author: WHIPPLE, J.

text:
    STATE of Louisiana v. Leo SCOTT.
    No. 2006 KA 1103.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Anthony G. Falterman, Donald D. Can-dell, Gonzales, for Appellee, State of Louisiana.
    Holli Herrie-Castillo, Marrero, for Defendant/Appellant, Leo Scott.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   WHIPPLE, J.

I zThe defendant, Leo Scott, Sr., was charged by bill of information with one count of second degree battery (count I), a violation of LSA-R.S. 14:34.1, and one count of simple kidnapping (count II), a violation of LSA-R.S. 14:45. He pled not guilty on both counts. Following a jury trial, he was found guilty as charged on both counts. On count I, he was sentenced to five years at hard labor. On count II, he was sentenced to five years at hard labor to run consecutively to the sentence imposed on count I.

He now appeals, designating the following four assignments of error:

(1.) The trial court erred in failing to admonish the jury to disregard Wilda Fon-tenot’s testimony regarding the defendant being incarcerated;

(2.) The record is not complete to conduct an adequate review for assignments of error;

(3.) The State failed to provide sufficient evidence to support the verdicts of second degree battery and simple kidnapping; and

(4.) The trial court erred in imposing consecutive sentences.

Finding no merit to the assignments of error, we affirm the defendant’s convictions and sentences.

FACTS

The victim testified at trial and gave the following account of the incident. On March 1, 2004, she worked from 1:00 p.m. until 10:00 p.m. at the Siegen Lane Wal-Mart in Baton Rouge. After completing her shift, she drove a co-worker to her car, and then began driving home. The victim’s vehicle’s headlights began to dim. She knew that Walter Bureau had an industrial, big battery charger, so she went to lahis house to ask him to charge her vehicle’s battery. Bureau agreed to charge the battery, but indicated the charger would need thirty to forty-five minutes to complete the charge. The victim waited in Bureau’s living room, watching television and talking to Bureau.

Before the battery was ready, the defendant knocked on Bureau’s door, Bureau unlocked the door, and the defendant also entered Bureau’s home. As soon as the defendant saw the victim, he stated, “[W]hat the shit are you doing?[,]” and began punching her on her head and face with his hands, arms, and fists; The victim fell from the sofa and onto the floor, but the defendant continued to punch her. Bureau went to a neighbor’s house and alerted the police. While bleeding profusely, the victim got up to search for a towel or something to staunch the blood. When she stopped to wipe her face, the defendant told her, “Come on. You coming (sic) with me.” He then grabbed her by her shirt and forcibly pulled her out of Bureau’s house. The victim fell, but the defendant forced her to accompany him by pushing and kicking her into his daughter’s vehicle. The defendant then drove away with her. While they drove, the defendant threatened to kill the victim, questioned why she had not sent him money while he was incarcerated, and told her, “I ought to kill you. I just ought to kill you.”

The defendant took the victim to the Budget Inn Motel and yelled at her, asking, “[W]hy didn’t you send me money? [,]” and “[W]hy don’t you stick by my side?” The victim could not remember how long he kept her at the motel because she passed in and out of consciousness during that time. She was also in severe pain and vomiting. Thereafter, the defendant left the victim at the motel, but returned with a man and a woman. The woman asked the victim if she wanted to go to the hospital. The victim declined, stating she just wanted to go to her car and go home. |4Ultimately, the defendant called Bureau and told him he was going to take the victim back to her car.

The victim later went to the emergency' room and learned she had multiple fractures to her head, face, and nose. She denied that she was drinking and doing “crack” with Bureau when the defendant came into Bureau’s home.

Walter Bureau testified that on March 1, 2004, at approximately 1:15 a.m., the victim came to his home on Airline Highway in Baton Rouge because her vehicle’s alternator was not working. Bureau charged the victim’s battery, and he and the victim sat and talked while the battery charged. They were disturbed by the defendant coming to the door. The defendant came into the house and began beating the victim with his fists. Bureau went to a neighbor’s house to summon the police.

Bureau conceded he had a rifle with him when he answered the defendant’s knock on the door. He indicated he put the rifle down, however, when he saw who was at the door because he had known the defendant since he was a child. Bureau denied that he and the victim were doing “crack” when the defendant disturbed them. He also denied struggling with the defendant for the rifle and denied that the rifle struck the victim.

Dr. Gary Moll testified that on March 1, 2004, at approximately 3:16 p.m., he treated the victim in the emergency room of St. Elizabeth Hospital. The victim reported being in an altercation during the night. She indicated she had been hit in the face and eyes, and suffered pain, blurry vision, but no loss of consciousness. The victim also indicated her nose had been bleeding and that she had vomited once. The victim had extensive swelling and bruising around her right eye and around and inside her nose. She indicated her pain level was “7 over 10.” A CAT scan of her | ¿facial bones revealed approximately six different fractures of her face and nasal cavities. Dr. Moll felt that the victim needed to be evaluated by a plastic surgeon and an ophthalmologist to determine whether she needed surgical repair of her facial fractures and to determine whether she had suffered any kind of retinal damage to her eye.

The defendant also testified at trial. He indicated he was 6'1" tall and weighed 227 lbs. He claimed he had been “on and off’ friends with the victim since 1978 and that they had lived together at different times. He conceded he went to Bureau’s house on the night in question, but denied assaulting the victim. He claimed he was afraid of the victim because she had stabbed him before when she was using drugs. He claimed when he went into Bureau’s house, the victim was “all spaced out” and her blouse was open. He claimed there was a crack pipe and four rocks of crack cocaine on the coffee table. According to the defendant, he slapped the cocaine off the table and began struggling with Bureau for the rifle Bureau was carrying. The defendant claimed he told the victim to sit down and stay out of the way, but the barrel of the rifle hit her in the face. The defendant claimed that his finger was also injured when Bureau took the rifle out of the defendant’s hand and that “half of the blood” in Bureau’s house was the defendant’s blood.

The defendant also denied kidnapping the victim. He conceded he drove off with the victim, but claimed she asked him to take her to the hospital. He claimed the victim then asked him to take her to a motel to put ice on her face because she was “loaded on crack cocaine” and did not want anyone to see her face. He claimed the victim threatened him, “Well, you tell my people I’m on crack cocaine, I’m going to tell them you beat me up like this here.” The defendant claimed he then took the victim back to Bureau’s house.

| sufficiency OF THE EVIDENCE

In assignment of error number 3, the defendant contends the evidence was insufficient to support the conviction. Specifically, he contends that the testimony of the victim conflicted with the testimony of Bureau concerning when the victim left work and conflicted with the testimony of Dr. Moll concerning whether or not the victim had lost consciousness and how many times the victim had vomited following the alleged attack.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove, in order to convict,” every reasonable hypothesis of innocence is excluded. State v. Wright, 98-0601, p. 2 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 486, (quoting LSA-R.S. 15:438), writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157, 2000-0895 (La.11/17/00), 773 So.2d 732.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 98-0601 at p. 3, 730 So.2d at 487.

Battery includes the intentional use of force or violence upon the person of |7another. LSA-R.S. 14:33. Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury. Serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death. LSA-R.S. 14:34.1 Simple kidnapping is the intentional and forcible seizing and carrying of any person from one place to another without his consent. LSA-R.S. 14:45(A)(1).

After a thorough review of the record, we are convinced the evidence presented herein, viewed in the light most favorable to the State, proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree battery and simple kidnapping, and the defendant’s identity as the perpetrator of those offenses against the victim. The verdicts rendered against the defendant indicate the jury accepted the victim’s account of these events. On review, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder’s determination of guilt. The testimony of the victim alone is sufficient to prove the elements of the offense. As the trier of fact, the jury was entitled to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429, p. 5 (La.App. 1st Cir.3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La.10/17/97), 701 So.2d 1331.

This assignment of error is without merit.

\ MISTRIAL

In assignment of error number 1, the defendant contends the trial court erred in failing to admonish the jury to disregard the testimony of the victim and in failing to grant a mistrial after the victim gave irrelevant or immaterial testimony prejudicial to the defendant.

Louisiana Code of Criminal Procedure article 771, provides, in pertinent part:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

A mistrial under the provisions of Code of Criminal Procedure article 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. Unsolicited and unresponsive testimony is not chargeable against the State to provide a ground for mandatory reversal of a conviction. Furthermore, a statement is not chargeable to the State solely because it was in direct response to questioning by the prosecutor. While a prosecutor might have more precisely formulated the question that provoked a witness’s response, where the remark is not deliberately obtained by the prosecutor to prejudice the rights of the defendant, it is not the basis for a mistrial. State v. Tran, 982812, pp. 3-4 (La.App. 1st Cir.11/5/99), 743 So.2d 1275, 1280, writ denied, 99-3380 (La.5/26/00), 762 So.2d 1101.

IsAt trial, the following colloquy between the State and the victim occurred:

Q. Let’s talk about when [the defendant] grabbed you and he put you in the car or whatever, kicked you and -
A. Yes, sir.
Q. What happened at that point?
A. At that point, he just left Walter’s home, and we rode and rode and rode, and we went to Budget Inn Motel. He did stop for ice at the Shell station on Highway 30.
Q. Did he say anything to you while you were riding?
A. He — he didn’t hit me anymore, but he would just holler and fuss at me.
Q. What was he hollering?
A. Just why didn’t you send me any money while I was incarcinated [sic] (spelled phonetically), and why didn’t you do this and why didn’t you do that, and just — just hollering.
Q. Did at any time he threaten your life?
A. Yes, he did say he would — he would kill me.
Q. When?
A. During the time he was beating me at Walter’s home.
Q. And what did he say about killing you?
A. “I ought to kill you. I just ought to kill you.” And that’s — was his words. Q. Okay. Before he began beating you in Walter’s house, had you said anything to him?
A. I had no time to say nothing.
Q. And before you even saw him at Walter’s house, can you tell the jury, when was the last time you had seen him?
A. It had been — our relationship really had been off and on because — since my father died three years ago. I mean, we were just — I’d go see him on occasions, but it was nothing really foundation at all.
ImQ. Okay. But we’re talking about him attacking you and beating you on March 1st. Okay? Before that day, when was the last time you had seen him?
A. It’s probably five months—
Q. Five months before March?
A. —at least. Yeah.
Q. So, if we back that up—
A. Right.
Q. —October or November of 2003?
A. Exactly.
Q. I mean, I’m trying to—
A. It was a short while before he was incarcinated [sic].

Thereafter, outside the presence of the jury, the defense moved for a mistrial on the basis of the victim’s reference to the defendant’s incarceration. The State argued' the comment was inadvertently made. The trial court denied the motion for mistrial, but did not admonish the jury to disregard the challenged testimony. However, the court did instruct the victim not to refer to any crimes other than the ones presently before the court. The defense objected to the court’s ruling.

On review, we find no abuse of discretion by the trial court in its denial of the motion for mistrial. The victim’s references to the defendant’s prior incarceration were not deliberately obtained by the prosecutor to prejudice the rights of the defendant. Instead, the challenged testimony and reference to other crimes evidence was both relevant and material. The defendant apparently was angry with the victim because she had failed to send him money or “stick by [his] side” while he was incarcerated. The reference established the defendant’s motive and intent in attacking and kidnapping the victim and was admissible as relating to conduct that In constituted an integral part of the charged offenses. See LSA-C.E. art. 404(B)(1); State v. Bilbo, 97-2189, pp. 7-10 (La.App. 1st Cir.9/25/98), 719 So.2d 1134, 1138-39, writ denied, 98-2722 (La.2/5/99), 737 So.2d 747.

This assignment of error is also without merit.

INCOMPLETE RECORD

In assignment of error number 2, the defendant argues certain bench conferences concerning objections to certain photographs depicting the victim’s injuries were not recorded, thereby violating the defendant’s right to full appellate review.

Louisiana Constitution article I section 19, guarantees defendants a right of appeal “based upon a complete record of all evidence upon which the judgment is based.” State v. Hoffman, 98-3118, p. 49 (La.4/11/00), 768 So.2d 542, 586, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000). Additionally, LSA-C.Cr.P. art. 843, in pertinent part, provides:

In felony cases, ... the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.

Material omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal. See State v. Robinson, 387 So.2d 1143 (La.1980) (reversal required when record failed to contain the testimony of a State and defense expert witness); State v. Ford, 338 So.2d 107 (La.1976) (reversal required when record missing the testimony of four State witnesses and the voir dire of prospective jurors). On the other hand, inconsequential omissions or slight inaccuracies do not require reversal. State v. Goodbier, 367 So.2d 356, 357. (La.1979) (reversal not required when record does not include a transcript of Lathe voir dire examination and affidavit of court reporter indicated that counsel made no objections during voir dire). Hoffman, 98-3118 at pp. 49-50, 768 So.2d at 586.

The Louisiana Supreme Court has never articulated a per se rule either requiring the recording of bench conferences or exempting them from the scope of LSA-C.Cr.P. art. 843. However, article 843’s description of “objections” and “arguments” will normally apply only to objections made in open court and the arguments of counsel in closing, because only these objections and arguments rise to a level of materiality sufficient to invoke article 843. Similarly, Article I, § 19’s command to record “evidence” does not encompass bench conferences, at least, not ones that do not satisfy the materiality requirements of LSA-C.Cr.P. art. 843. Hoffman, 98-3118 at p. 50, 768 So.2d at 586-87.

In support of the instant argument, the defendant first cites the unrecorded bench conference held after the State offered State Exhibit # 1, a photograph of the victim’s face showing bruises to her eyes and right cheek, into evidence. Following the bench conference, the court stated, “Let it be received into evidence, marked accordingly. No objection.”

The defendant next cites the unrecorded bench conference held after the State offered State Exhibit # 3, a photograph of the lower portion of the victim’s face showing a bruise to her right cheek and redness on her neck, into evidence. Following the bench conference, the court stated, “I’m going to allow it into evidence. Mark it accordingly.”

Lastly, the defendant cites the unrecorded bench conference held after the State offered State Exhibit # 10, a photograph of blood on the floor in front of the couch where the defendant allegedly attacked the victim, into evidence. | ^Immediately prior to the bench conference, the defense stated, “Your, Honor, we renew our objection for the same reasons.”

In regard to the unrecorded bench conferences at issue, the defendant fails to demonstrate any specific prejudice which he suffered as a result of those conferences not being transcribed; nor does anything in the record suggest that the conferences had any discernible impact on the proceedings. Accordingly, no reversible error occurred. See State v. Deruise, 980541, p. 15 (La.4/3/01), 802 So.2d 1224, 1236, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001); Hoffman, 983118 at pp. 50-51, 768 So.2d at 587.

This assignment of error is also without merit.

CONSECUTIVE SENTENCES

In assignment of error number 4, the defendant argues the sentences must be set aside because the trial court failed to provide the specific reasons for imposing consecutive sentences. He argues that when the trial court fails to state the factors considered and the reasons for consecutive terms, the Louisiana Supreme Court generally vacates sentences and remands for resentencing, citing State v. Sherer, 437 So.2d 276 (La.1983) (per curiam) and State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980).

Louisiana Code of Criminal Procedure article 883 provides, in pertinent part:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

Although LSA-C.Cr.P. art. 883 favors imposition of concurrent sentences |ufor crimes committed as part of the same transaction or series of transactions, a trial court retains the discretion to impose consecutive penalties in cases in which the offender’s past criminality or other circumstances in his background or in the commission of the crimes justify treating him as a grave risk to the safety of the community. State v. Walker, 2000-3200, p. 1 (La.10/12/01), 799 So.2d 461, 461-62 (per curiam); see State v. Jones, 2004-1524, p. 5 (La.App. 1st Cir.3/24/05), 907 So.2d 139, 143 (“Additionally, given the obvious danger posed to the public by the defendant’s repeated drunken driving, consecutive sentences were justified in this case.”)

Prior to sentencing the defendant, the trial court referenced the pre-sentence investigation report (PSI) and indicated it had considered several letters filed on behalf of the defendant, but not contained in the report. The PSI recommended that the defendant be sentenced to maximum consecutive sentences.

In sentencing the defendant, the court noted that: the defendant was officially classified as a second felony, offender; on or about March 1, 2004, he punched the victim in the face, physically forced her out of the residence where she had been visiting, forced her into a car, and drove around for several hours while her nose bled profusely; the investigating detective stated the victim’s right eye was swollen shut, she had bruising under her left eye, and her lips were busted; and in her statement, the victim indicated she was blinded for fourteen days as a result of the incident.

Referencing the sentencing considerations of LSA-C.Cr.P. art. 894.1, the court further found: there was an undue risk that during the period of a suspended sentence or probation, the defendant would commit another crime; the defendant was in need of correctional treatment or a custodial environment that could be | ^provided most effectively by his commitment to an institution; a lesser sentence than the sentence to be imposed. would deprecate the seriousness of the offense; the defendant’s conduct during the commission of the offense manifested deliberate cruelty to the victim; the offense was a violent offense in which the victim was brutally attacked and forced from a place where she was visiting; the defendant created a risk of bodily harm to more than one person; the defendant used actual violence in the commission of the offense; the offense resulted in significant physical injury to the victim’s face; there was a total lack of provocation for the offense, in that there were no grounds tending to justify or excuse the defendant’s conduct; the court had not been provided with any information that would indicate that the victim of the offense induced or facilitated its commission in any way; it did not appear that the defendant had compensated the victim; the defendant had not led a law-abiding life for a substantial period of time before the commission of the offense. The court further noted that although only classified as a second felony offender, the defendant had been arrested on numerous occasions for crimes of violence, many of which had involved the use of dangerous weapons; the defendant’s criminal record dated back to 1976 and included aggravated battery with a dangerous weapon, forcible rape, sexual battery, aggravated assault, simple robbery, simple battery, armed robbery, first degree murder, aggravated burglary, resisting an officer, and possession of a firearm; and imprisonment of the defendant would not result in any excessive hardship to the defendant or his dependents.

Sherer involved a conviction of one count of negligent homicide and a five-year sentence and an adjudication as a habitual offender on another count of negligent homicide and an enhanced sentence of seven years under the habitual | ¶ (¡offender law to run consecutive to the five-year sentence. Sherer, 437 So.2d at 276. The court in Sherer vacated the sentences and remanded for resentencing with a full statement of reasons for the particular sentences imposed. Sherer, 437 So.2d at 277. The court noted:

Because the function of the consecutive sentence should be similar to the sentence imposed on habitual or dangerous offenders, sentences for crimes arising from a single course of conduct should be concurrent rather than consecutive, absent a showing that the offender poses an unusual risk to the safety of the public. See State v. Franks, 373 So.2d 1307 (La.1979); State v. Cox, 369 So.2d 118 (La.1979). Cf. [La.Code Crim. P. art.] 883. We cannot presume that the sentencing judge viewed the defendant as an unusual risk to the safety of the public because he did not so state. Instead, the judge expressed his belief that the defendant had become virtually rehabilitated and should be released on parole at the earliest possible time. For these reasons, the imposition of consecutive rather than concurrent sentences totaling 12 years at hard labor upon a defendant deemed parole-eligible by the sentencing judge for crimes of criminal negligence, rather than intentional offenses, arising from a single course of conduct, are unexplained by the judge’s statements and unillumined by this problematic record. (Emphasis added).
Id.

The court in Ortego found the trial court failed to “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” See LSA-C.Cr.P. art. 894.1(C). Ortego, 382 So.2d at 923. On the face of the record, however, the court in Ortego did not find that the imposition of two consecutive twenty-year sentences for armed robbery arising out of a single incident was necessarily excessive, but remanded for the trial court’s resentencing and articulation under Article 894.1. Ortego, 382 So.2d at 924.

Unlike the circumstances noted in Sherer and Ortego, in the instant case, there was no abuse of discretion in the imposition of consecutive sentences. The instant record fully supports consecutive sentences for the defendant — a repeat offender, who brutally and without provocation attacked a defenseless woman and |17caused significant physical injury to her face. As the sentencing court correctly concluded, the defendant presents a grave risk to the safety of the community. Further, the trial court adequately complied with LSA-C.Cr.P. art. 894.1(C).

This assignment of error is also without merit.

CONCLUSION

For the above reasons, defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.


source: Caselaw Access Project

author: GAIDRY, J. WELCH, J.,

license: Public Domain

text:
    Tracy Comeaux FLICKINGER v. David J. FLICKINGER.
    No. 2005 CA 2228.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Brian J. Prendergast, Baton Rouge, Counsel for Plaintiff/Appellee Tracy Co-meaux Flickinger.
    Pamela Jean Baker, Baton Rouge, Counsel for Defendant/Appellant David J. Flickinger.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

| ¡.This appeal arises from a trial court judgment setting child support and ordering the father to pay a portion of the minor child’s private school tuition. For the following reasons, we amend in part and affirm as amended, reverse in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

David Flickinger and Tracy Comeaux Flickinger were married on June 21, 1996, and had a son, Benjamin, on November 13, 1997. David began receiving Social Security disability benefits prior to the parties’ marriage, and upon his birth, Benjamin began receiving Social Security benefits due to his father’s disability. David and Tracy were divorced on June 30, 1999. They were awarded joint custody of Benjamin, with Tracy designated as the domiciliary parent, and David was ordered to pay child support to Tracy.

On September 19, 2003, Tracy filed a Rule for Review of Custody, Arrearages, Contempt of Court and Attorney’s Fees, asking the court to review the custody arrangement and designation of school for the fall semester because Benjamin was about to start kindergarten. David filed a Motion to Change Custody on January 19, 2005, alleging that there had been a change in circumstances materially affecting Benjamin’s welfare and that it was in Benjamin’s best interest for David to be named the domiciliary parent or alternatively for the parties to share physical custody equally.

In a stipulated judgment, signed by the court on June 14, 2005, it was ordered that the parties would continue to have joint custody of Benjamin, with Tracy being designated as the domiciliary parent. Pursuant to this judgment, David would have physical custody of Benjamin during the school year on every other weekend from Thursday after school until ^Monday before school and on all of Tracy’s work days from after school until 5:30 p.m. During the summer, David would have physical custody of Benjamin for six weeks, and also for all of Tracy’s working hours during the four weeks of summer that Benjamin is with Tracy. David would also have physical custody on certain designated holidays.

In a separate June 16, 2005 judgment, the court ordered David to pay Tracy $239.84 a month in child support, starting May 4, 2005. In addition to this amount, the court ordered that Tracy also receive Benjamin’s monthly child benefit from the Social Security Administration, which was approximately $520.00 per month. The court also ordered David to pay 43% of Benjamin’s private school tuition for the 2003-2004 school year and 41% of the private school tuition for the 2004-2005 school year.

David appealed this judgment, assigning the following trial court errors:

1. The trial court erred in failing to consider Benjamin’s social security disability check “income of the child.”
2. The trial court erred in holding that the social security disability check, received by Benjamin as a result of David’s disability, constitutes benefits received from a means-tested public assistance program.
3. The trial court erred in failing to include Benjamin’s social security check in the gross income of the domiciliary parent for purposes of calculating child support.
4. The trial court erred in ordering that the entire social security check received by Benjamin as a result of David’s disability, is to be allocated and paid in full to the domiciliary parent.
5. The trial court erred in failing to calculate child support in accordance with La. R.S. 9:315.9, when the custody plan provides for physical custody with the non-domiciliary parent for an approximately equal amount of time as with the domiciliary parent, or alternatively, the trial court erred in failing to deviate from the child support guidelines for the extended amounts of time that David has physical custody during the holidays, school year, and during times when Tracy is working.
146. The trial court erred in ordering David to pay a proportionate share of private school tuition.
7. The trial court erred in ordering David to pay private school tuition retroactive to the beginning of the 2003/2004 school year.

DISCUSSION

Social Security Disability Benefits Paid to the Child

At the time the judgment on appeal in this case was rendered, La. R.S. 9:315.7 provided that income of the child that can be used to reduce the basic needs of the child may be considered as a deduction from the basic child support obligation. This court interpreted § 315.7 in Kelly v. Kelly, 99-2478 (LaApp. 1 Cir. 12/22/00), 775 So.2d 1237, to entitle the parent on whose behalf social security disability benefits were paid to a full credit against his percentage share of the total child support obligation. After the judgment in the instant case was rendered, however, this court overruled Kelly in Salles v. Salles, 04-1449 (LaApp. 1 Cir. 12/2/05), 928 So.2d 1, holding that the amount of social security benefits received by the child should instead be deducted from the total basic child support obligation. After the ruling in Salles, the legislature amended La. R.S. 9:315.7 by Acts 2006, No. 386, § 1, effective August 15, 2006, to add subsection (D), which provided: “social security benefits received by a child due to the earnings of a parent shall be credited as child support to the parent upon whose earning record it is based, by crediting the amount against the potential obligation of that parent.”

Louisiana Civil Code article 6 provides that substantive laws apply prospectively only, while procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary. Interpretative laws are those that clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. | Cheron v. LCS Corrections Services, Inc., 02-1049 (La.App. 1 Cir. 2/23/04), 872 So.2d 1094, 1101, writ granted 04-0703 (La.5/14/04), 872 So.2d 532, affirmed 04-0703 (La.1/19/05), 891 So.2d 1250. As a general rule, an appellate court is bound to adjudge a case before it in accordance with the law existing at the time of its decision. Segura v. Frank, 93-1271 (La.1/14/94), 630 So.2d 714, 725. In cases where the law has changed during the pendency of the suit and retroactive application of the new law is permissible, the new law applies on appeal even though it requires reversal of a trial court judgment that was correct at the time it was rendered. Segura, 630 So.2d at 725.

The Digest prepared by the House Legislative Services, while not part of the actual legislative instrument, provides a summary of the amendments adopted by the House. It provides that HB No. 539, 2006 Reg. Sess. (La.2006) “Changes [La. R.S. 9:315.7] to clarify that social security benefits received by a child due to the earnings of a parent shall be credited as child support to the parent.” (Emphasis added). Thus, the amendment to La. R.S. 9:315.7 is clearly interpretive and meant only to clarify the meaning that the statute had at the time it was enacted, ie., that social security benefits received by a child due to the earnings of a parent shall be credited as child support to the parent and is applicable to the instant matter on appeal.

The trial court in this case, however, did not reduce the basic child support obligation by the amount of social security benefits received. The court interpreted La. R.S. 9:315.7 differently than this court had in Kelly, and found that the social security check received by the child should not be considered income of the child at all. This was legal error.

We therefore reverse that portion of the trial court judgment ordering David to pay $239.84 per month in child support. Because the amount of |fithe social security benefit received by Benjamin is not in the record, we remand this issue to the trial court so that the amount of David’s child support obligation can be reduced by the amount of the social security benefit received by Benjamin.

Shared Custody

In fixing the amount of child support, the trial court applied La. R.S. 9:315.8(E):

“Joint Custody” means a joint custody order that is not shared custody as defined in R.S. 9:315.9.
(1) In cases of joint custody, the court shall consider the period of time spent by the child with the nondomiciliary party as a basis for adjustment to the amount of child support to be paid during that period of time.
(2) If under a joint custody order, the person ordered to pay child support has physical custody of the child for more than seventy-three days, the court may order a credit to the child support obligation. A day for the purposes of this Paragraph shall be determined by the court; however, in no instance shall less than four hours of physical custody of the child constitute a day.
(3) In determining the amount of credit to be given, the court shall consider the following:
(a) The amount of time the child spends with the person to whom the credit would be applied. The court shall include in such consideration the continuing expenses of the domiciliary party.
(b) The increase in financial burden placed on the person to whom the credit would be applied and the decrease in financial burden on the person receiving child support.
(c) The best interests of the child and what is equitable between the parties.
(4) The burden of proof is on the person seeking the credit pursuant to this Subsection.

David disagrees with the application of La. R.S. 9:315.8, and argues that he actually has shared custody of Benjamin, and that child support should be set in accordance with La. R.S. 9:315.9. In order |7for custody to be “shared” under § 315.9, each parent must have physical custody of the child for an approximately equal amount of time. La. R.S. 9:315.9(A)(1).

In setting the child support, the court stated that it was looking to § 315 and taking into consideration the extended time spent by David with Benjamin, while also taking Tracy’s “fixed overhead” into consideration. The court gave David a 100% credit for the six weeks he spends with Benjamin over the summer, but prorated that amount over the whole year. David did not argue at the trial of the child support issue that the parties had shared custody, and we are unable to determine from the record exactly how much time David spends with Benjamin. In addition to his Thursday afternoon through Monday morning visitation every other week and his six weeks during the summer, David has Benjamin for several holidays and for the times when Tracy works. Without knowing Tracy’s work schedule, it is impossible for us to determine exactly how much time David spends with Benjamin. Therefore, we find no manifest error in the trial court’s application of La. R.S. 9:315.8.

Private School Tuition

A trial court judgment adding private school tuition expenses to the basic child support obligation will not be disturbed absent an abuse of discretion. Valure v. Valure, 96-1684, p. 3 (La.App. 1 Cir.6/20/97), 696 So.2d 685, 687. Louisiana Revised Statutes 9:315.6(1) allows for the inclusion of private school educational expenses in the calculation of child support by either agreement of the parties or by order of the court. In the absence of an agreement by the parties, in order to warrant the inclusion of private school tuition expenses in a child support award, some evidence |smust be presented to show a need of the child which is met by attendance at a private school. The need of the child met by the special or private school need not be a particular educational need, but may include the need for stability or continuity in the child’s educational program. La. R.S. 9:315.6, Comment — 2001.

David argues on appeal that the trial court erred in ordering him to pay a portion of Benjamin’s private school tuition because there was no agreement between the parties to include private school tuition in the child support and that Benjamin had no special need which would be met by the private school. David alleges that Tracy unilaterally decided to enroll Benjamin in private school and that he did not file a motion to have the court review this decision because he could not afford to do so.

As the domiciliary parent, Tracy has the authority under La. R.S. 9:335(B)(3) to “make all decisions affecting the child unless an implementation order provides otherwise.” La. R.S. 9:335(B)(3) also provides that all major decisions made by a domiciliary parent are subject to review by the court upon motion of the other parent and that there is a presumption that all major decisions made by the domiciliary parent are in the best interest of the child.

The parties testified that they had discussed putting Benjamin in private school before he was born. When the time came to enroll Benjamin in school, Tracy gave David information on two different private schools. David did not discuss the issue with her and said that he was going to let the court decide where Benjamin went to school. Tracy then filed the September 19, 2003 rule asking the court to review the school choice for Benjamin. David did not file anything himself to object to the enrollment. 13In ordering David to pay a percentage of. Benjamin’s private school tuition, the court stated:

[I]t is overwhelmingly clear to the court that there was only one person who participated in meeting the needs of the child in placing the child in a school, and that was Ms. Flickinger. You dropped the ball, Mr. Flickinger. You just decided that you were going to have the court make that decision, but didn’t come to the court to make the decision. The child, obviously, had to be placed in school. That was the child’s immediate need. Ms. Flickinger put the child in a private school. She satisfied the requirements of [La. R.S. 9:315.6] so that the private school tuition for those two years is in fact your obligation....

Under the circumstances, we do not find that the trial court abused its discretion in ordering David to pay a percentage of Benjamin’s private school tuition.

David also alleges that the trial court erred in ordering him to pay private school tuition retroactively, since there was never a demand made for payment of private school tuition, and La. R.S. 9:315.21(0 provides that “[e]xeept for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.” (Emphasis added). Tracy argues that the judicial demand for tuition to be included in the child support award was contained in her September 19, 2003 rule, which stated:

The minor child, namely, Benjamin Paul Flickinger, has attained the age of five (5) and is about to commence kindergarten in the fall semester of 2003. Therefore, petitioner, Tracy Comeaux Flick-inger, desires that this court review the custody arrangements and designation of school for the upcoming fall semester.

Tracy also sought payment of child support arrearages in her September 19, 2003 rule. In an exhibit outlining the arrearag-es owed from December 1999 to the date of the rule, Tracy lists expenses such as tuition, school enrollment fees, materials fees, technology fees, and after-school care fees, starting in |TnJune 2003. It is clear from a review of this pleading and its attachments that a demand was being made for payment of private school tuition. The trial court did not err in retroactively ordering David to pay a portion of Benjamin’s private school tuition. However, the trial court could not order David to pay those tuition-related expenses claimed by Tracy which arose prior to the date of demand, September 19, 2003. We therefore amend the trial court judgment to order David to pay 43% of that portion of the private school tuition for the 2003-2004 school year that accrued after September 19, 2003.

DECREE

The trial court judgment is amended to order David to pay 43% of only that portion of Benjamin’s 2003-2004 private school expenses that accrued after the date of judicial demand, September 19, 2003, and affirmed as amended. The portion of the judgment ordering David to pay $239.84 in child support is reversed, and this matter is remanded to the trial court so that the court can determine the amount of Benjamin’s monthly social security benefit and reduce David’s support obligation by that amount. In all other respects, the judgment is affirmed. Costs of this appeal are to be shared equally by the parties.

AMENDED IN PART AND AFFIRMED AS AMENDED, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

WELCH, J., dissents in part with reasons.

WELCH, J.,

dissenting in Part.

hi respectfully disagree with the majority opinion insofar as it affirms the trial court’s decision to retroactively order Mr. Flickinger to pay 43% of the child’s private school tuition, and amends the trial court’s judgment to order Mr. Flickinger to pay that expense retroactive to September 19, 2003.

The majority reasons that Mrs. Flick-inger’s Rule for Review of Custody, Ar-rearages, Contempt of Court and Attorney Fees, filed on September 19, 2003, which requests the court to “review the ... designation of school,” together with an attachment to that pleading setting forth arrears allegedly owed by Mr. Flickinger, (which included tuition and related expenses), clearly indicates that demand was being made for the payment of private school tuition. Thus, the majority concludes that Mrs. Flickinger’s rule constituted judicial demand for a modification of child support to include private school tuition.

Louisiana Revised Statutes 9:311(A) provides that “[a]n award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.” Absent from Mrs. Flickinger’s September 19, 2003 rule is (1) a factual allegation concerning a material change in circumstances of one of the parties that has occurred since the rendition of the previous award of child support in November 1999 and (2) a request that the trial court modify Mr. Flickinger’s child support obligation. Thus, I do not believe that Mrs. Flickinger’s September 19, 2003 rule 12constituted judicial demand for a modification of the November 1999 award of child support, and I would reverse the judgment of the trial court on this issue.

In all other respects, I agree with the majority opinion.


author: PARRO, J.

text:
    STATE MACHINERY & EQUIPMENT SALES, INC. v. IBERVILLE PARISH COUNCIL.
    No. 2005 CA 2240.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Murphy J. Foster, III, Steven B. Loeb, John T. Andrishok, Yvonne Reed Olinde, Breazeale, Sachsé & Wilson, L.L.P., Baton Rouge, for Plaintiff-Appellant State Machinery & Equipment Sales, Inc.
    James P. Doré, Amy D. Berret, R. Benn Vincent, Kean, Miller, Hawthorne, D’Ar-mond, McCowan & Jarman, L.L.P., Baton Rouge, for Defendanb-Appellee Iberville Parish Council.
    Before: PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

Instate Machinery & Equipment Sales, Inc. (State Machinery) appeals a judgment dismissing its Public Bid Law claims against the Iberville Parish Council (Iber-ville). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

During February and March 2005, Iber-ville published advertisements soliciting bids for its proposed purchase of an excavator and wheel loader. Because the estimated cost of each piece of equipment exceeded $20,000, the bids were subject to the Louisiana Public Bid Law. The bid opening date was specified as March 8, 2005; complete bid specifications were available at the Iberville purchasing de-partraent in Plaquemine, Louisiana. State Machinery’s business is construction equipment rentals and sales. It reviewed the bid specifications and submitted a timely bid on the two pieces of equipment. When the bids were opened, State Machinery was the lowest bidder on both items.

However, on March 9, 2005, Iberville notified State Machinery in writing that both of its bids were being rejected. One of the specifications for both pieces of equipment was that the machine and engine be provided by the same manufacturer. Neither of the bids submitted by State Machinery met this specification. In addition, Iberville advised that the warranty for the excavator was not acceptable, and the wheel loader warranty was also insufficient, as there was no engine warranty attached to the bid. On March 15, 2005, State Machinery sent Iberville a formal protest of the disqualification of its bids, requesting a hearing on the matter. A meeting was held between the parties, at which some of the alleged deficiencies in the State Machinery bid were discussed. Iberville did not change its decision as a result of this meeting, and ^awarded the contract for both items to the next lowest responsive bidder, Scott Construction Equipment (Scott), whose bid using Volvo equipment met 100% of the bid specifications on both pieces of equipment.

State Machinery filed suit against Iber-ville on March 24, 2005, requesting preliminary, permanent, and mandatory injunctions, along with a writ of mandamus and, in the alternative, damages. The petition alleged that Iberville’s disqualification of State Machinery’s bids was in contravention of Louisiana’s Public Bid Law. State Machinery alleged that the equipment described on its bid was the functional equivalent of the equipment in the bid specifications and, because it had submitted the lowest responsible and responsive bid, Louisiana law required that the contract be awarded to it. State Machinery also filed a motion for a preliminary injunction.

The parties stipulated that the May 5, 2005 hearing on the motion for a preliminary injunction would also serve as the trial of the request for a permanent injunction. Following that hearing, at which both sides called witnesses and submitted documentary evidence, the trial court ruled in favor of Iberville, finding it was not arbitrary and capricious and Identifying three objective reasons for Iberville’s rejection of State Machinery’s bids, namely: (1) the failure to include any warranty for the wheel loader engine; (2) the failure to comply with the “wet sleeve” engine design requirement in the excavator specifications; and (3) the failure to satisfy the requirement on both pieces of equipment that the engines and machines be manufactured by the same company. A judgment dismissing State Machinery’s claims was signed on May 25, 2005, and this appeal followed.

APPLICABLE LAW

Injunction

An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law. LSA-C.C.P. art. 3601(A). Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer, irreparable injury, logs, or damage if the injunction does not issue and must show entitlement to the relief sought; this must bejjdone by a prima facie showing that the party will prevail on, the merits of the case. Sorrento Companies, Inc. v. Honeywell Int’l, Inc., 04-1884 (La.App. 1st Cir.9/23/05), 916 So.2d 1156, 1163, writ denied, 05-2326 (La.3/17/06), 925 So.2d 541. A showing of irreparable harm is not required in cases where the conduct sought to be restrained is unlawful, as when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law. See Jurisich v. Jenkins, 99-0076 (La.10/19/99), 749 So.2d 597, 599. The issuance of a preliminary injunction addresses itself to the sound discretion of the trial court and will not be disturbed on review unless a clear abuse of discretion has been shown. Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04-0270 (La.App. 1st Cir.3/24/05), 906 So.2d 660, 663.

A petitioner seeking a preliminary injunction is required to offer less proof than is necessary in an ordinary proceeding for a permanent injunction. See Derbes v. City of New Orleans, 051249 (La.App. 4th Cir.8/30/06), 941 So.2d 45, 53-54. The issuance of a permanent injunction takes place only after a trial on the merits, in which the burden of proof must be founded on a preponderance of the evidence. Hughes v. Muckelroy, 97-0618 (La.App. 1st Cir.9/23/97), 700 So.2d 995, 998. The manifest error standard is the appropriate standard of review for the issuance of a permanent injunction. Parish of East Feliciana ex rel. East Feliciana Parish Police Jury v. Guidry, 04-1197 (La.App. 1st Cir.8/10/05), 923 So.2d 45, 53, writ denied, 05-2288 (La.3/10/06), 925 So.2d 515.

It is unclear which burden of proof and which standard of review are applicable when the parties have agreed, as in this case, that the hearing on the motion for a preliminary injunction will also constitute the trial on the merits for a permanent injunction. In the matter before us, the parties agreed before the hearing that it would constitute the trial on the merits for a permanent injunction, and the trial court conducted the hearing accordingly, requiring the plaintiff to satisfy its burden of proof by a preponderance of the evidence. However, in the only case specifically discussing a consolidation of such hearings, the supreme court apparently approved the treatment of the proceeding as if it were a hearing on the motion for a preliminary injunction. In Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 03-2220 (La.4/14/04), 875 So.2d 22, 29, the court stated the following:

In this case, the parties agreed to a consolidation of the trial on the merits and the rule of the preliminary injunction. Under these circumstances, the permanent injunction is not a result of a trial on the merits, but is based on a prima facie showing by the plaintiff that he is entitled to a preliminary injunction. Given the stipulation in this case, the court of appeal determined the district court used the standard for granting a preliminary injunction, i.e. a prima facie showing, instead of a preponderance of the evidence standard. Thus, the court of appeal held the standard of review for the conclusions made by the district court based on its findings of fact were not subject to the higher burden of proof and, therefore, should not be subject to the higher standard of review. We agree and engage in a de novo review of the court of appeal’s granting of the permanent injunction ....

In the footnote appended to this paragraph, the supreme court noted:

FN2. Moreover, we denied the [plaintiffs’] writ application in which the [plaintiffs] raised as their sole assignment of error the appellate court’s use of the de novo standard of review. See Mary Moe, L.L.C., et al. v. Louisiana Board of Ethics, 03-2200 (La.11/26/03), 860 So.2d 1133.

The fourth circuit’s opinion is unpublished, and the quoted footnote from the Moe case does not explain what justified the appellate court’s use of a de novo review.

In light of these apparent anomalies, and in an effort to clarify the supreme court’s discussion of these procedural matters, this court obtained a copy of the unpublished opinion of the fourth circuit. In that case, the trial court issued a temporary restraining order and held a hearing on the plaintiffs’ motion for a preliminary injunction. At the conclusion of that hearing, in which the trial court had required the plaintiffs to establish only a prima facie showing of their entitlement to relief, the court noted its intention to grant the preliminary injunction. At that point, the parties stipulated that they would waive their right to a trial on the merits and consent to the entry of a final judgment and a permanent, rather than a preliminary, injunction, based on the hearing that had already occurred. Therefore, the parties in the Moe ease agreed to accept the trial court’s ruling on the preliminary injunction as the final judgment on the request for a permanent injunction. This contrasts to the |fisituation before us, in which the parties’ consent was obtained before the hearing, and the hearing was conducted as a full trial on the merits of the permanent injunction.

In addition, the fourth circuit recognized that the proper standard of review for the issuance of a permanent injunction is the manifest error standard, because the issuance of a permanent injunction generally takes place only after a trial on the merits, in which the burden of proof must be founded on a preponderance of the evidence. However, under the unique circumstances of that case, in which the trial court granted the preliminary and permanent injunction based on only a prima facie showing, the fourth circuit stated that it would apply the manifest error review only to the findings of fact, and that the trial court’s conclusions of law based on those findings would be reviewed de novo.

Given the unusual procedural background underlying the fourth circuit’s application of the prima facie burden of proof and the de novo standard of review, we believe the supreme court’s statements on these issues are inapplicable to the situation before us. In this case, a full trial on the merits was held and the burden of proof to which the plaintiff was held was the preponderance of the evidence standard, which is the appropriate standard for the request for permanent injunc-tive relief. Accordingly, our review is of a trial on the merits of the request for a permanent injunction. Therefore, the manifest error standard of review is appropriate in this case.

Public Bid Law

This case is governed by the provisions of the Louisiana Public Bid Law, Louisiana Revised Statutes 38:2211 through 2226. Louisiana’s Public Bid Law is a prohibitory law founded on public policy. Broadmoor, L.L.C. v. Ernest N. Morital New Orleans Exhibition Hall Auth., 04-0211 (La.3/18/04), 867 So.2d 651, 656. The statute was enacted in the interest of the taxpaying citizens for the purpose of protecting them against contracts of public officials entered into because of favoritism and involving exorbitant and extortionate prices. A political entity has no authority to take any action which is inconsistent with the Public Bid Law. Id.; Louisiana Associated Gen. Contractors, Inc. v. Louisiana Dep’t of Agric. & Forestry, 05-0131 (La.2/22/06), 924 So.2d 90, 95.

This case does not involve a “public work,” as that term is defined in LSA-R.S. 38:2211(A)(12), because it does not deal with the erection, construction, alteration, improvement, or repair of any public facility or immovable property owned, used, or leased by a public entity. Therefore, the provisions of LSA-R.S. 38:2212 do not apply to the bidding process and contract at issue in this appeal, because that statute applies only to “[a]ll public work exceeding the contract limit as defined in this Section.” However, it does involve a “public contract,” as that term is defined in LSA-R.S. 38:2211(A)(10), because it is a contract awarded by a public entity for the purchase of materials or supplies. As such, the bidding process and contract in this case are governed by the provisions of LSA-R.S. 38:2212.1.

Under its provisions, all purchases of materials or supplies exceeding the sum of twenty thousand dollars to be paid out of public funds must be advertised and awarded by contract to the lowest responsible bidder who has bid according to the specifications as advertised. LSA-R.S. 38:2212.1(A)(l)(a). The opening of such bids is governed by the provisions of LSA-R.S. 38:2214. LSA-R.S. 38:2212.1(J). A public entity may reject any and all bids for just cause. LSA-R.S. 38:2214(B). The statute defines certain situations that constitute “just cause,” but the definition is not limited to those circumstances. LSA-R.S. 38:2214(B); Barriere Const. Co., LLC v. Terrebonne Parish Consol. Gov’t, 992271 (La.App. 1st Cir.2/18/00), 754 So.2d 1123, 1126, writ denied, 00-0801 (La.5/5/00), 761 So.2d 546. The proper interpretation of the statute is that the public entity must have just cause to reject any bid and, likewise, it must have just cause to reject all bids. This requires that the public entity have a just, reasonable basis for rejecting a bid, yet it does not dictate that it must reject bids on every occasion where such a reason is found to exist. New Orleans Rosenbush Claims Serv., Inc. v. City of New Orleans, 94-2223 (La.4/10/95), 653 So.2d 538, 545.

When a public entity uses public funds to purchase materials or supplies in a manner that is contrary to the provisions of the Public Bid Law, the contract is null and void. LSA-R.S. 38:2220(A); see Louisiana Associated Gen. Contractors, Inc. v. Calcasieu Parish Sch. Bd., 586 So.2d 1354, 1362 n. 14 (La.1991). The failure to award the contract to the lowest responsive and responsible bidder is a violation of the Public Bid Law. See Ray Anding Const, Inc. v. Monroe City Sch. Bd., 38,228 (La.App. 2nd Cir.3/5/04), 867 So.2d 1005, 1007. Under the provisions of the Public Bid Law, a public entity is required to award a public contract to the “lowest responsible bidder”; however, this does not mean that the public entity is required to accept the lowest monetary bid. Louisiana Associated Gen. Contractors, Inc., 586 So.2d at 1362.

Any interested party may bring suit through a summary proceeding to enjoin the award of a contract or to seek other appropriate injunctive relief to prevent the award of a contract that would be in violation of the Public Bid Law. LSA-R.S. 38:2220(B) and 2220.1. If an aggrieved bidder on a public contract has timely filed suit for injunctive relief, but injunctive relief is no longer available, the bidder may recover damages against the public entity. The question of whether the contract was properly awarded is not rendered moot by the fact that injunctive relief is no longer available. See State Mach, and Equip. Sales, Inc. v. Livingston Parish Gravity Drainage Dist. # 5, 00-2066 (La.App. 1st Cir.11/14/01), 818 So.2d 133,137.

ANALYSIS

State Machinery’s first assignment of error is that the trial court erred in requiring it to establish by a preponderance of the evidence that Iberville’s rejection of [ 9its bids was arbitrary and capricious. As noted in our discussion of the Moe case, it appears the supreme court approved the use of the prima facie burden of proof when the parties agreed after the hearing on the motion for a preliminary injunction to accept the court’s decision as a final judgment on the request for a permanent injunction. In contrast, the parties in this case agreed before the hearing that it would serve as a full trial on the merits, and the trial court conducted the hearing pursuant to that stipulation, including the requirement that State Machinery satisfy the more exacting preponderance of the evidence burden of proof. Under this situation, the trial court did not err in applying that burden of proof, and this court will review the judgment using the manifest error standard of review.

State Machinery argues that because it had submitted the “lowest responsible bids,” the burden of proof shifted to Iberville to establish “just cause” for rejecting its bids. However, none of the cases cited by State Machinery support a shift in the burden of proof solely on that basis, but merely reiterate the statutory requirement in Section 2214(B) that the public entity must have just cause to reject any or all bids. Whether seeking preliminary or permanent injunctive relief, it is the plaintiff who bears the ultimate burden of proof. Accordingly, we- reject State Machinery’s contention that the trial court erred in failing to shift the burden of proof to Iberville under the facts of this case.

To establish its entitlement to injunctive relief, the aggrieved bidder must show that in addition to submitting the lowest monetary bid, it bid according to the specifications as advertised. According to the clear language of LSA-R.S. 38:2212.1(A)(l)(a), simply submitting the lowest monetary bid will not demonstrate entitlement to an award of the contract; the statute requires that the contract be |inawarded “to the lowest responsible bidder who has bid according to the specifications as advertised .... ” (Emphasis added). It follows that if a bid deviates from the specifications as advertised, the aggrieved bidder who seeks injunctive relief must explain those deviations and satisfy the court that such differences are insignificant, pretextual, or insubstantial, and thus could not constitute “just cause” for rejection of the bid.

Having addressed these initial procedural issues, we turn our attention to the arguments on the substantive issues, all of which ultimately involve whether State Machinery’s equipment was the functional equivalent of the bid specifications and whether Iberville had “just cause” to reject State Machinery’s bids. At the outset, we note that the bid specifications on both pieces of equipment stated in unambiguous terms that the engine manufacturer must be the same as the machine manufacturer. The bids submitted by State Machinery consisted of Hyundai machines with Cummins engines — an obvious deviation from that specification. Therefore, State Machinery had to show by a preponderance of the evidence that this was not a significant or substantive deviation, such that rejection of its bid for this reason (among others) was not “just cause,” but was arbitrary and capricious.

Edward L. Renton, State Machinery’s president, testified that both of its bids included Hyundai machines with Cummins engines. Although its bids did not meet all of the specifications, each deviation was explained in the bid documents. During the post-bid meeting with Iberville, there was no discussion concerning the fact that its bids did not meet the “same manufacturer” requirement. Rather, the discussion focused on a comparison of the scope of the warranties provided by State Machinery to those offered by Scott on its bids; Scott’s warranty covered a longer period of time. Renton pointed out that the specifications on the excavator did not even mention a warranty requirement. Despite this omission in the bid specifications, State Machinery’s bid did state the scope of its warranty for the Hyundai machine; it did not provide any warranty information on the Cummins engine. On the wheel loader, State Machinery provided a copy of the machine warranty, but did not attach a warranty or provide any warranty |, information concerning the engine. The bid specifications did not say what period of time had to be covered by the wheel loader warranty. Renton said he offered to provide additional information concerning warranties, but Iberville would not accept it.

Renton recalled that the Iberville representatives agreed that all of the machines, including those on State Machinery’s bid, could do the work required by Iberville. He said there was also some discussion about whether State Machinery could provide parts and service for both the machine and the engine. Renton acknowledged that the bid specifications did not name a particular make of equipment, but that the engine and machine manufacturer must be the same. He said that all of the equipment provided by any manufacturer included component parts made by other manufacturers, and opined that as long as the equipment fit the specifications of horsepower, operating weight, size class of machine, etc., they were all functionally equivalent. Renton said that only Volvo could meet the specification that the engine and machine manufacturer be the same for these pieces of equipment.

Todd Urby, who handled heavy equipment sales for State Machinery, also testified. He said that in addition to the Volvo equipment that Scott bid, John Deere also makes the machines and engines for their excavators and wheel loaders. So John Deere equipment would also meet the specification of having the same manufacturer on the machine and engine. However, he reiterated Renton’s testimony that when they met with the Iberville representatives to discuss the rejection of State Machinery’s bid, the only discussion concerned the warranty situation.

Randall Dunn, Iberville’s director of finance, stated that one of his duties includes the preparation of bids and specifications for Iberville when it needs to make a purchase. He said that when he develops the specifications, he has to rely on the equipment operators and mechanics to look at the machinery and describe the features that would meet their needs for operation and maintenance. On this particular bidding process, the mechanics specified that the machine and engine should be from the same manufacturer, primarily because of warranty considerations. The mechanics found separate warranties confusing. Also, when different parts of a piece of equipment had 11?jdifferent warranties, the mechanics could not always get service for that equipment at one location. So this requirement was of particular importance to them. Dunn explained:

[Wjhen you’re dealing with one — more than one warranty, warranty on an engine, warranty on a piece of machinery, nine times out of ten, you have to go with a separate service. You have to have the engine serviced at one location and the machine serviced at another location.
So, we want to have the engine manufacturer the same as the machine manufacturer/just as if you were buying a car. Ford, Ford engine; Chevy, Chevy engine. It goes to ... one place to be fixed.

As a financial officer, Dunn did not have expertise in heavy construction equipment, so all of the specifications he included in the bids, including such things as “wet sleeve” design- and outboard brakes, were the result of recommendations made by the mechanics for their ease in repairing and servicing the equipment over the course of the many years it would be in use. He also said that after reviewing those recommendations and developing the preliminary bid specifications, he went to the internet to be sure there were manufacturers who could meet those criteria. He denied using the Volvo specifications to develop the bid requirements, reiterating that those criteria were put together in his office when he interviewed the mechanics to determine what should be included to meet their needs. Dunn also noted that for the wheel loader, Crawler Supply Company’s bid, although high, was for Case equipment that had the engine and machine manufactured by the same company.

With reference to the warranty information submitted by State Machinery, as compared to the other bidders, Dunn said that all the other bidders included warranty documentation on both the engines and the machines, even if those were made by different manufacturers. When the warranty information was reviewed, the Scott warranty covered twelve months from the first date of service or 2500 hours, whichever came first. State Machinery’s warranty said 360 days and 1500 hours, whichever came first. Although no minimum warranty term was specified in the bids, Iberville preferred liathe longer warranty. He said Iberville could not allow State Machinery to supplement its bid with additional warranty information after the bids were opened, as this would have been a violation of the Public Bid Law. Dunn said that the meeting with Renton and Urby concerning the rejection of State Machinery’s bids was cut short by Renton, who left abruptly before some of the other bid deficiencies could be discussed.

During the trial, the court analogized State Machinery’s claims to a situation in which a bid specification stated that the construction equipment had to be green, and only one manufacturer made green equipment. Such a specification would be closed to all other bidders on the basis of meaningless criteria, and the awarding of a bid based on such a limitation would be without just cause, arbitrary, and capricious. State Machinery argues that the specifications for the excavator and wheel loader in this case could only be met by Volvo, and thus, even though the bid specifications did not state a manufacturer by name, the effect was the same as a closed specification bid. In Louisiana Associated Gen. Contractors, Inc., 586 So.2d at 1364, the supreme court stated that LSA-R.S. 38:2290, commonly referred to as the “Closed Specification Statute,” supplements the low bidder statute. It provides, in pertinent part:

A. No architect or engineer, either directly or indirectly, shall submit a closed specification of a product to be used in the construction of a public building or project, unless all products other than the one specified would detract from the utility of the building or except in those cases where a particular material is required to preserve the historical integrity of the building or the uniform appearance of an existing structure.
B. A closed specification shall not be submitted or authorized when any person or group of persons possess the right to exclusive distribution of the specified product, unless the product is required to expand or extend an existing system presently operating at the facility or site.

State Machinery’s argument is also based, in part, on LSA-R.S. 38:2212.1(0), which allows a public entity to specify a particular brand, make, or manufacturer in the specifications when technical equipment, apparatus, machinery, materials, or supplies of a certain type are clearly in the public interest. LSA-R.S. 38:2212.1(0(1). In such a case, the specifications must also state clearly that they are used only to denote the quality standard of the product desired and do not restrict bidders to that specific lubrand, make, manufacturer, or specification named. Such bid specifications must also state that equivalent products will be acceptable. LSA-R.S. 38:2212.1(0(2).

This court agreed with similar arguments by State Machinery and ruled in its favor in State Mach. & Equip. Sales, Inc. v. Livingston Parish Gravity Drainage No. 5, 98-1207 (La.App. 1st Cir.6/25/99), 742 So.2d 26. In that case, the evidence established that the bid specifications tracked one manufacturer’s product description to such an extent that, although no brand name was specified, the criteria were so limited that the effect was that of a closed specification bid. For that reason, only one manufacturer’s product could and did meet the bid specifications, and State Machinery’s lower monetary bid was rejected by the public entity. Under these circumstances, this court said:

We conclude, based upon the evidence presented and the testimony adduced at trial, that in addition to being the lowest bid received, the State Machinery bid was also the lowest responsible bid. Accordingly, we hold that the drainage district lacked “just cause” and was arbitrary and capricious in its rejection of State Machinery’s bid proposal.

State Machinery, 742 So.2d at 33-34.

However, unlike that situation, the evidence in this case did not establish that the Volvo equipment was the only type that could meet the bid specifications, nor was any particular manufacturer’s name specified. For this reason, the Iberville bid specifications did not constitute a closed bid. Moreover, while State Machinery’s equipment may have been able to perform the basic functions for which it was being purchased, there were other reasonable objectives for this equipment involving ease of repair and the ability to service both the engine and machine at one place under a single warranty. These additional criteria were not meaningless, but were important to the operators and mechanics who would be using and repairing the equipment on a daily basis for many years. Thus, in those respects, the State Machinery equipment was not the “functional equivalent” of the equipment described in the Iberville bid specifications. We find no manifest error in the trial court’s findings on this matter, and conclude that on this basis alone, Iberville had “just cause” to reject the State | ^Machinery bid. We agree with the trial court, therefore, that State Machinery failed to establish by a preponderance of the evidence that it was the lowest responsible bidder who bid according to the specifications as advertised, such that the rejection of its bid was arbitrary and capricious.

CONCLUSION

Based on the foregoing, we affirm the judgment of May 25, 2005, dismissing State Machinery’s claims against Iberville. All costs of this appeal are assessed against State Machinery.

AFFIRMED.

      . LSA-R.S. 38:2211 through 2226. The $20,000 threshold applicable to this case is provided by LSA-R.S. 38:2212.1(A)(1)(a).

      . CLM Equipment Company submitted alternative bids on the excavator, one for $155,-747 — the lowest bid — and one for $180,215— the highest bid. It also bid $98,175 on the wheel loader. However, all of its bids were disqualified for various reasons. The other bidders on the excavator were Scott Construction Equipment, with a bid of $169,990, and State Machinery, with the low bid of $164,489. On the wheel loader, Crawler Supply Company, Inc. bid $104,829, Scott Construction Equipment bid $99,990, and State Machinery bid $84,176.

      . Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 02-2135 (La.App. 4lh Cir.6/4/03) (unpublished opinion).

      . The contract limit is defined in sub-paragraph (A)(1)(d) as "equal to the sum of one hundred thousand dollars per project, including labor, materials, and equipment .Ah though the total purchase price involved in this contract exceeded one hundred thousand dollars, the project did not involve a public facility or immovable property, and therefore, was not a "public work” contract subject to Section 2212.

      . The delineation of two types of public contracts, as defined in LSA-R.S. 38:2211(A)(10), is also apparent in LSA-R.S. 38:2220 and 2220.1, both of which emphasize that there are two distinct types of contracts covered by the Public Bid Law, namely, any purchase of materials or supplies or any contract entered into for the construction of public works. Before 1999, the two types of public contracts were both covered in LSA-R.S. 38:2212; they were separated by 1999 La. Acts, No. 768, § 1, which deleted from Section 2212 the references to purchases of materials or supplies and re-designated those provisions as Section 2212.1. We note this distinction, because it is not clear from the jurisprudence that the difference between the two types of contracts has been consistently observed. Most of the cases concerning the provisions of the Public Bid Law describe the contracts at issue as involving “public work,” and therefore, the non-waiver restrictions of sub-paragraph (A)(1)(b) and other technical requirements of LSA-R.S. 38:2212 are often invoked by the courts. See, e.g., Hamp's Const., L.L.C. v. City of New Orleans, 05-0489 (La.2/22/06), 924 So.2d 104. However, those provisions are not applicable to this case. Therefore, any reference to such “public work” jurisprudence in this opinion will be to illustrate principles common to both types of public contracts.

      . River/Road Const., Inc. v. City of New Orleans, 95-1782 (La.App. 4th Cir. 1/11/96), 667 So.2d 1166, rav’d on other grounds, 96-0348 (La.3/15/96), 669 So.2d 437; New Orleans Rosenbush Claims Ser., Inc., 653 So.2d 538; Barber Bros. Contracting Co., Inc. v. Dep’l of Transp. & Dev., 529 So.2d 442 (La.App. 1st Cir.), rev’d, 533 So.2d 1226 (La.1988).

      . In addition, as this opinion will discuss, we agree with the trial court that Iberville fully explained its objective, non-pretextual reasons for rejecting State Machinery’s bids, and that these reasons constituted "just cause” for its decision in this case. Therefore, even if there were such a burden of production on Iber-ville, Iberville’s evidence met that burden.

      . That bid also stated that it met 100% of the bid specifications for the wheel loader. Crawler Supply did not bid on the excavator.

      . Accordingly, we pretermit discussion of the "wet sleeve” specification and the wheel loader engine warranty.