text:
    STATE of Louisiana v. Debra HILL.
    No. 2005-KA-1123.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 2006.

      Eddie J. Jordan, Jr., District Attorney, Autumn L. Cheramie, Assistant District Attorney, New Orleans, Counsel for the State of Louisiana.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO Jr.)
   TERRI F. LOVE, Judge.

|aOn August 17, 2004, in case number 451-142, the State filed a bill of information charging the defendant-appellee, Debra Hill, and Markus Sesler with one count each of possession of methamphetamine, a violation of La. R.S. 40:967C. Sesler entered a guilty plea at his arraignment and on August 26, 2004 was placed on probation. Hill appeared for arraignment and entered a not guilty plea. The court denied the motion to suppress evidence and found probable cause to sustain the charge. On November 29, 2004, the State entered a nolle prosequi, but reinstituted the charge on December 22, 2004 under the present case. The defendant was arraigned on the new bill on February 15, 2005. On February 28th defense counsel filed a motion to quash the bill of information, which the court granted on March 18, 2005. The State twice gave notice of its intent to appeal, on March 23rd and again on May 9, 2005. This appeal follows.

STATEMENT OF THE FACTS

The record contains no transcript of testimony from which the facts of the offense can be gleaned. The copy of the record from case number 451-142 does contain a copy of the police report. The narrative portion of the report indicates that the defendants were arrested following a traffic stop. The police officer ^observed Hill operating her vehicle in a reckless manner, including driving through a red light at Tupelo and St. Claude. When the officer pulled the defendant over, he saw her reaching toward the floorboard. The officer immediately removed both the defendant Hill and her passenger, the co-defendant Sesler, from the vehicle. On the floor, in plain view, the officer saw a glass tube containing a white residue and currency. On the rear seat he saw a clear plastic bag containing numerous small Ziploc bags containing residue. Both defendants were placed under arrest, and in the following search, the officer found the defendant Hill to be in possession of more small plastic bags, but these contained a white crystal. More small bags containing a white crystal were retrieved from Sesler’s pocket.

ASSIGNMENT OF ERROR

The sole issue in this appeal is whether the trial court erred when it granted the defendant’s motion to quash. Although the court gave no reasons at the time it ruled, it later issued a per curiam, which actually related to over twenty-five cases including the instant one, explaining that it granted the motion to quash because the State had earlier entered a nolle prosequi when the court had denied a motion to continue which failed to conform with La.C.Cr.P. art. 707. In his written motion to quash, the defendant avers that this action by the State violated his constitutional right to a speedy trial. The State argues that it has plenary authority under La.C.Cr.P. art. 576 to dismiss a charge and then reinstitute it in any case, such as this one, where doing so does not circumvent the statutory time limits for commencing trial under La.C.Cr.P. art. 578.

l/The State is correct that it has the authority to enter a nolle prosequi and reinstitute the charge. Both this Court and the Louisiana Supreme Court have recognized this authority, but have also recognized that the defendant’s constitutional right to a speedy trial may over-weigh the State’s statutory authority under the circumstances of any given case. See State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198; State v. Scott, 04-1142 (La.App. 4 Cir. 7/27/05), 913 So.2d 843; and State v. Batiste, 04-1200 (La.App. 4 Cir. 5/11/05), 904 So.2d 766.

In Scott, this Court discussed the factors to be considered with regard to a defendant’s constitutional right to a speedy trial:

The right to a speedy trial is guaranteed by both the federal and state constitutions. U.S. Const. Amendment 6; La. Const. Art. I, § 16. In addition to the statutory right to a speedy trial recognized by La.C.Cr.P. art. 701(A), a defendant also has a fundamental, constitutional right to a speedy trial. In analyzing a constitutional speedy trial violation claim, the four factor test set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, [33 L.Ed.2d 101] (1972) is applied; to wit: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. The initial factor, the length of the delay, is often referred to as the “triggering mechanism” because absent a “presumptively prejudicial” delay, further inquiry into the Barker factors is unnecessary. See State v. Santiago, 03-0693 (La.App. 4 Cir. 7/23/03), 853 So.2d 671. Under Barker, the peculiar circumstances of the case determine the weight to be ascribed to the length of the delay and the reason for the delay. State v. Reaves, 376 So.2d 136, 138 (La.1979). Something that is acceptable in one case may not be acceptable in another because the complexity of the case must be considered. Gray v. King, 724 F.2d 1199, 1202 (5th Cir.1984), citing Barker, 407 U.S. at 531, [92 S.Ct. 2182]. The manner of proof must also be considered, as must the gravity of the alleged crime. Id.
A defendant challenging the state’s dismissal and reinstitution of charges has the burden of showing a violation of his constitutional right to a speedy trial. State v. Henderson, 00-0511, p. 7 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142.

Scott, 04-1142, pp. 11-12, 913 So.3d at 850-51.

In Batiste, this Court noted the appropriate standard for appellate review:

lain State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, the Louisiana Supreme Court considered whether an appellate court abused its discretion in overturning a trial court’s denial of a motion to quash where the defendant argued that his right to a speedy trial was violated. The court noted the relationship of the courts and stated:
Because of the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.
Id., 847 So.2d at 1206.
In State v. Harris, 03-0524 (La.App. 4 Cir. 9/10/03), 857 So.2d 16, this Court, considering a similar issue and the Love decision, stated:
Thus, ... the proper approach to the question of whether the defendant’s right to a speedy trial was violated is not merely a review of the dates and circumstances of the hearings, but an examination of the entire record in order to discern whether there was “palpable abuse” on the part of the trial court in granting the motion to quash. Id. at 1209.
Id., 857 So.2d at 18.

Batiste, 04-1200, pp. 7-8, 904 So.2d at 770.

Under Barker, the first question is whether the delay was sufficient to act as a triggering mechanism. Seven months elapsed from the day the original bill of information was filed until the trial court granted the motion to quash. The State entered the nolle prosequi on November 29, 2004, which was the second time the trial was set. The first setting was November 15, 2004, and on that day the trial court granted the defense motion for a continuance. Earlier in the proceedings there had been a delay of two months between the defendant’s arraignment and the motion hearing, which was a result of the defendant, who was released on bond, not securing private counsel. In fact, the only delay in the proceedings attributable Uto the State was its decision to enter the nolle prosequi on November 29th and then wait three weeks to file the new bill of information.

In State v. Pham, 97-0459 (La.App. 4 Cir. 3/26/97), 692 So.2d 11, the Court found that a nine-month delay for a defendant forced to travel from Houston to New Orleans after being charged with cheating at gaming did not merit the granting of a motion to quash. In State v. Keller, 03-0986 (La.App. 4 Cir. 10/1/03), 859 So.2d 743, the Court found that a six and one-half month delay between the filing of the first bill of information and the granting of the motion tp quash the reinstituted bill was not presumptively prejudicial and that the trial court had abused its discretion when it granted the motion to quash. In State v. Gray, 98-0347 (La.App. 4 Cir. 10/21/98), 766 So.2d 550, there was an eleven-month delay. The court suggested that the delay may not be presumptively prejudicial as most prior cases considered by the Court had involved delays of more than one year. However, the Court evaluated the remaining Barker factors because of State v. Reaves, 376 So.2d 136 (La.1979), where the court had found a delay of three and one-half months in a misdemeanor case to be a violation of the defendant’s right to a speedy trial.

Unlike Reaves, the instant case involves a felony not a misdemeanor. The defendant was not incarcerated during the proceedings, having been released on bond. There is nothing to indicate that she had any witnesses who became unavailable due to the delays in the case. The defendant never asserted her right to |7a speedy trial prior to filing the motion to quash and actually requested and received one trial continuance.

Under State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, this Court should give deference to the trial court’s decision to grant the motion to quash. However, even giving deference to that decision, we find the trial court abused its discretion. According to the per curiam, the trial court was motivated to grant the motion to quash because, after failing to comply with the statutory requirements for a motion for a continuance, the State obtained a de facto continuance by entering a nolle prosequi and then reinstituting the charge. However, the trial court had granted the defense a continuance of the trial as well. Furthermore, in contrast to some of the other cases noted in the trial court’s per curiam, the State did produce its witness at the first setting of the motion to suppress hearing. Thus, although the trial court clearly was frustrated with what it deemed the State’s disregard of proper procedure to obtain a continuance, the harsh remedy of quashing the prosecution is an abuse of discretion in this case.

DECREE

The State’s assignment of error has merit. This matter is reversed and remanded to the trial court.

REVERSED AND REMANDED

      . The reporting officer in his narrative stated that he believed that the white crystals were methadone, not methamphetamine, and he arrested the subjects for possession of “crystal methadone” with the intent to distribute. Both drugs are listed in Schedule II, see La. R.S. 40:964(B) and (C), and thus possession of either is a violation of La. R.S. 40:967.

      . The time limit in this case was two years.

      . Ultimately in Gray this Court reversed the trial court’s decision granting the motion to quash, finding that the State had not attempted to gain a tactical advantage and that the defendants had failed to show sufficient prejudice. The Supreme Court granted writs and reversed this Court’s decision on the grounds that the State had failed to timely move for an appeal from the trial court's granting of the motion to quash. State v. Gray, 98-2902 (La.5/7/99), 740 So.2d 1291.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    Succession of Connie C. GORE.
    No. 2005-CA-0549, 2005-CA-0806.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 2006.

      Stephen K. Conroy, Deborah G. Marx, Christine W. Marks, Conroy Law Firm, PLC, Metairie, Counsel for Mid-South Estate Planning, L.L.C., Robert Tanner, Ron Hampton, Dixie Ramirez, Marty Roth, Adrian Leblanc and Jennifer Simon.
    Mark G. Tauzier, William E. Wright, Jr., Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, Counsel for James E. LaPorte, as Executor for the Succession of Clark A. Newal and Westport Insurance Company as Insurer of Clark A. Neal.
    Paul A. Tabary, III, Dysart & Tabary, L.L.P., Ewell C. Potts, III, Potts & Potts, Metairie, Counsel for Jeffrey Hipp.
    (Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO Jr., Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

_JjMid-South Estate Planning, L.L.C. and James E. LaPorte appeal the trial court’s determination that the Connie C. Gore Trust and the Trust amendment were invalid as to form and that Connie C. Gore did not expressly mandate the inter vivos donations to the Trust. For the reasons stated below, we affirm the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

The instant litigation arises out of the Succession of Connie C. Gore (“Ms.Gore”), who died on March 14, 2003. Ms. Gore is the mother of Hazel Lansou (“Ms.Lan-sou”) and a predeceased daughter, Helen Hipp (“Ms.Hipp”). Ms. Gore is the grandmother of Ms. Lansou’s children, David Lansou, Jr., Cynthia L. Janusa, Brian E. Lansou, Sr., Deborah L. Griffin, and Ms. Hipp’s son, Jeffrey Hipp (“Jeffrey”).

On or about March 22, 1996, Ms. Gore executed a general power of attorney that appointed Ms. Lansou as her agent and attorney-in-fact, which read as follows:

BEFORE ME, the undersigned authority duly qualified in the State and Parish aforesaid, personally came and appeared Connie Gore SS# ... DOB July 2, 1906, who after being sworn declared:
LThat I, Connie Gore, being of full age and a resident of the Parish of St. Bernard do hereby appoint Hazel Lan-sou, SS# ... DOB December 30, 1924, to represent me and to have the general and specific power of attorney to represent and act on my behalf regarding all and every act, matter and thing whatsoever, as shall or may be requisite and necessary, touching or concerning the affairs, business or assets of appearer as fully, completely and effectively, and to all intents and purposes with the same validity, as if all and every such act, matter or thing, were or for, or as ap-pearer could or might do if personally present; also with full power of substitution and revocation; appearer hereby agrees to ratify and confirm all and whatsoever the said agent shall lawfully do or cause to be done by virtue of this act of procuration.
I, Hazel Lansou, appear herein to formally accept this power of attorney granted unto me by Connie Gore.
Thus done and signed in the presence of the undersigned witnesses and Notary Public on this 22nd day of March, 1996 at Chalmette, LA.

On or about March 10, 2001, Mid-South Estate Planning, L.L.C. (“Mid-South”) through Clark A Neal, (hereinafter referred to as Mr. LaPorte), who had an arrangement with Mid-South to provide limited services, prepared the Connie C. Gore Revocable Living Trust (“Trust”), a Last Will and Testament (“Testament”), a Living Will Declaration, Power of Attorney, and a Healthcare Power of Attorney.

The Testament and the Trust were drafted with a signature line to be signed by Hazel Lansou as the agent and attorney-in-fact for Connie C. Gore. On March 10, 2001, Hazel Lansou executed the documents. The signature block read as follows:

CONNIE C. GORE, Testatrix
BY: HAZEL G. LANSOU
Agent & Attorney-in-Fact

13The Trust named Ms. Gore as the settler and Ms. Lansou as the original trustee. Thus, Ms. Lansou signed the document as trustee and for Ms. Gore, as her agent. The Trust divided Ms. Gore’s interest equally between her daughters, Ms. Lan-sou and Ms. Hipp.

Ms. Hipp, one of Ms. Gore’s daughters, died on November 15, 2002. On December 4, 2002, Mid-South drafted an amendment to the Trust. Ms. Lansou stated that she executed this amendment to reflect her mother’s intent to provide for her grandchildren equally after Ms. Hipp’s untimely death. The original Trust would have given Ms. Hipp’s son fifty percent of the estate through representation. Thus, the amendment provided that Ms. Lansou would inherit one-fourth of the estate and divide the remaining three-fourths equally between the five grandchildren, Ms. Lan-sou’s four children and Ms. Hipp’s son, Jeffrey. Ms. Gore was not present when Ms. Lansou signed the amendment. Ms. Lansou signed the amendment as the trustee and not as the agent of Ms. Gore.

Ms. Gore died on March 14, 2003. On December 9, 2003, Ms. Lansou filed a petition of possession. Ms. Lansou distributed the assets in accordance with the amended trust. However, Jeffrey expressed concerns over the amended distributions; consequently, Ms. Lansou agreed to pay him fifty percent of her mother’s estate.

On April 27, 2004, Ms. Lansou and her four children filed for a declaration of rights pursuant to a purported invalid testament. Ms. Lansou’s four children then filed a petition for damages against Mid-South and Mr. LaPorte, as executor of Mr. Neal’s succession, alleging negligence and the invalidity of the Testament, 14the Trust, and the amendment. The trial court in the damages matter refused to consider the suit until the documents were adjudged invalid.

Hence, Ms. Lansou, David Lansou, Brian Lansou, Sr., Cynthia Janusa, Deborah Griffin, and Jeffrey filed a motion for summary judgment seeking a judicial determination that the Testament, the Trust, and the amendment, along with the donations to the trust were invalid under the laws of the State of Louisiana. Mid-South filed a motion for summary judgment seeking to have the Testament, the Trust, amendments, as well as the donations to the trust declared valid. Mr. LaPorte filed a cross-motion for summary judgment adopting Mid-South’s position except anything regarding the Trust amendment because Mr. Neal died prior to its execution.

After a hearing on the matter, the trial court held that “the Trust is invalid as to form and the donations were not expressly mandated by Connie Gore.” The court further found:

The Trust in this case was signed not by the settler, Connie C. Gore, but by Hazel G. Lansou as Agent and Attorney-in-fact for Connie C. Gore. Since authority must be given expressly to make an inter vivos donation, either outright or to a new or existing trust, the trust is only valid if Connie C. Gore gave Hazel Lansou express authority to make inter vivos donations. Therefore, the power of attorney at issue must expressly authorize Hazel Lansou to donate Ms. Gore’s interest for the donation to be valid. The “General Power of Attorney” signed on March 22, 1996 is a standard power of attorney mandate written in very general terms. The “General Power of Attorney” does not expressly state that the mandatory [sic] may make inter vivos donations. In fact, the document does not mention donations at all. Accordingly, this court finds the “General Power of Attorney” did not confer the power to make inter vivos donations on behalf of Ms. Gore to Ms. Lansou.
Mid-South argues that although the mandate does not expressly authorize inter vivos donations, Ms. Gore verbally gave mandatory [sic] authority to Ms. Lansou to |Rmake inter vivos donations. Although the contract of mandate is not required to be in any particular form, when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form. Since an inter vivos trust may be created only by authentic act, the mandate authorizing the mandatary to make an inter vivos donation must be made by authentic act. Therefore, Ms. Gore could not verbally express authority to Ms. Lansou to make inter vivos donations.

STANDARD OF REVIEW

Summary judgments are reviewed de novo on appeal whereby the appellate court asks the same questions as the trial court in determining whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the movant is entitled to judgment as a mater' of law. Marcades v. Cleanerama, Inc., 02-0357, p. 3 (La.App. 4 Cir. 9/25/02); 831 So.2d 288, 289.

The burden of proof in a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial, then the movant’s burden only requires her to. point out the absence of factual support for one or more of the essential elements. Thereafter, if the adverse party falls to produce factual support sufficient to establish that he will be able to satisfy his burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C).

ASSIGNMENT OF ERROR

Mid-South and Mr. LaPorte aver the trial court erred in granting the motion for summary judgment of the Lansou family, including Jeffrey.

POWER OF ATTORNEY AND MANDATE

First, Mid-South asserts “Mrs. Lansou possessed specific authority to execute the Trust, make donations to the Trust, and amend the Trust.” In support of this argument, Mid-South offers the power of attorney as evidence of Ms. Gore’s desire to have her daughter handle her affairs and the deposition testimony [ fiof Ms. Lan-sou, Deborah Griffin, and David Lansou. In her deposition, Ms. Lansou stated that Ms. Gore was present when Mid-South created the power of attorney. Deborah Griffin, Ms. Lansou’s daughter, testified that her grandmother, Ms. Gore desired to have a trust created for tax purposes. David Lansou, Ms. Lansou’s son, testified that he explained to Ms. Gore that the Trust did not have anything to do with taxes and she understood that she was creating a living trust. Both of the grandchildren testified that Ms. Gore did not discuss the specific distribution details of the Trust with them.

Second, Mid-South argues that the power of attorney empowered Ms. Lansou as the mandatary with authority to execute the trust.

The Louisiana Trust Code governs the creation of trusts and provides “[a]n inter vivos trust may be created only by authentic act or by act under private signature executed in the presence of two witnesses and duly acknowledged by the settlor or by the affidavit of one of the attesting witnesses.” La. R.S. 9:1752. The settlor is the person who creates the trust. La. R.S. 9:1761. A person Having capacity to contract by onerous or gratuitous title may be a settlor of an onerous or gratuitous inter vivos trust, respectively. La. R.S. 9:1763.

La. C.C. art. 2989 states, “[a] mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal.” La. C.C. art. 2997 explains, in pertinent part:

Authority also must be given expressly to: 1) Make an inter vivos donation, either outright, or to a new or existing trust or other custodial arrangement, and, when also expressly so provided, to impose such conditions on the donation, including, without limitation, the power to revoke, that are not contrary to the other express terms of the mandate.

|7La. C.C. art. 2996 also requires that “the authority to alienate, acquire, encumber, or lease a thing must be given expressly. Neither the property or its location need be specifically described.”

In the present case, the signature block for the settlor indicates that it was signed by Connie C. Gore, By: Hazel Lansou, Agent & Attorney-in-Fact and the power of attorney is attached to the Trust. Ms. Gore did not duly acknowledge the Trust as she did not sign it. The power of attorney failed to grant Ms. Lansou express authority to create the Trust because it lacked express authority for Ms. Lansou to make inter vivos donations. Thus, the Trust did not conform to Louisiana law.

Third, Mid-South argues, “circumstantial evidence may be considered to determine the scope of a power of attorney” and cites Succession of McCrocklin, 242 La. 404, 137 So.2d 274 (1962), in support of its argument. In McCrocklin, Jack McCrock-lin, acting under authority, of his mother, delivered bonds to Commercial National Bank of Shreveport to be placed in a safe at the bank. On that same date, he advised the bank that his mother desired to make a donation of the bonds to Margaret Virginia Johnson after which the bank would maintain possession of the bonds for Ms. Johnson. The bank then issued a receipt for the bonds on a deposit slip in the names of Ms. Johnson and her mother. Ms. Johnson and her mother later acknowledged, in writing, receipt of the bonds. After the death of Ms. McCrock-lin, two heirs sought an amendment to her inventory to include the bonds. The administrator answered alleging the bonds had been donated to Ms. Johnson and were not owned by Ms. McCrocklin at the time of her death. The heirs argued that the bonds were incorporeal movables and were not susceptible to donation inter vi-vos by manual delivery and could only be donated by notarial act. The | Rcourt held that under the law of negotiable instruments the bonds were negotiated “merely by delivery” and Mr. McCrocklin, her son, had a power of attorney. Thus, he was authorized to make delivery of the bonds as a donation to Ms. Johnson and there was a receipt to both Ms. Johnson and Ms. McCrocklin. McCrocklin is distinguishable from the case at hand because Mrs. Johnson and her mother both acknowledged receipt of the bonds and the delivery of the bonds were in conformity with the law of negotiable instruments. In the present case, none of the contested documents conform to the aforementioned formalities and prescribed laws.

Fourth, Mid-South argues that the trial court improperly relied on Succession of Aucoin, 99-2171 (La.App. 1 Cir 11/8/00); 771 So.2d 286, and Succession of Tebo, 358 So.2d 337 (La.App. 4 Cir.1978), in its reasons for judgment. Specifically, Mid-South asserts “the lower court’s opinion confuses the appropriate issue by implying that the scope of a mandate somehow determined whether or not it is in authentic form. The court implies that express authority cannot be found outside the corners of a legitimate mandate in authentic form.” In Aucoin, the court held that a power of attorney “which does not expressly and explicitly confer upon the agent the power to donate the principal’s interest' in immovable property, did not authorize” a donation of a family home. Aucoin, 99-2171, p. 5, 771 So.2d at 288. We find that the trial court was correct in its analysis of the law and Aucoin. In the case sub judice, the power of attorney was written in general terms and did not expressly authorize the mandatary to make inter vivos donations as required by law.

| ^RATIFICATION

Alternatively, Mid-South argues, “[i]f Mrs. Gore did not grant her daughter the specific authority to execute, amend, and make donations to the trust, she clearly ratified her daughter’s actions.” The Louisiana Trust Code provides that the provisions “shall be accorded a liberal construction in favor of disposition,” but that “if the Code is silent” the courts should look to the Civil Code for proper interpretation. La. R.S. 9:1724. The Trust Code is silent as to the possibility of the ratification of a trust, amendments, or inter vivos donations to the trust. However, the Louisiana Civil Code provides for express or tacit ratification. La. C.C. art. 1843. La. C.C. art. 1843 states, in pertinent part:

An express act of ratification must evidence the intention to be bound by the ratified obligation.
Tacit ratification results when a person, with knowledge of an obligation incurred on his behalf by another, accepts the benefit of that obligation.

Additionally, a donation inter vivos may be confirmed even if it lacks proper form if the confirmation is made “in the form required for a donation.” La. C.C. art. 1845. A mandatary must also have express authority to make donations inter vivos, to a trust or otherwise. La. C.C. art. 2997.

First, the record is devoid of evidence of express or tacit ratification. Ms. Lansou and two of her children testified that Ms. Gore intended .to execute the Trust and make the donations to the Trust. However, this testimony is not express and does not confirm the intent of the settler of the Trust, Ms. Gore. Tacit ratification does not exist because Ms. Gore never directly accepted a benefit from Ms. Lansou’s executing or amending the Trust or from the donations inter vivos. Second, Ms. Lansou was never authorized to execute the amendment to the Trust when she signed as trustee because the Trust instrument explicitly provides that |inMs. Gore has sole authority to amend the Trust. Third, Ms. Gore never confirmed the donations inter vivos that lacked valid form because she never acknowledged the donations in the proper form required by Louisiana law.

Therefore, based on the Louisiana Trust Code and the Louisiana Civil Code, we find this argument has no basis in law.

REFORMATION

Finally, Mid-South asserts the power of attorney should be reformed to reflect Ms. Gore’s intentions as stated by Ms. Lansou and two of her children in their depositions. “A written instrument may be reformed ... to correct an error or mistake in the contract” to make the instrument accurate. First State Bank & Trust Co. v. Seven Gables, Inc., 501 So.2d 280, 285 (La.App. 1 Cir.1986). However, “clear proof’ is required to reform an instrument. Pellegrin v. Ditto, 625 So.2d 1356, 1360 (La.App. 1 Cir.1993); First State Bank, 501 So.2d at 285. Parol evidence may be admitted to demonstrate this proof. Pellegrin, 625 So.2d at 1360. However, the Civil Code provides that the “capacity to donate inter vivos must exist at the time” the donation is made. La. C.C. art. 1471. Additionally, express authority must be given to “make an inter vivos donation, either outright or to a new or existing trust.” La. C.C. art. 2997.

No parol evidence exists in the record to support the clear proof required for reformation of a document. Ms. Gore granted Ms. Lansou a general power of attorney and never ratified Ms. Lansou’s actions, which were invalid under Louisiana law. The general power of attorney did not grant Ms. Lansou the capacity to make inter vivos donations, and, by interpreting the Louisiana Civil Code, this capacity cannot be granted retroactively.

| nTherefore, based on the Civil Code and jurisprudence, we find this argument has no basis in law.

DECREE

For abovementioned reasons, we affirm the judgment of the trial court granting summary judgment in favor of plaintiffs and finding that no genuine issue of material fact exists that -the Last Will and Testament, the Connie C. Gore Trust, and the Trust amendment were invalid as to form and that Connie C. Gore did not expressly mandate the donations.

AFFIRMED

      . Clark Neal died on April 22, 2001, prior to Ms. Lansou executing the amendment to the Trust. James E. LaPorte was appointed executor of the Succession of Clark A. Neal and has been named as a party in his capacity as Executor. An uncontested motion to consolidate the Lansou and LaPorte appeals was granted on July 19, 2005.

      . The details of this payment are not in the record.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Joseph HOLMES.
    No. 2005-KA-1248.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 2006.

      Eddie J. Jordan, Jr., District Attorney, Battle Bell IV, Assistant District Attorney, New Orleans, Counsel for Plaintiff/Appel-lee.
    William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, Counsel for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11 Appellant Joseph Holmes appeals his conviction for purse snatching. We affirm.

STATEMENT OF FACT

Celeste Orris stated that on July 25, 2004 she went out for the evening with several people. Orris’ group arrived at the Balcony Bar at approximately 9:00 P.M. Orris stated that she and her friends consumed alcohol while at the Balcony Bar. Orris’ group eventually left the Balcony Bar and went to the Half Moon Bar. Orris testified that the Half Moon Bar is located near the corner of Sophie Wright and St. Mary Streets in New Orleans. Orris arrived at the Half Moon Bar at approximately 1:30 a.m. on July 26, 2004. Orris stated that she consumed alcohol while at the Half Moon Bar. Neither the state nor the defense introduced any evidence as to the amount of alcohol consumed by Orris at either bar over the course of the evening. At approximately 2:30 A.M., Orris and her friends were sitting at a table on the sidewalk outside of the bar. Orris testified that she was sitting in a chair with her back to the street with her black leather handbag was sitting beside her on another chair when a man rode up to her on a bicycle, snatched her purse, and rode away. Orris stated that she had seen the man earlier Rthat evening inside the Half Moon Bar. .Orris described the man to the police as approximately twenty to twenty-five years old and wearing a white t-shirt and blue jeans. Orris testified that her purse contained ten to fifteen dollars in cash and a cell phone.

Orris testified that Sgt. Chris Billiot contacted her approximately two weeks after the incident and asked her to come to the police station. At the police station, Orris viewed a photographic lineup and was asked whether one of the photographs depicted the man who snatched her purse. After consideration, Orris picked photograph two, and signed and dated the back of the photograph in the presence of Detective Sandra Contreras. Orris testified that Detective Contreras told her nothing prior to the lineup, and stated that Detective Contreras neither suggested whom she should pick nor promised her anything. In court, Orris identified the lineup and the photograph she picked at the police station. Further, Orris also identified defendant as the purse-snatcher.

Questioning by the State and defense expanded upon Orris’ testimony at trial. Specifically, Orris testified that after arriving at the Half Moon Bar she saw defendant sitting at the bar. drinking a beer. Orris testified that defendant was approximately five feet away from her when she saw him in the bar. When asked how she knew that the man she saw sitting at the bar was the same man who snatched her purse, Orris testified: “Because he was coming from this direction and I could see him out of the corner of my eye and I saw him grab my purse, because it was right beside me and I saw him continue going.” Orris stated that there was no physical contact between her and defendant. Orris also testified that in addition to cash and a cell phone, her stolen purse also contained a credit card and her friend’s passport. Following the incident, Orris’ friend telephoned the | spolice, who came out and took a statement from Orris. Orris testified that that at the photo lineup the police did not force her to select a photo, did not promise her anything for selecting a photo, and did not suggest anything to her.

Detective Sandra Contreras testified that she was assigned to the Sixth District on July 26, 2004 and participated in the investigation of the foregoing purse snatching. Detective Contreras stated that her sergeant reassigned the case to her on .July 28, 2004. After getting the assignment, Contreras read the incident report and learned that the prior detective on the case had completed a subpoena duces tecum for the production of Orris’ cell phone records. After receiving Orris’ phone records Contreras began tracking the cellular phone activity on the records and developed defendant as a suspect. Detective Contreras described her phone record investigation accordingly:

After I obtained the cell phone numbers, I put them into an information system that gave me the address to which the phone was registered as well as the person who the phone was registered to. After that, I entered it into a data base. At which time, it revealed several subjects at several locations.
From there, I just tracked it back to — I tracked it back to the subjects. Then I entered those names into another data base. And from there, I was able to link, I believe it was, two subjects to the 6th District area.

Detective Contreras clarified that Orris’ phone was used to make several calls to three addresses. The first location was a Benson Street address. It was subsequently learned that defendant’s girlfriend lived at the Benson Street address. Under cross-examination, Detective Contreras admitted that several individuals lived at the Benson Street address, some of whom fit the description provided by Orris of the purse-snatcher. However, Detective Contreras explained that she ^discounted these other individuals as suspects because defendant had a Felicity Street address at the time of the incident, and the purse-snatcher was last seen fleeing down Felicity Street.

The second location was a Deslonde Street address. Detective Contreras stated that no one was at this address when she visited it. Detective Contreras noted that she learned that an individual later came back to this address but she discounted him as a suspect because there was no evidence that he was in the Sixth District at the time of the incident.

The third location was a Werner Street address. This address yielded another potential suspect, one Charles Baumer. Detective Contreras could not locate Baumer but nevertheless spoke with the owner of the residence at the Werner Street address. The owner told Detective Contreras she was on vacation at the time of the calls and that no one was supposed to have been in the house at the time. The phone records indicate that two calls were placed to the Werner Street address and that someone answered and spoke to someone for a number of minutes. Nevertheless, Detective Contreras discounted Baumer as a suspect in the underlying crime because he did not fit Orris’ description of the purse-snatcher.

Accordingly, Detective Contreras concluded that defendant was the most likely suspect for the purse snatching. Moreover, Detective Contreras testified that she ordered a photo-lineup containing defendant’s photograph. Detective Contreras also stated that she filed the photo-lineup into evidence after Orris viewed the lineup.

Sergeant Chris Billiot testified that he was assigned to the Sixth District and investigated the July 26, 2004 purse snatching. Sergeant Billiot testified that he prepared a photographic lineup containing defendant’s photograph. Sergeant | .^Billiot also interviewed Orris and presented to her the photographic lineup. Billiot testified that Orris viewed the photos, identified a perpetrator, and signed and dated the back of the perpetrator’s photo. Sergeant Billiot stated that while Orris was positive in her identification, she was not one hundred percent positive.

Further, Billiot testified that he did not force, threaten, or coerce Orris into making an identification. Similarly, Sergeant Billiot stated that he promised nothing to Orris in exchange for an identification and gave no suggestions to her. At trial, Sergeant Billiot identified State Exhibit One as the photo lineup he prepared in connection with this case. Further, Sergeant Billiot also identified picture two as the photo selected by Orris, stated that it was a photo of defendant, and identified defendant in court as the man asserted by Orris to be the purse snatcher.

Sergeant Billiot arrested defendant after Orris identified defendant as the purse-snatcher. Sergeant Billiot explained that defendant was already in police custody in connection with an unrelated incident. Moreover, Sergeant Billiot testified that upon his arrest defendant stated that he was with his girlfriend at her Benson Street address at the time of the purse snatching.

ASSIGNMENTS OF ERROR

1. The trial court erred by failing to grant Defendant’s motion to suppress the identification because the identification was improperly and unconstitutionally suggestive.
2. The evidence was insufficient to establish Defendant’s guilt for the offense.

RLAW AND ANALYSIS

Defendant contends that the trial court erred by failing to grant his motion to suppress the identification because the identification was improperly and unconstitutionally suggestive.

La.Code of Criminal Procedure art. 703(D) provides that the defendant has the burden of proof on a motion to suppress an out of court statement. To suppress an identification, a defendant must first prove that the identification procedure was suggestive. State v. Prudholm, 446 So.2d 729, 738 (La.1984). An identification procedure is suggestive if, during the procedure, the witness’ attention is unduly focused on the defendant. State v. Robinson, 386 So.2d 1374, 1377 (La.1980). Moreover, a defendant who seeks to suppress an identification must prove both that the identification itself was suggestive and that a likelihood of mis-identification existed as a result of the identification procedure. State v. Valentine, 570 So.2d 533 (La.App. 4 Cir.1990).

The Supreme Court has held that even if the identification could be considered suggestive, it is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure. State v. Thibodeaux, 98-1673 (La.9/8/99); 750 So.2d 916, 932. Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Even a suggestive, out-of-court identification will be admissible if it is found reliable under the totality of circumstances. State v. Guy, 95-0899 (La.App. 4 Cir. 1/31/96), 669 So.2d 517. If a suggestive identification procedure has been proved, a reviewing court must look to several factors to |7determine, from the totality of the circumstances, whether the suggestive identification presents a substantial likelihood of misidentifi-cation at trial. State v. Martin, 595 So.2d 592, 595 (La.1992). The U.S. Supreme Court has set forth a five-factor test to determine whether a suggestive identification is reliable: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. Manson v. Brathwaite, Id. The corrupting effect of the suggestive identification itself must be weighed against these factors. Martin, 595 So.2d at 595.

In evaluating the defendant’s argument, the reviewing court may consider all pertinent evidence adduced at the trial, as well as at the hearing on the motion to suppress the identification. State v. Lewis, 2004-0227 (La.App. 4 Cir. 9/29/04); 885 So.2d 641, 652. A trial court’s determination on the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Offray, 2000-0959 (La.App. 4 Cir. 9/26/01); 797 So.2d 764.

In the present case, the defendant asserts that the photographic lineup was unduly suggestive because his photograph (one of six) was placed in the top center position and because the background shade of his photograph was lighter than the others.

The photo lineup is not available on appeal, but nothing in the record suggests that the photo lineup was unduly suggestive. Officer Contreras used a computer program to choose other individuals, to place in the lineup. The program allows entry of such information as race, gender, age, complexion, and height to |sfínd other individuals for a photo lineup. Nothing in the record suggests any intention by the state to guide Ms. Orris’ attention to Defendant. Defendant’s hypothesis that a larger head and different background on his photograph unduly brought Ms. Orris’ attention to him is conjecture with no foundation in the record. Furthermore, nowhere did Defendant ever question Ms. Orris about the impact' of any such alleged differences on her decision. Accordingly, nothing in the record shows that the trial judge abused his discretion in finding that the lineup was not unduly suggestive.

In his second assignment of error, defendant argues that the state’s evidence was insufficient to establish that he snatched Orris’ purse. Essentially, Defendant’s second assignment of error reiterates the same criticisms leveled by Defendant in his first assignment of error against the state’s evidence. The state asserts that Defendant ignores the entirety of the record, choosing instead to focus on the weak spots in the state’s case, i.e., Orris’ consumption of alcohol, the fact that the perpetrator was behind Orris for a period of time, and Sergeant Billiot’s testimony that Orris was less than one hundred percent certain in her identification. Moreover, the state also points out that the linking of defendant to the crime is not solely dependant upon Orris’ testimony. Specifically, the state directs this Court to the phone records from Orris’ cell phone and Detective Contreras’ subsequent investigation into the calls placed with Orris’ phone after the purse snatching.

When a key issue at trial is whether the defendant was the perpetrator of the crime, the State is required to negate any reasonable probability of misiden-tification- in order to carry its burden of proof beyond a reasonable doubt. State v. Bright, 1998-0398 (La.4/11/00); 776 So.2d 1134, 1147. The fact-finder weighs the respective credibilities of the witnesses, and a reviewing court will |agenerally not second-guess those determinations. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). However, the touchstone of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) is rationality and that “irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). The trier of fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witnesses. State v. Hampton, 98-0331 (La.4/23/99); 750 So.2d 867, 880.

As noted previously, defendant attacks Orris’ identification of him as the perpetrator on numerous fronts. Defendant asserts that Orris did not have a good view of the purse-snatcher.. The defendant also argues that Orris’ perception was clouded by alcohol and that her description of the perpetrator’s age was off by several years. Further, defendant contends that Sergeant Billiot’s testimony that Orris was less than one hundred percent certain in her identification supports a reversal of his conviction-. Essentially, the defendant contends that the trial court could not have rationally accepted Orris’ testimony in the face of these facts.

However, a plain reading of the evidence refutes defendant’s contention that the trial judge erred in regards to the identity issue. As discussed previously, Orris clearly testified at trial that: 1) she first saw defendant in the Half-Moon Bar sitting at the bar drinking; 2) defendant was only five feet away from her when she saw him sitting at the bar; 3) she saw defendant coming towards her on a bicycle; 4) she saw defendant snatch her purse; 5) she watched defendant ride past her after snatching her purse; and, 6) the person on the bicycle was the same person she saw | inin the bar. Further, the description of defendant given by Orris’ to the police after the incident was accurate, aside from the seven-year age discrepancy.

The state’s case against defendant was also proven through the use of independent evidence. As noted previously, the post-theft phone records from Orris’ cell phone showed that the thief made a phone call to a Benson Street address. Through her investigation, Detective Contreras learned that defendant’s girlfriend lived at the Benson Street address. Under cross-examination, Detective Contreras admitted that several individuals lived at the Benson Street address, some of whom fit the description provided by Orris of the purse-snatcher. However, Detective Contreras explained that she discounted these other individuals as suspects because defendant had a Felicity Street address at the time of the incident, and the purse-snatcher was last seen fleeing down Felicity Street. Moreover, upon his arrest defendant told Sergeant Billiot that he was at the Benson Street address at the time of the present incident.

The Supreme Court has held that independent evidence that a crime has been committed and testimony by a victim or eyewitness generally is sufficient to support a guilty verdict. Bright, 776 So.2d at 1148. In this case, the defendant’s arguments do not establish that the independent evidence, when coupled with Orris’ eyewitness identification, is unworthy of a finding of reliability or that a reasonable likelihood of misidentification exists. Accordingly, defendant’s second assignment of error lacks merit.

CONCLUSION

For the foregoing reasons we affirm Joseph Holmes’ conviction and sentence.

AFFIRMED.


author: CHARLES R. JONES, Judge.

text:
    Vinod Kumar DAHIYA v. TALMIDGE INTERNATIONAL LTD., Neptune Shipmanagement Services (PTE), Ltd., American Eagle Tankers, Inc., Ltd., American Eagle Tankers Agencies, Inc. and The Britannia Steam Ship Insurance Association Ltd.
    No. 2005-CA-0514.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 26, 2006.
    Rehearing Denied June 30, 2006.

      Kevin C. O’Bryon, Sherri L. Hutton, O’Bryon & Schnabel, PLC, New Orleans, LA, for Plaintiff/Appellant.
    Gary A. Hemphill, Terriberry, Carroll & Yancey, L.L.P., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

L This matter results from the district court’s judgment in favor of the plaintiff, Vinod Dahiya, in the total amount of $579,988.00, and against the defendants, Talmidge International, Ltd., Neptune Shipmanagement Services (PTE.), Ltd, and American Eagle Tankers Agencies, Inc. Prior to rendering judgment in this matter, the district court denied the defendants’ Exceptions of No Right of Action, and Improper Venue, finding that a Louisiana statute that nullifies forum selection clauses in contracts of employment preempts federal law, specifically, The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter “the Convention”), an international treaty of the United States. Having reviewed the record before this Court, the judgment in favor of the plaintiff, Vinod Dahiya, is reversed, and this matter is remanded to the district court.

FACTS

This is a maritime personal injury case in which the district court awarded damages for extensive burn injuries suffered by a seaman, Mr. Dahiya, in the [^service of his vessel.' Mr. Dahiya is a citizen of India. In 1999, he applied for a job with Singapore-based Neptune Shipmanagement Services (Pte., Ltd.) (hereinafter “Neptune”), was hired, and signed a contract of employment or “deed” that specified the terms and conditions of his employment. Neptune then paid for Mr. Dahiya to be sent to a maritime training school and eventually employed him on the MTV EAGLE AUSTIN, a Singaporean flag vessel, as an engine room cadet.

The incident which gave rise to this litigation occurred on the vessel in November 1999, while Mr. Dahiya was operating an incinerator in the engine room. The cause of the incident was contested at trial, but the district court found that the cause of Mr. Dahiya’s burn injuries was Neptune’s negligence and the Eagle Austin’s unseaworthiness. Judgment was entered against Neptune and against Talmidge International, Ltd., the vessel owner. These liability findings are not contested on appeal.

The accident occurred while the vessel was on the high seas in international waters. Because the vessel was en route to Louisiana at the time, Mr. Dahiya was transported to the burn unit at the Baton Rouge General Medical Center where he received medical care for approximately 30 days before being repatriated to his home in India. His employer paid all medical and travel expenses, so at trial there was no claim for past medical expenses.

|sMr. Dahiya returned to Louisiana in 2001, when he came here on a student visa. He subsequently filed suit in 2002. While this suit was pending, Mr. Dahiya’s status with the United States Immigration and Naturalization Service became tenuous because of his failure to maintain his status as a student. Whether Mr. Dahiya has been permitted to return to the United States as of this time is not of record.

PROCEDURAL HISTORY

Although the legal issue before this Court is relatively narrow, the procedural history of this case is fairly convoluted. Mr. Dahiya filed suit in the 25th Judicial District Court for the Parish of Plaque-mines in March, 2002, against his employer, Neptune Shipmanagement Services; the owner of the ship on which he was injured, Talmidge International; co-owners of the fleet to which the ship belongs, American Eagle Tankers and American Eagle Tankers Agencies; and the ship’s insurer, Brittania Steam Ship Insurance Association. Pursuant to the Convention and the holding of the United States Fifth Circuit Court of Appeals in Francisco v. Stolt Achievement, 293 F.3d 270 (5th Cir.) cert. den. 537 U.S. 1030, 123 S.Ct. 561, 154 L.Ed.2d 445 (2002), the defendants removed the case to the United States District Court for the Eastern District of Louisiana on July 15, 2002. Once in federal court, the defendants moved to compel arbitration and to stay the proceedings or, in the alternative, to dismiss Mr. Dahiya’s suit. Mr. Dahiya moved to remand, arguing that the contract’s terms did not qualify as an arbitration agreement under the Convention and therefore could not support removal under 9 U.S.C.A. § 205 which provides in pertinent part that:

|4[w]here the subject matter of an action or proceeding pending in a State court relates to an arbitration agreement or award falling under the Convention, the defendant or the defendants may, at any time before the trial thereof, remove such action or proceeding to the district court of the United States for the district and division embracing the place where the action or proceeding is pending.

Although finding that the arbitration clause in Mr. Dahiya’s contract was applicable and virtually identical to the one enforced by the Fifth Circuit in Francisco, Judge Martin L.C. Feldman of the Eastern District remanded the case to state court on October 21, 2002, on the ground that Louisiana Revised Statute 23:921 precluded enforcement of the arbitration clause. With respect to § 205, the court reasoned that because the deed contained no valid forum selection clause, the parties had not entered into an agreement to arbitrate valid under the Convention.

From that point, parallel proceedings, one in federal court and one in state court, went forward. Defendants filed a federal appeal of Judge Feldman’s ruling. While that appeal was pending, Judge Feldman revisited the issue of the alleged preclusive affect of R.S. 23:921 in Lejano v. K.S. BANDAK, C.A. 00-2990, 2000 WL 33416866 (E.D.La.2000). In that decision, Judge Feldman recanted his prior remand order in this case with the following comment:

The plaintiffs’ again argue that the Court’s ruling in Vinod Kumar Dahiya v. Talmidge International, Ltd., et al, Civil Action No. 02-2135 (October 11, 2002), should apply to this case. The Court disagrees. Although the Court lacks jurisdiction to vacate its earlier ruling granting remand in Dahiya, after further review of the Supreme Court’s ruling in M/S Bremen v. Zapata OffShore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) and its reasoning in Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984), the Court finds that its ruling in Dahiya was incorrect.

Because Judge Feldman no longer had jurisdiction at that point, however, he could not rectify his error and the federal appeal continued. Because of a general | ¿federal rule precluding appeals of remand orders, however, a split panel of the Fifth Circuit dismissed the appeal for lack of appellate jurisdiction, noting that federal statutory law “... bars a federal appellate court from reviewing the remand ruling ‘no matter how erroneous.’ ” Dahiya v. Talmidge International, Ltd., et al, 371 F.3d 207, 209 (5th Cir.2004), citing Arnold v. State Farm Fire & Cas. Co., 277 F.3d 772, 775 (5th Cir.2001); and 28 U.S.C.A. § 1447(d), (d) (West 1994).

DISCUSSION

In their first assignment of error, the Appellants assert that the district court erred as a matter of law when it failed to sustain the Appellants’ Exceptions of No Right of Action, Improper Venue and Arbitration pursuant to an arbitration forum selection clause in Mr. Dahiya’s contract of employment, or to dismiss or stay the case pending arbitration. We agree and find that federal law supercedes any state law that purports to nullify forum selection clauses in employment contracts and vitiate an international treaty obligation of the United States.

Standard of Review

We review the district court’s failure to enforce the arbitration clause in Mr. Dahiya’s employment contract de novo because it was based implicitly on the court’s legal conclusion that Louisiana statutory law supercedes the Convention. The Louisiana Supreme Court stated in Cleco Evangeline, LLC v. Louisiana Tax Commission, 01-2162 (La.4/3/02), 813 So.2d 351, 353, with respect to an issue of law being reviewed on appeal that “[w]e review the matter de novo, and render judgment on the record, without deference to the legal conclusions of the tribunals below.” The issue regarding whether federal law preempts state law is a question of law, so this issue must be reviewed de novo by this Court. In Re Medical Review Panel Proceedings for the Claim of Allan Tinoco, et al. v. Meadowcrest Hospital, et al., 03-0272 (La.App. 4 Cir. 9/17/03), 858 So.2d 99, 103, citing Crawford v. Blue Cross and Blue Shield of La., 00-2026, p. 3 (LaApp. 4 Cir. 12/5/01), 814 So.2d 574, 577.

Analysis

The defendants contend that federal law, specifically the Convention, preempts state statutory law and thus, the arbitration clause in Mr. Dahiya’s contract of employment is valid and should have been enforced. The Convention was negotiated in 1958 and entered into by the United States in 1970 pursuant to the Constitution’s treaty power. That same year, Congress adopted enabling legislation, codified at 9 U.S.C. § 201 et seq., to make the Convention, “the highest law of the land.” As such, the Convention must be enforced according to its terms over all prior inconsistent rules of law. F.A. Richard and Associates, Inc. v. General Marine Catering Co., Inc., 688 So.2d 199, 202 (La.App. 4 Cir. 1/29/97), citing Sedco, Inc. v. Petroleos Mexicanos Mexican National Oil Co., 767 F.2d 1140 (5th Cir.1985). The Supremacy Clause declares that federal law “shall be the supreme law of the land[,] ... any Thing [sic] in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2 (emphasis added). See, Lim v. Offshore Specialty Fabricators, Inc., 404 F.3d 898, 904 (5th Cir.2005). The Fifth Circuit has found that “Where [state] laws conflict with a treaty, they must bow to the superi- or federal policy.” Id. citing Zschernig v. Miller, 389 U.S. 429, 441, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968) (emphasis added).

Congress’ implementing legislation for the Convention is found as part of the Arbitration Act. 9 U.S.C. § 1 et seq. Chapter 1 of Title 9 is the Federal Arbitration Act (hereinafter “FAA”) passed long ago to overcome American courts’ common law hostility to the arbitration of disputes. Id. The Convention ^incorporates the terms of the FAA, codified at 9 U.S.C. § 1 et seq., which in turn specifically requires that a court stay litigation of a dispute that is subject to arbitration.

However, Louisiana law is completely inapposite. Louisiana Revised Statute 23:921(A)(2) states:

The provisions of every employment contract or agreement, or provisions thereof, by which any foreign or domestic employer or other person or entity includes a choice of forum clause or choice of law clause in an employee’s contract of employment or collective bargaining agreement, or attempts to enforce either a choice of forum clause or choice of law clause in any civil or administrative action involving an employee, shall be null and void except where the choice of forum clause or choice of law clause is expressly, knowingly, and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is the subject of the civil or administrative action.

Louisiana Revised Statute 23:921(A)(2).

The Louisiana anti-forum-selection-clause statute conflicts directly with the Convention’s mandate to enforce arbitration clauses.

Furthermore, while the United States Constitution grants jurisdiction to federal district courts in all “Cases of admiralty and maritime jurisdiction,” U.S. Const, art. Ill, § 2, see also 28 U.S.C. § 1333(1), state courts have concurrent jurisdiction by virtue of the “saving to suitors” clause of the Judiciary Act of 1789 as amended.

In the present case, Mr. Dahiya, although his case falls within federal admiralty jurisdiction, brought his case in state court pursuant to the savings to suitors clause, designating his suit as a suit in admiralty or a general maritime claim in his original Petition for Damages: “This case is an admiralty and/or 1 ^maritime claim brought in state court under the saving to suitors clause and is brought pursuant to Article 1732(6) of the Louisiana Code of Civil Procedure.”

“As a general proposition, ‘[a] maritime claim brought in common law state courts ... is governed by the same principles as govern actions brought in admiralty, i.e., by federal maritime law.’ ” Giorgio v. Alliance Operating Corp., et al, 05-0002, pg. 10 (La.1/19/06), 921 So.2d 58, 67, citing Green v. Industrial Helicopters, Inc., 593 So.2d 634, 637 (La.1992), cert. denied, 506 U.S. 819, 113 S.Ct. 65, 121 L.Ed.2d 32 (1992). “Thus, with admiralty jurisdiction comes the application of substantive admiralty law.” Giorgio, at 921 So.2d 67, citing New England Mut. Marine Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 25, 20 L.Ed. 90 (1870).

However, the general maritime law is not a complete or all-inclusive system.

When new situations arise that are not directly governed by legislation or admiralty precedent, federal courts may fashion a rule for decision by a variety of methods. Federal courts may, and often do, look to state statutory law and to precepts of the common law which they “borrow” and apply as federal admiralty rule. Moreover, federal courts may apply state law, as such, to a case with the admiralty jurisdiction if the occurrence is “maritime but local” and there is no need to fashion a uniform admiralty rule. Finally, federal courts may apply state law and regulations to supplement the general maritime law when there is no conflict between the two systems of law, and the need for uniformity of decision does not bar state action. Giorgio 921 So.2d at 67-68, citing T. Schoenbaum, Admiralty and Maritime Law § 4-1, pp. 158-59.

“It is well settled that by virtue of the savings clause ‘a state, “having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents as it sees fit” so long as it does not attempt to make changes in the substantive maritime law.’ ” Giorgio, 921 So.2d at 67-68, citing Green, 593 So.2d at 637. The Court in Giorgio noted that:

[gThe United States Supreme Court has made clear that the uniformity principle does not preclude the application of state law in admiralty; rather, the decision whether to apply state law in cases within admiralty jurisdiction must be based upon balancing state and federal interests:
[T]he fact that maritime law is — in a special sense at least ..: — federal law and therefore supreme by virtue of Article VI of the Constitution carries with it the implication that wherever a maritime interest is involved, no matter how slight or marginal, it must displace a local interest, no matter how pressing or significant. But the process is surely rather one of accommodation, entirely familiar in many areas of overlapping state and federal concern, or a process somewhat analogous to the normal ■ conflict of laws situation where two sovereignties assert divergent interests in a transaction as to which both have some concern.

Giorgio, at pg. 11, 921 So.2d 58, citing Kossick v. United Fruit Co., 365 U.S. 731, 739, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961).

“.Therefore, state law may be applied where the state’s interest in a matter is greater than the federal interest.” Giorgio, 921 So.2d at 68, citing Green, 593 So.2d at 638. However, we find that in the instant case, the interest in federal policy outweighs that of state policy; therefore, federal law preempts state law.

Repeatedly, Congress has endorsed arbitration clauses, first through the passage of the Federal Arbitration Act (hereinafter “FAA”), and then through adoption of the Convention and implementation of the Convention Act. Lim, 404 F.3d at 905. “In 1984, the United States Supreme Court held the Federal Arbitration Act preempts state law and concluded that state courts cannot apply state statutes that invalidate arbitration agreements.” F.A. Richard and Associates, Inc. v. General Maritime Catering Co., Inc., 96-1902 (La.App. 4 Cir. 1/29/97), 688 So.2d 199, 202, citing Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984). “The Court reaffirmed its decision regarding the Federal Arbitration Act’s preemption of state law in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995) and Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). Thus, the Convention, which encompasses Chapter 2 of Title 9, The FAA, preempts any state law that would invalidate arbitration agreements.” F.A. Richard and Associates, Inc. v. General Marine Catering Co., Inc., 688 So.2d at 202. The district court’s finding otherwise is erroneous.

Moreover, federal courts have supported this strong policy in favor of arbitration. “[Questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration.” Lim, 404 F.3d at 906, quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). In the context of the Convention, the Supreme Court held: “[C]oncerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes require that we enforce the parties’ [arbitration] agreement, even assuming that a contrary result would be forthcoming in a domestic context.” Lim, 404 F.3d at 906, quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 629, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (emphasis added). “More specifically, federal courts have endorsed federal arbitration policy by applying the Convention to seaman’s employment contracts.” Lim, citing Francisco, 293 F.3d at 274; Bautista v. Star Cruises, 396 F.3d 1289, 1300 (11th Cir.2005).

We note that in weighing these competing policy concerns, plaintiffs employment contract does not present the inequities the Louisiana statute was | n crafted to prevent. See Lim. “That statute seeks to protect Louisiana citizen-employees from being subjected to litigation in a foreign forum, under laws with which they are not familiar and before a foreign body.” Lim, citing Testimony of Representative Jackson, Official Minutes of Louisiana Senate Committee on Labor and Industrial Relations, Hearing on Senate Bill 915 (22 April 1999). Plaintiff in this case is a resident and citizen of India. His employment contract does not require him to bring claims in a foreign forum, but instead require him to submit to arbitration in his home country, before Mr. Dahiya’s countrymen.

Nevertheless, the United States Supreme Court in M/S Bremen v. Zapata Off-Shore Company, 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), held that a contractual choice-of-forum clause should be held unenforceable if its enforcement-would contravene a strong public policy of the forum in which suit was brought, whether declared by statute or by judicial decision. Id., 407 U.S. at 15-16, 92 S.Ct. at 1916.

While we acknowledge that the Louisiana Supreme Court did find in Sawicki v. K/S Stavanger Prince, 802 So.2d 598, 603 (La.2001) that La. R.S. 23:921 A(2) is an expression of strong Louisiana public policy concerning forum selection clauses, we note that the Court very recently stated in Giorgio that “federal courts may apply state law and regulations to supplement the general maritime law when there is no conflict between the two systems of law, and the need for uniformity of decision does not bar state action.” Giorgio, 921 So.2d at 67, quoting Schoenbaum, supra, at § 4-1, pp. 158-59. The Court further noted that “it is well settled that by virtue of the savings clause ‘a state, having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents as it sees fit’ so long as it does not attempt to make changes in the substantive | ^.maritime law.” Giorgio 921 So.2d at 67-68, citing Green v. Industrial Helicopters, Inc., 593 So.2d 634, 637 (La.1992), cert. denied, 506 U.S. 819, 113 S.Ct. 65, 121 L.Ed.2d 32 (1992).

Thus, there would appear to be two competing policy interests here. By enacting § 23:921, the Louisiana legislature has expressed its concern that in order for forum selection and choice of law clauses in employment contracts to be valid, employees must ratify them subsequent to the incidents giving rise to the claims. La. R.S. § 23:921A(2) (West 2004). The Louisiana Supreme Court, in Sawicki, 802 So.2d at 603, stated that the statutory requirement that employees agree to the forum (arbitration versus court, or choice of court) and the law to be applied after the fact of their inquiry or dispute occurs reflects Louisiana’s strong public policy concerning forum selection clauses.

However, the federal policy indicated by the Supreme Court in Bremen pulls in the opposite direction entirely. In Bremen, the ship at issue “was to traverse the waters of many jurisdictions ... [That] the accident occurred in the Gulf of Mexico and the barge was towed to Tampa in an emergency were mere fortuities.” 407 U.S. at 13, 92 S.Ct. at 1915. The Court explained that the international contracting parties wanted to provide a neutral forum beforehand, so that there would be no question as to what would happen in case of a dispute. Id. This strong federal policy regarding the validity of pre-dispute selections of forum arises from “sensitivity to the need of the international commercial system for predictability in the resolution of disputes.” Sedco, Inc. v. Petroleos Mexicanos Mexican National Oil Co. (Pemex), 767 F.2d 1140, 1148-49 (5th Cir.1985). This Court also recognizes the strong federal policy in favor of rigorously enforcing the specific |1sforum choice of arbitration and arbitration awards, as reflected by Congress in enacting the FAA and the Convention. See Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 858, 79 L.Ed.2d 1 (1984); Scherk v. Alberto-Culver Co., 417 U.S. 506, 519-20, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974).

Predictability in the resolution of disputes is what the Appellants desired and what Mr. Dahiya expressly agreed to in his deed here, and precisely what § 23:921 conflicts with. If an accident or incident were to occur during and relating to Mr. Dahiya’s training and employment under Neptune, notwithstanding in which body of water, Section II.8 of Mr. Dahiya’s deed clearly anticipated the procedure to be followed — arbitration in either India or Singapore before a specific arbitrator who would apply Indian arbitration law. That this incident occurred in international waters near Louisiana and that Mr. Dahiya received emergency medical treatment in Louisiana are “mere fortuities” because Mr. Dahiya and Neptune had already agreed to submit to arbitration elsewhere.

Section 23:921 voids all arbitration clauses in employment contracts, regardless of their terms. We find that this policy not only directly conflicts with Bremen’s presumption of validity for forum selection clauses in general, but it also conflicts with the proarbitration policy set out by Congress in the FAA and the Convention that similarly presumes arbitration provisions to be “valid, irrevocable, and enforceable.” 9 U.S.C.A. § 2. The presumption of validity of arbitration clauses is also what another public policy of Louisiana heavily favors, as evidenced by our legislature’s enactment of La. R.S. § 9:4201, which closely mirrors § 2 of the FAA. See Id; La. R.S. § 9:4201. Thus, Louisiana’s general | upolicy on arbitration is consistent with federal policy that arbitration clauses should be considered presumptively valid.

Given the weight of these competing policy concerns, we find that Mr. Dahiya has not met his heavy burden of showing that the forum selection clause in his deed is unreasonable, and we thus find that the district court erred in concluding that Mr. Dahiya had made such a showing.

Additionally, we find that any argument that the arbitration clause in Mr. Dahiya’s deed is foreclosed by La. R.S. § 23:921 must be tried and tested by preemption analysis. Federal statutes enacted pursuant to the United States Constitution are the supreme law of the land, “[A]ny state law, however clearly within a State’s acknowledged power, which interferes with or is contrary to federal law, must yield.” Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 108, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (citations omitted). Section 2 of the FAA, enacted by Congress pursuant to the Commerce Clause and incorporated by the Convention in 9 U.S.C. § 208, “is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.” Moses H. Cone Memorial Hosp v. Mercury Const. Corp, 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

Finally, the Convention contemplates a limited inquiry by courts when considering whether to compel arbitration. The inquiry questions (1) is there an agreement in writing to arbitrate the dispute; in other words, is the arbitration agreement broad or narrow; (2) does the agreement provide for arbitration in the territory of a Convention signatory; (3) does the agreement to arbitrate arise out of |1Ra commercial legal relationship; and (4) is a party to the agreement not an American citizen. If these requirements are met, the Convention requires the courts to order arbitration. Sedco, Inc., 767 F.2d at 1144-45; Ledee v. Ceramiche Ragno, 684 F.2d 184, 185-186 (1 Cir.1982).

We find that Mr. Dahiya’s arbitration clause easily meets all four requirements of the Convention and that the district court erred in not staying the proceedings and compelling arbitration per the Appellants’ motions. In the instant case, Mr. Dahiya signed a deed covering his twelve months of practical training at-sea, which would be applied to his three-year Diploma in Maritime Studies. He also agreed in the deed to serve as an employee of Neptune or a company of Neptune’s choosing for a bonded period of two years after receiving his degree and passing his Class V exam. Section 1.17 outlined how much Neptune would pay Mr. Dahiya as “wages” for the two years remaining before receiving his degree — the first consisting of his at-sea training and the second year consisting of his attendance of classes at the National Maritime Academy in Singapore. We find that because both parties exchanged promises in the deed, it served as an employment contract.

Both Singapore and India are signatories to the Convention. Thus, the second requirement for the Convention to apply is met in the case sub judice. The third requirement for the Convention to apply is that the agreement arises out of a commercial legal relationship. Francisco, 293 F.3d at 273. The U.S. Fifth Circuit Court of Appeals held in Francisco, that seaman employment contracts are commercial legal relationships covered by the Convention, even though they are |1(iexcepted by the FAA. Id. at 274-75. Accordingly, we find that the third requirement is also met.

Lastly, the final requirement for the Convention to apply is that there must be a party to the agreement who is not an American citizen. Id. at 273. It is clear that neither Mr. Dahiya, nor Neptune is an American citizen. Thus, we find that the final requirement is also met in this case.

Mr. Dahiya’s contract of employment with Neptune contains an arbitration forum selection clause requiring all disputes to be resolved in arbitration in either Singapore or India, pursuant to Indian law. The arbitration clause brings the case within the scope of The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, an international treaty of the United States and, as such, the supreme law of the land. Federal law controls and makes clear that the Convention preempts state law, in this case a Louisiana statute that nullifies forum selection clauses in contracts of employment. We find that pursuant to The Convention and the Federal Arbitration Act, the defendants’ Exceptions of No Right of Action, Improper Venue and Arbitration should have been sustained and the case stayed pending arbitration. Accordingly, we find that the Appellants’ first assignment of error has merit and we therefore reverse the district court’s ruling.

In their second assignment of error, the Appellants argue that the district court’s award of general damages was improperly based on economic standards and legal precedent of the United States as opposed to that of India, Mr. Dahiya’s native country.

In their third assignment of error, the Appellants contend that the district court’s award for past lost wages and future medical expenses was not supported by the evidence. Because we find that the district court improperly applied |17Louisiana statutory law, rather than federal law, we pretermit any discussion of the appellants’ second and third assignments of error that address general and special damages, as well as the cross-appeal of Mr. Dahiya, as they are now moot. Mr. Dahiya files a cross-appeal arguing that the district court inadvertently omitted the defendants’ insurer, Britannia, and that the general damage award is inadequate. As stated previously, we pretermit any discussion of these issues for the reasons discussed supra.

Furthermore, we find Mr. Dahiya’s argument that the law of the case doctrine bars any review of whether federal law preempts state law in this matter, to be inapplicable because the Louisiana Supreme Court has very recently ruled on this issue in Giorgio v. Alliance Operating Corp., et al. Thus, we must follow the law as set forth in Giorgio.

DECREE

For the foregoing reasons, we reverse the district court’s judgment. The matter is remanded to the district court for further proceedings consistent with the reasons cited herein.

REVERSED AND REMANDED.

      . Judgment was rendered in favor of Mr. Da-hiya in the total amount of $579,988.00. Mr. Dahiya has filed a cross-appeal alleging that this amount is inadequate. Mr. Dahiya's cross-appeal also alleges that the district court inadvertently omitted to include the defendants' insurer, The Britannia Steam Ship Insur. Assoc., Ltd., as a party cast in judgment.

      . Because the defendants failed to remove within thirty days, federal jurisdiction hinged entirely on § 205.

      . In 1960, India acceded to the Convention; in 1986, Singapore acceded to the Convention.

      . The defendants previously filed an application for supervisory writs regarding the enforceability of the arbitration clause. This Court denied the application finding that La. R.S. 23:921 invalidates the arbitration clause. This application was denied prior to the Louisiana Supreme Court’s ruling in Giorgio.