author: SHIVERS, Judge.

text:
    Franklin ROUSE, Appellant, v. WYLDWOOD TROPICAL NURSERY and Ohio Casualty Insurance Company, Appellees.
    No. SS-268.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1981.

      Howard L. Silverstein, of Silverstein & Heilman, P. A., Miami, for appellant.
    Robert C. Pickford, of Parkhurst, Pickford, Ayres & Carlson, Ft. Lauderdale, for appellees.
   SHIVERS, Judge.

Claimant, a laborer in his early twenties, appeals compensation order awarding him benefits based on finding of permanent partial disability of 3% to the body as a whole.

Appellant Franklin Rouse asserts the deputy commissioner erred: (1) by failing to rule on the issue of loss of wage-earning capacity when specific claim had been made therefor; (2) by failing to make an award based upon loss of wage-earning capacity; (3) by denying his motion to take a post-hearing deposition of claimant’s primary treating physician; (4) by accepting the opinion of Dr. Rech, an orthopedic surgeon (who saw claimant only one time) over the other physicians and in failing to set forth the reasons.

We affirm in part and reverse and remand for further proceedings.

While working for appellee Wyldwood Tropical Nursery, claimant was injured in two compensable accidents. On July 21, 1978, he suffered a painful low back injury lifting a palm tree and on July 27, 1978, he reinjured his back digging a trench, causing back pain radiating into both legs. His employer took him to see Dr. James Smith, who treated him after both accidents. After the second accident Dr. Smith, who was not an orthopedic surgeon, hospitalized claimant for a week. An orthopedic surgeon, Dr. Morris, indicated that the claimant’s progress was poor and that he showed persistent low back pain with radiation of the posterior thighs and hips.

On September 28, 1978, while Dr. Morris was “on sabbatical” his associate, Dr. Melvin Rech, examined Rouse once. Rouse complained of continued low back pain with radiation into his left side and thigh and occasional numbness. Dr. Rech found September 28, 1978, as the date of maximum medical improvement. He indicated that claimant could return to his normal job duties with 0% permanent disability, although Dr. Rech felt there appeared to be a resolving lumbosacral strain and sprain.

Claimant attempted to return to work, but the pain was apparently so severe that he could not continue. His original treating physician, Dr. Smith, saw the claimant again on October 12, 1978. He disagreed with Dr. Rech’s diagnosis, finding Rouse’s condition to be more severe. Dr. Smith reported that claimant had not reached maximum medical improvement and that Rouse would probably end up with a 10% permanent partial disability rating.

Dr. Bret Lusskin, another orthopedic surgeon, saw claimant on December 12, 1978, and on May 25,1979. Dr. Lusskin assigned claimant a rating of 10% permanent partial disability of the body as a whole.

At the hearing on July 11, 1979, Dr. Smith, who had been subpoenaed, did not appear. He had reportedly seen claimant again in June 1979. Rouse’s attorney reported that Dr. Smith notified him only the day preceding the hearing that he could not be at the hearing as he was the only doctor available to take care of the clinic. Claimant moved for an order allowing a post-hearing deposition, but the deputy refused. The deputy stated that he would favor the testimony of expert orthopedic surgeons over a general practitioner for this type injury and saw no reason to delay the hearing or to delay the decision for a post-hearing deposition.

Three months later, in October 1979, the deputy commissioner found:

3. Based on the deposition testimony of Dr. Rech, I find the date of maximum medical improvement to be September 28, 1978.
4. Based on the combined testimony of all of the doctors and the Claimant, I find that the Claimant has sustained a three (3%) percent permanent partial disability to the body as a whole.

Claimant argues that the deputy should have permitted the post-hearing deposition of Dr. Smith. Because of the great discretion vested in the trial court to determine whether to accept a post-hearing deposition when a witness absents himself from a judicial proceeding, we find the deputy did not abuse his discretion. See Dickson v. Feiner’s Organization, Inc., 155 So.2d 703 (Fla. 2d DCA 1963) reh. denied. A deputy Commissioner may give greater weight to the opinions of one medical expert over another provided some reason is given, if there are conflicting opinions. Pierce v. Piper Aircraft Corp., 279 So.2d 281 (Fla.1973) reh. denied. Although the post-trial deposition was not in evidence, the deputy’s indication that he would accord more weight to testimony or depositions of orthopedic surgeons than of general practitioners lays an adequate foundation on which to rule there was not a sufficient abuse of discretion to cause us to overrule the deputy’s decision not to permit a post-hearing deposition. In this close point on appeal, we affirm the deputy’s decision not to allow the post-hearing deposition. It appears, though, that the deposition of Dr. Smith who saw claimant following both accidents and after Dr. Rech, could have been scheduled in July or August as the opinion was not released until October.

The second issue involves the accepting of Dr. Rech’s findings to the exclusion of the other medical findings. The deputy found maximum medical improvement to have occurred on September 28, 1978, based solely on Dr. Rech’s deposition in contrast to the findings of the other doctors including Dr. Lusskin, the other orthopedist. Dr. Lusskin found that maximum medical improvement did not occur until May 25,1979.

The deputy found a 3% disability rating. The testimony in the records is to a 0% or a 10% disability rating, the 3% rating being closer to Dr. Rech’s findings.

The standard for testing the adequacy of findings of fact in a workers’ compensation case was set out in Pierce v. Piper Aircraft Corp., supra, in which the court indicated that

... where the testimony of two or more expert witnesses of comparable qualification are in direct conflict, it will be helpful ... if some explanation is given as to why the testimony of one is accepted and the other is rejected.

This statement was slightly clarified by requiring more specific findings with adequate references to the record in the face of factual disputes in Vargas v. Americana of Bal Harbour, 345 So.2d 1052, 1054 (Fla.1976) reh. denied (1977). The standard was reaffirmed in Buro v. Dino’s Southland Meats, 354 So.2d 874, 877 (Fla.1978) in which the Supreme Court found it was not “essential” for a deputy commissioner to explain precisely why he accepts the testimony of one doctor and rejects that of another.

The dividing line between the point at which it would be merely “helpful” to have an explanation as to why one expert is favored over another and when it is mandatory arises when: (1) the reason for the finding in the order is not apparent from the record, Lakeland Ford, Inc. v. Harrelson, IRC Order 2-3885 (August 10,1979), or (2) it might appear that the deputy commissioner has overlooked or ignored the testimony of a witness. Jefferson Stores, Inc. v. Rosenfeld, 386 So.2d 865 (Fla. 1st DCA 1980).

In this case, we do not find it apparent from the record why Dr. Reeh’s assigned September 28, 1978, date of maximum medical improvement was favored over the other doctors, who saw claimant Rouse after Dr. Rech and who indicated that Rouse did not achieve maximum medical improvement during 1978.

We have no way of knowing how the deputy arrived at the 3% disability rating he assigned. The medical experts testified either a 10% or 0% rating was proper. While the deputy commissioner has the discretion to accept lay testimony over a medical expert’s and to arrive at an impairment rating in excess of that of a medical expert, the testimony of the claimant at the hearing did not establish a 3% disability. As in Glades County Sugar Growers & Employers Insurance of Wausau v. Gonzales, 388 So.2d 333, 335 (Fla. 1st DCA 1980), the lack of reasoning makes the order “so deficient as to impede review when measured against the record facts.”

It would appear that the medical findings run counter to the manifest weight of the medical testimony, but we will await the deputy’s clarification of his findings of fact before passing judgment.

The third and fourth issues relate to whether the deputy should have ruled on loss of wage-earning capacity when specific claim therefor has been made and whether the deputy erred in failing to make an award based upon loss of wage-earning capacity. Here, claim was made for permanent partial disability benefits based upon either anatomic impairment or loss of wage-earning capacity. The deputy found a 3% permanent partial disability of the body as a whole. The last sentence in Section 440.15(3)(u), Florida Statutes 1978, defines “disability” in that paragraph to mean “ either physical impairment” or “diminution of wage-earning capacity, whichever is greater.” (Emphasis added.) The record contains evidence of both. A finding must be made declaring the disability to be based on either one or the other. Suez Motel v. Brouwer, 388 So.2d 627 (Fla. 1st DCA 1980).

AFFIRMED in part and REVERSED in part and remanded for further proceedings not inconsistent with this opinion.

ERVIN and SMITH, JJ., concur.


source: Caselaw Access Project

author: JOANOS, Judge.

license: Public Domain

text:
    CARGO GAS COMPANY and American Home Group, Appellants, v. Dorothy CRUMPTON, Appellee.
    No. TT-67.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1981.

      Bernard J. Zimmerman and Jose R. Rodriguez, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    J. Michael Matthews, Altamonte Springs, for appellee.
   JOANOS, Judge.

Appellants Cargo Gas Company and its insurance carrier, American Home Group, appeal an order of the deputy commissioner awarding workers’ compensation benefits to appellee Dorothy Crumpton who was employed by Cargo Gas as a part-time gas station attendant at the time of her injury. Appellants question the correctness of the order in four respects: (1) Whether the employee’s tips from other employment were properly substantiated so as to be included in her average weekly wage; (2) Whether there was sufficient evidence to support the award of 5% permanent partial disability; (3) Whether the temporary total disability award was supported by the evidence; and (4) Whether the order requires appellants to pay a hospital bill which was in issue. With regard to the first three points on appeal, we affirm the deputy commissioner. The fourth issue raised by appellants, however, points out an ambiguity in the order which must be resolved on remand.

On April 14, 1978, while working at Cargo Gas, Dorothy Crumpton was injured when she was trapped at thigh level between the bumpers of two cars. She was about six months pregnant at the time of the accident, but the child born in July was unaffected by his mother’s injury. According to the attending physician, there were some difficulties with the delivery, however, which were attributable to the accident. As noted in the pre-trial stipulation, Mrs. Crumpton sought reimbursement of at least part of the hospitalization and medical services required during the delivery, and at the hearing the employer’s liability for the July hospitalization was clearly raised as an issue.

In his order, the deputy commissioner found that Mrs. Crumpton’s hospitalization on April 14, 1978 was of an emergency nature and necessitated by the accident. Mrs. Crumpton was hospitalized on April 14th, but the bill for that hospitalization had already been paid by the employer and was not in controversy. The order never mentions the July hospitalization, which was in controversy. This omission in an otherwise detailed order combined with a discussion of a non-controverted hospitalization makes us uncertain of the result intended by the deputy commissioner. We find it necessary to remand on this issue for clarification of what we perceive to be an ambiguity .

Concerning the other three points raised by appellant, on review of the record we find that there was competent substantial evidence to support the deputy commissioner’s determinations on amount of the average weekly wage, degree of permanent partial disability, and the award of temporary total disability.

REMANDED for the Deputy Commissioner to enter an order clarifying whether appellants are required to pay any part of the July 1978 hospital bill which was in issue.

WENTWORTH, J., and LILES, WOOD-IE A. (Retired), Associate Judge, concur.

      . If the award of benefits is altered on remand, then the attorney’s fee award should also be revisited.

      . Appellant argued that the only proper evidence of the amount of tips received by claimant in her concurrent employment was her income tax return. See, however, Cornaros v. Carillion Hotel, 235 So.2d 478 (Fla.1970) which upholds the discretion of the deputy to accept a claimant’s testimony on the amount of tips over documentary evidence. Appellant also argued that the tips should not have been included in average weekly wage because they were not received “with the knowledge of the employer” as required by Fla.Stat. § 440.02(12). We find that there was ample evidence to support the conclusion that claimant’s other employers had “ignored the obvious and not in good faith made an effort to determine the actual income of the employer.” Top of the Home Restaurant v. Mourino, IRC Order 2-3490 (1978).


text:
    Alphonso JONES, Appellant, v. K & L CONTRACTORS and Security Insurance Company of Hartford, Appellees.
    No. UU-59.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1981.

      William W. Fernandez, Orlando, for appellant.
    Andrew L. Ringers, and Lamar D. Oxford, of Dean, Ringers, Morgan & Lawton, Orlando, for appellees.
   SHIVERS, Judge.

Appellant Alphonso Jones appeals a workers’ compensation order construing his application for hearing to approve a contract to employ an attorney as a claim and dismissing the claim without prejudice. We reverse.

Appellant was injured in an industrial accident August 21, 1979. Following the accident, appellant entered into a contract to retain an attorney. On September 20, 1979, appellant filed a standard form application for hearing, stating that the purpose for requesting a hearing was to obtain approval of a contract to employ an attorney pursuant to Section 440.34, Fla.Stat. (1979). The application indicated that the employer/carrier had been providing temporary total disability benefits and remedial attention to appellant since the date of the accident. Paragraph 3 of the application stated:

3. Compensation and/or remedial treatment claimed to be due at this time are as follows: “Continuing remedial treatment and compensation.”

A hearing was held on November 15, 1979, and the deputy commissioner approved appellant’s contract to employ an attorney.

During this time, the employer/carrier took the depositions of three physicians and appellant. Pursuant to his representation of appellant, appellant’s attorney attended all four depositions.

On December 17, 1979, the employer/carrier filed an application for hearing to determine compensability and appellant’s entitlement to temporary disability benefits, medical bills, and permanent disability benefits. At the hearing, appellant’s attorney contended that a claim had not been filed, and further argued that the purpose of the hearing was to determine his entitlement to a fee under Section 440.30, Fla.Stat. (1979), as a result of his attendance at the four depositions taken by the employer/carrier. The employer/carrier argued that the appellant’s application for hearing constituted a claim. The deputy commissioner ruled that appellant’s application for hearing was a claim and asked appellant’s attorney if he wished to withdraw the claim since he argued that no claim had been filed. Appellant’s attorney stated he would not withdraw a claim which had not been filed, and refused to proceed with the hearing on the claim. The employer/carrier then made an oral motion to dismiss, which was granted by the deputy commissioner without prejudice to appellant.

The deputy commissioner erred in ruling that appellant’s application for a hearing was a claim for workers’ compensation benefits. Section 440.19(2)(d), Fla.Stat. (1979), sets out the requirements for a claim as follows:

Such claim shall be filed with the Division at its office in Tallahassee and shall contain the name and address of the employee, the name and address of the employer, and a statement of the time, place, nature, and cause of the injury or such fairly equivalent information as will put the Division and the employer on notice with respect to the identity of the parties and the specific compensation benefit which is due but has not been paid or is not being provided. (Emphasis added.)

In appellant’s application for hearing which was construed as a claim, appellant clearly states that the employer/carrier have been providing compensation and remedial treatment. The application fails to claim any specific compensation benefit, as required under Section 440.19(2)(d), which is due but has not been paid or is not being provided. The sole purpose of appellant’s application for hearing was to obtain the deputy commissioner’s approval of a contract to employ an attorney pursuant to Section 440.34(1), Fla.Stat. (1979).

It should be noted that the Division of Workers’ Compensation has neither acknowledged the filing of a claim by appellant nor rendered an advisory opinion evaluating the claim as required by Section 440.19(1), Fla.Stat. (1979). Additionally, the record does not contain a claim for workers’ compensation benefits and there is no notice to controvert by the employer/carrier.

Therefore, the order is reversed and remanded to the deputy commissioner with instructions to award appellant attorney’s fees under Section 440.30, Fla.Stat. (1979), for his attorney’s attendance at the four depositions taken by the employer/carrier without the filing of a workers’ compensation claim. See Orange State Marine v. Snack, 382 So.2d 1367 (Fla. 1 DCA 1980).

Appellant has also filed a motion asking this Court to tax as costs on this appeal the $50 filing fee paid by him and award a reasonable attorney’s fee to his attorney for representation before this Court. While Chapter 440, Fla.Stat. (1979), contains no authorization for assessment of attorney’s fee for this appeal, such assessment is authorized by Section 59.46, Fla. Stat. (1979). Appellees are directed to reimburse appellant, his costs on this appeal in the amount of $50 and pay to appellant’s attorney the sum of $1,000 which we find to be a reasonable fee for his representation of appellant before this Court.

Reversed and Remanded.

McCORD and JOANOS, JJ., concur.


text:
    MUNFORD, INC., Appellant, v. Ricky WIRICK, Appellee.
    No. UU-70.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1981.

      Brian D. Hill of Swann & Haddock, Orlando, for appellant.
    No appearance for appellee.
   JOANOS, Judge.

Appellant Munford, Inc. appeals an order of the deputy commissioner which was issued shortly after the claim was filed approving a retainer agreement between a workers’ compensation claimant and his attorney. The agreement provided that the claimant was to pay his attorney 20% of the first $10,000 of compensation benefits and 15% of any excess. The fee was to be a lien on compensation benefits and the claimant agreed to direct his employer, Munford, Inc., to withhold and pay to the attorney those percentage amounts from “any and all compensation” paid to claimant. The Order approved this agreement and required Munford, Inc. to retain and hold those amounts from “any and all monies paid to the claimant” for the benefit of claimant’s attorney. We reverse on the authority of East Coast Tire Co. v. Denmark, 381 So.2d 336 (Fla. 1st DCA 1980).

In Denmark, this Court disapproved an identical retainer agreement. Although we stated that § 440.34, Florida Statutes, does not require successful prosecution of a claim or performance of legal services before a fee is approved, the deputy commissioner is not relieved from considering the statutory standards in determining the amount of the award. As in Denmark, the minimal services provided at the time the agreement was approved suggest that “the blanket agreement ... is speculative and unreasonable” in light of the statutory criteria. 381 So.2d at 339. This Court also noted the apparent impropriety of basing the fee award on “any and all compensation received” rather than those benefits for which legal services had been or would be rendered.

Finally, the Order’s provision requiring the appellant/employer to retain and pay to the claimant’s attorney a certain percentage from “all monies paid to claimant” is invalid under Denmark. Section 440.34(3) does not authorize such continuing duties upon the employer or its carrier.

REVERSED.

McCORD and SHIVERS, JJ., concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    UNITED STATES FIDELITY AND GUARANTY CO., Appellant, v. Robert Harold BRYANT, Appellee.
    No. WW-12.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1981.

      Charles L. Cetti of Cetti & McGraw, Pensacola, for appellant.
    Thomas F. Condon of Emmanuel, Sheppard & Condon, Pensacola, for' appellee.
   ROBERT P. SMITH, Jr., Judge.

At issue on USF&G’s appeal is whether Section 440.39(3)(a), Florida Statutes (1977), since amended, Chapter 79-40, Section 30, Florida Laws, required that the carrier’s notice of compensation and medical benefits paid be recorded in advance of the judgment, as well as previously filed in the worker’s lawsuit against the third party tortfeasor, in order to constitute a lien for equitable distribution of benefits paid. The circuit court held that USF&G’s notice was timely filed, but not timely recorded before entry of judgment, and so denied USF&G’s claim of lien. Section 440.39(3)(a) provided in relevant part:

Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall be recorded and the same shall constitute a lien upon any judgment recovered to the extent that the court may determine to be their pro rata share for compensation benefits paid or to be paid. ..

USF&G recorded its notice and claim of lien after the worker’s judgment was entered but before it was satisfied. That, we think, was sufficient to establish a lien under the statute. No sound reason has been advanced, and no authority has been cited, including Cook Motor Co. v. Vaughn, 189 So.2d 536 (Fla. 1st DCA 1966), Alfar Creamery Co. v. Williams, 366 So.2d 458 (Fla. 4th DCA 1979), and Kight v. Capeletti Bros., 384 So.2d 1302 (Fla. 4th DCA 1980), which requires a more restrictive interpretation.

REVERSED.

THOMPSON, J., and WOODIE A. LILES, (Retired), Associate Judge, concur.


author: PER CURIAM.

text:
    STATE of Louisiana v. Reynold SANTACRUZ.
    No. 66539.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   On Application for Rehearing.

PER CURIAM.

The decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) does not apply retroactively to convictions obtained by juries empanelled prior to the date of that decision, January 21, 1975. Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975); State v. Rester, 309 So.2d 321 (La.1975). See also State v. Watkins, 340 So.2d 235 (La.1976); State v. Simmons, 328 So.2d 149 (La.1976); State v. King, 322 So.2d 205 (La.1975). Here defendant was tried and convicted on March 7, 1974.

Accordingly, the application for rehearing is denied.

Case below: La., 386 So.2d 364.


text:
    STATE v. Edward MANUEL.
    No. 66769.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   ORDER

Considering the foregoing motion:

IT IS ORDERED that there be a stay order granted herein for 60 days, La., 386 So.2d 365, to allow defendant, Edward Manuel, to apply for writs of certiorari and/or seek any relief before the United States Supreme Court, or any other federal court.

IT IS FURTHER ORDERED that the defendant, Edward Manuel, be permitted and authorized to remain on bond while proceedings are stayed.


author:
DIXON, Chief Justice,
      LEMMON, Justice,

text:
    SOUTHERN EXCAVATION, INC. v. STATE of Louisiana, By and Through the Louisiana DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al.
    No. 80-C-2498.
    Supreme Court of Louisiana.
    Oct. 28, 1980.
    DIXON, C. J., concurs in the denial for reasons assigned.
    LEMMON, J., assigns additional concurring reasons.
    DENNIS, J., would grant plaintiff’s petition for a stay order and a full appeal for reasons assigned.
   DIXON, Chief Justice,

concurs in the denial.

It would have been vain and useless for the trial court to remand this case to the agency for the appropriate hearing. The irregularity in plaintiff’s bid was fully explored in the trial of plaintiff’s case in the district court, which found that plaintiff’s bid was, indeed, “unbalanced” and subject to disqualification.

LEMMON, Justice,

concurring.

Since the issue of the disqualification of relator’s bid was fully aired at the trial court’s hearing on the injunction, relator has failed to show how he was injured by the agency’s failure to provide notice and hearing on the issue.

DENNIS, Justice, would grant plaintiff’s petition for a stay order and a full appeal.

This Court in Haughton Elevator Division v. State, 367 So.2d 1161 (La.1979) held that the due process clause of the Fourteenth Amendment requires at least the following procedural safeguards before a low bidder is disqualified:

“(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 bidders’s private interest against arbitrary rejection of its bid in the letting of the contract to a higher bidder.)”

The trial court found that the department failed to comply with these procedural safeguards. The trial court found that the department improperly awarded the contract to the second lowest bidder. Yet instead of setting aside the agency action and remanding the case for a due process hearing, including written administrative findings of fact, as required by Haughton, 367 So.2d at 1166, the trial court took evidence on the merits of the low bidder’s disqualification and improperly substituted its judgment for that of the administrative agency. See Haughton Elevator Div. v. State, supra; Authority of Opelousas La. v. Pittman Construction Co., 264 F.2d 695 (5th Cir. 1959). Thus, the plaintiff was deprived of his rights to notice, a hearing and a judicial review based on contemporaneous assignment of specific reasons upon which his disqualification was based.


author: LEMMON, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Freddie CANN.
    No. 66349.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Concurring Opinion Jan. 16, 1981.

      Thomas W. Davenport, Jr., Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Martha E. Minnieweather, Asst. Dist. Atty., for plaintiff-appellee.
   LEMMON, Justice.

This is an appeal from a conviction of possession of cocaine. Finding prejudicial error in the prosecution’s introduction of evidence of other crimes, we reverse the conviction.

In executing a warrant for the search of a trailer occupied by defendant and his brother, law enforcement officers discovered marijuana in the trailer and a small amount of cocaine in the refrigerator. Both brothers were charged with possession of marijuana with intent to distribute and possession of cocaine. Pursuant to a plea bargain defendant and his brother pleaded guilty to first offense possession of marijuana, and the prosecution dismissed all other charges (including a prior unrelated marijuana and cocaine charge against defendant), except the present charge for possession of cocaine.

At trial an officer testified on direct examination that defendant stated he believed the white powder in the refrigerator was sugar and did not know it was cocaine. With the issue of guilty knowledge thus framed, the prosecutor sought to introduce documentary evidence of defendant’s prior guilty plea to possession of marijuana. The prosecution contended this evidence was admissible either as evidence of guilty knowledge under R.S. 15:445-446 or as evidence seized as part of res gestae under R.S. 15:447. Over defense counsel’s objection the judge admitted the bill of information charging defendant with possession with intent to distribute and the minutes of the guilty plea to the reduced charge of simple possession. No attempt was made to introduce the marijuana seized at the time of the seizure of the cocaine.

Evidence of other crimes is generally inadmissible because of its tendency to portray defendant as a “bad character”. State v. Moore, 278 So.2d 781 (La.1972); State v. Gaines, 340 So.2d 1294 (La.1976); State v. Frentz, 354 So.2d 1007 (La.1978). Nevertheless, R.S. 15:446 authorizes the admission of evidence of extraneous crimes, when knowledge forms an essential part of the inquiry, for the purpose of showing guilty knowledge.

While knowledge is an essential element of the crime of possession of a controlled dangerous substance, evidence of other crimes for the purpose of showing guilty knowledge is not automatically admissible in all possession cases. The probative value of the evidence must outweigh its prejudicial effect on the jury. State v. Frederick, 340 So.2d 1353 (La.1976). One of the factors to be considered in weighing the probative value of evidence of extraneous crimes against its prejudicial effect is whether knowledge is truly a contested issue under the facts of the particular case. See State v. Williams, 352 So.2d 1295 (La.1977).

In the present case cocaine was discovered in the refrigerator of a trailer occupied by defendant and his brother. Two women were also at the trailer when the search was conducted. Under these circumstances defendant’s guilty knowledge (that the white powder was cocaine) arguably was a truly contested issue, so that evidence of possession of other drugs could have significant probative value as to the issue of knowledge.

The prosecution, however, did not introduce either the other dangerous substances found in the search or testimony as to their discovery. Rather, the prosecution introduced the bill of information charging defendant with possession of marijuana with intent to distribute and the minutes of the guilty plea to the reduced charge. The bill of information charging the more serious crime contained the prejudicial and inadmissible opinion of the district attorney as to defendant’s knowledge and intent. The minute entry of the guilty plea to the reduced charge constituted evidence of judicial approval of a plea bargain (that could have been based on numerous unrevealed considerations), rather than merely a factual admission that defendant knowingly possessed marijuana. Even more significantly, the document may well have created the impression that defendant was guilty of charges that were dismissed and had “gotten off lightly”.

When all of these facts and circumstances áre considered, the admission of evidence relating to defendant’s being charged with other crimes was improper and highly prejudicial. While proper evidence of the discovery of marijuana in the search arguably had probative value on the issue of guilty knowledge that outweighed its prejudicial effect, evidence raising an implication of a plea bargain with the prosecution clearly did not. See State v. Gaspard, 301 So.2d 344 (La.1974).

Finally, evidence that defendant was charged with possession of marijuana with intent to distribute was not admissible as part of the res gestae. The bill of information and the minute entry of the guilty plea to the reduced charge were so far removed in time and place from the seizure that they cannot reasonably be so classified.

For these reasons the conviction and sentence are reversed, and the matter is remanded for a new trial.

REVERSED AND REMANDED.

DENNIS, J., concurs and assigns reasons.

DENNIS, Justice,

concurring.

I respectfully concur in the reversal of the defendant’s conviction being of the opinion that the motion to suppress filed by the defendant and denied by the trial court should have been granted. The search warrant affidavit did not recite sufficient trustworthy hearsay information, or sufficient individual police officer observations, or an adequate combination of both to establish probable cause.

1.

On July 29, 1978 police officers Toney, Givens, and Worley searched a trailer occupied by the defendant and others. This search was conducted pursuant to a warrant obtained by these officers. The search revealed both marijuana and cocaine on the premises. As a result of this search defendant went to trial for possession of cocaine.

I do not believe that the affidavit given by the officers in applying for the search warrant is sufficient to establish the required probable cause necessary for the warrant to be issued. The pertinent portion of the affidavit reads as follows:

“Within the last 30 days your affiant has been contacted by a confidential informant and this informant began providing information about several known narcotic law violators in the Ouachita Parish area. The detailed information provided by this confidential informant has been checked by your affiants and this information has been verified as true and correct. The confidential informant that has provided reliable information has informed your affiants of violations that other reliable confidential informants have also stated to your affiants. This reliable confidential informant has turned over to affiants Worley and Toney marijuana in the past. This most recent reliable confidential information stated to your affiants that Freddie and Donell Cann located in trailer residence at 504 Morton Street in Monroe, Louisiana have in their possession marijuana which is for sale.
“Within the last 72 hours affiants Toney and Givens searched the reliable confidential informant and found no controlled dangerous substances, then the reliable confidential informant was seen by affiants going into the trailer residence at 504 Morton. The reliable confidential informant was also seen by affiants leaving the trailer residence and immediately turned over to affiants a bag of suspected marijuana which was tested and the test proved positive. The reliable confidential informant observed both Freddie and Do-nell Cann in their trailer residence. This was a direct controlled surveillance buy and the only time this reliable confidential informant was out of the affiants sight was when the reliable confidential informant was in the trailer.
“Deputy Toney has personal knowledge of the Cann’s. Freddie Cann was arrested by Deputy Toney for possession of both marijuana and cocaine with intent to distribute. Deputy Toney has found a quantity of marijuana in the outside storage shed at 504 Morton in the past. Deputy Toney has also found cocaine in the trailer residence at 504 Morton.”

2.

Article 1, § 5 of the 1974 Louisiana Constitution and the Fourth Amendment to the United States Constitution protect our citizens against unreasonable searches and seizures and provide that no warrant authorizing a search or seizure shall be issued without probable cause supported by oath or affirmation. In addition Louisiana Code of Criminal Procedure Article 162 provides that a search warrant “may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.” The philosophy underlying these prerequisites was expressed more than thirty years ago by United States Supreme Court Justice Jackson:

“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948).

Nevertheless, the facts necessary to show probable cause may be established by hearsay evidence. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); State v. Paciera, 290 So.2d 681 (La.1974). The Supreme Court in Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), laid down the test by which information given the affiant by an unidentified informant could be considered by the magistrate in determining if there was probable cause upon which a search warrant should issue.

“[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed .... was ‘credible’ or his information ‘reliable.’ ” 378 U.S. at 114-15, 84 S.Ct. at 1514, 12 L.Ed.2d at 729.

A careful analysis of Aquilar reveals that its two part test is designed to perform different functions. The first part is designed to insure that the informant obtained his information by personal observation, or in some other dependable manner rather than through mere rumor. This “basis of knowledge” test is a corollary of the Fourth Amendment’s requirement that the magistrate, and not the police officer-affiant or his informant, shall weigh the facts and decide whether they establish probable cause. See Spinelli v. United States, infra, 393 U.S. at 424, 89 S.Ct. at 584, 21 L.Ed.2d at 648 (White, J., concurring); Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741, 751-52 (1974).

The second prong of Aquilar’s two pronged test is aimed at determining the veracity of the source of the hearsay information. Aquilar held that this test could be satisfied in either of two ways: (1) The affidavit may recite facts from which the magistrate could conclude that the informant is credible, or (2) It may recite facts from which the magistrate could conclude that the informant’s information is credible. The “veracity prong” of Aquilar’s two part test is designed to perform the same function that the oath and the magistrate’s direct observation serve in evaluating the truthfulness of the affiant. As the oath serves as a hedge against issuing an affidavit based on false allegations, so too does the requirement that there be included in the affidavit facts which indicate a reason for believing in the veracity of the source of the information. See Moylan, supra, at 750-51.

This Court has followed the dictates of Aquilar and has held that an affidavit relying on an unidentified informant as the source of information “must set forth underlying circumstances and details sufficient to provide a factual basis by which the magistrate might find reliable both the informant and the information given by him.” State v. Paciera, supra, 290 So.2d at 685-86.

3.

The Supreme Court in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), supplemented Aquilar by showing him how initial structural flaws in the warrant application might be shored up. It looked first to a defect in the application as measured against the veracity prong. If the internal recitation about the informant or about the circumstances under which the information was furnished failed to establish that he was “credible” or that his information was “reliable” then the independent observations made by the officers-affiants might be looked to by way of verification, corroboration or authentication. Moylan, supra, 748-49. Spinelli explained its independent verification technique in the following terms:

“The informer’s report must first be measured against Aguilar’s standards so that its probative value can be assessed. If the tip is found inadequate under Aquilar, the other allegations which corroborate the information contained in the hearsay report should then be considered. At this stage as well, however, the standards enunciated in Aquilar must inform the magistrate’s decision. He must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aquilar’s tests without independent corroboration? ... A magistrate cannot be said to have properly discharged his constitutional duty if he relies on an informer’s tip which — even when partially corroborated — is not as reliable as one which passes Aquilar’s requirements when standing alone.” 393 U.S. at 415-16, 89 S.Ct. at 588-89, 21 L.Ed.2d at 643.

Spinelli treated a structural flaw in the “basis of knowledge” prong of an affidavit as a distinct and independent problem. The court pointed out that, even lacking an explicit recitation that the informant had personally observed the incriminating facts, the information coming from the informant might be furnished in sufficient detail to imply that he was speaking from first hand information, and not just passing on a rumor. Spinelli described this “self verifying detail” technique as follows:

“In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.
“The detail provided by the informant in Draper v. United States . .. provides a suitable benchmark .... A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.” 393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed.2d at 644.

4.

The affidavit in this case is deficient as measured by each prong of the Aquilar test. It fails the “basis of knowledge” test because the magistrate was not informed of the underlying circumstances from which the informant concluded that, within the past 30 days, “Freddie and Donell Cann located in trailer residence at 504 Morton Street in Monroe, Louisiana and have in their possession marijuana which is for sale.” It fails the “veracity” test because the internal recitation about the informant or the circumstances under which the information was furnished does not contain any facts from which the magistrate reasonably could have concluded that the informant was credible or that his information was reliable when he reported, within the last thirty days, that the Canns had in their trailer marijuana which was for sale.

When the affidavit fails to assert that the informant is recounting firsthand observations, the curative technique suggested by Spinelli is that of “self verifying detail.” Moylan, supra, at 749-50. We do not find in the affidavit at bar, however, such detail from which the magistrate “could reasonably infer that the informant had gained his information in a reliable way.” Spinelli, supra, 393 U.S. at 417, 89 S.Ct. at 589, 21 L.Ed.2d at 644. The fact that the informant, after reporting marijuana was for sale at the defendant’s trailer at some time within 30 days before the application, returned to the trailer and obtained marijuana does not furnish details which verify that his initial report was based on personal observation, rather than mere rumor. That the tip is not completely fabricated does not suggest that the informant’s knowledge was obtained through personal observation or other dependable manner. Comment, 54 Cornell L.Rev. 958, 963 (1969).

Even where the internal evidence about the informant, or about the circumstances under which the information was furnished, fails to establish intrinsically personal “credibility” or informational “reliability,” external evidence, contained elsewhere in the application, may be examined to see what buttressing it provides. Moylan, supra, at 777. The test at this point is whether the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s tests without independent corroboration. Spinelli v. United States, supra, 393 U.S. at 415-16, 89 S.Ct. at 588-89, 21 L.Ed.2d at 643.

Applying these precepts, I do not find that the other allegations in the affidavit fully corroborate the informant’s tip. The informant’s story, reported some time within thirty days before the application was prepared, was that at an undisclosed time defendants had marijuana which they would sell at their trailer. Perhaps, the fact that a bag of marijuana was obtained at the trailer by the informant, within three days before the application was made, tends to corroborate the tip that marijuana was for sale in the past. But “[a] magistrate cannot be said to have properly discharged his constitutional duty if he relies on an informant’s tip which — even when partially corroborated — is not as reliable as one which passes Aquilar’s requirements when standing alone.” 393 U.S. at 415-16, 89 S.Ct. at 584, 21 L.Ed.2d at 643.

The tip, although partially corroborated, is not as trustworthy as a tip which would pass Aguilar’s tests without independent corroboration. The fact that a bag of marijuana was present at the trailer within three days before the application for the warrant does not necessarily mean that marijuana was present before or after-wards. The informant’s acquisition of marijuana does not conclusively indicate that it was sold to him; the affidavit is silent as to whether he was given money before he entered the trailer and whether any was in his possession when he returned. The allegation that an officer found marijuana in a shed outside the trailer is not necessarily related to recent events or the defendants; the affidavit does not specify when the seizure occurred or even state that the defendants occupied the trailer at this time. The arrest of defendant for alleged criminal acts unrelated to the specific incident reported by the informant is entitled to no weight in appraising the magistrate’s decision to issue a warrant. State v. Boneventure, 374 So.2d 1238 (La.1979). That the informant gave the officers information of unknown content which matched data obtained from other informers, whose basis of knowledge and veracity were not set forth in the affidavit, is an unsatisfactory basis upon which to establish any factual indicia for probable cause. State v. Tassin, 343 So.2d 681, 691 (La.1977). All these weaknesses make for a much less reliable tip than one which passes Aquilar’s requirements when standing alone.

5.

Since none of the hearsay information contained in the affidavit passes muster under the Aquilar tests, or the Spinelii curative techniques, it must be determined whether the independent police observations are sufficient in themselves to demonstrate probable cause.

The independent police observations were that (1) The informant obtained a bag of marijuana from the defendant’s trailer within three days before the application was presented; (2) At an unspecified time the defendant was arrested for possession of cocaine and marijuana; (3) At an unspecified time marijuana and cocaine were found on the premises occupied by the defendant at the time of the search; and (4) The informant, at unspecified times, had turned over marijuana to the police officers.

These independent observations do not furnish probable cause to believe that marijuana was located in the defendant’s trailer at the time the warrant was applied for.

The affidavit does not state that the informant observed any marijuana on the premises other than the bag he obtained. An affidavit which recites credible facts showing merely that a small amount of marijuana was taken from a particular place within the previous seventy-two hours does not, without more, establish probable cause to believe that other marijuana was located there at the time the warrant was to be issued. See State v. Lewis, 385 So.2d 226 (La.1980); State v. Boneventure, supra; State v. Valentine, 355 So.2d 897 (La.1978). Unless the other independent observations of the police officers can be combined with this information to show a probability that other marijuana was located in the trailer at the time the application was presented, there was no probable cause to search the trailer. See 1 LaFave, § 3.7.

The remaining independent observations have no probative force to show that there was a likelihood other marijuana was located at the trailer for several reasons. First, the affidavit fails to specify the times at which the observations were made. Here, the affiant’s information merely asserted that at some point in the past, which could have been a day, week, months or years prior to the date of the affidavit, drugs were found at the premises now occupied by the defendant. Whether the previous observations had any relation to defendant, or whether they reasonably indicate a continuing course of conduct critically depend on the time of those observations. It is well settled that if the time of occurrence of the facts relied upon is critical in determining whether there is probable cause to search, then surely “failure to state when the alleged facts occurred is fatally defective.” 1 LaFave, § 2.7, p. 693; State v. Rosenthal, 269 N.W.2d 40, 41 n.2 (Minn.1978); Thomas v. State, 353 So.2d 54 (Ala.App.1977); Pierson v. State, 338 A.2d 571 (Del.1975); Bailey v. State, 131 Ga.App. 276, 205 S.E.2d 532 (1974); Walker v. State, 49 Ala.App. 741, 275 So.2d 724 (1973); People v. Padilla, 182 Colo. 101, 511 P.2d 480 (1973); Bruce v. Commonwealth, 418 S.W.2d 645 (Ky.1967). See State v. Morgan, 376 So.2d 99 (La.1979); State v. Loehr, 355 So.2d 925 (La.1978); State v. Thompson, 354 So.2d 513 (La.1978).

Additionally, arrests for alleged criminal acts, or assertions of a suspect’s reputation for past criminal activity, unrelated to the specific incident related in the affidavit is entitled to no weight in the magistrate’s determination of probable cause. State v. Boneventure, supra; State v. Tassin, supra. Finally, the fact that the informant turned over drugs to the officer at some point in the past was not connected with the defendant or the place to be searched.

Accordingly, the motion to suppress should have been granted because the search warrant affidavit did not contain sufficient trustworthy hearsay information, or sufficient independent police officer observations, or an adequate combination of both, to establish probable cause to search.

      . Because of our disposition of the case it is not necessary to determine whether this was the proper way to frame the issue.

      . For example, if a person is charged with possession after a legal search of his person reveals narcotics taped to his navel, the prosecution could not seriously contend that knowledge is such a disputed issue that evidence of other crimes has any necessary or probative value on the issue.

      . There was different luggage and men’s clothing in each of the two bedrooms, indicating that defendant and his brother both lived there. The absence of women’s clothing indicated the two women were visitors.

      . Guilty pleas are generally admissible as admissions of the elements of the offense to which the plea is entered. See Davis v. Bankston, 192 So.2d 614 (La.App. 3rd Cir. 1966); Pugh, Louisiana Evidence Law, p. 443 (1974).

      . The guilty plea, viewed by the jury as a confession, obviously was more devastating than mere evidence that marijuana was found on premises occupied by defendant.

      . Again, the marijuana itself or testimony as to its discovery might have been admissible as part of the res gestae.

      . According to Judge Moylan, Aquilar in outline form was concerned with
      The Trustworthiness of Hearsay
      I. The Basis of Knowledge Prong
      II. The Veracity Prong
      A. The Credibility Spur
      B. The Reliability Spur
      To avoid confusion he recommended limiting use of the term “reliability” as a word of art, to refer to the second spur of the veracity prong. Moylan, supra, at 756. Some of the type of confusion spoken of by Judge Moylan may have resulted from our use of the word in speaking of both Aquilar prongs in Paciera.

      . The failure to pass the test of either prong is fatal and makes discussion of only one prong necessary in this opinion. However, for purposes of clarity I will discuss the frailties of the affidavit under the test of each prong.


author: MARCUS, Justice. DIXON, Chief Justice LEMMON, Justice,

text:
    Francis M. BATES v. FOREMOST-MCKESSON, INC.
    No. 67724.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    John Schauer, Charles C. Jackson, Sey-farth, Shaw, Fairweather & Geraldson, Chicago, Ill., David Donnell Moss, Hebert, Moss & Broussard, Baton Rouge, for defendant-applicant.
    Ralph Brewer, Michael W. McKay, Baton Rouge, for plaintiffs-respondents.

      Randall J. Wells, Avant, Wall, Thomas, Riche & Falcon, for amicus curiae.
   MARCUS, Justice.

Francis M. Bates filed this action against his former employer, Foremost-McKesson, Inc., for damages resulting from the wrongful termination of his employment with said corporation.

Plaintiff alleged in his petition that he was employed as a truck driver and warehouseman by defendant when discharged as a result of an accident involving his alleged negligence in the operation of his truck. During his employment, plaintiff was a member of the General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local 270, hereinafter referred to as union, which had a collective-bargaining agreement with defendant corporation in effect at the time of his discharge. Plaintiff further alleged that he was discharged in violation of this agreement, specifically Article VII thereof, in that he was not negligent in the operation of his truck. The agreement recognized the union as the exclusive bargaining agent for plaintiff and other employees in his job classification and set forth a grievance procedure to be utilized by disciplined and discharged employees. Plaintiff filed a grievance contesting his discharge, thereby formally requesting the union to represent him in the proceedings. When no satisfactory adjustment of the grievance was concluded, the union pursued the matter to arbitration. The arbitrator found that plaintiff was discharged for “just cause.” Thereafter, the instant suit was filed.

Defendant corporation filed exceptions of no right of action, no cause of action and res judicata, urging that in view of the arbitration award, plaintiff had no right or cause of action and the dispute between the parties was res judicata. The trial judge sustained the exception of res judicata. Plaintiff appealed. The court of appeal reversed, holding that since plaintiff was not a party to the prior arbitration proceeding conducted under the collective-bargaining agreement, the arbitrator’s decision was not a res judicata bar to the present suit. Upon defendant’s application, we granted certiorari. Finding that the exception of no cause of action should be sustained, we reverse the judgment of the court of appeal and remand to the district court for further proceedings consistent with the views hereinafter expressed.

At the outset, we recognize that this action, alleging a breach of a collective-bargaining agreement, arises under section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1976), which provides:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

While this statute confers upon federal district courts jurisdiction to hear cases involving a breach of a labor contract, the United States Supreme Court has held that they are not endowed with exclusive jurisdiction over § 301(a) suits; actions to enforce collective-bargaining agreements may be brought in either state or federal court. Charles Dowd Box Co., Inc. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). However, in the interest of uniform labor policies, the Supreme Court has made it clear that the federal substantive law and not state law should govern the rights of the parties in a § 301(a) dispute. Teamsters Local v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962); Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957). Therefore, whether or not plaintiff is entitled to seek judicial relief in the instant case will be determined under principles of federal labor law.

National labor policy, as embodied in the Labor-Management Relations Act, contemplates that the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement should be one agreed upon by the parties and set out in the agreement itself. 29 U.S.C. § 173(d) (1976). Accordingly, when a dispute arises within the scope of a collective-bargaining agreement, the parties are relegated to the remedies provided in their contract. The courts have given this policy effect by concluding that an individual employee wishing to assert a contract grievance may not bring a court action against his employer for breach of contract without first resorting to the procedures agreed upon by the employer and union as the mode of redress. Republic Steel v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); Piggly Wiggly, Inc. v. Piggly Wiggly Warehouse Independent Truck Drivers Local No. 1, 611 F.2d 580 (5th Cir. 1980); Lomax v. Armstrong Cork Company, 443 F.2d 1277 (5th Cir. 1970); Haynes v. U. S. Pipe and Foundry Co., 362 F.2d 414 (5th Cir. 1966). Furthermore, where the grievance procedure provides that the decision is final and binding, an individual will be precluded from subsequently seeking an adjudication in the courts unless the grievance process has been seriously flawed by the union’s breach of its duty to represent employees honestly and in good faith and without invidious discriminatory or arbitrary conduct. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Connally v. Transcon Lines, 583 F.2d 199 (5th Cir. 1978); Lomax v. Armstrong Cork Company, supra. Preclusion of judicial review is necessary for reasons stated by the United States Supreme Court in Republic Steel v. Maddox, supra:

A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it. In addition to cutting across the interests already mentioned, it would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.

In the instant case, the grievance procedure decided upon by defendant corporation and the union to settle contract disputes was that of arbitration. The arbitrator found just cause to discharge plaintiff under the terms of Article VII of the collective-bargaining agreement. Article VII further provides that “his [the arbitrator’s] decision shall be final and binding on both parties,” clearly indicating that judicial adjudication of the controversy was not contemplated by the parties to the agreement absent an allegation of unfair representation by the union during the arbitration procedure. Plaintiff’s original and supplemental petitions make no such allegation. Therefore, we conclude that plaintiff’s petition seeking damages for his wrongful discharge fails to disclose a cause of action upon which relief can be granted. La.Code Civ.P. art. 927; Davenport v. Kaiser Aluminum & Chemical Corp., 206 So.2d 526 (La.App. 1st Cir. 1968).

Because counsel for plaintiff in argument before this court stated that, if we conclude that plaintiff’s petition fails to state a cause of action he may wish to amend- and assert that the union unfairly represented plaintiff in the arbitration procedure, we must, in sustaining the exception, order such amendment within a certain delay; if the grounds of the objection cannot be so removed or if plaintiff fails to comply with the order to amend, the action shall be dismissed. La.Code Civ.P. art. 934.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed. The exception of no cause of action is sustained allowing plaintiff thirty days from the finality of this decision to amend his petition in the district court to state a cause of action; otherwise, the action shall be dismissed. The case is remanded to the district court for further proceedings in compliance with the order of this court.

DIXON, C. J., concurs in part and dissents in part with reasons.

LEMMON, J., concurs and assigns reasons.

DIXON, Chief Justice

(concurring/dissenting).

I concur with the majority opinion, except that portion which reserves to plaintiff the right to amend and expand his pleadings. In my view, the federal law makes the union the exclusive agent in this case to pursue a grievance against the employer. Res judicata should protect the employer against relitigation of the same issues. For the purposes of res judicata the agent and the principal are identical parties in the arbitration and litigation. If there should exist a claim by plaintiff for “unfair representation” by the union, he had an action available to him, directly against the union, which he did not bring.

LEMMON, Justice,

concurring.

Plaintiff concedes he has no cause of action if this is a Section 301(a) case.

In the absence of a collective bargaining agreement defendant could have fired plaintiff without cause. Therefore, plaintiff’s right to demand damages for wrongful termination could only arise under the contract, since he otherwise had no right to demand continuation of employment.

This suit alleging violation of the collective bargaining agreement is therefore clearly a Section 301(a) case, and plaintiff’s petition fails to state a cause of action.

      . 385 So.2d 478 (La.App. 1st Cir. 1980).

      . 386 So.2d 360 (La.1980).

      . The applicable provision of the collective-bargaining agreement in the instant case is Article VII which states:

        ARTICLE VII DISCIPLINE — GRIEVANCES — ARBITRA TION

      The Company shall not discipline or discharge any employee without just cause and shall give at least one warning notice of the complaint in writing against such employee, such warning notice shall be retained for one year, except that no warning notice need be given to an employee before he is discharged if the cause of such discharge is dishonesty, use of alcoholic beverages while on duty, reporting to work under the influence of alcohol, narcotics, “RX” stimulants or hypnotics, recklessness or negligence resulting in a serious accident or serious damage to company property, carrying of unauthorized passengers or failure to report an accident. Violation of other Company rules may also be subject to discipline or discharge without warning if the offense warrants such action. It is agreed by the Company and the Union that all grievances shall be settled in the shortest possible time. The Union shall be represented by a committee composed of not more than two (2) active employees, members of the Union, having a minimum of one (1) year’s service with the Company and, in addition, if desired, one (1) official of the Union. Any assignment of work over which a controversy has arisen shall be carried out until the controversy is settled through the following procedure:

        FIRST STEP: If an employee has a grievance, he will consult his'supervisor for clarification within three (3) workdays of the alleged occurrence of the grievance. If the employee wishes, he may have a Union representative accompany him through the various steps. His supervisor shall attempt to adjust the complaint within two (2) workdays from the date he is notified that the grievance exists. The supervisor’s decision shall be final and unappealable to Step 2 unless appealed in writing within three (3) workdays from the date decision is given under this Step.

        SECOND STEP: If the employee and the supervisor do not reach an agreement, the matter shall be reduced to writing by the employee, copies of which shall be sent to the Company and the Union. The Company shall attempt to adjust the complaint and shall reply in writing not later than three (3) workdays from the date the written grievance is received. The written decision given in this Step shall be final and unappealable unless appealed in writing within three (3) workdays from the date decision is given under this Step.

        THIRD STEP: Any dispute relating to the interpretation of the terms of this Agreement, not resolved by the above procedure, may be submitted to arbitration.
      a) In the event that no satisfactory settlement is reached under the foregoing, or
      b) If the Company and the Union have a grievance which they cannot settle between themselves.
      If the parties cannot agree upon an impartial arbitrator within ten (10) workdays from date arbitration is invoked, the selection of an arbitrator shall be made from a panel of arbitrators provided by the Federal Mediation & Conciliation Service. The arbitrator shall deal only with the matter which occasioned his appointment and his decision shall be final and binding upon both parties. In no case, however, may the arbitrator make a decision which will in any way add to, subtract from, or alter the terms of this Agreement. The fees of the arbitrator shall be borne equally by the Company and the Union but the Company and the Union shall respectively bear the expense of their own representatives, if any.

      . La.Code Civ.P. art. 934 provides:
      When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.


author: DIXON, Chief Justice. MARCUS, Justice DENNIS, Justice,

text:
    STATE of Louisiana v. Nolan DAUZAT, Jr.
    No. 80-KA-1408.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    Michael J. Johnson, Cottonport, John R. Contois, Marksville, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., Cliff E. Laborde, III, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Chief Justice.

On August 11, 1979 at about 5:00 p. m. Russell Guillot was sitting in his car in the Tunica Tavern parking lot in Marksville, Louisiana. The defendant drove up and parked beside Guillot, pulled out a pistol, waved it at Guillot and then shot in his direction. The bullet lodged in the right front door of the car. Guillot backed the car out of the lot onto the highway and headed west. The defendant followed in his car. Guillot then made a U-turn and headed east toward his father’s house. As he passed the defendant’s car, the defendant shot again, this time hitting the left front door of the car. The defendant was charged by grand jury indictment with attempted second degree murder. (R.S. 14:30.1 and 14:27). A jury of twelve found him guilty of aggravated battery. (R.S. 14:34). After a hearing on the state’s motion to have him sentenced under the habitual offender law (R.S. 15:529.1), the defendant was adjudged a third offender and was sentenced to six years imprisonment at hard labor.

The defendant now appeals his conviction and sentence on the basis of six assignments of error. We reverse because there is no evidence of an essential element of aggravated battery, and discuss only Assignment of Error No. 4.

The defendant contends that the jury erred in returning a verdict of guilty of aggravated battery, as there was no evidence to support such a verdict. He argues that the conviction should be reversed because an essential element of the offense was never proved at trial. The state argues that the verdict should stand because aggravated battery is a legislatively designated responsive verdict to a charge of attempted second degree murder. (C.Cr.P. 814). The state notes that in previous opinions we have refused to examine evidence adduced at trial to determine whether a responsive verdict provided by C.Cr.P. 814 is warranted. It is true that we have, in the past, affirmed convictions of lesser offenses designated as responsive by the legislature where there was evidence to prove the greater offense without reviewing the evidence in the belief that:

“If there is sufficient evidence in the record to support a conviction for a greater offense (which includes the one for which the defendant is convicted), the evidence necessarily and automatically will support a conviction of the lesser offense which has been made responsive by legislative action.” State v. Cooley, 260 La. 768, 773, 257 So.2d 400, 402 (La.1972).

See also State v. Qualls, 353 So.2d 978 (La.1977); State v. West, 319 So.2d 901 (La.1975); State v. Peterson, 290 So.2d 307 (La.1974). However, in all these cases defendants were charged with murder and convicted of manslaughter; the essential elements of the lesser offense found by verdict were essential elements of the greater offense and, consequently, the evidence which proved the greater crime did necessarily and automatically prove the lesser.

We have also disapproved a legislatively provided responsive verdict if it offends a constitutional principle. State v. Booker, 385 So.2d 1186 (La.1980); State v. Peterson, supra, at 310. Our analysis of the elements of the offenses in Peterson constitutes a tacit acknowledgment that:

“... Under the law and the jurisprudence, it is vital to the validity of any verdict for a lesser offense that all the elements of that offense are necessarily contained in the definition of the greater offense. ...” State v. Roberts, 213 La. 559, 567, 35 So.2d 216, 218 (La.1948).

In Roberts, as here, the defendant was indicted for attempting to murder by shooting with a pistol. He was found guilty of aggravated battery and appealed, arguing that the verdict was not responsive to the charge. The court noted that the elements of the crime of attempted murder were specific intent to kill and an overt act in furtherance of that object. (R.S. 14:27 and 14:30). Battery was defined as “the intentional use of force or violence upon the person of another.” (R.S. 14:33); aggravated battery was battery committed with a dangerous weapon. (R.S. 14:34). The court pointed out that if A intentionally shot at B but missed him, he would be amenable to a charge of attempted murder, but not aggravated battery, as he did not apply force or violence to the person of B with a dangerous weapon. Finding it “. .. plain from the definitions of attempted murder and aggravated battery that the elements of the lesser offense are not necessarily included in the greater offense, ...” (State v. Roberts, supra at 213 La. 563, 35 So.2d 217), the court held that the conviction for aggravated battery was not responsive to the charge of attempted murder, reversed the conviction, and dismissed the proceedings against the defendant. The court explicitly rejected the state’s argument that it should be guided by the allegations in the indictment rather than the definitions of the offenses involved in determining whether a greater offense charged contained all the elements of a lesser offense. It said:

“... the test of whether a lesser offense is included in the charge of a greater is not that the indictment alleges a state of facts showing a commission of a greater and lesser offense but rather that all of the elements of the lesser crime are included in the definition of the greater offense.” Emphasis added. State v. Roberts, supra, at 213 La. 564, 35 So.2d 217.

In State v. Peterson, supra, we distinguished Roberts and cases following it on the ground that they did not involve responsive verdicts provided by the legislature. However, in the recent case of State v. Booker, supra, we applied the principles enunciated in Roberts to a situation involving a statutorily designated responsive verdict. In Booker, the defendant was charged with attempted first degree murder and convicted of attempted second degree murder. We reversed the conviction, finding that the verdict, though legislatively provided, was not properly responsive to the charge, as all the elements of the lesser offense were not included in the greater offense. Applying a Peterson -like analysis to the definitions of the two offenses, we determined that an essential element of attempted second degree murder — that the offender be engaged in the perpetration of an enumerated felony when the homicide occurred — was not an essential element of attempted first degree murder. The legislature’s failure to remove the crime of attempted second degree murder from the list of responsive verdicts provided by C.Cr.P. 814 to a charge of first degree murder when it amended the definition of second degree murder created a situation in which a jury could acquit a defendant of first degree murder, finding no specific intent to kill, but find him guilty of second degree murder where there was no evidence to prove that he was engaged in the perpetration of one of the felonies enumerated in the definition of that lesser offense. In reversing the conviction, we stated:

“... due process of law requires that responsive verdicts provided for in statutory enactments by the legislature not invite the jurors to arbitrarily choose a verdict which clearly is not supported by the evidence and which is not a lesser included offense of the greater offense charged. ...” State v. Booker, supra at 1190.

On rehearing, we commented:

“... Although the legislature’s classification of an offense as a responsive verdict is entitled to great weight in deciding whether it is included in the charged offense, . .. constitutionally the substantive elements of the crime definitions must govern in determining whether due process notice of lesser charges is included in an indictment. ...” State v. Booker, supra, at 1192.

In Booker we declined to overturn State v. Cooley, supra, and the cases which held that if there is some evidence in the record to support a conviction for a greater offense, the evidence will also support a conviction of the lesser offense which has been made responsive by the legislature. However, we added the proviso “so long as the elements of the lesser offense are included in the greater offense.” State v. Booker, supra, at 1190. We must now hold that in some cases evidence offered to support a conviction for a greater offense will not necessarily and automatically support a conviction for a lesser offense which has been made responsive by legislative action. Where the definition of the greater crime does not necessarily include all the elements of the lesser, we will have to determine whether there is any evidence to support the conviction for the lesser offense even though it is a legislatively designated responsive verdict. Where there is a total lack of evidence to prove the presence of an element contained in the lesser crime, but not in the greater, the conviction must be reversed.

This case is one in which an essential element of the lesser crime found is not an essential element of the greater crime charged; consequently, the evidence adduced to support the greater offense does not automatically prove the lesser. An essential element of battery — defined as the intentional use of force or violence upon the person of another — is physical contact whether injurious or merely offensive. Contact is not an essential element of attempted murder, which is defined as the commission of an act intended to kill or to inflict grave bodily harm. In many situations an act committed with the intent to kill or injure will also involve contact with the person of another, as where A beats B severely with a club. In those cases, the evidence introduced to support the greater offense will also support the lesser. However, where the accused shoots at the intended victim and misses, the elements of attempted murder may be present but not those of battery. That is the case we have before us. The defendant shot his gun in Guillot’s direction. The bullets lodged in the door of Guillot’s car. Guillot testified at trial that he was not touched by the defendant or by the bullets. Since there is no evidence to establish the presence of the essential element of the crime of battery— contact with the person of another — the verdict of guilty of aggravated battery must be reversed.

Having determined that the conviction must be reversed, we must now decide whether the defendant must be discharged or whether he may be retried for a lesser offense, such as aggravated assault, in light of the double jeopardy clause of the Fifth Amendment. In a recent case the United States Supreme Court dealt at length with the double jeopardy issue. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Noting that its own holdings on the subject could hardly be characterized as models of consistency and clarity, the court attributed much of the conceptual confusion it found in the area to the failure to distinguish reversals based on evidentiary insufficiency from reversals based on trial error. Overruling several previous decisions, the court held that the double jeopardy clause precludes a second trial where a conviction is reversed by an appellate court solely because the evidence introduced at trial is insufficient to sustain the verdict, but does not preclude retrying a defendant when a conviction is set aside because of an error in the trial proceedings. The rationale for this distinction is that:

"... reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecu-torial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. . ..
The same cannot be said when a defendant’s conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. ...” Burks v. United States, 437 U.S. at 15-16, 98 S.Ct. at 2149, 57 L.Ed.2d at 12.

In the case at bar, we reversed the conviction because there was no evidence of an essential element of the crime found by the jury. However, the faulty verdict was largely the product of a trial error in that the judge read the jury the responsive verdicts listed in C.Cr.P. 814 without instructing them that aggravated battery would not be an appropriate responsive verdict where there was no evidence to support that charge. The judge’s action is understandable when considered in the light of some of our previous decisions on responsive verdicts. Nevertheless, C.Cr.P. 803 states, in pertinent part:

“When a count in an indictment sets out an offense which includes other offenses of which the accused could be found guilty under the provisions of Article 814 or 815, the court shall charge the jury as to the law applicable to each offense.”

Had the judge told the jury the essential elements of the crime of battery, the jury might not have rendered that verdict. Unfortunately, the verdict of guilty of aggravated assault, which would have been appropriate in this case, was not designated a responsive verdict to the crime of attempted second degree murder by the legislature.

Because trial error led to the defendant’s conviction for a crime not supported by the evidence, we believe that retrial for a lesser offense is not barred by the double jeopardy clause. Accordingly, we reverse the conviction and remand for proceedings consistent with this opinion.

MARCUS, J., dissents and assigns reasons.

DENNIS, J., concurs and will assign additional reasons.

WATSON, J., dissents for reasons assigned by MARCUS, J.

MARCUS, Justice

(dissenting).

I would not reverse the conviction and sentence for aggravated battery because it is designated by La.Code Crim.P. art. 814 as a responsive verdict to the charged crime of attempted second degree murder. Accordingly, I respectfully dissent.

DENNIS, Justice,

assigning additional concurring reasons.

I join in the majority opinion but feel that a word of caution should be added. Regardless of whether one focuses on the lack of evidence of an essential element of the lesser offense of which defendant was convicted, or on the failure of the indictment to include due process notice of that lesser charge, it was a violation of due process to convict him of that lesser offense. Although both of these deficiencies are present in this case, it would violate due process equally to convict a defendant of a charge of which he was not given adequate notice and against which he had no chance to defend, even if there was evidence to support the charge. State v. Booker, 385 So.2d 1186 (La.1980); Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948).

      . In State v. Peterson, supra, we analyzed the elements of the crimes of murder and manslaughter in order to demonstrate the rational basis for making manslaughter a responsive verdict to a charge of murder. We pointed out that all the elements of the two offenses were identical except for the passion factor. We determined that the presence of passion was not an additional element of the crime of manslaughter but rather a factor which diminished the degree of culpability from that present where homicide is committed without passion. Finding manslaughter to be a legally and constitutionally responsive verdict to a murder charge, we followed State v. Cooley, supra, refused to review the evidence, and concluded:
      . when there is evidence to prove the greater offense, it is the jury’s province to determine the existence vel non of lesser culpability and exercise the statutory right to return the manslaughter verdict. ...” State v. Peterson, supra, at 311.

      . In State v. Poe, 214 La. 606, 620, 38 So.2d 359, 363 (1948), the court cited State v. Roberts, supra, and emphasized that “... if any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive.” The court held that the judge was correct in refusing to instruct the jury that the verdict of simple assault would be responsive to a charge of attempted simple kidnapping.
      In State v. Clayton, 236 La. 1093, 110 So.2d 111 (1959), the court found that a conviction of unauthorized use of a movable (the lesser offense) was not responsive to a charge of issuing worthless checks (the greater offense) because all the essential elements of the lesser offense were not necessarily included in the greater. The court noted that the lesser crime was characterized by a lack of intent to deprive the owner of his property permanently, while the greater crime’s gravamen was intent to defraud.
      In State v. Stewart, 292 So.2d 677 (La.1974), this court said: “A lesser included offense is one composed of some, but not all, of the elements of the greater crime, and which does not have any element not included in the greater offense. ...” 292 So.2d at 679. The court found that possession of a controlled dangerous substance was a lesser offense included in the crime of distribution and a responsive verdict to such a charge.
      In State v. McCoy, 337 So.2d 192 (La.1976), the defendant was charged with aggravated crime against nature and convicted of crime against nature. The court stated that all the elements of the lesser offense were included in the greater and therefore the verdict was responsive to the crime charged.

      . LaFave and Scott, Criminal Law (1972) at 603-604. Battery may be committed by touching or damaging the clothes of another, but does not yet include touching or damaging the automobile of another. The authors believe that physical contact is the element which distinguishes battery from assault. Assault requires no physical contact and may be committed by attempting battery or by intentionally frightening the victim and causing him to fear imminent bodily harm.
      Kadish and Paulsen find that battery includes “the intentional bodily harm of another without justification.” Criminal Law and its Processes (3d Ed., 1975) at 269. They note that assault is sometimes defined as an attempted battery, but may also include the intentional creation in another of reasonable fear of receiving a battery.
      Possibly the broadest interpretation of battery was given in a famous New York case, People v. Moore, 50 Hun 356, 3 N.Y.S. 159 (Sup.Ct.1888): the defendant, who never touched the victim, was convicted of the offense for grabbing the lines of a horse-drawn sleigh in which the victim was riding and forcing it to turn around.