author: Judge MICHAEL E. KIRBY. ARMSTRONG, C.J.,

text:
    DEEP SOUTH TOWING, INC. v. SEDGWICK OF NEW ORLEANS and Marsh U.S.A., Inc.
    No. 2003-CA-1829.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 2004.
    Rehearing Denied July 16, 2004.

      Leonard Cardenas, III, Cardenas & Saunders, Baton Rouge, LA, for Plaintiff/Appellant.
    William F. Grace, Jr., J. Dwight Le-Blanc, Jr., Douglas L. Grundmeyer, Philip R. Sims, Chaffe, McCall, Phillips, Toler & Sarpy, L.L.P., New Orleans, LA, for Defendant/Appellee (Marsh U.S.A., Inc.).
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
   Judge MICHAEL E. KIRBY.

Deep South Towing, Inc. (hereinafter “DeepSouth”), plaintiff/insured appeals the Judgment in favor of defendants, Sedgwick of New Orleans and Marsh U.S.A., Inc. (hereinafter “Sedgwick” or “Marsh”), that dismissed plaintiffs claims with prejudice where the trial court found defendant’s negligence did not create a risk that proximately caused plaintiff harm.

STATEMENT OF THE FACTS

On April 28, 1996, plaintiff obtained ocean marine liability insurance through its broker, Sedgwick, with a surplus lines insurer, HIH Casualty and Marine Insurance Company of Australia (hereinafter “HIH”). This policy was renewed annually on at least two occasions and the Jones Act lawsuit that caused a loss to plaintiff occurred during the 1998-99 policy period.

This foreign insurer did not meet the financial qualifications required by Louisiana law for placement on the Commissioner of Insurance’s “white list” — a glist compiled and maintained by the Commissioner of Insurance of unauthorized insurers who have met certain statutory requirements indicative of the requisite financial soundness and stability. La. R.S. 22:1262 and 22:1262.1, require surplus line brokers to place insurance with an insurer on a list of approved, non-admitted insurers maintained by the Louisiana Commissioner of Insurance known as the “white list.”

HIH was not on the “white list.” Nevertheless, Sedgwick placed Deep South’s insurance with HIH and continued to place it with HIH during the following policy periods.

In March of 1999, during the effective policy period from April 1998 to April 1999, a seaman employee of Deep South, Russell Cacho, suffered injuries, filed a Jones Act lawsuit against Deep South and, in September of 2001, obtained a judgment in his favor against Deep South. That claim was never paid by HIH. Moreover, HIH was dismissed from Mr. Cacho’s suit as a result of a stay order issued by the United States Bankruptcy Court for the Southern District of New York. Deep South has suffered over a half million dollars in economic loss due to the failure of HIH to fulfill its obligations according to their insurance policy.

On April 30, 2001, Deep South filed suit against Sedgwick and Marsh, seeking full indemnity against them for their alleged breach of duty as brokers to assure that HIH was on the Insurance Commissioner’s “white list,” as per La. R.S. 22:1262.1.

Marsh filed an exception based on the three-year peremptive period under La. R.S. 9:5606, which provides that no action for damages may be filed against an insurance broker later than three years after the date of the alleged act, omission, or neglect. The trial court denied the exception, upon concluding that plaintiff had filed suit within three years of defendants’ actions in placing the insurance for the policy period beginning in April 1998.

However, the trial court dismissed with prejudice plaintiffs claims against defendants finding that the risk of an unauthorized insurer becoming financially insolvent after two annual renewals does not fall within the scope of the duty of a surplus line broker.

STATEMENT OF THE LAW

Under Louisiana insurance law, there are status classifications for insurers. Most insurance purchased by Louisiana insureds is purchased from insurers that are “admitted” in Louisiana as “authorized” insurers. Such insurers are subject to extensive regulatory and statutory requirements. However, sometimes special insured needs cannot be satisfied by admitted authorized insurers. Coverages which cannot be obtained from admitted authorized insurers are referred to as “surplus lines” and may be obtained from non-admitted unauthorized insurers. See La. R.S. 22:1257; Popich Bros. Water Transport, Inc. v. Gulf Coast Marine, Inc., 97-0902, p. 3 (La.App. 4 Cir. 1/14/98), 705 So.2d 1267, 1268-69; August v. British International Ins. Co., 201 So.2d 194, 198 (La.App. 4 Cir.1967). Such surplus lines insurance must be obtained through a licensed surplus lines broker. Id.

Brokers can be divided into two types: standard brokers, who procure insurance from insurers who are admitted or licensed in this state, and surplus lines brokers. La. R.S. 22:1132(18) defines surplus lines broker as such:

(18) “Surplus lines broker” shall mean an insurance producer who solicits, negotiates, or procures a property and casualty policy with an insurance company not licensed to transact business in the state which cannot be procured from insurers licensed to do business in this state. All transactions entered into under such license shall be subject to R.S. 22:1249 et seq.

As such, a surplus lines broker is also an insurance producer per 22:1132(6), to wit:

(6) “Insurance producer” shall mean a person required to be licensed under the laws of this state to sell, solicit, or negotiate insurance, and includes all persons or business entities otherwise referred to in the Louisiana Insurance Code as “insurance agent” or “agent”, or “insurance broker” or “broker”, or “insurance solicitor” or “solicitor” or “surplus lines broker”

HIH was not admitted in Louisiana and defendant states that it is a surplus lines broker. Surplus lines insurance and surplus lines brokers are subject to specific statutory provisions. For our purposes in this case the most relevant are La. R.S. 22:1262 and 1262.1.

On July 15, 1997, the Louisiana Legislature amended the law dealing with unauthorized insurance. La. R.S.22:1248 et seq. La. R.S. 22:1248 states the purpose and necessity for regulation of unauthorized insurance, to wit:

This Part shall be liberally construed and applied to promote its underlying purposes which include:
(1) Protecting persons seeking insurance in this state.
(2) Permitting surplus lines insurance to be placed with reputable and financially sound unauthorized insurers under the provisions of this Part.
(3) Establishing a system of regulation which will permit orderly access to surplus lines insurance in this state and encourage authorized insurers to provide new and innovative types of insurance available to consumers in this state.
* * *

Pursuant to statutes specifically enacted to protect Louisiana insureds from having insurance placed with financially unstable surplus lines insurers, Louisiana law imposes a very specific duty on licensed brokers to not write insurance with any company not on the “white list.” Specifically, La. R.S. 22:1262.1(A) provides:

No surplus line broker shall place surplus line insurance with an insurer who is not on the list of approved unauthorized insurers as compiled and maintained by the commissioner of insurance.

Defendants argue that La. R.S. 22:1262 does not apply. They contend the first general phrase found in La. R.S. 22:1269(A) controls instead of the specific phrase found later in that same article that states “brokers placing ocean marine insurance shall be subject to the provisions of La. R.S. 22:1262” and instead of the specific statute La. R.S. 22:1262.1(A). La. R.S. 22:1269(A) provides:

The provisions of R.S. 22:1256 through 1268 and 1270 controlling the placing of insurance with unauthorized insurers shall not apply to reinsurance or to the following insurances when so placed by licensed surplus lines brokers of this state, except that a tax on the portion of the premiums received from ocean marine and foreign trade coverages which is properly allocable to the risks or exposures located in this state during the preceding calendar quarter shall be due on the dates and in a manner provided in R.S. 22:1265 at the rate of five percent, such tax when collected by the commissioner of insurance shall be paid to the state treasurer and to be | ficredited to the state general fund, and such licensed surplus lines broker placing ocean marine insurance shall be subject to the provisions of R.S. 22:1262, notwithstanding the provisions of R.S. 22:1249, 1249.1 and 1252, and must show on any document issued by and/or delivered by them evidencing such insurance, all of the insurers and must clearly stamp on any such documents that on the demand of the assured or its representative the latest financial statements of any such insurers are available to its office for inspection as follows:
(1) Ocean marine and foreign trade insurance.

[Emphasis added.]

The defendant called upon Mike Bout-well and Robert Felton to testify on its behalf. Mr. Boutwell, employed by the Commissioner of Insurance, testified that his interpretation of the law is that a surplus line insurer need not be on the “white list.” He and Mr. Felton further testified that being on the “white list” does not guarantee solvency of an insurer.

While we agree with their testimony to the effect that neither inclusion on the “white list” nor anything else can positively guarantee financial security, the insurance law sets forth these requisites found in La. R.S. 22:1248 et seq., as safeguards to lessen the risk of an insurer becoming insolvent. A licensed Louisiana surplus lines broker must comply with statutory guidelines and the duties they impose. An insurance broker has fiduciary duties and is not a mere “order taker.” Gulf Coast Bldg. Systems, Inc. v. United American Sur. Co., Ltd., 614 So.2d 1360 (La.App. 3 Cir.1993).

However, Mr. Boutwell’s testimony regarding the proper interpretation of this statute does not free us of our duty to follow La. C.C. art. 9, which states:

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.

Here, finding the defendant brokers in violation of their duty to place Louisiana insureds only with approved unauthorized insurers leads to no absurd consequence and is what the law states. An absurd result would be for us to infer that the catch-all phrase in a general article 22:1269, i.e., “The provisions of R.S. 22:1256 through 1268,” automatically negates the specific phrase in that same article, “licensed surplus lines broker placing ocean marine insurance shall be subject to the provisions of La. R.S. 22:1262.” Defendant’s expansive interpretation of La. R.S. 22:1269, would negate the more specific and recent article, La. R.S. 22:1262.1, and therefore violate La. C.C. art. 13, which states laws should be read in pari materia.

Moreover we note that the requirements of La. R.S. 22:1262 are very basic to accomplishing the purposes of La. R.S. 22:1248, i.e., protecting Louisiana insureds. In sum, La. R.S. 22:1262 and 1262.1 require that the insurer who wishes to underwrite in this state provide to Louisiana’s Commissioner of Insurance a copy of its current annual financial statement certified by the insurer and an actuarial opinion that simply reflects a minimum level of financial soundness.

Defendant’s interpretation flies in the face of jurisprudence as well. In Popich Bros. Water Transport, Inc. v. Gulf Coast Marine, 97-0902 (La.App. 4 Cir. 1/14/98), 705 So.2d 1267, this Court held that after the 1997 amendments to La. R.S. 22:1248 et seq., a broker no longer has a duty to investigate the financial soundness of an insurer, but rather simply must verify the unauthorized insurer is on the “white list” (which means that the Commissioner of Insurance has verified the financial solvency of the unauthorized insurer). The trial court was correct in finding that the broker, defendant, had a duty to verify that HIH was on the “white list” in order to place a Louisiana insured’s policy with HIH.

We find the trial court committed legal error in finding that the risk of HIH’s insolvency was not encompassed in the scope of the broker/defendant’s duty. As stated in La. R.S. 22:1248, the purpose of these laws are to protect Louisiana insureds from insolvent insurers. It is certainly a foreseeable risk that an insurer will default on its obligation to pay in the face of a claim. Had HIH paid the claims made by the insured’s employee, Russell Cacho, which were covered under the HIH policy, insured/plaintiff would not have incurred the economic loss it seeks to recover.

The defendant broker violated certain statutory guidelines that aid in assuring the fiscal soundness of an insurer. The statutes do this by- compelling the insurer to provide for review certified financial statements to the Commissioner of Insurance. The Commissioner then reviews the financial statements and determines whether this insurer should be on the “white list.” The broker’s duty is simply to place unauthorized insurance with insurers on the “white list.” We find that’ because this duty lessens the risk of insolvency, it necessarily encompasses the risk of an insurer’s insolvency. Thus, defendant’s breach of this duty created to protect against insolvency, makes defendant liable to the plaintiff for this insurer’s insolvency. This reasoning is also in accord with our finding in Popich, which is a case on point.

Finally, the defendant raises the issue of preemption on appeal. The trial court denied defendant’s exception of preemption at trial. Defendant did not appeal this ruling. La. C.C.P. art. 2133 states:

B. A party who does not seek modification, revision, or reversal of a judgment in an appellate court, including the supreme court, may assert, in support of the judgment, any argument supported by the record, although he has not appealed, answered the appeal, or applied for supervisory writs. [Emphasis added.]

The issue of preemption is not covered within the scope of the Judgment that is appealed. The only issue properly before us is the Judgment that dismisses plaintiffs claims with prejudice due to a finding that the risk was not encompassed within the duty, not preemption. Thus, this issue is not before us.,

Therefore, we reverse the Judgment of the trial court as it concerns liability and remand for a determination of damages.

REVERSED AND REMANDED.

ARMSTRONG, C.J., CONCURS.

ARMSTRONG, C.J.,

CONCURS.

I respectfully concur in the result reached by the majority, and agree that the case is controlled by our previous opinion in Popich Bros. Water Transport, Inc. v. Gulf Coast Marine, Inc., 97-0902 (La.App. 4 Cir. 1/14/98), 705 So.2d 1267.

      . Effective June 1, 1999, Sedgwick merged into J & H Marsh and McLennan of Louisiana, Inc., who changed its name to Marsh U.S.A., Inc.

      . As dicta, we posit that 22:1269's last sentence is a remnant of this obsolete duty, when it states that the latest financial statements need be available for the insured’s viewing at the broker’s office. Although it could be seen as a precautionary measure to further protect the insured.

      . As the trial court did we apply the duty-risk analysis, which is most common in torts. We note that a contract analysis may also be applicable.


source: Caselaw Access Project

author: CHARLES R. JONES, Judge. h MURRAY, J.,

license: Public Domain

text:
    Fred HAYES and Shirley Hayes v. EAGLE, INC., Formerly Known as Eagle Asbestos and Packing Company; T.L. James & Co., Inc., As Successor in Interest to Williams McWilliams; Garlock, Inc.; The Anchor Packing Company; A.W. Chesterton Company; John Crane, Inc.; Uniroyal, Inc., et al.
    No. 2003-C-1575.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 12, 2004.

      Daniel J. Caruso, James A. Burton, Simon, Peragine, Smith & Redfearn, L.L.P., Samuel M. Rosamond, III, Crawford Lewis, PPLC, New Orleans, LA, for Plaintiffs/Appellees, Fred Hayes and Shirley Hayes.
    John T. Waldron, III, Kirkpatrick & Lockhart, LLP, Pittsburg, PA, John J. Hainkel, III, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, for Defendant/Appellant, Eagle, Inc.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge MICHAEL E. KIRBY).
   CHARLES R. JONES, Judge.

The Appellant, Zapata Corporation, appeals the judgment of the district court dated May 15, 2003, denying its motion for partial summary judgment and granting the motion for summary judgment in favor of the Appellee, CGU Insurance Company. We affirm the judgment of the district court.

Fred Hayes and Shirley Hayes contend that Mr. Hayes contracted an asbestos related disease while working for Williams-McWilliams. The Hayes family sought damages under the laws of maritime recovery and the Jones Act via a direct suit against Zapata Corporation, the alleged successors of interest to Williams, and CGU, the liability insurer of Williams. They alleged in their suit that Zapata was liable to them for Mr. Hayes’ asbestos related injuries and that CGU provided the liability insurance to Zapata. Zapata then filed a cross-claim against CGU alleging that it was entitled to coverage under policies issued by CGU to Williams-McWilliams. Both Zapata and CGU filed cross-motions for summary judgment. Zapata’s motion was denied and CGU’s motion was granted. Zapata asks that this Court reverse the district court’s judgment and enter summary judgment in its favor.

Although Zapata offers four assignments of error, this case arises out of a contractual dispute, i.e., the insurance policy issued to Williams, therefore, this Court finds that the sole issue on appeal is whether Zapata is covered under the policy. Because the judgment in which Zapata seeks review is a denial of a motion for summary judgment, we must conduct a de novo review. The duty of a court of appeal is to review a summary judgment de novo, considering the same standards applied by the trial court in deciding a motion for summary judgment. Reynolds v. Select Properties Ltd., 93-1480 (La.4/11/94); 634 So.2d 1180. Whether or not a true “material fact” exists causing the granting of a motion for summary judgment to be improper is based on whether a fact “whose existence or nonexistence may be essential to appellant’s cause of action under the applicable theory of recovery, i.e. one that would matter on trial of the merits.” Moyles v. Cruz, 96-0307 (La.App. 4 Cir. 10/16/96), 682 So.2d 326, writ denied, 96-3066 (La.2/7/97), 688 So.2d 504; Moody v. City of New Orleans 769 So.2d 670, 671, 1999-0708, 2 (La.App. 4 Cir.2000).

Zapata contends that CGU improperly denied coverage under policy # E35344 and policy # WCE119116006. Zapata argues that because the exclusions relied upon by CGU were never in, nor were deleted from policy # E3544, CGU failed to establish the existence of primary coverage.

Zapata further argues that CGU issued policy # E35344 and # WCE119116006 from April 1962-April 1963 providing coverage for any liability of the policyholder for damages for bodily injury allegedly sustained by an employee of the policyholder during his employment. They maintain that the complaint filed by Mr. and Mrs. Hayes alleges that Zapata is liable for the bodily injury that Mr. Hayes incurred as a result of his employment from 1956-1970, and therefore, CGU is obligated to provide coverage to Zapata.

However, CGU argues that policy # WCE119116006 provides coverage in worker’s compensation and employers’ liability. As Mr. Hayes did not bring a claim for workers’ compensation, CGU maintains that section (A) of this policy does not apply. Further, CGU argues that the language of the remainder of the policy (section B) required that Mr. Hayes’ last day of exposure to asbestos, had to occur during the policy period and that his claim for damages had to have been made within 36 months of the end of the policy period.

In the interpretation of contracts, the trial court’s interpretation of the contract is a finding of fact subject to the manifest error rule. Grabert v. Greco, 95-1781, (La.App. 4 Cir. 2/29/96), 670 So.2d 571, 573. In applying the manifest error rule to the trial court’s interpretation, the Court of Appeal may not simply substitute its own view of the evidence for the trial court’s view, nor may it disturb the trial court’s finding of fact so long as it is reasonable. Syrie v. Schilhab, 96-1027, (La.5/20/97), 693 So.2d 1173. In such cases, appellate review of questions of law is simply to determine whether the trial court was legally correct. When there is a question of whether the words of a contract are “clear and explicit” or ambiguous, the legal question is constrained to a determination of whether the trial court’s interpretation is legally correct or incorrect. McCrory v. Terminix Service Co., Inc., 609 So.2d 883 (La.App. 4 Cir.1992); Terrebonne Fuel Lube, Inc. v. Placid Refining Co., 93-2364 (La.App. 4 Cir. 10/2/96), 681 So.2d 1292, writ denied, 96-2625 (La.12/13/96), 692 So.2d 1066.

In analyzing contracts, we are guided by the general rules contained in articles 2045-2057 of the Louisiana Civil Code. The interpretation of a contract is the determination of the common intent of the parties. La. Civ.Code art.2045. To ascertain the parties’ intent, the court must first look to the words and provisions of the contract. Amend v. McCabe, 95-0316 (La.12/1/95), 664 So.2d 1183. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. Civ.Code. art.2046. To wit, when the language of the contract is unambiguous, the letter of the clause should not be disregarded under the pretext of pursuing its spirit. La. Civ.Code art.2046, comment (b); Cashio v. Shoriak, 481 So.2d 1013, 1015 (La.1986); Amoco Production Co. v. Fina Oil & Chemical Co., 95-1185 (La.App. 1 Cir. 2/23/96); 670 So.2d 502; Bartlett Const. Co., Inc. v. St. Bernard Parish Council 763 So.2d 94, 97-98, 1999-1186 (La.App. 4 Cir. 5/31/00), (La.App. 4 Cir.2000).

In the instant case, the policy provisions in question read as follows:

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease, including death at anytime resulting therefrom, sustained in the United States of America, its territories or possessions, or Canada, by an employee of the insured arising out of and in the course of his employment by the insured ... (coverage B)

The policy exclusion reads:

Under coverage B, to bodily injury by disease unless prior to thirty six months after the end of the policy period written claim is made or suit is brought against the insured for damages because of such injury or death resulting therefrom....

At trial, Mr. Hayes testified that he was exposed to asbestos until 1968, and that the CGU policy provided coverage until 1963. However, the language in the policy is clear and unambiguous. Since Mr. Hayes left work at WilIiams McWilliams5 in 1968 and filed suit in 2000, his claim was barred by the 36 month exclusion. Further, Zapata’s argument that the exclusion in which CGU relies on refers to “bodily injury by disease” NOT “bodily injury by accident” or “bodily injury by occurrence” is far reaching and lacks merit on its face.

Zapata also argues that CGU’s responsibility under the policy was “broadened” from “accident” based policies and “occurrence” based policies, and thus provide coverage to Zapata. Zapata relies on the above argument, once again, to establish that Mr. Hayes’ claim arises out of an “occurrence” and thus falls within the scope of the insurance grant under the general liability policies. CGU maintains that Zapata is seeking coverage under comprehensive liability policies that clearly are not aimed at this type of injury. We rely upon the clear language of the contract. The policy clearly defines coverage B as bodily injury other than automobile with the following exclusions:

This policy does not apply to:

(f) under coverage A and B, to any obligation for which the insured or any carrier as his insurer may be held liable under workmen’s compensation, unemployment compensation, or disability benefits law, or under any similar law: (h) under coverage B, except with respect to liability assumed by the insured under a contract as defined herein to bodily injury or to sickness, disease, or death of any employee of the insured arising out of and in the course of his employment by the insured.

Zapata also argues that the exclusions do not apply because the claims asserted by Mr. and Mrs. Hayes “are based on the ownership of an unseaworthy vessel, not on an employer-employee relationship.” However, the record reveals that Mr. Hayes was working with Williams-McWil-liams as an “employee” and the language of the policy clearly states that there is no coverage for injuries to the insured’s employees under any circumstances so long as the injury was suffered during the course and scope of the employment of the insured. Thus Zapata’s argument lacks merit here as well.

Finally, Zapata maintains that CGU is estopped, under Louisiana jurisprudence, from raising the defense of non-coverage. Zapata argues that CGU never denied coverage, and simply requested copies of the employer’s liability policies. Zapata relies on Steptore v. Masco Constr. Co., 643 So.2d 1213 (La.1994) maintaining that waiver of the defense against insurance occurred when CGU failed to timely raise the defense for a year and a half. CGU relies on Farm Credit Bank of Texas v. Fireman’s Fund Insurance Co., 822 F.Supp. 1251 (W.D.La.1993), affirmed, 50 F.3d 1033 (5th Cir.1995) whereby the plaintiff argued that there was misleading conduct and evidence of waiver offered by the defendant. The Court held in favor of the defense finding that its actions were not inconsistent in forming a defense of coverage.

In the instant case, the request for policies by CGU is enough to show that it was not outright accepting responsibility and therefore, not estopped from using lack of coverage as a defense. Therefore, this argument of Zapata is without merit.

Decree

For the reasons stated herein, the district court did not err in denying the motion for partial summary judgment as to Zapata Corporation, and granting the motion for summary judgment in favor of the CGU Insurance Company, as the insurance coverage speaks for itself.

AFFIRMED.

MURRAY, J., Concurs and Assigns Reasons.

h MURRAY, J.,

CONCURS AND ASSIGNS REASONS.

I agree that there is no coverage under either employer’s liability policy because the plaintiff did not file suit within the stipulated time limits. I also agree that coverage for the plaintiffs injury is excluded by the comprehensive general liability policy, which covers liability to third parties, not to employees with work-related injuries. For these reasons, I concur in the result reached by the majority.

      . The Appellants argue that Zapata is the successor-in-interest to Williams a/k/a Williams-McWilliams


author: MAX N. TOBIAS, JR., Judge.

text:
    Carol Chilton DE ATLEY, et al v. VICTORIA’S SECRET CATALOGUE, LLC., et al.
    Nos. 2004-C-0661, 2004-C-0662.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 14, 2004.

      Gladstone N. Jones, III, Peter N. Frei-berg, Kevin E. Huddell, Jones, Verras & Freiberg, LLC, James M. Garner, Timothy B. Francis, Emma E. Daschbach, Sher, Garner, Cahill, Richter, Klein, McAl-ister & Hilbert, LLC, New Orleans, LA, Johnnie L. Cochran, Jr., The Cochran Law Firm, Los Angeles, CA, and M. Lance Holden, Sharit Bunn & Chilton, PA, Winter Haven, FL, for Plaintiffs/Respondents Carol Chilton De Atley and Ronald R. De Atley.
    Thomas E. Loehn, Charles K. Chauvin, Boggs, Loehn & Rodrigue, New Orleans, LA, for Defendant/Relator, Cheri Pink, Inc.
    Mark N. Bodin Gary C. Carter, McGlin-chey Stafford, PLLC, New Orleans, LA and David S. Osterman, Esq., McCarter & English, LLP, Newark, NJ, for Relators, Victoria’s Secret Catalogue, LLC and Intimate Brands, Inc.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, and Judge LEON A. CANNIZZARO, JR.).
   MAX N. TOBIAS, JR., Judge.

Relators, Cheri Pink, Inc. (“Cheri Pink”) and Victoria’s Secret Catalogue, L.L.C. n/k/a Victoria’s Secret Direct, LLC (“Victoria’s Secret”), have filed substantially similar writ applications objecting to the denial of their peremptory exceptions of no cause of action and prescription by the trial court. For the reasons below, we grant the writ, but deny relief, and remand the matter for further proceedings.

This matter involves a suit for bodily injury arising out of a fire that occurred on 8 January 2001 at the home of the respondents Carol Chilton De Atley and Ronald R. De Atley. The fire started when Ms. De Atley’s cotton flannel dress caught on fire from the nearby gas fireplace, causing severe bodily injury.

On 21 September 2001, the respondents filed suit seeking damages under the Louisiana Products Liability Act (“LPLA”), La.

R.S. 9:2800.51 et seq. The respondents allege that the dress worn by Ms. De Atley, which had been purchased from a Victoria’s Secret catalog in December 1999, was unreasonably dangerous in various respects pursuant to the LPLA. Cheri Pink is alleged to have sold the dress to Victoria’s Secret for retail sale.

|2On 11 December 2003, the respondents filed a third amended and supplemental petition which added for the first time a claim in redhibition. In response to this amended and supplemental petition, the relators filed the exceptions at issue. Both were denied by the trial court.

The relators contend that the exception of no cause of action should be granted and the claim for redhibition dismissed on the basis that the LPLA provides the exclusive theories of liability against manufacturers for their allegedly defective products. Alternatively, the relators contend that the exception of prescription should be granted because the redhibition claim constitutes a completely distinct and separate cause of action from the products liability claim and, therefore, does not relate back to the filing of the original petition so as to interrupt prescription.

We first address the respondents’ motion to dismiss the application of Victoria’s Secret’s application for writs on the basis of the failure of Victoria’s Secret to attach the notice of intention of seeking a writ and an order from the trial court setting the deadline for filing the application for supervisory writs in this court, as required by Rules 4-2 and 4-3 of the Uniform Rules of the Courts of Appeal. Victoria’s Secret supplemented their application with the notice and a copy of an order setting the deadline. The later demonstrates that the application is timely. Therefore, that issue is now moot.

Second, we note that Cheri Pink’s application is defective for failure to conform to Rule 4-5 of the Uniform Rules of the Courts of Appeal. Our rules specifically require that a relator file a verified application for a supervisory writ. Cheri Pink’s application contains no verification, which ordinarily would result in the automatic denial of the writ application on the showing made by the relator. | ¡¡However, only because (a) the issues in the writ applications of Cheri Pink and Victoria’s Secret deal with the identical issue and (b) we have consolidated the writ applications of the relators, we find the interests of justice direct us to consider the merits of Cheri Pink’s writ application. La. C.C.P. art. 2164.

On the merits of the applications, we first address the issue of whether the exclusivity provision of the LPLA prohibits the respondents’ claim of redhibition. The LPLA, enacted in 1988 “establishes the exclusive theories of liability for manufacturers for damages caused by their products.” La. R.S. 9:2800.52. The statute defines “damage” as follows:

“Damage” means all damage caused by a product, including survival and wrongful death damages, for which Civil Code Articles 2315, 2315.1 and 2315.2 allow recovery. “Damage” includes damage to the product itself and economic loss arising from a deficiency in or loss of use of the product only to the extent that Chapter 9 of Title VII of Book III of the Civil Code, entitled “Redhibition [La. C.C. art. 2520 et seq.],” does not allow recovery for such damage or economic loss. Attorneys’ fees are not recoverable under this Chapter.

La. R.S. 9:2800.53(5).

Thus, the statute defines “damage” by explicitly excluding amounts recoverable under redhibition for damage to the product and other economic loss. Courts have interpreted the LPLA as preserving redhi-bition as a cause of action only to the extent the claimant seeks to recover the value of the product or other economic loss. See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 251 (5th Cir.2002); Thomas C. Galligan, Jr., Contortions Along the Boundary Between Contracts and Torts, 69 Tulane L.Rev. 457, 489-91 (1994). Thus, we conclude that the respondents have a cause of action for redhibition for economic loss only and not for personal injury claims.

The remedies for a claim under the LPLA and one in redhibition are different in a number of ways. The LPLA is the exclusive remedy against a manufacturer and does not allow for the recovery of attorney’s fees, while attorney’s fees are recoverable from the manufacturer in a redhibition claim pursuant to La. C.C. art. 2545. However, attorney’s fees may be awarded only:

[I]nsofar as those fees relate to the recovery of purely economic loss. This is because much of the proof of a “vice” for redhibition recovery overlaps with proof of a defective product for tort purposes. However, courts in such suits should be careful to realistically allocate recovery costs between the personal injury and economic loss portions of the claim.

Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Laio § 15-6 (1996) (citations omitted).

Thus, it will be for the trial court to determine what of the respondents’ claims constitute pure economic loss and what damages for which La. C.C. arts. 2815, 2315.1, and 2315.2 allow recovery. Attorney’s fees would only be recoverable for the pure economic loss and not for the damages recovered pursuant to the LPLA.

We now turn to the question of whether the amended petition setting forth the claim for redhibition relates back to the original filing. According to the original petition, the dress was purchased on 8 December 1999; the fire occurred on 8 January 2001; the original suit setting for a claim under the LPLA was filed on 21 September 2001; and the redhibition claim was added on 11 December 2003. La. C.C. art. 2534 provides in pertinent part:

A.(1) The action for redhibition against a seller who did not know of the existence of a defect in the thing sold prescribes in four years from the day delivery of such thing was made to the buyer or one year from the day the defect was discovered by the buyer, whichever occurs first.
* * *
B.The action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.

Pursuant to La. C.C.P. art. 1153:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

It is well established that La. C.C.P. art. 1153 permits amendment despite technical prescriptive bars where the original pleading gives fair notice of the general fact situation out of which the amended claim arises. Gunter v. Plauche, 439 So.2d 437, 440 (La.1983), citing Baker v. Payne and Keller of Louisiana, Inc., 390 So.2d 1272 (La.1980). “Where there is some factual connexity between the original and amended assertions, together with some identity of interest between the original and the supplemental party, amendment should be allowed.” Baker, 390 So.2d at 1275; Gunter, 439 So.2d at 440.

We have reviewed the original and amended petitions filed by the respondents. In the original petition, it is alleged that the dress in question was purchased by Ms. De Atley and caught on fire because it is unreasonably dangerous in construction and composition, in design, and due to an inadequate warning, all claims under the LPLA. In the third amended petition, the respondents set forth the claim for redhibition. The pleading alleges that the defect in the dress rendered it so useless and/or its use so inconvenient that it must be presumed that Ms. De Atley would not have bought the dress had she known of the defect. See La. C.C. art. 2520.

We find that there is a factual con-nexity between the LPLA and redibition claims in this case. In addition, we find that a products liability cause of action in which the plaintiff is a consumer of the product may sound in tort, La. C.C. art. 2315, in redhibition, La. C.C. art. 2545, or both. Firmin, Inc. v. Denham Springs Floor Covering, Inc., 595 So.2d 1164, 1170-71 (La.App. 1 Cir.1991). The primary difference between the two causes of action is the damages available under the two theories of recovery.

In the instant case, but for the sale of the dress from the relators to Ms. De Atley, the dress would not have caught on fire. Consequently, we find that the third amended petition relates back to the filing of the original pleading.

MOTION DENIED; WRIT GRANTED; RELIEF DENIED.

      . With appropriate deference to the following corruption of Ralph Waldo Emerson’s famous quote, to not consider Cheri Pink's application in the present case might be said to be "a foolish consistency is the hobgoblin of little minds.”

      . It would be inappropriate for the respondents to argue for an overly broad definition of economic loss under the redhibition claim for the sole purpose to recover attorney's fees for damages that clearly fall under the LPLA. Damages recoverable under the LPLA include pain and suffering, medical expenses, damage to property, other than to the product itself, and loss of consortium, to name a few. See John Kennedy, A Primer on the Louisiana Products Liability Act, 49 La. L.Rev. 565, 579-80 (1989). On the other hand, economic loss would include the cost of the product, and the loss of income or profits resulting from the loss of or inability to use the product as intended. Respondents reliance on Andry v. Murphy Oil USA, Inc., 97-0793, 97-0800 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, for the proposition that medical expenses are economic losses, is misplaced. That statement by the court was pure dicta. In addition, the LPLA specifically references La. C.C. art. 2315, under which medical expenses for personal injuries are typically recovered.

      . Louisiana is a fact pleading state. La. C.C.P. art. 854. We note that if the respondents had commenced their action as a claim sounding in redhibition, it is readily apparent that an amendment of the petition to state a claim sounding in products liability would be timely. Logically, by doing the reverse (filing a claim sounding in products liability and subsequently amending to state a claim sounding in redhibition), the claim is timely


author: MICHAEL E. KIRBY, Judge.

text:
    Melvin WILLIAMS v. SEWERAGE AND WATER BOARD.
    No. 2004-CA-0025.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 19, 2004.

      Desiree C. Calvin, New Orleans, LA, for PlaintifflAppellant.
    Brian A. Ferrara, General Counsel, Gerard M. Victor, Deputy Special Counsel, John D. Lambert, Jr., Special Counsel, Sewerage & Water Board of New Orleans, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   MICHAEL E. KIRBY, Judge.

FACTS AND PROCEDURAL HISTORY

The Appellant, Melvin Williams, urges this Court to reverse the New Orleans Civil Service Commission’s dismissal of his appeal of his termination from employment with the Sewage and Water Board for the City of New Orleans (“Appointing Authority”). The Appellant worked as a Utilities Plant Steamfitter, with permanent status, having been hired by the Appointing Authority on September 18, 1996, and promoted to his current class on December 16, 1993. The Appellant was involved in a physical altercation with a co-worker on November 18, 2002, and he was suspended. On November 26, 2002, a Pre-Termination Hearing was held, which the Appellant did not attend. In a disciplinary letter, dated December 2, 2002, the Appellant was notified that he was terminated effective December 6, 2002.

On December 12, 2002, the Appellant appealed his termination to the Commission. A hearing officer was appointed, and a hearing was held on March 12, 2003. The Appointing Authority called Todd Hatheway, the Appellant’s supervisor, and Broderick Williams, the co-worker involved in the altercation, | ¿witnesses. The Appellant represented himself at the hearing, testifying on his behalf and calling Gary Shirley, a co-worker, as his only other witness.

Facts Relevant to the Loudermill Issues

During Hatheway’s testimony, the hearing officer noted what appeared to be a Loudermill problem because the Appel-' lant may not have received timely notice of the pre-termination hearing. The Notice of Pre-Termination Hearing (“Notice”) was introduced into evidence. As a preliminary matter, several typographical errors in the Notice were pointed out during Hatheway’s testimony: the date of the incident was incorrectly listed as November 19, 2002; and the letter accompanying the Notice was incorrectly dated August 23, 2002. Hatheway testified that the Notice was sent by certified mail on November 19, 2002, based on the certification clause in the Notice, as well as by regular mail the same day. The return receipt for the certified mail, however, was not produced or entered into evidence.

The Appellant interrupted the direct examination of Hatheway and stated that the Appellant’s wife signed for the certified letter on November 29, 2002, three days after the pre-termination hearing. The Appointing Authority continued its direct examination of Hatheway and attempted to resolve the Loudermill problem. Hatheway testified that he verbally offered the Appellant a new hearing date but that the Appellant declined. The Appellant again interrupted the direct examination and attempted to argue that he did not decline the new hearing. The hearing officer reminded the Appellant that it was not yet his turn to present evidence.

During the presentation of his case, the Appellant introduced a letter from the post office, which stated that the mail was running late the week of November 29, 2002. The hearing officer commented that “[t]he mail is running late all the time with this new post office.” The Appellant testified that upon receipt of the termination letter, he attempted to contact Hatheway but was told that he was on vacation. The Appellant testified that he then contacted members of the pre-termination hearing board to notify them of the late notice and to request a new hearing. The Appellant testified that someone named Charles McClendon made phone calls on behalf of the Appellant and told the Appellant that a new hearing date would be sent to him. In addition, the Appellant testified that he spoke with Hatheway after he returned from vacation and was told that a new hearing date would be sent to him.

The Appellant testified that on December 12, 2002, he received a termination letter instead of the new hearing date. The termination letter, dated December 2, 2002, and postmarked December 9, 2002, was entered into evidence. The termination letter stated that the Appellant was terminated because “Employee did not attend hearing of 11/26/02. Therefore the recommendation for termination from the Sewage and Water Board stands.”

Facts Relevant to Merits of the Case

Hatheway testified that he instructed Broderick Williams (“Broderick”), a coworker of the Appellant, to locate the Appellant and work with him to repair a boiler. The co-worker returned to Hathe-way with injuries to his face and reported that the Appellant had refused to work with him and had struck him, causing the injuries to his face. Hatheway also testified that he had counseled the Appellant previously about his behavior and the zero tolerance policy regarding workplace violence.

Broderick testified that he was instructed by Hatheway to locate the Appellant and to work with him to “change some equipment.” Broderick testified that he located the Appellant in a small room with several other men and repeated Hathe-way’s instructions while standing in the doorway. Broderick testified that the Appellant told him “he didn’t want to hear that from me,” and Broderick stated: “And the next thing I know, he come across and punched me in my mouth right here (indicating) and pushed me down and started standing over me and hitting me.” Broderick further testified that he did not push or hit the Appellant and did not say anything threatening to him to provoke the attack. Broderick testified that two coworkers, George Clements and Albert Campbell, were also in the room during the altercation.

The Appellant called Albert Campbell as his first witness. Campbell testified as to what he observed on November 18, 2002, when Broderick entered the room, and stated:

Well, Broderick came in and said “Melvin, we’ve got a job to go do.” Melvin said, “Okay, leave me alone.” | sBroderick said, “Melvin, come on, let’s go.” Melvin said, “Leave me alone.” He said the same thing again. Melvin jumped up, went to the door. I think he was turning to go out the door. Broder-ick was turning too. Melvin pushed him. Broderick hit him. Then they went to war.

The Appellant then called Gary Shirley to testify regarding what Broderick told him after the alternation with the Appellant, and stated:

I was at the — whatever happened was at the plant that morning. I told you — I mean, Broderick, when he passed I said, “I told you that big mouth of yours would get you in trouble yet.” * * * But Broderick came in and told me, he said, “I tore Melvin ass up.” I said, “What?” I said, “If you tore his ass up that means two people was fighting.” So I said, “If two people’s fighting, both of you all should have got the same discipline.” And he said that was it.

The Appellant then called himself as a witness and testified that he was in the small office in the pipe fitting room when Broderick entered. The Appellant testified that he and Broderick had been having problems, and verbal sparing ensued. The Appellant then testified that Broder-ick struck the first blow, forcing him to defend himself:

And then he kept talking so I said, “Man, I ain’t got no time to play with you,” and I got up to leave. He kind of held up by the door and he had his fist balled up, so I kind of pushed my way out of the door. And he went back and then he charged me back with a punch and knocked my glasses off.

The Appellant testified that he and Broderick spoke with Hatheway after the altercation and that they both urged Hatheway to disregard the incident. The Appellant testified that Hatheway said he could not disregard the incident and sent both men for a drug test. According to the Appellant, Hatheway had him repeat his version of the facts a number of times and asked him numerous questions about the incident. The Appellant testified that Hatheway informed him at work the next day that he was suspended.

DISCUSSION

The Appellant argues that the Commission erred in dismissing his appeal of his termination. First he raises three issues regarding the alleged violation of his Loudermill due process rights: (1) that his pre-termination notice was untimely; (2) that the pre-termination notice did not constitute a sufficient explanation of the evidence against him; and (3) that he did not have an opportunity to be heard because he did not receive timely notice of the hearing. Second, he argues that he did not instigate the fight with his coworker.

The Appointing Authority argues that the Commission did not err in dismissing the Appellant’s appeal because (1) the Appellant declined a new pre-termination hearing, thus eliminating any Loudermill issues; and (2) the Commission correctly found that the Appellant was the aggressor who struck the first blow, thus justifying his termination from employment.

Standard of Review

The Commission’s factual determinations are reviewed by an appellate court under the clearly erroneous/ manifest error standard. Bannister v. Depart. of Streets, 95-0404 (La.1/16/96), 666 So.2d 641, 647. We may not disturb the Commission’s findings of fact so long as they are reasonable, regardless of our own view of the evidence. Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993). In deciding whether the Commission’s action was based on legal cause and commensurate with the situation, we should not modify the Commission’s decision |7unless it is arbitrary, capricious, or characterized by abuse of discretion. Bannister, 666 So.2d 641, 647. “Arbitrary or capricious” means the absence of a rational basis for the action taken. Bannister, 666 So.2d 641, 647. Even when there is conflicting testimony, credibility evaluations cannot be disturbed on review. Moore v. New Orleans Police Dept., 2001-0174, p. 8 (La.App. 4 Cir. 3/7/02), 813 So.2d 507, 511.

Loudermill Issues

Louisiana Constitution Article 10, § 8, provides in part that: “No person who has gained permanent status in classified state or city service shall be subject to disciplinary action except for cause expressed in writing.” Rule IX, § 1.2 of the Rules of the Civil Service Commission for the City of New Orleans, states that “[i]n every case of termination of employment of a regular employee, the appointing authority shall conduct a pre-termination hearing as required by law and shall notify the employee of the disciplinary action being recommended prior to taking the action.”

In Loudermill, the United States Supreme Court held:

The essential requirements of due process ... are notice and an opportunity to respond.... The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story... .To require more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee.

Under Loudermill, and in light of Rule IX, § 1.2, of the Rules of the Civil Service Commission, this Court has concluded that an employee is entitled to advance notice of the charges and evidence against him prior to his pre-termination shearing. Riggins v. Department of Sanitation, 617 So.2d 112, 113-114 (La.App. 4 Cir.1993). An explanation of the evidence is a prerequisite to the employee’s pre-termination opportunity to present his side of the story. Webb v. Department of Safety & Permits, 543 So.2d 582, 583 (La.App. 4 Cir.1989). Notice of the charges should fully describe the conduct complained of and set forth the relevant dates and places and the names of witnesses against the employee to enable the employee to fully answer and prepare a defense. Webb, 543 So.2d 582, 584.

The key Loudermill issue was whether the Appellant received timely notice of the pre-termination hearing and whether he was afforded an opportunity to be heard. The Commission adopted and relied on the hearing examiner’s report. The hearing examiner elicited testimony regarding the Notice and the Appellant’s alleged request for a second pre-termination hearing.

Hatheway testified before the hearing examiner that the Appointing Authority accepted the Appellant’s contention that he did not receive notice of the pre-termi-nation hearing until three days after it was held. Hatheway testified further that the Appellant was offered a second pre-termi-nation hearing, but the Appellant declined the offer. The hearing examiner found Hatheway to be more credible than the Appellant, who testified to a contrary set of facts on this issue. Any other alleged Loudermill issues, which were based on the typographical errors in the Notice, became moot. Therefore, based upon the record before us, we find that the Commission did not err in accepting the hearing examiner’s determination that the Appellant declined a second pre-termination hearing and that, as a result, there were no Loudermill issues.

The Merits of the Case

At issue is whether the Appellant struck Broderick, thus violating the Appointing Authority’s zero-tolerance policy regarding workplace violence and subjecting him to termination. The testimony on this issue was conflicting, and the hearing examiner and the Commission had to make credibility determinations.

We find that the Commission did not err in finding the testimony of Hatheway, Bro-derick, and Campbell more credible than that of the Appellant and that the Appellant was the aggressor who struck the first blow. Campbell, the Appellant’s witness, testified clearly that the Appellant acted first by pushing Broderick. The Appellant also testified that he pushed his way past Broderick who was standing in the doorway. Only the Appellant testified that Broderick struck him first. At most, Shirley testified that Broderick admitted to fighting with the Appellant.

Therefore, we find that the Commission did not err in dismissing Melvin Williams’ appeal, and we affirm the Commission’s ruling.

AFFIRMED.

      . Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985). As discussed infra, in a public employment context, the Supreme Court has held that the due process clause "requires ‘some kind of hearing’ prior to the discharge of an employee who has a constitutionally protected property interest in his employment.” Such employee has a right of notice and an opportunity to respond.

      . No details are provided regarding the relationship of McClendon to the Appointing Authority.

      . The parties noted that the Appellant and Broderick Williams share the same last name but are apparently just co-workers. As such, Broderick Williams will be referred to by his given name.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    STATE of Louisiana v. Lonnie ALLEN.
    No. 2003-KA-2156.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 19, 2004.

      Eddie J. Jordan, Jr., District Attorney, Nick Orechwa, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Karen G. Arena, Louisiana Appellate Project, Metairie, LA, for Defendant/Appellant, Lonnie Allen.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

AFFIRMED

The defendant, Mr. Lonnie Allen, was convicted on September 23, 2003, of a second degree murder committed on April 27, 1999. He is now appealing his conviction and his sentence.

STATEMENT OF THE CASE

Mr. Allen was originally indicted by a grand jury, tried before a jury, and found guilty of the second degree murder of Norman Royal. In State v. Allen, 2000-0346 (La.App. 4 Cir. 10/17/01), 800 So.2d 378, writ denied, 2001-3086 (La.9/30/02), 825 So.2d 1188, this Court reversed Mr. Allen’s conviction and sentence and remanded the case to the trial court for a new trial.

A grand jury subsequently re-indicted Mr. Allen, charging him with the second degree murder of Mr. Royal. Mr. Allen pled not guilty at his arraignment.

Mr. Allen was retried before a twelve-person jury and was again found guilty of the second degree murder of Mr. Royal. Subsequently, the trial court denied Mr. Allen’s motion for a new trial. On the same day that the motion was denied, Mr. Allen waived the legal delays for sentencing, and he was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. His motion for the reconsideration of his sentence was denied, but his motion for appeal was granted. The appeal is now before this Court.

STATEMENT OF FACTS

Reginald Davis and his cousin, Mr. Royal, lived in a double house located at 1802-1804 Music Street, New Orleans, Louisiana. On the evening that Mr. Royal was killed, Mr. Davis and three other men, Robert Spriggens,Tremaine Andrews, and Lawrence Clark, had been sitting on the porch of the Music Street residence socializing and drinking beer for a few hours. Then Mr. Royal came out of his house and jumped off the porch onto the sidewalk, because he and the group planned to go to a club.

Suddenly, three unknown men approached the group on the porch. All three of them were carrying guns, and two of them were wearing bandanas to mask their identity. The unmasked man threatened Mr. Royal, grabbed him around the neck, and said, “I got you Mother F_ now. Don’t nobody move.” Mr. Davis realized that the three armed men wanted money, so he gave them $230 that he had in his pocket. The armed men apparently did not believe that they had been given all of the money in the group’s possession, and the unmasked man hit Mr. Royal in the head with a gun. The armed men attempted to get the group to go inside the residence, but they refused to do so. One of the armed men, however, yelled, “Watch him; he bout to break into the house. He bout to run in the house.” At that point Mr. Clark did, in fact, run into the house, and the unmasked gunman shot Mr. Royal. The other two gunmen then started shooting while all three gunmen were running away from the residence. Mr. Spriggens and Mr. Andrews were wounded by the gunfire.

The armed men fled in what appeared to be a red Pontiac Sunfire automobile with a defective tail light and a commercial license plate. Mr. Davis testified that he was able to observe the license plate on the car and that the license plate number began with the letter “A.” Mr. Davis was also able to remember the last two digits of the number. The night that Mr. Royal was killed, Mr. Davis was driven by a police officer to a red automobile that had been stopped by the police. Mr. Davis was asked whether he could identify the automobile, and he said that it was not the getaway car.

New Orleans Police Department (“NOPD”) Homicide Detective Carlton Lawless, who was the lead investigator in this case, testified at the trial regarding his investigation. He identified photographs of the crime scene, testified that he directed the crime laboratory to obtain and examine evidence such as blood and spent bullets, and said that the illumination at the crime scene that was furnished by street lights was “pretty good” and that the front porch lights were “quite bright.”

Detective Lawless also testified that on the day after Mr. Royal was killed, a red vehicle was observed in the area but was never located. Within the next few days, however, a police officer who was on patrol notified Detective Lawless that a vehicle fitting the description of the getaway car had been located in the 2100 block of Desire Street in New Orleans. The officer who had spotted the vehicle determined that it was not occupied, so he put it under surveillance. While he was conducting surveillance on the vehicle, a young lady entered the vehicle and attempted to drive away. When she did this, she was stopped by the police officer.

Detective Lawless testified that the young lady, Trelia Smith, and the vehicle were both transported to the police station. Detective Lawless questioned Ms. Smith at the police station. He asked her whether the car was hers and whether she was the only person who drove the car. Detective Lawless testified that taped statements were taken from Trelia Smith and Linda Reeves. Detective Lawless stated that through his investigation he determined that Linda Reeves was Ms. Smith’s mother. When he was asked whether he developed a suspect at this point in the investigation, Detective Lawless said that he had. He identified the suspect as Mr. Allen, and he further testified that “I learned through the investigation that that was here [sic] husband.”

Detective Lawless testified that after he had developed Mr. Allen as a suspect, he showed a photographic line-up to Mr. Davis, Mr. Andrews, Mr. Spriggens, and Mr. Clark. He showed the line-up to each of the men individually, and Mr. Davis identified Mr. Allen’s picture as the picture of the man who had killed Mr. Royal. None of the other men made a positive identification from the line-up.

After Mr. Davis positively identified Mr. Allen in the photographic line-up, Detective Lawless prepared an arrest warrant for Mr. Allen and a search warrant for the red vehicle driven by Ms. Smith. Pursuant to the search warrant, a number of latent fingerprints were lifted from the vehicle, but according to the testimony of NOPD Officer Terry Bunch, only one was suitable for identification. Officer Bunch, who was qualified as an expert in fingerprint examination, testified that the fingerprint that was suitable for identification did not belong to Mr. Allen or to any other person known to the police.

NOPD Detective Kevin Johnson testified at the trial that he and two other police officers went to the residence at 6122 Music Street in New Orleans to execute the arrest warrant for Mr. Allen. One of the officers knocked on the door of the residence, but there was no answer. After the officers had been outside the residence for about fifteen minutes, Ms. Smith answered the door, and she permitted the officers to enter her residence. The police officers searched the residence but did not find Mr. Allen. They then heard noises in the attic and ordered the person in the attic to surrender. After getting no response from the person in the attic, the officers summoned a police canine unit. When the unit arrived at the residence with a dog in the car, Mr. Allen surrendered to the police and was arrested. During his testimony at trial, Detective Johnson identified Mr. Allen as the person that he had arrested at 6122 Music Street.

ERRORS PATENT

A review of the record reveals that there are no errors patent.

DISCUSSION

Mr. Allen has raised three assignments of error. He maintains that the evidence presented at the trial was insufficient to sustain the verdict that was rendered. Additionally, he contends that the trial court judge committed reversible error by allowing hearsay evidence to be admitted into evidence despite his objections. Finally, Mr. Allen argues that his sentence is excessive.

Assignment of Error: The evidence is insufficient to sustain the verdict.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution, U.S. Const. amend. XIV, § 1, creates the following standard of review for federal courts reviewing a state conviction:

[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be ... whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

443 U.S. at 318-19, 99 S.Ct. 2781 at 2788-89 (footnote omitted) (citation omitted).

In State v. Mussall, 523 So.2d 1305 (La.1988), the Louisiana Supreme Court stated that “this court ... recognized that ... the Jackson holding also applies to state direct review of criminal convictions.” Id. at 1309. The Supreme Court in Mussall also recognized that the Louisiana Constitution has a due process clause “virtually identical to its Fourteenth Amendment model. La. Const. Art. I, § 2.” Id.

The Supreme Court in Mussall stated that a review of the record in a criminal case does not require the reviewing court to determine whether the reviewing court believes the evidence at the trial established guilt beyond a reasonable doubt. The Supreme Court further stated as follows:

[A] reviewing court must consider the record through the eyes of a hypothetical rational trier of fact who interprets all of the evidence as favorably to the prosecution as any rational fact finder can.[T]he inquiry requires the reviewing court to ask whether such a hypothetical rational trier of fact interpreting all of the evidence in this manner could have found the essential elements of the crime beyond a reasonable doubt.

523 So.2d at 1309-10 (footnotes omitted). See also State v. Marcantel, 2000-1629 (La.4/3/02), 815 So.2d 50; State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99.

La. R.S. 14:30.1 defines second degree murder, in relevant part, as follows:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2)(a) When the offender is engaged in the perpetration or attempted perpetration of ... armed robbery ... even though he has no intent to kill or to inflict great bodily harm.

Because La. R.S. 14:24 states that “[a]ll persons concerned in the commission of a crime ... whether they directly commit the act constituting the offense ... [or] aid and abet in its commission ... are principals,” all three of the individuals who committed the armed robbery in this case are equally culpable.

There is no question in this case that Mr. Royal, a human being, was killed. Also, there was overwhelming evidence, which is undisputed by Mr. Allen, that Mr. Royal was killed while three men armed with guns took or attempted to take money at gunpoint from him and four other people. Further, because the unmasked man was holding Mr. Royal’s neck and pointing a gun directly at his neck, it is clear that when the unmasked man shot Mr. Royal, he intended to kill him or, at the very least, inflict great bodily harm. Mr. Allen, however, contends that Mr. Davis’ eyewitness identification of him as the person who killed Mr. Royal is insufficient to support the jury’s finding in this case, particularly in light of the fact that there was no physical evidence linking him or the red Pontiac Sunfire automobile to the crime.

In the Marcantel case cited above, the Louisiana Supreme Court stated that “ “[w]here there is no physical evidence to link a defendant to the crime charged, the testimony of one witness, if believed by the trier of fact, is sufficient support for a factual conclusion required for a verdict of guilty.” 2000-1629, p. 9, 815 So.2d at 56 (emphasis added). Therefore, if, after considering all of the evidence in this case, including the eyewitness identification of Mr. Allen by Mr. Davis, we find that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm Mr. Allen’s conviction. Additionally, in Marcantel, the Supreme Court stated that “[i]t is not the function of an appellate court to assess credibility or re-weigh the evidence.” Id. Therefore, we are not to disturb the jury’s verdict in this case on the ground that there was insufficient evidence to convict Mr. Allen, if we find that a rational trier of fact could have reached that verdict.

In the instant case there was testimony that the crime scene was well illuminated. Mr. Davis testified that he spoke directly with the unmasked robber, asking him not to harm Mr. Royal. Therefore, Mr. Davis had an opportunity to view the robber who killed Mr. Royal. Although Mr. Davis admitted that he had been drinking beer prior to the robbery, there was no evidence that Mr. Davis was intoxicated. Further, Mr. Davis positively identified Mr. Allen at the trial as the person who killed Mr. Royal.

Mr. Davis also described the getaway car to police. His description of the getaway car closely matched certain aspects of the Sunbird that was located by the police. The getaway car was red, as was the Sun-bird, the first letter of the license plate of the getaway car was “A”, as was the first letter of the Sunbird’s license plate, and the getaway car had some type of malfunction involving the light on the right rear of the car, as did the Sunbird. All of this supports a link between the person who killed Mr. Royal and the Sunbird that was seized.

Additionally, Mr. Allen hid in the attic when the police came to Ms. Smith’s home to arrest him. This is a circumstance from which guilt may be inferred. In State v. Fuller, 418 So.2d 591 (La.1982), the Louisiana Supreme Court stated that “[f]light and attempt to avoid apprehension indicates consciousness of guilt, and therefore, is one of the circumstances from which a juror may infer guilt.” 418 So.2d at 593. See also, e.g., State v. Smith, 98-2645, p. 5 (La.App. 4 Cir. 1/26/00), 752 So.2d 314, 317.

When we view all of the evidence in this case in the light most favorable to the prosecution, we find that any rational trier of fact could have found that all of the essential elements of the crime of second degree murder were present beyond a reasonable doubt. Therefore, this assignment of error is without merit.

Assignment of Error: The trial court committed reversible error in allowing inadmissible hearsay that tied Mr. Allen to the crime to be admitted over Mr. Allen’s objection.

Mr. Allen contends that, despite his objection to such evidence, the trial court permitted the State to. present inadmissible hearsay evidence regarding Mr. Allen’s connection to the getaway car. Mr. Allen specifically argues that Detective Lawless’ testimony informed the jury that Ms. Reeves was Ms. Smith’s mother. The following colloquy occurred between the prosecutor and Detective Lawless:

Q. Detective, were taped statements taken of witnesses that night in reference to the red Pontiac?
A. Yes, they were.
Q. And who were the people that the statements were taken from?
A. From Trelia Smith, and Linda Reeves, that’s Trelia Smith’s mother.
Q. And who took Linda Reeves’ statement?
A. I’ll be honest with you; offhand I don’t remember. I can’t say if I took it or another detective. I don’t know.
Q. Were you present at the Station when the statements were being taken?
A. Yes.

La. C.E. art. 801(C) defines “hearsay” as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay is not admissible evidence except as expressly provided by legislation. La. C.E. art. 802. In the instant case, we question whether the statements made by Detective Lawless regarding the relationship were, in fact, offered to prove the truth of the matters asserted, i.e., that Ms. Reeves was Ms. Smith’s mother and that Ms. Smith was married to Mr. Allen. The only matters, the truth of which needed to be admitted into evidence, were the fact that a vehicle that appeared to match the description of the getaway car was located and that as a result of the vehicle being located, the police obtained information that led them to believe that Mr. Allen might be a suspect in the killing of Mr. Royal. There was no need to prove to the jury that Ms. Reeves was Ms. Smith’s mother or that Ms. Smith was Mr. Allen’s wife.

Even if the information regarding Mr. Allen’s relationship to Ms. Reeves and Ms. Smith were inadmissible hearsay, the admission of the hearsay evidence was harmless error. In State v. Vale, 96-2953 (La.9/19/97), 699 So.2d 876, the Louisiana Supreme Court stated that in order for a reviewing court to find that an error in a case is harmless beyond a reasonable doubt, the court must find that the verdict actually rendered in that particular trial was “surely unattributable to the error.” 699 So.2d at 877, citing State v. Code, 627 So.2d 1373 (La.1993) (quoting Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993)).

In the instant case, we find that any reference in the testimony at Mr. Allen’s trial to his relationship to Ms. Reeves and Ms. Smith was not a factor in the jury’s decision. The verdict of guilty of second degree murder was “surely unattributable” to the admission of the testimony concerning Mr. Allen’s relationship to Ms. Reeves and Ms. Smith. The jury had ample evidence upon which to convict Mr. Allen based on the in-court eyewitness identification of Mr. Allen by Mr. Davis. Mr. Davis’ identification was thoroughly scrutinized by Mr. Allen on cross-examination, and the jury chose to believe his testimony regarding his identification of Mr. Allen.

We find that the testimony to which Mr. Allen objects was not inadmissible hearsay, but even if it were, it was harmless error to allow its introduction. Therefore, we find this assignment of error to be without merit.

Assignment of Error: Under the circumstances of this case, Mr. Allen’s life sentence is excessive.

Mr. Allen contends that he is serving a life sentence “based on scant, unreliable evidence that he committed the crime.” He also argues that the trial court judge did not order a pre-sentence investigation and that the judge did not consider a lesser sentence.

The Louisiana Constitution expressly provides that “[n]o law shall subject any person to cruel, excessive, or unusual punishment.” La. Const. art. I, § 20. Although the United States Constitution does not expressly prohibit “excessive punishment”, it does prohibit “cruel and unusual punishment.” U.S. Const. amend. VIII.

In State v. Baxley, 94-2982, p. 4 (La.5/22/95), 656 So.2d 973, 977, citing State v. Goode, 380 So.2d 1361, 1363 (La.1980), the Louisiana Supreme Court stated that the deliberate inclusion of the prohibition against excessive sentences in the state constitution by its redactors imposed on the court the duty to review the sentencing provisions of criminal statutes. The Supreme Court further stated that the court is permitted to determine both whether the statutory range of sentences and the sentence of a particular offender is excessive, even if that offender’s sentence were within the prescribed statutory range. Id.

In State v. Bonanno, 384 So.2d 355 (La.1980), the Louisiana Supreme Court discussed the criteria for determining whether a sentence is unconstitutionally excessive as follows:

[T]o determine whether a certain penalty is excessive we must determine whether that penalty is grossly disproportionate to the severity of the crime. To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.

384 So.2d at 358 (citation omitted). In State v. Soco, 441 So.2d 719 (La.1983), the Supreme Court also stated that “[m]aximum sentences provided by the statutes are reserved for the ‘worst kind of offender’.” Id. at 720, citing State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982).

Mr. Allen was convicted of second degree murder, and La. R.S. 14:30.1 provides that “[w]hoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.” Mr. Allen based his argument that his sentence was excessive on the ground that he was convicted on “scant, unreliable” evidence and on the ground that the trial court did not order a presentence investigation report. We have already addressed the issue of insufficient evidence and found that the evidence presented at trial was sufficient to support Mr. Allen’s conviction of second degree murder.

With respect to the presentence investigation report, there is nothing in the record to indicate that Mr. Allen requested one, and he did not object at his sentencing to the lack of a presentence investigation report. La.C.Cr. P. art. 875(A)(1) provides in relevant part that “the court may order ... a presentence investigation.” (Emphasis added.). The use of the word “may” in this article reflects that ordering a presentence investigation is discretionary with the trial court. In State v. Bell, 377 So.2d 275 (La.1979), the Louisiana State Supreme Court found that “[t]here is no mandate ... that a presen-tence investigation be ordered.” Id. at 281. The Supreme Court then held that “[s]uch an investigation is an aid to the court and not a right of the accused.” Id. See also, State v. Wimberly, 414 So.2d 666, 671 (La.1982).

In State v. Hayden, 98-2768 (La.App. 4 Cir. 5/17/00), 767 So.2d 732, this Court stated as follows:

In the instant matter, the record does not reflect that the defendant requested that a pre-sentence investigation be conducted ... nor was any objection made at the time of sentencing. Ordering a pre-sentence investigation report is discretionary with the trial court; ... The trial court’s failure to order a PSI will not be reversed absent an abuse of discretion.
[T]he defendant was sentenced to the mandatory minimum sentence of life imprisonment. The pre-sentence investigation would not have abrogated the legal obligation of the judge to impose the mandatory sentence. Under these circumstances, no abuse of discretion in the court’s failure to order a PSI prior to r&jsentencing14 can be found.

1998-2768, pp. 27-28, 767 So.2d at 748-49 (citations omitted).

In the instant case, as in the Hayden case, no presentence investigation was requested, no objection to this was made at the sentencing hearing, and the trial court judge was required to impose a mandatory sentence. We find no abuse of the trial court’s discretion in not ordering a presen-tence investigation.

There is only one way that a defendant can rebut the presumption that a mandatory minimum sentence imposed by the legislature is constitutional. The defendant must show that “because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Lindsey, 99-3256, 99-3302, p. 5 (La.10/17/00), 770 So.2d 339, 343. Mr. Allen was convicted of second degree murder, one of the gravest offenses one can commit. The circumstances of this ease clearly warrant a mandatory life sentence, and a mandatory life sentence is perfectly tailored to Mr. Allen’s culpability.

We find that Mr. Allen’s sentence was in no way excessive. There is no merit to Mr. Allen’s assignment of error on this issue.

CONCLUSION

We find no error in the judgment of the trial court. The conviction and sentence of Mr. Allen are hereby affirmed.

AFFIRMED

      . We note that certain of the names included in this opinion are spelled in various ways in the record.

      . Mr. Allen's counsel objected to the testimony regarding the relationship between Mr. Allen and Ms. Smith on the ground that the testimony was hearsay.


author: DENNIS R. BAGNERIS Sr., Judge.

text:
    STATE of Louisiana v. Allen RHEA.
    No. 2004-KA-0091.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 19, 2004.

      Eddie J. Jordan, Jr., District Attorney, Battle Bell IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, and Judge DENNIS R. BAGNERIS Sr.).
   DENNIS R. BAGNERIS Sr., Judge.

STATEMENT OF CASE

On January 8, 1998, the State filed a bill of indictment charging Allen Rhea with aggravated rape, aggravated kidnapping, aggravated crime against nature, armed robbery, attempted armed robbery, and attempted second degree murder. He was arraigned on January 16th and pleaded not guilty. The defendant’s motion to suppress the identification was denied after a hearing on August 31, 2000. Through counsel, on February 16, 2001, the defendant filed a motion to quash the indictment because it was defective due to the process of selecting the grand jury in Orleans Parish; the motion was denied on March 6th.

On May 19, 2003, the State amended the charges on counts one and two to forcible rape and second degree kidnapping respectively and entered a nolle prosequi as to the charges in counts three, four, and six. Mr. Rhea then pleaded guilty to forcible rape, second degree kidnapping, and attempted armed robbery. On July 15, 2003, when Mr. Rhea appeared for sentencing, he filed a pro se motion to withdraw his guilty plea on the grounds that his attorney pressured him to make the plea. The court denied his motion. He was then sentenced — in accordance with his plea bargain — to serve forty years at hard labor without benefits of parole, probation, or suspension of sentence as to count one; forty years at hard labor without benefits as to count two; and forty-nine and one-half years at hard labor without benefits as to count five. The sentences are to run concurrently to each other and to the other sentence the defendant is serving.

The defendant’s motion for an appeal was granted on July 16, 2003. The docket master indicates the motion for reconsideration of sentence was denied. The defendant through counsel filed a motion to correct an illegal sentence and dismiss the indictment underlying the conviction and illegal sentence. After a hearing on August 28, 2003, the court denied the motion.

STATEMENT OF FACT

Because the defendant pleaded guilty, the facts are not set out in the record. However, the police report indicates that on August 9, 1997, the victim was carjacked in New Orleans by fourteen-year-old James Rhea who forced her into the trunk of her car at gunpoint and drove to the home of his sixteen-year-old cousin, Allen . Rhea. The two young men drove to the levee on River Road in Jefferson Parish where they raped the victim and shot her twice. They drove away in her car. She managed to get help and was taken to Ochsner Hospital. She told the police that the men called each other James and Allen. James reported that Allen shot the victim.

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

The defendant through counsel makes two assignments of error: (1) the trial court abused its discretion in denying defendant’s pro se motion to withdraw his guilty plea and defense counsel’s request to supplement the motion, and (2) the trial court erred in denying defendant’s motion to correct an illegal sentence and dismiss the indictment underlying the conviction and illegal sentence.

ASSIGNMENT OF ERROR NUMBER 1

The defendant argues that the trial court erred in denying his pro se motion to withdraw his guilty plea and his defense counsel’s request to supplement the motion.

La.C.Cr.P. art. 559 provide in pertinent part that “[t]he court may permit a plea of guilty to be withdrawn at any time before sentence.” The Louisiana Supreme Court in State v. Lewis, 421 So.2d 224 (La.1982) considered this issue and held that a trial court may permit the withdrawal of a guilty plea after sentencing when the trial court finds that the guilty plea was not entered freely and voluntarily or that the Boykin colloquy was inadequate, and, therefore, the plea is constitutionally infirm. The withdrawal of a guilty plea is within the discretion of the trial court, and is subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Johnson, 406 So.2d 569 (La.1981).

For a guilty plea to be found valid, there must be a showing that the defendant was informed of and waived his constitutionally guaranteed right to trial by jury, right of confrontation and right against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). However, the entry of a knowing and intelligent plea of guilty involves more than an understanding and a waiver of the basic triad of rights. In determining whether the defendant’s plea is knowing and voluntary, the court must not only look to the colloquy concerning the waiver of rights, but may also look at other factors which may have a bearing on the decision. State ex rel LaFleur v. Donnelly, 416 So.2d 82 (La.1982); State v. Galliano, 396 So.2d 1288 (La.1981).

In addition to the basic three rights enunciated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), in order to make a knowing and intelligent decision to plead guilty the defendant must be apprised of the possible range of sentences for the offense to which he pleads guilty. State ex rel. Curry v. Guillory, 441 So.2d 204 (La.1983).

In the case at bar, the transcript from May 19, 2003, when the guilty pleas were entered, indicates that the defendant was represented by an attorney when he entered the pleas. Furthermore, the trial judge fully explained the defendant’s rights and questioned him as to whether the pleas were knowing and voluntary. The judge explained the maximum sentences the defendant could receive. He told the defendant of his right to a speedy trial, his right to a jury, his right to representation, and his right to confront his accusers. The defendant said that he understood the rights and that he had no questions. When asked if anyone had forced, threatened, or coerced him into pleading guilty, he answered negatively, and when asked if he was satisfied with his attorney, he answered affirmatively. The waiver of rights form is signed by the defendant, his attorney, and the judge.

Although the defendant did not testify except at the Boykin hearing cited above, he did file a Motion for Withdrawal of Guilty Plea in which he set out his reason for withdrawing his plea. He stated:

During plea discussions, my attorney Emily Bolton stated she feared going to trial, and if I agreed to a plea, which would be my best option, she promised to do my Post Conviction. My attorney made a promise to me, and also inspired fear in me from [sic] exercising my right to trial, which should make this plea void and involuntary .... [Emphasis in original text].

In his pro se motion, the defendant argues also that his attorney was ineffective for advising him to plead guilty and that there was an insufficient factual basis to support the plea in that prior to the plea he had not admitted to guilt.

After considering the defendant’s motion, the judge stated:

He [the defendant] alleges ... [counsel] in this case had made certain representations to him as [sic] either as regards the trial and/or as regards some post conviction ... matter. In paragraph two, where he alleges ineffective assistance of counsel, I guess, with all respect to Mr. Rhea, I just don’t believe that he raises anything that would be worthy of this Court’s serious consideration. And in paragraph three: Insufficient Factual Basis to Support the Plea, again, there’s nothing that he raises that would be worthy of consideration. As to paragraph one, where, again, he raised the issue of whether or not a lawyer made a — and this is his writing — my attorney stated she feared going to trial and if I agreed to a plea, which would be my best option, she promised to do my Post Conviction. Well, if a plea is, in fact, his best option, then I don’t understand what in the world a lawyer has done to either coerce him into entering or [sic] a plea or has done to trick him into entering a plea or to do anything else untoward in this case that would get him into a plea of guilty, other than the fact that, with all respect to Mr. Rhea, that he’s entering a plea because that’s what he wanted to do.

The trial judge, after considering all the factors involved in a valid and voluntary guilty plea, could find no rational basis for the defendant’s motion to withdraw his plea.

The transcript of the plea hearing reflects compliance with Boykin. On the Waiver of Constitutional Rights/Plea of Guilty Form, the defendant admitted that he had committed the crimes. He signed and initialed a standard plea form. The trial court clearly set out the possible sentences. Moreover, Mr. Rhea originally faced death or a life sentence for aggravated rape, a life sentence for aggravated kidnapping, and up to ninety-nine years for armed robbery. He also faced the aggravated crime against nature and the armed robbery charges. He successfully plea-bargained a reduction of the rape and kidnapping charges, attempted armed robbery and a dismissal of the aggravated crime against nature and the armed robbery charges.

In its brief, the defense suggests that when Mr. Rhea learned that his defense counsel was afraid to go to trial, he became frightened thinking that the attorney was anxious for herself rather than for him. Given the charges against him, this position is unreasonable. The judge found the defendant’s statement unworthy of consideration. After going to trial in Jefferson Parish and being found guilty of attempted murder, the defendant to his great advantage pleaded guilty to reduced charges in Orleans Parish.

The defendant’s pleas were knowing and voluntary and the Boykin colloquy was adequate. We do not find that the trial court abused its discretion in denying the motion to withdraw the guilty plea.

As part of this assignment of error, the defendant, through counsel, contends that the court erred in denying defense counsel’s request to supplement the defendant’s motion to withdraw his guilty plea.

At the hearing on July 15, 2003, the defense attorney first noted that Mr. Rhea had filed a motion to withdraw his guilty plea and then asked to withdraw as his counsel because Mr. Rhea he had indicated in his motion that his counsel was ineffective. After the judge denied both motions, the attorney asked for time prior to sentencing in which to supplement the defendant’s motion to withdraw. That request was also denied.

On appeal, counsel now argues that the request should have been granted so that she could have argued that the grand jury indictment was infirm on the basis of the Supreme Court decision State v. Dilosa, 2002-2222 (La.6/27/03), 848 So.2d 546. However, when the attorney asked for time to supplement the request, she gave no reason for her motion. The judge found no logical reason for the defendant to withdraw his guilty plea, and when counsel expressed no reason for an extension of time. Thus, the trial court correctly denied the request. Furthermore, the argument under State v. Dilosa is defendant’s second assignment of error on appeal. Thus, the argument will be heard, and there is no harm in the trial court’s denial of the defense’s request.

ASSIGNMENT OF ERROR NUMBER 2

The defendant’s next argument, that the trial court erred in denying defendant’s motion to correct an illegal sentence and to dismiss the indictment underlying the conviction and the illegal sentence, is based on the recently decided Supreme Court case, State v. Dilosa, 2002-2222 (La.6/27/03), 848 So.2d 546; in Dilosa the court held that the grand jury indicting the defendant was selected by a local law in violation of Art. Ill, § 12 of the Louisiana Constitution.

In State v. Williams, 2003-0091(La.App. 4 Cir. 1/14/04), 866 So.2d 296, this court recently addressed the issue considered in Dilosa. Before his trial, the defendant in Williams, who was indicted for first-degree murder, filed a motion to quash the indictment based on the unconstitutionality of the grand jury selection process in Orleans Parish at the time of his indictment. Following oral argument, the district court denied the motion to quash the indictment on May 20, 2002. On June 27, 2003, shortly after the defendant was convicted and sentenced, the Louisiana Supreme Court held, in a pretrial case, that the statutory grand jury selection process, as it existed in Orleans Parish prior to 2001, was a local law in violation of Art. Ill, § 12 of the Louisiana Constitution. State v. Dilosa, 2002-2222 (La.6/27/03), 848 So.2d 546, 551.

At a rehearing in the Williams case, this Court declared:

Article 921 of the Louisiana Code of Criminal Procedure provides that “[a] judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.”

The statute and codal provisions pertinent to this case were declared unconstitutional in Dilosa solely because they were local laws in violation of La. Const. art. III, § 12(A). However, the constitutional prohibition against local laws which underlies the Dilosa decision simply reflects a policy decision that legislative resources and attention should be concentrated upon matters of general interest and that purely local matters should be left to local governing authorities. Morial v. Smith & Wesson Corp., 2000-1132, p. 22 (La.App. 4 Cir. 4/3/01), 785 So.2d 1, 17; Kimball v. Allstate Ins., Co., 97-2885, p. 4 (La.4/14/98), 712 So.2d 46, 50. As such, the substantial rights of a criminal defendant are not affected per se solely because he is indicted by a grand jury selected pursuant to local laws passed by the Louisiana State legislature. Thus, although the trial court erred in denying defendant’s motion to quash his grand jury indictment based on the unconstitutionality of the local laws at issue, there is no showing that the error affected his substantial rights

Accordingly, the error does not require reversal of defendant’s conviction, sentence and indictment. Therefore, on rehearing, the defendant’s conviction and sentence are affirmed.

State v. Williams, pp. 2-3, 866 So.2d 296.

Just as in Williams, the substantive rights of Allen Rhea were not affected because he was indicted by a grand jury selected according to local laws in Orleans Parish. Even though the court erred in denying his motion to quash his indictment based on the local laws, he made no showing that his substantive rights were affected.

Therefore, the error does not require reversal of his indictment, convictions, and sentences.

The defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

      . A co-defendant, James Rhea, who is the defendant's cousin, was indicted, charged with counts one, two, and four, and pleaded guilty to forcible rape, second degree kidnapping, and attempted armed robbery.

      . Allen Rhea was convicted in Jefferson Parish of attempted murder and is serving a fifty-year sentence.

      . This case is discussed as part of the next assignment of error.

      . See Rideau v. Whitley, 237 F.3d 472 (5th Cir.2000), cert. denied, 533 U.S. 924, 121 S.Ct. 2539, 150 L.Ed.2d 708 (2001), reversing the defendant's conviction based on racial discrimination in the selection of the grand jury that indicted him. As in the instant case, the defendant filed a pre-trial motion to quash his indictment. He alleged that there had been a systematic exclusion of black jurors from the Calcasieu Parish grand jury that returned his indictment for first-degree murder. The motion to quash was denied, and the Louisiana Supreme Court affirmed that ruling in 1973. In 1994, the defendant filed a petition for federal habeas corpus, ultimately leading the federal court of appeals to reverse his conviction on the ground that his indictment by a grand jury from which black citizens were systematically excluded because of their race violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The court followed a rule of mandatory reversal of the conviction and indictment in such cases, and did not require a showing of prejudice, because the intentional discrimination in the selection of the grand jury was a "grave constitutional trespass possible only under color of state authority wholly within the power of the State to prevent,” because of the need to eliminate that systematic flaw, and because of the difficulty of assessing the prejudicial effect on any given defendant. Rideau, 237 F.3d at 489, quoting Vasquez v. Hillery, 474 U.S. 254, 262 & 264, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). In this case, however, the defendant does not make a showing that his indictment approached the "grave constitutional trespass” found in Rideau which led that court to automatically reverse defendant Rideau’s conviction and indictment without a finding of prejudice.