source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    AMERICAN BANK AND TRUST COMPANY v. SUNBELT ENVIRONMENTAL SYSTEMS, INC., et al.
    No. 83 CA 0248.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    On Rehearing June 26, 1984.

      Michael H. Rubin, Baton Rouge, for plaintiff-appellee American Bank & Trust Co.
    Robert L. Kleinpeter, Baton Rouge, for defendant-appellant, Sunbelt Environmental Systems Inc., Lynn Foster and James Kelly.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

American Bank and Trust Company, Baton Rouge, sued Sunbelt Environmental Systems, Inc., a Texas corporation not licensed to do business in Louisiana, but doing business in this state, and James Kelly and Lynn Foster, who are domiciled in Texas, under the Louisiana Long-Arm Statute, LSA-R.S. 13:3201 et seq. Basically, the American Bank alleges that Sunbelt is maker of a note in the principal sum of $366,592.96, with interest at a variable rate of 2% above commercial prime, and that Foster is an endorser of the note. American Bank further alleges that both Foster and Kelly executed a Continuing Guaranty as security for the note in the sum of $375,000.00. American Bank seeks to recover the principal sum of the note, interest and 25% attorney’s fees from Sunbelt, Foster, and Kelly. Foster and Kelly filed a joint exception to the jurisdiction of the court, which exception the trial court overruled after a hearing. American Bank then moved by separate pleadings for summary judgment against each of the three defendants, .using the entire record, including the transcript of the hearing on the exception of Foster and Kelly to the jurisdiction of the court. The trial court granted summary judgment in the sum of $366,-592.96 in favor of American Bank and against Sunbelt, Foster, and Kelly, with interest at 2% above commercial prime, and 25% attorney’s fees. We affirm the judgment of the trial court in overruling the exceptions of Foster and Kelly to the jurisdiction of the court, but reverse the judgment of the trial court granting summary judgment for American Bank, and remand the case for further proceedings.

JURISDICTION

American Bank contends the courts of this state have jurisdiction over Foster and Kelly under the Long-Arm Statute, LSA-R.S. 13:3201 et seq., and Foster and Kelly contend that due process under the Fourteenth Amendment to the United States Constitution acts as bar to this state’s having jurisdiction, and also that the Long-Arm Statute is not so broad as to confer jurisdiction under the facts presented in this case.

The facts of the case, as established by the trial on the exception to the jurisdiction, the transcript of which, together with exhibits, was used as well by mutual consent of plaintiff and defendants on motion for summary judgment may be succinctly stated as follows.

This suit involves an action by American Bank and Trust Company, Baton Rouge, Louisiana (“American Bank”): on a note against Sunbelt Environmental Systems, Inc., a Texas corporation; against Lynn Foster, a Texas resident, who is a shareholder in Sunbelt, who signed the note on behalf of Sunbelt, who personally endorsed the note, and who gave a continuing guaranty of the note; and James Kelly, a Texas resident who is a shareholder in Sunbelt and who gave a continuing guaranty of the Sunbelt note.

In early 1979, defendants Lynn Foster and James B. Kelly entered into various negotiations with Van Calhoun, Murry De-coteau, and Tom Nolan, residents of Louisiana, concerning the possible structure of a transaction involving several corporations owned by Calhoun, Decoteau, and Nolan. One of the corporations involved was American Environmental Systems, Inc., a Louisiana corporation. At the time of the negotiations, American Environmental Systems, Inc. was indebted to American Bank.

In March 1979, a letter of intent was given in which Kelly and Foster stated they had an interest in buying from Nolan, Calhoun, and Decoteau, stock in Environmental Resources Group, Inc., a Louisiana corporation (indebted to American Bank), which held as wholly owned subsidiaries American Environmental Systems, Inc., a Louisiana corporation, and American Environmental Systems Southwest, Inc., a Texas corporation. Various written drafts concerning the structure of the transaction went back and forth from Foster and Kelly, the Texas purchasers, to Calhoun, Nolan, and Decoteau, the Louisiana sellers.

On April 7, 1979, a draft of the purchase agreement was sent by Foster and Kelly to Nolan, Decoteau, and Calhoun. The draft contemplated an agreement “by and between Lynn Foster and James B. Kelly, on behalf of and as sole owners of a Texas corporation to be formed for the purposes of this transaction.”

As the transaction further evolved, Kelly and Foster agreed to purchase assets of American Environmental Systems. As part of the continuing negotiations, Mr. Melvin J. Marque, then a vice-president of American Bank, became involved and traveled with some of the sellers to Houston to meet with both Mr. Foster and Mr. Kelly; American Bank’s interest was in visiting those who were negotiating to buy the business and to check the inventory and accounts receivable that were then pledged to secure existing loans at American Bank.

Mr. Kelly later personally came to the Hilton Hotel in Baton Rouge to negotiate with Nolan, Calhoun, and Decoteau in April 1979; Mr. Marque was also present for some of these negotiations. At defendant James Kelly’s request, American Bank was asked to consider financing the acquisition by the Texas purchasers.

Eventually the transaction was structured so that Foster and Kelly would form a corporation, defendant Sunbelt Environmental Systems, which would buy the physical assets (but not the incorporeal assets) of American Environmental Systems. As part of the transaction, and in contemplation of American Bank’s financing the acquisition, Kelly and Foster sent their personal financial statements to American Bank. During the course of the various negotiations, there were several telephone conferences between Mr. Kelly in Texas and Mr. Marque in Louisiana. In September 1979, there was an attempted closing and on September 20, 1979, a note in the sum of $366,592.26 was signed by Lynn Foster on behalf of Sunbelt Environmental Systems, Inc. No money was ever disbursed on this note by American Bank.

Finally, in November 1979, Sunbelt Environmental Systems, Inc. through Lynn Foster, President, signed a negotiable promissory note in the sum of $366,592.96 payable to the order of American Bank and Trust Company, payable ninety days after date. Foster endorsed the note personally. This note was signed in Texas and hand-delivered to Melvin Marque, Vice-President of American Bank. Melvin J. Marque had telephone conferences with Mr. Kelly, Mr. Marque being in Baton Rouge, Mr. Kelly being in Texas, concerning the finalizing of the structure of the November closing.

The continuing guaranty of Lynn Foster and James Kelly was signed in Texas guaranteeing the Sunbelt note. As additional security, American Bank received continuing guarantees of the Sunbelt obligation from Decoteau, Nolan, Calhoun, and Bishop.

As part of the transaction and part of the continuing negotiations, Calhoun, Deco-teau, and Nolan (the Louisiana sellers), and Richard Bishop (a Texas resident and President of American Environmental Systems Southwest, Inc., an affiliated Texas corporation), had given a non-competition agreement to “James Kelly, Lynn Foster, and/or Dempsey Dumpster Systems, Inc.” The non-competition agreement prohibited Bishop, Nolan, Calhoun, and Decoteau from competing with Kelly, Foster or Dempsey Dumpster “within the boundaries of Texas, Oklahoma, or Louisiana for a period of three years” from the date that the transaction was to be consummated. In November 1979, within a week of the closing, Steve Robertson, the attorney for Sunbelt Environmental Systems, Inc. wrote a demand letter to Mr. Bishop seeking to enforce the non-competition agreement, and threatening to attach all funds in the hands of American Bank in Baton Rouge to be paid to Mr. Bishop or for his benefit.

As part of the November closing Mr. Marque, of American Bank, received a letter of instruction from Mr. Steve Robertson, attorney for Sunbelt, detailing how the funds generated by the Sunbelt note should be disbursed in order to comply with the Texas Uniform Commercial Code. This letter read as follows:

“American Bank & Trust Company One American Place, P.O. Box 591 Baton Rouge, LA 70821
Attention Mr. Melvin Marque, Jr.
RE: Trust Instructions, Sunbelt Environmental Systems, Inc., and American Environmental Systems, Inc.
Gentlemen:
Under separate cover you have received Sunbelt’s Security Agreement and note in favor of American Bank.
Those documents are delivered to you in trust to accomplish a bulk sale and purchase of certain equipment and inventory from A.E.S. In order to meet Sunbelt’s obligations under the Texas Uniform Commercial Code, to give Sunbelt good title to the property and your bank a valid first security interest in the property, the funds generated by the note must be paid out as follows:
1. A.E.S. creditors responding to the bulk sale notice must be paid or satisfied. They are:
a. Airkem, claiming $280.00
b. Allied Industrial, claiming $203,-009.82
c. Best Uniforms, claiming $673.54
d. Dempster Dumpster, claiming $65,542.80
e. Fabit Corporation, claiming $1,191.31
f. Fergies, claiming $1,462.66
g. Southwestern Controls, claiming $332.60
h. War-Pak, Inc., claiming $12,-108.85
It is our understanding that some of the above claims have been paid or substantially reduced since closing. Before any funds are paid to or for the benefit of A.E.S., you must have in your possession evidence of payment of the above claims or written release of the property and Sunbelt from the claims.
2. Secured creditors, if any, holding liens against the property must be satisfied. Their satisfaction may be evidenced by tender to you of termination of financing statements against the property.
3. The sum of $14,688.05 which is presently disputed between Sunbelt and A.E.S. involving certain goods listed on the sale inventory but not delivered. We fully expect this small item to be cleared up within ten days.
When the foregoing requirements have been met, you may pay the balance of the funds represented by the note to or for the benefit of A.E.S.
Sunbelt will bear the reasonable expense of obtaining and filing the above releases. Please tender to Sunbelt the release documents set out above with your accounting of disbursements of the funds represented by the note. Sunbelt will cause the appropriate documents to be filed in Texas.
Enclosed for your guidance in accomplishing these instructions, are:
1. Copy of Bulk Sale Affidavit Listing Creditors
2. Copy of Sale of Goods Agreement of July 26, 1979
Please call us if you encounter any difficulties with these instructions. Thank you for your good service.
Kindest regards,
McMullen, connally, Robertson,
HOLLIMAN & CAMPBELL, INC.
/s/ Steve Robertson
Steve Robertson
SR:lh
enc.
cc: Sunbelt Environmental Systems, Inc.”

In December of 1979 Mr. Marque left American Bank to become president of People’s Bank in New Roads; Mr. Cordell White, Vice-President of American Bank took over the loan and was involved with the funding of the Sunbelt note. Mr. White disbursed funds to various corporations although a dispute exists as to whether or not Mr. Robertson’s instructions were followed. The funds were disbursed by means of cashier’s checks, and each cashier’s check, with the exception of a cashier’s check payable to the order of A.E.S., was specifically shown by the testimony to have been cashed, so that’ the full face amount of the note was funded. After the funds were disbursed, Mr. White of American Bank had various long distance telephone conferences with Foster and with Foster’s attorney between January and June, 1980.

No payments were ever received by the Bank on the Sunbelt note. Foster came to Baton Rouge with his attorney to discuss the delinquent status of the Sunbelt note and the demand made by American Bank for payment. The Sunbelt note has never been paid and is in default.

The Long-Arm Statute of Louisiana, LSA-R.S. 13:3201 et seq., and those of other states, were enacted in response to the growth of interstate commerce and increased communication between the states, which new conditions were recognized in International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), which forms the judicial basis for a broadening of a state’s jurisdiction within due process requirements. International Shoe stated the question of whether or not due process was satisfied depended upon the quality and nature of the activity of the defendant in relation to the orderly administration of laws.

In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), it was stated that a defendant must have “minimal contacts” with the state in which the suit is brought to meet due process requirements. In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), the United States Supreme Court elaborated upon the test, stating that foreseeability to the defendant that he should reasonably anticipate being brought into court in the state in which suit was thereafter filed is critical to due process analysis. In both Hanson and WorldWide Volkswagen the Supreme Court found the state court seeking to exercise jurisdiction failed to meet due process requirements.

However, the factual situation of the present case is somewhat similar to Southern Investors II v. Commuter Aircraft Corporation, 520 F.Supp. 212 (M.D. La.1981), which, citing Standard Fittings Co. v. Sapag, S.A., 625 F.2d 630 (5 Cir. 1980), rehearing en banc denied 631 F.2d 732 (5 Cir.1980), cert. denied, 451 U.S. 910, 101 S.Ct. 1981, 68 L.Ed.2d 299 (1981), and Product Promotions Inc. v. Cousteau, 495 F.2d 483 (5 Cir.1974), stated that a two-part test is to be applied for determining whether the exercise of in personam jurisdiction would violate due process: (1) there must be a “minimum contact” from an affirmative act of the defendant, (2) it must be fair and reasonable to require the defendant to come into the state to defend the action. As was brought out by the court in Southern Investors II, the “presence” of the non-resident defendant within the state, i.e. his physical presence, at the time the acts giving rise to jurisdiction occurred is not controlling. It was held in Quasha v. Shale Development Corp. 667 F.2d 483 (5 Cir.1982) that even activities outside one state can fulfill the “minimum contacts” test if they have reasonably foreseeable consequences within the state.

Here, Foster and Kelly contend that as they were each in Louisiana on only one occasion, the “minimum contacts” test is not met. However, as we have seen, physical presence is not controlling. Clearly, Foster by endorsing a note payable to a Louisiana bank, and Foster and Kelly by signing a Continuing Guaranty in favor of that same bank, established “minimum contacts” with Louisiana, and should reasonably have anticipated being haled into a Louisiana court in the event of an alleged default in payment. Due process was clearly not violated by the Louisiana court’s exercise of jurisdiction. We find due process requirements were met.

However, Foster and Kelly contend that even if due process requirements were met, the requirements of the Louisiana Long-Arm Statute, LSA-R.S. 13:3201 et seq. were not. The requirement of the statute that is relevant to this case is the introductory portion and the thereunder stated sub-section (a) of LSA-R.S. 13:3201:

“A court may exercise personal jurisdiction over a non-resident, 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; ”

The Long-Arm Statute of Louisiana, it has repeatedly been held, permits the exercise of in personam jurisdiction to the full limits of due process in both contract and tort cases. Se, e.g. Mayeux v. Hughes, 333 So.2d 273 (La.App. 1st Cir.1976); Standard Fittings v. Sapag, S.A., supra, Southern Investors II v¡ Commuter Aircraft Corporation, supra. Thus, the Louisiana Long-Arm Statute confers jurisdiction in the present case.

Foster and Kelly’s exception to the jurisdiction of the court was properly overruled.

SUMMARY JUDGEMENT

We note in passing that by consent of all parties the transcript of the hearing on the exception to the jurisdiction of the trial court was used in deciding the motion for summary judgment. We have qualms about deciding the question of whether or not there exists a genuine issue of material fact (LSA-C.C.P. art. 966) on the basis of the transcript of a hearing held for another purpose, as defendants might have considered it unnecessary or without purpose to introduce evidence as to ultimate liability in a hearing on jurisdiction. However, the parties agreed to use the transcript. In view of the holding we make, we consider it unnecessary to mention the matter further.

Summary judgment may not be granted if there exists any real doubt as to the existence of a genuine issue of material fact. Vermillion Corp. v. Vaughn, 397 So.2d 490 (La.1981). All reasonable doubts are resolved against the granting of summary judgment. Walker v. Graham, 343 So.2d 1171 (La.App.3d Cir.1977). In the present case, the plaintiff sues for the sum stated on the face of the note, $366,592.96, plus interest and attorney’s fees. Yet, Foster testified he received the following two notices from American Bank:

None of the officers of American Bank who testified explained the disparity between the amount stated on the face of the note ($366,592.96) and the $250,000.00 sum which the notices indicated was due. It is true that the affidavit of Richard Wyatt, Assistant Vice President of American Bank, indicates that the note was written down as an accounting matter, but so to indicate does not explain the setting forth of a “Current Balance” of $250,000.00 in a notice to its debtor, who would be ignorant of the accounting practices employed within American Bank.

American Bank made disbursements to American Environmental Systems in the sum of $310,320.22 and $14,688.05, respectively, which disbursements were authorized to be made by Mr. Steve Robertson, attorney for defendants in executing the note, only in the event evidence was received of the payment of other claims listed in Mr. Robertson’s letter to American Bank quoted above, or a written release of property and Sunbelt from the claims. The evidence is equivocal as to whether or not such evidence was received in the case of all claims, and clearly no such written release or copy thereof is to be found in the record or exhibits. Indeed Cordell White, Vice President in Corporate Lending at the American Bank at the time the disbursements were made, testified there was a disputed claim between Sunbelt and A.E.S. involving certain goods not delivered by A.E.S. to Sunbelt. White testified he issued a cashier’s check for that amount, which he held in escrow. Yet the check in question, in the sum of $14,688.05, bears bank markings and an endorsement, the presence of which raises a genuine issue of material fact as to whether or not the cheek was received by A.E.S. and negotiated. As by White’s own admission the sum was to be held in escrow, further issues of material fact exist as to whether or not the American Bank properly issued the check, and whether or not therefore full consideration was received by Sunbelt for its having made the note. Also, the record and transcript leave lingering doubts on the question of whether or not evidence was ever received of payment of the other claims outstanding against A.E.S. or a written release was ever obtained, as Mr. Robertson’s letter was made a precondition to the release of sums to A.E.S. Thus, a genuine issue of the sufficiency of consideration exists, which can be resolved only by trial on the merits.

American Bank contends that want of consideration cannot be used by Sunbelt as a defense, as want of consideration is of no avail as against a holder in due course. The payee of a note may be a holder in due course. LSA-R.S. 10:3-302(2). However, we see that under the provisions of R.S. 10:3-305(1) a holder in due course does not take an instrument free from all defenses of a party with whom the holder has dealt. Thus, as American Bank has dealt with defendants all defenses available to Sunbelt and Foster may be asserted against American Bank. As there exists a genuine issue as to whether or not there was want of consideration, and as American has dealt with defendants, there exists an issue as to the validity or enforceability of the note sued upon which should not have been decided upon motion for summary judgment. Thus, summary judgment was rendered improperly.

The judgment of the trial court finding jurisdiction is affirmed, but the summary judgment granted below is set aside and reversed, and the case remanded, all costs to await final determination of the matter.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

ON REHEARING

We granted a rehearing because counsel for American Bank argued that failure or want of consideration cannot be a defense against a holder in due course. We have, upon further consideration, come to the conclusion that it is indeed the case that while possibly other defenses may be asserted against a holder in due course by a party with whom the holder in due course has dealt (by negative inference from LSA-R.S. 10:3-305(2)), failure or want of consideration is never a defense as against a holder in due course. See LSA-R.S. 10:3-306(c); Courtesy Financial Services, Inc. v. Hughes, 424 So.2d 1172 (La.App. 1st Cir.1982).

However, Courtesy Financial Services, supra, further holds that if a payee of an instrument takes the instrument from the maker, the payee is not necessarily a holder in due course, but is a holder in due course only if a maker with whom the payee has directly dealt has no valid defenses as against the payee arising from that dealing. As LSA-R.S. 10:3-302(2) states, “(a) payee may be a holder in due course.” (Emphasis added) In other words, the status of a holder in due course does not necessarily arise in favor of a payee. Especially is that the case if the party adverse to the payee is the maker of the instrument who has a valid defense, under the holding in Courtesy Financial Services, supra. Furthermore, one is a holder in due course only if he takes the instrument “without notice ... of any defense or claim to it on the part of any person.” LSA-R.S. 10:3-302(l)(c). Here, the American Bank clearly took the note knowing there would be a valid defense on the part of Sunbelt if all claims were not discharged in accordance with the instructions of Steve Robertson, counsel for Sunbelt. As we state in our original opinion, it is not clear whether the claims against AES, Sunbelt’s vendor in a sale in which American Bank was intimately involved, were discharged. Hence, under Courtesy, supra, the American Bank was not a holder in due course, and held the note subject to the allegedly valid defense on the part of Sunbelt that American Bank had failed to live up to the terms of the agreement to which it was a party.

We therefore reinstate our original judgment, at the cost of American Bank.

ORIGINAL JUDGMENT REINSTATED.


author: LOBRANO, Judge.

text:
    HARRY E. WOOD AND ASSOCIATES v. CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS, et al.
    No. CA-1268.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    On Rehearing June 6, 1984.

      Philip S. Brooks, Bruce M. Danner, Me-tairie, for plaintiff-appellee.
    Philip H. Kennedy, La. Dept, of Health & Human Resources, New Orleans, for defendants-appellants.
    Before GULOTTA, SCHOTT and LO-BRANO, JJ.
   LOBRANO, Judge.

On August 31, 1979 Harry E. Wood and Associates (hereinafter referred to as “Wood”) and Charity Hospital of New Orleans (hereinafter referred to as Charity) entered into a contract of lease whereby Wood was to install at Charity a device known as an “Eldon Heater”. The purpose of said device was to heat the water at a considerable cost savings over the conventional hot water system. In return, Wood was to receive a percentage of the monthly cost savings realized by Charity. Attached to the contract is an exhibit which sets out the necessary formulas to determine this cost savings.

The heater began operation on January 7, 1980 and shortly thereafter, on January 14, 1980 Charity ordered it shut down because of alleged water quality problems discovered on that date. The Eldon Heater was never again placed in operation at Charity Hospital. As a result, Wood filed the instant suit to recover those profits he would have realized from the costs savings during the contractual life of this lease (two years). Additionally attorney’s fees, expert fees and costs were sought.

Following a trial on the merits before Commissioner Anthony J. Vesieh, Jr., all counsel stipulated that the matter be submitted on transcript for decision before the Honorable Judge Robert Katz.

The trial judge found that Charity breached the contract of lease and awarded Wood $75,000.00 in damages plus $2,800.00 for modifications made to the Eldon Heater at Charity’s request. Additionally expert fees and attorney’s fees were awarded. From this judgment Charity appeals. Wood answered the appeal seeking an increase in damages, expert fees and attorney’s fees.

Charity argues that the lower court committed error in two areas. They contend first, that the “contract of lease” was not perfected in accordance with the requirements of State law for public bidding and was therefore null and void. Secondly they argue that they were excused from performance of this contract under the affirmative defenses of breach of contract by the lessor due to error, mistake and impossibility of performance.

VALIDITY OF THE LEASE

Although Charity concedes that the public official who signed the contract lease had the authority and capacity to do so, they contend that it was not perfected in accordance with the provisions of La. R.S. 39:171 et seq. (prior to their repeal by Act 715 of 1979 effective July 1, 1980) and executive order No. 28 in that the contract represents an unauthorized purchase within the intent of La.R.S. 39:191 and is therefore null, void and of no effect. We find, however, that the provisions of La.R.S. 39:185 are controlling in this situation. The pertinent portions of said statute provide:

“Every effort shall be made to obtain quotations from three or more vendors when commodities are to be purchased out of schedule, except when standard equipment parts for which prices are established or when the article needed is a patented or proprietary one and therefore obtainable from only one source of supply...”

The evidence clearly reflects that the Eldon Heater was of such a nature as to come under the “proprietary exception” of the above statute. Charity’s own witness, Kenneth C. DeJean, who was employed by the Louisiana Attorney General’s Office, stated that the contract of lease was submitted to him for review and it was determined after investigation, that the contract of lease was exempt from the public bid law. His testimony is best reflected in the following answer to Charity’s inquiry:

“Q. Would you be able to tell us now what your opinion was with regard to whether or not this item was required to go out on public bid?
A. We responded in the negative in that, because of the important proprietary nature, and the fact that the Eldon Heater was patented, it could only be acquired from a single source, that it would be futile to engage in any public bidding, and, therefore, the item could be acquired without necessity for going down on advertisements and receipt of sale bids.”

Mr. DeJean further explained that this characteristic, i.e. single source, in and of itself was sufficient to exempt the contract of lease from the state bid laws.

Charity further argues that the patent for this particular unit had not been obtained at the time the lease was executed, but was obtained sometime later. Since we find that the “proprietary interest” exception is sufficient to exclude this lease from the public bid laws in effect in August, 1979, it is not necessary to decide the “patent pending” issue.

SUITABILITY OP THE ELDON HEATER

Breach of contract, error and mistake, and impossibility of performance are affirmative defenses. As such, the burden of proof is upon the party who asserts them, which burden must be maintained by a preponderance of the evidence. La.C. C.P. Art. 1005; Prestenbach v. Sentry Ins. Co., 340 So.2d 1331 (La.1976). Charity contends that the Eldon Heater was not fit for its intended purpose. More specifically they argue that the water heated by the unit is not compatible with the needs of Charity Hospital, and that it is detrimental to both human life and equipment.

It is not disputed by any of the parties that on January 14, 1980, approximately one week after the unit was put on line that the water quality at Charity Hospital deteriorated. The record reveals that on that date Wood agreed to shut down his heater because of the presence of an oily discolored appearance, objectionable taste and smell and the presence of gritty, sooty particles in the hot water. Wood contends, however, that Charity failed to prove by a preponderance of the evidence that this condition was caused by the Eldon Heater. In fact he alleges that problems other than his heater were the actual cause.

The majority of the evidence submitted by Charity consisted of expert testimony, in one form or another, as to the effect the poor water condition would have on the hospital patients and equipment, particularly the plumbing. A review of that testimony fails to substantiate the allegation that the poor water quality experienced on the 14th of January, 1980 was caused by the Eldon Heater.

Mr. Michael Epton, a graduate chemist, employed as laboratory supervisor of the New Orleans Sewerage and Water Board obtained water samples from Charity after receiving complaints. He ran tests on those samples the result of which show that the water from the cold water tap had no unusual peculiarities, whereas the hot water showed significant changes in turbidity, pH, CaCo3 and a Langler Index of negative 1.68. Without going into great detail about the various effects this quality of water might have at Charity, suffice it to say all parties agree that it would not be compatible with Charity’s needs. The issue, however, is whether Mr. Epton’s testimony supports Charity’s allegation that the Eldon Heater caused the deteriorated conditions. In this regard Mr. Epton responded that he never examined the heater, and that “I speculated that the Eldon Heater was causing the pH to decrease.” Mere speculation is not enough. Charity also presented the testimony of various other witnesses, none of whom did a detailed examination of the heater, or who could opine that it was the cause of the problems.

Warren Lawrence, Supervisor of Plumbing with the Sewerage and Water Board, only testified about the plumbing requirements necessary to put that heater, or any heater, on line. Nothing in that testimony substantiated causation.

Raymond Manning works in the office of Hospital Infection Control at Charity. He testified that on the morning of the 14th, he was able to discern certain sandy, gritty particles in the bottom of a whirlpool.

Lee Fournet, employed by the Office of Licensing and Regulation, Department of Health and Human Resources, opined that the depressed pH came from the boiler system. He stated that there would be any number of reasons why a boiler will soot, even though it is perfectly calibrated, and perfectly tuned for complete combustion.

The opinion of Paul Gilbert, Chief Chemist of Gessco Chemical Company, is based strictly on theory and not on any examination or tests of the Eldon Heater. Of importance is his report of March 21, 1980 done at the request of Charity dealing with the effects of exposing water to flue gases. That report was based on certain assumptions which were never proved to exist in the instant ease, particularly the assumption of “maximum saturation” of the water.

Frank Wessels, district manager of BETS-ENTEC and an expert in water treatment, testified the drop in pH had to originate from C02 entering the system in the makeup of feedwater. He gave no definite conclusion as to cause of the excess C02 entering the system.

The remainder of Charity’s witnesses were all personnel who worked at the hospital and who testified about the quality of the water on the 14th, but not its cause.

On the other hand, Wood presented convincing evidence through his own testimony, and that of Dr. Jacobus, that the water problems at Charity were not caused by the Eldon Heater, but originated from other sources particularly incomplete combustion in boiler No. 3. The record clearly substantiates the following facts. First, the Eldon Heater uses the flue gases from the existing boilers at Charity to heat the water. There are no chemical by products from this system, as the heater merely mixes the water that is fed to it with the boiler gases, thus causing the temperature to rise. Secondly, the heater operated from January 7, 1980 until January 14, 1980 without any problems. Third, sometime immediately prior to the problems developing on the 14th, boiler No. 3 went into operation. Shortly thereafter the Eldon Heater was shut down. Subsequently it was discovered that a piece of insulation had fallen on the intake vent of that boiler causing approximately 90% blockage.

Dr. Jacobus, Head of the Chemistry Department at Tulane University, and an admitted expert in patent readings and biochemistry concluded that incomplete combustion in boiler No. 3, caused by the blockage of the air intake, introduced soot into the Eldon Heater which was then transferred to the hot water system at Charity. This caused the oily odor, taste and appearance.

Dr. Jacobus also testified that since the Eldon Heater strips the oxygen out of the water, and since the water itself goes through a water softener prior to entering the system it (the heater) could not have caused the drop in pH. This view directly contradicts that of Mr. Wessel who testified that the pH drop was the result of the increased C02 concentration produced by the heater. Dr. Jacobus, however, pointed out that the heater cannot produce any by products, and it only utilizes what is given to it, namely flue gases and water.

After reviewing the record we are convinced that Charity failed to prove that the Eldon Heater was the “culprit”. Even though the manifest error rule does not apply in this case since the trial judge made a determination from the same “cold record” we have reviewed, we find no fault in his decision. See, Schwarz v. Bourgeois, 422 So.2d 1176 (La.App. 4th Cir.1982).

DAMAGES

Wood answered this appeal requesting that we raise the award of $75,000.00 granted by the trial judge to $170,049.75. This latter figure is based upon the amount of savings generated during the one week operation of the heater and then computing what that savings would generate over a two year period, the term of the lease. We agree with the trial judge that the lease was subject to numerous variables which would have permitted cancellation in whole or in part by Charity. We therefore disagree with Wood that this is a ease in which the damages are susceptible to a strict mathematical calculation. We find no abuse in the award, and therefore affirm the judgment of $75,000.00 in addition to the $2,086.00 awarded for modifications made by Wood at Charity’s request.

Dr. Jacobus was awarded $3,500.00 and Mr. Wolfe was awarded $500.00 as expert witness fees. The court may tax the reasonable costs of time spent by the expert in gathering facts necessary for his testimony but not for time spent in consultations which only assists the attorney in preparation for the litigation. Additionally a court will award expert witness fees when the witness is in court testifying or in court waiting to be called to testify. But expert witness fee will not be awarded to an expert after he has testified even though he stays in court only for the purpose of consulting with the party who summons him. State Department of Highways v. Whitman, 313 So.2d 918 (La.App. 2nd Cir.1975).

The record reflects that Dr. Jacobus testified for approximately 4 hours. He also claimed 71 hours was spent in preparation for his testimony at trial.

Under the holding of Whitman, supra, we feel the award of $3,500.00 was reasonable, and therefore affirm same.

For the same reasons we hold the award to Mr. Wolfe of $500.00 was neither excessive nor inadequate.

Lastly, we turn to the issue of attorney fees. The lease provides for reasonable attorney fees in the event of failure by either party. The trial court awarded $8,500.00 to Wood’s attorneys. Because of the complexities of this case, and the amount of time necessary to prepare for same, we feel the award is inadequate. The time records submitted indicate a total of 82 hours were utilized in pre-trial preparations as well as 60 hours of actual trial time. In addition 30 additional hours were utilized in post trial work and appellate work. We conclude that attorney fees in the amount of $75.00 per hour is reasonable for both in court and out of court time, and therefore increase the award to $12,-900.00.

Accordingly the judgment of the lower court is amended to increase the attorney fees to $12,900.00. In all other respects it is affirmed.

AMENDED AND AS AMENDED AFFIRMED.

ON REHEARING

We granted a rehearing in this matter to reconsider our original holding which affirmed the trial judge’s award of $75,000.00 for lost earnings. Appellant, Harry E. Wood and Associates (Wood) argues on rehearing that his award should be $170,-049.75 as determined in accordance with the provisions of paragraph 17 of the lease. That provision states:

“Should lessee fail to perform any of the terms and conditions hereunder, and such default continued (sic) for ten (10) days after written notice thereof, then Lessor shall receive, provided that Lessor’s equipment shall remain in place and in operating condition, an average monthly rental during such period in which default exists, and all reasonable attorneys’ fees for the enforcement thereof. The monthly rental referred to above shall be the average of the previous twelve (12) monthly gas savings computed at current costs.”

Wood argues that the parties to the contract agreed to the above provision as “liquidated” or “stipulated” damages as provided by La.C.C. Art. 1934(5). Appellees, Charity Hospital of Louisiana (Charity) respond that the amount of damages are not a sum certain, and are insusceptible of determination since the heater was in operation only a week, thus the trial judge had discretion in his award of damages. See, Singleton v. Townsend, 339 So.2d 543 (La. App. 4th Cir.1976).

The measure of damages for breach of contract is provided in Civil Code Article 1934. That article provides in part:

“Where the object of the contract is anything but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived ...”

Subsection five (5) of that article, relied on by Wood provides:

“Where the parties, by their contract, have determined the sum that shall be paid as damages for its breach, the creditor must recover that sum, but is not entitled to more. But when the contract is executed in part, the damages agreed on by the parties may be reduced to the loss really suffered, and the gain of which the party has been deprived, unless there has been an express agreement that the sum fixed by the contract shall be paid, even on a partial breach of the agreement.”

The trial judge in his reasons for judgment, concluded that “... the computation by the plaintiff for his lost earnings is not a precise figure and the Court exercises its discretion in awarding lost earnings in the sum of $75,000.00.” We must agree with the lower court’s reasoning in this regard. Paragraph 17 of the lease agreement does provide a formula for determining Wood’s loss in the event of default by lessee. However, since the unit was in operation only a week, it is not possible to determine the “monthly rental” figure. That figure was to be determined using an average over a 12 month period. The parties agreed to this and the courts will not intervene to relieve a party of a bargain.

However, we do feel that the trial court was in error in failing to award Wood the total loss he sustained as a result of the breach by Charity. Clearly, the $75,000.00 award was for the earnings lost by Wood in not being able to operate his heater for the two year period of the lease. In addition to the lost profit, Wood incurred installation expenses of $53,121.00, insurance expenses of $5,133.00, and removal costs in the amount of $6,700.00. We do agree that in accordance with the first paragraph of Civil Code Article 1934, cited above, these amounts are part of the loss he has sustained.

Accordingly we amend our original judgment in this matter to increase Wood’s award from $77,086.00 to $142,040.00. In all other respects we reaffirm our original judgment.

'AMENDED AND AS AMENDED AFFIRMED.

      . We do note that it was shut down approximately 21 hours during this time for adjustments and/or repairs.

      . The original award was $75,000.00, plus $2,086.00 for modification expenses.


author: WATKINS, Judge. WATKINS, Judge.

text:
    DEPARTMENT OF HEALTH AND HUMAN RESOURCES—South Louisiana Medical Center v. Blaz Z. TOUPS.
    No. 83 CA 0522.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    On Rehearing June 26, 1984.
    See also, 421 So.2d 936.
    Steven L. Mayer, Dept, of Health & Human Resources, Baton Rouge, for first appellant.
    David W. Arceneaux, P.C., Houma, for second appellant.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall, Director of the Dept, of State Civil Service.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Blaz Z. Toups, an employee who worked as Police Officer I in the security department of the South Louisiana Medical Center (SLMC), was discharged from his employment at that hospital by the appointing authority, the State Department of Health and Human Resources (DHHR), by letter of termination dated July 1, 1982. Mr. Toups appealed to the Civil Service Commission (Commission), which ordered that he be reinstated, and awarded $250.00 as attorney’s fees. Both the DHHR and Toups appealed. We affirm the reinstatement of the discharged employee, and increase the amount awarded as attorney’s fees to $1,000.00.

Blaz Z. Toups was hired as Police Officer I at the SLMC in 1979 but was terminated from his position by letter of termination dated September 26, 1980, because he worked for the National Guard during the day and was consequently able to work in his employment at the SLMC only at night. That fact was known to the appointing authority when Toups was hired, and, in fact, before his termination on September 26, 1980, Toups secured approval of the DHHR before reenlisting in the National Guard, again with the understanding that he would work at the SLMC only at night.

After a full hearing of a prior appeal of Toups concerning the prior discharge, the Commission ordered on May 21, 1982, that Toups be reinstated to his former position on the night shift. Toups was permitted by the appointing authority to work the night shift only one night after the ordered reinstatement (on the night of June 23-24, 1982), and then was ordered to work the day shift, which he secured the permission of his supervisors in the National Guard to do for one day, June 24, 1982. On the following day, June 25, 1982, Toups was unable to report for work during the day shift as he had drill. The same was true of the next day, June 27, and Toups likewise failed to report for work during the day shift on following days. On July 1, 1982, the letter of termination from which the present appeal is taken was sent to Toups.

At the hearing before the Commission, the DHHR first moved for summary disposition, on the ground that Toups admitted the letter of termination dated July 1, 1982, was correct in its assertion that Toups failed to report for duty. However, the Commission properly noted that Toups might have had a valid reason not to report to work during the day shift, as he in fact did. Summary disposition was properly denied.

At the hearing, the DHHR next sought to delve into the events that took place before the issuance of the first opinion of the Commission, which was dated May 21, 1982. The Commission ruled testimony of that nature irrelevant and, hence, inadmissible. This ruling is correct. The DHHR failed to appeal the Commission’s opinion of May 21, 1982, and thereby permitted that holding to become final. Furthermore, the questions sought to challenge the correctness of findings of fact made by the Commission in a separate proceeding in which no appeal was taken. The findings of the Commission made after the prior hearing were final, as no appeal was taken to the First Circuit Court of Appeal, timely or otherwise. The matter was properly held not susceptible of being reopened.

The Commission correctly noted that the DHHR by permitting Toups to work the night shift only one night acted in flagrant disregard of the Commission’s order of May 21, 1982, which directed that Toups be reinstated to his former position working the night shift. Such direct disregard of a ruling of the State Civil Service Commission deprives the Commission of its powers, and thus its functions, and cannot be countenanced. We annex with approval the opinion of the Commission dated March 18, 1983, which properly indicated disapproval of the action of the appointing authority, and ordered Toups reinstated for the second time.

The DHHR contends that it is free under Rule 8.16(b) of the Commission to change the work hours of any employee at will. That rule reads as follows:

“(b) Change in Hours of Work
An appointing authority may at his discretion and in the best interest of his department’s program change the hours of work of any employee if no change in his class of (sic) position is affected.”

However, the final ruling of the Commission dated May 21, 1982, from which the DHHR did not appeal, ordered that Toups be reinstated to the night shift. As that opinion is final, the applicability of Rule 8.16(b) may not be reurged. Furthermore, the evidence taken at the hearing resulting in that opinion from which the DHHR now appeals showed unequivocally that Toups was hired as Police Officer I with full knowledge and consent of the appointing authority that he work only the night shift. It is far too late for the DHHR to complain.

With respect to attorney’s fees, LSA-R.S. 42:1451 permits the award of reasonable attorney’s fees incurred by the employee in the appeal by the employee to the State Civil Service Commission if the action of the appointing authority is overruled and the appointing authority is found to have acted unreasonably. Rule 13.35 of the Commission limits the award of attorney’s fees to be paid by an appellee to the Commission to $500.00. The two rules are to some extent in conflict. For purposes of the present case, we elect to follow the statute, in view of the magnitude of legal work involved in the present case. Consequently, we award Blaz Z. Toups attorney’s fees in the sum of $1,000.00.

The opinion of the State Civil Service Commission is amended to award Blaz Z. Toups the sum of $1,000.00 attorney’s fees, and, as thus amended, the opinion is affirmed.

AMENDED AND AFFIRMED.

STATEMENT OF THE APPEAL

Appellant was employed by the Department of Health and Human Resources as a Police Officer I at South Louisiana Medical Center and was serving with permanent status.

By Commission opinion filed May 21, 1982, appellant was reinstated to his position as Police Officer I from which he had been terminated on September 26, 1980. The Commission further ordered that he be reinstated to his former position on the night shift.

By letter dated July 1, 1982, over the signature of Charles H. Oliver, Hospital Director, appellant was advised that he would be terminated from his employment effective at 4:30 p.m. on that date. As reason for this action, appellant was charged with refusing to report to his scheduled duty as ordered. The letter further states that by letter dated June 16, 1982, appellant was ordered to return to work on June 21, 1982 at 8:00 a.m., but by letter dated June 22, 1982, appellant indicated that he had not received the June 16, 1982 letter. By letter dated June 24, 1982, from appellant’s attorney, the Hospital was advised that appellant would report to the personnel officer at 8:00 a.m. on June 23, 1982 “for the sole purpose of establishing a date and time for an orientation meeting.” At that meeting, appellant was instructed by Lieutenant Roddy to report to work that night at 10:30 p.m. to serve on the night shift. On June 24, 1982, Lieutenant Roddy then instructed appellant to report to work on the rotating shift which would be his permanently assigned shift. That particular shift was working days through July 4, 1982 and then would revert to the night shift. Appellant appeared for work at 6:15 a.m. on June 25, 1982, as ordered; however, he failed to report to duty on June 26, 27, 28, 29 and 30, 1982. Appellant called in each morning to advise that he was working with the National Guard, but was told by his shift supervisor that the time being taken off was unauthorized. On June 30, 1982, a letter from the Hospital Director was delivered to appellant at the National Guard Armory where he was working, advising him that any further unauthorized absences would severely jeopardize his position. On July 1, 1982, appellant again telephoned that he could not report for work as scheduled.

On July 30, 1982, appellant filed a notice of appeal, through counsel, complaining of his termination. As the basis for appeal, appellant alleges that immediately upon being reinstated, appellant’s working shift was changed from the night shift to the day shift and he was not permitted to work a single night shift as ordered by the Commission. Appellant also alleges that he is employed by the Louisiana National Guard during the hours which constitute the day shift and prior to his suspension in 1980, he did not work the day shift. The letter further alleges that the change in shift was intended to force appellant to absent himself from his employment at the Medical Center, and thus justify his termination. As relief, appellant seeks reinstatement with full back pay and all other emoluments of his position. Appellant also requests assignment of reasonable attorney fees.

On January 17,1983, counsel for appellee filed a Request for Summary Disposition on the ground that because appellant failed to deny the charges against him, there were not material facts in dispute, and therefore, the appeal is moot and appellant had no right to appeal.

A public hearing on the merits was held before the Commission in New Orleans on January 18, 1983. Argument on the Request for Summary Disposition was presented at the outset of the hearing and the Request for Summary Disposition was denied. Based upon the testimony received and evidence presented, the Commission makes the following findings.

FINDINGS OF FACT

1. Charles H. Oliver, Hospital Administrator and Director of South Louisiana Medical Center in Houma, and Paul Roddy, Shift Commander at the Hospital were both aware that this Commission ordered the appellant to be reinstated to his former position of Police Officer I, and to be placed on the night shift. The reasons for the Commission’s findings in this previous order have not changed and both of these administrators at the Hospital were aware of the Commission’s order and findings. The Commission’s opinion had been issued on May 21, 1982.

2. On June 23, 1982, appellant was put back to work for one night only on the night shift. The very next day, appellant was instructed by Lieutenant Roddy to report to the shift of Shirley Thompson, which would be a rotating shift and would originally be working days.

3. Appellant advised both Lieutenant Roddy and Mr. Oliver that he was under a signed contract working full time during the day at the National Guard as he had been before his previous appeal, which eventuated in this Commission’s order dated May 21, 1982.

4.When appellant was unable to comply with his transfer to his day shift, he was terminated effective July 1, 1982.

CONCLUSIONS OF LAW

The appointing authority has not attempted to comply with the previous opinion issued by this Commission. This Commission orders, therefore, that appellant be reinstated with all back pay from the date of July 1, 1982 through the date of the issuance of this opinion, and that he be reinstated and assigned to the night shift at the Hospital as previously ordered by the Commission in the May 21, 1982 opinion. The appointing authority shall be bound by this opinion to maintain appellant on the night shift so long as this particular contract with appellant declares that he has signed with the National Guard is in effect. Appellant is ordered to produce a copy of the contract now in existence for the appointing authority’s examination upon his return to duty at the Hospital. At the expiration of the present contract with the National Guard, then the appointing authority is released from the requirements to maintain appellant on night shift and appellant, at that time, must make a choice of which job he prefers to maintain if the hours of duty are in conflict.

Due to the flagrant disregard by the appointing authority, the Commission orders that appellant be awarded attorney’s fees in the amount of $250.00, in addition to the back pay. The appointing authority is allowed to offset any other wages earned by appellant since his termination during the evening shift hours.

s/ James R. Smith James R. Smith, Chairman

s/ Watson S. Finister, Jr. Watson S. Finister, Jr., Vice-Chairman

s/ A.J. Capritto A.J. Capritto, Member

s/ David D. Duggins David D. Duggins, Member

Commissioner Edwin C. Harbuck concurs with the opinion but would have declined the award of attorney fees. Commissioner Marshall J. Ryals dissents from the majority opinion without assigning reasons. Commissioner James A. Smith was absent and does not participate.

ON REHEARING

WATKINS, Judge.

The statute that we based our award of attorney’s fees upon, LSA-R.S. 42:1451, was declared to be unconstitutional under the Louisiana Constitution of 1974 in the case In re Appeal of Brisset, 436 So.2d 654 (La.App. 1st Cir.1983). Accordingly, the award of attorney’s fees in the present case can be no greater than the maximum sum provided by Rule 13.35 of the Louisiana Civil Service Commission which is $500.00.

We therefore amend our judgment to reduce the sum awarded to Blaz Z. Toups as attorney’s fees to $500.00. In all other respects our original judgment is reinstated.

JUDGMENT AMENDED AND REINSTATED.


author: BOWES, Judge.

text:
    STATE of Louisiana v. William PETERSON a/k/a Bill Lance.
    No. 83-KA-672.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.
    Rehearing Denied July 17, 1984.
    William C. Credo, III, Louise Korns, Asst. Dist. Attys., Gretna, for the State.
    Joseph L. Montgomery, Staff Appeals Counsel, 24th Judicial Dist. Indigent Defender Bd., Gretna, for defendant.
    Before KLIEBERT, BOWES and CUR-RAULT, JJ.
   BOWES, Judge.

Defendant, William Peterson, a/k/a Bill Lance, along with a co-defendant, Robert L. Gordon, were, on May 18, 1982, charged by a bill of information with a violation of R.S. 14:64, armed robbery. On November 2, 1982, a defense “Motion to Quash Bill of Information/Suppress Confession, filed by Peterson, was tried and, on the following day, denied. Subsequently, on March 24, 1983, pursuant to a plea bargain, defendant Peterson withdrew his plea of not guilty and entered a plea of guilty to a reduced charge of simple robbery (LSA R.S. 14:65) but reserving his right to appeal under State v. Crosby, 338 So.2d 584 (La.1976) the adverse ruling on his motion to suppress (Assignment No. 1).

In 1980, William Peterson was charged with federal mail fraud and entered into a federal plea bargain agreement, in which he was granted immunity from prosecution. At the plea bargain session, Mr. Peterson was encouraged by his then attorney, Mr. James McPherson, to make a full disclosure of all federal and state criminal activity of which he was then aware [Mr. Peterson was encouraged “to come to Jesus” (the federal government) and to even ‘tell about the Kennedy assassination’ if he knew anything about that].

The pertinent portion of the plea bargain executed by the defendant and the U.S. Justice Department attorneys follows:

c. The Government will not prosecute the defendant for any and all criminal violations based upon information and testimony and evidence derived therefrom provided by the defendant during the course of his cooperation with law enforcement, [emphasis ours].

Mr. Peterson continued to be a cooperating federal witness up until his arrest by the Jefferson Parish authorities on or about April 28, 1982.

In August 1981, during the period Mr. Peterson was cooperating as a federal witness, and under his federal immunity, the defendant had occasion (via a letter) to advise Mr. Glenn Burns, a federal prosecutor, of a certain armed robbery in which he had been involved some years before (July 1979) in Jefferson Parish, La. The letter implicated Robert Gordon, who was, then, also under federal investigation and was written by Mr. Peterson in an attempt to underscore his warning to the federal authorities that agents attempting to arrest Mr. Gordon should consider him armed and dangerous. The letter also detailed other information relative to Gordon such as where some guns might be hidden, other crimes in which the two were involved and leads on the whereabouts of Gordon’s parents (and hence to the whereabouts of Gordon himself).

At the time Peterson wrote the inculpato-ry letter to the U.S. Attorney, he was in jail awaiting a hearing on a motion to have his sentence reduced. He had already given the government all the information he had on the airline ticket/mail fraud and, in July of 1981, one month before his scheduled sentence reduction hearing, Peterson had supplied to the federal authorities valuable information which enabled them to thwart the planned take-over of Dominica by a band of mercenaries.

Peterson’s sentence reduction hearing was to have been held August 19, 1981, but, for some unknown reason, was delayed. During the period August 19-24, 1981, Peterson stated (in his letter) that he was not permitted to contact his attorney or anyone on the New Orleans federal strike force; he did not know why his hearing had been postponed; and, as evidenced by the contents of his letter to Glen Burns, was beginning to panic.

It is obvious to us that Peterson’s letter of August 24, 1981, to Glen Burns, represented a last ditch effort by Peterson to further convince the federal authorities that he had indeed disclosed to them all information regarding criminal activity which he possessed, and that, because of this cooperation, he expected them to honor their end of the bargain and assist him in having his sentence reduced.

We find it significant that Peterson’s sentence was reduced the next week following his letter, and, shortly thereafter, Peterson, after being briefly held on two de-tainers by Jefferson Parish, was released to return to his home in New Jersey (both charges were dismissed with the assistance of a letter dated September 24, 1981, from the U.S. Department of Justice to the Jefferson Parish District Attorney’s office).

The defendant-appellant was finally arrested on the armed robbery charge at 8:30 p.m., April 28,1982. Mr. Peterson testified that he had been advised by attorneys employed by the U.S. Justice Department that he would probably be arrested by Jefferson authorities for armed robbery, but his arrest would simply be a matter of formality and that, as in September of 1981, the charge would be dropped and he would be released. In fact, Mr. Peterson was arrested by Jefferson authorities while he was in the U.S. Attorney’s office.

The following is of monumental import. We find the evidence and testimony made evident that both Peterson and the federal authorities considered him still bound by his plea bargain in April 1982. This is substantiated by the fact that the federal authorities, on April 23, 1982, transported Mr. Peterson to New Orleans from New Jersey, where he was then living, to testify for the government. Additionally, after Peterson arrived in New Orleans, he was used by the P.B.I. to tape a conversation with Robert Gordon, thus still evidencing complete cooperation in accordance with the plea bargain agreement.

It was only after the conversation with Gordon was taped that the inculpatory letter of August 1981 was turned over to Jefferson authorities and Peterson was arrested.

There is little doubt in our minds the only reason William Peterson cooperated with Jefferson Parish law enforcement personnel and gave them a confession was he believed he still had immunity and was simply completing some “formalities” in order to effect his release. He was too well-schooled in criminal activities to do otherwise. Further, we find the conclusion inescapable that the only evidence the state had against Mr. Peterson arose directly out of the federal investigation in which Peterson had been granted immunity. At the suppression hearing, Jefferson Parish assistant district attorney, Gordon Konrad, testified as follows:

Q. Now with respect to the armed robbery matter, are you aware of the circumstances under which it came to the attention of the District Attorney’s office?
A. Yes.
Q. Could you describe those circumstances for me please.
A. I was contacted either Mr. Mamoul-ides asked me to contact, I think it would have been Mr. A1 Winters with the U.S. Attorney’s office in New Orleans and after that contact he said that or asked if I would come over to their office, that during the course of a matter in which they were investigating and prosecuting they had uncovered evidence of what appeared to be an armed robbery in Jefferson Parish and they wanted to disclose that to our office and I went over and called, or prior to going over I called the detective bureau for Jefferson Parish and told them the situation and asked if they would assign an officer to the matter to go over with me because the U.S. Attorney at that time couldn’t pinpoint the date, place, victim of the armed robbery, as I recall it. I met with Mr. Winters along with one or two other assistants with the U.S. Attorney’s office and Detective Gordon....
Q. What evidence did you receive of the armed robbery?
A. They said someone that was prepared to testify for them or had cooperated with them in the past to disclose to them facts surrounding an armed robbery that had occurred a number of years before in the parish of Jefferson. They gave me a copy of a letter which I think this is a Xerox of the same letter. This letter marked D-5. They also had a transcript of tape which I understand had been recorded during a conversation between Mr. Peterson and they didn’t refer to him as Mr. Peterson. They referred to him as, what is the other name on the bill?
Q. Mr. Lance.
A. I think it was Mr. Lance between Mr. Peterson and Mr. Gordon and it was a partial transcript of that tape that was furnished to me that day.
Q. Now had you had any knowledge of the armed robbery before the letter D-5 and the transcript of the tape were given to you by the U.S. Attorney?
A. I personally didn’t have any. I was not aware of the armed robbery, no.

MR. WILSON:

Q. Isn’t it a fact that outside of this letter you would never have learned of this armed robbery?
A. I don’t have any idea whether we would have learned of the armed robbery in another way....

Additionally, the facts that no charges were filed against the defendant before April 1982 and that the robbery had taken place one year prior to the plea agreement, two years prior to the letter and almost three years prior to the indictment, buttress our conclusion that the state authorities had no independent information or evidence which would have focused their investigation on Mr. Peterson.

Although we have found no Louisiana cases on point, there are a number of federal cases which have dealt with the issue of cross-jurisdictional immunity. In Murphy v. Waterfront Com’n of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), the court was presented with “the fundamental constitutional question of whether, absent an immunity provision, one jurisdiction in our federal structure may compel a witness to give testimony which might incriminate him under the laws of another jurisdiction.” The defendant-petitioners had been given immunity from prosecution under the laws of New Jersey, but still refused to testify because their statement might tend to incriminate them under federal law. The court held “that the constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law.” Supra, 84 S.Ct. at 1609. This holding squarely meets the provision of La.C.Cr.P. Article 703(B) which mandates that a motion to suppress must be based on a constitutional ground.

While the aforementioned case dealt with the circumstances surrounding the making of an inculpatory statement, a second line of federal caselaw deals with the viability of information gained as the result of a defendant’s confession. In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the court sought to resolve “whether testimony may be compelled by granting immunity from the use of compelled testimony and evidence derived therefrom (“use and derivative use” immunity), or whether it is necessary to grant immunity from prosecution for offenses to which compelled testimony relates (“transactional” immunity) [citation omitted]”. The court found that once a defendant had testified under a state grant of immunity on matters related to a federal investigation, it was incumbent on the federal authorities who wished to prosecute the defendant to prove that their evidence was not tainted because they had an independent source of information. “This burden of proof ... is not limited to a negation óf taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." (Emphasis ours) Supra, 92 S.Ct. at 1665. Not only was the federal prosecutor barred from using the statement as an investigatory lead, but also from the use of any evidence garnered by virtue of the investigation having been focused upon him following his statement. See also Appeal of Starkey, 600 F.2d 1043 (8th Cir.1979); Gunsby v. Wainwright, 596 F.2d 654 (5th Cir.1979); United States v. Jones, 542 F.2d 186 (4th Cir.1976); and United States v. Barker, 542 F.2d 479 (8th Cir.1976).

United States v. Barker, 542 F.2d 479, 482 & 483 (8th Cir.1976) held that “[i]t is clear beyond doubt that one sovereign’s grant of immunity is not ipso facto binding on another sovereign.” _ “It is also clear, however, that once a state does compel a defendant’s testimony through an immunity grant, the federal Government cannot take advantage of that testimony in order to obtain a conviction.”

Three years later, in Appeal of Starkey, supra, the same court stated:

[5,6] The prosecuting government bears a very heavy burden in proving, once a witness has been given immunity, that subsequent evidence against that individual is not “tainted” by the immunized testimony, [citations omitted]. In order to meet this burden, the prosecuting government must show it did not use any immunized testimony, directly or indirectly, as an investigatory lead, or to focus investigation upon a person. Kastigar v. United States, supra....

While it is repugnant to this court to order the repression of admissions of guilt by a repeated lawbreaker, the law and jurisprudence that control the decision in this case leaves us no choice. Because the defendant, William Peterson, believed that he had total immunity and because of the complete absence of any independent information whatsoever, we are compelled to conclude that the use of the defendant’s letter and statement as evidence or as an investigatory lead to focus investigation upon Peterson in connection with this armed robbery charge, violated his Fifth Amendment right against self-incrimination and therefore should have been suppressed. To do otherwise would sanction a clear breach of good faith by federal authorities and greatly discourage informers from giving valuable information to law enforcement authorities. We feel this would militate strongly against the public interest.

In so holding, we do not intend to criticize the office of the District Attorney in Jefferson Parish for prosecuting Peterson. We can understand how they considered it their duty to prosecute in light of the information given them by federal authorities. Nevertheless, it is the duty of the courts to strike down such prosecution where it is manifestly violative of a defendant’s constitutional rights, as in this case.

Because of our ruling herein, we find it unnecessary to address appellant’s second allegation of error that the trial judge failed to properly delineate his reasons in imposing sentence, which sentence he claims was nonetheless excessive.

Accordingly, for the reasons stated above, we reverse the ruling of the trial judge on the motion to suppress, order the suppression of the defendant’s inculpatory letter of August 24, 1981, his confession following his arrest, and any and all evidence derived from either of these sources. Further, we vacate the defendant’s plea and sentence and remand this ease for proceedings consistent with this opinion.

REVERSED, VACATED AND REMANDED.


author: GAUDIN, Judge. CURRAULT, Judge,

text:
    STATE of Louisiana v. Walden SCOTT.
    No. 83-KA-637.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.
    Writ Granted June 15, 1984.

      George E. Escher, Katner & Escher, New Orleans, for appellant.
    John M. Mamoulides, Cornelius Regan, William C. Credo, III, Gretna, for appellee.
    Before KLIEBERT, CURRAULT and GAUDIN, JJ.
   GAUDIN, Judge.

Appellant is Walden A. Scott, who was convicted of obtaining a controlled dangerous substance by misrepresentation, fraud, forgery, deception or subterfuge, as prohibited by LSA-R.S. 40:971B(1).

On appeal, he assigns three errors:

(1) His motion for judgment by acquittal should have been granted,

(2) The evidence was insufficient to support a conviction, and

(3) The sentence imposed, two years in parish prison, suspended, and two years of active probation, was excessive.

Assignment (3) was neither briefed nor argued, and was therefore abandoned. See State v. Dewey, 408 So.2d 1255 (La.1982), and State v. Dirden, 430 So.2d 798 (La. App. 5th Cir.1983).

We find no merit in assignments (1) and (2), and we affirm Scott’s conviction and sentence.

Appellant was charged with violating R.S. 40:971B(1), which, in pertinent part, reads:

“It shall be unlawful for any person knowingly or intentionally:
“To acquire or obtain possession of a controlled dangerous substance by misrepresentation, fraud, forgery, deception or subterfuge ...”

This was a bench trial, and the State’s case consisted of the testimony of an arresting police officer and several significant stipulations. From this evidence, the prosecution proved that Scott entered a K-Mart pharmacy and presented a prescription for 20 percodan pills. The prescription, supposedly prepared by Dr. S.D. Bul-lard for a James Wilson, was forged. This was discovered by the druggist when he telephoned Dr. Bullard’s office for verification of the prescription and was told that the doctor had no James Wilson as a patient.

Two policemen went to the drug store and stopped Scott after he had paid for the pills and was leaving. The officer who testified said that Scott "... stated that he was picking it up for a friend.” Scott offered no further information or explanation, and he was placed under arrest.

After the officer testified, the defense moved for judgment of, acquittal, which was denied, and then rested without calling any witnesses or offering any evidence. The trial judge then found Scott guilty.

Assignments of error (1) and (2) were briefed and argued jointly. Scott’s major contention is that the State failed to prove, by direct or circumstantial evidence, that he had guilty knowledge or criminal intent.

Scott points out that he did not attempt to run away, and that this suggests a lack of guilty knowledge or criminal intent. However, Scott was stopped by two police officers, and he had no plausible opportunity to flee.

As the statute in question does not mention or require specific criminal intent, only general criminal intent must be shown. See State v. Simmons, 443 So.2d 512 (La.1983), particularly sections (10) and (11) at page 521.

General criminal intent exists when the circumstances indicate that the prohibited result may reasonably be expected to follow the offender’s voluntary acts, irrespective of any subjective thoughts or ideas he may have. See State v. Elzie, 343 So.2d 712 (La.1977); and also LSA-R.S. 14:10(2), which says:

“General criminal intent is present ... when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from the act or failure to act.”

In the instant ease, the State proved (1) that the prescription was a forgery, not written by Dr. Bullard, (2) that James Wilson was not one of the physician’s patients and (3) that Scott did pay for and obtain the controlled dangerous substance with the forged prescription.

In State v. Goiner, 410 So.2d 1085 (La. 1982), the Supreme Court of Louisiana said:

“The question of sufficiency of the evidence is a matter not for this Court, but for the jury or trial judge. However, the proof must be sufficient to convince the trier of fact of the existence of every element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 [, 99 S.Ct. 2781, 61 L.Ed.2d 560] (1979); State v. Landry, 381 So.2d 462 (La.1980); State v. Byrd, 385 So.2d 248 (La.1980).”

Here, the trial judge obviously felt that the adduced proof, which included some direct evidence along with the circumstantial evidence establishing Scott’s general criminal intent, was sufficient to prove beyond a reasonable doubt the necessary elements of the crime Scott was charged with.

On appeal, we apply the standard of review proclaimed in Jackson v. Virginia, supra, in State v. Jessie, 429 So.2d 859 (La.1983), and in numerous other Louisiana decisions. These cases hold that there was sufficient evidence for a conviction if, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

We are of the opinion that the trial judge did not err in finding the essential elements of R.S. 40:971B(1) proven beyond a reasonable doubt.

Scott would have us apply the more stringent standard of review discussed in State v. Williams, 423 So.2d 1048 (La. 1983), wherein the Supreme Court of Louisiana, citing LSA-R.S. 15:438, stated that convictions based on circumstantial evidence must exclude every reasonable hypothesis of innocence. However, the Court noted that “... the state’s case is built solely on circumstantial evidence,” unlike the case against Scott.

Also, the defendant in State v. Williams was convicted of second degree murder, a specific intent crime.

For these reasons, we affirm appellant's conviction and sentence.

AFFIRMED.

CURRAULT, J., dissenting with written reasons.

CURRAULT, Judge,

dissenting.

After a careful review of the law and evidence in this case, I disagree with the majority opinion.

The facts herein are clear that Walden Scott presented a forged prescription for and received a controlled, dangerous substance. The facts also show that neither Walden Scott nor James Wilson were patients of the physician whose signature was forged. The majority herein finds these facts sufficient to infer that defendant knew the prescription he presented to the pharmacist was forged [considering the failure of defendant to produce evidence on his own behalf of the existence of James Wilson]. I disagree.

In State v. Mitchell, 421 So.2d 851 (La. 1982), a closely analogous case, the court noted in a footnote that violation of LSA-R.S. 40:971B(1) is a general intent crime, but did not relieve the prosecution of its burden of proving every element of the offense including scienter. The court stated:

“Defendant’s explanation to arresting officers that he was ‘picking the prescription up for a friend’ suggested that he did not do so ‘knowingly’, and the state bears the burden of proving every element of the offense.
“In prior cases in which this court has reversed convictions for obtaining controlled substances with forged prescriptions, the evidence, although sufficient to prove that forged prescriptions were used, was insufficient to prove the essential scienter element. Although the instant appeal also presents a case in which the forged prescription was presented to the pharmacist by a person other than the person purportedly named in the prescription to receive the drug, defendant’s statement concerning his codeine addiction formed the basis from which a rational juror could draw the inference of guilty knowledge and could conclude beyond a reasonable doubt that defendant knowingly used a forged prescription to obtain the drug to which he was addicted.” (Emphasis added)

In Mitchell, supra, as well as State v. Custard, 384 So.2d 428 (La.1980), the inference of scienter was necessarily drawn from circumstantial evidence, as must be done in this case. In that regard, LSA-R.S. 15:438 states that if a case is to be proved by circumstantial evidence, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

The court is constrained as well by the constitutional standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) which held

that there was sufficient evidence for a conviction if after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

In determining the sufficiency of the evidence, the Louisiana Supreme Court recently set forth in State v. Wright (La.1984) 445 So.2d 1198 the methodology to be used in reconciling Jackson and LSA-R.S. 15:438. The court stated there that:

“Exclusion of every reasonable hypothesis of innocence is therefore a component of the more comprehensive reasonable doubt standard, where circumstantial evidence is used to convict. As we stated in State v. Chism, [436] So.2d [464] (La.1983), La.R.S. 15:438 ‘may not establish a stricter standard of review than the more general reasonable juror’s reasonable doubt formula, [but] it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for its implementation in cases which hinge on the evaluation of circumstantial evidence.’ ”

Applying the Wright test to the facts herein, I am of the opinion that the State did not prove the element of knowledge or intent beyond a reasonable doubt, even after viewing the evidence in the light most favorable to the prosecution. This view is supported by cases similar to the one before us previously acted upon by the Louisiana Supreme Court where the scienter was based on at least one other factor beyond the mere possession of the prescription and drugs. Furthermore, it should be pointed out that this statute is unlike LSA-R.S. 40:966 C where a showing of mere possession may be sufficient to impose a burden upon defendant to come forward with evidence of the statutory exemption in LSA-R.S. 40:966 C of the validity of the prescription. In this State under LSA-R.S. 40:971 B(l) and the jurisprudence, the defendant is under no burden to present evidence in his own behalf under these circumstances.

Therefore, for the foregoing reasons, I respectfully dissent and would reverse the conviction.

      . As authorized by LSA-C.Cr.P. art. 778.

      . A controlled dangerous substance, according to stipulation and LSA-R.S. 40:964, Schedule II.

      . Mitchell, supra

        State v. Custard, supra

        State v. Raymo, 419 So.2d 858 (La.1982).

      . In pertinent part, LSA-R.S. 40:966 C states:
      "C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule I unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner or as provided in R.S. 49:978 while acting in the course of his professional practice, or except as otherwise authorized by this part. Any person who violates this subsection with respect to: .... ”

      .Vol. 1, Charles E. Torcía, Wharton’s Criminal Evidence § 1-264 pages 16-25 § 12 — § 16, 13th Edition (1972).


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Philip FURINO.
    No. CR83-752.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Rehearing Denied June 14, 1984.

      John Di Giulio, Baton Rouge, for defendant-appellant.
    Robin Rhodes, Carrol L. Spell, Jr., Donald Landry, Asst. Dist. Attys., Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and DOUCET, JJ.
   DOMENGEAUX, Judge.

The defendant, Philip Furino, was charged by bill of information with the crimes of possession with intent to distribute marijuana, a violation of La.R.S. 40:966(A), possession with intent to distribute cocaine, a violation of La.R.S. 40:967(A), and possession with intent to distribute methaqualone, a violation of La. R.S. 40:967(A). The defendant filed a motion to suppress; a hearing was held on March 10, 1983, and the motion was denied. On May 12, 1983, the defendant changed his plea of “not guilty” to “guilty,” waived the legal delays for sentencing, and was sentenced to eight years at hard labor on each count to run concurrently. Defense counsel then requested reservation of rights on the motion to suppress under State v. Crosby, 338 So.2d 584 (La.1976).

FACTS

On November 7,1982, at about 1:00 P.M., the head housekeeper of the Days Inn Motel opened the door to Room 248 and saw a large quantity of suspicious-looking vegetable matter on the floor. This entry was made pursuant to a standard hotel chain policy of checking each room which was not rented for the next day, even if, as here, a “Do Not Disturb” sign was hung on the door. She alerted the manager, who viewed the room for himself before closing the door and calling the police. Less than an hour later, Officer Layburn accompanied the manager to view the room. Lay-burn then called Detective Paul Green who arrived between 1:30 P.M. and 1:45 P.M. to view the room. At this time photographs were taken of the room. Around 4:00— 5:00 P.M. Green left the motel to obtain a search warrant. Detective Michael Lav-ergne arrived at approximately 5:00 P.M.; he went to the room and saw (through the open door) the plant material on the floor. Soon the officers observed two suspects returning to the room. The officers immediately placed the room under surveillance. At this time the officers observed one of the suspects retrieve a gram scale from his car, and return to the room. A registration check was made on the car and it was discovered that the Florida license plate did not properly match the suspects’ car. Around 5:30 P.M. both suspects left the room. Detective Lavergne expressed concern that the surveillance might be discovered, and the two suspects were arrested forthwith. A short time later, the search warrant arrived, and the officers seized and inventoried the contents of the room, which included large quantities of marijuana, methaqualone, cocaine, diazepam, and dilaudid.

ASSIGNMENT OF ERROR

The defendant contends that the trial court erred in not granting his motion to suppress, since the search of the defendant’s motel room was conducted without a search warrant and outside the exceptions to the warrant requirement.

EXCEPTION TO THE WARRANT REQUIREMENT

The principal issue in the instant case focuses on the entry into defendant’s room by law enforcement officers.

Both the Fourth Amendment to the U.S. Constitution and La. Const. Art. I, § 5 protects persons from unreasonable searches and seizures. Searches conducted without a valid search warrant are constitutionally impermissible unless one of the “narrowly defined” exceptions is applicable. Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Ludwig, 423 So.2d 1073 (La.1982); State v. Abram, 353 So.2d 1019 (La.1977), cert. denied, 441 U.S. 934, 99 S.Ct. 2058, 60 L.Ed.2d 663 (1979).

Consent to search, one of these exceptions to a warrantless search, may be explained in terms of the expectation of privacy. A person who consents to a search clearly could not be heard to complain of the violation of his privacy. Similarly, the invasion of privacy may be justified by the consent of “a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” In these circumstances, a person’s expectation of privacy is severely limited by the joint dominion or authority over the property which reduces the applicable constitutional protection. U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Abram, supra.

The defendant cites the ease of Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) for the proposition that a warrantless police search of the defendant’s hotel room cannot be justified by consent of a hotel employee. In that case, the Court, in reversing the defendant’s conviction, recognized that the guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures, and that this protection cannot be made to depend upon the unfettered discretion of a hotel employee. However, the Court also noted that the defendant’s expectation of privacy was not absolute since a lessee of a hotel room gives implied or express permission to such persons as maids, janitors, and repairmen to enter the room in performance of their duties.

In State v. Abram, supra, the defendant left a garbage can containing marijuana in a motel room which he had rented and left unattended for 48 hours without rental prepayment. Due to a good faith clerical error, the room was reassigned to another motel guest who discovered the marijuana and called the police. In affirming the trial court’s ruling denying the defendant’s motion to suppress, the Court stated:

“The defendant, in taking a room at a motel, could reasonably expect maintenance personnel to enter the room. By leaving the room unattended for forty-eight hours without prepayment of rental, the defendant might also run the risk of the motel management concluding that he had ‘skipped.’ This fact, compounded with the risk of good faith clerical errors in multi-unit motels, limits the expectation of privacy reasonably accorded the defendant. It is significant to note that the defendant’s possessions were kept in an ordinary covered garbage can, not generally associated with personal belongings, rather than in a suitcase or other container readily identifiable as belonging to another.
In the present case, there is no indication that the rental of defendant’s room to Mr. Porter was anything except a good faith error on the part of motel personnel. Mr. Porter rented the room, occupied it as a good faith possessor, clothed with the apparent dominion and control over its contents. His act of opening the garbage can and looking inside was not unreasonable, because conceivably the can was supplied by the motel for the convenience of its guests. Mr. Porter, on his own initiative, had the police called. When the officer arrived, he was invited into the room by its apparent occupant and viewed the contents of the then open garbage can.
Defendant’s expectation of privacy did not protect against the possibility of an accidental reassignment of the room, thus the entry of Mr. Porter was not violative of the defendant’s constitutional rights. Searches conducted by private persons do not fall within the protection of the Fourth Amendment. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); United States v. Winbush, 428 F.2d 357 (6th Cir.1970) cert. den. 400 U.S. 918, 91 S.Ct. 179, 27 L.Ed.2d 157; State v. Hutchinson, 349 So.2d 1252 (La.1977). The search conducted by Mr. Porter was not violative of the Fourth Amendment. Further the search of the defendant’s garbage can did not, under the circumstances of this case, infringe upon an area of his privacy protected by Art. 1 § 5 of the La. Const, of 1974.
The fact that the police did not immediately remove the marijuana is of no significance; the seizure was effectively executed when the police took control and dominion of the room and its contents. ■The salutary policy underlying the exclusionary rule, that of discouraging governmental overreaching and unwarranted intrusion upon reasonable expectations of privacy, would not be served by the suppression of this evidence.”
At 1023-1024 (footnotes omitted).

In the instant case the defendant’s expectation of privacy does not extend to the housekeeper’s routine entry, since he could reasonably expect (and gives implied permission for) maintenance personnel to enter the room. The housekeeper was merely following standard operating procedure for a multi-unit motel. There is no indication that the entry into defendant’s room was a departure from management policy. Defendant’s expectation of privacy was not protected against the possibility of a routine room check and tally, thus the initial entry was not violative of defendant’s constitutional rights. Searches conducted by private individuals do not fall within the purview of the Fourth Amendment.

This was not a case of the complicity of a hotel employee with the police to violate the defendant’s expectation of privacy (as was the case in Stoner). Moreover, under the rationale of Abram, the initial search was conducted by a private citizen; thus, neither that search nor subsequent police searches violated the defendant’s constitutional rights. In sum, the policy underlying the exclusionary rule, i.e., to discourage unwarranted intrusion upon reasonable expectations of privacy, is not furthered by the suppression of this evidence.

This assignment of error lacks merit.

DECREE

For the above and foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Following the standard of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the Court explained to the defendant his constitutional right of trial by jury, right to confront his accusers, and right against self incrimination. The Court was satisfied that the defendant fully and completely understood his constitutional rights and the charges pending against him. The Court further found that the defendant intelligently waived his rights and therefore the Court allowed him to enter the guilty pleas.