author: I «SOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Jamie SIMMONS.
    No. 03-KA-1458.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Cameron M. Mary, Vincent Paciera, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli Herrie-Castillo, Louisiana Appellate Project, Marrero, LA, for Defen-dani/Appellant.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   I «SOL GOTHARD, Judge.

Defendant, Jamie Simmons, was convicted of two counts of armed robbery in violation of LSA-R.S. 14:64, and was sentenced to twenty years at hard labor on each count. Pursuant to a multiple bill filed by the State, the court vacated the twenty year sentence as to the second conviction, and imposed an enhanced sentence of imprisonment .without benefit of parole, probation, or suspension of sentence. Defendant now appeals from his conviction and sentence.

FACTS

Michelle Navarro testified that, on the night of May 7, 2002, she was employed as a clerk at Video Plus, a video store on Barataría Boulevard in Marrero. At 10:00, Ms. Navarro and a co-worker, Twee Nguyen, were alone in the store, with the exception of two men who appeared to be customers. One of the men approached Ms. Navarro to request a title he said he was unable to find. Ms. |,«Navarro located the videotape and handed it to Ms. Nguyen, who walked toward the cash register to ring up the rental.

One of the two men walked around to the employee side of the checkout counter, and Ms. Navarro told him he was not allowed to be there. The man told her, ‘You need to get to the back of the store right now.” Ms. Navarro turned to see that the second man was pointing a gun at Ms. Nguyen, and' Ms. Nguyen was putting money from the cash register into a bag. Ms. Navarro walked to the back of the store as directed. As she did so, she activated a panic alarm she was wearing on her person. Police arrived two minutes later, but the perpetrators had already left the scene.

At trial, Ms. Navarro identified defendant as the man who ordered her to the back of the store. She testified that defendant did not have a gun at the time of the robbery.

On May 20, 2002, Brandy Byrum and Leah Souvinette were employed as clerks at a Baskin-Robbins ice cream parlor on Lapalco Boulevard in Gretna. Ms. Souvi-nette testified that, at 6:20 p.m., defendant entered the store with a gun in his hand. He said, “This is a robbery. Don’t touch anything. If ya’ll touch anything, I’m going to shoot ya’ll one by one.” Defendant ordered Ms. Souvinette to give him money in the store’s cash register. She gave defendant all the money in the register.

Ms. Byrum testified that police investigated the incident. She informed officers that the' store was equipped with a video surveillance camera. Detective Jeffrey Rodrigue of the Jefferson Parish Sheriffs Office testified that the robbery was depicted on videotape. Rodrigue further testified that still photographs of the perpetrator were taken from the videotape and were shown on local television newscasts and in the newspaper. Based on information obtained from the public, he compiled two photographic lineups that included pictures of defendant.

|4On May 22, 2002, Detective Rodrigue presented a photographic lineup to Ms. Byrum and Ms. Souvinette. They both identified defendant as the man who robbed them at Baskin-Robbins. On the same day, the detective presented Ms. Navarro with a photographic lineup. She identified defendant as one of the perpetrators of the Video Plus robbery.

Defendant surrendered to police on June 3, 2002. Detective Rodrigue advised defendant of his rights, and defendant said he wished to waive his rights and make a statement. Defendant asked that he be allowed to speak with the assistant district attorney who would be handling his case.

Walter Amstutz, a Jefferson Parish assistant district attorney, testified that he met with defendant on defendant’s request. Amstutz advised defendant of his rights, and defendant admitted to his involvement in the robberies at Video Plus and Baskin-Robbins.

ANALYSIS

In his first allegation of error, the defendant argues that the trial court erred in denying the motion to sever. Defendant argues the jury was adversely influenced by the state’s presentation of both counts at the same trial.

The record reflects that the bill of information filed by the Jefferson Parish District Attorney charged defendant with three counts of armed robbery. Thereafter, defendant filed a Motion to Sever, in which he moved the court to sever the three armed robbery charges for trial. The state agreed to sever count two, and to proceed to trial only on counts one and three. The court approved the severance of count two, and denied defendant’s Motion to Sever as to the remaining two counts, which form the basis for this appeal.

In this appeal, defendant complains that the offenses charged in counts one and three were not sufficiently similar to justify a joint trial. Defendant further argues that he was prejudiced by the join-der of the two offenses for trial in that the | ¿imy’s decision as to each charge was tainted by evidence of the other offense. Defendant moves this Court to vacate his convictions and to remand the matter for a new trial.

LSA-C.Cr.P. art. 493, pertaining to the joinder of offenses, 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.

Even where multiple offenses may be joined under Article 493, LSA-C.Cr.P. art. 495.1 provides:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

A defendant has a substantial burden of proof when he alleges a prejudicial joinder of offenses. State v. Lyles, 03-141, p. 8 (La.App. 5 Cir. 9/16/03), 858 So.2d 35, 44. A motion to sever is addressed to the sound discretion of the trial court, and the court’s ruling should not be disturbed on appeal absent a showing of an abuse of discretion. State v. Deruise, 98-0541, p. 7 (La.4/3/01), 802 So.2d 1224, 1232, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001); Lyles, 03-141 at p. 9, 858 So.2d at 44-45.

In determining whether two charged offenses should be severed for trial, the trial 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 his various defenses; (4) whether the crimes charged would be used by the jury to infer a IfiCriminal disposition; and (5) whether the charging of several crimes would make the jury hostile. Demise, supra.

Since defendant was tried on only two counts, it is unlikely that the jury was confused by the state’s evidence. The evidence adduced at trial was uncomplicated. In both instances, two female store clerks were robbed at gunpoint. The victims testified chronologically, and each victim testified only as to one offense. The crime scenes were distinguished from each other through the use of photographs. A separate photographic lineup was used for each of the two offenses, and three of the four victims made in-court identifications of defendant. Moreover, the jury was presented with a separate verdict sheet for each count. Each verdict sheet listed the names of the two alleged victims of that offense. See, State v. Welch, 03-905, p. 3 (La.App. 5 Cir. 11/25/03), 864 So.2d 204, 208.

Defendant argues that he was prejudiced in that the jury used the evidence as to one crime to infer guilt as to the other crime, and the evidence was used to invoke hostility toward him. He points out that he admitted his involvement in the Baskin-Robbins robbery to Detective Rodrigue, but that he denied having participated in the Video Plus robbery. However, the evidence shows that defendant admitted to both robberies during his interview with assistant district attorney Walter Amstutz.

Considering the simplicity of the facts, the orderly presentation of evidence, the positive identification of defendant by all of the victims, and defendant’s own admissions, we do not find that defendant was prejudiced by the joinder of the two offenses. This allegation of error lacks merit.

In his second assignment of error, defendant alleges that his habitual offender sentence of life imprisonment is unconstitutionally excessive. He argues that the trial court failed to take various mitigating factors into account in imposing sentence.

|7The Louisiana Supreme Court has held that the applicable sentencing scheme is the one in effect at the time the offense is committed. State v. Sugasti 01-3407, p. 5 (La.6/21/02), 820 So.2d 518, 521. On May 20, 2002, when the instant offense was committed, LSA-R.S. 15:529.1(A)(1)(b)(ii) provided:

If the third felony and two of the prior felonies are felonies defined as a crime of violence - under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense,' or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

The defendant’s two prior convictions were for simple robbery and possession of cocaine with intent to distribute. The foregoing subpart mandated that the trial court impose a life sentence. Those offenses, as well as the underlying offense, are crimes of violence.

The Eighth Amendment' to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 97-1906, p. 6 (La.3/4/98), 709 So.2d 672, 676; State v. Dupre, 03-256, p. 8 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, 153. The Louisiana Supreme Court has recognized, however, that a mandatory minimum sentence under the Habitual Offender Law may be reviewed for constitutional excessiveness. Johnson, supra.

A court may depart from the statutory minimum sentence if it finds clear and convincing evidence in the record that rebuts the presumption of constitutionality. Id.; State v. Harbor, 01-1261, p. 5 (La.App. 5 Cir. 4/10/02), 817 So.2d 223, 226, writ denied, 02-1489 (La.5/9/03), 843 So.2d 388. The burden is on the defendant to rebut the presumption of constitutionality by showing he is exceptional, i.e., 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 each case. Johnson, supra.

If the trial court finds clear and convincing evidence that justifies a sentence below the mandatory minimum, the court cannot impose whatever sentence it feels is appropriate. Rather, the trial court must impose the longest sentence that is not constitutionally excessive. State v. Johnson, 97-1906 at p. 8, 709 So.2d at 677; State v. Simmons, 02-960, p. 6 (La.App. 5 Cir. 1/28/03), 839 So.2d 239, 244, writ denied, 03-0841 (La. 10/31/03), 857 So.2d 473. The Supreme Court has cautioned that downward departures from mandatory sentences should only be made in rare cases. State v. Johnson, 97-1906 at p. 8, 709 So.2d at 676-677.

Defendant herein did not attempt to demonstrate below any exceptional circumstances to support a departure from the statutory minimum. In fact, he did not make any argument in the district court with regard to a downward departure in sentencing. He has, therefore, failed to carry his burden under Johnson. We have no basis for finding that the habitual offender sentence is excessive. This assignment of error lacks merit.

We have reviewed the record for errors patent, pursuant to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and note the following.

While the state alleged in its habitual offender bill of information that defendant pled guilty to four counts of armed robbery on August 19, 1991, the documentary evidence presented at the habitual offender hearing shows that defendant actually pled guilty to the lesser offense of simple robbery. Neither | defendant nor the judge noted the error at the time of the hearing, and defendant does not raise it on appeal.

We find that the error is harmless. The provisions of the Habitual Offender Law mandating a life sentence for third offenders applied to defendant regardless of whether his prior conviction was for armed robbery or simple robbery. Both offenses are felonies, and both are defined as crimes of violence under LSA-R.S. 14:2(13). The habitual offender bill provided the correct date and case number for the predicate conviction, and it was apparent to which predicate conviction the bill referred. See, State v. Stevenson, 02-769 (La.App. 5 Cir. 1/28/03), 839 So.2d 340, writ denied, 03-0833 (La.10/31/03), 857 So.2d 472.

The record fails to reveal any patent error which requires our attention.

For the above discussed reasons, the defendant’s conviction and sentences are affirmed.

AFFIRMED.

      . Although the multiple bill alleges that the defendant pled guilty to four counts of armed robbery, the documentary evidence shows' that the defendant actually pled guilty to the lesser offense of simple robbeiy. See Error Patent review discussion, infra.


source: Caselaw Access Project

author: hAMY, Judge.

license: Public Domain

text:
    LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT v. Donald CHAUVIN, et al.
    No. 04-82.
    Court of Appeal of Louisiana, Third Circuit.
    June 9, 2004.

      Richard D. Chappuis, Jr., Kristen Broussard Menard, Voorhies & Labbe, Lafayette, LA, for Defendant/Appellee: Lafayette City Parish Consolidated Government.

      M. Candice Hattan, Lafayette, LA, for Defendant/Appellee: Lafayette Municipal Fire & PoliceCivil Service Board.
    Louis L. Robein, Jr., Andrea J. Wilkes, Robein, Urann & Lurye, Metairie, LA, for Defendant/Appellant: Donald Chauvin.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   hAMY, Judge.

The defendant firefighter was demoted and suspended for sixty calendar days after an internal affairs investigation of the “blue flu” or “sickout” of 2000. The defendant appealed to the Lafayette Municipal Fire and Police Civil Service Board, who conducted a hearing on the matter and overturned the discipline imposed. The Lafayette City Parish Consolidated Government appealed the decision of the civil service board to the district court, who reversed, reinstating the defendant’s punishment. The defendant now appeals the judgment of the district court on the basis that his punishment was not imposed in good faith and for just cause. For the following reasons, we reverse.

Factual and Procedural Background

According to the record, the events forming the basis for the present appeal stemmed from an alleged “blue flu” or “sickout” that occurred between March 31 and April 3, 2000, when 141 of Lafayette’s 194 firefighters called in sick. At this time, Donald Chauvin, defendant herein, was an engineer with the Lafayette Fire Department and was also president of the Lafayette Parish Firefighters’ Association (hereinafter “the Union”). The record indicates that Mr. Chauvin did not call in sick during this particular weekend; instead, he worked during his assigned shift on March 31 and worked overtime on a shift that was understaffed due to absences.

On April 3, 2000, Lafayette Fire Chief Robert Benoit scheduled a meeting with Mr. Chauvin and his chain of command within the fire department. The record reflects that at this meeting, Mr. Benoit asked Mr. Chauvin about the “sickout” and, Lmore specifically, whether it was related to a collective bargaining agreement. In response, Mr. Chauvin explained that near the end of March 2000, a Baton Rouge newspaper printed an excerpt from a memorandum in which Mr. Benoit proposed that the fire department could save $500,000 if it did not fill twenty vacancies within the department and if it did not offer two promotions. Mr. Chauvin stated that after this article was published, the Union received numerous phone calls from concerned members. In turn, the Union attempted to schedule a conference with members of the Lafayette City Council before the council’s next meeting. According to the record, Mr. Chauvin explained that although the Union had been assured that it would have an audience with the administration, days passed without its occurrence. Mr. Chauvin indicated that he thought that building frustration among firefighters regarding staffing, lack of communication, working conditions, and pay precipitated some to call in sick on Friday, March 31, 2000, and that absenteeism increased thereafter. The record reflects that when an officer in the chain of command inquired as to how long the “sickout” would last, Mr. Chauvin told him that it was not an organized Union activity; however, he assumed that it would end that day, April 3, because each of the respective crews would have had an opportunity to respond to the situation. Mr. Benoit then asked Mr. Chauvin if he might contact the particular person responsible for the “sickout” so that he might ask them to stop, and he further inquired as to whether Mr. Chauvin was the responsible party. The record indicates that Mr. Chauvin responded that he had not organized the “sickout,” and he reiterated his opinion that because all three shifts had expressed their frustration, the “sickout” was over as of April 3.

| ¡¡Mr. Benoit subsequently initiated an internal affairs investigation into the alleged “sickout,” conducted by members of the Lafayette Police Department. Mr. Chauvin was interviewed as part of the investigation on April 19, 2000. According to the record, investigators asked Mr. Chauvin if he had any information as to why so many firefighters had called in sick during the weekend of March 31 April 3, 2000. Mr. Chauvin responded that he did not. Mr. Chauvin was then asked if he knew, before March 31, that the “sickout” would occur. Again, the record indicates that Mr. Chauvin responded in the negative. Moreover, Mr. Chauvin was asked if anyone had informed him of the reason why large numbers of firemen called in sick during the weekend in question; Mr. Chauvin stated that they had not.

The record contains a letter to Mr. Chauvin, dated June 25, 2001, in which Mr. Benoit set forth the punishment for Mr. Chauvin’s actions in the wake of the “sickout. In this letter, Mr. Benoit explained that there were “several discrepancies” between Mr. Chauvin’s statements to the internal affairs investigators and his statements during the earlier meeting with his chain of command. He observed that during the meeting with the chain of command on April 3, 2000, Mr. Chauvin indicated that he was present in his capacity as Union president in order to bring the Union’s concerns before fire department officials. Mr. Benoit pointed out that according to Mr. Chauvin, he did not offer this same information during the internal affairs investigation because he felt that this information was his opinion, not the factual information that the internal affairs investigation was seeking. Mr. Benoit concluded that Mr. Chauvin had violated Lafayette Consolidated Government Policy and Procedure Manual 261-2 and La.R.S. 33:2500(3). He noted that Mr. Chauvin |4had an opportunity during the internal affairs investigation to repeat those sentiments expressed during the meeting with the chain of command, but he did not. Accordingly, he demoted Mr. Chauvin, who had just attained the rank of captain, to his former rank of engineer and suspended him for sixty calendar days.

Mr. Chauvin timely appealed this disciplinary action to the Lafayette Municipal Fire and Police Civil Service Board (hereinafter “civil service board” or “board”). The record reflects that after a hearing on July 9, 2002, the civil service board determined, in a 3-2 vote, to overturn the discipline imposed. The board ascertained that Mr. Chauvin did not violate Lafayette Consolidated Government Policy and Procedures 261-2, Section 1.20 and Fire Department Policy and Procedure, 84-01, Section III, Paragraph 2, regarding cooperation with internal investigations and answering related questions completely and truthfully. It further determined that Mr. Benoit did not act in good faith and for cause in disciplining Mr. Chauvin.

The Lafayette City-Parish Consolidated Government appealed, the civil service board’s determination to the Louisiana Fifteenth Judicial District Court, and a hearing was held in the matter on July 7, 2003. According to the transcript of the proceedings, the trial judge indicated that in arriving at a decision in the matter, he felt it necessary to resolve the following question: “Does .Consolidated Government have any compelling interest in assuring that its employees are honest and forthright and completely divulging of information with regard to work-related activity at all settings?” The judge further indicated that he understood the term “information” to include both facts and opinions. At the conclusion of arguments, the trial judge determined that “the Consolidated Government has a substantial interest in | ¿maintaining the integrity of the fire department through requiring all employees to cooperate in work-related investigations and to answer any related questions completely and truthfully.” He further ruled that “the decision of the Civil Service Board was contrary to law and order” and ordered it overturned.

Donald Chauvin appeals the judgment of the district court, asserting the following assignments of error:

1. The district court erred in reversing the decision of the civil service board.
2. The district court erred in failing to find that the board’s decision was not made in good faith for cause pursuant to La.R.S. 33:2501(E)(3).
3. The district court did not -conduct an appellate review of the board’s decision in good faith or for legal cause but rather for expediency.
4.The district court’s reversal of the board as “contrary to law” has no support in analysis as conducted under Louisiana law.

Discussion

Article X, Section 8(A) of the Louisiana Constitution, governing disciplinary actions as to classified civil servants, provides that “[n]o person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing.” In this context, “cause” is that which “includes conduct prejudicial to the public service involved or detrimental to its efficient operation.” Bannister v. Dept. of Streets, 95-404, pp. 4-5 (La.1/16/96), 666 So.2d 641, 645. In its opinion in Bannister, the supreme court also observed that “[ejssentially, civil service laws and rules establish a system under which ‘non-policy forming’ public émployees are selected on the basis of merit and can be discharged only for insubordination, incompetency, or improper conduct, and not for religious or political reasons.” Id.

| BLouisiana Revised Statutes 33:2500 outlines the circumstances under which civil service employees may be subject to disciplinary action. In the context of the instant matter on appeal, the following provisions of La.R.S. 33:2500 are controlling:

A. The tenure of persons who have been regularly and permanently inducted into positions of the classified service shall be during good behavior. However, the appointing authority may remove any employee from the service, or take such disciplinary action as the circumstances warrant in the manner provided below for any one of the following reasons:
(3) The commission or omission of any act to the prejudice of the departmental service or contrary to the public interest or policy.

In addition, La.R.S. 33:2501(A) provides that an appeal may be taken from disciplinary action imposed by an appointing authority:

Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause, may, within fifteen days after the action, demand, in writing, a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.

We note that, pursuant to La. R.S. 33:2501(E)(3), appellate review of a civil service board’s determination in a disciplinary matter is limited to a review as to whether the board’s decision was made in good faith and for cause, in accordance with the following considerations:

If made in good faith and [for] statutory cause, a decision of the civil service board cannot be disturbed on judicial review. Smith v. Municipal Fire & Police Civil Service Bd., 94-625 (La.App. 3 Cir. 11/02/94), 649 So.2d 566; McDonald v. City of Shreveport, 655 So.2d 588 (La.App. 2 Cir.1995). Good faith does not occur if the appointing authority acted arbitrarily or capriciously, or as the result of prejudice or political expediency. Martin v. City of St. Martinville, 321 So.2d 532 (La.App. 3 Cir.1975), unit denied, 325 So.2d 273 (La.1976). Arbitrary or capricious means the lack of a rational basis for the action taken. Shields v. City of Shreveport, 579 So.2d 961, 964 (La.1991); Bicknell v. United States, 422 F.2d 1055 (5th Cir.1970). The district court should accord deference to a civil- service board’s factual conclusions and must 17not overturn them unless they are manifestly erroneous. Shields v. City of Shreveport, 565 So.2d 473, 480 (La.App. 2 Cir.), aff'd, 579 So.2d 961 (La.1991). Likewise, the intermediate appellate court and our review of a civil service board’s findings of fact are limited. Shields, 579 So.2d at 964. Those findings are entitled to the same weight as findings of fact made by a trial court and are not to be overturned in the absence of manifest error. Id.; City of Kenner v. Wool, 433 So.2d 785, 788 (La.App. 5 Cir.1983).

Moore v. Ware, 01-3341, pp. 7-8 (La.2/25/03), 839 So.2d 940, 945-46. Furthermore, in Evans v. DeRidder Municipal Fire and Police Civil Service Board, 01-2466, pp. 4-5 (La.4/3/02), 815 So.2d 61, 66, the supreme court commented that

The Commissioner, or Board, has a duty to decide independently from the facts presented whether the appointing authority ... had good or lawful cause for taking the disciplinary action, and, if so, whether the punishment imposed is commensurate with the dereliction. Walters [v. Department of Police of the City of New Orleans, 454 So.2d 106 (La.1984)], supra.

There is no indication in the transcript of the hearing below that the trial judge reviewed this matter pursuant to the good-faith/cause inquiry, with deference to the findings of the civil service board; instead, it appears from the record that he conducted a review of the situation and the facts from an ostensible de novo standard, using the following question as a benchmark: “Does Consolidated Government have any compelling interest in assuring that its employees are honest and forthright and completely divulging of information with regard to work-related activity at all settings?” It appears from the record that, employing this legal standard, the trial judge determined that the Consolidated Government did, in fact, have such a compelling interest, and he reversed the civil service board’s decision accordingly.

We note that, pursuant to La.R.S. 33:2501(E)(1), the district court in this matter was sitting in review of the civil service board’s decision, and, as such, it was lsrestricted in its review to the standards outlined in La.R.S. 33:2501(E)(3)— namely, a determination as to whether the civil service board’s decision was in good faith and for legal cause. In Walsworth v. Municipal Fire & Police Civil Service Bd. of City of Shreveport, 567 So.2d 712, 714 (La.App. 2 Cir.1990), the second circuit described the scope of review of a district court sitting in review of an appeal from a decision of a civil service board, noting that:

judicial review authorized by § 2501 does not contemplate a trial de novo. Linton v. Bossier City Municipal Fire and Police Civil Service Board, 428 So.2d 515 (La.App. 2d Cir.1983). The trial court sits as a reviewing court in this instance and is to look only at the record and the evidence presented to the Board to determine whether the Board’s decision was made in good faith for cause.

We find that the district court erred as a matter of law in applying an incorrect legal standard to its review of the instant matter. Accordingly, we review the matter de novo. See Bonnette v. Conoco, Inc., 01-2767, p. 11 (La.1/28/03), 837 So.2d 1219, 1227.

Our review of the record indicates that the ruling of the civil service board was in good faith and for cause. The record reflects that Mr. Chauvin did not participate in the “sickout;” moreover, when he was asked about it in the April 3, 2000 meeting, he noted that because the Union had not organized any such activity, he could only speculate as to why so many firefighters had called in sick. The civil service board accepted Mr. Chauvin’s explanation that he had not reiterated statements made in the April 3 meeting during the internal affairs investigation because he thought the investigators wanted facts, not opinions. Accordingly, the civil service board | adetermined that Mr. Chauvin had not violated the rules pertaining to cooperation with and truthfulness in internal investigations and reversed his demotion and suspension. Based upon our review of the record, we find that the decision of the civil service board was in good faith and for cause. We therefore reverse the trial court’s ruling in which it reinstated the disciplinary action taken against Mr. Chau-vin.

DECREE

For the foregoing reasons, the ruling of the district judge is reversed, and the decision of the Lafayette Municipal Fire and Police Civil Service Board is reinstated. Costs of this proceeding are assigned to the appellee, the Lafayette City-Parish Consolidated Government.

REVERSED.

      . This "sickout” likewise forms the basis for two other cases heard by panels of this court: Lacombe v. Lafayette City-Parish Consolidated Government, et al., 03-483 (La.App. 3 Cir. 11/12/03), 866 So.2d 273; and Lantier v. Lafayette City-Parish Consolidated Government, et al., 02-1318 (La.App. 3 Cir. 3/5/03), 839 So.2d 1176.

      . The record indicates that this meeting was tape recorded.

      . The record indicates that Lafayette Consolidated Government Policy and Procedure Manual 261-2, "conditions of employment,” states, in pertinent part, under the heading of "Requirements,” section 1.2: "To cooperate and assist in any work-related administrative investigation and to answer any related questions completely and truthfully.”

      . Louisiana Revised Statute 33:2501(E)(1) provides as follows:
      Any employee under classified service and any appointing authority may appeal from any decision of the board, or from any action taken by the board under the provisions of the Part that is prejudicial to the employee or appointing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in the civil suits of the parish wherein the board is domiciled.


author: |,AMY, Judge.

text:
    George Michael ORR v. OTTO CANDIES, INC., et al.
    No. 04-60.
    Court of Appeal of Louisiana, Third Circuit.
    June 9, 2004.

      Keenan K. Kelly, Kelly, Townsend & Thomas, Natchitoches, LA, for Plain-tiffiAppellant, George Michael Orr.
    L. Etienne Balart, Jones, Walker, Wae-chter, Poitevent, Carrére & Denegre, L.L.P., New Orleans, LA, for Defendants/Appellees, Iran Alexander D & D Fuel Dock, Inc.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   |,AMY, Judge.

The plaintiff, a merchant marine, filed suit for damages after he sustained injury on the defendant’s property. The trial court found in favor of the defendant, concluding that any fault for the fall was to be equally apportioned between the plaintiff and the plaintiffs employer. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, George Michael Orr, was employed by Otto Candies, Inc., as a mate aboard the M/V Ferdie Candies, a push boat. The record indicates that, at the time of the accident in question, the Ferdie Candies was engaged in fleet work in the Port of Iberia. The accident occurred in the late evening of March 4, or the early morning of March 5, 1998, after the Ferdie Candies traveled to the business of the defendant, D & D Fuel Dock, to take on water. As the Ferdie Candies was not taking on fuel, the vessel was moored to the south side of the facility, where it had been granted permission to take on water. D & D Fuel Dock did not charge for the cost of the water provided.

According to the plaintiff, when he awoke from a nap on the evening of March 4, he informed his shipmates he would take on the task of disconnecting the water hose. His shipmates returned to their quarters before he began to do so. In the petition instituting this matter, the plaintiff alleged that while he was completing the task, he sustained severe injuries when he stepped into a hole. The plaintiff sought recovery for related damages pursuant to La.Civ.Code arts. 2315, 2317, and 2317.1.

| ¡.The “hole,” at issue is described in the record as area of “washout” along the bulkhead on the defendant’s property. The existence of the condition is not contested. However, D & D Fuel Dock points out that the fall occurred on a bulkhead located on the south side of its property, an area where it does not conduct regular business. D & D Fuel Dock provided testimony indicating that its business operations of providing fuel and oil are conducted on an improved fueling dock. Furthermore, D & D Fuel Dock contends, the Ferdie Candies was warned of the condition when permission was granted for the vessel to take on the water.

Following a bench trial, the trial court ruled in favor of the defendant. Written reasons for ruling reveal a finding that D & D Fuel Dock acted reasonably as it informed the plaintiffs employer of the condition along this area of its bulkhead. The court found that the cause of the fall was the combined negligence/fault of the plaintiff and his employer, Otto Candies. In particular, the trial court referenced the plaintiffs entry on to the property at night when he could not see the ground.

The plaintiff appeals, assigning the following as error:

[1.] The Trial Court erred in its finding that the Defendant/Appellee, D & D Fuel Dock, Inc., breached no duty to PlaintiffiAppellant, George Michael Orr.
[2.] The Trial Court erred in its application of the law regarding Defendant/Appellee, D&D Fuel Dock, Inc.’s, duty to Plaintiff/Appellant, George Michael Orr.
[3.] The Trial Court erred in its finding that the sole cause of Plaintiffs accident and injuries was the fault of Plaintiffs Jones Act employer and Plaintiff.
[4.] The Trial Court erred in failing to award damages to PlaintiffAppel-lant, George Michael Orr.

| ^Discussion

Liability

With regard to the issue of the liability of D & D Fuel Dock, the plaintiff argues that the trial court erred in concluding that the defendant satisfied any duties owed. The plaintiff contends that it was error for the trial court to conclude that any duty required of the defendant was satisfied by D & D informing the captain of the Ferdie Candies of the washouts. Furthermore, the plaintiff points out that the washouts were a longstanding condition of the bulkhead area and that there was no operational lighting on the portion of D & D Fuel Dock. He requests that this court find D&D Fuel Dock at least 50% responsible for the accident.

In ruling on the matter, the trial court extensively reviewed the facts of the case, making numerous factual findings, and ultimately concluded:

Under Louisiana Civil Code article 2317.1, there are certain duties on D & D in connection with its property. However, D&D met its duty on its property by advising and warning the captain of the Ferdie Candies of the washouts, of their danger, and of their existence. Thus, D & D did not breach its duty in that it appropriately warned the appropriate person with the Ferdie Candies, the captain, of the dangers of traversing their land. D & D is not the insurer of the safety of the visitors and is only under a duty to keep the premises in a reasonably safe condition for use in a manner consistent with the purpose for which the premises was intended. David v. Roen[Reon], 520 So.2d 820 ([La.App.] 3 Cir.1987). The landowner is not liable for an injury resulting from a condition which the landowner has adequately warned and advised the supervisor of the plaintiff. In this case D & D exercised reasonable care in advising the supervisor of the plaintiff. In this case D&D exercised reasonable care in advising the captain of the Ferdie Candies of the location and existence of the unhidden washouts. D & D, as operator of the premises, only had the duty to act reasonably in view of the probability of injury to the others. Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La.1976). D&D was reasonable in the manner in which it carried out its duty to warn of the existence of the washouts. First, the area of land where the Ferdie Candies desired to obtain water was not the work premises of D & D. The area was not illuminated and such was obvious to [Relief Captain] Jude Guilliot and the captain of the vessel, Glenn Guidry. Additionally, the washout areas were obviously visible Land observable by them. The captain and relief captain of the Ferdie Candies chose to have their vessel loaded with water in this area with washouts instead of in the improved dock area of D & D around the canal.
George Michael Orr as a seaman and one of years of experience has a duty to act reasonably to protect himself. A seaman meets this standard by acting as a reasonable seaman would act under the circumstances. Muhammad v. Diamond Services[Offshore] Company, 822 So.2d 869 ([La.App.] 3 Cir.2002). George Michael Orr testified that he could not see the ground where he was walking. He testified that he could not see his feet. He testified that there was no illumination. For a seaman to proceed across an area of land adjacent to a waterway and bulkheaded with wood between the waterway and the land without knowing and being able to see the condition of the land has no concern for his own safety. George Michael Orr filled out a document in connection with the accident which was introduced as Defendant’s Exhibit 2. Question number 6 was who was supervising his work at the time. His statement was that it was his responsibility. In filling out another accident report introduced as Defendant’s Exhibit 1, question 15, subpart (d) asked if the accident was the result of the individual’s own negligence. George Michael Orr answered the question as no, just his stupidity.
This Court finds that the accident of George Michael Orr on March 4, 1998, or March 5, 1998, in the early morning hours resulted from the combined negligence and fault of Otto Candies, the employer of George Michael Orr, and of George Michael Orr. Certainly a person cannot proceed in the dark where they cannot see the ground and not obtain illumination or lighting and then seek to recover from a third party such as D & D because they fall into a washout, which is a natural condition on the land, because they could not see it in the dark.

The plaintiff in this case sought recovery under the principles enunciated in La.Civ. Code arts. 2315, 2317, and 2317.1. These articles provide:

Art. 2315. Liability for acts causing damages

A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease. Damages shall include any sales taxes paid by the owner on the repair or replacement of the property damaged.

Is Art. 2317. Acts of others and of things in custody

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

Art. 2317.1. Damage caused by ruin, vice, or defect in things

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

The negligence cause of action described in Article 2315 is analyzed under the duty/risk analysis. Under this analysis, the plaintiff must prove that: “[T]he conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached.” Posecai v. Wal-Mart Stores, Inc., 99-1222, p. 4 (La.11/30/99), 752 So.2d 762, 765. As noted by the supreme court in Posecai the question of whether a duty exists or is owed is a question of law. Id. However, the decision as to “whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented.” Id. at 766.

In a case brought under La. Civ. Code art. 2317, that traditionally styled as one of strict liability, the plaintiff bears the burden of proving that the vice or defect of the property in question is a condition posing an unreasonable risk of harm to others. Boyle v. Board of Supervisors, 96-1158 (La.1/14/97), 685 So.2d 1080. Similar to the negligence requirement that a risk of harm is within the scope of the duty owed under the facts and circumstances present in a particular case, the determination as to the | ^existence of an unreasonable risk of harm must be made using a risk/utility analysis, i.e., “made ‘in light of all relevant moral, economic, and social considerations.’ ” Id. at 1082, quoting Celestine v. Union Oil Co. of California, 94-1868 (La.4/10/95), 652 So.2d 1299. Findings regarding whether an unreasonable risk of harm exists are considered on appeal under the manifest error standard of review. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362.

With the enactment of La.Civ.Code art. 2317.1, a “knowledge” element was added to the burden of proof required of those seeking to recover under La.Civ. Code art. 2317. As can be seen in the wording of Article 2317.1, the plaintiff must demonstrate, not only the presence of a vice or defect within a defendant’s custody or control, but he or she must also demonstrate a defendant’s knowledge or constructive knowledge of that condition. Furthermore, Article 2317.1 requires that the plaintiff demonstrate that the alleged damage “could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.”

Reference to the trial court’s reasons reveal a finding that D & D Fuel Dock acted “reasonably” given the condition on their property. Whether viewed as a finding that the plaintiff failed to demonstrate that the defendant breached a duty owed under the facts and circumstances presented or a finding that the injuries occurred despite the “exercise of reasonable care,” the trial court’s decision is supported by the record.

D & D Fuel Dock’s President, Steven Migues, testified that he was aware of the washouts near the bulkhead and that they were caused by erosion related to dredging of the adjacent waterways. Due to this condition, Mr. Migues and the company’s- Operations Manager, Hollis Firmin, testified that boats mooring on this unimproved 17area of the property were warned of the condition. In this regard, Mr. Fir-min testified that he explained the condition to the captain of the Ferdie Candies. He explained as follows:

Q. Do you recall if you ever spoke with anybody on the Ferdie Candies back in March of 1998?
A. Yes, sir.
Q. Okay. Tell me about that.
A. Ferdie Candies pulled up bow first. I imagine it was the captain stepped out [of] the wheel house and spoke to me about taking on water. I said, “Well, yes, you can. If you’re going to be here a while, use the little water spigot with the water hose. But, for God’s sakes, they got little — they got holes right here. Please just be very, very careful that you step and watch what you’re doing.” He told me no problem whatsoever.

Mr. Firmin explained that he spoke only with the captain, no other crewmembers. He denied knowing that anyone else had ever fallen due to the washouts. Further questioning revealed:

Q. Now isn’t it true that normally the other side of the dock was used, the north side? Most boats docked over on this side, the side where fuel is taken on, correct? (Indicating.)
A. Fuel and oil, correct.
Q. And to your knowledge, there were no washouts or crevices on this side, were there?
A. No, sir, not right there.
Q. And — but yet you gave them permission to dock on this side and take on water on this side?
A. That’s where they pulled in, because they didn’t want to tie up my dock whatsoever since they weren’t taking on any fuel.
Q. And you were aware that they created an unreasonable risk of harm, aren’t you?
Is A. Well, yes. That’s the reason I warned the captain or whoever I spoke to.

The plaintiff denied that he personally had been informed of the uneven terrain. Furthermore, Captain Glenn Guidry testified that he and Relief Captain Jude Guillot were aware of the washout condition near the bulkhead.

The trial court credited the above testimony indicating that the area was an unimproved one generally not used by customers; that notice was provided to the Ferdie Candies of the condition; and despite this notice, Ferdie Candies personnel permitted Mr. Orr to enter onto the property, at night, so that the vessel might take on water. Wé find no manifest error in the trial court’s determination that the defendant’s actions were reasonable given all of the circumstances. See La.Civ.Code art. 2317.1 (requiring proof that “the damage could have been prevented by the exercise of reasonable care, and that [the defendant] failed to exercise such reasonable care”).

The plaintiff advances Rivers v. Schlumberger Well Surveying Corp., 389 So.2d 807 (La.App. 3 Cir.1980), for the proposition that even though the claimant’s employers may be aware of a defect on the land, a dock owner retains a nondelegable duty to provide a safe method of passage. In Rivers, the plaintiff fell into a washout near a dock where his employer’s vessel was berthed. The dock was owned by one |flof the defendants, Schlumberger. Schlumberger also operated the vessel on which the plaintiff was serving as Captain. Unlike the present case, the court in Rivers was asked to resolve Jones Act and General Maritime Law issues. In particular, the court was concerned with identifying the plaintiffs Jones Act employer. Of interest to this case, however, is the discussion of the washouts and the fact that all involved were aware of the defect on the land. The appellate panel in Rivers noted that the plaintiffs petition was one under Jones Act and General Maritime Law, and did not request relief under La. Civ.Code art. 2315. This styling of the petition under federal law, the court explained, precluded its finding of liability on the part of Schlumberger for the condition of the dock. Given the general discussion referencing a nondelegable duty by the dock owner, Mr. Orr argues, the case stands for the proposition that the employer’s knowledge of the condition does not preclude a finding of fault on the part of the dock owner.

Notwithstanding the fact that the discussion in Rivers was not the court’s central focus, the case does not indicate that a reversal is required in the present case. This is not a case of whether the property owner owed a nondelegable duty. Here, the trial court considered the particular facts of this case concluding that any duty owed by the property owner was not breached, i.e., that the property owner/defendant acted reasonably given “the unique facts and circumstances presented.” See Posecai, 752 So.2d at 766. In other words, and in keeping with that aspect of the plaintiffs | inclaim insofar as it may arise under La.Civ.Code arts. 2317 and 2317.1, the defendant exercised “reasonable care.”

According to the trial court’s findings, which is supported upon review of the record, the defendant and the employer were aware of the washouts contained on an area of the property on which commercial activities were not typically performed. Instead, the area was an unimproved portion of the property at which the defendant did not conduct regular business activities. Furthermore, whether the defendant’s responsibility or that of the employer, the defendant entered the property in the dark and did so without providing/ensuring sufficient illumination. The plaintiff testified that it was sufficiently dark that he did not think that he could see his feet while performing his tasks. These factors, it appeared, resulted in the trial court’s determination that the defendant acted reasonably. Given the circumstances in this case, we find no manifest error in these determinations.

This assignment lacks merit. Our above finding pretermits discussion of the plaintiffs assertions regarding damages.

DECREE

For the foregoing reasons, the decision of the trial court is affirmed. All costs of this proceeding are assessed to the plaintiff, George Michael Orr.

AFFIRMED.

      . The plaintiff also brought suit against Otto Candies, seeking relief under the Jones Act and General Maritime Law. The matter against Otto Candies was settled prior to resolution of the instant matter and is not now at issue.

      . Although the plaintiff contests the trial court’s determination that the Ferdie Candies was warned of the condition, the record supports the factual/credibility determinations made in this regard as is evidenced by the testimony of Mr. Firmin.

      . The plaintiff quotes the following passage from the opinion:

        Schlumberger furnished the dock in question. It also had a duty to keep the dock area in a safe condition. Schlumberger was clearly negligent in failing to perform its duty and such negligence, along with the negligence of Meldeans, caused the accident by not filling the hole where Rivers fell.

        Id. at 817.

      . In addition to Rivers, the plaintiff references other cases he contends indicate that the property owner's duty is a nondelegable one. See Billiot v. State of Louisiana, Through Dept. of Natural Resources, 94-1365 (La.App. 3 Cir. 4/12/95), 654 So.2d 753, writs denied, 95-1648, 95-1772 (La. 11/13/95), 662 So.2d 467; Brown v. Soupenne, 416 So.2d 170 (La.App. 4 Cir.1982). Again, the issue in this case is not whether a duly was owed or whether an unreasonable risk of harm existed. Rather, the question, as framed by the trial court's reasons, is whether that duty, insofar as it existed given the facts and circumstances presented, was breached under Article 2315 or whether the defendant exercised reasonable care in response to any unreasonable risk of harm under Article 2317 and Article 2317.1.


author: I,SULLIVAN, Judge.

text:
    Kenneth Michael WRIGHT v. Darryl TSCHIRN.
    No. 03-1676.
    Court of Appeal of Louisiana, Third Circuit.
    June 9, 2004.

      Ike A. Hobaugh, Wright & Moreno, L.L.C., Lake Charles, LA, for Plaintiff/Appellant: Kenneth Michael Wright.
    Darryl J. Tschirn, La Jolla, CA, for Defendant/Appellee.
    Terrence Jude Lestelle, Andrea Sucher-mann Lestelle, Lestelle & Lestelle, Me-tairie, LA, for Defendants.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   I,SULLIVAN, Judge.

This is a concursus proceeding for the disbursement of attorney fees and expenses among three attorneys who represented Joseph Benoit in a federal multi-district products liability litigation against Acromed Corporation, the manufacturer of an orthopedic bone screw. One of the attorneys appeals the judgment of the trial court. For the following reasons, we affirm in part, reverse in part, amend, and affirm as amended the judgment of the trial court.

Facts

A number of attorneys represented Mr. Benoit prior to and during the course of the multi-district litigation which ended in settlement. Pursuant to the settlement, funds were distributed to Mr. Benoit’s current attorney, James Wright. The distribution specified how the settlement funds were to be disbursed with amounts designated for attorney fees, attorney costs, and Mr. Benoit.

Mr. Benoit retained Mr. Wright in November 1993 to represent him and, in connection therewith, signed a contingency fee contract. Mr. Wright associated the firm of Lestelle and Lestelle to assist him with Mr. Benoit’s case. The record indicates that Darryl Tschirn, and possibly a number of other attorneys, represented Mr. Benoit before he was represented by Mr. Wright and Lestelle & Lestelle. Mr. Tschirn also served as counsel for all claimants in the Acromed multi-district litigation.

Upon receipt of Mr. Benoit’s distribution, Mr. Wright instituted this concursus proceeding and deposited the funds into the registry of the trial court. In his petition, Mr. Wright identified all of the attorneys he believed might have a claim to the specified attorneys' fees and costs. The matter was tried by affidavit. Mr. Wright, ^Lestelle & Lestelle, and Mr. Tschirn filed affidavits to recover attorney fees and costs. The trial court disbursed the funds as follows:

Kenneth Wright $1,290.81 524.40 attorney fees costs
Darryl Tschirn $1,721.01 attorney fees 907.60 costs
Lestelle & Lestelle $1,290.81 attorney fees 584.89 costs

Mr. Wright filed a motion for new trial regarding the trial court’s award of attorney fees in favor of Mr. Tschirn, asserting as he does here, that an attorney who terminates his representation of a client without cause is not entitled to a fee for his services. The trial court vacated the original judgment with regard to the award of attorney fees only and conducted a hearing on the issue of whether Mr. Tschirn was entitled to attorney fees. After the hearing, the trial court denied the motion, finding that an attorney who terminates his representation without cause but causes no prejudice to his client’s interests remains entitled to a fee.

Mr. Wright appeals and assigns five errors. Mr. Wright complains that the trial court’s award of attorney fees and costs to Mr. Tschirn was error because Mr. Tschirn abandoned Mr. Benoit without cause during the litigation and did not meet his burden of proof with regard to costs for which he seeks reimbursement. Mr. Wright also assigns as error the trial court’s denial of his motion to compel Mr. Tschirn to respond to discovery he filed, the trial court’s denial of his motion to have a contradictory trial rather than a trial by affidavits, and the trial court’s refusal to admit unopposed evidence into evidence.

| ¿Discussion

Attorney Fees

Mr. Wright asserts that Mr. Tschirn abandoned his representation of Mr. Benoit without cause and, therefore, is not entitled to collect a fee. Mr. Tschirn discussed in his brief, but did not address in his affidavits, why he no longer represents Mr. Benoit. In his brief, Mr. Tschirn asserted that he terminated his professional relationship with Mr. Benoit because Mr. Benoit would not cooperate with him and would not comply with court orders and directives. However, a brief and its attachments are not part of the record and cannot be considered as evidence. Arceneaux v. Arceneaux, 98-1178 (La.App. 4 Cir. 3/17/99), 733 So.2d 86, units denied, 99-518 (La.4/9/99), 740 So.2d 633; 99-1351 (La.6/25/99), 745 So.2d 624. The only evidence on this issue is a letter attached to Mr. Tschirn’s affidavit. The letter was written by Mr. Tschirn to Mr. Benoit terminating his representation of Mr. Benoit for “personal and professional reasons.”

In his opinion on the motion for new trial, the trial judge determined that Mr. Tschirn’s termination of his representation of Mr. Benoit had not prejudiced Mr. Be-noit’s interests in his litigation; therefore, he remained entitled to a fee. The trial judge first considered Rule 1.16 of the Rules of Professional Conduct governing the Lawyer-Client Relationship (emphasis added) which provides:

(b) Except as stated in Paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
(1) The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(2) The client has used the lawyer’s services to perpetrate a crime or fraud;
14.(3) A client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;
(4) The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(5) The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(6) Other good cause for withdrawal exists.
(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

There are no allegations that Mr. Tschirn’s termination of his representation of Mr. Benoit had any adverse effect on Mr. Be-noit’s interests.

Quoting Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 118 (La.1978), the trial judge then observed:

It seems to me that if the lawyer can keep earned fees that have been paid in advance, he can collect fees under a contingent agreement once recovery has been made, “apportioned according to the respective services and contributions of the attorneys for work performed and other relevant factors.

Mr. Wright argues that Saucier is inapplicable here because it deals with a client’s dismissal of his attorney, not with an attorney’s termination of his representation of the client. We do not agree. Saucier is decided on the basis of fairness and equity depending on the circumstances surrounding a client’s discharge of his attorney. We find these principles appropriate to the situation presented here.

Mr. Tschirn’s affidavit establishes that he filed suit on behalf of Mr. Benoit and prepared his case for trial in federal court in New Orleans. Mr. Tschirn also represented other plaintiffs with claims against Acromed, and the federal court 1 ¡^scheduled all of the cases for trial in six week intervals. The trial of Mr. Benoit’s case was delayed when Mr. Tschirn successfully tried his first case against Acromed, and Acromed appealed the judgment. The district court stayed the trial of the other Acromed cases until the appeal was completed. A short time later, Mr. Wright and Lestelle & Lestelle began representing Mr. Benoit. Approximately seven months later, the litigation against Acromed, which was nationwide, was consolidated into one multi-district litigation in the United States District Court, Eastern District of Pennsylvania. Mr. Be-noit’s case became part of the multi-dis-trict litigation, and Mr. Tschirn was made a committee member of the multi-district litigation. Ultimately, the multi-district litigation resulted in two distributions to Acromed claimants. The second distribution to Mr. Benoit is the subject of this litigation.

Mr. Wright’s affidavit reflects that his representation of Mr. Benoit consisted of participating in the deposition of Mr. Be-noit, filing administrative claim forms and a pre-trial memorandum in the multi-dis-trict litigation, and invoking this concursus proceeding.

Mr. Wright urges us to adopt the position taken in some states that an attorney who withdraws from a contingency fee case without cause is not entitled to a fee. In our opinion, a decision based only on the cause of the termination without consideration of the effect on the client is in derogation of Rule 1.16 and may result in an unearned windfall to the client and his new counsel. Therefore, we decline to adopt this position.

Mr. Wright next argues that because Mr. Tsehirn stated in his affidavit that he had a contingency fee contract with Mr. Benoit but did not introduce a copy of it into evidence, there is no way to determine whether the contract precludes him from 1 ^collecting a fee for the services he provided Mr. Benoit due to his termination of representation. Rule 1.5(c) of the Rules of Professional Conduct governing the Clienb-Lawyer Relationship requires that a contingency fee contract be in writing. However, in Syrie v. Schilab, 95-491 (La.App. 3 Cir. 11/2/95), 664 So.2d 529, writ denied, 95-2869 (La.2/2/96), 666 So.2d 1100, this court held that failure to introduce a contingency fee contract into evidence was not a “fatal flaw” to an award of attorney fees. Because there is no contention that Mr. Tsehirn did not perform the services he outlined in his affidavit on behalf of Mr. Benoit, we find that his failure to introduce his contingency fee contract into evidence is not “fatal” to his recovery.

Mr. Wright also urges that Mr. Tschirn’s payment for his services as a committee member of the multi-district litigation is enough to compensate him for the services he provided individually to Mr. Benoit and for the services he performed as a committee member. We do not agree. Mr. Tsehirn prepared Mr. Be-noit’s case for trial before he terminated his representation. The work he performed as a committee member was performed after he no longer represented Mr. Benoit and was performed in the interest of all Acromed claimants, as were the services of all the committee members. The services performed were separate and distinct, and he is entitled to be compensated for all of his services.

We find no error with the award of attorney fees in favor of Mr. Tsehirn.

Costs

Mr. Wright assigns as error the trial court’s award of costs to Mr. Tsehirn because there is no supporting documentation for the expenses. To sustain his burden of proof, Mr. Tsehirn should have attached copies of the invoices and identified them as expenses he incurred on Mr. Benoit’s behalf. Trinity Universal Ins. Co. v. Normand, 220 So.2d 583 (La.App. 3 Cir.1969). The judgment awarding costs to Mr. Tsehirn is reversed.

Request for Reconsideration of Trial on Affidavits and Motion to Compel Discovery

Mr. Wright complains that the trial court required him to try this matter by affidavits and to do so was error. The trial court held a status conference in this matter on July 22, 2002. At that time, the trial was set for October 23, 2002. Following the status conference, a pre-trial order which set a deadline for filing motions and discovery was issued. Both deadlines were forty-five days before trial. Mr. Wright filed his request for reconsideration on September 30, 2002.

At the hearing on the request for reconsideration, the trial judge noted that he recalled that the parties agreed at the status conference fir try the matter by affidavits because the funds to be disbursed were not significant. Mr. Wright contends that he did not, agree to try the matter by affidavits but was instructed by the trial court that it would be handled in that manner. Mr. Wright’s request for reconsideration was filed after the deadline for motions provided in the pre-trial order. At that time, it was more than sixty days after the status conference and less than thirty days before the trial date. Additionally, the other parties had already filed their affidavits with the court.

In our opinion, Mr. Wright’s dilatory filing of his request for reconsideration supports the trial court’s belief that all of the parties agreed to submit their claims by affidavit. We know of no prohibition against parties agreeing to submit an ordinary proceeding or a concursus proceeding by affidavit. Considering these facts, we find that Mr. Wright waited too late to complain about submitting the matter by affidavits and that the trial court did not err in denying the request for reconsideration.

|sMr. Wright cites Hollywood Casino Shreveport v. Shreveport Paddlewheels, L.L.C., 02-2134 (La.App. 4 Cir. 7/23/03), 853 So.2d 660, in support of his position. In Hollywood Casino, the trial court’s determination of the merits of a concursus proceeding in a summary proceeding was reversed. See La.Code Civ.P. art. 4662. There is a significant distinction between Hollywood Casino and this case: the parties in this matter agreed, or implied that they agreed, to submit the matter on affidavits.

Mr. Wright also asserts that the trial court’s denial of his motion to compel discovery was error. The motion to compel discovery was not filed until October 7, 2002, which was well beyond the discovery deadline set in the pre-trial order and only sixteen days before trial. Mr. Wright has not shown any reason justifying his failure to comply with the discovery deadline. We find no error with the trial court’s denial of his motion to compel.

Introduction of Evidence

In his last assignment of error, Mr. Wright complains that the trial court erred in refusing to allow him to introduce evidence at the October 23, 2002 trial. He proffered the evidence sought to be introduced. The evidence Mr. Wright sought to introduce was not in affidavit form nor was it attached to an affidavit. More importantly, nothing in the evidence sought to be introduced establishes that it is related or relevant to this proceeding. We find no error with the trial court’s refusal to allow the evidence to be introduced at trial.

Motion to Strike

Mr. Wright filed a motion to strike Mr. Tschirn’s appellate brief which was referred to the merits of this matter. He complains that the brief does not cite to 19references in the record by page numbers, as required by Rule 2-12.4 and Rule 2-12.5 of the Uniform Rules, Courts of Appeal, and that the brief references Mr. Tschirn’s own memoranda and exhibits which were not in evidence. Rule 2-12.5 allows this court to disregard an argument on an error if suitable reference to the record is not made. Due to the nature of this proceeding, Mr. Tschirn’s failure to cite references in the record by page number is not of such significance that compels us to strike his brief. The only exhibit attached to Mr. Tschirn’s brief which is not in the record is a copy of a case Mr. Tschirn referenced in his brief which was apparently provided for the convenience of this court. The motion to strike Mr. Tschirn’s brief is denied.

Disposition

For the foregoing reasons, the judgment in favor of Mr. Tschirn for attorney fees is affirmed, but the judgment for costs is reversed. The judgment of the trial court is amended to award the $907.60 in costs awarded to Mr. Tschirn one-half to Mr. Wright and one-half to Lestelle and Les-telle. The costs of this appeal are assessed equally between James Wright and Darryl Tschirn.

AFFIRMED IN PART; REVERSED IN PART; AMENDED AND AFFIRMED AS AMENDED.


author: [1AMY, Judge.

text:
    STATE of Louisiana v. Cordell Kendrick WILLIAMS.
    No. 03-1537.
    Court of Appeal of Louisiana, Third Circuit.
    June 9, 2004.

      J. Phillip Haney, District Attorney, Renee M. Louviere, Assistant District Attorney, Franklin, LA, for Appellee, State of Louisiana.
    Kenota Pulliam Johnson, Louisiana Appellate Project, Shreveport, LA, for Defen-dani/Appellant, Cordell Kendrick Williams.
    Cordell Kendrick Williams, Louisiana State Prison, Angola, LA, pro se.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   [1AMY, Judge.

The defendant was charged with second-degree murder and, pursuant to a plea agreement with the State, ultimately pled guilty to the lesser charge of manslaughter. A sentence of forty years at hard labor was imposed, with credit for time served. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

On February 22, 2002, an Iberia Parish grand jury issued an indictment charging the defendant, Cordell Kendrick Williams, with second degree murder, a violation of La.R.S. 14:30.1. On May 2, 2003, pursuant to a plea bargain, the defendant pled guilty to manslaughter, a violation of La.R.S. 14:31. According to the factual basis presented by the State at the plea hearing, the events giving rise to the charge occurred on December 12, 2001, in front of Bunk Johnson Park in New Iberia. The State indicated that the defendant and the victim, Korey Decuir, were involved in an ongoing dispute, and, on this particular date, the two became involved in a confrontation. According to the State, the defendant produced a twelve-gauge shotgun and shot Mr. Decuir at point-blank range. Mr. Decuir subsequently died of his injuries. On November 7, 2003, the trial judge sentenced the defendant to a term of forty years at hard labor, with credit for time served, and without benefit of probation, parole, or suspension of sentence.

The defendant was granted an appeal. Appellate counsel for the defendant asserts two assignments of error:

1. The sentence imposed was cruel, unusual, and excessive; and
2. The trial court failed to comply with the sentencing guidelines set forth in La.Code Crim.P. art. 894.1.

The defendant lists two additional assignments of error in his pro-se brief on appeal:

?1. Trial counsel rendered ineffective assistance in failing to object to the trial court’s reliance on evidence not presented to the court as a factor in justifying the sentence imposed and in failing to object as to excessiveness of sentence and in failing to file a motion to reconsider; and
2. The trial court erred in imposing excessive sentence and in failing to comply with the sentencing guidelines in La.Code Crim.P. art. 894.1 and without benefit of a pre-sentence investigation.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. We find no such errors.

Excessive Sentence and Failure to Comply with La.Code Crim.P. art. 894.1

Appellate counsel for the defendant contends that the trial court erred in imposing an excessive sentence upon the defendant and in failing to adequately comply with the sentencing guidelines listed in La.Code Crim.P. art. 894.1. Similarly, in his pro-se brief, the defendant asserts that his sentence is excessive, that the trial court failed to adequately comply with La. Code Crim.P. art. 894.1, and that the trial court failed to order a pre-sentence investigation.

The defendant pled guilty to manslaughter, which, on the facts of the instant matter, is defined in La.R.S. 14:31(A)(1) as:

A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed [.]

A defendant convicted of manslaughter may be sentenced to a maximum term of forty years’ imprisonment at hard labor. La.R.S. 14:31(B).

|sThe record reflects that the defendant filed a motion to reconsider sentence in accordance with La.Code Crim.P. art. 881.1. Pursuant to this article, a defendant must file a motion to reconsider setting forth the particular grounds upon which the motion is based in order to raise excessiveness claims on appeal. State v. Mims, 619 So.2d 1059 (La.1993). However, it is well settled that

in order to preserve a claim of constitutional excessiveness, the defendant need not allege any more specific ground than that the sentence is excessive. If the defendant does not allege any specific ground for excessiveness or present any argument or evidence not previously considered by the court at original sentencing, then the defendant does not lose the right to appeal the sentence; the defendant is simply relegated to having the appellate court consider the bare claim of excessiveness.

Id. at 1059-60. In this motion, the defendant merely asserted that he was a first-time felony offender and requested that the trial judge reconsider the sentence imposed. Because the defendant did not list any particular grounds as the basis for this •argument, pursuant to Mims, we review this claim only as a “bare claim of exces-siveness.” Id.

Louisiana Constitution Article 1, § 20 expressly prohibits the imposition of “cruel, excessive, or unusual punishment.” State v. Delgado, 03-46, p. 2 (La.App. 3 Cir. 4/30/03), 845 So.2d 581, 582. A sentence is unconstitutionally excessive if it is so greatly disproportionate to the seriousness of the offense so as to shock one’s sense of justice, or if it provides no appreciable contribution to acceptable penal objectives and, consequently, is nothing more than the unnecessary imposition of pain and suffering. State v. Day, 02-1039 (La.App. 3 Cir. 2/5/03), 838 So.2d 74. In its opinion in State v. Smith, 01-2574, pp. 6-7 (La.1/14/03), 839 So.2d 1, 4, the Louisiana Supreme Court noted that an appellate court is to review an excessive-sentence claim in accordance with the following standard:

|4A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 02-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906.

In addition to the above considerations that factor into a defendant’s sentence, in State v. Williams, 02-707, pp. 8-9 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095, 1101, a panel of this court discussed the impact of a plea bargain upon the sentencing process, stating that:

The trial court may also consider other factors not provided by La.Code Crim.P. art. 894.1. Specifically, when the offense to which the defendant has pled guilty inadequately describes the entire course of the defendant’s conduct, the court may consider the benefit obtained by the defendant through the plea bargain. State v. Landos, 419 So.2d 475 (La.1982). The trial court should particularly make such considerations where the plea bargain results in a significant reduction in the defendant’s potential exposure to imprisonment. State v. Robinson, 33,921 (La.App. 2 Cir. 11/1/00); 770 So.2d 868; State v. Waguespack, 589 So.2d 1079 (La.App. 1 Cir.1991), writ denied, 596 So.2d 209 (La.1992).

In sentencing the defendant to a term of forty years’ imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence, the trial court observed:

So the court’s going to consider at this time what has already been put in evidence and the facts of the case.

The court also considers the following:

There is an undue risk that during the period of any suspended sentence or probation that the defendant could commit another crime, because he has committed a crime which took the life of another person.
The defendant is in need of correctional treatment or a custodial environment, which means imprisonment, that can be provided most effectively by his commission [sic] to an institution.
And more particularly, a lesser sentence than the court gives would deprecate the seriousness of this crime because a life has been taken.
|fiThe offender’s conduct during the commission of the offense manifested deliberate cruelty to the victim.
The offender knew or should have known that the victim of the offense was going to lose his life as a result of the action which the defendant took.
And of course Mr. Williams used deadly force or violence in the commission of this crime.
The court also considers the fact that Mr. Williams has also had the benefit of a plea bargain. He was initially charged with second degree murder which bears a sentence of life imprisonment.
At the request of Mr. Deeuir’s family, the charges were lowered or reduced to manslaughter so that he would — that Mr. Williams would not have to spend life in prison. So he’s already received the benefit of that plea bargain because he is no longer subject to life imprisonment. The maximum sentence he could receive is 40 years at hard labor.
And of course one wonders about what is the good of putting Mr. Williams in jail because it cannot — we cannot bring back by putting him in jail the life of Mr. Decuir [sic]. However, we have a society of laws and we all have to try to live by the law. If we don’t live by the law, then many of us would be dead every time somebody gets angry with us. So we have to have laws and we have to enforce those laws. And I find that it’s necessary, because of the severity of this crime and the fact that a person’s life has been taken, that Mr. Williams receive a substantial sentence.
So, Mr. Williams, it’s the sentence of this court that you serve 40 years at hard labor. I give you credit for time served. This sentence will be without benefit of probation or suspension of sentence for not less than ten — I’m sorry — without the benefit of probation or suspension of sentence.

We find that in imposing sentence in the instant matter on appeal, the trial judge appropriately considered the benefit that inured to the defendant by way of the plea agreement. Accordingly, we find no manifest abuse of discretion on the part of the trial judge in sentencing the defendant to a term of forty years’ imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. Moreover, although the defendant claims in his second pro-se assignment of error that no pre-sentence investigation was ordered, the record indicates that such a report was, indeed ordered, and that it was examined by the trial judge before sentence was imposed. This assignment is without merit.

| rIneffective Assistance of Counsel

In his first pro-se assignment of error on appeal, the defendant asserts that his trial counsel rendered ineffective assistance for three reasons. First, the defendant contends that trial counsel was ineffective in failing to object to the trial judge’s reliance upon evidence of the defendant’s prior criminal record in stating that there was an undue risk that the defendant could commit another crime during a period of a suspended or probated sentence. The defendant’s second assertion is that trial counsel was ineffective in failing to object to the trial court’s statement at sentencing that on the date of the offense at issue, the defendant left the scene, obtained a gun, and returned to the scene to shoot the victim. Finally, the defendant argues that trial counsel was ineffective in failing to object as to the exces-siveness of the sentence imposed and in failing to file a motion to reconsider sentence in order to preserve the issue for appeal.

In the defendant’s first argument with respect to his ineffective-assistance claim, the defendant contends that in sentencing him, the trial judge relied upon evidence indicating that the defendant had been accused or convicted of other crimes prior to the instant manslaughter conviction, and that his trial counsel failed to object, accordingly. After a thorough examination of the record, we find no reference to the trial judge’s reliance upon other crimes in imposing sentence. The record does, however, reflect that before pronouncing sentence, the trial judge stated, “I also file in the record the criminal history, which shows that this is a first felony offense by the defendant.” The trial judge did not state that the basis for the defendant’s sentence was his prior criminal record. This argument has no factual basis in the record and lacks merit.

|7The defendant’s next argument with respect to his ineffective-assistance claim concerns trial counsel’s failure to object to the trial judge’s statement that the defendant left the scene, obtained a gun, and returned to the scene, whereupon he shot the victim. Because the defendant pled guilty to manslaughter pursuant to a plea agreement with the State, there was no trial in this matter; accordingly, all pertinent facts were gleaned from police reports, which were entered into the record at sentencing. These documents, in turn, indicate that the sole witness to come forward in the matter reported that the defendant procured the gun at some point before the shooting. According to the police reports and to the witness’s statement, the defendant obtained the shotgun, drove to a local lounge, and then became involved in the altercation with the victim. The defendant, on the other hand, gave a statement to police in which he claimed that someone — he was uncertain as to this person’s identity — handed him the shotgun during the altercation, and he, the defendant, then shot the victim. The record reflects that in imposing sentence, the trial judge relied upon those facts present in evidence. The record further reflects that the manner in which the defendant obtained the shotgun did not affect his sentence. In addition, the defendant has not indicated how he was prejudiced by the information pertaining to the shotgun. This argument is without merit.

The defendant’s final contention in his ineffective-assistance claim addresses trial counsel’s failure to object as to the exces-siveness of the sentence imposed and failure to file a motion to reconsider sentence so as to preserve the issue for appeal. The record indicates that the defendant’s trial counsel filed a motion to reconsider sentence on December 6, 2002, and that this motion was denied on December 9, 2002. Moreover, appellate counsel argued that the defendant’s sentence was |sexcessive in the first assignment of error herein. This argument has no factual basis and lacks merit.

DECREE

For the foregoing reasons, the sentence of the defendant, Cordell Kendrick Williams, is affirmed.

AFFIRMED.