text:
    Michael J. JOHNSON, Sandra Johnson, Carol P. Lennix, Lathaniel Lennix, Louis Lennix, Jr., Brad Arceneaux, Erik Arceneaux and Roland Arceneaux v. E.I. DUPONT DENEMOURS & COMPANY, INC.
    No. 08-CA-628.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Daniel E. Becnel, Jr., Darryl J. Becnel, Attorneys at Law, Reserve, Louisiana, for Plaintiffs/Appellants.
    Lawrence E. Abbott, Monique M. Weiner, Janika D. Polk, Attorneys at Law, Cov-ington, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   WALTER J. ROTHSCHILD, Judge.

|2In this class action litigation, plaintiffs appeal the trial court’s judgment in favor of defendant, E.I. DuPont deNemours and Company (hereinafter referred to as “Du-pont”), in which the trial court found that plaintiffs did not meet their burden of proof at trial and dismissed their claims against defendant. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The named plaintiffs in this litigation are Michael Johnson, Sandra Johnson, Carol Lennix, Lathaniel Lennix, Louis Lennix, Jr., Brad Arceneaux, Eric Arcen-eaux, and Roland Arceneaux. On August 9, 1994, plaintiffs filed a Class Action Petition, alleging that earlier that day, at approximately 12:30 p.m., an explosion and release of toxic chemicals occurred at the Dupont facility in Reserve, Louisiana, causing them to suffer damages. According to Dupont, this incident occurred when a fiberpack drum of waste paint was fed into the rotating |3solids waste incinerator at the facility. The waste paint contained an amount of free liquid, which caused a pressure release at the rotating seal of the kiln, resulting in the release of a puff of smoke and an explosion or “pop” sound. Plaintiffs claim that after they heard the explosion, they began to smell fumes and they suffered symptoms, such as nausea, eye or skin irritation, headaches, coughing, and throat irritation. After the incident, plaintiffs were advised by their attorney to report to River Parishes Hospital for treatment and they did so.

On September 24, 1997, the trial judge certified this matter as a class action and set its geographic boundaries, and the ruling was affirmed by this Court. Johnson v. E.I. Dupont deNemours and Company, Inc., 98-229 (La.App. 5 Cir. 10/14/98), 721 So.2d 41, 44. On May 4, 2000, the parties filed a Stipulation in which Dupont stipulated to liability but reserved its right to trial on the issues of damages, causation of any alleged damages or injuries, the nature of the materials released, and the area allegedly affected. In the Stipulation, plaintiffs waived any and all claims for punitive damages. After several years, trial of this matter was finally held on April 24 and 25, 2006.

At trial, each of the named plaintiffs testified either live or via his deposition. Plaintiffs testified that on August 9, 1994, they lived on East 30lh Street in Reserve, Louisiana, or were present there, when they heard a loud explosion coming from the Dupont facility. After a short time, they noticed a smell in the air that was irritating and they began to have symptoms, such as nausea, eye or skin irritation, and headaches. One of the plaintiffs, Carol Lennix testified that she called Du-pont and thereafter, representatives from Dupont came to her home to discuss what had happened. Some neighbors also got together and decided to see an attorney. After discussing the matter with their attorney, plaintiffs went to River Parishes Hospital, and most of them later followed up with |4Pr. Raul Reyes. Plaintiffs testified that their symptoms resolved within a relatively short period of time, some that day and some within a couple of days or a week.

Dr. Raul Reyes was called by plaintiffs, and he was accepted as an expert in field of general medicine with experience in treating people who may have some type of chemical exposure. He testified that he treated each of the named plaintiffs, except Louis Lennix and Lathaniel Lennix. Dr. Reyes stated that he diagnosed plaintiffs with fume inhalation, but his diagnosis was primarily based on the history given by plaintiffs. He did not notice objective symptoms for any of the plaintiffs, except Michael Johnson who had a discharge from his eye. He did not prescribe any medication or provide any specific treatment to plaintiffs, because their complaints were not severe. He further testified that he was told by plaintiffs that they had been involved in a chemical explosion, but he did not know what chemi-the cal they were exposed to and- could not provide any testimony on medical causation.

Richard Guidry, who was employed by Dupont as a chemist in the Environmental Department at the time of the accident, testified that he heard about the incident within a few minutes because he got a phone call. Although he was about 100 yards from the incinerator at the time of the incident, he did not hear the explosion, did not smell anything, and did not experience nausea, headaches, eye irritation, or other symptoms. He investigated to see if the amount of chemicals released was a quantity that had to be reported to the Department of Environmental Quality (“DEQ”), and it was not, but he made a courtesy call to DEQ the next day nonetheless. He identified the Material Safety Data Sheet (“MSDS”), which listed the constituents contained in the waste paint that was fed into the incinerator. Based on the investigation, he determined that a small amount of pressure caused a puff of smoke to escape, but it was insignificant and did not even shut down the He determined that less than one pound of material was released into the atmosphere, based on the fact that it was a very small cloud of smoke according to four or five operators at the incinerator, and it dissipated within a few feet of the kiln. I «incinerator.

Clarence Dykstra, the safety, health, and environmental manager for Dupont in 1994, testified that he was at the Dupont facility when the incident occurred, and he did not smell anything or have any symptoms, such as nausea, headaches, eye or skin irritation, or throat irritation. Darnell Hai'per, an operator in the incinerator area at Dupont in 1994, testified that at the time of the incident, he was in the control room, which is 100 or so yards from the incinerator. He stated that when he heard a loud pop, he headed toward the incinerator and saw a puff of smoke that came from the stack in the incinerator and lasted seven to ten seconds before it dissipated. He stated that the puff of smoke did not cross Dupont’s fence line into the neighborhood. He also indicated that he did not experience any symptoms, such as nausea, headaches, or burning eyes. He stated that he went into the neighborhood with his supervisor, Jerry Matthews, to see if he could smell anything and to talk to the neighbors, but he did not smell anything, and he stated that the neighbors did not initially seem upset.

Dr. Sukh Sidhu, who was accepted as an expert in environmental and combustion engineering, was called to testify. After being retained by defendant, he visited the solids waste incinerator site and reviewed documents and materials regarding the incident, including materials that identified the types of materials that were fed into the incinerator. He stated that based on the information he received, an amount of solvent was put into a 35-gallon fiberpack drum, and the solvent was to be soaked up by the sawdust. However, there was some freestanding liquid that was not absorbed by the sawdust, which vaporized and ignited, causing the | ^pressure release that resulted in the “pop” sound. Because the exact composition of the waste paint was not known, Dr. Sidhu reviewed the eight possible organics listed on the MSDS and made his calculations using the highest possible concentration of organic compounds for the puff of smoke released, which would have been the worst-case scenario and would have indicated the exposure levels for someone standing directly over the incinerator. Dr. Sidhu determined that the puff of smoke would only have been 50 cubic feet, and the maximum amount of organics that could have been in the puff was 0.18 %, with the remaining 99.8% consisting of water and carbon dioxide.

Dr. Glenn Millner was accepted as an expert in toxicology and risk assessment. After being retained by defendant, he reviewed materials related to the incident, including plaintiffs’ medical records, interrogatories, depositions, incident reports, and studies. He opined that there would have been some objective evidence of eye, nose, or throat irritation after the accident, if those symptoms were present, but the medical records from River Parishes Hospital did not show any objective findings. He further noted that the duration of symptoms among the plaintiffs was inconsistent, so he did not believe that their health claims were temporally related to the incident. He also reviewed the MSDS and Dr. Sidhu’s calculations. He testified that based on the concentration levels, even if plaintiffs had been standing on the stack when the puff of smoke was released, he would not have expected to see any health effects. Dr. Millner testified that someone is not necessarily exposed to chemical levels that cause adverse health effects simply because he can smell a chemical. He further opined that based on the lack of objective medical findings and lack of sufficient exposure, plaintiffs claims “don’t make sense.”

17Pefendant also called Dr. Douglas Swift, an occupational physician at East Jefferson General Hospital, and he was accepted as an expert in general medicine and occupational medicine. After reviewing the medical records, expert reports, MSDS, depositions, and other documents, he did not see evidence of any injury or illness that he could relate to any possibility of exposure to the puff of smoke from Dupont. He noted the lack of objective physical findings in the medical records from River Parishes Hospital and Dr. Reyes, and he opined that Dr. Reyes did not collect sufficient information to meet most people’s standards in medical toxicology and arrive at a diagnosis, other than a historical diagnosis, which is what he presented. He further stated that plaintiffs did not report dizziness or being lightheaded, which should have been present with reports of irritation due to chemicals. Although one plaintiff, Michael Johnson, had watery eyes when he saw Dr. Reyes nine days after the accident, based on the information he reviewed, Dr. Swift opined that this could not have been related to the incident.

On September 1, 2006, the trial judge rendered a judgment in favor of Dupont, dismissing plaintiffs’ claims against it. The trial judge found that plaintiffs did not meet their burden of proving causation, because they failed to show that they were exposed to harmful levels of chemicals, failed to produce scientific or medical evidence that their injuries were a result of the chemicals released by defendant, and failed to present expert testimony to contradict or refute the testimony presented by defendant’s exerts. On September 13, 2006, plaintiffs filed a Motion for New Trial, which was denied by the trial judge after a hearing. Plaintiffs now appeal.

LAW AND DISCUSSION

In their first assignment of error, plaintiffs argue that the trial court erred in failing to award damages to them where the evidence establishes that they |ssustained physical injuries and symptoms as a result of the release from Dupont. Dupont responds that, based on the testimony and evidence presented, the trial court correctly found that plaintiffs failed to meet their burden of proof.

In a tort action, the plaintiff bears the burden of proving fault, causation, and damages. Wainwright v. Fontenot, 00-492, p. 5 (La.10/17/00), 774 So.2d 70, 74. The plaintiff bears the burden of proving every element of his case, including the cause-in-fact of damage, by a preponderance of the evidence, that is, whether it is more likely than not that the harm was caused by the tortious conduct of one or more defendants. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993); Milazzo v. Olsten Home Health Care, Inc., 97-30, p. 8 (La.App. 5 Cir. 1/28/98), 708 So.2d 1108, 1112, writ denied, 98-501 (La.4/3/98), 717 So.2d 232. When a conclusion regarding medical causation is not one within common knowledge, expert medical testimony is required in a tort action. Hutchinson v. Shah, 94-264, p. 3 (La.App. 1 Cir. 12/22/94), 648 So.2d 451, 452, writ denied, 95-541 (La.4/21/95), 653 So.2d 570.

In the present case, although Dupont admitted to liability, it was plaintiffs’ burden to establish that the chemical release at Dupont caused them to suffer injuries. At trial, plaintiffs testified that they heard an explosion and subsequently began experiencing symptoms, such as nausea, eye or skin irritation, coughing, throat irritation, and headaches. Although plaintiffs were diagnosed with fume inhalation and chemical exposure, these diagnoses were based primarily on the history or information given by plaintiffs. Further, whether or not plaintiffs suffered injuries as a result of chemical exposure from the Dupont incident is not a determination based on common knowledge, so the plaintiffs were required to present expert medical testimony in order to meet their burden of proving medical causation. However, the only medical expert presented by plaintiffs was Dr. Raul |nReyes, who testified that he could not provide any testimony regarding medical causation.

Defendants, on the other hand, presented expert witnesses in support of their position that plaintiffs did not suffer injuries as a result of the August 9, 1994 incident. Dr. Swift, an expert in general and occupational medicine, testified that based on the documents he reviewed, including the medical records which indicated a lack of objective findings, he did not see evidence of injury or illness that could possibly have been related to the puff of smoke from the Dupont facility. In addition, Dr. Glenn Millner, an expert in toxicology and risk assessment, testified that based on the materials he reviewed regarding the incident, including Dr. Sidhu’s calculations and plaintiffs’ medical records, he did not believe that plaintiffs suffered any health effects due to the Dupont incident and found that their claims did not “make sense.”

The finder of fact is required to assess the credibility of both expert and lay witnesses to determine the most credible evidence. Magee v. Pittman, 98-1164, p. 12 (La.App. 1 Cir. 5/12/00), 761 So.2d 731, 742, writ denied, 00-1684 (La.9/22/00), 768 So.2d 602. The appellate court applies the manifest error standard in deciding conflicts between expert and lay testimony. St. Martinville, L.L.C. v. Louisiana Tax Commission, 05-457, p. 8 (La.App. 1 Cir. 6/10/05), 917 So.2d 38, 44. In applying the manifest error standard of review, the appellate court must determine not whether the factfinder was right or wrong, but whether his finding was a reasonable one. Id.; Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La.1993)

After reviewing the entire record in this matter, considering the trial court’s credibility determinations, and noting plaintiffs’ lack of expert medical testimony regarding causation, we cannot say that the trial judge erred in finding that |inplaintiffs failed to prove that they were exposed to harmful levels of chemicals and that they failed to provide sufficient evidence to establish that they suffered injuries as result of the Dupont incident. Accordingly, because plaintiffs have failed to prove causation in this matter, this assignment of error is without merit.

In their second assignment of error, plaintiffs contend that the trial court erred by requiring plaintiffs to be sequestered during the trial of this matter. They assert that parties to a lawsuit are entitled to attend their own trial and to observe the testimony of the witnesses. Dupont responds that it was appropriate to sequester plaintiffs from the courtroom until they gave their testimony, because liability had been stipulated to.

LSA-C.E. art. 615 provides, in pertinent part, as follows:

A. As a matter of right. On its own motion the court may, and on request of a party the court shall, order that the witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interests of justice, the court may exempt any witness from its order of exclusion.
B. Exceptions. This Article does not authorize exclusion of any of the following:
(1) A party who is a natural person.

The purpose of the sequestration article is to prevent witnesses from being influenced by the testimony of earlier witnesses, and to strengthen the role of cross-examination in developing the facts. State v. Doleman, 02-957, p. 11 (La.App. 4 Cir. 12/4/02), 835 So.2d 850, 858, writ denied, 02-3101 (La.9/19/03), 853 So.2d 633. Pursuant to LSA-C.C.P. art. 1631(A), the trial court has the power to require that the proceedings be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at trial so that justice is done.

At the beginning of trial, counsel for plaintiffs moved for sequestration of the witnesses. The trial court granted the request. Thereafter, counsel for Dupont moved to sequester plaintiffs, arguing that liability had already been stipulated to _[iJand that each plaintiff was now pursuing only them individual claims for their own damages. Although counsel for plaintiffs objected, the trial court granted Dupont’s request, stating, “I do not believe that the plaintiffs will be at any disadvantage since liability has been stipulated to the matter.”

The trial court has great discretion in the manner in which proceedings are conducted, and it is only upon a showing of gross abuse of discretion that appellate courts have intervened. Dugas v. Automotive Cas. Ins. Co., 98-807, p. 4 (La.App. 5 Cir. 2/10/99), 729 So.2d 25, 27. Although LSA-C.E. art. 615 does not authorize the exclusion of a party from the courtroom, we do not find that a gross abuse of discretion has occurred in the instant case. First, liability was no longer an issue at the time of trial, because Dupont had admitted to the chemical release and stipulated to liability, with causation and damages only to be litigated. Further, this is a class action in which each plaintiff appeared to testify to their own individual damage claims. Also, there were eight named plaintiffs, two of which testified via their depositions. Of the remaining six named plaintiffs, five of them were the first five witnesses to testify at trial, and after each plaintiff testified, he or she was permitted to remain in the courtroom. Accordingly, we agree with the trial court that plaintiffs did not suffer any disadvantage or prejudice from being included in the sequestration order, and we will not disturb the trial court’s judgment on this basis.

In their third assignment of error, plaintiffs contend that the trial court erred in allowing defendant’s experts to testify in fields that were not timely disclosed in their answers to discovery. Plaintiffs argue that in the discovery they propounded to defendant over 10 years prior to the trial, they specifically requested the names of defendant’s witnesses who conducted an investigation or air modeling in this matter, but Dupont did not disclose the experts they would use when they 112answered discovery in October 1995. Plaintiffs further argue that Dr. Sidhu, Dr. Millner, and Dr. Swift were not identified as experts in air modeling and they should not have been allowed to testify in that field. Finally, they claim that defendants failed to call an air modeler at trial to contradict the testimony of plaintiffs who testified that chemicals blew right at them from the Dupont facility.

First, the Pre-Trial Order dated June 29, 2005 required the parties to employ all experts and disclose the names and addresses of these witnesses in writing no later than March 24, 2006. In its “May Call Witness List” faxed to the Clerk of Court on March 24, 2006, Dupont listed the expert witnesses that were later called at trial. The fact that these witnesses were not identified in answers to discovery in 1995, over ten years prior to trial, is of no moment.

In addition, although plaintiffs claim that Dupont’s witnesses were improperly allowed to testify regarding air modeling, our review of the testimony reveals that this was not the case. Further, although plaintiffs argue that defendant should have been required to call an air modeler to contradict the testimony of plaintiffs, we find this ai'gument incorrect and unpersuasive. As stated above, it was plaintiffs’ burden to provide sufficient evidence in support of their claims. Plaintiffs failed to do so. We find no merit in plaintiffs’ argument that Dupont was required to produce an air modeler at trial. Based on the foregoing, plaintiffs’ third assignment of error is without merit.

In their fourth assignment of error, plaintiffs argue that the trial court erred in allowing witnesses to testify to their opinions in fields in which they were not qualified. They claim that Clarence Dykstra should not have been allowed to testify regarding the off-site impact or level of severity of the explosion. They assert that Darnell Harper should not have been permitted to testify as to the medical conditions of plaintiffs.

|1sFirst, Clarence Dykstra, the safety, health, and environmental manager for Dupont in 1994, was not offered as an expert at trial. He was in charge of Du-pont’s investigation into the incident and he concluded, based on the data compiled during the investigation, that there would have been no off-site impact caused by the chemical release. We find no error in the trial court allowing Mr. Dykstra to testify regarding the findings of Dupont’s internal investigation. With regard to Darnell Harper, at trial, he was asked if he observed any symptoms in the neighborhood residents, such as coughing, skin redness, watery eyes, when he went into the neighborhood to talk to them and investigate. Mr. Harper indicated that he did not notice any such symptoms. We find no error in allowing this testimony. Dupont did not purport to offer Mr. Harper as a medical expert, and he could certainly testify from his own observation whether he noticed the symptoms complained of.

Plaintiffs also contend that Dr. Sidhu did not have experience dealing with kilns that burn paint, and that they properly objected to his qualifications. They also set forth testimony from Dr. Millner and Dr. Swift, and they claim that neither of these witnesses presented compelling, competent, or scientifically sound testimony.

The trial court has great discretion whether to qualify an expert witness and has wide latitude to determine whether an expert has the competence, background, and experience to qualify. Schexnayder v. Exxon Pipeline Co., 01-1236 (La.App. 5 Cir. 3/13/02), 815 So.2d 156, 159. Once the expert is permitted to testify in his field, the trier of fact has great discretion to accept or reject the expert’s opinion, which goes to the credibility of the witness. Id. A trial court’s decision to qualify an expert witness will not be overturned absent an abuse of discretion. Cheairs v. ┴14State ex rel. Department of Transp. and Development, 03-680, p. 6 (La.12/3/03), 861 So.2d 536, 541.

At trial, Dupont’s experts were questioned on them qualifications and accepted as experts in them particular fields. We find no abuse of discretion in the trial court’s decision to accept these witnesses as experts. Further, our review of the testimony of each of these witnesses reveals that the trial court did not improperly allow any expert to testify beyond the scope of his expertise. Considering the arguments of counsel and the applicable law, we find that this assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the September 1, 2006, judgment of the trial court in favor of Dupont, dismissing plaintiffs’ claims against it. We also affirm the trial court’s judgment denying plaintiffs’ Motion for New Trial.

AFFIRMED.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Lawrence MITCHELL.
    No. 08-KA-629.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Lawrence Mitchell a/k/a Vernon Jones, Angie, Louisiana, In Proper Person.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   WALTER J. ROTHSCHILD, Judge.

12Pefendant, Lawrence Mitchell, a.k.a. Vernon Jones, was charged with armed robbery in violation of LSA-R.S. 14:64. Defendant pled not guilty at his arraignment. On March 24, 2005, defendant withdrew his not guilty plea and pled guilty as charged under the provisions of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In accordance with the plea agreement, the district court sentenced defendant to 30 years at hard labor without benefit of parole, probation, or suspension of sentence. The court ordered that the sentence run concurrently with sentences it imposed in other cases that day. The judge noted that pursuant to the plea agreement, the State would refrain from filing a habitual offender bill of information.

| aDefendant filed an application for post-conviction relief in the district court requesting an out-of-time appeal. On April 11, 2008, the district court issued an order granting defendant an out-of-time appeal.

FACTS

The facts regarding the charged offense can be found in the factual basis offered by the prosecutor at the time of the Alford plea:

In 04-1745, had this matter gone to trial, the state would have proven that on February the 2nd, 2004 at approximately 10:42 p.m. this defendant robbed the business of The Discount Stop located at 3016 Cleary Avenue in Metairie. The cashier and victim, Diana McBride related to the police officers that she was standing behind the counter at a cash register when the defendant entered the business and approached her; he asked to purchase a pack of cigarettes, and as she attempted to get them, the subject demanded that she give him the money from the register. The subject stated, “I need the money and I need it now.”
The defendant then walked around the counter to where the victim McBride was standing and produced a flat-tipped screwdriver. The defendant again demanded money. The victim, being in fear for her safety, backed away from the register. The defendant attempted to open the register, to no avail, where upon he again demanded the victim to open the register. She opened the register, at which time the defendant removed $280.00 in cash and fleck
The defendant was positively identified in a photographic lineup by the victim and later the defendant confessed to the crime.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 [per curiam], asserting that she has thoroughly reviewed the trial court record and cannot find |4any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

DISCUSSION

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by ‘ “a brief referring to anything in the record that might arguably support the appeal” ‘ so as to prqvide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal | .qis wholly frivolous. State v. Bradford, 95-929 at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel points out that there are no pre-trial rulings from which defendant might appeal. She further notes that the district court fully informed defendant of his constitutional rights and of the consequences of waiving those rights and pleading guilty. Appellate counsel acknowledges that defendant may not challenge his sentence on appeal, since it was agreed upon as part of a plea bargain.

Appellate counsel has filed a motion to withdraw as attorney of record stating she has complied with the provisions of Anders and Jyles, and that she has notified defendant of his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he would have until September 15, 2008 to file a pro se supplemental brief. Defendant filed a timely pro se brief raising two assignments of error. Those assignments are discussed below.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. When a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal | r,or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

The record does not reflect that defendant filed any pre-trial motions. Therefore, as appellate counsel notes, there are no district court rulings defendant could have preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976).

The record shows the district court properly advised defendant of his right to a jury trial, his right of confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The judge also explained to defendant the offense with which he was charged and the sentencing range for that offense. The judge ascertained that defendant had a high school education, that he understood his rights, and that he wished to waive those rights and plead guilty. Additionally, defendant, his attorney, and the judge signed a waiver of rights form which enumerated defendant’s rights and detailed the sentence he would receive pursuant to his plea agreement.

Defendant offered his plea under North Carolina v. Alford, 400 U.S. at 38, 91 S.Ct. at 167 n. 10, which requires the establishment of a factual basis for the plea when a defendant protests his innocence but determines that a guilty plea is in his best interest. As delineated above under the statement of facts, we find the prosecutor offered a factual basis for the plea sufficient to satisfy the Alford requirements.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, defendant’s conviction and sentence are affirmed and appellate counsel’s motion to withdraw as attorney of record is granted.

| ^DISCUSSION OF PRO SE ASSIGNMENTS

By pro se brief, defendant first complains his appointed counsel in the district court was ineffective in several respects. Defendant argues his guilty plea was not knowing and voluntary because his attorney failed to properly inform him of the consequences of his plea, and counsel coerced him to plead guilty by informing him he would receive a life sentence if he elected to go to trial. Defendant further argues his appointed counsel was ineffective in that he failed to object to the factual basis the prosecutor offered the court under Alford,, when the prosecutor’s statement was inaccurate in several respects. Defendant submits his appointed counsel failed to adequately investigate his case after private counsel withdrew, and that this was another factor that contributed to the involuntariness of his guilty plea. Finally, defendant complains appointed counsel failed to file pre-trial motions to suppress identification and statements where the photographic identification obtained by police was tainted, and where his statements to police were the fruits of an illegal arrest.

The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution safeguard a defendant’s right to effective assistance of trial counsel. According to the United States Supreme Court’s opinion in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant asserting an ineffective assistance claim must show: 1) that defense counsel’s performance was deficient; and 2) that the deficiency prejudiced the defendant. The defendant has the burden of showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability | asufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, rather than by direct appeal. State v. Taylor, 04-346, p. 10 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised in an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under LSA-C.Cr.P. arts. 924-930.8. State v. Taylor, supra.

In the instant case, the record is insufficient to allow a review of defendant’s ineffective assistance claims on appeal. Since defendant’s conviction resulted from a guilty plea, the only transcript in the record is that of the plea hearing. It is impossible to determine, based on the limited record on appeal, whether defendant’s district court counsel used coercion to induce a guilty plea, whether counsel adequately investigated and prepared defendant’s case, or whether counsel was deficient in failing to file suppression motions. Defendant’s claims would be more appropriately raised in an application for post-conviction relief in the district court, where a full evidentiary hearing can be conducted and defendant can present evidence to support his allegations.

In a similar case, State v. Kron, 07-1024 (La.App. 5 Cir. 3/25/08), 983 So.2d 117, writ denied, 08-0813 (La.10/24/08), 992 So.2d 1039, the defendant filed a pro se brief in which he argued his attorneys were ineffective because they failed to investigate his case or to formulate a defense to prove his innocence. The defendant’s Igbrief detailed facts and witnesses defendant claimed could have discredited the version of events presented by the police. The defendant complained that his attorneys failed to file any pretrial motions or to request any evidentiary hearings. He specifically alleged his attorneys should have filed a motion to suppress because his arrest and the officers’ subsequent discovery of evidence were the result of an illegal investigatory stop. This Court determined the record was insufficient to address the defendant’s claims, since the only transcript contained in the record was that of the plea hearing. Id., 07-1024 at 11-12, 983 So.2d at 123. This Court relegated the defendant’s claims to post-conviction proceedings. See also, State v. Stewart, 03-976 (La.App. 5 Cir. 12/30/03), 862 So.2d 1271,1277-78.

Since the appeal record is insufficient to address the merits of defendant’s ineffective assistance claims relating to coercion by district court counsel, counsel’s failure to investigate, to formulate a defense, and to file and pursue pre-trial suppression motions, defendant should raise those claims in an application for post-conviction relief in the trial court.

Defendant next contends that he was exposed to a broken plea bargain. He argues he was misled by his attorney, the prosecutor, and the district court judge to believe he would receive “good time” credit on his 30-year sentence as part of his plea agreement. Because the instant conviction is his second for a crime of violence as currently defined by LSA-R.S. 14:2 B, (and as defined by LSA-R.S. 14:2(13) at the time of defendant’s offense) defendant is prohibited from earning “good time.” LSA-R.S. 15:571.3 D provides, “Diminution of sentence shall not be | inaIIowed an inmate in the custody of the Department of Public Safety and Corrections if the instant offense is a second offense crime of violence as defined by R.S. 14:2(B).” The instant offense, armed robbery, is listed under LSA-R.S. 14:2 B (and formerly under LSA-R.S. 14:2(13)) as a crime of violence. Additionally, on the day defendant pled guilty to the instant offense, he pled guilty to five counts of first degree robbery in a separate case. First degree robbery is also designated as a crime of violence under LSA-R.S. 14:2 B, and was formerly designated as a crime of violence under LSA-R.S. 14:2(13). Defendant thus has two convictions for crimes of violence. Since he cannot legally earn the “good time” credit he believes he was promised, defendant moves this Court either to allow him to withdraw his guilty plea or to order that his sentence be reduced so it ends at his parole eligibility date.

A plea bargain is viewed as a contract between the State and one accused of a crime. State v. Roberts, 07-493, p. 5 (La.App. 5 Cir. 11/27/07), 973 So.2d 791, 794. In determining the validity of agreements not to prosecute or of plea agreements, Louisiana courts generally refer to rules of contract law, while recognizing at the same time that a criminal defendant’s constitutional right to fairness may be broader than his or her rights under contract law. State v. Louis, 94-0761, p. 7 (La.11/30/94) 645 So.2d 1144, 1148; Roberts, supra. The validity of any guilty plea depends on the circumstances of the case. State v. Filer, 00-0073 (La.6/30/00), 762 So.2d 1080 [per curiam].

The first step under contract law is to determine whether a contract was formed in the first place through offer and acceptance. The party demanding performance of a contract has the burden of proving its existence. State v. Louis, ┴1194-0761 at 10, 645 So.2d at 1149. It must also be determined whether the contract had a lawful cause or object. Under the Louisiana Civil Code, “an obligation cannot exist without a lawful cause.” LSA-C.C. art. 1966. See State v. Hines, 07-313, p. 3 (La.App. 5 Cir. 11/27/07), 970 So.2d 707, 709. “The cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy.” LSA-C.C. art. 1968. See State v. Hines, supra.

It is well settled that a guilty plea is constitutionally infirm when a defendant is induced to enter that plea by a plea bargain or by what he justifiably believes was a plea bargain and that bargain is not kept. State v. Dixon, 449 So.2d 463, 464 (La.1984). Under substantive criminal law, there are two alternative remedies available for a breach of a plea bargain: (1) specific performance of the agreement; or (2) nullification or withdrawal of the plea. State v. Roberts, 07-493 at 6, 973 So.2d at 794. In the context of plea bargains, a defendant may demand specific performance of the state’s promise if he can show that the parties reached an agreement, that he performed his part of the agreement, and that in doing so, he relinquished a fundamental right. Louis, 94-0761 at 9-10, 645 So.2d at 1149-50. See also, State v. Tanner, 425 So.2d 760, 763 (La.1983).

The record in this case does not show that defendant was promised “good time” eligibility as part of his plea agreement or that the State has violated the terms of the plea agreement. The waiver of rights form, the commitment, and the guilty plea transcript show the trial court instructed defendant that if he pled guilty to the armed robbery charge, he would be sentenced to serve 30 years at hard labor without benefit of parole, probation, or suspension of sentence. Defendant was told he would receive credit for time served. In exchange for his guilty plea, the State agreed not to file a habitual offender bill of information. Defendant indicated h2he understood and accepted those terms. The judge then sentenced defendant according to the enumerated terms. Defendant does not cite to anything in the record that indicates “good time” eligibility was part of the plea agreement, nor does there appear to be a mention of “good time” in the guilty plea documents or the Boykin colloquy.

In any case, the promise of “good time” would not constitute a “lawful cause” under contract law, since the trial court did not possess the authority to authorize “good time” eligibility for defendant. See LSA-R.S. 15:571.3 C; State v. Hotard, 04-1092 (La.10/15/04), 885 So.2d 533 [per curiam]. See also, State v. Carey, 07-674, p. 6 (La.App. 5 Cir. 12/27/07), 975 So.2d 27, 30-31. The trial court, with certain exceptions, has no role in determining eligibility for diminution of sentence. The statute governing such credit is directed exclusively to the Department of Corrections. Id. Based on the foregoing, we fail to find that defendant is entitled to the relief he requests.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir. 1990). We have failed to discover errors which require corrective action.

DECREE

Accordingly, for the reasons assigned herein, defendant’s conviction and sentence are affirmed. Appellate counsel’s motion to withdraw is granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . As defendant points out, the district court failed to comply with LSA-C.Cr.P. art. 890.1 A, which provides that "fw]hen the court imposes a sentence, the court shall designate whether the crime involved is a crime of violence as defined or enumerated in R.S. 14:2(B).” The court’s omission is harmless, since the legislative intent behind Article 890.1 A is to put the Department of Corrections on notice of defendants' "good time” eligibility, and armed robbery is clearly designated as a crime of violence under LSA-R.S. 14:2 B. That statutory designation is sufficient to put the Department of Corrections on notice as to defendant's "good time” eligibility. See State v. Allen, 99-2898 (La.6/16/00), 762 So.2d 615 [per curiam]; State v. Mourra, 06-133, p. 8 (La.App. 5 Cir. 8/29/06), 940 So.2d 29, 33, n. 4.

      . Although defendant believes he is eligible for parole, LSA-R.S. 14:64 requires that all armed robbery sentences be served without benefit of parole, probation, or suspension of sentence. The judge explained this to defendant at his guilty plea proceedings, and defendant indicated that he understood. Also, the court explicitly imposed the sentence without benefits.


author: MADELINE JASMINE, Judge Pro Tempore.

text:
    Barbara Ann VALVO v. Debra VALVO.
    No. 08-CA-622.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Barbara Ann Valvo, Attorney at Law, Willow Spring, North Carolina, In Proper Person for PlaintiffiAppellant.
    Elizabeth 0. Rome, Elizabeth 0. Rome, LLC, Attorney at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., GREG G. GUIDRY, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

| ..Barbara Valvo appeals the dismissal of a lawsuit for failure to serve the defendant. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 5, 2003, plaintiff, Barbara Ann Valvo, filed suit against her sister Debra Valvo. This tort suit alleged that the defendant destroyed the bond between plaintiff and her mother causing damages to plaintiff. Service was requested to be held at the time the suit was filed. The suit was accompanied by an Application for Pauper Status and on August 5, 2003, an Order was signed granting plaintiff pauper status for one year. On October 30, 2003, a letter was delivered to the Clerk of Court requesting service “as indicated on the last page of the petition.” Although this letter does not appear in the record in chronological order, the record indicates that citation was issued by the Clerk of Court on November 4, 2003. The record further indicates that service was attempted on the defendant on five occasions between November 6, 2003 and November 12, 2003. On November 4, | ⅞2004, plaintiff filed a second Application for Pauper Status and a second Order was signed that same date granting plaintiff pauper status. On December 6, 2004, a letter was mailed to plaintiff stating she had been granted pauper status on November 4, 2004.

On November 19, 2004, defendant filed a Motion to Dismiss for failure to request service pursuant to La. C.C.P. art. 1672(C) or alternatively an exception of insufficiency of service of process. A hearing on this motion was set for February 18, 2005. A minute entry dated February 18, 2005 states that the Motion to Dismiss was continued without date at the request of the attorney for the mover. On December 18, 2007, plaintiff filed Interrogatories propounded to the defendant in the court record, stating that the Interrogatories had been mailed to defendant’s counsel. On February 12, 2008, defendant filed a Motion to Reset the Motion to Dismiss filed on November 19, 2004. The hearing was set for April 21, 2008. On March 25, 2008, plaintiff filed a Request to Change the Hearing Date. This request was granted and the hearing date was changed to May 22, 2008. On April 29, 2008, plaintiff filed a Request to Participate in the Hearing by Phone. Said request was denied by the trial court on May 7, 2008. On May 15, 2008, plaintiff filed a Memorandum in Opposition to the Motion to Dismiss stating that service was timely requested. She stated that when she met with the attorney for her deceased mother’s estate, who works in the same firm as defendant’s attorney, she saw a copy of an Answer to her petition. Plaintiff contends that because an Answer to the petition had been drafted coupled with the fact that she was never notified that the sheriff was unable to serve the defendant, she believed in good faith that the defendant had been served. Defendant filed a reply Memorandum arguing that even if the October 30, 2003 letter was a valid request for service, the Motion to Dismiss should be sustained “in that it is an abuse to the legal system that Barbara |4Ann Valvo has not had Debra Valvo served even to this date although she filed her petition on August 5, 2003.” Defendant goes on to argue that plaintiff only attempted service on the defendant at her residence, although plaintiff was aware of the defendant’s work address.

On May 22, 2008, a hearing on defendant’s motion was held. Plaintiff did not appear. Defendant’s attorney stated that plaintiff tried to have defendant served at home during the day while defendant was at work. At the conclusion of the hearing, the trial judge granted defendant’s motion. On May 27, 2008, the trial court signed a judgment dismissing plaintiffs petition for “lack of service upon Debra Valvo.” This timely appeal followed.

LAW AND DISCUSSION

The defendant filed a motion entitled Motion to Dismiss for Failure to Request Service or Alternatively Exception of Insufficiency of Service of Process. The trial court judgment states that plaintiffs suit was dismissed for “lack of service upon Debra Valvo.”

Pursuant to La. C.C.P. art. 1201(C), “[sjervice of the citation shall be requested on all named defendants within ninety days of the commencement of the action.” If service is not requested within the time pei’iod provided by La. C.C.P. art. 1201(C), La. C.C.P. art. 1672(C) mandates that the action be dismissed without prejudice, “unless good cause is shown why service could not be requested.” Since the trial court record shows plaintiffs request for service was received by the Clerk of Court within 90 days of the filing of the suit articles 1201(C) and 1672(C) are not applicable to the instant case.

La. C.C.P. art. 925 states that insufficiency of service of process may be raised through a declinatory exception. The trial court dismissed the suit for |¡r,failure to serve the defendant, which falls under article 925 Exception of Insufficiency of Service of Process.

Appellant argues that service was not insufficient because the request for service named the proper party and the proper address, was given to the proper authority, and was carried out by the proper authority in the proper manner. While we do not dispute that the request for service was proper, the fact remains that the defendant was never served. The record indicates that five unsuccessful attempts were made shortly after service was requested. The next document in the record, plaintiffs second Application for Pauper Status, was filed into the record nearly one year after the request for service.

Plaintiff, an attorney, is representing herself in this matter. Plaintiff states she was in the hospital with severe medical conditions that began shortly after suit was filed in 2003 and that she spent all of 2004 rehabilitating from her medical conditions. Because she viewed what she believed to be an answer to her lawsuit when she visited the law firm of defendant’s attorney in 2005, she contends she was in good faith in believing defendant had been served .

In Thomas v. Quality Inn Westbank, 01-379 (La.App. 5 Cir. 11/27/01), 802 So.2d 930, the plaintiff filed suit and was unsuccessful in serving the defendant. The defendant filed an Exception of Insufficiency of Service of Process. At the hearing on the motion, the trial court ordered plaintiff to obtain service no later than February 7, 1997. Plaintiff again failed to serve defendant and a second hearing was held resulting in the dismissal of plaintiffs suit. In affirming the trial court’s dismissal of plaintiffs suit, this Court stated “We agree with the trial judge that two unsuccessful attempts to obtain service in a period of three years does not constitute a diligent attempt at service.” Id. at 933.

|r,In the case at bar, suit was filed on August 5, 2003. Five attempts at service were made between November 6, 2003 and November 12, 2003. No further service was requested or attempted. Plaintiff filed a second Application for Pauper Status on November 4, 2004. Defendant filed a Motion to Dismiss for Failure to Request Service or alternatively an Exception of Insufficiency of Service on November 14, 2004. Plaintiff was served with this motion. In her brief, plaintiff admits that the only attempts at service were made in November 2003. While we do not ignore the seriousness of plaintiffs severe medical conditions, we find that plaintiff was not diligent in attempting to seive defendant. Plaintiffs medical condition did not prevent her from filing a second Application for Pauper Status in November 2004 and should not have prevented her from ascertaining whether defendant had been served. Indeed, as an attorney, plaintiff is aware that service was essential to proceeding with this lawsuit. Thus, we find no error in the trial court’s judgment dismissing plaintiffs suit.

Plaintiff further argues the trial court’s denial of her motion to participate in the hearing on defendant’s motion by telephone violated the equal protection clause of the state constitution and the Louisiana Civil Rights Act for Handicapped Persons. We find this issue to be without merit. Plaintiff filed a written opposition to defendant’s motion stating why she believed the defendant had been served and explaining that during the time after she filed suit, she concentrated on recovery from her medical conditions and this “spanned the year 2004 and spring 2005.” She admitted the sheriffs attempts at service were unsuccessful. The trial court dismissed plaintiffs suit because she failed to serve the defendant. On appeal, plaintiff does not state what further information she would have provided to the 17trial court had her request been granted. Thus, she has not shown how she was prejudiced by the trial court’s denial of her request.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Plaintiff does not explain why she did not review the record to determine whether this purported answer had been filed.

      . We note that plaintiff did not seek supervi-soty review of the trial court’s denial of this request.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Peter TURNER v. MARINE INLAND TRANSPORTATION CO. and Maryland Marine, Inc.
    No. 08-CA-594.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.
    Writ Denied April 3, 2009.
    See also 946 So.2d 185.
    Timothy J. Young, Robert J. Young, Jr., Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    J. Michael Grimley, Jr., Frederick W. Swaim, III, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., GREG G. GUIDRY and MADELINE JASMINE, Pro Tempore.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|2This is an appeal by Peter Turner, plaintiff-appellant, from a judgment dismissing his suit against Marine Inland Transportation Co. (MITCO), defendant-appellee, on grounds of abandonment. For the following reasons, we affirm.

Plaintiff alleged in his petition in this matter that he was injured in 1997 while loading chemicals onto a barge owned by Maryland Marine, Inc., and operated by MITCO. Both parties were named as defendants. MITCO filed a Notice of Bankruptcy and the state action against it was stayed on January 14, 2000.

During this period and after, no steps had been taken by any party to prosecute or defend the claim against Maryland Marine since December of 1999. On September 23, 2002, Maryland Marine urged a motion to dismiss based on abandonment and the motion was granted on September 27, 2002. Plaintiff apparently did not participate in that dismissal due to lack of notice.

The next pertinent action in the case came on May 26, 2004, when MITCO’s bankruptcy was closed. On July 12, 2004, plaintiff propounded written discovery ^requests on MITCO. Then, on May 26, 2005, plaintiff filed a motion to set aside the judgment dismissing the case against Maryland Marine asserting that he had never received notice of the hearing on the motion as required by law. Maryland Marine responded and MITCO filed a brief in support of Maryland. A hearing was held on August 13, 2005, at which MITCO’s counsel was in attendance. The court set aside the original September 27, 2002, order, but sustained the motion to dismiss based on a showing that no action had been taken in the case since December 9, 2002, and therefore that the action was abandoned as of December 9, 2005. That judgment was affirmed on appeal to this court. Turner v. Marine Inland Transportation Co., and Maryland Marine, Inc., 06-342 (La.App 5th Cir. 10/31/06), 946 So.2d 185.

No action was taken by plaintiff against MITCO between the July 12, 2004, discovery request and August 14, 2007, when plaintiff filed a motion for a status conference. MITCO urged the present motion to dismiss for abandonment on October 3, 2007, and this motion was granted. This appeal followed.

As discussed in Turner, supra, La.Code Civ. Pro. Art. 591 requires three things to defeat a motion to dismiss based on abandonment. First, a party must take some “step” in the prosecution or defense of the action; second, this step must be done on the record of the suit except for formal discovery; and third, the “step” must be made within three years of the last “step.” A party takes a “step” in the prosecution or defense of the action when he takes formal action on the record of the case before the court or initiates formal discovery intended to hasten the matter to judgment.

The above summary of the procedural facts of the case shows that as to MITCO plaintiff made a formal discovery request on July 12, 2004, and did nothing else in regard to this party until he filed a request for a status conference |4over three years later on August 14, 2007. MITCO for its part did nothing by way of defending against plaintiffs claim during this same period.

Plaintiff argued in the district court, and re-argues here, that the various actions taken in respect to Maryland Marine’s motion to dismiss constituted “steps” in the case. Specifically, he notes that during the above period of inaction as to MITCO 1) he filed his motion to vacate the September 27, 2002, judgment of dismissal; 2) MITCO filed a brief in opposition to his motion; 3) MITCO’s counsel appeared at the hearing on his motion; and 4) he appealed that matter from November 5, 2005 until October 31, 2006, when this court affirmed the judgment dismissing Maryland Marine.

The issue here is thus whether the above activities constituted “steps” intended to hasten the matter to judgment. In Augusta Sugar Co. v. Haley, 163 La. 814, 112 So. 731 (1927), the court held that efforts to keep a suit on the docket of the court by opposing a motion to dismiss do not constitute “steps” designed to hasten the matter to judgment. Implicit in this holding is that efforts to have the suit dismissed similarly do not constitute steps in the prosecution of the suit.

In the present case, all of the actions taken by plaintiff and MITCO during the relevant three year period had only to do with opposing or supporting a motion to dismiss based on abandonment, albeit in relation to Maryland Marine. The trial judge determined that these actions did not constitute “steps” and sustained MIT-CO’s motion to dismiss. We agree.

Plaintiff also points to a letter dated September 24, 2002, which was faxed to the judge in opposition to Maryland Marine’s motion to dismiss of September 23, 2002. This letter was not made of record when produced, but it was submitted as an exhibit on May 26, 2005, with his motion to set aside the September 27, 2002 judgment of dismissal. He asserts that introduction of this letter in 2005, during |Bthe three year period of abandonment as to MITCO, constituted a “step” in the prosecution of the case. We disagree. As held above, any action in opposition to a motion to dismiss for abandonment, which is what the letter is, do not constitute such a step.

For the foregoing reasons, we affirm the judgment dismissing the suit against MIT-CO on grounds of abandonment.

AFFIRMED.


author: SAUNDERS, Judge.

text:
    Geralyn Adgia Lambert HARTMAN v. Wesley Wood LAMBERT.
    No. CA 08-1055.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.

      Charles Sterling Lambert, Jr., Attorney at Law, Baton Rouge, LA, for Defendant/Appellee, Wesley Wood Lambert.
    Charles G. Fitzgerald, Cox Fitzgerald, L.L.C., Lafayette, LA, for Plaintiff/Appellant, Geralyn Adgia Lambert Hartman.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   SAUNDERS, Judge.

11 This is a family proceeding wherein the mother of a minor child attempted to register the support and custody order from an Orleans Parish court in a Saint Landry Parish court. Further, after registering the order, the mother filed a rule to modify legal and physical custody. The father of the child filed various declinatory and dilatory objections, including an objection to jurisdiction.

The St. Landry Parish court found that it did not have jurisdiction over the matters presented because a previous judgment reached by an Orleans Parish court stated that it “shall retain continuing, exclusive jurisdiction of this proceeding and all orders herein.” Accordingly, the St. Landry Parish court dismissed the mother’s actions, with prejudice, cast her with costs of the proceedings, and, further, transferred the matters to Orleans Parish.

The mother filed this appeal from the St. Landry Parish court’s judgment. She assigned three assignments of error. We find that her first assignment of error, relating to subject matter jurisdiction, has merit. Accordingly, we vacate the St. Landry Parish court’s judgment and remand the case for further proceedings not inconsistent with this opinion.

FACTS AND PROCEDURAL HISTORY:

Geralyn Adagia Lambert Hartman (Hartman) and Wesley Wood Lambert (Lambert) were previously married, are now divorced, and are the parents of one minor child, born January 8,1997.

In 1997, Lambert commenced a civil action for divorce against Hartman in the proceeding entitled Wesley W. Lambert v. Gemlyn A. Lambert, bearing number 1997-20811 on the docket of the Civil District Court for the Parish of Orleans, State of Louisiana. By consent judgment entered into on February 23, 1998, Lambert andJjHartman were awarded joint custody of the minor child. The judgment further established child support in favor of Hartman.

On November 15, 2005, Lambert filed a rule to modify legal and physical custody in Orleans Parish. At the time of the filing, Lambert maintained a residence in Orleans Parish. Hartman was then a domiciliary of St. Landry Parish. Within months of the filing of this rule, Lambert moved from Louisiana to Nassau, Bahamas.

Notwithstanding the foregoing, the parties ultimately entered into an agreement concerning all custody issues, which was stipulated to in open court on July 25, 2006. The transcript from the July 25th hearing evidences that the trial court granted Lambert’s oral motion for entry of an order of continuing and exclusive jurisdiction.

On May 11, 2007, Hartman filed a petition to register foreign support orders in the St. Landry Parish Judicial District Court. An order registering the Orleans Parish judgment of support and custody was signed that day.

Hartman then filed a rule to modify child support and physical custody on March 24, 2008, again in St. Landry Parish. Lambert responded on April 23, 2008, by filing various declinatory and dilatory exceptions, and objected to the registration of the Orleans Parish support and custody judgment.

The hearing on Lambert’s exceptions and objection was held on May 30, 2008. After taking the matter under advisement, the St. Landry Parish court issued its reasons for judgment on June 6, 2008. In those reasons the court concluded that the Orleans Parish judgment divested the St. Landry Parish court of jurisdiction over the proceedings. Accordingly, the St. Landry Parish court dismissed Hartman’s rule with prejudice, with Hartman to pay costs for the proceedings, and transferred all other proceedings to Orleans Parish. Hartman appealed this judgment, alleging thejjfollowing assignments of error:

ASSIGNMENTS OF ERROR:

1. The trial court committed legal error in concluding that it had been divested of jurisdiction by judgment of the Civil District Court for the Parish of Orleans.
2. The trial court committed legal error in concluding that the judgment of the Civil District Court for the Parish of Orleans concerning jurisdiction superseded Louisiana Code of Civil Procedure article 74.2.
3. The trial court committed legal error in not declaring as absolutely null the judgment of the Civil District Court for the Parish of Orleans concerning jurisdiction.

ASSIGNMENT OF ERROR NUMBER 1:

Hartman contends in her first assignment that the trial court committed legal error in concluding that it had been divested of jurisdiction by the judgment of the Civil District Court for the Parish of Orleans. We find that this contention has merit.

A determination of whether a court has subject matter jurisdiction over a case and personal jurisdiction over a party is subject to a de novo review. Southeast Wireless Network, Inc. v. U.S. Telemetry Coup., 06-1736 (La.4/11/07), 954 So.2d 120. Louisiana Constitution Article 5 § 16(A)(1) provides that “[ejxcept as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters.”

The St. Landry Parish Judicial District Court found that it did not have jurisdiction over any of the issues in this case, “in light of the retention of continuing, exclusive jurisdiction by the Orleans Parish Court.” Due to this finding, the St. Landry Parish Judicial District Court ordered the matter transferred to the Civil District Court for the Parish of Orleans and dismissed Hartman’s claims, with prejudice, at her own cost. After a de novo review of the record, we find that the St. |4Landry court made an error of law.

Article 5 § 16(A)(1) expressly provides that “[ejxcept as otherwise authorized by this constitution or except as heretofore or hereafter provided by law ... a district court shall have original jurisdiction of all civil and criminal matters.” The petition to register support orders and the rule to modify child support and physical custody filed by Hartman clearly are civil matters. Thus, absent some circumstance “otherwise authorized by” the Louisiana Constitution or absent provision “by law,” the St. Landry court does have subject matter jurisdiction over this matter.

Lambert argues that because both parties are subject to the final judgment reached by the Orleans Parish court stating that it “shall retain continuing, exclusive jurisdiction of this proceeding and all orders herein,” Hartman cannot deviate from this judgment because it became the law of the case and is binding on the parties. This argument has no merit.

Our Legislature has determined that district courts generally have original jurisdiction over civil matters, noting that some exceptions arise when the legislature deems it necessary. One such exception that grants a district court with general subject matter jurisdiction to retain “continuing and exclusive jurisdiction” over matters of custody and support is La.R.S. 13:1814(A) It forms part of the Uniform Child Custody Jurisdiction and Enforcement Act (La.R.S.13:1801-1842) and | .^provides for continuing, exclusive jurisdiction in interstate custody disputes. Here, we do not have such a dispute as the case before us is an intrastate dispute. Therefore, La.R.S. 13:1814 does not apply.

A second piece of legislation that provides for a court to have continuing, exclusive jurisdiction is La.R.S. 9:355.17, which provides, “[i]f the court grants authorization to relocate, the court may retain continuing, exclusive jurisdiction of the case after relocation of the child as long as the non-relocating parent remains in the state.” The case before us does not implicate relocation of the child as defined in La.R.S. 9:355.1(4), because Hartman neither moved the child to another state nor established the legal residence of the child at a distance of more than one hundred and fifty miles from her original domicile.

This court’s reading of the trial court decision convinces us that the court below felt the cited provisions were applicable to the present case. They are not. This court further reads the judgment of the Orleans Parish District Court to be an effort to maintain jurisdiction to the extent allowed by La.R.S. 9:355.17. We do not read it as an attempt to expand its jurisdiction beyond that granted by our legislature nor an attempt to limit jurisdiction granted to its sister court by our legislature.

Therefore, we find that the St. Landry Judicial District Court made an error of Inlaw in granting Lamberts’ exceptions to jurisdiction. The court does have subject matter jurisdiction over Hartman’s Petition to Register Support Orders and the Rule to Modify Child Support and Physical Custody. Accordingly, we vacate its judgment and remand the case for further proceedings regarding the merits of the other exceptions Lambert has raised.

ASSIGNMENT OF ERROR NUMBER 2:

Hartman alleges that the trial court committed legal error in concluding that the judgment of the Civil District Court for the Parish of Orleans concerning jurisdiction superseded Louisiana Code of Civil Procedure article 74.2. This assignment is pretermitted by our finding in Assignment of Error Number 1.

ASSIGNMENT OF ERROR NUMBER 3:

Hartman asserts that the trial court committed legal error in not declaring as absolutely null the judgment of the Civil District Court for the Parish of Orleans concerning jurisdiction. We do not agree.

“When a judgment is absolutely null based on a jurisdictional ground, it has no legal existence, and its nullity may be shown in collateral proceedings at any time and before any court.” Taylor v. Hixson Autoplex of Alexandria, Inc., 00-1096, pp. 6-7 (La.App. 3 Cir. 3/28/01), 781 So.2d 1282,1286.

As we discussed in Assignment of Error Number 1, there are two instances where our legislature has granted a district court the power to retain continuing, exclusive jurisdiction. We read the Orleans Parish judgment to have been made for such situations, should they arise in this case. Thus, the judgment is not absolutely null on its face. Should the intent of the judgment be read to be an exercise of power greater than that granted by our legislature, such as the interpretation made by the St. |7Landry Parish Court, we would not hesitate to declare it null and void per the Taylor case cited above and La.Code Civ.P. art.2002.

CONCLUSION:

Lambert filed this appeal in regards to the St. Landry Parish court’s judgment, assigning three assignments of error. We find that her first assignment of error relating to jurisdiction has merit. Accordingly, for the reasons expressed above, we vacate the St. Landry Parish court’s judgment and remand the case for further proceedings not inconsistent with this opinion. Costs of these proceedings are to be paid by Wesley Wood Lambert.

VACATED AND REMANDED.

      . A. Except as otherwise provided in R.S. 13:1816, a court of this state which has made a child custody determination consistent with R.S. 13:1813 or 1815 has exclusive, continuing jurisdiction over the determination until:
      (1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
      (2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.

      . Louisiana Revised Statutes 9:355.1(4) states: “Relocation” means:
      (a) Intent to establish legal residence with the child at any location outside of the state.

        (b) If there is no court order awarding custody, an intent to establish legal residence with the child at any location within the state that is at a distance of more than one hundred fifty miles from the other parent. If there is a court order awarding custody, then an intent to establish legal residence with the child at a distance of more than one hundred fifty miles from the domicile of the primary custodian at the time the custody decree was rendered.
      (c) A change in the principal residence of a child for a period of sixty days or more, but does not include a temporary absence from the principal residence.


author: JOAN BERNARD ARMSTRONG, Chief Judge. BONIN, J.,

text:
    Nikia ADAMS v. DEPARTMENT OF POLICE.
    No. 2008-CA-0468.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 12, 2009.

      Raymond C. Burkart, III, Amanda A. Trosclair, Burkart & Associates, LLC, Covington, LA, for Plaintiff/Appellant.
    Penya Moses-Fields, City Attorney, Victor L. Papai, Jr., Assistant City Attorney, Nolan P. Lambert, Chief Deputy City Attorney, Benjamin D. Simpson, Law Clerk, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR. and Judge PAUL A. BONIN).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| Officer Nikia Adams of the New Orleans Police Department (NOPD) appeals a decision of the Civil Service Commission for the City of New Orleans (the Commission) denying her appeal and upholding the one day suspension imposed by the appointing authority, the NOPD Superintendent. For the reasons that follow, we affirm.

Officer Adams is employed as a Police Officer I with permanent status. She was hired on December 16, 2001 and was promoted to her current class on February 19, 2003.

On December 15, 2006, during roll call at 2:25 p.m., NOPD Sergeant Scott Monaco, commander of the Second Platoon at the Fourth District Police Station, instructed the police officers to sign the “Beat Roll Book” and to report to him at the end of their tours of duty. Officer Adams returned to the station after having completed her tour of duty later that night, but did not sign the Beat Roll Book. She returned to the station the following morning, although it was her day off, located the book in the Second Platoon’s office, and signed the book.

Sergeant Monaco filed an administrative complaint with the Superintendent, alleging that Officer Adams had violated departmental rules and procedures 12because she had not reported to him and signed the Beat Roll Book at the end of her shift, as instructed. In July, 2007, Superintendent Warren Riley notified Officer Adams that the investigation of this complaint was complaint. According to the disciplinary letter, the Superintendent concluded that Officer Adams had violated Departmental Rules and/or Procedures, specifically, Instructions from an Authoritative Source, to wit: verbal instructions from Sergeant Monaco. The Superintendent imposed a one day suspension.

Officer Adams appealed to the Commission. Following a hearing, the Commission denied the appeal, finding that Officer Adams failed to comply with her sergeant’s instructions.

Officer Adams contends that the Commission acted arbitrarily and capriciously by denying her appeal and upholding the disciplinary action without having found that her actions impaired the efficient operation of the NOPD; without having considered the NOPD’s failure to investigate the matter; and in determining that the one day suspension was commensurate with the violation.

An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action by his or her appointing authority except for cause expressed in writing. La. Const. Art. X, § 8(A); Walters v. Department of Police of New Orleans, 454 So.2d 106, 112-13 (La.1984).

The Commission has a duty to decide independently from the facts presented whether the appointing authority had good or lawful cause for taking the disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. Cornelius v. Dept. of Police, 07-1257, p. 8 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724, citing Walters, supra. Legal cause exists whenever an employee’s conduct impairs the efficiency of the public service in which he or |sshe is engaged. Beba v. Department of Fire, 05-1209, p. 4 (La.App. 4 Cir. 5/31/06), 933 So.2d 871, 874.

The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that the dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093,1094.

The Commission’s decision is subject to review on any question of law or fact upon appeal. La. Const. Art. X, § 12. This court applies the manifest error standard of review to the Commission’s findings of fact. Cure, sivpra. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this Court should not modify the Commission’s order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id., 964 So.2d at 1094-95. A decision by the Commission is “arbitrary and capricious” if there is no rational basis for the Commission’s action. Id., 964 So.2d at 1095.

Officer Adams contends that the Commission failed to demonstrate that her admitted failure to sign the Beat Roll Book as directed by her sergeant impaired the efficient operation of her public service, the NOPD. Officer Adams testified that she returned to the station at the end of her shift and remained briefly in the parking lot, talking to officers who were arriving for the late shift. When she entered the station a few minutes later, she could find neither the Beat Roll Book in its usual location in a front desk drawer nor Sergeant Monaco. She was advised that the sergeant had gone for the evening. She left the station and returned the next morning, when she signed the book.

14Sergeant Monaco testified that he had instructed all officers under his command that day to sign the Beat Roll Book at the end of their shifts. Requiring the officers to sign the book was a departmental policy implemented to facilitate accountability and for payroll purposes. The officers’ signatures were evidence that they had worked that day and completed their shifts. After the shift had ended, Sergeant Monaco waited in the station for twenty-five minutes, during which time Officer Adams did not appear or sign the book. He asked Officer Adams’ partner, Officer Kelvin Jackson, where she was, and was advised that she was in the parking lot. Sergeant Monaco searched for Officer Adams in the parking lot and, when he did not find her, he left the station house.

Sergeant Monaco filed the complaint against Officer Adams because she had not followed his verbal instructions. He acknowledged that she returned to the station the next day and signed the book, and opined that the impairment of the efficient operation of the NOPD lay in her failure to sign the book as ordered, immediately upon having completed her shift.

Sergeant Steven Andry testified that he had been assigned to investigate the complaint against Officer Adams. He questioned her, but did not question Sergeant Monaco. He concluded, based on her testimony and on his review of Sergeant Monaco’s written statement, that she had failed to follow an instruction from her supervisor, and that her action impaired the efficient operation of the NOPD. He acknowledged that he had not attempted to ascertain whether any mitigating circumstances existed and did not articulate specifically how Officer Adams’ conduct had impaired the NOPD’s efficient operation.

Officer Adams, by her own admission, failed to sign the book as ordered, and this failure was a direct violation of her duty to obey her superior officer’s | fiorder. Considering the nature of the profession of a police officer, it is incumbent on these professionals to be precise and to follow all direct orders, whether simple or complex, in order to demonstrate their discipline and commitment to the police force. No police force can afford to permit an unauthorized deviation from any legitimate order or instruction. Officer Adams’ failure to comply with the simple command to sign the Beat Roll Book in the timely manner required by her superior officer signals a lack of understanding of the importance of such discipline and commitment. The one-day suspension is a reasonable exercise of the appointing authority's discretion and, it is to be hoped, will serve to deter Officer Adams, and others by the example set, from failing to comply with a future command that could have more serious consequences to herself, to her fellow police officers and to the community she has sworn to protect and to serve.

Rule IX, § 1, paragraph 1.1(5) of the Rules of the Civil Service Commission for the City of New Orleans provides that when a classified employee has committed an act to the prejudice of the service or otherwise has been subjected to corrective action, the appointing authority shall take action as warranted by the circumstances to maintain the standards of effective service. This action may include suspension without pay for a period not exceeding 120 days. The one-day suspension imposed in this case is both rationally based and commensurate to the dereliction. See, Staehle v. Department of Police, 98-0216 (La.App. 4 Cir. 11/18/98), 723 So.2d 1031, citing Rule IX, § 1.

For the foregoing reasons, we affirm the ruling of the Commission denying Officer Adams’ appeal of the appointing authority’s disciplinary action.

AFFIRMED.

BONIN, J., dissents with reasons.

BONIN, J.,

Dissents With Reasons.

hi respectfully dissent. Any inquiry into police discipline should always remain grounded in the sound American concept and practice that police departments are civilian, not military, organizations. A New Orleans police officer is a civilian. She is, therefore, in Louisiana constitutionally protected by the civil service laws.

Her admitted infraction was that she did not sign a so-called “beat roll book” immediately upon completion of her shift on December 15, 2006 despite the routine verbal instruction of her supervisor. The supposed importance of signing the book is to facilitate accountability and for payroll purposes. It is not the payroll record. As for accountability, there is no question that she discharged her duties as a patrol officer the entirety of her shift.

Our opinion today in effect withholds the pay she earned for her public service that day.

A protection that the civil service laws confer upon her is that any discipline directed toward her is for “good cause”. In order to help insure that discipline is not meted out arbitrarily, by a mean spirited supervisor, or for some other ^prohibited purpose, the appointing authority cannot rest on merely proving that the infraction occurred. In an organization like a police department, the number of rules and regulations which one might violate are legion. If the police appointing authority only had to establish the infraction of a rule in order to mete out discipline, no subordinate could ever be safe from the arbitrary and selective application of the rules.

To safeguard against just such a situation and to afford protection to public employees in the classified civil service, our law requires that the appointing authority meet an additional burden:

The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity occurred, and that such activity bore a real and substantial relationship to the efficient operation of the public service.

Cornelius v. Department of Police, 07-1257, p. 6 (La.App. 4 Cir.2008), 981 So.2d 720, 724, emphasis supplied. In days gone by, the burden of proof had been on the civil servant to prove that his action was not “prejudicial to the service.” Marchese v. New Orleans Police Department, 226 La. 982, 77 So.2d 742 (La.1955); Jais v. Department of Finance of City of Nero Orleans, 228 La. 399, 82 So.2d 689 (La. 1955).

The Louisiana Supreme Court in Walters v. Department of Police, 454 So.2d 106, 113 summarized the jurisprudential precepts which it had formulated to guide the New Orleans Civil Service Commission and this court:

“Cause for the dismissal of a person who has gained permanent status in the classified civil service has been interpreted to include conduct prejudicial to the public service in which the employee in question is engaged or detrimental to its efficient operation, [citations omitted] The Commission has a duty to decide independently from the facts presented whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment is commensurate with the dereliction. [citation omitted] A previewing court should not reverse a commission conclusion as to the existence or absence of cause for dismissal unless the decision is arbitrary, capricious or an abuse of the commission’s discretion. [citation omitted] On the other hand, the judicial function is not so limited with respect to the commission’s decisions as to jurisdiction, procedure, and interpretation of laws and regulations, [citation omitted]”
(emphasis added)

Because Ms. Adams admitted the infraction, the only issue left for the appointing authority to prove by a preponderance of the evidence was that her infraction impaired the efficiency of the public service in which she was engaged. Fihlman v. New Orleans Police Department, 00-2360, p. 4 (La.App. 4 Cir. 10/31/01), 797 So.2d 783, 786. In this case, as in Fihlman “the appointing authority simply failed to offer any evidence concerning how [the officer’s] actions impaired the efficient operation of the public service.” Id. at p. 9, at 789.

The only witnesses on behalf of the appointing authority were Sgt. Monaco, her supervisor, and Sgt. Andry, the investigator. In the supervisor’s opinion, the only impairment of the efficient operation of the public service was the fact of the infraction itself. The investigator could not articulate specifically how Ms. Adams’ conduct had impaired the efficient operation of the police department. In light of this unpersuasive and insubstantial testimony coupled with the established rule of law about the requirements for “cause” in disciplining civil servants in the classified service, I am perplexed that the decision of the Civil Service Commission never once addressed the sole material issue in the case.

The Louisiana Constitution of 1974, Article X, § 8(A) interposes the Civil Service Commission as the agency for protection of public employees by enforcing the laws which are designed to eliminate the abuses occasioned by those controlling public employment and to establish “a system based on merit and achievement.” Smith v. New Orleans Police Department, 00-1486, p. 8 (La.App. 4 Cir. 4/11/01), 784 So.2d 806, 810. The Commission has the primary constitutional | ^responsibility for insuring that the disciplinary actions taken by public employers are only taken with legal cause.

In my view, in this case the Civil Service Commission did not perform its constitutional duty “to decide independently from the facts presented whether the appointing authority has good or lawful cause for taking disciplinary action”. Walters, 454 So.2d at 113, emphasis added. On that account I would reverse the decision suspending Ms. Adams for one day.

I therefore respectfully dissent.

      . Cf. Stevens v. Department of Police, 00-1682, p. 8 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, 627, which urges a contrary focus: "Indeed, the Commission should give heightened regard to appointing authorities that serve as special guardians of the public’s safety and operate as quasi-military institutions where strict discipline is imperative.”

      . The penalty is a one day suspension without pay. This is a substantial imposition.

      . There can, of course, be occasions when the disobedience to a verbal command of a superior officer might be so obvious that little or no further proof of impairment to the efficient service would be required. I am thinking of a situation when police officers are performing their public safety role in an emergency and an officer refuses to follow an immediate order such as pursuing a suspect.