text:
    Helen Francis ROBINSON, Plaintiff-Appellant, v. Takakyo IKARI; Nanking Restaurant, Inc. and Insurance Company of North America, Defendants-Appellees.
    No. 16,477-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Rehearing Denied Oct. 26, 1984.
    Writ Denied Dec. 7, 1984.

      Davis & Davis by Robert S. Davis, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by James B. Gardner and Brian D. Smith, Shreveport, for defendants-appellees.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

The plaintiff, Helen Francis Robinson, brought this action in tort against her supervisor, Takakyo Ikari, for a gunshot wound which he inflicted upon her during the course of their duties in the kitchen at the Nanking Restaurant. Also named as defendants were Nanking Restaurant, Inc., and Insurance Company of North America. The trial judge granted Ikari’s motion for summary judgment, asserting the undisputed facts show that the gunshot was accidental and that suit against a co-employee for an unintentional tort is barred by La.R.S. 23:1032. The judgment was limited to the defendant, Takakyo Ikari. The plaintiff appealed, alleging that the defendant was not in the “normal course and scope of employment,” and that intent is best determined at a trial on the merits.

We affirm for the reasons hereinafter explained.

The plaintiff’s deposition states the facts as follows:

Q. What took place?
A. He had a little easing, sort of like the clear casing you buy cigars in—
Q. A little plastic box?
A. Yes. And it had a bullet in it. So he said, “See, I have a silver bullet.” And I said, “That ain’t no silver bullet, that ain’t nothing but an old .25,” you know, like that. And he went on. I went on doing what I was doing, and he went on doing what he was doing. So I was mixing a batter then, and about ten minutes later I was frying the pork. And I can’t tell you what direction he came in from, if he came from behind me, the side of me or what, you know, but all I know is I could see his hand, and I can’t tell you exactly which hand it was, and there was a gun laying in it. And it was a .25, you know, because I know what it looks like. So he put it in the firing position and he pointed it toward the wall.
The way the kitchen is set up, there is a wall behind the Chinese woks, you know. So it was pointed toward that, and he went to pull back on it, and I told him, I said, “Don’t do that; take the clip out.” I said, “Because a .25 will go off if you blow at it too hard.” So, apparently he didn’t hear me, or something, because he just pulled it back and then let the lever go. And after that, all I know is he turned around, pointed it at me, and somehow it went off.
Q. Just the second he swung toward you it went off?
A. He turned around and faced me— you know, I was taking the pork out of the wok — and all I know is, I heard it when it went off, and it hit me here, (indicating) and I said, “Damn, Taka, you shot me,” like that, you know. And I just left.
Q. Did he give you any explanation at this time of why the gun went off?
A. He said he didn’t know it was loaded.
Q. He didn’t know it was loaded, or he didn’t know whether or not it was loaded?
A. He said, “I didn’t know it was loaded."
Q. Had you all been having any disagreements that would give any indication that he wanted to shoot you with the gun?
A. No.
Q. Did he seem upset that you had been shot?
A. Well, he was in shock.
Q. He was in shock?
A. Yes. I think he was in a bigger shock than I was. Because he stood on the boards in the same position a good five minutes before he ever came to the area where I was. I left him standing there.
Q. At the time, did you know of any reason why he might want to shoot you with the gun.
A. No.
(Deposition of Helen Francis Robinson, pp. 11-15)

The trial judge stated in his reasons for summary judgment that the only witnesses to the shooting were the plaintiff and the defendant. He noted that sworn statements by both parties indicated that the shooting was an accident. He concluded that there was no genuine issue of material fact concerning the incident. The court relied on the definition of an “intentional act” in Bazley v. Tortorich, 397 So.2d 475 (La.1981) and Citizen v. Daigle, 418 So.2d 598 (La.1982) and determined that this defendant did not commit an “intentional act” within the meaning of La.R.S. 23:1032. Finally, the trial judge concluded that “Mr. Ikari’s deviation from his regular duties did not place him outside the normal course and scope of his employment.”

The granting of a motion for summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits filed, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La.C.C.P. Article 966; Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Travelers Ins. Co. v. Blanchard, 431 So.2d 913 (La.App. 2d Cir.1983).

In the present case, there is no genuine issue as to a material fact. There are two issues of law: (1) whether the actions of the defendant constitute an “intentional act” within the meaning of La.R.S. 23:1032, and (2) whether the actions of the defendant were within the “normal course and scope of his employment.”

INTENTIONAL ACT

Bazley is the leading case explicating the amendment to R.S. 23:1032 made by Act 147 of 1976. “The principal legislative aim of the 1976 amendment was to broaden the class of defendants to be granted immunity from suits by injured employees in tort or delict.” Bazley, at 479. However, the necessity for punishing intentional wrongdoers caused the legislature to provide that “the exclusive nature of the compensation remedy does not apply to intentional acts.” Bazley, at 480. The court then determined that the legislative aim was to equate an “intentional act” with the well-established meaning of “intentional tort.” The court expressly refused to focus on the intentional act, instead it found that the legislative intent was to emphasize the intentional harm or consequences. Bazley, at 481.

The more recent Louisiana Supreme Court case of Citizen v. Daigle, buttresses the Bazley language in a factual situation closely analogous to this case. In Citizen, a co-employee purposely aimed what he thought to be an unloaded and broken gun at the plaintiff and pulled the trigger in an attempt to frighten the plaintiff. The gun went off and injured the plaintiff. The court stated that the defendant did not desire to bring about the injury, nor was he substantially certain that injury would result from what he did.

The uncontradicted facts in this case show that Mr. Ikari did not intend to harm Miss Robinson, nor was he substantially certain that his conduct would cause harm to her. Certainly an accidental discharge of a gun should not be considered intentional if the act of aiming a gun and pulling the trigger in Citizen was held not to be intentional. Therefore, we hold this plaintiff is not allowed a tort remedy by the “intentional act” provision of La.R.S. 23:1032.

NORMAL COURSE AND SCOPE OF EMPLOYMENT

Plaintiff urges that playing with a gun in the kitchen should not be considered within the normal course and scope of Mr. Ikari’s employment as kitchen manager of a restaurant. Plaintiff cites two cases which merit discussion.

In the case of Conaway v. Marine Oil Co., 110 So. 181 (La.1926), written under the old, much narrower Employer’s Liability Act of 1918, the accidental pistol killing of one gasoline station attendant by another while on the job was held not to be compensable. The court observed that the gun was not connected with the employee’s job since the gun was not alleged to belong to the employer or alleged to be kept on the premises for the protection of the employer’s or employee’s property. While not passing on whether Conaway would be decided differently under the current compensation act, we note that this case is readily distinguishable in that Mr. Ikari was a manager and he stated in his affidavit that the gun was for “security purpose” (sic).

The case of Powell v. Gold Crown Stamp Company, 204 So.2d 61 (La.App. 2d Cir.1967) is cited by the plaintiff for the proposition that each case must be decided on its own facts. We agree. In fact, this court found in Powell that the shooting of an employee on the worksite by a jealous husband who accused the employee of kissing a co-employee was an “accident” within the “course of employment” under the similar language of La.R.S. 23:1031. The facts of that case are less clearly within the “course of employment” than are the facts of this case.

Plaintiff emphasizes the use of the word “normal” in La.R.S. 23:1032. Plaintiff argues that “normal” was intended to restrict the scope of the language “course and scope of employment.” The court in Citizen held that the deviation of the employee who shot his fellow employee was “not so significant or abnormal as to place him outside the normal course and scope of his employment and that his conduct which led to the injury was employment-rooted.” Citizen, at 602. The employee who turns aside to do something that is not to the direct benefit of the employer does not necessarily leave the normal course and scope of his employment. A certain degree of deviation or turning aside is normal. As Justice Lemmon explained:

“We reject the argument that the Legislature inserted the word ‘normal’ to exclude from immunity an executive officer or coemployee who, while clearly in the course of employment, deviates momentarily to do an act which is not an express duty of his employment. An officer or coemployee, who is in the course of performing employment duties, does not go outside of his ‘normal’ course and scope of employment, within the contemplation of R.S. 23:1032, simply because he turns aside momentarily to light a cigarette, or to walk to the telephone to call his wife to remind her about a certain engagement, or to get a drink of water, or to engage briefly in horseplay in the spirit of fun. An officer or coem-ployee who injures the claimant in such a momentary diversion in the course of performing normal employment duties should not be deprived of immunity on such a tenuous basis.”

Citizen, at pp 601-2. (footnote omitted)

We conclude that the trial court correctly granted defendant’s motion for summary judgment and affirm the district court’s judgment at appellant’s cost.


source: Caselaw Access Project

author: JASPER E. JONES, Judge.

license: Public Domain

text:
    Bereniece V. CUNNINGHAM, Plaintiff-Appellee, v. FRANKLIN PARISH SCHOOL BOARD, et al., Defendants-Appellants.
    No. 16485-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Rehearing Denied Oct. 26, 1984.
    Writ Denied Dec. 7, 1984.

      John Barkley Knight, Jr., Winnsboro, Cotton, Bolton & Hoychick by Glen Roberts, Rayville, for defendants-appellants.
    Jones & Jones Law Offices by Benjamin Jones, Monroe, for plaintiff-appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

This is a tenured teacher termination ease. The Franklin Parish School Board appeals a district court judgment ordering it to reinstate plaintiff as a teacher in the parish school system with back pay from the date of her dismissal. We reverse.

The plaintiff, Beréniece V.. Cunningham, was a Franklin Parish permanent teacher with approximately 30 years of service. See LSA-R.S. 17:442. She could only be terminated for one of the reasons and in accordance with the procedure set forth in LSA-R.S. 17:443 which provides:

§ 443. Removal of teachers; procedure; right to appeal
A. A permanent teacher shall not be removed from office except upon written and signed charges of willful neglect of duty, or incompetency or dishonesty, or of being a member of or contributing to any group, organization, movement or corporation that is by law or injunction prohibited from operating in the state of Louisiana, and then only if found guilty after a hearing by the school board of the parish or city, as the case may be, which hearing may be private or public, at the option of the teacher. At least twenty days in advance of the date of the hearing, the superintendent with approval of the school board shall furnish the teacher with a copy of the written charges. Such statement of charges shall include a complete and detailed list of the specific reasons for such charges and shall include but not be limited to the following: date and place of alleged offense or offenses, names of individuals involved in or-witnessing such offense or offenses, names of witnesses called or to be called to testify against the teacher at said hearing, and whether or not any such charges previously have been brought against the teacher. The teacher shall have the right to appear before the board with witnesses in his behalf and with counsel of his selection, all of whom shall be heard by the board at said hearing. For the purpose of conducting hearings hereunder the board shall have the power to issue subpoenas to compel the attendance of all witnesses on behalf of the teacher. Nothing herein contained shall impair the right of appeal to a court of competent jurisdiction.
B. If a permanent teacher is found guilty by a school board, after due and legal hearing as provided herein, on charges of willful neglect of duty, or of incompetency, or dishonesty, or of being a member of or contributing to any group, organization, movement or corporation that is by law or injunction prohibited from operating in the state of Louisiana, and ordered removed from office, or disciplined by the board, the superintendent with approval of the board shall furnish to the teacher a written statement of recommendation of removal or discipline, which shall include but not be limited to the exact reason(s), offense(s) or instance(s) upon which the recommendation is based. Such teacher may, not more than one year from the date of the-said finding, petition a court of competent jurisdiction for a full hearing to review the action of the school board, and the court shall have jurisdiction to affirm or reverse the action of the school board in the matter. If the finding of the school board is reversed by the court and the teacher is ordered reinstated and restored to duty, the teacher shall be entitled to full pay for any loss of time or salary he or she may have sustained by reason of the action of the said school board.

On May 18, 1982 the superintendent of schools for Franklin Parish, Royce Bryan, sent a letter notifying plaintiff that she had been charged with willful neglect of duty and that a hearing on the charges would be held before the school board on June 18, 1982. Attached to the letter was a formal statement of charges citing three instances of neglect of duty. The statement of charges contains all the information required by 17:443 A except for a statement as to whether any charges had been previously brought against plaintiff.

Plaintiff requested a public hearing at which she was represented by counsel. At the beginning of the hearing the parties, through their respective attorneys, stipulated that no evidence of any prior acts of misconduct by plaintiff, not contained in the statement of charges, would be admitted. No such evidence was admitted. Plaintiffs attorney objected to the noted deficiency in the statement of charges.

At the close of the hearing the school board found plaintiff guilty on two of the three charges and voted to dismiss her. Superintendent Bryan sent plaintiff a letter dated June 22, 1981 informing her of the board’s findings and action. Plaintiff sought judicial review of the board’s decision with the Fifth Judicial District Court. The matter was submitted to the court on the transcript of the board hearing with exhibits. No additional evidence was taken. The district judge ordered plaintiff reinstated with back pay after finding that she was denied due process in the proceedings before the school board because the statement of charges does not indicate whether previous charges had ever been brought against her.

The issues raised by the school board’s appeal are:

(1) Whether the failure to include a statement as to whether previous charges had been brought against plaintiff in the statement of charges rendered the board’s action in firing her invalid; and
(2) If not, whether there is a rational basis for the board’s decision to terminate plaintiff supported by substantial evidence.

Issue # 1

In addition to listing the grounds for which a tenured teacher may be removed from office, R.S. 17:443 A sets out the procedure which must be taken by a school board to terminate such a teacher and the information which must be relayed to the teacher in the statement of charges she receives. The jurisprudence requires the school board to strictly adhere to the procedure in the statute in order for a termination to be valid. See Jackson v. St. Landry Parish School System, 407 So.2d 51 (La.App. 3d Cir.1981); Tate v. Livingston Parish School Bd., 391 So.2d 1240 (La.App. 1st Cir.1980); McCoy v. Tangipahoa Parish School Board, 308 So.2d 382 (La.App. 1st Cir.1975).

We are here concerned with the contents of the statement of charges. That particular provision was added to 17:443 A by Act 631 of 1980 and was a codification of the jurisprudence which required specificity in the charges against the tenured teacher. State Ex Rel. Franceski v. Plaquemines Parish, 416 So.2d 150 (La.App. 4th Cir.1982).

The requirement that the statement of charges contain certain information is designed to insure that the teacher is afforded due process in the proceedings against her. The inclusion of this information enables the teacher to know exactly what alleged facts form the basis of the proceedings against her in order that she can prepare her defense accordingly. See Johns v. Jefferson Davis Parish School Board, 154 So.2d 581 (La.App. 3rd Cir.1963). If the school board intends to present evidence that previous charges have been filed against the teacher and this information is not relayed to the teacher, she would be at a disadvantage in preparing her defense. If, however, the school board does not intend to present such evidence, the teacher is not prejudiced by the failure to include an indication as to whether previous charges have been filed. We conclude that if the teacher is otherwise afforded due process, the mere failure of the statement of charges to include an indication of whether previous charges have been filed does not render the school board’s decision to terminate a teacher invalid in the absence of prejudice to the teacher.

We find no due process violation. All of plaintiff’s constitutional rights were fully protected. See Jennings v. Caddo Parish School Board, 276 So.2d 386 (La. App. 2d Cir.1973). She was advised in writing more than 20 days before the hearing of the specific charges against her. She was represented by counsel of her choosing at a public hearing she requested. She was allowed to cross-examine the witnesses against her and present witnesses and evidence in her own behalf and she exercised her right to judicial review. Furthermore, the school board stipulated at the commencement of the hearing that no evidence would be presented of any wrongdoing on plaintiff’s part which was not included in the statement of charges and no such evidence was presented. There was no attempt by the board to establish there had been any prior charges filed against the plaintiff and the record contains no indication there had ever been any prior charges filed. The proceedings against plaintiff were fundamentally fair and the district judge erred in ruling to the contrary.

Since no evidence of any prior charges or acts of wrongdoing was admitted, plaintiff was not prejudiced by the deficiency in the statement of charges. The school board reached its decision solely on the evidence presented at the open hearing in support of specific charges contained in the written notice given the plaintiff. See Moffett v. Calcasieu Parish School Board, 179 So.2d 537 (La.App. 3d Cir.1965). See also Simon v. Jefferson Davis Parish School Board, 289 So.2d 511 (La.App. 3rd Cir.1974); Johns v. Jefferson Davis Parish School Board, supra.

Issue # 2

The standard of judicial review of a school board action is to determine whether there is a rational basis for the board’s determination supported by substantial evidence. In such cases, the reviewing court must neither substitute its judgment for the judgment of the school board nor interfere with the board’s bona fide exercise of discretion. Howell v. Winn Parish School Board, 332 So.2d 822 (La.1976); Moffett v. Calcasieu Parish School Board, supra; Lewing v. DeSoto Parish School Board, 238 La. 43, 113 So.2d 462 (1959); Jennings v. Caddo Parish School Board, supra.

The two charges of willful neglect of duty plaintiff was found guilty on are:

1. On April 15, 1982, Bereniece V. Cunningham did lock three pre-school handicapped students in her room, leaving them unattended, while she was handling chores not related to the teaching of her class. The students locked in the classroom, unattended, were 4 and 5 years of age ...
2. On April 29, 1982, Bereniece V. Cunningham did leave Winnsboro Lower Elementary School to have a form signed at Winnsboro Junior High School. She signed out at 7:48 A.M., and was expected to return prior to the commencement of her classes. She went to Winnsboro High School; checked out a student for a medical examination for purposes not related to school; and did not return to Winnsboro Lower Elementary until 10:43 A.M., well after her classes should begin. She is charged with missing her classes without permission and without a substitute, and with concealing her intentions in seeking permission to leave campus

The evidence substantially supports the charges. Plaintiff argues: (1) her conduct was not reprehensible enough in either instance to warrant her dismissal; and (2) her termination was contrary to law because she did not receive prior warning that her conduct in either instance was contrary to school policy.

Plaintiffs explanation for the April 15 incident was that she left the children locked in her classroom in order to return a lost handicapped child to the child’s class. She contends she locked the door because the so-called “normal” children at the school occasionally “meddle with” (harass) the handicapped children. She further states she took steps to insure that the classroom was safe before she left and that the trip to the lost child’s classroom only necessitated her being gone a few minutes.

We find this incident to be a most serious breach of plaintiff’s duty to make every effort to assure the safety of the children entrusted to her care. While plaintiff may have felt she had a justifiable reason for leaving the room, she exercised extremely poor judgment in locking three pre-school handicapped children in a classroom unattended. One of the children was blind and the other two had speech impediments. If a sudden emergency had arisen it is doubtful that these children would have been able to fend for themselves or call for help. The fact that nothing happened to the children does not excuse plaintiff’s conduct.

Plaintiff’s explanation for the April 29 incident was that she took the student for a medical examination so he could participate in Special Olympics. She contends the assistant principal of her school, Leo Thorn-hill, knew her purpose for leaving school. The record does not support plaintiff’s argument that Thornhill knew her purpose. Thornhill testified:

I’d like to clarify the permission giving. She came in the office at 7:48, asked could she sign out to the Junior High. I asked her would she be back in time for her first student. She assured me she would. And ah ... I think at 8:20 she hadn’t arrived back. I gave her permission to go to the Junior High and to get a permission slip signed to go on a trip they were taking. She said she would be back in time to meet her first student, cause I specifically asked her that.

This testimony establishes that Thornhill gave plaintiff no permission to go to the high school and take a student for a Special Olympics physical examination and had no knowledge that she intended to do this or be absent from her first two classes.

Plaintiff has a great interest in Special Olympics and devotes much time and energy to the program. Special Olympics is an outstanding program and the athletes and their supporters who give so much of themselves to make the program possible deserve the highest commendation. However, Special Olympics is not an officially sponsored school activity and plaintiff’s work in the program is not part of her teaching duties. A school system could not operate efficiently if its teachers were permitted to miss their classes without permission and without making arrangements for a substitute in order to take care of personal business, however worthy it may be.

Plaintiff argues that a teacher must receive prior warning that she must not commit an act before the conduct can serve as a basis for termination. She cites as authority for her argument the case of Lewing v. DeSoto Parish School Board, supra. The holding in Lewing concerning prior warning is limited to the facts of the case. We find that the correct statement of law on the warning issue is contained in Simon v. Jefferson Davis Parish School Board, supra, wherein the court recognized that a warning is not required when the teacher should know her conduct is improper. There the court stated, “a classroom teacher, merely by the nature of that position, should be aware of the impropriety of some practices.”

We further find that plaintiff was either warned or otherwise knew her conduct was contrary to school policy. While defending herself on a charge that she did not show up at her duty station during recess one day, plaintiff testified that the reason for her absence was that some of her students had not been picked up by their regular teacher and she could not leave the students to go to her duty station because she knew that students were not to be left unattended. Plaintiff also testified that a conflict had developed within the school system over her work with Special Olympics and that Superintendent Bryan had issued instructions to her school’s principal that plaintiff would no longer be allowed to perform functions related to Special Olympics during school hours. (See footnote 2, supra) Plaintiff further indicated that when she checked the student out of school to take him to the doctor’s office she knew she was doing wrong.

The evidence establishes that the plaintiff intentionally violated school policy of which she was well aware and was therefore guilty of willful neglect of her duty. The school rules plaintiff violated were reasonable and necessary for the proper operation of the school.

We find that there was a rational basis for the board’s action supported by substantial evidence.

The judgment of the trial court is REVERSED and the action of the appellant school board terminating the plaintiff is reinstated. All costs are assessed against the plaintiff.

      . The child’s classroom was in another building on campus. Various estimates placed that room at a 2-5 minute walk from plaintiff's room in which she locked the three children.

      . If Thornhill had known plaintiffs purpose for leaving it is doubtful he would have given permission. Plaintiff testified that at some point prior to this incident she asked Thornhill if she could leave school to run an errand for Special Olympics. Thornhill asked the school’s principal, Arthur Rhodes, if it was okay for plaintiff to run the errand. Rhodes informed Thornhill, in plaintiff’s presence, that she was no longer allowed to leave campus for purposes related to Special Olympics during school hours.

      . Plaintiff taught an adapted physical education class for handicapped students. In most cases the students’ regular teacher brought them to plaintiff’s room when it was time for their P.E. class and returned for them at the conclusion of the class.

      . This particular incident was one of the grounds for charge 3 on which plaintiff was exonerated. Charge 3 generally alleged that plaintiff had been lax in the performance of her duties by being late or not performing certain duties at all. Several specific incidents were alleged to support the charge.


author: HALL, Judge.

text:
    Cleo Fred MARTIN, Plaintiff-Appellant, v. Carolyn Staton MARTIN, Defendant-Appellee.
    No. 16488-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.

      Sanders & Sanders by Martin S. Sanders, Jr., Winnfield, for plaintiff-appellant.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for defendant-appellee.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   HALL, Judge.

The appellant, Cleo Fred Martin, appeals from the judgment of the trial court granting him a reduction in alimony, but finding him $3,639 in arrears in payment of alimony and child support and finding him guilty of contempt for failure to pay alimony and child support. Appellant contends that his alimony payments should be terminated, that his child support payments should be reduced, and that his contempt conviction should be reversed. We affirm the judgment of the trial court.

The Facts:

Cleo Fred Martin and Carolyn Martin were divorced on July 30, 1979. Custody of the three sons was awarded to the mother, and the father was ordered to pay $400 per month in alimony and $500 per month in child support.

Mr. Martin filed a rule for termination of alimony on March 14, 1980, claiming that Mrs. Martin was then able to support herself as a result of being employed by Glen-wood Hospital in West Monroe. Mrs. Martin answered, denying Mr. Martin’s claim, and asking that should alimony be decreased or terminated, child support be increased due to the father’s increased ability to pay, and due to the increased needs of the minor children. Mrs. Martin later filed a petition in August, 1980, seeking arrear-ages, and seeking to have Mr. Martin held in contempt for nonpayment. After service of the rule nisi, Mr. Martin made his alimony payments current. When judgment was rendered on the rule in November, 1980, Mr. Martin was found not to be in contempt of court, although Mrs. Martin was awarded attorney’s fees and costs.

On September 7, 1983, Mr. Martin again sought termination of alimony, and on October 21, 1983, Mrs. Martin again sought arrearages and a finding of contempt. At trial Mr. Martin testified that in June, 1982, without consent of the court, he reduced his child support payments by one-third when his oldest son turned 18, and that his wife did not complain of this action. He also testified that he did not pay alimony in September or October 1983 on advice of counsel, who told him that the termination would be retroactive to the filing of his petition. Mr. Martin’s testimony further revealed that his monthly gross income was $4,960, while his take-home pay was approximately $2,100 per month. In contrast, Mrs. Martin testified that her take-home pay from her job at Glenwood Hospital was $629.41 a month, while her estimated expenses for herself, her children, and her household were $1,441.11 per month.

On January 4,1984, the trial court signed a judgment ordering Mr. Martin’s alimony payments reduced from $400 per month to $300 per month, and finding Mr. Martin guilty of contempt for nonpayment of alimony and child support. He was also found to be in arrears in the amount of $3,639. Although sentenced to 30 days in jail, his sentence was suspended, and he was given 60 days in which to pay the arrearage. Mr. Martin appealed, Mrs. Martin did not appeal or answer the appeal.

Issue No. 1:

The first issue in this case concerns the trial court’s ruling that alimony payments be reduced. For such a reduction to be warranted, the party seeking termination or reduction must establish a significant change or modification in the parties’ circumstances since the time permanent alimony was set. Gray v. Gray, 451 So.2d 579 (La.App. 2d Cir.1984). Here appellant, who seeks termination of alimony rather than mere reduction, has a monthly gross income of nearly $5,000 and a monthly take-home pay of at least $2,100. Appellant does not contend, nor do his earnings reflect, that a change in circumstances in the amount of his earnings prevents his paying $300 per month in alimony. On the other hand, appellant does contend that his former wife, who is now employed full-time, no longer needs alimony. The record does not support this contention. Out of the $1,441.11 the appellee estimates as her monthly expenses, she allots $426.24 to herself, while the remainder is allotted to her three children (only $50 is allotted to the child who is no longer a minor). The Court, however, is not limited to considering only the amount the ap-pellee estimates as her own expenses when determining her entitlement to alimony. In evaluating the need for alimony, the Court must examine the totality of the circumstances indicative of the parties’ financial condition. Gray, supra. “[T]he obligation of the parents to support their dependent children is one of the circumstances which the Court must consider in determining the entitlement and amount of alimony after divorce. LSA-C.C. Art. 160.” Lewis v. Lewis, 404 So.2d 1230 (La.1981). Although one of appellee’s three children is now a major, appellee’s half of the estimated expenses for the two minor, dependent, children, is over $470 per month. Combined with the $426.24 appellee needs for herself, she has approximately $900 per month in maintenance expenses, but less than $630 in take-home pay. The difference between the two figures just mentioned, approximately $270 per month, does not vary greatly from the $300 per month in alimony awarded by the trial judge. Calculated another way, approximately $940 in monthly expenses is allotted to the children. Subtracting the $500 child support payments made by appellant, there remains approximately $440 in expenses related to the children which appellee must bear out of her $630 take-home pay, leaving her in need of close to the $300 alimony awarded by the trial court. Furthermore, since the trial court has much discretion in determining the amount of an alimony award, such an award will not be disturbed absent a clear abuse of that discretion. Anderson v. Anderson, 441 So.2d 413 (La.App. 4th Cir.1983); Gabriel v. Gabriel, 419 So.2d 538 (La.App. 5th Cir.1982). Thus, we find the trial judge in the present case did not abuse his discretion in refusing to terminate alimony and in reducing alimony to $300 per month.

Issue No. 2:

The second issue raised by appellant concerns the trial court’s failure to reduce child support payments in light of one child’s becoming a major. The record reveals that appellant never requested the trial court to modify these payments. While appellant requested termination of alimony on September 7, 1983, he made no mention of child support. His only reference to the son’s majority came in his answer to the mother’s petition for arrearag-es and contempt, and was offered as an explanation of his reduced child support payments. The trial judge apparently did not consider the issue of modification of child support payments to be before him since neither party prayed for such a modification. We do not consider the issue properly before us on appeal.

We note, nevertheless, that the original child support order of $500 per month was in globo, and that automatic modification of such support payments by operation of law does not occur when the oldest child reaches majority, but only when the youngest child becomes a major. LSA R.S. 9:309. Underlying this rule is the possibility that remaining minor child may be entitled to an increase that would offset any reduction. Appellee’s uncontradicted testimony shows her estimated expenses for the two minor children were over $940 per month. Assuming appellant should be responsible for at least half of these expenses, his child support payments would be over $470 a month for the two remaining minors. This amount is not significantly different from the $500 per month appellant is currently obligated to pay. The $500 per month is less than the children’s needs and within appellant’s ability to pay. Thus, even if the issue of modification were considered by the trial judge, and were properly before us on appeal, we could not conclude that the trial judge abused his discretion by not reducing child support payments.

Issue No. 3:

The final issue concerns the trial judge’s holding appellant in contempt for nonpayment of alimony and child support. As provided in LSA-C.C.P. 224(2), one may be found in contempt of court for willfully disobeying a lawful order of the Court. “Willful disobeyance” has been defined as “an act or failure to act that is done intentionally, knowingly and purposely, without justifiable excuse.” New Orleans F.F. Ass’n Loc. 632 v. City of New Orleans, 260 So.2d 779 (La.App. 4th Cir.1972). In the present case the record shows that the 1979 divorce judgment clearly ordered appellant to pay both child support and alimony. Appellant, by his own admission, ceased payments for alimony and reduced payments for child support. Appellant contends, however, that a finding of contempt was improper because his cessation of alimony was based on advice of counsel, and because his reduction of child support was based on his oldest son’s becoming a major. Appellant further contends that his wife’s acquiescence in the reduced payments also precludes the finding of contempt. These contentions all address the question of whether a justifiable excuse existed, rather than whether appellant’s acts were intentional, knowing, or purposeful. Certainly appellant must have been aware that his actions were in contravention of a court order.

The trial judge is vested with great discretion in determining whether a party should be held in contempt for disobeying the Court’s orders. West v. West, 438 So.2d 706, 709 (La.App. 2d Cir.1983); Litton v. Litton, 299 So.2d 458 (La.App. 2d Cir.1974). We find the trial judge did not abuse his discretion in the present case.

Counsel’s advice was simply one factor for the trial court’s consideration and only related to alimony for two months. Mr. Martin was not making his first appearance before the court on contempt for nonpayment, nor were Mr. Martin’s arrearages mainly due to nonpayment of alimony. More than 75% of the arrear-ages were due to nonpayment of child support. Appellant does not contend that counsel advised him to reduce child support payments. Rather appellant contends that he was not in contempt because the reduction was based on his oldest son’s becoming a major, and because his wife did not protest the reduced payments. However, where the child support award is in globo, as in this case, the father is not entitled to unilaterally reduce his child support payments on a pro rata basis without first seeking court modification of the judgment. Wisdom v. Wisdom, 356 So.2d 1111 (La.App. 2d Cir.1978); Halcomb v. Halcomb, 352 So.2d 1013 (La.1977). Nor can appellant claim an agreement with the appellee to reduce payments. The fact that the mother did not take legal steps following the reduction does not constitute implied consent to the father’s unilateral action. Wisdom, supra. Furthermore, because a contempt proceeding is designed for vindication of the dignity of the court rather than for the benefit of a litigant, Robertson v. Robertson, 258 So.2d 125, (La.App. 2d Cir.1972), the mother’s inaction could not cure the father’s slighting of the dignity of the court. We find appellant’s unilateral reduction of child support payments unjustifiable and his explanation insufficient. Thus, as stated earlier, we detect no abuse of discretion in the trial court’s finding of contempt.

Accordingly, for the reasons stated above, the judgment below is affirmed at appellant’s cost.

Affirmed.


author: FRED W. JONES, Jr., Judge.

text:
    Joe M. LEE, Plaintiff-Appellant, v. FORD MOTOR COMPANY et al., Defendants-Appellees.
    No. 16512-CA.
    Court of Appeal of Louisiana. Second Circuit.
    Sept. 26, 1984.
    Rehearing Denied Oct. 26, 1984.
    Writ Denied Dec. 7, 1984.

      Blanchard, Walker, O’Quin & Roberts by Jay Caraway and L. David Cromwell, Shreveport, for plaintiff-appellant.
    McGlinchey, Stafford, Mintz, Cellini & Lang by Michael T. Pulaski, Michael M. Noonan, Eric Shuman, New Orleans, for defendants-appellees.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Joe M. Lee filed suit against Ford Motor Company and Don Waller, who formerly did business as Waller Ford Company, for wrongful death and survival damages incurred when Lee’s mother was killed by her 1975 Torino automobile when it suddenly shifted into reverse. Lee also alleged the applicability of Georgia law which allows punitive damage awards. The case is presently before this court to review the trial court’s partial summary judgment denying the claim for punitive damages. We affirm the trial court judgment for the reasons hereinafter set forth.

The granting of a motion for summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits filed, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La.C.C.P. Art. 966; Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Travelers Ins. Co. v. Blanchard, 431 So.2d 913 (La.App. 2d Cir.1983).

No genuine issue as to a material fact has been raised by either party. The sole issue is whether the trial court properly refused to apply Georgia law when it denied Lee’s claim for punitive damages.

It is now well-settled that the choice of law rule applicable in tort in Louisiana is a form of “interest analysis” applying the “most significant relationship” approach of the Restatement (Second) of Conflict of Laws. Jagers v. Royal Indemnity Company, 276 So.2d 309 (La.1973); Shaw v. Ferguson, 437 So.2d 319 (La.App. 2d Cir.1983). Interest analysis is a two step process. We must first determine whether a true or false conflict exists. If a false conflict exists, the law of the state that has the exclusive interest is applied and the second step is unnecessary. If a true conflict exists, the law of the state with the most significant contacts is applied.

In this case, there is a true conflict. Georgia has an interest in preventing manufacturers within its boundaries from placing defective products in the stream of commerce. Georgia’s punitive damage law, if applied in this case, would serve to deter a Georgia manufacturer, Ford, from placing allegedly defective cars into commerce. The Louisiana legislature has consistently refused to enact anything but narrow exceptions to the well-established jurisprudential prohibition of punitive damage awards. “Louisiana’s interest is in protecting the integrity of its judicial system, rather than domestic defendants, from what it might consider inherently speculative awards.” Ardoyno v. Kyzar, 426 F.Supp. 78, 83 (E.D.La.1976).

Having found a true conflict, the second step is to determine which state has the most significant relationship to the issue by referring to the factors of the Restatement (Second) of Conflict of Laws (1969). The relevant provisions are:

§ 171. Damages
The law selected by application of the rule of § 145 determines the measure of damages.
Comment:
d. Exemplary damages. The law selected by application of the rule of § 145 determines the right to exemplary damages.
§ 145. The General Principle
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
§ 6. Choice-of-Law Principles
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

The contacts of § 145 in favor of Louisiana are substantial. The injury occurred in Louisiana. All the parties are domiciled in Louisiana, incorporated in Louisiana or do significant amounts of business in Louisiana. Finally, the relationship of the parties is centered in Louisiana.

The only contact of § 145 in favor of Georgia is “the place where the conduct causing the injury occurred.” This contact is not of great importance to the particular issue since Ford is a large operation which assembles its products all over the country. The fact that the particular product that injured this plaintiff came from Georgia is fortuitous and of relatively little importance. Consequently, the contacts deemed important in this type of case by the Restatement preponderate in favor of the application of Louisiana law.

Application of Louisiana law would not violate the relevant principles of § 6. Comity does not require deference to a state with fewer significant contacts. Louisiana, as the forum state chosen by the plaintiff, has the right to favor its own' policies over the policies of a state with a less significant relationship to the issue. Denying punitive damages does not violate the aims of tort law because punitive damages are by definition beyond just compensation of the injured plaintiff — the goal of tort law as expressed in La.C.C. Article 2315. Certainly, predictability and uniformity of result favor application of the forum’s law because that is the law the forum knows best and is best equipped to apply. Likewise, ease in determination and application are factors favoring choice of forum law.

In summary, there was no genuine issue as to a material fact and Ford was entitled to judgment as a matter of law.

We affirm the trial court judgment at appellant’s cost.


author: PRICE, Judge.

text:
    Daniel Francis LEIGH, Plaintiff-Appellee, v. Donna Marie LEIGH, Defendant-Appellant.
    No. 16513-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.

      Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendant-appellant.
    Graves & Graves by James W. Graves, Shreveport, for plaintiff-appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Donna Marie Leigh, mother, appeals a judgment granting Daniel Francis Leigh, appellee, a writ of habeas corpus returning the physical custody of the parties’ daughter, Chanda Marie Leigh, to the father pursuant to a modified custody judgment of an Iowa court. Appellant contends that the district court erred in failing to exercise jurisdiction to modify the foreign judgment and to hold the Iowa decree constitutionally invalid. We find the action of the district court, in a well-reasoned opinion, was in accord with both mandatory and discretionary provisions contained in the Uniform Child Custody Jurisdiction Act, La.R.S. 13:1700 et seq., and affirm.

The parties in this child custody litigation were married on October 23, 1980, in Haughton, Louisiana. Soon thereafter, the parties moved their marital domicile to Davenport, Iowa, where their child Chanda Marie was born on June 12, 1981. The parties physically separated on December 31, 1982, and the appellant initiated Iowa divorce and custody proceedings.

At a hearing in the Iowa proceedings, the appellant testified that she would not remove the child from Iowa in the event she was given custody of the child. The Iowa court rendered a judgment on September 19, 1983, dissolving the marriage of the parties and awarding custody of the child to the appellant conditioned upon her not removing the child from the state of Iowa and the immediate adjacent area of Illinois.

However, prior to rendering the judgment, the appellant removed the child from Iowa and returned to her former home in Bossier Parish, Louisiana. The appellee soon thereafter filed a motion for a new trial in Iowa based upon the appellant’s conduct of the removal of the child to Louisiana by appellant. The Iowa court granted the requested change and awarded custody to the appellee on January 16, 1984. This modified child custody judgment forms the basis of the appellee’s writ of habeas corpus action here in Louisiana.

The appellant contends that the district court erred in finding (1) that the Iowa court had jurisdiction to render a modified custody decree and (2) erred in finding that the Uniform Child Custody Jurisdiction Act denies jurisdiction to a Louisiana court to determine the custody of the child. Additionally, appellant asserts that the Iowa judgment prohibiting appellant from removing herself and the child from the Iowa-Illinois area violates the interstate commerce clause of Art. 1, Sec. 8, Clause 3 of the United States Constitution.

The record reflects that the appellant moved from Iowa without informing the father of the child or the Iowa court, despite the appellant’s promise before the court that she would not remove the child from the area. The record also reflects that the appellant did not inform any parties in Iowa where she could be reached. While the appellant did not violate a court order which was in existence at the time she removed the child from Iowa, she did violate her oath to the court. The unilateral removal of the child by the appellant clearly violated the intent and purposes of the UCCJ Act. See La.R.S. 13:1700A(4), (5).

The appellant asserts that the Iowa court was without jurisdiction to render a modified custody decree in that she had not been personally served notice of the hearing. However, the record reflects that service of process was obtained upon the appellant’s attorney of record in the prior divorce-custody proceeding in Iowa.

A custody decree is always subject to modification by the court of the state which rendered the decree as a matter of continuing jurisdiction. There was no evidence adduced at the habeas corpus hearing that the appellant’s attorney of record in Iowa was ever dismissed as her counsel. In view of the fact that the appellant left Iowa without informing the court of her whereabouts, we find service of process upon the attorney of record was reasonably sufficient notice to render a modification of the original child custody decree. To hold otherwise, would encourage parties to surreptitiously remove their children from the jurisdiction of a court, defeating the clear intent and purposes of the UCCJ Act.

Next, the appellant asserts that the Iowa judgment is subject to modification in Louisiana under the UCCJ Act.

Appellant contends that jurisdiction to modify the Iowa child custody decree is conferred on the Louisiana Courts by La. R.S. 13:1702A(2) which provides:

A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or a modification decree if: ....
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; ....

Under limited circumstances the courts of this state would have authority to consider a request for modification of a foreign custody decree in response to a habeas corpus proceeding. La.R.S. 13:1713 provides for limited exceptions for modification of a custody decree of another state. La.R.S. 13:1713(A) provides in pertinent part as follows:

If a court of another state has made a custody decree, a court of this state shall not modify that decree unless it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under the jurisdiction prerequisites substantially in accordance with this Part [Section 1702] or has declined to assume jurisdiction to modify the decree and the court of this state has jurisdiction.

Therefore, before a court of this state may consider a modification there must exist an independent jurisdictional basis as provided by the UCCJ Act. In no case should a party be allowed to convert a habeas corpus proceeding into a trial on the merits of the custody issue if to do so would subvert the intent of the UCCJ Act. Buchanan v. Malone, 415 So.2d 259 (La.App. 2d Cir.1982).

It is apparent from the facts of this case that Iowa was the home state of the child under R.S. 13:1701(5). Therefore, the Iowa court clearly had jurisdiction as the home state of the child under La.R.S. 13:1702(A)(1). It also appears that the Iowa court continues to have jurisdiction under La.R.S. 13:1702(A)(2).

Having found that the Iowa court had jurisdiction of the dispute under Section 1702 and finding that Iowa continues to meet the jurisdictional prerequisites in accordance with that act Section 1713 dictates that a court of this state shall not modify the Iowa decree. Additionally, we find that the courts of Louisiana are without jurisdiction under the jurisdictional prerequisites of the UCCJ Act. Specifically, Louisiana is not the home state under R.S. 13:1702(A)(1) and the Iowa court best meets the requirements of the significant connection test of R.S. 13:1702(A)(2).

As stated in the Commissioners comment to the Jurisdictional Article in Uniform Laws Annotated, Volume 9, Section 3:

The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum' rather than minimum contact with the state.

The maximum contact intended by Section 1702A(2) is not present between the state of Louisiana and the child in this case. The facts reflect the child’s father and family reside in Iowa and that the child has lived in Iowa the majority of her life to this point. Additionally, Iowa was the matrimonial domicile of the parties. While this court recognizes that Louisiana does have contacts in that the mother’s family resides in Louisiana, we find this contact to be minimal in comparison to the “significant connection” of the child to Iowa. The clear intent of Section 1702A(2) is that the state with the maximum contacts with the child is the proper jurisdiction to meet the “significant connection” test of that section.

Additionally, La.R.S. 13:1712 provides that the courts of this state shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under the statutory provisions substantially in accordance with the jurisdictional requirements of the UCCJ Act. Therefore, the district court properly recognized the Iowa custody decree in this habeas corpus action.

Finally, the appellant asserts that the district court should have held the Iowa decree to be invalid on the basis that it violates the Interstate Commerce Clause of the United States Constitution in restricting her right to travel. Without addressing the merits of the appellant’s assertion, we decline to address this issue since it pertains to the merits of the Iowa custody judgment. To review such an issue would place this court in the position of appellate review of the merits of an Iowa district court decision. We find that this issue would be more properly raised in an Iowa appellate court.

For the reasons assigned herein, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellant.

AFFIRMED.

      . Under 28 U.S.C. § 1738A(d) the jurisdiction of a court of a state which has made a child custody determination consistent with the provisions of this section [meaning the jurisdictional requirements of the Uniform Child Custody Jurisdiction Act] continues as long as the requirement of subsection (c)(1) of this section [such court has jurisdiction under the law of such state] continues to be met and such state remains the residence of the child or of any contestant.

      . Although neither of the parties have argued the point, this court is also cognizant of the limitations imposed on the states to exercise jurisdiction in custody cases in the Parental Kidnapping Act of 1980, 28 U.S.C. § 1738A.
      28 U.S.C. § 1738A(a) provides as follows:
      The appropriate authorities of every state shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another state.
      The jurisdictional prerequisites of this act are identical to the jurisdictional requirements of the UCCJ Act found in La.R.S. 13:1702.
      28 U.S.C. § 1738A(f) provides for instances where modification is allowed. Subsection (f) provides:
      A court of a state may modify a determination of the custody of the same child by a court of another state if
      (1) It has jurisdiction to make such a child custody determination; and

      (2) The court of the other state no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.


text:
    Joseph S. SCURRIA, Plaintiff-Appellant, v. George B. TENNANT et ux., Defendants-Appellees.
    No. 16516-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Rehearing Denied Oct. 26, 1984.

      C. Calvin Adams, Jr., Tallulah, for plaintiff-appellant.
    Samuel Thomas, Tallulah, for defendants-appellees.
    Before HALL, FRED W. JONES, Jr., and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

Joseph S. Scurria sued George B. Ten-nant for past due rent, legal interest and attorney fees. The defendant alleged that a fire had terminated the lease under its own terms. The trial judge determined that the lease provision was ambiguous and construed it against Scurria, who had prepared the instrument. Therefore, judgment was rendered denying Scurria’s claims. We affirm for the following reasons.

Scurria leased a building to Tennant to be used as a funeral home. The term of the lease was for one year, from June 1, 1981 to May 31, 1982. The rent was $500 per month. On January 4, 1982, a fire rendered the building temporarily unsuitable for Tennant’s business. Tennant surrendered the keys to the building to Scurria shortly after the fire. Tennant never got the keys back from Scurria.

The controversy resolves around the following language in the lease:

“The destruction in whole are [or] in part of the leased premises by fire or other casualty will terminate this lease except that lessor retains the right to accept that lessor shall have the right to determine if the property shall be rebuilt.
“The option granted hereinabove shall be granted only if lessee notifies lessor in writing prior thirty (30) days from the expiration of this lease of his intention to renew.”

There are two issues to be decided: first, whether or not the trial judge erred when he decided that the damages were sufficient to rise to the level of a “destruction in whole (or) in part” under the language of the lease contract; and, second, whether or not the result the trial court reached was a proper interpretation of the contract.

Scurria urges that the language of the contract is “nothing more than a restatement of Article 2697 of the Civil Code .... ” Article 2697 states:

If, during the lease, the thing be totally destroyed by an unforseen [unforeseen] event, or it be taken for a purpose of public utility, the lease is at an end. If it be only destroyed in part, the lessee may either demand a diminution of the price, or a revocation of the lease. In neither case has he any claim of damages.

The lease does not restate Article 2697. For example, Article 2697 only grants the lessee a right to demand a revocation of the lease, while the provision in question automatically terminates the lease with a possible exception that is obscure at best. Scurria cites two cases interpreting the Civil Code provision. See Di Carlo v. Campo, 15 La.App. 693, 132 So. 527 (1931), and Bossier Center, Inc. v. Palais Royal, Inc., 385 So.2d 886 (La.App. 2d Cir.1980). These cases are distinguishable because they employ the Civil Code language while the parties in this case chose to vary the law by contract. Parties are free to vary the law between themselves as long as the contract is not against good morals (contra bonos mores) and not contrary to the public good. La.C.C. Article 11.

The trial judge considered the contract language and weighed the conflicting testimony. He determined that the damage was sufficient to terminate the lease. Determination of the extent of damages in this case was particularly within the province of the trial court in light of the credibility issues raised. We are not prepared to say that the trial judge was clearly wrong in that determination. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The trial court determined the contract to be ambiguous and construed it against the drafting party, Scurria. While we would label the language obscure, the same rule applies. La.C.C. Article 1958. A fair interpretation of the contract would be that the lease is automatically terminated by the partial destruction of the building unless the lessee chooses to renew. In this case, Tennant did not choose to renew. Consequently, we find, as the trial court did, that Tennant does not owe the rent prayed for.

We affirm the district court’s judgment at appellant’s cost.


text:
    Gertrude J. SHORT, et al., Plaintiffs-Appellees, v. James M. JONES, Administrator of the Succession of Marshall Carl Jones, Defendant-Appellant.
    No. 16527-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    Writ Denied Nov. 16, 1984.

      Shuey & Smith by John M. Shuey, Jr. and James H. Campbell, Shreveport, for plaintiffs-appellees-intervenors.
    Hargrove, Guyton, Ramey and Barlow by David R. Taggart, Shreveport, for defendant-appellant James Marshall Jones.
    Lee & Bartage by Gordon 0. Bartage, Shreveport, for defendant-appellee Sharon Jones Palmer.
    Before MARVIN, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

The plaintiffs in this declaratory judgment action are seeking to have a 1960 deed, which conveys a ¾« undivided interest in an 81 acre tract of land to their deceased brother, declared null and void. The administrator of decedent’s estate opposes the action. Prior to answering plaintiff’s petition the administrator filed a peremptory exception of prescription. Plaintiffs moved to have the exception referred to the merits. The trial court granted the motion. On application of the administrator, a writ was granted to review the trial court’s decision to refer the exception to the merits. We recall the writ and deny the application.

The plaintiffs, Gertrude Short, Carmen Linam, Lillie Evans and Bess Bridges, are four of the eight children born to the marriage of Mr. and Mrs. J. Wylie Jones. On December 15, 1903 Mr. and Mrs. Jones purchased, as community property, the 81 acre tract in controversy which is located in Caddo Parish. Mr. J. Wylie Jones died intestate in 1935. Upon his death Mrs. J. Wylie Jones became the full owner of her ½ interest in the tract and the eight children each inherited a Vi<> interest. Ownership remained in indivisión.

In 1960 plaintiff’s brother, M. Carl Jones, decided to acquire plaintiffs’ and his mother’s interest in the tract. He had a deed prepared naming the four plaintiffs and his mother as vendors of all their interest in the tract. The deed, which was executed October 25, 1960, contains signature blanks for all five of the vendors. Only Mrs. J. Wylie Jones, Mrs. Linam and Mrs. Bridges, signed the deed. Mrs. Bridges subsequently scratched her signature from the deed. Mrs. Short and Mrs. Evans never signed the deed. The deed was recorded in the Caddo Parish Conveyance Records on August 20, 1966.

Mrs. J. Wylie Jones died in 1961. M. Carl Jones died in 1980. After his succession was opened plaintiffs learned that included in the inventory of succession assets was the !½6 undivided interest in the 81 acre tract formerly owned by Mrs. J. Wylie Jones and Mrs. Linam. Plaintiffs filed the instant action on August 7, 1981. The grounds upon which they seek to have the deed declared null and void are:

(1) The deed contemplated the signature of five (5) vendors, but was only signed by two (2) of the proposed sellers and it is submited (sic) that where a written contract is required by law, or contemplated by the parties, a reduction of the contract to writing and its execution by all of the parties thereto is necessary to perfect the contract.
(2) No consideration was paid.
(3) The two (2) parties who did sign the contract did not comprehend the purport of the instrument, there was no meeting of the minds, and the instrument was signed by mistake.
(4) The two (2) parties who did sign the deed were induced to do so by M. CARL JONES by certain fraudulent acts of deception and concealment.

In his exception relator alleges the relief plaintiffs seek is subject to either the five year prescriptive period for rescission of contracts under LSA-C.C. art. 3542or the ten year prescriptive period for rescission of agreements where no shorter period is set by law under LSA-C.C. art. 2221. The trial judge decided to refer the exception to the merits because, “the testimony to be taken on the peremptory exception would be almost totally the same testimony as that at trial.”

The time for trial of exceptions pleaded at various stages of the proceedings is set out in LSA-C.C.P. art. 929 which provides:

Art. 929. Time of trial of exceptions

The declinatory exception, the dilatory exception, and the ‘peremptory exception when pleaded before answer, shall be tried and decided in advance of the trial of the case.
If the peremptory exception has been pleaded in the answer, or subsequently, but at or prior to the trial of the case, it shall be tried and disposed of on the trial. If the peremptory exception has been pleaded after the trial of the case, the court may rule thereon at any time unless the party against whom it has been pleaded desires and is entitled to introduce evidence thereon. In the latter event, the peremptory exception shall be tried specially, (emphasis added)

Although article 929 requires in mandatory language that a peremptory exception filed before answer must be tried before trial, Official Revision Comment (b) to that article clearly indicates it is within the trial court’s discretion to refer a peremptory exception filed before answer to the merits rather than trying it in advance of the trial on the merits. Comment (b) provides:

(b) While the practice of referring peremptory exceptions to the merits has sometimes been criticized by the supreme court, Jennings v. Vickers, 31 La.Ann. 679 (1879); Farmer v. Hafley, 38 La.Ann. 232 (1886); Zerega v. Percival, 46 La.Ann. 590, 15 So. 476 (1894), later cases have recognized the discretion of the trial judge to refer the exception to the merits rather than attempt to dispose of it prior to the trial of the case. Saint v. Martel, 123 La. 815, 49 So. 582, 586 (1909). See, also, City of New Orleans v. Salmen Brick & Lumber Co., 135 La. 828, 66 So. 237 (1914). The rules enunciated in the above article with respect to the trial of the peremptory exception do not interfere in any way with the trial judge’s discretion in such cases. They merely prevent the defendant’s using dilatory tactics in filing the exception after answer, and then insisting upon the trial of the exception in an effort to delay the trial of the case on its merits, (emphasis added)

Relator contends that any peremptory exception pleaded prior to answer must be decided in advance of trial. He argues that Comment (b) cannot be given any weight in interpreting article 929 because the language of the article is mandatory and unambiguous. The cases of Montgomery v. Breaux, 297 So.2d 185 (La.1974); Ward v. Standard Materials, Incorporated, 293 So.2d 885 (La.App. 1st Cir.1974); Hebert v. Armstead, 227 So.2d 636 (La.App. 3d Cir.1969) have all considered and approved the Comment and concluded that the trial judge has discretion to refer a peremptory exception to the merits.

Relator points out that these cases involve different factual situations than that presented here and for that reason are inapposite. Although the cases are not precisely on point they all stand for the proposition that Comment (b) is a valid statement of the law and the trial judge may refer the exception of prescription to the merits even though it is filed before the defendant files his answer.

The same factual situation as is here involved was recently presented to this court in Knighten v. Knighten, 447 So.2d 534 (La.App. 2d Cir.1984), writs den. 448 So.2d 1303 (La.1984). There we followed Comment (b) and held the trial judge has the discretion to refer a peremptory exception of prescription, pleaded prior to answer, to the merits of the case.

The relator relies upon the early Supreme Court decisions of Jennings v. Vickers, 31 La.Ann. 679 (1879); Farmer v. Hafley, 38 La.Ann. 232 (1886) and Zerega v. Percival, 46 La.Ann. 590, 15 So. 476 (1894) to support his contention that the trial judge has no discretion to refer a peremptory exception to the merits. As was pointed out in Comment (b) the views expressed in these early cases were reputiated in the later Supreme Court cases of Saint v. Martel, 123 La. 815, 49 So. 582 (1909) and City of New Orleans v. Salmen Brick & Lumber Co., 135 La. 828, 66 So. 237 (1914) where it was recognized that the trial judge has the discretion to refer peremptory exceptions to the merits.

The cases of Waterhouse v. Star Land Co., 139 La. 177, 71 So. 358 (1916) and Wischer v. Madison Realty Company, 83 So.2d 143 (La.App. Orleans 1955) cited by relator found no error in the trial court’s action of trying the peremptory exceptions before the case was tried on the merits, but neither case held that the trial judge does not have discretion to refer a peremptory exception to the merits.

The cases of Cheramie v. Vegas, 385 So.2d 453 (La.App. 1st Cir.1980); South Central Roofing & Sheet Metal Supply, Inc. v. McKay, 425 So.2d 951 (La.App. 5th Cir.1983) and Patterson v. Patterson, 436 So.2d 603 (La.App. 4th Cir.1983) cited by relator support his position that LSA-C. C.P. art. 929 requires all peremptory exceptions filed before answer to be tried and disposed of in advance of the trial on the merits. None of these cases considered Comment (b). These Court of Appeal cases did not consider the Supreme Court case of Montgomery v. Breaux, supra, which recognized the trial judge has the discretion to refer a peremptory exception to the merits and quoted with approval Comment (b) of LSA-C.C.P. art. 929.

Although it is customary to refer a plea of acquisitive prescription to the merits, the jurisprudence recognizes that it is within the discretion of the trial judge to dispose of a peremptory exception prior to the trial of the case, rather than refer it to the merits. C.C.P. Art. 929, Comment (b) ... (the court then quoted entire Comment (b) to C.C.P. Art. 929 which we have earlier quoted in this opinion)

For the reasons set forth we decline to follow the cases of Cheramie v. Vegas, supra, South Central Roofing & Sheet Metal Supply, Inc. v. McKay, supra, and Patterson v. Patterson, supra relied upon by relator and conclude the trial judge has discretion to refer a peremptory exception filed prior to answer to the merits.

Much of the evidence necessary for determination of the merits will be the same evidence required to determine the issue of prescription. We find no abuse of discretion in the trial court’s decision to refer the exception to the merits in the interest of judicial economy.

For the reasons assigned the writ is recalled and the application is denied at relator’s cost.

      . No answer has as yet been filed.

      . Several of plaintiffs’ nieces and nephews who are heirs of Mrs. J. Wylie Jones intervened as plaintiffs.

      . Article 3542 was vacated and reenacted as LSA-C.C. art. 3497 by Acts 1983, No. 173. The change became effective January 1, 1984.

      . In Montgomery v. Breaux and Hebert v. Arm-stead, the exception was tried in advance of trial. In Ward v. Standard Materials, it appears that the exception and the answer may have been filed at the same time but there is no indication that the exception was contained in the answer or that the answer was filed before the exception.


text:
    STATE of Louisiana, Appellee, v. Ricky D. YOUNG, Appellant. STATE of Louisiana, Appellee, v. Walter J. DAVIS, Appellant. STATE of Louisiana, Appellee, v. Johnny HAMILTON, Appellant.
    Nos. 16529-KW to 16531-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.
    John G. Ratcliff, Shreveport, for appellants.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty. by R. Lee Irvin and John A. Broadwell, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

Young, Davis and Hamilton were charged separately but tried jointly in the Shreveport City Court for gambling in public in violation of La.R.S. 14:90.2. They were found guilty and each was sentenced to pay a fine of $50.00. Each defendant applied to this court for a writ of review, which we granted and consolidated for purposes of review.

According to the evidence presented at the trial, these defendants were apprehended by an officer who observed them “shooting dice” in a Shreveport laundromat. They could be seen through a window from the street. Their contention, made in the trial court and here, is that the gambling statute does not cover or apply to such a location. The codal article in question provides in part:

R.S. 14:90.2

A. Gambling in public is the aiding or abetting or participation in any game, contest, lottery, or contrivance, in any location or place open to the view of the public or the people at large, such as streets, highways, vacant lots, neutral grounds, alleyway, sidewalk, park, beach, parking lot, or condemned structures whereby a person risks the loss of anything of value in order to realize a profit.

A similar clause in our obscenity statute was considered by the supreme court in State v. Muller, 365 So.2d 464 (La.1978). Certain conduct was prohibited “in any location or place open to the view of the public or the people at large such as a street, highway, neutral ground, sidewalk, beach, river bank or other place or location viewable therefrom....” On rehearing the court “determined that the legislature had intended to include only places like parks, sidewalks, parking lots, roads and the like, and not to include buildings and other commercial establishments open to the public, such as supermarkets and department stores.” See State v. Walters, 440 So.2d 115, 120 (La.1983).

The following year the gambling statute was added to our Criminal Code, using the same narrow language as Muller in defining the prohibited location, despite the fact that in the same year the legislature chose to broaden the language of the obscenity act in this respect.

We note further that the gambling article does not contain the clause “or other place or location viewable therefrom” which was contained in the obscenity statute. Therefore, there is no merit to the argument that the defendants were guilty of committing the crime of gambling in public since, although inside a building, they were viewable from a street.

We conclude, therefore, that gambling in the laundromat was not “gambling in public” as defined by La.R.S. 14:90.2. Consequently, these convictions are reversed, the sentences are vacated, and the defendants are ordered discharged.


text:
    STATE of Louisiana, Appellee, v. Robert Lee WOOD and Patricia Wood, Appellants.
    No. 16610-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.

      John S. Stephens, Coushatta, for appellants.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, William R. Jones, Dist. Atty., Cous-hatta, for appellee.
    ■Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   HALL, Judge.

After defendants’ motion to suppress evidence seized at their home under an allegedly invalid search warrant was denied, the defendants were tried and convicted of possession of marijuana (LSA-R.S. 40:966). Defendants applied for a writ of review, urging as error the trial court’s denial of the motion to suppress. Perceiving that the affidavit upon which the search warrant was based was insufficient to establish probable cause and that the exclusionary rule required suppression of the seized evidence, we granted the writ of review. Upon review, we find the search warrant to be invalid, but applying the “good faith” exception to the exclusionary rule recently established in United States v. Leon, — U.S. —, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), hold that the seized evidence is admissible and that the denial of the motion to suppress is correct.

Defendants urge that the search warrant was invalid because of deficiencies in the affidavit on which it was based, particularly in that the affidavit failed to set forth a time when two confidential informants allegedly saw marijuana and/or other contraband at the defendants’ residence. It is urged that the exclusionary rule requires suppression of the evidence seized.

The state argues that the affidavit was sufficient, considering the totality of the circumstances. Alternatively, the state argues that even if the search warrant was invalid, the evidence seized is admissible under the Leon “good faith” exception to the exclusionary rule.

A deputy sheriff obtained a search warrant from a judge authorizing the search of defendants’ trailer home for narcotics, marijuana, drug paraphernalia, and a chain saw. The deputy, with other officers, searched the home and found a small bag containing a small quantity of marijuana on top of a refrigerator. The other items listed in the warrant were not found on the premises.

Validity of the Search Warrant

The affidavit states that the affiant has good reason to believe that located in a certain house trailer owned by defendant and a nearby tin barn are “various narcotics, marijuana and other drug paraphernalia, and also a 5200 Poulan chain saw with a bow bar.” The affidavit further states that affiant believes said property to be so located because: “I received information from two (2) confidential informants that the above listed items have been seen at the above location. These two (2) informants have found to be very reliable in past investigations.”

The essential facts for establishing probable cause to issue a search warrant must be contained in the affidavit. LSA-C. Cr.P. Art. 162; State v. Daniel, 373 So.2d 149 (La.1979); State v. Koncir, 367 So.2d 365 (La.1979); State v. Westfall, 446 So.2d 1292 (La.App.2d Cir.1984).

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court enunciated a “totality of the circumstances” analysis in determining whether an affidavit in support of a search warrant based on hearsay established probable cause for the warrant to issue. The Louisiana Supreme Court has followed Illinois v. Gates in State v. Lingle, 436 So.2d 456 (La.1983) and State v. Brooks, 452 So.2d 149 (La.1984). See also State v. Westfall, supra.

Illinois v. Gates expressed the analysis as follows:

“ * * * The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.”

In State v. Westfall, we held:

“Even under the ‘totality of the circumstances’ standard ‘sufficient information must be presented to the magistrate to allow that official to determine probable cause, and his action cannot be a mere ratification of the bare conclusion of others.’ Illinois v. Gates, supra_
“While we realize when an affidavit is based on hearsay that under Gates it may well not be necessary to set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find both the informant and the information given by him reliable, it follows with reason that an affidavit based on hearsay must at least come from a credible source or the information from an unknown or untested source must be shown by sufficient facts and underlying circumstances to be probably reliable.”

In the instant case, the affidavit is insufficient in several respects and does not afford a “substantial basis” or “sufficient information” to establish probable cause.

First, the affidavit does not state that the confidential informants themselves saw the listed items in the premises to be searched. It states only that the informants gave information that the items “were seen” without stating who saw them. The affidavit does not disclose personal knowledge on the part of the informants or the basis of their knowledge. See State v. Paciera, 290 So.2d 681 (La.1974).

Second, the affidavit does not state when the items were seen or when the information was given by the informants to the affiant. An affidavit which fails to make any reference to the time when the offense took place and which is phrased in the past tense does not provide a magistrate with sufficient facts to determine that probable cause to search exists at the time the warrant issues. State v. Loehr, 355 So.2d 925 (La.1978); State v. Thompson, 354 So.2d 513 (La.1978). Compare State v. Ogden, 391 So.2d 434 (La.1980).

Third, the statement that the informants have been “found to be very reliable in past investigations” falls short of providing specific facts sufficient to determine the reliability of the informant. See State v. Koncir, supra.

Fourth, the affidavit provides no facts to connect the chain saw to any criminal activity whatsoever.

Considering the totality of the circumstances set forth in the affidavit, it afforded insufficient information for the issuing judge or magistrate to make a commonsense decision that there is a fair probability that the contraband or other evidence of a crime would be found at the described premises. The warrant should not have been issued and is invalid.

Applicability of the Exclusionary Rule

Prior to Leon, the judicially created exclusionary rule required that evidence seized under an invalid search warrant be excluded from admission into evidence in the trial of a criminal prosecution. In Leon, the United States Supreme Court established a “good faith” exception to the exclusionary rule. The exclusionary rule should not be applied so as to bar the use in the prosecution’s case-in-chief of evidence obtained by officers acting in an objectively reasonable good-faith reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid.

According to Leon, suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule, that is, the deterrence of illegal police conduct.

The court in Leon made it clear, however, that exclusion is not “always inappropriate in cases where an officer has obtained a warrant and abided by its terms.” Although “a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search”, nevertheless, “the officer’s reliance on the magistrate’s probable cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable ... and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant has properly issued.!’

The court enumerated four exceptions to the “good faith” exception, or instances in which suppression “remains an appropriate remedy”: (1) if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for this reckless disregard of the truth; (2) where the issuing magistrate wholly abandoned his detached and neutral judicial role; (3) where the warrant is “based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) where the warrant is so facially deficient, i.e., fails to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonably presume it to be valid.

Only the third exception noted above is arguably applicable to the instant case so as to require application of the exclusionary rule. Some light is shed on the meaning of this exception by other statements in the Leon opinion. The court noted that suppression is appropriate only if the officers “could not have harbored an objectively reasonable belief in the existence of probable cause.” The objective standard of reasonableness adopted “requires officers to have a reasonable knowledge of what the law prohibits.” It is necessary to consider the objective reasonableness of not only the officers who executed the warrant but also of the officers who originally obtained it or who provided information material to the probable cause determination. By two references to “bare bones” affidavits, the court makes it clear that reliance by officers on a warrant based on a “bare bones” affidavit furnished by the officers will not meet the objective standard of good faith or reasonableness.

As to what constitutes a “bare bones” affidavit, in Illinois v. Gates, supra, the court used that term is describing the affidavits involved in Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) which amounted to bare and wholly conclu-sionary statements of the affiants. In Na-thanson the statement of the affiant was that “he has cause to suspect and does believe that” liquor illegally brought into the county is located on certain premises. In Aguilar, the statement was that “affi-ants have received reliable information from a credible person and believe” that heroin is stored in a home.

The affidavit in the present case is almost in the “bare bones” category, but not quite. It could be construed as stating that the contraband was seen on the premises to be searched by the confidential informants. It contains some information about the reliability of the confidential informants, stating that they were found to be very reliable in past investigations. The affidavit does more than state a bare conclusion of the affiant. While not passing constitutional muster as establishing probable cause, the affidavit is not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, nor can it be said that an officer with a reasonable knowledge of what the law prohibits could not have harbored an objectively reasonable belief in the existence of probable cause.

Although the judge should not have issued the search warrant on the basis of the insufficient affidavit, the reliance of the law enforcement officer on the warrant issued by the judge was objectively reasonable and in good faith. Accordingly, under the Leon exception to the exclusionary rule, the evidence seized by the officer executing the warrant was admissible.

The Leon decision establishes an exception to the exclusionary rule judicially created as a deterrent to police violations of the Fourth Amendment to the United States Constitution. Art. 1, § 5 of the Louisiana Constitution is not a duplicate of the Fourth Amendment or merely coextensive with it, and in some respects may afford a higher standard of individual liberty than that afforded by the jurisprudence interpreting the federal constitution. State v. Hernandez, 410 So.2d 1381 (La.1982); State v. Abram, 353 So.2d 1019 (La.1978); State v. Hutchinson, 349 So.2d 1252 (La.1977): State v. Overton, 337 So.2d 1201 (La.1976). Decisions of the United States Supreme Court, although given careful consideration, do not necessarily control or dictate decisions by Louisiana courts construing the Louisiana Constitution, nor replace the exercise of independent judgment by the Louisiana courts so long as the state decisions do not infringe on federal constitutional rights.

Although the last sentence of Art. 1, § 5 of the 1974 Louisiana Constitution provides that “any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court”, the Section does not mention the exclusionary rule and does not require its unlimited application as a remedy for violation of the rights established by that Section. The exclusionary rule was originally applied in Louisiana to state prosecutions because it was required by the decision of the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). See, for example, State v. Calascione, 243 La. 993, 149 So.2d 417 (1963); State v. Williams, 250 La. 64, 193 So.2d 787 (1967). There is no good reason why this state should not now apply the exception to or limitation of the exclusionary rule established by the United States Supreme Court in Leon. The decision is well grounded in law and supported by empirical facts and strong policy considerations. It advances the legitimate interests of the criminal justice system without sacrificing the individual rights guaranteed by the constitution. Exercising the independent judgment of this Louisiana court, we adopt the Leon exception to the exclusionary rule as applicable to cases arising under Art. 1, § 5 of the Louisiana Constitution, for the sound reasons set forth in the majority opinion of the United States Supreme Court.

In the Leon case, the United States Supreme Court enunciated the new exception to the exclusionary rule and applied it in upholding the convictions of the defendants even though at the time of trial the exclusionary rule would have required suppression of the evidence needed to convict. The instant case is in the same posture, and we reach the same result.

Decree

Accordingly, the denial of the defendants’ motion to suppress is correct. The defendants’ convictions are affirmed.

Affirmed.

SEXTON, J., concurs without written reasons.