text:
    Scott HAHN v. X-CEL AIR CONDITIONING, INC.
    No. 2012-CA-0236.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 2013.

      Craig Allen Gentry, Morris Bart, L.L.C., Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Nathan L. Schrantz, Daniel, Coker, Horton and Bell, Gulfport, MS, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

| jX-Cel Air Conditioning, Inc. seeks review of the judgment rendered by the Office of Workers’ Compensation judge finding that the claimant, Scott Hahn, was in the course and scope of his employment with X-Cel when he was injured in an automobile accident and that the injuries he sustained were such that he was entitled to indemnity benefits, medical benefits, and attorney’s fees. For the reasons set forth below, we affirm.

PROCEDURAL HISTORY

X-Cel Air Conditioning, Inc. filed a Disputed Claim for Compensation, Form 1008 with the Louisiana Office of Worker’s Compensation seeking a determination that its employee, Scott Hahn, was not in the course and scope of his employment when he was involved in an automobile accident. Mr. Hahn answered and filed a cross Disputed Claim for Compensation, Form 1008 alleging that he was in the course and scope of his employment; that he sustained multiple injuries in the automobile accident; and that he was entitled to indemnity benefits, medical benefits, and attorney’s fees. Following a trial, the Office of Workers’ Compensation judge rendered judgment in favor of Mr. Hahn. It is from this judgment that X-Cel appeals.

1 .FACTS

Scott Hahn was employed by X-Cel Air Conditioning, Inc. as an office manager at the company headquarters in Mandeville, Louisiana. At the time of the accident at issue, Mr. Hahn lived in Diamondhead, Mississippi and commuted daily to his job. In addition to his base salary, X-Cel paid Mr. Hahn $250 monthly to compensate him for the cost of fuel used in his private vehicle.

Mr. Hahn testified that on the morning of October 27, 2009, at his employer’s direction, he picked up a co-worker, Will Bryant, in Long Beach, Mississippi and was driving him to a job site in Metairie, Louisiana. En route to the job site, they were involved in an automobile accident in New Orleans East. Mr. Hahn went to the emergency room at Ochsner Medical Center the next day, complaining of pain in both of his ankles, his left knee, his left wrist, and his back.

After his emergency room visit, Mr. Hahn sought treatment on November 2, 2009 from his internist, Dr. Gloria Kang, complaining of back pain, left wrist pain, left knee pain, and bilateral ankle pain. At this visit, Dr. Kang diagnosed Mr. Hahn with a lumbar strain/sprain, left wrist sprain, left knee contusion, right ankle sprain, and left ankle sprain. He continued treatment with Dr. Kang through April of 2010, at which time due to his continued complaints of pain, she referred him to an orthopedist, Dr. Kenneth Adat-to. Dr. Adatto testified that as part of his evaluation of Mr. Hahn’s injuries, he ordered an MRI of Mr. Hahn’s lumbar spine. This MRI showed a herniated disc at the L4-5 level. Dr. Adatto first attempted to alleviate Mr. Hahn’s pain through injections. When this was unsuccessful, Dr. Adatto recommended that Mr. Hahn undergo an anterior lumbar fusion in an attempt to correct the problem and thereby relieve his back pain.

Is At trial, Mr. Hahn contended that he is due indemnity and medical benefits. He maintained that he was injured while in the course and scope of his employment with X-Cel, as he was driving Mr. Bryant to a job site at the specific instruction of his employer, Mr. Roland Mayeaux. Mr. Mayeaux testified that he did not instruct Mr. Hahn to transport Mr. Bryant, and that Mr. Hahn was not in the course and scope of his employment when he was involved in the accident. He asserted that Mr. Hahn was voluntarily pursuing a mission without the instruction or permission of his employer.

With respect to benefits, X-Cel argued that Mr. Hahn delayed seeking benefits and that this supports its position that his injuries are unrelated to this accident. Mr. Hahn testified that he did not initially seek workers’ compensation benefits for two reasons: first, because he thought that the injuries would heal and he would not need to file for benefits; and second, because he thought that if he filed, he would be fired from X-Cel. To support this second assertion, Mr. Hahn maintained that after the accident, beginning in April 2010, Mr. Mayeaux made the work environment hostile to him, changed Mr. Hahn’s pay from salaried to hourly, reduced his hours, and ultimately, “told him to leave” in June of 2011.

Mr. Mayeaux admitted that he changed Mr. Hahn’s status to that of an hourly employee and then cut his hours. He explained that the reason for this change was due to a slow-down in business at X-Cel. Mr. Mayeaux further asserted that Mr. Hahn turned down two full-time positions, one offered in December 2010 for a full-time sales position on the Gulf Coast, and the other offered in July 2011 for a full-time position with benefits in Baton Rouge. Mr. Hahn testified that he turned down the sales position because he was physically |4unable to handle the job, and that he never received the offer for the Baton Rouge job.

The workers’ compensation judge found that Mr. Hahn was in the course and scope of his employment at the time of the accident and X-Cel does not contest this finding on appeal. Rather, X-Cel asserts that Mr. Hahn has failed to prove that his back injury and subsequent need for surgery are related to the October 27, 2009 accident. X-Cel further asserts that Mr. Hahn failed to prove that he was entitled to either temporary total disability benefits or supplemental earnings benefits, and that the workers’ compensation judge erred in awarding attorneys’ fees.

ISSUES

I. Whether Mr. Hahn proved by a preponderance of evidence that his back injury and corresponding surgery recommendation were causally related to the October 27, 2009 accident;
II. Whether Mr. Hahn proved by clear and convincing evidence that he was entitled to temporary total disability benefits and, alternatively, whether he proved by a preponderance of evidence that he was entitled to supplemental earnings benefits;
II. Whether Mr. Hahn was entitled to an award of attorney’s fees.

STANDARD OF REVIEW

It is well settled that factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Winford v. Conerly Corp., 2004-1278, p. 15 (La.3/11/05), 897 So.2d 560, 569; Masinter v. Akal Sec., 2005-1236, p. 3 (La.App. 4 Cir. 6/7/06), 934 So.2d 201, 204. In applying the manifest error standard, the appellate court must determine not whether the fact finder was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Bell v. Mid City Printers, Inc., 2010-0818, p. 7 (La.App. 4 Cir. 12/22/10), 54 So.3d 1226, 1232 (citing Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 6 (La.7/1/97), 696 So.2d 551, 556). Thus, if the evidence contained in the record on appeal supports the factual determinations of the trier of fact, we are required to affirm the findings.

DISCUSSION

I. The workers’ compensation judge did not err in finding that Mr. Hahn proved by a preponderance of evidence that his back injury and corresponding surgery recommendation were causally related to the October 27, 2009 accident.

Claimants in a workers’ compensation proceeding have the initial burden of proof as to causation. Dean v. K-Mart Corp., 97-2850, p. 3(La.App. 4 Cir. 7/29/98), 720 So.2d 349, 352. To recover workers’ compensation benefits, an employee must show by a preponderance of the evidence that he received a personal injury by an accident arising out of and in the course and scope of his employment. Hoy v. Gilbert, 98-1565 (La.3/2/99), 754 So.2d 207, 209. He must also show that his injury necessitated medical treatment or rendered the employee disabled, or both. Thibodeaux v. Sewerage & Water Bd. of New Orleans, 2001-0713, p. 3 (La.App. 4 Cir. 3/6/02), 812 So.2d 843, 845. Once the injured employee carries his initial burden of proving a causal connection between the accident and his disabling condition, the burden shifts to the employer to produce evidence that it is more probable than not that the injury was not caused by a work related accident. Id. at pp. 3-4, 812 So.2d at 845.

X-Cel contends that Mr. Hahn’s lack of complaints of back pain at doctor visits between December 2009 and April 2010 precludes a finding of causation. We disagree.

In the instant case, in his reasons for judgment, the workers’ compensation judge specifically found that Mr. Hahn was in the course and scope of his | fiemployment and on a specific mission for his employer when he was involved in the automobile accident on October 27, 2009. See, McLin v. Industrial Specialty Contractors, Inc., 2002-1539, pp. 9-10 (La.7/2/03) 851 So.2d 1135, 1143. X-Cell does not raise this issue on appeal. X-Cel does, however, challenge the finding of the workers’ compensation judge that Mr. Hahn’s injuries are causally related to this accident and that he is entitled to the benefits awarded to him.

At trial, Mr. Hahn presented the testimony (reports) of his treating physicians, Dr. Kang and Dr. Adatto, both of whom treated Mr. Hahn for his injuries. X-Cel introduced into evidence the report of Dr. Gordon Nutik, an orthopaedist who was retained by X-Cel to provide them with a Second Medical Opinion. Dr. Nutik reviewed Mr. Hahn’s medical records and examined Mr. Hahn on one occasion. The Workers’ Compensation Judge explicitly found that “the medical evidence, especially that of the treating physician and orthopedic surgeon, Dr. Kenneth Adatto, clearly shows Hahn’s current back injury, condition, is as a result of the work-related automobile accident of October 27, 2009

The Workers’ Compensation Judge found that Mr. Hahn carried his burden of proof that he was injured while in the course and scope of his employment and that this injury necessitated medical treatment. The burden then shifted to X-Cel to prove that it was more probable than not that the injury was not caused by a work-related accident. The workers’ compensation judge found that X-Cel failed to carry this burden.

As a general rule the testimony of a treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. Duplessis v. Tulane University Medical Center, 2010-0267, p. 8 (La.App. 4 Cir. 8/25/10), 47 So.3d 992, 997; Williams v. Wal-Mart Stores, Inc., 2000-0863, p. 6 (La.App. 4 Cir. 5/16/01), 787 So.2d 1134, 1137. The trial judge found the testimony of the treating physicians to be more persuasive than that of the SMO of Dr. Nutik. We do not find that the trial judge’s ruling was manifestly erroneous or clearly wrong. This assignment of error is without merit.

II. Mr. Hahn proved by a preponderance of evidence that he was entitled to supplemental earnings benefits.

In this case, the Workers’ Compensation Judge rendered judgment in favor of Mr. Hahn “for indemnity benefits from the date of the accident through present and beyond, subject to any credit the defendants may be entitled.” The Workers’ Compensation Judge did not delineate whether Mr. Hahn was entitled to temporary total disability benefits or supplemental earnings benefits. Therefore, we must determine whether either type of benefits is available to Mr. Hahn in this case.

Louisiana Revised Statute 23:1221(1)(c) provides that a claimant who seeks workers’ compensation benefits on the basis that he is temporarily totally disabled must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of its nature, including employment while working in pain. Williams v. Children’s Hospital, 2007-0464, p. 3 (La.App. 4 Cir. 1/23/08), 996 So.2d 291, 293. Mr. Hahn did not present any evidence suggesting that he was totally disabled from work. Dr. Kang restricted him to light duty, and Dr. Adatto restricted him from heavy lifting. Mr. Hahn continued to work at X-Cel after the accident. Thus, he has failed to prove that he is entitled to temporary total disability benefits.

| ^Supplemental earnings benefits are intended to compensate the injured employee for the wage-earning capacity he has lost as a result of an accident. Bolton v. Grant Parish School Bd., 98-1430, p. 5 (La.3/2/99), 730 So.2d 882, 885-886; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. An employee is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in his inability to earn ninety percent or more of his pre-accident wage. La. R.S. 23:1221(3)(a); Id. Supplemental earnings benefits are considered a lesser included element of temporary total disability benefits. Bolton at p. 5, 730 So.2d at 886. The employee bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn that amount. Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989).

As in Bolton, Mr. Hahn did not specifically present evidence that he was unable to earn ninety percent or more of his pre-accident wage. However, he presented evidence that X-Cel changed his work status to hourly, cut his hours, and then let him go. Mr. Mayeaux, on behalf of X-Cel, contends that the company offered Mr. Hahn two jobs which Mr. Hahn turned down. Mr. Hahn testified that he was only offered a sales position on the Gulf Coast, and that he was physically unable to perform the duties that this job would entail. He testified that as a salesman, he would have to climb ladders, go on roofs, and climb over I-beams and duct-work in order to bid jobs. Mr. Mayeaux testified that Mr. Hahn could use service technicians to look at the jobs and that Mr. Hahn could then quote the jobs |9based on the information received from the technicians. The Workers’ Compensation Judge determined that considering the totality of the testimony presented, Mr. Hahn’s testimony was the most credible. The Workers’ Compensation Judge further noted that Mr. Mayeaux presented no evidence to support X-Cel’s position. X-Cel has failed to carry its burden on this issue.

We find that Mr. Hahn is entitled to supplemental earnings benefits.

III. Mr. Hahn is entitled to an award of attorney’s fees.

Louisiana Revised Statute 23:1201(F) states in pertinent part, “Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty ... for each day in which any and all compensation or medical benefits remain unpaid ... together with reasonable attorney fees ...” (Emphasis ours.) Neither party has appealed the fact that the workers’ compensation judge did not assess any penalties. As such, we will not review whether penalties were warranted.

The record in this case is void of any evidence of any payments made to Mr. Hahn. The only reference to any payment made is in the judgment which states that the award of indemnity benefits is “subject to any credit the defendants may be entitled.” Mr. Hahn asserts that the Workers’ Compensation Judge’s award of $5,000.00 in attorney’s fees is warranted as X-Cel failed to reasonably controvert Mr. Hahn’s claim for benefits.

The determination of whether an employer in a workers’ compensation case should be cast with penalties and attorney fees is essentially a question of fact Imsubject to the manifest error or clearly wrong standard of review. Avenue Surgical Suites v. Jo Ellen Smith Convalescent Ctr., 2011-0026, p. 12 (La.App. 4 Cir. 5/18/11), 66 So.3d 1103, 1111 (citing James v. A & B Builders, 09-0781, p. 8 (La.App. 1 Cir. 10/23/09), 29 So.3d 541, 546).

When an employer has failed to pay worker’s compensation benefits, the proper standard of review for that decision is whether the employer reasonably controverted the claim. Branch v. New Orleans Saints, 2009-910, p. 9 (La.App. 5 Cir. 2/23/10), 31 So.3d 627, 632, writ denied, 2010-0769 (La.6/4/10), 38 So.3d 304. A claim for worker’s compensation benefits is reasonably controverted if the employer has some valid reason or evidence upon which to base his denial of benefits. Id.

In Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 890, the Louisiana Supreme Court held that statutory penalties and attorney’s fees shall be awarded if the employer or insurer fails to timely pay benefits due the claimant pursuant to La. R.S. 23:1201 unless: (1) the claim is reasonably controverted or (2) such nonpayment results from conditions over which the employer or insurer had no control. In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Id. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or |,,medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed. Id.

The question, therefore, is whether X-Cel possessed factual and/or medical information to reasonably controvert Mr. Hahn’s claim for timely and accurate payment of benefits. The Workers’ Compensation Judge found that Mr. Mayeaux did not present a valid reason or evidence upon which to base denial of benefits to Mr. Hahn. In his reasons for judgment, the Workers’ Compensation Judge determined that Mr. Mayeaux was not a credible witness. He also clearly discounted Mr. Mayeaux’s testimony that he never directed Mr. Hahn to give Mr. Bryant a ride to work and that he never gave Mr. Hahn permission to use his private vehicle for company business at any time. After a thorough review of the record, we cannot say that the workers’ compensation judge was manifestly erroneous or clearly wrong in awarding Mr. Hahn attorney’s fees.

CONCLUSION

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

AFFIRMED


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Willie GEORGE.
    No. 2012-KA-0204.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana/Appellee.
    Frank G. DeSalvo, Brigid Collins, Frank G. DeSalvo, APLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

11 Defendant-appellant, Willie George, appeals the trial court’s denial of his Motion for New Trial, in which he contends he was unaware of, and thus denied, his right to conflict free counsel. Finding no error in the trial court’s ruling and for the reasons that follow, we affirm.

PROCEDURAL BACKGROUND

Defendant was charged by a bill of information with one count of unlawful distribution of methylenedioxymethampheta-mine (“MDMA”) in violation of La. R.S. 40:966(A)(2) and one count of unlawful possession of a firearm while in possession of a controlled dangerous substance in violation of La. R.S. 14:95(E). The same bill of information also charged Charlton Porter (“Porter”) with possession of MDMA with the intent to distribute in violation of La. R.S. 40:966(A)(2).

Defendant and Porter appeared before the trial court for arraignment and pled not guilty, with separate counsel; however, when they appeared for their January 15, 2009 motion hearing, they were represented by the same attorney, Hilliard C. Fa-zande II (“Fazande”). Fazande filed several pretrial motions, |2including a motion to suppress statement, motion to suppress identification, and a motion for preliminary hearing. After numerous continuances, these matters came were heard on November 12, 2009, and the trial court found probable cause to substantiate the charges and denied the motions to suppress as to both defendants, George and Porter.

On February 3, 2010, Fazande filed a motion for severance on behalf of defendant and motion to withdraw from representing Porter. The motion for severance alleged that defendant and Porter’s defenses were antagonistic to each other and that Porter had attempted to make defendant “perjure himself at trial.” The trial court granted both motions on February 5, 2010, and assigned new counsel, Jason Williams, to represent Porter.

Defendant’s case proceeded to trial. On April 21, 2010, the jury returned a verdict of guilty on both counts. Fazande filed motions for new trial and for pre-sentence investigation. After several continuances, Fazande filed a motion to withdraw as attorney of record based on defendant’s failure to communicate and cooperate with him. The trial court granted Fazande’s motion to withdraw and thereafter, Frank DeSalvo (“DeSalvo”) enrolled as counsel of record for defendant.

DeSalvo filed a motion for new trial, alleging that defendant was unaware of his right to conflict free counsel, that Fazande should have also withdrawn from representing defendant, or that the trial court “should have determined that each defendant had waived his right to conflict free counsel before allowing the defense to proceed.” The trial court denied the motion for new trial on September 29, |.<¡2010, holding that since Fazande had withdrawn from representing the codefendant Porter prior to trial, there was no conflict. The trial court further reasoned there was no allegation that an actual conflict of interest existed or was demonstrated at trial.

After denying the motion for new trial and prior to sentencing, DeSalvo took a note of evidence from Fazande to document the record for appeal as to the advice, if any, Fazande gave defendant regarding to his right to conflict free counsel.

FACTUAL BACKGROUND

Although the facts of the case are not in dispute or necessary for the determination of the issue presented, a brief factual background is provided in order to illustrate the conflict issue.

The charges against defendant arise out the events occurring on the night of June 22, 2008. Officer Tony Mitchell (“Officer Mitchell”) and Officer William Torres (“Officer Torres”) of the New Orleans Police Department, Special Operations Division, testified that they were patrolling in a marked police vehicle in the Sixth Police District when they responded to a call involving gunshots fired in the 8200 block of Thalia street. The officers testified that, as they approached the area where the gunshots had been fired, they observed a Nissan Armada parked on Thalia Street with the engine running. Both officers testified that they observed Porter come out of a Thalia Street residence, walk toward the passenger side of the Nissan and receive a plastic bag containing brightly colored pills through the ^passenger side window from the defendant. The officers exited the police car and approached the defendant’s vehicle. Officer Mitchell observed a clear plastic bag containing brightly colored objects which defendant was attempting to put into the center console of defendant’s vehicle, where he also observed a .40 caliber Glock handgun. After their arrest, Officer Torres searched Porter and obtained another smaller plastic bag of brightly colored objects in his front right pocket.

At trial, the State and the defendant stipulated that lab results of the brightly colored pills recovered on June 22, 2008, from the Nissan and Porter tested positive for MDMA, commonly known as Ecstasy.

DISCUSSION

Defendant’s sole assignment of error is that the trial court erred in denying his motion for new trial on grounds that he was deprived of his constitutional right to conflict free counsel. In its Ruling which denied defendant’s motion, the trial court reasoned, in part:

Defendant has filed a motion for new trial claiming he did not know he was entitled to conflict free counsel. While Mr. Fazande represented both clients initially, on February 5, 2010, this court granted Mr. Fazande’s motion to withdraw from representing the co-defendant, Mr. Porter. At the time that this defendant went to trial, there was no conflict, nor has the defendant alleged any actual conflict of interest existing or demonstrated at trial.
In State v. Salinas, 97-716, [pp.] 8-9 (La.App. 3 Cir. 10/29/97)[,] 703 So.2d 671, 676, the Third Circuit summarized the law on representing multiple clients as follows:
Is-.. “multiple representation is not per se illegal and does not violate the Sixth Amendment to the United States Constitution or Article I, [§ 13], of the Louisiana Constitution unless it gives rise to a conflict of interest.” State v. Kahey, 436 So.2d 475, 484 (La.1983). Where there has been no objection to the multiple representation prior to or during trial, the defendant must “establish that an actual conflict of interest adversely affected his counsel’s performance” in order to establish a claim of ineffective assistance of counsel in violation of the Sixth Amendment. State v. Lobato, 621 So.2d 103 (La.App. 2 Cir.1993). The mere “possibility” of conflict is insufficient to impugn a criminal conviction; the defendant must show that his counsel actively represented conflicting interests. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

It is well settled that the right of a criminal defendant to the assistance of counsel during the proceedings against him is a cornerstone of our legal system. State v. Franklin, 400 So.2d 616, 620 (La.1981). To be more than just a hollow right, our law requires that assistance of counsel be effective. Id. As the trial court recognized, our jurisprudence is equally well settled that the mere possibility of a conflict is insufficient to establish that an attorney’s performance was adversely affected. See: State v. Holmes, 99-0898 (La.App. 4 Cir. 11/8/00), 791 So.2d 669, writ denied, 01-2205 (La.6/7/02), 817 So.2d 1143; State v. Serpas, 485 So.2d 999 (La.App. 4 Cir.1986); State v. Ross, 410 So.2d 1388 (La.1982).

This Court noted in Holmes that a defendant must prove both an actual conflict of interest and prejudice in order to establish a claim of ineffective assistance of counsel. Id., p. 10, 791 So.2d at 682. An actual conflict exists if the | (¡defense attorney owes duties to a party whose interests are adverse to those of the defendant. Id. Actual conflicts of interest that affected counsel’s performance must be established by specific instances in the record, and the mere possibility of divided loyalties is insufficient proof of actual conflict. Id., p. 26, 791 So.2d at 691-692, citing, State v. Lobato, 621 So.2d 103 (La.App. 2 Cir.1993). The burden of proving an “actual conflict of interest,” rather than a “mere possibility of conflict,” rests upon the defendant. State v. Carter, 10-0614, p. 7 (La.1/24/12), 84 So.3d 499, 509-510, reh’g denied (3/9/12), cert. denied, — U.S. —, 133 S.Ct. 209, 184 L.Ed.2d 40 (2012)

In a pre-trial context, regardless of how the conflict of interest issue arises, the trial court has two options to avoid a conflict of interest: appoint separate counsel or take adequate steps to ascertain whether the risk of a conflict of interest is too remote to warrant separate counsel. State v. Cisco, 01-2732, p. 17 (La.12/3/03), 861 So.2d 118, 130 (Citations omitted). Failure to do one or the other in a case in which an actual conflict exists requires reversal. Id.

The Cisco court defined an “actual conflict” as follows:

If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interest of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to the other client.

Id., p. 18, 861 So.2d at 130 (Citations omitted).

Notably, as in the instant case, “if the objection is made to the claimed conflict after trial, the defendant must also show he was actually prejudiced.” Id., 01-2732 p. 17, 861 So.2d at 130, fn. 18, (Citations omitted, emphasis supplied); State v. Montegut, 618 So.2d 883, 888 (La.App. 4 Cir.1993) (if the defendant fails to raise the issue until after trial, he must prove prejudice in addition to actual conflict of interest). Thus, if the issue of counsel’s alleged conflict of interest is not raised until after trial, “the defendant must prove that an actual conflict of interest adversely affected his lawyer’s performance.” State v. Reeves, 06-2419, p. 179 (La.5/5/09), 11 So.3d 1031, 1082 (Citations omitted); Carter, supra, p. 41, 84 So.3d at 509, fn. 3 (Citations omitted).

In this matter, the record does not reveal any instance where defendant’s counsel was burdened with a conflict of interest, or where his counsel’s performance adversely affected his representation. Rather, the record indicates that, once defense counsel informed the court as to the possibility of a conflict, the matter was resolved when defendant’s counsel withdrew from representing codefendant Porter and the cases were severed. The joint representation ended when Fazande withdrew from representing Porter and there is no evidence reflecting a continuing conflict of interest thereafter.

Defendant claims that he need not show that he was actually prejudiced by Fazande’s performance because a conflict of interest of joint representation was raised prior to trial by Fazande’s motion to withdraw and motion for severance. Defendant further argues that trial court failed to inform defendant of his right to conflict free counsel and investigate whether the risk of conflict of interest warranted separate counsel. Even assuming that Fa-zande’s pre-trial motions are | (¡sufficient to raise a conflict of interest on defendant’s behalf, based upon review of the record it appears that the trial court took the appropriate steps to ascertain if a conflict of interest existed.

Prior to defendant’s sentencing, a note of evidence was taken from Fazande by defendant’s new counsel, DeSalvo, and the following colloquy took place between Fa-zande and the trial court:

The Court: Just a couple things. Mr. Fazande, do you remember on the day of the arraignment that I called to your attention that there may have been a conflict in this case right?
A. That is correct, your Honor.
The Court: Do you also remember that I asked you just to consult with both of the gentlemen and make them aware of what your position was and what you legal opinion was regarding the possibility of representing them both?
A. I remember that very clearly.
The Court: At arraignment my remembrance of it and I think it can be confirmed by the record is that you said that you had spoken with them and you felt that there was no conflict.
A. That is absolutely correct, your Honor.
The Court: Subsequent to that as we proceeded through motions you filed a Motion to Sever saying that during your course of investigation it came to your attention that they may have defenses antagonistic towards each other; right? A. That is correct, your Honor.
The Court: ... [I]n light of that I granted a motion to sever and you elected to represent one of the defendants, Mr. Willie George; is that correct?
A. That is correct, your Honor.
The Court: But you are acknowledging at this time that this Court lived up to its duty of initially making you aware of the possibility of a conflict, asking you to investigate it and following that you responded to the Court that you did such an investigation.
|9B. Your Honor, that is a true and accurate representation of what occurred in this case.

The record in this matter reflects that, at the time of their arraignment, Porter was represented by Edward Rantz solely for purposes of the arraignment. It is unclear whether defendant was represented during the arraignment as no counsel is identified for him, although the minute entry for that date reflects that notice was sent to “defense counsel.” When Porter and defendant next appeared in court for hearings on motions, both were represented by Fazande. While the trial court appears to have mistaken as to when the trial court discussed the potential conflict of interest in the joint representation, Fa-zande clearly testified in the note of evidence that the court did “[call] to his attention that there may have been a conflict in this case.”

The record further reflects that Fazande subsequently consulted with defendant and Porter and found there was no conflict of interest in jointly representing them at that time. Thereafter, during the course of investigating and preparing for trial, Fazande became aware that defendant and Porter’s defenses were antagonistic to each other and moved to sever the trial and withdraw from representing Porter. The trial court granted Fazande’s motions and thus, it appears that the trial court took adequate measures to insure that any conflict was resolved by appointing separate counsel for Porter and severing the trial.

We likewise note that the failure of the trial court to inquire into the joint representation on the record does not rise to the level of a denial of a constitutional right and is subject to a harmless error review. State v. Miller, 00-0218, p. 14 (La.App. 4 Cir. 7/25/01), 792 So.2d 104, 115, fn. 4; Holmes, supra, at p. 694. Therefore, the failure of the trial court to observe the technical requirements of La. C.Cr.P.10 art. 517 does not mandate an automatic reversal. Defendant still must prove that an actual conflict of interest existed and that prejudice resulted.

Defendant claims that Fazande had an actual conflict in representing him after he withdrew from representing Porter because he did not advise defendant of his right to conflict free counsel. To support this claim, defendant relies on Fa-zande’s testimony from the September 26, 2011, note of evidence that he did not understand what the right to conflict free counsel meant. Upon a reading of the entire transcript, however, it appears that Fazande, at the trial court’s instruction, did speak with defendant and Porter about possible legal issues presented by his jointly representing them both. Fazande also testified that while initially he felt there was no conflict of interest, over the course of his joint representation he became aware that defendant and Porter’s defenses were antagonistic and thus created a conflict. After becoming aware of the potential issues, Fazande stated that he advised defendant of this and filed a motion for severance. The motion specifically alleged that severance was required because each defendant intended to testify at trial, and a joint trial would require each to defend against the state and each other. Such a situation would constitute a conflict of interest because it would have required Fazande to cross-examine his current client. See, e.g. State v. Tart, 93-0772, p. 19 (La.2/9/96), 672 So.2d 116, 125 (a conflict of interest can arise when an attorney is required to cross-examine a witness who is testifying against the defendant and who was or is a client of the attorney). Thus, although Fazande ludid express some confusion over the phrase “conflict-free counsel,” a review of the transcript and the motion for severance indicates that Fa-zande did advise them of the potential conflict of interest arising out his joint representation and filed the motion to withdraw and sever to avoid such a conflict.

Defendant further argues that Fa-zande’s failure to elicit testimony as to Porter’s culpability demonstrates that his loyalties were divided between Porter and defendant and thus establishes an actual conflict. Louisiana courts have consistently held that a defense attorney required to cross-examine a current or former client on behalf of a current defendant suffers from an actual conflict. Cisco, supra, p. 17, at 861 So.2d at 129. Here, however, Fazande was not called upon to cross-examine Porter or any other his former clients in the State’s prosecution. Thus, because Porter was not called to testify at defendant’s trial, Fazande was not in situation in which he owed a duty to a party that was adverse to defendant’s interests. Accordingly, we find that defendant has not shown an actual conflict of interest on the part of his attorney, or that he was actually prejudiced, and therefore, his conviction and sentence are affirmed.

AFFIRMED

      . [Rev’d on other grounds, State v. Salinas, 97-2930 (La.9/25/98), 719 So.2d 1035]

      . La.C.Cr.P. art. 517 provides:
      A. Whenever two or more defendants have been jointly charged in a single indictment or have moved to consolidate their indictments for a joint trial, and are represented by the same retained or appointed counsel or by retained or appointed counsel who are associated in the practice of law, the court shall inquire with respect to such joint representation and shall advise each defendant on the record of his right to separate representation.
      B. Unless it appears that there is good cause to believe that no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant’s right to counsel.


author: ROSEMARY LEDET, Judge.

text:
    Tina Katherine ST. PHILIP as the Natural Tutrix of the Minor Child, Luke Thomas St. Philip v. Jeffrey Bryan MONTALBANO.
    No. 2012-CA-1090.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 2013.

      Jerri G. Smitko, Jacques A. Beebe, Catherine R. Gauthier, Smitko Law, APLC, Houma, LA, for PlaintiffiAppellant.
    Eric A. Bopp, Edward S. Bopp, A Law Corporation, Mandeville, LA, for Defen-danVAppellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

| iThis is a child custody dispute. The narrow issue presented is whether the trial court erred in stating in the judgment that the minor child could, in the future, make the decision on whether he would like to change his surname. For the reasons that follow, we find no error in the trial court’s judgment and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2008, Tina St. Philip filed a Petition and Rule for Child Custody and Support relating to the minor child, “LStP.” In her petition, she averred that she is the biological mother of LStP; that LStP’s date of birth is May 14, 2008; and that DNA testing established that the defendant, Jeffrey Montalbano, is the biological father of LStP. Ms. St. Philip averred that she “has the physical custody and is entitled to the sole custody of the child.” She sought an award of sole custody and child support.

At some point, Ms. St. Philip filed a Petition for Domestic Abuse against Mr. Montalbano. The trial court requested a child custody evaluation and appointed Dr. Amy Dickson to conduct the evaluation. A two day hearing was hheld on June 17, 2011, and June 28, 2011, on the motion to establish custody. Although the record reflects that witnesses were called to testify and evidence was presented, the record on appeal includes neither the transcript of the testimony nor the exhibits introduced. Rather, the record includes only the portion of the transcript setting forth the trial court’s oral reasons for judgment. The trial court’s ruling included the following detailed custody plan:

• Mr. Montalbano and Ms. St. Philip will share joint custody.
• The parties will be co-domiciliary parents. At all times all major decisions are to be made by both parents. Any conflicts between the parents are to be reviewed by the Court. All major decisions are in reference to school, education, medical, mental health, treatment or counseling, extracurricular activities and religious aspects.
• The parent with visitation will make day to day decisions unless major decisions as previously noted.
• The minor child will attend Messiah Montessori school in Houma, La. The Court noted that the minor child will be in the three year old program shortly.
• Beginning August 1, 2011, Mr. Montal-bano will pick up the minor child every other weekend on Thursdays at 3:00 p.m. and return the minor child on Mondays at 9:00 a.m. during the school year.
• Mr. Montalbano will have an additional six days of visitation during September and October and remove the child out of school for those days. It will begin on Thursday at 3:00 p.m. and return the following Saturday at 9:00 am Mr. Montalbano will also have this available in February March and April, 2012.
• If during Ms. St. Philip’s visitation she wants to take the child out of school for days, she may do so.
• The holiday visitation will be equally shared and alternated each year.
la* Mr. Montalbano will have summer visitation of three weeks in June and three weeks in July. The Court wants the parents to coordinate the summer plan.
• The minor child shall have a notebook or family wizard should be used at all times and be able to speak with the other parent on the telephone. The Court adopted Dr. Dickson’s recommendation of a notebook to inform the other parent.
• The Court does not feel that mental health counseling is necessary.
• The Court read the co-parenting guidelines into the record.
• All information regarding the minor child should be shared in a timely manner.
• In regards to the minor child’s name being changed from St. Philip to Mon-talbano, the Court does not see an obligation at this time.
• The parties need to work together on Mr. Montalbano’s visitation with the minor child to be at the same time he has visitation with his other minor child [J.M.]
• The Court states that the parties are to alternate weeks for the remainder of the summer. Mr. Montalbano’s week shall start on July 8, 2011. The minor child shall be in school on August 1, 2011.

The above ruling was incorporated into a judgment, which was signed on January 9, 2012. As discussed below, the pertinent portion of that judgment is the provision that states:

IT IS FURTHER, ORDERED, ADJUDGED AND DECREE that at this time the minor child’s name shall remain as [LStP].... Additionally, there shall be no discussion with the minor child regarding his name, that when the minor child attains an older age to make a decision, he can decide., Additionally, in line with co-parenting, the parties are admonished not to mention any child-sharing, court related, financial communication, or name change issues in front of the minor child. Additionally, the minor child should not be involved in any of these hearing[s] nor should the parent have any communications regarding adult issues in front of the minor child. Neither parent shall do or say anything in the presence or hearing of the minor child that would diminish his love or affection |4for the other parent, and the parents shall not allow others to do the same.

The record also reflects that several consent judgments were entered into between the parties both before and after the January 9, 2012 judgment from which this appeal was taken.

On appeal, Ms. St. Phillip asserts only one assignment of error; namely, she asserts that the trial court’s “vague ruling” that the minor child could, in the future, make the decision on whether he would like to change his surname is contrary to the provisions of Louisiana law providing for the name change of a minor. Mr. Montalbano answers the appeal asserting two assignments of error. First, he contends that the trial court erred in ordering that transportation for the visitation of the child be paid by him 60% of the time and by Ms. St. Philip 40% of the time. Second, he contends that the trial court erred in failing to designate him as the domiciliary parent or, in the alternative, in failing to provide for an equal sharing of physical custody of the child. We separately address the assignments of error raised by the parties.

I.

The first issue is whether the trial court erred in including in the judgment signed on January 9, 2012 (originally rendered orally on June 28, 2011.) that the minor child could, in the future, make the decision on whether he would like to change his surname. Ms. St. Philip argues that the trial court’s judgment is contrary to the provisions of Louisiana law regarding the change of a minor child’s surname. Since she and Mr. Montalbano were never married, she submits that it was proper for her to include only her surname on the child’s birth certificate under the vital statistics law. La. R.S. |540:34. In the event the child should decide to change his surname, she further submits that both parents must consent and sign the petition for name change. La. R.S. 13:4751. (She acknowledges that there are several exceptions in which both parents are not required to consent, but she contends that none of those apply here.) For these reasons, she argues that it was error for the trial court to declare the child could decide, at an older age, if he would like to change his surname. She thus requests that this court amend the trial court’s ruling regarding this issue “to include the appropriate provisions provided by law.”

LMr. Montalbano counters that the wording of the trial court’s ruling reflects no intent to order any change in the minor child’s surname — it states that “at this time the minor’s name shall remain [LStP].” He points out that the trial court carefully instructed the parties that any decision to change the minor child’s surname should be undertaken not separately, but jointly. He further points out that the trial court spoke not in definite terms, but rather in tentative, speculative terms. He still further points out that the trial court’s ruling does not dispense with the otherwise applicable governing statutory requirements for changing a minor’s surname. He thus contends that it cannot be concluded the trial court abused its discretion or legally erred in its ruling. We agree.

In its ruling, the trial court alludes to a potential future event — the minor child making the decision, in the future, to change his surname. Although the trial court’s judgment states that “the minor child could decide,” this statement, when read in context, cannot be read as dispensing with the otherwise applicable statutory requirements for changing a surname. Accordingly, we decline Ms. Philip’s request to amend the trial court’s judgment.

II.

Mr. Montalbano’s first assignment of error is that the trial court erred in ordering that transportation for the visitation of the child be paid by him 60% of the time and by Ms. St. Philip 40% of the time. He contends that Ms. St. Philip should provide all transportation. The ruling containing this order, which Mr. Montalbano seeks review of in his answer, is a stipulated judgment dated February 14, 2012. However, the only notice of appeal filed |7in the instant case was the one filed by Ms. St. Philip seeking review of the written judgment signed on January 9, 2012.

An appellee’s answer is deemed to be “equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer.” La. C.C.P. art. 2133. An appellee that files an answer thus, in effect, is an appellant insofar as matters sought to be raised on appeal by that answer. “An order of appeal must be obtained for each final judgment the appellant seeks to appeal.” Winn v. State, Dep’t of Natural Resources, Office of Conservation, 47,329, p. 3 (La.App. 2 Cir. 8/8/12), 104 So.3d 16, 18 (citing Bamburg v. St. Francis Medical Center, 45,024 (La.App.2d Cir.1/27/10), 30 So.3d 1071, writ denied, 10-0458 (La.4/30/10), 34 So.2d 294) (emphasis in original). Given that no notice of appeal was filed from the stipulated judgment dated February 14, 2012, that judgment is not properly before us. We thus decline to address this issue.

III.

Mr. Montalbano’s other assignment of error is that the trial court erred in not granting him domiciliary status or, in the alternative, in not ordering an equal sharing of physical custody between the parties. In support, he cites the child’s age— about three years old — and the ability to maintain the visitation before the child begins school.

Insofar as domiciliary status, the record contains no pleading or transcript documenting a request by Mr. Montalbano that he be designated the domiciliary parent or awarded sole custody. As noted, the trial court awarded joint custody and designated the parties co-domiciliary parents. |R“An appellate court generally finds it inappropriate to consider an issue raised for the first time on appeal when that issue was not pled, urged, or addressed in the court below.” Jones v. Department of Police, 11-0571, p. 8 (La.App. 4 Cir. 8/24/11), 72 So.3d 467, 472 (citing Graubarth v. French Market Corp., 07-0416, p. 5 (La.App. 4 Cir. 10/24/07), 970 So.2d 660, 664). Such is the case here.

The burden is on the appellant (in the case of an answer, the appellee) to insure the record is complete. Armstrong ex rel. R.D. v. Johnson, 11-1379, p. 8 (La.App. 4 Cir. 7/5/12), 97 So.3d 548, 553 (quoting Olson v. Olson, 04-1137, pp. 4-5 (La.App. 5 Cir. 3/1/05), 900 So.2d 52, 54-55). As the court noted in Olson, “[t]he appellant has the duty to secure either a transcript of the testimony or a narrative of the facts; and the inadequacy of the record, if any, is imputable to the appellant.” Id. Given the very limited record before us on appeal as a result of the limited designation of the contents of the record, we are unable to review the factual basis behind the trial court’s ruling. Thus, we cannot conclude the trial court’s attempt at equality in the sharing of physical custody was an abuse of discretion. We thus find this argument unpersuasive.

DECREE

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

AFFIRMED

      . The record in this case was sealed in the trial court. Given the nature of this case, the initials of the minor child, "LStP,” are used in this opinion.

      . Ms. Philip's Designation of Contents of the Record includes a very limited portion of the trial court record. As a result, the record on appeal is insufficient to address any factual arguments regarding the trial court’s ruling.

      . Although this court in Molony v. Harris, 10-1316, pp. 19-20 (La.App. 4 Cir. 2/23/11), 60 So.3d 70, 82, held that it is legally erroneous to designate "co-domiciliary parents,” an exception is recognized when the trial court issues a valid implementation order specifying the authority and responsibility of each parent with regard to the child. The trial court in this case issued such an order.

      . The judgment added a provision that "each party shall provide the other party with any change of address, and/or phone number within twenty-four hours of such change. Both parties shall comply with the Louisiana Relocation Statute.”

      . La. R.S. 40:34 B provides:
      (iv) If the child is born outside of marriage, the surname of the child shall be the mother’s maiden name. If the father is known and if both the mother and the father agree, the surname of the child may be that of the father or a combination of the surname of the father and the maiden name of the mother. For purposes of this Item, "father” means a father who has acknowledged his child or who has been judicially declared the father in a filiation or paternity proceeding.

        (v) Any change in the surname of a child from that required herein or to that allowed herein shall be by court order as provided for in R.S. 13:4751 through 4755 or as otherwise provided in this Chapter or by rules promulgated thereunder.

      . La. R.S. 13:4751(C) provides:
      If the person desiring such change is a minor or if the parents or parent or the tutor of the minor desire to change the name of the minor:
      (1) The petition shall be signed by the father and mother of the minor or by the survivor in case one of them be dead.
      (2) If one parent has been granted custody of the minor by a court of competent jurisdiction, the consent of the other parent is not necessary if the other parent has been served with a copy of the petition and any of the following exists:
      (a)The other parent has refused or failed to comply with a court order of support for a period of one year.
      (b) The other parent has failed to support the child for a period of three years after judgment awarding custody to the parent signing the petition.
      (c) The other parent is not paying support and has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of two years.
      (d) Repealed by Acts 2001, No. 555, § 1.
      (3) In case the minor has no father or mother living, the petition shall be signed by the tutor or tutrix of the minor and in default of any tutor or tutrix, shall be signed by a special tutor appointed by the judge for that purpose.
      (4) The petition may be signed by either the mother or the father acting alone if a child has been given a surname which is different from that authorized in R.S. 40:34(B)(l)(a).


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Richard LEBEAU.
    No. 2012-KA-0334.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 2013.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for Appellant State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART).
   EDWIN A. LOMBARD, Judge.

liOn appeal, the State argues (and the defendant’s counsel concedes) that the trial court erred in granting the defendant’s motion to quash. Accordingly, after review of the record in light of the applicable law and arguments of the parties, we reverse the judgment of the trial court and remand the case for further proceedings.

Relevant Facts and Procedural History.

On November 12, 2009, Richard Lebeau was charged with two counts of aggravated rape in violation of La.Rev.Stat. 14:42. The first count was for an offense that occurred on January 15, 1999, and the second count was for an offense that occurred on September 3, 2009. On May 17, 2010, the State proceeded to trial on the first count only but introduced evidence pertaining to the second count pursuant to La.Code Evidence 412.2. The defendant was found guilty as charged on the first count. On August 13, 2010, the defendant filed Motion to Quash the second count, arguing that pursuant to Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), his trial on the second count was barred under “collateral or criminal estop-pel.” The trial court granted the defendant’s motion on September 3, 2010, finding that the |2rape on which the second count was based (the offense that occurred on September 3, 2009, offense) had “been litigated already.” The State appeals this decision.

Discussion

In Ashe v. Swenson, supra, the U.S. Supreme Court characterized collateral es-toppel as meaning “that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 397 U.S. at 443, 90 S.Ct. 1189. As observed by the defendant’s counsel, this holding in Ashe v. Swenson is dependent upon the defendant having been acquitted in the previous trial because such acquittal necessarily meant that the defendant could not have been the person who robbed any of the victims, including the victim who was the subject of the second prosecution. See also U.S. v. Felix, 503 U.S. 378, 387, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992) (recognizing “the basic, yet important, principle that the introduction of relevant evidence of particular misconduct in a case is not the same thing as prosecution for that conduct.”).

In this case, evidence of the - facts involved in the second count (the 2009 rape) were introduced at the trial on the first count (the 1999 rape) to reflect similar patterns that confirmed the defendant’s identity but the defendant did not face prosecution for the 2009 rape and, accordingly, his guilt or innocence pertaining to the 2009 rape charge has never been determined. Thus, the prosecution for the 2009 rape charged in count two does not violate his Fifth Amendment right against Double Jeopardy. Accordingly, the trial court abused its discretion in quashing the indictment underlying the second count.

\ ^Conclusion

We reverse the judgment quashing the indictment and remand the matter back to the trial court for further proceedings.

REVERSED AND REMANDED.

      . The defendant's conviction on this count was subsequently affirmed on appeal. State v. Lebeau, unpub. 10-1242 (La.App. 4 Cir. 6/22/2011), 66 So.3d 89.


author: TERRI F. LOVE, Judge. BELSOME, J.,

text:
    Norvel ORAZIO, Michael Glasser, Harry Mendoza, Rose Duryea, Frederick Morton, and Jerome Laviolette v. CITY OF NEW ORLEANS, Civil Service Commission, Ronal W. Serpas in his official capacity as the Superintendent of the Department of Police, and Lisa Hudson in her professional capacity as Personnel Director of the City Civil Service System for the City of New Orleans.
    No. 2012-CA-0423.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2013.

      Raymond C. Burkart III, Burkart & Associates, L.L.C., Covington, LA, for Plaintiffs/Appellants/Norvel Orazio, Michael Glasser, Harry Mendoza, Rose Du-ryea, Frederick Morton, and Jerome La-violette.
    Gregory Brumfield, Jr., Assistant City Attorney, Victor L. Papai, Jr., Deputy City Attorney, New Orleans, LA, for Defendants/Appellees/City of New Orleans, et al.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

| jThis appeal arises from the creation of the police commander position within the New Orleans Police Department. Norvel Orazio, Michael Glasser, Harry Mendoza, Rose Duryea, Frederick Morton, and Jerome Laviolette filed a petition alleging that the Civil Service Commission did not follow the rules when it authorized the Superintendent of Police to create a special position of police commander. The Civil Service Commission denied and dismissed the petition. We find that the Civil Service Commission arbitrarily and capriciously dismissed the petition without an investigation or contradictory hearing given the Civil Service Commission’s legal authority. Therefore, we reverse and remand for proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Chief Roñal Serpas, the New Orleans Police Department’s (“NOPD”) Superintendent, requested that personnel director, Lisa Hudson of the Civil Service Commission (“CSC”) “provide an opinion”' about a possible new “hybrid” job position “similar to police major and/or police colonel” within the NOPD. After reviewing a draft of a description of the position and during a meeting of the CSC, the:

Civil Service staff had some concerns relative to the ^creation of the positions because they were not able to fully develop job specifications, since they were not able to collect enough information to distinguish between the Police Colonel, Police Major and Police Captain positions.

However, the CSC granted the NOPD and Chief Serpas an allegedly unclassified position of police commander. A special rate of pay was established and the assignment as a police commander was at the discretion of the Superintendent of Police.

Norvel Orazio, Michael Glasser, Harry Mendoza, Rose Duryea, Frederick Morton, and Jerome Laviolette (“Plaintiffs”) filed a Petition for Commission Investigation, for Evidentiary Hearing, and for Revocation of Unclassified Position against the City of New Orleans, through the NOPD, Chief Serpas, and Ms. Hudson alleging that the CSC did not comply with the rules when it created the new position of police commander. Specifically, the Plaintiffs’ requested 1) an evidentiary and contradictory hearing on the police commander position before the CSC’s hearing officer; 2) a' CSC Rule III, § 7(7.1) investigation into the police commander position through an evidentiary and contradictory hearing before a CSC hearing officer; 3) an audit of the police commander position and funding; 4) the administration of a police major’s examination to qualified employees; 5) the administration of examinations for “PO II’s, Ill’s, and IVs;” 6) the revocation, annulment, and dissolution of the police commander position; and 7) the approval of an equal pay increase and plan to “ICO’s.” The CSC dismissed claims against Ms. Hudson and dismissed the Plaintiffs’ entire petition. The Plaintiffs’ appeal followed.

| ¡¡The Plaintiffs assert that the “CSC committed legal error and acted arbitrarily and capriciously” by: 1) finding that the police commander position was not an unclassified position, 2) finding that the police commander position was a job assignment, 3) finding CSC R. Ill, § 7 inapplicable to the police commander position and its creation, 4) holding that the CSC had no power to audit pursuant to CSC R. Ill, § 7(7.1)(c), 5) finding promotional testing originates with a appointing authority, 6) finding it could not conduct evidentiary and contradictory hearings when conducting investigations of issues brought before it, and 7) finding the Plaintiffs’ petition to be a reconsideration request.

STANDARD OF REVIEW

“The Commission’s decisions are subject to review on any questions of law or fact.” Scott v. Div. of Hous. & Neighborhood Dev., 08-0068, p. 2 (La.App. 4 Cir. 8/6/08), 991 So.2d 558, 560. “In a civil service matter, the standard of review is whether the decision by the Commission is arbitrary, capricious or characterized by an abuse of discretion.” McElrath v. Dep’t of Police, 06-1288, p. 3 (La.App. 4 Cir. 5/23/07), 959 So.2d 566, 568. The CSC’s decision is arbitrary and capricious “if there is no rational basis for the action taken by the Civil Service Commission.” Cure v. Dep’t of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1095. “However, we are not limited to abuse of discretion or arbitrary and capricious standards when reviewing procedural decisions and questions of law, which fall within this court’s traditional plenary function.” Scott, 08-0068, pp. 2-3, 996 So.2d at 560.

POLICE COMMANDER

Although the Plaintiffs alleged numerous assignments of error on appeal, we find that the central issue is whether the CSC was arbitrary and capricious when it |4denied the Plaintiffs an investigation and contradictory hearing relative to the creation of the police commander position.

The Louisiana Revised Statutes provide that the CSC shall

[m]ake, either at the direction of the mayor or upon the petition of any citizen for just cause, or upon its own motion, any investigation concerning the administration of personnel in the city service, and review and modify, or set aside, any action by the department which the commission determines to be desirable or necessary in the public interest.

La. R.S. 33:2397(4). Rule III, § 7.3 of the Civil Service Rules provides that:

The Commission shall have the authority to initiate such audits and investigations of positions placed in the unclassified service by the Commission, as deemed necessary to protect the integrity of the merit system and maintain an equitable relationship between positions in the classified and unclassified services.

The CSC held that the position of police commander was “adopted by the Department of Police as a descriptive of a job assignment” and that “the persons discharging those assignments are classified employees.” The CSC then declared that the Plaintiffs’ “complaints with, regard to alleged noncompliance with Civil Service Commission Rule III, Section 7, are inap-posite.” Thus, the CSC determined that the police commander was a classified “job assignment” and did not fall within the purview of Rule III, § 7.3 of the Civil Service Rules, which provides for audits and investigations.

The NOPD and Chief Serpas contend that they cannot comply with the requests in the Plaintiffs’ petition because the police commander position is unclassified and is a mere “job assignment.” Therefore, they agree with the CSC’s conclusion that Rule III, § 7 does not apply to the Plaintiffs’ petition.

While, the CSC held that the police commander title is a job assignment, the Isperson who is given the “assignment” by the Superintendent of Police takes on a new title and a new salary. Additionally, although the police commander will allegedly retain his/her permanent classified status while serving as a police commander, this description connotes that the police commander, in and of itself, is unclassified. La. R.S. 33:2397(4) grants the CSC the responsibility to investigate petitions “concerning the administration of personnel in the city service” and commence “any action ... which the commission determines to be desirable or necessary in the public interest.” Rule III, § 7.3 of the CSC rules, gives the CSC “authority to initiate such audits and investigations of positions placed in the unclassified service.” The record before us connotes the questionability of the classified or unclassified nature of the “job assignment” or “position.” An investigation would ensure that “the integrity of the merit system” and protect an “equitable relationship between positions in the classified and unclassified services.” Civil Service Rule III, § 7.3. We find that the CSC was arbitrary and capricious in denying the entirety of the Plaintiffs’ petition without granting an evidentiary and contradictory hearing into the creation of the police commander position given the CSC’s legal authority. See La. R.S. 33:2397(4) and Civil Service Rule III, § 7.3. Therefore, we reverse the CSC’s decision and remand for proceedings consistent with this opinion.

DECREE

For the above-mentioned reasons, we find that the CSC arbitrarily and capriciously denied the Plaintiffs an evidentiary and contradictory hearing regarding the claims alleged in the petition. Therefore, we reverse and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED

BELSOME, J., concurs in the result and assigns reasons.

BELSOME, J.,

concurs in the result and assigns reasons.

hi respectfully concur in the result. The issue before us involves whether the Civil Service Commission (CSC) acted in an arbitrary and capricious manner when it refused to hold a contradictory hearing and take evidence on the complaint.

The plaintiffs filed a petition for an investigation, contradictory hearing, and revocation of the title, addressing concern with the adoption of a special pay rate for individuals given the “special assignment” of “police commander.”

As the majority states, the CSC is required to investigate any activity “concerning the administration of personnel in the city service, and review and modify, or set aside, any action by the department which the commission determines to be desirable or necessary in the public interest.” La R.S. 33:2397(7).

The CSC took the matter under advisement on the submission of briefs alone and made legal findings contrary to those asserted in briefs. Without factual and legal support within the record, this Court must conclude that the ruling is arbitrary Land capricious. Accordingly, I agree with the reversal and remand of the matter for a full evidentiary hearing.

      . The NOPD and Chief Serpas assert that the officers who attain the assignment of police commander retain their permanent "classified” status.


text:
    STATE of Louisiana v. Gentry A. MAJOR.
    No. 2012-KA-0407.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for the State of Louisiana/Appellant.
    Ike Spears, Spears & Spears, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

_JjThis is a contractor fraud criminal case in which the defendant, Gentry Major, was charged with theft in the amount of $500 or more, in violation of La. R.S. 14:67(A). Seeking review of the district court’s decision granting Mr. Major’s oral motion to quash the bill of information, the State of Louisiana appeals. For the reasons that follow, we reverse and remand.

STATEMENT OF THE CASE

On September 30, 2010, Mr. Major was charged by bill of information with theft in the amount of $500 or more occurring between August 1, 2006, and December 31, 2006. On October 29, 2010, Mr. Major was arraigned and pled not guilty. On January 28, 2011, a preliminary hearing was held; and the district court found no probable cause. The district court noted its belief that this was a civil matter. The district court set the matter for trial on March 22, 2011. After two continuances, the district court reset the matter for June 14, 2011.

On the day of trial, June 14, 2011, Mr. Major filed a motion for a bench trial, which the district court granted. The State objected to Mr. Major’s waiver of a 1 ajury trial on the basis of La. Const. Art. I, § 17(A), and noticed its intent to seek review. The trial court stayed the proceedings. Granting the State’s application for supervisory writ, this court reversed the district court’s ruling, reasoning that “the trial court erred in allowing the defendant to waive his right to a trial by jury the day of trial.” State v. Major, 11-0942 (La.App. 4 Cir. 7/15/11 )(unpub.)

On December 13, 2011, a bench trial commenced. During opening statement, defense counsel orally moved to quash the bill of information on the ground that the State had failed to timely institute prosecution within four years of the offense as required by La.C.Cr.P. art. 572. The State responded that the bill of information listed the date of the offense as a period of time — between August 1, 2006, and December 31, 2006. The State thus argued that the filing of the bill of information on September 80, 2010, was timely because the State had four years from December 81, 2006, to institute charges. Denying the defense’s motion, the district court allowed the case to proceed.

The State then called the first witness, Cheryl Wright, the victim. Ms. Wright testified that she engaged Mr. Major to renovate her Hurricane Katrina damaged home. She testified that the total contract amount was $67,000.00 and |sthat the contract called for an initial payment of $9,000.00. She further testified that on August 14, 2006, the day she signed the contract, she tendered a check for $9,000.00 to Mr. Major. She identified the check, which was placed into evidence. At that point, the district court called a bench conference.

During the bench conference, defense counsel re-urged his oral motion to quash on the basis that the State, by introducing the check, had documented the date of the theft as August 14, 2006. The State responded that the theft did not occur on August 14, 2006, but occurred sometime later when Mr. Major formed the intent not to do the work and thus to permanently deprive the victim of the funds. The State requested that the motion to quash be denied and that the trial be allowed to continue. Granting the defense’s motion to quash, the district court reasoned that the State could not establish an element of the offense — Mr. Major’s intent to permanently deprive the victim of her property. Particularly, the district court stated that:

“I believe the State would have to demonstrate that at the time, these monies — you may step down, ma’am. (The witness steps down.) At the time these monies were received or accepted by the defendant, that he, in fact, had the intent to permanently deprive this victim of that amount of money. I don’t think the State, based upon the testimony I’ve heard, is in a position to carry that burden.”

This appeal by the State followed.

| ASSIGNMENT OF ERROR

The State’s sole assignment of error is that the district court erred in granting Mr. Major’s oral motion to quash. The State’s argument has two components. First, the State contends that the district court erred in granting the motion to quash because it was not in writing. Second, the State contends that the district court erred in refusing to allow it an opportunity to show that the prosecution was timely instituted. We find the first argument dispositive.

The Code of Criminal Procedure mandates that “[a] motion to quash shall be in writing, signed by the defendant or his attorney, and filed in open court or in the office of the clerk of court.” La.C.Cr.P. art. 536 The Code further mandates that a motion to quash “shall specify distinctly the grounds on which it is based” and that “[t]he court shall hear no objection based on grounds not stated in the motion.” Id. Enforcing the mandates set forth in Article 536, the jurisprudence has held that a district court cannot consider an oral motion to quash. State v. Carter, 11-0859, pp. 2-3 (La.App. 4 Cir. 3/21/12), 88 So.3d 1181, 1182-83 (citing State v. Dixon, 101279, p. 3 (La.App. 4 Cir. 5/2/11), 64 So.3d 852, 854 (citing State v. Joseph, 09-1169, pp. 3-4 (La.App. 4 Cir. 3/24/10), 35 So.3d 422, 424)); see also State v. Scott, 06-1610, p. 3-4 (La.App. 4 Cir. 4/25/07), 958 So.2d 725, 728 (discussing the requirements of La.C.Cr.P. art. 536 and stating that “the court shall hear no objection on grounds not stated in the motion”); State v. Beauchamp, 510 So.2d 22, 27, n. 3 (La.App. 1st Cir.1987) (noting that a court may not hear an objection based on grounds not stated in the motion to quash under La.C.Cr.P. art. 536). | fiThe record in this case contains no written motion to quash. Because Mr. Major failed to file a written motion to quash, the district court erred in granting the motion.

The district court further erred in relying on the State’s inability to prove its case as a basis for granting the motion to quash. As we pointed out in Carter, supra, the Louisiana Supreme Court in State v. Byrd, 96-2302 (La.3/13/98), 708 So.2d 401, explained the limited purposes of a motion to quash as follows:

A motion to quash is, essentially, a mechanism whereby pre-trial pleas are urged, i.e., pleas which do not go to the merits of the charge. At a hearing on such a motion, evidence is limited to procedural matters and the question of factual guilt or innocence is not before the court. La.C.Cr.P. art. 531 et. seq.; State v. Rembert, 312 So.2d 282 (La.1975); State v. Patterson, 301 So.2d 604 (La.1974).
In considering a motion to quash, a court must accept as true the facts contained in the bills of information and in the bill of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged; while evidence may be adduced, such may not include a defense on the merits. State v. Gerstenberger, 260 La. 145, 255 So.2d 720 (1971); State v. Masino, 214 La. 744, 750, 38 So.2d 622 (1949) (“the fact that defendants may have a good defense is not sufficient grounds to quash the indictment”).

Byrd, 96-2302 at pp. 18-19, 708 So.2d at 411. In Carter, the district court granted the defendant’s motion on the basis of a factual defense urged by the defendant. Citing Byrd, supra, this court concluded that the district court erred in considering the defendant’s factual defense to the alleged charge as a ground to quash the bill of information. Likewise, the district court in this case erred in finding, based on the testimony presented up to the point the bench conference was called, that the |fiState was “not in a position” to carry its burden of proof. The district court thus erred in granting the motion to quash.

DECREE

For these reasons, we reverse the district court ruling granting the motion to quash; and we remand the case to the district court for further proceedings.

REVERSED AND REMANDED

      . La.C.Cr.P. art. 572(A)(2) provides that "no person shall be prosecuted, tried, or punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted" within four years for a felony not necessarily punishable by imprisonment at hard labor. Because the theft of an amount exceeding $500 is a felony that is not necessarily punishable by imprisonment at hard labor, the State had four years from the date of the offense to file the bill of information. On appeal, the State contends that an exception to the four-year prescriptive period provided in La.C.Cr.P. art. 573(1) applies. This court recently called into doubt this argument in State v. Brumfield, 11-1599 (La.App. 4 Cir. 11/29/12), 104 So.3d 701. In that case, the defendant was a contractor who contracted with the complainants (victims) to repair their Hurricane Katrina damaged premises. Questioning the State's reliance on La.C.Cr.P. art. 573(1), we reasoned that “this relationship between the defendant [contractor] and the complainants is not a fiduciary relationship, which terminated when Brumfield no longer worked for them as a contractor.” Brumfield, 11-1599 at p. 7, 104 So.3d at 709. Given our finding that the lack of a written motion to quash is dispositive, we do not reach this issue.

      . Theft is defined in La. R.S. 14:67 as follows: Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representation. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
      The three essential elements of the crime of theft that must be proved by the prosecution beyond a reasonable doubt are as follows: (1) The "misappropriation or taking of anything of value which belongs to another,” (2) either "without the consent of the other ... or by means of fraudulent conduct,” and (3) with "intent to deprive the other permanently” of the object of the taking or misappropriation. State v. Victor, 368 So.2d 711, 713 (La.1979).

      . We note that “[e]ven though the first witness has been sworn, jeopardy has not attached and the case may be remanded for further proceedings now that the trial court's ruling on the motion to quash has been reversed.” State v. Bentel, 00-0057, p. 4 (La.App. 5 Cir. 9/26/00), 769 So.2d 1247, 1248, n. 3 (citing City of Baton Rouge v. Schmieder, 582 So.2d 1266 (La.1991)).


author: DENNIS R. BAGNERIS, SR., Judge.

text:
    STATE of Louisiana v. Dorian W. WILLIAMS.
    No. 2012-KA-0029.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 16, 2013.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Arthur Lee Harris, Sr., A.L. Harris, Sr. <& Associates, L.L.C., Metairie, LA, for Defendant/Appellant, Dorian W. Williams.

      (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   DENNIS R. BAGNERIS, SR., Judge.

| defendant, Dorian W. Williams, appeals a trial court judgment, which denied his motion to suppress evidence. For the following reasons, we hereby affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY AND FACTS

On December B, 2008, the State filed a bill of information charging the defendant with possession with intent to distribute marijuana. On February 6, 2009 he pleaded not guilty. After pretrial motions were filed, a hearing was held whereby the trial court, on April 19, 2010, found probable cause and denied defendant’s motion to suppress the evidence. According to the docket master and minute entry, on August 2, 2010 the defendant pleaded guilty as charged under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). According to the Boykin transcript, he pleaded guilty under State v. Crosby, 338 So.2d 584 (1976), preserving his right to seek review of any adverse pretrial ruling on appeal. On 12September 10, 2010, the defendant was sentenced to five years at hard labor. On October 8, 2010, the defendant filed his motion for appeal, which the court granted. The trial court granted the defendant’s motion for bail pending appeal. According to the April 11, 2011 minute entry, the defendant presented a note of evidence (tape and analysis of tape) as part of the record for appeal purposes. On June 9, 2011 this Court vacated the defendant’s appeal, 2012-KA-0221, remanded the matter for the sole purpose of filing a note of evidence within ten days of the date of that order, and upon the filing of the note of evidence in the district court, the defendant was to be granted a new motion for appeal with a return date set by the district court. Defendant now appeals this final judgment.

At the hearing on the motion to suppress, Sgt. Kevin Imbraguglio testified that on October 25, 2008, he was assigned to the Seventh District Narcotics Division. The sergeant testified that he had received information from a concerned citizen that a subject would be on Chef Highway driving a red F-150 about seven in the morning transporting a large amount of marijuana. Sgt. Imbraguglio said that he set up surveillance at around 6:00 a.m. on Chef Highway and observed “the red F-150 traveling down Chef Highway at a high rate of speed going eastbound.” The sergeant stated that the driver of the F-150 turned onto Lane Street without using a turn signal. He said that the truck turned onto Lane Street, and the driver (the defendant) was not wearing a seatbelt. The sergeant decided to make a traffic stop, and he pulled over the truck in the 4500 block of Lane Street. Sgt. | ¡¡Imbraguglio stated: “As I approached the vehicle to get his information, his driver’s license, insurance, etc., I smelled the odor of marijuana coming from the vehicle. I ran the subject’s name and found out he had a prior narcotics arrest. I then contacted K-9 narcotics dog to assist the investigation.” The sergeant indicated that the dog alerted on the exterior of the truck and inside on a “large black bag in the back of the vehicle. A duffel bag type bag [sic].” The sergeant stated that the black bag contained five large packages. A field test on each package was positive for marijuana. The sergeant seized fifty-seven and one-half pounds of marijuana and around $650.00, which was found inside the vehicle. The defendant was given a receipt for the cash. Sgt. Imbraguglio said that he arrested the driver, later identified as Dorian Williams, and advised him of his rights. According to the sergeant, the defendant agreed to cooperate, signed the waiver of rights form, and gave a written statement. The sergeant read the purported statement: “I was stopped today on a routine traffic stop and got caught with marijuana. I got caught with 52 [actually 57.5] pounds ... of weed and 3,650 dollars [actually $650].” The sergeant then transported the marijuana to the evidence room, and the currency went to asset forfeiture.

On cross-examination defense counsel asked if any National Guard officers were present when the F-150 truck was stopped, and the sergeant replied: “When I pulled the subject over and radioed my location, I believe national guard [sic] showed up and assisted.” Counsel asked: “They weren’t already there and they didn’t have the defendant already stopped?” Sgt. Imbraguglio replied: “No, no. No.” The sergeant did not know which National Guard officers were there; two to five units were assigned to the Seventh District every day after Hurricane Katrina. |4He said that he opened the black bag on the back seat after the dog alerted on the bag; the marijuana was wrapped in plastic.

The record has been reviewed, and no error patent has been found.

ASSIGNMENT OF ERROR NUMBER 1

The defendant argues that the trial court erred by denying his motion to suppress the evidence. Appellate counsel makes no argument as to whether the traffic stop was proper, whether Sgt. Im-braguglio had probable cause to search the red F-150 truck, and whether the defendant’s arrest was legal. Appellate counsel focuses on a note of evidence, which was taken on May 9, 2012, years after the hearing on the motion to suppress, as well as the defendant’s guilty plea and sentencing. At the end of the suppression hearing on December 22, 2009, counsel said that he wanted “to see if’ he “can get any additional information.” Counsel claims that the defendant is being permitted to supplement the record with a note of evidence (because at the pertinent time the defense only had a “police radio broadcast, [sic] of poor quality, but nevertheless possibly raising doubts as to the theory of the case of the State.”) However, appellate counsel does not mention the defendant’s first appeal (2011-KA-221), which was dismissed by this Court on June 9, 2011 to remand the case to allow the defendant to file the note of evidence (a tape) into the district court record. Counsel never appeared in court and had the tape entered into the record.

When the defendant filed his second motion for appeal on June 24, 2011, which was granted in August 2011, the tape had not been made part of the record. When appellate counsel filed the defendant’s brief, a new note of evidence consisting of Bel-ford Quillens’ testimony taken on May 9, 2012 is at issue. Counsel argues that in light of the new evidence, the case should be remanded for | Bthe trial court to reconsider its ruling. Counsel asks this Court to give the defendant five days in which to supplement the record with the May 9, 2012 transcript. The brief was filed on May 10, 2012, and the 2012 note of evidence has not been made part of the record.

Counsel acknowledges that the testimony on May 9, 2012 had “a different content that [sic] originally intended.” Counsel claims that Belford Quillens, the person who testified on May 9, 2012 for the note of evidence, lived across the street from the location where the red F-150 truck was stopped in 2008. Counsel alleges that Mr. Quillens testified that he was positive that National Guardsmen made the stop and that an NOPD officer (presumably Sgt. Imbraguglio) arrived later. Counsel argues that Mr. Quillens’ information “negates much of the State’s case, [sic] and renders the arresting officer unworthy of belief....” However, at the December 2009 hearing on the motions, on cross-examination Sgt. Imbraguglio testified that National Guardsmen were at the location of the stop (after he broadcast the information over the radio).

Regardless, if counsel accurately described Mr. Quillens’ testimony, that evidence does not contradict the sergeant’s testimony. Sgt. Imbraguglio smelled the marijuana emanating from the truck after a legal traffic stop, and that justified a search of the vehicle, not to mention the narcotics dog alerting on the truck and the black bag inside. The information in Mr. Quillens’ testimony, which was not before the trial court when it denied the motion to suppress the evidence on December 22, 2009 and is not part of the appeal record, cannot be considered by this Court.

|fiIn its brief the State argues that Sgt. Imbraguglio’s stop for a traffic violation was legal; the search of the truck was justified; and the arrest of the defendant was legal. As to the defense note of evidence, the State claims that appellate counsel does not offer an explanation as to why Belford Quillens or the National Guardsmen, who allegedly stopped the truck, were not subpoenaed and did not testify at the hearing on the motions on December 22, 2009. The State argues that Mr. Quillens’ statement does not really contradict Sgt. Imbraguglio’s version in which National Guardsmen were present at the location of the stop.

A traffic violation can provide reasonable cause to stop a vehicle. State v. Thomas, 99-2219, pp. 8-9 (La.App. 4 Cir. 5/17/00), 764 So.2d 1104, 1110; State v. Mitchell, 97-2774 (La.App. 4 Cir. 2/3/99), 731 So.2d 319, 326-27. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996). Sgt. Imbraguglio stopped the defendant because he turned onto Lane without using a turn signal and he was not wearing a seatbelt. The traffic stop was legal, and then Sgt. Imbraguglio smelled the odor of marijuana as he approached the truck that he stopped. The fact that the sergeant smelled marijuana provided probable cause to search the vehicle. State v. Wyatt, 99-2221 pp. 3-4 (La.App. 4 Cir. 9/27/00), 775 So.2d 481, 483-84, and the eases discussed therein. Sgt. Imbraguglio did not search the red F-150 at that point, but called in a narcotics dog, which alerted on the truck and the black bag inside the truck. At that point the sergeant clearly had probable cause to search the truck, and the marijuana and currency were properly seized. The defendant’s assignment of error lacks merit.

^Accordingly, we hereby affirm the defendant’s conviction (guilty plea) and sentence.

AFFIRMED

      . At the Boykin hearing, defense counsel noted that continuances had been granted in order for the defense to obtain tape(s) from the Seventh District. Counsel stated that a subpoena duces tecum was filed the week before. The subpoena sought all radio communication tapes on October 25, 2008 from 6:00 a.m. to 8:00 a.m. under item # J-30467.

      . At the sentencing a "Lieutenant Jackson” did not appear. The trial court stated: "I’m going to sentence him today. If you can get him here whenever, you can take a note of evidence at that time.” There is no clarification as to the lieutenant’s relationship to this case.

      .The transcript does not include /'without” before "using a turn signal”; however, that appears to be a typographical error. Defense counsel and the State claim that Sgt. Imbra-guglio testified that the driver turned onto Lane without using a turn signal, and the gist of Sgt. Imbraguglio's report indicates that the defendant did not use a turn signal.

      . It is not clear what counsel meant by that statement.

      . In the State’s brief in the statement of the facts, the defendant's last name, Williams, is properly used. In the discussion of the assignment of error, the ADA uses defense counsel's last name, Harris, by mistake.