author: BYRNES, Judge.

text:
    PLANTATION ON THE GREEN, INC. v. Stephen B. GAMBLE, et al.
    No. CA 1182.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 7, 1983.
    Writ Denied Dec. 19, 1983.

      Thomas A. Casey, New Orleans, for plaintiff-appellant.
    Henry W. Kinney, III, Harry McCall, New Orleans, for defendants-appellees.
    Before BYRNES, REDMANN and KLEES, JJ.
   BYRNES, Judge.

This is an appeal from a declaratory judgment. We affirm.

FACTS

In 1982 The Audubon Park Commission solicited bid proposals for a restaurant to be located in the Audubon Park Zoo. After bid proposal packages were distributed to all interested parties, three bids were submitted. Of these three, one was unacceptable for reasons not relevant to this appeal. The remaining two bids were submitted by appellant, Plantation On The Green Incorporated (Plantation), and appellee SBG Audubon Corporation (SBG). When the Commission awarded the lease to SBG, Plantation sought a declaratory judgment based on the following arguments:

1.) SBG did not have corporate existence when its bid was submitted.

2.) SBG’s bid was not the highest bid submitted.

3.) The bidding process itself was void for failure to comply with the provisions of the Public Bid Lease Law (R.S. 41:1211 et seq.)

The trial judge ruled in favor of SBG and Plantation has appealed.

CORPORATE EXISTENCE

Plantation’s first argument is that SBG did not have corporate existence when its bid was submitted. Plantation bases its contention on the facts surrounding SBG’s incorporation.

On November 24, 1982, the articles of incorporation for SBG Corporation were drafted in authentic form. Prior to drafting the articles, the incorporators contacted the Secretary of State’s office to ascertain if the name SBG Corporation was available and if so, to reserve it. They were told that the name was available and the articles were executed in reliance on this information. On November 30, 1982 the incorpora-tors learned that the Secretary of State’s Office had been mistaken and that the name SBG Corporation was already taken. As a result of this information an amendment to the articles of incorporation was executed, changing the name of the corporation to SBG Audubon Corporation. This amendment was delivered to the Secretary of State’s office on December 1, 1982.

Plantation argues that this change was not effective until December 1, 1982 when the amendment was filed and therefore SBG did not have corporate existence on November 24, 1982 when its bid was submitted. Plantation bases its contention on R.S. 12:35(C) which deals with corrections to articles of incorporation or initial reports and provides in pertinent part:

The certificate of correction shall be effective as of the date the original instrument is filed, except as to those persons who are substantially and adversely affected by the correction and as to those persons the corrected certificate shall be effective from the filing date.

Relying on that section Plantation urges that, because they were adversely effected by losing the lease to SBG, the name change should not be retroactive to November 24. We disagree.

La.R.S. 12:23(F) specifically provides:

F. The assumption of a name in violation of this section shall not affect or vitiate the corporate existence, but the court having jurisdiction may, upon application of the state or of any person, unincorporated association or corporation interested or affected, enjoin a corporation from doing business under a name assumed in violation of this section, although its articles may have been filed and recorded and a certificate of incorporation issued.

Thus it appears that resolution of this issue depends not on the effective date of the change in name but on when SBG Audubon’s corporate existence commenced.

R.S. 12:25 controls the date on which corporate existence begins and provides in pertinent part:

B. When all incorporation taxes, fees and charges have been paid as required by law, the Secretary of State shall record the articles or the multiple original thereof, and the initial report, in his office, endorse on each the date and, if requested, the hour of filing thereof with him, and issue a certificate of incorporation which shall show the date and, if endorsed on the articles, the hour of filing of the article with him. The certificate of incorporation shall be conclusive evidence of the fact that the corporation has been duly incorporated.
C. Upon the issuance of the certificate of incorporation, the corporation shall be duly incorporated, and the corporate existence shall begin, as of the time when the articles were filed with the Secretary of State, except that, if the articles were so filed within five days after (exclusive of legal holidays) acknowledgment thereof or execution thereof as an authentic act, the corporation shall be duly incorporated, and the corporate existence shall begin, as of the time of such acknowledgment or execution. (Emphasis added)

In this case it is undisputed that SBG’s articles of incorporation were executed as an authentic act on Thursday, November 24, 1982 and received by the Secretary of State’s office on Monday, November 29, 1982. It is also undisputed that the certificate of the incorporation issued by the Secretary of State gives November 24, 1982 as the day on which corporate existence commenced. The amendment changing the corporation’s name to SBG Audubon Corporation was executed and filed on December 1, 1982. November 25, 1982 was Thanksgiving Day, a legal holiday. The next two days were Saturday and Sunday. Therefore the five (5) day period provided in R.S. 12:25(C) did not begin to run until Monday, November 29, 1982. Both the original articles and the amendment changing the corporate name were filed within those five days.

Because the incorporators of SBG complied with R.S. 12:25(C) corporate existence commenced as of the date the articles of incorporation were executed. The trial judge was correct in finding that SBG Audubon Corporation had corporate existence on November 24, 1982.

THE HIGHEST BID

Plantation next argues that it submitted the highest bid and that under La.R.S. 41:1215 the Commission was required to award it the lease. That statute reads, in pertinent part:

At the date and hour mentioned in the advertisement for the consideration of bids, the bids shall be publicly opened by the lessor at its office. The lessor shall accept only the highest bid submitted to it by a person or persons who meet all the conditions of this Part... The lessor shall have the right to reject all bids.

Plantation’s bid was for 3% of gross revenues or a guaranteed minimum rent of $121,320.00. SBG’s bid was for 5.2% of gross revenue with a minimum rent of $121,000.00. It is readily apparent that the only significant difference between these two bids is the percentage of gross revenues offered. Both sides presented projected annual revenue figures with their proposals to illustrate the rentals which their respective bids would generate. While these projections are speculative to some extent they do provide a basis from which to compare the bids. However, before comparing these potential revenues, factors such as the square footage and seating capacity of each proposed restaurant must also be considered as well as certain intangibles such as the experience and background which each party would bring to the operation of their restaurant.

Plantation’s proposed structure would contain 21,700 square feet with the capacity to seat 200 a la carte diners and 300 diners at private functions. SBG’s proposal was for a 7,000 square foot structure which could seat approximately 200 a la carte diners (124 inside and 76 on a ground floor patio), and 200 special function diners. Thus, while Plantation proposed structure is larger than SBG’s the seating capacity of the two varies by only one hundred special function seats.

Although R.S. 41:1215 requires that the highest bid be accepted, a decision as to which bid was highest in this case depended in part on which proposal the Commission felt would be more successful and therefore generate more revenue for the Park. This determination rested to some degree on an evaluation of the ability of the bidders to establish and run a successful restaurant. From the foregoing it is obvious that a mere mechanical comparison of projected revenues was not the proper method to determine which proposal was higher.

In an affidavit submitted by Stephen Gamble, the sole shareholder of SBG Audubon, a formula was set forth which took into account the variance in seating capacity of the two restaurants. That formula assumed that the greater seating capacity of Plantation’s proposed restaurant would generate ⅛ more revenue than SBG’s. When these figures are applied to SBG’s projection of yearly revenues the rental generated by SBG is higher in every year but the first, when the minimum rental would apply.

Going one step further, Gamble took the projected revenues submitted by Plantation and reduced them by one fourth to compensate for the smaller seating capacity of his proposed restaurant. When the percentage of profits offered by each party as rental are applied to Plantation’s figures, as adjusted by Gamble’s formula, SBG’s proposal once again generates greater revenues in all but the first year when the guaranteed minimal rental would apply.

The assumptions on which these comparisons were based seem both reasonable and conservative. Moreover, as discussed above the reliability of the projected income figures of the two proposed restaurants depended in part on the qualifications of each party as a restaurateur.

The Commission was faced with a difficult decision which required it to consider a variety of factors beyond mere dollars and cents. The affidavit of George R. Montgomery, Chairman of the Concession Committee of the Board of Directors of the Park and Zoo seems to reflect the thinking of the Commission. In that affidavit it is stated that:

While the size of the proposed Plantation on the Green facility was larger than that of the SBG proposal, the presumptive resulting additional income, which I believed and believe to be speculative, would not offset the substantial difference in percentage rental. In addition, the SBG proposal allows for expansion of its facility if needed, which I believe was and is a more realistic approach.
In addition to my belief that the SBG proposal would yield more rental to the Audubon Park Commission, I believed at that time and now believe that Mr. Gamble’s experience and qualifications were more likely to produce a high class and successful restaurant such as was and is desired by the Commission.
I expressed the opinions hereinabove set forth at the meeting of the Concessions Committee and also at the meeting of the Board which followed the meeting of the Concession Committee and the other committee and board members indicated their concurrence, which they expressed by voting to accept the SBG proposal rather than that of Plantation on the Green.

This affidavit reveals the thought process underlying the Commission’s choice and indicates that they adequately considered all relevant factors in reaching their decision. The choice which the Commission made was to accept $320.00 per year less in guaranteed rental in exchange for 2.2% greater income when rentals were pegged to profits. This seems a reasonable choice calculated to maximize the potential profit to the Park which the presence of a restaurant would create.

The clear intent of the legislature in enacting the Public Lease Law was:

“to give all persons a chance to bid on leases of public property, to prevent boards and other authorities from favoring one person over others, and to produce to the various agencies of the State ... larger revenues by requiring competitive bidding for the leases.”

Ellis v. Acadia Parish School Board, 211 La. 29, 29 So.2d 461 (1946). See also Giles v. New Orleans City Park Improvement Association, 306 So.2d 823 (La.App. 4th Cir.1975).

With this principle in mind we conclude that the Commission correctly awarded the lease to the party whose qualifications and overall proposal was most likely to generate the greatest revenue for the Park. This is what the law requires. Accordingly we affirm the trial court’s ruling that SBG’s bid was the highest submitted.

THE PUBLIC BID LAW

We now address Plantation’s contention that the entire bid process should be voided for failure to comply with R.S. 41:1211 et seq. The irregularities alleged are in the advertisement for bids, which Plantation asserts did not contain an adequate description of the land to be leased and were not published frequently enough; and in the fact that bids were delivered to the Commission by hand rather than by mail. Having reviewed the record we conclude that the Commission acted in substantial compliance with the law and that whatever irregularities occurred were not sufficient to void the bidding process.

The advertisement in question read in part:

Audubon Park and Zoological Garden is now accepting bids for the building and management of a restaurant to be located in the Audubon Zoo, 6500 Magazine Street, New Orleans, Louisiana. Bid documents and specifications can be obtained by calling Carol Sullivan. 861-2537.

R.S. 41:1214 requires that the advertisement contain “... a description of the land to be leased.” While the exact nature of the description is not specified the clear purpose of this requirement is to inform potential bidders of the type of land being offered and where it is located. The advertisement in this case describes the land both by street address and by the phrase “to be located in the Audubon Zoo.” The street name and location of the Zoo are well known and easily ascertained by those unfamiliar with the City. We find that the advertisement published contained a description which meets the requirements of the statute.

Plantation also complains that the date on which bids were to be opened was changed from November 22, to November 24,1982 without adequate notice by way of advertisement. R.S. 41:1214 states that the advertisement shall be published for a period of not less than 15 days and at least once a week during three consecutive weeks. The original ad fixing November 22, as the date for opening bids was published daily from November 1 through November 17, 1982. Thereafter the date for opening bids was changed to November 24,1982 and this change was advertised daily from November 18 through 21 1982. All parties were aware of this change and submitted their bids on November 24. Plantation did not object to this change at the time it was made and we do not believe they should be allowed to do so at this late date. Under these circumstances we do not feel that the failure to advertise the change for the full statutory period justifies the remedy which Plantation seeks. The change was slight, it was advertised to the maximum extent possible (albeit it for a shorter period than that set forth in R.S. 41:1214), all parties were aware of the change and acted accordingly, and no objection whatsoever was made to the change.

We conclude that the Commission complied with the law to the maximum extent possible under the circumstances. It is well settled that where there is substantial compliance with the provisions of the Public Lease Law mere irregularities and informalities in the proceedings leading to the award of the lease do not necessarily void the contract. Davis v. Franklin Parish School Board, 412 So.2d 1131 (La.App. 2nd Cir.1982). West Calcasieu Port, Harbor and Terminal District v. Cajun Marine Services, Inc., 348 So.2d 169 (La.App. 3rd Cir.1977).

Plantation’s final argument relates to the method by which bids were delivered to the Commission. R.S. 41:1214 states that bids “... shall be forwarded through The United States Mail to lessor at its domiciled address.” It is undisputed that all bids, including that of Plantation, were delivered by hand and not by mail. There is no allegation that the bids were not sealed or that their contents did not remain secret. Under these circumstances we conclude that the failure of the parties to deliver their bids by mail does not justify voiding the bidding process. The Public Lease Law was substantially complied with and the purpose behind that law; maintaining the secrecy of bids, was satisfied. To void the bidding process in this case based on the irregularities alleged would be to elevate form over substance. Plantation was not only aware of the irregularities complained of but acquiesced in them without objection. The object of the Public Lease Law is to assure that the most advantageous lease possible will be obtained in an atmosphere of secret, competitive bidding. That is precisely what occurred in this case.

THE TERM OF THE LEASE

We now address an issue not raised by either party but which nonetheless has troubled this court. The bid package prepared by the Commission states that the term of the proposed lease is to be 50 years. R.S. 41:1217(A), which controls the lease in question, states in part that:

“All leases executed under the provisions of this Part shall be for a period not exceeding ten years...”

This provision casts doubt on the legality of the 50 year lease offered by the Commission. However, that section also states that:

If the lease provides for the addition or construction of improvements on or to the land to a value in excess of one hundred thousand dollars and that such improvements, at the termination of the lease will become the property of the lessor without any cost to the lessor, then the lessor may grant an option to the lessee to extend the primary term of the lease for an additional ten-year period, or part thereof, for each one hundred thousand dollars worth of improvements or additions made on or to the land, for a period not to exceed a maximum term of sixty years.

The proposed lease in this case, which was attached to the bid package and is part of the record, requires that certain improvements be constructed and makes specific provisions for their, value and ownership.

Article II, Clause 16 of the lease states: The appraised value of the required improvements shall be not less than $600,-000.00. The appraisal, if needed, shall be the expense of the Tenant and shall be performed by an accredited appraiser of the Society of Real Estate Appraisers or American Institute or Real Estate Appraisers.
Clause 18 of the same Article states that: After full and final completion of the improvements and cancellation of all building contracts, and after receipt of a clear lien and privilege certificate the improvements shall become the property of, and belong to the Audubon Park Commission. This shall include all items which are defined by Articles 463-467 of the Louisiana Civil Code.

Moreover Article X of the lease entitled “Ownership of the Premisis” clearly and unequivocally states:

Upon the expiration of this lease, either by default or passage of time, all improvements constructed by the Tenant shall be the property of the Audubon Park Commission. This shall include all those items which are defined in the Louisiana Civil Code, as amended in Article 463-467.

This leaves no doubt that the Commission was justified in offering a lease with a term of 50 years. The lease requires that improvements with a minimum value of $600,000.00 be constructed at the lessee’s cost. This satisfies the statutory requirement that a lease period in excess of ten years is allowed only where improvements to the leased property exceed $100,000.00 in value. The lease also vests ownership of those improvements in the Commission upon completion of construction and upon termination of the lease. This satisfies the provision of R.S. 41:1217 which requires that improvements become the property of the lessor at the termination of the lease if the lease period is to be greater than ten years. The fact that the lease is not couched in terms of a ten year primary term with four (4) ten (10) year extensions is of no consequence. The terms of the statute have been complied with and the Commission was acting lawfully when it offered a fifty year lease under the conditions set forth above.

CONCLUSION

We affirm the judgment of the trial court and find that SBG Audubon Corporation had corporate existence when its bid was submitted; that SBG’s bid was the highest bid submitted; that there was substantial compliance with the Public Lease Law; and that the terms of the lease justify a fifty (50) year term under the provisions of R.S. 41:1217.

All costs of this appeal to be borne by appellant.

AFFIRMED.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    Jean Hebert MILLER and Anita Hebert Duplechin, Plaintiffs-Appellants, v. CALCASIEU PARISH POLICE JURY and Donald Broussard, Defendants-Appellees.
    No. 83-220.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 16, 1984.
    McClain, Morgan & Savoy, Richard L. Savoy, Lake Charles, for plaintiffs-appellants.
    Raleigh Newman, Eugene Bouquet, Lake Charles, for defendants-appellees.
    Before DOUCET, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

Jean Hebert Miller and Anita Hebert Du-plechin, plaintiffs, filed suit against the Cal-casieu Parish Police Jury and Donald Brous-sard, defendants, seeking a judgment declaring null and void the Police Jury’s decision to abandon the portion of a public road known as Phillips Lane. Plaintiffs complain that the abandonment and procedural method was improper and contrary to the law. The trial court held that the portion of the lane which was abandoned had never been constructed or maintained as a public road by the parish and that the abandonment was neither arbitrary nor capricious. Plaintiffs appeal this decision. We affirm.

Plaintiffs, Jean Hebert Miller and Anita Hebert Duplechin, along with their brother, Stephen B. Hebert and their mother, Mrs. Odell Hebert, inherited a parcel of property in indivisión from their father as evidenced by judgment of possession on June 6, 1968. The property is situated in an east-west rectangular shape. The west end fronts on Prien Lake Road. The property was partitioned on June 10, 1968, with Mrs. Odell Hebert, the mother, receiving the westernmost lot, with Stephen Hebert the adjacent lot to the east of his mother, with Jean Hebert Miller the adjacent lot east of Stephen Hebert and Anita Duplechin receiving the adjacent lot to the east of Jean Hebert Miller. The southeast corner of the Jean Hebert Miller property and the southwest corner of the Anita Duplechin property adjoins the northern dead end of the abandoned lane. Phillips Lane runs in a north-south direction and meets a dead end in a perpendicular fashion at its north end, at plaintiffs’ property as mentioned above. The south end of Phillips Lane intersects Sale Road, a public highway. Phillips Lane is 470.9 feet in distance from Sale Road to plaintiffs’ property and is 40 feet wide.

Defendant, Broussard, is a landowner fronting the northern 200 feet of Phillips Lane being situated on the west side. It is this 200 feet, extending out from Brous-sard’s front yard, that has been abandoned and is the dispute of this suit. (See Appendix “A”).

The record reveals that Phillips Lane is a public road having been dedicated to the parish in 1957. It was highly disputed at trial whether the northern 200 feet of the lane was ever constructed and maintained as a public road.

Upon Broussard’s request, the Police Jury, after publicly advertising it’s intent, abandoned the north 200 feet of Phillips Lane, which fronted Broussard’s yard. Broussard subsequently built a new home making the abandoned portion a part of his front yard. Plaintiffs claim that this abandonment leaves them without ingress and egress to their lands and that for this reason the Police Jury’s decision to abandon the lane was arbitrary and capricious. Plaintiffs argue that the lane still serves a substantial public purpose. We disagree.

In Luneau v. Avoyelles Parish Police Jury, 196 So.2d 631 (La.App. 3rd Cir.1967) the court set forth the following standards related to abandonment of public roads:

“Under the jurisprudence of this state, any interested party may challenge as unreasonable and arbitrary the abandonment of a public roadway by the governing body of a parish or municipality. State ex rel. Torrance v. City of Shreveport, 231 La. 840, 93 So.2d 187 (1957); Torrance v. Caddo Parish Police Jury, 119 So.2d 617 (La.App.2d Cir.1960); Comment, 16 La.L.Rev. 521. In reviewing the decisions of parish or municipal bodies, however, the courts require that the plaintiff allege and prove that the action of the governing body was capricious or arbitrary or based upon substantially incomplete or incorrect information. Caz-Perk Realty, Inc. v. Police Jury of East Baton Rouge Parish, 213 La. 935, 35 So.2d 860 (1948). Thus the court, at the instance of an interested party, may examine the circumstances surrounding the abandonment of a permanent roadway to determine whether at the time of the governing body’s decision to abandon the road the roadway has been abandoned or is no longer needed for public purposes. R.S. 48:701.”

Our review is therefore limited to determining whether the Police Jury abused its discretion by acting in an arbitrary or capricious manner in abandoning the north 200 feet of Phillips Lane. Generally, “capriciously” has been defined as a conclusion of a commission when the conclusion is announced with no substantial evidence to support it, or a conclusion contrary to substantiated competent evidence. The word “arbitrary” implies a disregard of evidence or of the proper weight thereof. Torrance v. Caddo Parish Police Jury, 119 So.2d 617 (La.App. 2nd Cir.1960).

The law granting unto parish governing authorities the power to abandon public roads is well defined. LSA-R.S. 48:701 provides as follows:

“The parish governing authorities and municipal corporations of the state, except the parish of Orleans, may revoke and set aside the dedication of all roads, streets, and alleyways laid out and dedicated to public use within their respective limits, when the roads, streets, and alleyways have been abandoned or are no longer needed for public purposes. * * * ” (emphasis added)

In Caz-Perk Realty, Inc., et al v. Police Jury of Parish of East Baton Rouge, 207 La. 796, 22 So.2d 121 (1945), the Supreme Court established that courts will not interfere with the functions of police, juries or other public bodies in the exercise of discretion vested in them, unless they abuse this power by acting capriciously or arbitrarily.

The trial court found that the north 200 feet of Phillips Lane had never been constructed or maintained as a public road. Consequently, it served no public purpose. The trial court accordingly afforded great weight to the discretion exercised by the Calcasieu Police Jury as required in Caz-Perk Realty, Inc., supra. The trial court’s finding is supported by the record and cannot be disturbed in the absence of abuse of discretion or manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). We therefore agree with the trial court’s finding that the north 200 feet of the lane was never constructed or maintained as a public road.

Further, the record and testimony fails to show that the north 200 feet of the lane was ever utilized by the public in a manner consistent with “public use”. Periodic or isolated use of the disputed lane was so infrequent and non-essential to the public that trees and underbrush had to be cleared from the lane when Broussard built his home following the abandonment. Based on these trial court findings, we are convinced that the north 200 feet of Phillips Lane was no longer, if ever, needed for a public purpose. Torrance v. Caddo Parish Police Jury, supra.

Plaintiffs contend that they are without adequate ingress and egress onto their land. The trial court found that there were no other “road right of ways” adjoining, connecting or abutting plaintiffs’ property as a matter of public record. This may well be true and we decline to disturb the trial court’s finding in this respect. However, this appeal is limited to a review of the administrative procedures and abandonment pronounced by the police jury. Luneau v. Avoyelles Parish Police Jury, supra. Plaintiffs may return to court to establish a need for a right of way to their land under the Civil Code. LSA-C.C. art. 689. However, we refuse to grant relief on our own motion as to collateral issues not properly before us.

The record clearly indicates that even though there was no public road leading to plaintiffs’ property following the abandonment, there were other reasonable means of ingress and egress to the plaintiffs’ property from a public road. Plaintiffs had a reasonable means of ingress and egress to their property by proceeding eastward from Prien Lake Road across tracts of land adjacent to them and owned by Mrs. Odell Hebert and Stephen Hebert, their mother and brother. The testimony establishes that this was the customary and usual means by which plaintiffs reached their property at the time of abandonment. Therefore, plaintiffs have failed to convince us that the abandonment of Phillips Lane has left them without a reasonable means of ingress and egress to their property, nor that the Police Jury was arbitrary and capricious in abandoning the northern 200 feet of Phillips Lane.

Finally, plaintiffs complain that they were not given adequate notice by the Police Jury of its intention to abandon Phillips Lane. We find no requirement of personal notice to abutting landowners in these instances. The record reveals that on three occasions prior to the abandonment, the Police Jury published a notice of the intent to abandon in a local journal. We find that the Police Jury followed the normal procedure that is customarily accepted as policy in these type abandonment matters.

Based on the foregoing reasons, we hold that the procedural method and subsequent abandonment of the north 200 feet of Phillips Lane by the Calcasieu Parish Police Jury was neither arbitrary nor capricious.

For the above and foregoing reasons the decision of the trial court is affirmed at appellants’ cost,

AFFIRMED.

APPENDIX “A”

      . LSA-C.C. Art. 689. Enclosed estate; right of passage. “The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.”


author: STOKER, Judge.

text:
    Virgie DELCO, Plaintiff-Appellee, v. HERITAGE MANOR NURSING HOME, et al., Defendants-Appellants.
    No. 83-248.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 6, 1984.

      Onebane, Donohoe, Bernard, Torian, Diaz, McNamara, Abell, John F. Wilkes, III, Lafayette, for defendants-appellants.
    Privat & Regan, Thomas K. Regan, Crowley, for plaintiff-appellee-appellant.
    Before FORET, STOKER and YELVER-TON, JJ.
   STOKER, Judge.

This is a workmen’s compensation suit. Plaintiff, Virgie Delco, instituted this action against her employer, Heritage Manor Nursing Home, and its workmen’s compensation insurer, Ranger Insurance Company, seeking to recover compensation benefits, penalties and attorney’s fees as a result of accidents occurring on September 14, 1981 and October 7,1981. On those dates, plaintiff was a nurse’s aide employed by Heritage Manor Nursing Home (Heritage Manor) in Crowley, Louisiana. The trial court held that the defendants were liable to the plaintiff for workmen’s compensation benefits, penalties and attorney’s fees. From that adverse judgment, the defendants bring this appeal. The plaintiff answers the appeal seeking an increase in attorney’s fees to cover the cost of defending this appeal. The parties have stipulated that on the dates in question Mrs. Delco was employed by Heritage Manor, and was attending to her regular duties in the course and scope of her employment. They have also stipulated to the amount of compensation as being $86.28 per week.

There are two issues on this appeal: (1) whether the trial court erred in finding that Mrs. Delco’s injuries and her consequent disability were employment related, and (2) whether the trial judge erred in finding that Heritage Manor and its compensation insurer were arbitrary and capricious in their termination of workmen’s compensation and medical benefits. We amend and affirm.

FACTS

In the initial accident on September 14, 1981, plaintiff injured her back while lifting a patient onto a bed. She was treated by Dr. Murray Brown, and after a period of approximately two weeks she returned to work performing only light duties. Approximately one week later, on October 7, 1981, Mrs. Delco re-injured herself when she had to assist in lifting an overweight patient who fell. Mrs. Delco contends that this activity re-injured her back and aggravated a pre-existing gynecological problem, resulting in her total disability. She has not returned to work since this second accident.

After re-injuring herself on October 7, 1981, plaintiff returned to Dr. Murray Brown for further treatment. She complained of a back injury with radiating pain down her right thigh. Dr. Murray Brown kept Mrs. Delco out of work and continued to treat her until November 9, 1981, when he referred her to Dr. James McDaniel, an orthopedic specialist, for further evaluation and treatment because of lack of improvement in her condition.

On December 7, 1981, Dr. James McDaniel began treating Mrs. Delco for pain in her lower back and lower right leg. Because of minimal objective evidence of injury, she was treated conservatively with anti-inflammatory medication and an exercise program. Dr. McDaniel continued to see Mrs. Delco on a regular basis. Her condition did not improve, and on January 25, 1982, he recommended that she be admitted to the hospital for a myelogram. Mrs. Delco was admitted to Our Lady of Lourdes Hospital, in Lafayette, on February 8, 1982, and a myelogram was performed the next day. The myelogram was found to be within normal limits. At this point, Dr. McDaniel concluded that Mrs. Delco’s symptoms were not based on an orthopedic problem. However, he suspected from the localization of her symptoms that her problems might have been either genitourinary or gynecological. Dr. McDaniel referred her to Dr. Kenneth Brown, a gynecologist. Having found no orthopedic problems, Dr. McDaniel formally discharged Mrs. Delco from his care on March 11, 1982.

Dr. Kenneth Brown, who became the treating physician at this time, performed a gynecological examination on Mrs. Delco while she was still in Our Lady of Lourdes Hospital for the myelogram. He diagnosed her condition as uterine descensus or prolapse and concluded that the back pain was caused by the uterine prolapse. (At this time, Dr. Kenneth Brown was not aware that Mrs. Delco’s medical history revealed that she had been diagnosed as having had uterine decensus or prolapse in 1976 by a Dr. Hawes.) Dr. Kenneth Brown concluded that the condition had been asymptomatic until the accidents on September 14, 1981, and October 7, 1981. He felt that the heavy lifting involved in these accidents caused the condition to become symptomatic resulting in Mrs. Delco’s pain and disability. In his opinion a hysterectomy was necessary to correct the problem. Dr. Kenneth Brown had Mrs. Delco admitted to Lafayette General Hospital for the hysterectomy. Lafayette General Hospital called Ms. Lege, the representative of the compensation insurer who was responsible for handling Mrs. Delco’s claim, for verification of compensation coverage on February 12, 1982. Ms. Lege denied the coverage. The hysterectomy was not performed.

Mrs. Lege stated that she denied coverage on February 12, 1982, because she was not aware at that time that Mrs. Delco had been referred to Dr. Kenneth Brown and because she thought that Mrs. Deleo’s problem was solely orthopedic in nature. Sometime shortly after February 12, Ms. Lege learned that Mrs. Delco had been referred to Dr. Kenneth Brown by Dr. McDaniel, and in a letter sent to Dr. Brown dated February 18, 1982, she requested a report concerning Mrs. Delco’s condition and how it might be related to her job injuries.

In his report, dated February 25, 1982, Dr. Brown indicated that Mrs. Delco’s back pain was caused by uterine prolapse. In a clarification letter to Dr. Brown dated March 3, 1982, Ms. Lege specifically asked whether Mrs. Delco’s uterine prolapse was related to her on-the-job back injury. In his reply dated March 16, 1982, Dr. Brown stated, “Yes, increase intra-abdominal pressure from lifting heavy objects will stimulate uterine prolapse and backache.” Prior to receiving Dr. Brown’s reply, Ms. Lege received a report dated March 11, 1982, from Dr. McDaniel informing Ms. Lege that he had formally discharged Mrs. Delco because he felt that her symptoms were not based on an orthopedic problem. During the latter part of March, 1982, Dr. Brown again sought to admit Mrs. Delco for surgery. On March 23, 1982, Our Lady of Lourdes hospital contacted Ms. Lege to verify coverage for a hysterectomy and Ms. Lege denied coverage.

Ms. Lege terminated the workmen’s compensation benefits at this time based on the fact that both Dr. Murray Brown and Dr. McDaniel had found no objective signs of orthopedic problems. All of Mrs. Delco’s benefits, both compensation and medical, had been paid up until this time except for medical payments due Dr. Kenneth Brown.

In April, 1982, plaintiff filed this law suit. Shortly thereafter, the parties agreed to get a second opinion. On June 25, 1982, Mrs. Delco went to see Dr. Wallace Begneaud, Jr., a specialist in obstetrics and gynecology, for the purpose of getting a second opinion regarding the status of her gynecological system and more specifically to see whether or not he thought that the condition of her female organs materially affected her main complaint, which was a backache. Dr. Begneaud’s opinions were issued in a report written on June 30, 1982. He reached three conclusions and diagnoses: (1) uterine descensus existed but it was not responsible for her complaints and was not severe enough to warrant surgery; (2) she had adenomyosis, a different gynecological problem which was partly responsible for her pain, and which could not be related to or caused by her work, and (3) she had myofascial syndrome (an orthopedic problem) which was partly responsible for her pain and which was definitely aggravated by her work and became symptomatic thereby. In his deposition, Dr. Begneaud testified that adenomyosis can be cured only by having a hysterectomy and the only way to accurately diagnose this condition would be through surgery. He stated that he would recommend a hysterectomy for this condition.

WAS MRS. DELCO’S DISABILITY CAUSED BY A JOB-RELATED INJURY?

In compensation cases the plaintiff has the burden of showing that more probably than not an employment accident occurred and that it had a causal relation to the disability. Harris v. Louisiana-Pacific Corp., 420 So.2d 1220 (La.App.3rd Cir.1982). A worker’s pre-existing condition does not bar his recovery under workmen’s compensation because the employer takes the worker as he finds him. Guillory v. U.S. Fidelity & Guaranty Ins. Co., 420 So.2d 119 (La.1982). An employee’s disability is com-pensable if a work-related accident aggravates or accelerates a pre-existing condition to produce disability. Cadiere v. West Gibson Products, Co., Inc., 364 So.2d 998 (La.1978).

The question of whether there is a causal relationship between the disability and the employment is a question of fact. Moreau v. Houston General Ins. Co., 386 So.2d 151 (La.App.3rd Cir.1980). A factual determination by the trial court should not be reversed unless the trial court was clearly wrong from an examination of the record as a whole. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

As a general rule, the treating physician’s testimony should be given more weight than that of a doctor who examines a plaintiff for diagnosis only. Ellis v. Rapides Parish School Board, 419 So.2d 990 (La.App.3rd Cir.1982).

The facts indicate that Mrs. Delco was diagnosed as having had uterine descensus or prolapse in 1976. Neither Dr. Kenneth Brown nor Dr. Begneaud dispute the fact that Mrs. Delco was predisposed to developing this condition. They both testified that her six (6) pregnancies, her obesity, and gravity in concurrence with these two prior factors would predispose her to developing this condition.

Dr. Kenneth Brown, the treating physician, testified that although Mrs. Delco was predisposed to uterine descensus this condition was asymptomatic until the two accidents occurred. In his opinion these accidents were the most probable cause of the condition becoming symptomatic which in turn caused her pain and disability. He testified that a hysterectomy was needed to correct the problem.

Dr. Begneaud, consulted for a second opinion, agreed that Mrs. Delco had uterine descensus but felt it was not responsible for her pain and did not warrant surgery. He did however, believe Mrs. Delco was sincere in her complaints of greatly increased pain after the accidents. He attributed this pain to two conditions, adenomyosis (a gynecological condition) and myofascial syndrome (an orthopedic problem). He concluded that the adenomyosis was not work related but did recommend a hysterectomy to cure it. He further concluded that the myofas-cial syndrome was definitely aggravated by her work and became symptomatic thereby.

Dr. McDaniel, the orthopedic specialist, found no orthopedic problem.

Based on the entire record, we cannot say that the trial court was clearly wrong in finding that Mrs. Delco’s injury and her consequent disability were employment related.

IS PLAINTIFF ENTITLED TO STATUTORY PENALTIES AND ATTORNEY’S FEES?

If failure to pay workers’ compensation benefits is found to be arbitrary, capricious or without probable cause, penalties and attorney’s fees may be awarded. LSA-R.S. 22:658; Guillory v. U.S. Fidelity & Guar. Ins. Co., supra. If there is a genuine dispute as to the causal connection between the accident and the injury, the employer and the insurer are entitled to discontinue workmen’s compensation benefits pending a judicial determination. McFarland v. Crowley Industries, Inc., 339 So.2d 861 (La.App.3rd Cir.1976).

The issue of whether the refusal to pay compensation benefits was arbitrary and capricious is a factual determination which must be determined upon the merits of each case. Moreau v. Houston General Ins. Co., supra. A factual determination by the trial court should not be reversed unless the trial court was clearly wrong from an examination of the record as a whole. Arceneaux v. Domingue, supra.

The trial judge gave judgment in favor of Mrs. Delco in pertinent part as follows:

“ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of VIRGIE DELCO and against HERITAGE MANOR NURSING HOME & RANGER INSURANCE COMPANY, jointly, severally and insólido in the full sum of EIGHTY-SIX w/m ($86.28) DOLLARS per week for compensation benefits beginning March 26, 1982, said past due benefits from March, 1982 until initial payment to be paid in a lump sum and weekly compensation benefits to continue thereafter during plaintiff’s disability and that a penalty of 12% of the total compensation benefits be paid in a lump sum together with said benefits; it is further
“ORDERED, ADJUDGED AND DECREED that defendants be ordered to pay for all medical expenses necessary for the plaintiff including operations which may be necessary for the plaintiff to return to work and that a 12% penalty of the total amount of medical expensess incurred by the plaintiff be awarded as penalty in this matter; and it is further
“ORDERED, ADJUDGED AND DECREED that defendants be assessed with attorney fees in the amount of 20% of the entire award of the Court including all past due compensation benefits, medical expenses and penalties; and it is further
“ORDERED, ADJUDGED AND DECREED that defendants pay legal interest on all sums due from date until paid.”

On its face this judgment may present some difficulties, one of which will be mentioned later in this opinion. For the moment we address only the substantive question of whether any penalties and statutory attorney’s fees at all should have been awarded.

The workmen’s compensation insurer, through Mrs. Lege, its representative who handled Mrs. Delco’s claim, terminated the workmen’s compensation benefits on or about March 23, 1983. Up until this time all of Mrs. Delco’s benefits, both compensation and medical, had been paid except for the medical benefits due Dr. Kenneth Brown. The reason given by Ms. Lege for terminating these benefits at this time was that both Dr. Murray Brown and Dr. McDaniel had found no objective signs of orthopedic problems.

By March 23,1983, Ms. Lege was already aware that Dr. McDaniel had referred Mrs. Delco to Dr. Kenneth Brown because he suspected her back pains were gynecological in origin, that Dr. Kenneth Brown was now Mrs. Delco’s treating physician, that Dr. Kenneth Brown had diagnosed Mrs. Delco’s back pain as arising from a condition known as uterine prolapse or descensus which he specifically stated in a letter dated March 16, 1982, was aggravated or caused by the accidents of September 14,1981 and October 7, 1981, and that in his opinion a hysterectomy was necessary to cure the problem. In no report did any doctor ever state to Ms. Lege that Mrs. Delco could return to work nor did any doctor state that the medical condition was clearly unrelated to the work of the plaintiff. Not until June 25, 1982, was a second opinion sought from Dr. Begneaud. As previously stated, the trial judge was not clearly wrong in giving more weight to Dr. Kenneth Brown’s diagnosis. The record indicates that without a hysterectomy, Mrs. Delco could remain totally disabled.

Based on the entire record, we cannot say that the trial court was clearly wrong in finding that the compensation insurer was arbitrary and capricious in terminating both workmen’s compensation and medical benefits. We affirm the casting of the statutory penalties against the compensation insurer. However, it was error to cast Heritage Manor as an insured employer for these penalties. Fontenot v. Town of Kinder, 377 So.2d 554 (La.App.3rd Cir.1979), writ denied, 379 So.2d 1102 (La.1980).

ATTORNEY’S FEES

In its judgment the trial court assessed defendant with penalty attorney’s fees “in the amount of 20% of the entire award of the court including all past due compensation benefits, medical expenses and penalties ...”

The amount awarded as attorney’s fees rests largely on the discretion of the trial court. Each case must be decided in light of its own facts and circumstances, bearing in mind that the fee awarded must be reasonable. Melder v. Century Tel. Enterprises, 413 So.2d 1325 (La.App.3rd Cir.1982). In determining the amount of attorney’s fees to be awarded, the factors usually taken into account are the degree of skill and ability exercised, the amount of the claim, the amount recovered for the plaintiff, and the amount of time devoted to the case. Naquin v. Uniroyal, Inc., 405 So.2d 525 (La.1981).

The trial judge’s discretion in setting attorney’s fees may be properly exercised without the necessity of evidence directly bearing on the amount of the fees since he may draw a reasonable inference from what took place before him of the time spent by the attorney and the value of the services rendered. Coulton v. Levitz Furniture Corp., 391 So.2d 80 (La.App.4th Cir.1980).

We noted above that the formal judgment in this case appears to be cast in somewhat unorthodox terms if not cast in actual error. One such item is the award of statutory, i.e. penalty, attorney fees under LSA-R.S. 22:658 “in the amount of 20% of the entire award of the Court including all past due compensation benefits, medical expenses and penalties ... ”. Statutory attorney’s fees are customarily awarded in a specific amount. Plaintiff’s brief contains some expression of complaint and dissatisfaction with the court’s percentage award rather than fixing a specific amount. Plaintiff’s counsel in plaintiff’s brief asserts:

“Earlier cases have awarded the amount of $5000 for the trial and appeal of compensation cases. It is submitted that the Judge’s award while totally appropriate is difficult to calculate and is based on factors which are not presently available to the attorneys in this matter to calculate attorney fees and there is no necessity of awarding a percentage of the award of benefits and medical expenses.”

Plaintiff answered the appeal but the answer is confined to a request for additional attorney’s fees to cover the cost of services rendered on appeal. No answer to the appeal raises the question of the propriety or appropriateness of awarding statutory penalty attorney’s fees on percentage basis.

In the brief filed on behalf of the defendants-appellants, no complaint is made relative to the form of the judgment and the only errors complained of are the two mentioned at the beginning of this opinion, namely, the question of plaintiff’s entitlement to further compensation as basic proposition and whether (if plaintiff should prevail) defendants’ action withholding compensation and medical expenses was arbitrary and capricious so as to entitle plaintiff to statutory penalties and attorney’s fees. In defendants’ petition for appeal, they do make complaint that the trial court’s judgment was so awarded that it was impossible to ascertain the amount which should be placed in security in connection with the appeal, but appellants merely asked that the trial court relieve them of their dilemma by fixing the amount of the severity under the authority of LSA-R.S. 23:1351(B).

In summary neither the appeal nor answer to the appeal in this case have brought up on appeal any issues relative to the form of judgment of the trial court. ■No complaint in briefs is actually made relative to the wording of the judgment. Under the circumstances, we express no opinion relative to the provisions of the judgment itself other than to affirm the ruling that plaintiff should prevail on the basic issue of recovery of compensation and medical expenses and be awarded statutory penalties and attorney’s fees.

As we have noted, the plaintiff answered the appeal seeking an increase in attorney’s fees to cover the cost of defending this appeal. We award the plaintiff $500 for defending this appeal.

MEDICAL TESTIMONY, COURT COSTS AND LEGAL INTEREST

We also affirm the trial court’s assessments against defendant for fees for medical testimony for each doctor in the amount of $250, all court costs, and for legal interest on all sums due from date until paid.

For the reasons assigned, the judgment appealed from is amended so as to increase the award for attorney’s fees by an additional amount of $500. It is ordered, adjudged and decreed that at such time as this judgment shall become final, this $500 shall immediately become due and payable along with such other amounts as may be matured and payable at that time. The judgment is further amended to provide that the portion of the judgment awarding penalties and attorney’s fees shall run solely against Ranger Insurance Company. In all other respects the judgment is affirmed. All costs of this appeal are assessed against defendants-appellants.

AFFIRMED AS AMENDED.


author: KLIEBERT, Judge.

text:
    Mary Ann SCHWEGMANN a/k/a Mary Ann Blackledge v. John G. SCHWEGMANN, Jr., John F. Schwegmann, Melba Margaret Schwegmann and Schwegmann Bros. Giant Supermarkets, Inc., Schwegmann Bros. Terminal, Inc., Schwegmann Bros., Inc., Schwegmann Bros., Westbank, Inc., Schwegmann Bros. Westside Corporation and Schwegmann Veterans Corporation.
    No. 83-CA-305.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.
    Writ Denied Jan. 6, 1984.

      Bettyanne Lambert-Bussoff, Lambert <& Waldrup, New Orleans, for plaintiff-appellant.
    David Stone, Jo Harriet Strickler, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for defendants-appellees.
    Before KLIEBERT, GAUDIN and DU-FRESNE, JJ.
   KLIEBERT, Judge.

This is a devolutive appeal by Ms. Mary Ann Blackledge, plaintiff, from a judgment dismissing, on a motion for summary judgment, all of the causes of action alleged in her petition against Mr. John G. Schwegmann, Jr. (hereafter Mr. Schweg-mann), et al, defendants, except the cause to recover in quantum meruit for the value of uncompensated services performed separate and apart from the relationship of concubinage.

Ms. Blackledge asserts that the allegations of her petition raise six causes of action against the defendants: (1) Specific performance and/or damages based on breach of contract; (2) Recognition of constructive trust or damages based on implied contract; (3) Declaratory relief; (4) Quasi Contract and/or Quantum Meruit; (5) Interference with contract rights; and (6) Declaration of simulation and/or revocatory action. Additionally, though not an itemized cause, she asserts the existence of a partnership and prays for its dissolution and/or distribution of its assets.

• Notwithstanding Rule 2-12-4 of the Uniform Rules for the Courts of Appeal, Ms. Blackledge’s brief did not particularize errors in the trial court judgment or specify issues on appeal. Rather, she argues that there are issues of fact and as a matter of law, her petition contains valid causes of action; hence, the granting of the motion to summarily dismiss her claims was error. We disagree and affirm the judgment of the trial court.

The petition alleged a contract entered into by Ms. Blackledge and Mr. Schweg-mann in May, 1966, whereby they agreed to live together and, while doing so, combine their skills, efforts, labor and earnings and to share equally any and all assets and property acquired and accumulated as a result of their joint skills, efforts, labor and earnings. The horns of the legal dilemma upon which the petition places her is apparent from her testimony given by deposition. As facts are elicited to show the confection of an agreement, the nature of the services or their value, the same facts establish that the alleged agreement, if in fact proven, is meretricious and, therefore, void.

Ms. Blackledge claims she and Mr. Schwegmann lived together, without marriage, for twelve years pursuant to an oral agreement. The agreement, according to her, was confected in 1966 when Mr. Schwegmann told her he wanted to “share everything” with her and she said “okay”. At the time of this conversation, Mr. Schwegmann was a twice divorced, middle age male who owned a chain of supermarkets and other assets, and Ms. Blackledge was a 24 year old unmarried female who had no property or other financial assets. The claimed contractual agreement was never reduced to writing and there was no witness to the alleged conversation in which it was confected.

Following the confection of the alleged contractual agreement, Ms. Blackledge and Mr. Schwegmann lived together continuously from May 1966 to May 1978. In this time frame, Ms. Blackledge contends she rendered services as a companion, housekeeper and cook, as well as a mother to Mr. Schwegmann’s children, and as a business advisor, political assistant and confidante to him and his controlled corporations.

Throughout the time they lived together, Ms. Blackledge and Mr. Schwegmann had sexual relations on a regular basis. Ms. Blackledge’s living expenses, dental and medical bills, clothing costs, entertainment and traveling expenses were paid for by Mr. Schwegmann. He also provided her with a monthly allowance check during their cohabitation and continued the checks after they ceased living together until the time this suit was filed. The sexual relationship also continued during visits after the cohabitation had terminated.

In the absence of specific assignments of error or issues, we will discuss each of the asserted causes of action (itemized above as [1] thru [6]) under the captions indicated below.

BREACH OF CONTRACT

Since the issue arises on a motion for summary judgment, we did not need to and made no determination as to whether the so-called contract alleged in the petition and testified to by Ms. Blackledge was in fact proven. Rather, for the purpose of this motion, we consider the facts alleged in the petition, as expanded on and amplified in the depositions as true.

Counsel for Ms. Blackledge prays for specific performance of the alleged oral contract or alternatively damages for breach of the contract. The defendants contend no valid contract could be confected because (1) the alleged “contractual agreement” is a universal partnership and consequently invalid because it is not in writing; (2) the object of the alleged contract was not certain, hence, it violates the requirements of La.C.C. Articles 1779(3) and 1886; consequently no contract was confected; (3) the alleged contract is not supported by adequate consideration; and (4) the alleged contract is void because it is meretricious. The trial judge ruled on only the first and last of defendants’ contentions, thus negating the necessity of his considering the others.

A universal partnership is defined by La. C.C. Article 2829 as follows:

Universal partnership is a contract by which the parties agree to make a common stock of all the property they respectively possess; they may extend it to all property real or personal, or restrict it to personal only; they may, as in other partnerships, agree that the property itself shall be common stock or that the fruits only shall be such; but property which may accrue to one of the parties, after entering into the partnership, by donation, succession or legacy, does not become common stock, and any stipulation to that effect, previous to the obtaining the property aforesaid, is void.”

and expanded on in the two subsequent articles as follows:

Art. 2830. A universal partnership of profits include all the gains that may be made from whatever source, whether from property or industry, with the restriction contained in the last article, and subject to all legal stipulations to be made by the parties.
Art. 2831. If nothing more is agreed between the parties, than that there shall be a universal partnership, it shall extend only to the profits of the property each shall possess, and of their credit and industry.

As found by the trial judge, the contractual agreement alleged in the petition “fits exactly the codal definition of universal partnership”. Ms. Blackledge testified she and Mr. Schwegmann were going to pool all of their assets and share the fruits of their labor, thus clearly asserting an intention to confect a partnership. Indeed, among others, the plaintiffs petition asks the court to consider the conduct and agreement of the parties as a partnership and prays for its dissolution and the distribution of its assets to the partners.

Under the provisions of La.C.C. Article 2834, a universal partnership cannot be created “... without a writing signed by the parties ...” Hence, Louisiana does not recognize as a valid universal partnership an oral agreement between a man and a woman who live together and agree to split certain properties standing in the name of one of them. Heatwole v. Stansbury, 212 La. 685, 33 So.2d 196 (1947); Foshee v. Simkin, 174 So.2d 915 (1st Cir.1965); Chambers v. Crawford, 150 So.2d 61 (2nd Cir.1963); Gadlin v. Deggs, 23 So.2d 704 (4th Cir.1945).

Ms. Blackledge testified her alleged understanding or agreement was not reduced to writing. Therefore, under the jurisprudence above cited, the trial court held the oral contract alleged by the plaintiff, even if proven, would be a universal partnership and, as such, invalid because not made in writing.

In her brief on appeal, counsel for Ms. Blackledge states “historically concubinage cases have couched the agreement as a universal partnership but then argues “there is no statutory reason why the courts began to apply partnership law to any oral contract”. Consequently, “there is no explanation [why] within the body of concubinage law except that the goals of the parties were joint and the state is a community property state”. We suggest the explanation is found in the fact that the community of acquets and gains created by the marriage is legally considered a partnership between the partners in the marriage.

In most concubinage cases, as is the case here, the goal of the plaintiff is to obtain for the concubine the civil benefits which would flow to the wife as a marital partner. In the absence of the marriage, some relationship, other than a sexual one, must exist between the parties for the civil benefits to flow to the person acting as the pseudo wife. Consequently, it is logical for the concubine’s counsel to urge a partnership akin to the community of acquets and gains which applies to marital partners and for the court to apply partnership law in denying it.

As argued by counsel for Ms. Blackledge, it was theoretically and legally possible for the parties to establish a commercial or some partnership other than a universal partnership. However, the facts are that under the allegations of the petition and the testimony of Ms. Blackledge the relationship created was that of a universal partnership, not some other type. Additionally, this court cannot lose track of reality. Although it was theoretically and legally possible for the parties to marry and thus create a legal partnership based on a sexual relationship, the facts here are that the parties did not marry. Hence, as subsequently pointed out in this opinion—however the relationship is categorized—under the law the alleged agreement is a meretricious one and therefore void. For the same reason, applying the present partnership articles of the Civil Code (which do not require the partnership to be in writing) would not produce the results desired by the plaintiff.

Accordingly, we uphold the trial judge’s ruling that the alleged oral agreement asserted by Ms. Blackledge would be a universal partnership and thus be invalid because not made in writing. Further, even if the alleged agreement was not required to be in writing, it would be unenforceable because it is a meretricious one. Hence, except as we hereafter expand on the concept of a meretricious agreement under the caption Quantum Meruit, it is unnecessary for us to consider the other grounds urged by the defendants as defense to the plaintiff’s claim for breach of an alleged contract.

RECOGNITION OF CONSTRUCTIVE TRUST OR DAMAGES BASED ON IMPLIED CONTRACT

Ms. Blackledge contends the fact she and Mr. Schwegmann lived together as man and wife for twelve years caused a contract to be implied between them. On the basis of this implied contract she asserts the creation of a constructive trust for her benefit over the joint assets held by Mr. Schweg-mann or alternatively the right to recover damages based on his breach of the “implied contract”. She argues the constructive trust is imposed as an equitable remedy to protect her interest in the joint properties because she had a “reasonable expectation and belief” she and Mr. Schwegmann had an agreement and she had the greatest confidence and trust he would carry out the agreement.

The legal concept for a constructive trust is to impose an equitable lien on property because of a fiduciary relationship between the parties. The heart and soul of the equitable lien is a fiduciary relationship. Neither in the pleadings nor in the deposition of Ms. Blackledge is there established the requisite fiduciary relationship. Further, it is clear the Louisiana Civil Code prohibits the imposition of a constructive trust on property. Succession of Onorato, 219 La. 1, 51 So.2d 804 (1951); In re Liquidation of Canal Bank & Trust Co., 181 La. 856, 160 So. 609, 616 (1935); see also Mansfield Hardwood Lumber Company v. Johnson, 268 F.2d 317 (5th Cir.1959); In re Hagin, 21 F.2d 434, 437 (E.D.La.1927), aff’d sub nom. Phoenix Bldg. & Homestead Ass’n v. E.A. Carrere’s Sons, 33 F.2d 563 (5th Cir.1929); Bankhead v. Maryland Casualty Company, 197 F.Supp. 879 (E.D.La.1961).

Her theory for recovery under an implied contract requires the characterization of her relationship with Mr. Schwegmann as a marriage, when in fact they were never married and neither of them ever believed they were married to each other. As a matter of fact, Ms. Blackledge testified she knew Mr. Schwegmann had a marriage contract (against formation of a community of acquets and gains) with his second wife because, as she stated, “he wanted the property protected in the event of a divorce”.

In oral arguments and in appellant’s briefs, counsel for plaintiff strenuously urges the novelty of the relationship and importance of her case in a changing society. The trial judge rejected the argument and gave excellent legal written reasons for doing so. Therefore, we adopt his reasons which follow as our own:

“Claims like the plaintiffs are not foreign to Louisiana courts. Louisiana law has defined a person in Miss Blackledge’s position as a concubine, a woman who 'occupies the position, performs the duties, and assumes the responsibilities of a wife, without the title and privileges flowing from a legal marriage.’ Purvis v. Purvis, 162 So. 239, 240 (La.App. 2d Cir.1935). Louisiana terminology for the man with whom a concubine lives is ‘paramour’.
A great body of jurisprudence has grown up confirming that concubines and paramours have no rights in each other’s property. Jackson v. Hampton, 134 So.2d 114 (La.App. 2d Cir.1961); Rochelle v. Hezeau, 15 La.Ann. 306 (1860). See also Mintz & Mintz, Inc. v. Color, 250 So.2d 816 (La.App. 4th Cir.1971) (where no garnishment of a woman’s wages could be had for the debt of her paramour) and Sims v. Matassa, 200 So. 666 (La.App. 1st Cir.1941) (where no seizure of a woman’s property could be accomplished to satisfy her paramour’s debt).
The Fourth Circuit Court of Appeal recently refused to recognize a concubine as a surviving spouse in community and succinctly described Louisiana law: ‘The law could scarce be plainer: a sharing of bed and table, for a night or for a lifetime, does not by itself constitute marriage.’ Succ. of Donohue, 389 So.2d 879, 880 (La.App. 4th Cir.1980). See also Sesostris Youchican v. Texas & P.R. Co., 147 La. 1080, 86 So. 551 (1920); Foshee v. Simkin, supra.

A substantial portion of the plaintiff counsel’s brief is devoted to a historical analysis of the Louisiana Law on concubinage to show that its development was predicated on public policy construed by the judiciary. She then argues that changes in the mores of society as regards cohabitation have changed so radically, we should not impose on a man and woman who cohabi-tate without marriage a standard based on moral considerations merely to protect Victorian values which have been abandoned by so many in our society. Therefore, she urges it is time for the courts of Louisiana to develop a legal vehicle to protect the property rights obtained during cohabitation by a male and female in a sexual relationship without benefit of marriage. In support of the contentions, she urges a constitutionally protected right against discrimination between wives and concubines. She compares the discrimination she sees to that formerly existing between legitimate and illegitimate children and says concubinage discriminates against black heritage and culture but more particularly against women.

We neither agree with her appreciation of the sociological changes nor the necessity for a change in legal philosophy as to concubinage nor do we see the violation of a constitutionally protected right against discrimination. The State has valid reason to discourage relationships which serve to erode the cornerstone of society, i.e., the family. In every known civilized society, replacement of its members is performed within the context of the family. Although it is conceivably possible that sexual relations and child rearing could be deregulated or governed by norms that do not entail the encouragement, support and protection of family institutions, past experiments in that direction have failed. (See “The Attempt to Abolish the Family in Russia” in The Great Retreat by Nicholas S. Timasheff, Copyright 1946 by E.P. Dutton & Co., Inc. Further, in the case of the children, legitimate or illegitimate, they were not the cause of their status, but here the status of concubine was a voluntary and desired one, for the parties neither married, wanted to marry, nor believed they were married.

Under present Louisiana law, unmarried cohabitation does not give rise to property rights analogous to or similar to those of married couples. Concubines have no implied contract or equitable liens that afford them any rights in the property of their paramours. Moreover, in our view, although Victorian, the values sought to be protected by the formulation of those legal concepts are imperative if we are to maintain our civilized society.

QUASI CONTRACT AND QUANTUM MERUIT

The plaintiff asserts a right to recover compensation for the services rendered to Mr. Schwegmann under a quasi contract or quantum meruit theory. Under our law, when one benefits or is unjustly enriched from the labor of another, the law implies a promise to pay a reasonable amount for the labor, even in the absence of a specific contract. La.C.C. Article 1965. Bordelon Motors, Inc. v. Thompson, 176 So.2d 836 (3rd Cir.1965).

Here Ms. Blackledge testified that she rendered domestic services and business services and here claims compensation for both. Since the trial court and we reached conclusions based on the nature of the services, we consider each category of services separately.

Domestic Services

Ms. Blackledge stated in her deposition that she performed domestic services including cooking, cleaning, chauffering, taking care of Mr. Schwegmann’s daughter, and acting as a nurse to him after his stroke. She also stated that she and Mr. Schwegmann had sexual relations: (1) on their first date in October or November of 1958; (2) throughout the time they dated before living together; (3) while they lived together in his house; and (4) when she visited after she left his house, and that this was one of the reasons Mr. Schwegmann paid her money. In describing her alleged agreement with Mr. Schwegmann, she testified that part of her promise was to “be a wife to him ” and that “John and I made all the commitments and agreements to each other that anyone would take when they got married ”. She understood a condition of the agreement to be that while they lived together neither of them would have sexual relations with anyone else.

Clearly from her testimony, the domestic services of child care, nursing, cooking, etc., were inextricably interwoven with sexual services in a concubinage relationship. Louisiana law clearly disallows claims in quantum meruit by concubines for domestic services when the services are interwoven with the sexual relationship.

From early in Louisiana law, where parties to a contract cohabit in a sexual relationship and their agreement to cohabit is part of the basis for the agreement between them, the agreement is unenforceable because it is an unlawful contract for meretricious services. Delamour v. Roger, 7 La.Ann. 152 (1852). See also La.C.C. Article 1892; Sparrow v. Sparrow, 231 La. 966, 93 So.2d 232 (1957); and Foshee v. Simkin, 174 So.2d 915 (1st Cir.1965) for more recent cases.

More recently, the First Circuit Court of Appeal in Guerin v. Bonaventure, 212 So.2d 459 (1st Cir.1968) at pages 464-65 denied the claims of a concubine in quantum meru-it in the following language:

“In view of the parties living together as man and wife, it was only natural that plaintiff lend some assistance to the paramour who furnished full subsistence and a home for plaintiff and her child as if they were his lawful wife and offspring. In this manner plaintiff received full remuneration for services rendered to defendant Bonaventure in performing the duties of mistress of his household and some measure of assistance in his various business enterprises.
All of the circumstances considered, the services rendered by plaintiff are so completely intertwined with her illegal cohabitation with Bonaventure as to be utterly indistinguishable therefrom. In such circumstances, the remuneration received in the form of support and subsistence over the years is in law deemed full remuneration therefor. Consequently she has failed to establish her right to legal remedy or redress.”

Clearly, the plaintiff here has no valid cause of action to recover in quantum meruit for the domestic services she claims to have rendered for by her own testimony the domestic services were inextricably interwoven with the sexual relationship.

Business Services

Plaintiff testified she performed business services for Mr. Schwegmann and his corporations by (1) helping him write editorials for Schwegmann’s newspaper advertisements; (2) rendering investment advice; (3) assisting and rendering advice as to Mr. Schwegmann’s political career; and (4) keeping him informed of things she saw in the stores which could have an adverse effect on the business. Under our law, the plaintiff may be entitled to compensation for the rendition of the services if the services were in fact rendered and do meet the prerequisites of the equitable principles formulated by the jurisprudence for recovery. In the Bonaventure case, supra, the Third Circuit clearly stated the equitable principles upon which recovery can be had:

“Our jurisprudence appears settled to the effect that predicated upon equitable principles, the claims of a paramour and concubine will be recognized and enforced with respect to joint or mutual commercial ventures, provided such enterprises arose independently of the illicit relationship. Heatwole v. Stansbury, 212 La. 685, 33 So.2d 196; Sparrow v. Sparrow, 231 La. 966, 93 So.2d 232; Foshee v. Simkin, La.App., 174 So.2d 915.
The rationale of the rule pronounced in the Heatwole, Sparrow and Foshee cases, supra (and the numerous authorities therein cited) is that where the concubinage is merely incidental to the business arrangement, the equitable rights of both parties will be recognized and enforced provided they be established by strict and conclusive proof. Stated otherwise, the rule is that if the commercial enterprise is independent of the illegal cohabitation, each party may assert his rights in the common endeavor.”

Since the issue arose on a motion for summary judgment the trial judge concluded and we agree the plaintiff must be given every benefit of the doubt. Conceivably given the opportunity to do so, she could establish real and substantial business services performed for the defendants, including Mr. Schwegmann, that have not been previously compensated and which were separate and distinct from the concubinage relationship. Accordingly, we agree with the trial judge’s ruling excepting her claim of compensation for business services from the summary dismissal of her claims.

OTHER ASSERTED CAUSES OF ACTION

In addition to those discussed above, the plaintiff in her petition asserted that (1) -she was entitled to declaratory relief because an actual controversy has arisen between her and the defendants relative to her legal rights; (2) the defendants other than Mr. Schwegmann have interfered with the contractual rights she obtained through her agreement with Mr. Schwegmann, and (3) she is a creditor of the defendant Mr. Schwegmann and his purported sale of the stock of his controlled corporations to his son was a simulation or in fraud of her rights as a creditor and consequently should be revoked. The trial judge rejected her contentions on the grounds the request for declaratory relief and the claim for interference with her contractual rights are col-laries to her claim for breach of contract or implied contract and falls for the same reasons those asserted claims fell. Additionally, he rejected the claims in simulation or revocation because the plaintiff was not a creditor of Mr. Schwegmann. Counsel for the plaintiff makes little or no direct comment relative to these rulings in her brief. In our view, the trial judge’s ruling was proper.

CONCLUSION

After a careful review of the record, the arguments of counsel, and the trial judge’s ruling, we cannot say the trial judge erred in his findings, his rulings or in his determination and application of the laws of Louisiana to the record before us. Paramount in the review of the petition is the recognition it was molded in conformity with the distinctions drawn by the Supreme Court of the State of California in Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976). But also paramount in the review of the plaintiff’s deposition is the recognition that her testimony does not produce a factual setting consistent with the allegations of the petition. Furthermore, we do not believe the prevalence and social acceptance of non-marital sexual relationship at this time is justifiable grounds to abandon the Louisiana concept of the unlawfulness of a concubinage relationship.

To equate the non-marital relationship of concubinage to a marital relationship is to do violence to the very structure of our civilized society. Without the family, the State cannot exist and without marriage the family cannot exist. Thus, aside from religious or moralistic values, the State is justified in encouraging the legitimate (marriage) over the illegitimate (concubinage), for to do otherwise is to spread the seeds of destruction of the civilized society.

Unwed cohabitors involved in concubinage relationships have voluntarily chosen not to marry and they should not expect to receive the civil effects flowing by virtue of a marital state. In the absence of ceremonial marriage, in order to discourage the relationship, the State has not established, for a male and female who cohabit, statutory obligations of fidelity, support and assistance, nor a statutory recognition of a right to support or to assistance upon termination of the relationship. As the Louisiana courts have previously stated, discouraging the establishment of a sexual relationship without ceremonial marriage is in the interest of protecting the moral fabric of society and its preservation against those who flout its standards and values. See Succession of Battiste, 145 So.2d 668 (4th Cir.1962) and Texada v. Spence, 166 La. 1020, 118 So. 120 (1928).

Accordingly, the judgment of the trial court is affirmed and the case remanded to the trial court to proceed on the merits of the plaintiff’s claim for compensation for business services. All costs of the appeal to be borne by the plaintiff.

AFFIRMED AND REMANDED.

      . Other defendants were Mr. Schwegmann’s children, John F. Schwegmann and Melba Schwegmann, and various corporate entities through which Mr. Schwegmann’s business affairs were conducted.

      . In her brief, counsel for Ms. Blackledge urges arguments relative to the trial judge’s dismissal of a motion to enforce an alleged settlement and a motion to disqualify the defendants’ lawyers. These interlocutory orders were issued on the same date as the judgment on the motion for summary judgment. The plaintiff made no application for supervisory writs and her motion for appeal was restricted to the judgment on the motion for a summary judgment, therefore, these orders are not before us on this appeal.

      . Title XI of Book III of the Louisiana Civil Code of 1970 OF. Partnership, previously consisting of Articles 2801 to 2890, was revised, amended and re-enacted by Acts 1980, No. 150, effective January 1, 1981. Articles 2829 thru 2834, concerning a universal partnership, which were in effect at the time the alleged agreement was confected and this suit was filed, were repealed by Act 150 of 1980.


text:
    STATE of Louisiana v. Anthony DITCHARO.
    No. 83-KA-408.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 1983.

      John M. Mamoulides, Dist. Atty., W.C.D. Friederichsen, William C. Credo, III, Louise Korns, Philip Boudousque, Asst. Dist. At-tys., Gretna, for plaintiff-appellee.
    George C. Ehmig, Gretna, for defendant-appellant.
    Before KLIEBERT, BOWES and DU-FRESNE, JJ.
   KLIEBERT, Judge.

This is an appeal by the defendant, Anthony L. Ditcharo, Jr., from his guilty plea to the charge of possession of 230 pounds of marijuana, a violation of R.S. 40:967. The defendant entered his guilty plea under the ruling of State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to this appeal following the trial judge’s denial of his motion to suppress evidence obtained pursuant to a search warrant.

On July 29, 1981, on the basis of an affidavit executed by Anthony Akins, a police officer employed by the Jefferson Parish Sheriffs office, a search warrant was issued to search the residence of the defendant located at 576 Victory Drive in Westwe-go, Louisiana.

The search, conducted at defendant’s residence pursuant to the search warrant, recovered the contraband upon which this prosecution is based. The affidavit for the search warrant reads as follows:

“On 29 July 81 Agents A. Akins was contacted by a reliable source who in the past has supplied Agents with information that has been proven reliable through independent investigation. The reliable source for the remainder of this application will be reffered (sic) to as CI. The CI advised Agt. A. Akins that he had been in the residence on this date (sic) and saw several pounds of marijuana. The CI further stated' that the residence he is speaking of is, 576 Victory Dr. West-wego, La. At this time Agent terminated the meeting with the CI and began an investigation of Anthony Ditcharo, because according to the CI this was the residence of Anthony Ditcharo.
Agent A. Akins conducted a record check of the subject, Anthony Ditcharo W/M. The record cheek revealed that the subject, Anthony Ditcharo W/M 04/15/47 residing at 576 Victory Dr. Westwego, La. has an identification number with JPSO number 3217, also the subject is wanted for unauthorize (sic) use of a moveable since 07/19/79. The subject has two City arrest, with no convictions; eight Felony arrest with one conviction; and twenty three misdemean- or arres (sic) with five convictions.
Agents set up a surveillance of the residence on 29 July 81 during the surveillance Agent observed a number of W/M and W/F subject (sic) going to the residence staying for a short period of time and leaving the residence. A number of vehicle (sic) were also observed going to the residence it’s (sic) occupant going inside the residence staying for a short period of time and leaving the residence. Agents due to their vantage point were unable to obtain license information on any vehicle.
From past expirence (sic) this type of short term traffic is normally observed at location where drugs are being distributed.
Agents also learned through independent investigation that the subject Anthony Ditcharo also keeps a large sum of his marijuana in his garage located in" the rear of the yard.
Due to the information received and the observation of Agents is is respectfully requested that a Search Warrant be issued for the premises at 576 Victory Dr. Westwego, La. and extended to cover Daytime, Nightime, Sunday and holidays.”

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the search warrant was invalid because it failed to allege facts to support the reliability of the confidential informant and the information furnished by the informant.

A search warrant may issue only upon an affidavit establishing probable cause to the satisfaction of the issuing judge. U.S. Const.Amend. IV; La. Const. 1974, Art. 1, § 5; La.C.Cr.P. Art. 162. Probable cause exists when facts and circumstances within the affiant’s knowledge, and of which is has reasonable trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Tate, 407 So.2d 1138 (La.1981); State v. Mena, 399 So.2d 149 (La.1981).

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court set forth, in a “two-pronged test,” the criteria which a magistrate must follow in determining if an affidavit based upon hearsay has established probable cause for the issuance of a search warrant; (1) the affiant must articulate the basis for his belief that the information is trustworthy, and (2) the affidavit must indicate the underlying circumstances from which the informant concluded that the objects were where he contended they would be. Hence, the reliability of both the informant and his information must be demonstrated in the affidavit. State v. Wichers, 392 So.2d 419 (La.1980). Later, the Court in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.3d 637 (1969), made the criteria more flexible by allowing an informant’s tip which is inadequate under Agui-la r standards to be corroborated by independent sources. These rules were adopted in State v. Paciera, 290 So.2d 681, 685-86 (La.1974) which held:

“The affidavit súbmitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and the indirectly-obtained information.”

State v. Tate, supra, held that:

“Affidavits must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Williams, 338 So.2d 1365 (La.1976). The magistrate is obligated to render a judgment based upon a commonsense reading of the entire affidavit. Thus, when an informant’s statement fails to meet Augilar’s two-pronged test, the affidavit may nevertheless be sufficient if corroborating facts from police observation permit ‘the suspicion engendered by the informant’s report to ripen into a judgment that a crime was probably being committed.’ Spinelli v. United States, supra; State v. Williams, supra. An informant’s tip can be significantly buttressed if either independent observations by the affiant corroborate sufficient details of the tip (whether suspicious or not) to negate the possibility that the informant fabricated his report, or independent observations by the affiant contribute to a showing of probable cause by revealing not merely normal patterns of activity but activity that reasonably arouses suspicion. Gonzales v. Beto, 425 F.2d 963, 969 (5th Cir.1970), cert. denied, 400 U.S. 928, 91 S.Ct. 194, 27 L.Ed.2d 189 (1970), cer. denied, Acosta v. Beto, 400 U.S. 1001, 91 S.Ct. 476, 27 L.Ed.2d 452 (1971).”

This approach was followed by the United States Supreme Court in Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which abandoned the rigid “two-pronged test” of Aguilar and Spinelli for determining whether an informant’s tip establishes probable cause for the issuance of a warrant. The Court substituted in its place the “totality of the circumstances” approach which is expressed in the following language:

“The task of the issuing magistrate is simply to make a practical, common-sense decision, whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis ... conclud(ing)’ that probable cause existed. Jones v. United States, supra, 362 U.S. [257] at 271 [80 S.Ct. 725 at 736, 4 L.Ed.2d 697 (1960) ]. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interest that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli.”

In the instant case, the affiant received a report from a confidential informant that the informant had been in the defendant’s residence and had personally observed several pounds of marijuana therein. In addition, the affiant and other police officers set up a surveillance of the residence and during the surveillance the affiant and the other officers observed a number of people going to the defendant’s residence and staying for a short period of time.

If we were dealing with an affidavit based solely on the information obtained through the confidential informant, we might well conclude that the affidavit does not establish probable cause for the issuance of a search warrant. However, the independent observations by the affiant and the other police officers contributed to a showing of probable cause and corroborated details of the informant’s tip to negate the possibility that the informant fabricated his report.

In considering this matter, we have excised the statement in the affidavit that the defendant was wanted for unauthorized use of a moveable since there has been no showing or a finding that this information was intentionally misrepresented in the affidavit. State v. Ogden, 391 So.2d 434 (La.1980).

Although the affidavit does not state the number of times' the informant had supplied information to the affiant or the circumstances surrounding the information supplied in the past, we are satisfied that the entire affidavit, read in a commonsense approach, contains sufficient facts for a magistrate to conclude that probable cause existed for issuance of the search warrant in this case.

ASSIGNMENT OF ERROR NO. 2

Defendant further contends that the testimony of the narcotic agents who conducted the surveillance does not support the information given to the issuing magistrate by the affiant requesting the search warrant.

We disagree and find ample testimony in the record to support the statements made in the application for the search warrant.

For the reasons cited, we affirm the decision of the trial court’s denial of the defendant’s motion to suppress.

AFFIRMED.