
    Floyd LEBLEU, Plaintiff-Appellant, v. FORUM INSURANCE COMPANY, Defendant-Appellee.
    No. 84-894.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 1985.
    
      Floyd D. LeBleu, in pro. per.
    Allen, Gooch & Bourgeois, Clay Allen, Lafayette, for defendant-appellee.
    Before GUIDRY, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

This appeal presents a res nova theory of recovery of damages arising out of a clerk of court’s omission of a mortgage from a mortgage certificate requested by the plaintiff.

Floyd LeBleu filed suit against Forum Insurance Company, the liability insurer of the clerk of court of Lafayette Parish, for $60,000.00 damages allegedly incurred by LeBleu as a result of an omission, by the clerk, of a mortgage from a certificate of mortgages requested by LeBleu. LeBleu became a judgment creditor of Claude Blakely in January 1982. The amount of the indebtedness was approximately $85,-000.00. At the request of LeBleu, the clerk of court issued a mortgage certificate covering property owned by Blakely. This certificate reflected 17 judgments recorded against Blakely which were superior to the judgment recorded by LeBleu. The dates of these judgments begin in 1979 and continue through 1982. They range in amounts from a few hundred to several thousand dollars plus interest and attorney’s fees. The certificates fail to show a prior recorded mortgage in favor of Washington Life Insurance Company in the amount of $60,000.00.

LeBleu decided to seize Blakely’s property which consisted of a house and lot. After the seizure and before the sheriff’s sale, Blakely filed a petition for bankruptcy and a stay order was issued against the sheriff’s sale of the property.

LeBleu alleges that he decided to seize the property since the certificate did not show the existence of the Washington Life Insurance mortgage in the amount of $60,-000.00. LeBleu concluded that the sale of the house would probably bring enough money to satisfy the numerous superior judicial mortgages and would also pay a substantial sum on the indebtedness owed to him. As a result of the bankruptcy, LeBleu contends that he realized very little money from the bankruptcy sale.

LeBleu theorizes that, had he known of the existence of the Washington Life indebtedness, he would not have seized the property thereby causing the bankruptcy. He states that, had he known of the Washington Life mortgage, he would have withheld any seizure of Blakely’s property and, over a period of several years, Blakely would have been able to pay the many superior judgment creditors and reduce the .indebtedness to Washington Life. LeBleu argues that, by waiting for approximately five years, he could have then seized the property and recovered a substantial portion of his indebtedness. He states that the omission of the certificate caused the seizure and bankruptcy by Blakely thereby depriving him of the opportunity to wait for several years for a more favorable result of his debt collection.

After trial, wherein LeBleu represented himself, the trial court dismissed the claim on the ground that LeBleu failed to prove damages. On appeal, LeBleu’s brief is confined to the argument that he did prove damages. Forum Insurance argues that the issue on appeal is one of causation and not adequacy of proof of damages.

After a careful review of the record we agree that the first issue to be decided by us is causation. If we decide that the omission of the clerk, which is not disputed, was not a substantial cause-in-fact of any loss sustained by LeBleu, it will not be necessary that we determine the question of proof of damages.

CAUSE-IN-FÁCT

The liability of parish recorders or clerks of court for the issuance of an erroneous certificate emanates from LSA-C.C. art. 3394 which provides, in part, as follows:

“The register of mortgages and the parish recorders performing the same duty, are answerable for injury resulting:
⅝ * * * * *
2. From omitting to mention in their certificates one or several acts existing on their registers, unless in this latter case the error proceeds from a want of exactness in the description, which can not be imputed to them.” (Emphasis added.)

As we have previously stated, it is undisputed that the clerk omitted from the certificates the mortgage to Washington Life in the principal amount of $60,000.00. The question for our determination is whether LeBleu incurred any loss as a result of such omission. To make such a determination we must decide whether such an omission was the legal cause or cause-in-fact of any loss. LeBleu, to be successful, must prove, by a preponderance of the evidence three essential elements: (1) omission in the certificate (undisputed herein), (2) such omission resulted in or was a cause-in-fact of a loss, and (3) the amount of the loss sustained, if any.

In this case LeBleu, in order to establish cause-in-fact, must show that he probably would not have suffered any losses had it not been for the clerk’s omission or that the omission was a substantial factor in bringing about the loss.

The only testimony presented in this case was that of LeBleu. His testimony was essentially narrative in form since he represented himself.

LeBleu stated, had he known of the $60,-000.00 mortgage held by Washington Life, he would not have seized Blakely’s property causing Blakely to file for bankruptcy thereby discharging his indebtedness. Le-Bleu testified that, if he had known of the Washington Life mortgage, he would have waited several years until Blakely had paid the many superior judgment creditors and had paid the Washington Life debt down to where Blakely would have more equity in his house. At that time, however long it would take, LeBleu stated he could then seize the house and realize a substantial payment from the seizure. He felt that, during the years that he was waiting for Blakely to make these payments, the Blakely property would appreciate by $25,-000.00 to $50,000.00.

LeBleu’s theory of eventual debt satisfaction must be labeled theory and nothing more. To support this vague plan we must make many assumptions which have no basis in fact. For instance, LeBleu would have us to assume, without any proof, that for several years (1) Blakely would continue to maintain his health and whatever employment he had and make payments to Washington Life and the approximately 17 other judgment creditors during that period of time; (2) none of the many superior judgment creditors would seize the house to satisfy their indebtedness; (3) none of these superior creditors or any future creditor would have forced Blakely into bankruptcy; and (4) Blakely, faced with such indebtedness, would not decide on his own to declare bankruptcy.

The record contains no evidence, other than LeBleu’s assertion, as to what the plans of the future creditors were. Any one of these judgment creditors could have easily become concerned about Blakely’s financial problems and effectuate a seizure at any time which could have forced Blakely into bankruptcy. It is difficult to see how Blakely could forego bankruptcy and keep paying judgment creditors and mortgage notes, knowing that at some future time his long-standing endeavors would culminate in a seizure and sale of his house to LeBleu. These circumstances reflect a strong probability that Blakely would take bankruptcy of his own accord. There is no evidence to show what kind of work Blakely does, who was his employer nor whether any employment he may have would continue at a steady rate or whether he would be terminated for health or other reasons.

In conclusion, we find that LeBleu’s theory of recovery must fall. It is based upon, not fact, but upon conclusions, assertions, conjecture and speculation. It cannot be said that LeBleu has proven by a preponderance of the evidence that he sustained a loss which resulted from omission by the clerk in the mortgage certificate. Therefore, it cannot be said that the omission was a legal cause or cause-in-fact of Le-Bleu’s inability to collect his indebtedness from Blakely who was facing very difficult, if not insurmountable, financial situations. Having reached this conclusion, a discussion of quantum is unnecessary.

For these reasons, the judgment of the trial court is affirmed. The costs of this appeal shall be paid by appellant, Floyd LeBleu.

AFFIRMED.

GUIDRY, J., concurs and assigns written reasons.

GUIDRY, Judge,

concurring.

While I am in full accord with the views expressed by the author, I concur to offer thoughts with regard to the issue presented under Louisiana’s duty-risk analysis.

The Louisiana Supreme Court recently set forth the proper inquiry under a duty-risk analysis in Thomas v. Missouri Pacific Railroad Co., 466 So.2d 1280 (La.1985) as follows:

“... To establish a defendant’s liability and recover tort damages, the plaintiff must be able to answer affirmatively the following questions: 1) did defendant’s conduct contribute to the victim’s injury or is the defendant a cause of plaintiff’s harm (the causal relation issue)? 2) was the victim protected under a general rule or principle of law against the defendant’s conduct with respect to the injury inflicted on him (the duty issue)? 3) did defendant violate a duty with respect to the victim i.e., did the defendant act unreasonably (the negligence issue)? 4) have the plaintiffs sustained damages, and what is the extent thereof? Green, The Casual Relation Issue in Negligence Law, 60 Mich.L.Rev. 543, at 546 (1962).”

Initially, it must be determined whether the defendant’s act contributed to plaintiff’s injury, i.e., was it a cause of plaintiff’s injury. This inquiry does not call for a determination of the substantial, legal or proximate cause of the harm, but simply whether the defendant played any role in causing the harm suffered. Brock v. New Orleans Public Service, Inc., 433 So.2d 1083 (La.App. 4th Cir.1983), writs denied, 437 So.2d 1147 and 437 So.2d 1148 (La.1983).

Plaintiff asserts that the Clerk of Court’s failure to list the Washington Life superior mortgage on the mortgage certificate directly influenced his decision to prematurely seize Blakely’s property, which in turn allegedly caused Blakely to file for bankruptcy, resulting in a loss of the greater portion of the indebtedness owed by Blakely to him. Although this assertion is highly conjectural, we assume arguendo that it was at least a cause of plaintiff’s injury.

I also find that the third step in the analysis can be answered in the affirmative since it is undisputed that the Clerk of Court did violate the legislatively mandated duty set forth in La.C.C. Art. 3394, which imposes civil liability for injuries resulting from incomplete mortgage certificates.

In the instant case, the crucial inquiry is whether the duty imposed on the Clerk of Court by La.C.C. Art. 3394 was intended to protect plaintiff from the particular harm which he allegedly suffered.

In discussing this step in the duty-risk analysis, the Supreme Court, in Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972), stated:

“... Foreseeability is not always a reliable guide, and certainly it is not the only criterion for determining whether there is a duty-risk relationship. Just because a risk may foreseeably arise by reason of conduct, it is not necessarily within the scope of the duty owed because of that conduct.2 Neither are all risks excluded from the scope of duty simply because they are unforeseeable.3 The ease of association of the injury with the rule relied upon, however, is always a proper inquiry. Prosser, Law of Torts (3rd ed. 1964), 282 ff.
Where the rule of law upon which a plaintiff relies for imposing a duty is based upon a statute, the court attempts to interpret legislative intent as to the risk contemplated by the legal duty, which is often a resort to the court’s own judgment of the scope of protection intended by the Legislature. Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298; Pierre v. Allstate Ins. Co., [257 La. 471, 242 So.2d 821], supra....
“All rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises. How appropriate is the rule to the facts of this controversy? This is a question that the court cannot escape.” Malone, Ruminations on Cause-In-Fact, 9 Stanford L.Rev. 60, 73 (1956).”
(Footnote omitted).

In PPG Industries, Inc. v. Bean Dredging, 447 So.2d 1058 (La.1984), the Supreme Court expanded upon its reasoning in Hill as follows:

"... Rules of conduct are designed to protect some persons under some circumstances against some risks. Malone, Ruminations on Cause-in-Fact, 9 Stan.L. Rev. 60 (1956). Policy considerations determine the reach of the rule, and there must be an ease of association between the rule of conduct, the risk of injury, and the loss sought to be recovered. Hill v. Lundin & Assoc., Inc., 260 La. 542, 256 So.2d 620 (1972). A judge, when determining whether the interest of the party seeking recovery of damages is one that falls within the intended protection of the rule of law whose violation gave rise to the damages, should consider the particular case in the terms of the moral, social and economic values involved, as well as with a view toward the ideal of justice. See Entrevia v. Hood, 427 So.2d 1146 (La.1983).”

Thus, in determining whether the duty imposed by La.C.C. Art. 3394 was intended to protect plaintiff from the injury which he sustained, one must consider the ease of association between the rule of conduct, the risk of injury and the loss sought to be recovered.

In the instant case, there is no ease of association between the rule of law which imposes a duty on the Clerk of Court to issue accurate and complete mortgage certificates and the particular risk of injury allegedly sustained by plaintiff, i.e., plaintiff’s alleged premature seizure and Blakely’s bankruptcy.

One of the primary purposes of the duty imposed by La.C.C. Art. 3394 is to protect innocent purchasers from acquiring property that is subject to prior recorded liens, encumbrances, or other charges affecting its merchantability. Dane v. Doucet Brothers Construction Co., Inc., 396 So.2d 418 (La.App. 4th Cir.1981). Another logical purpose of the duty set forth in La.C.C. Art. 3394 is for the protection of lending institutions who lend money on the faith of mortgage certificates.

In Dane, supra, the Court of Appeal affirmed the trial court’s imputation of liability upon a Clerk of Court who failed to show a prior recorded notice of lis pendens on a mortgage certificate. Because of the incomplete mortgage certificate, the plaintiff suffered damages due to his purchase of property affected by the lis pendens. Clearly in Dane, there was an ease of association between the duty of the Clerk of Court to issue an accurate mortgage certificate and the injury which the purchaser suffered in purchasing lots subject to the undisclosed lis pendens.

In conclusion, although it must be concluded that the Clerk of Court was negligent in issuing the incomplete mortgage certificate, the defendant is not liable to plaintiff. The duty violated by the Clerk did not encompass the particular risk encountered by plaintiff, i.e., that Blakely would be forced into bankruptcy and plaintiff would not receive a greater return on the indebtedness owed to him.

Since the second part of the duty-risk analysis is answered in the negative, one need not consider whether plaintiff sustained any damages. Suffice it to say that the damages allegedly sustained by plaintiff, as indicated by the author, are based on a number of highly speculative assumptions and conclusion as to the probable turn of events over the next five years.

For these reasons, I respectfully concur. 
      
      . This narrative form of testimony presented difficulty for the court to properly rule on objections to hearsay, conclusions, opinions and other testimony which would be omitted if presented in question and answer form. As a result, the record contains conclusions, opinions and hearsay. We, however, recognize the trial court’s problem in this record, and will consider it in our evaluation of the testimony.
     