author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Allen D. COX, Appellant.
    No. 44,878-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.

      Allen Dale Cox, pro se.
    G. Paul Marx, Louisiana Appellate Project, Lafayette, for Appellant.
    Jerry L. Jones, District Attorney, Shirley M. Wilson Davis, Assistant District Attorney, for Appellee.
    Before BROWN, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

| ] Defendant, Allen Dale Cox, appeals a judgment from the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, where a jury found Cox guilty as charged of distribution of cocaine, a violation of La. R.S. 40:967, and conspiracy to distribute cocaine, violations of La. R.S. 40:979 and 40:967. Thereafter, Cox was sentenced to 24 years’ of imprisonment at hard labor for the distribution charge, with credit for time served and the first two years to be served without benefit of probation, parole, or suspension of sentence. Cox was also sentenced to 15 years of imprisonment at hard labor for the conspiracy to distribute cocaine to run concurrently. Cox was recommended for the Blue Walters Substance Abuse Program while serving his sentence. A timely motion for reconsideration of sentence was denied. After various delays and filings, Cox was granted this out-of-time appeal. For the following reasons, Cox’s convictions and sentences are affirmed.

FACTS

Working a “buy-bust” operation with the Metro Narcotics Unit, a multi-parish narcotics task force, a confidential informant (“C.I.”) arranged to contact a person whom she knew as “A.D.” to meet her at the Motel 6 located on Highway 165 in Monroe, Louisiana. The C.I. called A.D., later identified as Cox, and asked to purchase $100.00 worth of crack cocaine. Cox told the C.I. that he would meet her at the Motel 6 in approximately 20-25 minutes.

The C.I. waited in a room that had been equipped with video surveillance and audio monitors which was in the middle of three adjoining 12rooms. The arrest teams were waiting in the outer rooms while other officers set up surveillance in the parking lot of the motel. Cox arrived at the motel as a passenger in a vehicle. Cox got out of the car and went directly to the C.I.’s room. Once inside the room, Cox told the C.I. that the individual who was driving the vehicle, later identified as Antonio Brown, did not know her and was not willing to come up to the room to give her the drugs. Cox told the C.I. that he would take her money to Brown and return with the drugs, to which the C.I. agreed.

The officers posted outside saw Cox walk out to the balcony and drop something down to Brown. Brown then threw something back up to Cox. Cox went back inside the C.I.’s room and gave her crack cocaine. As Cox left the room, officers from the arrest teams immediately took him into custody. During the search incident to arrest, officers found a rock of cocaine in Cox’s pocket as well as a small bit of newspaper with hand-written notations of the C.I.’s hotel room number and telephone number.

After a trial by jury, Cox was found guilty as charged for distribution of cocaine and conspiracy to distribute cocaine. This appeal ensued.

LAW AND DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Cox alleges that there was insufficient evidence presented to convict him under a statute directed at punishing drug dealers. Cox argues that the laws are not intended to punish an addict who is used as a conduit, with minimal contact with the contraband, between a drug dealer and an informant.

|sThe standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App. 2d Cir.01/09/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2d Cir.01/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2d Cir.02/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App. 2d Cir.05/09/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App. 2d Cir.02/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App. 2d Cir.01/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/09/06), 941 So.2d 35. This is equally applicable to the testimony of undercover drug agents. State v. Anderson, 30,306 (La.App. 2d Cir.01/21/98), 706 So.2d 598.

An individual is guilty of distribution of cocaine when he transfers possession or control of the cocaine to his intended recipient. The state must show: (1) delivery or physical transfer; (2) guilty knowledge of the controlled dangerous substance at the time of transfer; and (3) the exact identity of the controlled dangerous substance. State v. Kelley, 36,602 (La.App. 2d Cir.01/29/03), 836 So.2d 1243; State v. Manning, 30,809 (La.App. 2d Cir.06/24/98), 715 So.2d 668. To find one guilty of conspiracy to distribute cocaine, the state must show that there existed an agreement or combination of two or more persons for the specific purpose of transferring possession or control of the cocaine to an intended recipient. State v. Alexander, 43,796 (La.App. 2d Cir.01/14/09), 2 So.3d 1168.

In the instant case, the state called as its first witness Agent Curtis Dewey of the Ouachita Parish Sheriffs Office and a member of the Unit. Agent Dewey testified he and other members of the Unit arranged for the C.I. to make a drug purchase during a buy-bust operation conducted at the Motel 6 on February 3, 2005. Agent Dewey was the lead agent. In preparation for the operation, Agent Dewey testified that the three adjoining motel rooms were secured, and the C.I. was placed in the middle room and given five marked twenty-dollar bills totaling $100.00 to purchase crack cocaine. Video and audio surveillance devices were placed in the C.I.’s room to monitor the transaction. According to Agent Dewey, officers | .¡¡stationed in the adjoining rooms were monitoring the surveillance equipment and the C.I. and the room was searched for drugs prior to the beginning.

Agent Dewey further testified that arrest teams were stationed in the adjoining rooms and additional officers were stationed in the parking lot of the motel for surveillance. At approximately 7:06 p.m., Cox arrived in a vehicle with Brown. Once the C.I. agreed, Cox took the money and walked out of the room. He returned to the room a few moments later, and after the transaction was completed Cox was immediately arrested outside the C.I.’s room. Agent Dewey collected and transferred the cocaine delivered to the C.I. to the crime lab for analysis. Agent Dewey testified that Brown was also arrested in connection with the case. At the time of his arrest, Brown had the “buy money” in his possession.

Susan Rutledge, a forensic chemist employed by the North Louisiana Crime Lab, was qualified by the court as an expert in forensic chemistry and controlled dangerous substances. After discussing the protocols used in receiving the evidence, Rutledge testified that based on her testing, she determined that the substances submitted for analysis contained cocaine.

Officer John Philly, a warrant officer for the Ouachita Parish Sheriffs Office, testified he assisted the Unit on the, night of this buy-bust operation. Officer Philly explained that he was in a van stationed in the well-lit parking lot of the motel. Officer Philly observed a vehicle occupied by two black males arrive at the motel. The passenger, Cox, exited the vehicle and proceeded to the C.I.’s room. According to Off. Philly, he saw Cox step on |(ito the balcony and drop something down to the driver of the vehicle, Brown. Brown then threw something back up to Cox. Soon after, Off. Philly observed the other officers arresting Cox.

Officer Taylor Trish Passman of the Monroe Police Department was assigned to the Unit and also assisted with the buy-bust operation. Officer Passman stated he searched the C.I., her personal belongings, and the room and found no drugs prior to the purchase. During the operation, Officer Passman was monitoring the video surveillance equipment and was able to observe the transaction. Cox was captured on video as he walked inside of the C.I.’s room. Cox left the room with the buy money and was out of view of the monitoring equipment; however, he returned shortly thereafter and gave the C.I. the crack cocaine.

Once the transaction was complete, Officer Passman gave the signal for other officers to arrest Cox. Officer Passman went to the C.I.’s room and collected the cocaine received from Cox. Officer Pass-man identified the photograph of the individual he observed sell cocaine to the C.I. The video of the transaction was played for the jury. Officer Passman also identified the buy money supplied to the C.I. prior to the transaction and testified that the money was found in Brown’s possession when he was arrested.

Randall Pittman, a detective with the Unit, testified he was a part of an arrest team on the day of the operation. Detective Pittman observed the transaction via the monitoring equipment and was able to identify Cox in court. Detective Pittman searched Cox after he was taken into custody. 17Inside Cox’s pants pocket was a piece of newspaper with the C.I.’s room and telephone number written on it and a rock of cocaine.

After a thorough review of the record we find that the state was able to prove delivery or physical transfer, Cox’s guilty knowledge of the controlled dangerous substance at the time of transfer, and the exact identity of the controlled dangerous substance. Of notable interest, in his brief, Cox admits that “technically, because the broadest definition of ‘distribution’ could include handing a rock of crack from one person to another, [he] is guilty.”

Despite Cox’s protestations to the contrary, the state presented sufficient evidence to convict Cox of distribution of cocaine. Through the testimony of its witnesses, the state was able to prove that Cox was contacted by the C.I. and asked to deliver $100.00 of crack cocaine. Cox arrived on the scene and after taking money from the C.I., Cox returned with a substance. The substance was later tested and proven to contain cocaine. Based on the record, it was reasonable for the jury to conclude that Cox was guilty as charged. Therefore, this assignment of error is without merit.

Excessive Sentence

In his second assignment of error, Cox argues that his sentence is excessive based on his limited involvement in the drug transaction and that trial court failed to properly consider his impairment for drug addiction. The test imposed by the reviewing court in determining the exces-siveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial Ljudge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Latham, 41,855 (La.App. 2d Cir.02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.03/28/08), 978 So.2cl 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App. 2d Cir.08/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.09/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App. 2d Cir.08/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.05/15/09), 8 So.3d 581.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2d Cir.01/24/07), 948 So.2d 379. There is no requirement that specific matters be given any particular weight at sentencing. State v. Swayzer, supra; State v. Shumaker, 41,547 (La.App. 2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.09/28/07), 964 So.2d 351.

Cox was sentenced to 24 years’ imprisonment at hard labor with the first two years to be served without benefit of probation, parole, or suspension of sentence for the distribution of cocaine. Cox was sentenced concurrently to 15 years’ imprisonment at hard labor for the count of conspiracy to distribute cocaine. During the sentencing hearing, Cox was allowed to testify and told the trial court that drugs had a negative impact on his life for quite some time and he had only been involved in the transaction in an attempt to help a “friend” who he believed was an addict needing to acquire drugs. Cox also provided the trial court with a letter which was summarized during the hearing, noting that Cox believed he “allowed drugs to empower” him. Cox further wrote that he wanted to share his story to help others so they could see that drugs were only a “vicious cycle.”

The trial court reviewed the presentence investigation (“PSI”) including Cox’s social history as well as his lengthy criminal history. The trial court noted that the 40-year-old defendant was classified as a fifth felony offender, one of which was a conviction for distribution of marijuana. The trial court also noted that Cox had been given numerous opportunities to rehabilitate himself but had not. At least four of Cox’s Loprevious releases on probation or parole ended unsatisfactorily because of Cox’s repeated violations of the conditions of his release. The trial court specifically stated that the results of the PSI were received and considered in accordance with La. C. Cr. P. art. 894.1 guidelines.

The record clearly shows that the trial court was cognizant of the factors that should be considered in fashioning Cox’s sentence. The trial court painstakingly reviewed Cox’s complete history and the guidelines of La. C. Cr. P. art. 894.1. The trial court also noted Cox’s apparent resistance to following rules and regulations. Cox’s sentence is well within legislative limits. As such, we find that the sentence is not grossly disproportionate when the crime and punishment are viewed in light of the harm done to society, and in no way does the sentence shock the sense of justice.

Double Jeopardy

In another assignment of error, Cox argues, pro se, that he was subjected to double jeopardy when he was tried and convicted for distribution of cocaine and conspiracy to distribute cocaine. Cox indicates that he was only a “middle man of an uncertain transaction.” Cox argues that the state failed to establish a conspiracy to distribute cocaine, separate from that of being simply a principal to the distribution of cocaine.

There are separate elements of the crime of distribution of cocaine that are not completed until after the conspiracy. This court has consistently held that double jeopardy does not prohibit convictions for distribution of cocaine and conspiracy to distribute cocaine. See State v. Alexander, supra; State v. Powell, 42,540 (La.App. 2d Cir.10/24/07), 968 So.2d 823; State v. Kelley, supra.

In State v. Kelley, 836 So.2d 1243, 1247, this court reasoned:

The offenses of distribution of cocaine and conspiracy to distribute cocaine do not contain identical elements. An individual is guilty of distribution of cocaine when he transfers possession or control of the cocaine to his intended recipient. The state must show (1) delivery or physical transfer; (2) guilty knowledge of the controlled dangerous substance at the time of transfer; and (3) the exact identity of the controlled dangerous substance. Conspiracy to distribute cocaine does not require these elements. To find one guilty of conspiracy to distribute cocaine, the state must show that there existed an agreement or combination of two or more persons for the specific purpose of transferring possession or control of the cocaine to an intended recipient.
* * *
In the instant case, the same evidence was not necessary for a conviction of both crimes because the crime of distribution of cocaine was completed after the conspiracy to distribute cocaine. (Internal citations omitted.)

Here, through the testimony of its witnesses, the state established that Cox did in fact form an agreement with Brown to transfer cocaine to the C.I. Cox and Brown arrived together at the arranged location to deliver the cocaine. While Brown waited in his vehicle, Cox went to the C-I.’s room and obtained the money for the purchase. Cox and Brown then exchanged money and drugs. These facts clearly establish the agreement between Cox and Brown to transfer cocaine to the C.I. The latter elements of distribution of cocaine were not established until after Cox delivered the cocaine to the C.I. As stated above, there was sufficient evidence presented by the state to establish the essential elements of distribution of cocaine. Therefore, this assignment is without merit.

112Ineffective Assistance of Counsel

In his last assignment of error, Cox, in his pro se capacity, argues that he received ineffective assistance of counsel when his attorney failed to request a subpoena to secure the testimony of the C.I. who was identified during the trial. Cox contends that the C.I.’s testimony would have benefited him in that the C.I. would have testified that the defendant was only acting as a liaison between the C.I. and the “actual” drug dealer, Antonio Brown.

As a general rule, a claim of ineffective assistance of counsel is more appropriately raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App. 2d Cir.09/26/07), 966 So.2d 139, writ denied, 2007-2190 (La.04/04/08), 978 So.2d 325. A motion for new trial is also an accepted vehicle by which to raise such a claim. Id. Here, since the record is sufficient, we will resolve this on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,-394 (La.App. 2d Cir.09/27/95), 661 So.2d 673.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. King, 2006-1903 (La.10/16/07), 969 So.2d 1228; State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed 118by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that his attorney was ineffective, Cox first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, 41,745 (La.App. 2d Cir.04/04/07), 954 So.2d 823, writ denied, 2007-1193 (La.12/07/07), 969 So.2d 629.

Second, Cox must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, ie., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App. 2d Cir.04/05/95), 653 So.2d 174, writ denied, 1995-1398 (La.11/03/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclu-sory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App. 2d Cir.04/03/02), 813 So.2d 1123, writ denied, 2002-1570 (La.05/30/03), 845 So.2d 1067.

Louisiana has a strong public policy in favor of protecting the identity of confidential informants. State v. Davis, 411 So.2d 434 (La.1982); State v. Hall, 549 So.2d 373 (La.App. 2d Cir.1989). The defendant bears the burden of showing exceptional circumstances which would require divulging a confidential informant’s identity; the trial court has much discretion in deciding whether disclosure is warranted. State v. Oliver, 430 So.2d 650 (La.1983), cert. denied, 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 688 (1983); State v. Babbitt, 363 So.2d 690 (La.1978); State v. Hall, supra. A showing that the informant participated in the crime constitutes exceptional circumstances requiring disclosure. State v. James, 396 So.2d 1281 (La.1981); State v. MacDonald, 390 So.2d 1276 (La.1980); State v. Humphries, 463 So.2d 804 (La.App. 2d Cir.1985); State v. Zamora, 430 So.2d 274 (La.App. 5th Cir.1983), writ denied, 437 So.2d 1149 (La.09/16/83).

Although defense counsel could have secured the C.I.’s testimony, Cox fails to show that his counsel’s decision was not part of a trial strategy, or that it fell below the standard of reasonableness. Furthermore, Cox has lisfailed to show how his defense was prejudiced by his attorney’s failure to subpoena the C.I. Arguably, even if the C.I. were subpoenaed and did in fact testify that the defendant was merely “helping” her obtain drugs from Brown, this would not overcome the evidence that established the fact that Cox did in fact distribute drugs to the C.I. and conspired with Brown to sell the drugs. Cox fails to show that but for trial counsel’s error, there was a reasonable probability the outcome of the trial would have been different. In short, Cox does not refute that the events transpired and accordingly the C.I.’s testimony cannot change Cox’s criminal conduct that was clearly established as set forth in this appeal. As such, this argument is without merit.

CONCLUSION

For the foregoing reasons, Allen Dale Cox’s convictions and sentences are affirmed.

AFFIRMED.

      . We are unclear as to why the C.I.’s identity was disclosed during the trial and without objection.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Krystal Shantelle EGAN, Appellant.
    No. 44,879-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.

      Marti Grosjean, for Appellant.
    Charles Rex Scott, II, District Attorney, Jason T. Brown, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and LOLLEY, JJ.
   GASKINS, J.

¡¡The defendant, Krystal Shantelle Egan, was charged with one count of pos-' session of Schedule II controlled dangerous substance (CDS), i.e., cocaine, over 28 but less than 200 grams. Pursuant to a plea agreement, she pled guilty to one count of attempted possession of Schedule II CDS over 28 but less than 200 grams; there was no agreed sentence. The trial court sentenced the defendant to serve five years imprisonment at hard labor. She appeals. We affirm the defendant’s conviction and sentence.

FACTS

In the fall of 2007, agents of the Shreveport Police Department (SPD) were investigating the defendant and her boyfriend, Libert Roland, for suspected trafficking in illegal drugs. On October 18, 2007, the agents observed that the defendant and Roland used a rental car to drive to Dallas, Texas, and return on the same day. When the pair returned to Shreveport, an SPD officer following the car saw Roland, who was driving, commit a traffic violation; the officer activated his lights and siren to stop the rental car. Roland sped up, engaging the police in a high speed chase, but police eventually stopped the suspects.

During the chase, Roland threw a bag out of the car. Police later recovered the bag from the side of the road; it contained a quantity of cocaine, as well as marijuana and MDMA (Ecstasy). Roland, who had a long criminal history including at least four felony convictions, admitted to routinely making trips with the defendant to buy cocaine in Dallas which they resold in Shreveport.

12Subsequent investigation revealed that the defendant, who worked at a fast food restaurant, had rented cars in her name on September 29, 2007, October 5, 2007, and October 9, 2007, and put hundreds or thousands of miles on the cars, incurring over $1,000 in rental fees. However, the defendant denied to the police that she had knowledge of the cocaine in the vehicle.

The state charged Roland and the defendant together with possession of Schedule II CDS over 28 grams but less than 200 grams. Roland was also charged with possession of marijuana, third offense. The defendant initially pled not guilty, but on May 7, 2008, she appeared in court with her attorney and, pursuant to a plea agreement, pled guilty to attempted possession of Schedule II CDS over 28 grams but less than 200 grams.

At the guilty plea hearing, the trial court questioned the defendant about her understanding of the plea. She said that she was 23 years old, that she had a ninth-grade education, and that she could read, write, speak, and understand English. She affirmed that she understood that, by pleading guilty, she gave up her triad of rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)—i.e., her right to a trial by judge or jury, her right to confront the witnesses against her, and the privilege against self-incrimination. She also affirmed that she understood that there was no guaranteed sentence and that her potential term of imprisonment could be as long as 15 years at hard labor. The trial judge accepted the defendant’s plea and ordered both sides to provide him with any information they wanted him to consider in imposing sentence.

| sAt the defendant’s sentencing on December 17, 2008, the trial court indicated that it had reviewed the matter. Due to her weekly car rentals, the thousands of miles placed on the cars, and her employment at a fast food restaurant, the court expressed disbelief of the defendant’s claim that she did not know about the cocaine trafficking. The court sentenced the defendant to serve five years’ imprisonment at hard labor, with credit for time served, but did not impose any fine.

On December 29, 2008, the defendant filed a motion to reconsider sentence. The motion asserted that the sentence was excessive and unconstitutional because the maximum penalty for attempted possession of Schedule II CDS under La. R.S. 40:967(C) and La. R.S. 14:27 was two and one-half years and the court imposed a five-year sentence. On January 7, 2009, the court signed an order fixing the motion to reconsider for a hearing on May 12, 2009. Simultaneously, the defendant also filed a motion for an appeal bond and a motion for appeal. However, there are two copies of both of these motions in the record. On the first copy of each document, there is a handwritten notation from the trial court finding the motions to be premature; these were apparently made on or about January 7, 2009. On the second copy of the motion for an appeal bond, the court, on April 9, 2009, set that motion for a hearing on May 12, 2009. On the second copy of the motion for appeal, the court granted the defendant an appeal on April 9, 2009, with a return date of June 22, 2009. The minutes of court do not reflect any hearing or action on May 12, 2009, and there is |4no indication in the record that the trial court has ruled upon the defendant’s motion to reconsider sentence.

The defendant now appeals, urging six assignments of error.

INEFFECTIVE ASSISTANCE OF COUNSEL

The defendant argues that her trial counsel was ineffective because he allowed her to plead guilty. In particular, the defendant urges that her attorney failed to explain and fully inform her of the trial process, possible defenses, consequences of entering a guilty plea or possible sentence exposure.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires the defendant to show that counsel’s deficient performance prejudiced her defense.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (PCR) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied, 2007-2190 (La.4/4/08), 978 So.2d 325. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ellis, supra.

IfiThe transcript of the defendant’s guilty plea shows that she affirmed to the trial court that she understood the terms of her guilty plea and desired to plead guilty. The plea colloquy is facially adequate, and in particular, the defendant indicated that she understood that there was no guaranteed sentence. We find that the record contains no evidence supporting the defendant’s claims of ineffective assistance.

This assignment of error is without merit.

FREE AND VOLUNTARY GUILTY PLEA

The defendant argues that her plea was invalid because no one, including the trial court, explained the “circumstances surrounding entering a guilty plea.” She further argues that her plea is invalid because the trial court did not inquire whether she was satisfied with her counsel’s representation, whether she had discussed the consequences of her plea, or whether she understood the ramifications of entering a plea.

The Louisiana Supreme Court adopted the federal constitutional standards set out in Boykin v. Alabama, supra, which requires that a guilty plea be recorded and show that the defendant was informed of and waived three specific federal constitutional rights. These rights are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. State v. Guzman, 1999-1528, 1999-1753 (La.5/16/00), 769 So.2d 1158, 1163, fn. 4; State v. Warren, 42,699 (La.App.2d Cir.10/24/07), 968 So.2d 909, writ denied, 2007-2485 (La.5/16/08), 980 So.2d 707.

| ^Although inquiry as to the defendant’s satisfaction with counsel is sometimes made as part of the trial court’s determination of voluntariness, it is not a requirement for a valid guilty plea. State v. Douglas, 39,036 (La.App.2d Cir.10/29/04), 888 So.2d 982, writ denied, 2004-3146 (La.4/1/05), 897 So.2d 601.

In the instant case, the transcript of the plea colloquy shows that the court determined that the defendant could read, write, speak and understand English prior to explaining the rights she was giving up by pleading guilty. The court then explained to the defendant that she was giving up the right to a trial by judge or jury, her privilege against self-incrimination, and her right to confront the witnesses against her. The defendant affirmed that she understood these rights and wished to waive them by pleading guilty. Nothing in this record supports the defendant’s claim that her plea was not knowingly and voluntarily entered.

This assignment of error is without merit.

MOTION TO RECONSIDER AND MOTION FOR APPEAL BOND

The defendant argues that the trial court erred by not ruling on her motion to reconsider sentence or her motion for an appeal bond. Regarding the failure of the court to rule on a motion to reconsider sentence, this court held in State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297:

According to La. C. Cr. P. art. 916(3), the trial court retains jurisdiction to “take other appropriate action pursuant to a properly made or filed motion to reconsider sentence” even after an order of appeal is entered. Further, La. C. Cr. P. art. 881.1(C) states that “the trial court may resentence the |7defendant despite the pendency of an appeal or the commencement of execution of that sentence.” In addition, no provision within the Code of Criminal Procedure prohibits an appellate court from reviewing a sentence for constitutional excessiveness in spite of the trial court’s failure to rule on a motion to reconsider sentence. Further, an appellate court may review a sentence for constitutional excessiveness even if the defendant fails to file a motion to reconsider sentence. Therefore, this court may review Defendant’s sentence for constitutional excessiveness in spite of the pending motion to reconsider sentence. Should the trial court later rule upon Defendant’s motion to reconsider sentence, Defendant may seek appellate review of that decision pursuant to La. C. Cr. P. art. 914(B)(2).

Thus, the absence of a ruling on the motion to reconsider sentence does not affect this court’s ability to consider the constitutional excessiveness of a defendant’s sentence on appeal.

Moreover, there is no indication in the record that the defendant attempted in the trial court to provoke a ruling from the lower court on the motion for an appeal bond. Further, there is no evidence that the defendant sought supervisory relief from any alleged failure of the trial court to rule upon the motion.

In the absence of a showing that any relief is warranted, these assignments of error are without merit.

EXCESSIVE SENTENCE

In her final two assignments of error, the defendant urges that the trial court imposed an excessive sentence and failed to consider mitigating factors in her favor.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The |sarticulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Harris, 43,037 (La.App.2d Cir.1/30/08), 974 So.2d 849. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Harris, supra.

|9No requirement exists that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385. The trial court shall exercise its sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La.1981). The trial court has broad discretion to sentence within the statutory limits, and the appellate court will not set aside a sentence as excessive absent a showing of manifest abuse of discretion. State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710.

Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792; State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430.

The record reflects that the defendant was originally charged with possession of Schedule II CDS over 28 but less than 200 grams, a violation of La. R.S. 40:967(F)(l)(a). Pursuant to a plea bargain, she pled guilty to the attempted offense. The sentence range for the charged offense is from five years to 30 years imprisonment at hard labor and a fine of not less than $50,000 or more than $150,000. By pleading guilty to the attempted offense, the defendant cut her maximum sentence exposure in half.

JjThe record also reflects that the defendant repeatedly rented cars in her name and put substantial mileage on them in a short time, incurring large rental fees despite her employment at a fast food restaurant. The facts strongly suggest that the defendant was knowingly and deliberately involved in the scheme to possess a large quantity of narcotics, a quantity that was wholly inconsistent with possession for personal use. The trial court correctly considered this to be the most significant factor in imposing the defendant’s sentence. Finally, the five-year sentence imposed is hardly shocking to the conscience; it is only one-third of the maximum exposure.

These assignments of error lack merit.

CONCLUSION

The defendant conviction and sentence are affirmed.

AFFIRMED.

      . However the attempt charge to which the defendant pled guilty involved La. R.S. 40:967(F)(l)(a), not La. R.S. 40:967(C).


author: MOORE, J.

text:
    Patricia CORBIN, Plaintiff-Respondent v. LOUISIANA DEPARTMENT OF HIGHWAYS, State of Louisiana, Defendant-Applicant.
    No. 44,882-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.
    James D. “Buddy” Caldwell, Attorney General, for Applicant.
    John Albert Ellis, Assistant Attorney General, Guerriero & Guerriero by: Kevin D. Alexander, Jeffrey D. Guerriero, Joe D. Guerriero, for Respondent.
    Before BROWN, WILLIAMS and MOORE, JJ.
   MOORE, J.

_JjThis matter comes before the court from our grant of the state’s supervisory writ application filed in the Fourth Judicial District Court, Ouachita Parish, the Honorable Alvin Sharp presiding.

The state Attorney General’s office filed a motion for involuntary dismissal of the plaintiffs original petition filed on December 9, 2005, for failure to request service of citation within the 90-day prescriptive period required under La. R.S. 13:5107(D). After a contradictory hearing on May 27, 2009, the trial court denied the motion. We granted a writ of review to determine whether the trial court correctly denied the state’s motion. After review, we recall the writ and remand for further proceedings.

FACTS

The plaintiff, Patricia Corbin, was a guest passenger in a one-car automobile accident on March 26, 2005. The vehicle, driven by Marvin D. Ferlicca, was heading west on Louisiana Highway 546 when it ran off the right side of the road. Ferlicca lost control of the vehicle as he tried to correct his path. The vehicle traveled in the ditch and ultimately struck a pine tree on the right-front side of the vehicle, allegedly injuring Corbin.

Corbin filed a petition for damages against the “Louisiana Department of Highways, State of Louisiana,” on December 9, 2005, alleging that the state knew or should have known of the severe drop-off of the shoulder on both the north and south sides of Hwy. 546, which was dangerous to vehicles and was the cause of the accident resulting in |2Corbin’s injuries.

Corbin’s counsel requested service on “Commissioner Kay Hodges” in Baton Rouge. Hodges was an employee of the Department of Public Safety and Corrections (“DPSC”) at that time. The record shows that Hodges was personally served with the petition and citation on December 13, 2005.

On March 3, 2006, Corbin’s counsel filed a motion for leave of court to file a first amended petition, requesting permission to amend the original petition for purposes of correctly naming the proper defendant. The motion was granted on March 7, 2006, and on that same day, Corbin filed her First Amended Petition identifying the sole defendant as “State of Louisiana, Department of Public Safety and Corrections, whose agent for service of process ... is J. Albert Ellis, 201 Johnston Street, Suite 100, Alexandria, Louisiana.” The plaintiff adopted by reference all the allegations in the original petition and requested service on the newly named sole defendant by and through Mr. Ellis. A sheriffs return in the record indicates service of citation on March 9, 2006.

Finally, on May 30, 2006, Corbin filed a motion for leave to file a second amended petition in order to correctly identify the proper defendant, the Department of Transportation and Development for the State of Louisiana (“DOTD”). The motion was granted on June 1, 2006, and on that same day, the plaintiff filed her Second Amended Petition naming the DOTD and again adopting by reference all the other allegations in the original petition. Corbin requested service of the original petition, the First LAmended Petition, and the Second Amended Petition on the DOTD, through its agent for service of process, Johnny Bradberry, the Secretary of DOTD in Baton Rouge, Louisiana. The record shows that service of citation was made in person on June 14, 2006, on the “DOTD Legal” office.

On March 12, 2009, nearly three years after the Second Amended Petition was served on DOTD along with the two prior petitions, the state filed a motion for involuntary dismissal of plaintiffs original petition pursuant to La. C.C.P. art. 1672(C), asserting the plaintiffs failure to comply with La. R.S. 13:5107(D)(2). After a contradictory hearing on May 27, 2009, the trial court denied the motion without reasons. Following the ruling, the DOTD filed an application for a supervisory writ, which this court granted and docketed.

For the following reasons, we now recall the writ.

Discussion

The appellate record contains no transcript of the contradictory hearing on the defendant’s motion for involuntary dismissal. The court gave no reasons for judgment. Nor do the court minutes and written judgment provide any assistance to this court in our determination. This presents a problem in this case because we assume that the trial court denied state’s motion under La. C.C.P. art. 1672(C) on grounds that the plaintiff showed “good cause” for not requesting service on the defendant within the delays allowed by law. This is clearly a factual issue subject to the manifest error standard. Taylor v. LSU Med. Ctr., 38,944, p. 4 (La.App. 2 Cir. 10/14/04), 892 So.2d 581, 584, writ denied, 05-0480 (La.5/20/05), 902 So.2d 1049. Counsel for the plaintiff offers us no factual account for the apparent finding of good cause by the trial court.

In this instance, however, the record is sufficient for the court to determine the facts regarding service of process and the factual narratives of each party regarding service are essentially the same. Our review then is limited to whether the trial court correctly applied the law to the very limited issue of the service of process requirements of La. R.S. 13:5107.

DOTD contends that the trial court erred in denying the state’s motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(C) and R.S. 13:5107(D)(2).

Article 1672(C) reads:

C. A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) upon the sustaining of a declina-tory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

La. R.S. 13:5107(D) reads:

(1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
L(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue.

La. R.S. 13:5107(D)(1) thus requires that when a petition is filed against a state agency, service must be requested within 90 days of the commencement of the action or within 90 days of the filing of an amended petition which “initially” names the state agency. Failure by the plaintiff to request service within 90 days requires that the action be dismissed after a contradictory motion. The contradictory motion mentioned in R.S. 13:5107 is a motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(C). To avoid dismissal of the petition, the plaintiff must show “good cause” for either failing to request service or that service was untimely. Filson v. Windsor Court Hotel, 04-2893(La.6/29/05), 907 So.2d 728.

In this instance, the original petition filed on December 9, 2005, did not name an existing state agency as the party defendant, nor was service of process requested on the appropriate agent for service of process for the DOTD, plaintiffs intended target in the suit. Although it did request service on Kay Hodge, an employee of the DPSC, within 90 days of filing the original petition, the supreme court has held that “[t]he requirement that service upon defendant be requested within the 90-day period should reasonably be read to require an accurate request of service upon the proper agent for defendant. Barnett v. Louisiana State University Medical Center-Shreveport, 02-2576 (La.2/7/03), 841 So.2d 7251 (emphasis supplied).

It was riot until the plaintiff filed the Second Amended Petition on June 1, 2006, that it “initially named” the DOTD as defendant in the suit and reiterated its original allegations contained in the original petition. The plaintiff requested service on the Johnny Bradberry, secretary of the DOTD and the appropriate agent for service of process, within the 90-day period as required by R.S. 13:5107(D)(1) when an amended petition initially names a state agency as defendant. Clearly then, the DOTD cannot, and indeed, does not, complain about the timeliness of service or proper agent for service regarding the Second Amended Petition. In point of fact, the state’s motion for involuntary dismissal is directed solely at the original petition, which was served on the DOTD along with the First and Second Amended petitions.

We conclude, however, that the state’s motion for involuntary dismissal under La. C.C.P. art. 1672(C) pursuant to violation of R.S. 13:5107(D)(1) is misguided. The original petition was filed against the Department of Highways, a nonexistent entity, which also means that it is not a state agency. Thus, dismissal for failure to request service of process within 90 days under R.S. 13:5107 was not triggered by the original petition and original request for service on Kay Hodges, at least not with respect to DOTD, because DOTD was not a named defendant. See Taylor v. LSU Med. Ctr., supra at p. 590. There, pursuant to R.S. 13:5107, LSUHSC filed a motion for involuntary dismissal of the plaintiffs petition filed against LSU Medical Center, a “misnamed non-entity,” and requested service on |7CT Corporation, which was not LSUHSC’s agent for service of process. We held that the motion was inappropriate.

Perhaps the state recognized this problem when it filed the instant motion for involuntary dismissal identifying itself as the Department of Highways, an entity it claims does not exist. Be that as it may, DOTD believed that it was required by our decision in Taylor to file a motion for involuntary dismissal of the original petition rather than file its peremptory exception of prescription, fearing that filing the latter first would constitute an appearance waiving service of process. However, the waiver of service of process in Taylor concerned service of the amended petition, not the original petition, which did not name LSUHSC as a defendant.

We noted in Taylor that where the initial petition was filed against a misnamed nonentity, LSUMC, and service was requested on CT Corporation, which was not LSUHSC’s agent for service of process, “the initial petition and service of process were therefore completely insufficient to support any action of the court or judgment against LSUHSC, which was not named in the suit.” Taylor, supra at 589. Accordingly, when Taylor amended her petition and initially named LSUHSC as defendant, but apparently did not obtain service on LSUHSC within 90 days, we stated that LSUHSC’s motion for involuntary dismissal of the original petition against LSUMC under R.S. 13:5107(D) was not only inappropriate regarding the ^original petition in which it was not a named defendant, but we concluded that the same “pre-amendment” motion could not be revived for purposes of the amended petition without filing a new motion. We further held that LSUHSC had waived service of process regarding the amended petition because it filed a peremptory exception of prescription without first filing a new motion for involuntary dismissal for failure to request service of process within 90 days as required by R.S. 13:5107,

Thus, while Taylor is instructive, it is distinguishable from the instant case, because there is no question that Corbin requested service within 90 days of filing the Second Amended Petition, as was the case in Taylor with the plaintiffs amended petition. Corbin’s request of service of the original petition on DOTD’s agent for service of process along with service of the Second Amended Petition does not also change the fact the defendant named in the original petition was a misnamed nonentity and therefore R.S. 13:5107 is not implicated.

Thus, the trial court correctly denied the motion for involuntary dismissal of the Original Petition under La. C.C.P. art. 1672(C) and La. R.S. 13:5107(D), inasmuch as the DOTD is not the named defendant or state agency in the original petition, and, in fact, the original petition does not name any state agency as defendant. As previously stated, the plaintiff timely requested service of process on the correct agent for service of her Second Amended Petition naming the DOTD as defendant. However, the |flDOTD cannot use La. R.S. 13:5107(D) to obtain dismissal of the original petition since it is not the named defendant in the petition, 'nor does the petition name a state agency.

The issue of whether the Second Amended Petition relates back to the filing of the original petition for purposes of the one-year prescriptive period for tort actions is a separate and distinct issue from the question of service of process and is not before this court.

DECREE

Accordingly, the judgment of the trial court is affirmed. We recall our previous writ grant, deny the writ application, and remand to the trial court for further proceedings. Costs are not assessed. La. R.S. 13:4521.

WRIT RECALLED; WRIT DENIED; REMANDED.

      . The Louisiana Department of Highways was abolished by enactment of La. R.S. 36:509 by 1977 La. Acts No. 83, § 1. It was replaced by a new agency, the Louisiana Department of Transportation and Development, in 1977.

      . In his dissent to the original opinion of the panel, J. Caraway stated at p. 587: "Arguably, that motion was inappropriate because, pursuant to La. R.S. 13:5107(D), the suit had not been previously filed naming LSUHSC so that service of citation upon LSUHSC had not been withheld for over ninety days within the strict context of that law." As the author of the opinion on rehearing, J. Caraway noted again that "it is significant to note that at the time LSUHSC filed its motion to dismiss, Taylor was not in violation of the procedural rule embodied in La. R.S. 13:5107(D). Suit had not been filed against LSUHSC, and service of citation upon LSUHSC had never been withheld.” Taylor, supra at 589.

      . Taylor, in fact, did request service of process of the amended petition on LSUHSC within 90 days of filing. However, for reasons unknown, service was not ordered by the clerk of court on LSUHSC. Had LSUHSC filed a new motion for involuntary dismissal, Taylor would have had an opportunity to prove she requested service of process within the prescribed time.


text:
    Carolyn DAVIS, Plaintiff-Appellant v. John W. RUSSELL, Defendant-Appellee.
    No. 44,909-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.
    Tom N. Thompson, for Appellant.
    Jones, Odom, Davis & Politz, LLP, by Nyle A. Politz, for Appellee.
    Before CARAWAY, MOORE & LOLLEY, JJ.
   MOORE, J.

| ,The defendant contractor walked off the job before completing a building contract with the plaintiff. Over the next 10 years, the plaintiff used other contractors to finish the job. She then sued the defendant for the cost of completion. Although the trial court rendered judgment in her favor, the plaintiff appeals, contending that the damage award is far too low. We affirm.

FACTS

John W. Russell, a home remodeler, entered into a contract with Carolyn Davis on January 16, 1996, to build a doll museum annexed to her home to display her antique dolls and other collectibles. Ms. Davis had herself been involved in building and remodeling over 30 homes. In this instance, Ms. Davis supplied the plans for the two-story structure measuring approximately 16' x 32', which is roughly 1,000 square feet. The plans contained no materials list, however. Ms. Davis testified that she obtained bids from several contractors who submitted bids at or about the same price as Mr. Russell’s bid.

Russell testified that he took the plans and determined the materials needed and estimated his cost to build the structure and estimated his time. He did not reduce these materials and calculations to writing, stating that he did these calculations in his head. He submitted a bid to the plaintiff offering to build the structure for $50,000 under the following handwritten contract:

16 Jan 1996
Carolyn Khoury
12445 living Bluff
Shreveport, La. 71107
1 doll house
close to plains [sic]
stained ceader [sic] siding
eeader shinge [sic] roof
cabnet [sic] work aeording [sic] to
plain with minor adjments [sic]
steel & concrete intrance [sic] steps
$50,000.00

John Russell

Between April and August of 1996, Ms. Davis advanced Mr. Russell several payments totaling $42,000. Mr. Russell worked on the project until August 15, 1996, when he gathered his tools and told Ms. Davis he was leaving. Both parties agree that under the contract, Russell was not responsible for installing any of the plumbing, electrical, heating and air conditioning, carpet, security system or music system. Mr. Russell testified that he contracted to build the structure and close in the outside. He said he was also supposed to build the display cubicles and cabinets. The parties disputed, however, whether Russell was to paint the interior and exterior. There is also disagreement over payment regarding a protected walkway from the home to the new structure, which Russell said would require an additional $2,000. Ms. Davis said that she understood that the money would come from $2,000 taken off the price when she agreed to allow sheet rock for the walls rather than plywood.

Tensions apparently arose after Ms. Davis made some changes in the specifications and materials that Russell had selected to build the structure. |sThe first change was in the siding, which Russell testified cost $300 more, and was much more expensive to install. Additionally, although the plans called for cedar shingles, Ms. Davis changed the shingles Russell had picked to cedar shingles she located in Canada that had to be hand nailed rather than stapled with a gun. Russell said this cost him $1,500 more to install. Russell also testified that Ms. Davis wanted the door trim to match the trim in her house, which required Russell to fabricate the trim himself since the style was no longer sold on the market.

Ultimately, in August of 1996, after Ms. Davis had refused to pay Russell $1,500 for the extra expense of the shingles, he walked off the job and did not return. Ms. Davis somewhat disagrees with this account, stating that she had not ruled out paying the $1,500, but felt that Mr. Russell needed to complete more of the project before she advanced any more money.

Ms. Davis testified regarding several parts of the project that were left incomplete which included all of the trim and painting the interior walls and papering, the (sub)flooring, a bay window, cabinets, display cubicles, staining and finishing the cabinets and exterior, vents and several other things. None of the windows were installed. Russell simply left a tarp to cover the openings.

Ms. Davis testified that she did not have the funds to hire someone to complete the project. Over a period of 10 years (mostly toward the end of the 10 years) Ms. Davis had the project completed. She contended the cost of completion was $62,101.54.

|,(At trial, Ms. Davis introduced into evidence several photographic exhibits of the incomplete work, and the cancelled checks and ledger entrees showing the amount of money she paid Russell and the amount of money she spent to finish the project. Russell introduced no evidence of receipts for the materials and labor for the $42,000 he was advanced. He said it was too long ago and he had thrown them away. Neither party introduced any expert testimony. Ms. Davis also introduced exhibits showing the amounts of money she spent to complete the project.

After the bench trial, the trial court concluded that Mr. Russell had breached the contract by walking off the job. It concluded, however, that Ms. Davis “either greatly overpaid or was greatly overcharged what it took to finish out the project.” The court found that an appropriate cost to complete the remainder of the contract with Mr. Russell was $15,000. However, this amount was subject to a reduction for the $8,000 remaining on the $50,000 contract and also subject to a reduction of $1,500 for the additional costs of installing the different shingles.

Applying the credits to the judgment, Ms. Davis received $5,500, plus court costs and interest from the date of judicial demand.

This appeal followed.

DISCUSSION

Ms. Davis’s sole assignment of error is that the trial court erred in awarding only $15,000 of the $62,101.54 required for her to complete the contract that Mr. Russell was required to complete. She contends that the labor costs alone to complete the project were $48,282.67 as shown by [.^Exhibits 1-1 ttoough 1-95.

In support of her claim, Ms. Davis submitted into evidence an impressive number of exhibits. These highly organized exhibits include literally dozens, perhaps well over a hundred, cancelled checks, ledger entries, receipts of items from nails to glass to paint supplies, etc., and invoices for work and materials from various companies. The exhibits also contain photographs of the state of completion at the time Mr. Russell walked off the job. Based upon these exhibits and her testimony, the plaintiff thus contends that she has carried her burden of proving that she spent the amount claimed to finish the project that Mr. Russell was supposed to do.

Contracts have the effect of law for the parties and must be performed in good faith. La. C.C. art. 1983. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. Where factual findings are pertinent to the interpretation of a contract, those factual findings are subject to the manifest error standard of review. Industrial Roofing & Sheet Metal Works, Inc. v. J.C. Dellinger Memorial Trust, 32,-048 (La.App. 2 Cir. 8/20/99), 751 So.2d 928, writs denied, 99-2948, 99-2958 (La.12/17/99), 752 So.2d 166. In applying this standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. If the fact finder’s findings are reasonable in light of the record, viewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed Ifithe evidence differently. Reasonable evaluations of credibility and inferences of fact should not be disturbed upon review where conflict exists in the testimony. Absent a finding of manifest error, the judgment should be upheld. Peterson Contractors, Inc. v. Herd Producing Company, Inc., 35,567 (La.App. 2 Cir. 2/27/02), 811 So.2d 130.

La. C.C. art. 2769 governs damages for breach of building contracts. It provides:

If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.

The standard for reviewing the award of damages for breach of contract is whether the trial court abused its discretion. Mount Mariah Baptist Church, Inc. v. Pannell's Associated Electric, Inc., 36,-361 (La.App. 2 Cir. 12/20/02), 835 So.2d 880, writ denied, 2003-0555 (La.5/2/03), 842 So.2d 1101; Hernandez v. Martinez, 2000-1282 (La.App. 5 Cir. 2/28/01), 781 So.2d 815. For a breach of a building contract under La. C.C. art. 2769, the appropriate measure of damages is the cost of repairing any defects or of completing the work. Mount Mariah Baptist Church, Inc., supra; Guy T. Williams Realty, Inc. v. Shamrock Construction Company, 564 So.2d 689 (La.App. 5 Cir.1990), writ denied, 569 So.2d 982 (La.1990). The plaintiff bears the burden of proof. Id.

In this instance, the trial court stated in its oral reasons that there was an agreement between the parties that was “not completely fleshed out.” The court found that Ms. Davis was entitled to “a reasonable claim for the costs to complete the job, subject to certain credits.” But it also found that |7“Ms. Davis either greatly overpaid or was greatly overcharged what it took to finish out the project.” It concluded that a reasonable sum to complete the project as Mr. Russell left it was $15,000. The court based this conclusion on the ratio of labor versus materials in what remained to be done on the project, the fact that Ms. Davis testified that other contractors had made bids at a price close to Mr. Russell’s bid, and finally, the amount claimed by Ms. Davis seemed unreasonable given the fact that the work involved merely completing unfinished carpentry work of this 1,000 foot building.

After our review, we conclude that the trial court did not abuse its discretion in this damage award. Ms. Davis is quite experienced in building projects, as she has built or remodeled over 30 homes. She testified that she recognized immediately from Mr. Russell’s handwritten bid offer that he had not protected himself in the written agreement since he did not state he was not responsible for heating, plumbing, etc. It is also clear from this record that Ms. Davis is very meticulous in keeping records and has very high expectations from contractors.

The contract itself simply stated that Mr. Russell would build the “doll house” according to the plans. There was no materials list or “punch list” to indicate the exact degree of completion required and the quality of the materials expected. Even though Mr. Russell admitted that Ms. Davis obtained completion of the project “like I would have loved to have built it,” and perhaps he earlier stated in a deposition that “it’s completed like it was supposed to be,” we think there is enough ambiguity in Mr. Russell’s |stestimony as well as other indicators of disagreement that there was a disparity between what Ms. Davis envisioned and what Mr. Russell thought his end of the bargain entailed.

Finally, the fact that Ms. Davis paid an additional $48,232.67 in labor to finish the work required in the contract with Mr. Russell even after Mr. Russell had spent four to five months working on the building surely indicates that something is amiss. This figure indicates that Ms. Davis spent nearly $105,000 to build a 1,000 square foot unfinished structure exclusive of plumbing, electrical wiring, heating and air conditioning and so on.

Accordingly, we conclude that the damage award fashioned by the trial court was objectively reasonable and did not constitute an abuse discretion. The judgment is therefore affirmed.

AFFIRMED.

      . "Khoury" is the plaintiff's former last name by marriage.


author: GASKINS, J. CARAWAY, J.,

text:
    Andrea HUGHES, Plaintiff-Appellee v. T.G. MERCER CONSULTING SERVICES, Defendant-Appellant.
    No. 44,908-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.
    Rehearing Denied Jan. 21, 2010.

      Cook, Yancey, King & Galloway by Scott L. Zimmer, for Appellant T.G. Mercer Consulting Services, Inc.
    Street & Street by C. Daniel Street, for Appellee Andrea Hughes.
    Before BROWN, GASKINS and CARAWAY, JJ.
   GASKINS, J.

_|jln this appeal, the employer seeks review of a judgment holding that the workers’ compensation judge (WCJ) had extraterritorial jurisdiction pursuant to the Louisiana Workers’ Compensation Law (LWCL) and awarding benefits, penalties and attorney fees in favor of the claimant. We reverse the WCJ’s ruling.

FACTS

The claimant, Andrea Hughes, is a Teamster truck driver who lives near Goodwill, Louisiana. In March 2006, she received a phone message from Neil Grace, a Teamster steward who worked for T.G. Mercer Consulting Services. It concerned a job hauling pipe for Mercer from Granbury, Texas to Hillsboro, Texas. The message, which was saved and played at trial, was as follows:

Hi. This is Neil Grace and I just want to let you know that everything is good. They’ll be ready to put you to work Monday when you get there. So, if there’s any questions, please call me, [phone number], Y’all have a good day. Appreciate you. Bye-bye.

After receiving the message, the claimant phoned Mr. Grace to let him know that she was coming. The claimant and her fiancé, Dennis Self, who was also a truck driver, packed up her trailer and traveled to Texas where they both began hauling pipe for Mercer. A week later, on April 10, 2006, she was injured in an accident when another 18-wheeler rear-ended her truck. She allegedly received injuries to her head, neck and hands.

On March 27, 2008, the claimant filed a disputed claim for compensation with the Louisiana Office of Workers’ Compensation. She asserted that her benefits were reduced on December 26, 2007, and |2terminated on March 17, 2008. The claimant also contended that Mercer refused to pay for physical therapy recommended by Dr. Douglas Liles, her orthopedic doctor, and a nerve block recommended by Dr. Bernie McHugh, her neurosurgeon. She requested temporary total disability (TTD) benefits or alternatively supplemental earning benefits (SEBs), with penalties and attorney fees. Mercer filed a general denial on April 23, 2008.

On May 5, 2008, the claimant filed a motion for medical treatment, requesting that the employer be ordered to pay for a thoracic medial branch block recommended by Dr. John Ledbetter, her pain management doctor.

Mercer filed a motion for summary judgment; it alleged that the claimant received workers’ compensation pursuant to Texas state law, that she was working under a contract of hire made in Texas, that she was injured in Texas, and that her employment was principally located in Texas. Consequently, Mercer argued that there was no extraterritorial coverage under LWCL and the claimant was not entitled to benefits under Louisiana law.

On October 31, 2008, the claimant filed an opposition to the motion for summary judgment. She argued that the contract to hire her was made in Louisiana, thereby giving this state jurisdiction under La. R.S. 23:1035.1. In support of her argument, the claimant submitted a tape of the telephone message left by Mr. Grace, as well as her own affidavit. In the affidavit, she stated that she would not have traveled to Texas if there had been any | squestion about her being hired already. On November 14, 2008, the motion for summary judgment was denied due to the disputed material facts.

Trial was held on March 20, 2009. In addition to her own testimony, the claimant presented the medical records of her three treating physicians. She testified that she felt “very assured” that she had the job with Mercer before she left Louisiana. Had she not, she testified that she would not have packed up her trailer and made the trip to Texas. However, she admitted that she was aware that she had to pass a drug test and fill out paperwork in Texas before she began the job. She also conceded that the phone call was her first contact with Mr. Grace.

The employer presented the live testimony of Bruce Monroe, Mercer’s executive vice president in charge of operations, as well as the deposition testimony of Mr. Grace and Dr. Liles, the claimant’s orthopedic doctor. Mr. Monroe testified that Mercer is a specialty pipeline company dealing with line pipe; its drivers operate specialized trucks. According to Mr. Monroe, it obtained its drivers through a referral system that included union stewards like Mr. Grace calling drivers to show up at a location for a job; however, not all drivers who showed up are hired. The drivers were not actually hired by the company until after they filled out paperwork, passed drug tests and demonstrated their driving abilities. According to Mr. Monroe, Mr. Grace represented the union, not the company, and had no authority to hire anyone on Mercer’s behalf. Mr. Grace likewise stated in his deposition that union stewards lacked that authority.

|4The WCJ ruled that she had jurisdiction under the extraterritorial jurisdiction provision of LWCL because the contract of hire occurred in Louisiana. In so ruling, she found that Mr. Grace had apparent authority to hire the claimant, that he did not extend conditions of hire, i.e., completion of an application or the passing of a drug test, and that the claimant was justified in believing that she was hired. She awarded TTD benefits of $76 per week from December 8, 2007, through March 21, 2008, and $450 per week from March 21, 2008, to the present and continuing in accordance with law, plus legal interest from due date of each payment until paid. Penalties of $4,000 and attorney fees of $6,000 were also awarded. Mercer was ordered to pay for all reasonable and necessary medical treatment, including but not limited to treatments by Dr. Ledbetter and Dr. McHugh. This included the MRIs recommended by Dr. McHugh. However, the WCJ found that the condition of the claimant’s thumbs and surgeries thereto were not related to her work injuries. Costs were assessed against Mercer.

The employer filed a suspensive appeal. The claimant answered the appeal, seeking additional attorney fees for her lawyer’s handling of the case on appeal.

EXTRATERRITORIAL COVERAGE UNDER LA. R.S. 23:1035.1

Law

La. R.S. 23:1035.1, the statute governing extraterritorial coverage of the LWCL, provides, in relevant part:

(1) If an employee, while working outside the territorial limits of this state, suffers an injury on account of which he, or in the event of his death, his dependents, would have been entitled to the benefits | .¡provided by this Chapter had such injury occurred within this state, such employee, or in the event of his death resulting from such injury, his dependents, shall be entitled to the benefits provided by this Chapter, provided that at the time of such injury
(a) his employment is principally localized in this state, or
(b) he is working under a contract of hire made in this state.

In determining whether a contract of hire is a Louisiana contract in a workers’ compensation case, the parties’ intent should be paramount. Dodd v. Merit Electrical, Inc., 44,035 (La.App.2d Cir.4/15/09), 8 So.3d 849; Haney v. B E & K Construction, 30,825 (La.App.2d Cir.8/19/98), 716 So.2d 514. Some factors to consider in determining the intent of the parties include domicile of the parties, the nature of the work to be done, and the place where the employment was initiated. Dodd, supra; Harvey, supra.

The determination as to whether a claimant was working under a contract of hire made in Louisiana is a factual one. See Baldwin v. North American Energy Services, 2007-667 (La.App. 3d Cir.10/31/07), 970 So.2d 101, writ denied, 2007-2310 (La.2/1/08), 976 So.2d 717. Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Dodd, supra. In applying the manifest error-elearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Dodd, supra. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993).

In eases involving communication between potential employees and union representatives, the courts have generally found no agency relationship between the union representative and the employer. In Molinario v. Hartford Insurance Company, 462 So.2d 253 (La.App. 4th Cir. 1984), a boilermaker responded to his local union’s invitation and traveled to Massachusetts to work on a project. His first contact with the employer was when he reported to work in Massachusetts, where he was later injured. The employer had no contacts with the state of Louisiana. The appellate court affirmed the lower court’s finding that no contract of hire was made in Louisiana and thus no jurisdiction existed under La. R.S. 23:1035.1(1)(b).

Likewise in Jarrell v. Employers Casualty Ins. Co., 499 So.2d 947 (La.App. 3d Cir.1986), writ denied, 501 So.2d 199 (La.1986), the appellate court affirmed a trial court ruling in the employer’s favor. There a Texas employer notified a Texas local of its need for workers; the Texas local, in turn, contacted a Louisiana local of which that plaintiff was a member. A business agent of the Louisiana local informed the plaintiff of the employment opportunity in Texas. The plaintiff reported to the Texas local and was then informed where to report for work. After completing paperwork, he was hired; he was later injured in Texas. The court found no 17evidence that the employer had given the Louisiana local actual or implied authority to hire on its behalf.

In Welch v. S.J. Groves & Sons Company, 555 So.2d 647 (La.App. 4th Cir.1989), writ denied, 558 So.2d 603 (La.1990), the plaintiff was contacted by the business manager of his local Louisiana union, who had been notified by a New Jersey union, of employment for heavy equipment operators in New Jersey. He reported to the New Jersey union hall where he was told where to report. He went to the job site and filled out application forms for the employer. He began working for the employer and was subsequently injured. The appellate court rejected the plaintiff’s argument that the Louisiana local acted as a hiring agent for the employer; therefore, it concluded that La. R.S. 23:1035.1 was not applicable because the contract of hire was not made in Louisiana.

However, in Mattel v. Pittman Construction, Company, 248 La. 540, 180 So.2d 696 (1965), an ironworker reported to the New Orleans union hall where he was told that the employer had a job available in Gulfport, Mississippi. He accepted the job, was made aware of the terms as to such things as wages and time, and left for Gulfport. Upon his arrival, he was immediately put to work; that same day, he was injured. The trial court dismissed the suit due to lack of jurisdiction and the appellate court affirmed. The supreme court reversed, finding that:

As a general rule, in bargaining or in other dealings with employers, a union represents only its members. However, when it and an employer enter into an arrangement such as is evidenced here the union becomes the agent of the employer (for employment purposes) and is authorized to make a job offer for the latter. Accordingly, the |,^acceptance of the offer by a prospective employee completes the contract of hiring.
In our opinion (based on the evidence adduced) it was contemplated that when the men ‘ordered’ by [the employer] were offered jobs on the Gulfport project by the union representative in New Orleans, and they agreed to go to the site, such workers were then hired and would be put to work under that contract of hiring. Therefore, since both the job offer to this plaintiff and its acceptance took place in Louisiana the contract is one in which this state has an interest and its courts have jurisdiction to apply the Louisiana compensation statute.

Factors considered by the supreme court in reaching its decision included the lack of evidence that the plaintiff made an application for employment, the apparent lack of authority for the foreman to reject any employee sent as a result of the employer’s request for ironworkers, and the absence of any suggestion that the employer had ever rejected a union employee sent to a construction site at its request.

Cases involving apparent authority have had mixed results. In Wilson v. Gulf Insurance Company, 431 So.2d 1095 (La.App. 3d Cir.1983), a driller was interviewed in Texas and said he understood he could hire a crew, although his crew would have to appear in Tyler, Texas, for final acceptance. Upon his return to Louisiana, he hired several hands including the claimant. When they went to Texas, the hands were issued equipment and checked into a hotel before they filled out any applications. The appellate court concluded that the employer had clothed the driller with apparent authority to hire the claimant, who could not be charged with knowledge of the employer’s internal personnel procedures. The court found that the collection of data upon the claimant’s arrival in Texas was a|fl“mere formality.” In Lakvold v. Stevens Transport, 95 0866 (La.App. 1st Cir.12/15/95), 665 So.2d 828, the plaintiff— who later suffered a stroke while working for the employer in New Jersey — was solicited in Louisiana by a recruiter for the employer and filled out an application in Louisiana. According to the appellate court, the plaintiffs employment began when the employer accepted his application and the contract of hire was made in Louisiana. While the employer contended that the plaintiff was not hired until he completed a one-week orientation in Dallas, the court found that the plaintiff could not be charged with knowledge of the company’s internal personnel procedures. It also noted that the employer sent the plaintiff money to cover his travel expenses and living expenses during orientation and dismissed additional paperwork completed in Texas as “merely a formality.”

Similarly, in Granger v. F.F.E. Transportation Service, 1998-127 (La.App. 3d Cir.5/13/98, 713 So.2d 667). 713 So.2d 667, a recruiter for the employer, which was based in Texas, visited a Louisiana truck driving school seeking drivers. The plaintiff and the recruiter discussed the salary that the plaintiff would receive during training. The plaintiff completed an application in Louisiana which she sent to the recruiter, who worked in the employer’s Shreveport office; the application was forwarded to Dallas. The plaintiff was sent a paid bus ticket to travel to Dallas for orientation and training. She was later injured in Indiana in a work-related accident. The court found that the recruiter had apparent authority to hire recruits which led the plaintiff to believe that she was hired before she left Louisiana.

In Chance v. Fidelity and Casualty Company of New York, 509 So.2d 593 (La.App. 3d Cir.1987), the plaintiff was contacted at his Louisiana home by a friend putting together a sandblasting and painting crew for a Texas work site. The agreement at which they arrived covered wages, room and board, and future employment. Upon his arrival in Texas, the plaintiff signed the necessary paperwork for the employer and immediately went to work. He was injured on his fifth day of work. The court found that the uncontro-verted evidence showed that at the time he agreed to join the crew, the plaintiff understood that the friend had been given authority to hire employees on the employer’s behalf. The court found that the employment contract was made in Louisiana.

However, in Smith v. Liberty Mutual Insurance Company, 473 So.2d 394 (La.App. 3d Cir.1985), the court found a phone call during which employment was discussed by the plaintiff at his Louisiana home and the general manager of the Texas-based employer was a “preliminary conference.” At a subsequent interview with the owner of the company, they discussed and settled wages and place of employment.- However, the employer required the plaintiff to secure a medical release pertaining to a prior health situation as a condition of the employment. The plaintiff obtained the release and began work for the employer. The court held that the contract was made in Texas when the plaintiff accepted the job offered at a fixed and determined salary. It found that the plaintiff was aware that the general manager lacked authority to hire him over the phone and that the owner made the ultimate employment decisions. A similar result was |,(reached in Hurtado v. CJC Service, Inc., 05-736 (La.App. 5th Cir.3/14/06), 926 So.2d 624, where a supervisor for the Georgia employer called the plaintiff in Louisiana. Although the salary was not settled, the plaintiff testified that the conversation ended with an “understanding” that he had the job. He traveled to Georgia where he filled out a form and interviewed with the company’s owner and operations manager, who testified that the supervisor lacked authority to hire personnel. The court found that he contract of hire was not made in Louisiana.

The courts have found in favor of the employee and held that the contract of hire was made in Louisiana in several cases involving phone calls placed by employers to Louisiana workers at home. See Welch v. Travelers Insurance Company, 225 So.2d 623 (La.App. 1st Cir.1969), writ refused, 254 La. 852, 227 So.2d 594 (1969) [the plaintiff was called in Louisiana, accepted the job offer, and left for Mississippi the next day]; Harvey v. B E & K Construction, supra [plaintiff spoke to personnel manager on the phone from his Louisiana home, learned details of job and accepted it; would not have traveled to Virginia unless certain of definite job on arrival]; Sigler v. Rand, 2004-1138 (La.App. 3d Cir.12/29/04), 896 So.2d 189, writ denied, 2005-0278 (La.4/1/05), 897 So.2d 611 [plaintiff 112called at Louisiana home by supervisor for employer; contract mailed to him at Louisiana home where he signed it before mailing it to employer’s Houston office]; Petticrew v. Abacus Capital Corp./North American Kiln Service, Inc. & LWCC, 07-405 (La.App. 5th Cir.12/11/07), 974 So.2d 692, writ not considered, 2008-0089 (La.3/7/08), 977 So.2d 914 [plaintiff called at Louisiana home by employee of New Jersey employer; after plaintiff agreed to accept job involving work in Pennsylvania, employer sent him a plane ticket and paid per diem and travel expenses from time plaintiff left home; only completed paperwork two or three days after beginning job]. See also Jepsen v. B-Con Construction Co., Inc., 475 So.2d 112 (La.App. 2d Cir.1985) [while in Louisiana, the decedent called supervisor for employer, which had home office in Louisiana; supervisor told him job available in Memphis; application filled out in Memphis but approved at Louisiana home office]; Baldwin, swpra [while claimant initiated phone call to supervisor for employer, all negotiations, drug testing, paperwork and agreements were performed and finalized in Louisiana; employer reimbursed claimant’s travel costs to go to Nevada]; Dodd, supra [Louisiana claimant and her husband contacted Georgia employer to seek jobs and were later called and told they were hired; paperwork sent to Louisiana to be filled out; drug test in Georgia was “formality” because no drug use; would not have moved entire family — including school-age children — to Georgia without reasonable expectation of jobs upon arrival].

Our review of the jurisprudence has also found several other cases involving the hiring of truck drivers. The case of Robinson v. Independent Freightway, 94-786 (La.App. 5th Cir.4/16/96), 673 So.2d 1091, writ denied, 96-1246 (La.6/21/96), 675 So.2d 1088, involved an Illinois trucking company and a Louisiana worker who submitted an employment application to the employer in Illinois, which accepted his offer to work for it. The employee signed the contract in Louisiana, and the employer | ¶(¡accepted the contract by signature in Illinois; the court concluded that the acceptance of the contract in Illinois gave rise to an Illinois contract of hire. In Parr v. U.S. Express Enterprises, Inc., 06-320 (La.App. 5th Cir.10/31/06), 946 So.2d 178, the plaintiff submitted an application at the employer’s “drop yard” in Louisiana for a job as an “over the road” truck driver; she was subsequently called and asked to attend a drivers’ orientation in Oklahoma. She admitted that she knew before leaving Louisiana that she had to complete orientation, pass her physical, and pass a road test before she could be hired as a driver. Despite her testimony that she would not have traveled to Oklahoma for an interview without a strong belief that she would be able to pass all of the required tests, the court found that the contract of hire was not made in Louisiana.

Testimony

Mr. Grace, the union steward, testified that he did not recall talking to the claimant. He said that he refers — not hires— drivers; Mr. Monroe hired Mercer’s drivers. He admitted that had he gotten the message he left, he “probably” would have thought that he had the job. However, as a driver himself, he testified that he knows that there are no guarantees and that a driver is not necessarily hired even if told that he is being “put to work.”

Mr. Monroe, Mercer’s executive vice president, testified that Mr. Grace is just a driver who was named a steward by the union. As such, he has no authority to hire for Mercer. He verified that Mercer did not send the claimant any paperwork in Louisiana or any travel money. As the person in 114charge of hiring for Mercer, he did not call her in Louisiana. He did hire the claimant when she showed up in Texas.

Because Mercer is in a very specialized area of the trucking industry, Mr. Monroe indicated that the driving test, in which the prospective driver demonstrates an ability to drive the sort of truck used by Mercer, is particularly important. He also testified that experience in driving these trucks is key. Mr. Monroe stated that drivers in this specialized industry are aware that federal law mandates the paperwork, the drug test, and the driving test that Mercer required; thus, it was unnecessary to acquaint prospective drivers with the need for compliance with these provisions. Both Mr. Monroe and Mr. Grace stated that union stewards do not have the authority to hire employees for Mercer.

The claimant admitted that Mr. Grace never told her that he had authority to hire for Mercer or what type truck needed to be driven. She was unable to say definitely that he told her what hours she would work; at trial, she indicated that he had, but in her deposition testimony she said he had not. She initially testified that she was told what the wages would be “when we went out there.” However, when questioned further, she indicated that she was referring to the phone call she got. The claimant also admitted that Mercer did not send her any paperwork in Louisiana or cover her travel expenses from Louisiana to Texas.

Discussion

The jurisprudence dictates that in determining whether a contract of hire is a Louisiana contract of hire, we first look to the intent of the parties, |15which is paramount. Among the factors to be considered in making this determination are the domiciles of the parties (the claimant resides in Louisiana whereas the employer is based in Texas) and the nature of the work to be done (the trucking project here involved transporting pipeline between two locations in Texas.)

The place where employment was initiated is determined by looking at the facts of each case. As correctly argued by the employer, the only factor in favor of the claimant’s position that she was hired before she left Louisiana is the message left on her answering machine at her Louisiana home by the union steward, Mr. Grace, that she would be “put to work” upon her arrival in Texas. Based upon this, the WCJ found that Mr. Grace was clothed with apparent authority to hire on behalf of Mercer and thus held that there was a Louisiana contract of hire. Following our review of the record and the jurisprudence, we find that the WCJ’s ruling was manifestly erroneous in this respect.

The claimant had never spoken to Mr. Grace before and did not know him. However, the record demonstrates that she knew that he was a union steward, and she was admittedly familiar with the referral network by which drivers obtained jobs through such union stewards. She conceded that he never told her that he had authority from the employer to hire on its behalf.

Lacking in this case are many of the indicia found in other cases. No paperwork was sent to the claimant here in Louisiana, as in the Sigler, Baldwin, or Dodd cases. No work was performed prior to filling out paperwork, as in Pelticrew, supra. The claimant was not given work 11fiimplements before filling out applications, as in Wilson, supra. The employer did not pay for the claimant’s travel or living expenses, as in the Lakvold, Granger, or Baldwin cases. Evidence of agreement on definitive terms of wages and work hours are lacking, contrary to Mattel, supra, Gran-ger, supra, or Chance, supra.

Nothing in this record suggests that the employer lacked the ability to reject a union worker sent in response to a request for workers or that it had failed to reject any such workers in the past, as in Mattel, supra. To the contrary, the testimony indicated that Mercer routinely rejected drivers. The evidence showed that upon arrival at the employer’s work place, the prospective driver had to produce evidence of union membership and paid dues, as well as demonstrate proficiency in driving the specialized trucks utilized by Mercer and freedom from drugs; the lack of any of these was grounds for rejection by the employer. In light of the testimony that the drug and driving tests were mandated by federal law for this particular field, we are unable to discount them as “mere formalities,” like the drug test in Dodd, supra, and the paperwork in the Wilson and Lakvold cases.

We find that the WCJ was manifestly erroneous in finding that Mr. Grace had apparent authority to hire, that he hired the claimant without any condition including the legally mandated drug test, that a contract of hire was made in Louisiana, and that La. R.S. 23:1035.1(l)(b) was applicable. Accordingly, the judgment rendered in favor of the claimant is reversed in its entirety.

| ^CONCLUSION

The WCJ’s ruling is reversed. Costs are assessed to the appellee, Andrea Hughes.

REVERSED.

CARAWAY, J., concurs with written reasons.

CARAWAY, J.,

concurring.

Iil concur in the majority’s ruling since I would make an analysis of this “contract for hire” under our choice of law principles. La. C.C. arts. 14, 3515 and 3537. The phrase in La. R.S. 23:1035.1, “contract for hire made in Louisiana,” gives no choice of law directive by the legislation to statutorily assess whether this employment contract was “made in” Texas or Louisiana. Civil Code Article 14 advises, “[ujnless otherwise expressly provided by the law of this state, cases having contacts with other states are governed by the law selected in accordance with the provisions of Book IV of the Code.” This directive to consult Book IV, and in particular Article 3537 regarding the choice of law for a contract, applies because La. R.S. 23:1035.1 has not “expressly provided” a choice of law. Under the balancing test of Article 3537, the State of Texas provides for workers’ compensation, and its policies will best be carried out in this case for this employment relationship significantly centered in that state. The numerous cases reviewed by the majority offer no specific framework for analysis, allowing for conflicting jurisprudentially created rules and determinations under La. R.S. 23:1035.1. Article 3537 provides such a framework and should not be overridden by this general statement in the workers’ compensation law.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, CARAWAY and PEATROSS, JJ.

Rehearing denied.

STEWART, J., would grant rehearing.

      . These benefits were paid to the claimant pursuant to the workers' compensation laws of Texas.