author: WILLIAMS, Judge.

text:
    Dorothy Nick, wife of/and Harold J. O’REILLY v. PRAT’S TRAVEL AGENCY, INC., et al.
    No. CA-1566.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1984.
    Rehearing Denied Oct. 29, 1984.

    Writ Denied Dec. 7, 1984.

      Frederick R. Bott, Nancy J. Marshall, Deutsch, Kerrigan & Stiles, New Orleans, for defendant-appellant The Herbert Schneider Corp.
    Thomas L. Giraud, Charles A. Verder-ame, Giraud, Cusimano & Verderame, New Orleans, for plaintiffs-appellees.
    Before GULOTTA, BARRY and WILLIAMS, JJ.

       Barry, J. voted to grant a rehearing.

   WILLIAMS, Judge.

Defendant, the Herbert Schneider Corporation [“Schneider”], appeals the trial court’s judgment notwithstanding the verdict rendered in favor of plaintiffs, Dorothy Nick O’Reilly and Harold J. O’Reilly, and against Schneider in the amount of $5,471.00 in expenses and $20,000.00 for pain and suffering. We reverse and dismiss plaintiffs suit for lack of jurisdiction in personam.

Plaintiffs injuries occurred while she and her husband were on' a group tour purchased from Prat’s Travel Agency, Inc. [“Prat’s”] in New Orleans. The tour was a Greyhound World Tours “Fall Foliage Tour.” On the eighth day of the tour, October 1, 1978, a “skimobile” ride up Mount Cranmore in North Conway, New Hampshire, was scheduled. The skimobile ride was owned by Schneider, a New Hampshire corporation of five partners. To ascend the mountain, the rider stepped into a single-passenger car and rode, seated, up a tramway to a height of approximately three thousand feet. At this point, the rider stood up and stepped off the car. After enjoying the view, the rider took another car up a separate tramway to the top of the mountain. The cars continually circulated up and down the mountain at a speed of approximately three miles per hour. They did not stop for embarkation or disembarkation.

Plaintiff rode the skimobile up to the 3,000 foot point. She asked the operator at the disembarkation point if he was going to stop the car. He told her she could not stay in the ear and instructed her on how to get off the car, repeating instructions she had before boarding the skimobile. He did not throw a switch that would have shut off the entire skimobile ride. Although the operator tried to physically help her out of the car, plaintiff stumbled and fell, fracturing her left femur.

Plaintiff was taken to a nearby hospital where she underwent surgery in which a large metal plate was mounted on the femur and bone from her hip was grafted onto the point of fracture. Her leg was then placed in a cast. On October 9, 1978, plaintiff and her husband flew home to New Orleans. Plaintiffs doctors testified that her fracture had healed well.

Plaintiff and her husband were refunded the unused portion of the tour, $539.89, from Greyhound Lines, Inc.

In their petition for damages filed April 18, 1979, plaintiffs named as defendants Prat’s, Schneider, and Greyhound World Tours, Inc. and Greyhound Lines, Inc. [“Greyhound”]. Plaintiffs alleged that all of the defendants were liable for their failure to warn plaintiffs about the dangers of the skimobile ride. Plaintiffs also alleged Schneider was liable for its employee’s negligent treatment of plaintiff at the disembarkation point of the ride.

Both Prat’s and Greyhound brought third-party demands against Schneider. Schneider filed exceptions of lack of personal jurisdiction over the claims of plaintiffs, Greyhound, and Prat’s against Schneider. Schneider also filed an exception of vagueness to plaintiffs’ petition, alleging that plaintiffs had not enumerated activities of Schneider sufficient to constitute “transacting business” within the meaning of the Louisiana longarm statute. The trial court dismissed Schneider’s exceptions as to Prat’s and Greyhound and granted the exception of vagueness, ordering plaintiffs to submit an amended petition. The trial court deferred ruling on Schneider’s exception of lack of personal jurisdiction against plaintiffs until plaintiffs’ amended petition was submitted.

The ruling on Schneider’s exception of lack of personal jurisdiction as to plaintiffs was never made. Schneider reserved its rights under that exception in its answer to plaintiffs’ petition and proceeded to participate fully in the trial, conducting a vigorous defense against all parties, including plaintiffs.

After the presentation of the evidence, each of the defendants moved for a directed verdict. These motions were overruled. A unanimous verdict was rendered by the jury, who answered the following interrogatories:

INTERROGATORIES TO THE JURY

Plaintiffs then moved for a judgment notwithstanding the verdict and, in the alternative, a new trial. Schneider moved for a verdict in accordance with the answers to the special interrogatories, dismissing plaintiffs’ claims against Schneider, Prats, and Greyhound. The trial court denied Schneider’s motion and rendered a judgment notwithstanding the verdict in favor of plaintiffs and against Schneider for $20,000.00 in pain and suffering and $5,471.00 in expenses.

On appeal, Schneider alleges that the trial court erred in (1) holding that Schneider had sufficient business activity in Louisiana for the court to exercise jurisdiction under La.R.S. 13:3201(a); and (2) failing to render judgment pursuant to the jury’s answers to special interrogatories, dismissing plaintiffs’ claim against Schneider. Schneider asks this court to dismiss plaintiffs’ claim against it (1) for lack of personal jurisdiction; (2) in a judgment rendered pursuant to the special interrogatories; or (3) in a judgment in Schneider’s favor and against plaintiffs, rendered upon the merits of the record.

Plaintiffs respond that the court had personal jurisdiction over Schneider not only because Schneider was transacting sufficient business to come under La.R.S. 13:3201(a), but also because Schneider waived its exception of lack of personal jurisdiction by proceeding to trial when no judgment had been made on the exception. Plaintiff further responds that the judgment notwithstanding the verdict was a valid exercise of the trial court’s discretion under La.C.C.P. Art. 1811. If the jury attempted to say that Schneider’s negligence was not a proximate cause of plaintiff’s injuries, plaintiffs assert, it was manifestly erroneous, as the record clearly establishes that Schneider’s negligence was the proximate cause and that Schneider had the last clear chance to avoid the accident.

Because we hold that the trial court lacked personal jurisdiction over Schneider, we need not proceed to the merits of this case.

Schneider filed an exception of lack of personal jurisdiction against plaintiffs’ claim. The trial court, however, announced that it would defer ruling on the exception until the vagueness in plaintiffs petition was cured.

In pertinent part, La.C.C.P. Art. 929 reads, “[t]he declinatory exception ... shall be tried and decided in advance of the trial of the case.” Plaintiff cites this article and QuicKick, Inc. v. QuicKick International, 304 So.2d 402 (La.App. 1st Cir.1974), in support of the argument that Schneider waived the exception of lack of personal jurisdiction. The QuicKick court interpreted La.C.C.P. Art. 7, in light of Arts. 925 and 929, as follows:

Since the law does not require that an answer be filed at the same time as the declinatory exception in district courts, the clear import of the foregoing is that the filing of an answer subjects the defendant to the jurisdiction of the Court unless he has first insisted on a decision on his exception to the jurisdiction over his person. It would be completely inconsistent to permit a defendant to proceed to trial on the merits in a court which he claims to have no jurisdiction over his person, and permit him to reserve any rights under his exception lohich he has not insisted be decided prior to trial.

Id. at 406 (emphasis added). The court held that the defendant had waived his exception because, after filing it, defendant himself had moved the court to refer it to the merits rather than decide it in advance of trial. Schneider to the contrary, continued to reserve the exception. Considering that the trial judge had already ruled Schneider in court as to Defendant/Third-Party Plaintiffs Prat’s and Greyhound, we do not find Schneider’s failure to resort to motions to the trial judge, or more radically, to this court, fatal to his jurisdictional claim. Regardless of the ruling made on the exception, Schneider would have had to proceed through the trial.

There is no indication in the record that Schneider acquiesced in the delay in ruling on the exception. Furthermore, there has been no demonstration that Schneider intended to waive its claim. The failure of the trial court to decide this issue should not be imparted to Schneider, especially in light of Schneider’s continued reservation of its right to except to jurisdiction. Schneider complied with all of the procedural requirements necessary to assert its exception. We know of no law or code authority placing any further burden upon it.

Plaintiffs assert jurisdiction over Schneider under the Louisiana Long-Arm Statute, La.R.S. 13:3201(a), which provides that “[a] court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s (a) transacting any business in this state.”

In enacting Louisiana’s Long-Arm Statute, the legislative intent was to extend personal jurisdiction of Louisiana Courts over non-residents to the limits of due process — to any non-resident having “minimum contacts” with Louisiana. See Green v. Luxury Auto Rentals, Inc., 422 So.2d 1365 (La.App. 1st Cir.1982); Soileau v. Evangeline Farmer’s Co-op, 386 So.2d 179 (La.App. 3d Cir.1980); Drilling Engineering, Inc. v. Independent Indonesian American Pet. Co., 283 So.2d 687 (La.1973); and Aucoin v. Hansen, 207 So.2d 834 (La.App. 3d Cir.1968).

The Soileau court elaborated on this point:

The finding of jurisdiction over non-residents involves an evaluation of the factual circumstances of the case in light of federal constitutional principles. In order for the proper exercise of jurisdiction in personam over a non-resident there must be sufficient minimum contacts between the non-resident defendant and the forum state to satisfy due process and “traditional notions of fair play and substantial justice” as required by Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).

At 386.

Circuit Judge Randall thoroughly outlined these federal constitutional principles in Burstein v. State Bar of California, 693 F.2d 511 (5th Cir.1982) which held that personal jurisdiction did not exist over a Louisiana resident’s suit against the California Bar for alleged negligent misgrad-ing of her bar examination:

Any determination as to fairness must result from a weighing of all the relevant facts; the inquiry is therefore highly specific to each case and not susceptible of easy determination. “[F]ew answers will be written ‘in black and white. The greys are dominant and even among them the shades are innumerable.’ ” Kulko v. Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978) (quoting Estin v. Estin, 334 U.S. 541, 545, 68 S.Ct. 1213, 1216, 92 L.Ed. 1561 (1948). Nevertheless, some guidance can be gleaned from previous cases, particularly in identifying the factors relevant to the decision.
The leading Supreme Court cases have evaluated the facts in light of a number of considerations. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), looked at the inconvenience to the defendant of having to litigate away from its residence, the relationship between the defendant’s contacts with the forum and the cause of action, the quality and nature of the contacts, and the extent to which the defendant “exercise[d] the privilege of conducting activities within [the] state ... [and] enjoy[ed] the benefits and protection of the laws of that state.” Id. at 319, 66 S.Ct. at 159.
In McGee v. International Life Insurance Co. [355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223] supra, the Court considered some new elements: the interest of the forum state in maintaining the suit, the difficulty to the plaintiff of pursuing the defendant to its home state, and the location of the likely witnesses. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed. 1283 (1958), laid particular emphasis on whether the defendant has “purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. at 253, 78 S.Ct. at 1239 (citing International Shoe, supra). Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), which applied the International Shoe line of cases to in rem jurisdiction, observed that if the law of the forum state would be used to decide the controversy, that would support but not establish personal jurisdiction. It also stressed Han son’s concern with “purposeful availment” of the privileges of the forum. The Court reiterated that emphasis in Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), and noted that the only reason the forum state in that case had any contact with the controversy was because the plaintiff had moved there. The Kulko Court also stated that a reasonable person in the defendant’s place would not have expected his actions to result in having to litigate so far from his home, citing Shaffer v. Heitner, supra. Kulko, 436 U.S. at 97-8, 98 S.Ct. at 1699-1700. Finally, World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), identified as relevant:
the plaintiffs interest in obtaining convenient and effective relief, ... at least when that interest is not adequately protected by the plaintiffs power to choose the forum ...; the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies ....
Id. at 292, 100 S.Ct. at 564 (citations omitted). The Court went on to state: “[T]he foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id. at 297, 100 S.Ct. at 567 (citing Kulko v. Superior Court, supra, and Shaffer v. Heitner, supra).

At 520-521.

Whether a particular defendant has sufficient minimum contacts with Louisiana is to be determined from the facts and circumstances of each case. Drilling Engineering, supra.

Mr. Herbert Schneider testified that the corporation had never signed any contracts with anyone in Louisiana; that the company had never furnished any services to anyone in Louisiana; that no employee or agent of the corporation had ever been to Louisiana prior to this trial; that no advertising had been undertaken in Louisiana; that no promotional material was mailed out to Louisiana; and that no one from the corporation ever directly solicited business in Louisiana either in person or by mail.

Brochures describing the skimobile ride were sent to Prat’s by a tour agency; these brochures, however, were neither paid for nor prepared by Schneider. The only advertisement placed by Schneider was one placed in the “AAA Tourbook”, 1978 Edition for the States of Maine, New Hampshire and Vermont. The Tourbook was sent by the American Automobile Association to Prat’s at Prat’s request.

The only direct contact Schneider had with Louisiana was in responding, by mail, to Prat’s letters requesting reservations for Prat’s “Fall Foliage Tour” groups. Prat’s had been reserving, by mail, rides on the skimobile since the travel agency was founded in 1971.

We do not find these contacts sufficient for the assertion of jurisdiction under La.R.S. 13:3201. In EK v. Nationwide Candy Division, Ltd., 403 So.2d 780 (La.App. 3d Cir.1981), the court considered similar circumstances before reversing the trial court judgment and dismissing plaintiff’s suit for lack of personal jurisdiction. “The record reflects that Lammers was never physically present in the state of Louisiana, and that he has never met the plaintiff personally ... the record is clear that the only Louisiana contacts between defendant Lammers and the plaintiff were two telephone calls and a letter.” At 784. The plaintiff in Gertler v. Gondola Ski Shop, Inc., 384 So.2d 856 (La.App. 4th Cir.1980) arranged through a New Orleans travel agent, to rent ski equipment from Gondola Ski Shop, a corporation located in Aspen, Colorado. The Ski Shop supplied plaintiff with Solomon equipment; plaintiff brought suit in Louisiana after she injured herself in a skiing accident, alleging that her ski bindings failed to release. In reversing the decision of the trial court and dismissing plaintiff’s claims against Solomon for lack of personal jurisdiction, the court drew analogies to the United States Supreme Court’s decision in World-Wide Volkswagen, supra. “A party cannot be made defendant in Louisiana merely because it is foreseeable that his product might injure a Louisiana resident while the latter was using it in another state.” At 859.

Looking back to the jurisprudence examined by the United States Court of Appeal for the 5th Circuit in Burstein, supra, we note the inconvenience to Schneider in litigating away from New Hampshire, and the fact that Schneider enjoys no benefits under or protection of the laws of Louisiana, factors important in International Shoe, supra. In the light of McGee, supra, we emphasize that the interest of Louisiana in maintaining the suit competes with New Hampshire’s, as the accident occurred in New Hampshire and New Hampshire’s law would apply; it was the plaintiff who voluntarily traveled to the scene of the accident without any prompting by the defendant; and the likely witness working at the skimobile ride or at the hospital plaintiff was taken to would be located in Connecticut. We find an absence of the “purposeful availment” of rights and privileges of Louisiana Law stressed in Hanson v. Denckla, supra. Considering Kulko v. Superior Court, supra, we cannot find that a small corporation formed to run a skimobile ride in rural New Hampshire would reasonably have expected that confirming reservations requested by Prat’s would result in litigation so far from home. Finally, we cannot find the “foreseeability” key in World-Wide Volkswagen, supra and conclude, as did the United States Supreme Court in that case, that personal jurisdiction over the defendant, Schneider, is lacking.

For the foregoing reasons, the judgment of the trial court is reversed and plaintiff’s suit against Schneider is dismissed.

REVERSED.

      . This is not a case of "false conflicts of law” as in lagers v. Royal Indemnity Company, 276 So.2d 309 (La.1973).


source: Caselaw Access Project

author: REDMANN, Chief Judge. PER CURIAM.

license: Public Domain

text:
    Teddy MONTE v. H.B. “BUSTER” HUGHES, INC. and Niagara Fire Insurance Company.
    No. CA 1460.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 27, 1984.
    Rehearing Denied Oct. 29, 1984.

      Marvin C. Grodsky, New Orleans, for plaintiff.
    Geoffrey P. Snodgrass, Christovich & Kearney, New Orleans, for defendants.
    Before REDMANN, C.J., and GARRISON and WARD, JJ.
   REDMANN, Chief Judge.

Plaintiff employee’s appeal from a judgment for workers’ compensation benefits argues that he should have been awarded permanent and total benefits, penalties and attorney’s fees, and pre-judgment interest on medical expenses.

On medical expenses, plaintiff cites La. R.S. 13:4203 and its application in LeBlanc v. New Amsterdam Cas. Co., 202 La. 857, 13 So.2d 245 (1943).- That statute provides interest from judicial demand “on all judgments, sounding in damages, ‘ex delicto’,” and does not purport to apply to workers’ compensation cases. A worker who is being charged interest on an unpaid medical bill ought of course to recover it as part of his medical expenses. But we know of no rule that interest is due upon workers’ compensation medical expenses in all cases, even if the plaintiff is not being charged interest. We therefore reject plaintiff’s argument that pre-judgment interest is due in every case of unpaid medical expense.

At the time of this early 1975 accident, prior to the 1975 amendment to the workers’ compensation law, permanent and total benefits were due to a worker disabled “to perform work of the same or similar description that he is accustomed to perform,” Knispel v. Gulf States Util. Co., 174 La. 401, 141 So. 9, 12 (1932). The trial judge’s reasons show he was aware that this more liberal standard applies, but he reasoned that the medical evidence does not support a conclusion of total disability beyond 202 weeks. The judge noted that, notwithstanding a 10% “anatomical” disability, the half-inch shortening of plaintiff’s leg causes neither functional disability nor substantial pain. Plaintiff was therefore correctly held not permanently and totally disabled.

Plaintiff claims for penalties and attorney’s fees in respect to the benefits found due after the automobile accident that was the occasion of the rebreaking of plaintiff’s leg 13 days after the accident at work. The rule in compensation cases is that an aggravation of a work-related injury is compensable (at least if the earlier injury “predisposes” the worker to the later injury); Kelly v. City of New Orleans, 414 So.2d 770 (La.1982); Stewart v. Hospitals Affiliates Int’l., 404 So.2d 944 (La.1981). Thus plaintiff’s disability, although for a longer time because of the rebreaking of his leg, was for its whole time compensa-ble, and termination of plaintiff’s benefits before complete recovery was therefore wrong. But termination is not established to have been “clearly arbitrary,” in the words of Kelly, 414 So.2d at 772. The two cited supreme court cases, establishing and reaffirming that principle, were decided after our plaintiff’s injuries. Moreover, in Kelly itself the court refused penalty and attorney’s fees on the benefits and surgical costs arising from the swimming accident, because the failure to pay them was not “clearly arbitrary.” Under our circumstances, especially the pre-Kelly and pre-Stewart time of our insurer’s decision (on the basis of a doctor’s opinion that the original breaking would long earlier have healed), we cannot hold our trial judge clearly wrong in his conclusion that the insurer was not clearly arbitrary in terminating compensation benefits long after the estimated time that disability would have ended in the absence of the automobile accident (although long before the aggravated disability in fact ended).

Affirmed.

ON APPLICATION FOR REHEARING

PER CURIAM.

Plaintiff’s application for rehearing caused us to review and now requires us to clarify our language to specify that we "reject plaintiff’s argument that pre-judgment interest from judicial demand is due in every case of unpaid medical expense.”

The only medical expense that plaintiff paid before filing suit was $52.95 for drugs and appliance rental, and it may be conceded he would be entitled to interest on these items.

Also pre-filing, plaintiff incurred doctor’s charges totalling $1,249 before suit, but that doctor both (1) did not add interest to his bills and (2) testified he did charge workers’ compensation patients for followup visits after reducing a fracture, but did not charge his other patients for them. Evidently that doctor’s charges are adjusted with the expectation that they will not be paid immediately.

Among the post-filing bills, one doctor did add interest, and the amount of interest shown by the bill was awarded (although that interest was only for eight months).

Another bill (for $337) shows that the services were not even rendered until over six years after the suit was filed — and only a month and a half before the judgment in the case. To argue that interest is due on that bill from judicial demand is to reject the theory of damages as loss-replacement.

Yet another two bills, for $3,781.25 from a Minnesota welfare agency and $1,270.75 from Minnesota doctors — both included in the judgment — show that the second is to the extent of about 75% or so included in the first. Moreover, the second bill shows that, although the physicians billed $1,270.75, the local welfare department rejected a total of $187.15 as beyond “customary and reasonable” and the doctors’ accounting deducted that amount by “write off.” Thus the trial court awarded most of $1,270.75 (apparently $991.95) more than the proof.

Furthermore, as to the welfare department’s claim for reimbursement for $3,781.25, the date of payment is not shown. Again, plaintiff is not entitled to the interest from judicial demand that he claims, but, at best on this proof, if at all, from the late 1978 date of the affidavit— which does not itself assert any claim for interest.

Plaintiff does not provide an accounting that would show from what dates interest is due on what amounts — not in the trial court and not in this court. If interest were calculable from three or four dates and amounts we might amend the judgment to award him some interest. But many dates and amounts are involved and, as we have explained above, plaintiff has by error been awarded about $1,000 medical expense that was already included in a $3,781.25 bill also awarded.

Plaintiff has the burden in the trial court of proving his case, and in the appellate court of showing that the trial court was clearly wrong. He did not establish in the trial court what interest he was due and he did not show here that the trial court was clearly wrong — especially considering the erroneous overaward of about $1,000 — in failing to award pre-judgment interest to plaintiff.

Rehearing is refused.


author: REDMANN, Chief Judge.

text:
    Richard O. ALBA et al. v. Roland RIVIERE et al. (Two cases). Richard O. ALBA v. Roland RIVIERE et al.
    Nos. C-1582, C-1615 and C-1657.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    Rehearing Denied Oct. 29, 1984.
    Writ Denied Dec. 14, 1984.
    A. Remy Fransen, Jr., Wiedemann & Fransen, New Orleans, for Richard 0. Alba et al.
    Laurence E. Best, Steven K. Best, Hebert & Abbott, New Orleans, for Strumenti Ottici Subacquei.
    Richard S. Vale, Blue, Williams & Buckley, Metairie, for Undersea Industries, Inc.
    Steven T. Victory, Frederick W. Bradley, Liskow & Lewis, New Orleans, for Baraku-da Bergann KG.
    John G. Gomila, Jr., New Orleans, for P & P Intern.
    Before REDMANN, C.J., and BYRNES and WILLIAMS, JJ.
   REDMANN, Chief Judge.

Plaintiff, a resident of Louisiana, suffered decompression injury (“the bends”) while diving at Belize, allegedly because of defectiveness of two decompression meters. Plaintiff sued in Louisiana, among others, the Italian manufacturer and the two distributors (one a Delaware, one a German corporation) who in fact distributed the two meters to a retailer in Texas (or California) and to a distributor in Kentucky, respectively.

Those three defendants each filed exceptions to the jurisdiction of the Louisiana courts. We granted their applications for certiorari and we now reverse the trial court’s overruling of those exceptions.

The manufacturer is Strumenti Ottici Su-bacquei, or SOS Torino. SOS sells its meters through distributors. The Delaware distributor (whose main office may be California) is Undersea Industries, Inc., or Scu-bapro. Scubapro is a distributor for SOS in America. It distributed one of the two meters in question to Texas or California where it was sold at retail. That meter was later sold as used to plaintiff in Louisiana. The German distributor is Barakuda Bergann KG. Barakuda claims to have only one “customer” in the United States, P & P Industries of Kentucky. P & P in fact distributed the second meter in question to a retailer in Louisiana who sold it to plaintiff.

La.R.S. 13:3201 provides, in part:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s “(a) transacting any business in this state;
“(b) contracting to supply services or things in this state;
“(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state; “(d) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state ....”

(The other subdivisions relate to immovable property and domestic relations.)

Plaintiff in brief concedes that subd. (d) is not applicable because plaintiff was not injured “in this state.” Subd. (d) does not authorize a Louisiana suit against a nonresident for delictual behavior outside of Louisiana that causes injury outside of Louisiana.

(Although no one suggests its applicability, we note that subd. (c) would allow suit for delictual behavior inside Louisiana that causes injury outside Louisiana. We may also note that subd. (b) is not applicable because this is not an action on a contract to supply.)

Subd. (a) allows suit against a nonresident for injury caused outside of Louisiana, but only if upon a “cause of action arising from” transacting business in this state. That the nonresident transacts frequent and substantial business does not confer jurisdiction upon Louisiana courts under subd. (a), unless the cause of action arises from Louisiana transactions by the nonresident.

SOS, the meters’ manufacturer, may have through its distributors had sufficient contacts with Louisiana to make it subject to jurisdiction under subd. (d) if its act of defectively manufacturing in Italy caused injury inside Louisiana; see Boykin v. Lindenkranar, 252 So.2d 467 (La.App. 4 Cir.1971), writ refused 254 So.2d 618. But SOS did not transact any business in Louisiana in a contractual sense, or by a presence in Louisiana (except insofar as package insert literature suggested returning meters to the factory for repair or calibration), and plaintiff’s cause of action cannot fairly be said to be one “arising from” SOS’s transacting business here within subd. (a).

Similarly Barakuda did not transact any business in Louisiana within subd. (a). Its sale to P & P of Kentucky did not occur in Louisiana, although P & P’s sale to the Louisiana retailer may well have here occurred.

Scubapro did transact business in Louisiana by supplying meters for sale here, but it did not supply for sale here the meter that allegedly injured plaintiff in Belize. In respect to that meter, Scubapro transacted business in Texas (or California) by selling it to a Texas (or California) retailer. In respect to that meter, the Texas (or California) retail purchaser who first purchased it, or a later owner who acquired from him, might have transacted business in Louisiana by selling it to or through the dealer who sold it as a used meter to plaintiff, but that was not a transaction of business in Louisiana by Scubapro. Plaintiffs cause of action is not one “arising from” any transaction of business by Scubapro in Louisiana.

R.S. 13:3201 does not purport to authorize Louisiana courts to exercise jurisdiction over plaintiffs cause of action against any of these three defendants.

Reversed; exceptions to the jurisdiction by SOS Torino, Barakuda and Scubapro maintained.


author: CIACCIO, Judge.

text:
    ST. PAUL FIRE & MARINE INSURANCE COMPANY v. The FRENCH EIGHTH, et al. Sandra Zahn ORECK v. The FRENCH EIGHTH, et al.
    Nos. CA-1384, CA-1952.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    Rehearings Denied Oct. 29, 1984.
    Writs Denied Dec. 14, 1984.
    Kenneth V. Faherty, Hulse, Nelson & Wanek, Joseph E. Friend, New Orleans, for appellants.
    David M. Packard, Metairie, J. Warren Gardner, Jr., Christovich & Kearney, New Orleans, for appellees.
    Before BYRNES and CIACCIO, JJ„ and SAMUEL, J. Ad Hoc.
   CIACCIO, Judge.

Plaintiffs in these consolidated cases have appealed from a trial court judgment dismissing their respective suits. We affirm.

Plaintiff, Sandra Zahn Oreck, leased from defendant partnership, The French Eighth, certain premises which she operated as an art gallery. On August 5, 1981, the roof of these premises failed under the burden of a heavy rainstorm. Mr. Oreck alleged that as a result of the leaking roof works of art and furnishings of the gallery were damaged and/or destroyed.

Plaintiff, St. Paul Fire and Marine Insurance Company, insured Ms. Oreck’s gallery against some of the loss. St. Paul paid Ms. Oreck under the policy for a part of her alleged damages, and received subrogation rights to that portion of Ms. Oreck’s claim. In separate actions, consolidated for trial, Ms. Oreck and St. Paul sued The French Eighth and its managing partner to recover for the alleged damages. Defendants filed a third-party demand against the contractor who had previously repaired the roof.

■ Plaintiffs argued for defendants’ liability under La.C.C. Art. 2695 which provides:

Art. 2695. Lessor’s liability for damages from vices and defects
The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent it being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.

Defendants argue their non-liability under La.R.S. 9:3221 and a passage in the lease which provides:

“Lessee assumes responsibility for the condition of the premises and lessor will not be responsible for damage caused by leaks in the roof ... or by any vices or defects of the leased property, or the consequences thereof, except in the case of positive neglect or failure to take action toward the remedying of such defects within reasonable time after having received written notice from lessee of such defects and the damage caused thereby. Should lessee fail to promptly so notify lessor, in writing of any such defects, lessee will become responsible for any damage resulting to lessor or other parties.”

La.R.S. 9:3221 provides:

The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

The Louisiana Supreme Court considered a similar situation in Tassin v. Slidell Mini-Storage, Inc., 396 So.2d 1261 (La.1981). The lease in that case contained a similar clause whereby the lessors sought to shift liability- for water damage to the lessees. The court, after quoting La.C.C. Art. 2695, stated:

Nonetheless, the owner can shift responsibility for condition of the premises including liability for injury caused by any defect therein to the lessee pursuant to La.R.S. 9:3221.
However, the codal articles and statutes defining the rights and obligations of lessors and lessees are not prohibitory laws which are unalterable by contractual agreement, but are simply intended to regulate the relationship between lessor and lessee when there is no contractual stipulation imposed in the lease. General Leasing Co. v. Leda Towing Co., Inc., 286 So.2d 802 (La.App. 4th Cir.1973), cert. denied, 290 So.2d 334 (La.1974). All things that are not forbidden by law may become the subject of or the motive for contracts and, when legally entered into, the contracts have the effect of law between the parties who have made them. La.Civ.Code arts. 1764, 1901. Our jurisprudence is that the usual warranties and obligations imposed under the codal articles and statutes dealing with lease may be waived or otherwise provided for by contractual agreement of the parties as long as such waiver or renunciation does not affect the rights of others and is not contrary to the public good. Louisiana National Leasing Co. v. A.D.F. Service, Inc., 377 So.2d 92 (La.1979); Klein v. Young, 163 La. 59, 111 So. 495 (1926); General Leasing Co. v. Leda Towing Co., Inc., supra. We must therefore determine if the warehouse agreements in the instant case containing the exculpating clauses effectively relieved owners/lessors of liability to plaintiffs imposed under Louisiana lease law for damages to plaintiffs, goods stored on the leased premises.

After considering the particular facts which gave rise to the plaintiffs’ damages the court determined:

that the clause in each lease agreement clearly and unambiguously transferred liability of the owners/lessors for loss caused by water to property stored on the premises to the lessees including water loss caused by a vice or defect in the premises. The lessees assumed this responsibility by freely entering into the warehouse agreements, thereby dispensing with the implied warranty in their favor established by La.Civ.Code art. 2695.

We, too, consider that the clause in the lease in this case clearly and unambiguously transferred liability of the lessors to the lessee “for damage caused by leaks in the roof ... or by any vices or defects of the leased property or the consequences thereof, except in the case of positive neglect or failure to take action toward the remedying of such defects within reasonable time after having received written notice from lessee of such defects and the damage caused thereby.”

The trial judge in Tassin v. Slidell Mini-Storage, Inc., supra, found that the lessors knew or should have known of the defects and the damage that might be caused because of the defects. He, therefore, held the lessors liable. The Supreme Court ruled:

Under the circumstances, even though the lessees assumed responsibility for water damage caused by a vice or defect in the premises, La.R.S. 9:3221 did not relieve the owners/lessors of the responsibility imposed on them by La.Civ.Code art. 2695 because they should have known of the defects in the premises. This is the conclusion reached by the trial judge. We are unable to say that it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In this case the trial judge found that “The plaintiff failed to show ‘positive neglect,’ ‘Failure to take action after written notice’ or that the defendants ‘knew or should have known of the defect in the premises’.” We conducted a thorough review of the complete record, and we cannot say that these conclusions by the trial judge are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Tassin v. Slidell Mini-Storage, Inc., supra.

Accordingly, the judgment of the trial court is affirmed. All costs are to be paid by plaintiffs/appellants.

AFFIRMED.


author: CIACCIO, Judge. REDMANN, Chief Judge,

text:
    Joseph S. MAUMUS v. DEPARTMENT OF POLICE, NEW ORLEANS.
    No. CA 1558.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    Rehearing Denied Oct. 29, 1984.

      S.C. Garcia, III, Basile J. Uddo, Mande-ville, for appellant.
    Salvador Anzelmo, City Atty., Harold D. Marchand, Asst. City Atty., New Orleans, for appellee.
    Before REDMANN, CIACCIO and KLEES, JJ.
   CIACCIO, Judge.

Appellant, Police Officer Joseph Mau-mus, is a seven year veteran of the New Orleans Police Department who had earned an outstanding service record.

On September 11, 1982 Joseph Maumus was notified that he was being suspended from the New Orleans Police Department as a result of his conduct which allegedly violated Civil Service Regulations. Rule 2(1)(3), 3(6) and 4(3) of Orleans Parish Civil Service Commission Rules. Following a hearing Maumus was notified by the Orleans Parish Superintendant of Police that he was being suspended for one hundred eleven days (i.e., from September 11, 1982 until December 20, 1982) and effective December 31, 1982, Maumus was being terminated from the New Orleans Police Department. He appealed this action to the Civil Service Commission.

The Civil Service Commission conducted a full evidentiary hearing on March 15 and 25, 1983. The Commission found the Appointing Authority had failed to prove (1) that Maumus violated the law by illegally possessing or distributing cocaine, [Rule 2 Sec. 1] (2) that he had been untruthful in responding to OMI agents regarding the cocaine, [Rule 2 Sec. 3] (3) that he had consumed alcoholic beverages while on duty, [Rule 3 Sec. 6]. The Commission did find that Maumus had not devoted his entire time to duty and for this reason they upheld his removal from employment with the New Orleans Police Department. We reverse the decision of the Civil Service Commission and reinstate Joseph Maumus, with all back pay and benefits, to his former position with the New Orleans Police Department.

We concur in the facts as found by the Commission and for this reason we incorporate its opinion in its entirety.

JOSEPH S. MAUMUS VS. DEPARTMENT OF POLICE

CIVIL SERVICE COMMISSION

CITY OF NEW ORLEANS

NO. 1998

Police Officer Joseph Maumus was terminated from the New Orleans Police Department on December 31, 1982 for allegedly committing various infractions of disciplinary rules at the Fairmont Hotel on the evening of September 10, 1982. He has appealed this action to the Commission. The matter was assigned by the Civil Service Commission to a Hearing Examiner pursuant to Article X, Section 12 of the Constitution of the State of Louisiana, 1974. The hearing was held on March 15 and March 25, 1983. The testimony presented at the hearing was transcribed by a court reporter. A copy of the transcript and all documentary evidence have been reviewed by the three undersigned members of the Civil Service Commission.

In the apt words of counsel for the Appointing Authority, the “issue before the Commission ... is ... whether or not there is legal cause for the disciplinary action taken and if so, did the penalty fit the alleged violations of the Disciplinary Rules.” The Appointing Authority alleged that Officer Maumus on the night in question unlawfully possessed a controlled substance, cocaine; drank alcoholic beverage while on duty; failed to devote himself entirely to his duty; and gave an untruthful statement to investigators of the Office of Municipal Investigation (OMI).

The record in this case is unusually voluminous. To complicate matters, much of the testimony given by the complainant in the OMI investigation appears to have been less than candid. Also, the procedural morass into which this OMI surveillance leads us is replete with pitfalls. However, alleged possession with intent to distribute cocaine is an extremely serious offense which requires our careful scrutiny. Factually this much seems clear. On the evening of September 10, 1982, agents of the Office of Municipal Investigation secured Room 632 and adjoining rooms at the Fairmont Hotel. To furnish Room 632, the OMI provided champagne, two champagne glasses, and one tenant, a Ms. Julie Burden. Ms. Burden called Officer Maumus and solicited him to come visit “her” room at the Fairmont. Officer Maumus responded to the call.

One of the central factual issues in this case is the motivation for Maumus’ visit to Room 632. According to the OMI, Mau-mus went with an intent to respond to Burden’s telephoned request that Maumus bring her some “baby powder”, a term which the OMI agents interpreted to be a euphemism which had been arranged between Maumus and his friends in previous encounters with the drug cocaine. According to Maumus, he went to receive information about his stolen .38 caliber service revolver, which had been lost in Burden’s presence some weeks before. It is undisputed that when Ms. Burden called Officer Maumus and asked him to come to Room 632, it was on the pretext that she could inform him as to the whereabouts of his service revolver.

When Officer Maumus arrived at the room, he was greeted by Ms. Burden attired in a skimpy, translucent negligee; she was by her own description very drunk, having consumed before Maumus’ arrival a bottle of the OMI’s champagne. Officer Maumus entered the room and briefly conversed with Ms. Burden. Not long after entering the room, however, Officer Maumus was paged on his beeper and left at least in part for the purpose of seeing about some repaired tack for his horse. (At the time of the events herein described, Officer Mau-mus was assigned to the Mounted Patrol Division of the Police Department.)

Maumus later returned to the room and apparently shortly thereafter disrobed, leaving his service revolver, beeper, and identification wallet somewhere across the room from the bed. Almost immediately, Maumus’ beeper went off for a second time.

The OMI agents occupying the adjoining rooms had understood their cue for entering Room 632 to be a beeper signal sounded by OMI Deputy Director Raymond Reed.

There is evidence that the intent of the OMI was to hold back until cocaine was distributed, but Deputy Director Reed denies that objective. In any event, when Maumus’ pager sounded, the OMI agents burst into the room with guns drawn. They witnessed Officer Maumus lying “buck naked” in bed with Ms. Burden. There is no dispute that at this precise moment Officer Maumus was in fact on duty. On Deputy Director Reed’s instructions, Maumus was “arrested”, handcuffed, denied counsel, and interrogated by OMI special agents before he was permitted to don his uniform.

THE ENTRAPMENT DEFENSE

Counsel for Appellant in his post-hearing brief directs the Commission’s attention to the “set-up” engineered by OMI which “entrapped” his client, a seduction which appellant believes would have ensnared any red-blooded American boy.

It is beyond dispute that Burden lured Maumus to her room with a promise to provide information relating to a legitimate police matter. It is also not disputed that the room to which Maumus was invited had been obtained by OMI and provided with a nearly nude, intoxicated, amorous and apparently very attractive woman, a bottle of champagne, two glasses, and a bed. It is claimed by OMI but denied by Maumus that the woman suggested to Maumus that cocaine would ensure her mood. There can be no doubt that this scenario goes beyond mere surveillance and enters the realm of inducement or enticement.

We recognize that some of the more egregious offenses by police officers are also the offenses usually committed behind closed doors, making detection of offending officers very difficult. Consequently, we acknowledge that police investigative agencies must be permitted to use reasonable investigative methods to satisfy the public policy in favor of detection and dismissal of offending police officers. Reasonable methods might in appropriate cases include enticement, solicitation, or even inducement to the commission of an offense. The question posed by the method utilized by the OMI in this case is, “How far shall they be permitted to go in the enticement of police officers to commit offenses?” At what point does the effect cease to be the prevention of offenses and become the instigation of the same offenses?

We are mindful that a greater latitude must be allowed under the Civil Service rules to an administrative investigation of police officers than would be allowed under criminal law to a police investigation of private citizens. Yet few would argue but that a line must be drawn. We deem it appropriate in this case to examine the parameters of appropriate enticement in the investigation of police offenses.

We think it logical to conclude that where an offense is committed which the officer would not have done except for the persuasion of the investigators, the investigators and not the offender bear the responsibility for the commission of the offense. It follows, then, that in order to justify the use of instigation as an investigative tool in a particular case, the investigators must have reasonable grounds to believe that an offense of the sort instigated is frequently committed or is about to be committed by the police officer induced.

Thus, solicitation of Officer Maumus to obtain and distribute illicit drugs, and to engage in on-duty sex and alcohol consumption may be shown to have been improper inducement under the circumstances of this case only if it is established by the appellant that OMI had no reasonable cause to believe that Officer Maumus customarily or currently engaged in such offenses. We will examine each distinct offense to determine whether the absence of probably cause for its inducement is shown in the record and to determine whether the offense was proved.

Before we begin that examination, however, it is appropriate to note the factors limiting our examination of the extent to which probable cause supported inducement of particular offenses in this case. The record does not contain the statement given by Debra Bryant to OMI Special Agent Robert Mehrtens on September 3, 1982, which initiated the OMI investigation and would be evidence of the particular offenses for which probable cause existed to investigate Officer Maumus. The statement was excluded on the motion of counsel for appellant. Counsel for the city made no claim as to the relevance of the document, was content to withdraw the document, and made no proffer. Apparently both parties preferred to have the Commission review probable cause on the basis of testimony in the record.

The record shows conclusively that Ms. Bryant when she filed her complaint did not intend to complain concerning drug abuse, on-duty sex, or on-duty alcohol consumption by Joe Maumus. Her complaints to OMI concerned threats of arrest for theft of his handgun which Maumus had directed toward Bryant’s girlfriend, Julie Burden; and a related telephone call to Bryant which included a threat of harm to Bryant, which she believed had been placed by Maumus. She testified there were no other reasons she went to OMI.

Neither false threats of arrest for theft nor harassment of any sort formed any part of the gravamen for Officer Maumus’ discharge. In fact, it appears likely that Ms. Burden did in fact take the gun. Ms. Bryant described Burden as a kleptomaniac and acknowledged that Burden had attempted to sell a gun resembling Maumus’ gun to a Huntsville acquaintance of the two women. Special Agent Mehrtens recovered from Ms. Burden a watch she had taken from Maumus during the Fairmont Hotel set-up. In relation to the telephone call, Ms. Bryant offered that she did not know whether or not the telephone caller had been Maumus or one of several other men who might have benefited by alienating Bryant from Maumus, among whom were police officers who had described Maumus to Bryant as “Minyard’s Monster” because of his usual assignment to assist Coroner Frank Minyard’s office.

However, an administrative investigation of a police officer for departmental offenses, particularly those of such a serious nature as possession, use or distribution of cocaine, should not be limited to only those allegations intended to be raised by the complainant. Proper investigation into the background of the complaint may reasonably cause investigators to suspect offenses quite unrelated to the original cause for the complaint. There are some indications in the record that the Maumus investigation was such an investigation.

Four separate counts of violations of Departmental Rules by Officer Maumus were relied upon by the Department of Police to support the discharge of Maumus. Each count will be separately examined as to reasonable cause for inducement, considered as to balance of proof of violation, and where appropriate, weighed as to gravity:

(1) Violation of Departmental Rule 2., paragraph 1., relative to Adherence to Law, in that he had approximately .75 grams of cocaine in his possession on the evening of September 10, 1982.

(2) Violation of Departmental Rule 2., paragraph 3., relative to untruthfulness, in that he had given an untruthful statement to OMI agents regarding how the cocaine came into his possession.

(3) Violation of Departmental Rule 3., paragraph 6., relative to Use of Alcohol/On Duty, in that he had “consumed several glasses of champagne” while in the room that evening and while on duty.

(4) Violation of Departmental Rule 4., paragraph 3., relative to Devoting Entire Time to Duty, in that Maumus while on duty had been found “laying in bed, naked, in Room 632 of the Fairmont Hotel with a female, Julie Burden.”

POSSESSION OF COCAINE

The record does disclose probable cause for the cocaine enticement. It appears from the testimony of both Ms. Bryant and Special Agent Mahrtens that Bryant had admitted to Mehrtens that she, Burden and Maumus had been together on occasions when cocaine was used. Burden contended her statement had been given when she was intoxicated; there is ample background, motive and inconsistent testimony in the record to suggest that both women may have perjured themselves on specific points; and it may have been the case that Maumus had only been in the vicinity when cocaine was used by others. However that may be, the record does disclose a reasonable basis for a belief that Maumus was customarily participating in cocaine use.

However, the set-up did not produce evidence to substantiate that belief. It is uncontroverted that Officer Maumus’ wallet enfolded a clear packet, containing a considerable amount (.75 grams) of cocaine. But there is no contention that he either used, distributed or offered to distribute the cocaine which remained in his identification wallet until removed by OMI special agents at the time of his “arrest”.

It is plain that notwithstanding the belief of the OMI special agents that Maumus had left the hotel room to obtain cocaine for his liason with Julie Burden, Maumus when he returned did not even notify Julie Burden of the presence of the cocaine in his I.D. folder, nor did he remove it from his wallet before embracing Ms. Burden and joining her in bed. That he did not produce the cocaine or even mention it before tumbling into bed with Ms. Burden seems to belie any suggestion that he had intended to share it with her during their sexual encounter, or that he had brought it as a payment for Ms. Burden’s favors. Under these circumstances, the only possible justification for the controlled substance count would be if Maumus’ possession were per se unlawful.

Maumus testified that about an hour earlier than his visit to Julie Burden, he had become separated from his partner while patrolling the five to seven hundred blocks of Bourbon Street. Maumus had noticed four young men huddled around a car. He calmly approached the group astride his horse. The approach of Maumus, he testified, apparently spooked the young men and they fled. As they fled, he noticed an object drop to the pavement. Rather than pursue the group, he rode to the spot to examine the object left behind. At the location where the young men had been assembled, he found a brown or amber vial with a black plastic screw-on cap.

The vial had apparently been thrown to the ground out of fear of apprehension and the plastic cap had broken, spilling a white powdery substance on the ground. As it turned out, without dispute, this substance was cocaine. Officer Maumus dismounted and gathered the spilled cocaine into a cellophane wrapper. He placed the cellophane wrapper in his identification wallet; he tucked the broken, empty vial into his pants. Officer Maumus resumed his patrol; he did not convey the confiscated matter to the appropriate authorities of the New Orleans Police Department; he did not call his ranking officer to report the confiscation of contraband.

Officer Maumus thus contends, without contradiction in the record, that the first time he responded to Ms. Burden’s call beckoning him to the Fairmont Hotel, he had the recently confiscated cocaine in his possession. Whether Officer Maumus intended to convey this cocaine to Ms. Burden is the subject matter of conflicting testimony. OMI agents testified, since they were eavesdropping from the adjoining rooms, that Ms. Burden repeatedly asked the appellant if he had brought the “baby powder” for her. No witness claimed that the term cocaine was ever used by either Burden or Maumus. Mau-mus claims that he thought she was asking for a bath powder, such as Johnson & Johnson baby powder. He testified that he had never heard the term “baby powder” used as a euphemism for cocaine. Moreover, no expert or authority consulted during the hearing suggested that such a euphemism was in vogue. Debra Bryant had heard Burden use the term baby powder during their 8 year acquaintance, but she had never made the connection of the term “baby powder” with cocaine. Julie Burden stated several times in her deposition that she had never previously used the euphemism in the presence of Maumus.

The term simply was never established as a euphemism in general use or as a code developed between Burden and Maumus. Moreover, the context of Burden’s questions and Maumus responses concerning Burden’s desire for “baby powder” are consistent with Maumus’ explanation of his understanding of the term. The Appointing Authority had the burden of proving that Officer Maumus intended to distribute the cocaine to Ms. Burden or to use it himself. This the Appointing Authority failed to do. It is entirely possible that Officer Maumus intended to distribute to Ms. Burden or use the cocaine in his possession; he could only have ruled out that possibility by delivering or reporting the contraband to headquarters. It is also possible that had the OMI delayed its entry into Room 632, Officer Maumus would have been caught in the act of distribution or use. However, the OMI entered prematurely, so that such possibilities must be relegated to speculation. Speculation is no basis for disciplinary action.

UNTRUTHFULNESS

If Officer Maumus gave an untruthful statement to OMI agents regarding how the packet of cocaine came into his possession, he was not enticed or induced to do so. However, other perhaps even more troublesome issues are raised by the manner in which Officer Maumus was detained and questioned by OMI agents under the supervision of OMI Deputy Director Raymond Reed.

Four OMI agents burst into a private room of the Fairmont without warning. Reed detained and searched Maumus at gunpoint. Maumus’ trousers were lifted so that their contents fell to the floor, and the contents were seized and examined. Mau-mus’ identification wallet was searched and a packet of cocaine was removed and confiscated. He was detained for apparently over 8 hours, at least 4 hours in Room 632 and adjacent rooms of the Fairmont Hotel, before he was booked. He was denied counsel and interrogated by OMI agents, all the while he was required to remain nude. Whether such potential invasions of Officer Maumus’ rights of freedom, privacy, and against self-incrimination can be conducted by OMI agents not acting under police authority is a question which must be answered in another forum.

Neither must we answer the difficult question of whether untruthful answers by a police officer to OMI agents under such circumstances, and unless directed to respond to OMI by a superior officer, would constitute a violation of Rule 2., paragraph 3. of the Police Department Rules and Regulations.

Maumus’ version of the cocaine source was uncontradicted on the record.

Moreover, his version is supported, not contradicted, by the physical evidence shaken from Maumus’ pocket at the time of his detention. If Maumus story of the aborted arrest were not true, what other explanation is available to explain why he had in his pocket an empty vial, with a jagged tip and a broken cap which made it impossible to secure the container? Why would he have kept such an item if he did not intend to turn it in as contraband? There simply was no evidence adduced at the hearing to convince us that Officer Maumus’ version of how the cocaine came to be in his possession was untruthful.

USE OF ALCOHOL/ON DUTY

The OMI enticed Maumus to drink on duty by giving Julie Burden several bottles of champagne, asking her to invite Maumus to a hotel room for a legitimate police purpose, and then standing by while she offered him the champagne. We find no evidence in the record to show that the OMI had a reasonable basis for believing that Maumus customarily or currently drank alcoholic beverages while on duty. Consequently, we must conclude that the OMI improperly instigated Maumus to commit an offense which he might not have committed unless submitted to the inducement set up by OMI.

However, we do not find it necessary to determine whether the evidence produced by such improper instigation is fruit of the poisoned vine which must be excluded from consideration in this administrative proceeding before the Civil Service Commission. The evidence that Maumus drank champagne with Julie Burden in Room 632 on September 10 would not be convincing even if it were properly adduced.

Julie Burden, who had herself drunk a full bottle of the OMI’s champagne before Maumus arrived, believed that Officer Maumus may have drunk a half glass of champagne. She also was so drunk that she did not realize that Maumus was naked when he got into bed with her. Indeed, the record makes it abundantly clear that even a sober Julie Burden is a totally unreliable witness. None of the eavesdropping OMI agents were in a position to see Maumus drink champagne. Of course, he denied doing so. Two glasses, with some champagne remaining in each, were found after the interlude was interrupted. None bothered to rule out the possibility that Burden had drunk out of each; after all she had been drinking for some time before Mau-mus arrived. Statements by the OMI eavesdroppers that they “heard him drink a glass of champagne” is not the stuff of a convincing disciplinary case, particularly when strategically placed tape recorders captured no incriminating recordings corroborating what they thought they overheard. The consumption of alcohol count is dismissed.

NEGLECT OF DUTY

There is no doubt but that Officer Maumus was naked in bed with Julie Burden in Room 632 of the Fairmont Hotel while his horse was downstairs tied to a garbage truck in a service alley next to the hotel. It is hard to- imagine how he was serving either the citizens or the City of New Orleans by engaging in a sexual liason with Ms. Burden. Officer Maumus at the hearing never denied neglecting his duties to engage in at least the preliminaries of sexual relations with Ms. Burden, explaining that he was “only human”.

To state that Officer Maumus was enticed to be inattentive to duty would be a gross understatement. Julie Burden approached her tasks the evening of September 10, 1982 with a remarkable passion. But references by Bryant and Burden to on-duty swimming engagements and cocaine parties which included Maumus were ample reason to have given OMI cause to believe that Maumus had succumbed to “human” temptations while on duty on several previous occasions.

Nevertheless, we felt that the seduction in this case was unwisely zealous. Such that had Ms. Burden been successful in sweeping Maumus off his feet and into bed as soon as he entered the door in response to a legitimate police call, although we would not have condoned the offense, we might have mitigated the penalty to a reinstatement without back pay.

But Maumus’ beeper saved him from the heat of the moment. He was called away to care for his horse’s tackle. After he left, he had ample opportunity to recompose himself and regain his professional restraint and discretion. Thus, when he returned to Room 632, he did so with the full intent to engage in sex with Julie Burden, all pretense of their discussing his lost weapon having been stripped away by their first meeting that evening. He failed even to delay the daliance until he was relieved from duty.

There is always world enough and time enough for this sort of activity, but not at the expense of the citizenry of New Orleans. Notwithstanding the credible testimony of fellow police officers and Coroner Frank Minyard praising the police work of Joseph Maumus, we simply cannot mitigate the discharge of an on-duty policeman who strips and climbs into bed with a woman in a hotel room while he. is expected to be protecting and serving the public.

For the foregoing reasons, the removal of Officer Joseph Maumus from employment with the New Orleans Police Department is sustained.

The appellant contends that the Commission erred in concluding that Officer Mau-mus had not been entrapped into neglecting his duties. We agree. The Commission found that “the seduction in this case was unwisely zealous”, and, had Maumus succumbed to the initial seduction, the Commission might have mitigated the penalty to a reinstatement without back pay. Thus, the Commission found that Maumus had been entrapped in his initial encounter with Ms. Burden but concluded that the entrapment defense was no longer valid after Maumus left the hotel room and subsequently returned. In so holding, we find that the Commission erred, as a matter of law.

We agree with the Civil Service Commission that the defense of entrapment may be raised in a Civil Service disciplinary proceeding. The considerations, in a defense of entrapment, are set forth in State v. Bernard, 441 So.2d 817 (La.App., 3rd Cir., 1963) as follows:

Under the generally accepted view an entrapment is perpetrated when a law enforcement official or a person acting in cooperation with such an official for the purpose of obtaining evidence of the commission of an offense, solicits, encourages, or otherwise induces another person to engage in conduct constituting such offense when he is not then otherwise disposed to do so. State v. Batiste, 363 So.2d 639 (La.,1978). When entrapment is at issue, the focal point of the inquiry is on the predisposition of the defendant to commit the crime at issue as well as on the conduct of the police. State v. Batiste, supra. For entrapment to exist, a defendant must be induced in some way to engage in criminal conduct which he is not otherwise disposed to engage in; an entrapment defense will not lie if the officers or agents have merely furnished a defendant, who is predisposed to commit the crime, the opportunities to do so. State v. Moody, 393 So.2d 1212 (La.,1981).

In the instant case the defendant had a legitimate purpose in visiting Julie Burden on the day in question. That is, he was attempting to secure information concerning his missing service revolver. Due to his prior association with Debra Bryant, a girlfriend of Ms. Burden, Maumus had reason to believe that Ms. Burden knew the whereabouts of his revolver. Ms. Burden admitted that she had professed knowledge of the whereabouts of the gun when she contacted Maumus.

Maumus testified in a statement given to the Office of Municipal Investigation (OMI) and at the hearing before the Commission that Burden had told him she had information about his revolver and it was in an attempt to discuss this matter that he visited Ms. Burden. On the first visit to question her, Ms. Burden began to seduce Mau-mus before he had an opportunity to inquire about his revolver. He was called from the room when he was notified that his horse had broken its tackle. Ms. Burden did not tell Maumus he need not return if he left her to attend to his horse. She also did not tell him she did not have the information he sought. The subject of the revolver had not yet been discussed.

Maumus secured his horse and, while awaiting the delivery of the tackle, he again returned to Burden’s room to pursue the investigation concerning the whereabouts of his revolver. In this regard Mau-mus testified as follows:

Q. Okay. What did you do at that point Officer Maumus?
A. I went back up to Room 632.
Q. Why did you go back up to Room 632?
A. To see if I could find out where my gun was.
Q. When you got back to Room 632, Officer Maumus, did you discuss baby powder at all, or anything else?
A. No, sir.
Q. What was discussed when you got back to Room 632?
A. My weapon.
Q. Your weapon was discussed?
A. Yes, sir.
Q. Did you retrieve your weapon from Mrs. Burden?
A. No, sir, I did not.
Q. What exactly happened while you were discussing the weapon?
A. I was sitting in a chair. She began rubbing my leg — and rubbing my penis — and putting her tongue into my ear — she sexually aroused me.

Under these facts we conclude that Mau-mus did not possess a predisposition to commit the employment violation of neglect of duty. Until the point where Maumus did succumb to Ms. Burden’s sexual advances he was carrying out a legitimate police function. That is, he was investigating the possible theft of his service revolver. Under normal circumstances, however, when he disrobed and proceeded to enter Ms. Burden’s bed he would have been in dereliction of his duties as a police officer. However, in this case we find that Officer Maumus’ actions resulted from entrapment, that is, they were a direct concomitant of the inducement set up by the Office of Municipal Investigation, through the use of their de facto agent, Julie Burden.

In the instant case the Office of Municipal Investigation did much more than provide a willing participant with an opportunity to commit an offense to which he was predisposed. It did solicit, encourage and otherwise induce Officer Maumus to engage in conduct violative of his employment responsibilities.

The record clearly establishes that the Office of Municipal Investigation procured the services of Julie Burden with full knowledge that she was in a position to possess information concerning an issue of interest to Officer Maumus, namely, information concerning his missing service revolver. They encouraged her to contact Officer Maumus on the pretense of providing him with this information. They procured a room for Ms. Burden at the Fair-mont Hotel and adjoining rooms for themselves. They tapped the telephone and placed a tape recorder under the bed. They picked up Ms. Burden and delivered her to the hotel room. The Office of Municipal Investigation provided the champagne and two champagne glasses. They presented Ms. Burden, dressed in a negligee. They encouraged their de facto agent, Julie Burden, to lure Officer Mau-mus into her bedroom with promises of information regarding his stolen revolver. Upon his arrival, she was allowed to proceed to entice him and to use her sexual persuasion in order to encourage him and thereby induce him to neglect his duties as a police officer. These actions on the part of the Office of Municipal Investigation constitute entrapment. This governmental agency orchestrated the entire scenario which resulted in Officer Maumus’ succumbing to a sexual enticement which was in violation of his police duties.

The entrapment actions of the Office of Municipal Investigation did not cease when Officer Maumus left the hotel room for the first time. Rather, they continued, for Ms. Burden never told Maumus not to return if he left her to attend his horse. More importantly, she had not yet given him information concerning the weapon, nor had she informed him that she did not possess the information that he sought. The entrapment continued and for this reason we find that the Commission erred when it found that, by his subsequent return to the room and submission to Ms. Burden’s advances, that Officer Mau-mus’ neglect of duty was not the result of entrapment.

Moreover, assuming for the sake of argument that Officer Maumus was predisposed to commit neglect of duty when he visited Ms. Burden’s room for the second time, we find that this factor is immaterial in view of the governmental misconduct on the part of the Office of Municipal Investigation. Specifically, the conduct of this governmental agency was so pervasive and over reaching as to preclude disciplinary action against this police officer.

That is, state and local governments are regulated in their conduct towards individuals by the Fourteenth Amendment of the United States Constitution, which provides, in pertinent part:

... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The concept of “due process” is rooted in the canons of decency and fairness which express the notions of justice of English speaking people. U.S.C.A.Cons. Amend. 14. See: Rochin v. People of Calif., 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). The courts, through the exercise of their judicial power are responsible for insuring that fundamental fairness is preserved. See: United States v. Graves, 556 F.2d 1319 (5th Cir., 1977).

In certain prescribed instances the Government is estopped from bringing a prosecution because of their own misconduct. See: Rochin v. People of California, supra. Hampton v. U.S., 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); U.S. v. Graves, supra. The involvement of the government agents in a crime will bar prosecution if the methods used violate fundamental fairness and due process so as to be characterized as too over reaching. See: Rochin v. People of California, supra; Hampton v. U.S., supra. In determining the propriety of the government’s conduct the courts must engage in a balancing act wherein they weigh the objectives of keeping the trial process as an efficient means of determining truth against the need for keeping law enforcement practices at a level consistent with standards of society. See: Tate v. U.S., 283 F.2d 377 (D.C.Cir.,1960). That is, the courts must balance the societal interest of punishing wrongdoers against the rights of citizens to be free from government-induced criminality. See: U.S. v. Archer, 486 F.2d 670 (2nd Cir.,1973).

There is a distinction between “governmental misconduct” and “entrapment” and although the two concepts are similar there exists a major distinguishing characteristic. The defense of entrapment, like the defense of governmental misconduct, is a court created limitation on government activities. See: Ainsworth v. Reed, 542 F.2d 243 (5th Cir.) cert. den. 430 U.S. 917, 97 S.Ct. 1332, 51 L.Ed.2d 596 (1976). Both defenses arise from a strong policy consideration which necessitates fairness. See: U.S. v. Pinciotti, 339 F.2d 102 (6th Cir., 1964), cert. den., 382 U.S. 819, 86 S.Ct. 44, 15 L.Ed.2d 65 reh. den. 382 U.S. 933, 86 S.Ct. 309, 15 L.Ed.2d 345 (1964).

The point of divergence with regard to the two defenses is in the proof required. In order to prevail on the issue of entrapment, one must prove: (1) inducement by the government and (2) lack of a predisposition by the defendant to commit the particular acts. State v. Bernard, supra. See: Lopez v. U.S., 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). The lack of predisposition by the defendant to commit the particular acts charged is of no moment when the issue of governmental misconduct is considered. Rochin v. People of California, supra. Rather, the thrust of the defense of governmental misconduct is upon the activities of the government agents. See: Rochin v. People of California, supra. U.S. v. Smith, 538 F.2d 1359 (9th Cir., 1976). The defendant will prevail on the issue of governmental misconduct if it is shown that the conduct of the governmental agents is so intrusive and over-reaching as to be violative of the principles of fairness and due process. Rochin v. People of California, supra; Hampton v. U.S., supra.

In the instant ease the Office of Municipal Investigation did in fact exceed the bounds of legal propriety. Their tactics of inducement were so pervasive as to constitute governmental misconduct. Fundamental fairness does not permit us to contenance such egregious conduct within the framework of criminal prosecutions, nor shall we do so within the framework of municipal disciplinary actions. It would be a denial of due process to,allow an individual to be disciplined (and thereby, to forfeit his livelihood) as a result of such govern-mentally created violations of employment regulations.

Policemen are guaranteed the same basic constitutional rights as are private citizens and they do not forfeit these rights by taking their oath of office, donning their uniform or assuming the hazardous, though sometimes thankless, duties of their profession.

Accordingly, for the reasons assigned, the ruling of the Civil Service Commission is hereby reversed and Officer Joseph Mau-mus is reinstated to his prior position with the New Orleans Police Department with all back pay and benefits.

REVERSED.

REDMANN, C.J., dissents with reasons.

REDMANN, Chief Judge,

dissenting.

“To state that Officer Maumus was enticed to be inattentive to duty would be a gross understatement. Julie Burden approached her tasks the evening of September 10, 1982 with a remarkable passion. But references by [her friend Debra] Bryant and Burden to on-duty swimming engagements and cocaine parties which included Maumus were ample reason to have given OMI cause to believe that Maumus had succumbed to ‘human’ temptations while on duty on several previous occasions.
“Nevertheless, we felt that the seduction in this case was unwisely zealous. Such that had Ms. Burden been successful in sweeping Maumus off his feet and into bed as soon as he entered the door in response to a legitimate police call, although we would not have condoned the offense, we might have mitigated the penalty to a reinstatement without back pay.”

But, the civil service commission reasoned, that was not the case before it. After being called from Julie Burden’s hotel room by beeper on police business, and after being away for an hour to an hour and a half — “ample opportunity,” in the commission’s words, “to recompose himself and regain his professional restraint and direction” — Officer Maumus returned to her hotel room while still on duty, “with the full intent to engage in sex with Julie Burden, all pretense of their discussing his lost weapon having been stripped away

A reviewing court must affirm a civil service commission’s factual findings unless clearly wrong, and affirm the commission’s conclusions on the existence of legal cause and its commensurateness with the penalty imposed, unless “arbitrary, capricious, or characterized by abuse of discretion,” Walters v. Department of Police, 454 So.2d 106, 113 (La.1984). One cannot so describe the commission’s action in this case.

The commission’s action should be affirmed.

      . OMI agents did not at the hearing claim arrest authority. The City ordinance which created the OMI expressly denied that agency the power of arrest. New Orleans Ordinances, art. xi, Sec. 2-74(b).

      . OMI agents took care at the hearing to distance themselves from Ms. Burden’s enticements, claiming they had asked her only to arrange a meeting to discuss the stolen weapon, did not suggest that she request cocaine, and were surprised when she changed into a negligee. Under ordinary circumstances when the persuasion under which an offender acts is provided by a private person, not an agent of the investigating agency, the offender can not claim impermissible entrapment. Here, however, even if we do not credit Burden’s testimony that she was asked by OMI to see if she could get Maumus to bring her drugs, Reed and other agents condoned and assisted her seduction to a degree which made her their de facto agent to the extent that she enticed Maumus.

      . At the hearing there was credible testimony that police officers routinely take as much as two or three days to turn in confiscated items. The circumstances of this case demonstrate just how unwise a practice that is, but it seems to be the way things are done. Even the OMI agent who took possession of the cocaine delayed turning it in for several hours. Moreover, Mau-mus indicated in his testimony that since he made no arrests he did not feel that the cocaine was of any evidentiary value such as to warrant expedited delivery to headquarters or notification of his ranking officer.

      . One might argue the contrary in respect to the commission's substitution of what may be naivete for the police department's expertise (recognized in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)) in evaluating the explanation Maumus gave for having cocaine in his possession — an action the commission apparently took without looking at the evidence that the police department official saw. One might suppose, for example, that "a white powdery substance [spilled] on the ground” or the street will have noticeable dirt in it, and the absence of dirt would tend to support an inference that this cocaine had not been spilled on the ground. One might deem .75 grams a curiously precise quantity to have been scraped up off the ground. One might respond, to the commission’s inquiry "what other explanation is available to explain why he had in his pocket an empty vial, with a jagged tip and a broken cap,” that that material would afford to a guilty police officer a handy explanation of what he was doing with cocaine if he got caught. (Unless one assume innocence, the possibility of guilt makes that a possible explanation.) One might even deem pap (if not colostrum) that a grown man in Maumus’s circumstances believed that Julie Burden wanted real baby powder when she asked him to bring baby powder (what a coincidence that he brought cocaine he seized on duty!). One need not, however, "reverse” the commission on this ground because the commission did uphold the police chief's firing Mau-mus on other grounds, and Walters requires affirmation of the commission’s action on those grounds.


author: CIACCIO, Judge. PER CURIAM.

text:
    Sophia WASHINGTON v. Herbert SUMRALL, Administrator of the Louisiana Department of Employment Security, and Evans Cooperage, Inc.
    No. CA 1714.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 31, 1984.
    Rehearing Denied Oct. 29, 1984.

      Clarence Guillory, Certified Student Practitioner and David Girard, New Orleans, for appellant.
    Stephen D. Ridley, New Orleans, for ap-pellee.
    James A. McGraw, Eddie G. Crawford, Denise A. Nagel, Baton Rouge, for defendant-appellee.
    Before BYRNES, CIACCIO and SAMUEL, JJ.
   CIACCIO, Judge.

Plaintiff-appellant, Sophia Washington, filed suit for judicial review of an administrative determination that she is not entitled to unemployment compensation. La. R.S. 23:1634. The Louisiana Department of Employment Security denied unemployment compensation on the ground that Ms. Washington had been discharged for misconduct connected with her employment. La.R.S. 23:1601(2). The appeals referee upheld the disqualification. The Board of Review and the trial court affirmed. For the reasons that follow we also affirm.

Appellee, Evans Cooperage, Inc., employed Ms. Washington as a production worker on September 15, 1979, for a three month probationary period. Ms. Washington completed and signed a pre-employment questionnaire on which she expressed her affirmative understanding that she would be required to work overtime, late and on weekends, under conditions “hot in summer, cold in winter, and dirty all the time”, “willing and able to stock and un-stock 55 gallon drums, three high”, and that she would accept assignment anywhere, anytime regardless of the particular position for which she was hired. Before she was hired, Ms. Washington demonstrated her ability to perform the most strenuous task of a production worker, i.e., stacking 50 to 65 pound drums three high.

On December 12, 1979, near the end of the probationary period, Evans Cooperage, Inc. discharged Ms. Washington for “refusal to do assigned work — put forth no effort.” The appeals referee made the following findings of fact concerning Ms. Washington’s discharge.

During this probationary period, suggestions on improvements were made to the claimant, however, she would not follow through and continued her job performance in a manner that was considered by the employer to be unsatisfactory. When assigned to perform certain tasks, the claimant would allow other employees to perform these tasks, although instructed not to do so. The claimant’s job assignments were both heavy and dirty; however, the conditions of the job were explained to the claimant before hire and she signed a form ask-nowledging same. The claimant received two written warnings, date November 29, 1979, and December 5, 1979, concerning her job performance. The claimant had also received several verbal warnings. Due to the claimant’s uncoopera-tiveness, she was discharged by the employer.

After reviewing the records in the case the Board of Review denied the appeal and ordered that the decision of the appeals referee be affirmed.

The provisions of La.R.S. 23:1634 confine our judicial review to questions of law. The findings of the Board, as to the facts, if supported by sufficient evidence and in the absence of fraud, are conclusive. Cox v. Lockwood, 373 So.2d 246 (La.App. 4th Cir.1979); Benward v. Gerace, 370 So.2d 660 (La.App. 4th Cir.1979). Our review does not entail the weighing of evidence, drawing of inferences, re-evaluation of evidence or substituting the views of this court for those of the Board of Review as to the correctness of the facts. Dubois v. Louisiana Department of Labor, Office of Employment Security, 427 So.2d 645 (La.App. 5th Cir.1983).

At the hearing held before the appeals referee Ms. Washington represented herself and testified. Evans Cooperage, Inc. was represented by its personnel director and two other witnesses who were foremen/supervisors over Ms. Washington during her employment. We have carefully read and reviewed all of the testimony and all of the documents contained in the record of the proceedings.

Ms. Washington argues that her discharge resulted from her physical inability to stack the drums despite her best efforts. She further complains that she was required to perform this strenuous task more often than any other worker because she was the only woman. Ms. Washington testified that she put forth her best effort, and it is true that at the time she was the only female production worker at this plant.

The other witnesses testified that before she was hired Ms. Washington demonstrated her physical ability to stack the drums by doing so for approximately fifteen minutes. Stacking drums was only one of the jobs required of production workers. The witnesses testified that while Ms. Washington never refused to attempt any assigned tasks, she consistently disregarded instructive warnings that she must put forth more effort toward learning to stack the drums quickly and unerringly, and that she must not permit other workers to stack drums for her because it was necessary that she learn this task. Ms. Washington’s assignment to stacking drums was not a result of her being a woman, but was an integral part of her job and the training therefor. It was necessary that she learn how to perform well all of the various tasks which a production worker might be asked to do, including stacking drums.

After hearing the testimony the appeals referee expressed his opinion that this was not a situation where Ms. Washington had put forth effort to satisfy her employer’s requirements, but through lack of ability or some other hindrance was unable to perform satisfactorily. He found that she met the job requirements of the position, but that she did not take her employer’s suggestions and did not perform the duties required. He concluded that such intentional disregard of her duties and the best interests of her employer amounted to disqualifying misconduct within the meaning of that term in La.R.S. 23:1601(2).

We find that the record contains legally sufficient competent evidence to support the factual conclusions of misconduct and that those conclusions are sufficient to disqualify Ms. Washington from receiving benefits in this case. Accordingly the judgment appealed from is affirmed. All costs are to be borne by appellant.

AFFIRMED.

ON REHEARING

PER CURIAM.

Our original opinion stated that “[a]ll costs are to be borne by appellant.” By application for rehearing, appellant has brought to our attention that La.R.S. 23:1692 prohibits assessment of fees or costs of any kind against a claimant in this type of proceeding unless the court determines that the proceedings for judicial review have been instituted or continued frivolously. We do not find that appellant’s institution or continuation of the proceedings for judicial review were frivolous, and therefore, she will not be assessed any costs. That portion of our original opinion assessing appellant for all costs is vacated.