author: TATE, Justice. SUMMERS, Justice

text:
    HAUGHTON ELEVATOR DIVISION, Reliance Electric Corp., Plaintiff-Appellant-Relator, v. STATE of Louisiana, Through the DIVISION OF ADMINISTRATION, Defendant-Appellee-Respondent.
    No. 62649.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.
    Dissenting Opinion March 7, 1979.

      William J. Guste, Jr., Atty. Gen., Tommy D. Teague, Staff Atty., Dept, of Justice, Baton Rouge, for defendant-respondent.
    Henry D. Salassi, Jr., Frank P. Simo-neaux, Breazeale, Sachse & Wilson, Baton Rouge, for plaintiff-appellant.
   TATE, Justice.

The public contract law requires that all public work done by a public entity shall be advertised and let by contract to the lowest responsible bidder. La.R.S. 38:2211 et seq. (1977). The issue before us is whether an awarding authority which advertises for bids must give adequate notice and a fair hearing on unfavorable charges to a bidder which the authority intends to disqualify as a non-responsible bidder; and if so, whether the disqualified bidder in this case was afforded these procedural protections under the facts of this case.

The plaintiff (low bidder, but disqualified by the agency as not responsible) sued to enjoin the letting of the contract to other bidders. The trial court’s denial of a preliminary injunction was affirmed by the court of appeal. 359 So.2d 693 (La.App. 1st Cir. 1978). We granted certiorari, 362 So.2d 576 (1978), to review the plaintiff’s contention that, as low bidder on the contracts, before the rejection of its bid it was entitled to adequate notice and a fair opportunity to rebut the charges of irresponsibility upon which the state agency based its disqualification.

The facts are undisputed that the plaintiff, Haughton Elevator Division, was the lowest bidder on nine elevator maintenance contracts advertised by the Louisiana Division of Administration in the spring of 1977. Haughton was not awarded the contracts, however, based upon a determination by the Division of Administration that Haugh-ton was not a “responsible” bidder under La.R.S. 38:2211. This disqualification was based upon allegedly unsatisfactory performance by Haughton of an earlier elevator maintenance contract covering elevators at Charity Hospital in New Orleans.

I.

The basic statutory law governing this case is contained in La.R.S. 38:2211 et seq. This enactment provides that public works projects exceeding the sum of $5,000 be advertised for bid and that the contract be awarded to the “lowest responsible bidder.”

The Louisiana jurisprudence interpreting this statute or its predecessors has long established that a low bidder may on a contract so advertised sue to set aside the award of the contract to another bidder and may enjoin the agency from the execution of such contract, where the agency arbitrarily rejected the low bid. Sternberg v. Board of Commissioners, 159 La. 360, 105 So. 372 (1925); Standard Highway Company v. Police Jury, 158 La. 294, 102 So. 819 (1925); St. Landry Lumber Company v. Mayor and Board, 155 La. 892, 99 So. 687 (1924).

The statute, insofar as it requires advertising and the obtaining of competitive bids, is a prohibitory law founded on public policy. It was enacted in the interest of the taxpaying citizen and has for its purpose their protection against contracts of public officials entered into because of favoritism and possibly involving exorbitant and extortionate prices.

See, e. g., Smith v. Town of Vinton, 216 La. 9, 43 So.2d 18, 21 (1949); Boxwell v. Dept. of Highways, 203 La. 760, 14 So.2d 627, 631 (1943).

The statute vests in the awarding authority the power and discretion to determine the responsibility of the bidder and to reject all bids if none is satisfactory, but the law does not permit the arbitrary' selection of one which is higher and the rejection of others which are lower. The discretion must be exercised in a fair and legal manner and not arbitrarily. See, e. g., St. Landry Lumber Company v. Mayor and Board, 155 La. 891, 99 So. 687 (1924).

A comprehensive discussion of Louisiana law in this area is Housing Authority of Opelousas, La. v. Pittman Construction Co., 264 F.2d 695 (U.S.Ct.App. 5th Cir. 1959). As correctly summarized by that opinion:

Louisiana follows the general rule of vesting an awarding body with discretion subject to judicial review. Courts will not substitute their judgment for the good-faith judgment of an administrative agency. Nevertheless, an awarding body’s administrative discretion must be exercised in a fair and legal manner and not arbitrarily. Consequently, the disqualification of the lowest bidder, without giving the low bidder a fair chance to disprove charges of irresponsibility, offends principles of fair play and is an arbitrary abuse of discretion inconsistent with the letter and the spirit of the Louisiana public contract law.

II.

The requirements of procedural due process apply to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701 at 2705, 33 L.Ed.2d 548 at 552 (1972).

Under the Louisiana jurisprudential interpretations, La.R.S. 38:2211 creates a right in the lowest responsible bidder to receive the advertised contract, if any is let as a consequence of the biddings.

Under the Roth approach to procedural due process, a two-part analysis is followed. First, a determination must be made as to whether there has been a deprivation of a protected liberty or property interest. If there has not been, no hearing is required. If, however, there has been such a deprivation, some type of “hearing” is required and a determination must be made as to what type on the basis of the nature of the protected private interests and the governmental interest at issue.

In federal due process cases, the type of hearing required varies according to the nature of the protected interest involved.

For instance, in the temporary suspension of high school students, due process required “at least” the rudimentary safeguards “that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” Goss v. Lopez, 419 U.S. 565, 581, 95 S.Ct. 729, 740, 42 L.Ed.2d 725.

Pre-termination due process requirements for the discharge of a non-probationary civil service employee were held to be satisfied by a prior notice of the reasons and an opportunity for the employee to respond and challenge them in a non-evidentiary “hearing,” since provision was made for a full evidentiary hearing following the termination and retroactive relief to the employee if the discharge was unjustified. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). See, to the same effect, Matthews v. Aldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (termination of social security disability benefits).

On the other hand, Goldberg v. Kelley, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) required a full-blown evidentiary-hearing prior to termination of welfare benefits, since the particular deprivation of private interest affected concerned persons on the very margin of subsistence who might be deprived of the means to live and to whom retroactive post-termination relief would be ineffectual.

In summary, the test for the type of hearing required, once it has been established that there has been or will be a deprivation of a protected interest, appears to be a balancing test. See Goldberg, cited above at 307 U.S. 262-65, 90 S.Ct. 1017-19: “ ‘[Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.’ ” 397 U.S. 263, 90 S.Ct. 1018. Stated differently, “The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be condemned to suffer grievous loss * * * depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interests in summary adjudication.” 397 U.S. 262-63, 90 S.Ct. 1017-18.

III.

The interests to be balanced in cases involving Louisiana’s public bid law are the interest of a particular bidder in receiving the contract versus the public interest in having the contract awarded expeditiously to the bidder who can most economically perform the work in a responsible manner.

We find that a reconciliation of these interests requires at least the following procedural safeguards before a low bidder is disqualified as not responsible:

(1)An awarding authority which intends to disqualify a bidder must, prior to the award of the contract, give the bidder formal notice in writing that the authority is considering disqualifying the bidder from competing for the contract. This notice should specify the reasons for the proposed disqualification. The notification should contain specific language which puts the bidder on notice that the authority is considering disqualification, not mere questions about the bidder’s past performance on state contracts or its ability to perform in the future.

(2) The bidder must be given the opportunity to respond to the charges in writing and, in all cases in which feasible, the bidder should have the opportunity to meet with officials of the awarding authority to discuss the charges against the bidder and his response thereto. This informal “hearing” does not necessarily include the right to call witnesses or cross-examine the persons who initiated the charges of irresponsibility.

(3) After this informal hearing, but before the award of the contract, the awarding authority must give the bidder formal written notice he has been disqualified from competing for the contract. This notice should list the specific reasons upon which the disqualification is based, although it may do so by reference to or incorporation of charges contained in the original notice.

(4) The “records” of this disqualification proceeding must be preserved so as to form the basis for any subsequent judicial review which might be sought by the bidder. (This post-rejection judicial review, with the retroactive relief affordable, sufficiently protects the low bidder’s private interest against arbitrary rejection of its bid in the letting of the contract to a higher bidder.)

IV.

We now turn to a consideration of whether Haughton was afforded the procedural safeguards set out above.

The facts are undisputed that Haughton was the lowest bidder on all nine contracts advertised in the spring of 1977. However, Haughton was disqualified by the awarding agency as not being a “responsible” bidder under La.R.S. 38:2211 et seq. and was denied the award of any contract.

The Division of Administration concluded that Haughton was not the lowest “responsible” bidder based on its performance of a previous elevator maintenance contract which Haughton had with the State at Charity Hospital in New Orleans. During the Charity contract, which covered approximately forty elevators, an inspection was conducted for the Department of Health and Human Resources in September, 1976 by a consulting engineer. This engineer was accompanied by representatives of the Otis Elevator Company, which was the manufacturer of the elevators and which had the maintenance contract on the elevator from the time of their installation until 1974 when Haughton won the maintenance contract for a period which (with optional renewal) ended in December 1976.

It is disputed whether Haughton had a fair opportunity to participate in the Charity inspection or to rebut the unfavorable report which resulted therefrom.

The court of appeal concluded that Haughton was informed of the inspection, was given an opportunity to participate, and was given the chance to rebut the contents of the unfavorable report. 359 So.2d at 694. As did the dissenting judge on that court, we conclude to the contrary.

Haughton was apparently informed of the inspection on the morning of the inspection. However, because a responsible party was not present in the office at the time of the notification of the inspection, Haughton did not participate in the inspection. Nevertheless, participation by Haughton in the inspection itself is not the crucial issue here.

The more important dispositive issues are whether Haughton was given adequate notice of the unfavorable report which resulted from the inspection, and whether Haughton was given a fair opportunity to rebut the findings.

The record does not indicate that the Division of Administration ever directed a copy of the consulting engineer’s report to Haughton after the September inspection. Haughton got notice of the report’s unfavorable evaluation of the service only indirectly as a result of an Otis employee who was on the inspection team giving a copy to the Director of Traffic at Charity Hospital who in turn gave a copy of the report to Haughton in October, 1976.

Upon receipt of the report, Haughton sent a letter of rebuttal to the Director of Traffic at Charity. There is no indication in the record that this letter was ever forwarded to the Division of Administration, which subsequently was the agency which disqualified Haughton. There is also no indication that Haughton ever received any formal response regarding its rebuttal.

Subsequent to the September 1976 inspection, the original Haughton contract on the Charity elevators expired. Through agreement with the Division of Administration, its service contract was extended until June 30,1977. (On this date, new contracts were to be entered into for elevator services at Charity as well as the other eight contracts in dispute here.) Also, in January, 1977 the Division of Administration awarded Haughton a service contract on the elevators at the Charity Hospital School of Nursing for the period ending June 30, 1977.

From May 24, 1977 through June 21,1977 bids on nine public building elevator maintenance and service contracts were opened. Haughton was the low bidder on all of the contracts, including those for Charity Hospital and the School of Nursing.

In June, 1977 the consulting engineer for the Division of Administration conducted another inspection of the elevators at Charity. On July 1, 1977, a meeting was held in the office of the Division of Administration to discuss the awarding of the nine contracts.

A representative of Haughton was present for the last part of this meeting, but he had no prior notice of the meeting or its purpose and no opportunity to rebut the allegations against his firm prior to the agency decision to disqualify Haughton. At this meeting, the Haughton representative was informed that Haughton was disqualified on all nine contracts based on its poor service on the Charity elevators. This disqualification came only after it had been determined that Haughton was the low bidder on all nine of the contracts to be let for the 1977-1978 fiscal year.

V.

We find that Haughton did not receive fair notice of the grounds for disqualification prior to the agency’s decision to disqualify it, nor was it given a fair opportunity to rebut the unfavorable report.

At no time prior to the actual disqualification on July 1, 1977 was Haughton informed that the Division of Administration was considering that it be disqualified from bidding on any elevator service contracts. Haughton did receive a copy of the consulting engineer’s September report, which pointed out alleged deficiencies in the service being rendered by Haughton at Charity; but this report contained no language which put Haughton on notice that the Division of Administration was considering disqualification of Haughton from competing on future contracts.

Even if the second-hand information received by Haughton were considered adequate notice of the possible disqualification, there is no indication that Haughton had a fair opportunity to respond to the charges of irresponsibility. Haughton did send a rebuttal letter to the Director of Traffic at Charity Hospital that pointed out the reasons for Haughton’s belief that it was in good faith compliance with its contractual obligation; but there is no indication that this rebuttal letter was ever forwarded to the Division of Administration, or, more importantly, whether the Division of Administration considered this rebuttal letter in reaching its conclusion to disqualify Haughton.

As stated by the dissenting opinion in the court of appeal, after deficiencies were found in the September inspection, Haugh-ton’s response was received without comment or further action. Additional contracts were awarded to Haughton. Through the administrative inaction after the September report and the awarding of further contracts, Haughton was reasonably led to believe that it had satisfactorily explained its performance at Charity Hospital. However, it was informed only after it had submitted the lowest bids that it was disqualified from receiving future contracts.

We conclude, therefore, that Haughton was not afforded the minimum procedural due process required to protect its statutory property rights and that the previous courts erred in refusing to enjoin the defendant agency from awarding the contracts to any other bidder than Haughton, the low bidder.

VI.

Under the jurisprudence (see I above), the low bidder is entitled to appropriate relief if his low bid is arbitrarily rejected and the contract is awarded to another bidder. The relief awarded has included an injunction against the agency’s entering into a contract with another bidder or the annulment of the contract awarded to the other bidder.

Certain factors in the present case have given us some concern as to the appropriate decree. These mainly arise from the silence of the record as to what occurred after the hearing on the rule for preliminary injunction held in July, 1977, after which a preliminary injunction was denied. According to the record, at that time the agency had not awarded the contracts, and each contract was being operated on a month to month basis until the courts determined the issue. Tr. 62.

However, the contracts were to be let for the fiscal year beginning July 1, 1977; this period has now expired.

In spite of the possible suggestion that the issue is moot, we ultimately determine that on the basis of the present record, the injunction should issue, with its consequent holding that the agency was not authorized to enter into contracts with other bidders than Haughton, the low bidder. Since such other contracts (if entered into) are an illegal deprivation of the plaintiff Haughton’s property right, we are unable to say that Haughton is not entitled to some relief.

This is especially so, since the action sought further relief on the merits, whereas the interlocutory hearing concerned only a preliminary injunction sought to preserve the status quo until the trial on the merits. In its interlocutory ruling which denied the preliminary injunction, the trial court specifically noted that its decision was not intended to dispose of the litigation on its merits (see footnote 1).

Here, for instance, although the prayer sought only injunctive relief as the final judgment on the merits (i. e., as well as the interlocutory relief sought by way of temporary restraining order and preliminary injunction), the petition might be supplemented to claim damages from the awarding authority, if it wrongfully awarded the contract to another bidder, or even perhaps from a higher bidder who wrongfully received the contract.

Under the record before us, therefore, Haughton is entitled to the temporary in-junctive relief prayed for, with what consequence as the law determines is appropriate under the facts which may have developed subsequent to the trial on the rule below. To do otherwise, would foreclose Haughton from obtaining its day in court as to appropriate relief it may obtain, if any, should the contract have been wrongfully awarded to another bidder despite its own low bid.

Decree

For the foregoing reasons, the judgments of the previous courts denying the plaintiff a preliminary injunction are reversed, and the case is remanded to the district court with instructions that it issue a preliminary injunction restraining, enjoining, and prohibiting the defendant Division of Administration or any person acting on its behalf from awarding the elevator and service contracts at issue to any person, firm, or corporation other than the plaintiff Haughton Elevator Division, the low bidder on such contracts. The defendant is to pay all costs of these preliminary-injunction proceedings in accordance with law; all other costs to await assessment on final termination of this litigation.

REVERSED AND REMANDED.

SUMMERS, C. J., dissents and assigns reasons.

BLANCHE, J., not participating.

SUMMERS, Justice

(dissenting).

The question here is whether the Division of Administration of the State of Louisiana reasonably and fairly rejected the low bids of Haughton Elevator Division, Reliance Electric Corp., submitted in response to advertisement in accordance with the Louisiana Public Contracts Law.

The pertinent part of the Public Contracts Law provided at that time that all public work to be done by any public corporation or political subdivision of the state (exceeding certain sums) to be paid out of public funds shall be advertised and let by contract to the “lowest responsible bidder”, who has bid according to the contract. La. Rev.Stat. 38:2211, now 38:2212.

Haughton has sued the State of Louisiana, Division of Administration seeking an injunction to restrain the Division of Administration from awarding certain elevator maintenance and service contracts to others. It is alleged that as a result of advertisements for bids Haughton was the lowest bidder, and the action of the Division of Administration in disqualifying Haugh-ton was contrary to the Public Contracts Law because Haughton was the lowest responsible bidder.

On the strength of these allegations the trial judge issued a temporary restraining order enjoining and prohibiting the awarding of the elevator maintenance and service contracts in question. Then, upon trial of the rule for a preliminary injunction, the temporary restraining order was dissolved and the trial judge denied a preliminary injunction. On Haughton’s appeal to the First Circuit the judgment of the trial court was affirmed. Certiorari was granted on Haughton’s application. 362 So.2d 576.

Haughton is engaged in the business of manufacturing, installing and servicing passenger and freight elevators and escalators. Prior to June 25, 1974 the State advertised for bids on an elevator maintenance and service contract for 44 elevators at Charity Hospital in New Orleans. These elevators had been manufactured and installed by Otis Elevator Company and, until then, had been maintained and serviced by Otis. At the formal bid opening held on June 25, 1974 by the Division of Administration Haughton was the lowest bidder, and the contract was awarded to Haughton on December 16, 1974 for a term of one year with an option to renew for one year at the discretion of the Division of Administration if the services were satisfactory. After one year the State exercised its option and renewed the contract for an additional year through December 1976. In the meantime Haughton was awarded the elevator maintenance service contract on the Nurses’ Home.

Prior to June 1977 the Division of Administration advertised for bids for the elevator maintenance and service contract for Charity Hospital of Louisiana in New Orleans and for the School of Nursing of Charity Hospital. The contracts were for the fiscal year beginning July 1,1977. When the bids were opened on June 21, 1977 Haughton was the low bidder on the hospital contract. Otis Elevator was the only other bidder. Haughton was the only bidder on the School of Nursing contract. Haughton also bid on a number of other elevator maintenance and service contracts for the fiscal year beginning July 1, 1977.

On July 1, 1977 Haughton’s representative was advised that its performance under the Charity Hospital contract had been unsatisfactory and Haughton was disqualified from all contracts presently pending in which Haughton was low bidder. All Haughton’s contracts were then cancelled.

Sometime in 1976, prior to the December 1976 expiration of Haughton’s contract, the State decided that a statewide survey of all elevator maintenance contracts and problems was necessary. While this survey was in progress, all elevator maintenance contracts were extended on a month-to-month basis, including Haughton’s Charity Hospital contract.

To carry out this survey Lee Fournet, an engineer with the Department of Health and Human Resources, was directed by the Division of Administration to inspect every elevator in the state system. The purpose of the survey was to determine the quality of elevator maintenance under existing elevator maintenance contracts. To accomplish this assignment Fournet enlisted the assistance of Otis Elevator Company representatives and representatives of Tri State Elevator Company. In connection with the survey Fournet prepared a report in writing.

A written report of an on-site visit to Charity Hospital on September 1, 1976 was introduced into evidence by the' State without objection by Haughton. Photographs taken of the elevators and its components and appurtenances involved in the maintenance contract are also in evidence without objection.

Generally, the report set forth, all equipment, including hoistways, pits, machine rooms and cars were dirty. Hoist ropes were rusty and some needed replacement. Governor ropes were extremely oily and covered with dirt and lint. Brake and governor pins were rusted. The governor for elevator No. 8 was frozen, preventing the fly-weights from moving and rendering the safety inoperative. All main elevator hoist-way doors are out of proper adjustment and do not achieve full opening. Many doors create noises because they rattle. Cars do not level properly (either too high or too low). Door operators have worn parts, dirty and rusted chains, leaking gear boxes and worn deflector sheaves; generally they are improperly adjusted. Several door operator supports are broken or had missing bolts.

There were many frayed control wires and leads on controllers and selectors. Wiring is improperly run on controllers, selectors, and signal panels. Numerous exciter and generator sets have severe grooving or communicators which will require turning and undercutting to correct in many cases, especially in the Nurses’ Home. The few wiring diagrams found at the building do not match the diagram numbers stamped on the data plates. Most machine rooms were void of spare parts as outlined in the contract specifications. Several car floors were worn and should be replaced. Door safety edges, on several cars, are badly worn and should be replaced. Signs of excessive oil leaks are evident in both the geared and gearless machines. Several field coils on main elevator motors are loose.

Insulation for the field coil is missing from the elevators in the Nurses’ Home.

All elevators are tagged with safety tags dated from November 1969 to December 1969, indicating that these units have not been safety tested according to Section 1001 of the Safety Code for Elevators and according to paragraph (f) page 4 of specifications.

Most of the selectors have cotter pins and washers missing, allowing excessive movement of various parts. Some selector tapes appeared to be rusting. Several switch boxes were uncovered and almost every car had switch collars missing in car control panels.

In the outpatient clinic, the car top hatches were removed. Ark deflectors were missing on the control board and one car was inoperative.

The freight elevator in the warehouse was in deplorable condition, most doors had been malfunctioning or were inoperative for at least three weeks prior to the inspection date. The door operator chain was missing on two landings, although this elevator is required to be serviced once a week. To a large extent, the photographs in evidence support the findings in the report.

The report concluded that the inspection reflected neglect of service and maintenance and that major components had been allowed to deteriorate. Safety checks had not been made within the past seven years. The safety of the elevators at the time was questionable.

The report recommended that the elevators be repaired and placed under strict service in full compliance with the specifications and the Elevator Code.

Every effort should be made to restore the elevators and maintain them in “like new” condition. A multi-story operational hospital like Charity must depend upon elevators for its delivery system of patients, food, medical supplies, linen, staff and other essentials, the report concluded.

Upon receipt of a copy of the report Haughton replied on November 11, 1976 that the conditions pointed out were long existing and inherent with elevators of 20 to 40 years vintage. Most of the deficiencies pointed out in the report were present when Haughton took over the service, and there had been no deterioration, according to Haughton.

At the time of this written response, Haughton complained that Fournet was assisted by three employees of Otis Elevator Company, Haughton competitors. Complaint was made also that Otis was provided with a copy of the report and Haughton was not. Finally, Haughton charged that Fournet’s report was biased in favor of Otis.

Otherwise Haughton answered the report, conceding that cleanliness could be improved and asserting, generally, that the deficiencies were present when they became responsible for maintenance and service. Otis, their predecessor who had the maintenance and service contract and who had manufactured and installed the elevators, was charged with the responsibility for the deficiencies.

As stated in Haughton’s brief the sole issue to be decided is whether the action of the State was arbitrary in determining that Haughton was not “the lowest responsible bidder” within the contemplation of Section 2211 of Title 38 of the Revised Statutes.

Although it is Haughton’s position that the sufficiency of the evidence to support Haughton’s disqualification is not at issue, I am of the opinion it does present an issue and this subject will be discussed hereafter.

It was error Haughton argues, under procedures applicable to the Public Contracts Laws, for the State through its administrative agency, the Division of Administration, to fail to give Haughton adequate notice and an opportunity to rebut the unfavorable charges against them. As lowest bidder Haughton contends it was entitled to these considerations prior to being disqualified.

Haughton contends that it should have been notified of the complaints from Charity Hospital prior to the morning of the inspection. This argument is without merit. I believe the State is entitled to make unannounced inspections of contract performance without notifying the party who is responsible for performance. There is no reason to advise the contractor in advance in order that he may, as some would be prone to do, attempt to cover up the deficiencies which have existed. The State had the right to conduct what Haughton terms a clandestine investigation, and there is no statute which denies this right. If Haugh-ton’s performance had been according to its contract obligations I cannot see why they would object to a surprise inspection.

Nor do I believe, as Haughton argues, that the State improperly enlisted the aid of Otis representatives in its investigation. Because the elevators had been manufactured and installed by Otis, they were the logical people to inspect them and suggest the quality of the maintenance and service under Haughton’s contract. Any person qualified to inspect the elevators would in all probability be a competitor of Haughton. There is no evidence in this record which would impugn the credibility of Otis or support a claim of undue influence on the part of their representatives. The charge of bias is unfounded.

Another objection to the procedure adopted by the Division of Administration is advanced by Haughton. They properly represent that the Division of Administration did not furnish them with a copy of Four-net’s report of his on the site inspection of Charity Hospital. A copy of the report submitted some time prior to October 1976 was in the hands of Haughton’s representative prior to November 11, 1976 for on that day Haughton submitted its lengthy and detailed response to the findings in Four-net’s report.

In all fairness the Division of Administration should have furnished Haughton with a copy. However, a copy was obtained by Haughton from its contact at Charity Hospital, who had received a copy from an Otis representative. The copy of the report was received in ample time before the date for awarding contracts to enable Haughton to justify its position, which it attempted to do. The justification was considered inadequate by the Division of Administration and the record supports its determination. The deficiencies noted in Fournet’s report were still present at the time Haughton was declared disqualified on July 1, 1977.

As the contentions are understood, Haughton also complains that at the time its representative was called into the meeting on July 1, 1977 when the decision was made to disqualify them, their representative was faced with a “fait accompli.”

Haughton had from October 1976 until July 1,1977 to remedy the deficiencies in its contract performance and to convince the awarding authorities of its responsibility as a bidder on the contract for the fiscal year 1977 by improving its performance on the existing contract. Their complaint that their representative was not permitted to advance their position on July 1,1977 comes too late.

A public body has the right to take into consideration a number of factors in deciding who is the “lowest responsible bidder.” The term “responsible bidder” is not limited in its meaning to financial resources and ability. What the public wants is quality performance of public contracts. Public authorities, therefore, are invested with discretionary powers to pass upon the honesty and integrity of the bidder, qualities which are essential to the faithful performance of the contract; upon the bidder’s skill and business judgment; upon his experience and facilities for carrying out the contract; previous conduct under other contracts; and the quality of previous work; as well as the bidder’s pecuniary ability. When that discretion is properly exercised the courts will not interfere. Housing Authority of Opelousas, La. v. Pittman Construction Co., 264 F.2d 695 (5th Cir. 1959); 64 Am.Jur.2d, Public Works and Contracts, § 70.

The Public Contracts Law of Louisiana is prohibitory in character. Its enactment is designed to advance the interest of the taxpaying citizen. Smith v. Town of Vinton, 216 La. 9, 43 So.2d 18 (1949). The statute means that the lowest bidder must have the contract if he is a responsible bidder. Highway Co. v. Police Jury, 158 La. 294, 103 So. 819 (1925). This court stated the principle applicable to the case at bar in St. Landry Lumber Co. v. Mayor and Board, 155 La. 892, 99 So. 687 (1924):

“We agree with counsel for defendant that the responsibility of the bidder is to be determined, not alone by his financial ability to perform the work, but that his experience and reputation for satisfactory work are of equal importance.”

Because of this last quoted principle, I find that, contrary to Haughton’s position, the sufficiency of the evidence establishing the grounds for its disqualification is relevant and material. That evidence has to do with the State’s experience with Haughton on other contracts, particularly the maintenance and service of Charity Hospital. That experience has an important bearing on the responsibility of Haughton’s bid. It was to avoid another like experience that the State disqualified Haughton and, I agree, properly so.

There has been no abuse of the discretion vested in the State in disqualifying Haugh-ton.

I respectfully dissent.

      . The trial court stated that its denial of the preliminary injunction “has nothing to do with any subsequent trial on the merits of the case.”

      . In brief in this court, the state agency has indicated its intention to award the nine contracts to the second lowest bidder.

      . For example, if within the proper exercise of its discretion the awarding authority determines that no contract will be let, under the terms of the statute the bidders have no protected interest in the award of a contract that requires notice, hearing, and reasons for rejection.

      . For a general discussion of the right to a hearing, see Davis, Administrative Law of the Seventies, Chapter 7, (1976).

      . It should be noted that Otis would subsequently be in competition with Haughton for renewal of the Charity contracts as well as for the other contracts awarded for the fiscal year 1977-1978 which are the subject of this dispute. We do not today pass on the serious issue of the propriety of utilizing the services of a competing bidder to investigate possible irregularities in the service provided by the bidder sought to be disqualified.

      . A preliminary injunction is a procedural device interlocutory in nature designed to preserve the existing status pending a trial of the issues on the merits of the case, La.C.Civ.P. art. 3601. Schwegmann Brothers Giant Super Markets v. Louisiana Milk Commission, 290 So.2d 312 (La.1974), Ridge Park v. Police Jury of Jefferson Parish, 210 La. 351, 27 So.2d 128 (1946).
      Of course, there is often no need for a subsequent trial on the merits after there has been a full hearing on the issue when summary rule for the preliminary injunction is tried. However, unless the parties have agreed otherwise, see State ex rel. Guste v. City of New Orleans, 363 So.2d 678 (La. 1978), cf. Borgnemouth Realty Co. v. Gulf Soap Corporation, 211 La. 255, 29 So.2d 841 (1947), the case is determined on its merits only after a full trial under ordinary process. Schwegmann Brothers Giant Super Markets v. Louisiana Milk Commission, 290 So.2d 312 (La.1974); Baton Rouge Cigarette Service, Inc. v. Bloomenstiel, 88 So.2d 742 (La. App. 1st Cir. 1956).

      . See La.C.Civ.P. art. 1155: “The court, on motion of a party, upon reasonable notice and upon such terms as are just, may permit mover to file a supplemental petition or answer setting forth items of damage, causes of action or defenses which have become exigible since the date of filing the original petition or answer, and which are related to or connected with the causes of action or defenses asserted therein.”

      . A private person is liable for damages (here, apparently the loss of profits) to repair the injury caused by the breach of a duty owed by contract, La.Civ.C. art. 1934, or by his fault for which he is delictually responsible, La.Civ.C. art. 2315. By the 1974 state constitution, a governmental entity is not immune “from suit and liability in contract or for injury to person or property.” Art. 12, Section 10. At least arguably, the wrongful conduct of its employees makes the state liable for damages in the same manner as would be a private corporation for the wrongful acts of its employees which violated a duty owed to a person thereby injured.

      .It appears doubtful to us that a higher bidder should be held liable for damages, if the contract is improperly awarded to it by a governmental agency (unless perhaps it participated in the commission of the wrongful act, La. Civ.C. art. 2324).
      Nevertheless, in the single incident we could find where after the agency had improperly rejected a lower bid, the contract was actually performed by the higher bidder, the contract was nevertheless annulled, Housing Authority of Opelousas v. Pittman Construction Co., 264 F.2d 665 (U.S.Ct.App. 5th Cir. 1959), and the successful (higher) bidder was denied recovery on the contract price and allowed only costs incurred by him, without any allowance of profits. Marquette v. Housing Authority of Opelousas, 157 So.2d 374 (La.App. 3d Cir. 1962). There, however (unlike the present situation), the higher bidder was a party to the original suit which declared the contract null as awarded in violation of the public contract law.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    LAFOURCHE TELEPHONE CO., INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 62708.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.
    Marshall B. Brinkley, Baton Rouge, for defendant-appellant.
    John Schwab, Baton Rouge, for plaintiff-appellee.
   CALOGERO, Justice.

The Louisiana Public Service Commission appeals a judgment of the Nineteenth Judicial District Court in favor of Lafourche Telephone Company, Incorporated (LATEL-CO). The commission had denied LATEL-CO a rate increase. The district court reversed that order and approved the increase (and the rates) proposed by LATELCO. For reasons to be expressed hereafter we vacate the judgment of the district court and remand the matter to the Public Service Commission for additional proceedings.

LATELCO is a small, independent telephone company (i. e. not affiliated with the Bell system) licensed to operate within a service area in Jefferson and Lafourche parishes. It serves approximately 7500 customers, 6500 of which are residential. The company, which is family owned and operated (99.8% of its stock and all of its executive offices are held by family members), employs 117 persons.

On June 2,1976 LATELCO applied to the Louisiana Public Service Commission for a rate increase. Without requesting a specific dollar amount, LATELCO asked that the rates and charges be increased so that “the revenues produced will result in a just and reasonable return. . . . ” The application was based on a test year ending April 30,1976. On February 7,1977 the Commission issued an order denying LATELCO’s application giving the following reasons for the denial:

“(1) Lafourche Telephone Company, Inc., is a closely held corporation with five major shareholders holding 99.8% of the stock. These shareholders are all listed as corporate officers in the Company’s 1975 Federal income tax return and such return showed that such officers received salaries totaling over $180,000. In addition, Mr. William Ditto, husband of Tanya Brady Ditto (23.1% equity owner) is listed as the Executive Vice President with a 1975 salary over $50,000.
(2) This Company is somewhat unique in that its Debt/Equity ratio is 9 to 1 and extreme leverage is involved particularly where salaries are extremely generous. The return on equity for the fiscal year ended April 30, 1976 was 25.27% if salaries are attributed to equity. It is the opinion of this Commission that the Company’s return on equity, considering all things, is adequate.”

LATELCO’s application for rehearing was granted, but the Commission on June 21, 1977 affirmed its original denial of the rate increase. LATELCO then appealed the Commission’s order and after proceedings were held, the district court rendered a written opinion.

The district court disagreed and properly so, with the Commission’s seemingly arbitrary inclusion as return on equity ownership of the entire salaries of six stockholders who are also corporate officer-executives, and with the Commission’s unarticu-lated offset of these ostensibly “generous” salaries for a specific return on rate base.

The district court concluded that:

1) The finding of the Commission that all of the salaries, i. e. $230,000, should be attributable to equity earnings was “palpably unfair and in stark contrast with the evidence.” (The trial judge would have found fully earned $180,000, excluding only the full $27,552 annual earnings of the retired co-founder Mrs. Irene Brady and $22,048, half of the earnings of the President and co-founder John Brady, Sr. who retired during the test year.) 2) $180,000 of the executive salaries should properly have been allowed as salary expense in the computation of return on equity,
3) “[A] closely owned family utility such as LATELCO does not require quite the same rate of return on equity as do large utilities which have to compete in the open market for financing,”
4) Small companies “must have some encouragement where the company, as has LATELCO, has demonstrated good management practices and efficiency,”
5) LATELCO’s overall embedded interest on debt has risen sharply in the past few years and it is no longer able to obtain 2% financing from REA,
6) The current cost of money for improvements is 7%,
7) The proposed rates of $11.89 for residential service and $24.29 for business service will prompt a 5.985% return on equity based upon operations ending April 30, 1977 [the test year ended April 30, 1976],
8) 5.985% return is a just rate of return on equity,
9) These increased rates will be compatible with the present rates of South Central Bell, whose service area is immediately adjoining that of LATELCO, at Lockport.

Accordingly the district court approved the proposed rates of LATELCO as submitted.

After granting a rehearing the district court reinstated its original determination and judgment but contended that it had erred in its original written reasons by stating that LATELCO would receive 5.985% return on equity and by declaring that such is a fair and just rate of return on equity. The court declared that it meant to say that the 5.985% figure was in fact the overall rate of return which includes the cost of money and return on equity. The court also recognized that the Commission was correct that under present law plant under construction (or CWIP, construction work in progress) should be excluded from the rate base for the test year, citing South Central Bell v. Louisiana Public Service Commission, 352 So.2d 964 (La.1977) and the district court decision in Gulf States Utility v. Louisiana Public Service Commission, which was affirmed in pertinent part by this Court at 364 So.2d 1266 (La.1978). Nonetheless the court felt it would be grossly unfair to exclude this CWIP from the rate base and from computation of the overall rate of return where the record before the commission indicated that the work in progress had actually been completed and put into operation by April 30, 1977. The court thus persisted in computing the rate of return on a rate base ($13,712,309) which included CWIP.

It is of course true that the orders of the Commission are entitled to great weight and are not to be overturned unless shown to be arbitrary capricious or abusive of authority. South Central Bell Telephone v. Louisiana Public Service Commission, supra; Louisiana Oilfields Carriers Association v. Louisiana Public Service Commission, 281 So.2d 698 (La.1973). Nonetheless the Commission does appear arbitrary in denying LATELCO’s proposed rate increase for the reasons given, particularly inasmuch as most if not all of the corporate executives’ salaries appear to have been earned.

There are, however, equally valid reasons why we do not accept the determination made by the district court. Chief among these reasons are the district court’s improper employment of a rate base including CWIP, and, more significantly, the court’s selection of 5.985% return on rate base, which is excessive.

Although, as we indicated earlier, the district court acknowledged that the cost of CWIP should be excluded from the rate base, the court nevertheless included the cost of construction work in progress during the 1976 test year for the stated reason that inflation and administrative and court delays make test year figures obsolete by the time the rate increase is to be put into effect. Although this Court and the Commission have recognized that a utility may be entitled to a rate increase because of attrition, this Court has not heretofore accepted the inclusion of impermissible costs in the rate base to offset the effects of inflation and delay. Compare South Central Bell v. Louisiana Public Service Commission, supra.

With respect to the trial court’s selected return on rate base, the very figure, 5.985%, which the district court first stated should be the proper “rate of return on equity,” then stated it was meant to be the fair rate of return on rate base, was first introduced into the case by LATELCO as simply the cost of long term debt excluding outstanding 2% REA financed debt.

If LATELCO is allowed a 5.985% rate of return, the return on equity based on its capital structure as of April 30, 1976 would be 26.65%, as is evident from the following analysis:

Amount Ratio Cost Return
Long term debt $12,339,310 89.85% 3.65% 3.280%
Equity 1.394.309 10.15% 26.65% 2.705%
Totals $13,733,619 100.00% 5.985%

That a 26.65% return on equity is imper-missibly high, whether for a larger company which raises capital by stock sales on the open market or for a small company like LATELCO which does not, is self evident.

Because Lafourche Telephone Company is a small, independent, family-owned corporation whose capital structure is 89.85% funded by long term debt, over one half of which is 2% REA financing, and whose stockholder equity underwrites only 10.15% of that capital structure, it and companies so funded are simply not entitled to the same rate of return as a utility which must do its own financing in the open market. LaSalle Telephone Company v. Louisiana Public Service Commission, 245 La. 99, 157 So.2d 455 (1963).

Even if LATELCO were allowed the same 10V2% return on equity which was accorded Baton Rouge Waterworks in Baton Rouge Waterworks Company v. Louisiana Public Service Commission, 342 So.2d 609 (La.1977) [note that 10V2% to 11V2% return on equity was allowed in South Central Bell v. Louisiana Public Service Commission, supra] and if the trial court’s determination that $180,000 of the executive salaries should properly be expensed rather than treated as equity return were accepted, the composite return, or return on rate base, would have to be only 4.35% not 5.98%. On that basis, a rate increase of $223,134, not $625,793 or $757,244 would be required to generate additional revenues.

Although it would not be inappropriate for this Court to end this litigation by determining a proper and reasonable rate of return and fixing allowable rates to LA-TELCO designed to generate a moderate increase in revenues, we are constrained not to do so for several reasons:

1) The case in any event would have to be remanded to the commission to fix the monthly residential and commercial telephone rates necessary to generate whatever additional revenues were to be allowed,

2) Some of the underlying data upon which we would be required to rely in fixing these rates is essentially unverified, see R.S. 45:1194, and

3) The Public Service Commission is better equipped than this Court to make the determination as to the rate structure which should be placed in effect.

Decree

For these reasons the judgment of the district court is vacated and set aside and the case remanded to the Louisiana Public Service Commission for further proceedings in connection with Lafourche Telephone Company’s application for a rate increase.

JUDGMENT OF THE DISTRICT COURT VACATED; CASE REMANDED TO THE LOUISIANA PUBLIC SERVICE COMMISSION.

SUMMERS, J., concurs.

       Blanche, J., not participating.

      . The amount of the rate increase approved by the district court is not clear. The original judgment and the judgment on rehearing simply approved “the proposed rates” of LATEL-CO. The reasons for judgment approved proposed rates — $11.89 per month residential service and $24.29 business service — which when applied to a given set of subscriber figures result according to plaintiffs brief in the trial court in projected additional revenues of $625,-793. Yet those same reasons also approved a 5.985% overall return on a $13,712,309 rate base, an ostensible increase of $757,244 (the latter figure results from multiplying the rate base times 5.985 less actual net income of April 30, 1977, the projected year which the trial court applied, with adjustment for the tax factor).

      . Rural Electrification Administration, a federal agency within the Department of Agriculture.

      . In brief the Commission contends that the district court also included in the rate base deferred income taxes and customer deposits and argues that because these funds are not supplied by the investors, the shareholders are not entitled to earn a return on them. Because we vacate the district court judgment and remand this case to the Commission, we need not pass on this issue.

       [“Cost” as used here means required investment return.]

      . There is no reason to exclude the 2% debt. It exists, and represents more than one-half of the outstanding long term debt of the company. Including the 2% debt the cost of all debt is 3.65%.

      . This analysis is based on the capital structure of LATELCO presented by the Public Service Commission in its original brief. For an explanation of this formula and the calculations involved in determining utilities’ revenue requirements see the discussion under “elements of rate making” in South Central Bell Telephone v. Louisiana Public Service Commission, supra at p. 967 et seq.

      .Following a court request at oral argument the parties made a joint submission showing revenue requirements necessary to produce 10‘/2% on equity which included the following pertinent information (note that employed here are 1) 10.5% return on equity, 2) a net rate base which excludes construction work in progress (CWIP), customer deposits and deferred income taxes, 3) a net rate base from the test year (ending April 30, 1976) rather than a projected year (ending April 30, 1977) and 4) all but $49,600 of the $230,000 in executive salaries are allowed as proper expenses):

        Amount Ratio Cost Composite Return
      $12,339,310 89.85% 3.65% Long term debt 3.28%
      1.394.309 10,15% 10.50% $13,733,619 100.00% Equity Totals L-07.% 4.35%
      April 30. 1976
      Net Rate Base $11,073,898
      Indicated Return 4,3.5%,
      Net Operating Income $ 481,715
      Actual net income before adjustment for excessive salaries $ 321,106
      Add: “Excessive” salaries 49.600
      Adjusted Net Operating Income $ 370,706
      Deficiency After Tax $ 111,009
      Gross Deficiency Before Tax $ 223,134


author: PER CURIAM.

text:
    STATE of Louisiana v. Darrell J. SONGY, Jr.
    No. 62415.
    Supreme Court of Louisiana.
    Feb. 9, 1979.

      Louis J. Cosenza, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Steve Little, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Defendant Darrell J. Songy, Jr. was charged by bill of information with aggravated crime against nature in violation of La.R.S. 14:89.1. On February 13, 1978, defendant entered a plea of guilty as charged. Subsequently, he was sentenced to serve four (4) years at hard labor in the custody of the Department of Corrections. At the time it was imposed defendant complained that the sentence was unconstitutionally excessive and objected to the refusal of the trial court to permit him to traverse the information contained in the pre-sentence report. Defendant now appeals to this Court reasserting these arguments.

In State v. Sepulvado, 367 So.2d 762, a majority of this Court, interpreting Article 1, Section 20 of the Louisiana Constitution of 1974, held that “the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this Court on appellate review of his conviction.” However, after considering the factors listed in La.C.Cr.P. art. 894.1, the “appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive,” State v. Sepulvado, supra, we are unable to conclude that the sentence imposed in this case is unconstitutional. The facts, as revealed in the pre-sentence report, support the trial court’s decision to sentence defendant to four years at hard labor for an offense punishable by up to fifteen years’ imprisonment.

We are concerned, however, with the denial of defendant’s motion to traverse the allegations contained in the pre-sen-tence report. Where a defendant alleges that pre-sentence information is materially and prejudicially false, the court must permit him access to the report, subject to expungement of irrelevant or confidential material, and give him an opportunity to dispute any substantially significant allegations. State v. Bosworth, 360 So.2d 173 (La.1978); State v. Segers, 357 So.2d 1 (La.1978); State v. Underwood, 353 So.2d 1013 (La.1977). In the instant case, defense counsel was permitted access to the report, but was not permitted to contravene the material information contained therein. For this reason, we must vacate defendant’s sentence and remand the case to the district court where defendant is to be given an opportunity to explain or deny adverse information in the pre-sentence report which is prejudicially false or misleading.

Accordingly, defendant’s sentence is vacated and set aside and the case is remanded to the district court for further proceedings consistent with this opinion.

      . The pre-sentence report was made a part of the appellate record by agreement of defendant and the state.


text:
    STATE of Louisiana v. Carl H. HURST
    No. 63034.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
    Dan J. Grady, III, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Blaine B. Adkins, Asst. Dist. Atty., for plaintiff-respondent.
   PER CURIAM.

Defendant Carl H. Hurst was charged by bill of information with driving while intoxicated in violation of La.R.S. 14:98. On August 23, 1978, he was tried before a judge, found guilty as charged, and sentenced to pay a fine of three hundred dollars plus court costs or to spend sixty days in the parish prison in default of payment. Upon defendant’s application we granted writs to review the legality of the guilty verdict in light of the court’s ruling earlier in the trial granting a motion for a judgment of acquittal. 363 So.2d 219 (La.1978).

Defendant contends that at the moment the trial court ruled “the motion for directed verdict is granted” his jeopardy ended and that any further proceedings against him constituted a violation of the double jeopardy prohibitions contained in the 5th "Amendment to the United States Constitution and Article 1, Section 15 of the Louisiana Constitution of 1974. Finding merit in this contention, we conclude that defendant’s conviction and sentence must be reversed and a judgment of acquittal entered in his favor.

On August 23, 1978, defendant was brought before the district court for trial. The state presented various witnesses, introduced a laboratory report, and rested. Defense counsel then moved for a verdict of acquittal arguing that the state had failed to establish that the offense occurred in Ouachita Parish and that there was no evidence that defendant actually operated the vehicle while intoxicated. There followed argument by both the prosecuting attorney and defense counsel. The trial court then stated that operation of the vehicle had been established, but that he was going to take a recess to consult a parish map. When the judge returned he requested that the testimony of one witness be replayed. He then ruled as follows:

The Court has, during the recess, examined a parish map of both Morehouse and Ouachita Parishes and finds that there is a Bartholomew Drive located in both parishes. The motion for directed verdict is granted.

(emphasis added).

Immediately following the granting of the motion, the prosecutor queried: “Your Honor, was it not testified that this was at the intersection of Bartholomew Drive and Sterlington Road?” Although defense counsel interrupted stating that “the Court has already ruled” and “an acquittal is in effect at this point,” the trial judge and the prosecuting attorney continued to discuss the matter with the judge dismissing defense counsel’s complaint:

I didn’t allow argument in this, I went ahead and ruled. Now if I have overlooked something then I think that it’s within my power to review my decision if I mistakenly left out something that is in and on the record.

The testimony of another witness was then played back. At its conclusion, the judge stated: “I apologize to the state for missing that. The motion for directed verdict is denied.” Although defense counsel objected to the continuation of the trial on grounds of double jeopardy, the trial continued with presentation of evidence by the defense and by the state in rebuttal. The trial court then found defendant guilty as charged.

Both the United States and the Louisiana Constitutions include prohibitions against placing an accused twice in jeopardy. U.S.Const. Amend. V; La.Const. Art. 1, § 15 (1974). This guarantee against double jeopardy protects against a second prosecution for the same offense after acquittal. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); State v. Williams, 359 So.2d 115 (La.1978); State v. Baskin, 301 So.2d 313 (La.1974). Thus it is well settled that “a verdict of acquittal is final, ending a defendant’s jeopardy, and even when ‘not followed by any judgment, is a bar to a subsequent prosecution for the same offense.’ ” Green v. United States, supra, quoting United States v. Ball, 163 U.S. 622, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). See also Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1903).

In accordance with this fundamental principle of criminal law, the government cannot secure a new trial by means of an appeal even where an acquittal was clearly erroneous. Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); Green v. United States, supra; United States v. Ball, supra; State v. Baskin, supra. Cf. State v. Reed, 315 So.2d 703 (La.1975). Similarly, the double jeopardy clause bars the retrial of a defendant following appellate reversal on grounds of insufficient evidence, as distinguished from trial error. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Liggett, 363 So.2d 1184 (La.1978). As stated in Burks v. United States, supra, “the purposes of the Clause would be negated were we to afford the Government an opportunity for the proverbial ‘second bite at the apple.’ ”

In the instant case, in accordance with Article 778 of the Code of Criminal Procedure, defendant moved for a judgment of acquittal at the close of the state’s case. After hearing argument by both the prosecuting attorney and defense counsel, and recessing to consider the evidence, the trial judge announced “the motion for directed verdict is granted.” The principles embodied in the constitutional guarantees against double jeopardy, as discussed above, clearly prohibited him from thereafter entertaining additional argument, setting aside his ruling, and continuing with the trial. For him to do so is indistinguishable from permitting the prosecuting attorney to present additional argument after the jury has returned from deliberations and delivered a verdict of not guilty or from allowing the state to appeal from an acquittal. The fact that the judgment had not been formally entered is, as previously noted, inconsequential. See, e. g. Green v. United States, supra; United States v. Ball, supra.

The cases relied upon by the state are inapposite. In Lucas v. United States, 343 F.2d 1 (8th Cir.), cert, denied, 382 U.S. 862, 86 S.Ct. 125,15 L.Ed.2d 100 (1965), after the government rested, defendant moved for an acquittal and the court expressed a “leaning” toward sustaining the motion. However, before the trial court ruled, the U.S. attorney asked to reopen the case to recall a witness. The trial court permitted him to do so. The appellate court held that the trial court had not abused its discretion. Other cases have similarly concluded that it was not error to permit the case to be reopened after the defense has moved for a directed verdict but prior to any ruling by the trial court. See, e. g. United States v. Dossey, 558 F.2d 1336 (8th Cir. 1977); United States v. Sisack, 527 F.2d 917 (9th Cir. 1975); United States v. Moehring, 446 F.2d 516 (10th Cir. 1971); Dees v. State, 357 So.2d 491 (Fla.App.1978); McFarland v. State, 137 Ga.App. 354, 223 S.E.2d 739 (1976); State v. Cutler, 94 Idaho 295, 486 P.2d 1008 (1971). Massey v. United States, 358 F.2d 782 (10th Cir.), cert, denied, 385 U.S. 878, 87 S.Ct. 159,17 L.Ed.2d 105 (1966), also relied on by the state, simply involved the reopening of the case for additional evidence after the state had rested. No motion for acquittal or a directed verdict had been made.

Accordingly, for the reasons assigned, defendant’s conviction and sentence are reversed and a judgment of acquittal is entered in his favor.

SUMMERS, C. J., dissents.

BLANCHE, J., does not participate.

      . Defendant did not have a right to trial by jury. La.Const., Art. 1, § 17 (1974); La.C.Cr.P. Art. 779; La.R.S. 14:98.

      . Moreover, the 5th Amendment to the United States Constitution is applicable to the states. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).


text:
    STATE of Louisiana ex rel. John T. MARTIN v. ORLEANS INDIGENT DEFENDER PROGRAM.
    Nos. 63807, 60832.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In Re: John T. Martin, applying for Writ of Mandamus (Orleans Parish).

Writ granted. Appeal reinstated (# 60,-832). Attorney appointed to represent the defendant on appeal. See Order.

ORDER

On considering the fact that the defendant-appellant, John T. Martin, in the above entitled matter is not represented by counsel in connection with his appeal which has this date been reinstated by this court, and considering the willingness of Paul A. Bo-nin, Esq., Attorney at Law, Orleans Parish, New Orleans, Louisiana, to represent John T. Martin, the defendant-appellant,

IT IS ORDERED that Paul A. Bonin, Esq., Attorney at Law, Orleans Parish, New Orleans, Louisiana, be enrolled as counsel of record for John T. Martin in the captioned matter.


text:
    Louis V. de la VERGNE v. Hugues J. de la VERGNE, II and Charles E. de la Vergne, Jr. and Hugues J. de la VERGNE, II and Charles E. de la VERGNE, Jr. v. Louis V. de la VERGNE and Succession of Mrs. Marcelle Menard, Widow of Charles E. de la Vergne, Sr.
    No. 63164.
    Supreme Court of Louisiana.
    March 1, 1979.
   ORDER

Considering the above and foregoing [Joint] Motion [to Dismiss],

IT IS, THEREFORE, ORDERED that the above and foregoing suits, 361 So.2d 1234, are hereby dismissed with prejudice, each party to bear their own costs.


text:
    STATE of Louisiana ex rel. Lionel DUGAR v. Hon. Matthew BRANIFF, Judge, Criminal District Court.
    No. 63868.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Lionel Dugar applying for writ of mandamus, Parish of Orleans.

Writ not considered. Moot.


author: SUMMERS, C. J., TATE, J.,

text:
    STATE of Louisiana ex rel. Rickey HAWTHORNE v. CLERK OF COURT, 26TH JUDICIAL DISTRICT COURT, PARISH OF BOSSIER.
    No. 63892.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Rickey Hawthorne applying for writ of mandamus, Parish of Bossier.

Writ granted and the District Court Clerk is ordered to comply with the order of the trial judge.

SUMMERS, C. J.,

concurs. However, I would permit the Clerk to show cause why the trial judge’s order should not be complied with.

TATE, J.,

concurs. If the trial court’s

order was improvidently granted, the Clerk must have the trial court judgment modified in proceedings either in the trial court or in this Court.


text:
    Robert NAQUIN v. AMERICAN BANK.
    No. 63924.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Robert Naquin, applying for certio-rari, or review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 347 So.2d 332.

Writ denied. The result is correct.

CALOGERO, J., would grant the writ.


text:
    Erastus BRYANT v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al.
    No. 63947.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Hartford Accident & Indemnity Company, et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 365 So.2d 537.

Writ denied.


text:
    Dewey MYERS v. HOWELL ELECTRIC MOTORS COMPANY et al. (Butler International, Inc.)
    No. 63949.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Dewey Myers, applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Parish of Acadia. 365 So.2d 541.

Writ denied.


text:
    Dr. Wilson COUCH v. FRICHTER’S SPORTSMEN’S HAVEN, INC.
    No. 63948.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Dr. Wilson Couch applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of St. Bernard. 365 So.2d 901.

Writ denied.


text:
    Wilson COUCH, M. D. v. FRICHTER’S SPORTSMEN’S HAVEN, INC.
    No. 63956.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re Frichter’s Sportsmen’s Haven, Inc. applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of St. Bernard.

Writ denied.


text:
    J. C. BOYER v. Joe E. JOHNSON et al.
    No. 63957.
    Supreme Court of Louisiana.
    Feb. 23, 1979.
   In re J. C. Boyer applying for writ of certiorari, Second Circuit Court of Appeals. Parish of Jackson. 366 So.2d 192.

Denied.


author: PONDER, Judge.

text:
    STATE MINERAL BOARD et al. v. LOUISIANA COMMISSION ON GOVERNMENTAL ETHICS.
    No. 12119.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 16, 1978.
    Rehearing Denied Oct. 19, 1978.
    Writ Refused Dec. 1, 1978.
    John V. Parker, Baton Rouge, of counsel, for plaintiff-appellant State Mineral Board.
    Alfred S. Lippman, Morgan City, of counsel, for plaintiff-appellant Charles M. Gar-ber.
    James Burton, New Orleans, of counsel, for plaintiff-appellant Arthur I. Levy, Sr.
    E. L. Edwards, New Orleans, of counsel, for plaintiff-appellant Andrew Martin.

      Phillip Wittmann, New Orleans, of counsel, for plaintiffs-appellants Jerome S. Glazer, Glen Wood.
    Claude B. Duval, Houma, of counsel, for plaintiff-appellant Luke E. Grezaffi, Jr.
    Donna D. Fraiche, Baton Rouge, of counsel, for plaintiff-appellant John M. Howard.
    R. Gray Sexton, Baton Rouge, John Mart-zell, New Orleans, Thomas Halligan, Asst. Atty. Gen., of counsel, for defendant-appel-lee Louisiana Commission on Governmental Ethics.
    Before COVINGTON, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is a suit by the State Mineral Board and some of its members for a declaratory judgment and for an injunction against a hearing. The lower court sustained a peremptory exception of no right of action as to the Mineral Board and a dilatory exception of prematurity as to the members. The State Mineral Board and some of the members appealed. This court issued a stay order barring a hearing until a decision is reached.

The issues are:

1. Whether the Mineral Board has a right of action or the “standing to question” ■ the constitutionality of the Governmental Ethics Law;

2. Whether individual members of the Mineral Board should have exhausted administrative remedies; and

3. Whether a preliminary injunction should have been issued.

We affirm.

The Commission on Governmental Ethics sent a letter to the Department of Natural Resources advising of possible violations of the Code of Governmental Ethics by some members of the Mineral Board who were doing business with companies holding leases of publicly owned lands by action of the Mineral Board. The Department of Natural Resources did not respond to the letter; it has no authority over the Mineral Board. The Ethics Commission then wrote to 13 members of the Mineral Board informing them of an “investigation by public hearing” into possible violations. The Mineral Board and 6 members, questioning both the power of the Commission to take such action and the constitutionality of the statute, sought an injunction against any public or private hearing or investigation which (1) is based upon the premise that the contractual and business relationships between members of the Board and state mineral lessees were per se violations of the Ethics Code, (2) has the purpose of examination into alleged violations of La.R.S. 42:1117(D) or 42:1117(F), or (3), was begun on motion of the Ethics Commission without knowledge of specific acts constituting violations of the Ethics Code. This relief was sought on the grounds that the statute is unconstitutional; that the Ethics Commission is seeking to apply a standard of conduct beyond that authorized by the legislature and that the investigation is being held without reason to believe a violation of the Ethics Code may have occurred.

1. NO RIGHT OF ACTION

The Mineral Board contends that it has a right of action since the action of the Ethics Commission constitutes an interference with the transaction of its duties; since the proposed action of the Ethics Commission is ultra vires and since the Ethics Commission and the Mineral Board have taken opposite positions in interpreting the Ethics Code.

The Ethics Commission has no authority to discipline the Mineral Board as an entity. The investigation concerns individual members of the Board, not the Board itself; there can be no serious interference with the orderly transaction of the business of the Board. Should the investigation lead to a disciplinary hearing at which members of the Board are suspended or removed, the vacancies can be immediately filled by gubernatorial appointment. The interference will be so slight as to be at most a temporary inconvenience.

The Board argues that the Ethics Commission is acting ultra vires. It cites Louisiana Milk Commission v. Louisiana Commission on Governmental Ethics, 298 So.2d 285 (La.App. 1st Cir. 1974).

In the first place, as developed later, we find the Ethics Commission proposed to hold an investigatory public hearing, not a disciplinary one. The Commission has the power to do so; it is not ultra vires, at least at present.

Furthermore, we find the Milk Commission case inapplicable.

In that case the Ethics Commission urged that members of the dairy industry could not serve on the Milk Commission; the legislature had required that four members of the Milk Commission be members of the dairy industry. If these members were ineligible the governor could not follow the mandate of the legislature by appointing four more members of the dairy industry. Therefore, the Milk Commission would not be able to function.

In the present case, there is no such requirement. Further, the governor is able to appoint and remove members of the Mineral Board at will.

The Mineral Board argues that it has a right of action because it and the Ethics Commission interpret the Code of Ethics differently. It cites Orleans Parish School Board v. City of New Orleans, 238 La. 748, 116 So.2d 509 (1959) and Hainkel v. Henry, La., 313 So.2d 577 (1975).

We find both cases not controlling. That a difference in interpretation inevitably leads to there being a right of action is too broad a statement to be valid. The point in the Hainkel case that there was no alternative method of settling an issue is not present here; the individual members of the Board can present and are presenting the various arguments being advanced by the Board.

We agree with the lower court that the Mineral Board has no right of action against the Ethics Commission. At the most, the attack will be against the present composition of the Board, not its existence.

The defendant also asserts that the Mineral Board has no standing to question the constitutionality of the statutes. While we question that the Mineral Board is sufficiently affected so as to have a “legally protectable and tangible interest at stake in the litigation,” we do not have to address that point since we hold that the Mineral Board has no right of action.

II. PREMATURITY

Appellants assert that the doctrine of exhaustion of administrative remedies before resorting to court action does not apply because: there are no adequate remedies; prejudice or irreparable injury would result and the course would be vain and useless.

The Mineral Board and its members object to the hearing because they believe it will lead to dismissal from office upon a finding of a violations of the Code of Ethics; they regard the hearing as disciplinary in nature.

The Ethics Commission, on the other hand, sees the hearing as investigatory. If the investigation shows that possible violations have occurred, a second public hearing, adversary in nature, will be required before any disciplinary action can be taken. It is because the Commission sees the hearing as investigatory that it asserts the members are premature in seeking an injunction. It is necessary for specific charges to be made based on specific violations before it can be said that there is a controversy between the Mineral Board members and the Ethics Commission, sufficient to justify court action. Before these charges can be made, an investigation, evidently, is needed. The Commission has the power to make investigations.

Any person who is the subject of a hearing, has the right to counsel, the right to call witnesses and present evidence, and the right to cross examine witnesses. He must be given notice of the charges against him not less than ten days prior to the date set for hearing. In re Theriot, 257 So.2d 770 (La.App. 1st Cir. 1972).

The lines between an investigatory hearing and a disciplinary hearing appear to have been blurred. A large part of the problem has been caused by the Ethics Commission using the word “hearing” by itself and by using “investigatory” and “disciplinary” interchangeably. Further the Commission, while using “investigatory” in its letters to individual members of the Board was accusatory in tone and cited the part of the statute that gives it authority to discipline. However, we accept the good faith of the Ethics Commission in its assertion that no disciplinary action can or will result until another, a disciplinary, hearing is held and that the Commission has not made a determination of per se violations. We find the hearing to be an investigation of possible violations of the Code of Governmental Ethics.

Because of this, we believe that until the disciplinary hearing is initiated the questions of adequacy of the remedy, of the irreparable harm and of the vain and useless nature of the hearing do not arise. The Commission is exercising its statutory power to hold an investigation. That the investigation may lead to the possibility of a disciplinary hearing if violations of the Code of Ethics are found, is insufficient basis for an injunction against that investigatory hearing. The contentions of no adequate remedy, of irreparable harm and of vain and useless procedure are therefore without basis as applied to an investigatory hearing. It is conceivable that the Commission might decide that the conduct does not constitute a violation and so end the controversy.

Plaintiffs assert that the Ethics Commission does not have reason to believe that violations have occurred sufficient to justify holding a hearing.

Appellants contend that “the reason to believe” is equivalent to the “reasonable cause to believe” and “probable cause” of the criminal law. We are not so persuaded.

The power to conduct an investigative hearing does not depend on a showing of probable cause or reasonable cause. U. S. v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 364, 94 L.Ed. 401 (1950); De Masters v. Arend, 313 F.2d 79 (9th Cir. 1963).

There seems to be at least some logical inconsistency in saying that the Ethics Commission has no “reason to believe” and at the same time saying that the members since 1972 have been freely admitting to the Commission investigators the existence of the business activities which plaintiffs assert the Commission believes to be a violation.

Plaintiffs, to free themselves of the necessity of exhausting administrative remedies, assert the unconstitutionality of the statute as being overly broad and vague. Defendant and the Attorney General argue against reaching the question of constitutionality since they assert that the statute is not penal and its enforcement cannot result in the deprivation of liberty or property, there being no property right in an appointive office. While we are inclined to accept that argument, nevertheless, we prefer to address the merits.

We cannot agree that the statute is unconstitutionally vague or overly broad in its terms. The case of State v. Martes, 232 La. 486, 94 So.2d 446 (1957) cited by plaintiffs, we find inapplicable. The terms participate and substantial personal economic interest of the statute seems to us to be much more specific and understandable than in any way interested found objectionable in the case. Plaintiffs have not borne the burden of one alleging the unconstitutionality of a statute.

III. PRELIMINARY INJUNCTION

Since the exceptions of prematurity and no right of action were well founded, the trial court was correct in denying the preliminary injunction. The stay order is recalled and the dismissal is affirmed.

AFFIRMED.

      . LSA-R.S. 42:1119 D(3)
      “It may conduct private investigations -of facts, conditions, practices, or other matters in carrying out its responsibilities and powers under this Part and in obtaining information to serve as a basis for recommending further legislation related to the purposes of this Part.”

      . LSA-R.S. 42:1121 D(5)
      “Any state employee or other person who is the subject of any hearing shall have the right to legal counsel, the right to cross-examine witnesses, and the right to call witnesses and present evidence in his own behalf.
      “Any witness other than the person who is the subject of the investigation or hearing shall have the right at a hearing to be accompanied by counsel, who shall be permitted to advise the witness of his rights, subject to reasonable limitations to prevent obstruction of or interference with the orderly conduct of the investigation or hearing. Said counsel may also submit proposed questions to be asked for his client.”

      . LSA-R.S. 42:1121 D(l)
      “No disciplinary action shall be taken against a state employee or other person by the commission unless such employee or person has been found guilty of a violation of the provisions of this Part at a public hearing conducted for that purpose.
      “Any state employee or other person who is to be the subject of a public hearing shall be given -written notification of the charges against him and of the time and place such hearing is to be held. Such notification shall be not less than ten days prior to the date set for the hearing. Upon request of an employee or person charged, the hearing may be held sooner.”

      . LSA-R.S. 42:1119 D(5)(b)
      “The commission may, on its own motion, consider any matter which it has reason to believe may be a violation of this Part or the regulations or orders issued by the commission.”


author: SAMUEL, Judge.

text:
    Shirley Comeaux, wife of/and Mabrie James COMEAUX v. Joseph A. MATIX, Credit General Insurance Company and State Farm Mutual Automobile Insurance Company.
    No. 9811.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 28, 1978.
    Gregory W. Roniger, Jefferson, for movers-plaintiffs-appellees.
    Porteous, Toledano, Hainkel & Johnson, James S. Thompson, New Orleans, for respondent-defendant-appellant.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   ON MOTION TO DISMISS

SAMUEL, Judge.

This is a suit allegedly for personal injuries and other damages sustained as a result of ah automobile accident. Plaintiffs are husband and wife and there are three named defendants. One of the defendants, State Farm Mutual Automobile Insurance Company, has suspensively appealed from an adverse judgment.

The only matter now before us is a motion filed by plaintiffs-appellees to dismiss State Farm’s suspensive appeal on the ground that its suspensive appeal bond was not filed timely.

The actions and dates pertinent to the motion, which we accept as true due to the fact that they are stated in movers’ brief, contained in certified copies attached to that brief, and uncontradicted in appellant’s response to the motion, are:

1) The judgment appealed from was rendered June 20, 1978, following trial held on May 11, 1978;
2) On June 26, 1978 State Farm filed an application for a new trial and in the alternative a remittitur which was denied by the trial court on June 27, 1978;
3) On June 28, 1978 notice of the denial of appellant’s application for a new trial or remittitur was mailed by the Clerk of Court to all attorneys of record;
4) On June 30, 1978 plaintiffs-appellees filed a motion for a partial new trial seeking additional amounts for personal injuries and also seeking an award for loss of earnings which latter award had been denied in the judgment, which motion was denied by the trial court on July 10, 1978;
5) On July 12,1978 notice of the denial of plaintiffs-appellees’ motion for a new trial was mailed by the Clerk of Court to all attorneys of record;
6) State Farm’s petition for appeal was filed and the order of appeal attached thereto was signed by the trial judge on July 26, 1978;
7) State Farm’s suspensive appeal bond is stamped by the Clerk of Court as having been filed on August 2, 1978.

Plaintiffs-appellees rely on Code of Civil Procedure Article 2123 which, insofar as this case is concerned, provides that a sus-pensive appeal may be taken, and the security therefor furnished, only within thirty days of the date of the mailing of notice of the court’s refusal to grant a timely application for a new trial. They argue that since notice of the denial of State Farm’s application for a new trial or remittitur was June 28, 1978 and State Farm’s suspensive appeal bond was not furnished until August 2, 1978, more than thirty days later, the appeal was untimely by several days.

In response, State Farm makes two contentions: (1) its suspensive appeal bond, fully executed and with a proper power of attorney, actually was attached to its petition of appeal and those documents were deposited for filing with the clerk’s office after being presented to and signed by the judge on July 26, 1978, two days prior to the running of the suspensive appeal delays; and (2) the June 30, 1978 motion by plaintiffs-appellees for a partial new trial, seeking additional amounts for personal injuries and also seeking an award for loss of earnings, was filed on June 30, 1978, denied by the trial court on July 10, 1978 and notice of that denial was not mailed by the Clerk of Court until July 12, 1978, so that, even if State Farm’s suspensive appeal bond was in fact not filed until August 2, 1978, the suspensive appeal was filed timely. As we agree with the second contention which is determinative of the issue presented, we need not grant the delay requested in connection with the first contention.

In Thibodeaux v. Lock Clinic, La.App., 299 So.2d 574 (the identical case also appears in 322 So.2d 805), this court said:

“Motion for a new trial by one party ordinarily does not extend another’s delay for appealing, unless the nature of the proceeding is such that one party’s motion prevents the judgment from becoming final as to another; Thurman v. Star Elec. Supply, Inc., La.1973, 283 So.2d 212.”

In this case the motion for a partial new trial filed by the plaintiffs-appellees prevents the original judgment from becoming final as to the defendant State Farm. Pending disposition of that application, a contrary view would prevent State Farm from knowing the extent of its liability. In fact, State Farm would be unable to determine the dollar amount required in its sus-pensive appeal bond and would force State Farm to appeal from both the original judgment and any subsequent judgment in the event the application by plaintiffs-appellees was granted and the amount State Farm was cast in judgment would be changed after the new trial. Accordingly, we hold that appellant’s thirty day delay for taking a suspensive appeal did not begin to run until July 12, 1978 when the notice of the denial of plaintiffs-appellees motion for a new trial was mailed by the clerk to all attorneys of record. Thus, the filing of the suspensive appeal bond, even if accomplished on August 2, 1978, was timely.

For the reasons assigned, the motion to dismiss the suspensive appeal is denied.

MOTION DENIED.

      . We use the word “allegedly” because the record has not yet been lodged in this court.

      . Because respondent alleges the attorney who represented State Farm In this case is presently out of the state and the trial judge and his clerk are on vacation, they request we withhold any ruling on this matter until affidavits can be obtained and furnished to us to prove this contention.


author: EDWARDS, Judge.

text:
    Charles N. MADERE, Jr., Gerald W. Madere and Timothy Richard v. Robert Allen JOHNSON and his Insurer, State Farm Mutual Automobile Insurance Co.
    No. 12194.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 28, 1978.
    Barry J. Landry and Daniel E. Becnel, Jr., Reserve, for plaintiff-appellant.
    Arthur H. Andrews, Baton Rouge, for defendant-appellant Aetna.
    W. Arthur Abercrombie, Jr., Baton Rouge, for appellee Dozier.
    Anthony J. Clesi, Jr., Baton Rouge, for Johnson.
    George M. Pierson, Wm. T. Kivett, and C. Kris Kirkpatrick, Baton Rouge, for appellee May.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

This Court ex proprio motu has examined the record in this suit and has determined that the appeals are not properly before us and that they should be dismissed.

AETNA’S APPEAL;

Plaintiffs sued, inter alia, Gilbert L. Dozier, Robert K. May and Aetna Fire and Casualty Company for damages sustained in an automobile collision with a horse allegedly under defendants’ care. - Numerous third party demands were filed among these defendants, including a claim by Dozier against Aetna, his insurer, for indemnity.

Following a jury trial, judgment was signed on September 8, 1977, in favor of plaintiffs and against defendants, Dozier, May and Aetna. Judgment was also rendered in favor of Dozier on his third party demand for indemnity against Aetna. It is the judgment in this third party demand which Aetna seeks to appeal.

On September 9, 1977, Dozier and May filed a joint motion for a new trial to set aside the judgment signed on September 8, 1977. Aetna also filed a timely motion for a new trial on the principal demand.

The trial court granted a new trial and stated in its judgment signed on November 17, 1977:

“New trial is granted in favor of the defendants, Gilbert L. Dozier and Robert K. May, insofar as the verdict in favor of Gerald W. Madere, Tim Richard, and Maryland Casualty Company and against Gilbert L. Dozier, Aetna Fire and Casualty Company, and Robert K. May, and insofar as the Judgment in all third party demands among these defendants.”

Meanwhile, Aetna had obtained an order of appeal on October 28, 1977, and had filed an appeal bond on November 2, 1977.

We believe that Aetna’s appeal is premature and should be dismissed, because the new trial prevented the judgment on the third party demand for indemnification from becoming final. Thurman v. Star Electric Supply, Inc., 283 So.2d 212 (La. 1973); Donica v. Donica, 324 So.2d 847 (La. App. 1st Cir. 1975). The opposite result would lead to a piecemeal adjudication. Compare Jeansonne v. Willie, 188 So.2d 170 (La.App. 4th Cir. 1966).

PLAINTIFFS’ APPEAL

The original judgment of September 8, 1977, was filed in the mortgage records by plaintiffs (with the Clerk of Court, Parish of East Baton Rouge) in MOB 2902, folio 137. Subsequently, a new trial was granted by the trial court by judgment of November 17, 1977. On February 27, 1978, defendants, Dozier, May and Aetna, filed a rule, pursuant to LSA-C.C. art. 3381, to obtain an order for the erasure of the inscription of the mortgage recorded in MOB 2902, folio 137, which is the original judgment of September 8, 1977.

The trial court made the rule absolute on April 4, 1978, and ordered the Clerk of Court, Parish of East Baton Rouge, to cancel the inscription of the original judgment. Plaintiffs appeal this order.

We believe that such an order is interlocutory within the contemplation of LSA-C. C.P. art. 1841 and that no right of appeal exists absent the showing of irreparable injury. LSA-C.C.P. art. 2083. There has been no such showing in this case.

For the above reasons, the appeals are dismissed. Costs are to await final adjudication.

APPEALS DISMISSED.


author: LOTTINGER, Judge.

text:
    STATE of Louisiana in the Interest of Leander JONES.
    No. 11947.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 31, 1978.

      Phil P. Breaux, St. Gabriel, for appellant. Aubert D. Talbot, Donaldsonville, for ap-pellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

The decision of this court in State of Louisiana in Interest of Jones, 357 So.2d 636 (La.App. 1st Cir. 1978) was on July 3, 1978 reversed by the Louisiana Supreme Court, 360 So.2d 1181 (La.1978), and remanded for reconsideration in light of State in Interest of Dino, 359 So.2d 586 (La.1978).

In Dino, supra, the Supreme Court set down the following criteria for the admission of a confession of a person under 17 years of age:

(1) that the juvenile actually consulted with an attorney or an adult before waiver,
(2) That the attorney or adult consulted was interested in the welfare of the juvenile, or
(3) that, if an adult other than an attorney was consulted, the adult was fully advised of the rights of the juvenile. (Emphasis added)

The facts in the instant case point out that Leander Jones, a 13 year old at the time of the apprehension, was brought to the juvenile office around 5:00 p. m. and was interrogated for approximately an hour and a half. Following the period of questioning in which no threats or acts of violence or coercion were made, Leander voluntarily signed a waiver of his Miranda rights and gave a taped inculpatory statement concerning an attack on a 5 year old girl. Jones was not in consultation with an attorney or an adult interested in his welfare before he signed the waiver or gave his confession. Under the criteria established in Dino, supra, the inculpatory statement given by Leander is clearly inadmissable.

Mrs. Jones, Leander’s mother, arrived after the taped confession was given. She was informed of the confession and signed the waiver which Leander had previously signed. It is unclear whether Mrs. Jones fully understood the waiver she signed.

Though the mother in the Dino case gave a post confession waiver of her son’s rights, the Supreme Court made mention of this fact only in passing. Thus, we are left with the impression that our Supreme Court discounted the waiver of the parent, and only looked to the validity of the waiver of the juvenile. Therefore, we conclude that any waiver given by Mrs. Jones subsequent to Leander’s confession does not in any way affect the validity of the confession.

In light of Dino and the significant fact that Leander had no consultation with an attorney or an adult interested in his welfare prior to giving his confession, we therefore reverse the trial court’s denial of the motion to suppress and remand this case for further proceeding not inconsistent with the views herein expressed.

REVERSED AND REMANDED.