author: JjPETERS, J. | WOODARD, J.,

text:
    Shelley W. WEST v. BRUNER HEALTH GROUP, INC., et al.
    No. 03-152.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 29, 2003.
    Rehearing Denied March 10, 2004.

      Billy R. Pesnell, Hargrove, Pesnell & Wyatt, and J. Whitney Pesnell, Shreveport, LA, for PlaintiffAppellee, Shelley W. West.
    James C. McMichael, Jr., McMichael, Medlin & D’anna, L.L.C., Shreveport, LA, for Defendants/Appellants, Bruner Health Group, Inc., Justin Bruner, Jennifer Bruner.
    Rebecca L. Castillo, Cook, Yancey, King & Galloway, Shreveport, LA, for Defendant/Appellant, Corporate Resource Management, Inc.
    Court composed of Chief Judge NED E. DOUCET, JR., BILLIE COLOMBARO WOODARD and JIMMIE C. PETERS, Judges.
   JjPETERS, J.

Shelley W. West brought this action against Bruner Health Group, Inc. (Bruner Health), Corporate Resource Management, Inc. (CRM), Justin Bruner, and Jennifer Bruner to recover damages arising from her employment relationship with the defendants. The trial court rendered judgment in favor of Mrs. West and against the defendants in varying amounts. All of the defendants have appealed.

DISCUSSION OF THE RECORD

Factual Background

Bruner Health is an Oklahoma corporation that sells medical equipment and supplies to individuals and institutional healthcare providers. Justin and Jennifer Bruner (collectively, the Bruners) are the principal shareholders and officers of Bruner Health and other interwoven corporations. Mrs. West, a Natchitoches Parish resident, responded to a 1997 internet recruitment advertisement posted by J.A.B. & Company (J.A.B.), a predecessor company to Bruner Health. The advertisement sought individuals to act as sales agents for J.A.B. Mrs. West traveled to Oklahoma, attended J.A.B. training classes and qualified as a J.A.B. sales agent. While in Oklahoma, she met the Bruners. On December 1, 1997, J.A.B. retained Mrs. West as its sales agent, which was memorialized in a written agreement which set her compensation at forty percent of “profits from collected sales.” Jennifer Bruner signed the agreement on behalf of J.A.B.

Sometime in 1998, J.A.B. changed its name to MedAssist, Inc. (MedAssist). Mrs. West then entered into a written employment contract with MedAssist. This ^contract, which was consummated in October of 1998, changed her status with the corporation from that of “agent” to “employee”; designated Mrs. West as Me-dAssist’s area manager (defining the area as the State of Louisiana); set her monthly salary at $3,750.00; provided for a maximum $300.00 reimbursement of monthly out-of-pocket expenses; provided for private automobile mileage reimbursement at twenty-five cents per mile; and provided for payment of a five percent commission on the “total allowable sales revenue” generated from the Natchitoches, Louisiana office and a two percent commission on the “total allowable sales revenue” generated from the Baton Rouge, Louisiana office. Jennifer Bruner executed the contract in her capacity as president of MedAssist.

MedAssist then changed its name to Bruner Health Group, Inc. While the record does not establish the specific date of this change, correspondence to sales representatives from Jennifer Bruner dated November 25, 1998, informed the representatives that, effective January 1, 1999, they were to cease using any forms or cards bearing the MedAssist name. However, even before January 1, 1999, the corporation’s relationship with its employees, including Mrs. West, changed again.

This change came about in December of 1998 when Bruner Health entered into a written “LEASED PERSONNEL AGREEMENT” with CRM. Under this agreement, CRM became the employer of all of Bruner Health’s employees. CRM then immediately “leased” the employees back to Bruner Health. To effect this agreement, CRM provided each Bruner Health employee with its own “Employee Packet” containing a CRM employment application form, tax withholding forms, and CRM’s written policy regarding certain employee-employer relationships. Mrs. West |3completed the appropriate forms found in the packet and returned them to CRM. Although she executed the documents on December 21, 1998, other CRM records indicate that CRM became her employer effective October 1, 1998.

CRM describes itself as a “professional employer organization” which performs “human resource services” for various companies. It did little more than perform payroll production services for Bruner Health, although the agreement imposes numerous other obligations on CRM. Basically, Bruner Health supplied CRM with the appropriate employee records, reflecting compensation earned and expenses to be reimbursed, and deposited the appropriate amount in a CRM account to effect payment. CRM then calculated the amount to be paid an employee in any given pay period and forwarded the payroll check to Bruner Health. Bruner Health disbursed the CRM check directly to the appropriate employee. After Mrs. West began receiving her payroll checks drawn on a CRM account, she still addressed any questions concerning her compensation to Bruner Health.

On or about June 2, 1999, Justin Bruner notified CRM that Mrs. West had resigned her employment effective that date. Based on this information, CRM ceased issuing cheeks to Mrs. West. Between June 2, 1999, and November 23, 1999, Mrs. West complained regularly to the Bruners that her compensation had been stopped. The Bruners assured her that she would be fully compensated and instructed her not to contact CRM. They even partially compensated her with payments totaling $12,840.71. However, these payments came, not from CRM or Bruner Health, but from two other companies apparently controlled by the Bruners — Legacy Home Medical, Inc. and Life Link.

Mrs. West finally lost faith in the Brun-ers’ promises and, by letter dated UNovember 23, 1999, informed Bruner Health, the Bruners, and CRM that she resigned her employment effective 5:00 p.m. on that date. In the letter, she also made demand on all parties for her unpaid salary, commissions, and expenses. When this demand was not satisfied, she filed the instant suit.

Procedural History

Mrs. West filed her initial suit on February 3, 2000, asserting that Bruner Health and CRM owed her unpaid salary, commissions, and reimbursable expenses related to her employment. Additionally, she sought an award of statutory penalties and attorney fees. Bruner Health initially responded by filing a declinatory exception of lack of subject matter jurisdiction and a dilatory exception of prematurity. Bruner Health based these exceptions on an arbitration clause found in the 1998 MedAssist employment contract. However, Bruner Health did not seek an order to stay the proceedings pending disposition of the exceptions.

On April 3, 2000, and after Bruner Health filed its exceptions, Mrs. West propounded written interrogatories and requests for production of documents to both defendants. Three days later, she amended her petition to name the Bruners as additional defendants, asserting that they had misled her to her detriment by falsely assuring her that she would be fully compensated for her services.

Bruner Health failed to timely respond to the discovery requests, and, on May 3, 2000, Mrs. West filed a motion to compel a response. Before a hearing could be held on this motion, the Bruners attempted to have the litigation removed to the United States District Court for the Western District of Louisiana. By an order dated July 7, 2000, the federal district court remanded the matter to the state district court. While the matter was pending in federal court, CRM answered the suit and filed a [fiCross-claim against Bruner Health and Justin Bruner. Mrs. West filed a second amending petition on May 7, 2001, wherein she asserted her employment relationship with CRM.

The trial court scheduled a May 31, 2001 hearing to consider Mrs. West’s motion to compel and Bruner Health’s exceptions. When the trial court called the matter for hearing, counsel for the parties announced that they had entered into an agreement to continue the hearing on both the motion to compel and the exceptions and that Bruner Health and the Bruners would respond to the discovery requests within fourteen days. Based on the submitted agreement, the trial court continued the matters without date.

Bruner Health and the Bruners failed to respond to discovery pursuant to the court-approved agreement, and the trial court scheduled a second hearing on the discovery issue for August 30, 2001. After hearing the arguments of counsel, the trial court concluded that, not only had Bruner Health failed to comply with Mrs. West’s discovery requests, but also both Bruner Health and the Bruners were consciously ignoring the proceedings. The trial court then ordered that Bruner Health and the Bruners respond to both the written interrogatories and the motion to produce documents within thirty days; found both Bruner Health and the Bruners in contempt of court; and ordered that they pay Mrs. West $500.00 in attorney fees. The written judgment, executed by the trial court on September 25, 2001, also provided that if the defendants failed to timely provide discovery the trial court would invoke the provisions of La.Code Civ.P. art. 1471 and prohibit them from introducing evi-dencej^at the trial on the merits.

Despite the trial court’s order and specific warning of the consequences of disobeying the discovery order, Bruner Health and the Bruners again failed to timely respond to the discovery requests. On May 30, 2002, Mrs. West filed a motion requesting that the trial court limit the ability of Bruner Health and the Bruners to introduce evidence at trial. At a June 6, 2002 hearing, the trial court deferred Mrs. West’s request for relief to future proceedings and gave Bruner Health and the Bruners an additional ten days in which to answer the discovery requests. As one might expect by this time, Bruner Health and the Bruners ignored this deadline as well.

On June 14, 2002, Mrs. West again amended her petition, for the last time, seeking additional damages. By a motion filed June 24, 2002, she again asked the trial court to limit the right of Bruner Health and the Bruners to assert defenses at trial. This motion and Bruner Health’s exceptions were heard on August 1, 2002, immediately before the beginning of the trial on the merits. Without commenting on its reasons, the trial court rejected the exceptions and stated that it would consider the defense limitation motion “as we go along.”

After completion of the evidentiary portion of the trial, the trial court took the matter under advisement. On September 11, 2002, without assigning any reasons for judgment, the trial court executed a written judgment in favor of Mrs. West and against all defendants. The written judgment awarded Mrs. West damages against Bruner Health totaling $331,821.67, which amount represented unpaid salary and commissions of $204,717.62, expenses not reimbursed of $5,438.25, penalties of $56,665.80, and attorney fees of $65,000.00; against CRM totaling $225,950.84, |7which amount represented unpaid salary and Commissions of $139,285.04, penalties of $56,665.80, and attorney fees of $30,000.00; and against the Bruners totaling $172,130.51, which amount represented unpaid salary and commissions of $117,130.51, attorney fees of $30,000.00, and general damages of $25,000.00. With the exception of the general damages award, the judgments against CRM and the Bruners were imposed in solido with the judgment against Bruner Health. The trial court further rendered judgment in favor of CRM in its cross-claim against Bruner Health, awarding CRM judgment against Bruner Health for the total amount for which it was cast in judgment. All of the defendants appealed this judgment.

ASSIGNMENTS OF ERROR

In their appeal, Bruner Health and the Bruners asserted that the trial court erred in (1) rejecting Bruner Health’s exceptions, (2) awarding excessive damages against Bruner Health, and (3) rendering judgment against the Bruners individually. CRM asserted in its appeal that the trial court erred in (1) rendering judgment against it for Mrs. West’s unpaid salary, (2) rendering judgment against it for Mrs. West’s unpaid commissions, (3) rendering judgment against it for penalties, and (4) awarding excessive attorney fees against CRM in Mrs. West’s favor.

BRUNER HEALTH’S AND THE BRUNERS’ ASSIGNMENTS OF ERROR

Arbitration

In their first assignment of error, Bruner Health and the Bruners assert that the trial court erred in rejecting Bruner Health’s exceptions of lack of subject matter jurisdiction and prematurity regarding the arbitration clause in the 1998 employment |scontract between Mrs. West and MedAssist. “The failure of a party to arbitrate in accordance with the terms of an agreement may be raised either through a dilatory exception of prematurity demanding dismissal of suit or by motion to stay proceedings pending arbitration.” Albert K. Newlin, Inc. v. Morris, 99-1093, p. 7 (La.App. 3 Cir. 1/5/00), 758 So.2d 222, 227. “[I]n a situation ... in which the question of enforcement of an arbitration agreement is introduced into a preexisting matter, the trial court has subject matter jurisdiction to consider the waiver or lack thereof.” Id. at 226.

Bruner Health initially filed its exceptions on March 8, 2000. Over a year later, at the May 31, 2001 hearing on the exceptions, counsel for Bruner Health joined with counsel for Mrs. Davis to continue the hearing on the exceptions. In the meantime, the Bruners attempted to have the matter transferred to federal court. At no time did Bruner Health request a stay of the proceedings. Not until the morning of the trial on the merits, almost two and one-half years after Mrs. West filed her original petition, did Bruner Health reassert its exceptions. At that late date, the trial court denied the exceptions and tried the case on the merits. The trial court signed the judgment on the merits on September 11, 2002, and Bruner Health did not appeal the denial of its exceptions until November 15, 2002, when it also appealed the merits of the case.

Initially, we note that “[a]n appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.” La.Code Civ.P. art. -2085. “The acquiescence that prohibits an appeal, or destroys it when taken, is the acquiescence in a decree commanding something to be done or given. If the thing commanded to be done or given is done or given, there has been acquiescence in the judgment.” 19 Times Picayune Publ’g Corp. v. New Orleans Aviation Bd., 99-237, p. 5 (La.App. 5 Cir. 8/31/99), 742 So.2d 979, 982, writ denied, 99-2838 (La.12/10/99), 751 So.2d 257. Importantly, “[a]n appeal can be dismissed at any time by consent of all parties, or for lack of jurisdiction of the appellate court, or because there is no right to appeal, or if, under the rules of the appellate court, the appeal has been abandoned.” La.Code Civ.P. art. 2162. “[Wjhere there is no right to appeal, an appellate court may dismiss an appeal on its own motion.” Guidry v. Sothern, 98-1152, p. 4 (La.App. 1 Cir. 5/14/99), 734 So.2d 928, 930.

Clearly, by participating fully in the trial on the merits, Bruner Health acquiesced in the ruling denying its exception and ordering it to proceed to trial. As explained in Thomas v. Desire Community Housing Corp., 98-2097, p. 7 (La.App. 4 Cir. 7/19/00), 773 So.2d 755, 759, under the particular facts of that case:

[O]ne who claims entitlement to arbitration cannot make a pro forma request for it, file a reconventional demand and then sit on his rights for six and a half years, participate in litigation and then after an adverse ruling cry “ ‘Kings-X,’ the judgment is invalid for want of arbitration.” That is the very antithesis of what arbitration is all about.

Likewise, Bruner Health cannot make a pro forma request for arbitration, participate in the litigation process for almost two and one-half years, agree to continue the hearing on its exceptions until the morning of trial, proceed through trial on the merits, and then appeal the arbitration issue after an adverse judgment on the merits of the case. At this late date, Bruner Health has acquiesced in the ruling against it. Thus, Bruner Health is precluded from appealing the arbitration issue.

Furthermore, “a judgment refusing to order arbitration is an appealable, interlocutory ruling ... due to the irreparable injury that would occur were an immediate appeal not available.” Warren v. Southern Energy Homes, Inc., 00-1236, |inp. 3 (La.App. 3 Cir. 10/4/00), 771 So.2d 214, 215. A ruling denying arbitration need not be in writing before an appeal may be taken. Id. In fact, the delays for seeking an appeal from the ruling denying arbitration in the instant case began on August 2, 2002, the day after the trial court’s oral ruling. See id. Thus, Bruner Health’s November 15, 2002 appeal of the arbitration issue was untimely as well. “ ‘When an appellant fails to timely take and perfect an appeal, the appellate court lacks jurisdiction to hear the appeal. In such instances, the appellate court may on its own motion, recognize its lack of authority to entertain the appeal and dismiss same.’ ” Berry v. Guidry, 551 So.2d 852 (La.App. 3 Cir.1989) (quoting Sanders v. Adams, 442 So.2d 865, 866 (La.App. 3 Cir. 1983)).

Accordingly, because Bruner Health acquiesced in the judgment on its exceptions and failed to timely file an appeal on the issue, we recognize on our own motion our lack of authority to entertain the appeal as to the arbitration issue and dismiss its appeal to that extent. We note that Bruner Health’s appeal as to the remaining issues was timely and that “[c]onfession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.” La. Code Civ.P. art. 2085. Thus, we will consider the remainder of its appeal.

Damages Award

Bruner Health and the Brun-ers admit that they owe Mrs. West at least $16,085.65. However, they assert in this assignment of error that the trial court erred in calculating the amount of commissions owed Mrs. West because she “failed to introduce any credible evidence to prove the amount of additional commissions she claims she is owed.” They assert that her calculations are based on “speculation, | n estimation and exaggeration” and do not support the trial court’s award. Thus, Bruner Health and the Bruners limit their damages award complaint to the calculation of commissions due Mrs. West.

The trial court awarded the following amounts against Bruner Health for unpaid commissions:

Commissions earned before October 1,1998
Commissions earned for sale of manual wheelchairs while serving as agent for J.A.B. $ 4,225.00
Commissions earned for sale of electric wheelchairs while serving as agent for J.A.B. $ 58,051.24
Commissions earned after October 1,1998
Commissions on electric wheelchairs $ 3,628.43
Commissions on home medical equipment $ 2,990.06
Commissions on supplies for diabetic patients $125,163.60

The October 1, 1998 date is significant because before that date Mrs. West’s compensation as agent was forty percent of profits from collected sales. Thereafter, her commissions were based on the total allowable sales revenue.

At trial, Mrs. West provided the trial court with extensive documentation concerning her commissions and expenses. However, she readily admitted in her testimony that the agent commission calculations were based on the gross sale price of the wheelchairs, and not the profit from each sale. She explained that Bruner Health’s failure to provide her with discovery prevented her from being able to calculate the actual profit and that her calculations were based on the records available to her. She also acknowledged that her calculations of commissions on diabetic supplies were based on certain assumptions. Specifically, she assumed that 112the patients who had made their initial purchases from her continued to receive the supplies on a regular basis. This assumption was also necessary because of Bruner Health’s failure to provide discovery.

Citing Neely v. Turner, 97-1125, p. 5 (La.App. 3 Cir. 2/4/98), 707 So.2d 1298, 1302, writ denied in part and judgment vacated in part on other grounds, 98-1184 (La.6/5/98), 720 So.2d 673, Bruner Health and the Bruners argue that “only actual damages are allowable and must be established with reasonable certainty, not by remote and conjectural estimates of loss.” Clearly, the evidence was sufficient to establish with reasonable certainty the J.A.B. profits from the sale of the wheelchairs and therefore was sufficient to establish the appropriate commissions. Concerning the sale of diabetic supplies, we note that the court in Neely also stated that “when there is a legal right to recover damages, but the amount cannot be established with precision, the courts have reasonable discretion to make an assessment based upon all of the facts and circumstances of the particular case.” Id. We find that with regard to the award for commissions on the sale of diabetic supplies, the trial court did not abuse its reasonable discretion in accepting Mrs. West’s assumptions and awarding the full amount based on her testimony and the exhibits presented. This is particularly true given the flagrant disregard of the trial court’s orders by Bruner Health and the Bruners, which disregard prevented Mrs. West from producing exact values.

Mrs. West claimed that her unpaid commission on each of the thirteen manual wheelchairs she sold while acting as agent for J.A.B. was $325.00. Therefore, the actual sale price of each wheel chair was $812.50 (325.00 4 0.40). In her claim for post-October 1, 1998 commissions, she lists the cost of a standard wheelchair as 11S$324.69. Using this information, one can calculate the profit from the sale of a wheelchair by subtracting the cost from the sale price (812.50 - 324.69). Thus calculated, the profit is $487.81. Forty percent of that amount is $195.12. We conclude that the proper commission on the sale of the thirteen J.A.B. manual wheelchairs is $2,536.56, and not $4,225.00, as awarded by the trial court. We therefore reduce the trial court’s award in this regard to $2,536.56.

The percentage of profit for the sale of each manual wheelchair is sixty percent (487.81 4- 812.50). It would appear appropriate to apply that same percentage to the purchase of the electric wheelchairs. Using Mrs. West’s testimony and exhibits, we find that the gross price of the electric wheelchairs was $145,128.10 (58,051.24 4 0.40). The profits from the sales of those wheelchairs were $87,076.86- (145,128.10 x 0.60). Forty percent of that amount is $34,830.74. We conclude that the proper commission on the sale of the J.A.B. electric wheelchairs is $34,830.74, and not $58,051.24, as awarded by the trial court. We therefore reduce the trial court’s award in this regard to $34,830.74. Because Bruner Health and the Bruners have challenged on appeal only the commission awards, we need not consider the correctness of the other awards.

The Bruners’ Personal Liability

Finally, the Bruners contend that the trial court erred in entering judgment against them individually. The trial court found that the Bruners engaged in “fraudulent conduct,” and we find that the record supports this finding and that it is not clearly wrong. Importantly, “[i]f an officer or agent of a corporation through his fault injures another to whom he owes a personal duty, the officer or agent is liable personally to the injured third party, regardless of whether the act culminating in the | uinjury is committed by or for the corporation and regardless of whether liability might also attach to the corporation.” Laurents v. La. Mobile Homes, Inc., 96-976, pp. 12-13 (La.App. 3 Cir. 2/5/97), 689 So.2d 536, 543. Thus, we reject this assignment of error.

CRM’S ASSIGNMENTS OF ERROR

CRM’s Liability for Unpaid Salary and Commissions

In its appeal, CRM asserts that it does not owe any additional amounts as salary or commissions to Mrs. West pursuant to La.R.S. 23:631(A)(l)(b), which provides in part:

Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment ....

(Emphasis added.)

CRM concedes that it was Mrs. West’s co-employer along with Bruner Health. It also acknowledges in its brief that “[t]he terms of plaintiffs employment include the agreement between Bruner [Health] and CRM as to the division of responsibilities for processing the payroll.” However, CRM asserts that the amounts of Mrs. West’s salary and commissions were controlled completely by the agreement between Mrs. West and Bruner Health, to which CRM was not a party. CRM also asserts that it was responsible only for issuing checks in the amounts submitted by Bruner Health and that it is not disputed that it paid Mrs. West all of the money Bruner Health deposited with it and indicated she was due. Thus, CRM contends that “[a]ny amounts which Bruner [Health] failed to submit to CRM, and failed to deposit adequate funds to cover were not ‘amounts then due’ to plaintiff by CRM under La.R.S. 23:631.” Additionally, CRM points out that the Bruners notified it that Mrs. West had resigned effective June 2, 1999, and contends that “[although that | ^information now appears to have been erroneous, it does not change the irrefutable fact that, as far as CRM was concerned, the employment relationship with plaintiff was terminated effective June 2, 1999.”

Essentially, CRM does not contest as erroneous the amounts claimed due by Mrs. West as salary but contests her assertion that the amounts claimed due are owed by it. While CRM does contest the amounts claimed due by Mrs. West as commissions, which issue we have addressed under the Bruner assignments of error, it asserts that any “bad acts” attributable to the Bruners regarding commissions should not be imputed to CRM.

However, CRM confuses the existence of its obligation to Mrs. West with the reason that its obligation was not fulfilled. As an employer of Mrs. West, pursuant to La.R.S. 23:631(A)(l)(b), it was CRM’s “duty ... to pay [Mrs. West] the amount then due under the terms of employment.” The fact that Bruner Health failed to deposit and submit to CRM money due Mrs. West and erroneously notified CRM that Mrs. West had resigned did not abrogate CRM’s duty to Mrs. West or her entitlement to such money from CRM. In other words, vis-á-vis Mrs. West, Bruner Health and CRM, as co-employers, each owed Mrs. West her full salary and commissions and were, therefore, solidarily liable to her in that regard. The method in which Bruner Health and CRM chose to divide payroll responsibilities in fulfilling their obligation to Mrs. West simply created a separate obligation vis-á-vis each other but did not eviscerate their coextensive obligation to Mrs. West.

“A failure to perform a solidary obligation through the fault of one obligor renders all the obligors solidarily liable for the resulting damages. In that case, the obligors not at fault have their remedy against the obligor at fault.” La.Civ.Code art. 11fil800. Thus, the trial court properly awarded damages to Mrs. West against CRM based on its obligation to Mrs. West. The trial court also properly recognized the fault of Bruner Health through its grant of CRM’s cross-claim. Thus, we reject these assignments of error.

CRM’s Liability for Penalty Wayes

In any event, CRM contends that, because it was in good faith, the trial court erred in awarding penalty wages against it. Specifically, La.R.S. 23:632 provides:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

As set forth above, CRM is solidarity liable with Bruner Health for Mrs. West’s salary and commissions. Revision Comment (b) to La.Civ.Code art. 1800 explains: “Obligors of a solidary obligation represent each other with regard to the obligee. What is done by one of them is considered to have been done by the others.” Revision Comment (c) further explains: “An obligor not at fault who pays damages arising from the fault of another solidary obligor may bring an action to compel the latter to reimburse him.” Accordingly, the trial court did not err in awarding penalty wages against CRM. As set forth above, CRM’s remedy was through its cross-claim against Bruner Health, which the trial court granted.

Amount of Attorney Fees Awarded

In its final assignment of error, CRM asserts that the parties stipulated at trial |17that, should the court enter judgment against CRM, the parties would later be given an opportunity to “separate out” the attorney fees attributable to Bruner Health and those attributable to it. Thus, CRM asserts that the trial court erred in signing Mrs. West’s submitted judgment without conducting a hearing on the issue.

However, CRM never availed itself of the opportunity to “separate out” the attorney fees at any time during the trial or prior to judgment, nor did it file a motion for new trial on the issue following judgment. In any event, it was not necessary to “separate out” the attorney fees because CRM and Bruner Health were solidarily liable for the attorney fees in the first instance and the trial court then granted CRM’s cross-claim against Bruner Health in full, thereby allowing the recoupment of any and all attorney fees paid by CRM.

DISPOSITION

For the foregoing reasons, we amend the judgment rendered against Bruner Health Group, Inc. to reduce the award for unpaid commissions due from the sale of manual wheelchairs prior to October 1, 1998, to $2,536.56, and we reduce the award for unpaid commissions due from the sale of electric wheelchairs prior to October 1, 1998, to $34,830.74. We affirm the judgment of the trial court in all other respects and tax all costs of these proceedings to Bruner Health Group, Inc., Corporate Resource Management, Inc., Justin Bruner, and Jennifer Bruner.

AFFIRMED AS AMENDED.

WOODARD, J., dissents in part and assigns written reasons.

| WOODARD, J.,

dissenting in part.

I respectfully dissent from the majority’s assessment of penalty wages against CRM. There is no evidence in or, even, inference from the record which supports this determination. Casting a party as a solidary obligor regarding liability does not a priori or legally, support automatically casting it with penalty wages without evidence of its bad faith.

The majority’s basis for concluding that CRM and Bruner are solidarily liable to Ms. West for penalty wages comes from a portion of La.Civ.Code art. 1800’s comments (b) and (c):

Obligors of a solidary obligation represent each other with regard to the obligee. What is done by one of them is considered to have been done by the others. An obligor not at fault who pays damages arising from the fault of another solidary obligor may bring an action to compel the latter to reimburse him.

| ¡¡Thus, say the majority: “Accordingly, the trial court did not err in awarding penalty wages against CRM. As set forth above, CRM’s remedy was through its cross-claim against Bruner Health, which the trial court granted.”

However, La.Civ.Code art. 1801 provides:

A solidary obligor may raise against the obligee defenses that arise from the nature of the obligation, or that are personal to him, or that are common to all the solidary obligors. He may not raise a defense that is personal to another solidary obligor.

(Emphasis added.)

While La.R.S. 23:632 imposes unconditional liability for penalty wages, the statute is penal in nature, requiring that we construe it strictly. This court has consistently recognized an equitable defense of “good faith” which may relieve the employer of liability for penalty wages. In fact, “the jurisprudence has almost uniformly imposed a requirement that penalties not be imposed on the employer when it presents a good faith, non-arbitraiy defense to its liability for unpaid wages. (Emphasis added.)

In the instant case, the evidence showed that CRM had no way of knowing that Ms. West was owed any wages beyond what it had paid her. The contract between CRM and Bruner clearly defined each’s role. CRM’s role was very limited. Basically, Bruner out-sourced CRM to handle its payroll and insurance matters. Bruner would send funds, to CRM, which it deposited and used to issue checks to the employees based, solely, on the information Bruner gave it concerning the salary that was due to each employee.

CRM closed Ms. West’s employee file on June 2, 1999, the date which Bruner instructed it that she resigned. CRM had no way of knowing that there were any problems until it received Ms. West’s resignation/demand letter six months later, stating her date of resignation as November 23, 1999. Furthermore, even after CRM | ¿received Ms. West’s letter, it was not clear that she was making a demand upon CRM. The letter was directed to Mr. and Mrs. Bruner, and as Ms. Janice Edwards, CRM’s president, testified, CRM believed they were simply receiving a courtesy copy.

CRM’s interpretation was reasonable since the stated amount in her demand/resignation letter was not consistent with what her base salary would have been from the time CRM was informed that she resigned until her actual resignation date. The amount was inconsistent because, in fact, Bruner had paid her part of her salary after it informed CRM that she resigned; it did not make the payments through CRM but through other companies it owned. Accordingly, CRM never knew about these payments. Thus, the demand letter reasonably indicated that Bruner had paid her, at least, some amounts, independently, after CRM had closed her file.

Specifically, while Ms. West stated a specific minimum amount that she believed she was owed, her letter indicates that she was unable to calculate her unpaid wages, commissions, etc., until Bruner sent her the necessary printouts. And since Bruner never complied with discovery, Ms. West was forced to calculate the amounts she was owed from the limited information she had in her own records. Accordingly, CRM did not receive the final amount Ms. West was claiming until the day before trial. Therefore, CRM had no way of verifying that any, all, or some portion of the amount she claimed was actually owed to her.

Moreover, CRM had no reason to distrust Bruner’s information and, therefore, no reason to contact Ms. West directly. In other words, the record shows that there were no “red flags” to raise CRM’s suspicion of a problem, particularly because Bruner, specifically, instructed Ms. West not to contact CRM concerning her failure to be paid.

Furthermore, it is clear from the record that CRM was cooperative and forthcoming with information in its possession. Even Ms. West’s counsel agreed that it should not be penalized for any of Bruner’s bad acts, such as its failure to comply with discovery.

Given CRM’s lack of knowledge and no indication that there was a problem, either, from Ms. West or Bruner, it is not rational or fair to find CRM to have been in bad faith. However, it does not appear that the majority performed this.analysis.

I would reverse this portion of the trial court’s judgment, as I believe the law requires us to recognize CRM’s good faith defense regarding penalty wages.

      . The record contains no evidence of the exact ownership interest shared by the Bruners, although it is clear they are the principal owners.

      . The space for the insertion of a date on the contract was left blank except for the year (1998). Mrs. West testified that her employment with MedAssist began in October of 1998.

      . The Bruners were not the parties named in the motion to compel and became party defendants after discovery was instituted.

      . At no time have the Bruners made a personal appearance in court.

      . The cross-claim is erroneously referred to in the judgment as a third-party claim. Additionally, while the cross-claim also named Justin Bruner as a defendant, the judgment is silent as to that claim.

      . See La.Civ.Code art. 1801.

      . Carriere v. Pee Wee’s Equip. Co., 364 So.2d 555 (La.1978).

        .Hebert v. Ins. Ctr., Inc., 97-298, p. 9, 706 So.2d 1007, 1013, writ denied, 98-353 (La.3/27/1998), 716 So.2d 888, (citing Carriere v. Pee Wee’s Equip. Co., 364 So.2d 555 (La.1978); Jones v. Hebert & LeBlanc, Inc., 499 So.2d 1107 (La.App. 3 Cir.1986)).


source: Caselaw Access Project

author: | .SULLIVAN, Judge.

license: Public Domain

text:
    Damon LACOMBE v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT, et al.
    No. 03-483.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 2003.

      Richard D. Chappuis, Jr., Kristen B. Menard, Voorhies & Labbe, Lafayette, LA, Counsel for Defendani/Appellant Lafayette City-Parish Consolidated Government.
    Andrea J. Wilkes, Louis L. Robein, Jr., Robein, Urann & Lurye, Metairie, LA, Counsel for Plaintiff/Appellee Damon La-combe.
    M. Candice Hattan, Lafayette, LA, Counsel for Defendant Lafayette Municipal Fire & Police Civil Service Board.
    Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   | .SULLIVAN, Judge.

The Lafayette City-Parish Consolidated Government (the City Parish) appeals the trial court’s reversal of the termination of firefighter Damon Lacombe. For the following reasons, we affirm.

Facts and Procedural History

Lacombe, a captain in the Fire Department with eighteen years of service, was terminated on June 25, 2001, after Fire Chief Robert Benoit determined that La-combe failed to cooperate fully and truthfully in an internal affairs investigation. The subject of the investigation was an alleged “blue flu” or sickout that occurred between Friday, March 31, 2000, and Monday, April 3, 2000, when 141 out of 194 Lafayette firefighters called in sick during those four days.

On the first three days of the alleged sickout, Lacombe worked sixty hours of overtime as one of the many off-duty firemen called to manage the personnel shortage. He then called in sick on Monday, April 3, 2000, which was his regularly-scheduled shift, contending that he developed stomach problems over the weekend. No one has questioned his explanation for not working on Monday, and the disciplinary action taken against him arises from his conduct in the subsequent investigation rather than from his taking a sick day at that time.

While working at Fire Station # 9 on Friday, March 31, 2000, Lacombe telephoned communications officer Wayne Chauvin, who was on duty at another station. The two gossiped about the unfolding events, with Lacombe stating that he heard that ten firefighters had called in sick that day and asking, “What’s the count? What’s the count?” Chauvin informed him that the number was only three, but that he had “heard through the grape vine [sic]” that it would be worse the next day. Lacombe also made comments such as “They got to come to us one day,” and “They Lgonna wish they would have took that f — meeting.” Lacombe was unaware that this conversation was being recorded.

On April 24, 2000, Lacombe was interviewed by the Fire Department’s internal affairs division about his knowledge of the events of March 31 through April 3, 2000. When asked when he first learned that “there were so many persons who had begun to call in sick,” he replied that it was probably on the six o’clock evening news on Saturday, April 1, 2000, apparently referring to a televised press conference in which Chief Benoit informed the public of the situation. Lacombe also stated that he had no idea why so many firefighters had called in sick.

In another interview on June 27, 2000, Lacombe was confronted with a tape of his conversation with Chauvin. When asked who “they” referred to in the conversation, Lacombe first replied that it could have been anybody, as no particular individual was named, but he later agreed that it “[m]ay have been” the City-Parish administration and its president, Walter Co-meaux. He was asked again when he first learned “that everybody had began to call in sick,” and he replied that he had learned on Friday, either when he got to work or earlier on the street, that three people had called in sick that day. When he was reminded he had previously said that he learned about it on the Saturday evening news, he replied, “[W]hat I heard on the news Saturday was about the numerous or the big amount of people and when the Chief came on the TV and said that there was so called a Blue Flu or sick-out or whatever it was, but at that time it was just three people.”

| ^Finding that Lacombe’s April 24, 2000 statement was in conflict with the recorded telephone conversation and that Lacombe failed to cooperate when given the opportunity on June 27, 2000 to explain the telephone conversation, Chief Benoit determined that Lacombe was in violation of Fire Department and City-Parish policies requiring cooperation and truthfulness in any work-related administrative investigation. On February 2, 2001, Chief Benoit informed Lacombe that a disciplinary hearing would be held to determine if any action should be taken against him. After a hearing on March 15, 2001, the Lafayette Fire Department Disciplinary Board, by majority vote, determined that Lacombe should receive a written reprimand.

Citing “substantial inconsistencies” between Lacombe’s statements and the recorded conversation, Chief Benoit chose to disregard the pre-disciplinary recommendation and instead terminated Lacombe on June 25, 2001. Lacombe appealed to the Lafayette Municipal Fire and Police Civil Service Board (the Board), which voted 3-2 to affirm the termination after a hearing on August 14, 2001. Upon the Board’s denial of his limited motion for a rehearing, Lacombe appealed his termination to the Fifteenth Judicial District Court. The district, court reversed the Board’s decision and reinstated Lacombe with back pay and benefits, finding no legal cause for termination. On appeal, the City-Parish argues that the Board’s decision was supported by the record.

Opinion

Employees with permanent status in the classified civil service may be disciplined only for cause expressed in writing. La. Const, art. X, § 8(A). The civil service provisions are designed to protect public career employees from political | ¿discrimination, so that “ ‘non-policy forming’ public employees are selected on the basis of merit and can be discharged only for insubordination, incompetency, or improper conduct, and not for religious or political reasons.” Bannister v. Dep’t of Streets, 95-404, pp. 4-5 (La.1/16/96), 666 So.2d 641, 645.

Under La.R.S. 33:2500(A)(3) (emphasis added), a classified civil service employee may be terminated or disciplined for the “commission or omission of any act to the prejudice of the departmental service or contrary to the public interest or policy.” If the employee believes that he has been disciplined or discharged without just cause, he may demand “a hearing and investigation by the board to determine the reasonableness of the action.” La.R.S. 33:2501(A). The actions that the Board may take are spelled out in La.R.S. 33:2501(C)(1) (emphasis added) as follows:

[T]he board may, if the evidence is conclusive, affirm the action of the appointing authority. If they find that the action was not taken in good faith for cause under the provisions of this Part, the board shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which he was removed, suspended, demoted, or discharged, which reinstatement shall, if the board so provides, be retroactive and entitle him to his regular pay from the time of removal, suspension, demotion, discharge, or other disciplinary action. The board may modify the order of removal, suspension, demotion, discharge, or other disciplinary action by directing a suspension without pay, for a given period.

The Board’s decision is subject to appeal in the district court of the parish where the Board is domiciled; however, “[tjhis hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part.” La.R.S. 33:2501(E)(3) (emphasis added).

In Tweedel v. Fire Protection District # 1 Civil Service Board 546 So.2d 654, 655 (La.App. 3 Cir.1989), this court explained the above standard of review as follows:

ls“In good faith” has been interpreted to mean the opposite of arbitrary or capricious action or action that stems from prejudice or political expediency on the part of the appointing authority. “Cause” means legal cause and the evidence must show that the dismissal was necessary for the discipline and efficiency of the service or that is was needed to avoid some detriment to the department or the city.

The supreme court also elaborated on that standard, explaining in Bannister, 666 So.2d at 647: “Stated differently, disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the ‘efficient operation’ of the public service.” Additionally, “[t]he appointing authority ... must demonstrate, by a preponderance of the evidence, that the conduct did in fact impair the efficient and orderly operation of the public service.” Smith v. Mun. Fire & Police Civil Serv. Bd. of Eunice, 94-625, p. 3 (La.App. 3 Cir. 11/2/94), 649 So.2d 566, 568; see also Laborde v. Alexandria Mun. Fire & Police Civil Serv. Bd., 566 So.2d 426 (La.App. 3 Cir.), writ denied, 568 So.2d 1055 (La.1990).

Upon review of the record, we find that the district court applied the proper standard of review in reversing the Board’s decision. Chief Benoit testified that Lacombe was terminated because he failed to tell the truth in an administrative investigation. Specifically, Chief Benoit believed that Lacombe was untruthful in maintaining that he had no idea why so many firefighters called in sick in light of the taped conversation in which Lacombe asked about “the count” and stated, “They got to come to us one day.” According to Chief Benoit, it was obvious that Lacombe was discussing a sickout that was well-underway at that time. Even if we accept Chief Benoit’s interpretation of that conversation, however, we agree with the district court that Lacombe’s conduct in the subsequent investigation did not amount to legal cause for termination.

1 (¡Chief Benoit testified that officials from the firefighters’ union broadcast through the media and even told him personally that the sickout was the result of disgruntled employees’ frustration that the City-Parish administration would not meet with them. Hence, it is unclear how La-combe’s evasiveness in identifying who “they” were impeded the investigation when the chief himself admitted that the answer was obvious. Lacombe was also criticized for stating that he first learned that “so many persons” were calling in sick on Saturday, when he appeared to be discussing the sickout in the taped conversation on Friday. However, the parties stipulated that, at the time of the conversation, at most six firefighters had called in sick.

Chief Benoit described Lacombe, an eighteen-year veteran, as a “super” firefighter who “lived and breathed” the fire department and who had a reputation for always accepting overtime duty. Chief Benoit referred to Lacombe as a “casualty of war” who allowed unknown “conspirators” to influence him, but as the chief testified, “[T]he ones who caused this problem are not the ones that got caught.”

In Lantier v. Lafayette City Parish Consolidated Government, 02-1318 (La.App. 3 Cir. 3/5/03), 839 So.2d 1176, we reversed the termination of a firefighter who was also involved in the present investigation, finding that he was dismissed, “not because he violated a disciplinary rule, but because he did not provide the information required by Chief Benoit.” Id. at 1180. In Lantier, Chief Benoit also testified that the “conspirators of this sickout were not going to get caught. It was going to be the innocent individuals who didn’t want to go along with this program. ... [Lantier] was an innocent victim of circumstance.” Id. As was the case in Lantier, Lacombe was not charged with participating in the sickout, but was 17apparently disciplined because it took place. On the record before us, we agree with the trial court that the City-Parish failed to demonstrate “a real and substantial relationship” between Lacombe’s conduct and the “efficient operation” of the fire department. Bannister, 666 So.2d at 647.

Decree

For the above reasons, the judgment of the trial court is affirmed. Cost of this appeal are assessed to the Lafayette City-Parish Consolidated Government to the extent allowed by law.

AFFIRMED.

      . The parties stipulated to the number of firefighters calling in sick each day as follows: Friday, March 31, 2000-6; Saturday, April 1, 2000-40; Sunday, April 2, 2000-47; Monday, April 3, 2000-47.

      . We also point out that one Board member found that Lacombe “put his own family in danger by staging a so-called walkout,” yet, the disciplinary action against him was not based upon such conduct. Another Board member found that Lacombe was not completely forthcoming and was not fully cooperative in the investigation, but then continued to state that, as a taxpayer, he was enraged at the cost of the "blue flu” and that it scared him to think firefighters would put families in jeopardy.


author: [.MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Saunders H. HILLS.
    No. 03-KA-716.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 2003.

      Paul D. Connick, Jr., District Attorney, Alan D. Alario, II, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for Appellee.
    Bruce G. Whittaker, New Orleans, LA, for Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   [.MARION F. EDWARDS, Judge.

Defendant appeals his conviction for possession of cocaine, and his sentence as a fourth felony offender. For the following reasons, the defendant’s conviction and sentence are affirmed.

On January 18, 2002, defendant, Saunders Hill, was charged in a bill of information with possession of cocaine, a violation of LSA-R.S. 40:967(C). Hill was arraigned on the charge on January 23, 2002 and entered a plea of not guilty.

Hill filed several pre-trial motions, including discovery motions and a Motion to Suppress Confession, Identification and Evidence. On February 22, 2002, the State provided open file discovery. On March 14, 2002, Hill filed a Motion for Disclosure of the Confidential Informant. On April 29, 2002, the court held a hearing on the motion to suppress and the motion for disclosure and denied both motions over Hill’s objection.

On April 30, 2002, Hill was tried by a six-person jury and was found guilty as charged. Hill then notified the court of his intent to file a written appeal motion.

On May 10, 2002, Hill filed a Motion for New Trial, which was denied on the same day. Hill waived sentencing delays and was sentenced that day to serve five years of imprisonment at hard labor with credit for time served.

On October 7, 2002, the State filed a habitual offender bill alleging that Hill was a fourth felony offender, pursuant to LSA-R.S. 15:529.1. Hill denied the allegations of the habitual offender bill on November 8, 2002. On January |329, 2003, Hill filed a Motion For Production, seeking to secure copies of the transcripts of the predicate offenses used for enhancement in this case.

On March 25, 2003, a hearing was held on the habitual offender bill and Hill was adjudicated a fourth felony offender. Following the adjudication, Hill’s original sentence was vacated and he was re-sentenced as a fourth felony offender to serve twenty years of imprisonment at hard labor without benefit of probation or suspension of sentence.

On March 26, 2003, Hill filed a written motion for appeal, which was granted by the trial court.

On December 28, 2001, at approximately 8:00 p.m., Detective Russell Lloyd of the Gretna Police Department received a telephone call from a confidential informant who had provided reliable information since 1997. The informant advised Detective Lloyd of his location at the Econo Lodge at 930 Westbank Expressway, and further advised Lloyd that the he was in the company of a black male who wanted to sell cocaine. Without speaking to the seller, the officer agreed during the conversation with the informant to purchase 2.5 grams of cocaine. Detective Lloyd instructed the informant to remain at the scene with the seller so that the police would be able to identify the suspect.

After informing fellow officers, Officer Vincent and Sergeant Schmidt, of the call, all three officers drove to the Econo Lodge. Detective Lloyd and Officer Vincent were in an unmarked police unit and Sergeant Schmidt was in a marked police unit. The two police vehicles approached the scene from different directions. At the time of the arrival of the officers, at approximately 8:10 p.m., the informant’s Grand Am vehicle was parked under the drive-thru with the informant inside. The defendant, later identified as Saunders Hill, was standing on the passenger side of the vehicle.

14Hill, upon seeing Sergeant Schmidt’s marked vehicle approach, ran off in the direction of Detective Lloyd and Officer Vincent, who had been walking toward the suspect at the time. Before Hill began to run, he discarded a white napkin behind the informant’s vehicle.

Officer Vincent caught Hill and Detective Lloyd recovered the napkin. The napkin contained eight rocks of what field-tested positive for cocaine. According to the officers, they did not have an opportunity to investigate the tip they received prior to Hill’s actions in discarding the cocaine. Hill was placed under arrest and transported to police headquarters and the rocks were turned over to the Crime Lab where further testing confirmed the substance to be cocaine.

In his first assignment of error, Hill argues that the trial judge erred in denying disclosure of the identity of the confidential informant and that this ruling deprived him of the right to present a defense.

The State replies the defendant did not show that the confidential informant played a crucial role in the transaction or arrest of the defendant.

As a general rule, an informant’s identity is privileged information. This privilege is founded upon public policy and seeks to further and protect the public interest and law enforcement by encouraging persons to supply information to the police without fear of reprisal by the person to whom the information pertains. The privilege is not absolute. The courts use a balancing test for determining when the confidential informant’s name must be revealed to the defense. Under the Rovi-aro test, which Louisiana has adopted, the public interest in protecting the flow of information must be balanced against the individual’s right to prepare |shis or her defense. When an informant only supplies the information and does not participate in the transaction, disclosure of his identity is not required. However, when the informant “plays a crucial role in the transaction” and his testimony is necessary to insure a fair trial, disclosure of identity should be ordered. In such cases, the informer does more than furnish a tip that enables the police to make an arrest, rather, while working with the police, he takes part in the illegal transaction itself. As noted in Becnel:' “Participation in the alleged criminal transaction is the key, if the informant does not participate, the defendant cannot compel disclosure.” The mere presence of the informant at the scene, without more, is not sufficient to warrant disclosure of the informant’s identity.

The burden is on the defendant to show exceptional circumstances warranting the disclosure of the identity of the confidential informant. The determination regarding disclosure will depend upon the particular circumstances of each case. In making such determinations, the trial court is afforded great discretion.

The record reflects that Hill filed a Motion for Disclosure, seeking the identity and criminal record of the confidential informant. At a hearing held |f;March 21, 2002, the State indicated the confidential informant did not participate in the drug transaction. The Court stated that, on that basis, the disclosure would not be ordered. Thereafter, Hill requested a hearing on the issue of disclosure. On April 29, 2002, the court held a hearing on the motion for disclosure and the motion to suppress evidence. At the hearing on the motions, Detective Russell Lloyd was called to testify.

Detective Lloyd testified that he was the officer who arrested Hill on February 28, 2001. The officer stated that he had received information from a confidential informant that the informant was located on the Westbank Expressway with a black male subject who was looking to sell crack cocaine. According to the officer, he instructed the confidential informant to stay with the subject until the officer arrived at the scene. Detective Lloyd testified that the confidential informant had given hundreds of leads in the past that led to arrests. When Detective Lloyd and Officer Vincent arrived at the scene, they did so about the same time that Sergeant Schmidt was driving up in a marked unit. Hill saw the marked unit and he fled, while throwing down a white napkin containing crack cocaine. Officer Vincent stopped Hill and the witness retrieved the contraband. Detective Lloyd saw the confidential informant seated in his own vehicle. Prior to fleeing, Hill had been standing near the car door, talking to the confidential informant.

Following the interrogation of Detective Lloyd, the trial judge denied the motion for disclosure and the motion to suppress.

At trial, Detective Lloyd gave essentially the same testimony. The officer also testified that, since he did not know the black male subject, the officer instructed the confidential informant to stay near the subject so that the subject could be identified upon the arrival of the police. Detective Lloyd indicated that, |7when he heard from the informant about the sale, the officer did not speak to the seller. The confidential informant indicated the suspect wanted to sell 2.5 grams of crack cocaine. The confidential informant did not leave his vehicle the entire time and was free to go after the arrival of the police. When the officer was asked, on cross-examination, if the informant was going to buy the narcotics, he replied, “Absolutely not.”

Following the trial, Hill filed a Motion for New Trial wherein he alleged the trial judge erred in refusing to disclose the confidential informant’s identity.

On appeal, in alleging that the confidential informant participated in the transaction, thus warranting disclosure of his identity, Hill points to the following testimony by Detective Lloyd during cross-examination:

[Defense]
That police report says that he was arrested after he agreed to meet an undercover officer to sell 2.5 grams of crack cocaine. Explain that to me?
[Detective Lloyd]
Okay. The cooperating individual called me, I’m on the phone with the cooperating individual, the cooperating individual is with Mr. Hills. I am acting as an undercover officer, because the cooperating individual, in the presence of Mr. Hills, cannot talk to me as if I’m a police officer, because then Mr. Hills would not stay on the scene if he knew my informant was talking to a policeman.

As evident from the record, the confidential informant’s involvement, in this case, was to provide the tip to Detective Lloyd and to remain at the scene until the officers arrived. The tip was supplied in a manner that would insure the confidential informant’s safety and the integrity of the operation. The informant remained at the scene only to facilitate the identification of the defendant, and had no other involvement. Moreover, the record clearly indicates that the informant was not present to buy the narcotics.

|sAs such, the record indicates the informant did not play a “crucial role in the transaction.” Additionally, Hill has failed to meet his burden of establishing exceptional circumstances that would warrant disclosure of the identity of the confidential informant in this case. Accordingly, we find that the trial judge correctly denied the motion for disclosure and the motion for new trial.

In his second assignment of error, Hill contends that he was denied his constitutional right of confrontation when he was not permitted to cross-examine Detective Lloyd concerning certain alleged similarity between the report in this case and the report in a second, unrelated case that occurred the same day. The State, however, replies that the evidence was irrelevant and thus inadmissible.

The right to confront witnesses is a fundamental right guaranteed by the federal and state constitutions. Confrontation means more than being allowed to confront the witnesses physically. “The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Cross-examination is the principal means by which believability and truthfulness of testimony are tested. Subject to the discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, or discredit, the witness.

1 ciGenerally, to attack the credibility of a witness, a party may examine him concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony.

A trial court may impose reasonable limits on defense counsel’s inquiry challenging the credibility of a prosecution witness to take account of such factors as “harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that [would be] repetitive or only marginally relevant.” (Emphasis added). As noted by this Court, in State v. Jones:

However, the right to confrontation is not so unlimited as to require that a defendant be allowed, on cross-examination of a State witness, to make any and all inquiries of whatever character. The inquiry must be relevant.

The test of whether there has been a violation of a defendant’s Right of Confrontation was discussed in State v. Robinson:

Although the case law does not provide a consistent test for determining when a Sixth Amendment violation occurs, the Supreme Court has held that a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness and thereby expose facts from which the trier of fact could appropriately draw inferences relating to the reliability of the witness.... See Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986); Olden v. Kentucky 488 U.S. 227, 231, 109 S.Ct. 480, 483, 102 L.Ed.2d 513 (1988).

(Emphasis added; footnote omitted).

Additionally, the Louisiana Supreme Court in Robinson added that it has recognized that the existence of a Sixth Amendment violation should not depend upon the category of impeachment, but upon whether the defendant was |inprevented from using any impeachment that would have been potentially effective in his case.

During the trial, Detective Lloyd, who had previously testified during the State’s case in chief, was recalled by Hill. The officer was asked if he was at the Detective Bureau at 8 o’clock at night when he received the informant’s call in the present case, and he responded that the call was received at approximately 8 o’clock. Detective Lloyd was asked if he could have been at the Jefferson Parish Correctional Center booking someone else at that time, and he said no. The officer was asked if, on the night of this arrest, he had also arrested Gary Massey, some two hours before, and he replied that he had. The officer also indicated that a marked police unit transported Massey to police headquarters. The State objected to the line of questions on the basis of relevancy, and the court sustained the objection. At a bench conference that followed, Hill explained the reports in the present case and the Massey case were almost identical in that they reflected the use of the same confidential informant in the same location and both allegedly involved a “throw-down” of drugs. According to Hill, he intended to attack the officer’s credibility by using Massey to show that Massey’s incident was not as was reflected in the police report. The trial judge denied Hill’s request to pursue this line of questioning. Thereafter, Hill asked to proffer the evidence and the court allowed the proffer.

During the proffer, Detective Lloyd identified the Massey report as one he had written. The officer indicated that, on December 28, 2001, he was contacted by a confidential informant at approximately 6:30 p.m., and advised that the informant was at the Econo Lodge on the Westbank Expressway with a black male who wanted to- sell crack cocaine for $250. The officer testified that the Inconfidential informant was waiting outside for the officer. Detective Lloyd and Officer Vincent went to the location and observed the informant speaking with the black male subject, later identified as Gary Massey. At 6:55 p.m. as Detective Lloyd exited his vehicle, Massey turned and discarded a clear plastic bag unto the ground. The informant was the same person as in the current case. The officer indicated that the transactions were basically the same as the Hill case, except for the manner in which the drugs were discarded. The officer also acknowledged that he had returned to the Bureau, and was there at 8:00 p.m., when the second call was received from the same informant, regarding the Hill case. The officer indicated that he did not know if the charges against Massey were accepted.

Thereafter, Hill called Massey to testify and this witness invoked his right against self-incrimination and refused to testify.

Ultimately, relevancy and the admissibility of evidence is within the sound discretion of the trial court and its ruling will not be disturbed on appeal, absent a clear abuse of discretion..

In this case the trial judge found the evidence inadmissible and sustained the State’s objection on the basis of relevancy. Evidence is relevant if it has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable, or less probable, than it would be without the evidence. The trial judge in deciding the issue of relevancy must determine whether the evidence bears a “rational” connection to the fact in issue in the case. Except as limited by the Code of Evidence and other laws, all Irrelevant evidence is admissible and all irrelevant evidence is inadmissible. Although relevant, evidence may be excluded if its probative value is outweighed by its prejudicial impact, will mislead the jury, or confuse the issues.

After reviewing the record, we find that the events that transpired in the unrelated Massey case were neither relevant to, nor probative of, Officer Lloyd’s actions in the current case. As such, the evidence was properly excluded by the trial court judge. Additionally, we find that the trial judge also properly denied the motion for new trial grounded on this basis.

Hill next contends that the twenty-year sentence at hard labor, imposed pursuant to his adjudicated as a fourth felony offender, is excessive. The State replies that the sentence is within statutory limits and defendant made no showing that would warrant a downward departure.

The record indicates that Hill merely lodged an objection at the time of sentencing without specifying a basis. Additionally, Hill did not make an oral motion for reconsideration of sentence, nor did he file a written motion for reconsideration of sentence.

The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. Accordingly, we review defendant’s sentence only for constitutional excessiveness.

|13At the time of the current offense, the sentence prescribed for fourth-felony offenders was set forth in LSA-R.S. 15:529.1(A)(l)(c)(i)(ii), in pertinent part, as follows:

(c) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for a determinate term not less than his natural life then:
(i) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than natural life, or
(ii) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), a sex offense as defined in R.S. 15: 540, et seq. when the victim is under the age of eighteen at the time of the commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten year or more or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

In this case, Hill’s fourth felony was for possession of cocaine, which carries a sentence of up to five years of imprisonment and a discretionary fine of up to $5,000. The offenses used for enhancement were convictions for: (1) simple burglary of an inhabited dwelling (LSA-R.S.14:62.2); (2) possession of cocaine (LSA-R.S.40:967(C)); and (3) armed robbery (LSA-R.S.14:64). Therefore, LSA-R.S. 15:529.1(A)(l)(c)(i), as amended by 2001 La. Acts 403, provided a sentencing range for this defendant from twenty years of imprisonment to life imprisonment. The trial judge imposed a sentence of twenty years and at the time of sentencing, he stated the following:

THE COURT:
Well, I don’t think Dorothy applies in this case, but in any case, my reading of 529.1, the only time the sentence becomes a | -^mandatory life, without benefit of probation, parole, or suspension of sentence, is if the fourth offense — the fourth offense and two of the prior felonies are crimes of violence, or sex offense, and certain conditions. I don’t think that section, 529.1 C(2) applies in this case, but it still leaves him with the situation of the fourth to be sentenced for not less than twenty, twenty years, and no more than a natural life.

Hill received the mandatory minimum sentence under the Habitual Offender Law, pursuant to LSA-R.S. 15:529.1(A)(c)(i). Despite having received the mandatory minimum sentence, Hill’s sentence may be reviewed for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A mandatory sentence may be excessive if the sentence “makes no measurable contribution to acceptable goals of punishment or ... amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime.”

The mandatory minimum sentences provided for under the Habitual Offender Statute are presumed to be constitutional. In order to rebut the presumption that the mandatory minimum sentence is constitutional, defendant must clearly and convincingly show that he is exceptional, that is, that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the |irigravity of the offense, and the circumstances of the case. Downward departures from the minimum sentence under the Habitual Offender Statute should occur only in rare situations. A downward departure from the minimum sentence mandated by the Habitual Offender Statute is warranted if the trial court determines that the minimum sentence mandated makes no measurable' contribution to acceptable goals of punishment or that the sentence amounts to nothing more than a purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the offense. If a downward departure is warranted, the trial judge shall sentence the defendant to the longest sentence, which is not constitutionally excessive.

In this case, although Hill alleges that the twenty-year sentence as a fourth felony offender for mere possession of cocaine is excessive, he made no showing in the district court for a downward departure. Additionally, his sentence reflects two benefits. He was given the minimum sentence allowed for a fourth felony offender under LSA-R.S. 15:529.1(A)(l)(c)(i). Because the commission of this offense occurred in December 2001, he received the ameliorative effects of 2001 La Acts No. 403, which amended the Habitual Offender Statute in June 2001. Under the pre-amendment version of LSA-R.S. 15:529.1(A)(l)(c), a defendant with an underlying crime of violence (armed robbery) would have been subject to mandatory life imprisonment without benefit of parole, probation, or suspension of sentence.

Furthermore, Hill’s argument that a twenty-year sentence for possession is excessive, ignores the exacting toll of such recidivist activity.

In State v. Johnson, the defendant was convicted of possession of cocaine and possession of marijuana. As a fourth felony offender, with three prior felonies for theft, the trial court made a downward departure from the mandatory minimum sentence of twenty years. The Louisiana Supreme Court vacated the sentence. The supreme court refuted the defendant’s argument that his drug violation for simple possession did not warrant the mandatory minimum sentence. The supreme court noted the following:

Even so, drug possession/use clearly does not effect only the user, but society in general through higher medical costs, higher unemployment rates, loss of tax revenue from those unemployed, etc. Other losses to society include theft or theft related crimes committed to support the drug habit. Here, this defendant, a cocaine user, had previously been convicted of three prior felonies, all theft or theft related (illegal possession of stolen things and theft).

In this case, as in Johnson, Hill’s prior offenses were drug and theft-related offenses. As such, his recidivist behavior was the type of behavior contemplated by the legislature in its enactment of harsher penalties for repeat felony offenders, particularly in cases involving drug and/or violence. Accordingly, we find that this assignment is without merit.

Hill has further assigned as error are all errors patent. The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Weiland. The review reveals no errors patent in this case.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . State v. Broadway, 96-2659, p. 22 (La.10/19/99), 753 So.2d 801, 815, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000), citing 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).

      . Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957).

      . Roviaro v. United States, 353 U.S. at 62, 77 S.Ct. 623; State v. Broadway, 753 So.2d at 815; State v. Zapata, 97-1230, p. 2 (La.App. 5 Cir. 5/27/98), 713 So.2d 1152, 1158, writ denied, 98-1766 (La.11/6/98), 727 So.2d 443; State v. Biglane, 99-111, p. 2 (La.App. 5 Cir. 5/19/99), 738 So.2d 630, 634.

      . State v. Zapata, 713 So.2d at 1158, citing State v. Becnel, 95-591, p. 5 (La.App. 5 Cir. 1/30/96), 668 So.2d 1281, 1285 (quoting Roviaro, 353 U.S. at 62, 77 S.Ct. 623).

      . State v. Zapata, 713 So.2d at 1158, citing State v. Becnel, 668 So.2d at 1285 (quoting Roviaro, 353 U.S. at 62, 77 S.Ct. 623). See also, State v. Broadway, 753 So.2d at 815.

      . State v. Zapata, 713 So.2d at 1158; State v. Becnel, 668 So.2d at 1286.

      . at 1286, quoting Roviaro, 353 U.S. at 62, 77 S.Ct. 623:

      . State v. Zapata, 713 So.2d at 1158-1159, citing State v. Davis, 411 So.2d 434, 437 (La.1982).

      . State v. Davis, supra; State v. Zapata, 713 So.2d at 1158; State v. Biglane, 738 So.2d at 634; State v. Becnel, 668 So.2d at 1285.

      . Roviaro v. United States, 353 U.S. at 62-64, 77 S.Ct. 623; State v. Zapata, 713 So.2d at 1158.

      . State v. Zapata, supra; State v. Biglane, 738 So.2d at 634.

      . State v. Zapata, supra, citing State v. Becnel, supra.

      . State v. Zapata, supra; State v. Biglane, supra.

      . U.S. Const, amends. VI and XIV; La. Const, art. I, § 17 (1974).

      . State v. Robinson, 01-0273, p. 2 (La.5/17/02), 817 So.2d 1131, 1135.

      . State v. Robinson, supra.

      . State v. Jones, 02-908, pp. 10-11 (La.App. 5 Cir. 2/25/03), 841 So.2d 965, 976, writ denied, 03-0895 (La.9/26/03), 854 So.2d 345

      . LSA-C.E. art. 607(C)

      . State v. Robinson, 817 So.2d at 1135, quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435 89 L.Ed.2d 674 (1986).

      . 841 So.2d at 976

      . 817 So.2d at 1136:

      . State v. Robinson, 817 So.2d at 1136, n. 4.

      . State v. Mosby, 595 So.2d 1135, 1139 (La.1992).

      . LSA-C.E. art. 401;

      . State v. Williams, 341 So.2d 370, 374 (La.1976);

      . LSA-C.E. art. 402.

      . LSA-C.E. art. 403;

      . LSA-C.Cr.P. art. 881.1.

      . State v. Hester, 99-426, p. 2 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied, 99-3217 (La.4/20/00), 760 So.2d 342.

      . This provision of the Habitual Offended Statute was amended, effective June 15, 2001, by 2001 La. Acts, No. 403.

      . LSA-R.S. 40:967(0(2).

      . Defendant’s offense occurred on December 28, 2001; hence, he was subject to the amendment of LSA-R.S. 15:529.1 by 2001 La. Acts No. 403.

      . State v. Armstrong, 99-925 (La.App. 5 Cir. 2/16/00), 756 So.2d 533, 538, writ denied, 00-2419 (La.6/1/01), 793 So.2d 182, cert. denied, 534 U.S. 1058, 122 S.Ct. 651, 151 L.Ed.2d 568 (2001).

      . State v. Armstrong, 756 So.2d at 537.

      . LSA-R.S. 15:529.1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Johnson, 709 So.2d at 676.

      . State v. Johnson, supra; State v. Dorthey, supra.

      . State v. Johnson, supra.

      . State v. Washington, 00-301, p. 11 (La.App. 5 Cir. 9/26/00), 769 So.2d 1235, 1241, writs denied, 00-2971 and 00-3041 (La.9/28/01), 798 So.2d 106 and 108.

      . State v. Johnson, 709 So.2d at 677.

      . State v. Johnson, supra; State v. Dorthey, supra.

      . 709 So.2d at 672

      . Johnson at 678

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir.1990).