author: | JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Lawrence GASTINELL v. TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, INC.
    No. 2003-CA-0531.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 26, 2003.

      Catherine J. Smith, New Orleans, LA, for Plaintiff/Appellee.
    Philip J. Borne, Christovich & Kearney, L.L.P., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY and Judge EDWIN A. LOMBARD).
   | JOAN BERNARD ARMSTRONG, Chief Judge.

This is a workers’ compensation case. On January 25, 2001, plaintiff-appellee, Lawrence Gastinell, filed a disputed claim for compensation against his employer, Transit Management of Southeast Louisiana; Inc. (TMSL) alleging TMSL wrongfully terminated his compensation benefits on December 3, 2000. Mr. Gastinell claimed that on August 16, 1985, he reported to Ronnie Normand, a utility worker, that a person came onto company property brandishing a gun. Mr. Gastinell and other employees ran, and after having run to safety, Mr. Gastinell suffered a heart attack.

The parties attended a mediation conference on April 17, 2001 at which the issues were framed but were not resolved. On May 3, 2001, TMSL answered, denying Mr. Gastinell was temporarily or permanently disabled or sustained an injury resulting in a loss of earning capacity. By supplemental answer, TMSL claimed the benefit of social security offset for disability and old-age insurance benefits, benefits under employer-funded disability plans, unemployment compensation and receipt of any other workers’ compensation benefits under LSA-R.S. 23:1225. TMSL also claimed the benefit of reduction of benefits for voluntary payments of unearned wages under LSA-R.S. 23:1206, medical expense/insurance offset under LSA-R.S. 23:1212 and denied it acted in an arbitrary and capricious manner at any time. TMSL also asserted a credit for Mr. Gasti-nell’s post-accident earnings or wage earning capacities under LSA-R.S. 23:1221(3) and credits or deductions for the payment of weekly compensation benefits pursuant to LSA-R.S. 23:1223.

Mr. Gastinell’s case was heard on October 25, 2002. The parties stipulated to Dr. Keith Ferdinand’s medical records and his deposition that had been taken for trial purposes. The parties also stipulated that TMSL paid $182.94 each week from August 16, 1985 through December 3, 2000. The parties stipulated to Mr. Gastinell’s accident, but not that his present physical condition and medical problems are related thereto. The workers’ compensation court admitted all exhibits for trial purposes.

Following trial, the workers’ compensation judge entered judgment on November 18, 2002, finding Mr. Gastinell to be permanently and totally disabled, ordering reinstatement of his weekly benefits in the amount of $182.94 retroactive to December 3, 2000 and continuing, and awarding him attorney’s fees in the amount of $7,500 pursuant to LSA-R.S. 23:1201.2. From that judgment, TMSL appeals. Because we do not find the judgment of the workers’ compensation court to be manifestly, erroneous or clearly wrong, we affirm.

The record reflects that Mr. Gastinell, a sixty-eight year old man with a high school education testified that he had been a deputy sheriff for thirteen years. Subsequently, he worked for seven months for TMSL in maintenance, cleaning busses and .changing lights. He worked an average of fifty hours per week. On August 16, 1985, while he was at work, a man carrying a gun came into the area where Mr. Gastinell was working.. People were running, saying, “Run, he got a gun.” Mr. Gastinell .ran for about two blocks and collapsed. He was taken to St. Charles General Hospital, where he underwent an angioplasty incident to a heart attack. Two days later, his leg grew cold, and ultimately in 1986 he had a leg bypass operation. Mr. Gastinell did not return to work after the incident.

On November 25, 1985, Dr. Johnny L. Gibson saw Mrs. Gastinell at Pendleton Memorial Methodist Hospital. Dr. Gibson noted that his right foot was cool; there was a decreased pulse on the left and no pulse felt below the popliteal on the right side. His impression was peripheral vascular disease and anginal cardiovascular disease.

On July 22, 1986, Dr. Nathaniel Ross signed an attending'physician’s statement indicating that he had seen Mr. Gastinell once or twice a month since September 1985, and certified that Mr. Gastinell remained totally disabled because of angina pectoris due to his previous myocardial infarction and intermittent chest pain and peripheral vascular disease. Dr. Ross by letter dated August 11, 1988 confirmed this opinion and diagnosis.

Dr. Sheldon Hersh saw- Mr. Gastinell on June 10,1988, and noted his heart problem originating with the 1985 incident at work; right leg weakness and soreness that began one month after the coronary angioplasty in August 1985 and for which he had bypass surgery of the right leg at Methodist Hospital; continued heavy chest pain brought on with exertion and quickly relieved by nitroglycerine; peripheral vascular disease with no intermittent claudication; mild numbness over the right anteri- or lower leg and a mild limp; and mild elevation of blood pressure.

On August 22, 1990, Mr. Gastinell saw Dr. Keith C. Ferdinand who diagnosed him as having stress headaches. Dr, Ferdinand saw Mr. Gastinell again on September 11, 1991 and reported that Mr. Gasti-nell had a long history of hypertension and atherosclerotic heart disease. His overall cardiac status was under control. Dr. Ferdinand cleared him for needed surgery with general anesthesia and continued him on his medication. A March 8, 1991 chart n’ote shows that Mr. Gastinell complained of severe headaches, hypertension and extreme stress. Dr. Ferdinand diagnosed possible muscle spasm and anxiety. On April 29, 1992, Dr. Ferdinand prescribed a nicotine patch in response to Mr. Gasti-nell’s request to help him' discontinue smoking. Dr. Ferdinand noted Mr. Gasti-nell’s blood pressure was somewhat elevated and his electrocardiogram showed nonspecific changes. On May 13, 1992, his blood pressure was elevated and Dr. Ferdinand increased his medication. On October 2, 1992, Dr. Ferdinand noted Mr. Gastinell’s status was excellent, prescribed Valium for anxiety caused by his mother’s illness,- and continued him on Mevacor. Dr. .Ferdinand made -similar notes on March 30, 1993. On July 23, 1993, Dr. Ferdinand noted that Mr. Gastinell had been operated on recently for a repeat hernia, and had anxiety due to the recent death -of an aunt and his mother’s illness. He also noted trace edema in Mr. Gasti-nell’s feet, no pulses and warm feet. On January 28, 1994, Dr. Ferdinand noted Mr. Gastinell’s elevated blood pressure, poorly controlled hypertension and grief over his mother’s death. These findings continued through August 1994. In 1995, Dr. Ferdinand noted acute bronchitis and uncontrolled blood pressure. On January 9, 1995, Dr. Ferdinand noted that Mr. Gasti-nell was anxious because he had to care for his brother, who had just undergone triple bypass surgery at the age of 69.

On April 14, 1995, Dr. James R. Lucas saw Mr. Gastinell and noted he had no chest pain or shortness of breath and continued his medications. On October 17, 1995, Mr. Gastinell complained of an October 13 episode of chest pain relieved by nitroglycerin.

Dr. Ferdinand saw Mr. Gastinell on July 24, 1995 and noted, “Patient remains totally disabled from previous vascular disease.” He noted Mr. Gastinell has had multiple episodes of atypical chest pain with exercise. Dr. Ferdinand’s assessment was possible progressive coronary disease. In November 1996, Dr. Ferdinand noted Mr. Gastinell had periods of chest discomfort and sweating from 2:00 to 3:00 in the morning. The assessment at that time was possible new onset angina with variant angina and need for better control of blood pressure.

On January 17, 1997, Dr. George A. Miller saw Mr. Gastinell for shortness of breath and nervousness. Problem noted were recurrent angina pectoris, hypertension and hyperlipidemia. In June 1997, Dr. Ferdinand noted that Mr. Gastinell no longer smoked, but had decreased foot pulses. He recommended that Mr. Gastinell continue his medication, cut grass and walk three miles as tolerated. Mr. Gasti-nell continued to do well as reported by notes from June and September 1997 and February 1998. Mr. Gastinell was hospitalized for treatment of an infection and swelling of his right knee in early 1999. In February 2000, Dr. Ferdinand evaluated Mr. Gastinell and found he had “guarded cardiac status” and “severe peripheral arterial disease.” He prescribed Procar-dia, Zocor, Valium and multivitamins.

On May 28, 1999, LSU Cardiologist Dr. Thomas D. Giles examined Mr. Gastinell, and opined that the incident that occurred on August 16, 1985 was not clearly associated with angina pectoris. He referred Mr. Gastinell’s risk factors in 1985 to male sex, age greater than 40 and elevated cholesterol. Furthermore, he smoked from the age of 27 and has had exposure to asbestos. Dr. Giles concluded that Mr. Gastinell was not a “reliable historian”. He found no evidence of congestive heart failure and no history of angina pectoris or evidence of generalized atherosclerosis. He felt that Mr. Gastinell suffers from a psychiatric condition and symptoms such as hallucinatory behavior and persecution suggest schizophrenia. He concluded that Mr. Gastinell would be capable of performing a full range of sedentary or light work compatible with his age, and is not permanently or temporarily disabled. Given his long history of disability, rehabilitation may not be possible. Dr. Giles related the chain of events that led to the arterial obstruction of the right leg to the coronary procedures performed as a result of the hostile encounter, but did not express an opinion as to the propriety of the procedures.

Mr. Gastinell testified that since August 16, 1985, TMSL did not provide any rehabilitation services or send him on any job interviews. TMSL did nothing to get Mr. Gastinell to return to work. He testified that he has not received compensation benefits since December 3, 2000 and has not worked any job since August 16, 1985.

At the time of trial, Mr. Gastinell took blood pressure medicine, cholesterol medicine, Valium, blood thinner, iron supplement and nitroglycerine for chest pains. He testified that at no time has any physician told him he could return to work.

Prior to August 16, 1985, Mr. Gastinell lived an active life, playing baseball and basketball, jogging, and going to sporting activities. Now he tries to cut the grass at his home and wash the pavement around the house, but sometimes gets short of breath and needs to use an inhaler. He now has to pay someone to perform maintenance at his home. He sometimes takes a five minute walk to the drugstore or grocery store. He visits an off-track betting parlor once or twice a month.

In 1986, he applied for Social Security disability benefits, and receives about $600 each month. When he reached the age of 62, the disability benefits were transferred to old age benefits. He received monthly disability payments from Travelers Insurance for three years for a total payout of $15,000. He testified that workers’ compensation pays for his blood pressure and cholesterol medication and nitroglycerine and Valium. His “old age insurance” pays for the remaining medicines.

On cross-examination, Mr. Gastinell was shown his deposition in which he admitted that prior to 1985 he was in an automobile accident and claimed he was injured when in fact he was not. He testified at the deposition that he received medical treatment for non-existent injuries and that he took that action because the insurance company refused to pay for his property damage. At trial, he testified he could not recall the incident. He denied that any of his siblings had had bypass operations, although Dr. Ferdinand’s notes show that a brother had such an operation.

Mr. Gastinell testified that he could sit for about an hour and stand for perhaps an hour and a half. He could cut his grass for five minutes at a time. He pays his nephews to do yard work and maintenance at his house. He testified that he does not work because of his chest pains and because his legs give way. His most recent incident of chest pain was about a week before the trial. He testified that Dr. Gibson told him his leg gives out as a result of his surgery. His most recent incident of this leg problem was about two weeks before the trial. He noted other health problems including a hernia, prostate cancer and obstruction of his breathing.

Terrell Miceli, a licensed private investigator, testified for TMSL. At the request of the Regional Transit Authority (RTA), he conducted surveillance of Mr. Gastinell on January 31 and February 3, 1998, and produced videotape of his activities on February 3. The videotape consists of four segments for a total of eight minutes, showing Mr. Gastinell going into a grocery store, going into a post office, getting out of his car and going into a drug store, and returning to his car. On February 9, 1998 Mr. Miceli took a five minute tape showing Mr. Gastinell checking his oil and wiping his car for five minutes. There was a forty-five minute segment showing Mr. Gastinell at an off-track betting parlor. Mr. Miceli testified that he observed a great deal of activity that he was unable to record.

TMSL called another licensed private investigator, Brian O’Connor, who testified that the RTA hired him to perform surveillance of Mr. Gastinell on November 13, 2001. He conducted the surveillance and investigation on November 19, 2001. Mr. O’Connor was not sure he could identify Mr. Gastinell on that day, and observed his home on December 14, 2001, when Mr. Gastinell did not leave his house. On January 2, 2002, Mr. O’Connor arrived at Mr.

Gastinell’s home at 7:06 a.m. Mr. Gastinell left the house at 8:47 p.m., entered his car and drove to Oakwood Mall. He smoked a cigarette in his car, spoke with an unidentified woman for a few minutes and left at 4:00. Mr. O’Connor followed Mr. Gastinell to and into an off-track betting establishment at about 4:26. Mr. Gastinell was inside the establishment for about an hour and forty-five minutes, whereupon he returned to his car. Mr. Gastinell was shown on videotape observing overhead monitors showing various races and conversing with an unidentified person.

TMSL called Ms. Christine Wellborn, a vocational .case manager for COR-VEL Corporation, to testify. When Ms. Well-born admitted that she is not licensed as a vocational rehabilitation counselor in Louisiana and has worked for COR-VEL for only two months, had no personal familiarity with Mr. Gastinell’s record at COR-VEL and did not handle his rehabilitation evaluation, the workers’ compensation court asked if she had a job analysis for the applicable time frame. Ms. Wellborn noted that she did not. Her activity consisted of going online to search through the local employment service for potential jobs that appeared to be realistic based on information in the file from the former COR-VEL employee who handled Mr. Gastinell’s rehabilitaion evaluation. She testified:

Now, can I guarantee that they’re all sedentary jobs? No, I have not done a thorough analysis of them. This is just a screening. If I was doing that, this might be something I might do as my first starting point, and then I would then try to contact the employers and do the restuf the work.

The workers’ compensation judge noted that there was no guarantee that Mr. Gast-inell’s treating physician would release him to any of those jobs. Counsel for TMSL then told the court he had no questions for the witness.

It is a well-settled principle that the provisions of the worker’s compensation scheme should be liberally interpreted in favor of the worker. Bynum v. Capital City Press, Inc., 95-1395, pp. 5-6 (La.7/2/96), 676 So.2d 582, 586.

The standard of review for findings of fact by a hearing officer in a worker’s compensation case is “manifest error,” and it is the appellate court’s duty to determine not whether the fact finder’s conclusion was right or wrong, but whether it was reasonable. Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous. Seal v. Gaylord Container Corp., 97-0688, pp. 4-5 (La. 12/2/97); 704 So.2d 1161, 1164.

In TMSL’s first assignment of error, TMSL contends that the Workers’ Compensation Court erred in finding that appellee proved by clear and convincing evidence that Mr.,Gastinell is permanently and totally disabled.

The causal link between the employee’s illness and work-related duties must be established by, a reasonable probability. Once the employee has established the existence of an occupational disease, for his illness to be compensable, the employee must further establish that the illness is disabling, that is that he meets the criteria for one or more of the statutory disabilities, that is (1) temporary total disability, (2) permanent total disability, (3) supplemental earnings benefits, or (4) permanent partial disability. La.R.S. 23:1031.1(A) and (B); La.R.S. 23:1221; Seal v. Gaylord Container Corp., at p. 6; 704 So.2d at 1165.

Compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in pain, notwithstanding the location or availability of any such employment of self-employment. LSA-R.S. 23:1221(2)(c).

The workers’ compensation judge in her reasons for judgment noted that Mr. Gast-inell admitted that his activities consist of occasionally cutting his grass, attending off-track betting parlors and watching television. The reasons for judgment note Mr. Gastinell’s deposition testimony in which he testified that he pretended to be injured in a prior car accident so that he could get the other driver to pay for the repairs to his car. Furthermore, the reasons note that although Mr. Gastinell denied that his brother had heart problems, Dr. Ferdinand’s record dated January 9, 1995 notes, “Patient notes being very anxious. His brother recently had triple bypass at 69 years of age, for whom he must care...

The reasons for judgment note the videotape evidence and Ms. Wellborn’s disqualification, the medical records from St. Charles General Hospital, Ochsner Clinic and TMSL’s physician, Dr. Giles. The reasons refer to Dr. Ferdinand’s deposition, in which he testified that he saw Mr. Gastinell regularly from 1990 until January 5, 2001. When asked about his letter of September 12, 2002 in which he said, “Patient is permanently disabled and unable to perform activities related to regular job duties,” Dr. Ferdinand testified that this conclusion reflected his objective opinion based on his overall assessment of Mr. Gastinell, along with what he told the doctor about his general condition. When asked by COR-VEL to review possible jobs in early 2000, he opined that Mr. Gastinell could perform the job of receptionist at Lamarque Dodge and Americare Chiropractor, but could not perform five other sedentary jobs including human resources assistant, dispatcher, sreceptionist, telephone orator and telemarketer. Dr. Ferdinand also opined that where a heart patient complains of severe headaches, cramping, leg pain .and says he is unable to work, the doctor will not push the patient “to do something, because heart patients die suddenly.”

The workers’ compensation judge apparently rejected Dr. Giles’ opinion that Mr. Gastinell was not permanently or totally disabled from working, since he stated he could “elicit no history of angina pectoris nor find evidence of generalized atherosclerosis”, both of which were conditions noted by Dr. Ferdinand over the course of many years treating Mr. Gastinell and by Dr. Gibson, Dr. Ross, Dr. Hersh, Dr. Lucas and Dr. Miller.

The judge then applied the provisions of LA-R.S. 23:1221(2)(a) and (c) to the found facts and held that Mr. Gastinell met his burden of proving his total, permanent disability. He has been out of the workforce for over seventeen years and even TMSL’s own Dr. Giles admits he is not a good candidate for vocational rehabilitation.

Significantly, the workers’ compensation judge noted:

Finally, the court had the chance to observe Mr. Gastinell’s demeanor during his trial testimony and found him to be a credible witness.

This credibility choice was made by the court while recognizing the negative influences of his deposition testimony concerning his prior auto accident and his lack of candor during questioning concerning his brother’s triple by-pass. This is clearly one of those cases in which the workers’ compensation court was in a unique position to observe the witness’ testimony and demeanor, while we as a reviewing court have access only to a cold record. When, as here, there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the workers’ compensation court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the workers’ compensation court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access' only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973).

The videotapes on which TMSL relies show in large measure only extremely brief snippets' of very moderate activity by Mr. Gastinell. Nothing in the videotapes indicates that Mr. Gastinell would be able to work a full day, much less fulfill the duties of regular employment. The mere fact that Mr. Gastinell could watch television monitors at the off-track betting parlor for less than two hours does not rebut his and his doctor’s clear and convincing evidence of total, permanent disability.

Applying the appropriate standard of review to the workers’ compensation court’s judgment, we find the judgment on liability is not manifestly erroneous or clearly wrong. This assignment of error is without merit.

In TSML’s second assignment of error, TSML contends that the Workers’ Compensation Court erred in finding that TMSL acted unreasonably in terminating workers’ compensation indemnity benefits, and thus awarding $7,500 in attorney’s fees pursuant to LSA-R.S. 23:1201.2.

Any employer who at any time discontinues payment of a claim due and arising under Chapter 10 (Workers’ Compensation) of Title 23 of the Louisiana Revised Statutes, when the discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of the claim. See, LSA-R.S. 23:1201.2.

TMSL argues that it reasonably relied on Dr. Giles’ opinion that Mr. Gastinell was fit to work and, from a medical standpoint, was not totally and permanently disabled. However, as noted by the workers’ compensation judge, Dr. Giles’ opinion is immediately suspect, since he finds no evidence of generalized atherosclerosis and no history of angina pectoris despite the fact that both those diagnoses are evident throughout Mr. Gastinell’s medical record. Either Dr. Giles did not read the record or he chose to ignore these serious infirmities. In either ease, his opinion is not sufficiently worthy of belief to justify TMSL’s reliance in terminating Mr. Gasti-nell’s benefits.

TMSL’s reliance on the videotapes is likewise misplaced. As noted in our discussion of the previous assignment of error, none of the selections demonstrate Mr. Gastinell’s ability to perform even a sedentary job.

TMSL claims that it relied on Dr. Ferdinand’s conclusion that Mr. Gastinell could perform sedentary work; however, Dr. Ferdinand opined ion July 24, 1995 that Mr. Gastinell remained totally disabled. The doctor’s later opinion that Mr. could perform sedentary work was amended in May 2000, when he said Mr. Gastinell could not perform the jobs located by COR-VEL. Following that determination of disability, TMSL nonetheless terminated Mr. Gastinell’s benefits just over six months later.

TMSL does not question the reasonableness of the amount of attorney’s fees awarded by the workers’ compensation court. We find $7,500 to be a reasonable fee under the circumstances of this case.

We do not find the workers’ compensation court’s decision that TMSL acted unreasonably in terminating Mr. Gastinell’s benefits was manifestly erroneous or clearly wrong. This assignment of error is without merit.

For the foregoing reasons, we find the judgment below is not manifestly erroneous or clearly wrong. Therefore, we affirm the judgment of the workers’ compensation court finding that Lawrence Gastinell is permanently and totally disabled; awarding Mr. Gastinell reinstatement of his weekly benefits in the amount of $182.94, retroactive to December 3, 2002 and continuing; and awarding Mr. Gastinell attorney’s fees in the amount of $7,500.

AFFIRMED.

      . TMSL had not assigned as error the absence of these offsets in the judgment of the worlc-ers’ compensation court.

      . The record shows he also occasionally washes down the pavement at his home.


source: Caselaw Access Project

author: |! DAVID S. GORBATY, Judge.

license: Public Domain

text:
    Sophia White and Philomena WHITE v. STATE FARM INSURANCE COMPANY and Dennis Armitage and Allstate Insurance Company and Terrance Clark.
    No. 2003-CA-0754.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 26, 2003.

      Louis A. Gerdes, Jr., New Orleans, LA, for Plaintiff/Appellee.
    Mark E. Hanna, Pamela K. Richard, McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & Me Daniel, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   |! DAVID S. GORBATY, Judge.

In this appeal, defendant State Farm Insurance Company (“State Farm”) seeks review of the trial court’s denial of its exception of no right of action and/ or dismissal, the trial court’s granting permission to Sophia and Philomena White (“the Whites”) to amend their petition, and the trial court’s judgment in favor of the Whites and against State Farm only. For the reasons set forth below, we reverse.

FACTS AND PROCEDURAL HISTORY

The Whites filed suit against State Farm, State Farm’s policyholder Dennis Armitage, Allstate Insurance Company, and Allstate’s insured driver, Terrance Clark, seeking damages for their alleged injuries resulting from an automobile collision on December 29, 2000. The Whites were passengers in the Clark vehicle.

At the conclusion of the trial, State Farm and Dennis Armitage moved for an involuntary dismissal of Armitage pursuant to La. C.C.Pr. art. 1672, based on the fact that Armitage was not negligent in causing the accident because he was the owner and policyholder, not the driver, of the insured vehicle. The trial court granted the dismissal of Armitage without objection from plaintiffs’ counsel.

Immediately thereafter, State Farm moved for the trial court to grant it an exception of no right of action and/or dismissal based upon this court’s decision in Foltmer v. James, 2001-1510 (La.App. 4 Cir. 9/12/01), 799 So.2d 545, and pursuant to La. R.S. 22:655(B), which provides that a direct action against the insurer alone can be maintained only under certain circumstances. None of the enumerated circumstances applied in this case, State Farm asserted. Plaintiffs’ counsel opposed the exception, and motioned the court for permission to amend the original petition to name State Farm’s insured driver, Jason Armitage, as a defendant. The trial court denied State Farm’s exception and granted plaintiffs’ request to amend the petition.

On November 15, 2002, the trial court found “State Farm Insurance Company’s insured” to be one hundred percent liable for the accident, and rendered judgment against State Farm only, in favor of Sophia White in the amount of $8,940.00 and in favor of Philomena White in the amount of $8,645.00, plus legal interest and court costs from the date of judicial demand on both amounts. The Whites did not file an Amended Petition naming Jason Armitage as a defendant until March 24, 2003, approximately four and one-half months after judgment was rendered. State Farm subsequently filed this appeal.

DISCUSSION

State Farm asserts that the trial court erred in rendering judgment against State Farm alone, in violation of La. R.S. 22:655(B).

After a trial on the merits and submission of the case for decision, the trial court granted State Farm’s named insured, Dennis Armitage, an involuntary dismissal pursuant to La. C.C.P. art. 1672, because Dennis was only the owner, not the driver, of the vehicle involved in the accident. The trial court then denied State Farm’s motion for dismissal pursuant to La. C.C.P. art. 1672 and/or exception of no right of action based on La. R.S. 22:655(B). Thereafter, the trial court granted the Whites permission to amend the petition to add Jason Armitage as a defendant.

La. R.S. 22:655(B) provides as follows:

B. (1) The injured person or his or her survivors or heirs mentioned in Subsection A, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure art. 42 only. However, such action may be brought against the insurer alone only when:
(a) The insured has been adjudged a bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured a bankrupt have been commenced before a court of competent jurisdiction;
(b) The insured is insolvent;
(c) Service of citation or other process cannot be made on the insured;
(d) When the action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons;
(e) When the insurer is an uninsured motorist carrier; or
(f) The insured is deceased

This court recently held that direct actions against an insurer alone are strictly limited to the five enumerated circumstances listed in La. R.S. 22:655(B). Foltmer v. James, 2001-1510 (La.App. 4 Cir. 9/12/01), 799 So.2d 545. In that case, Foltmer filed suit in Orleans Parish naming several defendants, including St. Paul Fire & Marine Insurance Company and its insured, the City of Gretna, seeking recovery of damages incurred in an automobile accident that occurred in the City of Gret-na. Foltmer’s claim against the City of Gretna was later transferred to the 24th Judicial District Court. Following the transfer, St. Paul filed an exception of no right of action in Orleans Parish, citing La. R.S. 22:655(B). This court noted that as a result of the transfer, the plaintiffs claim against St. Paul in Orleans Parish became a direct action against an insurer alone and, under the circumstances at hand, was inappropriate because none of the enumerated circumstances under 22:655(B) existed. Thus, this court held that St. Paul was entitled to a dismissal.

As in Foltmer, supra, when the trial court granted a dismissal of State Farm’s named insured, Dennis Armitage, the Whites’ claim against State Farm became a direct action against State Farm under La. R.S. 22:655(B). As in Foltmer, the Whites failed to offer, let alone prove, that any of the five enumerated circumstances under 22:655(B) were applicable in this case.

The Whites did not name State Farm’s insured driver, Jason Armitage, as a defendant in this lawsuit prior to the case being submitted to the court for decision. The Whites produced no evidence showing that Jason Armitage was deceased or that he was adjudged as a bankrupt. The Whites also produced no evidence showing that service of citation could not be made on Jason Armitage. In fact, the police report, stipulated to by all counsel prior to trial, listed Jason Armitage’s address. Because none of the enumerated circumstances existed for the Whites to maintain a direct action against State Farm alone under La. R.S. 22:655(B), we shold that State Farm’s exception of no right of action should have been granted, and State Farm dismissed.

State Farm next contends that the trial court erred in granting the plaintiffs permission to amend their original petition to add Jason ' Armitage as a defendant after the case was submitted for decision.

Once a final judgment has been rendered, there generally can be no amended petition as there is no longer a petition before the court to amend. State, Through Louisiana Riverboat Gaming Com’n v. Louisiana State Riverboat Gaming Enforcement Division, 97-0167 (La.App. 1 Cir. 6/20/97), 696 So.2d 645. After rendition of final judgment, appellants may either apply for a new trial or appeal from an adverse judgment, but nowhere in the Code of Civil Procedure is an amendment of a petition after final judgment allowed. Templet v. Johns, 417 So.2d 433.

In this case, the trial court granted the plaintiffs permission to amend the petition after trial on the merits and after the matter was submitted to the court for a decision. In fact, the plaintiffs did not amend their petition until March 24, 2003, nearly four and a half months after the trial court rendered its final judgment on November 15, 2002 against State Farm only. Under the Louisiana Code of Civil Procedure, plaintiffs’ only post-trial remedy was to apply for a new trial or appeal. As such, we find that the trial judge erred in allowing plaintiffs to amend their petition not only aftér trial, but after judgment had been rendered. Because we find merit to State Farm’s first two assignments of error, we need not address their remaining alternative arguments.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is reversed.

REVERSED.


author: DAVID S. GORBATY, Judge.

text:
    STATE of Louisiana v. Johnny L. JONES.
    No. 2003-KA-0829.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 26, 2003.

      Eddie J. Jordan, Jr., District Attorney, Val M. Solino, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Kevin V. Boshea, and Philip E. Hantel, New Orleans, LA, for DefendanVAppel-lant.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   DAVID S. GORBATY, Judge.

STATEMENT OF THE CASE

Defendant Johnny L. Jones was charged by grand jury indictment on September 3, 1998 with first degree murder, a violation of La. R.S. 14:30. Defendant pleaded not guilty at his September 9, 1998 arraignment. The trial court denied defendant’s motion to suppress the evidence on January 22, 1999. On April 22, 1999, the trial court denied defendant’s motion to suppress one statement, and granted the motion as to a second statement. This court denied two applications for supervisory review filed by defendant. A twelve-person jury found defendant guilty as charged on September 26, 2001, at the conclusion of a three-day trial. At the sentencing hearing on September 27, 2001, the jury was unable to reach a decision on whether to sentence the defendant to death. The trial court denied defendant’s motion for a new trial on April 3, 2002 and, after defendant announced he was ready, sentenced him to life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence. The trial court denied defendant’s motion to reconsider sentence. Defendant subsequently filed this appeal.

errors PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, defendant argues that the trial court erred in denying his challenge for cause of prospective juror Edward Delery Jr., who defendant asserts is a New Orleans police officer.

La. Const. Art. I, § 17(A) provides that a defendant has a right to challenge jurors peremptorily, with the number being fixed by law. The number is fixed by La.C.Cr.P. art. 799. Prejudice is presumed — and reversible error exists — when a trial court erroneously denies a challenge for cause and the defendant exhausts his peremptory challenges, because the erroneous ruling thereby deprives the defendant of one of his peremptory challenges. State v. Jacobs, 99-1659, p. 5 (La.6/29/01), 789 So.2d 1280, 1284. A minute entry reflects that defendant exhausted his peremptory challenges in the instant case.

La.C.Cr.P. art. 797 sets forth five grounds for which a defendant can challenge a prospective juror for cause. The only pertinent grounds would be: (2) the juror is not impartial, whatever the cause of the partiality; and (3) the relationship, whether by employment or enmity between the juror and the defendant or the district attorney is such that it is reasonable to conclude it would influence the juror in arriving at a verdict. The challenging party bears the burden of demonstrating that the relationship in question is of such a nature as to cause bias or impartiality. State v. Rhodes, 97-1993, p. 3 (La. App. 4 Cir. 11/18/98), 722 So.2d 1078, 1080.

Defendant characterizes Edward Delery as a police officer. While it is clear that Edward Delery was employed as a forensic light examiner in the New Orleans Police Department Crime Lab, it is less clear that he was a police officer. However, he did not correct the attorneys who addressed him as officer, and in any case, a person is not automatically disqualified to serve as a juror simply because of his status as a police officer. State v. Ballard, 98-2198 (La.10/19/99), 747 So.2d 1077, overruling State v. Simmons, 390 So.2d 1317 (La.1980). In the instant case, defense counsel challenged Officer Delery for cause on the sole ground that he was a New Orleans Police Officer. In Ballard, supra, a Baton Rouge city police officer was a prospective juror in a DWI trial in nearby Livingston Parish. The court rejected the notion that the prospective juror’s status as a police officer alone disqualified him serving as a juror, and held that La.C.Cr.P. art. 797 provided sufficient safeguards to ensure a fair and impartial jury. In Ballard, the police officer’s responses to questions by the trial court indicated that his employment status would have no bearing on his ability to serve as a fair and impartial juror, and that he would not be more inclined to believe or disbelieve a police officer testifying at trial simply because he was himself a police officer.

Defendant notes that a concurring opinion in Ballard stated that there was no indication that the prospective juror/police officer, who was employed by the City of Baton Rouge, had a sufficiently close relationship either with the district attorney’s office in Livingston Parish or with law enforcement agents in that parish to suggest that the officer might not be fair and impartial as a juror in the Livingston Parish trial. Defendant suggests that the result in the instant case should be different than in Ballard because of the employment relationship between Officer Delery and the New Orleans Police Department, as well as the Orleans Parish District Attorney’s Office. Defendant states in his brief that Officer Delery had testified numerous times as an expert witness for the State, and worked on between 200-500 cases per year. Officer Delery, the head of the forensic light unit of the police department’s crime lab, stated that in an average year he examined some 2,000 items in 500 cases. While there is no direct evidence that he testified numerous times on behalf of the State, it can be presumed that he had done so. Nevertheless, the record is devoid of any evidence to suggest that, at the time defense counsel challenged Officer Delery for cause, the officer would have been anything other than a fair and impartial juror. Defense counsel simply asked Officer Delery if he had heard of the term manslaughter, and then asked the officer if he could give an example of a typical manslaughter situation, which the officer did. Counsel did not inquire into any factors at all relative to the officer’s bias or impartiality. It cannot be said that defendant met his burden of showing bias or impartiality on the part of Officer Delery. Thus, it cannot be said that the trial court abused its discretion in denying the challenge for cause.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 3

In this assignment of error, related to Assignment of Error No. 2, defendant claims that the trial court erred in denying his motion for mistrial, made after it was discovered that Officer Delery had tested evidence in defendant’s case for latent fingerprints. Defendant argues that prejudice resulted when he was deprived of his right to peremptorily challenge jurors.

The trial court denied defendant’s challenge for cause as to Officer Delery on September 24, 2001. The jury was sworn that date and sequestered for the evening, without any witnesses being sworn. The following morning, prior to the start of trial, an instanter subpoena, requested by defense counsel, was served on Officer De-lery, ordering him to appear to testify in defendant’s trial. Officer Delery and Orleans Parish Assistant District Attorney Jonathan Friedman testified at a hearing held before the start of trial.

Officer Delery testified at the hearing that, prior to receiving the instanter subpoena that morning, he had been unaware that he had analyzed evidence in the case. He had no independent recollection of the October 27, 1998 crime lab report submitted by him in defendant’s case. Officer Delery estimated that he probably had submitted several hundred crime lab reports since 1998. Later, during examination by the court, Officer Delery stated that he probably examined 2,000 items a year in 500 different cases. Referring to his report in defendant’s case, Officer De-lery stated that he tested seven items for latent fingerprints. He had no recollection of anyone from the District Attorney’s Office contacting him about the case after he performed the examinations. The only subpoena he received in connection with the case was the one requested by defense counsel and served that morning. Office Delery later testified during the State’s case-in-chief that he found no fingerprints suitable for identification on any of the seven items he examined.

Assistant District Attorney Jonathan Friedman testified that he had been assigned defendant’s case the previous Wednesday, and that Officer Delery’s report was not in the district attorney’s case file. Investigating Det. Andre Gilds gave Mr. Friedman the police case file the day voir dire was conducted, and Mr. Friedman said he reviewed it over night and that morning for exculpatory information. He discovered Officer Delery’s one-page report that morning, when he walked into his office at 8:15 a.m. He notified defense counsel at 8:45 a.m. Mr. Friedman testified that on the Saturday prior to trial, he had presented his entire case file to defense counsel.

The trial court denied defendant’s motion' for mistrial, although the court found negligence in the State’s handling of the case. The court added that it found no ethical violation on the prosecutor’s part. Defense counsel noted an objection.

At the outset, it can be noted that the record does' not reflect on what ground defendant moved for a mistrial, or on what ground defendant objected to the denial of his motion for mistrial. After Officer De-lery testified that morning, prior to trial, the court asked if there was a motion by the State or the defense. Defense counsel responded by stating that he would call the prosecutor, Mr. Friedman, as a witness in the matter. After Mr. Friedman testified, the trial court asked defense counsel if he was maintaining a motion for mistrial. Defense counsel asked for a moment, after which the transcript reflects “Off-the-Record.” Immediately thereafter, defense counsel replied in the affirmative, indicating that he was maintaining the motion for mistrial. The trial court then denied the motion, and defense counsel noted his objection.

The law is well-settled that under La. C.Cr.P. art. 841(A), a defendant must make known' the grounds for his objection, and he is limited on appeal to those grounds articulated at trial. State v. Brooks, 98-0693, p. 9 (La.App. 4 Cir. 7/21/99), 758 So.2d 814, 819; see also State v. Dean, 2000-0199, p. 8 (La.App. 4 Cir. 3/14/01), 789 So.2d 602, 607 (“As the defendant’s argument on appeal is different from his basis for objecting at trial, the defendant is precluded from raising the issue on appeal.”). See also State v. Richards, 99-0067, p. 4 (La.9/17/99), 750 So.2d 940, 942 (“An objection stating no basis presents nothing for this court to review”), quoting State v. Dupar, 353 So.2d 272, 273 (La.1977).

Defendant challenged Officer Delery for cause during voir dire. Although it cannot be said that at the time, the trial court erred in denying that challenge for cause, the challenge was sufficient to preserve defendant’s claim that he was denied his constitutional right to peremptorily challenge jurors. There is an obvious relationship between the two issues — if defendant had been aware that Officer Delery had examined evidence in the case he would have had a guaranteed challenge for cause, and he would not have had to expend a peremptory challenge to strike the officer. As such, we find that defendant preserved his right to seek review of the denial of his motion for mistrial as to having been denied his right to peremptorily challenge jurors because he challenged Officer De-lery for cause.

La.C.Cr.P. art. 775 provides that the trial court “shall” grant a mistrial “when prejudicial conduct in or outside of the courtroom makes it impossible for the defendant to obtain a fair trial.” In addition, La.C.Cr.P. art. 729.5 provides that a trial court “may” order a mistrial on motion of defendant, when the State fails to comply with discovery requirements, i.e., La.C.Cr.P. art. 719(A). “Mistrial is an extreme remedy and, except for instances in which the mandatory mistrial provisions of La.C.Cr.P. art. 770 are applicable, should only be used when substantial prejudice to the defendant is shown.” State v. Castleberry, 98-1388, p. 22 (La.4/13/99), 758 So.2d 749, 768. “The determination of whether actual prejudice has occurred, and thus whether a mistrial is warranted, lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion.” State v. Wessinger, 98-1234, p. 24 (La.5/28/99), 736 So.2d 162, 183.

Even if the State is not to blame— because there was no duty on its part to disclose the report for the purpose of protecting defendant’s right to a fair trial relative to his right to peremptorily challenge jurors — circumstances beyond defendant’s control operated to deprive him of that right. Had Officer Delery had been asked by defense counsel during voir dire whether he had performed any tests on evidence seized in the case, or was connected to the case in any way, he would have answered either “no,” or to the effect “not that I am aware of.” There was no possibility defendant could have ferreted out during voir dire that Officer Delery had examined evidence in the case and/or issued a written report so as to challenge the officer for cause on that ground.

When a trial court erroneously denies a defendant’s challenge for cause, and thereafter the defendant exhausts his peremptory challenges, prejudice is presumed, and reversible error exists. State v. Jacobs, 99-1659, p. 5 (La.6/29/01), 789 So.2d 1280, 1284; State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1281. Prejudice is presumed, and reversible error exists, “primarily because of the protection given to a defendant’s right to peremptory challenges found in the Louisiana Constitution at Article I, § 17.” Robertson, 630 So.2d at 1280.

As noted, there was no error as to the trial court’s denial of defendant’s challenge for cause in the instant case. However, prejudice is presumed and the error is reversible because of the nature of the right denied, not because the denial was due to an error by the trial court. A defendant who is deprived of his constitutional right to peremptory challenges due to circumstances beyond his control is no less deprived of that right than is a defendant who is deprived of the right by a trial court’s erroneous denial of his challenge for cause. It can be noted that in the instant case defendant was convicted of first-degree murder, which required a unanimous verdict.

Circumstances beyond defendant’s control amounted to “prejudicial conduct in or outside the courtroom” that operated to make it impossible for defendant to obtain a fair trial, meaning a trial in which he was not effectively deprived of his right to peremptorily challenge jurors. Accordingly, we find that the trial court erred in denying defendant’s motion for a mistrial.

CONCLUSION

Since we have found that reversible error exists, we pretermit discussion of the remaining assignments of error. Accordingly, for the foregoing reasons, we find that the trial court erred in denying defendant’s motion for mistrial as to defendant being effectively denied his constitutional right to peremptorily challenge jurors. As such, we reverse the conviction and sentence and remand the case for further proceedings.

REVERSED AND REMANDED.

      . State v. Jones, unpub., 99-1393 (La.App. 4 Cir. 6/30/99) (adequate remedy on appeal); State v. Jones, unpub. (La.App. 4 Cir. 1/31/00), writ denied, 2000-0644 (La.4/20/00), 760 So.2d 1157.


author: PATRICIA RIVET MURRAY, Judge.

text:
    SOUTHERN TOOL & SUPPLY, INC. v. BEERMAN PRECISION, INC., Industrial Welding Supply Co., Black & Decker, Inc.
    No. 2003-CA-0960.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 26, 2003.

      Joseph R. Ward, Jr., Lynn H. Frank, Ward Nelson, LLC, New Orleans, LA, for Plaintiff/Appellee (Southern Tool & Supply Co., Inc.).
    Henry W. Kinney, III, Kinney & Ellin-ghausen, and Lawrence M. Lehmann, Leh-mann, Norman & Marcus, L.L.C., New Orleans, LA, for Defendant/Appellant (Beerman Precision, Inc.).
    Harry A. Rosenberg, Christopher K. Ralston, Phelps, Dunbar, L.L.P., New Orleans, LA, for Defendant/Appellant (Black & Decker (U.S.), Inc.).
    Don M. Richard, Metairie, LA, for Defendant/Appellant (Industrial Welding & Supply Co.).

      (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   PATRICIA RIVET MURRAY, Judge.

This is a state antitrust action. Pursuant to La. R.S. 51:135, which is a special statutory provision that authorizes an appeal from certain interlocutory rulings in antitrust cases, the three defendants— Beerman Precision, Inc.; Industrial Welding & Supply Co.; and Black & Decker, Inc. (“Defendants”)' — -appeal the trial court’s denial of their peremptory exception of no cause of action. For the reasons that follow, we affirm as to the plaintiffs (Southern Tool & Supply, Inc.’s) unreasonable restraint of trade claim and Louisiana Unfair Trade Practice Act (“LUTPA”) claim; reverse as its monopolization and conspiracy to monopolize claims; and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2000, Southern Tool commenced this suit against Defendants. In response, Defendants each filed several exceptions, including lack of subject matter jurisdiction and no cause of action. Reasoning that the antitrust claims were not confined to intrastate commerce, the trial court sustained the exception of lack of subject matter jurisdiction over the antitrust claims. Reversing, this court reasoned that this suit alleges anti-eom-petitive effects occurring in Louisiana and thus is governed by this state’s antitrust statute. This court also rejected Defendants’ suggestion that it should reach the exception of no cause of action; instead, we remanded to the trial court for its consideration of that exception. Southern Tool & Supply, Inc. v. Beerman Precision, Inc., 2001-1749 (La.App. 4 Cir. 5/1/02), 818 So.2d 256, writs denied, 2002-1509, 2002-1515, 2002-1531 (La.9/20/02), 825 So.2d 1177-79.

In our prior decision, we also summarized the facts as plead in Southern Tool’s petition, stating:

[Southern Tool] was engaged in the business of selling power tools, hand tools, saw blades, grinding wheels, drill bits, and other equipment to contractors in the construction industry who were located primarily in the Orleans-Jefferson area. When [Southern Tool] first started doing business in December of 1996, it applied to be a distributor of Black & Decker products, especially the DeWalt line of tools and products. Black & Decker did not give [Southern Tool] a distributorship because of opposition from defendants Beerman and Industrial Welding.
In the fall of 1999, Mr. George Elstrott, a salesman for Black & Decker and De-Walt, told [Southern Tool] “that his sales of products to distributors were down” and that “he would try to persuade his superiors to, authorize a distributorship for Southern Tool to help sales of DeWalt and Black & Decker Products in the Metropolitan New Orleans area.” Thereafter, Mr. Charlie Kelly, Black & Decker’s regional sales manager, agreed to let [Southern Tool] be a distributor. Black & Decker issued a distributor number to [Southern Tool] and allowed it to place an order for DeWalt and Black & Decker products at distributor prices. Mr. Elstrott told [Southern Tool] to keep a low profile with the new distributorship because Beerman and Industrial Welding would be upset.
[Southern Tool] placed its first order as a distributorship on November 1, 1999, whereby it ordered $11,572.00 worth of products as well as racks and supply stands to feature the DeWalt products. [Southern Tool] told approximately 130 customers that it would henceforth be a Black & Decker/DeWalt distributor and even persuaded one major electrical contractor to switch from another line of tools to Black & Decker.
When word got out that [Southern Tool] had become a distributor, Mr. Gary Hooter, vice president of sales for Industrial Welding, called Mr. Mark Beer-man, president of Beerman, and together “they decided to ‘raise a stink’ with Black & Decker about Southern Tool’s distributorship.” Specifically, Mr. Hooter and Mr. Beerman “agreed that they would call Black & Decker’s home office to complain, that they would send back thousands of dollars worth of De-Walt merchandise in protest, and, that they would threaten to end or downplay their promotion of Black & Decker and DeWalt products.” Subsequently, Beer-man and Industrial Welding shipped inventory back to Black & Decker. Beer-man also canceled orders- with- Black & Decker.
Black & Decker caved in to pressure from Beerman and Industrial Welding. Specifically, on December 22, 1999, Mr. Elstrott (Black & Decker’s sale representative) and Mr. Kelly (Black & Decker’s regional sales manager) visited both Beerman and Industrial Welding and apologized for [Southern Tool] being a DeWalt distributor and told them that they would cancel [Southern Tool]’s distributorship.
Thereafter, Mr. Elstrott and Mr. Kelly met with the principals of Southern Tool to inform them that Black & Decker was canceling the distributorship contract with [Southern Tool] due to a market survey that showed Black & Decker had enough distribution in the Orleans Parish-Jefferson Parish area without adding [Southern Tool]. The principals of [Southern Tool] requested the opportunity for [Southern Tool] to show Black & Decker what it could accomplish. Further, they informed Mr. Keely and Mr. Elstrott that [Southern Tool] had already informed its customers about the new distributorship, and that Black & Decker’s business reputation would be damaged by the sudden and unwarranted decision to cancel the distributorship. The principals of [Southern Tool] later determined, by making calls to other Black & Decker distributors, that no one had in fact been contacted by Black & Decker about a market survey. Further, the principals of [Southern Tool] learned from speaking with employees of Beerman, Industrial Welding, and Black & Decker, that Beerman and Industrial Welding had conspired and agreed to put pressure on Black & Decker to force them to cancel [Southern Tool]’s newly acquired distributorship status.
On December 22, 1.999, Jay Baker, a principal of [Southern Tool], wrote Black & Decker’s officer John Scheich in Tow-son, Maryland, warning that the decision to cut off [Southern Tool] after agreeing to make it a distributor would damage Southern Tool. On January 5,. 2000, Mr. Baker called Bud Schreiber, Mr. Kelly’s supervisor, to see if Black & Decker would reconsider termination of the dealership contract; Mr. Schreiber told Mr. Baker that Black & Decker would not reinstate the contract.
[Southern Tool] alleges that the cancellation of its distributorship damaged the business reputation- of its company. Further, because [Southern Tool] had promoted the use of DeWalt products among its customers, [Southern Tool] was forced to buy DeWalt products from other distributors in order to supply the demand that it had created. [Southern Tool] alleges that “[b]uying through a middlemen increased its costs by 10% to 20% per sale,” and that it was not able to benefit from any special promotions.

Southern Tool, 2001-1749 at pp. 3-6, 818 So.2d at 258-60.

In its petition (paragraphs eighteen to twenty-four), Southern Tool asserted the following causes of action.

Louisiana Anti-Trust Laws (La. R.S. 51:121 et seq.)
The conduct of Black & Decker, Beer-man Precision, and Industrial Welding constitutes a violation of the Louisiana anti-trust laws (LSA-R.S. 51:121 et seq.) in that the three defendants agreed that Southern Tool would not be allowed to have a DeWalt dealership. This agreement or oral contact not to deal with Southern Tool was an unreasonable restraint of trade. Additionally, or alternatively, the defendants conspired to monopolize part of the trade in DeWalt products. For purposes of this antitrust action, the relevant geographic market is the Greater New Orleans area, including Orleans and Jefferson Parishes. The relevant product market is DeWalt power tools and accessories. Beerman and Industrial Welding conspired together to force Black & Decker not to deal with Southern.
Beerman, Industrial Welding, and Black & Decker are liable in solido for costs, attorney’s fees and all damages, trebled, caused by the violations of the state anti-trust law described herein. Such damages include, without limitation, out-of-pocket costs, loss of business reputation, loss of profits, and loss of an opportunity to enter the market for the sale of DeWalt products.
Louisiana Unfair Trade Practices Act (La. R.S. 51:1401)
The conduct of Black & Decker, Beer-man Precision, and Industrial Welding constitutes a violation of the Louisiana Unfair Trade Practices Act (LSA-R.S.51:1401) [ (“LUTPA”) ]. As a business competitor of Beerman and Industrial Welding, Southern Tool has standing to maintain an action for damages caused by the cancellation of its distributorship. The economic pressure brought jointly by Beerman and Industrial Welding to cause the cancellation of Southern Tool’s distributorship constitutes an unfair trade practice. Black & Decker is liable for acting in concert with Beerman and Industrial Welding to deprive Southern Tool of its rights as a distributor of DeWalt products.
As a result of the conspiracy of Beer-man, Industrial Welding, and Black & Decker, competition in the sale and service of DeWalt products has been suppressed in the Greater New Orleans area.
Beerman, Industrial Welding, and Black & Decker are liable in solido for costs, attorney’s fees, and all damages caused by the unfair trade practices described herein. Such damages include, without limitation, out-of-pocket costs, loss of business reputation, loss of profits, and loss of an opportunity to enter the market for the sale of DeWalt products.

Southern Tool, 2001-1749 at pp. 12-13, 818 So.2d at 263.

Following a hearing held on February 14, 2003, the trial court overruled Defendants’ exception of no cause of action. In its reasons for judgment, the trial court stated:

Louisiana law provides that “no person shall monopolize, or attempt to monopolize, or combine, or conspire with any person to monopolize any part of the trade or commerce within this state.” LSA-R.S. 51:123. The purpose of the Exception of No Cause of Action is to determine whether in its petition plaintiff has alleged a valid cause of action. On the face of its Petition, in particularly in paragraph numbers 18-24, Southern Tool has clearly set forth allegations supporting a valid cause of action under LSA-R.S. 51:123.

Although the trial court’s reasons refer only to § 123, the paragraphs of the petition to which it refers (paragraphs eighteen to twenty-four), which are quoted above, include Southern Tool’s' causes of action under both § 122 and § 123 of the Louisiana anti-trust laws as well as under LUTPA. For purposes of this appeal, we assume that the trial court overruled Defendants’ exceptions as to all three of the causes of action asserted in those paragraphs of the petition, and we separately address each of those causes of action. Before doing so, we enunciate the principles governing the peremptory exception of no cause of action.

NO CAUSE OF ACTION PRECEPTS

We review a trial court’s decision on an exception of no cause of action de novo “because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition.” City of New Orleans v. Board of Comm’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253. In so doing, we are confined to the allegations of the petition. No evidence can be introduced to support or to controvert an exception of no cause of action. La. C.C.P. art. 931. Rather, we must accept as true the well pleaded factual allegations set forth in the petition. Based thereon, our job is to determine “whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.” Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993).

A defendant’s peremptory exception of no cause of action is designed to test the legal sufficiency of the plaintiffs petition. It poses the question “whether the law affords a remedy on the facts alleged in the pleading.” Id. Louisiana has a system of fact pleading, and “[t]he mere conclusion of the pleader unsupported by facts does not set forth a cause or right of action.” Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131. As we recently noted, “[i]t is insufficient to state a cause of action where the petition simply states legal or factual conclusions without setting forth facts that support the conclusions.” Bibbins v. City of New Orleans, 2002-1510, p. 5 (La.App. 4th Cir.5/21/03), 848 So.2d 686, 691, writ denied, 2003-1802 (La.10/10/03), 855 So.2d 357.

The exceptor has the burden of proving that the petition fails to state a cause of action. This burden serves the public policy of affording the plaintiff his day in court to present his case. “When it can reasonably do so, the court should maintain a petition against a peremptory exception so as to. afford the litigant an opportunity to present his evidence.” Kuebler v. Martin, 578 So.2d 113, 114 (La.1991). “An exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insurmountable bar to relief.” City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170, p. 10 (La.3/2/99), 739 So.2d 748, 756. “If two or more causes of action are based on separate and distinct operative facts, partial grants of the exception of no cause of action may be rendered while preserving other causes of action.” Plaquemine Marine, Inc. v. Mercury Marine, 2003-1036, p. 4 (La.App. 1st Cir.7/25/03), 859 So.2d 110, 115.

With those principles in mind, we turn to the causes of action pled in paragraphs eighteen to twenty-four of Southern Tool’s petition.

LOUISIANA ANTITRUST LAWS (La. R.S. 51:121 et seq.)

Southern Tool cited in its petition both the Louisiana antitrust statute, La. R.S. 51:122, and the Louisiana anti-monopoly statute, La. R.S. 51:123. Because these provisions track almost verbatim Sections 1 and 2 of the Sherman Act, Louisiana courts have turned to the federal jurisprudence analyzing those parallel federal provisions for guidance. Plaquemine Marine, supra; Reppond v. City of Denham Springs, 572 So.2d 224, 228, n. 2 (La.App. 1st Cir.1990)(citing Louisiana Power & Light Co. v. United Gas Pipe Line Co., 493 So.2d 1149 (La.1986) for the proposition that federal jurisprudence interpreting the Sherman Act is “persuasive in interpreting Louisiana antitrust statute.”) We separately analyze the Defendants’ contentions that Southern Tool failed to state a cause of action under either of those two provisions.

(1) Unreasonable Restraint of Trade (La. R.S. 51:122)

Defendants contend that Southern Tool’s petition fails to state a cause of action for restraint of trade under § 122 for several reasons. First, they argue that the alleged restraint was a vertical conspiracy between participants at different levels of the distribution chain. — distributors and a manufacturer. As such, they argue that the rule of reason applies; that rule (discussed below) requires the plaintiff prove harm, not just to itself (a single competitor) but to competition itself. Black & Decker also argues that, under that rule, its decision to terminate its relationship with a former distributor was a business decision, not an antitrust violation. Defendants further argue that Southern Tool failed to allege an essential element of an unreasonable restraint of trade claim: antitrust injury or injury to competition. They stress the well-settled principle that the antitrust laws protect competition, not competitors. They argue that Southern Tool’s allegation of injury to itself is insufficient to state a cause of action. Finally, they argue that, contrary to Southern Tool’s argument, all horizontal conspiracies are not per se illegal. Regardless, they argue that proof of antitrust injury is required even for per se violations.

Southern Tool concedes that it was required to show antitrust injury, but stresses that antitrust injury and injury to competition are two distinct concepts. Southern Tool contends that it was not required to show that Defendants’ conspiracy had an actual adverse effect on competition because it alleged a horizontal conspiracy. As such, it argues that the per se rule (discussed below) applies and that under that rule injury to competition is conclusively presumed. Southern Tool further contends that the fact Black & Decker (a manufacturer) was coerced to join the conspiracy of Beerman and Industrial Welding (distributors) does not destroy the horizontal nature of the conspiracy. In support, Southern Tool cites Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), which involved a horizontal conspiracy between several manufacturers, several distributors, and a single retailer.

To resolve this issue we review the current antitrust jurisprudence. As noted above, Section 122 is a counterpart to Section 1 of the Sherman Act. Despite the literal wording of these provisions, the jurisprudence has construed them as reaching only those combinations that are unreasonable. In determining whether a given combination is unreasonable, the current antitrust jurisprudence generally employs two polar categories of scrutiny: the rule of reason and the per se rule. 2 Kitner Federal Antitrust Law § 11.22 (2002).

The rule of reason, which Louisiana courts have adopted in certain cases, is the prevailing antitrust law standard. See Louisiana Power & Light Co. v. United Gas Pipe Line Co., 518 So.2d 1050, 1053 (La.App. 4th Cir.1987)(noting rule of reason to be “preferred method of analyzing restraint of trade claims”). As its name implies, this rule requires a court to determine if a particular agreement imposes an unreasonable restraint on competition based on all the circumstances of the particular case. The classic statement of that rule is as follows:

The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable.

Board of Trade of City of Chicago v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918). Under this rule, the only relevant question is whether the plaintiff has pled and proved “harm, not just to a single competitor, but to the competitive process, i.e., to competition itself.” NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 135, 119 S.Ct. 493, 498, 142 L.Ed.2d 510 (1998).

At the other end of the spectrum is- the per se rule. Under that rule, the court conclusively presumes that certain restraints are so pernicious and so likely to harm competition that they are deemed unreasonable on their face. “[C]ertain kinds of agreements will so often prove so harmful to competition and so rarely prove justified that the antitrust laws do not require proof' that' an agreement of that kind is, in fact, anticompetitive in the particular circumstances.”' NYNEX, 525 U.S. at 133, 119 S.Ct. at 497. “Once experience with a particular kind of restraint enables the Court to predict with confidence that the rule of reason will condemn it, it has applied a conclusive presumption that the restraint is unreasonable.” Arizona v. Maricopa County Medical Soc’y, 457 U.S. 332, 344, 102 S.Ct. 2466, 2473, 73 L.Ed.2d 48 (1982).

Historically, the antitrust laws have drawn a definite distinction between vertical and horizontal restrictions; however, that line is not always eásy to draw because in some cases “it can be hard as a matter of fact to be sure what kind of agreement is at issue.” Toys “R” Us, Inc. v. Federal Trade Comm’n, 221 F.3d 928, 930 (7th Cir.2000). Characterization is the analytical process by which a court draws that line and thereby determines which rule applies. Kitner, supra at § 11.23. The challenged restraint is pigeonholed based on its direction — horizontal or vertical.

Vertical restraints occur up and down the distribution chain. They are “imposed by persons at different levels of distribution, usually by one higher up the distribution chain than the party restrained.” Plaquemine Marine, 2003-1036 at p. 8, 859 So.2d at 117. Except for vertical restraints involving price, this category of restraint is governed by the rule of reason. As noted, Defendants contend the agreement at issue in this case falls into the category of a vertical, non-price restraint governed by the rule of reason.

Horizontal restraints are agreements among competitors at the same level of distribution. They “come about as a result of agreements among competitors.” Toys “R” Us, 221 F.3d at 930. Because the antitrust laws are aimed at preserving competition, the courts have recognized that “agreements among competitors are more likely to reduce competition than other types of agreement, particularly ‘vertical’ ones, those between buyers and sellers.” Kitner, supra at § 11. Predictably, the per se rule has been applied to several types of horizontal restraints, including certain group boycotts or concerted refusals to deal. As noted, Southern Tool contends the agreement at issue falls into the category of a horizontal, group boycott restraint governed by the per se rule.

Recently, the United States Supreme Court reformulated the rule regarding the characterization of group boycotts or refusals to deal. Applying modern economic analysis of restraints of trade and imposing “an economically informed characterization inquiry” that necessarily precedes applying the per se rule, the Supreme Court has confined the per se category to a narrow set of “classic or naked boycotts.” Kitner, supra at § 11.40 (citing Northwest Wholesale Stationers, Inc. v. Pacific Stationery and Printing Co., 472 U.S. 284, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985)). In so doing, the Supreme Court identified certain characteristics in its earlier cases, such as Klor’s, that continue to justify per se treatment. For instance, in NYNEX, supra, the Supreme Court stressed that although Klor’s “involved a threat made by a single powerful firm, it also involved a horizontal agreement among those threatened, namely, the appliance suppliers, to hurt a competitor of the retailer who made the threat.” NYNEX, 525 U.S. at 136, 119 S.Ct. 493. That horizontal dimension of the restraint, absent a plausible efficiency justification, is what the court found warranted application of the per se rule. Kitner, supra at § 11.42.

Summarizing the reformulated rule enunciated in NYNEX and Northwest Wholesale, a commentator noted that there are now four minimum criteria for per se illegality of such agreements; to wit:

(1) A horizontal element — an agreement among competitors at some level of manufacture or distribution.
(2) A vertical element — an effort to deny needed supplies, channels of distribution, or facilities necessary for the target firm to compete.
(3) The parties to the agreement must have a sufficiently dominant market position to make the arrangement plausible as a means of excluding competition.
(4) The agreement must lack a plausible competitive justification [i.e., no efficiency justification for the agreement].

Kitner, supra at § 11.42. The Supreme Court in Northwest Wholesale labeled these factors as “structural characteristics.” 472 U.S. at 297, 105 S.Ct. at 2621.

A recent case in which an agreement was found to have these structural characteristics is Toys “R” Us, supra. The giant toy retailer Toys “R” Us (“TRU”) acted as “ring leader” to coordinate a horizontal agreement among several toy | ^manufacturers. The agreement at issue was described as “a network of vertical agreements between TRU and the individual manufacturers, in each of which the manufacturer promised to restrict the distribution of its products to low priced warehouse club stores, on the condition that other manufacturers would do the same.” 221 F.3d at 930. Characterizing this agreement as a horizontal conspiracy, the court reasoned that TRU “was trying to disadvantage the warehouse clubs, its competitors, by coercing suppliers to deny the clubs the products they needed.” 221 F.3d at 936. The court further reasoned that “[TRU] accomplished this goal by inducing the suppliers to collude, rather than to compete independently for shelf space in the different toy retail stores.” Id. Concluding that the structural characteristics for applying the per se rule were present, the court stated:

(1) the boycotting firm has cut off access to a supply, facility or market necessary for the boycotted firm (ie., the clubs) to compete;
(2) the boycotting firm possesses a “dominant” position in the market (where “dominant” is an undefined term, but plainly chosen to stand for something different from antitrust’s term of art “monopoly”); and
(3) the boycott ... cannot be justified by plausible arguments that it was designed to enhance overall efficiency.

221 F.3d at 936. The court noted, however, that the requirement of establishing market power for application of the per se rule under Section 1 is less than that required for a monopolization claim under Section 2. Toys “R” Us, 221 F.3d at 936.

The jurisprudential emphasis on the structural characteristics of the arrangements is significant. “Although a group boycott usually has both vertical and horizontal characteristics, ‘it is the horizontal element that justifies applying a rule of per se illegality.’ ” Com-Tel, Inc. v. DuKane Corp., 669 F.2d 404, 409, n. 6 (6th Cir.1982). Indeed, in Klor’s, the Supreme Court stressed the structural ^^characteristics of the arrangement, noting that “[t]his is not a case of a single trader refusing to deal with another, nor even of a manufacturer and a dealer agreeing to an exclusive distributorship. Alleged in this complaint is a wide combination consisting of manufacturers, distributors, and a retailer.” Klor’s, 359 U.S. at 213, 79 S.Ct. at 710.

By analogy, as Southern Tool suggests, this is not a case in which Black & Decker unilaterally terminated its distributorship. Nor is this a case in which Beerman and Industrial Welding separately and independently exerted pressure on Black & Decker to join the conspiracy and to terminate Southern Tool’s distributorship. Assuming the allegations of the petition to be true, this is a classic horizontal, group boycott, like in Klor’s, to which the per se rule applies.

We recognize, as Black & Decker argues, the well-settled principle that a business “generally has a right to deal, or refuse to deal, with whomever it likes, as long as it does so independently.” Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984). However, businesses must “avoid any entanglement in horizontal conduct — whether between their own competitors or between competitors of a supplier or distributor.” Margaret M. Zwisler, The Susceptibility of Vertical Re straints to Summary Adjudication: Procedural Avenues to Substantive Objectives, 67 Antitrust L.J. 327, 337 (1999). The presence of a horizontal entanglement is what brings a refusal to deal or boycott case within the per se category and precludes summary adjudication. Id. Such is the case here.

All four structural requirements for per se characterization of an agreement are satisfied by the allegations of Southern Tool’s petition. The horizontal dimension is satisfied by the alleged agreement between Beerman and Industrial Welding jointly to raise a stink and to put pressure on Black & Decker to terminate the distributorship. The vertical dimension is satisfied by Black & Decker’s participation in the conspiracy. The requirement of sufficient market position to make the agreement plausible is satisfied by both the termination itself and by Southern Tool’s allegation that Defendants jointly acted to exclude competition from the market. As Southern Tool claims, this allegation implicitly “includes the allegation that Beerman and Industrial Welding had the power to exclude competition” and that they coerced Black & Decker to eliminate Southern Tool as a competitor on equal footing. Finally, we find no plausible competitive justification for the restraint. We thus find that Southern Tool’s petition sufficiently pleads a horizontal entanglement among Defendants to bring this case within the ambit of the per se rule.

Even in eases involving a per se violation of the Sherman Act, the plaintiff is not relieved of the requirement of pleading antitrust injury. Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990). Antitrust injury is defined as the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977). As Southern Tool stresses, “antitrust injury” is not the same as the substantive requirement of injury to competition. These are two distinct concepts that serve two distinct purposes. Explaining that distinction, the Supreme Court in Atlantic Richfield noted:

The per se rule is a method of determining whether § 1 of the Sherman Act has been violated.... It represents a “longstanding judgment that the prohibited practices by their nature have ‘a substantial potential for impact on competition.’ ”....
The purpose of the antitrust injury requirement is different. It ensures that the harm claimed by the plaintiff corresponds to the rationale for finding a violation of the antitrust laws in the first place, and it prevents losses that stem from competition from supporting suits by private plaintiffs.... The antitrust injury requirement ensures that a plaintiff can recover only if the loss stems from a competition reducing aspect or effect of the defendant’s behavior.

495 U.S. at 342-43, 110 S.Ct. at 1893-94.

Harmonizing the antitrust injury requirement with the per se rule, the court in Pace Electronics, Inc. v. Canon Computer Systems, Inc., 213 F.3d 118, 124 (3rd Cir.2000), reasoned that “[i]mplicit in the United States Supreme Court’s approach is that a plaintiff who had suffered loss as a result of an anticompetitive aspect of a per se restraint of trade agreement would have suffered antitrust injury, without demonstrating that the challenged practice had an actual, adverse economic effect on a relevant market.” 213 F.3d at 124.

The defendants in Pace, supra, similar to Defendants in this case, argued that “a terminated dealer seeking to establish that it has suffered antitrust injury must allege facts demonstrating that its termination as an authorized dealer resulted in an actual, adverse economic effect on competition in a relevant interbrand market” 213 F.3d at 123. Rejecting that argument, the court reasoned that to impose such a requirement would come “dangerously] close to transforming a per se violation into a case to be judged under the rule of reason” and “would, in substance, be removing the presumption of anticompetitive effect implicit in the per se standard under the guise of the antitrust injury requirement.” Id. The court noted that the issue is thus “not whether the plaintiffs alleged injury produced an anticompetitive result, but, rather, whether the injury claimed resulted from the anticompetitive aspect of the challenged conduct.” Id. In the same vein, another court noted that antitrust injury should “be viewed from the perspective of the plaintiffs position in the marketplace, not from the merits-related perspective of the impact of a defendant’s conduct on overall competition.” Doctor’s Hospital of Jefferson, Inc. v. Southeast Medical Alliance, Inc., 123 F.3d 301, 305 (5th Cir.1997).

Analyzing the meaning of the antitrust injury requirement, a commentator stated:

Very simply, the doctrine of antitrust injury requires a court to examine not only whether the' acts the defendant allegedly committed violate the law but also why they violate the law. The doctrine, in other words, directs a court to examine, in a proper case, what economic effects the case law rule or statute in question seeks to prevent.... Having examined the purposes of the relevant rule, the court must then consider the damages claimed by the plaintiff, to determine whether the injury flows form one of the condemned effects. If so, there is antitrust injury; if not, there is no antitrust injury.

Ronald W. Davis, Standing on Shaky Ground: The Strangely Elusive Doctrine of Antitrust Injury, 70'Antitrust L.J. 697, 723 (2003).

Group boycotts or concerted refusals to deal are unlawful under the antitrust laws “because their purpose and effect is to reduce competition by driving the plaintiff from the market.” Lee-Moore Oil Co. v. Union Oil Co. of California, 599 F.2d 1299, 1304 (4th Cir.1979). In Lee-Moore, supra, the court found the antitrust injury requirement satisfied despite the fact the plaintiff was still in business and had continued to prosper. The court reasoned that it is not necessary that a plaintiff be driven from the market to establish antitrust injury. The court stressed the Supreme Court’s express holding in Brunswick, supra, that “a plaintiff need not prove an actual lessening of competition in order to show ‘antitrust | injury.’ ” Lee-Moore, 599 F.2d at 1304. Significantly, the court stated that “the case will be quite rare in which a per se violation of the Sherman Act does not cause competitive injury.” 599 F.2d at 1303; see also Doctor’s Hospital of Jefferson, 123 F.3d at 306 (commenting that “standing should not become the tail wagging the dog in ‘classic’ antitrust cases such as this one by an alleged excluded competitor.”)

Applying those principles here and viewing the antitrust injury issue from the perspective of Southern Tool’s position as a competitor in the marketplace, we find that this is not the rare case in which an alleged per se violation does not cause antitrust injury. Rather, we find that the alleged injuries flow from Defendants’ exclusionary conduct in conspiring to terminate Southern Tool’s distributorship. The alleged injuries clearly flow from the “competition reducing” aspect of Defendants’ conspiracy to eliminate Southern Tool as a competitor on equal footing. We thus find the antitrust injury requirement satisfied. We further find that the trial court did not err in overruling Defendants’ exception of no cause of action as to Southern Tool’s unreasonable restraint of trade claim under Section 122.

(2) Monopolization (La. R.S. 51:123)

Defendants contend that the monopolization claim under Section 123 fails to state a cause of action given Southern Tool’s failure to plead monopoly power in the properly established relevant market of power tools and accessories. Particularly, Defendants argue that this case is analogous to Plaquemine Marine, supra, in which the court dismissed on an exception of no cause of action a Section 123 claim due to the plaintiffs failure to properly plead the relevant market.

Southern Tool counters that its petition fairly stated a monopolization claim in that it alleges Beerman and Industrial Welding excluded competition from the market for sale of DeWalt power tools and accessories to industrial contractors in the greater New Orleans area. According to Southern Tool, this allegation implicitly “includes the allegation that Beerman and Industrial Welding had the power to exclude competition” and that Black & Decker joined with them by terminating the distributorship. Southern Tool further stresses that monopoly power is defined disjunctively as either the ability to control price or the ability to exclude competition. See Louisiana Power & Light Co., 493 So.2d at 1162, n. 21.

As noted, Section 123 is the Louisiana counterpart to Section 2 of the Sherman Act. Both Section 2 of the Sherman Act and Section 123 contain three separate claims: (i) monopolization, (ii) attempted monopolization, and (iii) conspiracy to monopolize. Although the arguments by the parties on appeal focused on a monopolization claim, Southern Tool’s petition pleads a conspiracy to monopolize claim. We thus address both types of monopoly claims.

As to Southern Tool’s monopolization claim, we find Defendants’ argument that the petition fails to plead such a claim persuasive. As in Plaquemine Marine, supra, Southern Tool’s petition fails to properly plead the relevant market.

The relevant market is defined as “the area of effective competition within which the defendant operates” and includes both a product -and a geographic market. Louisiana Power & Light Co., 493 So.2d at 1161, n. 32. The geographic market is “a section of the country, the area in which sellers of a particular product or service operate and to which buyers turn to purchase the product or service.” Id. The product market “encompasses the differences among various commodities and the willingness of buyers to substitute one product for another.” Plaquemine Marine, 2003-1036 at p. 12, 859 So.2d at 119.

Finding the plaintiffs failed to state a monopolization claim, the court in Plaque-mine Marine, supra, reasoned that the plaintiffs’ petition was deficient in that it failed to make any reference to the “economic market, i.e., the scope of other products against which it must compete.” Plaquemine Marine, 2003-1036 at p. 13, 859 So.2d at 120. The court further found the petition deficient in that it failed to allege either damage to interbrand competition or that defendant sells a unique product for which there is no competition from other brands of similar products. Id.

We find Southern Tool’s petition suffers from these same pleading deficiencies. As in Plaquemine Marine, Southern Tool’s petition fails to define the relevant market in which the monopoly allegedly is exercised. We thus find it failed to state a monopolization claim.

As to its conspiracy to monopolize claim, Section 123 provides that “[n]o person shall ... conspire with any other person to monopolize any part of the trade or commerce within this state.” La. R.S. 51:123. The four elements enumerated in the jurisprudence (which Industrial Welding cites in its brief) for a conspiracy to monopolize claim are as follows:

(1) the existence of specific intent to monopolize;
(2) the existence of a combination or conspiracy to achieve that end;
(3) overt acts in furtherance of the combination or conspiracy; and
(4) an effect upon a substantial amount of interstate commerce.

Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Discount Centers, Inc., 200 F.3d 307, 316 (5th Cir.2000).

There presently exists a conflict in the federal jurisprudence over whether a plaintiff alleging a conspiracy to monopolize must also establish a fifth element: proof of the relevant market. “A minority of the federal courts have held, when the a charge is attempt (or conspiracy), to monopolize, rather than monopolization, that the relevant market is not an issue.” 10 A Fletcher Cyc. Corp. § 4983.11 (Perm. Ed.). However, the majority of the federal courts, including the Fifth Circuit, have held that “[t]o establish Section 2 violations premised on attempt and conspiracy to monopolize, a plaintiff must define the relevant market.” Doctor’s Hospital of Jefferson, 123 F.3d at 311. Imposing such a requirement is consistent with Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993), which held that proof of an intent to monopolize requires “inquiry into the relevant product and geographic market and the defendant’s economic power in that market.” Id. We find that majority position persuasive. We further find that Southern Tool’s failure to plead the relevant market is fatal to its conspiracy to monopolize claim.

In sum, we find the trial court erred in denying Defendants’ exception of no cause of action as to Southern Tool’s monopolization and conspiracy to monopolize claims under Section 123.

LUTPA claim (La. R.S. 51:1401, et seq.)

Defendants’ final assignment of error is that the trial court erred in denying their exception of no cause of action as to Southern Tool’s LUTPA claim. We find this argument unpersuasive. The LUTPA provides that “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” La. R.S. 51:1405. A practice is unfair “ ‘when it offends established public policy and when the practice is unethical, oppressive, unscrupulous, or substantially injurious.’ ” JCD Marketing Co. v. Bass Hotels and Resorts, Inc., 2001-1096, p. 12 (La.App. 4th Cir.3/6/02), 812 So.2d 834, 842 (quoting Lilawanti Enterprises, Inc. v. Walden Book Co., 95-2048, p. 6 (La.App. 4 Cir. 2/29/96), 670 So.2d 558, 561). Given this broad jurisprudential definition, the determination of what is an unfair trade violation under the LUTPA must be made on a case-by-case basis. Roustabouts, Inc. v. Hamer, 447 So.2d 543, 548 (La.App. 1st Cir.1984).

The jurisprudence has held that there is no LUTPA violation when the alleged conduct is simply “the appropriate exercise of good business judgment and the proper workings of free enterprise.” Monroe Medical Clinic, Inc. v. Hospital Corp. of America, 522 So.2d 1362, 1365 (La.App. 2d Cir.1988). Stated another way, “ ‘[businesses in Louisiana are still free to pursue profit, even at the expense of competitors, so long as the means used are not egregious.’ ” JCD Marketing, 2001-1096 at p. 13, 812 So.2d at 842 (quoting Turner v. Purina Mills, Inc., 989 F.2d 1419, 1422 (5th Cir.1993)). However, when, as in this case, Defendants’ conduct allegedly violates the antitrust laws, a valid LUTPA claim has been stated. See Anthony J. Rollo, Jr., and Roger A. Stetter, The Private Cause of Action under Louisiana’s Unfair Trade Practices and Consumer Protection Law, 34 La. B.J. 344, 346 (April 1987)(noting that jurisprudence under the analogous FTC Act defines unfair methods of competition to include “fully hatched” antitrust violations such as group boycotts). We thus find no error in the trial court’s denial of Defendants’ exception of no cause of action as to Southern Tool’s LUTPA claim.

DECREE

For the foregoing reasons, we reverse the judgment of the trial court overruling the exceptions of no cause of action filed by Defendants — Beerman Precision, Inc.; Industrial Welding & Supply Co.; and Black & Decker, Inc. — as to | Southern Tool’s monopolization and conspiracy to monopolize claims under La. R.S. 51:123. We affirm the judgment overruling the Defendants’ exceptions as to Southern Tool’s unreasonable restraint of trade claim under La. R.S. 51:122 and LUTPA claim under La. R.S. 51:1401. And, we remand for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . The trial court quoted § 123 in its reasons; § 122 provides in pertinent part as follows: "every ... conspiracy in restraint of trade or commerce in this state is illegal.” La. R.S. 51:122.

      . A third, mid-level category has been recognized called the “quick look” rule. See Continental Airlines, Inc. v. United Airlines, Inc., 277 F.3d 499, 508-09 (4th Cir.2002)(noting that boundaries between the three categories are fluid). This category reflects the "recent decisions indicating] a tension between a per se rule and a more flexible approach.” 10 A Fletcher Cyc. Corp. § 4973 (Perm. Ed.). This category, however, is not applicable to this case.

      . The minority position is articulated in Monument Builders of Greater Kansas City, Inc. v. American Cemetery Assn. of Kansas, 891 F.2d 1473, 1484 (10th Cir.1989), which held that " 'conspiracy to monopolize is a separate offense under Section 2, requiring less in the way of proof than the other Section 2 offenses’ ” and cited as an example that “the 'market power in a 'relevant market’ need not be proved.’ ” Id.