author: PAUL A. BONIN, Judge.

text:
    Richard Raymus RONDENO v. The LAW OFFICE OF WILLIAM S. VINCENT, JR., William S. Vincent, V. Jacob Garbin, W. Jared Vincent and ABC Insurance Company.
    No. 2012-CA-1203.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 13, 2013.
    Rehearing Denied April 2, 2013.

      Richard R. Rondeno, Houston, TX, Plaintiff/Appellant (In Proper Person).
    John A. Stewart, Jr., Baldwin Haspel Burke & Mayer, LLC, New Orleans, LA, David S. Daly, Allen & Gooch, ALC, Me-tairie, LA, for Defendant/Appellee.
    (Court composed of Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU, Judge SANDRA CABRINA JENKINS).
   PAUL A. BONIN, Judge.

11 Richard Rondeno engaged William S. Vincent, Jr., an attorney, and other lawyers associated with Mr. Vincent to represent him in a claim for damages arising out of a maritime accident. Apparently unsatisfied with his representation by the Vincent lawyers, Mr. Rondeno engaged replacement lawyers to pursue his maritime claim and then filed a legal malpractice claim against the Vincent lawyers. The initial basis of his legal malpractice claim was that the Vincent lawyers had failed to timely join as a party defendant in his federal lawsuit in Louisiana the owner of the vessel on which Mr. Rondeno was injured; he now also argues that the Vincent lawyers filed his lawsuit in a court without jurisdiction and proper venue.

While this legal malpractice suit was pending, the replacement lawyers added the vessel owner to the pending lawsuit. Mr. Rondeno, however, apparently discharged the replacement lawyers and began handling his maritime lawsuit without the assistance of counsel. Importantly for the purposes of this appeal, at |2no time during the pendency of the maritime lawsuit in Louisiana was there a judicial finding that the vessel owner was untimely joined as a party defendant. But Mr. Rondeno on his own motion obtained the voluntary dismissal of his pending federal lawsuit in Louisiana and filed a new lawsuit in a federal court in Texas in which he named the vessel owner among others. Shortly after that filing, the federal judge in Texas dismissed with prejudice the lawsuit as prescribed. (We are now informed that the United States Court of Appeals for the Fifth Circuit has affirmed the dismissal and the judgment is final.)

With respect to the legal malpractice lawsuit, the Vincent lawyers filed a double-barreled exception of peremption and motion for summary judgment. Based upon these pleadings, the trial judge in a single judgment dismissed Mr. Rondeno’s suit with prejudice because he found that the legal malpractice suit was not filed within the peremptive periods established by La. R.S. 9:5605 A and, independently, that Mr. Rondeno’s voluntary dismissal of the federal lawsuit in Louisiana waived his right to proceed with his legal malpractice claim. Mr. Rondeno appeals that judgment.

Mr. Rondeno, for his part and on the eve of the hearing on the exception and summary judgment motion, filed a motion to amend and supplement his petition to add additional claims. The trial judge denied that motion, and Mr. Rondeno appeals from that judgment as well.

|aAs a result of our de novo review of the exception of peremption, we are unable to satisfactorily determine whether the Vincent lawyers, while they had responsibility for Mr. Rondeno’s maritime lawsuit, missed a recognizable deadline for the joinder of the vessel owner, and in the absence of expert testimony we cannot conclude that any knowledge of a missed deadline by the replacement lawyers constituted sufficient discovery of an alleged act to commence the running of the peremptive period against the Vincent lawyers. Thus, we cannot affirm the judgment sustaining the exception of per-emption.

But also on our de novo review of the summary judgment, we conclude that there is no genuine issue of material fact that a reasonably prudent party, given the facts known at the time and avoiding the temptation of viewing the case through hindsight, on these specific facts would not have voluntarily dismissed his pending maritime lawsuit in Louisiana when he did. And we thus say as a matter of law that Mr. Rondeno’s failure to mitigate any damages which he might have sustained precludes his maintaining this legal malpractice action against the Vincent lawyers. Accordingly, we affirm the summary judgment dismissing his suit with prejudice.

Finally, we review the judgment denying Mr. Rondeno’s motion to amend and supplement his petition under an abuse-of-discretion standard and conclude that the trial judge did not abuse his discretion in refusing to permit amendment of the petition so as to assert the matters which Mr. Rondeno sought to assert. Thus, we affirm that judgment.

We explain our reasoning in greater detail below.

Ji

We begin our explanation with a review of the operative facts, including important dates.

Mr. Rondeno was a longshore worker. He claimed to have been injured on May 29, 2005, while working aboard the MW ISLAND OASIS which at the time was physically situated at the Nashville Street wharf in Orleans Parish, which is, of course, in the territory of the United States District Court for the Eastern District of Louisiana. On May 28, 2008, the Vincent lawyers filed suit on Mr. Ronde-no’s behalf in the Eastern District of Louisiana, claiming monetary damages under maritime law including a longshore worker’s claim under 33 U.S.C. § 905(b). The vessel itself was identified, but no seizure was effected. In the federal complaint prepared by the Vincent lawyers, NYK Global Bulk Corporation was alleged to be the vessel’s owner.

NYK Global answered the complaint, affirmatively identifying itself as the charterer but denying ownership of the vessel. NYK Global’s attorney apparently communicated with the Vincent lawyers the correct identity of the owner, but during the period of their representation they took no step to amend or supplement the complaint so as to join the vessel owner.

When the replacement attorneys were about to enter the litigation, they had access on March 24, 2009 to the federal court pleadings, including NYK Global’s answer. (Notably, it is from this date that the Vincent lawyers argue a one-year |speremptive period commenced which resulted in the untimeliness of the legal malpractice claim, which was filed on March 31, 2010.)

Sometime in April 2009, the replacement attorneys conferred with NYK Global’s trial counsel who repeated to them what he had told the Vincent lawyers about not correctly naming the vessel owner. There is no direct evidence in the record which shows that any of the communications among either the Vincent lawyers or the replacement attorneys and NYK Global’s counsel involved legal opinions or views that the nonjoinder of the correct vessel owner had resulted in the claim against it having prescribed. But, on June 2, 2009, the replacement attorneys joined Toshin Kishin Co. Ltd., the vessel owner, as a party defendant. Apparently, Toshin Kishin in its answer pleaded laches, that is the prescriptive period, as a complete bar to Mr. Rondeno’s suit. But, as we have noted, there was no judicial determination of its contention in the first-filed lawsuit. And the Vincent lawyers had intervened in that lawsuit to argue that Toshin Kishin was timely sued.

The replacement attorneys’ representation of Mr. Rondeno discontinued on May 26, 2011, and he began to handle his federal lawsuit without the assistance of a lawyer. Apparently believing that the Eastern District of Louisiana could not exercise its diversity jurisdiction over the case and that there was no other basis for its jurisdiction, Mr. Rondeno moved for a voluntary dismissal of that case so that he could file anew in the federal court in Texas. U.S. District Judge Jay Zainey | (¡expressed grave misgivings about the prudence of Mr. Rondeno’s dismissal motion, but decided that in the end it was Mr. Rondeno’s decision alone and thus he granted the dismissal without prejudice on October 14, • 2011.

Mr. Rondeno, again acting without the assistance of a lawyer, filed a complaint in the United States District Court for the Southern District of Texas; in this complaint, he invoked the Texas savings statute [Tex. Civ. Prac. & Rem.Code Ann. § 16.064 (West 2011) ] to explain why a lawsuit filed in November 2011, for injuries sustained in 2005 was not prescribed. On his own initiative and without awaiting responsive pleadings from any named defendant, U.S. District Judge Lynn Hughes ruled in effect that Mr. Rondeno’s voluntary dismissal of the Louisiana action resulted in his claim against the vessel owner being prescribed. This district court judgment was rendered on January 20, 2012, but Mr. Rondeno filed an appeal to the Fifth Circuit Court of Appeals, which had not decided the matter at the time of the hearing on the motion for summary judgment in this case. As we noted earlier, we are now informed (although it is not part of the record from the court below) that the Fifth Circuit has affirmed the judgment, and its judgment is final and definitive.

_L¡n

From the preceding discussion it is apparent that neither Mr. Rondeno nor the Vincent lawyers were convinced that Mr. Rondeno’s claim against the vessel owner was actually prescribed.

Section 905(b)(3) provides an exception to the exclusivity of benefits under the Longshore and Harbor Workers’ Compensation Act. See 33 U.S.C. § 901 et seq. A longshore worker whose injury is “caused by the negligence of a vessel” may bring an action against such vessel as a third party. § 905(b)(3). See, e.g., Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994). The equitable doctrine of lach-es is applicable to a longshore worker’s negligence action against the owner of the vessel, and the federal courts consider the applicability of laches to be “well settled.” See, e.g., Tolbert v. M/V Stanislavsky, 513 F.Supp. 279, 280 (MJD.La.1981). “[Tjhe principle of laches is judge-created and partakes of equity both negatively and affirmatively.” Barrois v. Nelda Faye, Inc., 597 F.2d 881, 884 (C.A.5 1979). In applying laches, courts resort to an analogous statute of limitations, and in maritime personal injuries the limitations or prescriptive period which is best suited for analogically applying is the three-year prescriptive period provided by the Jones Act. Id.; see also 46 U.S.C. § 30106.

The purpose of the analogous application of the prescriptive period is not to definitively determine a prescriptive date, but to allocate the burden of showing excusable delay by the plaintiff or lack of prejudice to the defendant. Barrois, supra. “Laches requires proof of (1) lack of diligence by the party against whom lathe defense is asserted, and (2) prejudice to the party asserting the defense.” Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961) (emphasis added). “[B]oth of the elements [are] necessary to the recognition of the defense.” Id. But laches, once proved, is a “complete defense to an action” irrespective of whether the analogous statute of limitations has run. Mecom v. Livingston Shipbuilding Co., 622 F.2d 1209, 1215 (C.A.5 1980). The determination whether laches applies is one ordinarily entrusted to the discretion of the trial judge whose decision will not be overturned absent an abuse of discretion. See DeSilvio v. Prudential Lines, Inc., 701 F.2d 13, 15’ (C.A.2 1983).

All we know in this record about the proceedings before Judge Zainey is that he made no decision respecting the defense of laches. While it appears that the correct vessel owner was not joined as a party defendant within the three-year analogous prescriptive period, that failure is not in itself dispositive of the timeliness of his lawsuit. Without a definitive ruling on laches, we can only conclude that Mr. Ron-deno would have borne the burden of showing to Judge Zainey that he had not lacked diligence in correctly naming the vessel owner and that the vessel owner was not prejudiced by the delay. And there is no evidence before us on which we could postulate how Judge Zainey might have exercised his discretion.

In their exception of peremption the Vincent lawyers contend that Mr. Ronde-no’s replacement lawyers learned on March 24, 2009 that suit had not been | j|filed against the vessel owner within a three-year prescriptive period, or by May 29, 2008. And the knowledge of Mr. Ron-deno’s replacement lawyers, they further argue, is imputed to him. See Gibson v. Herman, Herman, Katz and Cottar, LLP, 04-2204, p. 10 (La.App. 4 Cir. 2/15/06), 927 So.2d 1178, 1184.

In order for the Vincent lawyers to prevail on their exception of peremption, it would first be necessary for us to find that Mr. Rondeno’s replacement attorneys, by accessing the initial answer of the vessel charterer, discovered or should have discovered the omission. See La. R.S. 9:5605 A. Notice to the client’s attorney |inis imputed to the client for purposes of determining when prescription begins to run. See Regional Transit Auth. v. Levey, 91-0529 (La.App. 4th Cir. 1992), 595 So.2d 1255, 1258. And, of course, if that access was sufficient to commence the running of the one-year peremptive period, Mr. Ron-deno’s legal malpractice suit, which was not filed until March 31, 2010, was filed too late.

But without a date certain for prescription, either by statute or court ruling in the underlying case, and in the absence of any factual basis for us to consider the defense of laches on the merits, we cannot conclude as a matter of law that the replacement lawyers’ first access to pleadings would have constituted sufficient discovery of the prescription of Mr. Ronde-no’s claim so as to commence the running of the peremptive period.

Moreover, it does not seem that the replacement lawyers who filed the amended complaint to add the vessel owner would have done so unless they had at least a good faith belief that the matter was arguable. See Fed. Rule Civ. Pro. 11(b). And, while motivated for obvious reasons, the Vincent lawyers intervened in the federal action to argue that prescription had not run against the vessel owner.

Even Mr. Rondeno, who would ultimately bear the burden of proof at trial that the claim was prescribed, refiled his lawsuit in Texas, naming the vessel owner — as if the prescriptive period had not run. Because of our concern on this point, we requested the parties to specifically brief this issue. Without oversimplifying Inthe matter, we understand Mr. Rondeno to now be arguing that the Vincent lawyers’ negligence occurred on May 29, 2008, the three-year anniversary of Mr. Rondeno’s injury, because they filed suit in a court that had no jurisdiction, not because they failed to name the correct owner. (But see our discussion in Part IV, post.) We, however, understand that the Vincent lawyers argue that May 29, 2008, has not been established as the date of malpractice such that the peremptive periods established by La. R.S. 9:5605 A began to run from that date because no court has determined that the vessel owner could not be made a defendant in the suit after that point. And if we are uncertain at this late date whether there was, in fact, malpractice on May 29, 2008, surely the argument that the replacement lawyers “discovered” the malpractice on March 24, 2009, is not supportable. Because we cannot conclude that as a matter of law Mr. Rondeno was on notice that he should have filed a malpractice suit against his attorneys on March 24, 2009, the judgment sustaining the exception of peremption must be reversed.

HI

We now turn to the aspect of the judgment based upon the motion for summary judgment. The Vincent lawyers alternatively argued that the only certainty we have is that Mr. Rondeno’s claim against the vessel owner was prescribed because subsequent to their representation he voluntarily dismissed the lawsuit they had filed on his behalf thereby causing it to be prescribed.

112^

Again, as we have noted, there was never a determination in the federal action pending in the Eastern District of Louisiana that Mr. Rondeno’s claim against the vessel owner was prescribed. So long as that suit was pending, there was at least a possibility that Judge Zainey would determine that the amended complaint against the vessel owner was not untimely. See Fed. Rule Civ. Pro. 15(c)(1)(C). Once Mr. Rondeno voluntarily dismissed that case, however, he virtually assured that his claim would thereby prescribe. See Basco v. American General Ins. Co., 43 F.3d 964, 965-966 (C.A.5 1994) (“A federal statute of limitations is not tolled when the plaintiff files a claim that later is voluntarily dismissed.”).

It appears that Mr. Rondeno came to believe that the Eastern District of Louisiana could not exercise jurisdiction over his case and that the Texas savings statute, supra, would permit him to re-file his case in federal court in Texas, which he believed to be a court of proper jurisdiction. As we noted earlier, Judge Zainey expressed grave misgivings about Mr. Rondeno’s intended course of action, but nonetheless granted the relief of voluntary dismissal, which is the relief Mr. Rondeno sought.

When Mr. Rondeno re-filed in federal court in Texas, it was immediately determined by the district judge that all of his claims had prescribed. The Texas savings statute, which apparently operates very much like our La. Civil Code art. 3463 (“Interruption [of prescription] is considered never to have occurred if the | isplaintiff abandons, voluntarily dismisses the action at any time ... or fails to prosecute at the trial”), did not save him. And for the first time a court determined that Mr. Rondeno’s claim against the vessel owner was untimely.

While not questioning the sincerity of Mr. Rondeno’s belief that the Eastern District of Louisiana was not a court of competent jurisdiction or of proper venue, we entertain no doubt about the matter. “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States; ... to all cases of admiralty and maritime Jurisdiction; ... between Citizens of different States; ... and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” U.S. Constitution, Article III § 2, cl. 1.

“The [federal] district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Mr. Rondeno brings his complaint under federal law, 33 U.S.C. § 901 et seq. Additionally, federal district courts “have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” 28 U.S.C. § 1333. Also, the federal court in Louisiana has diversity jurisdiction over his maritime action because the matter in controversy exceeds $75,000 and is between Mr. Rondeno, a citizen of Texas, and Toshin Kishin, the citizen or subject of Japan, a foreign state. See 28 U.S.C. § 1332(a)(2). Thus any federal court was a court of competent jurisdiction for his lawsuit.

|14And the Eastern District of Louisiana in particular was a proper venue. Because the injuries occurred at the Nashville Street wharf in New Orleans, the action in the Eastern District of Louisiana was filed in a judicial district of proper venue. See 28 U.S.C. § 1391(b)(2) (“A civil action may be brought in ... a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.”).

Mr. Rondeno’s voluntary dismissal of his suit from a court of competent jurisdiction and proper venue, however, precludes us from finding that the Vincent defendants committed malpractice either in their delayed filing of the suit or in their failure to properly name the vessel owner upon initial filing of the suit. So long as the lawsuit was pending the federal district judge could have exercised his discretion to find that the “late” naming of the vessel owner was excusable on the part of Mr. Rondeno and not prejudicial to the vessel owner. Additionally, to the extent that Mr. Rondeno claims that he suffered additional compensable damages beyond those itemized in the original complaint, the federal district judge is authorized by Fed. Rules Civ. Pro. 15(c) to permit an amendment to the pleadings; the new allegations of the amendment would relate back to the date of filing of the initial complaint. But by his own act of voluntarily dismissing his pending complaint (as amended) Mr. Ron-deno prevented the federal district judge from granting him any relief for his injuries aboard the M/V ISLAND OASIS.

_bB

Now, as we turn to this legal malpractice claim, we emphasize that in order to establish a valid legal malpractice claim against the Vincent lawyers, Mr. Rondeno “must show evidence sufficient to convince a reasonable trier of fact of (1) the existence of an attorney-client relationship; (2) negligent representation by the attorney; and (3) loss caused by that negligence.” MB Industries, LLC. v. CNA Ins. Co., 11-0303, p. 15 (La.10/25/11), 74 So.3d 1173, 1184. Most importantly, in this case, Mr. Rondeno has the burden to prove “some causal connection between the alleged negligence and the eventual unfavorable outcome of the litigation.” Id., p. 20, 74 So.3d at 1187 (emphasis added). This he cannot do; the unfavorable outcome of his maritime litigation was as far as can be determined caused by his own act of voluntary dismissal.

Mr. Rondeno’s voluntary dismissal of his action constitutes a failure to mitigate his damages. “An obligee must make reasonable efforts to mitigate the damage caused by the obligor’s failure to perform.” La. Civil Code art.2002. “When an obligee fails to make these efforts, the obligor may demand that the damages be accordingly reduced.” Id.

“The scope of a party’s duty to mitigate depends on the particular facts of the individual case, and a party is not required to take actions which would likely prove unduly costly or futile.” MB Industries, 11-0303, pp. 10-11, 74 So.3d at 1181. Mr. Rondeno’s duty to mitigate his damages “encompassed only what a ‘reasonably prudent man’ would have done to lessen his damages, given the facts 11fiknown to him at the time and avoiding the temptation to view the case through hindsight.” Id. p. 11, 74 So.3d at 1181, quoting Unverzagt v. Young Builders, Inc., 252 La. 1091, 1100, 215 So.2d 823, 826 (1968).

We find that a reasonably prudent man would not have voluntarily dismissed his suit from a court with proper jurisdiction and venue when the timeliness of the adding of a defendant was still at issue. This is especially so in light of his replacement lawyers’ good faith joinder of the vessel owner by amended complaint. Mr. Ronde-no points to no one, law-trained or otherwise, who described his pending maritime lawsuit as futile. He alone came to that unsupportable conclusion. Also, the notion that the pending litigation would be “unduly costly” is likewise unsupportable in light of Mr. Rondeno’s efforts to file another one against the vessel owner. In sum, the dismissal of his maritime lawsuit, that is the “unfavorable outcome of the litigation,” cannot be shown by him to have been caused by the Vincent lawyers. This is an essential element of his burden of proof that he did not carry at the motion for summary judgment. See La. C.C.P. art. 966 C(2) (movant need only “point out to court that there is an absence of factual support for one or more elements essential to the adverse party’s claim”). Mr. Ron-deno did not, and cannot, satisfy his evi-dentiary burden at trial that the Vincent lawyers and not he were the cause of the unfavorable outcome. Accordingly, there being no genuine issue of material fact, summary judgment was properly granted, dismissing Mr. Rondeno’s lawsuit with prejudice.

JijIV

In this final Part we address Mr. Rondeno’s contention that the trial judge erred in refusing to grant him leave to amend and/or supplement his petition. We review the trial court’s ruling under an abuse-of-discretion standard. See Roberts v. Murphy Oil Corp., 90-0399 (La.App. 4th Cir.1991), 577 So.2d 308, 313. And we, like the trial judge, find that the amendment or supplement that Mr. Rondeno sought would be of no avail to him in this action.

As we understand Mr. Rondeno’s wishes as expressed in his motion to amend and supplement, he wanted to amend his lawsuit to allege that the Vincent lawyers had committed malpractice by negligently failing to file timely the maritime lawsuit in a court of competent jurisdiction and proper venue. We have already considered the error of that contention in the Part III-A, ante. In order to find that Mr. Rondeno failed to mitigate his damages when he voluntarily dismissed his federal lawsuit, it was necessary for us to assure ourselves that the lawsuit was at least filed in a court of competent jurisdiction and proper venue. Thus, the trial judge, who had concluded the same, recognized that this new allegation was unfounded in law and fact.

We next turn to his desire that he be allowed to amend his pleadings to argue a breach of contract by the Vincent lawyers for failure to fully itemize his damages, especially those required to compensate him for the subrogation rights of | ^reimbursement by the Medicare program. This amendment also is of no avail and cannot change the outcome of this matter because he voluntarily dismissed the existing lawsuit in which this very claim could have been brought by amendment.

We note that Mr. Rondeno raised in the trial court that the Vincent lawyers had perpetrated some kind of fraud upon him. Mr. Rondeno generally alleges that the fraud exception to the peremption statute is applicable. See La. R.S. 9:5605 E (“The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined by Civil Code Article 1953.”). “Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other.” La. Civil Code art. 1953. “Fraud may also result from silence or inaction.” Id.

These allegations were set forth in his contested facts, but they were not included to any extent in his motion to amend. Importantly, “[i]n pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity.” La. C.C.P. art. 856. “Malice, intent, knowledge, and other condition of mind of a person [however] may be alleged generally.” Id.

But Mr. Rondeno did not seek in the trial court to amend or supplement his petition with any allegations of fraud. “As a general rule, appellate courts will not |19consider issues raised for the first time in this court, which are not pleaded in the court below and which the district has not addressed.” Geiger v. State ex rel. Dept. of Health and Hosp., 01-2206, p. 11 (La.4/12/02), 815 So.2d 80, 86. Because the allegations of fraud were not contained in Mr. Rondeno’s motion, they were not considered by the trial court, and the trial court did not rule on them, we will not entertain or consider those or other allegations first raised in Mr. Rondeno’s brief.

Thus, we conclude by finding that the trial judge did not abuse his discretion in denying any requested amendment to the petition. And we do not consider any other requests which were first made to us.

DECREE

We affirm the granting of summary judgment in favor of the defendants and against Richard Rondeno, dismissing his suit with prejudice. We also affirm the trial court’s judgment denying Mr. Ronde-no’s motion to amend and supplement his petition. Each party is to bear its own costs of the appeal. See La. C.C.P. art. 2164.

AFFIRMED

LANDRIEU, J., concurs in the result.

      . These other lawyers, who are sued along with Mr. Vincent, are William Jared Vincent and Vatroslav Jacob Garbin. The Law Office of William S. Vincent, Jr. was also made a defendant in the suit.

      . We place this remark in parenthesis to highlight that it is dehors our record.

      . He has sought to raise still more claims in his appellate briefs. See Part IV, post.

      . Other entities, in addition to the vessel and NYK Global, named at the same time are Keishen Kaiun Co., Ltd., Ever Bright Shipping SA, and P & O Ports Louisiana, Inc.

      . This was the judgment denying reconsideration.

      .The trial court judgments under review by us were rendered on April 3, 2012; we are informed that the Fifth Circuit’s decision was rendered August 22, 2012.

      . Our record is even void of any indication whether the vessel owner sought a pretrial ruling on its defense of laches.

      . La. R.S. 9:5605 provides:
      A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
      B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
      C. Notwithstanding any other law to the contrary, in all actions brought in this state against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional law corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, the prescriptive and peremptive period shall be governed exclusively by this Section.
      D. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
      E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.

      . Mr. Rondeno also alleges that the failures to name the vessel owner and to seize the vessel were acts of malpractice.

      . For this point, the defendants argue that laches may still allow the defendant to be named and cite Fed. Rule Civ. Pro. 15(c), which allows amended pleadings to relate back to the date of the filing of the initial petition when certain criteria are met.

      . Mr. Rondeno notes that the vessel flies the flag of the nation of Panama.

      . Although we have not decided this case on the basis of peremption, we note that merely recasting his claim from one of malpractice or negligence to one of breach of contract is of no avail. See La. R.S. 9:5605 A: the per-emption statute applies to all claims against lawyers “whether based upon tort, or breach of contract, or otherwise.”

      . Mr. Rondeno has alleged two different acts of fraud. The first allegation of fraud is the Vincent lawyers allegedly intentional failure to name the vessel owner in the suit. The second allegation of fraud is a fraud upon the court, that allegedly occurred when the Vincent attorneys engaged in an ex parte meeting with the district judge on March 26, 2012 to amend the judgment that had been rendered on March 16, 2012. Connected to the alleged fraud upon the court is Mr. Rondeno’s asserted Racketeer Influenced and Corrupt Organizations violation, see 18 U.S.C. § 1961 et. seq., stemming from an alleged conspiracy between the Vincent lawyers and the district judge.

      . These allegations included violations of his due process rights, of his right to individual dignity, and of the Human Rights Act of 1998; they revolve around the point that Mr. Ronde-no felt that he was not given a fair trial because he did not have an attorney.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Donnie CHESNE, et al. v. CAPPAERT MANUFACTURED HOUSING, INC.
    No. 12-1122.
    Court of Appeal of Louisiana, Third Circuit.
    March 27, 2013.

      Fred A. Pharis, Pharis Law Offices, Alexandria, LA, Jerold Edward Knoll, The Knoll Law Firm, LLC, Marksville, LA, for Plaintiffs/Appellees, Donnie Chesne, et al.
    Albert Dale Clary, Adrian G. Nadeau, Mark L. Barbre, Long Law Firm, Baton Rouge, LA, for Defendants/Appellant, Cappaert Manufactured Housing, Inc.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   COOKS, Judge.

| defendant appeals the district court’s judgment granting the Plaintiffs’ Exception of No Cause of Action and dismissing Defendant’s Motion to Vacate or Modify a previously rendered arbitration award that was confirmed by the district court. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The genesis of this appeal began with the filing of a Petition for Damages by numerous plaintiffs living in nine different mobile homes manufactured by defendant, Cappaert Manufactured Housing, Inc. The plaintiffs asserted claims in both red-hibition and personal injury resulting from alleged defective conditions in the mobile homes.

Seven of the plaintiffs in question were referred to binding arbitration. This was compelled by Cappaert on the grounds that the plaintiffs for these homes signed binding arbitration agreements at the time of purchase. From November 15, 2011 through November 18, 2011, arbitration proceedings were held concerning plaintiffs’ redhibition and personal injury claims. On December 13, 2011, a Judgment of the Arbitrator was rendered, granting judgment against Cappaert in favor of the plaintiffs. The plaintiffs then commenced a proceeding in the district court seeking to confirm the Judgment of the Arbitrator. On January 23, 2012, the district judge signed a judgment confirming the Judgment of the Arbitrator.

On March 15, 2012, Cappaert filed a Motion to Vacate or Modify the Arbitration Award. Plaintiffs filed an Exception of No Cause of Action, seeking to dismiss Cappaert’s motion. On May 21, 2012, the Exception of No Cause of Action was granted by the trial court.

| ¡.Cappaert appealed the trial court’s judgment. Plaintiffs subsequently filed a Motion to Dismiss Cappaert’s appeal, arguing Cappaert’s appeal represents “an egregious attempt to circumvent the laws of appellate procedure as they relate to the delays for filing appeals.” The Motion to Dismiss was referred to the merits.

ANALYSIS

Initially, we note despite the motion to dismiss Cappaert’s appeal as untimely, we elect to address the merits of the appealed judgment and, for the following reasons, we affirm.

On December 13, 2011, the Judgment of the Arbitrator was rendered. On January 23, 2012, the district judge signed a judgment confirming the Judgment of the Arbitrator, and all parties were mailed a copy of the judgment on that date. No motion for new trial was filed nor was any motion for suspensive appeal taken by any party. Plaintiffs also note a letter was sent by counsel for Cappaert, dated January 23, 2012, in which it waived appearance at the motion to confirm and noted the judgment to confirm was “consistent with the judgment of the arbitrator.”

It was not until May 15, 2012, after the suspensive appeal delays expired, that Cappaert filed a Motion to Vacate or Modify the Arbitration Award. Plaintiffs argued since Cappaert chose not to oppose the motion for confirmation, it no longer had a cause of action to seek to vacate the award.

Louisiana law provides that a confirmation motion must be opposed. Louisiana Revised Statute 9:4209 provides:

At any time within one year after the award is made any party to the arbitration may apply to the court in and for the parish within which the award was made for an order confirming the award and thereupon the court shall grant such an order unless the award is vacated, modified, or corrected as prescribed in R.S. 9:4210 and 9:4211. Notice in writing of the application shall be served upon the adverse party or his attorney five days before the hearing thereof.

13As Plaintiffs noted, La.R.S. 9:4209, by its wording, contemplates a consideration of whether the award should be vacated, modified, or corrected at the time of the confirmation hearing.

Cappaert argues, as it did below, that La.R.S. 9:4218 allows for a motion to vacate, modify, or correct anytime within three months from the arbitration award even if there has been a previous confirmation hearing. That statute provides:

Notice of a motion to vacate, modify, or correct an award shall be served upon the adverse party or his attorney within three months after the award is filed or delivered, as prescribed by law for service of a motion in an action. For the purposes of the motion any judge, who might issue an order to stay the proceedings in an action brought in the same court may issue an order, to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award.

We note the above statute also provides a method to stay the proceedings to confirm the award. Thus, Cappaert could have sought to stay the confirmation proceedings, but instead chose to waive its appearance and to actually acquiesce in the confirmation of the arbitration award. Cappaert now argues it should have a second opportunity to challenge the arbitration award. We disagree.

Cappaert’s belated decision to challenge the arbitration award does not revive its right to contest the original arbitration award after a final judgment has been rendered by a court of law having jurisdiction over the matter. The result reached by the trial court is in accord with the well settled principles of statutory construction. Louisiana Civil Code Article 13 provides that “[Ijaws on the same subject matter must be interpreted in reference to each other.” The jurisprudence has specifically stated an interpretation “which affords a reasonable and practical effect to the entire act is preferred to one that renders part of the act nugatory.” |4See Ransome v. Ransome, 01-2861, p. 8 (La.App. 1 Cir. 6/21/02), 822 So.2d 746, 754. In this case, Cappaert’s attempt to wipe out Plaintiffs’ legally obtained confirmation award is unreasonable, particularly in light of its acquiescence in the confirmation award rather than seeking a stay as provided for in La.R.S. 9:4213. Plaintiffs should be able to rely on the finality of a judicial confirmation of an arbitration award The trial court did not err in granting Plaintiffs’ no cause of action exception.

DECREE

For the foregoing reasons, the judgment of the trial court granting Plaintiffs’ Exception of No Cause of Action is affirmed. The motion to dismiss Cappaert’s appeal is moot. The judgment below is final. All costs of this appeal are assessed to Defendant-Appellee, Cappaert Manufactured Housing, Inc.

AFFIRMED.


author: PAINTER, Judge.

text:
    STATE of Louisiana v. James R. FRANCIS.
    No. 12-1221.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.

      Brent Hawkins, Louisiana Appellate Project, Lake Charles, LA, for Defendant-Appellant, James R. Francis.
    Michael Harson, District Attorney, Roger P. Hamilton, Jr., Assistant District Attorney, Lafayette, LA for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

_jjDefendant, James R. Francis, appeals his conviction and sentence on the charge of second degree murder. For the following reasons, we affirm Defendant’s conviction and sentence and further order the trial court to inform Defendant of the correct prescriptive period of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof that Defendant received the notice into the record.

FACTS AND PROCEDURAL HISTORY

On August 31, 2008, Defendant shot the victim, Qaher Abualoff, in the parking lot at Food World in Lafayette, Louisiana. The victim sustained a bullet wound to the head above the eyebrow and died two days later.

Tawfic “Sam” Saleh was a part owner of Food World and was in the process of transferring it to the new owners, the victim and Saber Zaben, at the time of the shooting. Defendant had worked for Mr. Saleh about two years before this incident as a “helper carpenter.”

On the day of the shooting, Mr. Saleh first saw Defendant when he came into the store, very angry. Defendant asked for Mr. Saleh, who spoke to Defendant in the back of the store. When he saw Defendant walk out of the store, Mr. Saleh walked out also. As they talked outside, Defendant’s brother, Michael Francis, came outside, and appeared to be very angry. Michael had been arguing with the victim inside the store.

The victim came outside, and Michael exchanged words with him. Mr. Zaben and the victim’s wife also came outside, and all of them watched the argument. They tried to make Michael leave. Defendant then stepped back and lifted his shirt, and Mr. Saleh saw a gun. Defendant began shooting. The victim |2was shot in the head, and the others ran back inside. Mr. Saleh heard another shot that he thought was intended for him.

Everyone went to the office, then Mr. Saleh went back to look outside. He saw a green car with the trunk open, and he saw Michael grab the shotgun and put it in the trunk. Mr. Saleh never saw the victim do any threatening act.

Wagdan Hussein, Mr. Zaben’s wife, testified that she saw Michael come in the store and purchase two beers. Michael became very upset because he wanted the victim to package the two beers in separate bags. Michael began yelling and swearing, and he walked outside. Mr. Za-ben followed him outside to see why he was so mad. The victim tried to calm Michael and then asked him to leave and not come back. Mrs. Hussein testified that Defendant then pulled the gun and shot the victim. Mrs. Hussein identified Defendant as the shooter at trial.

Joshua Duruise, who was at the store at the time of the incident, testified that he saw Defendant hollering at Mr. Saleh outside the store on the day of the incident. According to Mr. Duruise, a man inside the store (Michael) was buying some beer and was yelling and complaining that the beer needed to be in two bags. A man behind the counter (Mr. Saleh) attempted to calm Michael and asked why he was so mad. When Michael threatened to go behind the counter and kick Mr. Saleh and then headed in that direction, “the guy behind the counter started to come out like he was going to fight him.” Mr. Duruise stated that the victim, who “was trying to make peace,” urged the customer to leave the store. Mr. Duruise stated that Defendant was outside, and the victim went outside. The victim was holding his baby, and he gave the child to his wife when “[h]e went outside to break them up[,] and he got shot.” Mr. Duruise testified that he did not see anyone pushed or hit but that he saw Defendant pull a gun out of his shirt and kill the Rvictim. Less than a minute passed between the time they went outside and the time the shot was fired.

Patrena Rubin, who was shopping at Food World at the time of the incident, testified that she saw Mr. Saleh ask a man where he was from, “trying to be nice to the customer[,] but the customer got upset.” The customer went outside, and Ms. Rubin went outside and got in her car. She heard a gunshot and saw the victim fall to the ground. Ms. Rubin identified Defendant as the shooter.

Andy Latiolais testified that he was walking into Food World when he saw a “guy having an altercation with some people. He was very loud, arguing. The other man was saying, ‘Leave, leave.’” The next thing Mr. Latiolais knew, a “guy in a big hat drew out a pistol and shot the [victim].” Mr. Latiolais heard another shot that “sounded close” and then heard a third shot. Although the victim and the other man (Michael) argued, the victim was keeping his distance, and Mr. Latiolais testified that he did not see anyone hit or push anyone else.

Michael Francis also testified at trial. He was charged with second degree murder of the victim and as a felon in possession of a firearm, but he had not yet gone to trial. Michael testified that when he and Defendant arrived at Food World on the day of the incident, Defendant left him to talk outside with Mr. Saleh, and Michael went inside to get some beer. According to Michael, a man in the store (the victim) asked Michael where he was from several times and followed him to his car outside. Mr. Saleh put his hands on Michael, “[a]nd he placed the little girl on [his] arm,” making Michael feel like he could not defend himself. Another man (apparently the victim) stood nearby with his hands on his pocket. Michael then heard a gunshot; he ran to the back seat of his car and grabbed a car jack to use as some type of protection.

RMichael testified that the victim was trying to pry something out of his pocket. He never saw what was in the pocket, and he was never concerned about his safety. However, Michael testified that Mr. Saleh and the victim were approaching him and Defendant in a manner that did not feel friendly and that he felt as if they were trying to agitate him or take something from him. Michael stated that there was no physical contact other than Mr. Saleh grabbing Michael’s arm.

At the time of his testimony, Michael was charged as a principal in another murder in Abbeville and with being a felon in possession of a firearm. He had a prior conviction of manslaughter.

Defendant and Michael were identified through photo lineups. Michael was arrested and charged as a principal to this murder, and he did not know where Defendant was after that time. Police conducted an extensive search for Defendant, who was finally located in Houston and transported back to Lafayette almost a year later, on July 8, 2009.

A grand jury indicted Defendant for second degree murder, a violation of La.R.S. 14:30.1. After a jury found Defendant guilty as charged, Defendant was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence.

Defendant now appeals his conviction, arguing that the evidence was insufficient to convict him, that his constitutional right to confront his accusers was violated by the trial court’s admission of the autopsy report, and that the trial court improperly advised him about the prescriptive period for filing post-conviction relief. We affirm Defendant’s conviction and sentence. Further, we order the trial court to inform Defendant of the correct prescriptive period of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days of the ^rendition of this opinion and to file written proof that Defendant received the notice into the record of these proceedings.

DISCUSSION

Eirors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. We find that there is one error patent which is also raised by Defendant in his third assignment of error.

Defendant contends that the trial court erred by improperly advising him about the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. The State agrees that the trial court did not properly advise Defendant about his post-conviction rights.

According to La.Code Crim.P. art. 930.8, the two-year prescriptive period for filing an application for post-conviction relief begins to run when the defendant’s conviction and sentence become final under the provisions of La.Code Crim.P. arts. 914 or 922. The trial judge advised Defendant at sentencing that he had “two years to file any post-conviction relief petitions you may choose to file in the future.” For this reason, the trial court is hereby ordered to inform Defendant of the correct prescriptive period of article 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof that Defendant received the notice into the record of these proceedings. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

Sufficiency of the Evidence

Defendant contends that the evidence was insufficient to find him guilty of second degree murder. Rather, he argues that the evidence showed that he shot the victim “in sudden passion or heat of blood immediately caused by provocation 1 ^sufficient to deprive an average person of his self-control and cool reflection.” Defendant believes he should have been found guilty of manslaughter, not second degree murder, because he “was provoked to the point ‘that would deprive the average person of self-control and cool reflection.’ ”

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The Jackson standard of review is now legislatively embodied in La. Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than ensuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). Our supreme court has stated:

17However, an appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ ‘the factfinder’s role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. [120], [134], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372, 378 (alteration in original).

“Second degree murder is the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily ham.” La.R.S. 14:30.1(A)(1). “It is well-settled that the act of pointing a gun at a person and firing the gun is an indication of the intent to kill that person.” State v. Thomas, 10-269, p. 7 (La.App. 3 Cir. 10/6/10), 48 So.3d 1210, 1215 writ denied, 10-2527 (La.4/1/11), 60 So.3d 1248, cert. denied, — U.S. -, 132 S.Ct. 196,181 L.Ed.2d 102 (2011) (citations omitted).

Defendant contends that the evidence supports a conviction of manslaughter. “Sudden passion” and “heat of blood” are not elements of the crime of manslaughter. “Rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed in the absence of these factors.” State v. Snyder, 98-1078, p. 4 (La.4/14/99), 750 So.2d 832, 837-38.

| ^Regardless of the words exchanged, “mere words or gestures, however offensive or insulting, will not reduce homicide from murder to manslaughter.” State v. Massey, 535 So.2d 1135, 1143 (La.App. 2 Cir.1988). See also State v. Mitchell, 39,202 (La.App. 2 Cir. 12/15/04), 889 So.2d 1257, writ denied, 05-132 (La.4/29/05), 901 So.2d 1063, (quoting State v. Conerly, 48 La.Ann. 1561, 21 So. 192 (1897)). “Further, an argument alone will not be a sufficient provocation in order to reduce a murder charge to manslaughter. State v. Miller, 98-642 (La.App. 3 Cir. 10/28/98); 720 So.2d 829, citing State v. Gauthier, 546 So.2d 652 (La.App. 4 Cir.1989).” State v. Charles, 00-1611, p. 4 (La.App. 3 Cir. 5/9/01), 787 So.2d 516, 519, writ denied, 01-1554 (La.4/19/02), 813 So.2d 420.
In reviewing the Defendant’s claim, this court must determine “if a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the mitigating factors were not established by a preponderance of the evidence.” State v. Hamilton, 99-523, p. 7 (La.App. 3 Cir. 11/3/99), 747 So.2d 164,168.

State v. Johnson, 06-623, pp. 8-9 (La.App. 3 Cir. 11/2/06), 941 So.2d 696, 702, writ denied, 06-3024 (La.9/14/07), 963 So.2d 995.

Five witnesses — Mr. Saleh, Mrs. Hussein, Mr. Duruise, Ms. Rubin, and Mr. Latiolais — all testified that Michael’s anger began the exchange. Although the details given in the witnesses’ testimony vary slightly, none of these five witnesses saw the victim act in any kind of threatening manner. Only Michael interpreted the victim’s actions as aggressive. The victim never had any interaction with Defendant; the argument did not even appear to involve him. The situation never escalated to a point that Michael was concerned for his safety. Nevertheless, Defendant pulled a gun and shot the victim. We find that the facts of this case do not establish the mitigating factors of “sudden passion” and “heat of blood.” The facts are very simple: Defendant took a pistol from his belt, pointed it at the victim, and shot him, and the victim died. We find the evidence sufficient to convict Defendant of second degree murder, and Defendant’s assignment of error lacks merit.

19Right to Confront Accusers

Defendant argues that his constitutional right to confront his accusers was violated when the trial court admitted the autopsy report over his objection. Additionally, he believes that this assignment of error cannot be adequately reviewed because the bench conference at which the issue was argued was not recorded.

The record shows that the State offered the autopsy report as Exhibit 13 to show the cause of death was a gunshot wound. A bench conference occurred off the record. When the record resumed, the court received the exhibit subject to Defendant’s objection and published it to the jury. Defendant now claims that the report was a testimonial statement that was inadmissible without the testimony of the individual who made the report according to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The record shows that the report was admitted for the purpose of showing the cause of death. Detective Wayne Angelle testified that he attended the autopsy and took photographs at it. According to Detective Angelle, he saw the bullet wound on the victim’s head above the eyebrow but no other wounds.

The Supreme Court recently held that a DNA profile was admissible without the testimony of the individual who created the profile. Williams v. Illinois, — U.S. -, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). Such evidence did not violate the Confrontation Clause “because that provision has no application to out-of-court statements that are not offered to prove the truth of the matter asserted.” Id. at 2228. The Court also found that the profile was “very different from the sort of extrajudicial statements, such as affidavits, depositions, prior testimony, and confessions, that the Confrontation Clause was originally understood to reach” because it was not obtained to provide evidence against the defendant. Id.

|inThe autopsy report in this case is likewise different from the documents intended to fall within the scope of the Confrontation Clause. The autopsy report had no bearing on the guilt vel non of Defendant. It simply identified the cause of death. No one disputed that the victim died from a gunshot fired by Defendant.

Even without the autopsy report in evidence, other evidence showed that Defendant fired a bullet into the victim’s head, and the victim died as a result. If it was error at all, allowing the autopsy report into evidence would be harmless error. This assignment of error lacks merit.

DECREE

Defendant’s conviction and sentence for second degree murder are affirmed. The trial court is hereby ordered to inform Defendant of the provisions of La. Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof in the record that Defendant received the notice.

AFFIRMED WITH INSTRUCTIONS.