author: 1 ¡WILLIAM H. BYRNES, III, Chief Judge.

text:
    STATE of Louisiana v. Christoper D. LEBRETON.
    No. 2003-KA-0321.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 2003.

      Eddie J. Jordan, Jr., District Attorney, Claire Adriana White, Assistant District Attorney, Orleans, LA, for Plaintiff/Appel-lee.
    Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS JR., and Judge LEON A. CANNIZZARO JR.).
   1 ¡WILLIAM H. BYRNES, III, Chief Judge.

Christopher D. Lebreton appeals his convictions and sentences for various counts of aggravated rape, aggravated kidnapping, and aggravated crime against nature. We affirm.

Procedural History

On January 4, 2001, the State indicted Christopher Lebreton with three counts of aggravated rape, La. R.S. 14:42 (counts 1,3 and 7), three counts of aggravated kidnapping, La. R.S. 14:44 (counts 2, 4 and 8), and two counts of aggravated crime against nature, La. R.S. 14:89.1 (counts 5 and 6). On January 10, 2001, Lebreton appeared for arraignment, and the trial court read the indictment and set a hearing to determine counsel. On January 25, 2001, the trial count appointed counsel to represent Lebreton, and set a hearing on motions. On February 1, 2001, the trial court conducted a lunacy hearing and ordered additional psychiatric evaluation of Lebreton at the Feliciana Forensic Facility. In addition, the trial court granted the State’s motion for DNA/blood testing.

On December 6, 2001, the trial court found Lebreton competent to proceed, and the State re-urged its motion for DNA/ blood testing, which the court granted. |3 On January 11, 2002, the trial court denied the defense motions to suppress the evidence and identification. On May 17, 2002, the trial court denied the defense motion to sever the offenses, but allowed Lebreton to change his plea from not guilty to not guilty and not guilty by reason of insanity.

After a bench trial on September 10-13, 2002, the trial judge found Lebreton guilty as charged on all counts. On September 20, 2002, the trial court denied Lebreton’s motions for new trial, post-verdict judgment of acquittal, to reconsider sentence and arrest of judgment, but granted his motion for appeal. That same day, the court sentenced Lebreton to six life sentences for the aggravated rape and aggravated kidnapping convictions (counts 1, 2, 3, 4, 7 and 8) and to fifteen-year sentences on each of the aggravated crime against nature convictions (counts 5 and 6). The trial court ordered that the sentences be served concurrently.

Facts

Kidnap and Rape of A. G.

At approximately 9:00 p.m. on September 24, 2000, A.G. exited the Magazine Street bus at First Street. As A.G. walked toward her home on Chippewa Street, she noticed a man walking on the left side of the street, in the opposite direction. Uneasy about her safety, A.G. turned around to monitor the man’s actions. When A.G. turned around, the man was standing behind her with a handkerchief pulled up to his nose, and a gun pointed at her. He pushed A.G. into an alley, and ordered her to disrobe. She offered him her jewelry, but he refused it, threatening to kill or stab her if she resisted his advances. A.G. removed her clothes. The man pushed her down, causing her to break some of her acrylic nails. 14 The man vaginally raped A.G. During the rape, the attacker’s bandana slipped down, allowing A.G. to see his face. After the attack, the rapist told A.G. not to look as he fled the alley. As soon as A.G. was certain her attacker was gone, she put on her blouse and pants, and ran home, leaving her undergarments and slippers in the alley. Her boyfriend called the police.

New Orleans Police Officer Byron Mitchell interviewed A.G. at her home. She described the assailant as a young, light-skinned black male with bushy hair and sideburns, 23 to 25 years old, wearing a white T-shirt, gray shorts and black and white tennis shoes. A.G. accompanied Officer Mitchell to the rape site, where Sergeant Toni Blanco met them. A.G. recounted her ordeal to the officers, and they transported her to the Medical Center of Louisiana for testing.

Peggy Fitzmorris, a certified sexual assault nurse, performed the sexual assault examination on A.G. about 1:30 a.m. on September 25, 2000. A.G. gave Ms. Fitz-morris an oral account of the rape, and Ms. Fitzmorris collected fingernail scrapings, head and pubic hairs, saliva and blood samples plus a vaginal swab from A.G. Ms. Fitzmorris noted that A.G. was in shock, and had broken at least one of her acrylic nails. Ms. Fitzmorris bagged A.G.’s clothes, and turned them over to the police, along with the evidence collected during the rape exam.

Sergeant Toni Blanco, a member of the sex crimes unit, met A.G. and Officer Byron Mitchell at the rape scene, where she directed investigators in photographing and collecting evidence, including A.G.’s underwear, slippers and broken acrylic nails. Approximately one month later, with the help of a police sketch artist, A.G. formulated a composite of her assailant. Sergeant Blanco’s investigation and ensuing events developed the defendant as a suspect. On ^October , 26, 2000, A.G. viewed a photographic lineup compiled by Sergeant Blanco, and immediately identified the defendant as her attacker. Pursuant to A.G.’s identification, Sergeant Blanco obtained an arrest warrant for the defendant and a warrant to search his residence, which yielded seven .380 caliber bullets, one pair of black tennis shoes and one pair of white shorts with the words “Skyy Vodka” printed on them.

Kidnap and Rape of N. J.

On October 15, 2000, at approximately 9:30 p.m., a short, light-skinned black man with bushy hair kidnapped N.J. and her two-year old son as they walked on La-Salle Street. The man held a knife to her neck, and warned her not to scream. Although the man pulled her scarf over her eyes, N.J. could see through the scarf. The assailant forced N.J. and her son into a black Nissan Sentra. The assailant drove N.J. and her child around for a short time, and eventually parked the vehicle. He told N.J. to place the child on the floor in the front of the car, and then get into the back seat. He ordered her to disrobe, and vaginally raped her. Next, he told N.J. to turn around so that he could sodomize her. When she refused, he threatened to sodomize her child. When N.J. pleaded with the assailant not to harm the child, he hit her, and then made her place his penis in her mouth. The assailant then got back in the front seat of the car, and drove N.J. and her child down Tchoupitou-las Street to Audubon Park. He pulled N.J. out of the vehicle toward some trees, where he vaginally raped her, as her child stood next to her. While the assailant fondled himself, he made N.J. perform fellatio on her son. Before leaving the scene, the assailant urinated on N.J., and took her driver’s license.

I r,N.J. began to scream, and attracted the attention of Tedd Mosses, a neighborhood resident, who aided the victim, and called the police.

N.J. reported the facts of the assault to the police. She told them that her attacker wore shorts with the word “vodka” printed on them. Approximately two weeks later, N.J. positively identified the defendant from a photographic lineup compiled by Sergeant Blanco as her attacker.

At about 11:32 p.m. on the night of the rape, Detective Allen Gressett interviewed the physically disheveled and emotionally overwrought victim in his office. N.J. gave Detective Gressett a statement, describing her attacker and his four-door black Nissan Sentra. N.J. led Detective Gressett to three locations, retracing the steps of her ordeal that night.

On October 26, 2000, Detective Gressett learned the police arrested a suspect in a rape that night, and that the suspect fit the description of N.J.’s attacker. Detective Gressett and Officer Byron Mathews relocated to that scene. Upon his arrival, Detective Gressett learned that the suspect asked officers to secure his girlfriend’s vehicle, a four-door, black Nissan Sentra. Detective Gressett recognized the vehicle description from N.J.’s rape, and had the car impounded, pending issuance of a search warrant. When officers processed the vehicle, they found pants containing the defendant’s identification, and a small amount of marijuana on the front seat.

Anne Troy, certified sexual assault nurse, examined N.J. at the Medical Center of Louisiana. The victim related to Ms. Troy the details of the attack that night. Ms. Troy completed a rape examination Mt by taking head and pubic hair 17combings from the victim. She also took blood and saliva samples, fingernail scrapings and oral and vaginal swabs. Ms. Troy sealed the evidence in the kit and gave the kit to a NOPD officer.

Kidnap and Rape of A. J.

Shortly after midnight on October 25, 2000, Elaine Lloyd observed her fourteen-year-old neighbor, A.J., walking to her home. Ms. Lloyd noticed a black male following A.J. The man grabbed A.J. from behind, and pushed her into some bushes in a vacant lot. Ms. Lloyd rode her bicycle to a convenience store four blocks away, and reported the incident to police officers.

The man held a knife to A.J.’s throat as he gagged her, and forced her to the rear of a vacant lot. The man threatened to kill A. J. if she did not take her clothes off. He made her kneel down, and vaginally raped her. When a car passed, the defendant forced her to lie down. He vaginally raped her again.

Officers Melvin Williams and Bryant Louis relocated to the 2400 block of South Liberty Street in response to Ms. Lloyd’s information. As Officer Williams exited the police car, he heard crying and moaning sounds coming from a vacant lot. Officer Williams focused his flashlight in the direction of the sounds, and saw the suspect standing behind A.J., who was lying in a fetal position on the ground. Both the vibtim and the suspect were nude from the waist down. Officer Louis sprayed the suspect with mace to subdue him. The officers secured the suspect in the police unit, and seized a box cutter from him in the process. Officer Williams could not coax the hysterical A.J. from the lot, so he covered her with a raincoat, and called for medical assistance. When the EMS personnel arrived, they assisted A.J. from the lot, and transported her to the Medical Center of Louisiana for treatment.

1 ^Officers Desmond Pratt and Simone Lewis arrived on the scene as backup. They assisted in securing the suspect in the Williams-Louis police unit. The suspect asked Officer Pratt to secure his girlfriend’s vehicle, a black Nissan Sentra, which was parked around the corner.

Officer Shiryl Mathews of the sex crimes unit accompanied Detective Gressett to investigate the rape. Officer Mathews briefly spoke to A.J. at the scene, and although she was in shock, A.J. identified the defendant as her attacker. Officer Mathews observed clothing, a woman’s purse, jewelry, a cell phone and a utility knife at the site of the rape. Mathews’ inspection of the black Nissan Sentra revealed the key in the ignition and a pair of cut-off jean shorts on the front seat.

Ms. Julie Golden, an expert in molecular biology and forensic DNA analysis, received and performed DNA typing on blood samples from the defendant, N.J. and A.G. She also tested vaginal swabs taken from N.J. and A.G. Ms. Golden stated that the test results positively identified the defendant as the man who raped N.J. and A.G. Ms. Golden also testified that she received A.J.’s underwear for testing; however, the amount of seminal fluid found on the victim’s underwear was too small to produce scientifically reliable test results.

The defendant testified that he had no memory of any of the crimes in question. He further stated that he did not know any of the victims.

Mark Zimmermann, Ph.D., testified on behalf of the defendant. Dr. Zimmermann examined the defendant on March 22, 2002. He stated that he reviewed a psychiatric evaluation of the defendant rendered by physicians at the Feliciana Forensic Facility in October 2001, and that he did not agree with the | flFacility’s physicians’ conclusion that the defendant was feigning mental illness. In Dr. Zimmer-mann’s opinion, the defendant exhibited signs of psychosis, which would be consistent with the defendant’s inability to remember any of the crimes with which he was charged.

The State called Dr. Richard Riehoux on rebuttal. The defense and the State stipulated that Dr. Riehoux was an expert in forensic psychiatry. Dr. Riehoux testified that he was part of the lunacy commission charged with determining the defendant’s competency. He met with the defendant in February 2001, but was unable to perform a routine examination of the defendant because the defendant refused to cooperate. As a result, Dr. Ri-choux recommended that the defendant be found incompetent to proceed and that he be committed for further evaluation and treatment to Feliciana Forensic Facility, where he remained until October 2001, when the Facility found him competent to proceed.

Dr. Riehoux evaluated the defendant in December 2001 and found him to be asymptomatic for any diagnosable mental disorder, other than a history of chemical dependency. However, Dr. Riehoux opined that chemical dependency would not deprive a person of the ability to tell right from wrong. Dr. Riehoux further testified that he reviewed the police reports of the crimes, and found the defendant’s behavior “goal-oriented”. Considering the absence of brain damage, which might account for the defendant’s periods of “memory loss”, and no proof of toxic psychosis, coupled with the defendant’s “goal-oriented” behavior, Dr. Riehoux saw “absolutely no indication that [the defendant] was unable to distinguish right from wrong [at the time of the crimes].”

| ^Errors Patent

A review for errors patent on the face of the record reveals that the trial judge failed to adhere to the time constraints of La. C.Cr.P. art. 873. Failure of the trial court to observe the mandatory twenty-four hour delay after denial of a motion for new trial, where such delay is not waived, requires the sentence to be vacated and the case remanded for resentencing. State v. Augustine, 555 So.2d 1331, 1333 (La.1990), superseded, in part, by statute as stated in State v. Martin, 93-1915, pp. 2-3 (La.App. 4 Cir. 9/29/94), 643 So.2d 830, 832; State v. Brauner, 99-1954, p. 14 (La.App. 4 Cir. 2/21/01), 782 So.2d 52, 63, writ denied 2001-1260 (La.3/22/02), 811 So.2d 920.

However, Louisiana jurisprudence has recognized exceptions to this requirement in cases where the failure to observe the delay is considered harmless. For instance, State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, certiorari denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997), held that the failure of the trial court to observe the mandatory twenty-four hour rule was harmless where the sentence imposed was mandatory in nature. Id. at p. 17, 684 So.2d at 380. Further, failure to observe the twenty-four hour period has been considered harmless where there is a sufficient delay between the date of conviction and the date of sentencing; there is no indication that the sentence is hurriedly imposed; and there is no argument or showing of actual prejudice by the failure to observe the twenty-four hour delay. State v. Sam, 99-0300, p. 8 (La.App. 4 Cir. 4/19/00), 761 So.2d 72, 78, writ denied 2000-1890 (La.9/14/01), 796 So.2d 672 (delay between conviction and sentencing less than one month); State v. Dickerson, 579 So.2d 472, 484 (La.App. 3 Cir.1991), writ granted in part, 584 So.2d 1140 (La.1991) (delay between conviction and sentencing exceeded one month). But cf., State v. Brauner, supra, 99-1954 at p. 14, 782 So.2d at 63 (required sentence be vacated even though more than six months elapsed between conviction and sentencing).

In the present case, prior to sentencing, the defendant filed motions for new trial, post verdict judgment of acquittal, arrest of judgment and to reconsider sentence. The defendant was sentenced on the same day that those motions were denied. There is no indication that the defendant waived the twenty-four hour delay, either expressly or implicitly. However, the defendant in this case was convicted of three counts of aggravated kidnapping and three counts of aggravated rape, crimes that carry mandatory life sentences. Therefore, pursuant to State v. Seals, supra, the failure to observe the twenty-four hour delay is harmless. In addition, for the defendant’s two aggravated crime against nature convictions, the court sentenced him to the maximum sentence of fifteen years on each count. Likewise, the trial court’s failure to observe the statutory delay before sentencing the defendant for those crimes is harmless because there was a sufficient delay between the date of conviction and the date of sentencing (seven days), the defendant has not shown that the sentence was hurriedly imposed, and there is no argument or showing of actual prejudice by the failure to observe the twenty-four hour delay. State v. Sam, supra. There are no other errors patent.

On appeal the defendant contends that: (1) the trial court erred in denying his motion to sever the counts; (2) the evidence was insufficient because the defendant was insane at the time of the offense; (3) his sentences were excessive; 112 and (4) the trial court erred in granting the State’s motion to obtain blood samples while the defendant was found incompetent to proceed.

Motion to Sever

Initially, the defendant contends the trial court erred in denying his motion to sever the counts.

La.C.Cr.P. art. 493 provides:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

In State v. Porche, 2001-2086 p. 7 (La.App. 4 Cir. 5/22/02), 819 So.2d 1122, 1127, this Court discussed the possibility of a defendant being prejudiced by the joinder of offenses:

Generally, “there is no prejudice and severance is not required if the facts of each offense are not complex, and there is little likelihood that the jury will be confused by the evidence of more than one crime.” State v. Carter, 99-2234 (La.App. 4 Cir. 1/24/01), 779 So.2d 125, 145, citing State v. Lewis, 557 So.2d 980, 984 (La.App. 4 Cir.1990). The defendant has a heavy burden of proof when alleging prejudicial joinder of offenses, and he must make a clear showing of prejudice. Id. In determining whether joinder of two or more offenses would result in prejudice, a court should consider: (1) whether the jury would be confused by the various counts; (2) whether the jury would be able to segregate the various charges and evidence; (3) whether the defendant would be confounded in presenting various defenses; (4) whether the crimes charged would be used by the jury to infer a criminal disposition; and (5) whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. State v. Coston, 2000-1132 p. 9 (La.App. 4 Cir.9/5/01), 800 So.2d 907, 914.

hsWhether a motion to sever should be granted rests within the sound discretion of the trial court whose decision will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Coston, 2000-1132 (La.App. 4 Cir. 9/5/01), 800 So.2d 907, writ denied 2001-2819 (La.10/4/02), 826 So.2d 1115. The defendant has a heavy burden of proof when alleging prejudicial joinder of offenses, and he must make a clear showing of prejudice. Id.

In the present case, the defendant argues that considering that one of the offenses involved fellatio performed on a two-year-old and that in another the police caught the assailant in the act, the joinder of those offenses prejudiced him so that he did not receive a fair trial as to the other counts.

The defendant failed to clearly show prejudice in this case. The defendant was charged and tried on three counts of aggravated kidnapping, three counts of aggravated rape and two counts of aggravated crime against nature. Although the charges arose from separate incidents, in different locations, they occurred within one month of each other and are triable by the same mode of trial. The facts of the offenses are similar, simple and uncomplicated. All of the victims were threatened with a weapon. The defendant ordered each victim to disrobe and then raped her. The victims each identified the defendant through a photographic lineup, and testified clearly as to the facts of each incident. The investigating officers documented and distinguished each offense. DNA testing positively identified the defendant as the rapist in two of the offenses, and the third victim identified the defendant as her attacker on the scene.

The defendant offered no evidence that the State’s presentation of all the crimes together confused the trial judge or hindered the defendant’s right to present a defense. Further, the defendant presented no evidence to suggest that the State |14joined the offenses to show the defendant’s criminal propensity, and there is no evidence of judicial hostility as a result of the joinder. The trial court did not abuse its discretion by denying the defendant’s motion to sever.

Claim of Insufficient Evidence Based on Insanity Defense-

The defendant claims that the evidence is insufficient to support his convictions because he proved he was insane at the time of the offenses.

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. State v. Mussall, 523 So.2d 1305 (La.1988). A reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319 (La.1992).

In Louisiana, a legal presumption exists that a defendant is sane at the time of the offenses. La. R.S. 15:432. To rebut the presumption of sanity and avoid criminal responsibility, the defendant has the burden of proving the affirmative defense of insanity by a preponderance of the evidence. La.C.Cr.P. art. 652. Criminal responsibility is not negated by the mere existence of a mental disease or defect. To be exempted of criminal responsibility, the defendant must show that he suffered a mental disease or mental defect that prevented him from distinguishing between right and wrong with reference to the conduct in question. La. R.S. 14:14; State v. Williams, 346 So.2d 181 (La.1977).

|1K“The determination of sanity is a factual matter. All the evidence, including expert and lay testimony, along with the defendant’s conduct and action, should be reserved for the fact finder to establish whether the defendant has proved by a preponderance of the evidence that he was insane at the time of the offense.” State v. Currie, 2000-2284, p. 28 (La.App. 4 Cir. 2/13/02), 812 So.2d 128, 137, writ denied 2002-0786 (La.11/15/02), 829 So.2d 421. Lay testimony pertaining to the defendant’s actions, both before and after the crime, may provide the fact finder with a rational basis for rejecting unanimous medical opinion that the defendant was legally insane at the time of the offense. State v. Peters, 94-0283 (La.10/17/94), 643 So.2d 1222.

In the present case, psychologist, Dr. Marc Zimmermann, testified for the defense. Dr. Zimmermann stated that he interviewed the defendant three times pri- or to trial, and concluded that the defendant suffered from schizophrenia, paranoid type, probably substance dependent. The doctor reviewed the findings of the lunacy commission, as well as the commission’s recommendation that the defendant be sent to Feliciana Forensic Facility for observation for suspected malingering or feigning insanity. The doctor reviewed the report/analysis rendered by the Felici-ana Forensic Facility, and dfeemed its conclusions confusing and/or contradictory. Specifically, Dr. Zimmermann took issue with a section of the report which stated: “The profile of scores shown above indicated the likelihood of honest responding was low. While the likelihood of feigning/exaggerating psychological complaints was likely, this profile of scores fall[s] below typical level of those feigning mental disorders.” Dr. Zimmermann testified that the preceding statement directly contradicted the report’s diagnosis of “malingering also diagnosed as cocaine and marijuana abuse.”

launder cross-examination, Dr. Zim-mermann admitted that he could not render an opinion as to the defendant’s mental status at the time of the offenses.

In rebuttal, psychiatrist Dr. Richard Ri-choux, the State’s expert, testified that he examined the defendant in February 2001, as a member of the lunacy commission. However, the defendant frustrated the commission’s work by his refusal to cooperate in a routine evaluation. The defendant’s lack of cooperation led to his confinement for observation at the Feliciana Forensic Facility. Dr. Richoux next examined the defendant in December 2001, and found no diagnosable mental disorder, other than a history of chemical dependency. Dr. Richoux noted that Dr. Zimmermann focused on only one small section of the report rather than all the criteria considered in formulating the diagnosis of the defendant as malingering or feigning insanity. Dr. Richoux noted that the report also stated that “[the defendant’s] score on a well known measure of feigning of psychotic symptoms, on the other hand, was indicative of feigned/exaggerated psychotic symptoms ...” and that “the seriousness of his pending charges and the strength of the evidence against him would prove sufficient motivation for the feigning/exaggeration of mental illness.”

Based upon his examinations of the defendant in conjunction with the report rendered by the Feliciana Forensic Facility and the police report, Dr. Richoux concluded that the defendant did not suffer from any type of mental disease or defect. In particular, Dr. Richoux found:

... one must look, if entertaining the possibility of any kind of toxic psychosis, at what is described as the individual’s behavior, demeanor, statements made during those periods of time. As I appreciate it, what’s described in these police reports is totally inconsistent with the behavior or verbiage of someone who, because of a toxic psychosis is unable to distinguish right from l17wrong, unable to appreciate reality or separate reality from non-reality. What’s contained in the police reports is organized, purposeful behavior of an individual whose verbalizations include direct threats of physical harm made in appropriate context to the victims. It involves evasive behavior on [the defendant’s] part, intimidating behavior on his part. And all of these things are done in a very organized fashion as described in the police reports. The fact that someone who presumably is under a toxic influence could behave in that fashion one time is very unlikely. The fact that someone who is behaving under a toxic influence could do that two times is even more unlikely. The fact that an individual who is suffering from toxic psychosis could engage in that kind of organized behavior three times over a period of several weeks is extremely unlikely. And so taking all the data that’s available to me into account, I see absolutely no indication that [the defendant] was unable to distinguish right from wrong at any of those times in question.

Pursuant to State v. Currie, supra, all of the evidence, including expert and lay testimony, along with the defendant’s conduct and action in the present case, indicate that the defendant knew right from wrong, and was sane at the time of the offenses. The trial court did not err in finding that the defense did not prove by a preponderance of the evidence that the defendant was insane at the time of the offense because a mental defect prevented him from distinguishing between right and wrong with reference to the conduct involved.

Claim of Excessive Sentences

The defendant also complains that his six life sentences are unconstitutionally excessive.

La. Const, art. I, § 20 explicitly prohibits excessive sentences. State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973, 977. “Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment.” State v. Francis, 96-2389, p. 6 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461 (citing State v. Sepulvado, 367 So.2d 762 (La.1979)), grant of post-conviction relief affirmed, 2001-1667 (La.App. 4 Cir. 2/6/02), 809 So.2d 1132. However, “[t]he penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society.” Baxley, 656 So.2d at 979, citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4 Cir.1987), writ denied 516 So.2d 366 (La.1988). A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676. “A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice.” Baxley, supra, 656 So.2d at 979, quoting State v. Lobato, 603 So.2d 739 (La.1992); State v. Washington, 2000-1055 (La.App. 4 Cir. 7/18/01), 793 So.2d 376.

“In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La.C.Cr.P. art. 894.1, and whether the sentence is warranted under the facts established by the record.” State v. Harris, 2000-1739, p. 12 (La.App. 4 Cir. 4/18/01), 787 So.2d 420, 429, writ denied 2001-1626 (La.4/26/02), 813 So.2d 1101, citing State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181. “If adequate compliance with La. C.Cr.P. art. 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Robichaux, 2000-1234, p. 10 (La.App. 4 Cir. 3/14/01), 788 So.2d 458, 466, writ denied 2001-1178 (La.3/15/02), 811 So.2d 897. In State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, 819, writ denied, 98-2171 (La.1/15/99), 735 So.2d 647, and certiorari denied 537 U.S. 839, 123 S.Ct. 157, 154 L.Ed.2d 60 (2002), this court stated:

... The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D)....

In State v. Soraparu, 97-1027, p. 1 (La.10/13/97), 703 So.2d 608, the Louisiana Supreme Court stated:

... On appellate review of sentence, the only relevant question is “ ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const, art.' I, § 20, i.e., when it imposes “punishment disproportionate to the offense.” State v. Sepulvado, 367 So.2d 762, 767 (La.1979). In cases in which the trial court has left a less than fully articulated record indicating that it has considered not only aggravating circumstances but also factors militating for a less severe sentence, State v. Franks, 373 So.2d 1307, 1308 (La.1979), a remand for resentenc-ing is appropriate only when “there appear[s] to be a substantial possibility that the defendant’s complaints of an excessive sentence ha[ve] merit.” State v. Wimberly, 414 So.2d 666, 672 (La.1982)....

Loin the present case, the defendant was convicted of three counts each of aggravated kidnapping and aggravated rape. Those two offenses carry mandatory sentences of life imprisonment without the benefit of parole, probation or suspension of sentence. La. R.S. 14:44 and 14:42.

In rendering the verdict in this case, the trial judge addressed the defendant and stated:

... I have never had the opportunity to participate in a trial where I’ve been emotionally charged the way I was in this particular trial. The crime is heinous enough, but some of the things that you committed upon these women and upon that child are things that will stay in my mind forever. They were despicable, and I want you to know that. I have looked at these charges. I have looked at the responsive verdicts. I have tried desperately to find anything other than these charges. But the evidence that was presented by the State left me no conclusion but to find you guilty as charged of all of these counts. I wish there was any other way. I wish there was a way we could turn back the clock. I wish there was a way we could bring these [women] in and they could forget about the whole incident like you have. [Your] memory is certainly convenient. They have to live with these memories the rest of their lives. I’m not throwing the book at you. This is what you are charged with. And this is my mind, beyond a reasonable doubt, is what you are guilty of.... I’m just so disgusted, hurt, angered by this, and I’ve tried to make my emotions stay out of it. And that’s why I went back and tried to find what the lesser included offenses were and what the other charges could be. And no matter how hard I tried, I kept hitting a brick wall because the State has proven this case well beyond a reasonable doubt ...

Other Louisiana courts have affirmed life sentences for aggravated rape and aggravated kidnapping. See State v. Howard, 31,807 (La.App. 2 Cir. 8/18/99), 746 So.2d 49; State v. Haivkins, 99-217 (La.App. 5 Cir. 7/2/99), 740 So.2d 768, 770; State v. Dunbar, 94-1492 (La.App. 3 Cir. 5/31/95), 657 So.2d 429; and State v. Spitz, 93-2070 (La.App. 1 Cir. 12/22/94), 650 So.2d 271, writ denied 95-0742 (La. 9/1/95), 658 So.2d 1269.

The defendant in the present case contends that his life sentences are excessive because the trial judge failed to consider his family background, education or employment.

Considering the trial judge’s well-articulated reasons for sentencing, the defendant’s criminal history and the heinous and cruel nature of his crimes, his sentences are not grossly out of proportion to the seriousness of the crime, nor are they needless and purposeless infliction of pain and suffering. The defendant is the “most egregious violator” of the law the legislature had in mind when it determined the penalties for the offenses he committed. The record reflects that the trial court adequately complied with La.C.Cr.P. art. 894.1 in particularizing the sentence to the defendant. The sentence does not shock the sense of justice.

In fact, the sentences were made to run concurrent. Because the criminal activity involved three separate and distinct episodes, there is a basis in fact and in law for imposing each set of sentences consecutive to each other. See La.C.Cr.P. art. 883. The defendant received a somewhat lenient sentence in that, for all of his criminal activity, he only received one life sentence.

Motion to Obtain Blood Samples

Finally, the defendant argues that the trial court erred in granting the State’s motion to obtain blood samples from the defendant during the period of time that he was incompetent to proceed, in violation of La.C.Cr.P. art. 642.

[ g2The defendant was declared incompetent to stand trial on February 1, 2001. That same day the State filed, and the trial court granted, a motion to obtain blood samples from the defendant for DNA testing. However, the State did not obtain a blood sample from the defendant at that time. In fact, the State re-filed its motion on December 6, 2001, following the hearing in which the trial judge declared the defendant competent to stand trial. The record reflects the State addressed the issue:

Your honor, prior to Mr. Lebreton’s being ruled incompetent, approximately about a year ago, the State was moving to have him produce a blood sample. At this time, the State is noting [its] intention to file a written motion tomorrow morning and ask that this be set for a status hearing for Monday to determine a date in which the doctor can come and pull his blood.

The defendant did not suffer any prejudice, and is not entitled to relief.

Accordingly, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . Due to the nature of the crimes, the victims are identified by their initials.

      . The named is also spelled “Moses” in the record.

      . The name is also spelled "Zimmerman” in the record.

      . In State v. Martin, the court noted that Augustine is overruled to the extent that defendant fails to comply with La.C.Cr.P. art. 881.1. Martin, 93-1915 at p. 2, 643 So.2d at 832. Martin states that defendant must file a motion to reconsider sentence within 30 days of the imposition of sentence: failure to do so precludes defendant from challenging his sentence on appeal. Id.

      . La.C.Cr.P. art. 642 provides in part:
      ... When the question of the defendant's mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.


source: Caselaw Access Project

author: |, DENNIS R. BAGNERIS, SR., Judge.

license: Public Domain

text:
    Kathy COCHRAN, individually and as natural tutrix of her minor children, Earl Cochran, III, David Cochran and Emily Cochran on behalf of the estate of Earl Cochran, Jr. v. Edward LAYRISSON, Sheriff of Tangipahoa Parish, Tangipahoa Parish Sheriff's Office, Deputy John Doe, Deputy Jane Doe, estate of Sam J. Relan, Allstate Indemnity Insurance Company, Direct General Insurance Company, et al.
    No. 2003-CA-0766.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 2003.

      Catherine Hilton, Clifford E. Cardone, Cardone Law Firm, New Orleans, LA, for Plaintiff/Appellee.
    Judy Y. Barrasso, Barrasso, Usdin, Kupperman, Freeman & Sarver, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., and Judge LEON A. CANNIZZARO, JR.
   |, DENNIS R. BAGNERIS, SR., Judge.

This is an appeal by defendant, Allstate Insurance Company, (“Allstate”) from a February 25, 2003, judgment of the trial court that denied defendant’s motion for summary judgment and awarded plaintiffs Kathy Cochran, individually and on behalf of her three minor children, Earl Cochran, III, David Cochran and Emily Cochran, (“Plaintiffs”) the “Each Accident” limit of $50,000.00 of Plaintiffs’ uninsured/underin-sured motorists coverage rather than the “Each Person” limit of $25,000.00. For the reasons stated more fully herein, we reverse.

FACTS

On October 31, 2001, Plaintiffs’ decedent, Earl Cochran Jr., died, when a truck driven by Sam Reían struck the truck he was driving head-on. Earl Cochran was traveling in the proper direction and had no liability in the accident that took his life. It is undisputed that Plaintiffs were not present at the time of the accident and did not arrive at the scene shortly thereafter.

Allstate issued Earl Cochran, Jr. a policy of insurance with Uninsured/Underin-sured Motorist insurance limits of $25,000.00 per person and $50,000.00 per accident within a policy period from September 11, 2001 through March 11, 2002. The Allstate policy defines “bodily injury” as “bodily injury, [{.sickness, disease or death.” In addition, the. Allstate policy provides, in relevant part:

Limits of Liability
1. The coverage limit shown on the
declarations page for:
a) “each person” is the maximum that we will pay for damages arising out of bodily injury to one person in any one motor vehicle accident, including all damages sustained by anyone else as a result of that bodily injury.
b) “each accident” is the maximum that we will pay for damages arising out of bodily injury to two or more persons in any one motor vehicle accident. This limit is subject to the limit for “each person.”

On December 10, 2001, Plaintiffs filed a Petition for Damages and Wrongful Death against Allstate. Plaintiffs asserted wrongful death and loss of consortium claims, alleging that, as a result of Earl Cochran, Jr.’s death, they sustained “mental pain and suffering; a loss of love and affection; loss of support; lost wages, loss of inheritance, and loss of earning capacity.”

On August 20, 2002, Allstate filed a Motion for Partial Summary Judgment, which alleged that Plaintiffs’ wrongful death and loss of consortium claims result from the bodily injury of the only person involved in the accident, Earl Cochran, Jr., and are not separate bodily injury claims in the accident. Thus, Allstate contends that only the “Each Person” limit applies and that, under the terms of the Allstate insurance policy, recovery by Plaintiffs is limited to the per person limit of $25,000.00. In Plaintiffs’ memorandum in opposition to Motion for Partial Summary Judgment, they allege that they each have a separate bodily injury claim resulting from the wrongful death of Earl Cochran, Jr. and thus, the “Each Accident” limit of $50,000.00 applies.

|3On February 25, 2003, following a hearing, the trial court signed an Amended Judgment, which denied Allstate’s motion for partial summary judgment and granted judgment in favor of Plaintiffs in the amount of the $50,000.00 “Each Accident limit.” Allstate now appeals this final judgment.

STANDARD OF REVIEW

On appeal, summary judgments are reviewed de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. The motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. See La. C.C.P. art. 966(B). The motion should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, and is now favored. La. C.C.P. art. 966(A)(2). The initial burden continues to remain with the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the nonmoving party must produce factual support sufficient to satisfy his or her evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. arts. 966. In determining whether an issue is “genuine,” courts cannot consider the merits, make |4credibility determinations, evaluate testimony or weigh evidence. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751.

DISCUSSION

On appeal, Allstate’s sole assignment of error is that the trial court incorrectly found that, under the terms of the Allstate insurance policy, the Plaintiffs’ claims triggered the application of the policy’s “Each Accident” limit rather than the “Each Person” limit. Allstate argues that the policy expressly provides that the “Each Person” limit is the maximum that it will pay “for damages arising out of bodily injury to one person in any one motor vehicle accident, including damages sustained by anyone else as a result of that bodily injury.” Allstate argues that only the decedent suffered bodily injury in the accident and that Plaintiffs’ claims result from his bodily injury, thus triggering application of only a single “Each Person” limit. Conversely, the Plaintiffs contend that their wrongful death and loss of consortium claims resulting from Earl Cochran, Jr.’s death are similar to those alleged in Crabtree v. State Farm Ins. Co., 93-0509 (La.02/28/94), 682 So.2d 736, where the Louisiana Supreme Court found that a wife who witnessed her husband’s accident had a separate Le-jeune-type “bodily injury” claim for mental anguish, entitling her to a separate “Each Person” uninsured/underinsured limit.

The Civil Code and jurisprudence provides the rules for the interpretation of an insurance contract. As stated by the Louisiana Supreme Court:

An insurance policy is an aleatory contract subject to the same basic interpretive rules as any other contract. La. Civ.Code art.1912, cmt. e; Magnon v. Collins, 98-2822, p. 6 (La.7/7/99), 739 So.2d 191, 196; Peterson v. Schimek, 98-1712, p. 4 (La.3/2/99), 729 So.2d 1024, 1028; Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). The policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. La. Civ.Code art.2045; Magnon, 98-2822 at 6, 739 So.2d at 196; Ledbetter v. Concord Gen. Corp., 95-0809, p. 3 (La.1/6/96), 665 So.2d 1166, 1169. Obviously, the initial determination of the parties’ intent is found in the insurance policy itself. La. Civ.Code art.2046. In analyzing a policy provision, the words, often being terms of art, must be given their technical meaning. La. Civ.Code art.2047. When those technical words are unambiguous and the parties’ intent is clear, the insurance contract will be enforced as written. La. Civ.Code art.2046; Magnon, 98-2822 at 7, 739 So.2d at 197. If, on the other hand, the contract cannot be construed simply, based on its language, because of an ambiguity, the court may look to extrinsic evidence to determine the parties’ intent. Peterson, 98-1712 at 5, 729 So.2d at 1029

Blackburn v. National Union Fire Ins. Co., of Pittsburgh, 2000-2668 p. 6-7 (La.4/3/01), 784 So.2d 637, 641.

After a review of Allstate’s policy, we find the language of the policy is clear that Allstate contracted to limit its liability under the uninsured/underinsured coverage to a single “Each Person” limit where only one person suffers bodily injury in the accident. The parties do not dispute that only one person, Earl Cochran, Jr. sustained bodily injury in the accident and that Plaintiffs’ wrongful death and loss of consortium claims seek damages they sustained as a result of the bodily injury to Mr. Cochran in the accident. Accordingly, we agree with Allstate that its policy limits Plaintiffs’ recovery for all claims to the single $25,000.00 “Each Person” limit.

Further, our review of Louisiana case law supports our conclusion that a single “Each Person” limit encompasses all damages resulting from bodily injury to one person in an accident. In Ferrell v. Fireman’s Fund Ins. Co., the Louisiana Supreme Court considered the issue of whether a spouse’s loss of consortium | (¡claim arising out of bodily injury to her husband in an accident falls within the “per person” bodily limits. 96-3028 (La.07/01/97), 696 So.2d 569. Specifically, the court held that “[cjoverage for loss of consortium exists solely under the per person bodily injury limits of the policy because loss of consortium is derivative of the primary victim’s injuries and not a separate bodily injury.” Id. at 576. See also Aucoin v. Doerner, 98-255 (La.App. 5 Cir. 08/25/98), 717 So.2d 1239 (where the Fifth Circuit found that the policy language, “clearly limits recovery to the maximum of $25,000 for all claims of all persons made due to the injury of one person.”); Millers Cas. Ins. Co. of Texas v. Estate of Breaux, 96-640 (La.App. 3 Cir. 03/05/97), 692 So.2d 584, 585 (where the plaintiffs, who were neither injured in nor witnessed the accident, asserted claims for mental anguish as a result of their father’s death and the Third Circuit held that the “each person” limit applied to all claims, including the plaintiffs’ claims for mental anguish); Shepard v. State Farm Mut. Auto. Ins. Co., 545 So.2d 624 (La.App. 4 Cir. 5/25/89) (loss of consortium claim is subject to per person limit because it arises out of injuries caused to another).

The Plaintiffs cite to a Louisiana Supreme Court decision, Crabtree v. State Farm Ins. Co., 93-0509 (La.02/28/94), 632 So.2d 736 for the proposition that their claims for mental anguish constitute separate “bodily injury” sustained in the accident, which entitle them to recover uninsured/underinsured benefits up to the $50,000.00 “per-aceident” limit. However, as Allstate correctly points out, the case cited by Plaintiffs is wholly distinguishable from this case.

In Crabtree, Mr. Crabtree was riding a motorcycle while his wife followed him in her automobile. Soon thereafter, an oncoming vehicle crossed the center line and struck Mr. Crabtree head-on. Mrs. Crab-tree, who witnessed the accident 17from her vehicle, rushed to her husband and found that one of his legs had been nearly severed below the knee. The issue in Crab-tree was “whether a wife’s mental anguish suffered upon witnessing an injury to her husband constitutes a separate bodily injury under an automobile insurance policy thereby entitling the wife to her own per person policy limit subject to the aggregate per accident limit.” Crabtree, 93-0509 at p. 1, 632 So.2d at 737-38. The Crabtree court found that Mrs. Crabtree’s mental anguish constituted a separate “bodily injury” because she suffered bodily injury “in the same accident” as her husband. Id. at 745.

In this case, the Plaintiffs were not involved in Earl Cochran Jr.’s accident, they did not witness the accident, and they did not arrive at the scene shortly thereafter. Thus, unlike the plaintiff in Crabtree, Plaintiffs have no Lejeune claims, which would constitute separate bodily injury claims and entitle them to recover separate “per-person” limits, up to the per-accident limit, under the policy.

For these reasons, we reverse the trial court judgment, which found in favor of Plaintiffs on the underinsured/uninsured policy issued to Earl Cochran, Jr. in the amount of the “per accident limits” of $50,000.00, and we render judgment against Plaintiffs and in favor of Allstate in the amount of the “per person” policy limit of twenty five thousand dollars ($25,-000.00).

REVERSED.

      . The trial court expressly designated the judgment as final and appealable pursuant to La. C.C.P. article 1915(B).

      . In Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990), the Louisiana Supreme Court recognized a plaintiff's right to recover damages for severe mental pain and anguish caused by witnessing serious injury to a close relation.


author: | WILLIAM H. BYRNES, III, Chief Judge.

text:
    Thomas P. LOWENBURG, Martin Adamo, Vern K. Baxter, Philip D. Carter, Bernard Gordon, Leonard Levine, Ivory S. Madison, Donetta Dunn Miller, and Maison St. Charles, L.L.C., d/b/a Quality Inn Maison St. Charles v. The COUNCIL OF THE CITY OF NEW ORLEANS and Entergy New Orleans, Inc. The Alliance for Affordable Energy v. The Council of the City of New Orleans.
    Nos. 2003-CA-0809, 2003-CA-0902.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 2003.

      Walter C. Thompson, Jr., Mark P. Sey-ler, James M. White, III, Jan K. Frankow-ski, Barkley & Thompson, L.C., New Orleans, LA, Larry M. Roedel, J. Kenton Parsons, C.J. Blanche, Luke F. Piontek, Terri M. Collins, Roedel, Parsons, Koch, Blache, Balhoff & McCollister, Baton Rouge, LA, Bob F. Wright, James Parker-son Roy, Domengeaux, Wright, Roy & Edwards, Lafayette, LA, for Plaintiffs/Appellants.
    J. Wayne Anderson, Kathryn J. Lichten-berg, Timothy S. Cragin, Alyssa Maurice-Anderson Entergy Services, Inc., Robert E. Winn, Sharon Cormack Mize, Sessions, Fishman & Nathan, L.L.P., New Orleans, LA, for Entergy New Orleans, Inc.
    Henry P. Julien, Jr., Robert P. Lombardi, The Kullman Law Firm, A PLC, Russ M. Herman, Steven J. Lane, Soren E. Gisleson, Herman, Herman, Katz & Cot-lar, LLP, New Orleans, LA, for the Council of The City of New Orleans.
    Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge TERRI F. LOVE, and Judge EDWIN A. LOMBARD.
   | WILLIAM H. BYRNES, III, Chief Judge.

STATEMENT OF THE CASE

In No. 02-14176 on the docket of the Civil District Court for the Parish of Orleans, plaintiffs, Thomas P. Lowenburg and other utility ratepayers of the defendant, Entergy New Orleans, Inc. (“ENO”), sought judicial review by appeal or by supervisory writ of certain resolutions and orders issued on August 8, 2002 by the Council of the City of New Orleans (Council) or, alternatively, for declaratory and injunctive relief. In No.2001-19258, The Alliance for Affordable Energy (Alliance) filed a petition against the Council for “Declaratory [sic] and Specific Performance” seeking a declaration that certain provisions of a 1991 agreement between the Alliance, Citizens for Safe Energy (CFSE), the Council, New Orleans Public Service, Inc. (NOPSI), ENO’s predecessor, and an individual, Gary Groesch applies to proceedings before the Council and an order requiring the Council to intervene on behalf of the petitioners in the Lowenburg lawsuit.

The underlying issue in the litigation giving rise to these consolidated appeals is allocation of costs incurred by ENO’s predecessor, NOPSI, in connection with construction of the Grand Gulf I Nuclear Power Plant. In 1985, the Federal Energy Regulatory Commission (FERC) allocated seventeen percent of pthe plant’s cost to NOPSI. FERC found that the plant had been planned and completed to meet the needs of the Middle South Utilities System, of which NOPSI was a part, as a whole and found that this was part of a reasonable system plan to diversify power sources. FERC established rates that would allow Middle South Energy, the plant’s owner, to recoup all of its Grand Gulf costs from the Middle South power companies in proportion to their relative demand for all energy generated by the Middle South system. NOPSI’s demand was nine percent of the total system demand, but since NOPSI had no nuclear plant of its own it was required to bear seventeen percent of the Grand Gulf costs in order to bear its nine percent share of the total nuclear power costs. New Orleans Public Service, Inc. v. Council of the City of New Orleans, 911 F.2d 998, 996 n. 3 (5th Cir.1990).

In 1988, the Council in the exercise of its rate regulation function determined that NOPSI’s subsequent conduct was imprudent and disallowed the imposition on ratepayers through the NOPSI rate base of approximately thirty-one percent of the costs on ratepayers through the NOPSI rate base. In order that NOPSI might avoid insolvency, the Council granted a partial rate increase so that NOPSI might recover a portion of its imprudently invested costs.

NOPSI sued the Council in state and federal court. The federal courts abstained; however the United States Supreme Court reversed and remanded the cases to the district court for consideration of the merits. New Orleans Public Service, Inc. v. The Council of the City of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). In deciding whether the district court’s abstention was correct, the issue was whether the Council proceedings were judicial in nature so as to apply an [¡¡extension of the Younger principle that absent extraordinary circumstances federal courts should not enjoin pending state criminal proceedings. The Supreme Court found the Council rate-making proceedings not to be judicial in nature, holding:

[Abstention] requires, however, that the Council proceeding be the sort of proceeding entitled to Younger treatment. We think it is not. While we have expanded Younger beyond criminal proceedings, and even beyond proceedings in-courts, we have never extended it to proceedings that are not “judicial in nature.” [Citations omitted.] The Council’s proceedings in the present case were not judicial in nature.
New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350, 369-70, 109 S.Ct. 2506, 2519[, 105 L.Ed.2d 298] (1989).

On remand, the federal district court rejected NOPSI’s argument that federal law preempted the Council’s order and stayed NOPSI’s remaining claims in light of pending state court proceedings. The United States Fifth Circuit Court of Appeals affirmed in New Orleans Public Service, Inc. v. The Council of the City of New Orleans, supra..

In the related Louisiana state court litigation, NOPSI claimed the Council abused its discretion in disallowing the “impru-dency” costs, and the Council sought to enforce its rate rule. Gary Groesch, a principal in both the Alliance and CFSE, sued the Council alleging abuse of discretion in allowing the partial rate increase. In Alliance for Affordable Energy v. Council of the City of New Orleans, 578 So.2d 949, 953 (La.App. 4 Cir.1991), this Court amended the Council’s rate order to disallow the pass through of any of the imprudently incurred costs for a total disal-lowance of $476,580,000. The Louisiana Supreme Court granted writs and, pending a decision of that court, the parties in 1991 |4confected a settlement agreement. The agreement and the Supreme Court’s decision in Gulf States Utilities v. Louisiana Public Service Commission, 578 So.2d 71 (La.1991) resulted in the Supreme Court’s vacating this Court’s decision in a consent decree. Alliance for Affordable Energy v. The Council of the City of New Orleans, 588 So.2d 89 (La.1991).

The 1991 settlement agreement incorporated by reference in the Louisiana Supreme Court’s Alliance consent decree and enacted into law by the Council in Resolution and Order No. R-91-157 is a focus of the instant litigation. The agreement was signed by Gary Groesch individually and as attorney for the Alliance and CFSE, by the Advisors to the Council and by a NOPSI vice-president. The settlement agreement allowed NOPSI to recover a part of its Grand Gulf I costs over a ten year period and fixed rates for electricity for a five year period. Mr. Groesch, the Alliance and CFSE were given $380,000 in attorney’s fees.

After having confected the settlement agreement, Messrs. Groesch and Lowen-burg concluded that their settlement could be challenged under a 1922 settlement agreement between NOPSI and the City memorialized as Ordinance No. 6822, C.C.S. that provided for a maximum rate of return of seven and one-half percent on NOPSI’s rate base. There is no evidence in the record to indicate that the Alliance, CFSE or Mr. Groesch or his succession have placed the $380,000 in attorney’s fees provided by the 1991 agreement in an escrow account or court ^registry. It does not appear that the plaintiffs seek to overturn the portion of the agreement that awarded them these significant attorney’s fees.

By the time Messrs. Groesch and Low-enburg brought a class action suit on behalf of residential and commercial utility customers for alleged overcharges, NOPSI had been succeeded by ENO. ENO filed exceptions of lack of subject matter jurisdiction and failure to exhaust legislative remedies, which the trial court overruled. This Court denied ENO’s application for supervisory review; however, the Louisiana Supreme Court remanded the writ application to this Court for consideration on the merits.

On remand, we granted ENO’s writ application, holding that the Council’s pronouncements regarding rate regulation, including the 1922 ordinances and subsequent regulations, are subject to interpretation. The Home Rule Charter of the City of New Orleans (Charter) vests the Council with original jurisdiction over matters involving regulation of utility rates. We held that the underlying subject matter of the case involves utility rate regulation, and because of the powers vested in the Council under Charter Section 3-130(1), the Council is entitled to have the opportunity to interpret their ordinances and resolutions before the matter goes to the trial court for review. We held that the trial court lacks original subject matter jurisdiction in the case and that the class plaintiffs must first present their claims to the Council. Lowenburg v. Entergy New Orleans, Inc., 99-1270 pp. 4-5 (La.App. 4 Cir. 5/17/2000), 763 So.2d 751, 753.

The concurring opinion points out that because this is primarily a rate case, that is, one concerning establishment and regulation of electric utility rates, a matter reserved to the exclusive jurisdiction of the New Orleans City Council, the | fidoctrine of primary jurisdiction suggests that this case should first be considered by the Council. In Daily Advertiser v. Trans-La., 612 So.2d 7 (La.1993), the Supreme Court relied on primary jurisdiction in holding a district could lacked subject matter jurisdiction where the crux of the dispute was a rate matter within the exclusive jurisdiction of the Louisiana Public Service Commission. Where some claims were cognizable in district court and others were within the Commission’s exclusive jurisdiction, the Supreme Court dismissed the claims for rate determinations and reparations for overcharges and deferred the remainder of plaintiffs claims until after completion of the Commission’s proceedings. See, Lowenburg, 763 So.2d at 754. The Supreme Court in the Daily Advertiser case held that it would be an inefficient use of the courts and the Commission not to have the benefit of the Commission’s expertise.

Following our 2000 Lowenburg decision, Messrs. Groesch and Lowenburg filed a complaint against ENO before the Council, alleging that since 1975 ENO and its predecessor, NOPSI, charged utility rates designed to yield a rate of return in excess of that set by the 1922 ordinance. Plaintiffs asked the Council to investigate the charges, interpret the applicable ordinances and resolutions and order a refund of NOPSI/ENO’s alleged overcharges. The Council by Resolution No. R-01-228 ordered the parties to file briefs outlining their respective positions, and on August 16, 2002, established a discovery schedule and set an evidentiary hearing to address factual and legal issues in dispute.

One of the stipulations of the 1991 settlement agreement requires the parties to intervene as a litigant in any forum in which the efficacy, propriety, legality or enforceability of any provision of the 1991 settlement might be challenged. Since the crux of the pending Council proceedings was a claim that the agreement |Yviolated the 1922 rate resolution, the Alliance was required to become a party to the proceedings.

In response, Messrs. Groesch and Low-enburg filed procedural motions before the Council. The first asked the Council to recuse itself based on alleged bias, contending that the Council having signed the 1991 settlement agreement, it was bound actively to support the agreement and, implicitly could not find, as plaintiffs suggested, that the agreement violated the 1922 rate ordinance. The second procedural motion sought to disqualify the Council’s advisors, the law firm of Sullivan & Worcester, LLP (S & W) based on an alleged conflict of interest and to conduct discovery about the advisor’s alleged conflicts. Plaintiffs claimed that since ENO claimed an adverse decision would force the company into insolvency, S & W’s representation of institutional clients who directly or beneficially own a substantial stake in ENO’s parent company’s stock creates a conflict of interest. Furthermore, plaintiffs claimed that because some of the same lawyers advised the Council concerning rate matters, those lawyers now stand to gain or lose by a decision in the Council proceeding. Since plaintiffs contend that any change in the effect of the 1922 ordinance required enactment of an amending ordinance, these lawyers’ alleged failure to suggest enactment of a specific amendment to the 1922 ordinance could expose them to a negligence claim. The plaintiffs’ third claim against S & W arises from the fact that a member of the firm, Clinton Vince, prior to his association with the firm, signed the 1991 settlement agreement on behalf of the Council’s advis-ors. Furthermore, plaintiffs allege bias because Mr. Vince, in a letter to Council consultant Professor Dane Ciolino dated June 27, 2002, expressed the opinion that plaintiffs’ case is without merit. In the District Court hearing, | ^plaintiff's added a claim that S & W should be disqualified because the attorneys are not licensed to practice law in Louisiana.

The Council denied plaintiffs’ procedural motions, finding that it is the sole body authorized to hear rate regulation cases and that, based on Professor Ciolino’s review of the facts, there was no conflict of interest. Resolution and Order No. R-02-484 of August 8, 2002.

Plaintiffs then filed a petition in Civil District Court seeking review of these Council actions. The district court dismissed the petitions on exceptions of lack of subject matter jurisdiction, no cause and no right of action. The Lowenburg plaintiffs and the Alliance appeal the February 10, 2003, judgment of the Civil District Court sustaining the Council’s exceptions of lack of subject matter jurisdiction, no right and no cause of action. The trial court denied as moot the plaintiffs’ motion to stay the regulatory adjudicatory proceeding before the City Council during the pendency of the judicial appeals. The appeals were consolidated.

ENO answered the appeals, seeking review of the February 10, 2003 judgment in the Lowenburg suit denying as moot ENO’s exception of res judicata.

We affirm.

FIRST ASSIGNMENT OF ERROR: The judgment is contrary to Article 5, § 16(B) of the Louisiana Constitution, vesting district courts with appellate jurisdiction as provided by law. Section 3-130(7) of the Home Rule Charter of the City of New Orleans expressly grants appellate jurisdiction to review orders of the City Council to the Civil District Court for Orleáns Parish. |9 SECOND ASSIGNMENT OF ERROR: The judgment is contrary to Article 1, § 12 of the Louisiana Constitution guaranteeing the right to due process, including the right to a fair trial in a fair tribunal. The judgment below forces appellants to appear and participate in a regulatory adjudicative proceeding with none of the due process rights afforded ratepayers in other regulatory fora.

Article 5, § 16(B) of the Louisiana Constitution provides that district courts shall have appellate jurisdiction “as provided by law.” Plaintiffs rely on Section 3-130(7) of the Charter, which provides:

The orders of the Council shall be enforced by the imposition of such reasonable penalties as the Council may provide, and any party in interest may appeal from orders of the Council to the Civil District Court for the Parish of Orleans by filing suit against the Council within thirty (30) days from the date of the order of the Council, and not thereafter.

Accepting plaintiffs’ argument that there is a right to judicial review of regulatory orders, this Court is faced with essentially the same issue of prematurity as that with which we dealt in the 2000 Lowenburg suit. Simply stated, the case is still in the same basic posture we discussed in May of 2000. The council has not yet been able fully to exercise its right to make an initial interpretation of its resolutions and ordinances with respect to the utility rates in question. The same constraints militating against piecemeal litigation and appeal in the 2000 case are evident in this case.

We agree with plaintiffs that the Charter and Constitution provide for judicial review of certain legislative rulings made by the Council; however, a final ruling has not yet been made and we find that in the interest of justice to all the Imparties and judicial economy, procedural matters such as those presented in the instant appeal should be dealt with as part of a final appeal on a complete record. Such a record was not before the district court nor is it before us. The district court properly rejected plaintiffs’ attempt to circumvent this Court’s ruling in May of 2000 and required plaintiffs to exhaust their legislative remedies prior to applying for review by the courts.

Plaintiffs seek to characterize the Council’s process as judicial, citing cases arising from administrative agencies for the proposition that courts must consider the underlying nature of the administrative proceedings to determine whether the power being exercised by the agency is legislative or judicial.

A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making new rules to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule for the future, and therefore is an act legislative and not judicial in kind.
Prentiss[Prentis] v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67[, 53 L.Ed. 150] (1908). See also, Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 65 S.Ct. 829[, 89 L.Ed. 1206] (1945).

The Supreme Court then noted that the Louisiana court’s review of the Council’s actions was a judicial act, that is, not the making of a rule for the future but the declaration of NOPSI’s rights vis-a-vis the Council on present or past facts and under laws supposed already to exist. Since the court found that the state court review is not an extension of the legislative process, NOPSI’s pre-emption claim was ripe for federal review when the Council’s order was entered. New Orleans Public Service, Inc. v. The Council of the City of New Orleans, 491 U.S. at 372, 109 S.Ct. at 2520. Furthermore, the high court noted that challenges to legislative action are premature prior to passage of the final legislative act. Id.

Applying this logic, while the district court’s review of Council action is undoubtedly judicial in nature, the Council action itself is clearly legislative. While the proceedings through which the Council establishes utility rates have similarities to judicial proceedings, and are referred to informally as “rate cases”, they remain essentially legislative. Indeed, the separation between the concepts of legislative and judicial actions is so significant that the United States Supreme Court has held that even a United States Senate impeachment “trial”, presided over by the Chief Justice of the Supreme Court is not in the nature of a judicial trial with its attendant constitutional and procedural requirements. Nixon v. United States, 506 U.S. 224, 229, 113 S.Ct. 732, 736, 122 L.Ed.2d 1 (1993). We conclude similarly that the Council’s rate-making function is legislative and not judicial in nature.

We look also to the nature of the Council itself and its derived powers and likewise conclude that the proceedings in question are legislative. The Council derives its power from the Charter, and the Article III, § 3-101 of the Charter clearly defines those powers as the City’s legislative powers. In Article IV, § 4-101 the Charter vests all administrative and executive powers in the Executive Branch. The Louisiana Constitution vests judicial powers in the Louisiana Supreme Court, courts of appeal, district courts, and other courts authorized therein. La. Const. Art. 5, § 1. Branches of government do not derive their powers from the nature of the relief sought before them. The fact that the Council engages in hearings and enacts orders does not make the Council a judicial body.

1 ^Plaintiffs alternatively seek to characterize the Council as an agency and to apply to it rules of construction relating to agencies. However, this argument has a faulty premise. Agencies are part of the executive branch, and may exercise quasi-executive, quasi-legislative and quasi-judicial functions. Thus, it becomes relevant to ascertain in various contexts the nature of the function being performed by the agency. The Council is a legislative body exercising legislative functions.

Plaintiffs rely on Matter of Rollins Environmental Services, Inc., 481 So.2d 113 (La.1985). However, Rollins was a suit brought under the Administrative Procedures Act, applicable to an agency of the Louisiana executive branch of government. The Louisiana Supreme Court recognized that § 49:951(2) of the Act specifically exempts the legislature or any branch, committee, or officer thereof, or of any political subdivision of the State, such as the City of New Orleans from the ambit of the Act. Rollins, supra, 481 So.2d at 118. Plaintiffs do not cite and our independent research has not found any decision supporting their claim of due process violation based on bias by a legislative body.

In Brinkhaus v. Senate of the State of Louisiana, 95-0647 pp. 4-7 (La.App. 1 Cir. 4/18/95), 655 So.2d 394, 396-98, two Louisiana senators sued in district court seeking declaratory judgment as to whether certain bills had been introduced properly. Jurisdiction in the trial court was not questioned; however, on appeal the court vacated the district court judgment for lack of subject matter jurisdiction:

La. Const. Art. II, §§ 1 and 2 divide the governmental powers of the State of Louisiana into three separate branches and further provide that “no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.”
Ill
The basis of Senator Nunez’s ruling is the application or interpretation of La. Const. Art. Ill, § 2(A)(2). This suit prays that “a declaratory judgment issue herein determining whether or not the proposed bills can be properly introduced.” Or, stated another way, this suit asks the courts for all intents and purposes to overrule the ruling of Senator Nunez, and we must assume if Senator Nunez’s ruling had been appealed to the Senate and sustained, we would be asked to overrule the Senate.
The ruling of Senator Nunez which is the basis of the “controversy” and the resolution thereof is a matter which properly belongs within the legislative branch of the government, and in this case within the Senate. Though this suit is couched in terms of interpreting a particular constitutional provision, the purpose of the suit is to correct an alleged erroneous procedural ruling of the President of the Senate. The legislative branch has the constitutional authority to adopt rules for the operation of each house of the legislature. The Senate has adopted rules of procedure including a means of appealing adverse rulings. For the judicial branch to entertain such a suit, the judicial branch would be exercising a power belonging to the legislative branch of state government, and this we cannot and will not do. La. Const. Art. II, § 2.
* * *
In oral argument defendants-appellants argue that the courts undertook to interpret the constitution and advise the legislative branch in Jones v. Board of Ethics for Elected Officials, 605 So.2d 1064 (La.1992) and Henry v. Edwards, 346 So.2d 153 (La.1977). In each of these cases, the legislation at issue had already been enacted and w as then being challenged on constitutional grounds. In Jones the issue was the constitutionality of an act of the legislature based on whether an amendment was germane, whereas in Henry the issue was the constitutionality of gubernatorial veto power vis a vis substantive language in the general appropriations bill.
_biv
If we entertain such litigation as presently before us, the judicial branch will find itself involved in the daily operations of the legislative branch settling “controversies” between the presiding officers of either house and the members thereof as well as controversies between legislators themselves. We would end up as a “super” senate or a “super” house of representatives, and the judicial branch would be in violation of Art.. Ill, §§ 2 and 7(A) of the Louisiana Constitution. We are convinced that under the Louisiana Constitution this matter properly belongs in the legislative branch of government. [Emphasis added.]

The Council is in a similar position to the state legislature with respect to plaintiffs’ claims in the instant case. It has the exclusive power to establish its procedures, and we find no evidence in the record that the procedures it has established with respect to its consideration of plaintiffs’ request for rescission of the 1991 settlement agreement stand in violation of any constitutional or general legal provision.

Plaintiffs claim that the Council proceedings fail to provide for their judicial due process rights. However, the courts have recognized throughout the last century that legislative and judicial due process may require varying procedures. For example, an individual has limited constitutional rights to be heard when a legislative body considers issues of general public application. See, Bi-Metallic Investment Company v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915); E & E Hauling, Inc. v. Forest Preserve District Of DuPage County, 613 F.2d 675, 682 (7 Cir.1980); Dean v. Guste, 414 So.2d 862, 864 (La.App. 4 Cir.1982). Of, course, whether the proceeding is deemed administrative, legislative or judicial, it is clear that in the instant case the proceeding is incomplete, and a final, reviewable order, judgment, resolution or decree has not been entered.

|1fiThe City Council is proceeding in a deliberate manner to consider the plaintiffs’ attack on the settlement agreement negotiated and signed by plaintiffs and Mr. Groesch in 1991. During, the course of the Council proceedings, the orders at issue in this appeal, and, doubtless other orders, have been and will be issued. Neither the district court nor this Court will countenance the piecemeal appeal of each order of the City Council. Such a procedure would be contrary to the specific opinion of this court in the 2000 Lowenburg case and would violate the basic principle of judicial economy.

Plaintiffs argue that the Council and its advisors cannot be fair and impartial because they are bound by the provisions of the 1991 settlement agreement to uphold the agreement against the plaintiffs’ present attack. We find nothing in the record to support such a finding. For this Court to determine that another branch of government has pre-determined a legislative matter and is not in a position to consider fairly the issues presented to it by plaintiffs requires credible evidence. Plaintiffs have not supplied such evidence. To the contrary, the record shows that the Council has conducted and will continue to conduct hearings on the issues plaintiffs raised. The Council has not indicated in any way that it will not consider plaintiffs’ arguments concerning the effect, vel non, of the 1922 resolution on the 1991 settlement agreement. Nor is there any evidence that the Council has interpreted the 1991 agreement as prohibiting it from consideration of the issues raised by plaintiffs and seeking the Council’s legislative action to rescind the 1991 agreement. Furthermore, the Council has set a discovery schedule and evidentiary hearing in order that all the facts relevant to its ultimate legislative determination will be brought forth. These are not the actions of a body that has pre-determined |1fithe outcome of its procedure. On the facts of record we cannot find any evidence prejudice against plaintiffs on the part of the Council.

These assignments of error are without merit.

THIRD ASSIGNMENT OF ERROR: The judgment condones the City Council’s unlawful attempt to usurp power reserved to the courts to regulate the practice of law in this State.

The Louisiana Supreme Court has exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar. The sources of this power are the Supreme Court’s inherent power emanating from the constitutional separation of powers, the traditional inherent and essential function of attorneys as officers of the courts and the Supreme Court’s exclusive original jurisdiction of attorney disciplinary proceedings. Succession of Wallace, 574 So.2d 348, 350 (La.1991). See also, Bester v. Supreme Court Committee on Bar Admissions, 2000-1360 (La.2/21/01), 779 So.2d 715.

Neither the district court nor this Court is the proper forum in which to raise plaintiffs’ complaints concerning Sullivan and Worcester and its member attorneys.

This Court, therefore, lacks jurisdiction to consider this assignment of error.

CONCLUSION AND DECREE

For the foregoing reasons, we affirm the judgment of the trial court and assess the costs of this appeal against the appellants. Because of our disposition of the main appeal, ENO’s answer to the appeal is dismissed as moot.

AFFIRMED.

      . Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

      . In the Gulf States case, the Louisiana Supreme Court upheld action by the Commission reducing a similar imprudence disallow-anee because its consultants had determined the reduction was necessary to allow the utility to remain financially viable. The court found this action to have been reasonable and neither capricious nor arbitrary. Gulf States Utilities, 578 So.2d at 96-97.

      . On September 5, 1991, the Council by Resolution (Lying over) No. R-91-157 (as amended) approved the terms of the settlement. The resolution was adopted on October 3, 1991 by unanimous vote of councilmen Bois-siere, Clarkson, Giarrusso, Singleton and Wilson, with Councilmen Jackson and Taylor absent. Messrs. Groesch and Lowenburg were present when the Council passed the resolution.

      . Mr. Groesch was the attorney for the Alliance and CFSE and appeared individually on his own behalf.


author: h EDWIN A. LOMBARD, Judge.

text:
    Tirrell L. SELVAGE v. GAINEY TRANSPORTATION SERVICE, INC., Aero Bulk Carrier, Inc., Glenn Anderson, Individually and United States Fidelity & Guaranty Insurance Company.
    No. 2003-CA-0959.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 2003.

      Gothard J. Reck, Hugh C. Uhalt, Uhalt & Reck, New Orleans, LA, for Plaintiff/Appellant.
    Gregory S. LaCour, Lawrence J. Ernst, Christovich & Kearney, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   h EDWIN A. LOMBARD, Judge.

This appeal is from a summary judgment in favor of defendants Aero Bulk Carrier, Inc., Glen Anderson, individually, and United States Fidelity & Guaranty Insurance Company, and against plaintiff, Tirrell L. Selvage. We affirm the judgment of the trial court.

Relevant Facts and Procedural History

On March 29, 1999, at approximately 4 p.m., plaintiffi'appellant Tyrell Selvage (Selvage) rear-ended a truck leased by defendant/appellee Aero Bulk Carrier, Inc. (Aero Bulk), and driven by defendani/ap-pellee Glenn Anderson (Anderson) as the truck negotiated a turn on U.S. Hwy 90. Selvage filed this lawsuit on May 24, 1999, against defendants Anderson, his employer, Aero Bulk, and Aero Bulk’s insurer, United States Fidelity & Guaranty Insurance Company (U.S.F. & G.), alleging that his injuries were a result of Anderson’s negligence.

After two mistrials were declared, the case was transferred to a different division of Civil District Court on May 24, 2002, and the defendants moved for summary judgment. After the motion hearing on December 13, 2002, the trial 12court found that the plaintiff raised no issue of material fact as to whether the defendant was contributorily negligent in causing the accident at issue and, accordingly, granted summary judgment in favor of the defendants. The plaintiff challenges this judgment on appeal.

Discussion

On appeal, motions for summary judgment are reviewed de novo. Spicer v. Louisiana Power & Light Co., 97-2406 (La.App. 4th Cir.4/8/98); 712 So.2d 226, 227. Because summary judgment is now favored in Louisiana, the rules regarding such judgments should be liberally applied. Id. Summary judgment is appropriate when there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966C(1). An issue is genuine if reasonable person could disagree. Smith v. Our Lady of the Lake Hospital, 93-2512 (La.7/5/94), 639 So.2d 730, 751. When, as in this case, the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, the burden shifts to the nonmoving party to produce factual support sufficient to satisfy his evidentiary burden at trial. La. Code Civ. Proc. art. 966(c)(2). The failure of the non-moving party to meet this shifting burden and produce evidence of a factual dispute mandates the granting of the motion. Davis v. Bd of Sup’rs of La. State. Univ., 97-0382 (La. 4th Cir.3/18/98), 709 So.2d 1030, 1034.

The defendants contend that they are entitled to summary judgment because based upon the undisputed facts of this case the plaintiff is unable to produce any evidence to support his claim for negligence. Negligence is determined in Louisiana under the duty-risk analysis. The determination of liability in a |3negligence case usually requires proof of five different elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to a specific standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). Boykin v. La. Transit Co., Inc., 96-1932 (La.3/4/98), 707 So.2d 1225, reh’g denied, (4/24/98);.

In opposition to summary judgment, the plaintiff argued that all motions for summary judgment were waived because prior to the case being transferred to a different division of civil district court, an order had been issued with a diseovery/motion cut-off date of May 31, 2001, that there were substantial material issues involving the comparative fault of the parties, that defendant Aero Bulk was responsible for its negligent hiring of Anderson, and that defendant Aero Bulk was negligent for failing to have a policy for predesignating an alternative route for the transportation of hazardous cargo. On appeal, the plaintiff-appellant contends that summary judgment is inappropriate in this case because there are multiple issues of genuine material fact, the trial judge erroneously made credibility determinations, and the trial judge failed to resolve all reasonable inferences in favor of the non-movant plaintiff.

After de novo review of the record, we find that the following facts are undisputed. On the day of the accident, Anderson was traveling on Highway 90, a four lane highway divided by a median, to the Texaco plant to deliver a cargo of liquefied petroleum gas. After passing through the junction of Louisiana Highway 635 and Highway 90, Anderson saw the plant on his left and realized that he had missed the turn to the plant. Accordingly, Anderson activated his left turn signal [4and began to slow his vehicle down. He proceeded in this manner in the left lane until he reached a median crossing in the road to make a legal u-turn back to the Texaco plant. Although the weather was dear and the road unobstructed, the plaintiff rear-ended defendants’ vehicle as Anderson was negotiating the turn through the median.

We find that the plaintiff has failed to come forward with any evidence that creates a genuine dispute as to a material fact. First, the plaintiff argues that the credibility of Anderson is at issue because he had been untruthful about a suspension of his driving privileges in his employment application with Aero Bulk. There is, however, no dispute that Anderson was making a legal turn when the plaintiff rear-ended him and therefore Anderson’s credibility is not at issue and there is no basis for a negligent hiring claim.

Next, the plaintiff contends that there is a genuine dispute as to whether defendant’s u-turn at a median on heavily trafficked Highway 90 was an unsafe, dangerous act because in accordance with the Federal Motor Carriers Safety Act, 49 §C.F.R. 397.67, defendant Aero Bulk had a duty to pre-designate an alternative route of travel. Plaintiffs reliance on the federal statute as a basis for this argument is misplaced. Pursuant to subsection (d) of 49 C.F.R. §397.67, the predesignation of an alternative route is required only when the motor carrier is transporting class 1 explosives as defined in 49 C.F.R. §173.50. Liquefied petroleum gas is not an explosive for purposes of the statute and, accordingly, the statute is inapplicable.

Conclusion

After de novo review, we find that the defendants met their burden on motion for summary judgment of showing an absence of factual support for |splaintiffs claim. Because the plaintiff failed to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, summary judgment is appropriate in this case. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . Plaintiff initially named Gainey Transportation Service, Inc. (Gainey), the owner of the truck, as defendant, but based upon the plaintiffs motion, Gainey was dismissed as a defendant by order signed February 23, 2001.

      . In support of their motion, the defendants submit the affidavits of two eyewitnesses and deposition testimony of the plaintiff, defendant Anderson, and Douglas Robert, plaintiff's expert.