author: STOKER, Judge.

text:
    HIGHLANDS INSURANCE COMPANY, Plaintiff-Respondent, v. CITY OF LAFAYETTE, et al., Defendants-Respondents.
    No. 84-248.
    Court of Appeal of Louisiana, Third Circuit.
    June 14, 1984.
    Writ Granted Oct. 12, 1984.
    Allen, Gooch & Bourgeois, Kenneth N. Hawkins, Lafayette, for defendants-rela-tors.
    Onebane, Donohue, Bernard, Torian, Diaz, McNamara & Abell, Associates, Richard J. Pitre, Jr., for plaintiff-respondent.
    Welton P. Mouton, Jr. and Michael Fon-tenot, Voorhies & Labbe, Marc W. Judice, Andrus, Preis & Kraft, Edwin G. Preis, Jr., Lafayette, for defendant-respondent.
    Before STOKER, DOUCET and YEL-VERTON, JJ.
   STOKER, Judge.

Does the giving of a notice of intention to take a deposition not pursuant to an order of court but filed in the record of the action in question prevent the running of the five years which will otherwise result in the action being deemed abandoned and subject to dismissal under LSA-C.C.P. art. 561? This is the issue to be decided in this case.

The case comes up on a writ which we granted following certain action in the trial court.

Plaintiff, Highlands Insurance Company (Highlands), filed suit against several parties seeking to recover workers’ compensation benefits paid an injured worker, Robert Nain, and to recover medical benefits paid on his behalf. This original suit was filed on April 20, 1977. The original suit was based on an alleged tortious injury sustained by Robert Nain allegedly caused by the negligence of David Edward (or possibly Edward David or even David Wilson) and the City of Lafayette.

In the original suit filed on April 20, 1977, Highlands named the City of Lafayette (City) and its insurer, Maryland Casualty Company (Maryland), as defendants. On November 3, 1983 Maryland and the City filed a third party demand to bring in Oil Center Realty Company, Inc. (Oil Center) as a third party defendant. (The pleading was actually a first supplemental and amending third party demand.) Maryland and the City sought contribution “and/or” indemnification from the Oil Center in the event they should be held liable to Highlands on the main demand.

When it was sued, the Oil Center filed a motion to dismiss the main demand under Article 561 of the Louisiana Code of Civil Procedure, LSA-C.C.P. art. 561. This motion was granted and the order of dismissal was signed by the trial court on December 22, 1983. Thereafter, in a judgment dated February 9, 1984 the dismissal was set aside by the trial court and the case was ordered reinstated. (Tr. 183)

From the judgment setting aside the dismissal and reinstating the case, the Oil Center sought relief from this court through an application for writs of certiora-ri. We granted a writ in order that the positions of the parties could be more closely considered, and we ordered up the transcript of the proceedings. We ordered a stay of all proceedings pending further action by this court. The parties were given opportunity to file any briefs they deemed appropriate in addition to those filed with the relator’s writ application and respondent’s (Highlands’) brief in opposition to granting of the writ.

THE ISSUE

Other than the facts stated above, two significant things occurred: On October 24, 1977 Highlands gave notice of its intention to take the deposition of Robert Nain and filed a copy of the notice in the record on that date. (Tr. 46) On October 22, 1982 Highlands directed written interrogatories to certain parties in the suit and filed copies of the interrogatories in the record on that date. (Tr. 47, 50, 53 and 56)

The portion of Article 561 of the Code of Civil Procedure pertinent to the case reads:

“A. An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years, ...
******
“This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.”

Thus, this article is self-operative. Chevron Oil Company v. Traigle, 436 So.2d 530 (La.1983).

The Oil Center does not question that the filing of interrogatories are “steps” in the prosecution of a suit. This would appear to be true as the filing of answers to interrogatories are “steps” in the prosecution or defense of a suit. Edwards v. Giambrone, 353 So.2d 326 (La.App. 1st Cir.1977), writ denied, 354 So.2d 1375 (La.1978). This case was cited in Chevron Oil Company v. Traigle, supra, (Footnote 1) for the proposition that filing of such answers is a “step” in the prosecution of a suit. What the Oil Center contends, and contends is the sole issue in the matter before us, is that if the notice of intention to take depositions filed October 24, 1977 was insufficient to constitute a step in the prosecution of a suit (and Oil Center contends it was insufficient), then there are no documents of record prior to October 22, 1982 to interrupt the abandonment. Prior to October 22, 1982, the last filing which appears in the record is an answer filed September 29, 1977 by Maryland and the City in response to the third party demand of David Wilson and Government Employees Insurance Company. (Tr. 42)

We agree that relator, the Oil Center, has pinpointed the issue. However, the issue is whether the filing in the record of a notice of intention to take a deposition, without any formal action of the court, is sufficient to interrupt the running of the five years contemplated by Article 561.

I.

The Louisiana Supreme Court set forth broad principles recently in Chevron Oil Company v. Traigle, supra, which drew heavily on previous pronouncements, particularly from Melancon v. Continental Casualty Company, 307 So.2d 308 (La.1975). In the Traigle case the Louisiana Supreme Court said:

“By its clear and unambiguous wording, article 561 requires three things of the plaintiff: (1) that he take some ‘step’ in the prosecution of his lawsuit, (2) that he do so in the trial court, and (3) that he do so within five years of the last ‘step’ taken by either party. Melancon v. Continental Casualty Company, 307 So.2d 308 (La.1975).
“[2] A party takes a ‘step’ in the prosecution or defense of a suit when he takes formal action, before the court and on the record, intended to hasten the matter to judgment. Melancon v. Continental Casualty Company, supra; National Food Stores of La., Inc. v. Chustz, 361 So.2d 273 (La.App. 1st Cir.), writ denied, 362 So.2d 1120 (La.1978); Murphy v. Hurdle Planting and Livestock Co., Inc., 364 So.2d 167 (La.App. 1st Cir.1978), writ denied, 366 So.2d 562 (La.1979); Guedry Finance Co., Inc. v. Sanderson, 357 So.2d 1338 (La.App. 4th Cir.1978); Melancon v. Wood, 303 So.2d 222 (La.App. 4th Cir.1974); Evergreen Plantation, Inc. v. Zunamon, 272 So.2d 414 (La.App. 2nd Cir.), writ denied, 274 So.2d 708 (La.1973); Better Heating and Air Conditioning Co., Inc. v. United Beneficial Fire Insurance Company, 269 So.2d 502 (La.App. 1st Cir.1972).”
In Melancon the Supreme Court stated:
“The traditional definition accorded to the phrase ‘steps in [the] prosecution or defense’ of a suit requires the action to be formal, before the court, and intended to hasten judgment. The policy underlying this requirement is the prevention of protracted litigation that is filed for purposes of harrassment or without a serious intent to hasten the claim to judgment. The determination that a claim is not being seriously pursued, which results in dismissal of the suit, must be certain; hence, any action taken by a party that is alleged to be a step in the prosecution or defense of the suit must appear in the court record. In this way, examination of the record will reveal the status of the litigation with certainty and without resort to extrinsic evidence.”

In its motion for dismissal under Article 561 the Oil Center alleges that the parties have taken no step in prosecution of the suit “from October 24, 1977, until November 3, 1983.” To recapitulate at this point, October 24, 1977 is the date Highlands and its insured gave notice, and filed a copy in the record, of its intention to take the deposition of Robert Nain, and November 3, 1983 is the date the Oil Center was third partied into the litigation by Maryland and the City. On the face of the motion, therefore, the Oil Center appears to concede that notice given by Highlands on October 24, 1977 was an Article 561 step in prosecution of the suit which interrupted the running of the five years leading to abandonment. In such case it would not yet be deemed abandoned on October 22, 1982 when Highlands directed written interrogatories to various parties in the suit and filed copies in the record. This clearly is not the Oil Center’s position as set forth above and as is set forth in its application to this court for supervisory writs.

The position of the Oil Center is that the giving of notice of depositions by Highlands on October 24,1977 “was insufficient to constitute a step in the prosecution” and thus five years had elapsed without any steps being taken when Highlands filed its interrogatories on October 22, 1982.

II.

After considering the record, it is our opinion that relator’s position is not well taken. The notice of taking Robert Nain’s deposition was a step in the prosecution of Highlands’ action. The propounding of interrogatories by Highlands was also such a step. The running of five years which would constitute abandonment under Article 561 of the Code of Civil Procedure had not run. The trial court properly and correctly set aside its order dismissing the case as abandoned and reinstating the case. We therefore recall the writ granted herein and remand the case to the trial court for further proceedings.

III.

Relator relies heavily on a case from this Circuit, DeClouet v. Kansas City Southern Railway Company, 176 So.2d 471 (La.App. 3rd Cir.1965), writ refused, 248 La. 383, 178 So.2d 662 (1965). In that case discovery depositions were taken at the request of plaintiff under a stipulation of counsel as to the time, place and so forth. We noted that nothing concerning the depositions was made a part of the court record in the case. The DeClouet case was distinguished in Edwards v. Giambrone, supra, in the following language:

“The case of DeClouet v. Kansas City Southern Railway Company, ... which is cited as authority for the proposition that discovery procedures are not steps in the prosecution or defense of a case is inapposite. It applies only when the discovery is carried out dehors the record. See Robertson v. Sightler, 304 So.2d 875 (La.App. 2nd Cir.1974).”

The case before us is also factually distinguished from DeClouet because the notice of intention to take Nain’s deposition was recorded in the record of this case with the clerk of court. Nevertheless, relator urges that the courts of this State have found two kinds of activities to constitute a “step” under Article 561, namely, “(1) motions requiring judicial action, and (2) actions which are steps within themselves.”

In support of the first proposition, motions requiring judicial action, relator cites Landry v. Thomas, 422 So.2d 513 (La.App. 4th Cir.1982), writ denied, 429 So.2d 143 (La.1983); Wiggins v. Arkansas Louisiana Gas Company, 441 So.2d 803 (La.App. 2d Cir.1983), and Rollins v. Causey, 427 So.2d 1291 (La.App. 2d Cir.1983). In Landry, the suit was found not to have been abandoned within the meaning of Article 561 where during the five-year period the plaintiff filed a motion to take the deposition of the defendant with an attached order which was signed by the trial judge on the same day as the filing. Landry does not stand for the proposition that a notice in the record to take a deposition must be supported with a signed court order to be sufficient to interrupt abandonment.

In Wiggins a “step” in the prosecution of a case, interruptive of abandonment, consisted of a motion and order signed by the trial judge which set the case for trial and ordered a pretrial conference. No abandonment was found in Wiggins despite the fact that the motion and signed order, although filed with the clerk of court and so noted, was never physically placed in the suit record. Like Landry, the Wiggins case does hold that for filings to interrupt the running of time for abandonment the trial court must in some way act upon the filing. In fact, the court in Wiggins cited its case of Ellzey v. Employers Mutual Liability Ins. Co., 388 So.2d 843 (La.App. 2d Cir.1980), writ denied, 394 So.2d 617 (La.1980), for the holding that delivery of a document to the clerk of court constitutes a step taken before the trial court, in the prosecution of the action. The document in Ellzey was a mere letter (not a formal motion) addressed to the clerk of court by plaintiff’s attorney requesting that the case be fixed for trial as a civil jury case and another letter to the clerk sent over a year later requesting that the case be fixed for jury trial during a particular week. The letters were not acted upon by the clerk and were not filed in the record of the suit. The trial judge in Ellzey was never involved. Numerous cases presenting analogous situations were discussed in Ellzey. We are particularly impressed by the fact that in Wiggins our brothers of the Second Circuit stated that the letter filings in Ell-zey constituted “a step taken before the trial court in the prosecution of the action.”

In Rollins v. Causey, supra, the “step” in question was a motion filed by the plaintiff to compel a party to answer interrogatories. Although the opinion in the case makes no mention of an order signed by the trial court in connection with the motion, we assume that some order was signed. This case does not hold that for a filing in a suit to constitute a “step” in the prosecution of the suit it must be followed by an order signed, a judgment or some judicial action, as contended by relator. We find the following comments in Rollins v. Causey, supra, to be significant:

“CCP 561 provides in part that ‘[a]n action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years.’ The language of this article envisions three requirements to prevent abandonment. Melancon v. Continental Casualty Company, 307 So.2d 308 (La.1975). The step that must be taken in the prosecution or defense of the lawsuit is defined as something done in furtherance of the lawsuit that is intended to hasten the matter to judgment. McClure v. A. Wilbert’s Sons Lumber & Shingle Co., 232 So.2d 879 (La.App. 1st Cir.1970). The second requirement is that the step be taken in the trial court. This has been generally explained as the doing of something of record in the trial court so that the status of the case might be revealed to anyone who looks at the record. Melancon, supra. The third requirement is that the interruptive step be taken within five years of the preceding interruptive step that was taken in the suit. The filing of the motion to compel answers to interrogatories was clearly intended to hasten the matter to judgment. It was filed in the trial court record within five years of the preceding interruptive step taken in the suit. CCP 561.”

IV.

As noted above relator urges that in addition to those steps deemed to be steps in prosecution or defense of an action by reason of involvement of judicial action, a second kind of step consists of “actions which are steps within themselves.”

To explain this contention, counsel in relator’s briefs refers to cases in which the courts have found filings in the court record but which the courts held were not steps within themselves. The cases are Henry v. Stephens, 169 So.2d 422 (La.App. 3rd Cir.1964); Better Heating & Air Conditioning Company, Inc. v. United Benefit Fire Insurance Company, 269 So.2d 502 (La.App. 1st Cir.1972) and State, Department of Highways v. Jackson, 211 So.2d 93 (La.App. 1st Cir.1968). Counsel for relator also refers to Chevron Oil Company v. Traigle, supra, as distinguishing between acts which “have validity within themselves” such as answers to interrogatories and some filing which “merely indicates the stated intention to do an action, which may or may not occur”, such as a motion to substitute counsel. In essence, apparently, counsel urges that some actions have legal efficacy in themselves as “steps” and some do not, even though they may be filed in the record.

Assuming the validity of relator’s basic proposition, we find no particular guide in the cases cited by relator as to what actions are efficacious and which are not. In Henry v. Stephens, supra, this Court of Appeal held that under the jurisprudence, normally, neither the filing of the transcript of testimony nor the payment of costs of the transcript are regarded as steps in the prosecution or defense of an action. We held (without stating any par-ticúlar illumination of the subject) that such actions “are not considered steps in the prosecution of an action, since they are not formal moves before the court intended to hasten judgment.”

The Better Heating case was a suit by plaintiff to recover for an amount of labor and materials furnished by it in the construction of a residence. After plaintiff filed its suit the Legislature enacted an amendment to LSA-R.S. 9:4812. This amendment required filing notice of a suit on a lien within one year from recordation of the lien in order to preserve a claimant’s privilege. However, a proviso in the amending Act stated that it would not apply to existing suits. Nevertheless, the plaintiff filed the notice. The court, held that under the proviso the filing in question was unnecessary and “had no legal effect whatsoever, and can only be considered as not having been filed at all.” Consequently, the filing did not serve to interrupt the five years under LSA-C.C.P. art. 561.

In the Jackson case plaintiff relied on a motion and order for the substitution of counsel to avoid the running of five years for abandonment of the suit. The Court of Appeal for the First Circuit stated in the Jackson opinion:

“[1] The jurisprudence is well established that the term ‘steps in its prosecution,’ as contained in L.S.A.-C.C.P. Art. 561 requires some formal action before the court intended to hasten the suit to judgment. DeClouet v. Kansas City Southern Railway Company, La.App., 176 So.2d 471; Bolden v. Brazile, La.App., 172 So.2d 304 and Sliman v. Araguel, 196 La. 859, 200 So. 280.
“[2,3] The filing of a transcript of testimony is not considered a ‘step’ in the prosecution, Sanders v. Luke, La.App., 92 So.2d 156; Henry v. Stephens, La. App., 169 So.2d 422. The taking of discovery depositions under the provisions of L.S.A.-C.C.P. Art. 1421 et seq., does not constitute such a ‘step’, DeClouet v. Kansas City Southern Railway Company supra. The res nova question then arises, does a motion and order, authorizing the enrollment of an additional attorney, constitute such a ‘step’ intended to hasten the suit to judgment?
“[4] The enrollment of additional counsel in a pending case merely informs the court, its officers and all parties that he has been so employed or retained by the client, in addition to prior counsel of record, with the implied authority to also perform all acts necessary or incidental to the prosecution or management of the suit. The motion and order recognizes the authority of enrolled counsel to take ‘steps’ toward prosecution of his client’s case but the motion is not, within itself, such a ‘step’ as contemplated by L.S.A.C.C.P. Art. 561.”

We find no clear-cut guiding rule in the facts and circumstances recounted in the opinions in those cases or in the discussion in them. In Jackson the DeClouet case is cited as holding that the taking of discovery depositions is not a “step,” but we have distinguished the DeClouet case above. In DeClouet the depositions were taken by stipulation and there was nothing in the record with reference to them. The fact that courts have found that filing of a transcript of testimony or a motion to enroll additional counsel are not “steps” within themselves does not govern the facts and circumstances of this case. In our opinion the notice of intention to take depositions filed in the record by Highlands was formal action before the court intended to hasten the suit to judgment. The notice clearly manifested in the record of the case the intention of Highlands not to abandon the prosecution of the case. We find no merit in relator’s claim that Highlands’ notice of intent to take the deposition of Nain is a mere statement of intent to take a “step” rather than a “step” itself.

The notice initiates the deposition and a deposition certainly moves litigation toward conclusion. Consider the criticism of the DeClouet case by then Judge Dennis speaking for the Second Circuit in Robertson v. Sightler, 304 So.2d 875 (La.App. 2d Cir.1974) and the dissents of Judges Fruge and Tate in DeClouet. We see similarity in the situation in the case before us and the situation involving a request for admissions of fact in Melancon v. Wood, 303 So.2d 222 (La.App. 4th Cir.1974) which was held to be a step in the prosecution of the suit as contemplated by Article 561.

CONCLUSION

We conclude that the court’s action reinstating the case was correct.

For the reasons given above we now recall the writ granted herein and the case is remanded to the trial court for further proceedings.

WRIT RECALLED; CASE REMANDED.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    Otho C. JOHNSON v. Mario E. CALDERON.
    No. 83-CA-0837.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    See also 453 So.2d 615.
    Nathan E. Wilson, Baton Rouge, for plaintiff-appellee Otho C. Johnson.
    James A. Carnes, Baton Rouge, for defendant-appellant Mario E. Calderon.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Plaintiff, Otho C. Johnson, brought suit against defendant, Mario E. Calderon, seeking a determination of his rights under a lease between the two. Johnson also sought, and was granted, a stay order which prevented Calderon from attempting to evict Johnson for non-payment of rent. Calderon reconvened and sought both dismissal of the stay order and damages for what he claimed was an improperly granted injunction.

Following a hearing at which no testimony was recorded, the trial court dissolved Johnson’s stay order but refused to award damages to Calderon, citing LSA-C.C.P. Art. 532 as a bar. In addition, the minutes reflect that the district judge reserved plaintiff’s right to seek a declaratory judgment under the lease.

Calderon appeals, reurging that what both the trial court and plaintiff called a stay order was, in actuality, a wrongfully granted injunction and that, under LSA-C. C.P. Art. 3608, he is entitled to damages.

Aside from the fact that LSA-C.C.P. Art. 3608 does not mandate, but merely permits, an award of damages for wrongfully issued injunctions, and aside from the fact that only appellant labels the stay order an injunction, it is obvious that this appeal must be dismissed. We do so on our own motion.

LSA-C.C.P. Art. 2083 permits appeals only from final judgments and from interlocutory judgments which may cause irreparable .injury. There has been no final judgment in this case, the trial court having reserved plaintiffs rights. Nor is there any possibility of irreparable harm, since appellant merely claims he should not have been denied $1,235.00 in damages. Defendant Calderon has simply appealed a garden variety interlocutory judgment, a procedure questioned by the district judge and not permitted by law.

For the foregoing reasons, the appeal taken by defendant, Mario E. Calderon, is dismissed and the case is remanded for further proceedings. All costs of this appeal are to be paid by appellant, Mario E. Calderon.

APPEAL DISMISSED. CASE REMANDED FOR FURTHER PROCEEDINGS.


author: SAVOIE, Judge.

text:
    Mario E. CALDERON v. Otho C. JOHNSON.
    No. 83 CA 0941.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    See also 453 So.2d 614.

      James A. Carnes, Baton Rouge, for plaintiff-appellant.
    Nathan E. Wilson, Baton Rouge, for defendant-appellee.

      Before COVINGTON, C.J., COLE and SAVOIE, JJ.
   SAVOIE, Judge.

Plaintiff, Mario E. Calderon, appeals the trial court’s judgment denying his “Rule to Evict” defendant, Otho C. Johnson, for nonpayment of rent.

On June 2, 1981, plaintiff leased to defendant, under a written contract of lease, the premises located at 1335 Florida Street, in Baton Rouge, Louisiana. The term of the lease was for a period of 60 months, beginning on June 15, 1981, and ending on June 14, 1986. The rent was due and payable on the 15th of each month.

On May 17, 1983, plaintiff delivered to defendant a notice to vacate the premises for nonpayment of rent. Defendant refused to vacate the premises. Thereafter, on May 24th, plaintiff filed a “Rule to Evict,” alleging the lease had been terminated. At the trial thereon, defendant asserted, as justification for nonpayment, that he was entitled, under paragraph 8 of the lease, to withhold rent as reimbursement for the cost of replacing the air conditioning and heating system.

Relying on C.C. arts. 2693 and 2694, the trial court concluded that: the repair work performed by the defendant was a major repair and an obligation of the plaintiff; and, due to plaintiffs failure to make such repair, defendant was justified in withholding the rent. Accordingly, the trial court denied the “Rule to Evict.” Plaintiff appeals this judgment, alleging five specifications of error. The first 3 specifications of error concern the trial court’s finding that it is plaintiff’s obligation to repair the air conditioning and heating system. These specifications of error will be treated together. The fourth specification of error addresses whether defendant met his burden of proof with respect to withholding the rent. The remaining specification of error pertains to the admissibility of defendant’s exhibits into evidence.

SPECIFICATIONS OF ERROR NOS. 1, 2 AND 3

Plaintiff contends the trial court erred in finding that he is obligated to repair the air conditioning and heating system. He complains that the trial court, in reaching this conclusion, erroneously applied the Civil Code articles; ignored paragraph 7 and misinterpreted paragraph 8 of the lease; and, mistakenly reasoned that because the repair was a major one, it was plaintiff’s obligation.

Although there is some merit to plaintiff’s complaints, we agree with the trial court’s conclusion that plaintiff is obligated for the replacement of the system and so hold for the following reasons.

La.C.C. art. 2669 defines lease as a synal-lagmatic contract in which the parties expressly enter into mutual engagements, each binding himself to the other. General Leasing Company v. Leda Towing Company, Inc., 286 So.2d 802 (La.App.4th Cir.1973), application denied, 290 So.2d 334 (La.1974). All things not forbidden by law may become the subject of or the motive for contracts. L.S.A.-C.C. art. 1764. When legally entered into, the contracts have the effect of law between the parties who have made them. L.S.A.-C.C. art. 1901.

The codal articles defining the rights and obligations of lessors and lessees are not prohibitory laws which are unalterable by contractual agreements. Those articles are simply intended to regulate the relationship between lessors and lessees when there is no contractual stipulation imposed by the lease. Tassin v. Sli dell Mini Storage, Inc., 396 So.2d 1261 (La.1981).

Paragraph 7 of the lease is entitled “MAINTENANCE AND REPAIRS” and sets forth plaintiffs and defendant’s obligations with respect thereto. It contains the only reference to the air conditioning and heating system, and provides, in pertinent part:

"... The said premises and appurtenances, including ... heating and Air Conditioning ... systems, ... are delivered in good order and Lessee is obligated to keep all of same in like good order during the term of this lease;” (Emphasis added).

Plaintiff argues that, by this clause, defendant assumed responsibility for all repairs to the air conditioning and heating system, including replacement thereof. Contrarily, defendant contends that his obligation of repair does not include the replacement of a system worn out because of age. Thus, this court is faced with determining the meaning of the phrase “to keep ... in like good order.”

In making this determination, we are aware that courts are bound to give legal effect to all written contracts according to the true intent of the parties. The intent of the parties is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences. L.S.A.-C.C. art. 1945. The words of the contract are to be understood in the common and usual signification, without attending so much to grammatical rules, as to general and popular use. L.S. A.-C.C. art. 1946.

We believe that the parties intended, and common sense dictates, that the phrase “to keep ... in like good order” be interpreted to mean “simple maintenance.” “Simple maintenance” does not include the replacement of a system worn out because of age. Therefore, defendant did not obligate himself, under the lease terms, to replace the air conditioning and heating system; On the contrary, under paragraph 8 of the lease, this obligation belongs to plaintiff.

Paragraph 8 of the lease enunciates the procedure to be followed “In the event of other repairs (emergency excluded) required to be made by the Lessor.” This language indicates that the parties contemplated there would be repairs, other than those provided for in paragraph 7, which would be the plaintiffs responsibility. We hold that replacement of the air conditioning and heating system is such a repair.

SPECIFICATION OF ERROR NO. 4

Plaintiff asserts that the trial court erred in finding defendant was justified in withholding the rent. The basis for this assertion is that defendant failed to meet his burden of proving that the repairs were indispensable and the price he paid was just and reasonable.

This burden of proof is that which is required when La.C.C. art. 2694 is the principle upon which lessee withholds the rent. In the instant case, paragraph 8 of the lease reads:

“In the event of other repairs (emergency excluded) required to be made by the Lessor, Lessee shall give the Lessor written notice of the need of such repairs, and if the Lessor has not commenced within THIRTY (30) days from the date of such written notice to correct such existing defects, or does not continue with due diligence to correct same until it is corrected in its entirety, Lessee may make such repairs or pay any such expenses. In the event of any emergency, Lessee may make any repairs or pay any expenses required to be paid by the Lessor. If Lessee makes any repairs set out in this numbered paragraph, it shall give the Lessor prompt notice thereof, and Lessor agrees to pay the Lessee the cost of such repairs on demand, and if not so paid, the Lessee may deduct the amount so expended by it from rent due or to become due.” (Emphasis added).

This lease provision and our determination that the replacement of the air conditioning and heating system falls within its terms precludes the application of La.C.C. art. 2694. See Tassin, supra.

Under this provision, defendant is entitled to withhold the rent once he sends written notification to plaintiff and plaintiff fails to correct same within 30 days thereof. The exhibits evidence that notice was mailed to plaintiff on January 20, 1983, at the address provided in the lease. Although plaintiff failed to receive this notice, defendant complied with the terms of the lease by mailing it. When plaintiff did not correct the defect within 30 days “from the date of the written notice,” defendant was entitled to withhold the cost thereof from the rent.

SPECIFICATION OF ERROR NO. 5

Plaintiff argues that the trial court erred in admitting into evidence Exhibits D-l, D-2 and D-3 over his counsel’s objection.

La.C.C.P. art. 1635 provides, in pertinent part:

“Formal exceptions to rulings or orders of the court are unnecessary. For all purposes it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefore....”

In the absence of an objection, the complaining party must be deemed to have waived his right to complain of the alleged impropriety on appeal. The reason therefor is that in the absence of an objection, the trial court is afforded no opportunity to prevent or correct the alleged error. See Bertoli v. Flabiano, 116 So.2d. 76 (La.App.1st Cir.1959).

The basis for plaintiffs appellate complaints as to the admissibility of D-l and D-2 are not the same arguments as urged by counsel at the trial. These objections constitute different and separate objections than those presented to and upon which the trial judge ruled. Thus, plaintiffs failure to raise these objections at trial results in his inability to raise them on appeal. See Bertoli, supra.

Plaintiff objects to the admissibility of D-3, the invoice for the replacement of the system, on the ground that the invoice itself was insufficient proof of payment to justify an award for the cost of the new system.

In this instance, there is an invoice giving a description of the work and the charge therefor. The invoice contains a statement that the signee agrees to pay the account in full. Defendant’s signature is found under this statement. Further, defendant identified this as the bill he received and testified he paid the amount thereon. In the absence of evidence to the contrary, this documentation and testimony is sufficient to prove that defendant paid the bill.

Lastly, plaintiff takes exception to the fact that all of these exhibits are copies and not originals.

The best evidence rule requires that the. originals must be produced, absent proof that they could not be located following a diligent effort. Wray Williams Display Company of Louisiana v. Finley, 391 So.2d 1253 (La.App.lst Cir.1980), writ denied, 396 So.2d 930 (La.1981).

In response to the above objection, defense counsel stated: “We can’t have the originals. I sent the originals to the (unintelligible).” Thereafter, the trial court ruled that the objection would go to the weight of the evidence, not its admissibility. It is evident from this ruling that the trial court was satisfied that the originals could not be produced even with diligent effort. Since plaintiff furnishes us with no proof to the contrary, we find no error in the trial court’s ruling. All exhibits were properly admitted.

For the foregoing reasons, the judgment of the trial court is affirmed. Plaintiff is to pay all costs.

AFFIRMED.

      . L.S.A.-C.C. art. 2693 provides:
      "The lessor is bound to deliver the thing in good condition, and free from any repairs. He ought to make, during the continuance of the lease, all the repairs which may accidentally become necessary; except those which the tenant is bound to make, as hereafter directed.”
      L.S.A.-C.C. art. 2694 reads:
      "If the lessor do not make the necessary repairs in the manner required in the preceding article, the lessee may call on him to make them. If he refuse or neglect to make them, the lessee may himself cause them to be made, and deduct the price from the rent due, on proving that the repairs were indispensable, and that the price which he paid was just and reasonable.”

      . Paragraph 13 of the lease reads:
      "13. NOTICES. All notices or demands of any kind arising under this lease shall be served by mailing of such notice or demand to the respective parties as follows:
      a. Mario E. Calderon b. Otho C. Johnson
      5541 Riverstone Drive 1335 Florida St.
      Baton Rouge, La. 70808 Baton Rouge, La. 70802”

      . Defendant introduced into evidence a copy of the envelope in which the certified letter was mailed. It is stamped "Return to Sender, Unclaimed.” Plaintiff also testified that he did not receive this letter. However, paragraph 13 of the lease states that the notices shall be served by mailing same to the respective party. See footnote 2.

      . D-l is a copy of the envelope which contained the written notice of repairs that was mailed to plaintiff. At trial, the objection of plaintiff’s counsel to its admissibility was the lack of testimony linking the envelope to the letter notifying plaintiff of the air conditioning and heating problem. On appeal, counsel contends that the envelope is inadmissible because it has no probative value in itself and there is no testimony establishing that the letter was ever received. D-2 is an invoice. At trial, counsel objected to its admissibility on the basis that defendant had testified contrary to the document and had failed to lay a proper foundation. On appeal, counsel complains that the invoice is inadmissible because it does not qualify as a statement/appraisal of the condition of the air conditioning and heating system, and it lacks a signature.


author: LANIER, Judge.

text:
    Bennie J. HUGHES v. DEPARTMENT OF PUBLIC SAFETY, OFFICE OF STATE POLICE.
    No. 83 CA 0934.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Floyd J. Falcon, Jr., Avant & Falcon, Baton Rouge, for appellant.
    James C. Dixon, Staff Atty., Dept, of Public Safety, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is an appeal from a decision of the State Civil Service Commission (Commission) which affirmed the action of the Department of Public Safety, Office of State Police, terminating a classified employee.

FACTS

On January 7, 1983, at approximately 1:15 a.m., Sergeant Robert Rarick of the Baton Rouge Police Department received a complaint that Bennie J. Hughes had cut the left front tire of an automobile owned by Jimmie D. York. At the time of this incident, Hughes was employed as a Trooper First Class with the Department of Public Safety, Office of State Police, and served in the detective division where he worked undercover. At approximately 9:00 a.m. on January 7, 1983, Donna York, the daughter of Jimmie D. York, filed a complaint concerning the incident with Senior Trooper Terry Mayeux of the Louisiana State Police Internal Affairs Office. At approximately 2:00 p.m. on January 7, 1983, Hughes was interrogated by Trooper Mayeux and Sergeant Charlie Sheldon concerning these allegations.

On January 11,1983, Hughes was verbally suspended by his supervisor, Lieutenant Gary W. McDonald. By letter dated January 24, 1983, Hughes was notified by Grover W. Garrison, the Deputy Secretary of the Department of Public Safety and head of the Office of State Police (Agency), that he was terminated effective at the close of business on January 25, 1983. The following reasons were given for the termination:

(1) slashing the tire of the York vehicle;
(2) failing to cooperate fully with the Internal Affairs investigation; and
(3) going to a bar in his police vehicle after going off duty.

Hughes appealed the Agency action of termination to the Commission. After a hearing, the Commission found that the Agency properly proved the slashing of the tire and the failure to cooperate but failed to prove improper use of the police vehicle and upheld the termination. Hughes timely appealed the Commission decision to this court.

TIRE SLASHING INCIDENT

(Specifications of Error 1, 2, 3, 5 and 8)

On appeal, Hughes contends that the Commission erred in concluding that legal cause existed for disciplinary action, by accepting the conflicting testimony of convicted felons over that of a police officer, in failing to realize that motivation for fabricating charges existed because Hughes intended to jail Jimmie York for drug trafficking, in finding Hughes cut the left front tire of the York vehicle and in refusing to require the State to bear the burden of proof.

Jimmie D. York testified that on January 6, 1983, he returned from a Willie Nelson concert to his home at Apartment 48, 1737 LaAnnie Drive in Baton Rouge, Louisiana. York had recently moved to Apartment 48 from Apartment 52 in the same building. York lived in the apartment with his girlfriend, Arlene Gordon, and his twenty-two year old daughter, Donna York. Arlene Gordon had accompanied York to the concert, and Donna York had remained in the apartment. York watched television for a while and then went to bed with Gordon. At approximately 1:00 a.m. on January 7, 1983, Gordon went to the bedroom window and, while standing there, observed Bennie Hughes in the parking lot below by York’s vehicle. Gordon called to York who went to the window and also saw Hughes. York then got his daughter, Donna, to also come and observe Hughes. York observed Hughes kneel down by his left front tire and then heard a sound like air escaping. York yelled to Hughes and Hughes left. York told his daughter to go to Apartment 52 where the phone was still connected and report the incident to the police. Donna York left and subsequently returned with a note addressed to Arlene Gordon from Hughes which she found attached to the door of Apartment 52. This note read as follows: “Boo! You really need to go to lunch one day & hear what needs to be said. For Nicki (‘saik’) if for no other reason u-no-who”. York admitted he was convicted of burglary when he was seventeen and was sentenced to six years in Angola and was convicted for fighting in a barroom.

Arlene Gordon was called to testify and generally corroborated the testimony of York. She further testified that Hughes had left notes for her before and that York’s tires had been cut on other occasions. She specifically testified that she saw Hughes squat by the left front tire of York’s car, heard a sound like air being let out of a balloon and saw the car start sinking. She saw something in Hughes’ hand but could not identify it as a knife. She admitted that she had been convicted of distribution of methamphetamines in 1976 for which she got probation and had been convicted of driving while intoxicated.

Bennie J. Hughes testified that on January 6, 1983, he left Baton Rouge, Louisiana, with Detective Stephen Bourgoyne of the Louisiana State Police to do undercover investigations in Assumption and Ascension Parishes to see if there were juveniles, prostitution or gambling in various bars. Hughes returned to Baton Rouge prior to 1:00 a.m. on January 7, 1983, and proceeded to Apartment 52 at 1737 LaAnnie Drive. Hughes left the note for Arlene Gordon and left. Hughes denied cutting the tire of the York vehicle. Hughes acknowledged that he knew York prior to this incident, that he had York under investigation and that he had tried to get York on a cocaine deal in September of 1982.

Decisions of the Commission are subject to review by this court on any question of law or fact. La. Const. of 1974, art. X, § 12. The standard of review in appeals from the Commission is the same as the standard used in reviewing decisions of the district courts, and factual determinations of the Commission will not be set aside unless they are shown to be manifestly erroneous (clearly wrong). Thomas v. Department of Corrections, Office of Probation and Parole, 442 So.2d 554 (La.App. 1st Cir.1983). The appointing authority (Agency) in a disciplinary proceeding bears the burden of proving the facts contained in its allegations by a preponderance of the evidence. La. Const. of 1974, art. X, § 8(A); Jones v. Dept. of Health & Human Resources, 430 So.2d 1203 (La.App. 1st Cir.1983).

We have carefully reviewed the transcript of the Commission’s proceedings and find that its factual determinations on this allegation are not clearly wrong. These specifications of error are without merit.

FAILURE TO COOPERATE

(Specifications of Error 1, 6 and 8)

Hughes contends that the Commission erred in concluding that he refused to cooperate with the Internal Affairs investigation, that this was not a legal cause for disciplinary action and that the Commission refused to require the Agency to bear the burden of proof.

Sergeant Charlie Sheldon testified that he assisted in the interrogation of Hughes on January 7, 1983. Sheldon asked Hughes whether he was at the LaAnnie Drive apartment on January 6 or 7, and Hughes responded “No” that he was nowhere near the place. Hughes was questioned further and was then confronted with the note that had been left on the door of Apartment 52. Hughes then responded that he could have been at the apartment at that time but was not sure.

Trooper Terry Mayeux testified that he and Sergeant Sheldon interrogated Hughes on January 7, 1983. Sergeant Sheldon asked Hughes where he was and what he had done that night, and in a roundabout way, Hughes said he left the Region, he went by the Outpost (a lounge) and then went home. Sheldon asked Hughes if he went by York’s apartment, and Hughes said “No”. Subsequently, the officers confronted Hughes with the note, and Hughes admitted that he could have gone by there but did not really know. After further interrogation, Hughes admitted he went by the apartment.

Hughes acknowledged that he was interrogated by Sheldon and Mayeux. When asked what he did the previous night, Hughes told them that he went to Napole-onville to work undercover with Trooper Bourgoyne, returned to Regional Headquarters (in Baton Rouge) and dropped Bourgoyne off, went to the Outpost Lounge for a few minutes and then went home. Hughes did not deny going by Apartment 52 but did not include that fact in his initial statement because he was only giving a general answer. When he was asked about the note, he freely and openly admitted that he went by the apartment and left the note for Arlene Gordon. Hughes stated that he would have been a fool to deny the note because he did in fact leave it, that he did in fact go to the apartment and that the note was in his handwriting. As a trained investigator, he knew that the note could be run through the State Police Crime Lab to get fingerprints and for analysis.

We have carefully reviewed the transcript of the Commission’s proceedings, and we cannot determine that its factual findings are clearly wrong. These specifications of error are without merit.

EVIDENCE OF HUGHES’ SEXUAL RELATIONSHIP WITH ARLENE GORDON

(Specification of Error 4)

Hughes contends that the Commission committed error by considering evidence and giving weight to his sexual relationship with Arlene Gordon.

During cross-examination of York, counsel for Hughes elicited the following information:

Q Why would Bennie Hughes have been cutting your tires?
A Well, I was going with his — Arlene, that girl was his girlfriend, and he—
Q I’m sorry, I can’t hear you.
A Called the girl I’m going with now. He was going with her at the time, I suppose, you know. And I guess he was in love. I don’t know what his problem was.

The apparent purpose of this line of questioning was to attempt to establish that Hughes had no motive for cutting York’s tire. However, this testimony indicates that Hughes may have cut the tire because York was going with his ex-girlfriend. Subsequently, counsel for the Agency on direct examination of Arlene Gordon established without objection that Hughes met her in March of 1982 when Hughes arrested her and that commencing in April of 1982, Gordon and Hughes had an intimate relationship, although she did not live with him. Counsel for the Agency then asked Gordon how long the relationship existed, and counsel for Hughes objected contending that any evidence about the relationship would be outside of the scope of the letter of termination. The Commission chairman overruled the objection because there was previous testimony relating to the relationship and because it did not expand the charges. Gordon then testified that the relationship lasted from April of 1982 until September of 1982 when she stopped going with Hughes and started going with York. There is other evidence in the record to show that Gordon started going with York while Hughes was away on a hunting trip. Subsequently, on examination by Commission members and without objection, Gordon testified that she had sex with Hughes almost every day during a six month period. Terry Mayeux testified without objection that Hughes told him that he had gone with Gordon for several months, that they had been intimate, that they had since broken up, that Hughes’ wife was aware of the entire matter and that Hughes and his wife had reconciled.

The Commission is vested with broad rulemaking powers for regulation of the classified service. La. Const. of 1974, art. X, § 10(A). This constitutional grant of rulemaking power precludes the legislature from enacting a statute which would nullify a rule of the Commission. Smith v. Department of Health and Human Resources, 416 So.2d 94 (La.1982). Pursuant to Rule 13.19(d) and (k), the rules of evidence and procedure in hearings before the Commission shall be the same as those applicable to civil trials in district courts.

Much of the testimony concerning the relationship between Hughes and Gordon came in response to questions which were not objected to by Hughes. The failure to object to these questions constituted a waiver of the right to complain of the answers given on appeal. La.C.C.P. art. 1635; Circello v. Government Employees Insurance Company, 425 So.2d 239 (La.App. 1st Cir.1982), writ denied, 429 So.2d 145 (La.1983). In addition, evidence of the relationship between Hughes and Gordon and the fact that Gordon left Hughes to live with York is relevant evidence to establish a motive by Hughes for cutting York’s tire. Motive has been defined as the cause or reason that moves the will and induces action for a definite result. State v. Brown, 398 So.2d 1381 (La.1981); State v. Robertson, 441 So.2d 1281 (La.App. 1st Cir.1983), writ denied, 446 So.2d 314 (La.1984). Evidence of motive is material to show the state of mind when an act has been committed. State v. McHamilton, 128 La. 498, 54 So. 971 (1911). The evidence of the Hughes-Gordon relationship and the fact that Gordon left Hughes for York is factually peculiar to the victim (York) and the charged offense (slashing York’s tire). Because testimony concerning the relationship did not concern a crime by Hughes, it cannot be excluded as improper other-crimes evidence. State v. Abercrombie, 375 So.2d 1170, 1176-1177 (La.1979).

The objection taken by Hughes to a portion of this testimony is not well founded, and this specification of error is without merit.

USE OF HUGHES’ TAPED INTERVIEW

(Specification of Error 7)

Hughes contends that the Commission erred in failing to realize that the tapes of the Internal Affairs investigation were the best evidence of the events concerning his failure to cooperate.

The best evidence of a tape recorded statement is the unaltered tape. State v. Sterling, 444 So.2d 273 (La.App. 1st Cir.1983). Mayeux, Sheldon and Hughes testified without objection about the contents of the interrogation conducted on January 7, 1983. Their testimony also indicates that a portion of the interrogation was tape recorded and that these tapes were available at the Commission hearing. Neither Hughes nor the Agency requested or attempted to use these tapes. Counsel for Hughes conceded in oral argument that the reason he did not attempt to get or use the tapes was because there is no discovery in Civil Service proceedings and he did not know the contents of the tapes at the time of the hearing. Because Hughes did not object to the testimonies of Sheldon and Mayeux concerning the interrogation and did not attempt to obtain and/or use the tapes, he has waived any objections to this procedure and cannot raise this issue in this appeal. The argument by Hughes that it was the responsibility of the Agency to utilize the tapes even without objection from him is without merit.

DECREE

For the foregoing reasons, the rulings of the Commission are correct and are affirmed at the appellant’s costs.

AFFIRMED.

      . Four members of the Commission joined in the decision, two dissented with reasons and the seventh did not participate.

      . York also admitted to multiple arrests; however, this evidence is not relevant for impeachment purposes. La.R.S. 15:495.

      .Gordon was also questioned concerning several arrests.


author: COLE, Judge.

text:
    STATE of Louisiana v. Rujan STERLING.
    No. KA 84 0161.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Ossie Brown, Dist. Atty. by Joseph N. Lotwick, Luke Lavergne, Asst. Dist. At-tys., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

Rujan Sterling was charged by bill of information with committing armed robbery in violation of La.R.S. 14:64. Following a jury trial, he was found guilty and sentenced to fifteen years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendant now appeals both his conviction and sentence.

The victim of the armed robbery was accosted by two men as he left a poolhall during the early morning hours of March 2, 1983. One of the men held a small caliber gun on the victim and told him it was a robbery, while the other man searched through the victim’s pockets removing various valuables, including his wallet. A police officer driving by observed the incident and gave chase to the two men, who fled on foot. The officer saw one of the men tumble over a fence which obstructed his path and fall to the other side. In the presence of the victim, the officer found a wallet containing defendant’s driver’s license near the spot where he had observed the man fall. Both suspects eluded arrest at that time. However, defendant was subsequently arrested, orally advised of his rights and transported to police headquarters for processing. During transport, he confessed to the armed robbery. On appeal defendant relies upon six assignments of error.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues the trial court erred in denying his motion for a mistrial, which was based upon the contention black women were systematically excluded from the jury by the state’s use of peremptory challenges.

A defendant is not denied equal protection when the state exercises its peremptory challenges to exclude black persons in a particular case, unless there has been a systematic exclusion of them over a period of time. The defendant must establish a prima facie showing of such systematic exclusion before the state is required to show the exercise of its peremptory challenges was not discriminatory. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); State v. Brown, 371 So.2d 751 (La.1979), rehearing denied 1979.

Defendant has failed to meet this burden. He relies primarily upon the fact four of the state’s five peremptory challenges excluded black women and has produced no evidence of a history of systematic exclusion. Additionally, it is undisputed one black male served on the jury.

Defendant also argues the manner in which the state exercised its peremptory challenges violated his Sixth Amendment rights. The Sixth Amendment guarantees a criminal defendant the right to an impartial jury selected from a group representing a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court stated:

“In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in ve-nires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” (Emphasis added.) 439 U.S. at 364, 99 S.Ct. at 668.

Defendant has failed to demonstrate any violation of this Sixth Amendment right. He does not contend the jury venire failed to represent a fair cross-section of the community, but rather that the state deprived him of this right by using its peremptory challenges to exclude black women from the petit jury. However, the Supreme Court cases defining this Sixth Amendment right have only applied it to jury venires, panels or pools and have never extended application of the fair cross-section requirement to petit juries in the manner suggested by defendant. In fact, the court in Taylor v. Louisiana, supra, specifically held a criminal defendant is not entitled to a jury of any particular composition and the petit jury actually chosen need not mirror the community. Additionally, defendant has not made any showing of a systematic exclusion of blacks by the state.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant argues an inculpatory statement and confession made by him were the result of impermissible inducements or promises by the police and thus was not freely and voluntarily given.

Detective E. Hill, one of defendant’s arresting officers, was the only witness who testified as to the circumstances surrounding this inculpatory statement and confession. He testified as follows: Defendant was orally advised of his rights at the time of his arrest. Although defendant indicated he understood these rights and appeared to do so, he nevertheless chose to make an unsolicited oral statement while enroute to police headquarters. Defendant was not interrogated prior to giving this statement, the substance of which was that he was not going to take the rap alone. Once at police headquarters defendant was given a written form listing his rights, which Detective Hill read and explained to him. After once again indicating he understood his rights, defendant signed a waiver of rights form and gave officers a handwritten statement confessing to the crime charged.

Detective Hill testified he made no promises to defendant to induce or influence defendant to make a statement. Although he advised defendant he would inform the district attorney’s office of any information given by defendant on other cases, he made no promises regarding possible leniency or a charge reduction. Detective Hill told defendant the district attorney’s office would determine what weight to attach to any such information.

Before a confession or inculpato-ry statement may be admitted in evidence, the state must prove affirmatively and beyond a reasonable doubt it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La.R.S. 15:451; State v. Odds, 430 So.2d 1269 (La.App. 1st Cir.1983). A confession is considered involuntary as a matter of constitutional law if it is obtained by “any direct or implied promises, however slight, [or] by the exertion of any improper influence.” Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897). However, Detective Hill’s statement that he would inform the district attorney’s office of any information supplied by defendant on other cases, does not constitute an inducement sufficient to vitiate the free and voluntary nature of defendant’s confession. See State v. Jackson, 414 So.2d 310 (La.1982); State v. Vernon, 385 So.2d 200 (La.1980), rehearing denied 1980. Moreover, the trier of fact’s decision as to the voluntary nature of a confession is entitled to great weight and will not be overturned on appeal unless it is not supported by the evidence. See State v. Odds, supra.

Finding the trier of fact did not err in concluding the state had borne its burden of proving the free and voluntary nature of defendant’s confession and inculpatory statement, we reject this assignment of error.

ASSIGNMENTS OF ERROR NUMBERS 2 AND 3

Defense counsel contends the trial court improperly restricted her cross examination of Detective Hill. Defense counsel attempted to elicit Detective Hill’s opinion as to the relative importance of this case as compared to that of the other cases for which defendant supplied information. The trial court sustained the state’s objection to this line of questioning.

A witness generally may not testify as to any impression or opinion he may have unless he is qualified as an expert. La.R.S. 15:463; La.R.S. 15:464. Before a witness can testify as an expert, the trial court must be satisfied as to his competence. La.R.S. 15:466.

Defense counsel admits her questions called for an opinion from Detective Hill, but argues in brief his eleven years of service as a police officer qualified him to answer. However, defense counsel made no attempt at trial to qualify Detective Hill as an expert. See State v. Shea, 421 So.2d 200. (La.1982), on rehearing, cert. granted, — S.Ct. -, 104 S.Ct. 2167, 80 L.Ed.2d 551 (1984). We find no error in the trial court’s ruling. In any event, Detective Hill testified previously as to the number and nature of the other crimes about which defendant had provided information. Since the trier of fact could draw its own inferences from this testimony, the trial court’s ruling was harmless.

These assignments of error lack merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant argues the evidence presented was legally insufficient to convict him of armed robbery. He argues the state did not prove beyond a reasonable doubt that the robbery was committed with a dangerous weapon or that he possessed the specific intent required to commit the offense. The standard for reviewing sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the essential elements of the crime were proven beyond a reasonable doubt. See La.Code Crim.P. art. 821; State v. Walker, 447 So.2d 54 (La.App. 1st Cir.1984).

It is true the state did not introduce a weapon in evidence at trial. However, the victim testified one of his assailants held a gun on him as the other assailant went through his pockets. Additionally, defendant admitted in his confession a gun was used to commit the robbery.

The state need not introduce in evidence the gun used during the commission of an armed robbery. The victim’s testimony can sufficiently establish a robbery was committed with a dangerous weapon. See State v. Rash, 444 So.2d 1204 (La.1984), rehearing denied (1984). Thus, we find the evidence sufficient to support the jury’s determination that the robbery was committed with a dangerous weapon.

However, defendant also maintains the evidence was insufficient to establish the existence of specific intent. At the time of defendant’s arrest the police seized an inoperable gun from him. Defendant argues he lacked specific intent to commit an armed robbery because he knew the gun would not operate. This argument is without merit.

First, the reason the inoperable gun seized from defendant was not introduced in evidence was that it was not seized until the day after the crime was committed, therefore it could not be sufficiently connected with the crime. Thus, it is not even clear this gun was the one used in the robbery. Second, if this gun was the one involved in the robbery, it was used in a manner calculated or likely to produce death or great bodily harm. It would be considered a dangerous weapon within the meaning of La.R.S. 14:64 because of the manner in which it was used. See La.R.S. 14:2(3); State v. Green, 409 So.2d 563 (La.1982). The determinative issue is therefore not whether defendant knew the gun was inoperative, but whether he intentionally used it in a manner calculated or likely to produce death or great bodily harm. The highly charged atmosphere at the scene of a gun-robbery is conducive to violence, whether the gun is loaded, workable or unworkable. Danger invites rescue. It also invites self-help. State v. Levi, 259 La. 591, 250 So.2d 751, 753 (1971), rehearing denied 1971.

Intent is a state of mind which need not be proven as a fact, but may be inferred from the facts and circumstances of a transaction and the actions of the defendant. La.R.S. 15:445. To possess specific intent an offender must actively desire the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. Graham, 420 So.2d 1126 (La.1982).

Viewing the evidence in the light most favorable to the state, we find the evidence sufficient to support the jury’s determination that defendant possessed specific intent to commit armed robbery with a “dangerous weapon” within the meaning of La.R.S. 14:64.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER SIX

In his final assignment of error defendant argues his sentence is excessive.

A trial judge has wide discretion in imposing a sentence within statutory limits. The sentence imposed will not be set aside as excessive in the absence of a manifest abuse of discretion.

The trial court adequately considered the sentencing guidelines set forth by La.Code Crim.P. art. 894.1 in particularizing the sentence to defendant. Particularly noteworthy is defendant’s status as a second felony offender whose previous opportunity for supervised probation was resolved unsatisfactorily. Additionally, the trial court was aware of the mitigating factors defendant alleges were present, since defense counsel was given an opportunity to apprise the court of such prior to the imposition of sentence. Accordingly, we find no abuse of discretion in the sentence imposed.

The conviction and sentence are affirmed.

AFFIRMED.

      . Justices Marshall and Brennan are of the opinion that the state's use of peremptory challenges to exclude blacks from a petit jury may constitute a denial of a defendant's Sixth Amendment right to a jury drawn from a fair cross-section of the community. See dissent from denial of certiorari in McCray v. New York, — U.S. —, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983). The majority of the court has thus far not joined in this view.

      . We pretermit consideration of whether black women constitute a "distinctive” group in the community, one of the enumerated requirements of Duren to establish a prima facie violation of the fair cross-section rule. The unique approach by defendant in this regard does not overcome his failure to satisfy the other requirements of Duren.


author: DOMENGEAUX, Judge.

text:
    Linda L. SIMMONS, Plaintiff-Appellee, v. James R. SIMMONS, Defendant-Appellant.
    No. 83-758.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for defendant-appellant.
    Provosty, Sadler & deLaunay, F. Rae Swent, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   DOMENGEAUX, Judge.

This appeal arises out of a divorce proceeding. The central issue revolves around the proper allocation of a military retirement pension fund. Also at issue is the lower court’s assessment of costs.

The trial court ruled the defendant-husband’s retirement benefits to be community property and thus subject to the partition of the community. Costs were assessed against the defendant.

Defendant, James R. Simmons, joined the Air Force in 1956. In 1959, while in the Air Force, he married the plaintiff, Linda L. Simmons. After twenty years of service, he retired from the Air Force and began receiving retirement pay in June of 1976. On May 12, 1982, Linda Simmons filed this suit for a divorce and partition of the community. Judgment was signed on June 10, 1983, granting a divorce between the plaintiff and defendant and assessing all costs against the defendant. The judgment further declared the retirement benefits to be community property and declared the plaintiff “entitled to one-half (lk) ownership of said right, in accordance with the proportionate amount of time the parties hereto were married during defendant’s active military service, being seventeen of twenty years, or forty-three (43) percent of the disposable monthly pay.”

Defendant pursues this appeal from the trial court’s order, alleging that the trial court erred: (1) in finding the military retirement pension to be community property, and (2) in assessing all costs against him.

In Swope v. Mitchell, 324 So.2d 461 (La.App. 3rd Cir.1975), and later in Moon v. Moon, 345 So.2d 168 (La.App. 3rd Cir.1977), writ refused, 347 So.2d 250 (La.1977), this Court held that military retirement pay should be classified as community property when such asset was acquired during the existence of the community.

In Sims v. Sims, 358 So.2d 919 (La.1978), and T.L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1976), the Supreme Court set forth new guidelines to be followed in determining the parties’ interests in deferred compensation plans. The proper method of allocation was expressed in a ratio as follows:

Portion of pension attributable to creditable service during existence of community x 1/2 x Pension attributable to total creditable service annuity (or lump sum payment)

Subsequently on June 26, 1981, the United States Supreme Court issued its opinion in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), which held that military retirement benefits were not subject to a community property regime.

In McCarty the Supreme Court stated at page 2741:

“In the first place, the community property interest appellee seeks ‘promises to diminish that portion of the benefit Congress has said should go to the retired (service member) alone.’ See Hisquierdo [v. Hisquierdo], 439 U.S. [572] at 590, 99 S.Ct. [802] at 813 [59 L.Ed.2d 1]. State courts are not free to reduce the amounts that Congress has determined are necessary for the retired member.”

The Court further announced that:

“[C]ongress may well decide, as it has in the Civil Service and Foreign Service contexts, that more protection should be afforded a former spouse of a retired service member. This decision, however, is for Congress alone.” Id. at 235-236, 101 S.Ct. at 2743, 69 L.Ed.2d at 608.

In response to this invitation, Congress enacted the “Uniformed Services Former Spouses Protection Act”, Pub.L. No. 97-252, 96 Stat. 718, 730-738 (1982). This Act became effective on February 1, 1983, and removes the federal preemption of state laws in the division of military pensions and distribution proceedings.

The key provision is sub-section (c)(1) of 10 U.S.C. § 1408. This sub-section provides:

“(c)(1) Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.”

The congressional intent in enacting the above subsection can be found in the Senate report which states:

“Congress’ intent in enacting subsection (c)(1) is discussed in the Senate Report on the new law. That report states:
The purpose of this provision is to place the courts in the same position that they were in on June 26, 1981, the date of the McCarty decision, with respect to treatment of nondisability military retired or retainer pay. The provision is intended to remove the federal pre-emption found to exist by the United States Supreme Court and permit State and other courts of competent jurisdiction to apply pertinent State or other laws in determining whether military retired or retainer pay should be divisible. Nothing in this provision requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution. This power is returned to the courts retroactive to June 26, 1981. This retroactive application will at least afford individuals who were divorced (or had decrees modified) during the interim period between June 26, 1981 and the effective date of this legislation the opportunity to return to the courts to take advantage of this provision.
S.Rep. No. 502, 97th Cong., 2d Sess. 16 (1982), U.S.Code Cong. & Admin.News 1982, 1555, 1611.”

It is thus clear that Congress intended 10 U.S.C. § 1408 to have retrospective application in such a manner that would totally eliminate the McCarty decision and thus allow state courts to render judgments which were consistent with the decisions issued prior to the McCarty case.

While the most recent pronouncement the Louisiana Supreme Court on the status of federal military retirement benefits is contained in Dedon v. Dedon, 404 So.2d 904 (La.1981), the case presents a conflict with the jurisprudence extant prior to McCarty. The Dedon Court addressed the issue of a former wife’s claim for an alleged community interest in the former husband’s retirement benefits. In that case the Court specifically followed the rationale set forth in McCarty and concluded that the federal supremacy clause mandated a finding of separate property. However, the enactment of 10 U.S.C. § 1408 removed the federal preemption barrier created by McCarty and permitted State Courts to return to their own law and make their own determinations according to state property classifications.

As stated earlier our state law prior to McCarty recognized the community property interest in military retirement benefits earned during the marriage. We thus hold the plaintiff, Linda L. Simmons, is entitled to have her share of the community property portion of the benefits. Such share being allocated under the formula expressed in Sims v. Sims, supra, and T.L. James Co., Inc. v. Montgomery, supra.

Defendant challenges this interpretation of the retrospective application of 10 U.S.C. § 1408, contending the statute cannot be retrospectively applied because to do such would divest him of a vested right and thus violate due process.

We find no merit in defendant’s contention. The retirement status for military personnel and the right to an amount of retirement benefits are controlled by statute. Legislation providing for pension or retirement systems is generally considered remedial and may be retrospectively applied. Maillet v. Board of Trustees, Teachers’ Retirement System of La., 248 La. 964, 183 So.2d 321 (1966). While the retrospective aspects of all legislation must meet the test of due process, it is now well established that legislative acts adjusting the burden and benefits of economic life are presumed to be constitutional, and the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational manner. Duke Power Company v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978).

The Uniform Services Former Spouses Protection Act is not arbitrary and irrational. The congressional purpose in enacting the Act was to provide economic protection and assistance to a particular disadvantaged group. To achieve this end, Congress eliminated the effect of McCarty and also amended various sections of Title 10, U.S.C. to increase the benefits available under the survivor benefit plan, Section 1448, to add new medical benefits, Sections 1072, 1076, and 1086, and to provide for commissary and exchange privileges by regulations. At the same time, Congress restricted the availability of certain benefits to those who had been service spouses for less than ten years, Section 1408(d). In order to effectuate its purpose yet moderate the impact of new provisions, Congress devised a particular scheme to include both prospective and retrospective operation for the statute. Section 1006.

Considering the overall statutory scheme and the provisions discussed above, it is evident that Congress gave particular consideration to the past regulation of military retirement pay and the public policy underlying state judgments, before giving retrospective application to any portion of the Act. The Act strikes a reasonable balance between competing economic interest and the reasonable expectations of the parties concerned. Thus, retroactive application of 10 U.S.C. Section 1408(c)(1) does not constitute a denial of due process and no vested rights have been impaired.

We hold that the trial court’s interpretation of the Act is correct and note that it is in accord with the result reached by our Brethren in the Second Circuit as well as in other state court jurisdictions. See Rohring v. Rohring, 441 So.2d 485 (La.App. 2nd Cir.1983). See also Steczo v. Steczo, 135 Ariz. 199, 659 P.2d 1344 (App.Div. 1, 1983). Cameron v. Cameron, 641 S.W.2d 210 (Tx.1982); In re Marriage of Frederick, 141 Cal.App.3d 876, 190 Cal.Rptr. 588 (1983).

Lastly defendant contends the trial court was in error in assessing all costs against him individually. We find merit in this argument and accordingly reverse the trial court’s judgment insofar as it assessed all costs against defendant.

La.C.C. Art. 159 provides:

“The effects of a divorce shall not only be the same as are determined in the case of a separation from bed and board, but it shall also dissolve forever the bonds of matrimony, between the parties, and place them in the same situation with respect to each other as if no marriage had ever been contracted between them.
If a community property regime exists on the date of filing of the original petition in the action in which the judgment of divorce is rendered, the judgment of divorce carries with it the dissolution of the community, which dissolution is retroactive to the date on which the original petition in the action was filed, but such retroactive effect shall be without prejudice (a) to the liability of the community for the attorney fees and costs incurred by a spouse in the action in which the judgment is rendered, or (b) to rights validly acquired in the interim between commencement of the action and recordation of the judgment.” (Emphasis added.)

Because there had been no judicial separation, the community property regime still existed at the time the divorce was applied for. Malone v. Malone, 260 La. 759 257 So.2d 397 (La.1972). Thus under the clear wording of the code provision the community would be liable for the costs incurred in the divorce action in which the judgment was rendered. In Palmatier v. Palmatier, 394 So.2d 731, 733 (La.App. 3rd Cir.1981), this Court discussed the issue of attorney’s fees incident to a divorce judgment:

“The second paragraph of Article 159, quoted above, makes it clear that if a community exists on the date the petition for divorce is filed, the judgment of divorce dissolves the community retroactive to the date the petition was filed, but without prejudice to the rights of either the wife or the husband to claim from the community attorney’s fees incurred in the divorce action.”

The Palmatier case provides an analogous issue to the instant case. La.C.C. Art. 159 refers to both “attorney’s fees and costs,” and therefor, we conclude that the above reasoning from Palmatier applies to both court costs and attorney’s fees; the community is liable for both under La.C.C. Art. 159.

For the above and foregoing reasons the judgment of the trial court is reversed insofar as it assessed all costs against the defendant. In all other respects it is affirmed. Costs at trial and on appeal are to be paid from the community of acquets and gains between the parties.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . That ratio is expressed as follows:
      17 years attributable to creditable service during existence of community_ 20 years attributable to total creditable service x 1/2 x annuity or lump sum payment
      or
      .43 x annuity or lump sum payment


author: PER CURIAM.

text:
    Steven Wesley PEERY, Sr. v. Maria Laticia Molina PEERY.
    No. 16594-CW.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 1984.
    Rehearing Denied July 6, 1984.

      James E. Franklin, Shreveport, for plaintiff-applicant.
    Booth, Lockard, Politz, LeSage & D’Anna by Nyle A. Politz, Shreveport, for appellee.
    Before MARVIN, FRED W. JONES and NORRIS, JJ.
   PER CURIAM.

In this custody proceeding we granted a stay order and ordered portions of the record to facilitate our consideration of the application of the father for a discretionary review of the trial court’s judgment sustaining an exception of res judicata and declining to exercise jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), La.R.S. 13:1700 et seq. We reverse in part and remand with instructions.

Factual Context

The parents were married in California and shortly thereafter moved to Louisiana in 1977. Their child was born in Shreveport on November 13, 1978. About July 5, 1982, the mother left the father and moved with the child to California, the home of the mother.

In the mother’s action for an interlocutory decree of divorce and custody in California, the father was personally served while visiting there in December of 1982. The judgment in that action was signed by the attorneys of both parties to the dispute on February 14, 1983.

About March 2, 1983, the mother and child returned to Louisiana and resumed living with the father until July 9, 1983. On July 9, 1983 the mother and child returned to California.

On July 22, 1983 the father brought an action in Louisiana for custody and legal separation. The mother was served through a curator and was informed by him of the action by his letter to her of July 28, 1983. However, the father did not comply with La.R.S. 13:1708 when he filed his petition, but verbally informed the Louisiana court of the California custody decree and introduced that decree into evidence. The judgment of the Louisiana court, dated September 19, 1983, granted the father a legal separation and awarded him custody of the child.

In September of 1983 the father went to California armed with his Louisiana judgment. The father and child then returned to Shreveport on or about September 23, 1983, where they have since resided.

Approximately one month later, the mother petitioned the California court to make the interlocutory divorce decree final and to have permanent custody of the child awarded to her. The father entered an appearance in that proceeding, asserting that the cohabitation from March to July of 1983 amounted to a reconciliation of the parties. On December 1, 1983 the California court rendered a judgment granting final divorce and holding that the cohabitation of the parties did not constitute a reconciliation and that the court had and continues to have jurisdiction of the parties. The California court then ordered the father to deliver the child to the mother.

On March 27, 1984 the father petitioned for a final divorce and for permanent custody in the Louisiana court, again failing to comply with La.R.S. 13:1708. The mother appeared in the Louisiana action, filing a peremptory exception of res judicata, pleading the California final divorce and custody decree.

The Louisiana court sustained the mother’s exception of res judicata on May 31, 1984. The mother then filed a habeas corpus action, which, after a hearing on June 5 and 6, ordered the father to surrender custody of the child to the mother. The father seeks this court’s supervisory review of those rulings, each of which raises jurisdictional questions. We stayed the proceedings to consider these questions.

JURISDICTION and the UCCJA

The UCCJA, now adopted by 49 states, was promulgated for the stated purpose of avoiding jurisdictional competition in conflicts, promoting interstate cooperation, litigating custody where child and family have closest connections, discouraging continuing conflict over custody, deterring abduction and unilateral removal of children, avoiding relitigation in another state’s custody decisions, and promoting exchange of information and other mutual assistance between courts in different states. See La.R.S. 13:1700.

The courts of California and Louisiana had the constitutional jurisdiction over the parties, but the issue of which court had proper authority to exercise its jurisdiction under the UCCJA limitations remains to be determined. The “jurisdictional” grounds under UCCJA for child custody determination are set out in the Louisiana statutes at La.R.S. 13:1702 and in the California statutes in Cal.Civil Code, §§ 5152 et seq. These statutes, adopted under the uniform act, are identical.

Other sections of the act that follow address the due process rights of the parties and prescribe appropriate procedures. Crucial to our determination are those sections which articulate the circumstances or situations in which the courts may and should decline to exercise jurisdiction. We stress this point because the parties speak of either California or Louisiana as lacking “jurisdiction” to act in the instant matter, when the more accurate inquiry is whether the UCCJA directs or allows the exercise of jurisdiction. Each state may assert jurisdiction under the multi-faceted components of Section 1702. Indeed, this case illustrates the jurisdictional competition and conflict which the UCCJA was designed to alleviate.

Consistent with the goal of avoiding, in this state, relitigation of custody decisions of other states, 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 has the same jurisdiction under statutory provisions that are substantially in accordance with Section 1702, or which was made under factual circumstances meeting the jurisdictional standards of Section 1702.

La.R.S. 13:1713 authorizes Louisiana to modify an out-of-state decree. Section 1713 provides as follows:

A. 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 jurisdictional prerequisites substantially in accordance with this Part or has declined to assume jurisdiction to modify the decree and the court of this state has jurisdiction.
B. If a court of this state is authorized under Subsection A of this Section and Section 1707 to modify a custody decree of another state it shall give due consideration to the transcript of the record and other documents of all previous proceedings submitted to it in accordance with Section 1721.

The threshold question is whether California, which rendered the initial decree, had jurisdiction, or now has jurisdiction, under the peculiar jurisdictional prerequisites of the UCCJA, which are set forth in Subsections A(l) and (2) of Section 1702 of our law, quoted in footnote two.

About July 5, 1982, the mother left Shreveport with the child and began residing in California with her family. The record also reflects that the proceedings for an interlocutory decree of divorce and custody in California began on December 22, 1982, a period of approximately 5V2 months. The record also reflects that the child previously resided all of his life in Shreveport with his parents. Additionally, it is undisputed that Shreveport was the only place of matrimonial domicile of the parents.

Under these circumstances, the California court lacked jurisdiction under UCCJA because it was not the home state of the child and did not have the significant connection with the child. Specifically, California failed to meet the home state requirement of the home state test because the child did not reside within the state for six consecutive months before the action was instituted.

Under the significant connection test, there must be available substantial evidence concerning the child’s present or future care, protection, training, and personal relationship. The record clearly shows that the child has lived the great majority of his life in Louisiana and that substantial evidence concerning the child is available in Louisiana.

The validity of the initial Louisiana custody decree under UCCJA is also questionable. The father filed his action in Louisiana in July of 1983. On September 19, 1983, the Louisiana court awarded custody to the father.

The father did not fully comply with the UCCJA. The father failed in his first pleading to inform the court of the custody proceedings pending in the California court. Section 1708. The purpose of this section seeks to avoid conflicting child custody determinations from courts of different states. The record does reflect that the father verbally informed the Louisiana court of the California decree when the trial on his separation petition occurred. It appears that the Louisiana court improperly found that there were no simultaneous proceedings for custody pending in any other state. When the court was informed of the California proceedings, the Louisiana court should have proceeded as directed by Section 1705. This section provides for situations where proceedings may occur simultaneously in two or more states. The initial Louisiana decree, like the California initial decree, did not strictly comply with the apparent “jurisdictional” prerequisites of UCCJA.

The fact of non-compliance with UCCJA does not affect, however, the jurisdiction of the California court or the Louisiana court to adjudicate the status of the marriage of. the mother and father. The California divorce, rendered December 1, 1983, has become final. The Louisiana father personally appeared in that action. Under these circumstances, the trial court did not err in sustaining the mother’s exception of res judicata directed at the father’s 1984 action for a divorce in Louisiana. Brown v. Brown, 387 So.2d 565 (La.1980).

Non-compliance with UCCJA should limit, however, the authority of courts in Louisiana and in California to render or to modify a custody decree in these circumstances. While this case illustrates the conflicts problem UCCJA seeks to resolve, this case is not typical because the father did not “snatch” the child from the mother and abscond with him to Louisiana from California. The record clearly shows that the father and the mother discussed and compared the initial California decree and the initial Louisiana decree with the police authorities in California before the father returned here with the child on September 23, 1983. The father did not use the guise of “visitation” to flee with the child. Any finding to the contrary by the trial court is clearly wrong.

This child lived in Louisiana the first three years and eight months of his life. He lived eight months in California (July 5, 1982 — March 2, 1983). Since March 2, 1983, with the exception of 2½ months (July 9 — September 22), he has lived in Louisiana, either with both parents or with his father. Yet it appears that paramount “best interest of the child,” the UCCJA standard, has not been determined in a true adversary proceeding which complies with UCCJA.

Louisiana has jurisdiction under the home state provision and under the significant connection provision of UCCJA (LRS 13:1702 A(l) and (2)). The parents and the child are in Shreveport, Louisiana. Under these circumstances, we shall find that neither California nor Louisiana has previously complied with UCCJA and we shall reverse the trial court’s judgment ordering surrender of the child to the mother by the father. We shall further direct that the parties and the trial court comply with UCCJA to exercise its jurisdiction and proceed in an adversary hearing to determine custody in the best interest of the child.

The trial court shall fully inform the California forum that it will exercise its jurisdiction to determine custody in accord with the provisions of UCCJA, LRS 13:1713(B). Due consideration shall be given to the transcript of record and other documents in all previous proceedings as authorized by LRS 13:1721. The trial court shall request from the California forum the documents and transcripts mentioned in LRS 13:1720, 1721, and shall utilize, where appropriate, the provisions of LRS 13:1717-1719 in order that the best interests of the child might be determined in an adversary hearing that complies with UCCJA. The trial court shall consult with the California forum and shall require the assistance of the litigants to insure compliance with UCCJA. Each litigant shall be allowed a reasonable time to amend his or her pleadings to limit the issues and to provide for an expeditious and efficient proceeding.

Costs, here and below, shall be assessed by the trial court in its discretion under the law, when and as often as the trial court deems proper after remand. The trial court may render other temporary orders as it deems necessary to facilitate the hearing and to allow the exercise of reasonable parental rights by each parent during the pendency of the hearing.

Writ granted and made peremptory. Affirmed in part, reversed in part, and remanded with instructions.

      . R.S. 13:1708.
      A.Every party in a custody proceeding in his first pleading or in an affidavit attached to that pleading shall give information under oath as to the child’s present address, the places where the child has lived within the last five years, and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit every party shall further declare under oath whether:
      (1) He has participated (as a party, witness, or in any other capacity) in any other litigation concerning the custody of the same child in this or any other state.
      (2) He has information of any custody proceeding concerning the child pending in a court of this or any other state, and
      (3)He knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or visitation rights with respect to the child.
      B. If the declaration as to any of the above items is in the affirmative the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and as to other matters pertinent to the court’s jurisdiction and the disposition of the case.
      C. Each party has a continuing duty to inform the court of any custody proceeding concerning the child in this or any other state of which he obtained information during this proceeding.

      . R.S. 13:1702.
      A.A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
      (1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
      (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 relationship; or
      (3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
      (4)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with Paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
      B. Except under Paragraphs (3) and (4) of Subsection A, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
      C. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.
      "Home state” means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned.

        Periods of temporary absence of any of the named persons are counted as part of the six-month or other period. (LRS 13:1701(5))