author: JjJOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Ben S. GRAVOLET v. FAIR GROUNDS CORPORATION. Ben S. Gravolet v. Fair Grounds Corporation.
    Nos. 2003-CA-0392, 2003-CA-0958.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 2003.
    Rehearing Granted Feb. 10, 2004.

      James M. Garner, Timothy B. Francis, Joshua S. Force, Sher, Garner, Cahill, Richter, Klein, McAlister & Hilbert, L.L.C., New Orleans, LA, for Plaintiff/Ap-pellee.
    P.J. Stakelum, III, David R. Sherman Stephen D. Marx Julian R. Murray, Jr. Chehardy, Sherman, Ellis, Breslin, Murray & Recile, LLP Metairie, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE and Judge DAVID S. GORBATY).
   JjJOAN BERNARD ARMSTRONG, Chief Judge.

This is a contract case arising from a lease with options to extend term and to purchase entered into by the Fair Grounds Corporation (FGC) for property located at 111-113 Bourbon Street in New Orleans.

On March 8, 1989, FGC as Lessee and Richard and Patricia Keyworth as Lessor entered into a lease for the ground floor, second floor and limited use of the roof of the subject property, which had been a Mexican restaurant, but which had been vacant for over five years. The two-year lease gave the Lessee a conditional option to extend the term for an additional eight years and .an option to purchase the entire building during the first year of the lease term for $1,250,000. The monthly rental was $10,000. The lease gave the Lessor the option, upon termination or expiration of the lease, to require that the building be replaced in its original condition. FGC could not assign the lease in whole or in part without the prior written consent of the Keyworths, and the Keyworths had the right to refuse to grant consent to any assignment with or without cause and without stating its ^reasons for refusal. The lease gave the Keyworths the right to withhold consent arbitrarily.

By resolutions of September 29, 1988 and May 25, 1989, FGC’s board authorized Mr. Gravolet generally to purchase and dispose of real or movable property on behalf of FGC. A similar resolution in favor of Mr. Louis Roussel, III, a shareholder of and attorney for FGC, was passed on February 23,1989.

On March 13, 1989, Mr. and Mrs. Key-worth executed a note secured by a mortgage on the subject property together with an assignment of leases and rentals in favor of Mr. Roussel. Mr. Gravolet signed the documents as Mr. Roussel’s representative. The record contains a letter purportedly sent by Mr. Gravolet to FGC on the letterhead of “Mammoth Capital, Inc.”, expressing his understanding that FGC “is agreeable to assign its interest to this “Option to Purchase” to Mammaoth [sic] Capital, Inc. for the consideration of: 1. $100 cash consideration. 2. Purchase of property will be subject to existing lease. 3. Mammoth Capital, Inc. waive the “Security Deposit” requirement of said lease.” According to the letter, Mr. Gravolet undertook that Mammoth would cancel FGC’s bank letter of credit securing its security deposit upon transfer of title to the subject property. The FGC corporate secretary’s affidavit, submitted by FGC in opposition to Mr. Gravolet’s motion for summary judgment, shows that FGC did not authorize or approve the assignment of the option to purchase.

On March 7, 1990, Mr. Roussel wrote to Mr. Keyworth advising that FGC intended to exercise its option to purchase the subject property. The sworn | ¡¡evidence of FGC’s corporate secretary’s affidavit establishes that neither FGC’s directors nor shareholders were advised that the option was exercised. On March 14, 1990, Mammoth executed an Act of Collateral Mortgage, acknowledging a principal debt of $600,000, and an $800,000 promissory note in favor of Mr. Roussel. Mr. Gravolet signed the documents as Mammoth’s president. The record contains a copy of a letter purportedly sent by Mr. Gravolet to FGC on March 15, 1990 advising that Mammoth exercised the option to purchase and future rentals should be sent to “Louie [sic] J. Roussel, III, for credit to account of Mammoth Capital, Inc.” Mammoth and Mr. and Mrs. Gravolet subsequently entered into a real estate exchange with Malcolm Faber whereby the Gravolets acquired the subject property on December 2,1992.

On April 3, 1990, Mr. and Mrs. Bryan Krantz purchased control of FGC through a stock purchase agreement, buying Mr. Roussel’s 49.31% interest, Mr. Gravolet’s 2.34% interest, Mr. Roussel’s father’s 1.37% interest and the .64% interest held by Empire Land Corporation, alleged by FGC to be a Roussel corporation.

On July 7, 1999, FGC and Mr. Gravolet executed a five-year extension of the lease in consideration of monthly rental payments of $13,125. As additional consideration, FGC received the right to exercise before December 1, 1999 an exclusive option to lease the third and fourth floors of the property for an additional monthly rental of $2,000. FGC’s exercise of the option would extend the lease term through March 14, 2009. In that event, base rental from March 14, [42004 through March 14, 2009 would be adjusted in accordance with the Consumer Price Index’s change from March 1999 through March 2004. Furthermore, exercise of the option would eliminate Mr. Gravolet’s right to terminate the lease at any time during the extended term by giving FGC twenty-four month written notice. FGC retained its right to early termination without regard to its exercise of the option to lease the additional floors.

On July 27, 1999, FGC put Mr. Gravolet on notice of its intention to terminate the lease effective April 30, 2000. On January 13, 2000, Mr. Gravolet wrote to FGC through its new co-owner and President, Bryan Krantz, that he was exercising his option to require the building to be replaced in its original condition as per the 1981 building plans prepared by architect A.G. Lyons upon the termination of the lease. Mr. Gravolet claimed in the letter that prior to the commencement of the FGC lease the property “was a newly renovated Cisco’s restaurant.”

Following mediation, on April 28, 2000, Mr. Gravolet and FGC entered into an agreement extending the lease termination date to July 31, 2000, and reserving the parties’ rights, as they existed on April 30, 2000.

On July 11, 2000, Mr. Gravolet wrote to FGC claiming he was severely handicapped in his efforts to lease the property because of uncertainty as to when FGC anticipated completing the construction necessary to return the property to its original condition and demanding that rent continue until the property would be so [ sreturned. FGC through Mr. Krantz responded on July 28, 2000, denying that FGC had an obligation to restore the premises to original condition. Mr. Krantz also advised Mr. Gravolet that FGC had no interest in a purchase or exchange of the building at Mr. Gravolet’s approximate valuation of $3,000,000.

On November 7, 2000, Mr. Gravolet filed suit seeking to enforce his understanding of the lease, attaching copies of the original lease; extension agreement of July 7, 1999; Gravolet letters of January 13, 2000 and July 11, 2000; agreement of April 28, 2000; and FGC letter of July 28, 2000. A week later, on November 14, 2000, Mr. and Mrs. Gravolet entered into a sixty-two month lease with Bourbon Street Holdings, LLC, leasing the subject property in consideration of a $28,000 lease execution payment to the Gravolets and monthly rent of $14,000 for the first four months and $28,000 thereafter, with CPI adjustments on renewal terms and additional rent as agreed by the parties.

FGC answered the petition, admitting it made renovations to the building and averring that all improvements were made with the Lessor’s express consent, and admitting the documents attached to the petition insofar as they are the best evidence of their terms. FGC further answered claiming that the restoration clause in the lease was intended as a basis on which the Lessor could condition his consent to FGC’s improvements. FGC contended that the Lessor accepted the substantial improvements FGC made to the leased premises. FGC claimed in the alternative that the July 7, 1999 agreement between it and Mr. Gravolet provided that all rights and obligations under the lease would terminate upon expiration of |fithe lease extension, and that this provision is paramount to and essentially supercedes conflicting lease provisions. FGC alleges that the 1981 Lyons plans do not comply with present-day life safety codes and the Americans with Disabilities Act, thereby making it legally impossible to return the premises to their 1981 condition. In the further alternative, FGC claimed that it returned all the salvageable fixtures and appointments pertaining to a Mexican restaurant to the Lessor, who sold them and retained the funds, making it physically impossible for FGC to return the premises to their 1989 condition.

FGC claimed that Mr. Gravolet breached the lease in at least the following particulars, thereby excusing further performance by FGC: (1) failure to repair and maintain the building including those portions outside the. leased premises; (2) allowing water to leak into the leased premises from the third and fourth floors of the building; (3) failure to maintain the roof; (4) failure to treat for termite infestation that began in the building outside the leased premises; (5) failure to keep the building watertight; (6) reconstruction of the mezzanine area to conform to 1989 condition would decrease the lease value of this French Quarter property, where premium rents are paid for the ambience of high ceilings. FGC claimed the damages Mr. Gravolet sought are speculative or consequential and, as such, are not recoverable in Louisiana.

Following discovery, FGC supplemented its answer, alleging that general equitable principles bar Mr. Gravolet from attempting to enforce contractual rights he obtained through a alleged breach of his fiduciary duty to FGC and through |7assisting Louis Roussel II in allegedly breaching his fiduciary duty to FGC. FGC alleged that prior to acquiring title to the Subject property, Mr. Gravolet was owner of 2.34% of FGC’s outstanding common stock. This holding was part of a controlling block of stock allegedly owned by Mr. Gravolet and Mr. Roussel comprising 53.66% of FGC’s outstanding common shares, entitling Messrs. Gravolet and Roussel to control and direct FGC’s corporate affairs. At all material times prior to April 12, 1990, Mr. Roussel allegedly served as legal counsel to FGC. On February 23, 1989, Mr. Roussel allegedly was appointed agent for FGC and given broad powers to deal on behalf of FGC in real estate matters, including the power to buy, sell or lease any property on terms of his choice. FGC noted Mr. Roussel’s fiduciary duty of loyalty arising out of that empowerment, including the duty to act exclusively in FGC’s best, interest and to avoid taking even the slightest advantage of FGC. FGC gave similar broad real estate-related powers to Mr. Gravolet on October 3, 1988 and May 25, 1989, with similar concomitant obligations. FGC alleges that Mr. Roussel caused FGC to enter into the Keyworth lease, including the option to purchase. After so doing, Mr. Roussel and Mr. Gravolet, using the powers granted to them by FGC, allegedly entered into various contracts as a result of which FGC spent more than $700,000 to improve the leased premises, significantly enhancing the building’s value. Less than six months later, Messrs. Roussel and Gra-volet, using these same powers, allegedly caused FGC to exercise the purchase option on March 5, 1990 and, less than ten days later, using the same powers, allegedly caused FGC to assign its interest in the option to [spurchase to Mr. Gravolet for little or no consideration. FGC claimed that Messrs. Roussel and Gravolet failed to safeguard FGC’s interest by allowing FGC to expend significant resources on improvements to the property without requiring the lease to be modified to eliminate the restoration clause; by allegedly failing to reimburse FGC for the cost of its improvements; and by allegedly assigning FGC’s option.to purchase the property to Mr. Gravolet for a grossly inadequate consideration of $100 and cancellation of the security deposit for which FGC has posted a letter of credit. FGC claims that Messrs. Roussel and Gravolet concealed the assignment by causing the option to be assigned nominally to Mammoth Capital, Inc. (Mammoth), a corporation allegedly owned by Mr. Gravolet and/or members of his immediate family. FGC further alleges that neither the decision to invest $700,000 in improvements to the subject property nor the assignment of FGC’s purchase option to Mr. Gravolet through Mammoth was presented for approval to the FGC Board of Directors.

FGC also contends that about three weeks later, on April 3,1990, Mr. Gravolet, Mr. Roussel, Mr. Roussel’s father and Empire Land Company, allegedly a Roussel corporation, allegedly entered into an agreement to sell their block of controlling FGC shares to Marie and Bryan Krantz for $14,712,810 and other consideration, and this transaction was-perfected on April 12, 1990. On December 2, 1992, Mr. Gra-volet allegedly caused Mammoth to transfer title to the subject property to Mr. Gravolet and his wife, via a property exchange with an unrelated Rthird party. These actions allegedly bar Mr. Gravolet from attempting to enforce the restoration clause in the original lease against FGC. The trial court allowed FGC to file this supplemental and amended answer, but did not address the allegations in its reasons for granting Mr. Gravolet’s motion for partial summary judgment.

On July 25, 2001, Mr. Gravolet moved for partial summary judgment that FGC breached its lease agreement for failure to restore the premises to their 1989 condition, filing a copy of the original lease; responses to requests for admissions and interrogatories; copy of a newspaper article concerning the transformation of the former Kreeger’s department store space into a Cisco’s Restaurant; and copy of Cisco’s offer to sell its leasehold improvements in return for assumption of its lease.

FGC opposed the motion. In support of its opposition, FGC offered the following exhibits:

(1) Keyworth lease

(2) Attorney P.J. Stakelum affidavit addresses the impropriety of granting summary judgment on the liability at this stage of the proceedings. Mr. Stakelum avers that FGC desires to take the depositions of Mr. Gravolet, Mr. Roussel and Mr. Keyworth in connection with FGC’s arguments that (a) the lease termination under the July 7, 1999 lease extension agreement bars enforcement of the restoration clause, and (b) Mr. Gravolet acquired his interest in the lease through |inexercise of a right obtained by his breach of his fiduciary obligations to FGC acting independently and in concert with Mr. Roussel who similarly breached his fiduciary obligations to FGC. The requested deposition testimony would support Mr. Kurtz’s affidavit. FGC also seeks to take the deposition of Mr. Gravolet and state and municipal regulators to prove FGC’s affirmative defenses relating to Mr. Gravolet’s failure to maintain the building and the effect of current building codes on FGC’s ability to reconstruct the building in accordance with the 1981 Lyons plans.

(3) Lease extension agreement dated July 7, 1999 providing that if FGC exercises its right to terminate during the extended term by nine month written notice, all rights and obligations of both parties under the Lease shall cease upon the expiration of the nine-month period.

(4) William H. Kurtz affidavit

Mr. Kurtz served as FGC’s executive vice-president from August 1990 through December 31, 1993, and since then as FGC’s real estate consultant with respect to the subject property. In early 1999, he and Mr. Gravolet engaged in negotiations resulting in the execution of the lease' extension agreement of July 7, 1999. Mr. Gravolet sought a significant increase in the $10,000 fixed minimum monthly rent, and under a compromise agreement the parties agreed to extend the lease for five years and increase the fixed minimum monthly rent to $13,125. The compromise was made possible by the provision that each party had a right of early termination by which it could unilaterally terminate the lease and walk away from the arrangement by giving the other party an agreed upon advance notice. Mr. Gravolet’s right of early termination was intended to allow him to terminate [nthe lease if he found a better tenant and to allow FGC twenty-four months to locate an alternative site and to build out a new off-track betting parlor. FGC’s right of early termination was intended to allow FGC to terminate the lease and walk away from the arrangement whenever it felt that the Bourbon Street location was no longer economically suitable for its purposes. The nine-month notice allowed Mr. Gravolet sufficient time to locate a new tenant and guaranteed him at least $118,125 while he looked for a new tenant. In fact, FGC gave twelve months’ notice, guaranteeing Mr. Gravolet $157,500 while obtaining a new tenant. The intent of the lease extension agreement was to limit FGC’s lease obligations in the event of early termination to payment of fixed minimum rent and its proportionate share of taxes and insurance through the date of termination and to surrender the property in broom-clean condition. It was never the common intent of the parties that Mr. Gravolet would be entitled to compel FGC to restore the property to its pre-lease 1989 condition.

(5)Bryan G. Krantz affidavit

Mr. Krantz, President and General Manager of FGC, with his wife purchased controlling interest in FGC by a stock purchase agreement of April 3, 1990. They bought 49.31% from Mr. Roussel, 2.34% from Mr. Gravolet, 1.37% from Mr. Rous-sel’s father and .64% from Empire Land Corp. In July 1999, FGC exercised its right of early termination under the lease extension agreement, giving Mr. Gravolet nine months notice. By mutual consent, Mr. Gravolet and FGC agreed to delay termination until July 31, 2000. From the date FGC gave | ^termination notice through the termination date, FGC paid Mr. Gravolet $157,500 in fixed minimum rent.

(6) FGC resolutions of September 29, 1989 appointing Mr. Gravolet real estate agent

(7) FGC resolutions of February 23, 1989 appointing Mr. Roussel real estate agent

(8) FGC resolutions of May 25, 1989 appointing Mr. Gravolet real estate agent

(9) FGC minutes of January 24, 1989 appointing Mr. Roussel attorney for FGC

(10) FGC minutes of January 23, 1990 appointing Mr. Roussel attorney for FGC

(11) Mr. Roussel’s letter to Mr. Key-worth of March 7, 1990 advising that FGC intended to exercise its option to purchase

(12) Mr. and Mrs. Keyworth’s $1,000,000 note payable to Mr. Roussel dated March 13, 1989, paraphed for identification with mortgage and assignment of leases and rentals dated March 13, 1989

(13) Act of Mortgage by Mr. and Mrs. Keyworth to Mr. Roussel dated March 13, 1989, signed by Mr. Gravolet as Mr. Rous-sel’s representative

(14) Extract from FGC’s 1989 Annual Report to Shareholders, showing the cost of FGC’s improvements and furnishings in the Subject property to be approximately $690,000

(15) Mr. and Mrs. Keyworth’s assignment of leases and rentals to Mr. Roussel dated March 13, 1989, signed by Mr. Gra-volet as Mr. Roussel’s representative

_|^(16) Mr. Gravolet’s letter of March 14, 1990 on Mammoth letterhead

(17) David R. Sherman affidavit

Mr. Sherman, FGC’s Secretary, attested to the accuracy of the copies of FGC board resolutions and minutes, Exhibits 6, 7, 8, 9, 10, and the extract from the 1989 annual report to shareholders, Exhibit 14. He averred further that the FGC board of directors never adopted any resolutions approving the exercise of the option to purchase or otherwise authorizing FGC to purchase the Subject property. Furthermore, he averred that the board of directors never adopted any resolutions authorizing or approving the assignment of the option to purchase to Mr. Gravolet or to any other person. According to Mr. Sherman’s sworn affidavit, there is no corporate record indicating that the FGC board of directors or shareholders were informed that the option to purchase was exercised or assigned.

(18) Mr. Gravolet’s letter of March 15, 1990 to FGC on Mammoth stationery

(19) March 14,1990 Collateral Mortgage by Mammoth in favor of Mr. Roussel

(20) Mammoth’s $800,000 promissory note dated January 15,1991

(21) Collateral Mortgage and Security Agreement by Mammoth in favor of Mr. Roussel, dated January 15,1991

(22) Amendment to $800,000 note dated January 4,1992

(23) Mr. Gravolet’s letter to Lawyers Title dated November 5,1992

Mr. Gravolet asked Lawyers Title to prepare a cash act of sale whereby Malcolm Faber would purchase the subject property from Mammoth for $725,000. Mr. Gravolet advised that his wife would appear for Mammoth and that “Louie”, presumably Mr. Roussel, was holding the note that would be paid in full at the Jbsale- Mr- Gravolet also asked Lawyers Title to prepare an act of exchange whereby he would exchange 9119-9127 Airline Highway to Mr. Faber in exchange for the subject property. $120,000 would be attributed to the Airline Highway property and $725,000 to the subject property. The Whitney Bank would present the proceeds held in trust for the “deferred exchange” which would total approximately $240,000. Mr. Gravolet would borrow $400,000 from “Louie” secured by a $1,000,000 collateral mortgage note on the subject property.

(24) Act of exchange and assignment of leases between Mr. and Mrs. Gravolet and Mr. and Mrs. Malcolm J. Faber dated December 2,1992

(25) Mr. and Mrs. Gravolet’s $600,000 promissory note payable to Mr. Roussel dated December 2,1992

(26) $1,000,000 collateral mortgage and security agreement by Mr. and Mrs. Gra-volet in favor of Mr. Roussel dated December 2,1992

(27) Mr. Gravolet’s objections and verified responses to FGC’s first set of interrogatories

(28) Lease between Mr. and Mrs. Gra-volet and Bourbon Street Holdings, LLC dated November 14, 2000

The trial court granted Mr. Gravolet’s motion for partial summary judgment, holding that it interpreted the lease and lease extension to give Mr. Gravolet the right to require FGC to restore the premises to their original condition. Furthermore, the trial court held that the lease extension did not modify, supplement or amend the restoration clause. The trial court denied FGC’s motion for new trial.

The issues of damages and mitigation of damages were tried to the court on September 24 through October 2, 2002. Following trial, the court awarded Mr. | ^Gravolet $880,470 for restoration expenses, $168,000 for six months of lost rent and $349,490 for attorney’s fees. The court reiterated its previous finding that FGC was bound by the restoration clause in the original lease. The court noted that although returning the building to its original condition would not conform to current building code requirements, alternative measures were available that would conform to code requirements while maintaining the essence of the original architectural design. The court found consistent testimony that the restoration would take six months, and awarded Mr. Gravolet six months’ rent at the rate FGC paid at the termination of its lease.

Mr. Gravolet moved for a new trial, seeking recovery of taxes and pre- and post-judgment interest. Mr. Gravolet proposed an amended judgment awarding $1,600,855 for restoration expenses; $168,000 for lost rent; $598,618.33 for attorney’s fees; and $286,653.28 for interest, and moved to tax costs and interest on costs. FGC moved for a suspensive appeal of the trial court’s judgments (1) granting Mr. Gravolet’s motion for partial summary judgment; (2) denying FGC’s motion for new trial with respect to the summary judgment motion; and (3) awarding damages. Mr. Gravolet answered the appeal and filed a separate appeal that has been consolidated with the instant appeal, seeking recovery of income taxes and interest, the full amount of lost rent, taxes and insurance he allegedly must pay as a result of FGC’s breach of the lease agreement, and additional attorney’s fees.

|1fiFor the reasons that follow, we reverse the trial court’s judgment granting partial summary judgment, and remand for further proceedings consistent with this opinion.

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Insurance Company v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/2000), 755 So.2d 226. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, scrutinized equally, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof remains with the mover. Board of Assessors of the City of New Orleans v. City of New Orleans, 2002-0691, p. 8 (La.App. 4 Cir. 9/25/02), 829 So.2d 501, 506, writ denied 2002-2633 (La.1/10/03), 834 So.2d 439. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support 117sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

A fact is material if it is essential to a plaintiffs cause of action under the apphcable theory of recovery and if, without the estabhshment of the fact by a preponderance of the evidence, plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4th Cir.1992), writ not considered 613 So.2d 986 (La.1993).

Thus, we apply a two-prong test to determine whether Mr. Gravolet’s motion for partial summary judgment as to liability should have been granted: (1) has he established that no genuine issues of material fact remain? (2) If so, does the record show that he is entitled to judgment as a matter of law?

Before a trier of fact can reach the issue of the interpretation of the lease and lease extension agreements, Mr. Gravolet must prove by a preponderance of the evidence that he is the Owner/Lessor of the subject property and by reason of this status is entitled to enforce the provisions of the lease against FGC. Our review of the record in its entirety de novo convinces us that the uncontroverted evidence of record does not support Mr. Gravolet’s alleged right to ownership of the property. The original lease agreement clearly provides that the option to purchase the property within the first year of the lease term was a corporate right appertaining to FGC. Mr. Roussel’s March 7, 1990 letter to Mr. Keyworth indicates that the corporation intended to exercise its option to purchase. None of the documents executed in connection with the exercise of FGC’s option and the assignment of the lease to Mammoth or to Mr. Gravolet recites the existence of a resolution by 11sthe corporation’s board of directors authorizing the corporation’s exercise of the option to purchase or the transfer of that option to Mammoth and/or Mr. Gravolet. Mr. Gravolet has not produced such a resolution. To the contrary, FGC’s corporate secretary, Mr. Sherman, swears in his affidavit that the board of directors of the corporation never adopted resolutions approving the exercise of the option to purchase, otherwise authorizing FGC to purchase the property or authorizing or approving the assignment of the option to purchase to Mr. Gravolet or to any other person. Furthermore, the evidence of Mr. Sherman’s affidavit is un-controverted that neither the FGC board nor its shareholders were informed that the option to purchase was exercised or was assigned to Mr. Gravolet.

Furthermore, there is no evidence that Mr. and Mrs. Keyworth approved the purported assignment of the option to purchase by FGC to Mammoth. The Keyworth lease provided, as noted herein-above, that FGC could not assign the lease “in whole or in part” without the prior written consent of the Keyworths, and that the Keyworths had an absolute right to refuse to consent arbitrarily.

In addition, the issue of Mr. Gravolet’s alleged breach of the lease by reason of his failure to maintain the non-leased portions of the subject property remains open. Mr. Gravolet had the burden of proving on his motion for partial summary judgment that he had not failed to maintain the property in a watertight and termite-free condition. Only upon his having provided such evidence would the burden of proof have shifted to FGC under LSA-C.C.P. art. 966(C)(2).

The record also contains certified copies of resolutions by the FGC board of directors making Messrs. Gravolet and Roussel agents and, in Mr. Roussel’s case, an attorney for the corporation, with the fiduciary duties attendant on those positions. Mr. Krantz’s affidavit is uncontro-verted and establishes that MrJ^Gravolet together with Mr. Roussel were controlling shareholders of FGC prior to the Krantz purchase, owning a majority of the corporation’s outstanding common shares. Material issues remain to be addressed concerning the alleged breach of fiduciary duties, vel non, by these individuals and the validity of the allegedly self-dealing transactions through which Mr. and Mrs. Gravolet ultimately gained title to the subject property. Thus, there is a significant, genuine issue of material fact as to Mr. Gravolet’s right to enforce the restoration clause or, indeed any provision of the lease and the lease extension agreements.

We find, on our review of the entire record, that the pleadings, depositions, answers to interrogatories, admissions and affidavits, read equally, do not entitle Mr. Gravolet to judgment as a matter of law.

Because of our resolution of the partial summary judgment issue, Mr. Gravolet’s appeal, his cross-appeal by way of answer to FGC’s appeal and FGC’s remaining assignments of error, all of which deal with the issue of damages, are moot and are pretermitted until such time as the liability issue has been determined.

For the foregoing reasons, we reverse the judgment of the trial court granting Mr. Gravolet’s motion for partial summary judgment and remand the case to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . FGC offered evidence that, in fact, the Cisco's restaurant had been vacant for over five years at the time FGC entered into the Key-worth lease.

      . As noted herein, Mr. Gravolet signed authentic acts in his capacity as Mammoth’s president, and purportedly wrote to FGC on Mammoth letterhead.

      . The only mention of these allegation is the following language in the trial court’s judgment on FGC’s motion for new trial: "This Court finds that the affirmative defenses asserted in the Supplemental and Amended Answer do not change the Court's holding in the previous judgment granting the plaintiffs Motion for Partial Summary Judgment.”

      . With the exception of the affidavits, FGC submitted copies of documents listed.

      . Mr. Gravolet in fact found such a tenant and executed a lease on November 14, 2000, advantaging himself by the $28,000 lease execution payment and by the substantial increase in monthly rentals.

      . Because the trial court admitted no evidence on the liability issue at trial, and FGC did not move for partial summary judgment below, we must remand the case.


source: Caselaw Access Project

author: J^MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    BROADMOOR, L.L.C. v. ERNEST N. MORIAL NEW ORLEANS EXHIBITION HALL AUTHORITY.
    No. 2003-C-1996.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 22, 2003.

      Marguerite K. Kingsmill, Mark S. Sen-ter, New Orleans, LA, for Relator, Broadmoor, L.L.C.
    Michael E. Botnick, Howard E. Sinor, Jr., Ewell E. Eagan, Jr., Tina C. Santopa-dre, Gordon, Arata, McCollam, Duplantis & Eagan, L.L.P., New Orleans, LA, for Intervenor, W.G. Yates & Sons Construction Co./Landis Construction Co., L.L.C., A Joint Venture.
    W.P. Wray, Jr., Wray & Pierce L.L.P., Baton Rouge, LA, for Amicus Curiae, Louisiana Associated General Contractors, Inc.
    Kenneth M. Carter, Kenneth M. Carter, PLC, New Orleans, LA, for Intervenor, Southeast Louisiana Building and Construction Trades Council (Less and Except Plumbers and Pipefitters Local 60).
    Phillip A. Wittman, Michael Q. Walshe, Jr., Julie A. Richards, Walter F. Wolf, Stone Pigman Walther Wittman, L.L.C., New Orleans, LA, for Respondent, The Ernest N. Morial New Orleans Exhibition Hall Authority And The Board of the Ernest N. Morial New Orleans Exhibition Hall Authority.
    Russ M. Herman, Herman, Herman, Katz & Cottar, New Orleans, LA, for In-tervenors, Frischhertz/Fisk Joiint Venture and Gallo Mechanical Contracts, Inc.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR.).
   J^MICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE

Broadmoor, L.L.C. seeks review of the trial court’s judgment denying its request for a preliminary injunction.

This litigation arises from the bidding process for construction of Phase IV of the Ernest N. Morial New Orleans Exhibition Hall. On August 8, 2003, the Ernest N. Morial New Orleans Exhibit Hall Authority (Authority) announced its intent to receive bids on the construction of Phase IV. Bids were received and opened on October 3, 2003. Three bids were received:

Yates/Landis $268,445,000.00
Broadmoor $275,000,000.00
McDonnell/PLC $278,235,000.00

The bidders were given the opportunity to review all bids. Broadmoor filed a protest to Yates/Landis’ bid noting several irregularities. On October 15, 2003, the Construction Committee of the Authority held a hearing on the bids and voted to defer action on the bids to the full Authority without recommendation. The Authority held a hearing on the bids on October 22, 2003. At this hearing, the Authority was informed that Senators Boissiere and Ba-joie had requested an opinion from the Attorney General on the issue of insurance provisions within a |2bid and the waivability of bid requirements. The Authority did not accept any of the bids on that date.

Subsequently, Broadmoor filed its petition for temporary restraining order, preliminary injunction and permanent injunction on October 29, 2003. The trial court initially granted the temporary restraining order but later rescinded the order after a contradictory hearing. The Authority then accepted the bid of Yates/Landis as the lowest responsive and responsible bid and sent Yates/Landis notice of acceptance of the bid. A hearing on Broadmoor’s request for a preliminary injunction was held on November 3, 2003. The trial court denied the request for a preliminary injunction, noting that while the Authority was “wrong, it was not arbitrary.” Broadmoor informed the trial court of its intent to seek supervisory writs on November 12, 2003. The trial court granted Broadmoor until November 22, 2003 to file its writ application. Broadmoor filed its application for supervisory writs with this Court on November 13, 2003. The Authority and Yates/Landis both filed opposition briefs on November 24, 2003. Inter-veners, Frischhertz/Fisk Joint Venture, Gallo Mechanical Contractors, Inc. and Southeast Louisiana Building and Construction Trade Council, filed a brief in support of the writ application on November 17, 2003. Louisiana Associated General Contractors, Inc. filed an amicus curiae brief on November 29, 2003.

DISCUSSION

Broadmoor argues that the trial court erred when it determined that the Authority was not arbitrary in its decision to accept the Yates/Landis’ bid as the lowest responsive bid. Broadmoor contends that the Yates/Landis’ bid is not [..¡responsive due to several irregularities: (1) failure to include a certificate of insurance or letter of insurability for builders’ risk insurance; (2) failure to attend pre-bid meetings and failure to purchase full size set of bidding documents; (3) failure to submit resolution of authority; (4) failure to accurately list and describe qualifications and experiences; (5) failure to submit affidavit evidencing commitment to subcontract or purchase fifteen percent of value of project from small and emerging businesses in Louisiana; and (6) failure to submit non-collusion affidavit.

Builders’ Risk Insurance

Broadmoor suggests that the Yates/Landis’ bid is not responsive, as it did not include a letter of insurability concerning builders’ risk insurance. The Authority and Yates/Landis contend that the bid requirements did not mandate a letter of insurability concerning builders’ risk insurance. Article 14 of the bid requirements state:

ARTICLE U — INSURANCE REQUIREMENTS
14.1 Bidders shall deliver Certificates of Insurance or statement of insurability acceptable to the Owner with their bids, to demonstrate compliance with Article 11 of the Supplementary Conditions.
14.2 Failure of the Successful Bidder to deliver said Certificates of statement of insurability with the Bid may result in the Bid being deemed incomplete and non-responsive. In the event of such failure, the Owner reserves the right to offer the Contract to the next lowest responsive Bidder or re-advertise the project to request a completely new set of bids.

Article 11 of the supplementary conditions provide for the insurance and bonds that must be obtained by the contractor. Section 11.0 of Article 11 deals Lwith the general insurance requirements. Section 11.1 sets forth the requirements for contractor’s liability insurance, which includes comprehensive general liability, workers’ compensation and employers’ liability insurance, comprehensive automobile liability, watercraft liability and an umbrella policy. Section 11.2 provides that the Owner will also purchase liability insurance. Section 11.3 requires that the Contractor purchase and maintain property insurance, which includes “‘all risk’ (as defined in the policy form) insurance for physical loss or damage in the amount equal to the Contract Sum,” which is also known as builders’ risk insurance. Section 11.4 states that the Owner may purchase loss of use insurance. Section 11.5 mandates that the Contract provide a “good and solvent Performance Bond acceptable to the Owner in the amount of one hundred percent (100%) of the amount of the Contract Sum, to assure the faithful performance of the Contractor’s duties.” The section also requires the Contractor to furnish the Owner with a payment bond. Section 11.6 requires the Contractor to obtain contractual liability insurance to protect the Owner for any indemnification claims the Owner may assert.

Article 14 states that there must be an indication of compliance with all of Article 11 of the supplementary conditions. Article 14 does not specifically limit compliance to certain provisions of Article 11. Thus, a responsive bid must show that the contractor will be able to obtain all the insurance and bond requirements of Article 11, including builders’ risk insurance. While a certification of insurance concerning builders’ risk insurance may not be obtainable at the time the bid is submitted, the contractor can obtain a letter of insurability from the insurance company (both Broadmoor and PC/McDonnell provided such letters in their bids).

|5The Attorney General in the opinion rendered on October 29, 2003 concluded that the bid requirements mandated the inclusion of a certificate of insurance or letter of insurability as to builders’ risk insurance. He stated that:

Thus, the documents which set out the requirements for the phase IV of the Convention Center required all of the bidders to attach certificates of insurance or statements of insurability to the bid.
The word “shall” as used in statutes, contracts, or the like, is generally imperative or mandatory. In common or ordinary parlance, the term “shall” is a word of command, and one which must be given a compulsory meaning. It has the significance of excluding the idea of discretion, and operates to impose a duty which must be enforced, particularly when used in cases involving public policy or the public interest. Given the use of the term “shall” in these documents, it is our opinion that as a matter of law, the requirements set forth in the Bid Form Exhibit No. 2 and Art. 14.1 of the Instructions to Bidders are mandatory. A review of the relevant documents indicates that the answer to question #2 must be in the affirmative. Specifically, Exhibit No. 2 provides that the bidder shall attach the insurance certificates or statements of insurability from bidder’s insurance to this page, and Art. 14 of the Instructions to Bidders provides that the bidders shall deliver certificates of insurance or statement of insurability acceptable to the owner with their bids to demonstrate compliance with Art. 11 of the Supplementary Conditions. This sentence clearly indicates that the bidder is required to deliver the certificates of insurance or statement of insurability with regard to all of the particular insurances listed in Art. 11 of the Supplementary Conditions. This also requires the attachment of all certificates of insurance or statements of insurability for all of the insurance coverage required and the Supplementary Conditions found in Art. 11. Art. 14 also would require a particular type of coverage to the extent that subpart 11.3 provides that there should be a particular type of coverage.
In answer to question #3, we must point out that Louisiana law provides that a public entity may waive deviations that are not substantive in nature; however, it may not treat substantive requirements of the Bid Law, 1 Bthe advertisement for bid, and the Bid Forms as mere informalities in order to justify its decision to waive a deviation in a bid. In this case, the Bid Form and the Construction Documents both contain the word “shall.” When reading this documents they must be given the interpretation that best conforms to the purpose of the law and the public interest. Clearly, the wording of these provisions connotes that the inclusion of the certificates of insurance or the statements of insurability in compliance with Art. 11 is mandatory. The bidders are not provided with a choice as to which insurance to provide, but instead are instructed to demonstrate compliance with “Art. 11 of the Supplementary Conditions.” Indeed, the bidders are reminded in section 14.2 of article 14 that the failure of the successful bidder to deliver said certificates or statements of insurability with the bid may result in the bid being deemed incomplete and non-responsive. The section further provides that in the event of such failure, the owner reserves the right to offer the contract to the next lowest responsive bidder or re-advertises the project to request a completely new set of bids. This section does not provide the entity with the ability to waive a particular bidder’s failure to provide any one of the insurance coverages listed in Art. 11. This would include a prohibition on the entity form waiving a bidder’s failure to provide coverage enumerated in section 11.3 of Art. 11. Consequently, the failure of the bidder to furnish a certificate of insurance or statement of insurability with regard to section 11.3 of Art.ll is a substantive deviation from the requirements of the construction documents which cannot be waived by the terms of the documents. See La. R.S. 38:2211 et seq. and Wallace Drennan, Inc. v. Sewerage and Water Board of New Orleans, 798 So.2d 1167 (La.App. 4th Cir.2001).
This conclusion is also consistent with section 4 of the Instructions to Bidders. That section entitled “Interpretation or Correction of Bid Documents provides at section 4.5, that should there be any discrepancy in the information contained in these documents, the more stringent requirements shall cover it.” This section mandates the inclusion of all of the insurances set out in section 11. Accordingly, failure to submit the certificate of insurance or statement of insura-bility for Builders Risk Insurance cannot be waived by the board. When this section is interpreted in light of the purpose of the statute to provide protection to the tax paying public it clearly leads to the conclusion that the bidders on this particular 17job were required to produce copies of all insurances enumerated in the subparts of Art. 11 of the Supplementary Conditions.

The Public Bid Law is intended to advance the interests of the taxpaying citizens and to prevent public officials from awarding contracts on an arbitrary basis. La. R.S. 38:2211, et seq. A public entity cannot waive deviations that are substantive in nature when awarding a public contract to the lowest responsible bidder. Boh Bros. Const. Co, L.L.C. v. Dept. of Transp. and Development, supra; Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans, 2000-1146 (La.App. 4 Cir. 10/03/01), 798 So.2d 1167. La. R.S. 38:2212 A(l)(b) provides: “The provisions and requirements of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived by any public entity.”

In Stafford Const. Co., Inc. v. Terrebonne Parish School Bd., 560 So.2d 558 (La.App. 1 Cir.1990), the First Circuit found that the contractor Acadian’s bid form lacked a necessary and substantial part, the corporate resolution. The requirement that a corporate resolution be attached to the bid form was necessary to validate the authority of the corporation to submit a bid. The Third Circuit, in V.C. Nora, Jr. Bldg. & Remodeling, Inc. v. State of Louisiana, Through the Dept. of Transp. and Development, 93-1469 (La.App. 3 Cir. 3/30/94), 635 So.2d 466, held that plaintiffs bid was correctly rejected because it failed to comply with mandatory, advertised requirements for mailing or delivering the bid or to provide unit prices.

As noted in the Attorney General’s opinion and the jurisprudence, La. R.S. 38:2212 A(l)(b) has been constructed to preclude a public entity from waiving substantive provisions and requirements of the Public Bid Law, the advertisement lafor bids and the bid forms. The public entity may waive deviations that are not substantive in nature. However, it may not treat substantive requirements of the Bid Law, the advertisement for bids and the bid forms as mere informalities in order to justify its decision to waive a deviation in a bid. Boh Bros. Const. Co., L.L.C. v. Department of Transp. and Development, 97-0168 (La.App. 1 Cir.7/14/97), 698 So.2d 675; Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans, supra.

Based on the above precedents, we find the Authority abused its discretion when it selected Yates/Landis’ bid as the lowest responsive bid. The failure of Yates/Lan-dis to include a certifícate of insurance or statement of insurability concerning builders’ risk insurance was a substantive deviation to the bid requirements, which failure could not be waived by the Authority. The Authority acted arbitrarily and capriciously when it attempted to waive the requirement and award the contract to Yates/Landis. Further, the trial court erred, as a matter of law, in determining that the Authority was not arbitrary and denying Broadmoor’s request for a preliminary injunction.

Failure to attend pre-bid meetings and Failure to purchase set of bidding documents

Broadmoor also argues that the Yates/Landis’ bid is not responsive because a representative of Yates/Landis did not attend both pre-bid meetings and Yates/Landis did not purchase a full size set of the bidding documents. The bid requirements mandated attendance at both pre-bid meetings and the purchase of a full size set of the bidding documents. A review of the attendance logs for the two pre-bid meetings reveals that representatives of Yates attended both meetings on 1 flAugust 22, 2003 and September 5, 2003. However, Landis attended only the second meeting on September 5, 2003. No one signed in as a representative of Yates/Lan-dis at either meeting. Further, the Authority’s records indicate that while Yates purchased a full size set of the bidding documents, Landis only purchased a half size set of the documents.

La. R.S. 38:2212 A provides that all public work meeting the requirements for public bids “shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised.” The statute furnishes general requirements for advertising. In Gibbs Const. Co., Inc. v. Board of Sup’rs of Louisiana State University, 447 So.2d 90, 92 (La.App. 4 Cir.1984), this Court stated:

Concerning those projects for which the statute requires advertisement, bidding in accordance with the advertisement is essential to satisfy the purposes for which the public bid laws were enacted. If public bidding is an honest attempt at getting the best value for tax moneys, then every bidder must be held bound by the terms of the advertising. Jefferson Parish School Board v. Rowley Company, Inc., 350 So.2d 187 (La.App. 4th Cir.1977), writ denied, 352 So.2d 238 and 239 (La.1977). To allow anything less than a bid conforming on its face to the advertised specifications would constitute an open invitation to the kind of impropriety and abuse the public bid laws were designed to prevent. Williams v. Board of Supervisors of L.S.U., 388 So.2d 438 (La.App. 2d Cir. 1980).

In Gibbs, the “bid” submitted by Gibbs Construction Co. did not qualify as an acceptable bid because Gibbs was not represented at the pre-bid conference as required by the advertisement. As a result, the University refused to consider the “bid.” This court held that the University’s action was proper. The court noted that 110Gibbs’ “bid” never attained the status of a bid which could compete with any other bids, because it did not qualify for consideration.

It is clear that at the time of the pre-bid meetings and the purchase of the bidding materials, the Yates/Landis joint venture did not exist. Thus, there could not be a representative from the joint venture at the pre-bid meetings. The question then becomes is Yates/Landis, as a joint venture, disqualified as a responsive bidder because it did not attend the meetings and purchase the bidding documents as a joint venture?

The law on joint venture provides that partners in a joint venture may act on behalf of the joint venture. La. C.C. article 2814; Latiolais v. BFI of Louisiana, Inc., 567 So.2d 1159 (La.App. 3 Cir.1990); Smith v. Lonzo, 2002-1053 (La.App. 3 Cir. 2/5/03), 838 So.2d 918. However, the joint venture did not exist at the time of the meetings. Thus, the actions of Yates cannot be construed as acting on behalf of the joint venture. As Yates/Landis, a Joint Venture, did not attend the mandatory pre-bid meetings, it could not be a qualified responsive bidder.

Failure to submit resolution of authority

Broadmoor further argues that Yates/Landis failed to submit a corporate resolution indicating that the two companies were authorized to act as a joint venture in bidding for the construction contract. Yates/Landis attached two separate resolutions, one from each company, authorizing its officer to negotiate with Orleans Parish or any of its agencies, departments, boards, employees or agents. However, the corporate resolutions did not mention or reference the joint venture in any manner. Further, Yates/Landis did not submit an authorization from the joint venture authorizing anyone to negotiate with Orleans Parish or any of its Inagencies, departments, boards, employees or agents. This is another failure to comply with the bid requirements that is not waivable.

For the reasons stated above, we find that the trial court erred in denying Broadmoor’s request for a preliminary injunction. In light of our conclusion, we need not address BroadmooPs remaining arguments.

Accordingly, the writ application is granted, the judgment of the trial court reversed and the injunction granted. The Ernest N. Morial New Orleans Exhibit Hall Authority is ordered to reject the Yates/Landis bid as non-responsive.

WRIT GRANTED; TRIAL COURT JUDGMENT REVERSED; INJUNCTION GRANTED.

      . The Attorney General issued an opinion on October 29, 2003, discussed infra.

      . Broadmoor also filed a motion for devolu-tive appeal on November 12, 2003, which was granted on the same date.

      . Yales and Landis executed a joint venture agreement on September 12, 2003, a week after the second meeting. The joint venture was to be called "Yates/Landis, a Joint Venture.”


author: JjCOOKS, Judge.

text:
    Michael GROS v. FRED SETTOON, INC.
    No. 03-461.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2003.

      Daniel J. Nail, Thibodaux, LA, for Appellant, Michael Gros.
    Anthony F. Whitford, D.C. Panagiotis, Ltd., Lafayette, LA, for Appellees, Fred Settoon, Inc. and Settoon Construction, Inc.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS and JIMMIE C. PETERS, Judges.
   JjCOOKS, Judge.

Michael Gros, appeals the trial court’s grant of partial summary judgment dismissing his Jones Act claims for negligence, unseaworthiness, and maintenance and cure because he received benefits under the Longshoreman’s and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 905(b). For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

On March 1, 1996, Michael Gros alleges he severely injured his back while in the employ of Settoon, Inc., and on assignment to Settoon Construction, Inc. Gros stated he injured his back while attempting to lift and hold up a heavy load while working on a barge owned by Settoon Construction, Inc. The barge allegedly shifted and rolled due to the weight and movement of the operation.

Alleging his status as a seaman, Gros subsequently made claims of negligence, unseaworthiness, and maintenance and cure against Settoon Construction under the Jones Act. Gros also filed a claim for vessel negligence against Settoon Construction in its capacity as a vessel owner under the Longshoreman’s and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.S. § 905(B). Gros had previously received an award of benefits pursuant to the Longshoreman’s and Harbor Workers’ Compensation Act (LHWCA). At the hearing to determine Gros’ entitlement to longshoreman’s benefits, the employer argued Gros was a shore based worker entitled only to Louisiana Workers’ Compensation Act, La.R.S. 23:1021, et seq., benefits and that his maritime employment was insufficient to qualify him for benefits under the LHWCA. The Administrative Law Judge found Gros’ injury upon navigable waters was sufficient Dto qualify him for benefits under the LHWCA.

The Defendants (Settoon, Inc. and Set-toon Construction, Inc.) filed a motion for Partial Summary Judgment contending all of Gros’ claims based on seaman status should be dismissed because of his voluntary receipt of LHWCA benefits. Gros argued the question of seaman status was never litigated during the trial for longshoreman’s benefits, and therefore, he was entitled to a determination of his seaman status. The trial court granted the Defendant’s partial motion for summary judgment and dismissed Gros’ Jones Act claims for negligence, unseaworthiness, and maintenance and cure. The trial court, in oral reasons for judgment, stated:

But without — I think the language in most of the cases say with a formal award [of LHWCA benefits], which we have in this particular case, I think I’m probably — the United States Supreme Court has indicated ... he is precluded from advancing the seaman claim and I’m going to rule that way and grant the summary judgment.

Gros appeals the trial court’s ruling.

ANALYSIS

In support of his argument that the trial court erred in granting defendant’s partial motion for summary judgment, Gros directs this court to the Tulane Law Review comment, The Overlap Preclusion Trap Between the Jones Act and the Longshore and Harbor Workers’ Compensation Act, 76 Tul.L.Rev. 783, by Victoria Holstein. That article notes the conflict currently existing among the federal circuits on whether a formal award of benefits under the LHWCA precludes a subsequent Jones Act suit. The article proposes that the LHWCA does not mandate such a preclu-sive effect.

We are satisfied, during the administrative hearing to determine Gros’ entitlement to LHWCA benefits, seaman status was not at issue. The | ^administrative law judge dealt only with Gros’ right to compensation under the Louisiana Workers’ Compensation Act versus his right under the LHWCA.

Gros notes that any award to him as a Jones Act seaman would be reduced by the benefits paid to him under the LHWCA. Thus, there is no problem with double recovery and no basis for collateral estop-pel exists.

In Southwest Marine Inc. v. Gizoni, 502 U.S. 81, 112 S.Ct. 486, 116 L.Ed.2d 405 (1991), a foreman for a ship repair operation sought and received voluntarily paid benefits under the LHWCA as a result of injuries he sustained while working on a floating platform owned by his employer. He later filed a Jones Act claim against the employer. The federal district court granted summary judgment because Gizo-ni was not a seaman and, as an enumerated worker under the LHWCA, he was precluded from bringing his action. The Ninth Circuit Court of Appeal reversed, holding Gizoni’s status was an issue of fact and, because the LHWCA does not cover seaman, he might have been eligible for a Jones Act award. Gizoni v. Southwest Marine, Inc., 909 F.2d 385 (9th Cir.1990).

The United States Supreme Court affirmed the Ninth Circuit ruling, holding the two statutory compensation regimes are mutually exclusive and that a maritime worker is limited to LHWCA remedies only if no genuine issue of fact exists as to whether he is a Jones Act seaman. The court noted “[b]y its terms the LHWCA preserves the Jones Act remedy for vessel crewman, even if they are employed by a shipyard.” Southwest Marine, 502 U.S. at 89, 112 S.Ct. 486. The Supreme Court emphasized the seaman status inquiry is fact-specific and is dependent upon the claimant’s “employment-related connection to a vessel in navigation.” Id. at 88, 112 S.Ct. 486. In rejecting the employer’s argument that receipt of voluntarily paid LHWCA benefits ^precludes a subsequent claim under the Jones Act, the Court stated:

It is by now “universally accepted” that an employee who receives voluntary payments under the LHWCA without a formal award is not barred from seeking relief under the Jones Act. This is so, quite obviously, because the question of coverage has never actually been litigated. Moreover, the LHWCA clearly does not comprehend such a preclusive effect, as it specifically provides that any amounts paid to an employee for the same injury, disability, or death pursuant to the Jones Act shall be credited against any liability imposed by the LHWCA. (Citations omitted.)

Id. at 91-92, 112 S.Ct. 486.

In the aftermath of Gizoni, the federal circuits have split in their interpretation of the absence of prior litigation over seaman status and congressional intent underlying the LHWCA. The Fifth Circuit Court of Appeal in Sharp v. Johnson Bros. Corp., 973 F.2d 423 (5th Cir.1992) limited Gizo-ni’s application to cases involving voluntarily paid benefits.

In that case, Sharp was injured while repairing a railroad drawbridge from aboard a barge chartered by his employer. The employer voluntarily began paying Sharp LHWCA benefits. Subsequently, Sharp filed a Jones Act suit. The employer then ceased paying LHWCA benefits, and Sharp filed a LHWCA claim. The employer raised the defense that Sharp was a Jones Act seaman and thus not eligible for LHWCA compensation.

The district court eventually granted a directed verdict against Sharp on his Jones Act claim on the grounds he was not a seaman. Sharp appealed that decision to the Fifth Circuit Court of Appeal. Prior to his appeal being heard, Sharp and his employer settled his LHWCA claim. A final release was executed and an administrative law judge approved the LHWCA settlement. The appellate court heard argument on the appeal of the directed verdict, and no one representing any | sof the parties mentioned the settlement. The Fifth Circuit reversed the district court, finding that a question of fact existed as to whether Sharp worked aboard a fleet of vessels and was therefore eligible for seaman status. Sharp v. Johnson Bros. Corp., 917 F.2d 885 (5th Cir.1990).

The district court subsequently granted summary judgment against Sharp, holding as a result of the settlement he had elected his remedy and was precluded from filing suit based upon the Jones Act. Sharp appealed that decision. In affirming the district court’s judgment, the Fifth Circuit held that an approved LHWCA settlement constituted a formal award that barred a Jones Act claim. The Sharp court reasoned as follows:

It is beyond cavil that merely accepting voluntary payments under the LHWCA without a formal award does not bar a worker from filing a Jones Act suit. Here, though, Sharp obtained a settlement agreement and a compensation order issued by the ALJ. We have treated such an agreement and order as a “formal award.”
It is true that LHWCA coverage was never litigated in an adversarial proceeding. But.Sharp availed himself of the statutory machinery to bargain for an award, and he had the full opportunity to argue for (or against) coverage.

Sharp, 973 F.2d at 426.

The Sharp court found that a claimant was not barred from seeking two remedies, but merely from receiving two awards, thus, imparting preclusive effect to the settlement did not violate the claimant’s election of remedies. The court noted “[t]he LHWCA was not designed to create a mere safety net, guaranteeing workers a minimum award as they seek greater rewards in court.” Id. at 427.

In conflict with the Fifth Circuit’s approach in Sharp, the Ninth Circuit | fiCourt of Appeal held, in Papai v. Harbor Tug and Barge Co., 67 F.3d 203 (9th Cir.1995), rev’d on other grounds, Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997), that a claimant’s receipt of benefits under the LHWCA, after a decision and order had been issued, did not preclude him from bringing a subsequent Jones Act suit. After noting the “universally accepted” maxim that an employee who receives voluntary payments under the LHWCA without a formal aivard is not precluded from seeking subsequent relief under the Jones Act, the Papal Court explained:

The distinction between Gizoni and the case at bar is that here plaintiffs LHWCA claim was fully adjudicated before the ALJ who rendered a final decision. That the LHWCA claim was never actually litigated was the basis for the Gizoni Court’s holding that receipt of LHWCA benefits did not automatically preclude subsequent litigation under the Jones Act. However, the Court went on to recognize further support for its holding, which is applicable here: “Moreover, the LHWCA clearly does not comprehend such a preclusive effect, as it specifically provides that any amounts paid to an employee for the same injury, disability, or death pursuant to the Jones Act shall be credited against any liability imposed by the LHWCA” Id., at 91-91, 112 S.Ct at 494. The Supreme Court further stated in a footnote addressing an equitable estoppel argument made by amicus brief, “[wjhere full compensation credit removes the threat of double recovery, the critical element of detrimental reliance does not appear. [Citations omitted.] argument by amicus would force injured maritime workers to an election of remedies we do not believe Congress to have intended.” Id., at 92, n. 5, 112 S.Ct. at 494, n. 5.
In determining whether the prior litigation of plaintiffs LHWCA claim bars his subsequent Jones Act claim, we are mindful of the reasoning expressed by the Gizoni court and are further concerned with the fairness in imposing such a bar where it could work a disincentive on the part of the employer to vigorously litigate its defense in the LHWCA action. This is so because the parties are on the opposite sides of the seaman issue under the LHWCA as compared with their positions under the Jones Act. Furthermore, imposing such a bar would result in subjecting to suit an employer who immediately and voluntarily begins compensation payments while immunizing from suit an employer who forces his employee to |7seek compensation through litigation.
Recognizing that a bar to relitigation would not serve the purpose for which it is usually employed since the parties are forced to take inconsistent positions under the Jones Act and the LHWCA and extending the reasoning of the Gizoni Court to the next logical step, we hold that plaintiffs litigation- of his LHWCA claim does not bar his subsequent Jones Act claim.

Id. at 207-08.

In Figueroa v. Campbell Industries, 45 F.3d 311 (9th Cir.1995), a shipyard worker who sustained injury while working aboard his employer’s boat, filed a Jones Act claim after receiving both LHWCA and state workers’ compensation benefits. The Ninth Circuit held that an approved LHWCA settlement does not preclude a Jones Act claim because, “just as in Gi-zoni, the jurisdictional issue was not previously litigated, and no finding in that regard was made at the administrative level.” Id. at 315. The Figueroa court specifically rejected the employer’s argument that an approved settlement necessarily meant a “finding was implicitly made that Mr. Figueroa was ‘not a member of a crew’ and not a ‘seaman,’ ” and thus, Gizoni did not apply. The Figueroa court noted that Gizoni emphasized that the justification for its decision was not that a formal award had not been issued, but rather that double recovery under the two statutes is precluded. Thus, the receipt of a LHWCA award, statutorily limited to compensation for medical expenses and lost wages, would not preclude a Jones act claim for pain and suffering. Id. at 316.

The three cases set forth above each present a different interpretation of the Supreme Court’s opinion in Gizoni. The Sharp court essentially stated since | sGizoni held a voluntary receipt of benefits would not bar a subsequent Jones Act claim, it would impliedly follow that a formal award of LHWCA benefits would bar a subsequent Jones Act claim. In Figueroa, the Ninth Circuit found the Gizoni decision hinged on the fact that double recovery was prevented by the credit provision in the LHWCA. It did not find relevant any distinction between the voluntary receipt of LHWCA benefits and a formal award. In Papai, the Ninth Circuit also held policy, legislative intent, and the wording of the LHWCA, overcame any requirement to impart preclusive effect to a final award of benefits.

We have thoroughly reviewed the jurisprudence and find no cases in Louisiana which have addressed the issue of whether a formal award of LHWCA benefits would preclude the filing of a Jones Act claim. After examining the above cited cases, we find the Ninth Circuit’s decision in Papai the best interpretation of the Supreme Court’s decision in Gizoni, the wording of the LHWCA and congressional intent. Papai concluded, and we agree, that Congress envisioned the pursuit of both LHWCA and Jones Act claims, and Congress took measure to prevent double recovery with the LHWCA’s credit provision.

We do note, although the LHWCA credit provision does ostensibly prevent double recovery for the plaintiff, a real possibility exists that an employer may be forced to engage in repetitious litigation. Despite this possibility, it seems apparent to us that the credit provision of the LHWCA clearly indicates an intent on Congress’ part to allow for recovery under both the LHWCA and the Jones Act. Therefore, we reverse the trial court’s judgment granting the employer’s Motion for Partial Summary Judgment and dismissing Gros’ Jones Act claims with prejudice.

|9The employer argues even if it is concluded that seaman status must be determined, in light of Gros’ work history “it is obvious that he cannot possibly meet the seaman status criteria as a matter of law.” In support of this assertion, the Defendants cite the administrative law judge’s decision on LHWCA benefits wherein he stated “claimant spent at least 5-10% of his time in a covered activity, a ‘not insubstantial’ amount of his work on navigable waters.” We find this argument without merit. The administrative law judge’s opinion concerned only whether Gros was a covered worker under the LHWCA. The administrative law judge specifically stated Gros “spent at least five to ten percent of his time in a covered activity, which is enough to invoke coverage under the Act.” (Emphasis added). Gros’ ability to prove seaman status under the Jones Act was not at issue.

DECREE

For the foregoing reasons, the judgment of the lower court granting the Motion for Partial Summary Judgment is reversed. All costs of this appeal are assessed against Settoon, Inc. and Settoon Construction, Inc.

REVERSED.


author: | JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Kenneth ROBICHEAUX.
    No. 03-KA-1063.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Jane L. Beebe, Gretna, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux — Appellate Counsel, Thomas J. Butler — Counsel of Record on Appeal, Joseph E. Roberts — Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and WALTER J. ROTHSCHILD.
   | JAMES L. CANNELLA, Judge.

The Defendant, Kenneth Robicheaux, appeals from his conviction of attempted armed robbery and attempted second degree murder and his respective sentences of 49/6 years and 50 years imprisonment at hard labor to run concurrently. For the reasons which follow, we affirm.

On May 8, 2001, the Defendant, along with two other men, Lester Bourg and Michael Chambless, were charged by bill of information with one count of attempted armed robbery, in violation of La. R.S. 14:27, 64, and one count of attempted second degree murder, in violation of La. R.S. 14:27, 30.1. On May 9, 2001, the Defendant pled not guilty. On November 26, 2001, the Defendant’s motion to suppress was heard and denied by the trial court. On January 10, 2002, a motion to sever was heard and granted. On April 10, 2002, the Defendant went to trial alone before a twelve person jury. Following trial, the Defendant was found guilty as charged on both counts. The defense filed a motion for new trial on April 22, 2002 which was heard and denied. On April 24, 2002, the Defendant was sentenced to 49/& years imprisonment on count one and 50 years imprisonment on count two, both at hard labor and concurrent. The defense objected to the 13sentences and filed a motion for appeal which was granted. On appeal, the Defendant assigns two errors.

FACTS

The victim, Marilyn Dwyer (Dwyer), was the manager of the Rainbow Motel on Grand Isle. She received a telephone call from a man identifying himself as “Jimmy Landry,” asking her about renting a block of rooms for a week and negotiating a discount. He said he would come by in about 20 minutes. At approximately 3:40 p.m., Dwyer was in her apartment on the motel premises and she heard a car door slam. She went to her front door and a man was standing there who identified himself as “Jimmy Landry.” The man asked Dwyer if her husband was home. When she responded that he was not, the man, later identified as the Defendant, pulled out a gun and tried to force Dwyer into the apartment. She struggled with the Defendant and as she was squatting down, the gun, pointing toward her face, went off near her head. She kicked the Defendant and ran. Her shirt was torn off in the struggle. When she got to the bottom of the stairs she saw the two other men, whom she recognized as cousins of her ex-husband. Dwyer ran to her neighbor’s house and the neighbor telephoned the police.

Sergeant Keeland Cheramie of the Grand Isle Police Department testified that upon responding to a call concerning shots being fired, he arrived at the Rainbow Motel and spoke with Dwyer. She was hysterical but able to describe the truck driven by the Defendant. Sergeant Cheramie forwarded the truck’s description to the Harbor Patrol. He found a single shell casing at the scene and later from Dwyer obtained a description of the suspects as well as her identification of Bourg and Chambles.

Lieutenant Lawrence Terry with the Harbor Police testified that he stopped a truck based on the description provided by Sergeant Cheramie and the Defendant was in it. He asked the Defendant and the passengers to get out of the truck. He |4did not see them throw anything out of the vehicle. Sergeant Cheramie arrived on the scene and found a wig and a gun on the side of the road where they had been stopped. Another wig and black shirt matching the description given by Dwyer were found in the truck which was registered to Chambles. The Grand Isle police, including Sergeant Cheramie, collected the evidence.

Timothy Scanlan, qualified as an expert in the field of firearms identification, found that it was not conclusive that the casing found at the motel was fired from the gun found near the truck stop. He could only state that it was fired from the same type of gun.

Finally, the State called Davidson Ehle (Ehle) as a witness. Ehle was the defense attorney for Bourg. He testified that at an earlier motion hearing he observed his client seated next to the Defendant and further observed the Defendant writing something and handing it to Bourg, who gave it to Ehle. The paper appeared to be a handwritten statement from the Defendant exonerating Bourg and Chambles from the crime. In the note, the Defendant stated that he had hitched a ride with them, because he knew they were on then-way to Grand Isle to buy seafood. He further stated that he needed to pick up some money from a man who owed it to him. His statement claimed that neither Bourg nor Chambles knew what happened at the motel. It was purportedly signed by the Defendant.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error the Defendant argues that there was insufficient evidence to support his conviction for the offense of attempted armed robbery. More particularly, the Defendant argues that although the evidence may show that he went to the victim’s hotel with a gun, pointed it at her and it went off in a struggle, that does not suffice to establish proof of armed robbery beyond a reasonable doubt. Further, absent proof of the underlying felony, there was |Binsufficient evidence to support the conviction for attempted second degree murder.

The State concedes that the evidence was circumstantial, but argues that it was sufficient. The Defendant pre-arranged the meeting by telephone, found out that her husband was not home, pulled out a gun, tried to push her inside the house and admitted that he was going to get money.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291; State v. Williams, 99-223 (La.App. 5th Cir.6/30/99), 742 So.2d 604. When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

This statutory test works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury. State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Williams, 99-223 (La.App. 5th Cir.6/30/99), 742 So.2d 604.

Armed robbery is defined in La. R.S. 14:64 as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another by use of force or intimidation, while armed with a dangerous weapon.”

IfiLa. R.S. 14:27, defining “attempt” provides in pertinent part: “Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended.”

In this case the State proved that the Defendant’s actions were premeditated, because he called the victim before he arrived at the motel. He was in disguise. He came to the door and inquired about the presence of the victim’s husband. When he discovered that the victim was alone, he pulled out a gun and pointed it at her stomach and tried to get her back into the house. The victim struggled and the gun discharged. The victim was able to escape. The Defendant admitted in the note which he wrote that he wanted a ride to the motel to get money. The use of a gun evidences the intent to use force to get the money. Considering the admitted evidence and viewing it in a light favorable to the State, we find that the direct and circumstantial evidence was sufficient to support a finding by a rational trier of fact beyond a reasonable doubt that the Defendant was guilty of the offense of attempted armed robbery.

The Defendant also argues that absent proof of the felony, there was insufficient evidence to support the conviction for attempted second degree murder. Based on the above, however, this argument has no merit because we did find sufficient evidence of the felony. Nevertheless, we also point out that the record establishes that the Defendant aimed a loaded gun at Dwyer’s face and pulled the trigger, only missing her because she jerked her head to one side just before the discharge. In our view, this evidence satisfied the requirements of attempted second degree murder, even in the absence of proof of the felony. This assignment of error lacks merit.

| ^ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error the Defendant argues that the sentences imposed are constitutionally excessive. The defense argues that the facts supporting the offense along with the Defendant’s pri- or criminal history do not warrant the imposition of the maximum sentence for each offense. Moreover, the Defendant argues that since the record shows that the Defendant did not fire a second shot to stop the victim from escaping, it evidences that the shot was fired by accident. Therefore, the maximum sentences imposed are excessive.

The State argues to the contrary that the sentence is not excessive considering, as did the trial judge, that the Defendant endangered human life by attempting his crimes armed with a gun and by discharging the gun very near the victim’s head.

The Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ... excessive ... punishment.” Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. Id. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. Smith, 01-2574 at 6, 839 So.2d at 4. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate, but whether the trial court abused its broad sentencing discretion. Smith, 01-2574, at 6-7, 839 So.2d at 4.

In the present case, the offense of armed robbery carries a sentencing range of not less than ten years and not more than 99 years, without benefit of parole, probation or suspension of sentence. La. R.S. 14:64(B). The attempt provision | ^provides in pertinent part that the Defendant shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted. La. R.S. 14:27(D)(3). Thus, in this case, the maximum sentence to which the Defendant could be sentenced for attempted armed robbery was 49$ years. Defendant was sentenced to the maximum sentence.

The offense of second degree murder prescribes a sentence of life in prison. La. R.S. 14:30.1(B). The attempt provision provides in pertinent part that if the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:27(D)(1). Thus, the maximum sentence for the offense of attempted second degree murder was 50 years. The Defendant was sentenced to the maximum sentence for this offense.

In sentencing the Defendant the trial court provided reasons noting that it was basing the sentence upon consideration of the guidelines set forth' in La.C.Cr.P. art. 894.1. The trial court noted that the Defendant created a risk of death or great bodily harm to the victim during the commission of the offense and that the Defendant had used a dangerous weapon during the offense. The trial court noted that the weapon was discharged during the perpetration of the crime. The trial court also considered the Defendant’s prior record which included a previous violent felony conviction in 1975 for second degree murder. Finally, it is noted that the trial court ordered that they be served concurrently. Thus, the Defendant’s sentence is one-half as long as it could have been. Based on the above factors, we find no abuse of the trial judge’s sentencing discretion in imposing the maximum | ^sentence for each offense and ordering that they run concurrently. This assignment of error has no merit.

PATENT ERROR REVIEW

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). The review reveals no errors.

For the foregoing reasons, the convictions of the Defendant for attempted armed robbery and attempted second degree murder and the imposed sentences of 49/6 years and 50 years imprisonment at hard labor, without benefit of parole, probation or suspension of sentence, respectively, to run concurrently, are affirmed.

AFFIRMED.


author: LSUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Whitney E. GUERRA.
    No. 03-KA-1071.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Frank Larré, Metairie, LA, for Defendant-Appellant, Whitney E. Guerra.
    Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Juliet Clark, Terry M. Boudreaux, Assistant District Attorneys, Appellate Counsel, Gevin Grisbaum, Assistant District Attorney, Trial Counsel, Gret-na, LA, for Plaintiff-Appellee, The State of Louisiana.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   LSUSAN M. CHEHARDY, Judge.

On December 26, 2002 the Jefferson Parish District Attorney filed a bill of information charging Whitney Guerra with one count of armed robbery, a violation of La.R.S. 14:64 (Count 1), and one count of attempted simple robbery, a violation of La.R.S. 14:27 and 14:65 (Count 2). At his arraignment on December 27, 2002, Guerra pleaded not guilty to both charges.

On April- 22, 2003, the defendant gave notice of his intention to withdraw his pleas of not guilty and enter guilty pleas as to both counts. The trial court advised the defendant of his constitutional rights to trial by jury and confrontation, and his privilege against self-incrimination. The court further explained that, by pleading guilty, the defendant would forfeit those rights. The defendant indicated that he had not been threatened, coerced, or promised anything in exchange for his guilty pleas.

The defendant indicated that he understood his rights and he wished to waive them. He withdrew his pleas of not guilty and entered pleas of guilty as charged. The defendant and his attorney also completed a waiver of rights form. The trial court found that the defendant waived his rights knowingly and voluntarily, and accepted his guilty pleas.

13Although the State and the defendant had agreed upon the sentences the defendant would receive as part of a plea agreement, defense counsel moved the court to consider a downward departure from the statutory minimum sentence on Count l. After hearing arguments on the matter, the court denied the motion. He sentenced the defendant to ten years at hard labor on the armed robbery conviction, without benefit of parole, probation or suspension of sentence. The court sentenced the defendant to three and one-half years at hard labor on the attempted simple robbery conviction and ordered that the sentences be served concurrently. The court further stipulated that the defendant, if eligible, would be placed in the About Face Program operated by the Orleans Parish Criminal Sheriffs Office. Defense counsel objected to the court’s denial of the motion for a downward departure in sentencing.

The defendant filed a motion for appeal on April 30, 2003. The trial court granted the motion on May 5, 2003. Under the version of La.C.Cr.P. art. 914(B) in effect at the time the court sentenced the defendant, the motion for appeal was untimely. However, Article 914(B) was recently amended to extend the appeal period to thirty days after rendition of the judgment or ruling from which the appeal is taken. See> 2003 La. Acts 949, effective August 15, 2003. It appears that the amendment is subject to retroactive application.

La.C.C. art. 6 provides, “In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.” In State v. Washington, 02-2196, p. 2-3 (La.9/13/02), 830 So.2d 288, 290 (per curiam), the Louisiana Supreme Court defined the inquiry necessary to a ^determination of whether a law should be applied retroactively under La.C.C. art. 6 as follows:

First, it must be ascertained whether the enactment expresses legislative intent regarding retrospective or prospective application. If such intent is expressed, the inquiry ends.... [T]he second step is to classify the enactment as either substantive, procedural or interpretive.
Substantive laws are laws that impose new duties, obligations or responsibilities upon parties, or laws that establish new rules, rights and duties or change existing ones. Interpretive laws are those which clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of laws.
Laws that are procedural or interpretive may be applied retroactively. [Citations omitted.]

Act 949 contains nothing to indicate legislative intent regarding its application. However, since the act relates to appellate procedure, it should be treated as procedural in nature. Applying the amended version of Article 914(B), therefore, the defendant’s appeal motion was timely.

The facts underlying the charges against the defendant are not contained in the record, since his conviction was the result of a guilty plea.

ASSIGNMENT OF ERROR NUMBER ONE
The Court filed [sic] to deviate downward from the minimum sentence as allowed by State v. Dorthey, 623 So.2d 1276 (La.1979[1993]); because of this case’s individuality and special circumstances, therefore marking [sic] Mr. Guerra’s sentence unconstitutional and overly excessive.

By this assignment, the defendant challenges the trial court’s denial of his request that the court deviate below the statutory minimum term in sentencing the | sdefendant for the armed robbery conviction. The defendant asserts that the mandatory minimum sentence of ten years is constitutionally excessive.

The record clearly reflects that the defendant’s sentence was imposed in conformity with a plea agreement. La. C.Cr.P. art. 881.2(A)(2) provides, “The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This Court has consistently recognized that Article 881.2 A(2) precludes a defendant from seeking review of a sentence to which the defendant agreed prior to pleading guilty. State v. Miller, 02-729, p. 7 (La.App. 5 Cir. 12/30/02), 836 So.2d 614, 618, writs denied, 03-200 (La.10/10/03), 855 So.2d 326 and 03-503 (La.10/10/03), 855 So.2d 329; State v. Stevenson, 00-1296, p. 3 (La.App. 5 Cir. 1/30/01), 778 So.2d 1165, 1166.

During the Boykin colloquy, the judge reviewed with the defendant the sentences agreed upon, and noted that defense counsel planned to move for a downward deviation from the statutory minimum sentence for armed robbery. The defendant stated he understood the sentences agreed upon as part of the plea bargain. Moreover, the defendant and his attorney completed and signed a waiver of rights form that included a statement of the sentences the defendant would receive. During the guilty plea proceedings, the prosecutor stated, “I’d like the record to reflect that pursuant to the plea bargain the State has agreed not to use Louisiana Revised Statute 14:64.3, which is the enhancement provision, which adds five years to the minimum sentence.” Based on the foregoing, the defendant is not entitled to appellate review of his sentence.

Defense counsel argued prior to sentencing that the court should deviate below the ten-year statutory minimum because the defendant committed the instant offenses due to a severe drug problem. When the trial court rejected that argument, | fithe proper recourse for the defendant was to move the court to allow him to withdraw his guilty plea. La.C.Cr.P. art. 559(A) provides that the trial court “may permit a plea of guilty to be withdrawn at any time before sentencing.” The defendant did not move the district court to allow him to withdraw his guilty plea, nor does he seek such remedy on appeal. Accordingly, this assignment of error merits no consideration.

Pursuant to our usual procedure, we reviewed the record for patent errors. We find there is an error, but it does not require correction. Specifically, the commitment states, “The Court Sentenced defendant under the provisions of State v. Dorthey.” The sentencing transcript shows that, after hearing arguments from the State and the defense, the trial judge rejected the defendant’s request that he deviate below the statutory minimum sentence pursuant to Dorthey. When there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Under the circumstances in this case, however, remand for correction would serve no valid purpose and would have no effect on the defendant’s sentence. Therefore, no corrective action is needed.

For the foregoing reasons, the sentence is affirmed.

AFFIRMED.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . State v. Dorthey, 623 So.2d 1276, 1280 (La.1993).

      . La.C.Cr.P. art. 914(B)(1) required that a motion for appeal be made no later than "[dive days after the rendition of the judgment or ruling from which the appeal is taken.” The defendant’s appeal motion was filed six days after sentencing (excluding Saturday and Sunday).

      . See La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).