one-half to Tharpe and one-half to Robert Washington, Eddie Knippers and Associates, Inc., Robert East a:nd Huey Lavergne.

AFFIRMED IN PART AND REVERSED IN PART.

      . The claim of one Cancienne was allowed but has since been settled and is not involved in these appeals.

      . La.C.C.P. Art. 2596:
      “The rules governing ordinary proceedings are applicable to summary proceedings, except as otherwise provided by law.”
      La.C.C.P. Art. 1672:
      "A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case the court shall determine whether the judgment of dismissal shall be with or without prejudice.”

      . La.C.C.P. Art. 2642 (in part):
      “Defenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a suspensive appeal from the order directing the issuance of the writ of seizure and sale, or both.”

      . LSA-R.S. 9:4819 (in part):
      “(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 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. * * *”

      . LSA-R.S. 9:4812 (in part):
      “ * * * The effect of the recordation of the claim shall cease and the privilege preserved by the recordation shall perempt unless a notice of filing of a suit ... on said claim is recorded within one year from the date of recordation of the inscription of said claim. * * * ” See the same provision in § 4802.