author: | sSUSAN M. CHEHARDY, Judge.

text:
    MARLER FORD COMPANY, INC. v. FORD MOTOR COMPANY and State of Louisiana through the Louisiana Motor Vehicle Commission.
    No. 04-CA-342.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.
    Rehearing Denied Nov. 18, 2004.

      Henry B. Bruser, III, Barbara Weems Melton, Gold, Weems, Bruser, Sues & Rundell, Eugene A. Ledet, Jr., Rivers, Beck, Dalrymple & Ledet, Alexandria, LA, William P. Connick, Craig V. Sweeney, Connick & Connick, L.L.C., Metairie, LA, Timothy J. Falcon, Marrero, LA, for Plaintiff/Appellant, Marler Ford Company, Inc.
    George J. Denegre, Jr., Liskow & Lewis, New Orleans, LA, Thomas W. Curvin, Carla W. McMillian, Sutherland Asbill & Brennan LLP, N.E. Atlanta, GA, for De-fendanVAppellee, Ford Motor Company.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   | sSUSAN M. CHEHARDY, Judge.

This appeal arises in an administrative proceeding before the Louisiana Motor Vehicle Commission (“the Commission”), in a dispute between an automobile dealer and the dealer’s manufacturer. The Commission ruled in favor of the manufacturer and the district court upheld the Commission’s judgment. We affirm.

Marler Ford, Inc. (“Marler”) sought a ruling from the Commission that Ford Motor Company (“Ford”) violated La.R.S. 32:1254 by insufficiently reimbursing Mar-ler for warranty work and by threatening to impose a surcharge on vehicles sold in Louisiana.

Under the franchise agreement between Ford and Marler, called the Sales and Service Agreement, Marler is required to perform labor and to provide parts in satisfaction of Ford’s warranties to purchasers of Ford vehicles. Under both the Agreement and under Louisiana law, Ford is obligated to reimburse Marler for labor and parts used by Marler to perform warranty work for Ford.

Specifically, Marler complained that Ford fails and/or refuses to reimburse Marler for warranty work at the rate Mar-ler charges its retail (non-warranty) customers, in that Ford uses different time standards for labor time than Marler |4uses and Ford requires excessive and burdensome paperwork support for Mar-ler’s part pricing. Marler also alleged thát Ford attempted to induce or coerce Marler to refrain from pursuing the complaint, by threatening to increase the price of new vehicles in order to recover additional amounts Ford pays on warranty repairs.

Marler has filed these claims before the Commission three times. The first complaint, No.2001-008, was filed on October 24, 2000. Marler dismissed the complaint in order to negotiate with Ford. The second complaint, No.2001-031, was filed on August 1, 2001. At Ford’s request, the matter was heard by three non-dealer commissioners, pursuant to La.R.S. 32:1253(A)(3). However, the second complaint was dismissed without prejudice as premature, because Marler had not submitted to Ford, and Ford had not denied, an actual claim for a specific warranty repair requesting payment at Marler’s retail prices.

In response to that ruling, Marler submitted claims to Ford requesting reimbursement for parts used in specific warranty repairs at Marler’s retail prices. Ford failed to approve Marler’s claims within the statutory 30-day period required by La.R.S. 32:1254(N)(6)(o)(iv). Similarly, Marler’s claims to Ford seeking reimbursement for labor utilized in warranty repairs at Marler’s retail prices were denied.

Marler filed its third complaint, No.2002-0028, on October 25, 2002. By stipulation of the parties, the third proceeding incorporated the evidence, exhibits and transcripts from the second proceeding. On Ford’s motion, the Commission preliminarily dismissed the portion of the complaint concerning the surcharge. After taking further evidence regarding warranty work reimbursement, the Commission rendered a decision in favor of Ford. The Commission ruled as follows:

FINDINGS OF FACT
1. Ford dealers in Louisiana are required to use the Ford Service Labor Time Standards manual for reimbursement for warranty labor.
2. It is neither unfair nor unreasonable for Ford to require dealers to use the Ford Service Labor Time Standards manual for reimbursement for warranty-labor.
3. Ford is paying Marler at the same labor rate for warranty work as Marler charges its retail customers.
4. Ford has a procedure in effect for dealers in Louisiana to obtain reimbursement for warranty parts at the same price charged by dealers to retail customers.
5. Ford’s procedure in Louisiana for dealers to obtain warranty parts reimbursement is neither unfair nor unreasonable.
6. Marler has not been unfairly refused reimbursement for warranty parts by Ford.
CONCLUSIONS OF LAW
1. Ford Motor Company has not violated La.R.S. 32:1254(N)(6)(0).
2. Marler’s claim challenging the possible imposition in the future of a surcharge on vehicles sold in Louisiana is premature, and such claim is therefore dismissed on the grounds of prematurity.

Marler appealed to the 24th Judicial District Court for the Parish of Jefferson, which affirmed the Commission’s ruling, and from there Marler appealed to this Court.

Marler makes the following assignments of error:

1. The district court erred in affirming the Commission’s finding that Ford did not violate La.R.S. 32:1254(N)(6)(f) and 32:1254(N)(6)(o) by paying Marler at a price of rate for warranty work that is less than that charged by Marler to retail customers of the dealer for non-warranty work of like kind.
2. The district court erred in affirming the Commission’s finding that Ford did not violate La.R.S. 32:1254(N)(6)(b) and 32:1254(N)(6)(e) by threatening to impose a surcharge on all vehicles sold in Louisiana should Ford be required to reimburse dealers on parts used in warranty work at retail prices.

| «STANDARD OF REVIEW

A person who is aggrieved by a final decision or order in an agency adjudication proceeding is entitled to judicial review in the district court, which is conducted by the court without a jury and on the record from the agency. La.R.S. 49:964(B), (F).

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the 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 statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

La.R.S. 49:964(G).

An appellate court’s review of a trial court’s judgment pertaining to a cause of action founded in the Louisiana Administrative Procedure Act is de novo, requiring this Court to conduct an independent review of the relevant facts and law. Nissan North America, Inc. v. Royal Nissan Inc., 01-113 (La.App. 5 Cir. 5/30/01), 794 So.2d 45, 48.

^RETROACTIVE APPLICABILITY OF STATUTORY CHANGES

Before discussing the merits of Marler’s claims, we must address a threshold issue raised by Ford. As an alternative ground to affirm the Commission’s decision, Ford argues that La.R.S. 32:1254(N)(6)(o) and 1254(N)(6)(f) cannot be applied retroactively to the pre-existing contractual relationship between Ford and Marler. The Sales and Service Agreement between Ford and Marler was executed in 1982. La.R.S. 32:1254(N)(6)(f) was enacted pursuant to Acts 1983, No. 539, effective January 1, 1984. La.R.S. 32:1254(N)(6)(o) was enacted by Acts 1990, No. 283, effective July 5, 1990. Ford argues that the subsequently-enacted provisions cannot be applied retroactively so as to require Ford to reimburse Marler for labor and parts used in warranty repairs at rates or prices other than as set out in Section 4 of the agreement between the parties.

In support of that argument, Ford cites a case from this Court, in which we held that the applicable subsections of La.R.S. 32:1254 may not be applied retroactively to contracts between dealers and manufacturers that were in existence at the time the statutes were enacted. Nissan North Am. v. Royal Nissan, 01-113, p. 3 (La.App. 5 Cir. 5/30/01), 794 So.2d 45, 48.

That argument, however, is made moot by an act passed in the 2004 regular legislative session. Acts 2004, No. 250, § 1, effective August 15, 2004, amended the definition of “franchise” in La. R.S. 32:1252(10) to state, in pertinent part:

(10)“Franchise” means any written contract or agreement between a motor vehicle dealer ... and a manufacturer ... by which the motor vehicle dealer ... is authorized to engage in the business of selling or leasing the specific makes, models, or classifications of new motor ... marketed or leased by the manufacturer ... and designated in the franchise agreement or any addendum thereto. For purposes of this Chapter, any written modification, amendment, or addendum to the original franchise agreement, which changes the rights and obligations of the parties to the original franchise | sagreement, shall constitute a new franchise agreement, effective as of the date of the modification, amendment, or addendum. [Emphasis added.]

Marler asserts this change in the law was intended to overturn contrary jurisprudence, such as Nissan North America, Inc. v. Royal Nissan Inc., supra. Marler argues that this amendment is curative and procedural, because it determines that all rights and obligations created by a motor vehicle franchise agreement are subject to all Louisiana laws in effect on the date of any revision of that agreement, and because it assists in determining rights and liabilities under motor vehicle franchise agreements.

We agree. Further, Marler established that between 1982, when its original agreement with Ford was executed, there have been several modifications, amendments and/or addenda to the original franchise agreement that changed the rights and obligations of the parties. Hence, the amended version of La.R.S. 32:1252(10) applies.

Accordingly, Ford’s argument against applying the statutory provisions at issue in this case to Ford’s agreement with Mar-ler is moot.

WARRANTY WORK REIMBURSEMENT

The applicable statute, La.R.S. 32:1254, states in pertinent part:

N. It shall be a violation of this Chapter:
* * *
(6) For a manufacturer of motor vehicles ...:
* * *
(f) To fail or refuse to pay a franchise dealer doing warranty work under the manufacturer’s published warranty a labor rate equal to but not in excess of the labor rate in effect in the particular dealership for such work when done for the public in general, i.e., nonwarranty work.
* * 5|5
(o)(i) To fail to adequately and fairly compensate its dealers for labor, parts, and other expenses incurred by such dealer to perform under and comply with a manufacturer’s or a distributor’s warranty agreement.
|fl(ii) In no event shall any manufacturer or distributor pay its dealers at a price or rate for warranty work that is less than that charged by the dealer to the retail customers of the dealer for nonwarranty work of like kind.
(iii) Warranty work includes parts and labor performed.

The dispute here arises because Marler contends that Ford does not reimburse Marler for warranty work at Marler’s retail rates, as required by law. The crux of the problem lies in the manner in which Ford reimburses Marler.

For parts used in warranty repairs, Ford pays dealers a 40% mark-up above dealer cost. Marler charges its non-warranty retail customers Ford’s Manufacturer’s Suggested Retail Prices (“MSRP”) plus 10% for parts. Marler states this averages approximately 92% above Mar-ler’s parts cost, so that what Ford pays Marler for a warranty part is approximately 27% less than Marler charges for that part in like-kind non-warranty repairs.

With regard to parts reimbursement, Marler’s complaint in essence is that Ford’s procedure is too time-consuming, burdensome and difficult to follow (“economically impossible and otherwise unworkable”). Ford’s procedure for reimbursement to the dealer for parts is a “part-by-part, claim-by-claim” system. It requires that, for each part used, the dealer provide documentation substantiating the price the dealer is requesting from Ford for reimbursement. The dealer must send Ford copies of the five most recent retail customer-paid repair orders in which such a part was used prior to the warranty-repair date, together with a calculation of the average price charged those customers, and copies of the invoices for the sales of those parts.

|10Absent such documentation, Ford reimburses the dealer pursuant to Ford’s Warranty Parts National Reimbursement Policy of 30%, 35%, or 40% above dealer cost, depending on model year of the vehicle.

Marler, however, wishes Ford to reimburse it based on Marler’s average markup for parts sold to retail customers, calculated from 100 sequential repair orders for retail repairs. The procedure Marler wishes to use is the same procedure accepted by Ford in New Jersey and Illinois. Ford contends that Marler may not use that procedure, however, because the average or estimate non-warranty price is not permitted under the “like kind” language of Louisiana’s statute, whereas the statutes in New Jersey and Illinois do not contain a “like kind” requirement.

Marler’s president, Daniel Webb, admitted at the hearing that when the earlier complaints were filed Marler’s computer system could not track parts by number. By the time of the hearing on the third complaint, Marler had a new system that was able to track part numbers on orders. Nevertheless, Webb stated, in attempting to follow Ford’s part-by-part/claim-by-claim procedure, Marler’s staff was unable to find five historical repair part sales on matching parts or even when using compatible part numbers. On cross-examination, however, he admitted the database being searched was limited because it consisted only of repairs made within a few months prior to the hearing since the new computer system was installed.

With regard to labor, Ford pays Marler the hourly rate that Marler charges its non-warranty customers ($65.25). What is disputed is the amount of time that should be allocated to each type of repair. Ford employs its own manual (Ford Service Labor Time Standards) to set out the time allocated for each type of repair. Marler, however, uses standards set out in another guide, the Motor Auto Repair Manual, to figure time charges for each type of repair. The times listed in the Motor manual are greater than in Ford’s manual.

Marler asserts it charges its non-warranty customers labor-time based on the Motor manual and, therefore, Ford should reimburse Marler for warranty work based on the Motor manual’s time standards.

Ford, however, asserts that commercial flat-rate manuals, such as the Motor manual, “are not based on actual time studies and may be no more than an arbitrary mark up to the Ford Labor Time Standards.” Ford states that if a dealer actually uses more time to perform a warranty repair, Ford dealers have the option of requesting additional reimbursement based on the actual amount of time used in the repair job. The dealer can charge the time as “M time,” which is any time used in a dealership repair facility that isn’t designated by a specific labor operation code.

Marler contends, however, that Ford will not allow it to use M time to charge additional time to any labor operation that has a defined time.

Craig Green, Ford’s former Warranty and Policy Manager, testified that 80% of dealer claims are processed electronically and result in overnight credit to the dealer for warranty claims. The general rule for reimbursing dealers for parts is cost plus 40% for vehicles, a figure used since the 1994 model year. Green said approximately half the states have statutes that allow for supplemental reimbursement to dealers for parts above the 40%.

|1gAs for the hourly labor rate for warranty repairs, Green testified Ford offers dealers two options: a retail rate option and a labor rate separation program. In the retail rate option, the dealer proves to Ford what it is charging retail customers and Ford reimburses the dealer at that rate for warranty repairs. The labor rate separation program, in contrast, allows dealers to have a warranty labor rate separate from a retail labor rate, and gives dealers an annual increase in their warranty costs every June based on the cost-of-living index and service costs in dealerships nationally. The labor rate separation program allows dealers to have a lower retail rate if they choose, so they need not increase their retail labor rate in order to get an increase from Ford on the warranty labor rate. Marler Ford is on the retail rate option.

Green said Ford reimburses dealers at the same warranty labor rate, referred to as an A-tech labor rate, regardless of the work being done, whether it’s “an engine overhaul by a very experienced, skilled technician or ... the porter taking the plastic off the seats of a new car.”

As for the Ford Service Labor Time Standards, Green testified they reflect an actual clocking of the time it takes to perform an individual repair, including additional time for driving in, driving out, finding keys, getting parts, etc. It accumulates all those times “over and above the wrench time” and adds a contingency of 20%. These time standards determine how much a dealer is reimbursed for warranty work.

Green said Ford has a procedure by which service technicians can request review of time standards they feel are inaccurate. Any dealer or dealer technician can request such a review.

Green said that commercial flat-rate manuals, such as Motor or Chilton’s, are published primarily for use by independent repair shops. They give time estimates |1sfor particular repairs on particular models of particular manufacturers. Green stated that Ford does not use the time standards in those manuals because Ford knows what a fair and reasonable labor time to perform a repair is, since Ford actually performs them to establish its own time standards.

Green read a notation from the 2002 Motor Parts and Labor Guide, Professional Service Trade Edition, which he admitted was included at Ford’s insistence:

The recommended times for the repairs described in this publication with respect to Ford and Lineoln-Mereury brand of products are not solely based on time studies conducted by Ford Motor Company. The repair times it recommends to its franchise dealers for warranty repairs are based on time studies for the diagnostic and repair procedures it conducts and publishes in Ford Motor Company service manuals. Accordingly, the recommended repair times specified in this publication are designed for after market repairs only.

Green testified further that Ford has a procedure to allow dealers to claim reimbursement for actual time in situations where repair takes longer than the Ford published time. It is called M time and it is fairly common on warranty claims. Green read from Ford’s October 2000 Warranty and Policy Manual, which said:

Actual time labor operation is used only when there is no published labor operation in the Ford Service Assigned Standards Manual or for highly unusual repair situations when additional time is required to complete the repair. A full description of the need for the actual time operation must be listed in the form and the request must be reasonable. Actual time labor operations are to be used as follows: body repair; labor operation not published; the published time operation requires additional time; or abnormal diagnosis time.

According to Green, if the technician followed the defined repair process steps, the job should be done with time to spare within the Ford time standard.

With respect to dealer reimbursement for parts, Green said Ford’s procedure reflects the statutory language regarding “like kind” repairs. For a dealer to get ^^supplemental reimbursement for warranty repair, Ford requires the dealer to provide documentation as to what it actually charged a retail customer for a like-kind product. The procedure does not require an exact match between parts, simply a part with the same base part number, a very broad category match. Green said it is Ford’s way of attempting to confirm what a like-kind repair actually cost a dealership in a retail environment.

According to Green, Ford could not set up this procedure to work on the normal warranty claims computer system because Ford has approximately 5,000 dealers, each of which can have more than one part-pricing policy across multiple parts and parts they have in their stores. Green said programming a computer system to comprehend all the differences is “beyond [Ford’s] capabilities.” To document a dealer’s hourly retail labor rate requires from 100 to 200 consecutive retail repair operations, depending on the size of the dealership.

Green knew of only two dealers that had submitted claims under the supplemental reimbursement procedure, one in New Jersey and one in Virginia. He said Ford reviewed, documented, and paid the claims, and those dealers continued the claims procedure for a period of time, but eventually stopped.

Green admitted that at the time of the hearing, there was no dealer in the United States being paid under the procedure. Green denied that the effect of the procedure had been to discourage dealers from filing warranty claims for reimbursement for parts at retail.

In reviewing the evidence and applying the statute, we find the Commission’s ruling is supported by a preponderance of the evidence. It is neither arbitrary nor capricious nor an abuse of discretion. The statute requires reimbursement at not less than the price or rate charged to retail customers for “nonwarranty work of like kind.” Thus, it is reasonable for Ford to insist on 11 ¡^verification of the dealer’s retail prices and rates. The Illinois/New Jersey averaging procedure advocated by Marler is inappropriate, considering not only the language of the Louisiana statute but also the wide variation in retail prices shown in Marler’s exhibits. We agree that the procedure may be burdensome, but Marler has not presented a reasonable alternative that is also fair to Ford. Accordingly, the Commission’s ruling on warranty work reimbursement is affirmed.

SURCHARGE

The applicable portion of La.R.S. 32:1254 states:

N. It shall be a violation of this Chapter:
* * *
(6) For a manufacturer of motor vehicles ...:
(b) To attempt to induce or coerce, or to induce or coerce, any motor vehicle dealer to enter into any agreement with such manufacturer ..., or to do any other act unfair to said dealer; or to threaten to cancel any franchise or any contractual agreement existing between such manufacturer ... and said dealer for any reason including but not limited to failure to meet performance standards;
* * *
(e) To resort to or use any false or misleading advertisement in connection with his business as such manufacturer of motor vehicles, distributor, wholesaler, distributor branch or factory branch, or officer, agent, or other representative thereof....

The language that Marler claims is an impermissible attempt to coerce Marler to desist from these proceedings was contained in a January 19, 2001 letter to Daniel Webb, President of Marler Ford, from Phil Meilak, Reimbursement Policy & Legal Liaison for Ford Motor Company. In the letter Meilak set out Ford’s procedure for warranty reimbursement at retail levels. At the end of the letter, in a section titled Ford’s Cost Recovery, Meilak stated:

To recover the higher cost of doing business in Louisiana as a result of paying warranty amounts higher than It (¡provided for in its National Parts Policy, Ford plans to increase the price of new vehicles sold to all dealers in Louisiana. Ford will notify all authorized Ford and Lincoln Mercury dealers in Louisiana in advance of the amount and timing of any vehicle surcharge.

Later, however, after Marler had filed complaints with the Commission, Ford asserted the surcharge complaint was premature, stating, “Ford has not levied any surcharge in Louisiana and has no intent to do so at the present time.” Ford contends its statement, above, was a reservation of the right to levy a surcharge on new vehicles sold to dealers in Louisiana if Ford incurs additional costs for reimbursing dealers in Louisiana for warranty work. Ford says it currently has no plans to levy any surcharge in Louisiana because to date Ford has not incurred any additional costs associated with warranty reimbursement in Louisiana.

Moreover, even if Ford were to incur any additional costs associated with warranty reimbursement in Louisiana, Ford would have to consider, among other things, the additional costs that would be incurred and how such costs would be recouped, if at all, in determining whether Ford would increase the price of new vehicles sold to Louisiana dealers.

Craig Green testified that the “cost recovery” language in Meliak’s letter of January 19, 2002 was sent with Green’s approval; Meliak worked under Green’s supervision at the time. Green said the language was included in the letter so there would be no surprises in the event Ford instituted a cost recovery surcharge. Ford did not intend it as a threat.

Accordingly, Ford asserts that the Commission properly dismissed Marler’s complaint about the surcharge, because it would have required the Commission to issue an advisory opinion based on facts not in existence and, therefore, premature.

Considering all the facts, we find the Commission correctly dismissed the surcharge complaint.

117For the foregoing reasons, the judgment of the district court upholding the ruling of the Louisiana Motor Vehicle Commission and dismissing the complaint of Marler Ford, Inc. is affirmed. Costs of this appeal are assessed against Marler Ford, Inc.

AFFIRMED.

      . The issues in this case are governed by the laws on distribution and sale of motor vehicles, La.R.S. 32:1251-1261.

      . Pursuant to La.R.S. 32:1253(1) (as amended by Acts 1997, No. 211, § 1), the Commission’s domicile for being sued is Jefferson Parish.

      . In the states of Maine, New Jersey and Illinois, however, Ford pays dealers' retail parts prices due to court judgments and threatened litigation.

      . Marler admitted there are exceptions to the general rule in its markup on parts. Marler gives discounts to some fleet customers, government agencies, to some customers on a case-by-case basis, and also discounts highly competitive items.

      . Of the sample 100 presented as evidence, from which Marler derived its figure for “average mark-up,” the lowest mark-up was 52.78% and the highest mark-up was 209.92%.

      . “In no event shall any manufacturer ... pay its dealers at a price or rate for warranty work that is less than that charged by the dealer to the retail customers of the dealer for nonwarranty work of like kind." (Emphasis added.) La.R.S. 32:1254(N)(6)(o)(ii).

      . The custom of the industry is to use a flat-rate manual to give estimates to customers prior to the repair. These manuals list a time for every type of repair. The repair shop charges the customer for the flat-rate time, regardless of the actual time used in making the specific repair.

      .Marler admitted that it occasionally gives discounts on labor costs to non-warranty customers and for highly competitive maintenance services. Thus, Marler admitted, it does not use the Motor manual flat-rate labor time for 100% of its repair jobs.

      . We note that the applicable statutes in both Illinois and New Jersey employ different language than does Louisiana's. For example, they use the term "predominant retail rate.”


source: Caselaw Access Project

author: L SULLIVAN J. | LAUNDERS, J.,

license: Public Domain

text:
    Olivia LYNCH v. PROGRESSIVE INSURANCE COMPANY, et al.
    No. CA 04-257.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 20, 2004.

      Edward Alan Kaplan, Attorney at Law, Alexandria, LA, for PlaintifflAppellee: Olivia Lynch.
    Ray F. Lucas, III, Attorney at Law, Lafayette, LA, for Defendants/Appellants: Safeway Insurance Company Douglas Sib-ley.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   L SULLIVAN J.

While operating a vehicle owned by Harriet Gonzalez, Douglas Sibley struck a house rented and occupied by Olivia Lynch. Ms. Lynch filed suit against Mr. Sibley; his insurer, Safeway Insurance Company (Safeway); and the insurer of the Gonzalez vehicle, Progressive Insurance Company (Progressive). After settling with Progressive, Ms. Lynch obtained a judgment in her favor against Safeway and Mr. Sibley for Safeway’s policy limits of $10,000.00. Safeway and Mr. Sibley appeal, arguing that the trial court erred (1) in not granting Safeway credit for the remaining limits of the Progressive policy, which provided primary coverage for the accident, and (2) in not making specific findings as to the amount of special damages and general damages sustained by Ms. Lynch. Because the trial court’s reasons for judgment are confusing and incomplete, we are unable to determine what, if any, credit the trial court applied in rendering judgment against Safeway and Mr. Sibley. Accordingly, we remand for clarification with instructions outlined below.

Facts

The accident occurred on May 12, 2002, when Mr. Sibley, while driving with two passengers in the Gonzalez car, lost control of the vehicle and struck Ms. Lynch’s residence, a brick home that she was renting. At the time of the accident, the fifty-two-year-old Ms. Lynch was standing in the living room, where she was struck in the back, neck, and legs by flying bricks and debris.

That day, Ms. Lynch was transported by ambulance to the Huey P. Long Emergency Room in Pineville, Louisiana, where she was treated for neck, leg, and back pain. Two days later, she sought additional treatment at St. Frances Cabrini Hospital (Cabrini) in Alexandria, Louisiana, for pain and swelling in her upper back. After she was discharged from Cabrini, she was treated for approximately three |2months by Dr. Gerald Leglue, who also prescribed physical therapy. Dr. Leglue concluded that Ms. Lynch suffered from a cervical sprain/strain, thoracic strain, and multiple abrasions and contusions in the upper back. He also diagnosed lumbar strain, lumbar facet joint sprain, right iliolumbar sprain, right piriformis muscle strain, and edema in both legs. Ms. Lynch’s medical expenses totaled $7,080.28, plus an additional $67.64 in copying costs. She also missed two weeks of work, resulting in lost wages of $652.00.

The collision caused significant damage to Ms. Lynch’s residence, rendering it uninhabitable. Despite Progressive’s promises that living arrangements would be provided for her, no accommodations were made. As a result, Ms. Lynch and her son lived in a car for about four days. She also claims that several items were stolen from her home because the structural damage made it impossible to secure it from the public. After collecting enough money for a moving van, Ms. Lynch moved in with her cousin for about two and a half weeks before finding a new place to live.

The Progressive policy covering the Gonzalez car had bodily injury limits of $25,000.00 per person and $50,000.00 per accident. Mr. Sibley’s Safeway policy limits were $10,000.00 per person and $20,000.00 per accident. Progressive settled with the two passengers in the Gonzalez vehicle for a total of $81,827.50, leaving $18,172.50 in coverage for Ms. Lynch’s claim. After filing suit, Ms. Lynch dismissed Progressive after settling with it for $10,000.00 and proceeded to a quantum-only trial against Safeway and Mr. Sibley. In awarding Ms. Lynch the Safeway policy limits of $10,000.00, the trial court stated:

|3I understand that. So when you take this to Lake Charles, understand the Court’s reasoning. But this woman has suffered excessive damages. There are two separate legal entities here that were both liable under the circumstances. I will not punish you by giving you the excess of your carriage, but I will deny you credit. Because this woman was damaged beyond the amount of — that she should be able to recuperate for the damages, inconvenience and losses that she has suffered.
So, this Court, at this time, will grant her the policy limits of Safeway, which is Ten Thousand Dollars. And this Court will farther add that even — even there, that is not adequate. And that’s why I wanted to be sure that when I put my pen to it, that I wouldn’t just be whistling Dixie, and giving her something she cannot have.

(Emphasis added.)

Discussion

In their first assignment of error, Safeway and Mr. Sibley argue that the trial court erred in not granting them a credit for the remaining $18,172.50 of coverage under the Progressive policy, as that policy provided primary coverage for the accident. In their second assignment of error, they argue that the trial court erred in not making specific findings as to the amounts of general and special damages, resulting in the denial of a credit on the judgment rendered.

Safeway and Mr. Sibley contend that the trial court awarded Ms. Lynch Safeway’s policy limits of $10,000.00 because it found that her damages exceeded only those limits, without specifying the amount of her total damages. Because Ms. Lynch could collect from Safeway only if her damages exceeded $18,172.50, Defendants argue that the trial court committed an error of law in not granting them a credit in that amount, which error requires a de novo determination of damages in this court. Ms. Lynch responds that the trial court did, in fact, give Defendants proper credit, as its reasons for judgment indicate that it intended to award Ms. Lynch an Lamount in excess of $28,172.50, which amount she contends is supported by the record under a manifest error review.

We agree with Safeway and Mr. Sibley that they are entitled to a credit of $18,172.50, the amount of remaining coverage under the Progressive policy. At the time of the accident, Mr. Sibley was driving a non-owned vehicle, and his Safeway policy clearly provides that “the insurance with respect to ... a non-owned vehicle shall be excess over any and other valid and collectible insurance.” See also Slocum v. Am. Cas. Ins. Co., 189 So.2d 299 (La.App. 3 Cir.1966). We also agree that the trial court erred in not making specific findings as to “[t]he total amount of special damages and the total amount of general damages sustained as a result of the injury, death or loss, expressed in dollars ...” as required by La.Code Civ.P. art. 1812(C)(4) (emphasis added) and La.Code Civ.P. art. 1917.

However, we find that the trial court’s reasons are unclear as to whether Defendants were awarded the proper credit of $18,172.50, and we are unwilling to assume that the trial court intended to award damages in excess of $28,172.50. The trial court found that Ms. Lynch sustained “excessive damages,” but stopped short of identifying the figure they exceeded, stating, “Because this woman was damaged beyond the amount of — that she should be able to recuperate for the damages, inconvenience and losses that she has suffered.” (Emphasis added.) Hence, it is unclear whether the trial court intended those damages to be in excess of $10,000.00 but under $18,172.50 (as Defendants argue) or in excess of $28,172.50 (as Ms. Lynch argues).

“In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” La.Civ.Code art. 2824.1. | ¡^Furthermore, when reviewing questions of law, appellate courts are to determine if the trial court’s ruling was legally correct or not. Cleland v. City of Lake Charles, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs denied, 03-1380 (La.9/19/03), 853 So.2d 644 and 03-1385 (La.9/19/03), 853 So.2d 645. In the present case, due to the trial court’s confusing and incomplete reasons, we are unable to determine whether the trial court awarded the Defendants a credit to which they were entitled. Whether or not this credit was awarded affects the standard of appellate review to be applied. Given the discretion that the trial court should be afforded in the assessment of damages, we find the most prudent course of conduct is to remand the case with instructions that the trial court comply with La.Code Civ.P. arts. 1917 and 1812(C)(4) by making specific findings as to Ms. Lynch’s special and general damages, subject to the credit set forth in this opinion.

Decree

For the above reasons, the case is remanded with instructions that the trial court comply with La.Code Civ.P. arts. 1917 and 1812(C)(4) and for further proceedings consistent with this opinion. Costs of this appeal are assessed equally to Plaintiff and Defendants.

REMANDED WITH INSTRUCTIONS.

SAUNDERS, J., concurs in the result and assigns written reasons.

| LAUNDERS, J.,

concurs in the result.

Based upon the remarks made by the trial judge when ruling on this matter from the bench, I believe that an award in excess of $28,172.50 was intended. The judge proclaimed:

I understand that. So when you take this to Lake Charles, understand the Court’s reasoning. But this woman has suffered excessive damages. There are two separate legal entities here that were both liable under the circumstances. I will not punish you by giving you the excess of your carriage, but I will deny you credit. Because this woman was damaged beyond the amount of — that she should be able to recuperate for the damages, inconvenience and losses that she has suffered.
So, this Court, at this time, will grant her the policy limits of Safeway, which is Ten Thousand Dollars. And this Court will further add that even — even there, that is not adequate. And that’s why I wanted to be sure that when I put my pen to it,' that T wouldn’t just be whistling Dixie, and giving her something she cannot have, [emphasis added].

The above quoted language evidences the trial judge’s belief that Plaintiff suffered damages in excess of $28,172.50. I believe that the trial judge effectively gave the credit of $18,172.50 and also awarded the $10,000.00 limit of the Safeway. I do not find this award to be manifestly erroneous. Because I believe the trial judge awarded the maximum amount of damages available under the relevant policies, I do not feel that a remand is necessary, I do, however, concur in the result in the interest of judicial economy and in full confidence that the parties’ will not be prejudiced by a remand.

      . Although Defendants state in their appellate brief that they are entitled to a credit of $18,712.50, they apparently reached this figure by transposing two numbers.


author: LPETERS, Judge.

text:
    Captain William WOOD, et al. v. Ruth FONTENOT, Mayor, City of New Iberia, et al. Officer Kevin Bourque, et al. v. Ruth Fontenot, Mayor, City of New Iberia, et al.
    Nos. 04-1174, 04-1175.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 20, 2004.
    Daniel L. Avant, Avant & Falcon Baton Rouge, LA, for Captain William Wood & New Iberia Policeman’s Association, Officer Kevin Bourque, Officer Brandon Williams and Officer David McAnally.
    Charles L. Patín, Jr., Keane, Miller, Hawthorne, Darmond, MeCowan & Jar-man, LLP, Baton Rouge, LA, for Ruth Fontenot, Mayor, City of New Iberia, City of New Iberia and Board of Trustees of City of New Iberia.
    Louis L. Robein, Jr., Robein, Urann & Lurye, Metairie, LA, for Professional Firefighters.
    Joseph Ferguson, New Iberia, LA, and Henry A. Bernard, Jr., and Bruce D. Beach, Oats & Hudson, Lafayette, LA, for Iberia Parish Law Enforcement District.
    Court composed of BILLIE C. WOODARD, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   LPETERS, Judge.

These consolidated matters arise from the action of the Board of Trustees of the City of New Iberia, Louisiana (City), in implementing Special Ordinance No. 2004-131-2 (Ordinance). This Ordinance effected a reduction in the size of the City Police and Communications Departments by amending the annual appropriations ordinance to reduce the funds appropriated for the affected departments and appropriating sufficient sums to fund a Cooperative Endeavor Agreement (Agreement) between the City and the Iberia Parish Law Enforcement District (District). The Agreement provided that the District would assume the duties of the City Police Department over the next ten years in exchange for $29,000,000.00 in compensation. The effect of the Ordinance and Agreement is to eliminate all but ten of the eighty-three city police positions.

Captain William Wood of the City Police Department and the New Iberia Policemen’s Association, Local 152 (the Wood plaintiffs), filed a petition for injunc-tive relief against the City, its Mayor, and the Board of Trustees (referred to in the petition as the New Iberia City Council), asserting that the Ordinance is unconstitutional and in direct conflict with the provisions of the Louisiana Constitution. The Woods plaintiffs sought a temporary restraining order enjoining the defendants from applying, implementing or enforcing the Agreement until a hearing on the preliminary injunction could be held.

In a separate action, City Police Officers Kevin Bourque, Brandon Williams and David McAnally (the Bourque plaintiffs) also filed for injunctive relief against the City, the Mayor, the City Board of Trustees, and the District. The Bourque plaintiffs also asserted that the Ordinance is unconstitutional. The trial court consolidated the two matters and held a hearing on the requests for preliminary injunctive relief on July 2, 2004. On July 6, 2004, the trial court issued written reasons for judgment denying the requests for preliminary injunctions, and on July 8, 2004, reduced that judgment to writing. Both plaintiffs timely appealed that judgment.

The matter is now before this court because the defendants have moved to dismiss the plaintiffs’ appeals, asserting that they are moot. The defendants maintain that after the trial court rendered its judgment, the Mayor effected a reduction in force or layoff and advised the secretary of the local fire and police civil service board and the Chief of Police of the action by means of a letter. They further assert that, 1 ¡following this action, the Mayor, on behalf of the City, and New Iberia Sheriff Sid Hebert, on behalf of the District, executed the Agreement. Accordingly, the defendants argue that the consolidated appeals are now moot and must be dismissed.

As noted by this court in Sutton's Steel & Supply, Inc. v. BellSouth Mobility, Inc., 2000-511 (La.App. 3 Cir. 12/13/00), 776 So.2d 589, 592, writ denied, 2001-0152 (La.3/16/01), 787 So.2d 316,

Appellate courts are courts of record, and we must render judgment based on the record on appeal. La.Code Civ.P. art. 2164; Willis v. Letulle, 597 So.2d 456 (La.App. 1 Cir.1992). We may not review evidence that is not in the record, and we may not receive new evidence. Willis, 597 So.2d 456.

Thus, the evidence submitted by the defendants in support of their motion to dismiss the plaintiffs’ appeals is not properly before this court. Accordingly, the defendants’ motion to dismiss these appeals is hereby denied.

MOTION TO DISMISS APPEALS DENIED.


author: |, AMY, Judge.

text:
    STATE of Louisiana v. Carlton G. MONCEAUX.
    No. 04-449.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 20, 2004.

      David W. Burton, District Attorney, Richard Frederick Blankenship, Assistant District Attorney, DeRidder, LA, Charles C. Foti, Jr., Attorney General, Baton Rouge, LA, for Appellee: State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant: Carlton G. Moneeaux.
    Carlton G. Moneeaux, Lake Charles, LA, pro se.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN B. SCOFIELD , Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore

   |, AMY, Judge.

The defendant was convicted of six counts of possession of a controlled dangerous substance, Schedule II, with the intent to distribute, violations of La.R.S. 40:967 and two counts of possession of a controlled dangerous substance, Schedule IV, with the intent to distribute, violations of La.R.S. 40:969. The defendant was sentenced to ten years at hard labor and ordered to pay $1,000 fines and court costs on each of the convictions for Counts One through Six. On counts Seven and Eight, the defendant was sentenced to five years at hard labor and ordered to pay fines of $1,000 plus court costs. The defendant appeals the convictions. For the following reasons, we affirm the defendant’s convictions and affirm in part and vacate in part, the sentences imposed. We remand the matter for the limited purpose of resen-tencing with orders to impose determinate sentences on Counts Seven and Eight.

Factual and Procedural Background

The drug-related convictions of the defendant, Carlton G. Moneeaux, stem from a burglary at the Rosepine Family Pharmacy in Rosepine, Louisiana. The burglary was discovered on the morning of October 3, 2002. Although the pharmacy was closed at the time due to the approach of Hurricane Lili, Pharmacist Matthew Peterson arrived at the business to fill an emergency prescription. Pharmacist Peterson explained that an assortment of drugs were taken from various parts of the pharmacy, including the narcotics cabinet.

According to the record, at approximately the same time of the discovery at the pharmacy, approximately 9:00 a.m., the defendant and his brother, Charles Mon-ceaux, were involved in a minor automobile accident in nearby DeRidder. According to witnesses, the driver of the vehicle, later identified as the defendant’s brother, Charles Moneeaux, fled the scene of the accident on foot, running behind a nearby building. One of these witnesses, who was working at a nearby office, | ¡^explained that the passenger in the vehicle, who was identified as the defendant, entered the driver’s seat of the vehicle and drove the car behind the braiding. The witness’ coworker explained that the vehicle reappeared approximately ten minutes later, returning to the accident scene.

According to the investigating officer, the defendant initially informed him that he was driving the vehicle when it struck the other vehicle involved, but then later admitted that his brother was driving. The officer testified that the defendant explained that his brother fled the scene due to some previous problems with the police. The record indicates that the defendant was then arrested for hit and run and obstruction of justice and taken to the DeRidder Police Department.

A warrant search for the defendant’s brother revealed an outstanding probation warrant. Following a search of the area, police officers discovered Charles Mon-eeaux sitting on a curb, close to the scene of the accident, with a briefcase in his lap and two large trash bags at his side. Testimony indicates that the trash bags were found to be full of bottled and boxed pharmaceuticals, some of which bore the name of Rosepfne Family Pharmacy. When the briefcase was opened, it also contained a quantity of pills.

The defendant was charged by amended bill of information with six counts of possession of a controlled dangerous substance with intent to distribute, Schedule II, violations of La.R.S. 40:967, and two counts of possession of a controlled dangerous substance with intent to distribute, Schedule IV, in violation of La.R.S. 40:969. Following an August 2003 trial, a jury found the defendant guilty as charged on all counts. The trial court subsequently sentenced the defendant to ten years at hard labor, and a one thousand-dollar fine, plus court costs, for each of Counts One through Six. On Counts Seven and Eight, the trial court sentenced the defendant to hfive years at hard labor, and a one thousand-dollar fine, plus court costs. All sentences were ordered to run concurrently. A motion for reconsideration of the sentence was denied.

On appeal, the defendant advances the following assignments of error:

I. The Trial Court erred in admitting other crimes evidence at Appellant’s trial.
II. The. Trial Court erred in finding Appellant guilty of possession of a controlled dangerous substance with the intent to distribute.
III. The Trial Court erred in overruling defense counsel’s objections to the value of the drugs and the admission of drugs Appellant was not charged with possessing.

Discussion

Error. Patent

As is required by La.Code Crim.P. art. 920, we have reviewed this matter for errors patent on the face of the record. Our review reveals one such error, namely the imposition of indeterminate sentences on Counts Seven and Eight. With regard to these sentences, the trial court stated:

[A]nd serve five years at hard labor with the Department of Corrections and pay fines of $1,000 plus court costs on Counts 7 and 8. All sentences are to run concurrent, and you shall receive credit for all time served prior to the imposition of this sentence.

Although the term “fines” indicates that a separate, $1,000.00 fine was imposed on both Count Seven and Count Eight, the trial court’s sentence is unclear whether separate, five-year sentences are imposed for Counts Seven and Eight. We conclude that the sentence, as phrased, is indeterminate and, therefore, violative of La.Code Crim.P. art. 879. Accordingly, we vacate the sentence(s) on Counts Seven and Eight and remand this matter for imposition of a determinate sentence on each of these two | ¿counts. See La.Code Crim.P. art. 879; State v. Taylor, 01-680 (La.App. 3 Cir. 11/14/01), 801 So.2d 549.

Sufficiency of the Evidence

The defendant argues the State failed to prove beyond a reasonable doubt that he was in possession of the drugs, whether actual or constructive. The defendant also contends that the State’s evidence was insufficient to establish that he had the intent to distribute the drugs.

Defendant was charged with a total of eight counts of possession of a controlled dangerous substance, Schedules II and IV drugs. See La.R.S. 40:967 and 40:969. The drugs defendant was charged with being in possession of were methadone, meperidine, oxycodone, morphine, hydro-codone, codeine, alprazolam, and diazepam in pill form. According to La.R.S. 40:964, the first six are Schedule II substances, while the latter two are classified as Schedule IV. A pharmacist’s log indicates the recovery of many thousands of pills from the bags and briefcase.

The offense of possession with intent to distribute Schedule II substances is regulated by Louisiana Revised Statutes 40:967 which provides, in pertinent part:

A. Manufacture; distribution. Except as authorized by this Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II[.]

With regard to Schedule IV substances, La.R.S. 40:969 provides, in pertinent part:

A. Manufacture; distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute or dispense or possess |swith intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule IV[.]

On appeal, we consider a sufficiéncy claim under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), wherein the United States Supreme Court explained that the reviewing court must consider whether a rational trier of fact could have found the elements of the offense proven beyond a reasonable doubt. In doing so, the reviewing court must consider the evidence in the light most favorable to the State. Id.

With regard to possession, this court held in State v. Magdalena, 03-618, p. 4-5 (La.App. 3 Cir. 10/1/03), 856 So.2d 1246, 1249-50, writ denied, 03-3342 (La.3/26/04), 871 So.2d 347:

[T]he State is not required to prove that the defendant was in actual possession of the cocaine; instead, the defendant may be found to have been in constructive possession. State v. Scott, 00-113 (La.App. 3 Cir. 6/7/00), 768 So.2d 112, citing State v. Montgomery, 98-775 (La.App. 3 Cir. 1/27/99), 734 So.2d 650. If the State’s case is premised upon constructive possession, the State must prove that the controlled dangerous substance was within the defendant’s dominion and control or in his joint possession. Scott, 768 So.2d 112, citing State v. Trahan, 425 So.2d 1222 (La.1983), and State v. President, 97-1593 (La.App. 3 Cir. 7/15/98), 715 So.2d 745, writ denied, 98-2115 (La.12/11/98), 729 So.2d 590. Joint possession is described in State v. Segura, 546 So.2d 1347 (La.App. 3 Cir. 1989), as two people willingly and knowingly sharing a direct right in the thing and an ability to exercise control over it. Constructive possession is established by reference to the factors set forth in State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910, in an examination of the facts at hand: for example, the defendant’s knowledge that illegal drugs are in the area; the defendant’s relationship with the person who has physical possession of the drugs; the defendant’s access to the area where the drugs were found; evidence of recent drug use by the defendant; and the defendant’s physical proximity to the drugs. A sixth factor given parenthetical reference in Toups is “evidence that the area was frequented by drug users.” Toups, 833 So.2d at 913, citing Bujol v. Cain, 713 F.2d 112 (5th Cir.1983), cert. denied, 464 U.S. 1049, 104 S.Ct. 726, 79 L.Ed.2d 187 (1984). In addition, the State must prove the defendant’s guilty knowledge. Toups, 833 So.2d at 913. However, the mere presence of someone in the area where the controlled dangerous substance is located or mere association with the person found to be in possession of the controlled dangerous substance does not constitute constructive possession. Id.; see also State v. Walker, 369 So.2d 1345 (La.1979), State v. Cann, 319 So.2d 396 (La.1975).

In support of its case, the State presented the testimony of several officers of the DeRidder Police Department who either responded to the accident scene or who discovered Charles Monceaux along with the drugs at issue. Sergeant Chris Rudy testified that when he arrived at the scene of the accident, the defendant was waiting in a nearby parking lot. According to Sergeant Rudy, the defendant initially stated that he was the owner of the car and that he struck another vehicle as he pulled out of a side street onto the main road. However, after being confronted with a witness’ statement that another person, who had fled, was in the car, the defendant admitted his brother, Charles, had been with him. Sergeant Rudy also testified that the defendant later admitted that his brother had been the driver of the vehicle and eventually reported that his brother had prior problems with the law, which led him to leave the scene. The defendant also told Sergeant Rudy that he and his brother had driven north from Lake Charles the night before, fleeing Hurricane Lili. He stated that they had a sister in DeRidder, but they could not locate her so they spent the night in the car.

Tonya Jarrell and Priscilla Dearmon, employees of a business located on the main road where the accident occurred, testified as to the movements of the men following the accident. Ms. Jarrell saw the defendant and a man exit the car and hold a brief conversation on the passenger’s side of the car. According to Ms. Jarrell, the man who was driving left the scene and ran past her building. Ms. Dearmon went outside to see where the man had gone and saw him run behind the nearby K-Mart building. Both testified that, afterward, the man identified as the defendant drove the vehicle behind the K-Mart building. Ms. Dearmon testified that approximately eight to ten minutes later, the defendant drove from behind the building and across the|7street where the police had arrived at the scene.

According to Officer Ricky Johnson, Charles Moneeaux was discovered sitting on a curb beside the First Franklin Financial building. Next to him were two large, black trash bags and on his lap was a briefcase. Officer Johnson testified that it was apparent that the trash bags were full of bottles and boxes. When asked if he would open the briefcase, Charles Mon-ceaux told Lieutenant John Gott that he did not know the combination and that the briefcase belonged to his brother, Carlton.

Lieutenant Gott testified that when the defendant was questioned as to whether the briefcase was his, he confirmed it was. The lieutenant then asked for the combination and the defendant told him the combination. When the lieutenant opened the briefcase, he found drugs, both in the original bottles and in plastic baggies.

Although the defendant argues in brief that there was nothing presented at trial to indicate he was aware of the drugs found in his brother’s possession, the facts, when viewed in a light most favorable to the prosecution as required by the standard of review, indicates the defendant’s awareness of the contents of the trash bags and his briefcase.

Ms. Jarrell and Ms. Dearmon testified that after Charles Moneeaux ran behind the K-Mart building, the defendant left the scene of the accident in the car before the police arrived and drove behind the building. Ms. Dearmon explained that he reemerged eight to ten minutes later. Given these facts, it would not be unreasonable for the jury to conclude that the drugs were taken from the vehicle after the car disappeared behind the K-Mart building and before the defendant returned to talk to the police. Accordingly, the record supports the finding that the defendant had joint possession of the drugs or at the least that the defendant exercised dominion and |scontrol sufficient to constitute constructive possession of the drugs, even though it was his brother who was discovered in actual possession.

We also find evidence sufficient to support the finding that the defendant possessed the drugs with the intent to distribute. Intent to distribute can be inferred from the circumstances surrounding the arrest. State v. Hearold, 603 So.2d 731 (La.1992). In Hearold, the Louisiana Supreme Court explained that: “Intent is a condition of mind which is usually proved by evidence of circumstances from which intent may be inferred.” Id. at 735. The court further listed five factors useful in determining whether circumstances are such that intent to distribute can be inferred:

1) [Wjhether the defendant ever distributed or attempted to distribute the drug; 2) whether the drug was in a form usually associated with possession for distribution to others; 3) whether the amount of drug created an inference of an intent to distribute; 4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only; and 5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute.

Id.

Under the circumstances of the present case, several of these factors were not determinable. The burglary had just occurred and the drugs were still in the original bottles and boxes. Moreover, there was no testimony whether defendant was ever involved in distribution or attempted distribution of drugs. However, the supreme court also stated in Hearold that “[i]n the absence of circumstances from which an intent to distribute may be inferred, mere possession of a drug does not amount to evidence of intent to distribute, unless the quantity is so large that no other inference is possible.” Id. at 735-36. The State’s evidence established that the quantity of drugs discovered was large, with the pill count numbering well into the thousands. Not only were drugs present for which the defendant was billed, but a number of others were present as well. Pharmacist Peterson testified that the drugs taken were |flprimarily painkillers, tranquilizers, and antidepressants and that, due to the pharmacy’s shelving system, were taken from “hundreds” of places within the pharmacy. We conclude that the nature and amount of the drugs established in the record was sufficient for the jury to conclude that the defendant had the requisite intent to distribute.

This assignment lacks merit.

Other Crimes Evidence

The defendant also argues that admission of testimony regarding the burglary of the pharmacy was impermissible other crimes evidence. The defendant argues in brief that the introduction of testimony regarding burglary of the pharmacy was not necessarily an integral part of the crimes for which he was charged.

Louisiana Code of Evidence Article 404(B)(1), in pertinent part, provides:

Except as provided in Article 412, evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident .... or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

In State v. Taylor, 01-1638, pp. 10-11 (La.1/14/03), 838 So.2d 729, 741, the Louisiana Supreme Court explained:

Generally, courts may not admit evidence of other crimes to show defendant is a man of bad character who has acted in conformity with his bad character. However, under La. C.E. art. 404(B)(1) evidence of other crimes, wrongs or acts may be introduced when it relates to conduct, formerly referred to as res ges-tae, that “constitutes an integral part of the act or transaction that is the subject of the present proceeding.” Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. A close proximity in time and location is required between the charged offense and the other crimes evidence “to insure that ‘the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and |inplace.’ ” State v. Colomb, 98-2813, p. 3 (La.10/1/99), 747 So.2d 1074, 1076 (quoting State v. Haarala, 398 So.2d 1093, 1098 (La.1981)).... In addition, as this' court recently observed, integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the state’s case would lose its “narrative momentum and cohesiveness, ‘with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’ ” Colomb, 747 So.2d at 1076 (quoting Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)).

On appeal, we review a trial court’s ruling on the admissibility of other crimes evidence for abuse of discretion. State v. Davenport, 33,961 (La.App. 2 Cir. 11/1/00), 771 So.2d 837, writ denied, 00-3294 (La.10/26/01), 799 So.2d 1150. See, e.g., State v. Bailey, 95-78 (La.App. 3 Cir. 11/2/95), 664 So.2d 665, writ denied, 96-609 (La.6/21/96), 675 So.2d 1077.

On the morning of trial, defense counsel made an oral motion for a Prieur hearing, which was granted. In ruling after the hearing, the trial court stated:

The Court finds that the burglary of the pharmacy in this case is admissible because this was a continuing event and the drugs in question — subject to the State making proof thereof, that these drugs were obtained from that pharmacy within hours of the time of the arrest of Mr. Moneeaux. I believe it is an integral part of it. And so I will allow the evidence.

The trial court, however, would not permit the introduction of the fact that defendant was charged with the burglary in Vernon Parish.

Evidence regarding the burglary was admitted through the testimony of Pharmacist Peterson, who testified as to the nature, classification, and quantity of the drugs at issue. He also identified purchase receipts which were still in the trash bags containing the drugs, which verified that the drugs originated at the pharmacy. Our review of the record reveals no abuse of discretion in the trial court’s determination to permit the introduction of the evidence. The pharmacist’s testimony regarding the Intype and quantity of drugs involved could not only be considered an integral part of the crime, but was probative on the issue of intent as well.

This assignment lacks merit.

Evidence as to Value of the Drugs

In his final assignment of error, the defendant contends that the trial court erred when it allowed testimony regarding the value of all the drugs at issue and testimony regarding drugs which were taken during the robbery but which were not subject of the charges brought against him.

Article 403 of the Louisiana Code of Evidence provides that: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” A trial court’s determination as to relevancy/undue prejudice will not be reversed on appeal absent an abuse of discretion. State v. Cosey, 97-2020 (La.11/28/00), 779 So.2d 675, cert. denied, 533 U.S. 907, 121 S.Ct. 2252, 150 L.Ed.2d 239 (2001).

Pharmacist Peterson testified that the theft of the drugs cost him a loss of approximately twenty thousand dollars and testified as to the individual cost of each of the drugs taken. The defendant objected to the testimony of the value of the drugs, arguing that the evidence was not relevant and, furthermore, was unduly prejudicial to his case. The trial court overruled the defendant’s objections stating that: “I suppose it does affect or is relevant to the question of intent. It does have some relevance to the intent to distribute, as opposed to personal use. So I will allow it.” The defendant also objected to testimony regarding the quantity of all the drugs taken from the store as opposed to only the drugs the defendant was charged with | ^possessing. Again, the trial court reasoned that the information regarding all the drugs taken was relevant as to the intent to distribute.

The recitation of the list of drugs at issue was not unduly prejudicial when balanced with its probative value of intent to distribute. As stated above, a determination that the large quantity discovered was relevant to distribution was not an abuse of discretion. Furthermore, other than an allegation of such, the defendant fails to show how the quantity and value of the drugs found in his possession was prejudicial, misleading, or confusing to the jury in his case.

This assignment lacks merit.

DECREE

For the foregoing reasons, the defendant’s convictions are affirmed. The sentences imposed on Counts One through Six are also affirmed. The sentence(s) imposed on Counts Seven and Eight are vacated. This matter is remanded to the trial court for the limited purpose of imposition of determinate sentences on Counts Seven and Eight.

AFFIRMED. VACATED IN PART AND REMANDED WITH INSTRUCTIONS.

      . Article 879 provides: "If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.”


author: h COOKS, Judge.

text:
    STATE of Louisiana v. Warren FUSELIER.
    No. 04-468.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 20, 2004.
    Rick Bryant, District Attorney, Paul Reggie, Assistant District Attorney, Calca-sieu Parish District Attorney’s Office, Lake Charles, LA, for Appellee: State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant-Appellant: Warren Fuselier.
    Court composed of SYLVIA R. COOKS, MARC T. AMY and JOHN B. SCOFIELD, Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   h COOKS, Judge.

On December 19, 1997, the Defendant, Warren Fuselier, and several others were standing in front of a residence in Lake Charles, Louisiana. Upon arrival of the police, Defendant and several others fled the scene. Defendant was later caught by police, arrested, and taken to the police station. During a search of the Defendant, two rocks of crack cocaine were recovered. He subsequently admitted to a detective that he bought the drugs for $40.00 and he intended to sell them.

Defendant was charged with possession of cocaine with intent to distribute in violation of La.R.S. 40:967(A)(1). Defendant entered a plea of not guilty. On May 26, 1999, a jury found Defendant guilty as charged.

The State then filed a bill of information charging the Defendant as a habitual offender on September 2, 1999. On September 10, 1999, the State agreed to dismiss the habitual offender bill and any other pending charges if the Defendant agreed to accept its sentencing recommendation of thirty years. Defendant was then sentenced to thirty years in the custody of the Department of Corrections.

In State v. Fuselier, an unpublished opinion bearing docket number 99-1721 (La.App. 3 Cir. 5/3/00), 775 So.2d 710, writ denied, 00-1602 (La.6/1/01), 793 So.2d 178, this court affirmed the Defendant’s conviction and sentence.

On February 6, 2003, Defendant filed a pro se “Motion to Correct an Illegal/Indeterminate/Illegally Lenient Sentence,” because his sentence did not provide that the first five years of the thirty-year sentence were to be served without benefit of probation, parole, or suspension of sentence. On May 7, 2003, Defendant filed a pro se “Motion for Reconsideration and/or Modification of Sentence” which was denied as untimely on the same day. On May 21, 2003, pursuant to Defendant’s “Motion to Correct an Illegal/Indeterminate/Illegally Lenient Sentence,” the court amended the Defendant’s sentence to reflect that the first five years of the thirty-year | ^sentence be served without benefit of probation, parole, or suspension of sentence. A second pro se “Motion and Order to Reconsider Sentence” was filed on June 10, 2003, and the motion was denied as untimely on August 13, 2003. A pro se “Motion and Order for Appeal” was filed on September 12, 2003, and was granted. In his appeal, Defendant contends the “Trial Court erred in denying Defendant’s Motion for Reconsideration and/or Modification of Sentence. In the alternative, the Trial Court erred in failing to inform Defendant that the first five years would be served without benefit of probation, parole or suspension of sentence.”

ANALYSIS

In his pro se “Motion and Order for Appeal,” Defendant sought review of the judgment rendered on August 13, 2003 denying his “Motion and Order to Reconsider Sentence.” In brief to this court, appellate counsel states Defendant filed a pro se “Motion for Reconsideration and/or Modification of Sentence” on May 7, 2003 which was denied and further asserts “Warren Fuselier now appeals the denial of his Motion for Reconsideration and/or Modification of Sentence before this Honorable Court.” Appellate counsel does not mention the trial court’s denial of the “Motion and Order to Reconsider Sentence” on August 13, 2003.

The State, in brief, sets forth several procedural objections. The State contends the trial court properly denied the Defendant’s “Motion for Reconsideration of Sentence and/or Modification of Sentence” on May 7, 2003 as untimely since the Defendant was sentenced on September 10, 1999 and a motion to reconsider must be filed within thirty days of sentencing. Accordingly, the denial of the Defendant’s motion should afford him no basis for appeal. Further, the State contends the Defendant never filed a motion to appeal the judgment rendered on May 7, 2003; thus, the denial of that motion would not properly be before this court.

In State v. Kanjanabout, 00-1486 (La.App. 3 Cir. 5/2/01), 783 So.2d 648, writ denied, 01-1741 (La.5/3/02), 815 So.2d 95, appellate counsel and defendant argued, in briefs to the court, that a sentence imposed in 1995 was excessive. In his motion to reconsider sentence and two motions for appeal, the defendant opposed only the trial court’s ministerial correction of his sentence on January 26, 2000 and made no mention of his 1995 sentence. This court reviewed the correctness of its appellate jurisdiction and noted there was authority to review on appeal the intent of the original sentencing judge with regard to parole restrictions. Finding such, this court went on to address the ministerial correction made on January 26, 2000. The opinion did not indicate whether or not there were any objections made by the State.

In the interests of justice in this case, we will consider Defendant’s appeal. In his pro se brief, Defendant contends the trial judge, upon resentencing, failed to make an independent determination as to the intent of the original sentencing judge. Defendant specifically argues if correction of an illegally lenient sentence results in a harsher sentence than that originally imposed, the record should reflect consideration by the resentencing judge of the intent of the judge who originally imposed sentence. Defendant next asserts if the intent of the original sentencing judge was to allow parole eligibility, then the resen-tencing judge may impose a sentence of a lesser term of years without benefit of parole to reflect the intent of the original sentencing judge. Defendant continues that if the intent of the original sentencing judge cannot be determined, the resen-tencing judge should make an independent determination of an appropriate sentence not to exceed the term of years originally imposed, to be served without benefit of parole. In support of these arguments, the Defendant cites State ex rel. Jackson v. Smith, 578 So.2d 1150 (La.1991), overruled by State v. Harris, 93-1098 (La.1/5/96), 665 So.2d 1164; State v. Washington, 578 So.2d 1150 (La.1991), overruled by State v. Harris, 93-1098 (La.1/5/96), 665 So.2d 1164; State v. Desdunes, 579 So.2d 452 (La.1991), overruled by State v. Harris, 93-1098 (La.1/5/96), 665 So.2d 1164; and State v. Bonier, 583 So.2d 501 (La.App. 3 Cir.1991).

In Desdunes, 579 So.2d 452, the supreme court discussed correction of an illegally lenient sentence as follows:

Upon motion of the state or the defendant, the sentencing court should correct an illegally lenient sentence by imposing a legal sentence of a term of years to be served without benefit or parole, probation, or suspension of sentence in accordance with the mandatory provisions of the criminal statute. LSA-R.S. 14:64; LSA-C.Cr.P. Art. 882; State v. Fraser, 484 So.2d 122 (La.1986).
Since correction of an “illegally lenient” sentence will usually result in a harsher sentence than that originally imposed as regards parole eligibility, upon correction of such a sentence the record should reflect consideration by the re-sentencing judge of the intent of the judge who imposed the original sentence, whether it be the same judge or another judge. If the intent of the judge who imposed the original sentence was that the term of years be served without benefit of parole, resentencing to the same term of years without benefit of parole is appropriate. If the intent of the judge who imposed the original sentence was to allow parole eligibility, then the resentencing judge may impose a sentence of a lesser term of years without benefit of parole to reflect that intent. If the intent of the judge who imposed the original sentence cannot be determined, then the resentencing judge should make an independent determination of an appropriate sentence, not to exceed the term of years originally imposed, to be served without benefit of parole.

Id.

In State v. Harris, 93-1098 (La.1/5/96), 665 So.2d 1164, the supreme court revisited the issue making the following findings:

The presumption of regularity in judicial proceedings, see La.Rev.Stat. 15:432; State v. Davis, 559 So.2d 114 (La.1990), C.E. Torcia, Wharton’s Criminal Procedure, § 641 (12th ed.1976), applies to all phases of trial, including sentencing. In the absence of an articulable basis for concluding that the district court imposed sentence under a misapprehension of what the law required or of its full range of sentencing discretion, we will presume that the failure of the court expressly to impose the special restrictions required by law (e.g., parole disability) presents the need only for ministerial correction of the record. Cf. La. Code Crim.Proc. art. 916(2) (allowing the correction of any error or deficiency in the record even while a case is pending on appeal).
A district court judge presented with an application to correct an illegally lenient sentence may therefore correct a sentence that he or she has imposed by making the necessary changes in the minutes, without bringing the inmate to court, and sending a certified copy of the new minutes to the inmate and to the relevant prison authorities, who otherwise lack the discretion to make the amendments themselves in the documents they receive from the sentencing court pursuant to La.Code Crim.Proc. art. 892. State ex rel. Pierre v. Maggio, 445 So.2d 425 (La.1984); State ex rel. Almore v. Criminal District Court, Parish of Orleans, 433 So.2d 712 (La.1983). The judge may also make the same ministerial corrections to a sentence imposed by a predecessor unless he or she entertains a reasonable doubt as to the intent of the original sentencing judge and the validity of the sentence imposed by the original sentencing judge. In all cases, a district judge retains the discretion to vacate the sentence originally imposed and to resentence the inmate in open court.
To the extent that the opinions issued on the same day in State v. Desdunes, 579 So.2d 452 (La.1991), State ex rel. Jackson v. Smith, 578 So.2d 1150 (La.1991), and State v. Washington, 578 So.2d 1150 (La.1991), and our subsequent decision in State v. Husband, 593 So.2d 1257 (La.1992), conflict with the views expressed herein, they are overruled.

Id. at 1164-65.

In 1999, the legislature enacted La.R.S. 15:301.1. The statute became effective on August 15, 1999 and provided, in pertinent part, as follows:

A. When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

In State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the supreme court discussed La.R.S. 15:301.1 as follows:

Paragraph A of LA.REV.STAT. ANN. § 15:301.1 addresses those |fiinstances where sentences contain statutory restrictions on parole, probation or suspension of sentence.... In instances where these restrictions are not recited at sentencing, LA.REV.STAT. ANN. § 15:301.1(A) deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court. Additionally, this paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute.

Id. at 798-99.

The court went on to state “that which was legislatively mandated at the time of sentencing is recognized as having existed statutorily without pronouncement being necessary.” Id. at 801. The court then concluded that “when a court complies with a nondiscretionary sentencing requirement, i.e., a mandatory minimum term or special parole provision(s), no due process violation is implicated because neither actual retaliation nor vindictiveness exists.” Id. at 798. The court also concluded a “defendant in a criminal case does not have a constitutional or statutory right to an illegal sentence.” Id. at 797. Additionally, the supreme court held “the retroactive application of LA.REV.STAT. ANN. § 15:301.1 to sentences imposed prior to August 15, 1999, does not constitute a violation of the prohibition against ex post facto laws.” Id. at 795.

Based on the above case law, the trial court was not required to make any determination as to the intent of the original sentencing judge. Pursuant to Williams, the trial court need not even make a ministerial correction to the Defendant’s sentence. The provisions of La.R.S. 15:301.1 were self-activating and the Defendant’s sentence was deemed to contain the parole restrictions at issue without necessitating correction by the trial court.

We also note, the supreme court in State v. Guzman, 99-1753, 99-1528 (La.5/16/00), 769 So.2d 1158, concluded that the proper standard of review for a trial 17court’s failure to advise a defendant of the minimum and maximum penalties before accepting a guilty plea was the harmless error standard, noting that La.Code Crim.P. art. 921 provides that a judgment cannot be reversed “because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.”

Defendant did not enter a guilty plea in this matter, but was found guilty by a jury. He has a criminal history, having been convicted of a felony on two prior occasions, had several pending charges dismissed, and a habitual offender bill had been filed. At sentencing, the trial court specifically called to Defendant’s attention the life-imprisonment provisions of La.R.S. 15:529.1 for multiple offenders. Therefore, we find it highly unlikely the knowledge that a portion of his sentence would be served without benefits would have affected Defendant’s decision to enter into the sentencing recommendation of thirty years. See State v. Sullivan, 03-0360 (La.App. 3 Cir. 10/2/02), 827 So.2d 1260, 1265, writs denied 02-2965 (La.9/5/03), 852 So.2d 1024; 02-2931 (La.4/21/03), 841 So.2d 790. Accordingly, Defendant’s assignment is without merit.

DECREE

For the foregoing reasons, Defendant’s sentence is affirmed.

AFFIRMED.


author: L-AMY Judge.

text:
    C & B SALES & SERVICE, INC., v. Ralph SLAUGHTER, Sec. of Dept. of Revenue & Taxation.
    No. 04-551.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 20, 2004.
    William E. Logan, Jr., The Logan Law Firm, Lafayette, LA, for Plaintiff/Appellant: C & B Sales & Service, Inc.
    Dwana C. King, Kanika Tubbs, Baton Rouge, LA, Counsel for Defendant/Appel-Iee: Ralph Slaughter, Secretary Department of Revenue & Taxation.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN B. SCOFIELD , Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore

   L-AMY Judge.

The plaintiff appealed a decision of the board of tax appeals to the Fifteenth Judicial District Court in March 1994. In August 2003, the Department of Revenue and Taxation moved to dismiss the appeal as abandoned. In November 2003, following a hearing, the district court granted the Department’s motion and ordered the dismissal of the plaintiffs appeal, finding that it had been abandoned. From this judgment, the plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

According to the record, on February 22, 1993, C & B Sales & Service, Inc., a Louisiana corporation with its principal place of business in Broussard, Lafayette Parish, filed a petition for redetermination of its sales and use tax and Louisiana Recovery District Tax assessment for the period of January 1, 1988, through February 28, 1991. The record likewise indicates that in June 1992, the Louisiana Department of Revenue and Taxation (hereinafter “the Department”) had informed C & B Sales that it owed amounts totaling $251,113.44 in unpaid sales and use tax, reduced by a payment under protest of $150,000, for a balance of $101,113.44 due. C & B Sales disputed the amount assessed, claiming that in arriving at the above figures, the Department had included some transactions that were actually tax-exempt under certain statutory provisions. On February 8, 1994, the board of tax appeals ruled in favor of the Department, affirming the proposed assessment at issue, plus accrued interest.

C & B Sales filed a petition for appeal in the Fifteenth Judicial District Court on March 9, 1994, asserting that the board of tax appeals erred in upholding the ^Department’s proposed assessment. The record reflects that the order of appeal was granted on February 27,1996. C & B Sales moved to set the matter for trial on February 26, 1999; this motion was granted, without setting a date, on March 1, 1999. On August 4, 2003, the Department filed a motion to dismiss C & B Sales’ appeal as abandoned. After a hearing on the motion on November 24, 2003, the district court ordered the matter dismissed as abandoned. C & B Sales appeals, contesting the ruling of the district court.

Discussion

In the case sub judice, C & B Sales contends that it had not abandoned its appeal from the adverse ruling of the board of tax appeals, asserting that the matter should have been considered submitted to the district court on the record, and, as a result, the responsibility for the case shifted to the district court. C & B Sales claims that pursuant to a stipulation that it entered into with the Department, both parties were supposed to hand in briefs after the matter had been sent to the district court. ^Accordingly, it argues, when neither party submitted briefs, the case should have been considered submitted on the record, and responsibility then devolved to the district court to render judgment. In essence, C & B Sales contends, although years passed without a decision in the matter, it was relieved of any obligation with respect to moving the case forward. As such, C & B Sales suggests, because the law pertaining to abandonment does not apply in circumstances in which delays are attributable to the court, its appeal was incorrectly dismissed as abandoned.

The rules governing abandonment of civil actions are set forth in La.Code Civ.P. art. 561. This article provides, in pertinent part, as follows:

A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years[.]
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.

Louisiana Code of Civil Procedure Article 561 has been interpreted by Louisiana courts as requiring plaintiffs to take certain action in order to avoid abandonment:

First, plaintiffs must take some “step” towards prosecution of their lawsuit. In this context, a “step” is defined as taking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Second, the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step.

Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 6 (La.5/15/01), 785 So.2d 779, 784 (footnotes omitted). Nevertheless, there are two jurisprudentially recognized exceptions to the operation of La.Code Civ.P. art. 561: the first, an application of the principle of contra non valentem, is available where a plaintiff has been forestalled from prosecuting a case due to circumstances beyond his control. Clark, 785 So.2d 779; Faust v. Greater Lakeside Corp., 03-808 (La.App. 4 Cir. 11/26/03), 861 So.2d 716, unit denied, 04-424 (La.4/2/04), 869 So.2d 887; Lion InvestBanc Corp. v. River Products, Inc., 02-481 (La.App. 5 Cir. 10/29/02), 831 So.2d 500, unit denied, 02-2905 (La.3/14/03), 839 So.2d 36; State, Dept. of Transp. and Dev. v. Cole Oil and Tire Co., Inc., 36,122 (La.App. 2 Cir. 7/17/02), 822 So.2d 229, writ denied, 02-2325 (La.11/15/02), 829 So.2d 436. The second such exception is available in situations in which a defendant waives the right to assert abandonment through actions inconsistent with an intent to treat the case as abandoned. Id.

In support of its assertion on appeal that the parties entered into a stipulation regarding submission of briefs, C & B Sales notes that during the hearing on the motion to dismiss, the Department admitted that the parties had agreed to meet to discuss briefing dates in lieu of a trial date. Moreover, attached as an appendix to C & B Sales’ brief to this court is a transmission letter to the clerk of court, dated February 26, 1999, which accompanied its motion and order to set a trial date. In this letter, which was not filed into the record and was not offered into evidence at the hearing below, counsel for C & B Sales writes, “I believe that this matter can be submitted on the record with the Court setting a schedule for filing of briefs and reply briefs.” On appeal, C & B Sales concedes that this “stipulation” is missing from the record, but it insists that its absence is due to an oversight of the clerk of court, [^alleging that the clerk failed to enter the “stipulation” into the minutes or otherwise misfiled it. C & B Sales contends that because the clerk of court is part of the judiciary, any errors that it commits should not be attributed to either party.

In light of C & B Sales’ claim on appeal, we note that in Reed v. Peoples State Bank of Many, 36,531, pp. 4-5 (La.App. 2 Cir. 3/5/03), 839 So.2d 955, 958, the second circuit made the following relevant observation regarding those things properly considered by an appellate court:

[I]t is well-settled that an appellate court must render its judgment upon the record on appeal. La. C.C.P. art. 2164. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments and other rulings, unless otherwise designated. La. C.C.P. art. 2128. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Mem-oranda and exhibits which were not filed into evidence in the trial court are not part of the record on appeal. If a party’s brief asserts facts which are not in the record and refers to exhibits which have not been filed into evidence in the trial record, an appellate court may not consider those memoranda and exhibits, since they are outside the record. La. C.C.P. art. 2164. The briefs of the parties and the attachments thereto are not part of the record on appeal. Appellate briefs are not part of the record on appeal, and this court has no authority to consider on appeal facts referred to in appellate briefs, or in exhibits, if those facts are not in the record on appeal. Tranum v. Hebert, 581 So.2d 1023 (La. App. 1st Cir., 1991), writ denied, 584 So.2d 1169 (La.1991).

Moreover, Uniform Rules — District Courts, Rule 9.16 specifies, with respect to agreements and stipulations, that “[t]he court will recognize agreements and stipulations between counsel concerning the conduct, trial, or continuance of a suit only if they are: (1) written and filed in the record; or (2) made in open court and entered on the minutes.” Likewise, Uniform Rules — Courts of Appeal, Rule 2-7.5 states that “[instructions to the clerk, or agreements between the parties or then-counsel, of which the court is expected to take cognizance, shall be in writing, signed by the parties or counsel, and filed in the clerk’s office.”

ItiOur examination of the record reveals no evidence of a stipulation between C & B Sales and the Department whereby they agreed to let the district court decide the matter on briefs. The transcript of the motion hearing indicates that counsel for the Department denied entering into such a stipulation with C & B Sales, and further stated that the parties never discussed briefing dates in lieu of trial. Even assuming, arguendo, that C & B Sales and the Department did enter into a stipulation that the case would be submitted on briefs, this agreement was neither filed into the record nor stated in open court.

When we review the record in light of the principles outlined in Clark, above, we find the last qualifying step taken by C & B Sales in the prosecution of its case was its motion to set a trial date, filed on February 26,1999. The Department’s motion to dismiss as abandoned was filed on August 4, 2008. Accordingly, more than three years had passed without any steps taken to move the case towards resolution. Similarly, our examination of the record reveals that neither of the exceptions to abandonment, as outlined in Faust, above, are applicable in the present case. We find no error in the trial court’s ruling dismissing the appeal as abandoned. This assignment lacks merit.

DECREE

For the foregoing reasons, the trial court’s judgment dismissing the appeal filed by C & B Sales & Service, Inc. on the grounds of abandonment is affirmed. All costs of this proceeding are assigned to the plaintiff-appellant, C & B Sales & Service, Inc.

AFFIRMED.

      . A district court's power to review decisions of the board of tax appeals is set forth in La.R.S. 47:1434 as follows:
      After a decision or judgment of the board, the collector or the taxpayer may, within thirty calendar days after such decision or judgment has been rendered and signed, file a petition with the district court in accordance with the provisions hereinafter set out, for review of the said decision or judgment of the board. The party filing such petition shall before the filing of same, either at open hearing or by motion, notify the board of his intention to file such petition for review. Provided that when the board has found any tax to be due, a taxpayer must, when giving the notice of intention to file a petition for review, post bond, with surety approved by the board conditioned upon the payment of the tax as finally determined, together with any interest, additional amounts or additions to the tax provided for by law, payable to the collector, in an amount not to exceed one and one-half times the said tax, interest, and penalty found to be due in said decision or judgment of the board, and the posting of such bond shall be a condition precedent to the filing of any petition for review in any district court.
      Thereafter, and within the thirty calendar days from the date of the rendering and signing of such decision or judgment of the board, the taxpayer may file his petition for review with the proper district court, setting forth specifically any errors which may have been committed by the board in reaching its decision or judgment.
      When the district judge has ordered the review, a copy of the order and petition shall be mailed to the secretary-clerk of the board, and the opposing party or counsel representing him, and the order shall command the secretary-clerk of the board to send up within twenty days from the date thereof the original transcript of the record, together with all exhibits and evidence thereto attached; which record shall be the basis for any action on review and the decision of the district court shall be rendered upon the said record as made up before the board.

      . In support of this proposition, C & B Sales cites Barton v. Burbank, 138 La. 997, 71 So. 134, 135 (La.1916), in which the supreme court stated:
      [W]e are of opinion [sic] that, having submitted their case to the judge, they should not be held responsible for his delay in the discharge of his duty; the idea of the statute being merely to hold a plaintiff responsible for delay attributable to his nonaction in and failure to prosecute his suit up to the point at which the court is placed in a position to render judgment.