author: | .WOODARD, Judge.

text:
    Robert W. LOVETT, Jr., as Administrator of the Estate of Robert W. Lovett v. Star Wheat BROWN, et al.
    No. 2003-1749.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 2004.

      Richard D. Moreno, Wright & Moreno, L.L.C., Lake Charles, LA, for Appellant and Defendant: Attorney Ad Hoc, in Proper Person, William Coulter.
    Burlyne Van Dyke, Van Dyke — Dowers Law Firm, Charles, LA, for Plaintiff/Ap-pellee: Robert W. Lovett, Jr., as Administrator of the estate of Robert W. Lovett.
    Starr Wheat Brown, Longville, LA, In Proper Person: Starr Wheat Brown.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   | .WOODARD, Judge.

On appeal, we consider whether it was proper for the trial court to deny Richard D. Moreno, the Defendant’s Attorney Ad Hoc, a reasonable fee for serving in that capacity because the Defendant later retained him to serve as his private counsel. We reverse.

On November 12, 2002, Robert W. Lo-vett, Jr., as Administrator of the succession of Robert W. Lovett (Decedent), filed a petition to include, in the succession, certain assets that the Defendants, Star Wheat Brown and William Lamar Coulter, allegedly removed from the Decedent’s estate. Specifically, Mr. Lovett claimed that Mr. Coulter withdrew $56,160.96 (represented by five (5) certificates of deposit on which the Decedent and Mr. Coulter were co-payees) from Whitney National Bank sometime before or after the Decedent’s death.

On April 30, 2003, Mr. Lovett filed a “Motion and Order to Appoint Curator” due to his inability to serve Mr. Coulter, an absentee and nonresident of Louisiana, via Louisiana’s Long Arm Statute. The trial court granted this motion and appointed Richard D. Moreno to serve as Attorney Ad Hoc for Mr. Coulter.

On May 6, 2003, Mr. Moreno was served on Mr. Coulter’s behalf. Immediately thereafter, he tried to locate Mr. Coulter by purchasing newspaper advertisements, employing a private investigator to search computer databases, and mailing copies of the petition and citation to his last known address.

On approximately May 16, 2003, after receiving the copy of the petition and citation that Mr. Moreno had mailed, Mr. Coulter contacted him to discuss this suit.

Subsequently, on June 9, 2003, he hired Mr. Moreno and the law firm of Wright Moreno, L.L.C. to defend him in this action.

On August 12, 2003, Mr. Moreno filed a motion to withdraw, as Attorney Ad Hoc, in which he notified the trial court and opposing counsel that Mr. Coulter had hired him and his law firm as regular counsel in this matter. He also requested that the trial court set and tax as court costs the reasonable fee owed to him, un~ der [;>La.Code Civ.P. art. 5096, for the services he provided while acting as Attorney Ad Hoc for Mr. Coulter.

On September 25, 2003, the trial court signed an order, granting Mr. Moreno leave to withdraw as Attorney Ad Hoc for Mr. Coulter. However, it denied his request for compensation for serving as Attorney Ad Hoc, noting that its decision to withhold payment was based on this court’s reasoning in Misko v. Capuder. In Misko, this court opined that a trial court cannot allow the attorney ad hoc to receive the reasonable fee, which Article 5096 mandates, when the absent defendant represented by the attorney ad hoc subsequently hires the attorney ad hoc to serve as his/her private counsel.

On appeal, Mr. Moreno asserts that: (1) the trial court abused its discretion when it denied him reasonable compensation under Article 5096 for the work he performed as Attorney Ad Hoc before the Defendant retained him; (2) Misko is contrary to prior jurisprudence and the plain language of Article 5096; (3) this court should determine, on the record and without remand, the reasonable amount that the Plaintiff owes him, which the trial court should have taxed as costs of court, for the services he provided as Attorney Ad Hoc; and (4) he is entitled to an increase in attorney fees for the work done on this appeal.

The Attorney Ad Hoc

The Louisiana Code of Civil Procedure Article 5091 provides, in part:

A.The court shall appoint an attorney at law to represent the defendant, on the petition or ex parte written motion of the plaintiff, when:
(1) It has jurisdiction over the person or property of the defendant, or over the status involved, and the defendant is:
(a) A nonresident or absentee who has not been served with process, either personally or through an agent for the service of process, and who has not waived objection to jurisdiction.
_k- • ■ •
B. All proceedings against such a defendant shall be conducted contradictorily against the attorney at law appointed by the court to represent him....
C. The improper designation of the attorney appointed by the court to represent such a defendant as curator ad hoc, tutor ad hoc, special tutor, or any other title, does not affect the validity of the proceeding.

The attorney ad hoc must use reasonable diligence to communicate with the nonresident or absent defendant and inform him/ her of the pendency and nature of the action or proceeding and of the time available for filing an answer or asserting a defense.

Furthermore, La.Code Civ.P. art. 5095 provides:

The attorney at law appointed by the court to represent a defendant shall use reasonable diligence to inquire of the defendant, and to determine from other available sources, what defense, if any, the defendant may have, and what evidence is available in support thereof.
Except in an executory proceeding, the attorney may except to the petition, shall file an answer in time to prevent a default judgment from being rendered, may plead therein any affirmative defense available, may prosecute an appeal from an adverse judgment, and generally has the same duty, responsibility, and authority in defending the action or proceeding as if he had been retained as counsel for the defendant.

Comment (a) to Article 5095 further explains that the attorney ad hoc’s sole function is to defend the pending action or proceeding, and, as such, s/he does not have the authority to force the defendant to become the actor by filing a separate suit in the defendant’s name, by calling a third party defendant, or by reconvening.

In Johnson v. Jones, our supreme court identified the source of authority granted to the attorney ad hoc:

A [attorney] ad hoc is appointed for a particular purpose under express statutory authority. His powers are strictly limited to those conferred by law, and cannot be extended to the performance of any other acts than |4such as tend to the defense of the rights and the protection of the interests of the absentee whom he represents.
... The [attorney] ad hoc is not the attorney of the defendant. He has no mission nor authority derived from [the defendant]. He represents [the defendant] only by virtue of his appointment by the judge of the district court under the authority conferred upon him by law. His compensation is due him as [attorney] ad hoc, and not as counsel, of the absent defendants.[]

(Emphasis added.) Accordingly, the supreme court acknowledged that the duties imposed upon the attorney ad hoc are statutory in nature; thus, s/he does not derive authority from or owe duties to the absent defendant except those which the statute imposes. If, however, the absent defendant ultimately retains the attorney ad hoc as his/her private counsel, the attorney ad hoc’s statutory authority and duties cease.

The Attorney Ad Hoc’s Reasonable Fee

In response to Plaintiffs “Motion and Order to Appoint Curator” in this matter, the trial court appointed Mr. Moreno to serve as Mr. Coulter’s attorney. In fulfillment of his duties as Attorney Ad Hoc, Mr. Moreno found Mr. Coulter and informed him of the suit brought against him, however, the trial court denied his request for compensation for serving in that capacity. Mr. Moreno asserts that this decision was incorrect. We agree.

Louisiana Code of Civil Procedure Article 5096 provides, in part:

The court shall allow the attorney at law appointed to represent a defendant a reasonable fee for his services, which shall be paid by the plaintiff, but shall be taxed as costs of court.
The attorney so appointed may require the plaintiff to furnish security for the costs which may be paid by, and the reasonable fee to be allowed, the attorney.
| fjlf the attorney so appointed is retained as counsel for the defendant, the attorney shall immediately advise the court and opposing counsel of such employment.

(Emphasis added.) The first paragraph of Article 5096 is clear and unambiguous. Therefore, we must apply it as written unless that application leads to absurd consequences. In ABL Management, Inc. v. Board of Supervisors, our supreme court further explained:

It is well established that when a statute is clear and free of ambiguity, it must be given effect as written. Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. When interpreting a statute, the court should give it the meaning the Legislature intended.... The Legislature is presumed to have enacted each statute with deliberation and with full knowledge of all existing laws on the same subject. A statute’s meaning and intent is determined after consideration of the entire statute and all other statutes on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the statute and with the obvious intent of the Legislature in its enactment of the statute. Where it is possible, the courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions .... A construction of a law which creates an inconsistency should be avoided when a reasonable interpretation can be adopted which will not do violence to the plain words of the statute and will carry out the Legislature’s intention. Ultimately, it is clear that the law provides that the statute be accorded a fair and genuine construction. A reasonable construction in light of the statute’s purpose is what is required.[]

Also, we should avoid interpreting statutes in a manner that will lead to harsh or unjust results.

According to the clear language of Article 5096, the payment of a “reasonable fee” to court appointed attorneys for their services is mandatory. That language, providing for a “reasonable fee,” has no qualifications or limitations except those inherent in the determination of reasonableness. Thus, nothing in Article 5096 or any | (¡other provision prohibits an attorney ad hoc, who an absent defendant subsequently retains, from being compensated for fulfilling his attorney ad hoc duties.

Therefore, we must apply Article 5096 as written and award Mr. Moreno a reasonable amount for his service as Attorney Ad Hoc, as this interpretation will not lead to harsh, unjust, or absurd consequences.

Nevertheless, we are mindful of this court’s seemingly contrary decision in Mis-ko. Specifically, the Misko court stated:

[Mrs. Capuder] urges that she is entitled to a reasonable allowance as attorney’s fees, particularly because of the added legal expense necessitated by these proceedings and by this appeal, and that these fees should be taxed as costs under the provisions, of [Article 5096]. The evidence shows that Mrs. Capuder was absent from the State of Louisiana at the time the rule nisi was issued on September 20, 1961, and accordingly, an attorney at law was appointed to represent her in this proceeding. Later, however, she employed the same attorney as her counsel and she has paid him a sum of money as his fee. She and her counsel contend that the amount which she paid was inadequate and that she is not financially able to pay any more.
In our opinion, attorney’s fees may not be allowed and taxed as costs under the provisions of [Article 5096] if the attorney is retained as counsel for the defendant subsequent to his appointment to represent her. For that reason we feel that Mrs. Capuder’s demand that she be allowed attorney’s fees and that they be taxed as costs must be rejected.[]

This conclusion is contrary to Article 5096’s clear mandate and leads to an unjust result. Later, this court correctly noted in State in Interest of HLD v. CDM that “ordering attorneys to serve without compensation is hardly practical, especially considering modern economic conditions.”

Furthermore, our supreme court, in In re Juakali, held that an attorney’s attempt to collect attorney ad hoc fees directly from the located defendant without court application or approval was actually an attempt to collect unauthorized fees and clearly violated Article 5096’s mandate that this fee “be taxed as costs of court.” In 17fact, any steps taken by the attorney ad hoc to circumvent the court’s mandatory involvement in setting this fee could result in the disciplinary counsel bringing formal charges against the attorney ad hoc.

For the reasons cited above, we hold that Mr. Moreno should receive a reasonable fee that “shall be paid by the plaintiff, but shall be taxed as costs of court” for the work he performed on behalf of Mr. Coulter as Attorney Ad Hoc.

CONCLUSION

We set aside the trial court’s judgment and award Mr. Moreno $1,790.84 for serving as Attorney Ad Hoc and $1,500.00 for his work on appeal to secure his Attorney Ad Hoc fee. The Plaintiff, Mr. Lovett, in his capacity as Administrator, must pay these amounts, which we tax as costs of court. We further assess all costs of this appeal to the Plaintiff.

REVERSED AND RENDERED.

      . See La.R.S. 13:3201; See also La.R.S. 13:3204.

      . 147 So.2d 661 (La.App. 3 Cir.1962).

      . Id.

      . La.Code Civ.P. art. 5094.

      . 170 La. 760, 129 So. 155, 156 (La.1930) (citations omitted).

      . Id.

      . See Tarver v. Allaun, 47 So.2d 440 (La.App. 2 Cir.1950).

      . See ABL Mgmt., Inc. v. Bd. of Supervisors, 00-798 (La. 11/28/00), 773 So.2d 131.

      . Id. at 135 (citations omitted).

      . See Guste ex rel. Courville v. Burris, 427 So.2d 1178 (La.1983).

      . 147 So.2d at 664-65.

      . State in Interest of HLD v. CDM, 563 So.2d 360, 368 (La.App. 3 Cir.1990).

      . 97-1460 (La.9/5/97), 699 So.2d 361.

      . Id.

      . La.Code Civ.P. art. 5096.

      . See Light v. Crowson Well Serv., Inc., 313 So.2d 803 (La.1975).

      . See La.Code Civ.P. art. 5096; See also State of La., Dep’t of Transp. & Dev. v. Falcone, 487 So.2d 588 (La.App. 4 Cir.1986).


source: Caselaw Access Project

author: I r THIBODEAUX, Chief Judge.

license: Public Domain

text:
    SUCCESSION Of Vera Kate BERNSTINE.
    No. 2004-150.
    Court of Appeal of Louisiana, Third Circuit.
    July 7, 2004.
    Rehearing Denied Aug. 25, 2004.

      Otis Edwin Dunahoe, Jr., Dunahoe Law Firm, Natchitoches, LA, for Appellee' — • Otis Johnson, III.
    Alex J. Washington, Shreveport, LA, for Appellants — Burk Clark, Kirk Clark, and Phyllis Lewis.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   I r THIBODEAUX, Chief Judge.

In this case, the plaintiffs-appellants, Burk Clark, Kirk Clark, and Phyllis Lewis, appeal the judgment of the trial court in favor of Otis Johnson that he be maintained as administrator of the estate of his mother, Mrs. Vera Kate Bernstine. Mr. Johnson was a first-time convicted felon who was by law entitled to an automatic pardon. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUE

The issue in this case is whether or not the trial court erred in maintaining Mr. Johnson as the administrator of the estate of his deceased mother, Mrs. Bernstine because he was a first-time convicted felon or a person of bad moral character.

II.

FACTS

Mr. Johnson was the only son of Vera Kate Bernstine. Mrs. Bernstine died on February 9, 2003. Thereafter, her son filed a petition to be appointed as administrator of her estate. Her estate consisted, in part, of several profitable rental properties. Mr. Johnson is the father of three children, the appellants in this appeal, Burk, Kirk and Phyllis, Mrs. Bernstine’s grandchildren. After Mr. Johnson filed his petition, his children filed a motion to have him disqualified as the administrator based upon his 1990 felony conviction and his alleged bad moral character.

The parties stipulated that Mr. Johnson’s 1990 felony conviction was his first and only felony conviction. They also stipulated that he was entitled, pursuant to La.R.S. 15:572, to receive an automatic pardon since the conviction was his first | ¡.felony conviction. After listening to the evidence and reviewing the pertinent statute, the trial court concluded that Mr. Johnson should be maintained as the administrator of his mother’s estate. The trial court found that La.R.S. 15:572 pardoned Mr. Johnson such that his rights as a Louisiana citizen were restored. The trial court also found that the plaintiffs failed to prove Mr. Johnson’s bad moral character. It is from this judgment that the plaintiffs appeal.

III.

LAW AND DISCUSSION

The plaintiffs assert that because Mr. Johnson is a convicted felon, he should not be allowed to be the administrator of their grandmother’s estate. To support their assertion, the plaintiffs rely on La. Code Civ.P. art. 3097(A)(3) which states:

A. No person may be confirmed as testamentary executor, or appointed dative testamentary, executor, provisional administrator, or administrator who is:
(3) A convicted felon, under the laws of the United States or of any state of territory thereof!.]

There is no question that Mr. Johnson is a convicted felon. However, La.R.S. 15:572 provides that people who are first-time felons are automatically pardoned once they have completed their sentence. Paragraph (B)(1) of La.R.S. 15:572 states:

B. (1) A first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence without a recommendation of the Board of Pardons and without action by the governor.

(Emphasis added). Thus, the statute does not require any action on the part of the offender, a state department, or the governor for the pardon to attach once he completes the required sentence. Although a first offender pardon does not return the |aoffender to the status of innocence as a gubernatorial pardon does, its effect is to restore the basic rights of citizenship to the offender. State v. Moore, 03-16 (La.App. 3 Cir. 5/14/03), 847 So.2d 53.

The parties do not dispute that Mr. Johnson has completed his sentence. They also do not dispute that his 1990 felony conviction was his first felony conviction. Moreover, the testimony at the hearing reveals that the plaintiffs stipulated that Mr. Johnson was pardoned automatically by virtue of the first offender pardon statute making it unnecessary for Mr. Johnson to produce evidence of his pardon. Mr. Johnson was, thus, restored to his basic citizenship rights, including the right to be the administrator of his deceased mother’s estate.

In a further effort to have Mr. Johnson removed as administrator of Mrs. Bernstine’s estate, the plaintiffs contend that Mr. Johnson is of bad moral character. The trial court found the evidence of Mr. Johnson’s bad moral character to be insufficient to remove Mr. Johnson as administrator. After a review of the record, we agree. Burk was the only son who testified regarding his father’s bad moral character. He testified that his father stole Christmas presents from his grandmother’s house in December 2002 when his grandmother was out of town. He surmised that his father used the stolen items to get money to buy drugs, although, he had no proof that this occurred. Although he stated that his father used marijuana, he testified that he never actually saw his father use marijuana. It appears from Burk’s testimony that he has seen very little of his father over the years. Mention was made about Mr. Johnson’s various arrests and convictions for misdemeanor offenses during his life. However, there was nothing in the record revealing the nature of those arrests and/or convictions, such as court minutes or certified copies of convictions. Therefore, the ^argument that Mr. Johnson possessed bad moral character sufficient to remove him as administrator of Mrs. Bernstine’s estate is without merit.

IV.

CONCLUSION

For the reasons assigned above, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.

AMY, J., concurs in the result.


author: hTHIBODEAUX, Chief Judge. hAMY, J.,

text:
    DON M. BARRON CONTRACTOR, INC. v. CITY OF NATCHITOCHES, Louisiana.
    No. 2004-173.
    Court of Appeal of Louisiana, Third Circuit.
    July 7, 2004.
    Rehearing Denied Aug. 25, 2004.
    Daniel T. Murchison, Sr., Murchison and Murchison, L.L.C., Natchitoches, LA, for Defendant and Appellee — City of Natchi-toches, Louisiana.

      Mark Watkins Odom, Booth, Lockard, Politz, LeSage, Hayter & Odom, L.L.C., Shreveport, LA, for Plaintiff and Appellant — Don M. Barron Contractor, Inc.
    Mark Alexander Begnaud, McCoy, Roberts & Begnaud, Natchitoches, LA, for Intervenor and Appellee — CBC Services, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   hTHIBODEAUX, Chief Judge.

In this public bid law case, plaintiff-appellant, Don M. Barron Contractor, Inc. (Barron), the second lowest bidder on a city construction project, appeals the judgment of the trial court in favor of the City of Natchitoches, Louisiana (the City). The judgment dismissed Barron’s petition for injunctive relief recalling the temporary restraining order it obtained on December 12, 2003. Barron sought injunctive relief against the City to prevent it from contracting with CBC Services, Inc. (CBC), the apparent low bidder for the construction of an alternate water supply for the City. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUE

The issue in this case is whether the trial court properly applied La.R.S. 38:2212(A)(l)(a), also called the “Public Bid Law,” where the lowest bidder did not properly fill in the blanks of the bid form supplied by the City to potential construction bidders.

II.

FACTS

The facts of this case are not disputed. Sibley Lake provides water for the City. To supply an alternate water source for the city in times of drought, the City decided to connect Sibley Lake with Bayou Pierre. Thereafter, the City advertised for bids on the construction project that would link the two water bodies. Public bids were opened in November 2003. CBC and Barron were two of the seven companies that bid on the project. The City determined that CBC provided the lowest bid at $1,449,180.00, and Barron provided the second lowest bid at $1,502,633.50, a ^difference of $53,453.50. After a meeting of the City’s evaluation committee, the City chose to award the contract to CBC.

Barron objected to the City’s action awarding the contract to CBC. However, its objection was to no avail as the City Council voted unanimously to award the project contract to CBC because it was the lowest responsible bidder. Thereafter, Barron filed a petition for injunctive relief seeking a temporary restraining order and preliminary injunction against the City to enjoin it from executing the contract with CBC for the construction of the alternate water supply project. CBC intervened supporting the City’s position in this matter. Barron alleged that it, not CBC, was actually the lowest responsible bidder because CBC failed to complete the City’s bid form correctly.

The portion of the bid form regarding the price of the top soil required to complete the project is at issue. Portions of the City’s bid form required that the bidders provide prices based on the per unit cost of a listed item. In one column, the amount per unit of material is to be written in both words and numerals. The form provided that “[i]n case of discrepancy, the amount in words will govern.” The bid form stated that the project would require 250 cubic yards of top soil. Thus, in the unit price column, the bidders were required to write the price of one cubic yard of soil. In the last column, the bidder is required to provide the total cost by multiplying the cost per cubic yard of topsoil by 250 cubic yards. In the present case, CBC correctly noted the topsoil at $20.00 per cubic yard in the blank provided for placing the cost in numeric terms. However, in the blank provided for writing out the monetary term in words, CBC wrote out the total cost of providing topsoil for the project instead of writing the unit price of “twenty dollars and no/100.” Thus, from the words written in that blank, it appears that CBC quoted a $5,000.00 unit price for |3the topsoil, which, when calculated, results in a total cost, for just the project’s topsoil needs, of $1,250,000.00, which would make CBC’s bid clearly higher than Barron’s bid when the cost of the remainder of the project’s needs are taken into account. CBC did correctly write the total cost of $5,000.00 based on the $20.00 per unit of topsoil in the total column.

In response to Barron’s petition, the trial court entered a temporary restraining order. On December 18, 2003, after a hearing, the trial court recalled the temporary restraining order and dismissed Barron’s petition for injunctive relief. It is from this action by the trial court that Barron appeals.

III.

LAW AND DISCUSSION

Barron argues that the trial court committed legal error in finding that the public bid law does not prohibit the acceptance of bids that are not completed in conformity with the bid form provided by the public agency requesting bids. Barron asserts that the trial court erred in finding that CBC submitted the lowest bid where the unit price of the topsoil quoted by CBC would make CBC the highest bidder on the City’s water project.

Public contracts are governed by Title 38 of the Louisiana Revised Statutes, Public Contracts, Works & Improvements. Specifically, La.R.S. 38:2212 A(l) regulates the awarding of public works contracts and provides:

(a) All public work exceeding the contract limit as defined in this Section, including labor, materials, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised, and no such public work shall be done except as provided in this part.
(b) The provisions and requirements of this Section, [¿those stated in the advertisement for bids, and those required on the bid form shall not be considered as informalities and shall not be waived by any public entity.

Further, La.R.S. 38:2212, which requires that public contracts be advertised and competitive bids be obtained prior to a public entity contracting for public works, “is a prohibitory law founded on public policy. It was enacted in the interest of tax paying citizens of this state, and its purpose is to protect these citizens against contracts of public officials awarded through favoritism and possibly involving exorbitant and extortionate prices.” Mickey O’Connor Gen. Contractor, Inc. v. City of Westwego, 01-825, p. 4 (La.App. 4 Cir. 11/27/01), 804 So.2d 128, 130, writ denied, 01-3391 (La.3/15/02), 811 So.2d 908 (citations omitted). In Haughton Elevator Div. v. State, 367 So.2d 1161 (La.1979), the supreme court instructed that when awarding a public works contract, the public agency is vested with the power and discretion to determine the responsibility of the bidder and to reject all bids if none is satisfactory. The public agency cannot arbitrarily select a bid that is higher and reject bids that are lower. Mickey O’Connor Gen. Contractor, Inc., 804 So.2d 128. All that is required of the awarding public agency, after careful consideration of the bid document, is that it act in a manner that is not arbitrary. Williams v. Board of Sup’rs, 388 So.2d 438 (La.App. 2 Cir.1980).

In the present case, the City interpreted the CBC bid on the 250 cubic square yards of topsoil at $20.00 per unit for a total of $5,000.00. It chose to rely on the amount in the bid form written in numerals, which corresponded to CBC’s total cost for providing all of the topsoil, instead of the amount written in words. The primary issue presented for our review is whether this interpretation by the City is arbitrary or is an abuse of discretion.

There is no question that the CBC bid, with respect to the unit price of |Rthe topsoil, contained a discrepancy between the amount written in words and the amount written in numerals. There is also no question that CBC’s bid for the total cost of the 250 cubic yards of topsoil corresponded with the unit price amount written in numerals. The record indicates, and Barron points out, that note 2 of the bid form on page 8 stated that the amounts quoted are to be shown in both words and figures and that, in case of discrepancy, the amount shown in words would prevail. Barron argues that a discrepancy exists with respect to CBC’s bid on the unit price of topsoil; therefore, the $5,000.00 unit price written out in words should prevail over the $20.00 unit price written in figures.

To support its position, Barron cites La. R.S. 38:2220(A) which provides that public contracts entered into contrary to the Public Bid Law are null and void, and the requirements of the bid form cannot be waived by the public entity. La.R.S. 38:2212(A)(l)(b). Accordingly, because CBC did not complete the bid form as required and given that the City has no authority to waive the requirement, the City should not have entered into a contract with CBC for construction of the alternate water supply system.

Further, Barron argues that this court’s decision in V.C. Nora, Jr. Bldg. & Remodeling, Inc. v. State, through Dep’t of Transp. & Dev., 93-1469 (La.App. 3 Cir. 3/30/94), 635 So.2d 466 directly addresses the issue in the present case and is binding. We disagree. In Nora, the Louisiana Department of Transportation (DOTD) received a bid from Nora. Nora completed the form by writing out the total amount for the various items as opposed to the unit price. Like the bid form in the present case, some items were to be priced in total and some were to be priced per unit. However, unlike the present case, the bid form in Nora with respect to items to be priced by unit, did not have a blank or a column within which a bidder could write out | fithe price in numbers. Further, the Nora bid form had no column in which the unit price could be multiplied by the number of units needed to get a total cost for the amount of that item needed. Thus, there was no way for the DOTD to determine, from the document, whether the amount written in the blank was the unit price or total price. Apparently, the City in the present case addressed the problem of Nora in its bid form where it provided separate blanks for numerically writing the price and for writing the price in words as well as a separate column for the total. As we stated in Nora:

While under the present facts it is apparent Nora intended its bid to be $239,358 and not $41 million, this conclusion requires an interpretation outside the four corners of the bid. We cannot deny that by ordering DOTD to accept a bid subject to different interpretations, we may be injecting ambiguity into the public bidding process-[S]uch ambiguity would erode the objective basis upon which contracts are awarded and thereby open a “Pandora’s box” to the favoritism and corruption that the public bid laws were established to prevent.

V.C. Nora, Jr. Bldg. & Remodeling, Inc., 635 So.2d at 472. Finally, in Nora, DOTD was questioning compliance with its bid forms. Here, the City submits that CBC conformed substantially to the City’s bid requirements. To the extent that we must give deference to a governmental agency’s decision vis-a-vis a public bid contract, our decision is not inconsistent with Nora. See Haughton Elevator Div. v. State of La., 367 So.2d 1161 (La.1979).

In this case, the City did not have to go outside the four corners of the CBC’s bid form to determine CBC’s intent with respect to the cost of topsoil. All relevant information was provided on the bid form. Under the circumstances presented here, we find that the City’s interpretation of the question of the unit price of the topsoil in CBC’s bid form is reasonable and is neither arbitrary nor capricious. Based on the information provided on the bid form and a simple mathematical [ 7calculation, it was reasonable for the City to conclude that CBC’s unit price for the topsoil to be used in the project was $20.00 per unit as opposed to $5,000.00 per unit. The City did not abuse its discretion in determining that CBC met the bid requirements and was the lowest bidder.

The trial court found that CBC’s bid amount was apparent on the face of the document despite the discrepancy between the unit price written in words and the unit price written in numbers. Under the particular circumstances of this case, we agree with the trial court’s conclusion that the CBC bid was merely a clerical error easily corrected without the necessity of going outside of the four corners of the bid document.

rv.

CONCLUSION

Because Barron has failed to show that the City abused its discretion in its interpretation of CBC’s completed bid form or that it substantially deviated from the public bid law, the trial court acted correctly in denying Barron’s request for injunctive relief. Based on the foregoing, the judgment appealed from is affirmed. All costs of this appeal are assessed to plaintiff-appellant, Don M. Barron Contractor, Inc.

AFFIRMED.

AMY, J., concurs and assigns reasons.

hAMY, J.,

concurring.

In my opinion, the proper focus in the matter on appeal is whether the construction contract at issue was awarded to CBC as a result of arbitrary conduct on the part of the City of Natchitoches. It is apparent from the face of the bid sheet that the portion of CBC’s bid pertaining to topsoil totaled $5,000 and that this figure was derived by multiplying $20.00 by 250 cubic feet. It is likewise apparent that the City of Natchitoches readily understood what was intended in this portion of CBC’s bid, and, as such, it did not act arbitrarily in awarding the contract to CBC.

The appellant cites V.C. Nora, Jr. Building and Remodeling, Inc. v. State, Through Department of Transportation & Development, 93-1469 (La.App. 3 Cir. 3/30/94), 635 So.2d 466, for the proposition that the written words found on a bid sheet govern in situations in which written and numeric bids conflict. In reliance upon Nora, the appellant argues that the •written portion of CBC’s topsoil bid, “Five thousand dollars and zero cents,” is, in fact, CBC’s unit price for topsoil instead of the numeric “$20.00” that appears therein. In my opinion, however, the present appeal does not implicate Nora. In Nora, a panel of this court commented that a proper interpretation of the ambiguous bid in dispute would necessitate reference to information outside the bid sheet’s four corners; as such, the panel determined that the written figures on the bid sheet were to be used in calculation instead of the | ¡.numeric figures listed. However, in the present appeal, the bid at issue is not ambiguous. Moreover, the interpretation urged by the appellant would yield an obviously incorrect result.

Finally, it is worth remembering that an underlying purpose of the public bid law is to promote fair and responsible decision making by public entities.- It is my opinion that in the instant matter, the City of Natchitoches’ actions with respect to CBC’s bid were not in contravention of these principles.

Accordingly, I respectfully concur in the result reached by the majority.


author: | THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Delano SUTTON.
    No. 2004-88.
    Court of Appeal of Louisiana, Third Circuit.
    July 7, 2004.
    William E. Tilley, District Attorney— 30th Judicial District Court, Terry Wayne Lambright, Leesville, LA, for Plaintiff/Ap-pellee — State of Louisiana.

      G. Paul Marx, Lafayette, LA, for Defendant/Appellant — Delano Sutton.
    Delano Sutton, Vernon Parish Prison, Leesville, LA.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   | THIBODEAUX, Chief Judge.

The Defendant, Delano Sutton, pled guilty to attempted armed robbery and first degree robbery and was sentenced to two, eight year concurrent prison terms. He appeals on the basis of excessiveness and on the ground that, since a toy gun was used in the attempted armed robbery, the critical element of a “dangerous weapon” is not present.

For the following reasons, we affirm.

Excessiveness

The Defendant contends his sentences are excessive for a first offender. For first degree robbery, the Defendant was sentenced to eight years at hard labor, without benefit of probation, parole, or suspension of sentence. For attempted armed robbery, he was sentenced to eight years at hard labor, to run concurrent with the other sentence.

The trial court made the following comments at the sentencing hearing held on December 23, 2003:

Very well. The Court considers the sentencing guidelines under Article 894.1, the pre-sentence report and its contents, the fact that this defendant has no prior criminal history. The facts of this case are that this defendant, along with others, drove up into a parking lot at the Subway sandwich place on Fort Polk Entrance Road and other folks were out there, apparently, having what they called in the report here as a friendly boxing match. I don’t know how you can do that in a parking lot but, anyway, they were having some kind of a physical contest. Mr. Sutton got out of the vehicle and wanted to bet on who was going to win. Then, nobody would bet with him so he went back to the car, leaned in, talked to his buddies a minute and came back with a pistol and he demanded money from the contestants standing around in the parking lot. He got the money and that’s the basis of this charge. Now, Mr. Sutton knew one of the victims, had worked with this victim at a convenience store or McDonald’s or a sandwich store somewhere before. So, the facts of this |2case are different from the facts of the case of first degree robbery I had before me a few minutes ago. It does not appear that this was a planned robbery that was done by design but, rather, one that was precipitated by encouragement from his peers and, probably, exacerbated by the consumption of alcohol or some other substance. Nevertheless, the Court feels that there is an undue risk that during a period of suspended sentence or probation the defendant will commit another crime. A lesser sentence will deprecate the seriousness of the defendant’s crime. The Court can find no mitigating circumstances in this case.

The State argues the Defendant received a significant benefit from his plea bargain. The Defendant was charged with armed robbery and two counts of attempted armed robbery and would have faced a sentence of up to ninety-nine years, and forty-nine and one-half years for each attempt. However, by pleading to the reduced charge of first degree robbery, he reduced his exposure in half and reduced his mandatory minimum exposure from ten years to three years. The sentencing range for first degree robbery is imprisonment at hard labor for not less than three years nor more than forty years. La.R.S. 14:64.1. The Defendant’s sentence of eight years is in the low range of the potential sentence for first degree robbery. In addition, the Defendant pled to only one count of attempted armed robbery and received a low range eight-year sentence.

The twenty-four-year-old Defendant argues that he should have received minimum sentences because he is a first offender and because he was drunk when he took eleven dollars from the victim by using a toy gun. However, the facts recited at Defendant’s plea indicate he was armed with a “weapon,” and a toy gun was never mentioned.

The standard of review for Louisiana appellate courts in determining whether a sentence levied upon a particular defendant was excessive is the manifest-abuse-of-discretion standard. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. A trial judge has considerable latitude in imposing sentences within the | ^constraints provided by law. State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330. However, in State v. Marshall, 94-0461, p. 24 (La.9/5/95), 660 So.2d 819, 829, the Louisiana Supreme Court held that “[a] sentence may violate a defendant’s constitutional right against excessive punishment even if it is within the statutory limit,” citing State v. Sepulvado, 367 So.2d 762 (La.1979). Furthermore, under both United States and Louisiana law, a sentence is unconstitutionally excessive if it “(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977); State v. Handy, 96-2505, p. 1 (La.1/6/97), 686 So.2d 36, 37, citing State v. Dorthey, 623 So.2d 1276 (La.1993). The Louisiana Supreme Court has provided a list of several factors that appellate courts are to consider in ascertaining whether a sentence, by its excessive duration or ■severity, is grossly disproportionate to the underlying offense. State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973, citing State v. Telsee, 425 So.2d 1251, 1253 (La.1983). The appellate court’s analysis of the sentence is cumulative and centers on an amalgam of relevant factors. Id. Among these factors the supreme court notes, are “the nature of the offense and the offender, a comparison of the punishment with sentences imposed for similar crimes, the legislative purpose behind the punishment, and a comparison of the punishment provided for this crime in other jurisdictions.” Baxley, 656 So.2d at 980, citing Telsee, 425 So.2d at 1253-54.

State v. Wilturner, 03-719, pp. 5-6 (La.App. 3 Cir. 11/5/03), 858 So.2d 743, 746.

Given the near-minimum sentences the Defendant .received, we cannot say the trial court abused its discretion when imposing the Defendant’s sentences nor can we say that the sentences make no measurable contribution to acceptable penal goals. Accordingly, the Defendant’s sentences are not excessive.

Lack of Factual Basis For Attempted Armed Robbery

The Defendant claims the trial court erred by accepting his guilty plea as the factual basis for the plea did not include the dangerous weapon element of the crime of attempted armed robbery. He claims he was armed only with a toy gun.

|4The transcript of the Defendant’s plea bargain stated:

Your Honor, on the date of March 16th, 2003, here in Vernon Parish, Mr. Sutton did, in fact, have a weapon on him and took some money from a person by the name of Robert E. Fuller without the consent and authority and it was done by the use of intimidation and or coercion, Your Honor, and, likewise, did attempt to take some money from a person by the name of Robert E. Fuller without the consent and authority and it was done by the use of intimidation and or coercion, Your Honor, and like, did attempt to take some money from a person by the name of Jessica Sumney, who also was with or in the same group as Robert E. Fuller. Your Honor, these — and he at the same time he, likewise, had the same weapon. This did occur here in — both of them occurred here in Vernon Parish.

The Defendant acknowledges that the crime of first degree robbery does not require that the offender be armed with a dangerous weapon. However, he states the crime of attempted armed robbery does have such a requirement. The Defendant states that the factual basis for both crimes is mutually exclusive and the record does not indicate which crime the factual basis represented. The Defendant is incorrect as the recited facts describe both the robbery of the victim, and also the attempted robbery of a second victim.

Further, at the time of the Defendant’s plea or sentencing, there is no mention that he was armed with a toy gun. The Defendant did not object when the facts of the crime were recited, or when the offenses were explained. The Defendant did not argue that his plea was not knowingly or voluntarily made, nor does he argue that the State breached the plea bargain agreement. He does not claim lack of notice as to the nature of the charges against him, nor does he claim that the plea is constitutionally invalid for any other reason.

In State v. Collins, 95-1503 (La.App. 3 Cir. 5/8/96), 677 So.2d 500, writ denied, 96-1794 (La.8/27/97), 699 So.2d 45, this court, citing State v. Linear, 600 So.2d 113, 115 (La.App. 2 Cir.1992), stated:

| ¡/When a guilty plea is otherwise voluntary, there is no necessity to ascertain a factual basis for that plea unless the accused protests his innocence or for some other reason the trial court is put on notice that there is a need for such an inquiry. In that event, due process requires a judicial finding of a significant factual basis for the defendant’s plea. [North Carolina v.] Alford, [400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)]; Banks v. McGougan, 717 F.2d 186 (5th Cir.1983); Willett v. Georgia, 608 F.2d 538 (5th Cir.1979); State v. Powell, 584 So.2d 1252 (La.App. 2d Cir.1991).

Id. at 505.

In this case, the Defendant entered a guilty plea, not a plea of no contest. The trial court Boykinized the Defendant, informing him of his rights and of the possible penalties. The Defendant knowingly and intelligently entered his plea of guilty pursuant to the plea bargain. The Defendant did not contest the factual statement given at the plea, nor is there anything else in the record that would have placed the trial court on notice that a more detailed factual basis was required. Therefore, this assignment of error is without merit.

CONCLUSION

The Defendant’s convictions and sentences are affirmed.

AFFIRMED.