author: PAUL A. BONIN, Judge. BELSOME, J.,

text:
    STATE of Louisiana v. Corey D. SPELLS.
    No. 2010-KA-1024.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 2011.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.

      Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

[ ]After the trial court denied his motion to suppress evidence, Corey Spells, the defendant, entered a guilty plea to the offense of possession with intent to distribute marijuana under State v. Crosby and appeals the ruling. The trial court found that Mr. Spell’s initial interaction with the police was consensual such that suppression of the evidence was unwarranted. Because we conclude that the trial judge did not abuse her discretion in that finding, we affirm Mr. Spells’ conviction and sentence.

I

The prosecution by bill of information charged Mr. Spells with possession with intent to distribute marijuana. See La. R.S. 40:966 A(2). As noted above, the trial court denied Mr. Spells’ motion to suppress the evidence. After the trial court’s evidentiary ruling, Mr. Spells entered a plea of guilty as charged under State v. Crosby, 338 So.2d 584 (La.1976), thereby reserving his right to challenge on appeal the denial of his motion to suppress the evidence. Mr. Spells was then sentenced to five years in the custody of the Department of Corrections. Pursuant to La. C.Cr.P. art. 893, the sentence was suspended and Mr. Spells was placed on three years active probation and fined seven hundred dollars.

_kll

Mr. Spells did not testify at the suppression hearing. See La.C.Cr.P. art. 703 E(l). Thus, following testimony by the police is uncontroverted.

Narcotics detective Harry Stovall of the New Orleans Police Department was working at that city’s Union Passenger Terminal with Detective Raymond Delvalle of the Amtrak Police Department, checking passengers who were arriving in New Orleans by bus or train in order to determine whether they were in possession of illegal or dangerous substances. Det. Sto-vall explained that they approached individuals, explained what they were doing, and asked for their identification and ticket, as well as asking whether they would voluntarily consent to having their luggage searched.

Det. Stovall noticed Mr. Spells as he disembarked from a train, because he stopped his approach to the terminal and watched while they conducted a check of another individual; Mr. Spells appeared to be concerned over the officers’ presence. Det. Stovall found the defendant’s behavior suspicious because the majority of people exiting the train continued their approach to the terminal without stopping. Because he was in plainclothes, Det. Sto-vall identified himself to Mr. Spells as Mr. Spells approached, and the detective presented his badge, which was around his neck.

Det. Stovall asked Mr. Spells for his identification and his ticket stub because he wanted to ascertain whether the identification and the name on the ticket were in the same name. As Mr. Spells handed over his information, Det. Stovall saw that his hand was shaking. Det. Stovall explained to Mr. Spells that they were checking passengers as they entered the city to ensure that people were | snot bringing illegal or dangerous items with them. Det. Stovall explained that they were conducting “voluntary, consensual” searches, and that Mr. Spells had the right to refuse. Det. Stovall then asked him whether he was in possession of anything he should not have.

Mr. Spells verbally admitted that he had a small amount of marijuana in his pocket. Det. Stovall then reached into Mr. Spells’ right front pants pocket and retrieved a small amount of marijuana. Det. Stovall then informed the defendant that he was under arrest, placed him in handcuffs, and Mirandized him. Det. Stovall brought Mr. Spells to an office in the terminal, where he asked Mr. Spells whether he had anything else other than what had been seized from his pocket, and Mr. Spells informed him that he had some more marijuana in his bag. Det. Delvalle opened the defendant’s bag and retrieved two extra-large plastic bags of marijuana.

At that time, Det. Stovall informed Mr. Spells of the additional charges. Mr. Spells then explained that he had come upon hard times and was trying to make some money. Det. Stovall then asked Mr. Spells if he would record his statement on a Rights of Arrestee form. Mr. Spells signed the form and wrote in the remarks section, “I was in possession of marijuana.”

Ill

Mr. Spells argues in his sole assignment of error that he was subjected to an investigatory stop by police without reasonable suspicion and that the evidence against him must be suppressed. We disagree, however, because Mr. Spells was not “seized” sufficient to implicate the Fourth Amendment.

14At the outset, we note that a trial court’s ruling on a motion to suppress is entitled to great weight and will not be set aside unless there is an abuse of that discretion. State v. Wells, 08-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581. The prosecution bears the burden of proving the admissibility of evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress evidence. La.C.Cr.P art. 703 D; State v. Hunt, 09-1589, pp. 6-7 (La.12/1/09), 25 So.3d 746, 752; see also State v. Jason, 10-0658, pp. 2-3 (La.App. 4 Cir. 12/1/10), 53 So.3d 508, 509 (for an extended discussion of the Fourth Amendment’s warrant requirement and the recognition of consent as an exception thereto).

The issue in this case is whether the encounter between Mr. Spells and police may be characterized as an “investigatory stop.” The United States Supreme Court has recognized that encounters between citizens and police come in a wide variety:

Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually helpful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. All confrontations are not of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation. Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime.

Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Police officers “have the right to engage anyone in conversation, even without reasonable grounds to believe that they have committed a crime.” State v. Johnson, 01-2436, p. 3 (La.1/25/02), 806 So.2d 647, 648 (quoting State v. Duplessis, 391 So.2d 1116, 1117 (La.1980)). As long as the person approached by |sa law enforcement officer remains free to disregard the encounter and walk away, the foregoing constitutional provisions are not implicated. State v. Tucker, 626 So.2d 707, 710 (La.1993); State v. Belton, 441 So.2d 1195, 1199 (La.1983).

In Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), in discussing how all interactions between the police and citizens will not necessarily implicate the Fourth Amendment, the United States Supreme Court explained:

Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free “to disregard the police and go about his business,” California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991), the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968): “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”

Bostick, 501 U.S. at 434-35, 111 S.Ct. 2382.

It is settled that the police do not need probable cause to arrest or reasonable suspicion for an investigatory stop every time they approach a citizen in a public place. State v. Britton, 93-1990, p. 2 (La.1/27/94), 633 So.2d 1208, 1209 (citing State v. Belton, 441 So.2d 1195 (La.1983); State v. Williams, 421 So.2d 874 (La.1982); State v. Neyrey, 383 So.2d 1222 (La.1980); State v. Shy, 373 So.2d 145 (La.1979)). In other words, “it is clear that the mere approaching of a citizen by a law enforcement officer and posing questions to that person is not a seizure.” Thomas K. Clancy, The Fourth Amendment: Its History and Interpretation, pp. 154-155 (2008) (citations omitted). Police have a right to address a person in | fipublic and ask questions, although police have no corresponding right to compel answers. See Davis v. Mississippi, 394 U.S. 721, 727 n. 6, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). “As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.” United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

In Mendenhall, two DEA agents stopped the defendant after concluding that her behavior fit the profile of a drug courier in several respects. The agents approached Mendenhall, identified themselves as federal agents, and asked to see her identification and airline ticket. This revealed that she was traveling under an alias. The officers returned her ticket and identification and asked her if she would accompany them to their office for further questioning. Mendenhall complied, and once in the office she agreed to a search of her baggage and of her clothing. A small package of heroin was found in the search.

The Court stated that a person is “ ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554-555, 100 S.Ct. 1870. The Court noted the following examples of circumstances that might indicate a seizure:

[T]he threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. The Court then concluded that Mendenhall had not been seized even though she was not expressly told that she was free to move on her way, stating:

|7On the facts of this case, no “seizure” of the respondent occurred. The events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents. They requested, but did not demand to see the respondent’s identification and ticket. Such conduct without more, did not amount to an intrusion upon any constitutionally protected interest. The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official.

Mendenhall, 446 U.S. at 555, 100 S.Ct. 1870. Because she had not been illegally detained, the evidence seized was admissible against her.

In this appeal, Mr. Spells characterizes his encounter with the detectives as an illegal detention for which there was no reasonable suspicion. He further contends that the lack of reasonable suspicion for the stop tainted any consent he may have later given.

As in Mendenhall, the events took place in public; the agents were in plainclothes; Mr. Spells was not summoned to the detectives’ presence; and Det. Stovall requested to see the defendant’s identification and ticket stub. The detectives were not in uniform and they did not show their weapons. Det. Stovall made sure that Mr. Spells was aware that his interaction with him was voluntary and that he had the right to move on. These circumstances are somewhat less intrusive than those in Mendenhall — where the passenger was never informed of her right to conclude the inquiry and where the passenger was relocated to an office prior to consenting to a search of her luggage. Mr. Spells was informed in a non-threatening manner that he was free to refuse, and he could have reasonably believed that he was free to leave.

IsAccordingly, we find no error in the trial court’s determination that the initial encounter between Mr. Spells and the police did not constitute an investigatory stop. The trial court did not abuse its discretion in denying the motion to suppress, and the physical evidence of the marijuana would have been properly admitted at trial had Mr. Spells elected to proceed to trial by jury or judge.

DECREE

We affirm Mr. Spells’ conviction and sentence.

AFFIRMED

BELSOME, J., Concurs With Reasons.

BELSOME, J.,

Concurs With Reasons.

lil concur in the result reached by the majority but write separately to acknowledge the factual similarities to Florida v. Royer. In Royer, the Supreme Court considered whether Defendant Mark Royer had been illegally detained. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Mr. Royer was observed by two plain-clothes detectives while on his way to a concourse at Miami International Airport. Royer, 460 U.S. at 493, 103 S.Ct. at 1321-22. Detectives Johnson and Magdalena believed that Mr. Royer’s “appearance, mannerisms, luggage and actions fit the so-called ‘drug courier profile.’ ” Id. at 1322. Mr. Royer had purchased a one-way ticket to New York City and attached an identification tag bearing the name “Holt” to each of his two checked bags. Id.

As Mr. Royer was walking towards the concourse, he was approached by the detectives, who identified themselves and asked if Royer had a moment to speak with them. Id. at 494, 103 S.Ct. 1319. After the detectives requested his airline ticket and driver’s license, Mr. Royer produced both. The airline ticket was under the name “Holt,” while his driver’s license bore the name “Royer.” As Mr. Royer was questioned about the discrepancy, he “became noticeably more nervous.” At that time, the |2detectives advised Mr. Royer that they were narcotics investigators and had reason to suspect him of transporting narcotics. Id.

While still holding Mr. Royer’s airline ticket and identification, the detectives asked Mr. Royer to accompany them to a room adjacent to the concourse that was approximately forty feet away. Mr. Royer accompanied the officers, but said nothing in response. The room was described by one of the detectives as a large storage closet in the flight attendants’ lounge which contained a small desk and two chairs.

Without requesting Mr. Royer’s consent, Detective Johnson retrieved the “Holt” luggage from the airline and brought it to the room where Mr. Royer was sitting

with Detective Magdalena. The detectives asked Royer if he would consent to a search of the suitcases. In response, Roy-er said nothing, but unlocked one of the suitcases with a key, which the detective then opened. Drugs were discovered in that suitcase. Royer advised that he did not know the combination to the other suitcase, and when asked if he objected to the detective opening the second suitcase, he stated “no, go ahead,” and the second suitcase was pried open without objection from Mr. Royer. The second suitcase also contained drugs. Mr. Royer was subsequently placed under arrest.

Mr. Royer filed a motion to suppress the evidence in the suitcases, which the trial court denied, and Mr. Royer was convicted. The court of appeal reversed his conviction, finding that Mr. Royer was held involuntarily in the room at the airport without probable cause and that Mr. Roy-er’s detention had exceeded the scope of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) by the time Mr. Roy-er’s consent to search the suit cases was obtained. The appellate court further held that Mr. Royer’s consent to search was void because it was the result of an unlawful confinement.

|sIn affirming the appellate court, the Supreme Court acknowledged some of the factors that the appellate court to into consideration when reversing Mr. Royer’s conviction, including the fact that Mr. Roy-er was in a “small enclosed area being confronted by two police officers — a situation which presents an almost classic definition of imprisonment.” Royer, supra, 460 U.S. at 496, 103 S.Ct. at 1323. The Court also noted the appellate court’s finding that when the detectives informed Royer that he was suspected of transporting narcotics, this “bolstered the finding that Royer was ‘in custody’ at the time the consent to search was given.” Id.

The Court recognized that the Fourth Amendment is not implicated when a detective simply approaches an individual in a public place and puts questions to him; “[n]or would the fact that the officer identified himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.” Royer, 460 U.S. at 497, 103 S.Ct. at 1324 (citing United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)).

In Royer, as in the instant case, the State insisted that “the entire encounter was consensual and hence Royer was not being held against his will at all.” Royer, supra, 460 U.S. at 501, 103 S.Ct. at 1326. The Supreme Court “f[ound] this submission untenable.” Id. The Court acknowledged that the detectives’ request for Mr. Royer’s ticket and license was permissible; however, “when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’s license and without indicating in any way that he was free to depart, Royer was effectively seized for the purposes of the Fourth Amendment.” Id. at 502, 103 S.Ct. 1319. The Court found that “[tjhese circumstances surely 14amount to a show of official authority such that ‘a reasonable person would have believed he was not free to leave.’ ” Id. (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877).

In this case, Detective Stovall testified that he and his partner were positioned in such a way that all persons exiting the train had to walk by them in order to exit the terminal. The only suspicious behavior that Detective Stovall testified that he noticed was Defendant’s stopping and observing the detectives as they questioned certain individuals exiting the terminal. Furthermore, the detective could not unequivocally testify that he was not still holding Defendant’s ticket and license at the time he questioned Defendant with regard to whether he was in possession of anything illegal.

jñAs the Supreme Court acknowledged, however, there is no “litmus-paper test for distinguishing a consensual encounter from a seizure or for determining when a seizure exceeds the bounds of an investigative stop.” Royer, supra, 460 U.S. at 506, 103 S.Ct. 1819. Considering that a trial court’s ruling with respect to a motion to suppress is entitled to great weight, together with the detective’s testimony that he believed he was returning Defendant’s ticket and license at the time he questioned Defendant whether he was in possession of illegal materials, this writer cannot say that the trial court’s denial of Defendant’s motion to suppress was an abuse of discretion. Therefore, I concur in the affirmation of Defendant’s conviction and sentence.

      . We have, as we always do, reviewed the record for errors patent, and we have found none. See La.C.Cr.P. art. 920.

      . Internal citations omitted.

      . The Court further found that although Mr. Royer consented to the detectives’ search of his luggage "while he was justifiably being detained on reasonable suspicion,” that nevertheless, "at the time Royer produced the key to his suitcase, the detention to which he was then subjected was a more serious intrusion on his personal liberty than is allowable on mere suspicion of criminal activity.” Roy-er, supra, 460 U.S. at 502, 103 S.Ct. at 1326-27.

      . The Detective testified as follows:
      Q. Okay. And when he approaches you and you pull out your badge, are you armed at this time?
      A. I am.
      Q. And when you informed him that you were a police officer, you tell him you’re looking for people who are coming into the city with weapons or guns?
      A. No. I explained to him that this is all voluntary. This is a voluntary, consensual stop. I explained to him that what we’re doing is checking to make sure that people are not traveling into or out of the city with illegal substance or anything that may be dangerous to the general public.
      Q. Now at that point, he still had not committed any kind of crime, right?
      A. No.
      Q. He did hand you his I.D.?
      A. He did.
      Q. And he handed you his ticket for the bus or train?
      A. That’s correct.
      Q. And while you were holding on to his ticket and his I.D., you asked him if there’s a reason he was nervous; something along those lines?
      A. The reason why I took the I.D. and the ticket stub is actually to match — to make sure the name on the ticket stub matched the name on the identification, and it was like simultaneously. I just asked him, you know, was he in possession of anything that, you know, he should not have; anything that may be dangerous to the general public.

        Q. Again, just for the record, to be clear, at that time you had not done the Miranda rights that you would later do because of what he answered?
      A. That's correct.
      Q. At that time you had not?
      A. That’s correct.
      Q. And at the time that you asked that question, you were in possession of his identification and his ticket stub, correct?
      A. I may have been in the process of handing it back over to him.
      Q. May have?
      A. I don't remember exactly how it went. But generally, I look at the—
      Q. Because of his answer, he didn’t get his I.D. back, because you were going to arrest him?
      ⅝ ⅝ ⅜ ⅜
      A. Like I say, you know, I looked at the ticket and his identification. And normally, I’m in the process of handing it back to him while I’m asking him that question. And then that's when he told me that he was in possession of a small amount of marijuana in his pocket.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    Gladys FLETCHER v. Dustin J. REIN and Safeway Insurance Company of Louisiana.
    No. 2010-CA-1095.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 2011.

      James Maher III, New Orleans, LA, for plaintiff/appellee.
    Michelle Deloach Brooks, Borne & Wilkes, L.L.P., Lafayette, LA, for defendants/appellants.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

hThe defendant, Dustin Rein, and his insurer, Safeway Insurance Company, appeal the judgment rendered in favor of the plaintiff, Gladys Fletcher, allocating 60% of the fault for an intersectional automobile collision to Mr. Rein. After review of the record in light of the applicable law and arguments of the parties, the trial court judgment is affirmed.

Relevant Facts and Procedural History

On March 3, 2009, at approximately 3 p.m. in New Orleans East, Ms. Fletcher executed a left turn onto Boston Drive from the 1-10 Service Road as Mr. Rein proceeded forward past the stop sign on Boston Drive at the 1-10 Service Road. When the accident investigation team (Detective Reuben Henry and Officer Desmond Davis) arrived two hours later, they observed minor damage to both vehicles and were advised that the vehicles had been moved. According to the police report, Mr. Rein stated that as he approached the 1-10 Service Road on Boston Drive the view of on-coming traffic was partially blocked by a wooden fence and, accordingly, he drove forward to await clear entry to the service road but before he could make the turn, Ms. Fletcher made the turn onto Boston Drive |2and, failing to make a wide enough turn, struck the front of his vehicle. However, Ms. Fletcher told the officers that, as she was turning left onto Boston Drive, Mr. Rein tried to turn left onto the service road and struck her vehicle. The police report indicates that the officers spoke to no independent witnesses and did not issue a traffic citation to either driver.

On May 6, 2009, the plaintiff filed a petition for damages in First City Court for the City of New Orleans. The trial was held on March 11, 2010. Ms. Fletcher testified on her own behalf and the defense, in addition to the testimony of Mr. Rein, presented the testimony of Barry Luminais (a witness to the accident), Scott Coleman Rushton (an accident scene investigator employed by the defendant insurance company), and deposition testimony of the investigating officers. The defense also proffered the testimony of Mr. Rein’s father, William Rein. After hearing the testimony of the witnesses and reviewing the police report and photos taken after the accident, the trial judge issued a written opinion on April 19, 2010, finding that the defendant’s vehicle struck the plaintiffs vehicle as she executed the turn from the 1-10 Service Road onto Boston Drive but allocated 40% of the fault to the plaintiff. Accordingly, judgment was rendered in favor of the plaintiff for $15,000.00 in general damages and $6,044.00 in special damages, to be reduced by 40% (fault allocated to plaintiff), plus legal interest from the date of judicial demand and costs.

The defendants appeal this judgment.

Standard of Review

laThis court may not set aside a trial court’s finding of fact absent “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 so.2d 840 (La.1989). Thus, we can only reverse a factfinder’s determination if we find that no reasonable factual basis exists in the record to support the trial court finding and that the record establishes that the finding is clearly wrong or manifestly erroneous. See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Accordingly, the issue before this court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Stobart v. State Department of Transportation and Development, 92-1328, p. 4, 617 So.2d 880, 882. Even if we may feel our own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed where conflict exists in the testimony. Id. (citations omitted); see Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990) (even if it would have weighed the evidence differently, an appellate court may not reverse the trial court or jury’s findings if they are reasonable in light of the record reviewed in its entirety). This principle of review is based upon the trial court’s better capacity to evaluate live witnesses as compared to our access only to a cold record, as well as the proper allocation of trial and appellate functions between the respective courts. Stobart, supra. Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra.

Assignment of Error 1

The defendants argue that the trial court erred in allocating 60% of the fault to Mr. Rein because that finding is contrary to Mr. Rein’s own testimony, the | testimony of Mr. Luminais (the independent witness), and the proffered testimony of his father, William Rein.

At trial Mr. Rein testified that he left his construction work site on the day of the accident and drove in his blue Chevrolet S-10 truck Boston Road towards the I-10 Service Road and when he reached the intersection, he looked to left for oncoming traffic and, as he turned to look to the right, Ms. Fletcher’s vehicle struck the left front of his vehicle, damaging his headlight. He conceded, however, that the police report indicated that he told the investigating officers that he was proceeding forward from the stop sign when the accident occurred. Mr. Rein also testified that neither he nor Ms. Fletcher moved their vehicles after the accident, that the accident occurred in his lane of traffic, and that his father took pictures of the scene. Again, he conceded that the police report indicated that the vehicles had been moved to the side of the road before the investigating officers arrived. Mr. Rein testified that his father took pictures immediately after the accident but conceded that the light in the pictures indicated that the pictures were taken much later in the afternoon than 3 p.m. According to Mr. Rein, although they worked at the same construction work site, he did not know Mr. Luminais prior to the accident. Mr. Rein asserted that he passed Mr. Luminais on Boston Drive just prior to the accident and that at the moment of impact Mr. Lumi-nais was approximately 150 feet behind him. Shortly after the accident Mr. Lumi-nais and his passengers drove by the accident scene and gave Mr. Rein a card, saying “Here you go. We’ve seen everything.”

Mr. Luminais testified that he worked for his father’s plumbing business and on the day of the accident he was one vehicle behind Mr. Rein’s stopped vehicle at the stop sign at the 1-10 Service Road intersection. From this position, he observed 1 ¿Ms. Fletcher’s vehicle turn off the service road and clip the front of Mr. Rein’s vehicle. Because he was on his way to another job, he gave Mr. Rein his business card to be contacted as a witness. Mr. Luminais conceded that in his deposition he stated that he was directly behind Mr. Rein rather than a vehicle behind him. Mr. Lumi-nais also testified that he and the other vehicles had been at the stop sign three to five minutes before the accident occurred. He disagreed with Mr. Rein’s testimony that he was 150 feet away at the time of the accident, insisting he was directly behind the vehicle that was behind Mr. Rein’s vehicle. Mr. Luminais insisted that, rather than driving by and handing Mr. Rein a card, he got out of the truck and walked over to the older man in the second vehicle and handed him his card. He conceded, however, that in his deposition he stated that the man in the second vehicle was a man in his “young thirties” driving a Boh Brothers construction truck. He was also unsure whether Mr. Rein’s vehicle was red or blue and thought that it was a Toyota truck.

Mr. Rushton, the insurance investigator, testified that he went to the site of the accident twice in October 2009 to take pictures and measure the crack near the center of the roadway. According to his measurements, if the crack is the lane divider, there is a three inch discrepancy in the lanes on Boston Drive. He conceded that he was not a road engineer and did not know if the street had been modified in the seven intervening months between the accident and his onsite visit to the scene of the accident.

Ms. Fletcher testified that she lived on Boston Drive approximately a block from the accident site for fourteen years prior to the accident, traversing the intersection on a daily basis. On the day of the aeci-dent she was returning home on the 1-10 Service Road, waiting with her blinker on to make the turn onto Boston | (¡Drive. After waiting for a car to pass, she made the turn onto Boston Drive and, as she did so, a truck veered over into her lane and hit her car. As she sat in her car after the impact, someone in the vehicle behind the vehicle that hit her got out and told the driver of the vehicle to pull back into the right lane. Accordingly, the driver of the other vehicle pulled back from her car and “pulled into the lane that the guy told him go get into his lane in front of his truck.” The driver of the second truck, who she subsequently learned was the father of the driver of the vehicle that struck her, began taking photographs after Mr. Rein backed his vehicle back into the proper lane. According to Ms. Fletcher, Mr. Rein veered across the lane into her pathway prior to reaching the intersectional stop sign.

Based on our review of the record, including the testimony of the witnesses, the police report, the deposition testimony of the investigating officers, and the photographs submitted into evidence, we cannot find that there is no reasonable basis for the trial court’s allocation of fault. We must to defer to the factfinder’s credibility assessment and, in this case, Ms. Fletcher testified that Mr. Rein veered into her lane after she made the turn onto Boston Drive. Moreover, although Mr. Rein and Mr. Lu-minais both insisted that Mr. Rein was at the stop sign at the moment of impact, their trial testimony is inconsistent with both the police report and their own deposition testimony. Accordingly, we find no merit in this assignment of error. Assignment of Error II

The defendants argue that the trial court erred in not allowing the testimony of Mr. Rein’s father, William, to be introduced into the record. The trial court did allow his testimony to be part of the record because he was not listed as a witness in discovery. The appellants argue that this was error because they listed as |7witnesses “any other witnesses” in the answers to the plaintiffs interrogatories and that the plaintiffs attorney had been aware of William Rein as a prospective witness since his son’s deposition in October 2009.

A trial judge is given great discretion in deciding whether to receive or refuse the offered testimony of witnesses and any bias must be in favor of receiving the testimony. In this case, the proffered testimony of William Rein merely corroborates the testimony of his son and Mr. Luminais. Thus, even if the trial court abused its discretion in not allowing William Rein to testify, his testimony is redundant and does not undermine the fact that Ms. Fletcher’s testimony provides a reasonable basis for the trial court’s allocation of fault. Accordingly, while there is some merit to this assignment of error, any error committed was harmless. Conclusion

The judgment of the trial court is affirmed.

AFFIRMED.

      . Inexplicably, the plaintiff/appellee’s brief states that the accident occurred on March 4, 2009, in Baton Rouge, Louisiana.


author: EDWIN A. LOMBARD, Judge. TOBIAS, J.,

text:
    NEW ORLEANS PRIVATE PATROL SERVICE, INC. v. VALIANT PAYROLL SERVICE, INC. and Valiant Communication, Inc.
    No. 2010-CA-1117.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 2011.

      John W. Waters, Jr., Kristin G. Mosely Jones, Bienvenu Foster Ryan & O’Bannon, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Raymond B. Landry, J. Kendall Rath-burn, Moliere Flanagan & Landry, L.L.C., Metairie, LA, for Defendants/Appellees.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

liThe plaintiff, New Orleans Private Patrol Service, Inc. (NOPPS), appeals the trial court’s judgment granting the defendants’ motion to dismiss based on declina-tory exceptions of lack of subject matter jurisdiction and improper venue, as well as a dilatory exception of prematurity or peremptory exception of no cause of action which resulted in the trial court ordering the parties to arbitration. After review of the record in light of the applicable law and arguments of the parties, we affirm the ruling of the trial court.

Relevant Facts and Procedural History

On November 14, 2007, NOPPS and the defendants, Valiant Payroll Service, Inc., and Valiant Communication, Inc., entered into a Master Software License and Services Agreement, whereby the plaintiff purchased a payroll software system from the defendants. The plaintiff gave the defendants a down payment of $9,497.00 and advanced the defendants $1,260.00 for training. After the contract was signed and the payments made, the plaintiff realized that the defendants’ systems did not have the requirements that it needed to handle its payroll. The plaintiff alleges that it demanded return of the down payment and |2advance for training from the defendants. When the defendants refused, the plaintiff filed the present action seeking return of the monies paid to the defendants. The plaintiff alleges that there was no contract because there was error on the defendants’ part and no consent by the plaintiff.

The defendants responded by filing a “Motion and Order to Dismiss Based on Declinatory Exceptions of Lack of Subject Matter Jurisdiction or Improper Venue or Dilatory Exception of Prematurity or Peremptory Exception of No Cause of Action or Alternative Motion to Stay or Further Alternative Dilatory Exception of Vagueness” based upon the arbitration agreements in the Master Software License and Services agreement. The plaintiff opposed the motion, arguing that the arbitration agreements do not control because the Master Software License and Services Agreement was null and void due to error and lack of consent. After a hearing on May 11, 2010, the trial court rendered judgment on May 20, 2010, granting the motion to dismiss and ordering the matter to arbitration. This appeal follows.

Applicable Law

The determination as to whether to stay or to compel arbitration is a question of law. Billieson v. City of New Orleans, 2002-1993, p. 3 (La.App. 4 Cir. 9/17/03), 863 So.2d 557, 560. The threshold inquiry is whether the parties agreed to arbitrate their dispute, which is a twofold inquiry: (1) whether there is a valid arbitration agreement, and (2) whether the dispute in question falls within the scope of that agreement. Lakeland Anesthesia, Inc. v. United Healthcare of Louisiana, Inc., 2003-1662, p. 9 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 388. The question of whether the parties have submitted a particular dispute to ^arbitration — arbitra-bility — is generally one for the court to decide. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002).

The Louisiana Arbitration Law is set forth in La.Rev.Stat. 9:4201 through 4217. Louisiana courts look to federal law in interpreting the Louisiana Arbitration Law because it is virtually identical to the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et seq. Lakeland Anesthesia, Inc. v. CIGNA Healthcare of LA, Inc., 2001-1059, p. 3 (La.App. 4 Cir. 2/6/02), 812 So.2d 695, 698; Firmin v. Garber, 353 So.2d 975, 977 (La.1977). The Federal Arbitration Act establishes that as a matter of preemptive federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the issue at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitra-bility. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). The United States Supreme Court has made it clear that the substantive provisions of the FAA preempt state law and govern all written arbitration agreements in contracts connected to transactions involving interstate commerce. Id. The phrase “involving commerce” has been interpreted as the functional equivalent of “affecting commerce.” Allied-Bruce Teminix Cos., Inc. v. Dobson, 513 U.S. 265, 277, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). Furthermore, the Supreme Court has concluded that Congress intended to exercise its commerce powers to the fullest in legislating in favor of arbitration. .Id. Whether a claim is brought in state court or federal court, and whether a claim is based on state or federal law, courts must enforce arbitration agreements in contracts covered by the FAA, notwithstanding any state statutory or jurisprudential rules to the contrary. Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984).

[/‘Louisiana courts have also recognized the heavy weight of this presumption”, noting that as to issues of arbitrability, “even if some legitimate doubt could be hypothesized the Supreme Court requires resolution of the doubt in favor of arbitration.” Dufrene v. HBOS Mfg., 2003-2201, p. 4 (La.App. 4 Cir. 4/17/04), 872 So.2d 1206, 1210 (citation and internal quotation omitted).

Discussion

The plaintiff does not dispute that there are arbitration provisions in the signed agreements but, rather, contends that the agreements are null and void because there was error and lack of consent in the confection of the agreements, citing George Engine Co., Inc. v. Southern Shipbuilding, Corp., 350 So.2d 881 (La.1977) as authority for its argument that the trial court must first determine the validity of the agreement before it can order arbitration.

The defendants assert that arbitration is mandated because the license agreement and the services agreement include an arbitration provision. Notably, federal law supports this argument. The United States Supreme Court in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), interpreting statutory language (9 U.S.C. § 2) similar to the Louisiana statute, held that a trial court is confined to an analysis of whether the arbitration provision standing alone is valid and enforceable. See also Preston v. Ferrer, 552 U.S. 346, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008) and Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) (reaffirming holding in Prima Paint that, as a matter of substantive federal law applicable also | fito the states, an arbitration clause is severable from the remainder of the contract, and unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is decided by the arbitrator). Accordingly, under federal law, the main contract is a question for the arbitrator. This approach, called the “separability” doctrine, was rejected by the Louisiana Supreme Court in George Engine.

In George Engine, the Louisiana Supreme Court, in interpreting La.Rev.Stat. 9:4201 et seq. held that trial courts retain jurisdiction to decide the validity of a contract allegedly induced by fraud before sending the matter to arbitration, explicitly rejecting the federal position. Specifically, in George Engine, the plaintiff argued that its consent to the agreement was vitiated through error, misrepresentation and coercion by the defendant at the time of the execution of the contract and therefore, there was no valid contract between the parties. The arbitration clause provided that “any controversy or claim arising out of or relating to the construction contracts, as amended by this Agreement, or any breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association (hereinafter referred to as AAA), except to the extent that the rules of the AAA are in conflict with this Agreement.” 350 So.2d at 882. The | fiCourt noted that the arbitration clause evidenced no intent to arbitrate the issue of error in the inducement of the agreement, and that the language of the clause was not broad enough to include arbitration of such issues. The Court found that the part of the construction contract which referenced the arbitration clause included a stipulation “that when such matters are submitted to arbitration” referred to the cause and extent of delays in delivery of the vessels and the assessment of liquidated damages. 350 So.2d at 884.

In determining that the plaintiffs claims were not subject to arbitration, the Court stated:

... It would be an absurdity to compel arbitration of the conditions in a contract which does not exist in its entirety in legal contemplation.
This Court’s jurisdiction cannot be displaced whenever a contract contains an arbitration clause. The arbitration law and arbitration clauses in contracts do not vest in arbitrators the historic jurisdiction of the courts to determine fraud or duress in the inception of a contract. It may be said that courts are far better qualified to decide issues of this kind. These are not questions of “construction law”, particularly applicable to the building of boats, nor is a question of fact involved that arbitrators are peculiarly well qualified to consider.
Nor does Section 4201 of the Arbitration Act compel arbitration of a question involving the validity ab initio of a contract containing an arbitration clause. While provisions for arbitration of controversies arising out of contracts are declared to be valid, irrevocable and enforceable, validity, irrevocability and enforceability are by the terms of Section 4201 made dependent upon “such grounds as exist at law or in equity for the revocation of any contract.” Stone v. Stone, 292 So.2d 686 (La.1974). By its very terms Section 4201 presupposes the existence of a valid contract as a basis for invoking arbitration.

George Engine, 350 So.2d at 884.

This Court, however, invoked the separability doctrine adopted by the federal courts to hold that the plaintiffs claims were subject to the arbitration clause in Saavedra v. Dealmaker Developments, LLC, 2008-1239 (La.App. 4 Cir. 3/18/09), 8 So.3d 758, writ denied, 2009-0875 (La.6/5/09), 9 So.3d 871. In that 17case, the agreement for the purchase of immovable property located in Texas executed by the parties contained an arbitration provision which covered “any and all claims, issues or disputes of any nature arising out of this contract in anyway, to include claims under tort law, contract law, statutory law, or common law.” 2008-1239, p. 7,- 8 So.3d at 872. The defendants contended that the arbitration provision at issue was broad and included the plaintiffs claims of fraud or misrepresentation. The plaintiff countered that his claims sounding in tort, including fraud in the inducement, intentional misrepresentation, and conversion, were outside the scope of the arbitration agreement, citing George Engine. This Court found, however, that the FAA applied because the purchase agreement entered into between Saavedra, a Louisiana resident, and Wallace, a Florida resident, to transfer property located in Texas affected interstate commerce, thus agreeing with the defendants that because the arbitration clause was broad, the separability-doctrine adopted by the federal courts was applicable and therefore the plaintiffs claims were subject to the arbitration clause.

When, as in this case, the contract contains a broad arbitration provision and an allegation of invalidity of the contract due to fraud in the inducement is raised, the federal courts have invoked the separability doctrine. Larry E. Edmondson, Domke on Commercial Arbitration § 11:1 (3rd ed. 2008)(“Domke”). The separability doctrine, which the United States Supreme Court adopted in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967), is based in on a legal fiction that the arbitration provision is an independent contract from the main contract in which it is contained. Domke, supra. Pursuant to this doctrine, the arbitration provision is treated as severable from the main agreement in which it appears, and “the issue of fraudulent inducement of the main contract, as well as other claims made by a party to a contract containing the broad arbitration agreement, go directly to arbitration, unless it is clearly shown that the parties intended to withhold such an issue from the arbitrator.” Domke, supra.
The Louisiana Supreme Court in George Engine, supra, rejected the separability doctrine. In so doing, the court expressly recognized that it was departing from the Prima Paint case in determining a state law issue. | ^Because this case is governed by the FAA, Mr. Saavedra’s reliance on the George Engine case is misplaced.
In two recent decisions, Preston v. Ferrer, [552] U.S. [346], 128 S.Ct. 978, 169 L.Ed.2d 917 (2008) and Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), the United States Supreme Court clarified and reaffirmed its holding in Prima Paint. It is now well-settled that as a matter of substantive federal law applicable also to the states: (i) an arbitration clause is severable from the remainder of the contract, and (ii) unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is decided by the arbitrator. Applying these principles to the instant case, which is governed by the FAA, we note that Mr. Saavedra’s fraud claim is directed to the purchase agreement as a whole; he is not attacking the arbitration provision itself. We thus find that Mr. Saavedra’s claims, including the claim of fraud in the inducement, must be arbitratéd.

Saavedra, pp. 8-9, 8 So.3d at 764-765.

In the present case, the arbitration provision in the Master Software License and Services Agreement provides in pertinent part:

Except as provided in Section 14.4 [which provides for injunctive relief], each party agrees that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, shall be settled by arbitration to be held in Nassau County, New York or New York County, New York in accordance with the rules then in effect of the American Arbitration Agreement.

The parties also executed a service agreement which included a similar arbitration provision.

The laws of the State of New York govern the terms and conditions of this Agreement. Any controversy and/or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration to be held in Nassau County, New York or New York County, New York.

These provisions are much broader that the arbitration provision in George Engine and are more similar to the arbitration clause in Saavedra. Further, as in Saave-dra, the agreements executed by the parties affect interstate commerce. The agreements involve the purchase of software services by a Louisiana based corporation from a New York based corporation, which the plaintiff has acknowledged is not authorized to do business in Louisiana. Thus, the FAA is | applicable to the arbitration provisions. Under the FAA and the separability doctrine enunciated in Pri-ma Paint, the plaintiffs claims are subject to arbitration.

Conclusion

The judgment of the trial court is affirmed.

AFFIRMED.

TOBIAS, J., Concurs and Assigns Reasons.

TOBIAS, J.,

Concurs and Assigns Reasons.

1,1 respectfully concur. In my view, it is doubtful that George Engine Co., Inc. v. Southern Shipbuilding Corp., 350 So.2d 881 (La.1977), is valid law except possibly when an arbitration involves only Louisiana intrastate commerce, the parties to the contract at issue are Louisiana citizens, and only Louisiana law applies to the issues. The United States Supreme Court’s holdings in Preston v. Ferrer, 552 U.S. 346, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008) and Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) have silently adopted Justice Tate’s dissenting opinion in George Engine. When interstate commerce is impacted, as in the case at bar, we are required to submit the issues of error and lack of consent (and by implication issues of a similar nature, such as fraud in connection with entry into the contract at issue) to arbitration first if the parties have contracted to resort to arbitration.

      . 9 U.S.C. § 2 provides:
      A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

      . La.Rev.Stat. 9:4201 provides:
      A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
      La. R.S. 9:4202 provides:
      If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.


text:
    Precious BANKS v. DEPARTMENT OF POLICE.
    No. 2010-CA-1204.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 2011.

      Donovan A. Livaccari, Livaccari Villar-rubia Lemmon, LLC, New Orleans, LA, for Plaintiff/Appellee.
    Victor L. Papai, Jr., Assistant City Attorney, Nolan P. Lambert, Chief Deputy City Attorney, Nannette Jolivette-Brown, City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR.).
   | ]The New Orleans Police Department (“NOPD”) appeals from a decision by the Civil Service Commission of the City of New Orleans (“CSC”) that reduced the discipline given to appellee, Sergeant Precious Banks, by the NOPD. For the reasons that follow, we affirm the CSC.

The facts are not in dispute. On 14 November 2008 at approximately 10:30 p. m., Sergeant Banks and a new recruit responded to a call made by Rodney Sterling, who claimed that his truck had been stolen. Mr. Sterling reported that he had taken the truck to his girlfriend’s house and when he went to depart, the vehicle was gone. He reported that his vehicle was stolen to the NOPD.

Sergeant Banks and the recruit located the truck by utilizing its “On-Star” navigation system. They called Mr. Sterling to come and get the truck. They learned that he had received a message from his wife that she had taken the truck and would not reveal its location until he returned her call.

Sergeant Banks called Mrs. Sterling who, after being confronted with the voice mail communication, admitted that she had taken her husband’s vehicle to bget his attention. Apparently, one week earlier, Mr. Sterling left his wife for another woman. Mrs. Sterling defended her actions stating that she was still married and that the truck belonged to both she and her husband as community property.

In response to the unusual facts, Sergeant Banks investigated further. She confirmed that the Sterlings were recently separated, that the truck was registered to Mr. Sterling, and that he was the only driver of the vehicle. Unsure how to proceed, Sergeant Banks called her immediate supervisor, Lieutenant Michael Mims, and the on-call domestic officer, Detective Charles Baehr. Detective Baehr testified that domestic violence could potentially include non-physical acts, including taking another’s property without permission. Lieutenant Mims testified and confirmed that he approved Sergeant Banks’ decision to arrest Mrs. Sterling for violating a municipal ordinance relative to acts of domestic violence. Mrs. Sterling spent the weekend in Central Lock-up; the charges were later dropped.

Mrs. Sterling filed a complaint of false arrest against Sergeant Banks. The matter was investigated, and three different violations were sustained against Sergeant Banks by the investigating officer.

Sergeant Banks’ commander, Major Bruce Little, convened a Commander’s Hearing to review the investigator’s findings. Major Little determined that two of the violations were inclusive and duplica-tive, dismissed them, but found that the third one was valid, specifically: “Rule 4: Performance of Duty; paragraph 4-(^Neglect of Duty, to wit. Section 4C1; Enumerated Acts/Omissions,” while acting in a supervisory capacity/leadership role failed to take appropriate police action when she arrested an individual for unauthorized use of her own property. Major Little recommended the minimum penalty set forth in the Department’s penalty schedule for a category one offense, a Letter of Reprimand, as the appropriate discipline for the violation. Major Little forwarded his findings and recommendation up through the chain of command.

Deputy Superintendent Kirk Bouyelas, the final reviewer prior to the matter reaching the Superintendent of Police, made a recommendation for a five-day suspension for the violation, rather than the proposed Letter of Reprimand. In his forwarding document to the Superintendent, Deputy Superintendent Bouyelas argued that the violation was actually a category two infraction because the wife was arrested and spent the weekend in jail.

The Superintendent of Police, Warren Riley, as the Appointing Authority, had the final discretion to determine what, if any, discipline should be imposed. In his Disciplinary Letter, dated 1 September 2009, the Superintendent adopted Deputy Superintendent Bouyelas’ recommendation, and imposed the five-day suspension.

Sergeant Banks appealed her suspension to the CSC. The appeal was heard by a hearing officer who found that the facts did not support the contention that Sergeant Banks had neglected her duty and recommended that the appeal be granted, overturning any discipline. The CSC reviewed the transcript, and | rendered a split decision, overturning the five-day suspension, and reducing the discipline to a Letter of Reprimand. The NOPD then filed this appeal.

An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action by his employer except for cause expressed in writing. La. Const. art. X, § 8(A); Walters v. Department of Police of New Orleans, 454 So.2d 106 (La.1984). The employee may appeal from such a disciplinary action to the CSC. The burden of proof on appeal, as to the factual basis for the disciplinary action, is on the appointing authority. Id.; Goins v. Department of Police, 570 So.2d 93 (La.App. 4th Cir.1990).

The CSC 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 imposed is commensurate with the dereliction. Walters, supra. Legal cause exists whenever the employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311 (La. App. 4th Cir.1990). The Appointing Authority has the burden of proving by a preponderance of the evidence the occurrence of the complained of activity and that the conduct complained of impaired the efficiency of the public service. Id. The appointing authority must also prove the actions complained of bear a real and substantial relationship to the efficient operation of the public service. Id. While these facts |smust be clearly established, they need not be established beyond a reasonable doubt. Id.

The decision of the CSC is subject to review on any question of law or fact upon appeal to this court, and findings of fact are reviewed using the manifestly erroneous/clearly wrong standard of review. La. Const. art. X, § 12; Cure v. Department of Police, 07-0166, p. 2 (La. App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court cannot modify the CSC order unless it is arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the CSC is “arbitrary and capricious” if no rational basis exists for the action taken by it. Cure, 07-0166 at p. 2, 964 So.2d at 1095.

The NOPD’s investigation determined that Sergeant Banks neglected her duty by arresting Mrs. Sterling for taking her own property because the truck was ultimately determined to be community property. Sergeant Banks defended her action by contending that she acted reasonably based on the information she had at the time, her training, and the advice she received from her immediate supervisor. Sergeant Banks testified that she was unfamiliar with community property law and that she never received any training from the NOPD regarding the marital regime. She stated that she relied on the ordinances she knew that defined the owner of a vehicle as the person who was named in the registration papers. She also relied | fiupon the guidance received from her immediate supervisor, Lieutenant Mims, who also testified that he had had no training regarding community property.

Finally, Assistant Superintendent Bouyelas testified that he made his recommendation without knowing that Sergeant Banks spoke to her immediate supervisor and made the arrest with his authorization. He stated that his recommendation would have been different if he had that information before making it.

In light of the testimony in the record, we find that the CSC had a rational basis for reducing the discipline imposed on Sergeant Banks from a five-day suspension to a Letter of Reprimand. Thus, based on the foregoing, we affirm the decision of the CSC.

AFFIRMED.

      . Two members of the CSC agreed with the hearing officer, while the dissenting Commissioner indicated that she would have overturned and set aside the discipline in its entirety.

      . Sergeant Banks, in the alternative to affirming the decision of the CSC, requested that we overturn the CSC’s decision and set aside all discipline imposed upon her. Because Sergeant Banks did not answer the appeal, we cannot do so. See La. C.C.P. art. 2133.


author: PATRICIA RIVET MURRAY, Judge.

text:
    ORLEANS PARISH SCHOOL BOARD v. Paul G. PASTOREK, Et Al.
    No. 2010-C-1709.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 19, 2011.
    Joan Ellen Hunt, R. Christopher Fruge, Louisiana Department of Education, Baton Rouge, Louisiana, Denise M. Brou, Assistant Attorney General, Louisiana Department of Justice, Baton Rouge, Louisiana, for State Board of Elementary and Secondary Education.
    James M. Garner, Debra J. Fischman, Sharonda R. Williams, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, Louisiana, for State Defendants.
    Brent B. Barriere, Harry Rosenberg, D. Skylar Rosenbloom, Sarah E. Vandergriff, Phelps Dunbar LLP, New Orleans, Louisiana, for Orleans Parish School Board.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   ON REHEARING GRANTED

PATRICIA RIVET MURRAY, Judge.

|, We granted the application for rehearing filed by the Respondent, the Orleans Parish School Board (“OPSB”), on this writ application in order to allow the parties to argue their respective positions. Having considered the arguments of counsel, the briefs filed by the parties, and the law, we affirm our earlier decision granting the Relator’s writ application.

When a plaintiff challenges the ministerial decision or administrative action of a state agency, East Baton Rouge Parish is the only proper venue. Impastato v. State, Div. of Admin., 10-1998 (La.11/19/10), 50 So.3d 1277 (citing Le-Blanc v. Thomas, 08-2869, pp. 9-10 (La.10/20/09), 28 So.Bd 241, 246); see also Colvin v. Louisiana Patient’s Comp. Fund Oversight Bd., 06-1104 (La.1/17/07), 947 So.2d 15. Such is the case here. The OPSB is challenging the administrative actions of the Relators — Paul G. Pastorek, in his capacity as State Superintendent of Education; Erin Bendily, in her capacity as the Director of Charter Schools for the Louisiana State Board of Elementary and Secondary Education; the Louisiana Department of Education (“DOE”); and the Louisiana 12State Board of Elementary and Secondary Education (“BESE”). East Baton Rouge Parish is the only proper venue for the OPSB’s action. Accordingly, the trial court’s decision denying the exception of improper venue is reversed, and the exception of venue is sustained.

WRIT GRANT AFFIRMED

JONES, J., Dissents for the Reasons Assigned by J. LOVE.

LOVE, J., Dissents.

hi respectfully dissent from the affirmation of the grant of the writ for the reasons assigned in my original dissent.