text:
    Robert P. JACKSON, Plaintiff-Appellee, v. James E. MAYO, et al., Defendant-Appellant.
    Nos. 42,970-CA, 43,246-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Nanci S. Summersgill, for Appellant.
    Charles D. Jones, La Koshia R. Roberts, for Appellee.
    Before GASKINS, MOORE and DREW, JJ.
   MOORE, J.

I,The City of Monroe appeals two judgments in favor of its former cemetery director, Robert Jackson, who was fired for falsifying his compensatory time (“K-time”) sheets. The first judgment declared that Jackson had not received a proper grievance procedure prior to his discharge and ordered him reinstated with backpay and full benefits. The second judgment ordered the city to pay Jackson’s attorney fees of $82,600. Jackson has answered the appeal, seeking additional attorney fees. For the reasons expressed, we reverse.

Factual Background

Jackson was a 17-year employee of the Monroe Department of Public Works. In 2006, he was promoted to cemetery supervisor, earning $14.86 per hour. He was also an organizer for the city workers’ Union, AFSCME, AFL-CIO Local # 2388. The labor agreement between the city and the Union provided a three-step grievance procedure, Art. VI, Section 2, which was central to the trial of the matter in the district court.

In Step 1, the employee presents an oral grievance to his immediate division head within five working days of the incident; the division head must respond within three working days. If this does not satisfy the employee, Step 2 requires him to submit a written grievance within three working days to his department head, who refers it to the city’s personnel officer; these two jointly review it, conduct “an appropriate investigation” and render a written decision within seven working days. If this does not satisfy the employee, Step 3 requires him to submit a written grievance within three working days to the mayor, who may review the Step 1 and 2 1 ¡¡.evidence, meet with the employee or convene a grievance committee, but he must render a written opinion within five working days.

Between May and November 2006, Jackson filled out time slips requesting 408.75 hours of K-time. Jackson’s immediate supervisor, Sanitation Supervisor Don Hopkins, approved these and forwarded them to the city’s accounting office. In November 2006, Jackson asked for two weeks off, using his K-time. Hopkins approved this also.

While Jackson was off using K-time, however, the Director of Public Works, Cecil Janway, held a mandatory workshop for supervisors. Since taking the helm at Public Works in 2005, Janway had been correcting what he considered to be gross abuses of the K-time system, and he made Jackson use earned vacation time instead of K-time. Janway reviewed Jackson’s K-time slips and found that of the 408.75 hours claimed, only 138.5 were due. He found, for example, that Jackson claimed 8 hours for working on “June 31, 2006,” a nonexistent date, and on July 1 and 2, part of the holiday weekend when no city employees were clocked in.

Janway called a meeting with Jackson and Hopkins on December 20, 2006. Accounts of this meeting differed. Janway testified that he asked Jackson to verify his K-time claims, and that Jackson could not recall them offhand but agreed to send his personal records by December 26. Hopkins confirmed that he pulled Jackson’s K-time slips, which Janway compared with other city records; Janway questioned Jackson about the discrepancies, but Jackson could not explain them; and Janway gave him until December 26 to address those issues. Jackson, however, described the meeting as ^contentious. Specially, Janway challenged Jackson’s authority over the city cemeteries, saying that if he oversees them, it must be “from up in the trees.”

Perceiving this as a racial slur, Jackson lodged a Step 1 grievance (the “tree grievance”) by immediately advising Hopkins of this verbally. Hopkins replied, “Do what you have to do,” which Jackson construed as a denial. He therefore delivered a written grievance to Janway on December 21. Janway responded by a letter dated January 5, 2007, referring to the “grievance received 12/28/2006,” apologizing for saying anything that could be “misunderstood or misconstrued” in a racist manner, but stating that the grievance was merely a diversion to distract attention from the ongoing investigation of the fraudulent K-time claims. Jackson ultimately contended that the January 5 response was nine working days after his Step 2 grievance and hence untimely.

Meanwhile, Janway and Hopkins received nothing from Jackson. On December 29, Hopkins sent Jackson a memo reminding him that the deadline had been extended until that date. Jackson replied by memo stating that the sanitation department had “all the necessary documentation” of his K-time, and reminding Hopkins that he (Hopkins) had been accepting these K-time slips since April 2006 without complaints, so he (Jackson) did not see why there was a problem now. Neither Janway nor Hopkins ever received any documentation from Jackson. On January 10, 2007, Jackson filed a Step 3 in the tree grievance with the mayor, James Mayo.

DThis was never acted on, however, because on January 11, Janway called Jackson to a final meeting to document his K-time claims. According to Janway, he asked Jackson once more to produce anything in support of his K-time claims; he did not, so Janway fired him for falsifying city records. Jackson, however, maintained that he protested: since Hopkins had approved all the K-time slips, he (Jackson) could not have falsified them. He also lodged a Step 1 oral grievance (the “termination grievance”) with Hopkins at the close of this meeting; Hopkins denied it.

On January 19, he filed a Step 2 in the termination grievance with Janway, with a courtesy copy to the personnel director, Mike Rhymes. Not having received a response, on January 26 he forwarded his written grievance directly to the mayor, in what he deemed to be a Step 3 grievance. Mayor Mayo never responded to this grievance or to the Step 3 tree grievance.

Procedural Background

Jackson filed suit (Docket # 42,970-CA) on February 2, seeking a declaratory judgment that the city had not faithfully followed the grievance procedure, an injunction against violating the procedure and, in effect, an order reinstating him as cerne-tery supervisor with all backpay and benefits, together with attorney fees.

The city filed an exception of prematurity, urging that Jackson had not allowed the grievance process to run its course, specifically by filing |Bsuit before the may- or had responded to the Step 3 grievances.

At the beginning of trial on March 6, 2007, the court referred the exception to the merits. After hearing Jackson’s testimony, the court overruled the exception, stating the city failed to show which procedure, if any, Jackson was required to perform as a prerequisite to filing suit.

Trial continued on March 7 and April 24, with some 13 witnesses, many establishing the time frame for Jackson’s two grievances and the city’s responses. Mayor Mayo testified that from his review of Jackson’s K-time slips and other documents, he was convinced Jackson had falsified time records. He approved Janway’s recommendation to terminate Jackson, and as far as he was concerned, the firing ended both grievances. The city offered Exhibit C-10, a set of other employees’ time cards, to show that no employees were clocked in at some of the times when Jackson claimed K-time for supervising employees. However, Jackson objected to Ex. C-10 for lack of relevance and authentication, and the court excluded it.

Janway testified that since he became director of public works in 2005, errors in and abuse of the K-time system had been a major issue and liability to the city. A computer programming error had resulted in crediting at least one employee with four hours’ K-time for every one hour earned. Janway initiated changes, such as limiting all employees to no more than 80 hours’ K-time total, dividing the cemetery department into two crews so nobody would earn K-time or overtime for working weekends, and requiring all K-time slips to be signed not only by an immediate supervisor but also by the director of public works. Several employees related their 1 ^experiences with the city’s evolving K-time system. Don Hopkins, Jackson’s immediate supervisor, testified that he unquestioningly signed Jackson’s K-time slips because he had to trust his supervisors. Larry Marshall, the labor leader who was promoted to cemetery supervisor after Jackson’s firing, testified that he actually filled out some of Jackson’s K-time slips because Jackson lacked the knowhow to do so; however, he always used the dates and times provided by Jackson.

On rebuttal, Jackson reiterated that all the contested K-time slips had been approved by Hopkins, and asserted that he had actually worked more days than he reported. In support, he offered Ex. Jackson-P, a group of faxes and letters from local funeral directors, showing several funerals he had worked. He admitted that Janway and Hopkins were unaware of these documents, but insisted he had already filed them with the Department of Tax and Revenue. Over the city’s objection to its hearsay and lack of authentication, the court admitted Ex. Jackson-P.

Action of the District Court

The court rendered a “Ruling, Judgment, & Order” holding that Jackson was. terminated for “allegedly falsifying city records,” but this occurred only after he had filed a grievance about a supervisor’s derogatory comment, and it was that very supervisor who terminated him. The court then found that Jackson was not subjected to a proper grievance procedure and not properly terminated for falsifying city documents. Listing 20 “areas of concern” and “the totality of the circumstances,” the court found the termination was wrongful. The court cast the city with costs but denied |7Jackson’s claim for attorney fees, citing in a footnote the lack of statutory or contractual authority and “no evidentiary offering.” The court signed a judgment on June 9, 2007, reinstating Jackson with backpay and benefits, and denying attorney fees. The city filed a motion for suspensive appeal which the court granted on June 28.

Subsequent Procedural History

Jackson filed a “petition for supplemental relief’ seeking attorney fees (Docket # 43,247-CA) on August 13, 2007. In support he cited La. C.C.P. art. 1878’s provision, “Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper.” He also attached an invoice claiming that from a client interview on January 30 through the submission of memorandum on May 21, counsel logged 163 hours and 50 minutes at $200 per hour, for a total of $32,600.

The city filed exceptions of lack of subject matter jurisdiction and res judicata, urging that under La. C.C.P. art.2088, the court lost jurisdiction once it granted the appeal in the first suit. Further, the court expressly denied attorney fees in the first judgment, thus precluding further litigation.

After a hearing limited to arguments, the court rendered “Reasons for Judgment” quoting the footnote in its “Ruling, Judgment, & Order.” The court ruled that its prior denial of attorney fees was provisional only; hence it retained jurisdiction to award them later. Further, it ruled that attorney fees are “additional relief’ recoverable under Art. 1878. Finally, the court found that counsel’s itemization and hourly rate were reasonable, so attorney fees were appropriate as requested. The court rendered “Article 1 «1918 Judgment” on November 27, denying the city’s exceptions and awarding $32,600 in attorney fees. The city took a suspensive appeal, and this court consolidated the matters for decision.

Discussion: Exception of Prematurity

By its first assignment of error, the city urges the district court erred in overruling the exception of prematurity. It shows that an employee must exhaust the grievance procedure before filing suit unless the case fits into an exception to the exhaustion requirement. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); Bailey v. American Sugar Refinery, 342 So.2d 1268 (La.App. 4 Cir.), writ not cons., 345 So.2d 60 (1977). The instant labor agreement is phrased in mandatory terms (“the employee shall present the grievance”) and nowhere suggests the procedure is optional. Specifically, Jackson filed suit before the city had completed its Step 3 review. By its second assignment, the city urges the court erred in applying a “totality of the circumstances” test to determine whether Jackson received due process under the grievance procedure. At oral argument, however, the city conceded that no practical purpose would be served by remanding the case for completion of the procedure.

Jackson responds that the grievance procedure is not mandatory, but merely discretionary. In support, he cites the preamble of the grievance section (“he/she has the right to sue the grievance procedure without fear of coercion”) and shows that nothing in the contract requires the employee to | acomplete a grievance before filing suit. Further, requiring him to complete the procedure would be vain and useless, and perhaps farcical, since Janway and Mayo have made their positions perfectly clear. Robinson v. Baton Rouge, 566 So.2d 415 (La.App. 1 Cir.1990); Bagert v. Moreau, 325 So.2d 702 (La.App. 4 Cir.), writs denied, 329 So.2d 465, 466, 467 (1976). The court did not abuse its discretion in viewing the totality of the circumstances: Jackson attempted to follow the process, but getting untimely responses from Janway and Rhymes, and no response from Mayo, he was entitled to file suit. He concludes that the city’s failure to satisfy the grievance procedure violated his due process rights, with the result that his termination was wrongful.

A party must generally exhaust his administrative remedy before he can seek relief by suit. Republic Steel Corp. v. Maddox, supra; Bailey v. American Sugar Refinery, supra; Landers v. Integrated Health Serv. of Shreveport, 39,739 (La.App. 2 Cir. 5/11/05), 903 So.2d 609. On this record, however, the normal remedy of remanding the case for strict compliance with the grievance procedure would be simply redundant. Both sides have disregarded the procedure. We disapprove of the city’s casual and untimely handling of the tree grievance, notably Janway’s transparent attempt to skirt the process by simply declaring that Jackson’s Step 2 grievance was “received” on December 28, when in fact it was plainly filed a week earlier. We also do not condone Jackson’s apparent eagerness to file suit only three days into the five-day period prescribed to resolve the Step 3 termination grievance. Although the collective bargaining agreement |inshould have averted litigation, in this case it failed to do so.

We therefore conclude that remanding the case for full compliance with the grievance procedure would serve no useful purpose and the district court did not err in overruling the exception of prematurity. These assignments of error lack merit.

Evidentiary Rulings

By its fifth assignment of error, the city urges the district court erred in allowing Jackson to present at trial evidence which he did not present to his supervisors prior to his termination. Admitting Ex. Jackson-P, the faxes and letters from funeral directors, amounted to “trial by ambush” which is disfavored in judicial review of grievance cases. Gulf Coast Indus. Workers Union v. Exxon Co. USA, 991 F.2d 244 (5 Cir.1993); Oil, Chemical & Atomic Workers v. Union Oil Co. of Calif, 818 F.2d 437 (5 Cir.1987).

Jackson responds that the city made no contemporaneous objection and thus waived the right to contest the admission of Ex. Jackson-P on appeal. Hyland v. American Guarantee & Liab. Ins. Co., 04-305 (La.App. 5 Cir. 9/28/04), 885 So.2d 30.

The city initially objected to Ex. Jackson-P on grounds of lack of authentication and hearsay; later, it conceded that the papers were Jackson’s own business records and withdrew the objection. The city thus waived the right to complain that the evidence was improperly admitted. La. C.E. art. 103 A(1); La. C.C.P. art. 1635. We will not second-guess counsel’s strategy in dropping the objection. This assignment lacks merit.

|nBy its third, assignment of error, the city urges the district court erred in refusing to admit Ex. C-10, other employees’ time cards. These were offered to prove that no employees were clocked in on certain days when Jackson claimed K-time for supervising employees. The city submits that the court’s reasons for excluding this were “not entirely clear,” and that its action was an abuse of discretion. Bickham v. Riverwood Int’l Corp., 42,122 (La.App. 2 Cir. 10/8/07), 966 So.2d 820.

Jackson responds that he objected to this exhibit for lack of authentication. He contends that the city tried to authenticate them by the testimony of Ms. Joan Benton, a payroll clerk in the sanitation department, and not Janway, who had previously been identified as their custodian. The court even granted leave to take Ms. Benton’s deposition, but the city failed to do so. Further, the city failed to show the relevance of the time cards and the court was well within its discretion to exclude them.

Relevant evidence is defined in La. C.E. art. 401 as follows:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

The city argued at trial that no cemetery employees were clocked in on certain days when Jackson was claiming K-time for supervising employees. Those employees’ time cards were patently and emphatically relevant to prove this contention. The district court’s ruling to the contrary is plainly wrong.

Authentication is regulated by La. C.E. art. 901, which provides in pertinent part:

lii.A. General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
B. Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this Article:
(1) Testimony of a witness with knowledge. Testimony that a matter is what it is claimed to be.
* * sk

Ms. Benton testified that she was the payroll clerk for the sanitation department; as such, her duties included receiving regular and K-time records from employees’ supervisors and entering them into the computer system. She was clearly a witness with knowledge of what the time cards were. In preparation for trial, she brought photocopies of cemetery employees’ time cards dated May 31 through November 15, 2006. No evidence was offered to show that these records were incomplete, altered, or anything other than what they appear to be. On this record, they were sufficiently authenticated. The district court abused its discretion in ruling otherwise.

This assignment has merit.

Wrongful Termination and Reinstatement

By its fourth assignment of error, the city urges the district court erred in reviewing the city’s actions de novo, placing the burden of proof on the defendant rather than the plaintiff, and not reviewing the city’s employment decision for abuse of discretion. By its sixth assignment, the city urges the court erred in finding that Jackson did not falsify records. Taken together, |1sthese assignments contest the court’s finding that Jackson was wrongfully terminated and its order reinstating him to employment.

Jackson responds that the matter was a three-day trial in which the city fully participated and due process was used to determine whether the termination was legal under the terms of the labor agreement. He further submits the court committed no manifest error in finding that Jackson did not falsify his K-time records.

An employer is at liberty to dismiss an employee at any time for any reason without incurring liability for the discharge. La. C.C. art. 2747; Quebedeaux v. Dow Chemical Co., 2001-2297 (La.6/21/02), 820 So.2d 542; Chandler v. Kenyan, 38,084 (La.App. 2 Cir. 12/19/03), 862 So.2d 1182. This right is tempered by various federal and state laws which prohibit terminating an employee for certain reasons such as race, sex or religious beliefs. State statutes also prevent the employer from discharging an employee for exercising certain statutory rights. However, aside from these statutory exceptions, there are no broad policy considerations creating exceptions to employment at will and affecting relations between employer and employee. Quebedeaux v. Dow Chemical Co., supra; McPherson v. Cingular Wireless LLC, 07-0462 (La.App. 3 Cir. 10/3/07), 967 So.2d 573.

As long as the termination does not violate any statutory or constitutional provisions, it is without liability to the employer. Clark v. Acco Systems Inc., 39,532 (La.App. 2 Cir. 4/6/05), 899 So.2d 783, and citations therein. In fact, there need be no reason at all for the termination. Id.; Simmons v. Westinghouse Elec. Co., 311 So.2d 28 (La.App. 2 Cir. 1975). The at-will doctrine provides a shield to employers so significant that only a few instances provide exception to the protection. Clark v. Acco Systems, supra. The employer’s failure to follow a grievance procedure does not alter the essential nature of at-will employment. Keller v. Sisters of Charity, 23,363 (La.App. 2 Cir. 4/8/92), 597 So.2d 1113; Gilbert v. Tulane Unin, 909 F.2d 124 (5 Cir.1990).

The record easily shows that the city terminated Jackson for claiming 408.75 hours of K-time over a six-month period (averaging over 31 hours per week) when the city could validate only 138.5 hours (roughly one-third of the amount claimed). Exhibit C-10, which the district court erroneously excluded from evidence, supports the city’s conclusions. When confronted about this large discrepancy, Jackson denied falsifying his records, asserting that because Hopkins had approved his individual K-time slips, he (Jackson) could not be at fault. He initially offered to document his claims, but over the course of three weeks he either failed or refused to comply. Even on the date of his firing, he tendered nothing in support. Of course, under the at-will doctrine no reason at all is needed to terminate an employee. However, on this showing, the city was entitled to find that Jackson had falsified his employment records by inflating his K-time requests and then refused to cooperate in the investigation. These were valid and nondiscriminatory grounds for termination. See, Pope v. Whitfield, 524 So.2d 108 (La.App. 4 Cir.1988); De partment of Social Services v. Schneeweiss, 588 So.2d 1185 (La.App. 1 Cir.1991).

Jackson raises several arguments in an effort to rebut the city’s showing of a valid termination. First, he urges the city’s records were incomplete and erroneous: Ex. Jackson-P, which the district court properly admitted into evidence, shows that 75 funerals occurred over the six months in question, while the city’s records, by Jackson’s count, reflect only 40 to 45. If Jackson and his staff worked 75 but clocked in for only half of them, then there is gross irregularity in Jackson’s timekeeping skills which only corroborates the city’s reasons for termination.

Next he contends the firing was improper before the completion of the grievance procedure, a procedure which he has already conceded was merely discretionary. The existence of the grievance procedure, which both sides did not fully honor, did not alter the city’s right to terminate its employee. Keller v. Sisters of Charity, supra; Gilbert v. Tulane Univ., supra. Nothing in the labor agreement insulates an employee from firing or requires completion of the grievance procedure.

Finally he urges disparate treatment, in that no other employee has been fired for claiming more K-time than he supposedly earned. He cites James Vanburen, whose time was disallowed but he was not fired. However, the record shows that Vanburen received excess K-time due to a computer programming error, not because of inflated K-time slips. Two other employees, Hollis Watkins and Samuel Dickey, testified that the city had disallowed some of their K-time, mostly when Janway imposed the 8(Fjhour16 maximum. There was no suggestion that either of these employees submitted inflated K-time slips.

In short, the city showed that Jackson was an at-will employee; although no cause was required, the city showed that it terminated him for falsifying his K-time records. The burden then shifted to Jackson to prove an exception to the at-will doctrine, specifically a constitutional or statutory violation. The evidence falls far short of meeting this burden. The district court was therefore plainly wrong to render a declaratory judgment that Jackson was wrongfully terminated and ordering him reinstated to his former position. The judgment is therefore reversed and the principal claim dismissed.

Attorney Fees

By three assignments of error, the city challenges the award of attorney fees. Specifically, it contends the district court erred in overruling the exceptions of lack of subject matter jurisdiction and res judi-cata, and in awarding attorney fees without any contractual or statutory basis.

Jackson responds that the “further relief’ provision of La. C.C.P. art. 1878 conferred jurisdiction on the district court to hear the request for attorney fees, created an exception to the normal rule of res judicata, La. R.S. 13:4231, and authorized an award of attorney fees. He also contends that La. R.S. 23:632 grants attorney fees to a claimant who brings a “well-founded suit for unpaid wages.” By answer to appeal he seeks an additional $7,400 for trial work and $5,000 for the appeal.

|17For the reasons already discussed, Jackson failed to prove either any exception to the at-will employment doctrine or that the city wrongfully terminated him. The failure of the principal claim obviously extinguishes any obligation for attorney fees. The judgment is reversed on this basis.

Even if Jackson could somehow prevail in his wrongful termination action, the attorney fees could not stand. The petition for supplemental relief raises an issue barred by res judicata. The “Ruling, Judgment, & Order” denied attorney fees “at this time,” but the final judgment, prepared by the district court itself, simply declares, “Plaintiffs request for attorney fees is denied.” The judgment in favor of the defendant plainly extinguished the claim for attorney fees, barring any subsequent action on this claim. La. R.S. 13:4231(2).

Moreover, attorney fees are not allowed except where authorized by contract or statute. Smith v. State, 2004-1317 (La.3/11/05), 899 So.2d 516; THH Properties Ltd. Partnership v. Hill, 41,038 (La.App. 2 Cir. 6/2/06), 930 So.2d 1214. The labor agreement is simply silent as to attorney fees. The statute regulating payment of employees, La. R.S. 23:632, grants attorney fees “in the event of a well-founded suit for any unpaid wages” against an employer who fails or refuses to pay all amounts due under the terms of employment within 15 days of discharge, but there is no allegation that the city failed to pay Jackson within 15 days of his discharge on January 11, 2007. Finally, we do not find that the supplemental relief | ^provision of Art. 1878 grants attorney fees in this case. The authorities cited by Jackson are simply inapposite, and in the analogous situation of “further relief’ under the federal Declaratory Judgment Act, 28 U.S.C. § 2202, attorney fees are disallowed unless provided by contract or substantive statute. Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Mercantile Nat’l Bank at Dallas v. Bradford Trust Co., 850 F.2d 215 (5 Cir.1988). A plaintiff can acquire no greater substantive rights by framing his claim as one for declaratory judgment than in non-declaratory judgment circumstances.

The judgment awarding attorney fees is reversed and the claim is dismissed. The claim for additional attorney fees is a forti-ori dismissed.

Conclusion

For the reasons expressed, both judgments are reversed and Robert P. Jackson’s claims are dismissed in their entirety. Costs are to be paid by the plaintiff.

JUDGMENTS REVERSED.

      . The district court peremptorily granted a TRO on February 8, 2007, ordering Jackson's reinstatement. The next day, on the city’s motion, another judge of the court (acting in Judge Alvin Sharp’s absence) dissolved the TRO noting that a mandatory injunction under La. C.C.P. art. 3601 cannot issue without a hearing on the merits. City of New Orleans v. Board of Directors of La. State Museum, 98-1170 (La.3/2/99), 739 So.2d 748.

      . This court strongly suspects that the quoted passage is a typographical error that should correctly read, "he/she has the right to use the grievance procedure without fear of coercion,” since suit against a grievance procedure seems illogical, but “right to sue” is precisely the language appearing in the labor agreement.

      . See, e.g., 42 U.S.C. § 2000e et seq., prohibiting discrimination by both private and government employers in all aspects of employment based on race, religion, sex, color or national origin; 42 U.S.C. § 1981, prohibiting discrimination based on race; and La. R.S. 23:301 et seq., prohibiting intentional discrimination in terms or conditions of employ-meat based on race, color, creed, religion, sex, national origin, disability, age, and sickle cell trait.

      . See, e.g., La. R.S. 23:1361, prohibiting retaliation against workers' compensation claimants.

      . There is also no showing that Jackson’s reporting to work on February 9, by virtue of a legally erroneous TRO which was revoked by that very afternoon, created any "terms of employment” to activate the statute.


source: Caselaw Access Project

author: LOLLEY, J. BROWN, Chief Judge,

license: Public Domain

text:
    Jackie ANDREWS, Plaintiff-Appellee v. Fannie Clyde BARHAM, Defendant-Appellant.
    No. 42,962-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      J. Ransdell Keene, for Appellant.
    Chris L. Bowman, Jonesboro, for Appel-lee.
    Before BROWN, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

| defendant, Fannie Clyde Barham, appeals a judgment of the Ruston City Court, Parish of Lincoln, State of Louisiana, in favor of plaintiff, Jackie Andrews. For the following reasons, we affirm.

FACTS

On March 8, 2004, Jackie Andrews, a contractor, submitted a proposal to Fanny Clyde Barham to have flooring work performed. The agreement was that Barham would pay $17,500.00 to Andrews for the application of a permanent concrete stain on the floors of the two adjoining commercial rental buildings that Barham owned.

After completion of the first building, Barham paid Andrews half of the negotiated price, $8,750. Andrews encountered problems with the flooring in the second building, which in his opinion would not accept the stain and provide a uniform color. Ultimately, Andrews used an epoxy sealant and painted the floor. When the work was finished, Barham refused to pay for the work in the second building.

On December 1, 2005, Andrews filed suit in Ruston City Court against Barham on an “open account.” Barham reconvened alleging a breach of contract, loss of revenue, and damages. After a bench trial, the trial court found that while Andrews did make a unilateral decision about the flooring, Barham benefited from the labor and obtained a floor. Accordingly, he awarded Andrews 50% of the contract balance, $4,375.00. Barham now appeals.

CLAW AND DISCUSSION

On appeal, Barham argues that the trial court erred in awarding $4,375.00 to Andrews under the theory of quantum meru-it Barham states that because it was not specifically pleaded and there was a written contract, the theories of quantum me-ruit or unjust enrichment do not apply in this case.

An appellate court may not set aside a trial court’s findings of fact in the absence of clear or manifest error. Lewis v. State, Through DOTD, 1994-2730 (La.04/21/95), 654 So.2d 311; Rosell v. ESCO, 549 So.2d 840 (La.1989); Thompson v. Coates, 29,333 (La.App. 2d Cir.05/07/97), 694 So.2d 599, writs denied, 97-1442 (La.09/26/97), 701 So.2d 985 and 97-1521 (La.09/26/97). To reverse a trial court’s factual determinations, a court of appeal must find, based on the record, that no reasonable factual basis for the findings exists and that the findings are clearly wrong or manifestly erroneous. Mart v. Hill, 505 So.2d 1120 (La.1987); Thompson v. Coates, supra. The issue to be resolved by the appellate court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Lebeaux v. Neuman Ford, 28,609 (La.App. 2d Cir.09/25/96), 680 So.2d 1291; Dismuke v. Quaynor, 25,482 (La.App. 2d Cir.04/05/94), 637 So.2d 555, writ denied, 1994-1183 (La.07/01/94), 639 So.2d 1164.

At trial, Barham testified that the main reason she wanted permanent concrete stained floors was because it was considered low maintenance. She also explained that she wanted the work to be completed quickly ^because Mitch Spillers, a future tenant, was waiting for the floors to be completed before he moved in to start up his commercial business. Andrews testified that he began working on the second building and pulled up the existing carpet, only to find that the whole building was tiled. Andrews further testified that it took a lot more work than he expected to remove the tiles to get to the cement surface. Once he reached the cement surface, Andrews explained that there were areas of old paint that could not be removed. As a result, Andrews could not stain the cement because the floor color would not be uniform.

At some point, once Andrews determined that staining the floors was not an option, Spillers and Andrews discussed other alternatives for the floor, including paint. Andrews used an epoxy sealant before he painted, which in his opinion was ideal for high traffic conditions. There was differing testimony as to whether Bar-ham was made aware of the issues Andrews had encountered and whether Spil-lers, who ultimately picked the paint color, had some authority in the decision-making process. Nonetheless, what is clear is that at some point Barham noticed Andrews “rolling” paint and did not object. Eventually, Spillers moved in and started his business and, at the time of trial, continued to lease the premises. However, Spillers testified that the painted floor is now peeling off in strips and will have to be repainted soon.

The trial court astutely noted in its opinion that:

Though the defendant did not obtain what she bargained for with respect to the second building, the defendant did benefit from the labor and time expended by the plaintiff. The defendant obtained a floor, albeit with defects, which was | ¿sufficient enough to satisfy her tenant without demand by him for a diminution of the rent previously negotiated. The Court notes the same tenant has continued to occupy the defendant’s commercial buildings since the original work in 2004. It would seem unfair for the plaintiff to expend such labor and time without some recompense. Further it would seem unfair to allow defendant to witness the wrong turn the plaintiff was taking, and quietly stand by and allow the job to be finished while formulating the intent to refuse payment at the end. On the other hand, it would be at least equally unfair to require the defendant to pay full price for a job that was not what she contracted for, and for which she was never consulted, apprised or given the opportunity to approve or disapprove and for which at some point she will have to revisit.

We cannot find that the trial court was clearly wrong in its analysis, yet because a contract existed neither quantum meruit or unjust enrichment is available as a theory of recovery. Dumas and Associates, Inc. v. Lewis Enterprises, Inc., 29,900 (La.App. 2d Cir.12/22/97), 704 So.2d 433. However, the trial court’s analysis establishes that there was substantial performance of the contract for which there is a remedy. Although not specifically pleaded, Andrews alleged facts in his petition with sufficient specificity for a theory of recovery based on the contract. La. C.C.P. art. 865; “We the People” Paralegal Services, L.L.C. v. Watley, 33,480 (La.App. 2d Cir.08/25/00), 766 So.2d 744.

A contractor may still recover part of the contract price, notwithstanding defects, when substantial performance is shown. Cascio v. Henry Hays Carpet and Decorating, 42,653 (La.App. 2d Cir.10/24/07), 968 So.2d 844, 851. Determination of substantial performance is a question of fact about whether the construction is fit for its intended purpose despite deficiencies. Id. Factors that may be considered in determining whether the contractor achieved substantial performance |BincIude the extent of the defects or non-performance, the degree to which the purpose of the contract has been impaired, the ease of correction, and the use or benefit to the owner of the work performed. Id.

The record reflects, and the trial court took into consideration, that despite some deficiencies, the flooring was not shown to be unsuitable for its intended purpose. Only issues for review on appeal are those adjudicated in the final judgments because this court reviews judgments and not reasons for judgment. Hickman v. Bates, 39,178 (La.App. 2d Cir.12/15/04), 889 So.2d 1249. Accordingly, while a different theory of recovery was appropriate, we agree with the trial court’s judgment that Andrews is entitled to only half the contract price given the future flooring issues that Barham will have to address.

Finally, Barham argues that she was entitled to damages for loss of rent since the flooring was delayed for several months making the space unavailable to lease. While Barham did testify that time was of the essence, the terms of the contract did not reflect a date in which the floors had to be completed. Furthermore, the record reveals that work was being done continuously and there was no real issue of non-performance. Therefore, the trial court did not err in denying the award for damages.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment and award Jackie Andrews $4,375.00. Costs of this appeal are assessed against Fannie Clyde Bar-ham.

AFFIRMED.

BROWN, Chief Judge, concurs in part and dissents in part with written reasons.

BROWN, Chief Judge,

concurs in part and dissents in part with written reasons.

hi agree with the trial court’s and this court’s factual findings. However, I would not award any sum to the contractor. The future flooring issues facing Barham are to remove the painted floor (which according to the tenant is now peeling off in strips), seal, and apply a permanent stain. It will cost Barham the full price not half. The contract was breached when the contractor unilaterally decided to paint the floor or, in reality, repaint the floor. Barham contracted for a permanently stained floor to specifically avoid the need to continually repaint.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Emanuel Jermaine STEWARD, Appellant.
    No. 42,705-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Louisiana Appellate Project, by Mary E. Roper, Baton Rouge, for Appellant.
    Anthony G. Falterman, District Attorney, Donald D. Candell, Jennifer G. Braud, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and LOLLEY, JJ.
   STEWART, J.

h Defendant Emanuel Steward was convicted of simple rape. The trial court sentenced him to 25 years at hard labor in the Louisiana Department of Corrections, with credit for time served. Steward subsequently filed a motion for reconsideration of sentence which was denied. He now appeals. Finding no reversible error, we affirm the trial court’s decision.

FACTS

On the night of July 15, 2002, Jeremy Johnson gave R.L., age 17, a ride to Lhauan Washington’s house. While R.L. was knocking on the door, Jeremy threw her belongings out of his car and drove off. After discovering that no one was at the house, R.L. walked down the road toward another friend’s house.

Defendant Emanuel Steward approached R.L. while riding his bicycle. She asked him if he knew her friends, Lhauan and Donjel. Steward nodded his head and mumbled, but did not say anything. He eventually got off his bicycle and pushed it alongside R.L. Then, Steward pulled out two or three dollars from his pocket and tried to give it to R.L. When she asked what the money was for, he made a gesture, indicating that it was for sex. R.L. told Steward “no” and walked away from him.

Steward then grabbed her from behind and dragged her backwards toward the muddy, gravel driveway of an abandoned house. R.L. testified that she thought he was going to kill her and that she screamed loudly for someone to help her. She scratched Steward several times on his chest and face. R.L. also stated that he proceeded to pull her shorts down and attempted to penetrate her anally. When he was unable to do so, he threw her on the |2ground, took off her denim shorts, and raped her. R.L. did everything she could, but was unsuccessful, in getting Steward off of her. She testified that she did not consent to sexual intercourse with him. When he was finished, Steward put his clothes back on and rode his bicycle through a yard headed toward Peterville Lane.

In the meantime, Barry Cavalier was awoken at 2:00 a.m. to the “horrifying” cry of a woman yelling “somebody help me, please.” Cavalier called 911, and Deputy Timothy Naquin of the Assumption Parish Sheriffs Office was dispatched to respond to the call about a woman yelling for help on Klotzville Lane. When Deputy Naquin arrived there, he saw a white female walking toward him. Deputy Naquin testified that R.L. was very upset and hyperventilating. R.L. also blurted out, “I been raped.”

R.L. described the assailant to Deputy Naquin, stating that he was a black male she did not know wearing a white T-shirt with blue trim and a picture of a basketball on the front. R.L. also told Deputy Na-quin that the assailant did not say anything, but that he grunted or mumbled, and that the assailant rode away on his bicycle through an abandoned yard that connects Klotzville Lane to Peterville Lane. Based upon the description of the assailant, Deputy Naquin thought that it might be Steward, who lived nearby .on Peterville Lane.

Deputy Naquin took R.L. to Steward’s home, where he noticed a bicycle with fresh mud on the tires and fresh bicycle tracks in the driveway. When officers took Steward to the police unit for R.L. to see whether this was the assailant, she was not sure at first and requested that they make him say | ¡¡something. Before the officers could do anything, Steward made a gurgling noise, and R.L. immediately began to shout that it was him.

The officers took Steward into custody and R.L. to Assumption Community Hospital, where a sexual assault examination was performed. The evidence recovered from R.L. was sent to the North Louisiana Crime Laboratory, which found that DNA from the spermatozoa found in the vaginal swab of R.L. matched Steward’s DNA, which had been gained through a blood sample. The state presented photographs to the jury that depicted the abrasions on R.L.’s body and the scratches on Steward’s face, chest, and neck area. Deputy Na-quin testified that a T-shirt matching R.L.’s description was found on the floor of Steward’s bedroom.

Based upon the evidence presented at trial, the jury convicted Steward of simple rape.

DISCUSSION

Authority to Prosecute

In his first assignment of error, the defendant argues that the trial court erred by allowing the assistant district attorneys from Assumption Parish to prosecute this case after venue had been transferred to Lincoln Parish. He asserts that the assistant district attorney from Assumption Parish did not have the authority to prosecute this case because they had not been appointed as special prosecutors for Lincoln Parish, making the verdict in the case an absolute nullity.

The offense was committed in Assumption Parish, and prosecution was initiated when an assistant district attorney for Assumption Parish filed a bill 14of information charging the defendant with forcible rape on October 22, 2002. On June 27, 2006, the trial court granted the defendant’s motion for change of venue and ordered that the case be transferred to Lincoln Parish.

The Lincoln Parish Clerk of Court subsequently appointed two deputy clerks of court from Assumption Parish to act as deputy clerks of court for Lincoln Parish in regard to this case. The Louisiana Supreme Court appointed Judge Alvin Turner, Jr., who was the judge to whom the case had been allotted in Assumption Parish, to preside as judge ad hoc for Lincoln Parish in regard to this case. The record contains no indication that the Lincoln Parish District Attorney appointed the assistant district attorneys from Assumption Parish to prosecute the present case as assistant district attorneys ad hoe for Lincoln Parish, and the parties on appeal do not allege that such an appointment was ever made.

The procedure for a change of venue is set forth in La. C. Cr. P. art. 624, which states, in pertinent part, that “[w]hen a change of venue is granted, ... the case shall be proceeded with in the same manner as if the proceedings had originally been instituted therein.” According to La. C. Cr. P. art. 61, “the district attorney has entire charge and control over every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.” Additionally, La. Const. art. 5, § 26(B) states that “a district attorney or his designated assistant, shall have charge of every criminal prosecution by the state in his district.” Reading these statutes together, it is clear that the district attorney for the parish to which venue is Ltransferred gains the authority to prosecute that case just as if it had occurred within his jurisdiction.

While La. C. Cr. P. art. 63 states that “[t]he district attorney may employ or accept the assistance of other counsel in the conduct of a criminal case,” the special counsel must have been officially appointed. See Opinion of the Attorney General, 1942-44, p. 254. The record does not indicate that the Lincoln Parish District Attorney made such an appointment in the present case.

The third circuit essentially addressed this same situation in State v. Juniors, 2005-649 (La.App. 3d Cir.12/30/05), 918 So.2d 1137, writ denied, 2006-0267 (La.9/15/06, 936 So.2d 1257), cert. denied, — U.S. -, 127 S.Ct. 1293, 167 L.Ed.2d 110 (2007), wherein the defendant argued that prosecutors from St. John the Baptist Parish did not have authority to prosecute him once venue was transferred to Vermillion Parish without an authorization from the Louisiana Supreme Court. The defendant similarly argued that his conviction was a nullity because the prosecutors from St. John the Baptist Parish were acting outside their territorial jurisdiction and that this constituted a struetural error requiring remand for a new trial. Id. The third circuit found that the challenges to the authority of the prosecutors or presiding judge should have been raised pursuant to a pre-trial motion to quash as provided in La. C. Cr. P. art. 531. The failure to do so precluded him from raising the issue on appeal. Id. at 1142.

Other cases have also found that the failure to object to whether the prosecutor had been appointed to act as district attorney pro tempore precludes the issues from appellate review. See State v. Stephney, 137 La. 545, 68 So. 949 (1915) (Objection to the prosecutor having not been appointed district attorney pro tempore at the time the indictment was returned should have been pleaded before trial.); State v. Nunez, 26 La. Ann. 605 (La.1874) (Court refused to consider claim, that the prosecutor had not been appointed as district attorney pro tempore at the time the bill of information was filed, because the defendant failed to plead it before trial.)

The third circuit in Juniors also rejected the defendant’s argument that the error was a structural error, because it “could have been easily corrected pre-trial, but absent that correction, it had no effect on the conduct of the trial.” State v. Juniors, 918 So.2d at 1142-1143. In State v. Langley, 2006-1041 (La.5/22/07), 958 So.2d 1160, the Louisiana Supreme Court addressed the issue of what constitutes a structural error requiring automatic reversal instead of a trial error, noted that very few errors constitute structural defects, and noted that structural defects are not subject to harmless-error analysis:

In Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), the Supreme Court distinguished between structural defects in a criminal trial and all other errors committed during the course of the proceedings. The Court thereby sought to clarify when harmless-error analysis is appropriately conducted by an appellate court (for trial error) and |7when it is not (structural defect). As to the latter class of error, “structural defects in the constitution of the trial mechanism ... defy analysis by ‘harmless-error’ standards ... [because they] affect the framework within which the trial proceeds, rather than simply [interject] an error in the trial process itself.” Fulminante, 499 U.S. at 310, 111 S.Ct. at 1265; see also Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 1717, 125[123] L.Ed.2d 353 (1993) (“The existence of such [structural] defects ... requires automatic reversal of the conviction because they infect the entire trial process.”)
Structural defects occur in only “a very limited class of cases,” and include the total deprivation of the right to counsel, lack of an impartial trial judge, unlawful exclusion of grand jurors of the defendant’s race, deprivation of the right to self-representation at trial, the right to a public trial, and erroneous reasonable doubt instructions. Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 1549-50, 137 L.Ed.2d 718 (1997); Neder v. United States, 527 U.S. 1, 7-8, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999); United States v. Stevens, 223 F.3d 239, 244 (3rd Cir.2000); see also State v. Ruiz, 2006-1755 p. 6 (La.4/11/07), 955 So.2d 81.

The court went on to note that “[W]hen the Supreme Court speaks of a structural defect, it means that ‘the entire conduct of the trial from beginning to end is obviously affected by the [error],’ “ and that “the Court is referring to something which affects the entire framework of the trial and not something which may have differing degrees of impact, depending on other trial factors.” State v. Langley, 958 So.2d at 1167-1168, quoting Fulminante, 499 U.S. at 309-310, 111 S.Ct. at 1265. The court stated that most errors which occur are trial errors, even though they may impact a defendant’s constitutional rights; moreover, most constitutional errors can be reviewed for harmless error. State v. Langley, 958 So.2d at 1168, citing Fulminante, 499 U.S. at 306, 111 S.Ct. at 1263.

The failure to appoint the assistant district attorneys from Assumption Parish as assistant district attorneys ad hoc in the present case is not subject to | ^appellate review because the defendant failed to raise the issue before trial, when it could have been easily corrected. Furthermore, this error does not rise to the level of structural error requiring an automatic reversal because it does not fit within the six categories of errors recognized by the United States Supreme Court as structural errors nor does this error affect the entire framework or conduct of the trial.

Therefore, this assignment is without merit.

Voice Identification

In his second assignment of error, the defendant asserts that the trial court erred in denying his motion to suppress the “show up” identification of himself made by R.L. shortly after the offense occurred. He argues that the gurgling noise he made was a common sound made by those who are deaf, not an identifying characteristic unique to him. Thus, basing the identification on this noise is not reliable.

According to La. C. Cr. P. art. 703(D), the defendant bears the burden of proof on a motion to suppress an out-of-court identification. State v. Sewell, 35,549 (La.App. 2d Cir.2/27/02), 811 So.2d 140, 149, writ denied, 2002-1098 (La.3/21/03), 840 So.2d 535. When reviewing a trial court’s ruling on a motion to suppress, the appellate court may consider pertinent evidence given at trial in addition to the evidence adduced at the hearing on the motion. State v. Sewell, 811 So.2d at 149-150.

The likelihood of misidentification violates due process when the totality of the circumstances indicates that misidenti-fication probably occurred. State v. Brown, 40,769 (La.App. 2d Cir.3/8/06), 923 So.2d 976, 979, citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Thus, the defendant must prove that the identification procedure was unduly suggestive and that there is a substantial likelihood of misidentification in addition to the suggestive identification procedure. State v. Sewell, 811 So.2d at 150.

When assessing the reliability of an identification, the following factors must be considered: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of his or her prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the length of time between the crime and the confrontation. State v. Sewell, 811 So.2d at 150, citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

While not favored by the law, one-on-one identifications between a suspect and victim are permissible when justified by the overall circumstances, such as “where the accused is apprehended within a short time after the commission of the offense and is returned to the scene of the crime for on-the spot identification or when identification is made shortly after the commission of the crime.” State v. Tilmon, 38,003 (La.App.2d Cir.4/14/04), 870 So.2d 607, 612-613, writ denied, 2004-2011 (La.12/17/04), 888 So.2d 866. Under the appropriate circumstances, such a prompt identification promotes accuracy as well as expediting the release of innocent suspects. State v. Tilmon, 870 So.2d at 613. Even if the one-on-one identification is suggestive and not favored by the law, it will still be | ^permissible if justified by the overall circumstances. State v. Tilmon, 870 So.2d at 613.

Voice identification has been found as reliable and sufficient evidence of identity. State v. S.B., Jr., 31,264 (La.App. 2d Cir.9/25/98), 719 So.2d 1121. In State v. Colvin, 494 So.2d 1357, 1362-1363 (La.App. 2d Cir.1986), writ denied, 497 So.2d 311 (La.1986), the robbery victim was unable to make a positive identification based strictly on the defendant’s physical appearance in the one-on-one identification, but relied was able to make the identification after hearing the defendant’s voice. In analyzing whether the identification was admissible, this court applied the factors from Manson v. Brathwaite, supra, to determine the reliability of the identification. State v. Colvin, 494 So.2d at 1362. This court found that although the one-on-one identification process was suggestive, there was no substantial likelihood of misidentifi-cation because of the reliability of the victim’s identification. State v. Colvin, 494 So.2d at 1362-1363.

Similarly, in State v. Johnson, 33,174 (La.App. 2d Cir.5/10/00), 759 So.2d 1052, 1059-1060, writ denied, 2000-1949 (La.9/21/01), 797 So.2d 60, the rape victim was initially unable to identify her assailant from the photographic line-up, but was able to identify him based upon the sound of his voice. This court applied the factors from Manson v. Brathwaite, supra, to assess the victim’s credibility to find that although the identification process was suggestive, the identification was admissible because there was no substantial likelihood of misidentification. State v. Johnson, 759 So.2d at 1060.

In Although R.L. had a sufficient amount of time to see the assailant, she testified that it was dark and that she had trouble seeing him. R.L. gave the officers a description of her assailant, in terms of what he was wearing, his mode of transportation, the way he sounded, and the direction in which he left. Detective Carter testified at the hearing that he noticed a fresh, bleeding scratch on the defendant’s nose and a scratch on his chest when the defendant first came to the door, and the state presented photographs depicting the scratches on the defendant’s face, chest, and neck area. R.L. was not sure that the defendant was her assailant when she first saw him in the one-on-one identification process; however, R.L. was completely certain that the defendant was the assailant when he made a gurgling noise.

Furthermore, the DNA from the spermatozoa found in the vaginal swab of R.L. matched the DNA of the defendant. Deputy Naquin also testified that a T-shirt matching R.L.’s description was found on the floor of the defendant’s bedroom.

The one-on-one identification in the present case was appropriate because the victim was able to view the defendant shortly after the commission of the offense. Whatever suggestiveness existed in the process was overcome by the totality of the circumstances which clearly indicate no substantial likelihood of misidentification. Thus, the trial court properly denied the defendant’s motion to suppress the one-on-one identification.

This assignment is therefore without merit.

Error Patent

According to La. R.S. 14:43(B), “Whoever commits the crime of simple rape shall be imprisoned, with or without hard labor, without benefit |1?of parole, probation, or suspension of sentence, for not more than twenty-five years.” The sentencing transcript and minutes indicate that when the trial court imposed the maximum sentence of 25 years at hard labor, it failed to state that the sentence was to be served without benefit of parole, probation, or suspension of sentence. The trial court’s failure to state that the sentence is to be served without benefits will be corrected automatically by operation of La. R.S. 15:301.1. See State v. Klasek, 37,114 (La.App. 2d Cir.4/11/03), 843 So.2d 646, 649, fn. 1, writ denied, 03-1359 (La.12/12/03), 860 So.2d 1149.

CONCLUSION

Based on the above reasons, we affirm Defendant Emanuel Steward’s conviction and sentence.

AFFIRMED.

      . The defendant also argued that the presiding judge from St. John the Baptist Parish did not have authority to preside over his case in Vermillion Parish. State v. Juniors, 918 So.2d at 1141-1142.

      . La. C. Cr. P. art. 531 states, "All pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of ‘not guilty' and of 'not guilty and not guilty by reason of insanity,’ shall be urged by a motion to quash.”


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Gregory FRANKS, Appellant.
    No. 42,663-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Carey J. Ellis, III, for Appellant.-
    Gregory Franks, pro se.
    Paul J. Carmouche, District Attorney, Edwin L. Blewer, III, Catherine M. Esto-pinal, Assistant District Attorneys, for Ap-pellee.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   WILLIAMS, J.

h The defendant, Gregory Franks, was charged by bill of information with possession of 400 grams or more of a Schedule II controlled dangerous substance, cocaine, in violation of LSA-R.S. 40:967 F(1)(c). The trial court adjudicated defendant a third felony offender and imposed the mandatory sentence of life imprisonment without benefit of parole, probation or suspension of sentence. Defendant appealed his conviction and his appellate counsel filed a motion to withdraw, together with a brief alleging that he could not find any non-frivolous issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176. Finding that counsel’s brief was insufficient under State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, we instructed counsel to file a supplemental brief and deferred consideration of the motion to withdraw. State v. Franks, 42,663 (La.App.2d Cir.12/3/07). Subsequently, counsel filed a brief alleging as error the district court judge’s act of presiding over the jury trial after previously recusing himself from this case. Also, defendant filed a pro se brief alleging four assignments of error.

On this record, this court is unable to determine the merits of the defendant’s claim regarding the initial recusal of Judge Michael Walker and the alleged subsequent nullity of his conviction and sentence, as per State v. Price, 274 So.2d 194 (La.1973) (“Any action taken by a recused judge is an absolute nullity.”). See also In re Sassone, 07-0651 (La.6/29/07), 959 So.2d 859 (once a motion to recuse has been filed a judge has no power to act). However, we note that the supreme court in State v. Wilson, 362 So.2d 536 (La.1978) held that a previously recused judge may preside over the trial if something occurs thereafter to “neutralize” the cause for recusation.

Specifically, the record in this case does not reflect the reason for Judge Walker’s initial recusal, the reason why the matter was subsequently reassigned to Judge Walker contrary to the procedure for such situations provided in LSA-C.Cr.P. art. 676, and whether any ground for recusation still existed at the time of that reassignment. In addition, the defendant never filed a motion to recuse nor objected to Judge Walker presiding at trial. Thus, an evidentiary hearing to develop the facts surrounding the recusal is necessary to determine whether the proceedings conducted thereafter are a nullity. In the interest of judicial economy, we have addressed in the attached appendix the defendant’s remaining pro se assignments of error for which there is an adequate record for disposition and conclude that those assignments lack merit.

DECREE

Considering the foregoing, this matter is remanded to the district court with instructions to conduct an evidentiary hearing on the sole issue of the recusal of Judge Michael Walker. All of defendant’s other assignments of error lack merit. The defendant shall be present at this hearing with court-appointed counsel, and the state shall be afforded the opportunity to respond. The district court shall conduct the hearing we now direct within 30 days of the finality of this opinion. The right to seek review of any judgment by a party adversely affected is hereby specifically reserved.

EVIDENTIARY HEARING ORDERED; REMANDED.

^APPENDIX

The record shows that the indigent defender office was appointed to represent the defendant after he was charged with possession of 400 grams or more of cocaine. After a preliminary examination, the defendant was arraigned and entered a plea of not guilty. The indigent defender office was relieved and the defendant was represented by retained counsel. The defendant’s pre-trial motion to appoint a sanity commission was granted and a sanity commission was appointed. Sanity reports were filed into the record and based upon those reports, the defendant was found competent to proceed to trial. The defendant’s pre-trial motion to suppress his statements and the seized evidence was heard and denied. After a jury trial, the defendant was found guilty as charged.

Subsequently, the state filed an habitual offender bill charging the defendant as a fourth felony habitual offender. Following a hearing, the defendant was adjudicated a third felony habitual offender. The trial court imposed the mandatory sentence of life imprisonment without benefit of parole, probation or suspension of sentence based on a finding that defendant’s prior convictions and the instant conviction were all drug offenses punishable by 10 years or more at hard labor, in accordance with LSA-R.S. 15:529.1. This appeal followed.

Mental Capacity to Proceed

The defendant contends the trial court erred in failing to order the sanity commission members to evaluate him for Alzheimer’s Disease. The defendant argues that the court’s error prevented tests that would have |4shown he suffered from a mental disease that made him incapable of assisting his attorney in his defense.

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. LSA-C.Cr.P. art. 641. The law imposes a legal presumption that a defendant is sane and responsible for his actions. LSA-R.S. 15:432. The defendant has the burden of proving by a preponderance of evidence his incapacity to stand trial. State v. Frank, 96-1136 (La.10/4/96), 679 So.2d 1365. A reviewing court owes the trial court’s determinations regarding the defendant’s competency great weight, and the trial court’s ruling thereon will not be disturbed absent a clear abuse of discretion. State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). The two-fold test of capacity to stand trial is whether defendant understands the consequences of the proceedings and has the ability to assist in his defense by consultation with counsel. State v. Bridgewater, supra; State v. Bennett, 345 So.2d 1129 (La.1977).

The decision as to a defendant’s competency to stand trial should not turn solely upon whether he suffers from a mental disease or defect, but must be made with specific reference to the nature of the charge, the complexity of the case and the gravity of the decisions with which he is faced. State v. Bennett, supra; State v. Dupree, 41,658 (La.App.2d Cir. 1/31/07), 950 So.2d 140. Appropriate considerations to determine the accused’s awareness of the nature of the proceedings include whether he 1.r,understands what defenses are available, whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each. Facts to consider in determining the accused’s ability to assist in his defense include whether he can recall and relate facts pertaining to his actions and whereabouts at certain times, whether he is able to assist counsel in locating relevant witnesses and whether he has the ability to make simple decisions in response to well-explained alternatives. Bennett, supra; Dupree, supra.

In this case, the trial court appointed two psychiatrists, Dr. Richard Williams and Dr. George Seiden, as members of the sanity commission to evaluate defendant’s mental condition. In his report, Dr. Williams noted that defendant stated there was a history of Alzheimer’s Disease in his family, including his mother and maternal grandfather. Dr. Williams conducted a mental status examination and diagnosed defendant with an antisocial personality disorder. Dr. Williams opined that defendant was currently able to assist in his defense, that he could distinguish between the pleas of guilty and not guilty, could recall facts concerning his actions and was capable of testifying at trial.

Dr. Seiden also noted that defendant reported a family history of Alzheimer’s Disease. Dr. Seiden stated that despite defendant’s complaints of memory problems, he was able to recall facts about his life and prior arrests during the interview. The mental status examination showed that defendant’s concentration was intact and he was able to give specific answers to questions. Dr. Seiden diagnosed defendant with a learning disability and adult antisocial behavior. Dr. Seiden concluded that | ^defendant met all of the Bennett criteria.

Both members of the sanity commission noted defendant’s statement regarding a family history of Alzheimer’s Disease. However, the results of the mental status examinations performed did not indicate that defendant himself suffered from that particular disease. The sanity commission adequately evaluated defendant’s mental status with respect to his capacity to proceed to trial. Thus, we cannot say the trial court abused its discretion in concluding that the defendant was competent to stand trial. The assignment of error lacks merit.

Evidentiary Issue

The defendant contends the court erred in admitting hearsay testimony by the investigating police officer at trial. Defendant argues that his right to confront his accuser was violated by the officer’s testimony about statements made by a confidential informant, who was not subject to cross-examination.

Hearsay is a written or oral assertion, other than one made by the declarant at trial, offered in evidence to prove the truth of the matter asserted. LSA-C.E. art. 801. Hearsay evidence is not admissible unless there is an exception provided by law. LSA-C.E. art. 802. The testimony of a police officer may encompass information provided by another individual without constituting hearsay if it is offered to explain the course of the police investigation and the steps leading to the defendant’s arrest. State v. Maise, 00-1158 (La.1/15/02), 805 So.2d 1141; State v. Gulley, 42,237 (La.App.2d Cir.8/15/07), 963 So.2d 1063.

l7In the present case, Corporal Russell Sarpy, a Shreveport Police narcotics investigator, testified that an informant who possessed drugs had identified defendant as his supplier and had agreed to cooperate with police. Sarpy stated that he was present when the informant telephoned defendant to arrange the purchase of a kilo of cocaine in October 2003 at a drugstore in Shreveport. Sarpy explained that as a result of this information, he established surveillance of the defendant at his residence in Logansport, Louisiana, and observed defendant drive away in the direction of Shreveport. Sarpy stated that defendant’s truck was later seen parked at a house in Shreveport and that police stopped defendant’s vehicle as he was driving toward the location of the drugstore where the drug sale was to occur. Sarpy testified that after defendant was placed under arrest and advised of his Miranda rights, defendant stated that his truck contained a kilo of cocaine, which was seized by police.

The officer’s testimony concerning the informant’s statements was offered to explain the conduct of the police in placing defendant under surveillance as a suspected drug supplier and in stopping him on his way to the place where police believed the drug sale would occur. The defense attorney did not object to this testimony, but elicited information on cross-examination that the informant had identified defendant only after being arrested on drug charges himself. Based upon this record, we cannot say the trial court erred in admitting into evidence the informant’s statements, which were offered not for their truth, but to explain the reason for the police officer’s belief that defendant possessed cocaine at the time of his |sarrest. The assignment of error lacks merit.

As previously noted, this court ordered defendant’s appellate counsel to file a supplemental brief. Subsequently, counsel filed a brief alleging one assignment of error. Thus, defendant’s remaining pro se assignment alleging that his counsel erroneously filed an Anders brief is moot.


text:
    STATE of Louisiana, In the Interest of J.W.
    No. 43,163-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Public Defender’s Office by Michael Nerren, for Confidential Party and Plaintiff Appellee, J.W.
    Ross E. Shacklette, Bossier City, for Defendant Appellant, Melissa Winters.
    J. Schuyler Marvin, District Attorney, Karen E. Stubbs, Assistant District Attorney, for Plaintiff Appellee, State of Louisiana, DOSS.
    W. Allen Haynes, for Defendant Appel-lee, Johnny Lee.
    Before STEWART, MOORE and LOLLEY, JJ.
   STEWART, J.

fin this child in need of care matter, the mother, Melissa Winters, appeals the judgments of adjudication and disposition relating to her child, J.W., on the grounds that the trial court lacked jurisdiction and erred in approving the case plan. Because the trial court did not abide by the Uniform Child Custody Jurisdiction Act (“UC-CJA”) to determine whether it had jurisdiction, and because the trial court erred in approving the case plan, we stay the child in need of care adjudication, reverse the judgment of disposition, and remand the matter for the trial court to abide by the UCCJA procedures for determining the more appropriate jurisdiction as explained in this opinion.

FACTS

This child in need of care proceeding began when an instanter removal order for the child, J.W., was signed by the trial court on February 22, 2007. J.W. was placed in the temporary custody of the Department of Social Services (“DSS”) for her protection on the grounds that she was believed to be a victim of neglect. The affidavit supporting the instanter order explained that J.W.’s aunt no longer wanted to provide care for her. The aunt did not have legal custody, and the parents’ whereabouts were then unknown.

On March 27, 2007, the state filed a petition to have J.W. adjudicated a child in need of care. The petition alleged that J.W.’s mother abandoned J.W. and an older sibling when she gave physical custody of them to their grandmother in Alabama by signing a notarized letter on October 7, 2006. The grandmother soon became ill and transferred custody of the children to their aunt, Tonya Thomas, who drove to Mississippi in October to get the 12children and bring them to Louisiana. Nothing in the record explains why J.W. and her sibling were in Mississippi when the aunt went to get them. According to the petition, DSS’s Office of Community Services (“OCS”) investigated the matter in the latter part of October 2006, and even conducted a phone interview with the mother on October 26, 2006. The mother related that due to personal problems she could not come to Louisiana to assign a caretaker for her children and that she gave Thomas provisional custody until J.W. turned 18. OCS validated the abandonment by the mother; however, the trial court refused to grant custody to DSS on the grounds that it lacked jurisdiction to do so because the abandonment had occurred in Alabama.

The petition further alleged that OCS received a report of neglect on February 2, 2007, indicating that Thomas no longer wanted to care for J.W. Interviews conducted by OCS with J.W.’s sister, J.W., Thomas, and Thomas’s daughter revealed that Thomas perceived J.W. to be causing problems in the home due to anger issues. OCS also spoke with J.W.’s aunt in Mississippi, who related that the mother had been hospitalized for an overdose and after her release had gone to Panola, Alabama. Further investigation following J.W.’s removal from Thomas’s home revealed that the child’s mother was in jail in Livingston County, Alabama, for criminal trespassing.

At the appearance to answer proceeding on April 9, 2007, the mother’s appointed attorney objected to the trial court’s jurisdiction on the grounds that the alleged abandonment occurred in Alabama. No response to the objection is noted in the record. However, at the direction of the trial court, DSS contacted the Sumter County Department of Human Resources Children’s | ¡¡Services in Alabama regarding its willingness to get involved in the case due to the abandonment having occurred in Alabama and J.W.’s mother being incarcerated there. An attorney representing the Alabama agency replied by letter on May 10, 2007. He wrote that a file had been opened when a family friend petitioned for .custody of J.W. due to the mother’s “serious drug problem.” But the court had granted the mother’s petition to have custody of J.W. restored to her, and the agency closed the file on June 14, 2005. The attorney further wrote that he did not believe the juvenile court in Sumter County had jurisdiction. His reasons were that custody of J.W. had been restored to the mother and that the mother had relocated to Louisiana. We find nothing in the record to support his assertion that the mother had moved to Louisiana.

The adjudication took place on July 2, 2007. The mother’s attorney again objected to the court’s jurisdiction. The trial court overruled the objection, explaining that it had exercised emergency jurisdiction on April 23, 2007, because J.W. was located in Louisiana with no one to take care of her. Referring to the letter from the attorney for the Sumter County Department of Human Resources Children’s Services, the trial court concluded that Alabama would not exercise jurisdiction and that it now had jurisdiction based on J.W. being in Bossier Parish, Louisiana.

The state offered the testimony of Federico M. Arends, III, the OCS investigator, who related the events that led to J.W. being taken into custody. Although OCS had learned where the mother was incarcerated, no one with the agency had spoken to her. After denying a motion for involuntary ^dismissal made by the mother’s attorney, the trial court adjudicated J.W. a child in need of care based on neglect by her mother and father. The trial court noted that the mother’s attorney had contacted her about the proceedings and that she had taken no steps to arrange for J.W.’s care.

On June 6, 2007, DSS provided a letter to the trial court detailing its case plan for J.W. A copy of the plan was also sent to the mother. The plan required the mother to “submit to a psychological evaluation, keep the agency informed of her current situation, participate in nurturing parent and anger management classes, submit to substance abuse assessment, maintain stable housing, and to maintain contact with her child.” The plan provided that the mother was to visit J.W. on the first and third Monday each month at the McDonald’s on Mansfield Road in Shreveport. The case plan goal for J.W. was reunification with placement in foster care while in the custody of DSS. The mother’s attorney filed objections to the case plan. He argued that requirements for a psychological evaluation and parenting classes were not related to the reasons for J.W. being adjudicated in need of care. Moreover, the mother’s incarceration would make it impossible for her to complete the case plan requirements. He also argued that the state should pay the costs of any classes, evaluations, and transportation for visits.

At the disposition hearing on August 6, 2007, the state called Melinda Miller, a child welfare specialist with OCS, to testify about the case plan. Miller’s testimony established that the case plan requirements were typical of such plans. Though the state would likely not pay for services for the mother if she was not in Louisiana, OCS might be able to help her locate the required [^services in Alabama. Miller’s testimony also made clear that OCS had made no effort to communicate with the mother other than sending her a letter with the case plan, and had not communicated with any agency or the prison to determine what services might be available for the mother.

Although the mother’s attorney argued that the case plan was a “recipe for failure,” the trial court adopted the plan with the modification that it be extended to 18 months to allow time for the mother to complete the plan after her release. The trial court noted that it would be “extremely interested” in what steps the mother would take to work the plan with the resources available to her in prison. We observe that there was no evidence of what, if any, resources would be available to the mother while incarcerated or upon her release in Alabama.

The mother now appeals both the child in need of care adjudication and the disposition on grounds relating to the court’s jurisdiction and the appropriateness of the case plan.

DISCUSSION

The mother first argues that the trial court lacked anything other than emergency jurisdiction under the UCCJA and that the appropriate Alabama court, which appears to have continuing jurisdiction pursuant to a prior custody proceeding, should have been contacted to determine whether it desired to assert or decline jurisdiction over the matter.

The UCCJA provides jurisdictional limitations that require a court that otherwise has subject matter jurisdiction to decline to exercise it. Stelluto v. Stelluto, 2005-0074 (La.6/29/05), 914 So.2d 34; Amin v. Bakhaty, 2001-19676 (La.10/16/01), 798 So.2d 75. The UCCJA’s jurisdictional requirements must be met at the time the petition is filed in order for the court to have jurisdiction over the child. Seamster v. Nelson, 40,510 (La.App.2d Cir.10/26/05), 914 So.2d 1124; State ex rel. D.R.P., 38,200 (La.App.2d Cir.12/10/03), 862 So.2d 1073.

The UCCJA provides four grounds, in preferential order, that warrant an exercise of jurisdiction over a child in an interstate matter relating to the child’s custody: (1) Louisiana is the home state of the child; (2) there is a significant connection with this state or substantial evidence here about the child’s care, protection, training, or personal relationships; (3) there is a necessity to exercise emergency jurisdiction or the child is present here and has been abandoned; or (4) either no other state has jurisdiction or has declined to exercise jurisdiction on the basis that this state is the more appropriate forum and it would be in the child’s best interests for the court to assume jurisdiction. La. R.S. 13:1702(A)(1—4); State ex rel. D.R.P., supra. The child’s physical presence in this state, alone, is not sufficient to confer jurisdiction, nor is it a prerequisite for asserting jurisdiction. La. R.S. 13:1702(B) and (C).

Unless declined, courts exercising juvenile court jurisdiction have exclusive original jurisdiction over cases subject to the UCCJA when there is a claim of emergency jurisdiction, when a petition alleges a child is in need of care, and when a petition alleges facts that would bring the matter within the exclusive original jurisdiction of juvenile courts pursuant to the Children’s Code. La. Ch. C. art. 310.

|7In this matter, the trial court explained at the adjudication that it first exercised emergency jurisdiction but then determined that it had jurisdiction over the child in need of care proceeding based on the child’s presence in Louisiana and a letter from an attorney for the Sumter County Department of Human Resources Children’s Services expressing his belief that the juvenile court in Sumter County did not have jurisdiction. We find error in the trial court’s assumption of jurisdiction and failure to follow the procedures set forth in the UCCJA.

Clearly, the instanter order alleging J.W. to be a victim of neglect and indicating that she had no one to provide care for her empowered the trial court to exercise emergency jurisdiction. When the child is present in this state and extraordinary circumstances require immediate protection of the child, then emergency jurisdiction exists. The immediacy may result from abandonment, mistreatment, abuse, or neglect. State ex rel. D.R.P., supra. Even when emergency jurisdiction may be exercised, the inquiry does not end. A final determination regarding the child’s custody should not be made until the UCCJA procedures are explored, such as by determining whether another basis for asserting jurisdiction exists and whether jurisdiction should be declined in favor of another more appropriate forum. Renno v. Evans, 580 So.2d 945 (La.App. 2d Cir.1991).

In examining the grounds for jurisdiction under La. R.S. 13:1702(A) of the UCCJA in light of the facts shown by the record, it is clear that the trial court could not exercise jurisdiction pursuant to the home state grounds. Home state refers to the state where, immediately preceding the time |sinvolved, the child lived with a parent or person acting as a parent for at least six consecutive months. La. R.S. 13:1701(5). When this matter began in February 2007, J.W. had been in Louisiana for no more than four months. She was brought to Louisiana by her aunt sometime in the latter part of October 2006. Louisiana cannot be considered J.W.’s home state.

Under La. R.S. 13:1702(A)(2), the court may exercise jurisdiction when the child or parent has a significant connection to the state and there is substantial evidence here concerning the child. Whether a significant connection exists should be determined based on evidence at the time of filing. Stelluto, supra. The significant connection test seeks to determine which state has “superior” access to evidence relevant to the matter. Id. See also Revere v. Revere, 389 So.2d 1277 (La.1980). There is no showing in this record of any significant connection to this state by J.W. or her mother. At the time of filing, J.W. had only been in Louisiana for a short time, and nothing in the investigation by OCS indicated that J.W. had ever lived in Louisiana prior to being brought here by her aunt in October 2006. Although the letter from the Alabama agency’s attorney stated that the mother had relocated to Louisiana, nothing in the record supports this assertion or shows that the mother was ever in Louisiana. There is no significant connection to this state, nor is there an availability of substantial evidence here concerning the child that supports the trial court’s exercise of jurisdiction.

Jurisdiction may also be assumed when it appears no other state would have jurisdiction or another state declined jurisdiction on the grounds that Louisiana is the more appropriate forum, and it is in the child’s best interests | nfor the court here to take jurisdiction. La. R.S. 13:1702(A)(4). Factors to consider in determining whether another state should, in the child’s best interest, assume jurisdiction include: (1) whether another state is or recently was the child’s home state; (2) whether another state has a closer connection to the child and the child’s family; (3) whether another state has substantial evidence concerning the child’s care, protection, training, and personal relationships; (4) whether the parties have agreed on another appropriate forum; and (5) whether the exercise of jurisdiction by a Louisiana court would contravene the purpose of the UCCJA. La. R.S. 13:1706(C)(1-5); Renno, supra.

Analysis of these factors in light of the facts shown in the record points to Alabama as the state that would be the most appropriate forum to determine custody of J.W. in a child in need or care or similar proceeding in that state. The record indicates that J.W. lived in Alabama before being brought to this state by her aunt. She was abandoned in Alabama by her mother when her mother left her with the grandmother. The mother is now located in Alabama where she has been incarcerated. An Alabama court has previously handled a custody matter concerning the mother and a family friend who sought custody of J.W. due to the mother’s alleged drug use. Moreover, J.W. had been in Louisiana for only a matter of months when this proceeding was initiated, and there is no showing that her mother ever lived in Louisiana. Nothing in the record substantiates the claim that the mother had relocated to Louisiana. It appears that J.W. and her mother have | ^significant connections to Alabama and that Alabama would be more likely than Louisiana to have substantial evidence relating to J.W. and her family.

Our examination of the jurisdictional grounds under the UCCJA and the factors for determining whether it would be in the child’s best interest for another state to assume jurisdiction shows that the only basis for the trial court to exercise jurisdiction would be under the emergency provision or if Alabama declined to exercise jurisdiction. The record does not show that Alabama declined jurisdiction. It shows only that an attorney for a social services agency, not a court, believed that Alabama would not have jurisdiction. We find that the trial court erred in relying on this communication to determine that Alabama would not have or exercise jurisdiction.

Rather than assuming jurisdiction, the trial court should have followed the procedure set forth in La. R.S. 13:1706(D) by communicating with the appropriate Alabama court and exchanging information relevant to the exercise of jurisdiction by either court to determine the more appropriate one to assume jurisdiction and provide a forum suitable for acting in J.W.’s best interest. The record does not show any communication between the trial court and the appropriate Alabama court to determine whether Alabama would assume or decline jurisdiction. This procedure is also set forth and discussed in Renno, supra.

Consequently, we find that while the trial court had emergency jurisdiction to protect J.W. because of neglect and abandonment and place her in the temporary custody of the DSS, it was error to render an adjudication Inand disposition without first determining the appropriate jurisdiction under the UCCJA procedures. Our review of the record does support the finding that J.W. is a child in need of care. But because the appropriate jurisdiction has not been determined, the adjudication will be stayed pending resolution of the jurisdiction issue. We reverse the judgment of disposition on the basis of the jurisdictional issues and as explained next.

We find merit in the mother’s assertion that the trial court erred in approving the case plan. The mother’s attorney correctly concludes that the plan is “a recipe for failure.” Except in extraordinary circumstances, the state must make reasonable efforts to assist parents in removing obstacles to reunification with their child. La. Ch. C. art. 672.1; State ex rel. A.T., 2006-0501 (La.7/6/06), 936 So.2d 79. “Reasonable efforts” are defined as “the exercise of ordinary diligence and care by department caseworkers and supervisors and shall assume the availability of a reasonable program of services to children and their families.” La. Ch. C. art. 603(17). Among the case plan requirements, La. Ch. C. art. 675(B)(2) states that a case plan include services for the parent to “improve conditions in the parents’ home, facilitate the safe return of the child to his own home.... ” Also, the agency must document the efforts it makes to safely return the child to its home or an alternative safe and permanent placement. La. Ch. C. art. 675(B)(3).

Review of the case plan and the testimony of Melinda Miller, the OCS child welfare specialist, compels a finding that the case plan proposed by OCS and approved by the trial court, even with the 18-month extension, cannot be considered as demonstrating that reasonable efforts would be made |iato remove obstacles to reunification of J.W. with her mother. Even though OCS knew that the mother was located in a prison in Alabama, it made no effort to contact her about her situation, to contact the prison about the availability of any services relevant to the proposed case plan, or to contact an agency in Alabama equivalent to OCS to determine what services might be available to the mother either in prison or upon her release. Moreover, OCS made no effort to determine the reason for the mother’s abandonment of J.W. or to find out what obstacles exist to prevent reunification upon her release from prison. Finally, OCS made no effort to determine whether the mother would be able to pay for the classes, evaluations, and transportation mandated by the plan or what assistance the state could provide. It seems that all of these questions should have been addressed before devising the case plan and that the information would have enabled OCS to create a plan that had some relation to the difficulties faced by the family. Instead, OCS proposed a typical case plan without regard to the obvious problems that might be encountered by a parent who does not live in Louisiana and who is imprisoned in another state.

For these reasons, we find that the trial court abuse its discretion in approving this case plan and rendering a judgment of disposition.

CONCLUSION

Our review of this record reveals a sad matter rife with jurisdictional problems and lack of planning by the authorities. The best interests of J.W. have not been served by the trial court’s failure to follow the procedures for determining jurisdiction set forth in the UCCJA and the meaningless case Implan proposed by OCS and approved by the court. Though we stay the judgment of adjudication and reverse the disposition judgment, we order J.W. to be continued in custody of the Department of Social Services pending a determination of the appropriate jurisdiction to proceed with this matter. Within 15 days of the rendering date of this opinion, the trial court is ordered to contact the appropriate court in Alabama regarding jurisdiction as provided in La. R.S. 13:1706(D). If it is determined that Alabama is the more appropriate forum, then proceedings in Louisiana should be stayed while arrangements are made to transfer the matter and place J.W. in the custody of the appropriate authority in Alabama. However, if Alabama declines jurisdiction, then the trial court may proceed with the disposition hearing once OCS devises a case plan after obtaining the pertinent information as discussed in this opinion.

JUDGEMENT OF ADJUDICATION STAYED; DISPOSITION REVERSED; AND MATTER REMANDED FOR FURTHER PROCEEDINGS.