author: NORRIS, Judge.

text:
    TR DRILLING CO., INC., Plaintiff-Appellant, v. Alton H. HOWARD, Defendant-Appellee.
    No. 16760-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.

      Hudson, Potts & Bernstein by W. Craig Henry, Monroe, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by Haynes L. Harkey, Jr., Monroe, for defendant-appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   NORRIS, Judge.

TR Drilling Co., Inc. filed suit against Alton Howard for balance due on a promissory note. Howard answered, reconvened and filed a third party demand against TR and its president, Richard Guerriero. After trial on the merits, the lower court, in excellent written reasons for judgment, rejected the demands of all the parties, concluding that the suit for balance due on the note failed because of partial failure of consideration or mutual rescission of their agreement, that TR rendered sufficient services to Howard, before the breach or mutual rescission, to be entitled to retain a partial payment made on the note on July 11, 1980, and that Howard failed to prove damages. Plaintiff appeals the rejection of the balance due on its note and defendant answers that appeal contending the trial court erred in rejecting his reconventional and third party demands. For the reasons hereinafter expressed, we affirm the lower court judgment in its entirety.

FACTUAL BACKGROUND

During the fall of 1979 and early 1980, defendant Howard, with the assistance of self-styled “lease hound” Percy Golson, acquired certain mineral leases which eventually covered approximately 2000 acres in Arkansas in what is known as the Bois d’arc field. These were the so called “Bobo” leases and others covering the surrounding properties. Golson received a ½6 th override interest in return for his efforts. The leases contained short term drilling delays.

The “oil boom” existing at the time created volumes of activity and drilling rigs, although not impossible, were difficult to engage.

Howard, though a successful businessman, was relatively inexperienced in the details of. mineral development and obviously relied to a great extent upon Golson.

During this time, Richard Guerriero was sole stockholder in plaintiff corporation, TR Drilling, which owned three small rigs for shallow drilling. Guerriero, who has a degree in petroleum engineering, was the manager as well as sole stockholder of TR.

Through Golson’s efforts, Guerriero and Howard had several meetings and ultimately negotiated a “deal” which is the subject of this litigation. As a result of their negotiations, Guerriero’s attorneys' prepared and, on January 5, 1980, the appropriate parties signed:

(1) A promissory note from Howard to Guerriero in the amount of $100,000, payable on or before July 6, 1980, ostensibly for 25% of the shares of stock in TR Drilling;
(2) A pledge of that stock from Howard to Guerriero as security for the above note;
(3) A “consulting agreement” between Howard and TR Drilling; and
(4) A promissory note from Howard to TR Drilling in the amount of $275,000 payable on or before July 6, 1980, executed in connection with the “Consulting Agreement.”

On July 11, 1980, Howard paid the $100,-000 note to Guerriero and received his pledge agreement. He also paid $135,000 to TR Drilling on the second note. On October 23, 1980, Howard wrote a “default” letter to Guerriero in care of TR Drilling in which he contended that Guer-riero and TR had not lived up to the agreement as contemplated and further declined to pay the $140,000 balance due on the second note. Ultimately, on July 8, 1981, TR Drilling filed this suit for the $140,000 balance due on the $275,000 note, plus interest and attorney’s fees. Howard answered the suit pleading total failure of consideration and filed a reconventional demand and a third party demand against Guerriero and TR seeking return of all payments made on both notes and damages for failure to timely complete an oil well.

The trial centered around what the “true agreement” between the parties to this litigation was. Guerriero contended at trial primarily that the “true deal” struck between the parties was that Howard simply purchased 25% of the stock in TR for $375,-000 and that the two notes and “Consulting Agreement” were prepared at Howard’s request in order for him to obtain a tax benefit by writing off $275,000 as a production expense. Alternatively, Guerriero contended that if the consulting agreement meant anything, it meant exactly what it said and that it had been performed. Howard basically contended that at the time of the agreement, he considered the TR stock virtually worthless and that his purpose in entering into the agreement was to obtain an advantage in having access to TR’s drilling rigs to meet his deadline on the Arkansas leases and additionally, that Guerriero agreed to render personal services to Howard as a petroleum engineer and agreed to take over development and management of the leases in the Bois d’arc field. Howard contended he signed the notes and other documents because he thought Guerriero’s attorneys were serving some other purpose of Guerriero’s.

The lower court found that the documents that constituted the “written agreement” were ambiguous and did not set forth the true agreement between the parties. Noting much of the evidence to be conflicting and irreconcilable, and commenting that some of the evidence adduced at trial could be interpreted to support Gu-erriero’s version of the agreement and some could be interpreted to support Howard’s version, the lower court finally concluded that the preponderance of the evidence as a whole supported neither party’s contentions completely. Therefore, after considering the totality of the evidence, the lower court made the following factual findings as deduced from that evidence: (a) That Howard was relatively uninitiated in the details of mineral development and relied heavily on Golson’s advice. He already owned or controlled at least three wells when he acquired the leases involved in this suit and was led to believe the prospects of profitable production on them were excellent. Howard’s basic concern at the time of his first contacts with Guerriero was time and the desire and necessity to obtain drilling services and start a well on the new leases;

(b) That Howard felt that part ownership in TR would give him some priority in the assignment of the rigs and stock ownership, from Howard’s point of view, was a principal motive of the agreement, wholly apart from the actual value of the stock or the corporation itself;

(c) That the actions of the parties after the agreement was consummated were inconsistent with Guerriero’s contention that only a stock transaction was involved. That the evidence was clear that the parties intended that Guerriero do more than give the “advice” and “consultation” that the written “Consulting Agreement” mentioned; that in accordance with the true agreement, Guerriero performed substantial personal management services for Howard with reference to the mineral properties Howard already owned prior to obtaining the “new leases”; and that Guerriero performed some services in connection with the new leases and the development of the Bois d’arc field;

(d) That the true agreement between the parties contemplated that Guerriero would supervise the completion of a new well and the subsequent development of the Bois d’arc leases notwithstanding the drilling contract entered into between Howard and TR for the new well; that Guerriero did perform some supervisory functions as contemplated by the original agreement in this regard; but that Guer-riero breached the agreement by failing to complete the first well on the new leases and by failing to proceed with plans for its further development; that

after a disagreement over a pump for the new well, Guerriero was impossible to find or to deal with; that Guerriero’s failure to complete the first well and go further with preparation for further development created serious problems, general delay and additional expense to Howard;
(e) That when Howard paid $235,000 on July 11, 1980, he was satisfied he had value received for that payment;
(f) That there was a partial failure of consideration, however, on the note sued upon; that the dollar amount of that partial failure of consideration could be calculated according to the actions of the parties themselves in that after the drilling of the new well and the subsequent dispute, the parties mutually terminated their association and agreement; and that accordingly, neither owes the other any money.

The trial court, in accordance with its findings summarized above, rejected the demands of all parties and cast TR, Howard and Guerriero for ½ each of the costs of the suit.

TR appeals the judgment of the lower court specifying the following errors:

(1) The trial court erred in finding that any part of the $275,000 note was given for services to be performed by Guerrie-ro rather than for the 25% interest in TR Drilling;
(2) Alternatively, if the trial court was correct in finding that some or all of the $275,000 note was given in consideration for services to be performed by Guerrie-ro, then the trial court erred in finding that the Consulting Agreement was not the entire agreement between the parties as relates to services to be performed or that there was any breach of any agreement to provide services so that there was a partial failure of consideration;
(3) The trial court erred in failing to find that Howard had failed to put TR Drilling in default under the Consulting Agreement and therefore could not refuse payment under the note;
(4) The trial court erred in finding that there was a mutual termination of the contract between Howard and TR Drilling; and
(5) The trial court erred in fixing the amount of the partial failure of consideration without any proof of the value of that failure.

Howard answered the appeal contending the trial court erred in its rejection of his reconventional demand and third party demand.

We consider appellant’s specifications of error first.

SPECIFICATION OF ERROR NO. 1

Did the trial court err in finding that any part of the $275,000 note was given for services to be performed by Guerriero rather than for the 25% interest in TR Drilling?

Under this specification, appellant contends that Guerriero’s version of the agreement, whereby the total amount of $375,-000 was given as payment for the purchase of the stock in TR Drilling, was proved by the evidence and that the trial court was clearly wrong in finding otherwise. Appellant argues that Guerriero performed services for Howard simply because of Howard’s oral agreement to give Guerriero a /wth override in the Bois d’arc development and other new developments and not because of any provisions of the January 5, 1980 Consulting Agreement.

Although parol evidence is inadmissible to vary the terms of a written contract, La.C.C. art. 2276, when the terms of a written contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguity and to show the intention of the parties. White v. Rimmer & Garrett, Inc., 340 So.2d 283 (La.1976); Dixie Campers, Inc. v. Vesely Co., 398 So.2d 1087 (La. 1981).

Appellant contends here that the Consulting Agreement is meaningless. By doing so, appellant implicitly admits that the Consulting Agreement is susceptible to more than one interpretation, is uncertain or ambiguous as to its provisions and that the true intent of the parties cannot be ascertained from the language used.

Appellee points out in brief that appellant’s alleged reliance not on the Consulting Agreement but on the ½6⅛ override, overlooks the evidence that most of Guer-riero’s services were performed in connection with the wells that Howard already had an interest in when the deal was struck. According to the testimony, the promised override would not have applied to those properties.

The lower court did not err in permitting the introduction of parol evidence to explain the ambiguous and uncertain written provisions of the consulting agreement in order to ascertain the real intent of the parties to this entire transaction. The trial judge’s factual finding that the $275,000 note was given for services to be rendered in accordance with the true intent of the Consulting Agreement, and not for the stock sale, was not clearly wrong and we will not disturb it. Arcen-eaux v. Domingue, 365 So.2d 1330 (La. 1978).

SPECIFICATION OF ERROR NO. 2

Here appellant argues that alternatively, if the trial court was correct in finding that some or all of the $275,000 note was given for services to be performed by Guerriero, then the trial court erred in finding that the Consulting Agreement was not the parties’ entire agreement for services to be performed or that there was any breach of the agreement to provide services resulting in a partial failure of consideration.

As already stated, the lower court found the Consulting Agreement to be ambiguous, uncertain, and unindicative of the true intention of the parties to the agreement. Thus, parol evidence was admissible to clarify the ambiguity and to show the true intent of the parties. Dixie Campers, Inc. v. Vesely Co., supra. After hearing the evidence, the court concluded that neither party’s version expressed the true intent, but that from the testimony and actions of the parties, it was obvious that their actual whole agreement contemplated that Guerriero would personally and through his corporate employees perform management, planning and supervisory tasks for Howard.

Article 1956 of the La.Civil Code provides that:

When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent by the other, furnishes a rule for its interpretation.

In some instances the construction placed upon a contract by the parties, as shown by the manner in which it was executed by them after its confection, is the best evidence of the meaning of the contract or the intent of the parties when they entered into the agreement. Pendleton v. McFarlane, 222 La. 569, 63 So.2d 1 (1953); Marcann Outdoor, Inc. v. Hargrove, 140 So.2d 815 (La.App. 3d Cir.1962).

In the instant case, Guerriero’s actions, after the execution of the documents purportedly expressing the agreement and prior to July 25, 1980, included reviewing the files of Howard’s existing wells, giving advice and rendering services to correct problems with those wells, setting up a semblance of a production office on those wells, offering Howard investment opportunities, supervising the payment of bills on Howard’s existing wells, and performing services in connection with site selection and preparation of the actual drilling of the Bobo No. 1 well. The complexity of all these acts certainly refutes the contention that the parties only intended the “consultation and advice” by Guerriero during the year 1980 such as “TR and Guerriero deemed convenient.” Our review of the record leads us to conclude that the trial court was not clearly wrong in its factual conclusion that the “Consulting Agreement” as written did not set forth the entire agreement between the parties. Furthermore, in comparing Guerriero’s actions prior to the drilling of the Bobo No. 1 well, and his actions subsequent to the drilling of that well, we cannot say that the trial court was clearly wrong in its conclusion that, despite repeated requests, Guer-riero and TR breached the agreement by failing to complete that well, failing to proceed with further development on the Bois d’arc field, and by being disinterested in and unavailable to perform the agreement after that time.

SPECIFICATION OF ERROR NO. 3

Here appellant claims that the trial court erred in failing to find that Howard had failed to put TR Drilling in default under the Consulting Agreement and therefore could not refuse payment under the note. Appellant argues that if the trial court is correct in finding that Guerriero or TR Drilling breached the Consulting Agreement, it was a passive breach under La. C.C. art. 1931 and that damages would be due only from the time the debtor was put in default in a manner specified by law. See La.C.C. arts. 1911, 1933. Appellant further argues that there was no putting in default so no damages are due.

While arguing the failure to put in default, appellant, in brief, at the same time reiterates as it did throughout these proceedings, that the Consulting Agreement was a meaningless document designed solely to benefit Howard from a tax standpoint and that the true agreement was simply a sale of stock and, alternatively, that if the Consulting Agreement had meaning, it meant exactly what it said and was fully performed by Guerriero or TR Drilling.

In Wadkins v. Wilson Oil Corporation, 199 La. 656, 6 So.2d 720 (1942), plaintiffs sought cancellation of a mineral lease alleging failure to fully develop the leased premises in accordance with the newest methods. Defendant contended the plaintiffs had failed to place it in default. The court stated:

The defendant filed in this court another exception of no cause or right of action. This new exception is founded upon the fact that the plaintiff did not allege or prove that a demand for performance of the contract was made in one of the ways prescribed by article 1911 of the Civil Code for putting a party in default in the case of a passive violation of the contract. Article 1933 of the Code provides that, when there is only a passive breach, and not an active breach, of a contract, damages are due only from the time the obligor is put in default; and article 1911 provides that a demand, in order to have the effect of putting the obligor in default, “may be made, either by the commencement of a suit, by a demand in writing, by a protest made by a notary public, or by a verbal requisition made in the presence of two witnesses.” But it is well settled that, if the defendant in a suit for damages for an alleged passive violation of a contract denies the alleged obligation, or denies that it was violated, it is not necessary for the plaintiff to allege or to prove that a demand for performance of the alleged obligation was made in one of the forms prescribed by article 1911 of the Civil Code. The reason for that is that it would be inconsistent for one to deny the obligation of a contract, or to deny that he had violated the obligation, and at the same time urge that a proper demand might have brought forth a performance of the obligation on his part. [Citations omitted.] 6 So.2d at p. 725

See also, Louisiana Farms Co. v. Yazoo & M.V.R. Co., 179 La. 539, 154 So. 445 (1934).

Here, assuming but by no means holding that any breach of the agreement by Guerriero or TR was passive, appellant, in consistently contending that the Consulting Agreement actually imposed no obligation, and alternatively, if it did, was not violated but completely complied with, has caused it to be unnecessary for Howard to either allege or prove that appellant had been placed in default.

Furthermore, the affirmative defense of failure of consideration is not, in the true sense, an action seeking damages. This, with the trial court’s factual finding that the parties, through their actions, mutually terminated the agreement after the breach, makes a putting in default unnecessary.

SPECIFICATION OF ERROR NO. 4

Here, appellant complains that the trial court erred in finding a mutual termination of the contract between Howard and TR Drilling.

The lower court stated in its reasons for judgment:

The court is convinced that Howard was satisfied that he had “value received” when he paid $235,000 in July, 1980; and it is so concluded. Lacking specific evidence upon which to base a precise calculation but convinced there was a partial failure of consideration by Guerriero and TR Drilling as to the note sued upon, the court relies upon the actions of the parties for its solution. Following the dispute over the pump and the demise of the corporation, Howard and Guerriero parted and went their separate ways. While making legal contentions in the contradictory postures each has taken in this suit, neither made any effort to rectify the situation. Their actions and their testimony convinces the court that they were mutually terminating their association and their agreement. The cherished hope and the pie in the sky which spawned and nurtured the agreement had both vanished; each was licking his wounds; neither really wanted or needed the other. Both got what they went after — exploration at the end of the rainbow. The court therefore concludes that neither owes the other any money.

Parties who have legally entered into agreements are at liberty to reform or revoke them. La.C.C. art. 1901 provides:

Agreements legally entered into have the effect of laws on those who have formed them.
They can not be revoked, unless by mutual consent of the parties, or for causes acknowledged by law.
They must be performed with good faith.

See also RTL Corp. v. Manufacturer’s Enterprises, Inc., 429 So.2d 855 (La.1983); La.C.C. art. 1945.

The trial court found that the parties’ actions after the breach by Guerriero in July 1980 indicated a mutual abandonment of the agreement. Guerriero, for his part, became disinterested and made no further effort to perform his managerial obligations under the agreement. Howard, for his part, went elsewhere to secure the same services from others as he had contracted to secure from Guerriero. In addition, the court found that Guerriero, TR and Howard did not want further business association with each other as contemplated by their prior agreement; however, after the parties split, they did amicably negotiate for the sale of one of TR’s drilling rigs to Howard for use in drilling the second Bobo well. This conduct is inconsistent with the argument that the parties were still clamoring to enforce the original agreement. It is more consistent with the finding that Guerriero and TR no longer wanted to perform services for Howard and that Howard was willing to end the association and seek those services elsewhere. Thus the trial court’s findings have substantial support in the record and are not manifestly erroneous.

The trial court found that there had been a breach of the original agreement. We agree that Guerriero’s actions, viewed alone, would constitute a breach of the agreement. We feel, however, that this does not negate the conclusion that the original agreement was mutually rescinded. Rather, it fortifies that conclusion. RTL Corp. v. Manufacturer’s Enterprises, Inc., supra at 856-57. Under these circumstances, rescission was a reasonable alternative between reasonable businessmen when it became clear that neither side wanted to fulfill its obligations. Only the decline of financial fortunes impelled the parties to seek to enforce an agreement which, at an earlier time, seemed to have lost its usefulness and necessity, and which was willingly abandoned. This does not alter the finding that the agreement was terminated and that all parties were satisfied with consideration given and received at that time.

This specification lacks merit.

SPECIFICATION OF ERROR NO. 5

Here, appellant contends that the lower court erred in fixing the amount of the partial failure of consideration without proof of the specific value of that failure.

The trial court found that following Gu-erriero’s failure to complete the Bobo No. 1 well and the declining fortunes of TR Drilling, which occurred in close proximity of time, the parties to this litigation “parted and went their separate ways.” The court interpreted their actions and testimony to constitute a “mutual terminating” of their association and agreement. The lower court noted that on July 11, 1980, Howard paid $235,000 on the total $375,000 obligation. This amount was accepted even though the whole amount was due at that time. Thus, the court concluded at that point, that Howard was basically satisfied that he had “value received.” Shortly thereafter, the parties’ difficulties began and each went their separate ways with slightly more than 5 months remaining on the Consulting Agreement. The lower court found that neither party made real efforts to rectify the situation until forced to take contradictory positions because of this lawsuit filed much later in July of 1981, when TR’s financial fortunes were grim. The record reveals that Guerriero only made a half-hearted effort toward collecting the $140,000 balance allegedly due and this effort was only made after Howard wrote a letter requesting that Guerrie-ro buy back his (Howard’s) interest in TR Drilling.

At the point of their parting, the lower court concluded that neither party wanted or needed the other.. Almost 7/i2ths of the year was gone, $235,000 had been paid and on paper $140,000 was allegedly still due. The court found that Guerriero and TR did not want further association with Howard and that Howard made other arrangements for the drilling of a second well on the new leases and for development of those leases. In fact, Guerriero negotiated with Howard, Golson and Howard’s partner for the sale of one of TR’s drilling rigs which was consummated in September of 1980. This transaction lends credence to the conclusion that the parties had indeed rescinded their agreement.

Our law recognizes the general principle that where there is a legal right to recovery, but the damages cannot be exactly ascertained, the courts have reasonable discretion to assess the damages, based on the facts and circumstances. La.C.C. art. 1934(3); Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971). Additionally, the trier of fact has much discretion in assessing quantum of damages and we will not'disturb his assessment absent a clear abuse of this much discretion. Prevost v. Cowan, 431 So.2d 1063 (La.App. 1st Cir. 1983).

Furthermore, in the case of a rescinded agreement, the trial court is permitted to determine the value of compensation for partial performance rendered until the breach. See Henry Brothers, Inc. v. Bergeron, 241 So.2d 49 (La.App. 3d Cir. 1970); C.M. Penn & Sons v. A. Giambellu-ca Const. Co., 259 So.2d 594 (La.App. 1st Cir.1972). The concept of partial failure of consideration is also embraced by our commercial laws, where it is stated that against a person who lacks the rights of a holder in due course, “Partial failure of consideration is a defense pro tanto whether or not the failure is an ascertained or liquidated amount.” La.R.S. 10:3-408.

Although often the parties to a rescinded obligation must restore each other to their position as it existed before, Roberson v. Maris, 266 So.2d 488 (La.App. 4th Cir.1972), this is not always the case. When partial payment has been made, and partial performance rendered, the trial court is correct to assume that the values were equivalent. La.C.C. art. 1768.

Applying these principles to the instant case, we reiterate the trial court’s finding that Guerriero refused to complete the Bobo No. 1 well almost simultaneously with TR’s decline of fortune. Howard paid, nevertheless, $235,000 of the total $375,000 debt on July 11, 1980; Guerriero accepted this partial payment even though he could have demanded the full sum. This supports the finding that the parties were, at the time, mutually satisfied with the values received. When the difficulties began shortly afterwards, the parties went their separate ways; slightly over five months still remained on the Consulting Agreement.

The trial court found the parties exerted no effort to enforce the contract until this suit was filed a year later, after TR’s financial outlook had indeed grown grim. Their intentions must have been mutual, since Howard only sent one letter requesting that Guerriero repurchase Howard’s interest in TR Drilling, and Guerriero answered with a half-hearted effort to collect the $140,000 balance.

The trial court determined that at the time of their parting, almost 7/i2ths of the year was gone, $235,000 had been paid, and $140,000 was still due. A precise calculation of the amount of the partial failure would be difficult and we feel the trial court placed a reasonable value on it, considering the imprecision of the contract and the relative passage of time. This amount was satisfactory to the parties when they mutually terminated the agreement. Thus the trial court’s assessment of the amount of partial failure of consideration was not an abuse of discretion.

This specification lacks merit.

HOWARD’S ANSWER TO THIS APPEAL

In addition to answering TR’s petition on the note, Howard filed a reconventional demand and a third party demand against TR and Guerriero seeking the return of the $235,000 Howard paid on July 11, 1980 and damages in the amount of $21,000 allegedly caused by Guerriero and TR’s failure to complete the Bobo No. 1 well.

As already stated, the lower court found that as of July 11, 1980, Howard had received value for the $235,000 paid on that date. This factual conclusion is not clearly wrong and we will not disturb it.

With regard to the denial of $21,-000 in damages requested, the lower court found the evidence did not preponderate that Howard actually lost $21,000 in oil revenues because of TR’s delay in completing Bobo No. 1. Again, this factual conclusion is not manifestly erroneous and we will not disturb it.

CONCLUSION

For the foregoing reasons, the judgment of the lower court is affirmed in its entirety. Costs of this appeal are assessed one-half to appellant and one-half to appellee.


source: Caselaw Access Project

author: PRICE, Judge Pro Tem.

license: Public Domain

text:
    Raymond William INGRAM, Plaintiff-Respondent, v. Betty Eilene Hollingsworth INGRAM, Defendant-Applicant.
    No. 16847-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.

      Stephen R. Burke, Minden, for plaintiff-respondent.
    Sockrider, Bolin & Anglin by D. Rex Anglin, Shreveport, for defendant-applicant.
    Before MARVIN and SEXTON, JJ., and PRICE, J. Pro Tem.
   PRICE, Judge Pro Tem.

Betty Eileen Hollingsworth Ingram, applicant, sought this court’s supervisory review of an interlocutory judgment of the district court holding that Louisiana had jurisdiction to modify a Texas child custody judgment. We granted writs in order to determine whether the district court erred in finding that the Texas custody judgment was enforceable in this state and if it is, to determine whether the district court erred in failing to enforce that judgment under the Uniform Child Custody Jurisdiction Act (UCCJA), LSA-R.S. 13:1700 et seq., and the Parental Kidnapping Prevention Act of 1980 (PKPA), 28 U.S.C. § 1738A. Finding that the district court erred in its determination, we reverse and remand with instructions.

The applicant and Raymond William Ingram, the respondent, were married in July of 1976 in the state of Oklahoma. For approximately two to three years prior to their separation in July of 1981, the parties lived as husband and wife in Houston, Fort Bend County, Texas. One child, Carrie Lynn Ingram, was born of this marriage on November 21,1976, and is the object of this litigation.

In July of 1981, the applicant moved out of the matrimonial domicile at 12822 Bel-nap Road in Houston, Texas with her child and moved into the home of Martha Louise Metcalf. Applicant hired an attorney in Houston, William Hilford, to institute divorce and custody proceedings. In that same month, applicant’s attorney filed applicant’s action in Harris County, Texas. After discovering that he had filed the action in the wrong county, applicant’s attorney in August of 1981 refiled the divorce and custody action in Fort Bend County, Texas.

The record reflects that applicant’s attorney and the respondent had numerous conversations concerning applicant’s divorce action, and that the respondent expressed to applicant’s attorney that he would avoid personal service of process of applicant’s divorce and custody action.

During July and August of 1981, while Carrie Ingram was still in her mother’s physical custody, the respondent was allowed to take the child for visitation.

On August 10, 1981, respondent picked up the child at the Metcalf home for the purpose of visitation. The record reflects that the respondent failed to return the child to the applicant and that the applicant was prevented from seeing her child again until the present litigation was instituted in Webster Parish, Louisiana in July of 1984.

The record reflects that the applicant refiled her divorce and custody action on August 17, 1981 in Fort Bend County, Texas. However, due to the flight of the respondent, applicant was unable to obtain personal service upon him. Therefore, on February 12, 1982, applicant filed a motion for service of citation under Rule 106 of the Texas Rules of Civil Procedure. On that same date, a Fort Bend County District Judge issued an order finding that it was impractical to secure personal service upon the respondent. The Texas judge directed the constable to leave a copy of the citation with petition at the respondent’s last known address at 12822 Belnap Road, Houston, Texas, and to mail a copy of applicant’s original petition for divorce to respondent’s attorney, Bernard Brooks, and to respondent’s mother, Bonnie Ingram. On April 21, 1982, the Texas District Court granted applicant a judgment of divorce and appointed the applicant as managing conservator of the child, Carrie Lynn Ingram.

Although the respondent was not personally served process the record clearly reflects that the respondent had knowledge of the divorce and custody litigation. Contained in the documents of the Texas proceeding is the affidavit of Betty Cardwell. Cardwell stated that respondent had discussed the divorce case with her and had instructed her to send any papers regarding the case to his mother who would give them to him.

The respondent testified that on August 10, 1981, he sold the horse stables which he owned to Gloria Mikulenka for $10.00. Respondent then picked up the child at the Metcalf home and left Houston with his daughter.

The respondent called the applicant several times during the two weeks after he had taken the child from the applicant. The respondent expressed to the applicant that he intended to keep the child and to not allow the applicant to obtain custody of the child. Respondent testified that after he left Houston, he lived for a short period of time in New Mexico. After New Mexico, the respondent moved to Anchorage, Alaska and lived there with the child from August to February of 1982. From February of 1982 to August of 1982, the respondent and the child lived in Sulphur, Louisiana. From August of 1982 to April of 1983 the respondent and the child lived on the Municipal Pier Road on Cross Lake in Shreveport, Louisiana. On April 4, 1983, the respondent remarried in Marshall, Texas. After April of 1983, the respondent moved with his new wife and the child to his present address in Springhill, Louisiana. The respondent, after leaving Houston, at no time- informed the applicant of the whereabouts of himself or the child.

In March of 1982 the applicant engaged the services of the Child Find, Inc., an organization developed for the purpose of locating missing children. On July 13, 1984, the respondent filed a petition for custody of the child in the 26th Judicial Court in Webster Parish. Child Find, Inc. then notified the applicant of the institution of the proceedings by the respondent. The applicant filed an exception to the jurisdiction of the Webster Parish District Court and requested that the Texas judgment be enforced and that a Writ of Habeas Corpus be granted to return physical possession of the child to the applicant.

The district court, after a hearing, found that the Texas divorce and custody judgment was valid; however, the district court also found that Louisiana now has jurisdiction to modify the Texas judgment. It is upon this ruling from which the applicant has sought this court’s supervisory review.

The applicant contends that the district court erred in holding that Louisiana has become the “home state” of the child and therefore has obtained jurisdiction to modify the Texas custody judgment, that the court erred by holding that Texas no longer has jurisdiction over the child solely on the basis that Louisiana has now become the “home state” of the child, and that the court erred in finding that Louisiana has become the “home state” of the child due to the facts surrounding the attainment of that status by the respondent. Applicant contends that respondent’s actions of secreting the child from the mother for the requisite period of time and thereafter seeking the protection of the Louisiana courts should disallow the respondent from accruing the six months required for “home state” status. Finally, applicant contends that the court also erred in finding that Texas no longer has continuing jurisdiction under the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A.

The respondent contends that the Texas decree of custody is invalid and unenforceable because there was not a proper service of process under Texas law, and further, the Texas court no longer had jurisdiction at the time of the rendition of the judgment. Additionally, respondent contends that the Louisiana courts now have jurisdiction to modify the Texas judgment as the “home state” of the child.

The Uniform Child Custody Jurisdiction Act (UCCJA) now adopted by 49 states including Louisiana and Texas, was promulgated for the stated purpose of avoiding jurisdictional competition in conflict, promoting interstate cooperation, litigating custody where child and family have closest connections, discouraging continuing conflicts over custody, deterring abduction and unilateral removal of children, avoiding relitigation in another state’s custody decisions, and promoting an exchange of information and other mutual assistance between courts in different states. LSA-R.S. 13:1700; Peery v. Peery, 453 So.2d 635 (La.App. 2d Cir.1984).

Two of the principal purposes of the UCCJA are to discourage forum shopping and to protect the best interest of the child. The UCCJA attempts to bring about an orderly system of decision while simultaneously protecting the best interest of the child. The underlying policy of the UCCJA is that it is in the best interest of the child to prevent the shifting from state to state of children by parents seeking to gain custody or rights in one state even though denied those rights by the decree of another state. The UCCJA is designed to bring some assemblance of order into the existing chaos. It limits custody jurisdiction to the state where the child has his home or where there are other strong contacts with the child and his family. See R.S. 13:1702. It provides for the recognition and enforcement of out-of-state custody decrees in many instances. See R.S. 13:1712 and 13:1714. Jurisdiction to modify decrees of other states is limited by giving a jurisdictional preference to the prior court under certain conditions. See R.S. 13:1713. Access to a court may be denied to applicants who have engaged in child snatching or similar practices. See R.S. 13:1707. Also, the UCCJA opens up direct lines of communication between courts of different states to prevent jurisdictional conflict and bring about interstate judicial assistance in custody eases. See R.S. 13:1705 and 13:1719.

In a court’s determination of whether the courts of this state have jurisdiction or should decline jurisdiction under the UCCJA it is crucial that each of the multifaceted components of the act be construed to promote the general purposes of the act. LSA-R.S. 13:1700 B.

Consistent with the goal of avoiding, in this state, relitigation of custody decisions of other states, R.S. 13:1712 provides that the courts of Louisiana shall recognize and enforce an initial or modification decree of a court of another state which has the same jurisdiction under the statutory provisions that are in substantial accordance with § 1702, or which were made under factual circumstances meeting the jurisdictional standards of § 1702.

In the present case, in response to the respondent’s petition for custody, the applicant filed an exception to the jurisdiction of the Louisiana court and sought enforcement of her Texas custody decree pursuant to R.S. 13:1714. Therefore, the initial question before the court below and this court now on review is whether the Texas custody judgment is entitled to recognition in the courts of this state. The threshold question in determining whether the initial Texas custody decree should be enforced under § 1712 is whether Texas had jurisdiction, or now has jurisdiction, under the peculiar jurisdictional prerequisites of the UCCJA, as set forth in R.S. 13:1702. R.S. 13:1702 provides, in pertinent part, as follows:

A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state withing 6 months before the commencement of the proceeding and the child is absent from this state because of his removal or retention by person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and parents or the child and at least one contestant have a significant connection with this state and (ii) there is available in this state substantial evidence concerning the childs present or future care, protection, training, and personal relationships; ...

A review of the facts in the present case clearly reflects that the Texas court did meet the jurisdictional prerequisites of § 1702. Specifically, the facts reflect that the parents resided with the child in Houston, Fort Bend County, Texas for approximately two-and-one-half years prior to their separation. Under R.S. 13:1701, “home state” is defined as the state which the child, immediately preceding the time involved, lived with his parents or a parent for at least six consecutive months. Clearly, Texas was the home state of the child under § 1702 A(l) at the time which the initial Texas custody action was filed. Despite meeting the jurisdictional requirements of the UCCJA, the respondent contends that the Texas custody judgment is unenforceable because there was no proper service of process under Texas law.

The record reflects that numerous attempts were made to personally serve the respondent in the Texas action. However, due to the evasive tactics of the respondent, he was not personally served in the Texas action. As a consequence, on February 12, 1982, the applicant filed a motion for service of citation under Texas Rules of Civil Procedure, Rule 106. Rule 106 provides for substituted service of process in Texas when personal service cannot be obtained pursuant to Texas Rule of Civil Procedure, Rule 103.

Pursuant to Rule 106, applicant supplied supporting affidavits. The affidavit of Betty Cardwell states that she has known the respondent and that she has talked to the respondent concerning the pending divorce action. Respondent instructed Mrs. Cardwell to send any papers regarding the case to his mother. Henry Robertson, Fort Bend County, Texas Deputy Sheriff also provided an affidavit. Robertson states in his affidavit that he knew the respondent after recently serving him some papers at which time the respondent stated to Robertson that the deputy sheriff would not be able to catch him with divorce papers which the respondent expected in the near future. Robertson also stated that he knew the respondent’s residence to be 12822 Belnap Road, Houston, Texas, and that the respondent operated a business known as Turner Stables, also located on Belnap Road.

Pursuant to applicant’s motion, the Fort Bend County, Texas District Court ordered respondent to be served citation pursuant to Rule 106. The court directed the constable to leave a copy of the citation with petition attached at the defendant’s address at 12322 Belnap Road, Houston, Texas. Additionally, the court ordered the respondent’s attorney, Bernard Brooks, and the respondent’s mother, Bonnie Ingram, to also be provided with a copy of the citation and petition.

After service of process was accomplished pursuant to Rule 106, the Texas court, on April 21,1982, granted applicant’s divorce and appointed applicant as managing conservator of the child.

It appears from the record that the applicant fully complied with Texas Rule of Civil Procedure Rule 106. Therefore, we find that proper service of process under Texas law was obtained.

Respondent contends that at the time judgment was rendered in April of 1982, the Texas court no longer had jurisdiction under the PKPA 28 U.S.C. § 1738A.

Pursuant to 28 U.S.C. § 1738A(e), before a child custody determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child. The record in the present case fully reflects that the respondent had notice of the Texas proceedings. Additionally, the record reflects that the respondent had an opportunity to be heard in Texas and chose not to appear. Instead, the respondent chose to take the child and flee from the state of Texas. Therefore, we find that the respondent had reasonable notice and opportunity to be heard in the Texas litigation.

Finding no merit to respondent’s contentions, the district court was correct in finding that the Texas judgment was entitled to recognition in this state.

Having determined that the Texas judgment is entitled to recognition in this state, the next inquiry is whether the Louisiana court now has jurisdiction to modify the out-of-state decree. LSA-R.S. 13:1713 provides for modification of out-of-state decrees. Section 1713 provides as follows:

A. If a court of another state has made a custody decree, a court of this state shall not modify that decree unless it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance [§ 1702] or has declined to assume jurisdiction to modify the decree and the court of this state has jurisdiction.
B. If a court of this state is authorized under Subsection A of this section and Section 1707 to modify a custody decree of another state it shall give due consideration to the transcript of the record and the other documents of all previous proceedings submitted to it in accordance with Section 1721.

The district court found that since the child has resided in this state for more than six months, Louisiana now has jurisdiction, as the “home state” of the child under § 1702, to modify the Texas decree. Meeting the jurisdictional prerequisite of § 1702 does not necessarily give a state authority to modify an out-of-state decree. Consistent with the goal of discouraging unilateral removal of children to avoid the jurisdiction of another state, the courts of this state must determine whether jurisdiction must be declined pursuant to Section 1707.

LSA-R.S. 13:1707 provides as follows:

A. If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction if this is just and proper under the circumstances.
B. Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify the custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary of relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.
C. In appropriate cases a court dismissing a petition under this section may charge the petitioner with necessary travel and other expenses, including attorneys’ fees incurred by other parties or their witnesses.

This section incorporates the “clean hands doctrine.” Under this doctrine, courts refuse to assume jurisdiction to reexamine an out-of-state custody decree when the applicant has abducted the child or has engaged in some other objectionable scheme to obtain or retain physical custody of the child in violation with that decree. See Uniform Child Custody Jurisdiction Act (ULA) § 8, Commissioner’s Note.

The evidence in the present ease reflects that upon separation of the applicant and respondent, the applicant had physical custody of the child and allowed visitations by the respondent. Evidence also reflects that respondent was fully aware of applicant’s divorce and custody action; subsequently, in a scheme to avoid jurisdiction of the Texas court, and to obtain physical custody of the child, respondent moved the child from the state of Texas under the disguise of visitation. Respondent readily admits that he left Texas with his child in order to prevent the child from seeing the applicant again. The record also reflects that the respondent was successful in not allowing the applicant to have any knowledge of the whereabouts of or any contacts with the child until the respondent initiated the present custody action in Webster Parish approximately three years after leaving Texas.

Respondent’s actions in absconding with the child and secreting the child from her mother for approximately three years is clearly reprehensible. There cannot be any doubt that this is a case which clearly falls within § 1707 B. In the present case, exercise of jurisdiction by the courts of this state clearly would be contrary to the expressed intent and purposes of the UCCJA.

Therefore, despite meeting the jurisdictional prerequisites of § 1702, the district court erred in failing to decline jurisdiction by reason of conduct pursuant to § 1707 B.

The applicant additionally has contended that pursuant to the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A, Louisiana is without authority to modify the Texas decree. We agree.

The PKPA provides for a full faith and credit to be given to the child custody determinations of every state. 28 U.S.C. § 1738A(a) provides as follows:

The appropriate authorities of every state shall enforce according to its terms and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another state.

The jurisdictional prerequisites of the PKPA are identical to the jurisdictional requirements of the UCCJA found in LSA-R.S. 13:1702. Modification is allowed in 28 U.S.C. § 1738A(f) and provides as follows:

A court of the state may modify the determination of the custody of the same child by the court of another state if
(1) It has jurisdiction to make such a child custody determination; and
(2) The court of the other state no longer has jurisdiction, or has the declined to exercise such jurisdiction to modify such determination.

A reading of the PKPA reflects that Texas continues to have jurisdiction of this case. Under 28 U.S.C. § 1738A(d) “jurisdiction of a court of a state which has made a child custody determination consistent with the provisions of this section [meaning the jurisdictional requirements of the UCCJA] continues as long as the requirement of subsection (c)(1) of this section [such court has jurisdiction under the law of such state] continues to be met and such state remains the residence of the child or of any contestant.”

The record reflects in the present case that Texas remains the residence of the applicant. Under 28 U.S.C. § 1738A(d), Texas continues to have jurisdiction of this child custody litigation. Therefore, pursuant to 28 U.S.C. § 1738A(f), Louisiana does not have authority to modify the Texas judgment.

Therefore, the district court erred in not declining to exercise jurisdiction under the discretionary provisions of the UCCJA, R.S. 13:1707 and under the provisions of the PKPA, 28 U.S.C. § 1738A.

DECREE

Having found that the district court erred in finding that Louisiana has jurisdiction to modify the Texas judgment, we reverse. Applicant’s Writ of Habeas Corpus is granted. The district court shall immediately order the respondent to appear before the court with the child to effectuate the transfer of the child to the applicant. Further, the district court shall hold a hearing, within a reasonable time, to adduce evidence of applicant’s necessary travel and other expenses, including attorney’s fees, to which applicant is entitled to be awarded under LSA-R.S. 13:1707 C. Costs of the appeal are to be paid by the respondent.

REVERSED AND REMANDED.

      . RULE 106. Service of Citation
      (a) Unless the citation or an order of the court otherwise directs, the citation shall be served by any officer authorized by Rule 103 by
      (1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or
      (2) mailing to the defendant by registered or certified mail, with delivery restricted to addressee only, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.
      (b) Upon motion supported by affidavit stating the location of the defendant’s usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service
      (1) by an officer or by any disinterested adult named in the court’s order by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or
      (2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.


author: MARVIN, Judge.

text:
    James E. MILLER, Plaintiff-Respondent, v. Jolene Brendle MILLER, Defendant-Applicant.
    No. 16967-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.
    Rehearing Denied Feb. 22, 1985.
    Jack Wright, Jr., Monroe, for defendant-applicant.
    Linda Bradley Norwood, West Monroe, for plaintiff-respondent.
    Before HALL, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

Ms. Miller, applicant, sought this court’s supervisory review of rulings by the district court that it may exercise jurisdiction to modify a Florida custody judgment. We granted the application in order to review the district court’s rulings denying applicant’s dilatory and declinatory exceptions to the exercise of jurisdiction by the Louisiana court under the Uniform Child Custody Jurisdiction Act (UCCJA), LSA R.S. 13:1700, et seq. We reverse and render judgment sustaining the dilatory exception of inconvenient forum.

The facts are stipulated. The applicant married James E. Miller in West Monroe on October 1, 1976. Their child, Erin, was born in West Monroe September 17, 1977, where the parties resided until August 1980 when they moved to Florida. In January 1982 they were divorced in Florida. The Florida court awarded Ms. Miller sole custody of Erin. Mr. Miller returned to West Monroe in December 1981, where he has since resided. Ms. Miller and Erin remained in Florida until August, 1984.

The child regularly visited her father in West Monroe until May 1984 when Ms. Miller refused to honor further visitation rights. On August 28, 1984, Mr. Miller petitioned the Fourth Judicial District Court in Ouachita Parish to modify the Florida custody judgment. He seeks custody of the child on the grounds of Ms. Miller’s refusal to honor his visitation rights.

Before the rule for modification of the custody judgment was filed, Ms. Miller, a captain in the United States Air Force, was transferred to Massachusetts by military order and now resides there with the child.

In response to Mr. Miller’s petition, Ms. Miller filed the declinatory exceptions of lack of subject matter jurisdiction, of lack of personal jurisdiction, and the dilatory exception of inconvenient forum. She also sought costs of travel and other expenses if she and the child were ordered to appear. The district court denied her exceptions but ordered Mr. Miller to maintain a sufficient deposit to provide for her costs and expenses. From the overruling of the exceptions, Ms. Miller seeks our supervisory review.

The UCCJA has been adopted in Louisiana and Florida, and in 47 other states. UCCJA seeks to avoid jurisdictional competition in conflicts, to promote interstate cooperation, to litigate custody where child and family have closest connections, to discourage continuing conflict over custody, to deter abduction and unilateral removal of children, to avoid re-litigation of another state's custody decisions, and to promote exchange of information and other mutual assistance in custody matters by courts in different states. LSA-R.S. 13:1700; Peery v. Peery, 453 So.2d 635 (La.App. 2d Cir. 1984).

In determining whether the courts of this state should decline or should exercise jurisdiction under UCCJA, it is crucial that each multi-faceted and related component of the act be construed to promote its general purposes. LSA-R.S. 13:1700 B; Ingram v. Ingram, 463 So.2d 932 (La.App. 2d Cir.1985).

Consistent with the goal of avoiding relit-igation of custody decisions of other states, R.S. 13:1712 provides that the courts of Louisiana shall recognize and enforce an initial or modification decree of a court of another state which has assumed jurisdictional power either under statutory provisions that are in substantial accord with § 1702 or under factual circumstances meeting the standards of § 1702.

Here, a Florida court rendered the custody judgment in favor of the mother. When the Florida proceedings were instituted and when judgment was rendered, Florida had been the home state of the child for two years. The Florida judgment was in accord with the jurisdictional prerequisites of the UCCJA, § 1702A(1). The mother and the child continued to reside in Florida for two more years. Shortly after the applicant moved to the state of Massachusetts in August 1984, Mr. Miller filed his petition in Louisiana seeking modification of the Florida judgment.

When a court of another state has rendered a custody decree in accordance with the UCCJA, there are limited exceptions under the UCCJA that allow the courts of another state to exercise jurisdiction to modify that custody judgment. Specifically, the court of the state that rendered the initial decree must no longer have jurisdiction and the courts of this state must meet the jurisdictional prerequisites and standards of § 1702.

Even though it is determined that the courts of this state meet a particular criteria under § 1702, the inquiry whether jurisdiction should be exercised does not end. UCCJA clearly directs that the best interest of the child in the custody dispute be determined by the state which best meets the jurisdictional prerequisites and priorities of UCCJA. When modification of an out-of-state custody decree is sought, the court is directed to make three inquiries. The first inquiry is whether the court of this state has jurisdiction under a particular prerequisite of § 1702. The second inquiry questions whether the court of another state, or the court of the state which rendered the initial decree, meets the standards of UCCJA or of a similar and consistent law. The final inquiry is whether the court of this state must, or should, decline to exercise jurisdiction when the court of another state best meets the standards of § 1702 and the general purposes of the UCCJA. See §§ 1700, 1702, 1708, 1712-13.

Respondent contends that Louisiana has jurisdiction under the significant connections test of § 1702A(2) which provides:

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

Respondent argues that Louisiana has jurisdiction and has the significant connections because the child lived in Louisiana for the first three years of her life and the father and maternal and paternal grandparents live here.

More than one state may have a significant connection under some circumstances. The clear intent of § 1702A(2), however, is that the state with the maximum contacts with the child is the proper or preferred state to exercise its jurisdiction under the “significant connection” test of that section. Leigh v. Leigh, 457 So.2d 196 (La.App. 2d Cir.1984).

While Louisiana once had what may be deemed a significant connection, the law requires that a comparative determination be made whether another state has a more or more recent significant connection with the child and whether that state meets one or more of the jurisdictional prerequisites of § 1702. Assuming then that the child has significant connections because she once lived here and her father and grandparents now live here, we shall make the comparison directed by UCCJA.

Florida was undisputably the home state of the child under § 1702 A(l) for about four years until August 1984. When Ms. Miller and Erin moved to Massachusetts, Florida may not have indefinitely continued as the “home state.” However, Florida still has, quantitatively a “significant connection” with the child because the child lived there for the last four years.

Florida, as we have said, was the home state for the previous four years. Florida rendered the initial divorce and custody decree. Florida had, and logically should have, available substantial particulars concerning the child’s care, protection, training, and personal relationships. Even assuming Louisiana has significant connections does not preclude a finding that Florida meets the significant connection test of § 1702 A(2).

The decision whether a Louisiana court should exercise jurisdiction is complicated by the fact that the child has been residing with her mother in Massachusetts since August 1984. Massachusetts is the one state which has not adopted UCCJA. Under Massachusetts law, however, Massachusetts has due-process jurisdiction to decide the custody dispute because of the physical presence of the child and her mother in that state. Mass.General Laws C. 208, § 29. See Murphy v. Murphy, 404 N.E.2d 69 (Mass.1980).

The applicant contends that although Louisiana may be assumed to have significant connection jurisdiction under § 1702, Louisiana should decline to exercise jurisdiction because it is an inconvenient forum.

We agree.

LSA-R.S. 13:1706 provides in pertinent part as follows:

“C. In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
“(1) If another state is or recently was the child’s home state.
“(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
“(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state.
“(4) If the parties have agreed on another forum which is no less appropriate, and
“(5) If the exercise by a court of this state would contravene any of the purposes stated in Section 1700.” Emphasis supplied.

Florida has a closer and more recent significant connection with the child and her mother than does Louisiana when the requisite comparison is made. We find that the district court failed to make the statutory inquiries and that it erred in denying the applicant’s exception of inconvenient forum. The applicant should not be required to defend modification of the Florida custody decree in a state which has not been the child’s home in over four years. Ms. Miller had the right or privilege under the Florida decree to move herself and the child to Massachusetts. Ms. Miller should not be required to litigate in Louisiana simply because Florida no longer may be the home state.

DECREE

We find that it would be in the best interest of the child and more convenient that the custody litigation occur either in Florida, the last home state of the child, or in Massachusetts, which now may become the home state of the child. Uniform Child Custody Jurisdiction Act (ULA), § 3, Commr’s Note p. 123.

We reverse the trial court and sustain the exception of inconvenient forum. We dismiss respondent’s petition for modification of the Florida custody decree. LSA-R.S. 13:1706 (E). We do not find, however, that the Louisiana court was clearly an inappropriate forum and do not award Ms. Miller costs in the proceedings under § 1706 (G). We assess costs, however, to the respondent.

REVERSED AND RENDERED.


author: GUIDRY, Judge.

text:
    Charles D. McCASKILL, Plaintiff-Appellant, v. Billy WELCH, Individually and Billy Welch d/b/a Billy Welch Welding & Repair Shop, Defendants-Appellees.
    No. 84-29.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writ Denied April 1, 1985.

      Lowther & Boone, Robert C. Lowther, Jr., Many, for plaintiff-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, R. Raymond Arthur, Natchitoch-es, for defendant-appellee-appellant.
    Gahagan & Gahagan, Marvin F. Gaha-gan, Natchitoches, for defendant-appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   GUIDRY, Judge.

Plaintiff, Charles D. McCaskill, filed suit against Billy Welch, individually, and Billy Welch d/b/a Billy Welch Welding and Repair Shop seeking damages for injuries sustained as a result of alleged defects in an oil well pumping unit manufactured by Welch. Defendant, Welch, answered the suit denying that the unit was defective and/or that he was the manufacturer. In the alternative, defendant pled the affirmative defenses of contributory negligence and assumption of risk. Welch filed a third party demand against his liability insurance carrier, Great Southwest Fire Insurance Company (Great Southwest), seeking full indemnity and attorney’s fees.

The trial court found that the unit was defective in design and manufacture; Welch manufactured the unit; plaintiffs brother and business partner, John McCas-kill, who was not a party to the law suit, was responsible in large measure for the design of the unit; and, plaintiffs own negligence at the time of accident was a cause in fact of his injuries. Based on these conclusions, the trial court found plaintiff 25% at fault; defendant 25% at fault; and, plaintiffs brother, John McCas-kill, 50% at fault. The trial court imputed the negligence of John McCaskill to plaintiff. Damages were fixed at the total sum of $44,161.60. Accordingly, judgment was rendered condemning defendant, Welch, to pay plaintiff the sum of $11,040.40 with legal interest from date of judicial demand until paid. Judgment was rendered in favor of defendant on the third party demand against Great Southwest.

Plaintiff and third party defendant appeal. Defendant, Welch, neither appealed nor answered the appeal.

FACTS

In the early part of 1980, plaintiff and his brother, John McCaskill, decided to engage in the business of drilling for oil. Neither had any expertise in this activity, their prior experience being limited to the drilling of water wells. The brothers formed a partnership known as C & J Oil Industries. Thereafter, with financial assistance from several investors, including Billy Welch, the partnership completed two oil wells, the maintenance and production of which was the responsibility of C & J Oil Industries.

Following the successful completion of the wells, it became necessary to equip the wells with pumping units. Since the type of pumping units required were in short supply, John McCaskill contacted defendant, Welch, with the proposition that he construct the needed units. Welch, a welder by trade with no prior experience in the manufacture of oil well pumping units, expressed an interest in the proposition.

Since neither John McCaskill nor Welch had any prior experience in the construction of oil well pumping units, together they visited well sites where pumping units were installed to observe their operation. After viewing several units, John McCaskill decided upon a “CMC” type unit, a diagram of which he drew from observation and delivered to Welch. Welch indicated that he could build the unit. Thereafter, with suggestions as to construction, including modification, from John McCaskill, Welch built two units in his welding shop in Men-denhall, Mississippi. As stated by the trial judge in his written reasons for judgment:

“... As Mr. John McCaskill would make suggestions, Mr. Welch would comply with them.... They worked together to build a functioning pumping unit. Together these two men groped for a way to make the units function....”

After completing the two units, they were delivered, installed, paid for and put into operation, although, as found by the trial court, “... neither unit ever functioned properly for any length of time”.

Plaintiff, as a partner of C & J Oil Industries, was responsible for operating what was known as the Bush well. One of the pumping units built by Welch was attached to this well. Approximately thirty-five minutes after it was attached, a section of the unit known as the “horse head” fell off. Welch returned to the well site to make the necessary repairs. On the day of initial installation and on the following day, plaintiff made minor repairs to the pumping unit.

On the third day of operation, a gas lock developed in the Bush well which caused the pumping unit to stall while the engine continued to run. As a result of the gas lock, the belts which turn the shafts began to burn. In order to stop the belts from turning, plaintiff reached up and pulled the clutch. As a result of pulling the clutch, the arm of the pumping unit jerked up suddenly causing the weights used to balance the arm to fall on plaintiff. The weights were housed in a box-type arrangement known as a saddle and were not secured. Plaintiff suffered numerous injuries as a consequence of the falling weights.

DEFECTIVE PRODUCT

In the instant case, plaintiffs demand against Welch stems from Welch’s manufacture of the product which caused his injury. A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiffs injuries were caused by reason of the defect. Weber v. Fidelity & Casualty Insurance Co., 259 La. 599, 250 So.2d 754 (1971).

The evidence presented at trial clearly establishes that the oil well pumping unit manufactured by Welch was unreasonably dangerous in normal use because the weights used to balance the rocker arm were not secured as is the standard practice in the industry. Had the weights been secured, the injury to plaintiff would not have occurred.

We fully agree with the trial court’s finding regarding Welch’s liability and, for the reasons which follow, we also affirm the percentage of fault the trial court attributed to Welch.

IS COMPARATIVE FAULT APPLICABLE IN PRODUCTS LIABILITY CASES

In products liability cases, the manufacturer is presumed to know the dangerous propensities of its product and is strictly liable for injuries resulting from the product’s unreasonable risk of injury in normal use. Kent v. Gulf States Utilities Co., 418 So.2d 493, 498 n. 6 (La.1982). Since the plaintiffs theory of recovery against defendant is based on strict liability, a determination must first be made as to whether or not the comparative negligence rule, as applied by the trial judge, was appropriate. La.C.C. Art. 2323.

In the recent case of Bell v. Jet Wheel Blast, 462 So.2d 166 (La.1985), the Louisiana Supreme Court was called upon to answer the following question certified by the United States Fifth Circuit Court of Appeal:

“Does the Louisiana Civil Code permit the defense known as contributory negligence to be advanced to defeat or mitigate a claim of strict liability based upon a defective product, the theory of liability commonly known as ‘product liability’?”

In answer to the question, the court stated:

“... [w]e conclude that the defense of contributory negligence as a complete bar to recovery should be rejected entirely, and that comparative fault may be applied in certain categories of cases to reduce the plaintiffs recovery.”

As we understand the Bell decision, the question of whether comparative fault is applicable in a products liability case must be decided on a case by case basis. According to Bell, a court must weigh the following factors in considering the applicability of comparative fault:

“... [wjhere the threat of a reduction in recovery will provide consumers with an incentive to use a product carefully, without exacting an inordinate sacrifice of other interests, comparative principles should be applied for the sake of accident prevention. The recovery of a plaintiff who has been injured by a defective product should not be reduced, however, in those type of cases in which it does not serve realistically to promote careful product use or where it drastically reduces the manufacturer’s incentive to make a safer product.”

Although Welch must be considered a manufacturer, we do not believe that the policy considerations mentioned in Bell for the unavailability of comparative fault as a defense in products liability cases are applicable under the circumstances of this case. Furthermore, we believe that the unwillingness of courts to apply the defense of contributory negligence in strict liability cases was founded, at least in part, on the oftentimes harsh results of the “all or nothing” rule. With the passage of the comparative negligence rule in Louisiana, the harsh effect of this absolute bar is ameliorated.

For reasons more fully discussed later, we conclude that the trial court’s finding that plaintiff was at fault in this case should not be disturbed. Plaintiff voluntarily undertook the task of operating an oil well pumping unit, which by its very nature presents a risk of harm, with only a rudimentary knowledge of the operation of the pumping unit. Plaintiff failed to discern the defective condition of the unit because of his basic unfamiliarity with the unit itself. Plaintiff did not have the necessary skill to operate this machinery and should not have attempted to do so. In light of this, we believe that a reduction of plaintiff’s recovery would serve to promote careful product use. However, before concluding that comparative fault is applicable in this case, we must, according to Bell, determine whether the use of comparative fault would work to drastically reduce the manufacturer’s incentive to make a safer product.

Welch, the manufacturer, is the owner of a one man welding shop in Mendenhall, Mississippi. At the urging of John McCas-kill, he undertook to construct oil well pumping units for use on McCaskill’s wells. Welch had never built a pumping unit before. Although Welch foresaw an opportunity to realize financial gain by his efforts, the results were disastrous. It is quite evident from the record that regardless of the degree of fault apportioned to Welch, be it 25% or 100%, it will have a serious financial effect on his business. Welch is not in a better economic position than plaintiff to underwrite the losses occasioned by this accident. We believe that Welch’s liability, apportioned by the trial court at 25%, may well act to dissuade him from engaging in any more manufacturing ventures or, at the very least, induce him to make safer products. We do not find that this is the kind of case where the application of comparative fault would serve to drastically reduce a manufacturer’s incentive to make a safer product. Therefore, we conclude that, in view of the considerations espoused in Bell, this is an appropriate case for application of comparative fault.

Since the comparative negligence law was in effect at the time of this accident and because of the particular facts of this case, we find that the trial court was correct in apportioning fault among those persons who contributed to the damage. As stated by the First Circuit in Buchanan v. Tangipahoa Parish Police Jury, 426 So.2d 720 (La.App. 1st Cir.1983), “[sjuch a rule makes it prudent for a claimant to take reasonable steps to provide for his own safety ... and would not reward him for failing to do so”.

Inasmuch as we find that the trial court was correct in applying the comparative negligence rule, we must determine whether plaintiff in this case was in fact negligent and, as such, guilty of comparative fault within the purview of C.C. Art. 2323.

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection. The standard of conduct to which the plaintiff must conform for his own protection is that of a reasonable man under like circumstances. Failure to take every precaution against every foreseeable risk or to use extraordinary skill, caution, and foresight does not constitute negligence or contributory negligence. The victim is required only to use reasonable precautions, and his conduct in this regard is not negligent if, by a common-sense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances. Dupas v. City of New Orleans, 354 So.2d 1311 (La.1978). The negligence of the plaintiff cannot constitute contributory negligence unless such negligence was a legal cause of the accident. Coleman v. Jackson, 422 So.2d 179 (La.App. 3rd Cir.1982).

In the present case, the trial court found plaintiff contributorily negligent and apportioned his fault at 25%. The trial court found that plaintiff employed an unsafe procedure to halt the pumping unit in order to stop the belts from turning and this unsafe procedure contributed to his injury.

A review of the record supports the findings of the trial court on this issue. It was established at trial that the use of the clutch in this situation did not stabilize the rocker arm because the brake was inoperative. Plaintiff was fully aware that the braking mechanism was inoperative. Had the brake been working properly, the use of the clutch and brake together would have stabilized the unit and prevented the weights from falling. Although it was established at trial that use of the clutch is not an uncommon practice, it was also established that, when the brake is inoperative and the weights are not secured in the saddle, the proper procedure to follow is to shut off the motor. Employing the clutch instead of stopping the motor contributed to the damage suffered by plaintiff in that the use of the clutch did not stabilize the rocker arm and allowed the arm to jerk up abruptly thereby throwing the unsecured weights out of the saddle.

Plaintiff testified that he was unaware that the weights were not secured in the saddle. However, we believe that a reasonably prudent operator faced with the operation of such a potentially dangerous piece of equipment should have ascertained this fact prior to operation of the unit.

The standard applicable in the instant case should be the standard applicable to a reasonably prudent operator of an oil well pumping unit, not that of a reasonable man totally unfamiliar with that type of machinery. This is so because it would be contributory negligence for one totally unfamiliar with the operation of such a unit to endeav- or to operate it. Applying this standard, it is appropriate to refer to expert testimony in the record that (a) a reasonably prudent operator is familiar with the weighting system employed in the particular unit which he operates; (b) he knows or should know whether or not the balance weights are secured; and, (c) the rocker arm will not remain totally stationary when the clutch is engaged unless the braking system is employed simultaneously.

In light of the above, we cannot say that the trial court was clearly wrong in finding plaintiff contributorily negligent.

IMPUTATION OF NEGLIGENCE

Plaintiff contends that the trial court erred in imputing the negligence of John McCaskill to him. Plaintiff asserts that the finding of the trial court in this regard is not appropriate based upon accepted jurisprudence and the law of Louisiana.

In New Orleans & Northeastern R. Co. v. T.L. James & Co., 205 So.2d 48 (La.App. 4th Cir.1967), the Fourth Circuit, citing American Jurisprudence, observed the general rule on imputation of negligence to be as follows:

“As a general rule, it may be said that in order to impute the negligence of one person to another, there must exist between them some relation of master or superior and servant or subordinate or other relation akin thereto. The relation between them must be one invoking the principles of agency, or the persons must be cooperating in a common or joint enterprise, or the relation between the parties must have been such that the person to whom the negligence is imputed must have had a legal right to control the action of the person actually negligent. As the rule is stated by the American Law Institute, the relation between the plaintiff and the third person must be such as to make the plaintiff responsible at common law for the negligent conduct of such third person. Conversely stated, negligence in the conduct of another will not be imputed to a party if he did not authorize such conduct, participate therein, or have the right or power to control it. The parties must stand in such relation to one another as to warrant the application of the principle expressed in the maxim ‘qui facit per alium facit per ge> * ⅜ *

The members of a partnership are liable for the torts of one of their number, although they had no knowledge thereof, where such tort is committed in the course of the partnership business. Edkins v. Edwards, 235 So.2d 200, 206 (La.App. 4th Cir.1970). The liability of one partner for the tortious action of another partner is analogous to the liability of a principal for acts of his agent, since each partner acts both as principal and agent of the other as to acts done within the apparent scope of the business and purpose of the partnership and for its benefit. 68 C.J.S. 616, 617.

In light of the above principles, we conclude that the imputation of negligence of a partner to a co-partner is in accord with the law. Hence, our inquiry on this issue will primarily concern whether the trial court erred in finding John McCaskill negligent.

The record reflects that John McCaskill contributed greatly to the design of the pumping unit. In fact, John McCas-kill informed Billy Welch about the particulars concerning the saddle system used to house the weights.

Clearly, John McCaskill’s contribution to the design of the pumping unit was geared to benefit the partnership. The scarcity of pumping units, which were indispensable to the operation of the oil wells, led to John McCaskill’s query of Billy Welch regarding Welch’s ability to fabricate the units. Since Welch had no experience in this field, John McCaskill was influential in the design of the unit which ultimately contributed to plaintiff’s injury.

Although we do not consider John McCaskill to be the manufacturer of the pumping unit, we conclude that the trial court did not manifestly err in finding that John McCaskill’s participation in the design of a pumping unit which was unreasonably dangerous amounted to negligence on his part which was a cause in fact of plaintiff’s injuries. As we stated earlier, regardless of the theory of liability, be it negligence or strict liability, the trial court should be allowed to apportion fault among the tort-feasors who have contributed to the damage. Also, because the negligent conduct of John McCaskill took place in the course of partnership business, his negligence was properly imputed to plaintiff, the co-partner.

APPORTIONMENT OF FAULT

In Triangle Trucking Co. v. Alexander, 451 So.2d 638 (La.App. 3rd Cir.1984), this court held that a trier’s findings as to percentage of fault under La.C.C. Art. 2323 is factual just as findings of contributory negligence under the old law were factual.

An appellate court may not disturb a trial court’s findings and conclusions of fact in the absence of clear or manifest error, or abuse of discretion. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), on remand 370 So.2d 1262 (La.App. 3rd Cir. 1979).

After a careful review of the record, we do not find manifest error in the trial court’s apportionment of fault. Accordingly, the trial court's findings of liability and apportionment of fault regarding plaintiff, John McCaskill, and Billy Welch are affirmed.

QUANTUM

Plaintiff asserts that the amount of the award made by the trial court was inadequate and' should be increased. The trial court determined the general damages of plaintiff to have been $40,000.00 and the medical expenses to have been $4,161.60, for a total of $44,161.60. Applying the comparative negligence rule, plaintiff’s award was reduced to an award of $11,-040.00.

In reviewing quantum awards, an appellate court can disturb an award made by the trial court only where the record indicates that the trier of fact abused its much discretion in making an award. Emerson v. Empire Fire & Marine Ins. Co., 393 So.2d 691 (La.1981).

The evidence presented at trial established that plaintiff sustained multiple injuries as a result of the mishap. The most serious injury suffered by plaintiff was a fracture of the tibia plate in the right knee. Reconstructive surgery was performed on the knee. According to Dr. Vise, the surgeon who performed the knee surgery, plaintiff’s operation was successful. Dr. Vise added, however, that two ligaments in the knee were excised and that this type of surgery was very painful. Dr. Vise opined that plaintiff has an impairment of the leg in the neighborhood of 12 to 15 percent.

While we have no doubt that plaintiff suffered painful injuries and may continue to suffer some discomfort, we are unable to find that the trial court abused its much discretion.

THIRD PARTY DEMAND

On appeal, Great Southwest questions the trial court’s casting it in judgment in favor of Billy Welch. Great Southwest asserts that the insurance policy issued to Welch provides no coverage under the circumstances of the instant case.

Under the policy provisions, Great Southwest agreed to pay for bodily injury or property damage for which the insured became legally obligated to pay as a result of an “occurrence”. However, according to exclusion (p), coverage under the policy did not apply “to bodily injury or property damage included within the completed operations hazard or the products hazard”.

The completed operations hazard and the products hazard are defined in the policy as follows:

“... ‘completed operations hazard’ in-eludes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. ‘Operations’ include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
“(1) when all operations to be performed by or on behalf of the named insured under the contract have been completed, “(2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or
“(3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
“Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.”
“ ‘products hazard’ includes bodily injury and property damage arising out of the named insured’s products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others.... ”

Where completed operations and products hazards are excluded from coverage, as in this case, losses which occur subsequent to completion of the construction are not covered. State Farm Fire & Cas. Co. v. Avant, 404 So.2d 1311 (La.App. 2d Cir.1981); Adkins v. La Terre Development Corp., 387 So.2d 652 (La. App. 1st Cir.1980).

In his written reasons for judgment, the trial judge stated:

“Both of the units were ‘completed’ in the sense that they were manufactured, delivered, installed, paid for, and actually went into operation, though in truth and in fact neither unit ever functioned properly for any length of time.” After reviewing the record, we find support for the trial court’s finding that the unit in question was completed prior to the plaintiff’s injury. While we agree with the lower court’s finding in this respect, we must disagree with its finding of liability on the part of Great Southwest. Clearly, the completed unit falls within the completed operations hazard exclusion, consequently, coverage is excluded. Hence, the trial court erred in granting judgment in favor of Welch on the third party demand.
For the above and foregoing reasons, the judgment of the trial court is reversed as to the third party demand. Accordingly, it is ordered, adjudged and decreed that the demand of third party plaintiff, Billy Welch, against Great Southwest Fire Insurance Company is ordered dismissed with prejudice. In all other respects, the judgment of the trial court is affirmed. Billy Welch is cast for all costs at the trial level and on appeal.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.

LABORDE, J., concurs in the result.

      . Plaintiff does not question the existence of a partnership between he and John McCaskill.

      . In the instant case, we need not consider whether John McCaskill's entire allocation of fault (50%) is imputable to plaintiff (see Comment (c) La.C.C. Article 2817), or whether only plaintiff’s virile share thereof is imputable (see Edkins v. Edwards, supra), as, considering plaintiffs own fault percentage, under either imputation, the degree of fault allocable to plaintiff is greater than that of Welch. Therefore, Welch is not liable for more than his degree of fault. La.C.C. Art. 2324; Vamado v. Continental Insurance Company, 446 So.2d 1343 (La.App. 1st Cir.1984).