text:
    GENERAL ELECTRIC COMPANY, INC. v. LOUISIANA ELECTRICAL SUPPLY COMPANY, INC.
    No. CA 83 1234.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      John L. Feduccia, Hammond, for plaintiff-appellant.
    Gordon Matheny, Hammond, for defendant-appellee.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

This is an action on an open account brought by General Electric Company, Inc. (G.E.) against a distributor, Louisiana Electrical Supply Company, Inc. (LESCO). Of the balance allegedly due on account ($13,-913.55), LESCO in answer stated that it had paid part, leaving only a disputed amount as to which LESCO contends it is entitled to a rebate, leaving a zero balance due. The testimony as to the claimed rebate is totally in conflict, the trial court having held that the right to be entitled to the rebate had been fully proven by LES-CO, so that no remaining balance was due G.E. The trial court therefore dismissed plaintiff’s suit, and G.E. has appealed. We affirm.

In proving an open account, plaintiff first must prove the account by showing that it was .kept in the course of business and by introducing supporting testimony as to its accuracy. Once a prima facie case has been established by a plaintiff-creditor, the burden shifts to the debtor to prove the inaccuracy of the account or to prove that the debtor is entitled to certain credits. Cardinal Wholesale Supply, Inc. v. Rainbow Floor Covering, 432 So.2d 419 (La.App. 1st Cir.1983).

In the present case, G.E. established a prima facie case. LESCO then attempted by testimony to prove that it was entitled to a rebate of 15% on certain items, and G.E. attempted to show the rebate should not be allowed. The trial court in its reasons for judgment indicated that it believed defendant’s witnesses. Thus, we must conclude that it disbelieved plaintiffs witnesses, as the testimony on either side was directly in conflict.

Briefly, the witnesses for LESCO were Mrs. Joanne Grimes and Henry Rayborn, both of whom testified that two G.E. representatives in succession, Richard Jarrett. and Don Edwards, had promised a rebate of 15% on certain items in conversations with Mrs. Grimes and Rayborn. They denied that either Jarrett or Edwards had ever spoken to Mrs. Grimes’ husband, and stated that Jarrett and Edwards had both promised to deliver to LESCO the necessary rebate forms, but they neglected to do so for many months. Jarrett, Edwards, and Richard Johnson, G.E.’s district manager, all testified that the correct rebate percentage was 5.7%, not 15%, and that it was offered only in case of resale by the distributor to certain designated contractors, with whom G.E. desired to place the distributor on a competitive basis with the distributors for other manufacturers of certain electrical equipment. Jarrett and Edwards, neither of whom now works for G.E., also stated that they had talked to Donald Grimes, Mrs. Joanne Grimes’ husband, and to another LESCO employee, David McBride, rather than to Mrs. Grimes and Rayborn, and that LESCO had failed to complete the necessary rebate forms, which had been promptly supplied.

There was thus a direct contradiction in the testimony, which the trial court resolved in favor of defendant LESCO. When the testimony is in conflict the reviewing court must give great weight to the factual conclusions of the trier of fact, although the reviewing court may feel its own evaluations and inferences are as reasonable, in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Here, the trial court obviously believed the testimony of the witnesses for LESCO, Mrs. Joanne Grimes and Henry Rayborn. In its analysis of the testimony, we can find no manifest error, as the testimony of LESCO’s witnesses was consistent within itself and completely contradictory to that of G.E.’s witnesses.

G.E. contends the testimony of the LESCO witnesses was in the nature of parol evidence and was used to vary the terms of a written contract between G.E. and LESCO dated “8-23-80”. However, the business dealings between G.E. and LESCO were rather informal and as a result the contract instrument, a business form in which blanks were filled in, is of uncertain meaning. Where the terms of a written contract are susceptible of more than one interpretation, or there is uncertainty or ambiguity as to its provisions, and 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. Dixie Campers, Inc. v. Vesely Company, 398 So.2d 1087 (La.1981). Thus, parol was properly used.

The judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: CARTER, Judge.

license: Public Domain

text:
    Sadie Aline CAMPOS, Individually and as Provisional Curatrix of Her Son, Donald Jerome Campos, and Donald Jerome Campos, Individually v. Shelton GERALD, Alton Gerald, and Allstate Insurance Company.
    No. 83 CA 1241.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied Jan. 7, 1985.

      Robert B. Keaty and Carolyn Ingraham, New Orleans, John N. Gallaspy, Bogalusa, for plaintiff-appellant.
    Lawrence J. Duplass, New Orleans, for defendant-appellee.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge.

Plaintiffs, Sadie Aline Campos and Donald Jerome Campos, appeal the trial court’s granting of the motion for summary judgment filed by defendant Fairchild Livestock Sales, Inc.

On May 3, 1980, co-defendant Alton Gerald purchased a jersey bull at Fairchild Livestock Sales, Inc. (Fairchild). Defendant Gerald obtained custody of the animal and thereafter on July 8, 1980, it escaped from an enclosure attacking and seriously injuring Donald J. Campos. Plaintiffs filed suit on July 24, 1980, against Shelton Gerald, Alton Gerald, and their insurer, Allstate Insurance Company. By amended petition, plaintiffs allege the liability of Fair-child under theories of strict liability and negligence. Specifically, plaintiffs allege that Fairchild is liable for “the actions of a bull which was owned and/or sold and/or marketed” by Fairchild. On November 11, 1981, Donald J. Campos compromised and settled his claim against Shelton Gerald, Alton Gerald, and Allstate Insurance Company, asking that the proceedings be dismissed with prejudice only as to those parties. A full reservation of rights was reserved as to Fairchild. Thereafter, Fair-child moved for summary judgment, attaching affidavits. After a hearing, the trial court granted Fairchild’s motion for summary judgment.

On appeal, plaintiffs contend that the trial court erred in maintaining Fairchild’s motion. Specifically, they allege that the Court apparently based its decision on no cause of action or no right to recover against Fairchild. However, in brief, plaintiffs contend that Fairchild had a duty to warn of the dangerous propensities of the bull before placing it into the stream of commerce. Therefore, we conclude that plaintiffs contend Fairchild is liable under either LSA-C.C. arts. 2315, 2317 or 2321.

It is well settled that a motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits if any, show that reasonable minds must inevitably conclude that the mover is entitled to a summary judgment as a matter of law. LSA-C.C.P. art. 966(B); Bartlett v. Calhoun, 430 So.2d 1358 (La.App. 3rd Cir.1983), writ denied, 438 So.2d 575 (La.1983). The burden of showing that no genuine issue of material fact exists is upon the mover of the motion for summary judgment, all doubts being resolved against the granting of such motion and in favor of a trial on the merits. Bartlett, supra. Based upon the following discussion, we find that the trial court correctly granted Fairchild’s motion.

Liability Under LSA-C.C. Arts. 2317 and 2321

The Louisiana Supreme Court succinctly set forth the obligations of an owner-custodian and a non-owner-custodian of animals in Rozell v. Louisiana Animal Breeders Co-op, 434 So.2d 404, 407-408 (La.1983), as follows:

According to Loescher [v. Parr ], “Article 2317 embodies the concept of the legal fault of the guardian of a thing for the damage caused by the defect of his thing.” 324 So.2d [441] at 448 [La.1975]. However, the “similar [but not identical] concept of legal fault” in Article 2321 is based not on guardianship and defectiveness but “the deficient act” of the animal. 324 So.2d 448. The deficiency in the case of an animal rests in the infliction of the damage. “The fault committed by the proprietor ... of the animal has no need to be proved: it is presumed by the law, which declares him legally responsible for the damage.” (footnotes omitted)

The affidavit submitted by Fairchild clearly indicates that Fairchild never owned the bull in question, but was merely a broker in the sale of animals. Additionally, the affidavit indicated that for over two months preceding the accident, Fairchild exercised no possession, control, or influence over the bull. The bull was owned by and was in the total control and custody of defendant Gerald. Moreover, plaintiffs in their memorandum in opposition to the motion for summary judgment concede that Fairchild was not the owner or custodian of the bull at the time of the injury and had previously been a commission agent.

Básed upon these facts, we find that reasonable minds must inevitably conclude that Fairchild was neither an owner nor a custodian of the bull and that LSA-C.C. arts. 2317 and 2321 are inapplicable to the instant case.

Liability Under LSA-C.C. art. 2315

In determining negligence liability, the courts of this State have adopted a duty-risk analysis approach. See Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). To hold the defendant liable for his negligence, each of the following questions must be answered in the affirmative: 1) do the risks and harm encountered by plaintiff fall within the protection of a legal duty owed to plaintiff by defendant; 2) was defendant negligent, i.e., did defendant breach the duty owed to plaintiff; 3) was defendant’s action a cause-in-fact of plaintiff’s injury; and, 4) was plaintiff damaged by defendant’s conduct. Dixie Drive It Yourself Sys. v. American Beverage Co., supra.

Did defendant owe a duty to plaintiff?

Although plaintiffs argue that the case sub judice is a products liability case and that Fairchild had a duty to warn plaintiffs of the dangerous propensities of the bull, the factual situation presented herein is clearly not one of products liability.

We have carefully reviewed the record and the relevant theories of recovery available to plaintiff. However, we can find no duty on the part of Fairchild to plaintiffs. Therefore, we find that reasonable minds must inevitably conclude that, as a mattqr of law, Fairchild owed no duty to plaintiff and that Fairchild, therefore, is not liable for plaintiff’s injuries under LSA-C.C. art. 2315.

For the above reasons, the judgment of the trial court granting Fairchild’s motion for summary judgment is affirmed. Costs of this appeal are assessed against plaintiffs.

AFFIRMED.

      . We note in the motion to dismiss that a reservation of rights was reserved against Kentwood Livestock Sales, Inc. and Fairchild Livestock Sales, Inc. However, the record is devoid of any pleadings which name Kentwood Livestock Sales, Inc. as a defendant. As such, we need only discuss issues as to Fairchild.

      . LSA-C.C. art. 2317 reads as follows:
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

      . LSA-C.C. art. 2321 reads as follows:
      The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment.


author: WATKINS, Judge.

text:
    Wanda E. BAILEY v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, OFFICE OF FAMILY SECURITY.
    No. 83 CA 1246.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Kenneth R. Williams, Baker, for plaintiff-appellant.
    Dorothy J. Kyle, Baton Rouge, for defendant-appellee.
    Robert R. Boland, Jr., Baton Rouge, for H. Sumrall.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

Wanda E. Bailey, an employee of the Department of Health and Human Resources, Office of Family Security, making disability determinations, brought the present appeal before the State Civil Service Commission, complaining that (1) she had been given an adverse job evaluation report and (2) she had been treated in a discriminatory manner. The appointing authority moved for summary disposition before the Civil Service Commission, contending (1) the job evaluation report was not unfavorable and (2) the allegations of discrimination were not set forth in Mrs. Bailey’s appeal with sufficient specificity. The Civil Service Commission, through its referee, being of the opinion that the contentions of the appointing authority were correct, granted the summary disposition and dismissed the appeal. From that ruling, Mrs. Bailey appeals to this court. We affirm.

State Civil Service Rule 10.4 provides for an appeal of an “unsatisfactory job rating”. The difficulty with Mrs. Bailey’s position is that she was given a “satisfactory” overall rating, and in comments was indicated to be an efficient employee, although it was stated she had difficulty cooperating with the other employees. As an appeal may be had only from an “unsatisfactory” job rating, and as Mrs. Bailey was given a “satisfactory” rating, which is the only other rating available, she has no valid complaint. The comments after the rating were not as a whole unfavorable, as she was commended for the accuracy and quality of her work, and furthermore, the comments do not constitute the basis of an appeal, an appeal normally being available only from the job rating itself, not the comments thereunder.

As to the allegations of discrimination, charges of discrimination must set forth in detail the alleged discriminatory conduct, the name of the party guilty of the discrimination, as well as the date and circumstances, and the name of the parties treated differently than .the complainant. State Civil Service Rule 13.11. Not only is this information not given, but Mrs. Bailey first states her supervisor (unnamed) treated her unfairly, and then (in another place in some twenty-five general allegations with little detail) states that she did not know who was her supervisor and was constantly misinformed as to who her supervisor in fact was. The overall allegations are far too loosely and inexactly stated to form the basis of a proper complaint of discrimination. See Legros v. Department of Public Safety, 364 So.2d 162 (La. App. 1st Cir.1978), writ denied, 366 So.2d 562 (La.1979).

Thus, the appeal was the proper object of summary dismissal.

The judgment of the State Civil Service Commission is affirmed, at appellant’s cost.

AFFIRMED.


text:
    Philip Harold DURAL, etc. v. CITY OF MORGAN CITY, et al.
    No. 83 CA 1251.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      See also, La.App., 449 So.2d 1047.
    William H. Lambert, Lafayette, for plaintiff-appellant.
    James B. Supple, Franklin, for defendant-appellee.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

The present action was brought by Phillip Harold Dural on his own behalf and on behalf of his minor child, Andrea Dural, for personal injuries sustained by Andrea while swimming in a public pool. Named defendants are the City of Morgan City and Bart Mancuso. From a judgment dismissing plaintiff’s petition for failure to answer interrogatories under court order, plaintiff appeals. We affirm.

On November 13, 1980, defendants filed some sixteen interrogatories (not including subsections) to be answered by plaintiff. No answer to these interrogatories is in the record and presumably none was ever filed. Suit was dismissed at that time for failure to answer interrogatories and inattendance of counsel for plaintiff at a pretrial conference. We set aside the judgment dismissing the suit in an opinion in our proceeding No. 14,391, dated November 23, 1981 (407 So.2d 757), and remanded the case for further proceedings.

On March 7, 1983, defendants filed a contradictory motion to compel answers to interrogatories. Hearing was set for May 20, 1983, and notice furnished all counsel. On May 20, 1983, the matter was continued until July 1, 1983, as is reflected by the minutes of court. Notice was sent to all counsel- of the July 1, 1983, contradictory hearing on May 24, 1983. Presumably counsel for plaintiff was given notice as the record indicates notice was sent out.

Judgment was rendered on July 1, 1983, and signed on July 6, 1983, on the motion to compel answers. Plaintiff was ordered to file answers within fifteen days, or by July 18, 1983, to interrogatories. Only counsel for defendants was present at the July 1, 1983, hearing. Yet the hearing was not ex parte, counsel for plaintiff to the contrary, as defendants proceeded by contradictory motion and counsel for plaintiff was afforded due notice and yet neglected to appear. Motion to dismiss was filed by defendants on July 19, 1983, and an ex parte order dismissing plaintiffs suit was signed that date. Despite the protests of counsel for plaintiff to the contrary, an ex parte order is clearly permitted and contemplated in the event of failure to provide discovery after the granting of a contradictory motion requiring discovery. LSA-C. C.P. art. 1471. Thus, there can be no valid objection to the procedure used to compel discovery.

Plaintiff filed a motion for a new trial upon the dismissal of suit stating that counsel for plaintiff had since the trial obtained the name and address of an out of state witness which he had earlier been unable to obtain. Yet, the interrogatories as we have stated contained over 16 questions, many with several subsections. The answering of one question would be insufficient to meet the requirements of the discovery article in the Code of Civil Procedure.

Accordingly, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


author: LANIER, Judge.

text:
    Brenda EUBANKS v. Richard McDOWELL.
    No. CA 83 1252.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Bart Eaton, Baton Rouge, for plaintiff-appellee Brenda Eubanks.
    Richard McDowell, in pro. per.
    Before COLE, CARTER and LANIER, JJ.
   LANIER, Judge.

This is a suit by a lessee against her lessor for the remission of rent for one month ($310) and refund of a security deposit ($150). After a trial on the merits, the trial court, without assigning reasons, rendered judgment awarding the lessee $310. From this judgment, the lessor took this devolutive appeal.

FACTS

Brenda Eubanks leased an apartment at 9357 Prescott Road in Baton Rouge, Louisiana, on a month to month basis from Richard McDowell. On April 7, 1983, a flood occurred and forced Eubanks to leave the apartment and stay at her mother’s residence. Shortly after the flood, Eubanks called McDowell, advised him she could not live in the apartment and asked for a refund of her rent and deposit. McDowell responded he would get back to her later. Eubanks did not reoccupy the apartment once the water receded.

As a result of the flood, the carpeting in the apartment was ruined. On April 13, 1983, McDowell asked Eubanks to remove her belongings from the apartment as soon as possible so the carpet could be replaced. Eubanks was involved with income tax work at the time and made arrangements with McDowell to have her things removed by April 16, the day after the tax deadline. McDowell purchased the new carpet for the apartment on April 14, 1983.

There is some dispute as to the actual day that Eubanks removed her things from the apartment, but the new carpet was in the apartment by April 20. Eubanks determined that the apartment “was not liveable” and refused to reoccupy it. She filed suit on July 13,1983, demanding the return of the rent and deposit.

REMISSION OF RENT DURING REPAIRS OF LEASED PREMISES

La.C.C. art. 2697 provides:

If, during the lease, the thing be totally destroyed by an unforseen [unforeseen] event, or it be taken for a purpose of public utility, the lease is at an end. If it be only destroyed in part, the lessee may either demand a diminution of the price, or a revocation of the lease. In neither case has he any claim of damages.

La.C.C. art. 2700 provides:

If, during the continuance of the lease, the thing leased should be in want of repairs, and if those repairs can not be postponed until the expiration of the lease, the tenant must suffer such repairs to be made, whatever be the inconvenience he undergoes thereby, and though he be deprived either totally or in part of the use of the thing leased to him during the making of the repairs. But in case such repairs should continue for a longer time than one month, the price of the rent shall be lessened in proportion to the time during which the repairs have continued, and to the parts of the tenement for the uses of which the lessee has thereby been deprived.
And the whole of the rent shall be remitted, if the repairs have been of such nature as to oblige the tenant to leave the house or the room and to take another house, while that which he had leased was repairing.

The jurisprudence, in interpreting these articles, has drawn a distinction between damage which requires reconstruction (partial destruction) and damage which merely necessitates repairs (mere injury). If only repairs, rather than reconstruction, are necessitated by an unforeseen event, the lessee is not entitled to cancel the lease. Bernstein v. Bauman, 170 La. 378,127 So. 874 (1930); Vincent v. Frelich, 50 La.Ann. 378, 23 So. 373 (1898).

In Bossier Center, Inc. v. Palais Royal, Inc., 385 So.2d 886, 889 (La.App. 2nd Cir. 1980), the court set forth a number of factors used to determine whether a partial destruction or a mere injury has occurred: “(1) length of time the repairs would take, (2)the partial or absolute deprivation of lessee’s use of the premises, (3) the length of time lessee would be displaced, (4) damage done to the lessee’s stock, goods and merchandise, (5) the amount paid by the insurer of the building to the insured (as compared with the value of the building prior to damage), (6) the cost of repairs to the premises (as compared with the total value of the pre-damaged premises), and (7) to what degree and which parts of the building are damaged.”

The damage caused by the flood to the apartment was minimal and took only four working days to repair. The major repair was the replacement of the carpet at a cost of $828.90. There was no damage to the structural integrity of the building. The damage involved here was mere injury, not partial destruction.

Eubanks leased the apartment as her residence. The damage to the apartment was relatively minor and the necessary repairs were made by McDowell. Although the damaged condition of the apartment may have been an inconvenience to Eu-banks, it did not render the apartment permanently unfit for use as her place of residence. Cf. Billeaudeaux v. Soileau, 303 So.2d 810 (La.App. 3rd Cir.1974).

The damage to Eubanks’ apartment made repairs necessary during the continuance of the lease. Under La.C.C. art. 2700, she was obliged to suffer such repairs to be made, and, since she was obliged to leave the apartment while the repairs were being made, she is entitled to some remission of the rent.

Article 2700 provides that “the whole of the rent shall be remitted” if the tenant is obliged to leave the house during the repairs. However, the comments to Article 2700 indicate that the translation from the French text is incomplete and should read “the whole of the rent shall be remitted during the continuance of the repairs.” (Emphasis added). This interpretation would entitle the lessee to only a partial remission of the rent for the time that he is actually obliged to vacate the premises. This interpretation was followed in Pontalba v. Domingon, 11 La. 192, 194 (1837), where the court stated, “[t]he repairs were necessary, and the lessee was bound to suffer them to be made, and was entitled to no allowance therefor, except a suspension of the rent during the time he was obliged to quit the house.” (Emphasis added).

The flooding of the apartment started at 2:00 a.m. on April 7, 1983. The repairs of the apartment were completed on April 20, 1983, fourteen days later. Eu-banks is entitled to remission of rent for this fourteen day period. The trial court judge committed error by remitting the rent for the whole month. Eubanks is only entitled to judgment for $144.67 ($310 -h 30 X 14).

DECREE

For the foregoing reasons, the judgment of the trial court is amended to reduce the plaintiff’s award to $144.67. In all other respects, it is affirmed. Appellant is cast for the costs of this appeal.

AMENDED AND AFFIRMED.

      . The judgment of the trial court made no mention of the deposit. Silence in a judgment as to any part of a demand made in litigation is construed as a rejection of that part of the claim. Succession of Kelly v. Schauff, 323 So.2d 243 (La.App. 1st Cir.1975). Eubanks has not appealed or answered the appeal, and this portion of the claim is no longer at issue.

      . Because the trial court did not assign reasons for judgment, we must review the factual evidence in a light most favorable to the prevailing party (the lessee). Jeffers v. Hansen, 441 So.2d 283 (La.App. 4th Cir.1983); Texas General Petroleum Corporation v. Brown, 408 So.2d 288 (La.App. 2nd Cir.1981).


text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY.
    No. 83 CA 1258.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Ben R. Downing, Jr., Baton Rouge, for plaintiff-appellee.
    Wade Shows, Glenn Dupree, Baton Rouge, for intervenor-appellant.
    John A. Stewart, Jr., New Orleans, for defendant-appellee.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

This is an action brought by Federal National Mortgage Association to obtain the proceeds of a homeowner’s insurance policy allegedly due Federal under a loss payable clause. The mortgagors, Terry Lane Gaughf and Gloria Burch Gaughf, intervened, claiming the proceeds. The homeowners carrier, Prudential Property and Casualty Insurance Company, deposited the sum in controversy in the registry of the court and admitted the sum was due either Federal, the plaintiff, or the Gaughfs, the intervenors. The trial court held the sum was due Federal, and the Gaughfs appeal. We vacate the judgment of the trial court and remand for the reasons set forth herein.

Terry Lane Gaughf and Gloria Burch Gaughf purchased the western portion of Lot “F”, West Harding Heights Subdivision, Baton Rouge, on March 26, 1975, and executed a promissory note secured by a mortgage, which note was subsequently purchased by Federal. The Gaughfs fell into arrears in their payments under the note, and Federal filed suit by executory process against the Gaughfs, seeking a writ of seizure and sale, and requesting that the sale be made without appraisement.

After the property was seized by the sheriff, but before sale, the house built upon the mortgaged property was substantially damaged by fire. The sheriffs sale was conducted without appraisement after the fire, and Federal bid in the property. Federal now claims the homeowners proceeds resulting from the fire under the loss payable clause, and the Gaughfs claim the insurance proceeds, contending that the Deficiency Judgment Act (LSA-R.S. 13:4106 et seq.) destroys whatever right the noteholder, Federal, may have had to the insurance proceeds, as the sheriffs sale was made without appraisement.

The pertinent section of the Deficiency Judgment Act applying to the present situation is LSA-R.S. 13:4106, which reads as follows:

If a mortgagee or other creditor takes advantage of a waiver of appraisement of his property, movable, immovable, or both, by a debtor, and the proceeds of the judicial sale thereof are insufficient to satisfy the debt for which the property was sold, the debt nevertheless shall stand fully satisfied and discharged insofar as it constitutes a personal obligation of the debtor. The mortgagee or other creditor shall not have a right thereafter to proceed against the debtor or any of his other property for such deficiency, except as provided in the next paragraph.
If a mortgage or pledge affects two or more properties, movable, immovable, or both, the judicial sale of any property so affected without appraisement shall not prevent the enforcement of the mortgage or pledge in rem against any other property affected thereby.
The Deficiency Judgment Act was held in Powell v. Motors Insurance Corporation, 235 So.2d 593 (La.App. 1st Cir.1970) to cut off the mortgagee’s rights under a loss payable clause once a sheriffs sale without appraisement takes place, this court reasoning that the mortgagee can have no greater right against the debt- or’s insurer than it has against the debt- or itself. A result contrary to the Powell result was reached in Guinn v. Houston Fire & Casualty Ins. Co., 32 So.2d 613 (La.App. 1st Cir.1947) and in American Bank & Trust Co. v. Byron, 347 So.2d 850 (La.App. 2d Cir.1977), writs denied, 351 So.2d 155 (La.1977), these two cases proceeding upon the rationale that the right to insurance proceeds under a loss payable clause vests in the mortgagee at the time of loss, and is not affected by a subsequent sale of the property without appraisement at the instance of the mortgagee.
Noting the conflicting jurisprudence, the Louisiana Supreme Court in Rushing v. Dairyland Insurance Company, 456 So.2d 599 (La.1984), upheld the Powell decision, in cases in which there is a simple loss payable clause as opposed to one in which the mortgagee is given a direct right to the proceeds of loss insurance, reasoning that in case of a simple loss payable clause the sale without ap-praisement extinguishes the debt, and hence extinguishes the mortgagee’s right under a simple loss payable clause.

The present case was tried and decided by the trial court long before Rushing was handed down by the Supreme Court on September 10, 1984. The homeowners policy held by the Gaughfs is not in the record. Hence, it is impossible to classify the present loss payable clause. Furthermore, the trial court was not given an opportunity to consider the result to be reached in the present case in the light of Rushing. It is impossible for us to review the case in the posture in which it stands and give proper regard to the state’s Supreme Court opinion in Rushing. Counsel for both sides suggest we take into consideration the policy of insurance although it is not in the record. An appellate court may not take cognizance of evidence which is not in the record. Discon v. Saray, Inc., 265 So.2d 765, 262 La. 997 (1972); National American Bank of New Orleans v. Purvis, 407 So.2d 754 (La.App. 1st Cir. 1981). Thus, there is no course but to remand.

Accordingly, the judgment of the trial court is vacated and the case remanded for the introduction of the homeowners policy held by the Gaughfs. The case should thereupon be redecided with written reasons at the trial level. All costs shall await final disposition of the matter.

VACATED AND REMANDED.


author: COLE, Judge.

text:
    DEPARTMENT OF HEALTH AND HUMAN RESOURCES, OFFICE OF CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS v. Lois M. THOMPSON
    No. CA 83 1259.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Jane C. Scheuermann, New Orleans, for plaintiff-appellant.
    Mary E. Howell, New Orleans, Robert R. Boland, Jr., Baton Rouge, for defendant-ap-pellee.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The issue in this appeal is whether or not the Civil Service Commission erred in awarding attorney fees to Lois Thompson.

Ms. Thompson is employed as a Cardiopulmonary Technician II at Charity Hospital in New Orleans. By letter dated June 21, 1982 Ms. Thompson was reprimanded for certain alleged misconduct. She appealed this reprimand to the Civil Service Commission.

A request for summary disposition of her appeal was filed by Ms. Thompson on October 27, 1982 on the basis that the letter of reprimand did not contain specific details of the charges against her. The appointing authority thereafter reviewed the reprimand and acknowledged it was defective for the reason alleged by Ms. Thompson. Consequently, the appointing authority requested a continuance of a scheduled hearing in order to seek the Civil Service Director’s approval to rescind the reprimand (pursuant to Civil Service Rule 15.10(b)). The requested continuance was granted.

On November 4, 1982 the Director advised the appointing authority it would approve the requested rescission contingent upon the removal of the letter of reprimand from Ms. Thompson’s personnel file. Ms. Thompson’s attorney was requested to inform the Director once the removal of this letter was accomplished. Upon receiving verification from the appointing authority that the letter had been removed, the Director advised the parties by letter dated November 30, 1982 that Ms. Thompson’s appeal file was being retired. The reason stated for this action was that all relief sought by her had been granted. However, on this same date, Ms. Thompson’s attorney submitted a letter requesting $100.00 in attorney fees.

A hearing limited strictly to the issue of attorney fees was subsequently held before the Commission. At that time Ms. Thompson’s attorney requested an additional $100.00 in attorney fees for appearing at the hearing. The opinion ultimately issued by the Commission granted Ms. Thompson’s request for attorney fees to the extent of $100.00. The appointing authority has now taken the instant appeal. Ms. Thompson answered this appeal, seeking a $100.00 increase in the amount awarded.

Attorney fees generally are not awarded unless specifically provided for by contract or by statute. Frank L. Beier Radio v. Black Gold Marine, 449 So.2d 1014 (La.1984). Additionally, statutes authorizing awards of attorney fees must be strictly construed because of their penal nature. Id.

Since no contractual provision for attorney fees is involved herein, the apparent basis for recovery relied upon by Ms. Thompson is Civil Service Rule 13.35(a). Under this rule attorney fees may be awarded only in the following three situations: 1) when the Commission or a referee reverses or modifies action taken by the appellee; 2) when the Commission approves a settlement pursuant to Rule 13.31; or 3) when the Commission approves the rescission of disciplinary action pursuant to Rule 15.10(c). The first two situations are clearly inapplicable to this case. The opinion issued by the Commission in this matter merely awarded attorney fees, without reversing or modifying any action taken by the appointing authority (appellee in the appeal before the Commission). It is also clear no settlement pursuant to Rule 13.31 was made.

Additionally, this case did not involve action taken by the Commission under Rule 15.10(c). At the time of Ms. Thompson’s appeal before the Commission, Rule 15.-10(c) required the Commission’s approval for rescission of disciplinary actions involving the removal, demotion or reduction in pay of a permanent employee. However, it did not require the Commission’s approval for rescission of a reprimand. Under Rule 15.10(b) the Civil Service Director was authorized to rescind a reprimand, without any necessity for the Commission’s approval.

This procedure was followed in the present case. The Commission was not required to and did not approve the rescission of Ms. Thompson’s reprimand under Rule 15.10(c). Accordingly, an award of attorney fees was not authorized.

Since we find no basis for awarding attorney fees under the provisions of Rule 13.35(a), we conclude the Commission erred in making an unauthorized award of attorney fees to Ms. Thompson’s attorney. Accordingly, this award is hereby reversed. For the same reasons we reject Ms. Thompson’s request for additional attorney fees. Ms. Thompson is cast for the costs of this appeal.

REVERSED.

      . Rule 15.10(b) provides as follows:
      "(b) Subject to the provisions of Sub-section (c) of this Rule an appointing authority may, subsequent to the effective date thereof and with the approval of the Director, rescind or modify any personnel action notified to the Director.”

      . Rule 13.35(a) allows an award of attorney fees:
      "(a) When the Commission or a referee reverses or modifies the action taken by an appel-lee in a Civil Service appeal or when the Commission approves a settlement of an appeal pursuant to Rule 13.31, or when the Commission approves a recision (sic) of the disciplinary action pursuant to Rule 15.10(c), the appellee may be ordered to pay an amount not to exceed five hundred dollars as attorney’s fees.”

      .At the time of Ms. Thompson’s appeal Rule 15.10(c) provided as follows:
      “(c) No removal, demotion or reduction in pay of a permanent employee may be rescinded or modified without approval of the Commission.”
      This provision was subsequently amended by the Commission on August 2, 1983 to require the Commission’s approval for situations such as the present one. Under this amendment attorney fees are now authorized in such cases. However, this amendment is inapplicable to the present case since it took place after the rescission of Ms. Thompson’s reprimand and after the hearing before the Commission. Penal statutes are generally not applied retroactively.

      . Ms. Thompson argues the Civil Service Director had no authority to dismiss her appeal. In regard to this argument we note that despite language used by the Director, he did not actually dismiss Ms. Thompson’s appeal. While the Commission obviously regarded the issue of Ms. Thompson’s reprimand as moot (as it was in fact), it held a hearing and considered the sole remaining issue raised by her, i.e., attorney fees.

      . In view of our ruling on this issue, we preter-mit considerations of the other assignments of error raised by the appointing authority.


author: CRAIN, Judge.

text:
    William J. WEGER, et ux v. Geraldo R. SILVERIA.
    No. 83 CA 1271.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Ralph D. Hillman, Thibodaux, for plaintiff-appellant.
    Jack Wise, Thibodaux, for defendant-ap-pellee.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

This is an appeal from a judgment of the trial court in favor of Geraldo Silveria (ap-pellee) on his reconventional demand ordering his $10,000 deposit released to him by the Clerk of Court, awarding him $20,000 plus legal interest as damages, $2,500 for attorney’s fees and all court costs. William Weger (appellant) took this devolutive appeal.

TRIAL COURT PROCEEDINGS

Appellants instituted this suit alleging that as a result of appellee’s failure to make a bona fide effort to obtain a mortgage loan he breached a purchase agreement to buy appellants’ home. Appellant requested forfeiture of appellee’s $10,000 deposit plus attorney’s fees, interest and costs.

Appellants’ listing real estate agent, Century 21-Acadia Realty and Development Company, Inc., the escrow agent for the deposit, in anticipation of this litigation intervened and instituted a concursus proceeding impleading the parties to assert their respective claims to the ownership of the deposit which was placed in the registry of the Court.

Appellee answered and reconvened, denying appellants’ allegations and praying for judgment against both appellants and their realtor for return of the deposit and $20,000 in liquidated damages plus attorney’s fees, interest and costs.

Appellants entered a general denial to the reconventional demand.

FACTS

On August 31, 1982, appellee entered into an agreement to purchase appellants’ home for $60,000.00, with a $20,000.00 cash down payment and the remainder secured by a mortgage. The purchase agreement was conditional on appellee being able to obtain a loan to finance the unpaid balance through good faith effort within 15 days from date of the agreement. Appellee gave the listing realtor a deposit of $10,-000. On the same day, he went to the local branch office of the only bank he did business with and completed a mortgage loan application for the purchase of the home. Appellee was not a resident of the area and did not seek a loan from any other lending institution feeling he would be successful only at the bank where he was known.

On or about September 17 or 18, 1982, appellee was informed by his bank that his loan request had been denied because the property was not located in an approved Lafourche Parish Planning Commission subdivision. He then contacted the realtor and requested that his deposit be refunded. The realtor, acting on either appellants’ instructions or his attorney’s instructions, refused to return the deposit. Appellee then went to appellants’ attorney’s office and demanded his deposit back. He was told that he must make an additional loan application to another lender. Reluctantly, on September 22, 1982, appellee made another loan application to a different local savings and loan institution. On October 5, 1982, he discovered that his loan application had again been denied but this time the denial was based on insufficient income. However, as reflected by the record, the suit to forfeit his $10,000 deposit had been filed on September 27, 1982.

ISSUES

Appellants allege as their only assignment of error that the trial court erred in (1) finding appellee had made a good faith effort to secure a loan, (2) finding appellants- had breached the contract by de-dining to consent to the release of appel-lee’s deposit.

The purchase agreement entered into between the parties was subject to the suspensive condition that appellee obtain a loan through good faith effort within fifteen days of the agreement date. La.C.C. art. 2021. Appellee did exactly what the terms of the contract stipulated. He promptly made, in good faith, a bona fide application to his bank for the type of loan described in the agreement. Pending the outcome of this application, appellee was under no obligation to apply elsewhere. Despite the fact that he was not informed that his loan request had been denied until September 17 or 18, 1982, the agreement, by its own provisions, expired after September 15, 1982. After this date, appellee was under no obligation to make another loan application. Accordingly, we find no error in the trial court’s finding that appel-lee had made a good faith effort to secure a loan.

The trial judge then awarded ap-pellee $20,000 as liquidated damages resulting from appellants’ breach of the agreement due to his failure to return the deposit. Our findings that appellee complied with the provisions of the purchase agreement result in a finding that appellants breached the agreement by failing to return the deposit. With reference to liquidated damages, the agreement provides that “In the event the seller fails to comply with this agreement within the time specified, the purchaser shall have the right either to demand from the seller twice his deposit as damages or ... specific performance.” We interpret this provision to allow an award of damages only if the seller acts in bad faith in refusing to comply with the purchase agreement’s requirement to transfer the property. The record reflects that appellants were willing to complete the sale had appellee’s loan application been approved. Consequently, the $20,000 award as liquidated damages is inappropriate. On the other hand the provision for an award of attorney fees against “either party who fails for any reason whatsoever, to comply with the terms of this contract ...” justifies the award of attorney fees and costs against the appellant for refusing to return the deposit.

Accordingly, that portion of the trial court’s judgment awarding $20,000 as liquidated damages is reversed. In all other respects, the trial court’s judgment is affirmed, appellant to pay all. costs.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . La.C.C. art. 2021 provides as follows:
      Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the event happen, it is a suspensive condition; if the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then a resolutory condition.


text:
    Mr. & Mrs. Albert J. DAIGLE, Jr. v. OAKWOOD HOMES, INC., et al.
    No. 83 CA 1276.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      William E. LeBlanc, White Castle, for plaintiff-appellant.
    John Swanner, Horace C. Lane and Daniel G. McDowell, Baton Rouge, for defendant-appellee.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge.

This appeal arises out of a suit for recission of the sale of a mobile home or, in the alternative, for reduction of the purchase price.

FACTS

On April 11, 1979, Albert and Darlene Daigle purchased from Oakwood Homes, Inc. a new 1978 Carrousel mobile home, which had been manufactured by Sunshine Homes, Inc. Shortly after the purchase, plaintiffs discovered numerous structural and workmanship defects in their home. Plaintiffs advised both the seller and the manufacturer of the defects, but despite plaintiffs’ demands, the defects were never satisfactorily repaired.

Plaintiffs filed suit on April 24, 1980, seeking recission of the sale or, in the alternative, reduction of the purchase price. By amended petition, plaintiffs named as defendant Millers Mutual Fire Insurance Company of Texas (Millers Mutual), who had in full force and effect a bond covering Oakwood Homes, Inc.

The trial court rendered judgment in favor of plaintiffs and against Oakwood Homes, Inc. and their bonding company, Millers Mutual, for $3500.00 in damages plus $750.00 for attorney fees and against Sunshine Homes, Inc. for $1,500.00 in damages plus $750.00 for attorney fees.

Millers Mutual filed a motion for reconsideration before the formal entry of judgment, contending that the bond does not cover claims of the nature asserted by plaintiffs in this case. The trial judge granted defendant’s motion and dismissed plaintiffs’ suit against Millers Mutual.

From this judgment, plaintiffs perfected this appeal. Plaintiffs’ sole assignment of error is that the trial judge erred in finding that the bond executed by Millers Mutual did not cover claims of the nature asserted by plaintiffs in this case, viz., claims for redhibitory defects.

ARGUMENT

Millers Mutual executed a surety bond with Oakwood Mobile Homes, Inc. in favor of the Motor Vehicle Commissioner for the State of Louisiana, ' in the sum of $5,000.00. The conditions of the bond, executed in conformity with LSA-R.S. 32:718(D), are as follows:

[The dealer] shall fully comply with the conditions of any written contract made by him as such dealer in connection with the sale or exchange of any motor vehicle; and shall pay or cause to be paid by any person any loss or damages which any person shall sustain as a result of any failure to comply with the conditions of any written contract made by such dealer in connection with the sale or exchange of any motor vehicle or as a result of any violation of-the provisions of Chapter 4 of Title 32 of the Louisiana Revised Statutes of 1950 or any other law of Louisiana in the conduct of the business for which he is licensed.

The language of the bond closely follows the language of the statute as it read prior to amendment in 1981. It is designed to protect the purchaser from the unscrupulous motor vehicle dealer.

In the case sub judice, there was no failure on the part of Oakwood Homes to deliver and set-up the mobile home purchased by the Daigles in accordance with the written agreement. There were no misrepresentations relating to the identity of the vehicle or any other unscrupulous dealings on the part of Oakwood Homes, Inc. Plaintiffs’ chief complaint was that the mobile home was defective and had been improperly set-up. Furthermore, we do not interpret the bond to be applicable to a situation where the defects in a mobile home result in a judgment in quanti minor-is in favor of a purchaser, based on a seller’s implied warranties of fitness. Cf. Ashley v. Volkswagen of America, Inc., 380 So.2d 702 (La.App. 4th Cir.1980).

Statutory bonds must be strictly construed. Long Bell Lumber Co. v. S.D. Carr Const. Co., 172 La. 182, 133 So. 438 (1931); State v. Read, 164 La. 315, 113 So. 860 (1927). See also Boudreaux v. Puckett, 611 F.2d 1028 (5th Cir.1980). Considering the above and the purpose of the statute relating to the requirements of the bond, we find that the trial judge was correct in concluding that Millers Mutual’s bond does not cover plaintiffs’ claims in redhibition.

For these reasons, the judgment of the trial court is affirmed. Appellants are cast for the costs of this appeal.

AFFIRMED.

      . Millers Mutual moved for summary judgment, which was denied by the trial court.

      . Prior to amendment in 1981, LSA-R.S. 32:718(D) provided as follows:
      On and after January 1, 1969, annually, before any license shall be issued to a dealer, the applicant shall deliver to the commissioner a good and sufficient surety bond, executed by the applicant as principal and by a surety company qualified to do business in Louisiana as surety, in the sum of five thousand dollars. Such bond shall be in a form to be approved by the commissioner and shall be conditioned that the dealer shall comply with the conditions of any written contract made by such dealer in connection with the sale or exchange of any motor vehicle and shall not violate any of the provisions of this Chapter or any other law of Louisiana in the conduct of the business for which he is licensed. Such bond shall be payable to the commissioner and to his successors in office, for the use, benefit, and indemnity of any persons who shall suffer any loss as a result of any violation of the conditions hereinabove contained. Such bond shall be for the license period and a new bond or a proper continuation certificate shall be delivered to the commissioner at the beginning of each license period; provided however, that the aggregate liability of the surety in any one year shall in no event exceed the sum of such bond.
      “The term ‘dealer’ as used in this Section shall not include any person engaged in the business of buying, selling or exchanging the following:
      "Used motor vehicles solely for their scrap metal, when purchased from a licensed dis-mantler.
      LSA-R.S. 32:718(D) currently provides:
      On and after January 1, 1982, annually, before any license shall be issued to a dealer or a wrecker, the applicant shall deliver to the commissioner a good and sufficient surety bond, executed by the applicant as principal and by a surety company qualified to do business in Louisiana as surety, in the sum of ten thousand dollars for a dealer and five thousand dollars for a wrecker. Such bond shall be in a form approved by the commissioner and shall be conditioned to pay all loss, damages, and expenses that may be occasioned by reason of the failure of title or by reason of any fraudulent misrepresentation and/or breaches of warranty as a freedom from liens. It shall be further conditioned to guarantee the proper disposition of any sales tax collected by the dealer, or wrecker at the time of a transaction. In no event shall the coverage of the bond extent to any lender or financial institution in connection with the financing of a motor vehicle. The bond shall be for the license period, and a new bond or proper continuation certificate shall be delivered to the commissioner at the beginning of each license period; however the aggregate liability of the surety shall in no event exceed the sum of the bond regardless of the number of years it is continued in force.


text:
    SIDNEY N. COLLIER MEMORIAL VOCATIONAL-TECHNICAL SCHOOL v. Audrey M. CAULFIELD.
    No. CA 83 1279.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Writ Denied Jan. 25, 1985.
    R. Bruce Macmurdo, Percy, Macmurdo & Eaton, Baton Rouge, for appellant.
    John J. Gillon, Jr., New Orleans, for ap-pellee.
    Robert R. Boland, Jr., Civ. Service Legal Counsel, Dept, of State Civ. Service, Baton Rouge, for Herbert L. Sumrall.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The issue in this civil service case is whether or not an employee’s dismissal is invalidated by the failure of the appointing authority’s agent to comply strictly and literally with rule 12.3(a)(1) which requires the employee be given written notice of the termination at the time of or prior to such action.

The employee, Ms. Audrey Caulfield, was employed as a Custodial Worker III at Sidney N. Collier Memorial Vocational-Technical School. Because Ms. Caulfield required surgery she requested leave without pay in August of 1981. (She had exhausted all annual and sick leave.) On August 13, 1981, the new director of the school, Mr. Levi Lewis, called Ms. Caulfield and told her it was necessary for her to return to work. Ms. Caulfield informed him of her pending surgery and said she would send her daughter, Sheila Coleman, to work in her place. Mr. Lewis agreed Ms. Coleman could “hold” the position for Ms. Caulfield until the latter could return to work.

After the surgery was performed Ms. Caulfield phoned Mr. Lewis and informed him her daughter was needed at home and therefore would not be able to continue to work at the school. Mr. Lewis told her under those circumstances he would have to hire someone to replace her on a permanent basis.

On August 26, 1981 Mr. Lewis wrote Ms. Caulfield a letter stating she was terminated effective that day at 3:00 P.M. The reason for the termination was she had exhausted all leave and her current illness prevented her from performing her job duties. [See rule 12.10(a).] Ms. Caulfield received the letter on or about August 28. She appealed timely her termination, stating that the basis for her appeal was “... that charge contained in this letter is not true.” The Commission noted on its own Ms. Caulfield had not received notice in the manner set forth by rule 12.3(a)(1). It held a hearing limited to the issue of notice and ruled because the rule had not been followed, the termination was invalid. Ms. Caulfield was ordered reinstated and was granted approximately two years of back pay plus credit for the annual and sick leave she would have accumulated. The appointing authority, The Board of Elementary and Secondary Education (BESE), appealed.

We note here we are not concerned with the merits of the case but only with the Commission’s decision to invalidate the action due to the late notice.

In its written opinion, the Commission stated “... a disciplinary removal taken without prospective notice to the employee is void ab initio” and cited Louviere v. Pontchartrain Levee District, 199 So.2d 392 (La.App. 1st Cir.1967). In Louviere, the appointing authority violated rule 12.-2(a) by failing to notify the employee of his suspension until after its effective date. The court stated the rules of the Commission, which have the effect of laws, must be strictly obeyed or else the disciplinary action is totally ineffective.

We agree with the opinion of the Commission. The employee in Louviere received a letter dated September 21, 1965 informing him that his suspension had become effective on September 15, 1965. This was in direct contradiction to rule 12.2(a) which stated the employee “shall” be notified on or before the effective date of the suspension.

The employee in the present case received a letter of termination sometime after August 26, 1981 informing her that her position had been terminated as of August 26. This action was in direct violation of rule 12.3(a)l which states the appointing authority or its agent (in this case the director of the school) “shall” give a written statement to the employee at the time such action is taken or prior thereto.

Appellant argues the Louviere decision is no longer valid in that it was based upon Boucher v. Division of Employment Security, 226 La. 227, 75 So.2d 343 (1954), which has since been overruled by Sanders v. Dept. of Health & Human Resources, 388 So.2d 768 (La.1980).

Boucher and Sanders both involved a violation of the rule which required the appointing authority to notify the Director (as well as the employee) of the disciplinary action taken. The Boucher court held that failure to do so invalidated the action. In Sanders the court reconsidered the matter and reached the opposite result, holding that although the rule was phrased in imperative language (i.e., using the word “shall”), the rule was directive rather than mandatory.

The Sanders court stated the purpose of the civil service rules was to avoid political discrimination, to preclude favoritism, and to guarantee the security and welfare of public service. The court concluded the failure to notify the Director within the specified time period did not thwart the purpose of the rules. To the extent that Boucher was to the contrary, it was overruled.

The Sanders court specifically stated it was expressing no opinion as to the classification of any rules other than 12.3(a)(3). The court warned that “... each rule must be classified separately after consideration of its importance to the civil service scheme and of the prejudice, if any, suffered by an employee as a consequence of the rule’s violation.” 388 So.2d 772.

In contrast to the rule involved in Sanders, which did not directly affect the employee, the rule here is of utmost importance to the civil service scheme. The general purposes of the rules, as mentioned above, simply cannot be carried out without compliance with the rule requiring prior or concurrent written notice to the employee of the employee’s termination. Basic concepts of fairness and due process mandate that civil servants, in order to be secure in their positions, be given this notice, thus avoiding the retroactive termination of employment.

In considering the prejudice aspect, the Sanders court addressed the individual employee’s prejudice as well as the possibility of prejudice in general. In the present case we need not determine whether or not the employee was actually prejudiced by the violation of the notice requirement; the possibility of prejudice within the system is significant enough to convince us the rule must be strictly followed. An employee who finds out he was earlier suspended or terminated stands to suffer economic detriment and loss of job market time. Even more significant, when the rule of prospective notice is violated the employee will undoubtedly experience much emotional trauma by learning that the action had already been taken without the employee’s knowledge. In short, when a civil servant retires for the night, he should rest assured his position is secure. If courts tolerate violations of this important rule the result will be on any given day a civil employee might receive a letter containing the distressing news that the job he thought he held is no longer his and in fact had not been his for several days or weeks. The essence of prejudice is the fact of being fired. Unlike the failure to furnish the Director a copy of the written reasons for dismissal, or the failure of the appointing authority to certify to the Director the interests of the service require the duties of the position be carried on without further interruption, a termination is the ultimate finality — the other matters are residuals thereof. See, Broussard v. Department of Corrections, etc., 405 So.2d 1219 (La.App. 1st Cir.1981).

In conclusion, we consider Louviere to be good law. The apparent overruling of Boucher by Sanders does not affect the validity of Louviere, because of the very different nature of the rules involved. Recognizing the difference in the cases, we accept the rationale of Sanders, and applying it to the facts of this case determine the Commission acted properly in invalidating the dismissal action. Also see, Department of Health, Etc. v. Perry, 423 So.2d 1266 (La.App. 1st Cir.1982).

For these reasons, the opinion of the Commission is affirmed. Appellant is to pay costs of this appeal of $50.00.

AFFIRMED.

      . Rule 12.10 Special Provision for Separation of Sick or Disabled Employee.
      (a) An employee absent from duty because of a disability which prevents performance of the usual duties and responsibilities of his or her position and who has exhausted all sick leave, may be removed by the appointing authority upon certification to the Director by such appointing authority that the interests of the service require that the duties of the position be carried on without further interruption. Such removal shall not disqualify the former employee for noncompetitive reemployment as provided in Rule 8.18.

      . Rule 12.3 Procedure in Removals, Demotions and Reductions in Pay of Permanent Employees.
      (a) In every case of removal, demotion, or reduction in pay for cause of a permanent employee, the appointing authority or his authorized agent shall:
      1. Furnish to the employee at the time such action is taken, or prior thereto, a statement in writing giving detailed reasons for such action.

      .Rule 12.2 Suspensions.
      (a) Any permanent employee who is suspended without pay shall be so notified by his appointing authority or his authorized agent on or before the effective time and date of the commencement of the suspension. Each permanent employee so suspended shall be furnished detailed reasons therefor in writing prior to or within fifteen (15) calendar days following the effective date of the suspension. A copy of such detailed reasons shall be furnished to the Director. For each permanent employee so suspended, the notice containing the detailed reasons for the suspension shall contain the notification of the right to appeal required by Rule 12.3(a)2 below. The written notice containing detailed reasons for the suspension referred to in this paragraph shall be deemed furnished to the employee under the circumstances specified in Rule 12.3(b) below.

      . At the time of the Boucher decision, the applicable rule, (Section 2, Rule XII), required the appointing authority or his authorized agent to give the employee and the Director advance written notice of the disciplinary action to be taken and written reasons therefore. By the time of the Sanders decision, the rules had been revised and the applicable rule was Rule 12.-3(a)(3) which required written notice to be given the Director within 15 days of the date the employee received notice of the action.


text:
    Carol B. DENT v. DEPARTMENT OF CORRECTIONS, HUNT CORRECTIONAL CENTER.
    No. CA 83 1280.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Warren D. Ponder, Baton Rouge, for plaintiff-appellant.
    Jean G. Ray, Baton Rouge, for defendant-appellee.
    Robert R. Boland, Jr., Civ. Service Com’n, Baton Rouge, for State Civ. Service.
    Before COLE, CARTER and LANIER, JJ.
   LANIER, Judge.

This is an appeal by a classified employee of the Louisiana Department of Corrections (DOC) from a State Civil Service Commission’s (Commission) final decision summarily dismissing her appeal.

FACTS

The employee, Carol Dent, was classified as a Corrections Security Officer II in the Security Division of the Hunt Correctional Center. By letter dated September 1, 1982, Dent was notified of the termination of her employment due to illness and the exhaustion of her sick leave, pursuant to Civil Service Rule 12.10, which provides, in pertinent part, as follows:

An employee absent from duty because of a disability which prevents performance of the usual duties and responsibilities of his or her position and who has exhausted all sick leave, may be removed by the appointing authority upon certification to the Director by such appointing authority that the interests of the service require that the duties of the position be carried on without further interruption.

Dent appealed her termination. In her notice of appeal, she alleged the following:

The basis of this appeal is that the said CAROL DENT is being discriminated against, the said discrimination being evidenced by the following:
a) Due to emergency surgery caused by a gall bladder problem appellant was required to apply for leave without pay which was denied;
b) Appellant alleges on information and belief that the following employees received permission for leave without pay under similar circumstances, namely; Norma Delaune, Billie Wilson and Ms. Naylor, and the denial of appellant’s request constitutes unequal treatment;
c) The above individuals are of the Caucasian race and appellant is of the black race and appellant alleges on information and belief that she was discriminated against because of her race.

At the hearing before the Commission referee, counsel for Dent abandoned the claim of discrimination and attempted to contest the merits of the Rule 12.10 dismissal. Counsel for the appointing authority moved for a summary disposition contending that, absent the claim of discrimination, Dent’s notice of appeal failed to state a basis for appeal. The referee refused to allow an amendment to the notice of appeal and dismissed Dent’s appeal. Dent filed an application for review of the referee’s decision with the Commission. The application for review was denied, and the referee’s decision became the final decision of the Commission. La. Const, of 1974, art. X, § 12(A). The appeal to this Court followed.

SUMMARY DISMISSAL

In his written reasons for dismissing Dent’s appeal, the referee made the following ruling:

The Referee finds that nowhere in the appeal does appellant deny or otherwise put at issue the facts on which her termination was based. Therefore, the Referee concludes that appellant, after abandoning her claim of discrimination, has failed to state a basis for appeal.

Dent contends that her notice of appeal sufficiently set forth a claim for relief based on her dismissal because of excessive use of sick leave, and the Civil Service Rules should be liberally construed to allow her appeal on that basis.

The rules of the Commission have the effect of law and may prevail over acts of the legislature which are in conflict with them. La. Const, of 1974, art. X, § 10(A)(4); State v. Department of Health and Human Resources, 416 So.2d 94 (La.1982). Rule 13.11(d) requires that the notice of appeal “[cjontain a clear and concise statement of the actions complained against and a clear and concise statement of the basis of the appeal.” Rule 13.12(d) provides that no appeal shall be supplemented or amended following the expiration of the delay for taking the appeal. Rule 13.14(a)(6) provides that the Commission may summarily dispose of an appeal at any time after it has been docketed when “the written notice expressing the cause for the action complained against is insufficient”. In Shelton v. Southeastern Louisiana University, 431 So.2d 437, 440-441 (La.App. 1st Cir.1983), in the Concurring Opinion, the following observations concerning these two Rules were made:

By requiring applications for appeals to set forth a ‘statement of the actions complained against’ and a ‘statement of the basis of the appeal’, Rule 13.11(d) is similar in concept to La.C.Cr.P. arts. 844 and 920 and Rules 1-3 and 3-1.1 of the Courts of Appeal which limit and/or designate issues in appeals to those set forth in assignments or specifications of error. Errors which are not so designated are deemed abandoned and may not be considered on appeal. By authorizing summary disposition of appeals when ‘the cause of action complained against is insufficient’, Rule 13.14(a)(6) is similar in concept to the procedure utilized by the Louisiana Supreme Court in summarily disposing of criminal cases (see State v. Duhon, 340 So.2d 151 [La.1976] and State v. Montgomery, 362 So.2d 769 [La.1978]) and that authorized in the Courts of Appeal by Rules 2-11.3, 2-16.1(a)(3) and 2-16.1(b)(2). When read in pari materia, Rules 13.11(d) and 13.14(a)(6) provide that if the errors complained of in the notice of appeal are not sufficient to state a legal or factual basis for obtaining relief, the appeal may be summarily disposed of.

In the instant case, the basis of appeal set forth by Dent in her notice of appeal was a claim of discrimination. However, this claim was abandoned by Dent at the hearing before the referee. After reviewing Dent’s notice of appeal, we agree with the referee’s finding that it only contains a discrimination claim. With no remaining legal or factual basis for relief on appeal, the referee properly granted a summary dismissal of Dent’s appeal.

CONSTITUTIONAL ISSUES

Dent also raises the constitutionality of certain Civil Service Rules governing her appeal. More specifically, Dent contends that the Commission, through its Civil Service Rules, has denied her due process under the law by dismissing her claim before having a hearing on the merits and denied her equal protection under the law by imposing upon her a higher standard for filing a notice of appeal than is imposed on an appointing authority for its notice of dismissal. These constitutional issues were not raised in the hearing before the Commission and were only raised by Dent for the first time in this Court. Under these circumstances, we decline to consider and determine their merits. Rule 1-3, Uniform Rules — Courts of Appeal; Marchese v. New Orleans Police Department, 226 La. 982, 77 So.2d 742 (1955); cf. State v. Madere, 352 So.2d 666 (La.1977).

DECREE

For the foregoing reasons, the decision of the Commission summarily dismissing the appeal is affirmed at appellant’s costs.

AFFIRMED.


author: SAVOIE, Judge.

text:
    Gloria H. STEWART v. Robert H. STEWART.
    No. 84 CA 0176.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      William J. Staser, Baton Rouge, for plaintiff-appellee Gloria H. Stewart.
    Tom Withers, III, Baton Rouge, for defendant-appellant Robert H. Stewart.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

This case involves a dispute over the custody of the three minor children of the appellant, Robert H. Stewart, and the ap-pellee, Gloria H. Stewart. The parties were granted a divorce in October of 1981, in which the custody of the children was granted to Mrs. Stewart. On May 20, 1983, Mr. Stewart filed a petition for joint custody. A judgment was rendered on November 7, 1983, and signed on November 15, 1983. This judgment granted joint custody to Mr. and Mrs. Stewart. Among other things, the judgment gave physical custody to the father for a period commencing fifteen days after the conclusion of the spring semester and terminating fifteen days prior to the commencement of the fall semester. The mother was to keep physical custody during the school year. Additionally, the non-custodial parent was to have visitation on alternate weekends. The father has appealed only that portion of the judgment which gives the mother custody during the entire school year. Under the plan suggested by the father, each parent would have custody for one semester per school year.

The children involved in this case are one boy, age 15, and two girls, ages 10 and 7. The record shows that the children were happy and well adjusted. The school work of the children (especially the girls) was quite commendable. The record also indicates that Mr. Stewart, who has remarried, still lives in close proximity to Mrs. Stewart. Mrs. Stewart testified that the children are free to visit and spend time with Mr. Stewart whenever she has physical custody of the children. The children did not testify at the hearing.

The applicable law in this case begins with La.Civ.Code art. 157(A) which states: “In all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the parents in accordance with Article 146.” The pertinent part of La.Civ.Code art. 146 states: “A. If there are children of the marriage whose provisional custody is claimed by both husband and wife, ... custody shall be awarded in the following order of preference, according to the best interest of the children: (1) To both parents jointly.” (Emphasis added).

In the present case, the trial court was favorably impressed by both parents. The trial court, therefore, followed the legislative mandate and awarded joint custody. The trial court then found the best interests of the children served by keeping the children in the same home during the school year.

Trial judges are granted a great amount of discretion in custody matters and their decisions should not be disturbed unless it is clear and evident that they have abused that discretion by not considering the best interests of the child or children involved. Johnson v. Johnson, 444 So.2d 283 (La.App. 1st Cir.1983).

In the present case, the record supports the decision of the trial court. The father will have physical custody of the children during the summer months, on alternate holidays, and on alternate weekends during the school year. The mother will have physical custody during the school year and alternate weekends during the summer months. This joint custody arrangement seems to be in the best interest of the children, in that it will not disrupt their school schedules. Also, it allows time for both parents to share in the upbringing of the children. Thus, this joint custody plan is certainly within the spirit of La.Civ.Code art. 146. The decision of the trial court is affirmed. Appellant is to pay all costs.

AFFIRMED.


author: JOHN S. COVINGTON, Judge Pro Tern.

text:
    Richard AYMAMI v. Linda Boudousouie, wife of Richard J. AYMAMI.
    Nos. 84 CA 0186, 84 CA 0488.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Garic K. Barranger, Covington, for plaintiff, appellee.
    Raymond C. Burkart, Jr., New Orleans, for defendant, appellant.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVINGTON , JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   JOHN S. COVINGTON, Judge Pro Tern.

Ms. Linda Aymami (hereinafter sometimes referred to as appellant) appeals the trial court judgment which acknowledged her right, but temporarily denied, her entitlement to permanent alimony; denied past due child support, court costs and attorney’s fees and failed to hold her ex-husband, Mr. Richard Aymami, in contempt of court.

We affirm.

After a separation judgment in favor of Ms. Aymami, Mr. Aymami filed suit for divorce, requesting that the existing joint custody arrangement be changed to allow him to have physical custody of the children for five days out of the week, and Ms. Aymami to have custody the remaining two days per week. He further asked for a reduction in the amount of child support previously awarded by the court. In a consent judgment entered into on May 13, 1983, Mr. Aymami was granted a divorce and awarded joint custody as prayed for. Moreover, he was ordered to pay child support in the amount of Twenty and no/100 ($20.00) Dollars per day for each day defendant had custody of the minor children. Thereafter, Ms. Aymami filed a motion to dissolve joint custody and to set permanent alimony. Mr. Aymami answered and reconvened to dissolve joint custody. At the hearing on the motion, the trial judge ordered Ms. Aymami’s visitation privileges discontinued for approximately six (6) weeks, finding a program of family therapy required. Moreover, he refused to disturb joint custody of the children as previously ordered. The trial judge found that Ms. Aymami was entitled to permanent alimony but temporarily denied it, based upon Mr. Aymami’s poor financial condition; further, he denied past due child support, court costs and attorney’s fees, and refused to find Mr. Aymami in contempt of court. From this ruling Ms. Aymami appeals, asserting nine assignments of error. As four assignments of error were not briefed, they are considered abandoned. Uniform Rules-Court of Appeal, Rule 2-12.-4.

Ms. Aymami asserts that the trial court erred in:

(1) failing to order Mr. Aymami to pay child support and post divorce alimony;

(2) failing to hold Mr. Aymami in contempt of court and to order him to pay all past due child support from date of consent judgment until the present time plus all court costs, attorney’s fees and judicial interest from date of demand;

(3) canceling the child support custody agreement;

(4) holding that the child support was extinguished by mutual consent; and

(5) holding that Ms. Aymami failed to prove back child support was due.

ASSIGNMENTS OF ERROR, NUMBERS 1, 2, 4, and 5

Appellant in essence asserts that the trial court erred in its findings of fact. Specifically, she contends that (1) Mr. Aymami owed back child support, (2) should be held in contempt for refusing to pay same, and (3) should pay court costs and attorney’s fees. Further, she contends that the record shows he is financially capable of paying child support and permanent alimony.

It is well settled that the trial court’s findings of fact are entitled to great weight and will not be disturbed on appeal absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Moreover, the trial court has great discretion in considering alimony and child support payments and its judgment in such matters will not be disturbed on appeal in the absence of a clear showing of abuse. Bonfanti v. Bonfanti, 431 So.2d 82 (La.App. 1st Cir.1983).

In the matter sub judice, the trial court found that the appellant had failed to prove that back child support was due. We agree. In the May 13, 1983 consent judgment, Mr. Aymami agreed to pay $20.00 per day for every day that Ms. Aymami had custody of the minor children. He complied with this agreement until approximately mid-June when he refused to allow Ms. Aymami custody of the children. Such refusal was based upon the advice of his counsel and social workers. We find as did the trial court that Mr. Aymami’s action was in the best interest of the children. Moreover, according to the terms of the consent judgment, Mr. Aymami was not required to pay child support if Ms. Ayma-mi failed to have custody of the children. Thus, the trial court did not manifestly err in concluding that back child support was not due, Ms. Aymami never having had custody. Having found such, the trial judge was correct in refusing to hold Mr. Aymami in contempt of its order or in ordering him to pay court costs and attorney’s fees. The record shows that he was deeply indebted due to back taxes owed by the community and was financially unable to pay anything but nominal child support and/or permanent alimony. Having found that anything but a nominal amount would be oppressive, the court declined to award child support and permanent alimony to Ms. Aymami at this time, specifically reserving her right to claim it at a later time. We find the trial court did not err in its conclusions. These assignments of error are without merit.

ASSIGNMENT OF ERROR NUMBER 3

The appellant contends that the trial court erred in canceling the parties’ child support and custody agreement. In essence, she contends that the consent judgment is a contract between the parties which requires Mr. Aymami to pay a certain sum for child support whether or not Ms. Aymami had actual physical custody of the children. Moreover, she contends that the agreement, if ambiguous as to this contention, should be construed against its drafter, Mr. Aymami. We do not agree.

The May 13, 1983 consent judgment provided that:

plaintiff, Richard J. Aymami, shall pay child support to the defendant, Linda Boudousquie Aymami, in the amount of $20.00 per day for every day that the defendant has custody and control of the minor children, Jeremy Aymami and Ian Aymami, the said amount payable every week upon the return of the children to the custody and control of the plaintiff Richard J. Aymami.”

This provision, an order of the court, is very-clear in its intent. It provides that when Ms. Aymami had custody of the children, she was to receive the agreed upon support. As she did not have custody, the court order clearly exempts Mr. Aymami from paying child support. Thus, the appellant’s contention is without merit. However, this provision must be read in context with the judgment’s other provisions, which provided that appellant was to have custody of the children at certain specified times. Considering only the judgment’s provisions, Mr. Aymami did defy the trial court’s order and under normal circumstances should have been held in contempt thereof. However, as previously discussed, the trial court found, as do we, that the best interests of the children were served by withdrawing Ms. Aymami’s right of custody. We find that the trial court did not err.

For the above and foregoing reasons, judgment of the trial court is hereby affirmed. Costs are to be paid by appellant, Ms. Linda B. Aymami. ,

AFFIRMED.


author: EDWARDS, Judge.

text:
    STATE of Louisiana v. Amador ALEJANDRO.
    No. 84-KA-0188.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    John J. Erny, Jr., Asst. Dist. Atty., Thi-bodaux, for plaintiff-appellee State of Louisiana.
    F. Smith Knobloch, Thibodaux, for defendant-appellant Amador Alejandro.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

On July 1, 1982, pursuant to a warrant signed by a justice of the peace, police officers searched the premises occupied by Amador Alejandro and seized five pounds of marijuana. Alejandro was charged by bill of information with possession of marijuana with intent to distribute in violation of LSA-R.S. 40:966. The trial court granted the defendant’s motion to suppress evidence secured and statements taken in connection with the search. Upon the state’s writ application, this court ordered the motion to suppress denied. Defendant thereafter pled guilty as charged, reserving the right to appeal the denial of his motion to suppress. See State v. Crosby, 338 So.2d 584 (La.1976). Defendant now appeals, urging that the warrant was invalid on its face because it was issued by a justice of the peace. Thus, the only question before us is whether a justice of the peace has authority to issue warrants to search for drugs.

The Code of Criminal Procedure gives a general authorization for judges to issue warrants to search for and seize anything within their territorial jurisdiction which has been stolen, is or may be used in committing a crime, or may be evidence tending to prove a crime. Justices of the peace, on the other hand, “may issue ... search warrants] only in those cases specifically provided by law.” LSA-C.Cr.P. art. 161.

We have found no special authorization for justices of the peace to issue warrants to search for drugs. The State argues that LSA-R.S. 40:985 provides special authorization for magistrates to issue drug warrants, and concludes that because the definition of magistrate expressly includes justices of the peace, LSA-C.Cr.P. art. 931(4), the warrant is valid. We cannot, however, agree with such a strained interpretation of section 985.

“A search warrant relating to offenses involving controlled dangerous substances may be authorized to be served at any time of the day or night if the judge or magistrate issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant.” LSA-R.S. 40:985.

It is clear from a simple reading of this section that it is not a grant of authority to judges or magistrates to issue the warrants, but rather an authorization for drug warrants to be served at any time of the day or night. Section 985 simply creates an exception to the general rule that searches and seizures cannot be made at night or on Sunday. See LSA-C.Cr.P. art. 163.

This conclusion is reinforced by comparing section 985 with provisions of law which grant special authority for justices of the peace to issue warrants. For example, this special authority is clearly given in cases involving fires of suspected incendiary origins. “Upon receiving this affidavit, the justice of the peace, or other officer shall issue a warrant authorizing the fire marshal ... to search the premises _” LSA-R.S. 40:1570. Likewise, justices of the peace have a special grant to authorize search warrants in aid of enforcing commercial shrimping laws. “The several judges of the district courts and the several justices of the peace shall within their respective jurisdiction upon proper oath or affirmation, and upon probable cause shown, issue search warrants in aid of the enforcement of [shrimping laws].” LSA-R.S. 56:493.

Furthermore, in the section immediately following section 985, the judges and magistrates of courts of record are granted, in clear and unambiguous language, authority to issue administrative inspection warrants. LSA-R.S. 40:986. In light of the legislature’s obvious ability to clearly articulate its grant of this authority, we must presume that it did not intend to grant warrant issuing authority in section 985.

Section 985 is concerned with granting authority for drug warrants to be served at any time of the day or night, not with granting authority to certain officers to issue those warrants. At most, section 985 arguably implies that a justice of the peace may issue a search warrant. Article 161 of the Code of Criminal Procedure, however, requires more than an implication of this authority; it requires a special provision of law.

Prior to the revision of the Code of Criminal Procedure in 1966, justices of the peace had authority to issue search warrants by virtue of their criminal jurisdiction as committing magistrates. “Every judge vested with criminal jurisdiction, whether as a trial judge or as a committing magistrate, and every judge vested with jurisdiction to try violators of parochial and municipal ordinances has authority to issue search warrants to be executed within the territorial jurisdiction of the judge issuing such warrants.” LSA-R.S. 15:41 (repealed 1966). Thus, for purposes of issuing warrants, justices of the peace were simply classified as judges with criminal jurisdiction, and given authority accordingly.

The Code of Criminal Procedure of 1966, however, makes a distinction between judges and justices of the peace: Judges are given general authority to issue search warrants, and justices of the peace are authorized to issue warrants only in cases specifically provided by law. LSA-C.Cr.P. art. 161. Furthermore, article 931 of the Code of Criminal Procedures makes it clear that justices of the peace are not included in the term “judge.” Though they retain their criminal jurisdiction as committing magistrates, see LSA-R.S. 13:2584, justices of the peace no longer have general authority to issue search warrants. They may issue warrants only in cases specifically provided by law.

For the foregoing reasons we hold that the warrant in the instant case was invalid, and therefore that the evidence seized must be suppressed. From the record before us, however, we are unable to determine whether the statements made were sufficiently connected to the illegal search to be tainted. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Accordingly, the conviction and sentence are reversed, the writ is recalled, the trial court order denying the motion to suppress is vacated, and the trial court’s original judgment granting the motion to suppress is reinstated insofar as it orders suppression of the evidence. The case is remanded for an examination of the statements in light of Wong Sun and further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Justices of the peace have had criminal jurisdiction as committing magistrates since the Constitution of 1879. See La. Const, of 1879, art. 126; La. Const, of 1898, art. 126; La. Const, of 1913, art. 126; La. Const, of 1921, art. VII § 48; LSA-R.S. 13:2584.


author: ALFORD, Judge.

text:
    Vikki F. RUTLAND v. James B. RUTLAND.
    No. CA 84 0231.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Robert L. Kleinpeter, Baton Rouge, for plaintiff-appellee Vicki F. Rutland.
    Walter L. Smith, III, Baton Rouge, for defendant-appellant James B. Rutland.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a joint custody award. Plaintiff-appellant, James B. Rut-land, and defendant-appellee, Vikki Rutland Kilshaw, were divorced on July 14, 1981. Permanent care and custody of the minor child of the marriage, Kennan Leigh Rut-land, was awarded to Mrs. Rutland by judgment dated October 7, 1981. That decision was affirmed by this court in Rutland v. Rutland, 415 So.2d 555 (La.App. 1st Cir.1982).

On April 26, 1983, Mr. Rutland filed a petition for joint custody. In accordance with the provisions of LSA C.C. art. 146, both parties submitted proposed joint custody plans. On November 7, 1983, the Family Court for the Parish of East Baton Rouge Parish rendered judgment awarding joint custody under the plan submitted by Mrs. Rutland. This plan provides for Kennan to be in the physical custody of Mrs. Rutland for ten months of the year with Mr. Rutland having physical custody for the remaining two months during the summer. Additionally, the plan provides for noncustodial visitation, holiday visitation and other related matters. Mr. Rutland appealed from the judgment seeking equal physical custody, or alternatively, at least three months physical custody. Mrs. Rut-land answered this appeal seeking sole custody of the minor child.

In Turner v. Turner, 455 So.2d 1374, (La.1984), decided September 10, 1984, the Louisiana Supreme Court again reaffirmed the best interest standard as the sole criterion to be used by trial courts in making custody awards. Additionally, determinations of the trial court in child custody cases are entitled to great weight and will not be disturbed on appeal absent an abuse of discretion. Stephenson v. Stephenson, 404 So.2d 963 (La.1981). After a careful review of the evidence presented in this case, we are of the opinion that the trial court did not abuse its much discretion in rendering the joint custody award.

Both Mr. and Mrs. Rutland presented experts in the field of clinical psychology in support of their respective positions. These experts, while disagreeing on what they would recommend as the ultimate outcome of this custody dispute, did both stress that Kennan’s home life stability was of prime concern. Additionally, both experts testified that for any custody plan to work, the parents would have to cooperate with each other.

It is apparent from the testimony presented in this matter that Mr. and Mrs. Rutland have totally failed to cooperate with each other regarding Kennan’s welfare. The experts were of the opinion that Kennan was beginning to show signs of the stress caused by this continuing custody dispute. We are of the opinion that the custody award as rendered is in the best interest of Kennan given the lack of cooperation on the part of her parents. We are of the further opinion that the trial court committed no manifest error in weighing the evidence as it did. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Therefore, for the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be taxed to the appellant.

AFFIRMED.

      . For the sake of clarity, we will refer to Mrs. Kilshaw as Mrs. Rutland in the remainder of this opinion.