author: 2FOIL, J.

text:
    In re: JEFFERSON ALLIANCE, INC.
    No. 2002 CA 0335.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Rehearing Denied March 24, 2003.

      Kurt C. Garcia, Metairie, for Appellant Jefferson Alliance, Inc.
    R. Gray Sexton, Maris L. McCrory, Jennifer G. Magness, Baton Rouge, for Appel-lee Louisiana Board of Ethics.
    Before: FOIL, McCLENDON and KLINE , JJ.

       Judge William F. Kline, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   2FOIL, J.

This appeal challenges a ruling of the Louisiana Board of Ethics decreeing that Jefferson Alliance, Inc., a citizen group organized for the primary purpose of endorsing candidates for political office and taking positions on ballot issues, is a “political committee” subject to the registration and reporting requirements of the Campaign Finance Disclosure Act, La. R.S. 18:1481 et. seq. Jefferson Alliance argued that it did not meet the statutory definition of a “political committee” because it did not directly contribute money to a particular campaign, nor had it advertised on behalf of a candidate or participated in door-to-door campaigning. Instead, it urged, funds it received from its members in the form of dues, and profits it received from its annual awards banquet were used only to operate the organization, and these funds and expenditures fell outside the scope of the Campaign Finance Disclosure Act.

The Board of Ethics disagreed, finding that Jefferson Alliance was a political committee because it was primarily organized to support or oppose political candidates and issues, and the organization had made expenditures and received contributions in excess of the statutory requirement in order to influence the outcome of elections in Jefferson Parish. The group, the Board concluded, was therefore subject to the reporting and disclosure requirements of the campaign finance law. The Board further imposed a $10,000.00 penalty for Jefferson Alliance’s failure to file the necessary documents, but suspended that penalty upon the condition that Jefferson Alliance file the documents within 30 days of the finality of the Board’s decision.

Jefferson Alliance contends the Board of Ethics erred in finding its operations fit the statutory definition of a political committee. Judicial review of rulings of the Board of Ethics is conducted in accordance with the Louisiana Administrative Procedure Act. Schmitt v. Louisiana Board of Ethics, 2001-0341, p. 2 (La.App. 1 Cir. 3/28/01), 808 So.2d 524, 525. A Previewing court may reverse or modify the Board’s decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary, capricious, or an abuse of discretion; or (6) not supported and sustainable by a preponderance of evidence as determined by the reviewing court. La. R.S. 49:964 G; Schmitt v. Louisiana Board of Ethics, 808 So.2d at 525.

Employing this standard of review, we conclude that the findings of fact and conclusions of law set forth in the Board’s written reasons for judgment are correct. We adopt these reasons as our own and attach a copy thereof to this opinion. Furthermore, we find no merit to Jefferson Alliance’s challenge to the penalty imposed by the Board, as that penalty will be suspended if the group files the requisite documents within 30 days of the finality of the Board’s decision. Should Jefferson Alliance refuse to file the document within that time period, there would be a knowing violation of the law which would clearly subject Jefferson Alliance to penalties under La. R.S. 18:1505.4 A(l).

DECREE

Based on the foregoing, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellant, Jefferson Alliance.

AFFIRMED.

4ATTACHMENT

LOUISIANA BOARD OF ETHICS

Ethics Board Docket No. 2000-117

Date: November 27, 2001

RE: Jefferson Alliance, Inc.

The Louisiana Board of Ethics (the “Board”), at its August 16, 2001 meeting accepted a joint stipulation of facts with joint exhibits and, after the filing of briefs, at its September 19, 2001 meeting considered oral arguments in connection with a public hearing for the purpose of exploring the following:

CHARGES
1.
That Jefferson Alliance, Inc. may have violated Sections 1491.1 and 1505.1D of the Campaign Finance Disclosure Act (“CFDA”) (La. R.S. 18:1491.1 and 1505.1 D) by failing to register as a political committee for the years 1999 and 2000.
2.
That Jefferson Alliance, Inc. may have violated Section 1505.1A and/or B of the CFDA (La. R.S. 18:1505.1 A and/or B) by failing to file, for the years 1999 and 2000, the campaign finance disclosure reports required by the provisions of Section 1491.6 of the CFDA (La. R.S. 18:1491.6), including, but not limited to, reports required for the October 1999 election based upon its endorsement of candidates participating in that election.

1.

FINDINGS OF FACT

1.

Jefferson Alliance, Inc. is a non-profit corporation organized under the laws of the State of Louisiana on a membership basis.

2.

According to its Articles of Incorporation, Jefferson Alliance, Inc. is organized to further the common good and general welfare of the people of the community and bring about civic betterment Land social improvements through the encouragement of good government.

3.

The primary activity of Jefferson Alliance, Inc. consists of conducting candidate and proposition forums, and Jefferson Alliance may issue endorsements of candidates or propositions. Other major activities include town hall meetings and awards banquets.

4.

Members of Jefferson Alliance, Inc. pay annual dues. In 1999, Jefferson Alliance, Inc. had 46 members. In 2000, Jefferson Alliance, Inc. had 37 members. The dues assessment in both 1999 and 2000 was $20 per member.

5.

The original bylaws of Jefferson Alliance, Inc. provided as follows:

The Jefferson Alliance shall prepare an advertising campaign budget, allocate the cost of that budget among the candidates who are endorsed, and request these candidates to participate. A candidate’s failure to contribute financially to this campaign will in no way jeopardize or affect our endorsement.
The public relations firm retained by Jefferson Alliance shall make a full accounting to each candidate who participated in the budget of the campaign, and make such accounting available to the public. The accounting shall show all money received, all money spent, how all money was spent and whether there is a refund and the extent of such refund to the candidates. Refunds to candidates shall be on a pro rata basis. The public relations firm shall make an accounting within the time limits prescribed by law under the campaign reporting laws. Further, the public relations firm shall timely file all necessary reports required by campaign reporting laws and the Election Reporting Compliance Committee shall report this fact to the president in writing when accomplished. In the event of non-compliance, the Election Reporting Compliance Committee shall accomplish the reporting procedure and report same to the president.
It is also the policy of the Jefferson Alliance not to accept from any candidate or elected official any agreement to keep any excess money from campaigns. All excess money must be returned to the candidate concurrent with the time requirements of the reporting law.

_Ll6.

At its November 9, 2000 meeting, the Jefferson Alliance voted to remove the paragraphs as provided in Finding of Fact No. 5 from its bylaws based upon its position that the language did not reflect the practice of the organization.

7.

The provision of the bylaws quoted in Finding of Fact No. 5 was copied from the bylaws of the Alliance for Good Government. Jefferson Alliance, Inc. was established by former members of the Alliance for Good Government. Jefferson Alliance has never practiced the above quoted bylaw in Finding of Fact No. 5 or used it in its operations.

8.

Alliance for Good Government is registered and reports as a political committee. In Ethics Board Docket Nos. 95-048 and 2000-669, the Board issued advisory opinions addressing the issue of Alliance for Good Government’s need to register and report. In Ethics Board Docket No. 2000-669, the Alliance for Good Government was described as “a non-profit corporation that holds public forums and endorses candidates and/or propositions during an election cycle. The endorsed candidates participate in advertisements through an advertising agency indicating that the Alliance is proud to endorse them. Candidates pay the fees for the advertising directly to the advertising agency. The Alliance also holds a banquet to obtain funds to cover expenses for its day-to-day operations. Candidates and elected officials purchase tickets to the banquet and the financial activity is in excess of $500.” In Ethics Board Docket No. 2000-669, the Board concluded that “the Alliance for Good Government must continue to register and report as a political committee.”

Jj9.

Candidates endorsed by Jefferson Alliance, Inc. may use the organization’s logo on campaign advertisements.

10.

In 1999 and 2000, Jefferson Alliance, Inc. endorsed numerous candidates which included candidates for “major office” and “district office” as those terms are defined by La. R.S. 18:1483(11) and (7).

11.

The income of Jefferson Alliance, Inc. is derived from its membership dues and profits, if any, resulting from its annual banquet.

12.

Tickets for the annual banquets sponsored by Jefferson Alliance, Inc. in 1999 and 2000 were sold at a cost of $30 per person. In 1999, total ticket sales were $5,800. In 2000, total ticket sales were $4,245. Numerous candidates and elected officials purchased tickets to such banquets.

13.

The expenditures of Jefferson Alliance, Inc. include funds spent for postage for meeting notices, copies, stationary, awards, a Christmas party, and banquet fees. Expenditures in 1999 totaled $3,960.45. Expenditures in 2000 totaled $5,172.73. No direct expenditures were made to political candidates or propositions.

Jil.

APPLICABLE LAW

Jefferson Alliance, Inc. was charged with violating Sections 1491.1 and 1505.1 of the Campaign Finance Disclosure Act [La. R.S. 18:1491.1 and 18:1505.1] by failing to register as a political committee. Jefferson Alliance, Inc. was also charged with violating Sections 1505.1A and/or B of the Campaign Finance Disclosure Act [La. R.S. 18:1505.1 A and/or B] by failing to file campaign finance disclosure reports as required by Section 1491.6 of the Act-[La. R.S. 18:1491.6].

La. R.S. 18:1491.1, 18:1505.1, and 18:1491.6 provide in pertinent part as follows:

§ 1491.1. Registration of political committees
A. Each political committee, including a subsidiary committee, which knows or anticipates that it will receive contributions or loans, make expenditures or loans, or make a transfer of funds to or receive a transfer of funds from another committee during a calendar year in the aggregate amount exceeding five hundred dollars shall file a statement of organization with the supervisory committee annually after January 1 and no later than January 31 of each calendar year. Any such committee organized after January 31 shall file the required statement of organization no later than the tenth day after its organization. Any committee which, after January 31, knows or anticipates that it will receive contributions, loans, or transfers of funds or make expenditures, loans, or transfers of funds in the aggregate in excess of five hundred dollars during the calendar year shall file the required statement of organization within ten days after the date on which it has information which causes it to know or anticipate that it will receive such contributions, loans, or transfers of funds or make such expenditures, loans, or transfers of funds. If a political committee which knows or anticipates that it will receive contributions, loans, or transfers of funds or make expenditures, loans, or transfers of funds in the aggregate in excess of five hundred dollars during a calendar year, is organized within ten days prior to any election, it shall file the statement of organization required by this Section no later than the third day after such organizing. Any committee required to file supplemental reports under the provisions of R.S. 18:1491.6 shall file the annual statement of organization. The supervisory committee shall issue a certificate of registration to each committee which submits the statement required by this Subsection.
D. No committee shall receive contributions or loans, make expenditures or loans or make a transfer of funds to or receive a transfer of funds from another committee in the aggregate in excess of five hundred dollars in any calendar year until it has filed | ¡¿he annual statement of organization required by this Section. Any committee which violates the provisions of this Subsection shall be subject to the penalties provided in R.S. 18:1505.5 and R.S. 18:1505.6.
E. The supervisory committee is hereby authorized to impose a fee not to exceed the amount of one hundred dollars for each statement required to be filed under this Section to be remitted to the supervisory committee together with the statement on or before the time the statement is required to be filed. Any statement submitted without the proper fee shall be deemed as not being properly 'submitted to the supervisory committee. All fees collected hereunder shall be used solely by the supervisory committee for the enforcement of the provisions of this Chapter, as appropriated by the legislature.
§ 1505.1. Failure to submit report; failure to file report timely or properly
A. Failure to submit the reports required by this Chapter shall constitute a violation of this Chapter. Failure to submit any such report within three days after the final date for filing shall be presumptive evidence of intent not to file the report.
B. Failure to submit the reports required by this Chapter at the time required shall constitute a violation of this Chapter.
C. Failure to disclose or failure to disclose accurately any information required to be reported by this Chapter shall constitute a violation of this Chapter.
D. Failure to properly submit statements in accordance with R.S. 18:1491.1(E) shall constitute a violation of this Chapter.
§ 1491.6. Reports required; reporting times and periods
A. The chairman of a political committee and the campaign treasurer of the committee, if any, shall be responsible for filing a report of all information required in this Section and R.S. 18:1491.7 with the supervisory committee at the times required in this Section. The political committee chairman and campaign treasurer of the committee, if any, shall certify, in each report, that the information contained in the report is true and correct to the best of their knowledge, information and belief, that no expenditures have been made and no contributions have been received that are not reported therein, and that no information required by this Part has been deliberately omitted.
B. A report shall be filed for a political committee for each regularly scheduled election in which the committee participates according to the following schedule:
(1) Each committee which is participating in the election of a candidate for major office shall file a report no later than the one hundred eightieth day prior to the hnprimary election, which shall be complete through the one hundred ninetieth day prior to the primary election.
(2) Each committee which is participating in the election of a candidate for major office shall file a report no later than the ninetieth day prior to the primary election, which shall be complete through the one hundredth day prior to the primary election.
(3) Each committee shall file a report no later than the thirtieth day prior to the primary election, which shall be complete through the fortieth day prior to the primary election.
(4) Each committee shall file a report no later than the tenth day prior to the primary election which shall be complete through the twentieth day prior to the primary election.
(5) Each committee shall file a report no later than the tenth day prior to the general election which shall be complete through the twentieth day prior to the general election. This shall be the final report for the election for any committee which does not participate in the general election, unless supplemental reports are required as provided in Subsection D of this Section.
(6) Each committee shall file a report no later than the fortieth day after the general election which shall be complete through the thirtieth day after the general election. This report shall be the final report for the election for any committee which participated in the general election, unless supplemental reports are required as provided in Subsection D of this Section.
(7)The final report of a committee that supports or opposes only one candidate who either withdraws as a candidate or is unopposed for election to the office he seeks shall be the next report due as required in this Subsection as of the date that the candidate withdraws or ascertains that he is unopposed, unless supplemental reports are required as provided in Subsection (D) of this Section. The report shall contain a statement that it is the final report and the reasons therefor.
C. During the period beginning at midnight of the twentieth day prior to a primary election and extending through midnight of primary election day, and during the period beginning at midnight of the twentieth day prior to a general election and extending through midnight of general election day, each committee shall file a report with the supervisory committee of:
(l)(a) The full name and address of each person from whom the committee has received and accepted a contribution, loan, or transfer of funds during such period in excess of the following amounts: a committee participating in the election of a candidate for any major office, five hundred dollars; a committee participating in the election of a candidate for district office, two hundred and fifty dollars; a committee participating in the election of a candidate for any other office, two hundred and fifty In dollars. If the committee is participating in the election of candidates for offices with different reporting amounts, the amount shall be the lowest for any candidate in whose election the committee is participating or in which any committee is participating to which it makes or from which it receives a transfer of funds.
(b) Such report shall include the amount and date of each such contribution or loan reported, and a brief description and valuation of each in-kind contribution. If a loan is reported, the report shall contain the name and address of the lender, of the recipient of the proceeds of the loan, and of any person who makes any type of security agreement binding himself or his property, directly or indirectly, for the repayment of all or any part of the loan.
(2) Any expenditure in excess of two hundred dollars made to a candidate, committee, or person required to file reports by this Chapter, who makes endorsements, including the full name and address of each person to whom such expenditure is made, the amount, date and purpose of each such expenditure, and a brief description and valuation of an in-kind expenditure.
(3) Each report required by this Subsection shall be filed within forty-eight hours after the time the contribution or loan is received or expenditure made. If such time falls other than during regular working hours, the report shall be filed as soon as possible after the opening of the office of the supervisory committee on the next working day after the time at which the report is otherwise due.
F. The reports required for any regularly scheduled election shall also be filed for any special election to the extent the dates for filing reports occur after the call for the election. The supervisory committee may promulgate rules to effect the provisions of this Subsection. Such rules may waive any report required to be filed within ten days after the call for a special election.
G. The reporting period for all reports of political committees, except the first report of a committee, shall be the period from the time through which the preceding report was complete through the closing date for' the particular report. The reporting period for the first report of a committee shall be the period from the time when the committee was organized through the closing date for the particular report.

The terms “contribution,” “expenditure,” and “political committee” are defined in La. R.S. 1483 which provides in pertinent part:

§ 1483. Definitions
(6)(a) “Contribution”, except as otherwise provided in this Chapter, means a gift, conveyance, payment, or deposit of money or anything of value, or the forgiveness l^of a loan or of a debt, made for the purpose of supporting, opposing, or otherwise influencing the nomination or election of a person to public office, for the purpose of supporting or opposing a proposition or question submitted to the voters, or for the purpose of supporting or opposing the recall of a public officer, whether made before or after the election.
(b) “Contribution” shall also include, without limitation:
* * *
(iv) A payment for tickets to a testimonial or similar fund-raising event.
(9)(a) “Expenditure” means a purchase, payment, advance, deposit, or gift, of money or anything of value made for the purpose of supporting, opposing, or otherwise influencing the nomination or election of a person to public office, for the purpose of supporting or opposing a proposition or question submitted to the voters, or for the purpose of supporting or opposing the recall of a public officer, whether made before or after the election.
(14)(a)(i) “Political committee” or “committee” means two or more persons, other than a husband and wife, and any corporation organized for the primary purpose of supporting or opposing one or more candidates, propositions, recalls of a public officer, or political parties, which accepts contributions in the name of the committee, or makes expenditures from committee funds or in the name of the committee, or makes a transfer of funds to or receives a transfer of funds from another committee, or receives or makes loans in an aggregate amount in excess of five hundred dollars within any calendar year.

III.

OPINION

It is the opinion of the Board that Jefferson Alliance, Inc: violated La. R.S. 18:1491.1 and 1505.1 D by failing to register as a political committee for the years 1999 and 2000. “Political committee” is defined in the Campaign Finance Disclosure Act as: (1) a corporation; (2) which is organized for the primary purpose of supporting or opposing one or more candidates, propositions, recalls of a public officer, or political parties; and (3) which accepts contributions in the name of the committee or makes expenditures from committee funds or in the name of the committee. La. R.S. 18:1483(14)(a)(i). A “political committee” is required to file a statement of organization if it knows |13or anticipates that it will receive contributions in excess of $500 in the calendar year or make expenditures in excess of $500 in the calendar year. La. R.S. 18:1491.1 A. A “contribution” includes any payment, deposit of money or anything of value, made for the purpose of supporting, opposing, or otherwise influencing the nomination or election of a person to public office, or for the purpose of supporting or opposing a proposition or question submitted to the voters. La. R.S. 18:1483(6). An “expenditure” includes a purchase, payment, or deposit of money or anything of value made for the purpose of supporting, opposing, or otherwise influencing the nomination or election of a person to public office, or for the purpose of supporting or opposing a proposition or question submitted to the voters. Jefferson Alliance, Inc. admitted through the Joint Stipulation of Facts introduced at the public hearing of this matter that (1) it is a corporation; and (2) its primary activity consists of conducting candidate and proposition forums and issuing endorsements of candidates. Moreover, the Joint Stipulation of Facts and supporting exhibits show that Jefferson Alliance, Inc. received contributions in excess of $500 for the years 1999 and 2000 through its acceptance of membership dues and payments for ticket sales to its annual banquet as its primary purpose was to influence candidate and proposition elections. Additionally, the Joint Stipulation of Facts and supporting exhibits establish that Jefferson Alliance, Inc. made expenditures in excess of $500 for the years 1999 and 2000 through payments for its daily operations its primary purpose was to influence candidate and proposition elections.

As Jefferson Alliance, Inc. was a political committee, it is the opinion of the Board that Jefferson Alliance, Inc. violated La. R.S. 18:1505.1 A and La. R.S. 18:1505.1 B by failing to file campaign finance disclosure reports for the years 1999 and 2000 as required by the provisions of La. R.S. 18:1491.6, including, but not limited to, reports required for the October 1999 election based |14upon its endorsement of candidates participating in that election.

In addition to per day late fees, the Board is authorized to impose the civil sanctions of up to $10,000 as per La. R.S. 18:1505.4 A(4) for these violations of the Campaign Finance Disclosure Act.

For the foregoing reasons, the Board, by a majority vote, imposes a $10,000 civil penalty upon Jefferson Alliance, Inc., the payment of which is to be suspended conditioned upon Jefferson Alliance, Inc. registering as a political committee and filing any outstanding campaign finance disclosure reports for the years 1999 and 2000 within thirty days of this opinion becoming final.

IY.

DECREE AND ORDER

IT IS DECREED that Jefferson Alliance, Inc. violated La. R.S. 18:1491.1 and 1505.1 D by failing to register as a political committee for the years 1999 and 2000.

IT IS FURTHER DECREED that Jefferson Alliance, Inc. violated La. R.S. 18:1505.1 A and La. R.S. 18:1505.1 B by failing to file campaign finance disclosure reports for the years 1999 and 2000 as required by the provisions of La. R.S. 18:1491.6, including, but not limited to, reports required for the October 1999 election based upon its endorsement of candidates participating in that election.

IT IS ORDERED that a $10,000 civil penalty be imposed upon Jefferson Alliance, Inc., the payment of which is hereby suspended conditioned upon Jefferson Alliance, Inc. registering as a political committee and filing any outstanding campaign finance disclosure reports for the years 1999 and 2000 within thirty days of this opinion becoming final.

LsBY ORDER OF THE BOARD, this 27th day of November, 2001.

/s/ Robert L. Roland

Robert L. Roland, Chairman

/s/ John W. Greene

Judge John W. Greene

/s/ Absent and did not participate

Billy J. Guin, Jr.

Virgil Orr

Dr. Virgil Orr

/s/ Henry C. Perret, Jr.

Henry C. Perret, Jr.

/s/ Edwin O. Ware

Edwin O. Ware

T. O. Perry, Jr., Vice-Chairman

/s/ E. L. Guidry, Jr.

Judge E. L. Guidry, Jr.

/s/ Joseph Maselli

Joseph Maselli

/s/Revius O. Ortigue, Jr.

Justice Revious O. Ortique, Jr.

/s/ Absent and did not participate

Ronald L. Sawyer


source: Caselaw Access Project

author: 2DAVID S. GORBATY, Judge.

license: Public Domain

text:
    Stephen Scott SEWELL v. Gary BENOIT, Custodian of Records, Orleans Levee District and Orleans Levee District.
    No. 2002-CA-1714.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2003.
    Writ Denied May 9, 2003.

      Malcolm R. Petal, New Orleans, LA, for Plaintiff/Appellant.
    Frank A. Milanese, Frank A. Milanese, PLC, New Orleans, LA, and James A. Nugent, Law Offices of James A. Nugent, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   2DAVID S. GORBATY, Judge.

Stephen Sewell appeals a judgment denying his motion for judgment, ordering the Orleans Levee District to provide plaintiff with copies of legal bills, and ordering plaintiff to pay the Orleans Levee District for the cost of redacting said legal bills. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY:

According to plaintiffs brief, he initiated the underlying litigation by fifing a petition for writ of mandamus on January 11, 1999. Defendant, the Orleans Levee District, opposed the petition on the ground that because the bills contained the mental impressions, conclusions or opinions of attorneys in anticipation of litigation, the bills should not be ordered produced. On February 23, 1999, the trial court issued a writ of mandamus ordering defendants to produce two versions of the requested bills, one redacted and one containing the allegedly privileged information, for an in camera inspection by the court. Further, plaintiff was awarded statutory attorney fees.

|sThe Orleans Levee District applied to this Court for a supervisory writ arguing that the trial court erred in ordering it to produce the documents and to pay plaintiff attorney fees. This Court denied the writ on July 16, 1999, finding that issuance of the writ of mandamus was warranted under La.Rev.Stat. 44:35, and that the award of attorney fees and costs was reasonable.

The next pleading contained in the record is a Motion for Judgment, Attorney’s Fees, and Sanctions and Incorporated Memorandum filed on September 6, 2001. The pleading recounts the events detailed above, and, additionally, notes that the trial court had not yet ruled on whether the redacted version of the bills was sufficient following its in camera inspection. The apparent crux of the motion was to elicit a ruling by the trial court. Plaintiff additionally requested sanctions against defendant for allegedly omitting bills of attorneys who had worked on the case, and attorney fees for having to bring the instant motion, and defend against various writs and appeals filed since the writ issued.

Defendant opposed the motion and sought sanctions against plaintiff. In its opposition filed in the trial court, defendant admitted that the trial court had not ruled yet on whether the redacted bills were sufficient to satisfy the public records request. Defendant reargued that the unredacted bills continued to be privileged and protected because some of the litigation was ongoing. However, in its appellate brief, defendant claims that the trial court did review the unredacted bills “over the next several months,” and implies that the court ruled that the redacted bills were sufficient. The record before us does not reflect such a ruling.

140n October 26, 2001, a hearing was held on the various motions, with the court rendering a judgment on January 31, 2002. The record does not contain a transcript of the hearing. (See fn. 1, infra) The judgment denied plaintiffs motion for judgment. It further ordered the defendant to review the unredacted bills submitted to the court pursuant to its order of May 18, 1999, and to provide plaintiff with a redacted copy of said bills within thirty (30) days. The redaction should remove only billing entries that contained the “mental impressions” of counsel, or other privileged entries, such as attorney/client privilege, work product privilege or work done in anticipation of litigation or in anticipation of trial. The trial court further ordered defendant to keep time records for the redaction, and to submit a bill to plaintiff for that time. The court denied plaintiffs motion for additional attorney fees and deferred defendant’s motion for sanctions.

It is from the above judgment that plaintiff appeals.

DISCUSSION:

Although the record before us is missing integral portions in the chain of events leading up to this appeal, there is sufficient information gleaned from the record and the appellate briefs to make a determination of error.

It is clear that the trial court issued a writ of mandamus ordering defendant to produce for an in camera inspection an unredacted version of the requested documents, and to produce to plaintiff a redacted version. The presumed reason for production of the unredacted version was for the court to determine if defendant had removed entries not subject to objection for “mental impressions” of |scounsel, or other privileged entries, such as attorney/client privilege, work product privilege or work done in anticipation of litigation or in anticipation of trial.

Plaintiff claims that at the October 26, 2001, hearing, the trial judge indicated that after reviewing the unredacted bills, she decided that some material that had been redacted should not have been. Therefore, she ordered defendant to resubmit the bills with only proper redac-tions. These claims by plaintiff, however, are not properly before this Court because, as noted previously, no transcript of the hearing is contained in the record. However, based on the judgment from which this appeal is taken, it is clear that the trial court at some point prior to rendering its judgment, found that defendant improperly removed entries from the unre-dacted bills. Thus, the court ordered defendant to produce bills that only removed mental impressions, or other privileged entries, such as attorney/client privilege, work product privilege or work done in anticipation of litigation or in anticipation of trial.

Louisiana Revised Statute 44:32 C(2) provides that the custodian of state agency records shall charge fees for copying of records according to a uniform fee schedule found at La.Rev.Stat. 39:241. Louisiana Revised Statute 44:32 C(3) provides:

No fee shall be charged to any person to examine or review any public records, except as provided in this Section, and no fee shall be charged for examination or review to determine if a record is subject to disclosure, except as may be determined by a court of competent jurisdiction.

| fiThus, it appears from this statute that the trial court was within its discretion to allow defendant to charge fees for redacting the bills. However, as outlined above, in its initial ruling the trial court ordered the Orleans Levee Board to supply one redacted version and one containing the allegedly privileged information. The two versions of the bills then remained in the trial court’s custody for well over two years with no action on the part of the trial court. Plaintiff was forced to file a motion in the trial court in an attempt to move the case along. It would be patently unfair to now order plaintiff to pay for the cost of properly redacting the bills it has been attempting to inspect for over two years. Indeed, the Orleans Levee Board’s own rules for attorney billings provides that bills should be “sanitized” to the minimum extent necessary to protect client confidentiality and privilege prior to being submitted for payment. The bills should have been properly redacted long ago. Accordingly, we find the trial court erred by ordering plaintiff to pay attorney fees for the proper redaction of the documents, especially in light of the trial court’s order to defendant to produce a “lesser-redacted” version of the bills.

This latter ruling is also problematic in that it implies that the trial court found the redacted version improper, yet offers no guidance to defendant. This scenario can only lead to more delays in producing properly redacted documents.

We also agree that plaintiff is entitled to additional attorney fees in connection with the enforcement of the writ of mandamus. We, therefore, remand this matter to the trial court for 1) a ruling on the proper redaction of the requested ^documents; and, 2) a determination of reasonable attorney fees to be awarded plaintiff in connection with enforcement of the writ of mandamus.

Accordingly, the judgment of the trial court is reversed, and this matter is remanded to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

LOVE, J., CONCURS IN THE RESULT.

      . For reasons unknown to this Court, the petition for writ of mandamus, the writ of mandamus, the requested documents, and a transcript of the October 26, 2001, hearing are not contained in the record.


author: 1CHARLES R. JONES, Judge.

text:
    Darryl HAWTHORNE v. Melissa A. BARBIER, Esq.
    No. 2002-CA-1903.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2003.
    Darryl Hawthorne, In Proper Person, Plaintiff/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, and MAX N. TOBIAS JR.)
   1CHARLES R. JONES, Judge.

The plaintiff/appellant, Darryl Hawthorne, appeals the judgment of the district court granting the exceptions of res judicata and no cause of action filed by the defendani/appellee, Melissa Barbier. We reverse.

In 1983, Mr. Hawthorne was convicted of aggravated burglary and sentenced to thirty years imprisonment. On July 9, 2000, Mr. Hawthorne hired Ms. Barbier, to represent him in the criminal matter entitled State v. Darryl Hawthorne . Mr. Hawthorne hired Ms. Barbier to file and defend a motion to reconsider his sentence. Ms. Barbier filed the motion and argued the matter before the criminal court trial judge on February 9, 2001. The motion was denied. On appeal, this Court affirmed the ruling of the district court.

Mr. Hawthorne subsequently filed a legal malpractice action against Ms. Barbier seeking return of the fees he paid to Ms. Barbier as well as attorney fees and costs of the proceedings. Ms. Barbier filed exceptions of res judicata and no cause of action based upon the doctrine of accord and satisfaction. She argued that she sent Mr. Hawthorne a money order for the remainder of the monies he paid her |gthat were not used in his defense. The district court granted Ms. Barbier’s exceptions of res judicata and no cause of action.

On appeal, Mr. Hawthorne, in proper person, contends that the district court erred in granting the exceptions of res judicata and no cause of action. The district court, in granting the exceptions, concluded that Mr. Hawthorne and Ms. Barbier had settled the matter and accepted the theory of accord and satisfaction offered by Ms. Barbier. However, there is no evidence in the record that Mr. Hawthorne agreed to a settlement of the litigation. In the district court, Ms. Barbier produced the money order that she allegedly sent to Mr. Hawthorne, but failed to produce any evidence to indicate that he cashed the money order. Ms. Barbier failed to produce any type of written evidence of the alleged settlement.

The doctrine of accord and satisfaction is a defense which estops the creditor from suing on the compromised debt. Anesthesia East, Inc. v. Bares, 594 So.2d 1085, 1087 (La.App. 4 Cir.1992). To establish the defense of accord and satisfaction, the jurisprudence requires proof that there was an unliquidated or disputed claim, a tender made by the debtor in full settlement of the claim, and an acceptance of the tender by the creditor. Joseph A. Oster & Associates, Inc. v. Car Wash Center and Owl, Inc., 330 So.2d 688 (La.App. 4 Cir.1976). In cases where the applicability of the doctrine of accord and satisfaction is in doubt, it will not be applied. Reily Electrical Supply, Inc. v. Hollenberg, 535 So.2d 1321 (La.App. 5 Cir.1988).

It has been noted that the doctrine of accord and satisfaction is very much like the doctrine of compromise. McClelland v. Security Industrial Insurance Co., 426 So.2d 665 (La.App. 1 Cir.1982). La. C.C. article 3071 provides in part that “[a] transaction or compromise is an agreement between two or more persons, |3who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.” A compromise agreement which is not reduced to writing and evidenced by documentation signed by both parties is unenforceable. Felder v. Georgia Pacific Corp,, 405 So.2d 521, 523 (La.1981); Orgeron v. Security Indus. Funeral Homes, Inc., 96-2127 (La.App. 4 Cir. 2/26/97), 690 So.2d 243.

Ms. Barbier failed to produce any evidence that Mr. Hawthorne cashed the money order and/or any type of written documentation that Mr. Hawthorne agreed to settle the matter. Ms. Barbier offered no proof in order to establish the defense of accord and satisfaction. The district court erred in granting the exceptions filed by Ms. Barbier.

Decree

For the reasons stated herein, the judgment of the district court is reversed and the claim filed by Mr. Hawthorne against Ms. Barbier is reinstated.

REVERSED.

      . Criminal District Court for the Parish of Orleans # 297-215

      . State v. Darryl Hawthorne, unpub., 2001-0778, 812 So.2d 160 (La.App. 4 Cir. 2/20/02).


author: 1LEON A. CANNIZZARO, JR., Judge.

text:
    Virgil DELPIT v. NEW ORLEANS DEPARTMENT OF UTILITIES.
    No. 2002-CA-2008.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2003.
    J. Wayne Gillette, New Orleans, LA, for Plaintiff/Appellant.
    Brett E. Emmanuel, Assistant City Attorney, Joseph V. Dirosa, Jr., Deputy City Attorney, Franz L. Zibilieh, Chief Deputy City Attorney, Charles L. Rice, Jr. City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, and Judge LEON A. CANNIZZARO, JR).
   1LEON A. CANNIZZARO, JR., Judge.

Virgil Delpit appeals a decision of the Civil Service Commission of the City of New Orleans (the “Commission”). Mr. Delpit’s employment with the New Orleans Department of Utilities (the “Department”) was terminated by the Department on the grounds of job abandonment. Mr. Delpit appealed his termination to the Commission. The Commission denied his appeal. For the reasons that follow, we affirm the Commission’s decision denying Mr. Delpit’s appeal.

FACTS AND PROCEDURAL HISTORY

Mr. Delpit was employed by the Department as a senior taxicab investigator. Beginning on August 12, 2001, he was placed on leave as a result of an on-the-job injury covered by workers’ compensation. He had received medical clearance to return to work on November 5, 2001. Prior to returning to work, however, Mr. Delpit’s mother suffered a stroke. Mr. Delpit requested family medical leave to care for his mother.

|2On November 5, 2001, Mr. Delpit submitted to the Department a written request for family medical leave that was accompanied by a physician’s report documenting his mother’s illness. Mr. Delpit anticipated that he would need two weeks of leave to care for his mother, and he was initially granted unpaid family medical leave from November 5, 2001 through November 19, 2001. Mr. Delpit was scheduled to return to work on November 20, 2001. On November 20, however, Mr. Del-pit did not return to work and did not contact the Department.

On November 27, 2001, the Department sent Mr. Delpit a letter stating that he had been scheduled to return to work on November 20, 2001, that he had not done so as of the date of the letter, and that he had not contacted the Department to explain why he failed to return to work as scheduled. The letter advised Mr. Delpit that his continued absence from work was unauthorized and that termination proceedings would begin if he did not contact the Department by November 28, 2001.

On November 28, 2001, Mr. Delpit spoke by telephone with Andrea Johnson, the Department employee who handles the Department’s personnel matters. Ms. Johnson testified at the Commission hearing that Mr. Delpit told her that he had been “overwhelmed” by his mother’s illness and that he had “lost track of the dates.” Mr. Delpit also requested additional family medical leave when he spoke to Ms. Johnson.

laOn December 10, 2001, Mr. Delpit submitted a written request for an additional two weeks of family medical leave, which was granted. The leave was granted for December 10, 2001 through December 22, 2001.

At the Commission hearing, Ms. Johnson testified that on December 12, 2001, she spoke with Mr. Delpit. She said that he then advised her that he would not need the additional leave, because he had made other arrangements for his mother’s care. Ms. Johnson also testified that Mr. Delpit told her that he would return to work on December 18, 2001. Ms. Johnson stated that because Mr. Delpit had not retuned to work by December 14, 2001, she contacted him. Ms. Johnson testified that Mr. Delpit told her that he still needed family medical leave and that she reminded him that he was scheduled to return to work on December 23, 2001. Ms. Johnson further stated that on December 19, 2001, she and Mr. Delpit had a conversation in which he indicated that he would return to work on December 23, 2001, as scheduled. Mr. Delpit, however, did not return to work on that date.

On December 28, 2001, a pre-termi-nation hearing was held by the Department. Mr. Delpit was given notice of the hearing, and he attended it. When he was asked about the status of his job, Mr. Delpit sated that the “status is whatever the department want [sic] it to be.” He did not respond to questions regarding whether or not he knew his leave had expired, whether he wanted his job, or whether circumstances prohibited him from returning to work. When asked what he thought the Department should do concerning his job abandonment, Mr. |4Pelpit replied, “Do what you got to do.” Mr. Delpit did not request additional leave, and he did not indicate when he intended to return to work.

After the December 28 hearing, no disciplinary action was taken against Mr. Del-pit. Instead, the Department scheduled a second pre-termination hearing for January 11, 2002. Mr. Delpit, however, advised the Department that he could not attend the hearing on that date. Therefore, the hearing was rescheduled with Mr. Delpit for January 18, 2002. Mr. Delpit did not attend the second hearing on January 18, and he did not contact the Department to offer an explanation for his absence. On January 22, 2002, Mr. Delpit was terminated from his employment on the grounds of job abandonment.

Mr. Delpit appealed the termination of his employment to the Commission. A hearing on the appeal was held on March 26, 2002, and on July 26, 2002, the Commission rendered a decision denying the appeal. Mr. Delpit has now appealed the Commission’s decision to this Court.

STANDARD OF REVIEW

The Louisiana Supreme Court discussed in Walters v. Department of Police, 454 So.2d 106 (La.1984), the standard of review for an appeal of a city civil service commission decision. The Supreme Court stated:

An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action by his employer except for cause expressed in writing. He may appeal from such disciplinary action to the City Civil Service Commission, and the burden of proof on appeal, as to the facts, is on the appointing authority. La. Const, art. X, § 8.
... The Commission’s decision is subject to review on any question of law or fact upon appeal to the appropriate court of appeal. |RLa. Const, art. X, § 12(B).
This court has formulated jurisprudential precepts to guide the Commission and the courts of appeal in applying these constitutional principles. “Cause” for the dismissal of a person who has gained permanent status in the classified civil service has been interpreted to include conduct prejudicial to the public service in which the employee in question is engaged or detrimental to its efficient operation. The Commission has a duty to decide independently from the facts presented whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed was commensurate with the dereliction. A reviewing court should not reverse a commission conclusion ... unless the decision is arbitrary, capricious or an abuse of the commission’s discretion.
... Accordingly, a reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review in deciding whether to affirm the commission’s factual findings.
... Due concern both for the intention of the constitution and for the boundaries between the functions of the commission and of the court, however, demands that a reviewing court exercise other aspects of its review function with more circumspection. In reviewing the commission’s findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. In judging the commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the commission’s order unless it is arbitrary, capricious or characterized by abuse of discretion. Id. at 112-14. (emphasis added) (citations omitted).

See also Evans v. DeRidder Municipal Fire and Police Civil Service Board, 2001-2466 (La.4/3/02), 815 So.2d 61; Smith v. New Orleans Police Department, 2001-0505 (La.App. 4 Cir. 6/5/02), 820 So.2d 643.

In Newman v. Department of Fire, 425 So.2d 753 (La.1983), the Louisiana Supreme Court discussed the meaning of “arbitrary and capricious” in the context of a civil service commission hearing as well as the legal cause necessary to impose disciplinary action on a civil service employee. The Supreme Court stated:

Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial [ ¿relationship between the improper conduct and the “efficient operation” of the public service. The appointing authority (Superintendent) must demonstrate, by a preponderance of the evidence, that the conduct did in fact impair the efficiency and orderly operation of the public service. Id. at 754.

In Bannister v. Department of Streets, 95-0404 (La.1/6/96), 666 So.2d 641. the Louisiana Supreme Court again considered the meaning of “arbitrary and capricious” in the context of a civil service commission hearing. In Bannister the Supreme Court determined that “arbitrary and capricious” means that there is no rational basis for the action taken.

DISCUSSION

In the instant case Mr. Delpit argues that he was terminated, because the Department violated the Family Medical Leave Act of 1993 (the “Act”), 29 U.S.C. § 2601 et. seq. Mr. Delpit alleges that the Department did not properly follow the provisions of the Act and its implementing regulations, 29 C.F.R. § 825.100 et. seq. Mr. Delpit further alleges that he did not receive all of the leave to which he was entitled and, therefore, could not be terminated from his job while he was caring for his seriously ill mother. Mr. Delpit argues that he should have been granted the maximum amount of leave permitted under the Act when he initially applied for leave and that he could not be terminated during that time period. Mr. Delpit’s arguments are misplaced.

It is not necessary for this Court to determine whether or not there were any violations of the Act or the regulations implementing the Act. Mr. Delpit was, in fact, granted all of the family medical leave that he requested. He was terminated, not because he took the leave to which he was entitled, but because he did not return from the leave when he stated that he would. He also engaged in other acts that clearly indicated that he had abandoned his job.

|7Mr. Delpit was initially granted two weeks leave, and he was scheduled to return to work on a specific date. When he did not return on that date and did not contact the Department for seven days, he was sent a letter requesting that he contact the Department. When he contacted the Department, he stated that he had “lost track of the dates.” He then requested additional leave, which was granted. After taking two days of this leave, Mr. Delpit contacted the Department and stated that he did not need all of the leave and would return to work the next day. Again, Mr. Delpit did not return to work or contact the Department the day he said that he would return to work. When the Department contacted him the next day, he said that he now needed all of the leave that had been granted. When that leave expired, Mr. Delpit still did not return to work or contact the Department regarding his absence.

A pre-termination hearing was held, but Mr. Delpit refused to answer questions concerning his job status. Also, he did not request additional leave at the hearing or advise the Department when he intended to return to work. The Department took no disciplinary action at this time, however. A second pre-termination hearing was scheduled, and because of a conflict in Mr. Delpit’s schedule, the second pre-termi-nation hearing was rescheduled. The rescheduled hearing was held, but Mr. Delpit failed to attend or advise the Department that he could not attend. Only after this hearing did the Department terminate Mr. Delpit for job abandonment.

Mr. Delpit’s actions in not returning to his job when scheduled and in refusing to discuss his job status with the Department constituted conduct that was clearly detrimental to the Department’s efficient operation. Therefore, under the Walters and Newman cases, discussed above, this Court finds that there was |ssufficient legal cause for the Department to terminate Mr. Delpit’s employment and for the Commission to uphold the termination. There was clearly a rational basis on which the Commission could uphold the Department’s disciplinary action.

CONCLUSION

This Court finds that the decision of the Commission was based on sufficient legal cause and was neither arbitrary, capricious, nor an abuse of discretion. Therefore, the decision of the Commission is affirmed.

AFFIRMED.


author: 1MICHAEL E. KIRBY, Judge.

text:
    LEADER BUICK, GMC TRUCKS, INC. v. Robert WEINMANN, Michael Seago, Suburban Motors, L.L.C.
    No. 2002-CA-2006.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2003.

      John W. Lindner II, Covington, LA, for Plaintiff/Appellant.
    Richard C. Stanley, William M. Ross, Stanley, Flanagan & Reuter, L.L.C., New Orleans, LA, for Defendant/Appellee (Michael Seago).
    E. Wade Shows, Ronnie J. Berthelot, Kristen A. Brazzel, Shows, Cali & Berhtel-ot, L.L.P., Baton Rouge, LA, for Defendant/Appellee (Robert Weinmann).
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   1MICHAEL E. KIRBY, Judge.

STATEMENT OF THE CASE

The plaintiff, Leader Buick GMC, Inc., seeks review of the trial court’s judgment maintaining defendants’ exceptions of res judicata, no right of action and no cause of action. The present suit is the third lawsuit filed among the parties concerning the proposed sale of an automotive dealership between the plaintiff (the seller) and defendants (the purchasers).

The facts of the case are succinctly set out in Robertson v. Weinmann, 2000-0799, 2000-0800,1-3 (La.App. 4 Cir. 2/21/01), 782 So.2d 38, 39-40, the appeal of the first two lawsuits filed in this matter:

On August 6, 1998 the Robertsons filed suit against Robert Weinmann, Michael Seago and Suburban Motors, LLC alleging breach of a purchase agreement of May 13, 1997. That purchase agreement was between Suburban Motors and Leader Buick, GMC Truck, Inc. On August 24, 1998 Leader Buick, GMC Truck, Inc. was dissolved by affidavit pursuant to LSA-RS 12:142.1. The petition was amended on October 5, 1998 to list “Leader Buick, GMC Truck, Inc. In Dissolution” as a party plaintiff. Thereafter, a petition was filed in the Civil District Court on December 21, 1998 seeking to reinstate the corporation pursuant to LSA RS 12:142.1(B) and a judgment was granted reinstating the corporation retroactive to the date of dissolution.
Defendants filed various exceptions which were heard on December 18, 1998. The trial court sustained Ltheir exception of no right of action and dismissed plaintiffs’ original and amended petitions. Thereafter plaintiffs filed a motion for new trial based upon the retroactive reinstatement of the corporation on December 21, 1998. The defendants then moved to transfer and consolidate the reinstatement suit with the suit for breach of the purchase agreement. On May 28, 1999 the court granted the motion to consolidate and the motion for new trial, thereby rescinding its previous ruling granting the defendants’ exception of no right of action. The defendants then intervened in the reinstatement case and filed a petition to annul the Ex Parte Judgment reinstating the corporation. In response plaintiffs filed an exception of no right of action to the intervention. Defendants also filed a Motion for Summary Judgment on the claims raised in their intervention/nullity action.
Three matters were heard on October 6, 1999: Plaintiffs’ exception of no right of action to the intervention; Defendants Motion for Summary Judgment and Defendants’ original exception of no right of action which had been the subject of the motion for new trial. On October 13, 1999 the court signed a judgment which invalidated the retroac-tivity of Leader’s reinstatement; reinstated its original judgment on the defendants’ exception of no cause of action thereby dismissing the petition; and, it held the defendants’ motion for summary judgment and plaintiffs exception of no right of action to the intervention nullity action were moot.

This Court affirmed the trial court’s judgment of October 13,1999, adopting the trial court’s reasons for judgment as its own. Id.

On September 26, 2001, Leader Buick GMC, Inc., filed suit against Robert Wein-mann, Michael Seago and Suburban Motors, L.L.C., seeking damages arising from the breach of the purchase agreement executed between the parties on May 13,1997. The defendants filed exceptions of res judi-cata, no right of action and no cause of action based upon the dismissal of the prior suits. The trial court rendered judgment on June 4, 2002, granting the defendants’ exceptions of res judicata, no right of action and no cause of action and dismissing plaintiffs case with prejudice.

| STATEMENT OF THE LAW

The plaintiff contends, on appeal, that the trial court erred in granting the defendants’ exception of no right of action. The defendants argued, and the trial court agreed, that Leader Buick did not have a right of action against the defendants as all claims against the defendants did not survive the dissolution and reinstatement of Leader Buick.

La. R.S. 12:142.1 provides for corporate dissolution by affidavit, without formal liquidation:

A In addition to all other methods of dissolution, if the corporation is not doing business and owes no debts, it may be dissolved by filing an affidavit with the secretary of state executed by the shareholders, ..., attesting to such facts and requesting that the corporation be dissolved. Thereafter, the shareholders, ..., shall be personally liable for any debts or claims, if any, against the corporation in proportion to their ownership in the shares of the corporation.

This Court adopted the trial court’s analysis of La. R.S. 12:142.1 in Robertson v. Weinmann, 6-7, 782 So.2d at 41-42:

La. R.S. 12:142.1(B) is silent as to whether reinstatement of a corporation under the statute is to be given retroactive effect, and no jurisprudence exists which addresses the issue of the retroac-tivity.
In contrast, La. R.S. 12:163(E)(2), governing revocation and reinstatement of corporations in instances when corporations have failed to file annual reports, expressly states that reinstatement of a corporation under that particular article “shall be retroactive.” In this Court’s view, the Legislature could have included the same language concerning retro-activity in 12:142.1(B), but did not do so. In absence of such language, reinstatement under 12:142.1(B) should be given prospective effect only. Furthermore, reinstatement of a corporation dissolved by affidavit should not be given retroactive effect so as to revive the inchoate claims of the corporation. Public policy compels this result in that third parties should be able to rely on a corporate dissolution 14pursuant to La. R.S. 12:142.1. The Plaintiff shareholders elected to dissolve the corporation by affidavit, rather than by formal liquidation, and as such waived any rights to outstanding claims. Allowing retroactive reinstatement of a corporation formerly dissolved by affidavit would be in direct conflict with the objective of 12:142.1, as articulated in Gendusa v. City of New Orleans, 93-1527 (La.App. 4 Cir. 2/25/94) 635 So.2d 1158.

In Gendusa v. City of New Orleans, 93-1527, 7-8 (La.App. 4 Cir. 2/25/94), 635 So.2d 1158, 1162-1163, the court noted that the Louisiana Legislature enacted La. R.S. 12:142.1 in 1982 to provide a means of avoiding the costs and delays of a formal liquidation, but limited its application to corporations no longer doing business. Subsection B, added in 1989, allows reinstatement of a dissolved corporation by a court order directed to the secretary of state. Section 142.1 provides for survival of claims against the corporation liquidated by affidavit, but does not provide for survival of the corporation’s own claims. Survival of creditors’ claims against a dissolved corporation arises from the public policy that protects the interest of corporate creditors in corporate assets even beyond dissolution. There is no correlative public policy and no statutory provision to protect a sole shareholder, in possession of all relevant information concerning his corporation’s inchoate claim, from the loss of that right through his own voluntary dissolution of the corporation by affidavit.

Where a corporation has such outstanding claims or obligations, the appropriate method of dissolution is through a voluntary liquidation, with appointment of a liquidator and the orderly collection of claims, payment of debts and transfer of assets. Under a § 142 voluntary liquidation, a liquidator would have been vested with the authority to demand, collect, sue for and recover in the name of the corporation, the debts and property of the corporation, and to | .^compromise, compound and settle claims of the corporation on such terms and conditions as the liquidator deems best. La. R.S. 12:145. This result is consistent with the Louisiana Code of Civil Procedure. The liquidator appointed by a Louisiana court is the proper plaintiff to sue to enforce a right of the corporation. La.C.Civ.P. art. 692; Gendusa.

This Court stated in Gendusa that “[bjusiness corporations are created by statute, and their existence and operations are regulated by the business corporation law and any special professional corporation statute that may be applicable. As a statutory creation, the business or professional corporation has no rights outside the four corners of the enabling statute. Absent language in LSA R.S. 12:142.1 allowing for survival of inchoate corporate claims, we find no authority compelling such a result.” Gendusa, 93-1527, 8, 635 So.2d at 1163. In Gendusa, the court held that where there is no showing that the shareholder was unaware of the existence of the inchoate claim at the time of the corporate dissolution, there is no legal or equitable reason to allow him to prosecute as an individual the corporation’s claim for breach of the contract.

In In re Reinstatement of North Louisiana Well Servicing Co., Inc., 597 So.2d 160 (La.App. 2 Cir.1992), the corporate creditors introduced minutes of the meeting of the House Commerce Committee explaining that the purpose of the 1989 amendment to § 142.1 [which added Subsection B to allow reinstatement of a dissolved corporation when directed by a court order] was intended to avoid “a situation whereby a corporation was dissolved and realized that it was still holding land but, because of the dissolution, it could not sell the land.”

|Jn the case at bar, the shareholders knew of the claims the corporation had against the defendants when they chose to dissolve the corporation by affidavit. They could have dissolved the corporation through liquidation and preserved their claims but did not do so. As stated by this Court in Gendusa and Robertson, there is no public policy and no statutory provision to protect a shareholder, in possession of all relevant information concerning his corporation’s inchoate claim, from the loss of that right through his own voluntary dissolution of the corporation by affidavit. Likewise, while La. R.S. 12:142.1(B) allows for reinstatement of the corporation after dissolution by affidavit, there is no public policy or statutory provision which permits the reinstatement to be retroactive and grants the revival of the corporation’s inchoate claims. As such, Leader Buick does not have a right of action against the defendants for the breach of the purchase agreement. Leader Buick’s claims against the defendants were extinguished when the corporation was dissolved by affidavit. The reinstatement of the corporation did not revive its claims against the defendant. Thus, the trial court correctly maintained the defendants’ exception of no right of action.

Accordingly, the judgment of the trial court granting the defendants’ exception of no right of action is affirmed.

AFFIRMED.


author: 1WILLIAM H. BYRNES, III, Chief Judge.

text:
    STATE of Louisiana v. Brandon L. McDONALD.
    No. 2002-KA-2347.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2003.

      Harry F. Connick, District Attorney, Scott Peebles, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Defen-dani/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY and Judge MICHAEL E. KIRBY).
   1WILLIAM H. BYRNES, III, Chief Judge.

On April 5, 2002, Brandon L. McDonald was charged by bill of information with possession of crack cocaine in violation of La. R.S. 40:967(C). He entered a plea of not guilty at his arraignment on April 15, 2002. However, on April 29, 2000, McDonald withdrew his earlier plea and entered a plea of guilty as charged. On July 8, 2002, he was sentenced to serve three years at hard labor under La. R.S. 15:574.5, The About Face Program in Orleans Parish Prison.

The minute entry states that the defense filed a motion to reconsider the sentence on July 8, 2002, although the record does not indicate whether the motion was granted or denied. The record does not contain a copy of the motion, and the transcript does not refer to the motion. In a conflict between the transcript and the minute entry, the transcript prevails. State v. Page, 95-2410 (La.App. 4 Cir. 8/21/96), 680 So.2d 700, writ denied, 96-2852 (La.2/21/97), 688 So.2d 522. Therefore, there is a presumption that no motion was filed. The trial court granted McDonald’s motion for an appeal.

The facts of the case are not part of the record because McDonald pleaded guilty. However, according to the police report, the officers observed him smoking | ^marijuana, and he was arrested. When he was searched pursuant to his arrest, a single rock of cocaine was found in his pocket.

McDonald contends that the trial court erred in failing to advise him of the prescriptive period for post-conviction relief under La C.Cr.P. art. 930.8. However, this article contains merely precatory language and does not bestow an enforceable right upon an individual defendant. State v. Handy, 2001-0051 (La.App. 4 Cir. 1/24/01), 779 So.2d 103, 104, writ denied, 2001-1896 (La.3/28/02), 812 So.2d 651; State v. Moore, 99-2684 (La.App. 4 Cir. 12/20/00), 777 So.2d 600, 608, writ denied, 2001-0365 (La.12/14/01), 803 So.2d 986; State v. Echols, 99-2226 (La.App. 4 Cir. 10/4/00), 774 So.2d 993, 997, writ denied, 2000-3058 (La.10/5/01), 798 So.2d 962.

In the interest of judicial economy, we note for the defendant that La.C.Cr.P. art. 930.8 generally requires that applications for post-conviction relief be filed within two years of the finality of a conviction.

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Walter K. RICHARDSON.
    No. 2002-KA-2348.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2003.

      Harry F. Connick, District Attorney, Leslie Parker Tullier, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   1MICHAEL E. KIRBY, Judge.

STATEMENT OF CASE

This is an appeal following remand. See State v. Richardson, 2000-0130 (La.App. 4 Cir. 5/16/01), unpub. 796 So.2d 937 (Table.) The defendant raises three assignments of error: 1) the trial court failed to address the defendant on his waiver of trial by jury; 2) the trial court erred in failing to grant a new trial on the basis that the prosecution withheld evidence favorable to the defendant; and 3) the trial court erred in finding him to be a second offender. Because we find defendant is entitled to relief on the first assignment of error, we pretermit discussion of the other two.

On January 23, 1998, the defendant was charged by bill of information with armed robbery. La. R.S. 14:64. He was arraigned and pled not guilty January 28, 1998. After a judge trial, he was found guilty of the lesser included offense of simple robbery July 6, 1998. La. R.S. 14:65. The State filed a multiple bill. On July 16, 1998, the trial court found the defendant to be a second offender. The defendant filed a motion for new trial. On August 21, 1998, the trial court denied the motion for new trial, and sentenced the defendant to three years at hard labor. He filed a motion for appeal. On December 3, 1998, the trial court vacated the Lpriginal sentence and sentenced the defendant as a second offender to seven years at hard labor.

In his first appeal in his first assignment of error, the defendant argued that he did not validly waive his right to a jury trial.

The minute entry of January 28, 1998 states that the trial court informed the defendant of his right to trial by jury. The docket master states that the defendant requested trial by jury May 6, 1998. The minute entry of May 6, 1998 states that the defendant requested trial by jury. No transcript of a waiver of trial by jury could be found. Accordingly, this court remanded the case to the trial court for an evidentiary hearing on the question of whether the defendant validly waived his right to a jury trial through counsel in open court and in his presence before trial. The court ruled that if the evidence showed that the defendant did not make a valid waiver of his right to a jury trial, the district court must set aside his conviction and sentence and grant him a new trial. State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963. If the evidence showed that the waiver was properly made, this court ruled that the appeal should be transferred back to this court for review of this determination and for review of all assignments of error. State v. Richardson, unpub., supra. Judge Plotkin concurred in part and dissented in part.

On remand, a hearing was held October 25, 2002, at which time the court reporter testified that the transcript of the jury waiver could not be found. No other evidence was presented. The trial court denied the motion for new trial. This appeal followed.

ERRORS PATENT:

This court has already reviewed the record for errors patent and found none.

\ ¿FACTS:

Officer Calvin Brasley viewed a videotape of a robbery at Eckerd’s drug store that took place September 24, 1997. He also interviewed the cashier who told him a weapon had been involved. He said he could not see the weapon in the videotape.

William Washington, an employee of the store, said he was working the next day when Janet Robertson, who had been the cashier during the robbery, approached him and told him that the man in the electronics aisle was the man who had robbed the store. Washington called the police, and the defendant was arrested.

Robertson said the defendant pulled a gun from a wrapped towel. He demanded money, and as she struggled to open the register, he told her he would kill her. She gave him the money in the register. The defendant then returned to the store, but he left before police could be summoned. The next day, he returned again and was arrested after Robertson recognized him and called the police.

The judge viewed the videotape.

ASSIGNMENT OF ERROR ONE:

The defendant argues that the trial court erred in denying the motion for new trial. As set out above, the case was remanded for a determination of whether there was evidence that the defendant waived his trial by jury. The State presented no such evidence. The court must indulge every reasonable presumption against waiver of the right to trial by jury. State v. Page, 541 So.2d 409 (La.App. 4 Cir.1989). The motion for new trial was improperly denied.

HThis assignment has merit. The denial of the motion for new trial must be reversed, as well as the defendant’s conviction and sentence. The matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


author: 1WILLIAM H. BYRNES III, Chief Judge.

text:
    STATE of Louisiana v. Ernest HUNTER.
    No. 2002-K-2742.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2003.
    Harry F. Connick, District Attorney, Kathleen S. Billings, Assistant District Attorney, New Orleans, Louisiana, for Relator.
    Christian M. Comarda, New Orleans, Louisiana, for Respondent.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS JR., Judge DAVID S. GORBATY).
   1WILLIAM H. BYRNES III, Chief Judge.

We grant the writ application of the relator, the State of Louisiana, in order to consider the State’s demand that the ninety-nine year sentence of the defendant-respondent, Ernest Hunter, be reinstated.

The defendant was charged by bill of information with armed robbery. He was arraigned on December 23, 1982 and pled not guilty by reason of insanity. On January 6, 1983, following a lunacy hearing, the trial court found relator unable to understand the charges against him and ordered him committed to the Feliciana Forensic Facility. On April 21, 1983, a lunacy hearing was held to determine relator’s competency to stand trial. The trial court found relator able to assist in his defense. Following trial on May 17, 1983, relator was found guilty as charged. He was sentenced on July 18, 1983 to serve ninety-nine years at hard labor without benefit of parole. On July 25,1983, the State filed a multiple bill. Relator was subsequently adjudicated a second offender. His original sentence was vacated, and he was re-sentenced to serve ninety-nine years at hard labor without benefit of parole. His conviction and sentence were affirmed on an errors patent appeal. State. v. Hunter, unpub., KA-2103 (La.App. 4 Cir. 12/10/84). On December 23, 1991, this 12court granted relator an out of time appeal pursuant to Lofton v. Whitley, 905 F.2d 885 (5th Cir. 1990). His conviction and sentence were again affirmed on appeal. State v. Hunter, 92-2535 (La.App. 4 Cir. 4/13/95), 654 So.2d 781, writ den. 95-1217 (La.10/6/95), 661 So.2d 464.

At some point later, possibly on November 22, 2002, the defendant through counsel filed an application for post conviction relief/motion to reconsider sentence averring that his sentence be reconsidered. On December 6, 2002, the court held a hearing on what the minute entry refers to as a “motion to correct an illegal sentence.” The trial court granted the motion and resentenced the defendant, over the State’s objection, to forty years without the benefit of probation, parole, or suspension of sentence, under La. R.S. 15:529.1. The State noted its intent to seek writs and the court set a return date for December 20, 2002. This writ application followed.

The underlying facts of the crime for which the defendant was convicted are not relevant to this writ, but they are set forth in an earlier opinion of this Court. State v. Hunter, 92-2535 (La.App. 4 Cir. 4/13/95), 654 So.2d 781.

The State is before this Court arguing that the trial court was procedurally barred from reconsidering the defendant’s sentence, and furthermore, that on appeal this Court had already considered the defendant’s argument that his sentence was excessive and found it to be without merit.

First, it should be noted that, although the minute entry refers to a motion to correct an illegal sentence, there is no indication that the defendant’s sentence was illegal as not being within the statutory range. The | .^sentencing range for a second offender at the 'time of the defendant’s offense was thirty-three years to one hundred ninety-eight years without the benefit of probation, parole, or suspension of sentence pursuant to La. R.S. 14:64 and La. R.S. 15:529.1; the defendant’s sentence was within that range. Instead, in his motion to reconsider sentence, the defendant argues excessiveness, and the court at the December 6th hearing specifically stated that it found that the defendant’s sentence of ninety-nine years was “excessive.”

The State is correct that this Court on appeal specifically rejected the defendant’s claim that his sentence was excessive. Hunter, p. 6, 654 So.2d at 784. The Court, while acknowledging that the sentencing transcripts were not available due to the age of the case, noted that the facts of the case and the record itself supported the sentence. Id., p. 7. Thus, his claim is barred under La.C.Cr.P. art. 930.4.

Furthermore, the defendant’s present attack on his sentence is barred on other procedural grounds. No claims regarding sentencing can be raised via an application for post conviction relief. See State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172, where the Court stated in a per curiam opinion: “La. Code Crim.Proc. art. 930.3, which sets out the exclusive grounds for granting post-conviction relief, provides no basis for review of claims of excessiveness or other sentencing error post-conviction.” Additionally, as argued by the State, the court lacked jurisdiction to reconsider a sentence imposed twenty years previously.

La.C.Cr.P. art. 822 provides in pertinent part:

A. (1) Should the court on its own motion or on motion of the defendant consider setting aside a guilty verdict or a plea of guilty or, after the[4sentence is imposed, consider amending or modifying the sentence imposed, the district attorney shall be notified and the motion shall be tried contradictorily with the district attorney unless the district attorney waives such contradictory hearing.
(2) Such motions include but are not limited to motions for a new trial, motions in arrest of judgment, motions for amendment, modification, or reconsideration of sentence, and motions for modification of conditions of probation or termination of probation.

In State v. Neville, 95-0547 (La.App. 4 Cir. 5/16/95), 655 So.2d 785, the defendant moved the court to reconsider or modify his sentence fifteen months after the sentence was imposed and made executory. This Court held the trial court was without authority to consider the motion. This Court discussed when a motion for modification of sentence under art. 822 may be made:

We previously addressed this same issue in State v. Tillman, 638 So.2d 475 (La.App. 4th Cir.1994). In that case, the defendant pled guilty to purse snatching and was sentenced in September 1992 to five years at hard labor with credit for time served. He filed a motion to reconsider his sentence in May 1994, nineteen (19) months following the imposition of his sentence. Noting that the defendant failed to file his motion to reconsider within the thirty days following the imposition of the sentence and that the trial judge failed to give the defendant additional time within which to file the motion at the time of sentencing, we found the trial court had no authority to reconsider Tillman’s sentence.

State v. Neville, 95-0547 at p. 3, at 655 So.2d at 787. This Court also found that the motion to reconsider was really a motion to amend the defendant’s sentence, which under La.C.Cr.P. art. 881 must be filed, in a case where a defendant is sentenced to serve hard labor, prior to the commencement of execution of the sentence. Because the defendant had already begun serving his sentence, the court was without authority to modify or amend his sentence under either art. 822 or 881.

5Here, the defendant apparently moved the court to modify or amend his sentence almost twenty years after it became execu-tory. As per Neville and Tillman, the court was without authority to do so. Thus, the trial court erred by reducing the defendant’s sentence.

Finally, it makes no difference whether the defendant filed a “motion to reconsider sentence” (a copy of a pleading with that caption is attached to the State’s writ application), or a motion to amend the sentence. As per La.C.Cr.P. art. 881.1, a motion to reconsider sentence must be filed within thirty days of the imposition of sentence unless the trial court at sentencing sets a longer period to file the motion. See State v. Williams, 96-1587 (La.App. 4 Cir. 4/16/97), 693 So.2d 249. There is nothing in this case to indicate there was a timely filed motion to reconsider, which would not be surprising when one considers that art. 881.1 was not enacted until 1987, several years after sentencing. Thus, the court could not consider the motion to reconsider sentence, and it erred in doing so.

For the foregoing reasons, we find that the State’s writ application has merit. Accordingly, the defendant’s forty-year sentence imposed on December 6, 2002 is hereby vacated, and the original sentence of ninety-nine years at hard labor pursuant to La. R.S. 15:529.1 is hereby reinstated.

WRIT GRANTED; FORTY-YEAR SENTENCE VACATED; NINETY-NINE YEAR SENTENCE REINSTATED

      . The State refers to a presentence investigation report from the year 2000, but there is no indication in the record before this Court to explain why the court might have ordered a PSI in 2000.


text:
    STATE of Louisiana, v. Michael V. THOMAS.
    Nos. 2002-KA-1561, 2002-K-0809.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2003.

      Harry F. Connick, District Attorney, Julie C. Tizzard, Assistant D.A., Paige Je’Nee Cline, Assistant D.A., New Orleans, LA, for Plaintiff/Appellee/Relator.
    Karen G. Arena, Louisiana Appellate Project, River Ridge, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS JR., and Judge DAVID S. GORBATY).
   1WILLIAM H. BYRNES III, Chief Judge.

STATEMENT OF CASE

On November 15, 2001, the State indicted Michael V. Thomas with one count of distribution of heroin, a violation of La. R.S. 40:966(A)(1), and one count of distribution of counterfeit controlled dangerous substance, a violation of La. R.S. 40:971.1. Thomas entered a plea of not guilty at his arraignment on November 20, 2001. On December 5, 2001, the trial court found probable cause and denied his motion to suppress the evidence. Thomas proceeded to trial by jury on January 8, 2002, after which he was convicted of attempted distribution of heroin. On March 27, 2002, the trial court sentenced Thomas to seven years, after which Thomas filed a motion to reconsider sentence, which the court denied, and a motion for appeal, which was granted. The State sought supervisory review of Thomas’ sentence on the ground that the trial court did not have sufficient justification for deviating below the minimum sentence, and that writ application (2002-K-0809) has been consolidated with this appeal.

STATEMENT OF FACT

DEA Special Agent Carlton Simmons testified that on April 5, 2001, he and the defendant met in Simmons’ car in the parking lot of the Spur L.Station on the corner of Magazine Street and Washington Avenue. The defendant sold Simmons two grams of heroin for $600.00. Simmons paid the defendant with pre-recorded currency. At the time of the transaction, Simmons had been wired fbr sound. Fellow agents set up surveillance, and manned videotape equipment from a concealed location across the street from the Spur Station. The audio and video recordings, played for the jury at trial, capture the defendant negotiating the purchase price, and delivering the heroin to Agent Simmons.

On May 10, 2001, Simmons and the defendant had a second meeting during which the defendant sold Simmons three grams of a white powdered substance, purported to be heroin, for $900.00. Once again, Simmons paid for the reported contraband with marked currency. Like the first, this second transaction was captured on audio and videotape, and played for the jury at trial. Subsequent testing proved the substance was counterfeit. The defendant was arrested minutes after the second transaction. At the time of arrest, agents confiscated $80.00 in marked bills from the defendant’s pants pockets.

The defendant testified that on April 5, 2001, “Joe” and another man approached him, and told him he could make $100.00 by delivering an item for them. The defendant said he suspected what he was doing was wrong but was unaware of the contents of the item he was delivering. The defendant accompanied “Joe” to the Spur Station on Magazine Street where the defendant gave Agent Simmons the item in exchange for $600.00. The defendant admitted that he had a second meeting with Agent Simmons on May 10, 2001, at the same location, except that this time he delivered an Litem to the agent in exchange for $900.00. “Joe” gave the defendant $80.00 from the proceeds of the second transaction. The $80.00 was confiscated when the defendant was arrested.

ERRORS PATENT

A review for errors patent on the face of the record revqals one, which is discussed in the following assignment of error.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues the evidence is insufficient to support his conviction for attempted distribution of heroin. He suggests that the State failed to show his intent to participate in the distribution of heroin because it did not prove that he knew or should have known that the contraband was heroin.

This court set out the well-settled standard for reviewing convictions for sufficiency of the evidence in State v. Armstead, 2002-1030 (La.App. 4 Cir. 11/6/02), 832 So.2d 389. In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole |4since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, 523 So.2d 1305; Green, 588 So.2d 757. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact maybe inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

In this case, the defendant was convicted of attempted distribution of heroin. La. R.S. 40:967 provides that it shall be unlawful for any person “knowingly or intentionally ... [t]o ... distribute, or dispense, a controlled dangerous substance classified in Schedule I.” Heroin is a Schedule I opiate derivative. La. R.S. 40:964(B)(11). A defendant is guilty of distribution of 1 Rheroin when he transfers possession or control of heroin to his intended recipient. See La. R.S. 40:961(14). To support a conviction for attempted distribution of heroin, “the State must prove that the defendant had the specific intent to commit the crime and did or omitted some act toward accomplishing his goal.” State v. McGee, 98-2116, p. 10 (La.App. 4 Cir. 2/23/00), 757 So.2d at 58. A person may be convicted of an attempt to commit a crime even where it appears that the defendant actually perpetrated the offense. La. R.S. 14:27; McGee, at p. 10, 757 So.2d at 58. To convict for distribution of a controlled dangerous substance, the State must show (1) “delivery” or “physical transfer;” (2) guilty knowledge of the controlled dangerous substance at the time of transfer; and (3) the exact identity of the controlled dangerous substance. State v. Kanost, 99-1822 (La.App. 4 Cir.3/29/00), 759 So.2d 184.

Applying these criteria to this case, Agent Carlton Simmons testified that he was wired for sound when that he met the defendant at two pre-arranged locations. On each occasion, the defendant entered the agent’s vehicle, produced a scale, weighed the heroin to establish a price, and accepted payment in marked currency from Agent Simmons. Agents Eric Becnel and Greg Norwood testified that they monitored the transactions via physical, video and audio surveillance and corroborated Agent Simmons’ testimony. Although the defendant denied, several times during his testimony, any familiarity with such criminal activity, the jury obviously did not believe him. The determination that the defendant’s denials were not credible is supported by Agent Simmons’ testimony that based upon the defendant’s haggling and negotiation as to the price of the heroin, the | fidefendant was very knowledgeable about narcotics. The State’s evidence established that the defendant transferred possession of heroin to Agent Simmons. Moreover, within minutes of the transaction, the defendant was arrested and found in possession of four marked twenty-dollar bills that Agent Simmons had given him in payment for the heroin. . The jury found the defendant’s explanation of events incredible. A fact finder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Harris, 99-3147, p. 6 (La.App. 4 Cir. 5/31/00), 765 So.2d 432, 435. It cannot be said that the jury’s credibility decision in the instant case was clearly contrary to the evidence. There is no merit to this assignment of error.

WRIT APPLICATION

In its writ application, the State complains that the trial court erred in retroactively applying the sentencing amendments to La. R.S. 40:966(B)(1) and 40:979 to this case, and sentencing the defendant to only seven years instead of the pre-amendment minimum of eight years.

In sentencing, the defendant, the trial judge noted:

I think the Court can take into consideration that the Legislature has seen fit to reduce these penalties, to bring this in under [State v.] Dorthey [1278-1279, 623 So.2d 1276 (La.1993) ] ... I don’t mean to imply that the amendment [Act 403] in and of itself is to be applied retroactively in Louisiana. But in light of all that has transpired and the recommendation of the person who |7has prepared this report for the Department of Parole and Probation, I find that to require the eight year sentence and not allow the gentleman a change with one year less being imposed to be considered for Intensive Incarceration Program, I find that in itself would be an injustice....

Obviously, the trial judge imposed the lighter sentence pursuant to Dorthey, rather than the amendment to the above referenced statutes.

Louisiana’s judiciary maintains the distinct responsibility of reviewing sentences imposed in criminal cases for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). However, in order to find the punishment excessive, the trial judge must find that the sentence makes no measurable contribution to the acceptable goals of punishment or that the sentence amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Dorthey, 623 So.2d 1276 (La.1993).

When seeking to rebut the presumption of constitutionality, the defendant must show by clear and convincing evidence that he is “exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.” State v. Johnson, 97-1906, p. 8 (La.03/04/98), 709 So.2d 672, 676, citing State v. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525. Downward departures should only occur in rare situations. Johnson, p. 9, 709 So.2d at 677.

As justification for the downward departure in sentencing in this case, the trial judge cited the defendant’s age (seventeen at the time of the Loffense), lack of maturity, that the pre-sentence report recommended the defendant for intensive incarceration/intensive parole supervision and that the penalties for the crimes for which the defendant was convicted have been recently reduced. The trial judge also indicated that he identified with the defendant because the trial judge’s father died when he was eleven years old and the defendant’s father died when he was eight or nine years old.

However, the pre-sentence investigation report indicates that in less than three years’ time, the defendant accumulated a juvenile record of eight arrests, resulting in two adjudications — one for simple burglary of an inhabited dwelling in 1997 and the other for possession of marijuana in 1999. His adult record includes five arrests in little more than one year with convictions for criminal trespass, possession of marijuana and attempted distribution of heroin. The report also discloses that the defendant did not finish school and in fact “was suspended from school for fighting and was a habitual violator of school rules. He showed willful disrespect for school authorities and cursed the staff at the group home.” He admitted to the daily use of marijuana since 1996 and has never held a job. The defendant’s record shows that his criminal behavior is escalating. His youth and immaturity do not justify a downward departure in the sentence as required by Dorthey, especially in light of his recidivist behavior.

The following colloquy from the sentencing hearing re-enforces the conclusion we have reached:

BY THE COURT:
Thank you. This is the so-called Washington and Magazine case. My only concern with the comment of the gentlemen in the report is that the |aofficer’s testimony, I believe he was a State Trooper, I don’t have anything in front of me, I’m just going by recollection, was that this gentleman made more than one transaction date with this gentleman.
MS. CLINE: [THE PROSECUTOR]
Yes, Sir.
BY THE COURT:
More particularly, the defendant made it with the officer.
MR. HURTT: [DEFENSE COUNSEL]
But the one before he reached his 18th birthday was the one that involved heroin. The second transaction did not involve a controlled dangerous substance.
BY THE COURT:
But it was something he told the officer was a controlled dangerous substance.
The State’s writ application has merit.

DECREE

For the foregoing reasons, we affirm the defendant’s conviction, vacate his sentence and remand to the trial court for resen-tencing consistent with this opinion.

CONVICTION AFFIRMED; CASE REMANDED FOR RESENTENCING.

      . Act 403 of the 2001 regular session of the state legislature, amended La. R.S. 40:966 and R.S. 40:979 by reducing the sentence for conviction of attempted distribution of a narcotic substance to a range of five to thirty years. The effective date of the amendment was June 15, 2001, with prospective effective only. In this case, the incidents for which the defendant was charged occurred on April 5 and May 10, 2001.

      . While Dorthey involved a mandatory sentence under the habitual offender laws, the sentence review principles espoused in Dor-they are applicable to mandatory sentences imposed by substantive criminal statutes. State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274.