author: BLACK, Judge.

text:
    MICJO, INC., a Florida corporation, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 2D11-254.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2012.

      Harry P. Teichman of Bayshore Law Group, Tampa, for Appellant.
    Garnett W. Chisenhall, Chief Appellate Counsel, Tallahassee, for Appellee.
   BLACK, Judge.

Micjo, Inc., appeals the final agency action of the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (AB & T), that requires it to pay $47,649.45, plus interest, in Florida excise taxes to AB & T. In this case of first impression, we are called upon to interpret the phrase “wholesale sales price” as it appears in section 210.25(13), Florida Statutes (2009), and as it appears within the context of Florida’s “Tax on Tobacco Products Other Than Cigarettes or Cigars” (OTP). Because we conclude that AB & T’s interpretation of the statute is contrary to the plain meaning of wholesale sales price and does not include the additional costs that the domestic distributor adds to the manufacturer’s unit price of the tobacco, we reverse. As a result, we do not reach Miejo’s constitutional arguments, and its argument that AB & T failed to challenge a portion of the tax assessment within the relevant statute of limitations is moot.

BACKGROUND

Micjo owns a store that imports and distributes Middle Eastern-themed products, including hookah tobacco. As a Florida tobacco distributor, Micjo is licensed and regulated by AB & T, and the hookah tobacco it distributes is subject to Florida’s OTP tax. During the period relevant to this appeal, Micjo purchased its hookah tobacco from domestic distributors (commonly referred to as middlemen) who imported the tobacco from overseas manufacturers. Micjo paid taxes on the unit price of the tobacco but not on the total invoice price, which included federal excise tax, shipping costs, and various other charges.

In 2009, AB & T audited Miejo’s books and records for May 1, 2006, through April 30, 2009. As a result of the audit, AB & T concluded that Micjo underpaid the Florida OTP tax by $47,649.45, plus accrued interest, because it failed to pay taxes on the total invoice price. On March 8, 2010, AB & T informed Micjo by letter that it was pursuing legal action against Miejo’s tobacco license by filing an administrative complaint. Micjo responded by requesting a formal administrative hearing and disputing AB & T’s calculation of the tax. Micjo also disputed the timeliness of certain of the assessments. The parties agreed on a statement of stipulated facts and agreed “[t]he subject of [the] entire dispute centered] on the legal definition of ‘wholesale sales price.’ ” This resulted in an informal hearing pursuant to section 120.57(2), Florida Statutes (2010). AB & T held the hearing and issued a recommended order. In the order, the hearing officer concluded, “[T]he [wholesale sales price] includes delivery charges and the federal excise taxes. It is all components on the invoice that make up the cost to get the product to the purchaser[;] therefore, all components are subject to be taxed.” Micjo timely filed exceptions to the recommended order, raising the issues set forth in this appeal. On December 17, 2010, the final order was entered rejecting Micjo’s exceptions and adopting AB & T’s recommendations in their entirety. As a result, Micjo filed this appeal.

ISSUE

The essence of the dispute is not complicated and involves a pure question of law. The parties disagree as to the taxable components of the wholesale sales price. Micjo claims that wholesale sales price refers only to the unit price of the actual tobacco product and does not include domestic distributor add-ons which are not explicitly part of the tobacco. AB & T interprets wholesale sales price to mean the invoice price paid by Micjo to the domestic distributors, in its entirety, inclusive of the federal excise tax reimbursements, shipping costs, and other various charges.

ANALYSIS

Florida’s OTP statute imposes both a surcharge and a tax upon the wholesale sales price of tobacco that is regulated by the statute. § 210.276(1) (“A surcharge is levied upon all tobacco products in this state and upon any person engaged in business as a distributor of tobacco products at the rate of 60 percent of the wholesale sales price.”); § 210.30(1) (“A tax is hereby imposed upon all tobacco products in this state and upon any person engaged in business as a distributor thereof at the rate of 25 percent of the wholesale sales price of such tobacco products.”). Wholesale sales price is a defined term under the statute. It is “the established price for which a manufacturer sells a tobacco product to a distributor, exclusive of any diminution by volume or other discounts.” § 210.25(13). There are no Florida cases interpreting the definition of wholesale sales price.

AB & T argues that “established price” equals the invoice price. It reasons that the established price consists of the entirety of a domestic distributor’s invoice price, including federal tax, shipping costs, and other charges, because that money is part of the consideration for the purchase of the tobacco. Thus, it suggests that we read into the statute the requirement that the tax base is the total cost of bringing the product to market in Florida.

In support of this position, AB & T reminds us that we owe deference to its interpretation of the statute because it is given the power to administer the statute in question. Dep’t of Revenue v. First Union Nat’l Bank of Fla., 513 So.2d 114, 119 (Fla.1987) (“[T]he administrative construction of a statute by those charged with its enforcement and interpretation is entitled to great weight, and courts generally will not depart from such construction unless it is clearly erroneous or unauthorized.” (citing Gay v. Canada Dry Bottling Co., 59 So.2d 788, 790 (Fla.1952))). We recognize that this is the general rule. Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146, 1153 (Fla.2000). However, we are not constrained by the administrative construction of a statute when the statute is not ambiguous. Id. (“ ‘Administrative construction of a statute, the legislative history of its enactment and other extraneous matters are properly considered only in the construction of a statute of d,oubtful meaning.’ ” (quoting Fla. State Racing Comm’n v. McLaughlin, 102 So.2d 574, 576-77 (Fla.1958))). Since we find the meaning of this statute and the legislature’s language clear, we reject AB & T’s interpretation and rely on the plain meaning of the words used by the legislature. See id. at 1154.

The statute’s language clearly states that the wholesale sales price is based only on the manufacturer’s price of the tobacco product. The phrase “established price for which a manufacturer sells a tobacco product to a distributor” is given its plain meaning by the statute’s own definitions. The statute defines a “manufacturer” as someone who “manufactures and sells tobacco products.” § 210.25(5). Thus, the definition of manufacturer excludes companies that are solely domestic distributors. This is clear from the statute’s separate definition for “distributors.” See § 210.25(4)(a) (defining the applicable definition for “distributor” as “[a]ny person engaged in the business of selling tobacco products in this state who brings, or causes to be brought, into this state from outside the state any tobacco products for sale”). This plain language indicates that the determination of the established price is at the point when the manufacturer sells the tobacco to the domestic distributor.

Although AB & T focuses on the term established price, it fails to give that term its plain meaning within the context of the sentence. The established price is for the sale of the tobacco product. The various other distributor invoice costs for reimbursement of federal excise tax, shipping costs, and other charges, are not part of the tobacco. See § 210.25(11) (defining “tobacco products”). Although the domestic distributor adds those charges to the total invoice price, they are not part of the price that the domestic distributor paid the manufacturer for the tobacco, and thus, they are not part of the manufacturer’s sales price for the tobacco. Further, items such as shipping costs could vary depending on where the domestic distributor ships the tobacco in Florida, and the total invoice price for the same tobacco would not be an established price. See Black’s Law Dictionary 586 (8th ed. 2004) (defining “establish” as “to settle, make, or fix firmly”).

Based on this reasoning, we conclude the plain meaning of wholesale sales price is the manufacturer’s sales price of the tobacco and not the domestic distributor’s invoice price. This interpretation is also consistent with AB & T’s own rules for tobacco product invoices. See Fla. Admin. Code R. 61A-10.054(h) (requiring invoices for tobacco products from wholesale dealers to indicate the “number of units of each brand of tobacco products, wholesale price per unit, and discount per unit sold to the retailer”).

Because wholesale sales price means the manufacturer’s price for the tobacco and because Micjo paid the Florida OTP tax based on this price, it complied with the terms of the statute. Although AB & T also cites out-of-state cases and tax commission opinions to support its position, these authorities do not persuade us. Since we find the language of the Florida Legislature is clear, we are not required to defer to AB & T’s interpretation of the statute; thus, if we are not deferring to a Florida agency’s interpretation, the nonbinding authority of other states and commissions is even less persuasive. However, even if they were persuasive, the authorities cited are factually inappo-site. See U.S. Tobacco Sales & Mktg. Co., Inc. v. Wash. Dep’t of Revenue, 96 Wash.App. 932, 982 P.2d 652, 654 (1999) (addressing the definition of wholesale sales price — which was identical to Florida’s definition — where the manufacturer and the distributor were affiliated companies and concluding that the established price was the invoice price or fair market value, inclusive of various manufacturer’s costs); 2005 Wash. Sess. Laws Ch. 180, § 2 (amending RCW 82.26.010 by taking out the term and definition for wholesale sales price and replacing it with the term “taxable sales price” and a detailed, multiple subsection definition); see also State of Ill., Dep’t of Revenue, Letter No. ST 09-0002-PLR, 2009 WL 1163618 (addressing the definition of wholesale sales price in the context of a company selling tobacco to a middleman distributor). Here, AB & T is arguing that the distributor’s invoice price, not the manufacturer’s invoice price, is the established price. Additionally, the reasoning of the Washington court is not persuasive and does not fully support AB & T’s position. See U.S. Tobacco Sales & Mktg., 982 P.2d at 657 (finding other state statutes that clearly defined the manufacturer’s selling price as the invoice price were similar to Washington’s statute that did not define it as invoice price and concluding that the established price did not “need [to] include the value that is added to the products after the manufacturer sells them”).

Because the language of the statute is clear, we do not reach Micjo’s constitutional arguments. Moreover, Micjo paid the appropriate amount of taxes; thus, the second issue raised by Micjo concerning the statute of limitations for a portion of AB & T’s tax assessment is moot. Accordingly, we reverse the agency’s final order. See § 120.68(7)(d).

Reversed.

WALLACE, J., and BAUMANN, HERBERT, JR., Associate Judge, Concur.

      . For ease of reference, we will refer to Florida's "Tax on Tobacco Products Other Than Cigarettes or Cigars” as the "Other Tobacco Products” tax. See §§ 210.25-.75.

      . As pointed out by Micjo in its brief, Hookah tobacco is a popular form of tobacco in Middle Eastern countries. It is typically flavored and smoked through a hookah, a large water pipe.

      . The parties do not dispute the fact that hookah tobacco is subject to these sections. See §210.25(11) (defining "tobacco products” under the OTP tax).

      . Further illustrating the accuracy of this interpretation is Micjo’s argument concerning Florida’s OTP tax on direct imports of hookah tobacco from overseas manufacturers. Micjo argues that before 2006, it purchased hookah tobacco directly from the manufacturer; there were no middlemen distributors. It asserts that it directly paid the federal excise tax to the federal government, and it was not required to pay any Florida OTP taxes on the federal tax. Although Micjo is now purchasing its tobacco from middlemen distributors, Micjo correctly contends that it is illogical for AB & T to require it to pay Florida OTP tax on the federal tax because it is now paying the federal tax to the middlemen distributors in the form of a reimbursement.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Derrick Todd LEE.
    No. 2011-KP-0956.
    Supreme Court of Louisiana.
    Jan. 13, 2012.
   In re Lee, Derrick Todd; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 06-03-0655.

Denied.


text:
    Brenda Stephens ESPINOZA v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2011-CC-2847.
    Supreme Court of Louisiana.
    Jan. 18, 2012.
   In re Louisiana Citizens Property Insurance Corporation; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 2009-9771; to the Court of Appeal, Fourth Circuit, No. 2011-C-1532.

Denied. Adequate remedy on appeal

VICTORY and GUIDRY, JJ„ would grant.


text:
    STATE of Louisiana v. Brian SONNIER.
    No. 2012-KK-0156.
    Supreme Court of Louisiana.
    Jan. 19, 2012.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 508-075; to the Court of Appeal, Fourth Circuit, No. 2011-K-1691.

Denied.

VICTORY and GUIDRY, JJ„ would grant.


text:
    STATE ex rel. Jimmy NEE v. STATE of Louisiana.
    No. 2011-KH-0204.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Nee, Jimmy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 97-4616; to the Court of Appeal, Fifth Circuit, No. 08-WR-1088.

Denied.

KNOLL, J., recused.


text:
    Rose Manale McCANN v. Walter Lester McCANN.
    No. 2011-CC-2434.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Blackwell, Peggy; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, Family Court, No. 169,863; to the Court of Appeal, First Circuit, No. 2010 CW 1896 R.

Granted.


text:
    BUFFMAN INC., d/b/a St. Rita’s Nursing Facility v. LAFAYETTE INSURANCE COMPANY, Martin Insurance Agency, Incorporated, Ben Ralph and Don Lee.
    No. 2010-C-1341.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Lafayette Insurance Company;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. D, No. 107-429; to the Court of Appeal, Fourth Circuit, Nos. 2009-CA-0870, 2009-CA-1241.

Writ granted in part and remanded to the court of appeal for consideration of the defendant’s claim of error in the jury’s award of penalties in light of our holding in Durio v. Horace Mann Insurance Company, 11-0084 (La.10/25/11), 74 So.3d 1159. In all other respects, the application is denied.


text:
    William B. BARNETT and Amelia A. Barnett v. LINCOLN GENERAL INSURANCE COMPANY, Allianz Marine & Aviation (France), and Certain Underwriters at Lloyd’s of London Subscribing to Underwriters Marine Services Inc. Cover Note LCX-015602.
    No. 2011-CC-2471.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Allianz Marine & Aviation (France); Certain Underwriters at Lloyd’s of London; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 2005-12216; to the Court of Appeal-, First Circuit, No. 2011 CW 0179.

Granted. The district court did not abuse its great discretion in excluding the testimony of Eric Smith. Accordingly, the judgment of the court of appeal is reversed, and the judgment of the district court is reinstated.


text:
    In re LaMarre Travail ELDER.
    No. 2012-OB-0110.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Elder, LaMarre Travail; — Plaintiff; Applying For Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Within fifteen days of notification that he has satisfactorily passed this examination, petitioner may file a brief with this court, supported by appropriate documentary evidence, explaining the details of the delinquent financial matters.


text:
    STATE of Louisiana v. Alvin Donald PARKER.
    No. 2011-K-1783.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Parker, Alvin Donald; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. A, No. 09-566; to the Court of Appeal, Third Circuit, No. 10-1299.

Not considered. Untimely. See Louisiana Supreme Court Rule X, Section 5(a).


text:
    Justo ROQUE, Jr. v. Warren Cherise MICHELLE.
    No. 2011-CC-2148.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Justo E. Roque, Jr.; — Plaintiff; Applying for Reconsideration of this Court’s Order dated November 18, 2011; to the Court of Appeal, Fourth Circuit No. 2011-C-1272; Parish of Orleans; Civil District Court Div. G, No. 10-3881.

Not considered. See Supreme Court Rule IX, Section 6. No further filings shall be accepted in this matter. ■


text:
    STATE of Louisiana v. Christopher BUTLER.
    No. 2011-KK-1930.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re State of Louisiana; — Plaintiff; Applying for Reconsideration of this Court’s action dated November 14, 2011; Parish of Orleans, Criminal District Court Div. D, No. 503-032; to the Court of Appeal, Fourth Circuit, No. 2011-K-0879.

Reconsideration denied.


text:
    Roy Dell OWENS v. ST. TAMMANY PARISH DISTRICT ATTORNEY’S OFFICE.
    No. 2011-CP-2176.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Owens, Roy Dell; Plaintiff; Applying for Reconsideration of this Court’s action dated November 18, 2011; Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 2009-16718; to the Court of Appeal, First Circuit, No. 2011 CW 1437.

Reconsideration denied. Writ application not timely filed. See Supreme Court Rule X, Section 5(d).


text:
    Kelvin WELLS, Sr. v. Geneva BANKS.
    No. 2011-OC-2354.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Wells Sr., Kelvin.; Plaintiff; Applying for Reconsideration of this Court’s action dated December 2, 2011; Parish of E. Baton Rouge, 19th Judicial District Court Div. H. No. 135511; to the Court of Appeal, First Circuit, No. 2011 CW 1119.

Reconsideration denied. Writ application was not timely filed. See Supreme Court Rule X, Section 5(a).


text:
    Robert WILLIAMS v. James LEBLANC, Secretary, Department of Correction & Risk Review Panel.
    No. 2010-CI-2691.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Williams, Robert; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 565,103; to the Court of Appeal, First Circuit, No. 2010 CA 0943.

Denied.


text:
    STATE ex rel. Mary CHEATHAM v. STATE of Louisiana.
    No. 2010-KH-2790.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Cheatham, Mary; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. A, No. 76,585-A; to the Court of Appeal, Second Circuit, No. 46,-033-KH.

Denied. La.C.Cr.P. art: 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Edwin CODRINGTON v. STATE of Louisiana.
    No. 2011-KH-0248.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Codrington, Edwin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 95-6759; to the Court of Appeal, Fifth Circuit, No. 08-WR-1081.

Denied.


text:
    STATE ex rel. Mark Q. TAYLOR v. STATE of Louisiana.
    No. 2011-KH-0260.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Taylor, Mark Q.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 97-374; to the Court of Appeal, Fifth Circuit, Nos. 08-WR-864, 10-KH-909, 10-KH-909.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Simon MONTGOMERY v. STATE of Louisiana.
    No. 2011-KH-0261.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Montgomery, Simon; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 95-5903; to the Court of Appeal, Fifth Circuit, No. 08-WR-1079.

Denied.


text:
    STATE ex rel. Michael LOTT v. STATE of Louisiana.
    No. 2011-KH-0262.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Lott, Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 97-229; to the Court of Appeal, Fifth Circuit, No. 08-WR-1090.

Denied.


text:
    Derek BRADLEY v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS.
    No. 2011-CI-0269.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Bradley, Derek; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 2, No. 581,020; to the Court of Appeal, First Circuit, No. 2010 CA 0876.

Denied.


text:
    STATE ex rel. Antonio STOVALL v. STATE of Louisiana.
    No. 2011-KH-0377.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Stovall, Antonio; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 453-596; to the Court of Appeal, Fourth Circuit, No. 2011-K-0049.

Denied.


text:
    STATE ex rel. Kirk BELL v. STATE of Louisiana.
    No. 2011-KH-0393.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Bell, Kirk; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 96-5664; to the Court of Appeal, Fifth Circuit, No. 10-KH-1072.

Denied.


text:
    STATE ex rel. Eugene JARROW v. STATE of Louisiana.
    No. 2011-KH-0398.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Jarrow, Eugene; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 383-494; to the Court of Appeal, Fourth Circuit, No. 2011-K-0124.

Denied.


text:
    STATE ex rel. Aaron M. VANCE v. STATE of Louisiana.
    No. 2011-KH-0583.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Vance, Aaron M.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. C, No. 170339; to the Court of Appeal, Second Circuit, No. 46,-409-KH.

Denied


text:
    STATE ex rel. Amando BARROSO v. STATE of Louisiana.
    No. 2011-KH-0584.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Barroso, Amando; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 97-7409; to the Court of Appeal, Fifth Circuit, No. 08-WR-1104.

Denied.


text:
    Randy THOMAS v. Cindy HEBERT, Records Department, C. Paul Phelps Correctional Center, et al.
    No. 2011-CI-0593.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Thomas, Randy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 575,510; to the Court of Appeal, First Circuit, No. 2010 CA 1317.

Denied.


text:
    STATE ex rel. Larry STIRGUS v. STATE of Louisiana.
    No. 2011-KH-0600.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Stirgus, Larry; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, Nos. 06-98-0141, 06-98-0202; to the Court of Appeal, First Circuit, No. 2010 KW 2166.

Denied.


text:
    STATE ex rel. James Lawrence SOILEAU v. STATE of Louisiana.
    No. 2011-KH-0604.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Soileau, James Lawrence; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. B, No. 51100-F; to the Court of Appeal, Third Circuit, No. KH-10-00876.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.

KNOLL, J., recused.


text:
    STATE ex rel. Eric BRIDGES v. STATE of Louisiana.
    No. 2011-KH-0605.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Bridges, Eric; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 440,412; to the Court of Appeal, First Circuit, No. 2010 KW 2003.

Denied.


text:
    STATE ex rel. Donald WILLIAMS v. STATE of Louisiana.
    No. 2011-KH-0606.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Williams, Donald; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of. Orleans, Criminal District Court Div. A, No. 305-606; to the Court of Appeal, Fourth Circuit, No. 2011-K-0050.

Denied. Untimely and repetitive. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Monolo Anton BAKER v. STATE of Louisiana.
    No. 2011-KH-0608.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Baker, Monolo Anton; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 2, No. 214,879; to the Court of Appeal, Second Circuit, No. 46,-263-KH.

Denied. Untimely. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Donnie E. WUBKER v. STATE of Louisiana.
    No. 2011-KH-0609.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Wubker, Donnie E.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. D, No. 105069; to the Court of Appeal, Second Circuit, Nos. 46,-364-KH, 46,435-KH.

Denied. Untimely. La.C.Cr.P. art. 930.8; State ex rel Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Andy GEORGE v. STATE of Louisiana.
    No. 2011-KH-0610.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re George, Andy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. C, Nos. 63297, 64672; to the Court of Appeal, Second Circuit, No. 46349-KH.

Denied.


text:
    STATE ex rel. Robert PETERSON v. STATE of Louisiana.
    No. 2011-KH-0615.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Peterson, Robert; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 06-01-0405; to the Court of Appeal, First Circuit, No. 2010 KW 1679.

Denied.


text:
    STATE of Louisiana v. Jonathan Edward BOYER.
    No. 2011-K-0769.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Boyer, Jonathan Edward; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, Nos. 14005-02, 11337-07; to the Court of Appeal, Third Circuit, No. 10-693 C/W 10-694.

Denied.


text:
    STATE of Louisiana in the Interest of D.D.
    No. 2011-CK-1041.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re State of Louisiana; — Other; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Juvenile Court Parish of Orleans, No. 2010-221-01-DQ-C; to the Court of Appeal, Fourth Circuit, No. 2010-CA-1692.

Denied.


text:
    STATE of Louisiana v. Phil COLEMAN.
    No. 2011-KO-1186.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Coleman, Phil; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 09-06-0952; to the Court of Appeal, First Circuit, No. 2010 KA 2093.

Denied.


text:
    STATE of Louisiana v. Ricky Joseph LANGLEY.
    No. 2011-K-1226.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Langley, Ricky Joseph; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div: D, No. 10258-02; to the Court of Appeal, Third Circuit, No. 10-969.

Denied.


text:
    STATE of Louisiana v. David J. STEWART.
    No. 2011-KO-1245.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Stewart, David J.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 07-1605; to the Court of Appeal, Fifth Circuit, No. 10-KA-389.

Denied.


text:
    STATE of Louisiana v. Darrell W. WESTMORELAND.
    No. 2011-K-1660.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Westmoreland, Darrell W.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Vernon, 30th Judicial District Court Div. A, No. 74648; to the Court of Appeal, Third Circuit, No. 10-1408.

Denied.


text:
    STATE of Louisiana v. Alvin R. GREEN.
    No. 2011-KO-1672.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Green, Alvin R.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. I, No. 463-654; to the Court of Appeal, Fourth Circuit, No. 2010-KA-1355.

Denied.


text:
    STATE of Louisiana v. Justin F. COLLINS and Marion Taylor.
    No. 2011-K-1719.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Taylor, Marion; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 479-689; to the Court of Appeal, Fourth Circuit, No. 2010-KA-0757.

Denied.


text:
    STATE of Louisiana v. Joseph HAYES.
    No. 2011-KO-1741.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Hayes, Joseph; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, No. 490-682; to the Court of Appeal, Fourth Circuit, No. 2010-KA-1540.

Denied.


text:
    STATE of Louisiana v. Donald BELL.
    No. 2011-KO-1798.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Bell, Donald; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. A, No. 496-016; to the Court of Appeal, Fourth Circuit, No. 2010-KA-1708.

Denied.


text:
    Joseph MURPHY v. Dr. Nicholas CAMPO.
    No. 2011-CC-1890.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Campo Dr., Nicholas; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 596,836; to the Court of Appeal, First Circuit, No. 2011 CW 0974.

Denied. Relator has an adequate remedy on appeal.

WEIMER and GUIDRY, JJ., would grant.


text:
    STATE of Louisiana v. Tautus S. SMITH, Jr. a/k/a Taurus Smith.
    No. 2011-KO-1892.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Smith, Tautus S. a/k/a Smith, Taurus; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 488-202; to the Court of Appeal, Fourth Circuit, No. 2010-KA-1521.

Denied.


text:
    STATE of Louisiana v. Aaron B. HILL.
    No. 2011-K-1920.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Hill, Aaron B.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, Slidell City Court wards 8 & 9, No. 2010KS02537; to the Court of Appeal, First Circuit, No. 2011 KW 1113.

Denied.


text:
    STATE of Louisiana v. Tedrick K. WILLIAMS.
    No. 2011-K-2324.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. F, No. 494-719; to the Court of Appeal, Fourth Circuit, No. 2011-KA-0466.

Denied.

GUIDRY, J., would grant the writ.


text:
    Lisa GREEN v. THOMPSON HOME HEALTH.
    No. 2011-C-2460.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Green, Lisa; — Plaintiff; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 01E, No. 09-08932; to the Court of Appeal, Second Circuit, No. 46,593-WCA.

Denied.


text:
    Darius SIAS v. IBERIA PARISH SCHOOL BOARD.
    No. 2011-C-2461.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Sias, Darius; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. D, No. 115,977-D; to the Court of Appeal, Third Circuit, No. 11-163.

Denied.


text:
    James SHARP v. LANDSCAPE MANAGEMENT SERVICES.
    No. 2011-C-2462.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Bridgefield Casualty Insurance Company; Landscape Management Services et al.; — Defendant(s); Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 3, No. 09-10265; to the Court of Appeal, Third Circuit, No. 11-0340.

Denied.

VICTORY and WEIMER, JJ., would grant.


text:
    Kirk WELDON v. HOLIDAY INN—JENNINGS.
    No. 2011-C-2463.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Bridgefield Casualty Insurance Company; Holiday Inn — Jennings;—Defendants); Applying For Writ of Certiora-ri and/or Review Office of Workers’ Compensation District 03, No. 04-06572; to the Court of Appeal, Third Circuit, No. 11-203.

Denied.


text:
    Naomi WILLIAMS v. Arista ANDRUS, et al.
    No. 2011-C-2464.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Williams, Naomi et al.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. E, No. 2008-6308; to the Court of Appeal, Third Circuit, No. 11-239.

Denied.


text:
    Nathan WRIGHT v. CYPRESS GENERAL CONTRACTORS.
    No. 2011-C-2465.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Cypress General Contractors;— Defendant; Applying For Writ of Certio-rari and/or Review Office of Workers’ Compensation District 3, No. 08-02218; to the Court of Appeal, Third Circuit, No. 11-238.

Denied.


text:
    Madeleine BERGERON v. Brian BERGERON.
    No. 2011-C-2466.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Bergeron, Madeleine; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. M, Nos. 2003-2145, 99-3701, 99-5668, 96-3223; to the Court of Appeal, Third Circuit, Nos. CA 11-130, CA 11-131, CA 11-132, CA 11-133.

Denied.


text:
    BELL FOUNDRY COMPANY v. LONNIE McCURRY’S FOUR WHEEL DRIVE CENTER, INC., T/A Skyjacker Suspensions.
    No. 2011-C-2467.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Lonnie McCurry’s Four Wheel Drive Center, Inc., et al.; T/A Skyjacker Suspensions; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. G, No. 07-2981; to the Court of Appeal, Second Circuit, No. 46,553-CA.

Denied.


text:
    Jimmy LEWIS v. DIAMOND OFFSHORE COMPANY, et al.
    No. 2011-CC-2717.
    Supreme Court of Louisiana.
    Jan. 20, 2012.
   In re Simon, Ronald; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 97-5576; to the Court of Appeal, Fourth Circuit, No. 2011-C-1495.

Denied.


author: ROLAND L. BELSOME, Judge.

text:
    CHEF MENTEUR LAND COMPANY, LTD. v. Gary SANDROCK, et al.
    No. 2011-CA-0497.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 19, 2011.

      Robert A. Barnett, Guste Barnett Schlesinger Henderson & Alpaugh, L.L.P., New Orleans, LA, for Plaintiff/Appellee.
    Ian E. Goldenberg, Ian E. Goldenberg, L.L.C., New Orleans, LA, for Defendant/Appellant, Eugene Molinary, Jr.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

12Defendant-AppeIlant, Eugene Moli-nary, appeals the judgment casting damages against him where neither he nor his attorney was present at trial. Appellant further requests review of the judgment awarding damages against him despite the trial court’s finding that all claims against him had prescribed. We find that the record does not evidence that Appellant received adequate notice of trial. We further find that it is unnecessary to remand for a new trial, as Plaintiffs claims against Mr. Molinary are prescribed.

FACTS AND PROCEDURAL HISTORY

Plaintiff-Appellee, Chef Menteur Land Company, Ltd. (“Chef Menteur”), owns a piece of immovable property in Orleans Parish near Chef Menteur Highway. Both landowners and lessees have utilized this property for fishing and outdoor activities. On May 8, 1996, Gary Sandrock signed a one-year lease with Chef Menteur for use of a parcel of land, upon which he built two camps, one at the far end of the property over the waterway. The lease was renewed by Gary Sandrock in 1997 and 1998. In 1999, Gary’s brother, Glenn Sandrock, became the lessee. From 1999 through 2002, Glenn Sandrock executed the lease.

1 sPrior to the execution of the 2002 lease, asbestos containing materials were dumped onto the leased property by Appellant Eugene Molinary, a violation of Louisiana Department of Environmental Quality (“LDEQ”) regulations. Notably, the 2002 lease contained an additional provision with regard to the lessee’s responsibility to remove the asbestos containing material from the property. The asbestos-containing material was not removed, and on April 21, 2003, the LDEQ served a compliance order on Chef Menteur, ordering removal of the asbestos-containing materials. Chef Menteur complied with the order and brought suit on April 5, 2004, seeking compensation for the costs of removing the asbestos-containing material from Appellant, Gary Sandrock, and Glenn Sandrock.

On June 23, 2004, Appellant filed exceptions of vagueness, ambiguity of the petition, prescription, and no cause of action. The exceptions came for hearing on December 17, 2004, and the trial court issued a judgment denying the exceptions on December 23, 2004. On February 16, 2005, Appellant filed an answer to Appellee’s petition for damages, and the Sandrocks filed a cross-claim against Appellant. Mol-inary answered the cross-claim on February 28, 2005. On August 29, 2005, Hurricane Katrina struck the Louisiana coast. On December 30, 2008, Appellee filed a supplemental and amending petition.

14 The matter went to trial on September 8, 2009. The trial court found that both Glenn and Gary Sandrock knew or requested that Mr. Molinary dump the materials on the land, in violation of the lease agreement and without the permission of the lessor, Chef Menteur. The trial court issued written reasons for judgment on February 10, 2010, awarding Chef Ment-eur $121,341.48.

In its Reasons for Judgment, the trial court found that Glenn Sandrock breached his obligation to clean up the asbestos containing materials, and thus breached the lease. Accordingly, the trial court applied the ten year prescriptive period for breach of contract, and found that Glenn Sandrock was liable to Chef Menteur for the damages incurred in removing the asbestos containing materials pursuant to La. Civ. Code art. 3499. The court further found that Eugene Molinary and Gary Sandrock could only be liable pursuant to a special statute or in tort because neither were lessees. With regard to tort claims, the trial court determined that any tort claims against Eugene Molinary or Gary Sandrock had plainly prescribed, as Chef Menteur had knowledge that asbestos containing material was dumped on their property as early as May 2002, according to the additional language contained in that lease agreement. The trial court thus found that contra own valentón was inapplicable, dismissing the argument that Chef Menteur was unaware that the lessee was allowing the dumping of asbestos-containing materials onto the property. Nevertheless, because Eugene Molinary did not bring or re-urge an exception of prescription, the court found that he was liable to Chef Menteur pursuant to La.Code Civ. Proc. art. 927, which provides that a court may not supply an exception of prescription.

|fiNext, the trial court addressed Chef Menteur’s assertions that other statutes provided alternative prescriptive periods. With regard to Louisiana’s Liability for Hazardous Substance Remedial Action Statutes, La. R.S. 30:2276 et seq., the court found that the categories of materials in this statutory scheme did not fall within the definition of “hazardous” as defined in those statutes, and that the three and ten-year prescriptive periods in the statute were inapplicable. With regard to La. R.S. 9:5644, the court found that the five-year prescriptive period in the statute was likewise inapplicable, as the instant case did not involve asbestos abatement against a manufacturer; rather, it was an action to recover the cost of remediation due to illegal dumping.

The court also determined that Chef Menteur failed to establish that the litigation qualified as a “cost recovery action” under 42 U.S.C. 9607 (the Comprehensive Environmental Response, Compensation, and Liability Act, or “CERCLA”) because the site was not a “facility” as contemplated in the statute; non-friable asbestos was not listed as a hazardous waste; and Defendants were not “responsible persons” as contemplated by the statute. The court further found that Chef Menteur failed to demonstrate that non-friable asbestos falls under the definition of hazardous waste as defined in 42 U.S.C. 9601(14). Therefore, the [(¡court determined that the six-year prescriptive period in 42 U.S.C. 9613(g)(2)(B) was also inapplicable.

The court awarded damages to Chef Menteur and against Glenn Sandrock and Eugene Molinary based upon invoices and cancelled checks evidencing the actual asbestos remediation costs from Insulation Technologies and Quality Environmental. Various motions for new trial were filed and subsequently heard on November 19, 2010. On December 9, 2010, the trial court issued a judgment entitled “Final Judgment as to Motions for New Trial,” which increased the award in favor of Chef Menteur by $31,627.86 to $152,969.34, plus legal interest from the date of judicial demand, and apportioned fault, assessing Eugene Molinary at fifty percent fault for Chef Menteur’s damages.

Eugene Molinary filed a Peremptory Exception of Prescription and Motion to Remand with this Court, which was denied on June 24, 2011.

STANDARD OF REVIEW

“[T]he trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review.” London Towne Condo. Homeowner’s Ass’n v. London Towne Co., 2006-401, p. 4 (La.10/17/06), 939 So.2d 1227, 1231 (citing Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261, 1267). Pursuant to this standard, “a factual finding cannot be set aside unless the appellate courts finds that it is manifestly erroneous or clearly wrong.” London Towne Condo. Homeowner’s Ass’n, p. 4, 939 So.2d at 1231 (citing Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)). Appellate courts should not re-weigh the evidence or substitute its own factual findings. Id,.; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 278-79. Likewise, “[w]here there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id.

Where one or more legal errors interdict the trial court’s fact-finding process, however, and such errors are prejudicial, the manifest error standard becomes inapplicable, and the appellate court must conduct its own de novo review of the record. South East Auto Dealers Rental Ass’n, Inc. v. EZ Rent To Own, Inc., 2007-0599, p. 4 (La.App. 4 Cir. 2/27/08), 980 So.2d 89, 93, writ denied, 2008-0684 (La.4/18/08), 978 So.2d 355. “Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights.” Id.

DISCUSSION

Appellant Eugene Molinary sets forth two assignments of error for our review. First, Appellant argues that the trial court erred in allowing the trial to proceed on September 8, 2009, despite the fact that neither Appellant nor his counsel was present at trial. Second, Appellant maintains that the trial court correctly found that Appellee’s causes of action against him had prescribed and properly ruled that an exception of prescription could not be supplied for him by the court; however, Appellant submits that it was nevertheless error for the trial court to allow the trial to proceed.

[^Specifically, Appellant argues that he should have been served with a notice of trial, although he concedes that notice was served on his counsel of record, Victor J. Dauterive. A review of the transcript indicates that the trial court denied a Motion to Withdraw that was filed by Mr. Dauterive. Appellant concedes that Mr. Dauterive indicated in a recorded message played for the court that Appellant was aware of the trial date, but insists that Mr. Dauterive did not notify him of the trial date and that no call was placed to him on the date of trial. Appellant objects to the use of his deposition testimony at trial in his absence, as well as his missed opportunity to call his own witnesses or cross-examine any other party’s witnesses. Appellant further asserts that Chef Ment-eur’s claims are prescribed for the reasons articulated by the trial court.

We find that the lower court erred in proceeding to trial under these particular facts and circumstances. This Court has previously held that service of the notice of the trial date on counsel of record satisfies the due process right to notice of trial; however, our brethren in the First Circuit have acknowledged that “[ajdequate notice is one of the most elementary requirements of procedural due process; it is fundamental to our system of laws that there be notice prior to trial, |9except in extraordinary cases, such as executory process.” Davis v. Dunn & Bush Const., 2001-2472 (La.App. 1 Cir. 8/20/03), 859 So.2d 155, 158.

Likewise, “[d]ue process at a minimum requires deprivation of life, liberty, or property be preceded by notice and an opportunity to be heard at a meaningful time.” Spiers v. Roye, 2004-2189 (La.App. 1 Cir. 8/8/07), 965 So.2d 489, 494 (citing Zachary Taylor Post No. 3784 v. Riley, 481 So.2d 699, 701 (La.App. 1st Cir.1985)). The Spiers court further recognized that “[t]he trial of a case is unquestionably one of the meaningful occasions at which the parties must be given an opportunity to be heard, and adequate notice thereof is one of the most fundamental requirements of procedural due process.” Id.

When an attorney moves to withdraw, as in this case, a trial court is responsible for either notifying the litigant of a pending trial or confirming with the withdrawing attorney that the litigant has been notified in writing of the trial date:

When a trial court provides written notice of a trial date to the attorney of record, but the attorney thereafter moves to withdraw as attorney of record, the trial court bears the responsibility of ensuring that the litigant receives notice of the pending trial in writing. The court can satisfy this notice requirement by reissuing the notice of trial to the unrepresented litigant directly. Otherwise, the court must receive reasonable proof that the withdrawing attorney has notified the client in writing of the trial date. This can be accomplished by attaching to the motion to withdraw a certified letter to the client or other evidence indicating the client has received unequivocal written notice of trial. If the record demonstrates that a litigant did not receive notice of trial, then he was denied procedural due process and fundamental fairness.

Davis v. Dunn & Bush Const., 2001-2472, pp. 3-4 (La.App. 1 Cir. 4/9/03), 858 So.2d 451, 453 (citing La. C.C.P. art. 1571); see also Metro Gaming & Amusement Co. v. The Deckbar & Grill, L.L.C., 2007-546, p. 7 (La.App. 5 Cir. 12/11/07), 972 So.2d 1264, 1268.

In this case, the trial court had actual knowledge that counsel for Appellant, for whatever reason, was under the impression that he had withdrawn from the case. The only evidence before the court that Appellant was aware of the trial date at all was a voicemail message purportedly left by his counsel to opposing counsel. Additionally, the record before us does not evidence that Appellant was notified in writing of the trial date. Thus, under these particular facts and circumstances, it was error for the lower court to proceed to trial and cast Appellant in judgment. See id.

Furthermore, the trial court explicitly determined that the claims against Appellant were prescribed, noting that Appellant was cast in judgment simply because he had not re-urged his exception of prescription, which had initially been denied by the trial court. As previously noted herein, Appellant was deprived of the opportunity to do so, as neither Appellant nor his counsel was present at trial to re-urge the exception. Appellant has properly preserved his exception of prescription on appeal, as he filed his exception with this Court prior to submission of the case for a decision pursuant to La. Code Civ. Proc. art. 2163. Considering the record in its entirety, we cannot say that the trial court’s factual determination that Appellee’s claims against Appellant were prescribed is manifestly erroneous or clearly wrong. See London Towne Condo Homeowner’s Ass’n, 2006-401, p. 4, 939 So.2d at 1231. Accordingly, the provision of the trial court’s judgment ^awarding damages against Eugene Molinary is reversed, and all claims against Eugene Mol-inary are dismissed. See La.Code Civ. Proc. art. 2164 (providing in part that “[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.”).

CONCLUSION

For the foregoing reasons, the trial coui't’s judgment in favor of Chef Menteur and against Eugene Molinary is reversed, and all claims against Eugene Molinary are hereby dismissed.

REVERSED IN PART AND RENDERED

      . The asbestos containing materials consisted of roofing materials such as roofing slate, bricks and cement. Appellant asserts that trespassers and other people had also been dumping materials in the area. Stephen Vignes, a project manager for Insulation Technologies, Inc., the company that performed the asbestos remediation, testified at trial that during his inspection of the property, he observed the presence of asbestos roof shingles both on land and in the water. William Scott, accepted by the court as an expert in hazardous and toxic material management, testified that such materials are regulated by the LDEQ as both Category I and Category II non-friable regulated asbestos-containing materials; accordingly, the LDEQ regulations mandate that Category II materials must be disposed of in a LDEQ approved disposal facility and cannot be handled as construction debris. See also La. Admin Code. tit. 33, pt. Ill, § 5151; La. Admin Code. tit. 33, pt. VII, § 315. The LDEQ report dated July 18, 2002 indicates that sample testing results evidenced the material to be 40% chrysotile asbestos. The asbestos-containing materials were ultimately disposed of in an approved solid waste landfill in Mississippi.

      . The language in the May 2002 lease (signed September 5, 2002) provided that "This lease is conditional upon the tenant removing the asbestos contamination presently existing on this leased property.”

      . Article 927 provides as follows:
      A. The objections which may be raised through the peremptory exception include but are not limited to the following:
      (1) Prescription.

        (2) Peremption.
      (3) Res judicata.
      (4) Nonjoinder of a party under Articles
      641 and 642.
      (5) No cause of action.
      (6) No right of action, or no interest in the plaintiff to institute the suit.
      (7) Discharge in bankruptcy.
      B. The court may not supply the objection of prescription, which shall be specially pleaded. The nonjoinder of a party, per-emption, res judicata, the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, or discharge in bankruptcy, may be noticed by either the trial or appellate court on its own motion.
      La.Code Civ. Proc. Ann. art. 927 (emphasis added).

      . Chef Menteur concedes that it stipulated at trial that provisions (G) and (H) of La. R.S. 30:2276 preclude the applicability of the statute (and its prescriptive period) to the asbestos-containing materials on the property.

      . Eugene Molinary was assessed fifty percent fault; Glenn Sandrock and Gary Sandrock were each assessed twenty-five of the fault. Chef Menteur was awarded costs, as well as $150.00 for the cost of Eugene Molinary's deposition, and $1,190.00 for expert fees for W.D. Scott, a contractor who performed asbestos remediation on the property. The trial court denied Glenn and Gary Sandrock's cross-claims against Eugene Molinary, dismissing all claims, and denied a motion for limited new trial filed by Gary Sandrock.

      . Appellant did not file a written request for notice of trial pursuant to La. C.C.P. art. 1572.

      . Neither the Motion to Withdraw nor the denial is contained in the appellate record. A review of the trial transcript evidences that before proceeding to trial, the trial court acknowledged that Mr. Dauterive filed a Motion to Withdraw as Counsel, and that it was denied:
      On July 14, 2009, I signed a Motion to Withdraw as Counsel denying the same that was filed sometime just before that by V.J. Dauterive, Jr., counsel for Eugene C. Moli-nary, Jr. That motion was denied as this case was set for trial. I knew there had been some difficulty getting it to resolution. I denied the Motion to Withdraw. I have not heard from Mr. Dauterive since or really from any of you until this morning with respect to that matter.

      .The voicemail message, purportedly from Mr. Dauterive to Robert Barnett, counsel for Chef Menteur, was played on the first day of trial. At the court's request, the court reporter transcribed the voicemail message as follows:
      Yes, Robert, this is V.J. Dauterive. It's Thursday morning about 20 minutes after 11:00. I’m returning your phone call on Gene Molinary. I withdrew from that case probably about a month ago. Molinary knows about the trial date. I don’t know if he understands you are the other counsel or not. Give me a call if you need to. [phone number omitted] Thanks. Take care.

      . See Jackson v. Tyson, 526 So.2d 398, 400 (La.App. 4 Cir. 1988).

      . In both Davis and Metro Gaming, the attorney's motion to withdraw was granted by the court.

      . Article 2163 provides in part that "[t]he appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.” La.Code Civ. Proc. art. 2163; see also Uniform Rules— Courts of Appeal, Rule 1-3. Although a motion panel denied Appellant’s motion to remand his exception of prescription to the trial court, the merits of Appellant's prescription claim were not addressed by the motion panel.


author: STEWART, J.

text:
    The CITY OF BOSSIER CITY, Plaintiff-Appellant v. Phillip VERNON and the City of Bossier City Fire and Police Civil Service Board, Defendants-Appellees. Officer Phillip Vernon, Plaintiff-Appellant v. City of Bossier City, Defendant-Appellee.
    Nos. 46,517-CA, 46,518-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.
    Rehearing Denied Dec. 8, 2011.

      Cook, Yancey, King & Galloway, Shreveport, LA, by Michael D. Lowe, for Plaintiff-Appellant City of Bossier City.
    Joel L. Pearce, Shreveport, LA, for Plaintiff-Appellant Phillip Vernon.
    Before STEWART, GASKINS and PEATROSS, JJ.
   STEWART, J.

|, Phillip Vernon (“Vernon”) and the City of Bossier City are both appealing a trial court judgment affirming Bossier City’s Municipal Fire and Police Civil Service Board’s (“Board”) February 16, 2010, decision regarding Phillip Vernon’s termination by Bossier City. For the reasons discussed below, we affirm.

FACTS

On October 3, 2009, Vernon, while employed as a permanent police officer at the Bossier City Police Department (“BCPD”), was involved in the arrest of Sherburne Sentell at the Horseshoe Casino in Bossier City, stemming from a domestic dispute between Sentell and his wife, Julianna. This dispute was recorded by the casino surveillance cameras. The recording showed an allegedly intoxicated Sentell restraining his wife. At the time of his arrest, Sentell was an assistant district attorney for Webster Parish. Although he was not the arresting officer, Vernon was responsible for transporting Sentell from the Horseshoe Casino to the Bossier City Jail.

Corporal Murray Wells, the arresting officer, charged Sentell with domestic battery. Upon arriving at the jail, Vernon informed Wells that Sentell made threats in the patrol car. Wells filed an incident report regarding Sentell’s domestic battery charge, while Vernon filed a supplemental report that warranted an additional charge of public intimidation. Based on Vernon’s representations, Sentell was charged with public intimidation.

In the supplemental report, Vernon stated that Sentell made threats that police officers were going to lose their jobs over his arrest, while en 12route to the Bossier Parish Jail. However, the video obtained from Vernon’s patrol car failed to show that Sentell threatened Vernon’s, or any other officer’s, job. Based on the conflict between Vernon’s report and the video evidence, an internal affairs complaint was filed against him. He was subsequently interviewed in connection with the investigation. During this interview, Vernon stated that Sentell made the remark “that people were going to lose jobs over this incident.”

Vernon was then asked to view the video obtained from his patrol car. When the video revealed that Sentell did not make any comments threatening officers’ jobs, Larry Stockton, the interviewing officer, stated that Vernon started sweating profusely and seemed nervous. Vernon then admitted that the video did not show Sen-tell making threatening remarks regarding officers’ jobs.

The internal affairs complaint was sustained, and Vernon was found to be in violation of La. R.S. 33:2500 and the BCPD’s Code of Conduct regarding false statements and malicious prosecution. The BCPD Code of Conduct states in pertinent part:

Section 15: Paragraph A — No employee shall willfully misrepresent any matter, sign any false statement or report, perjure himself/herself, or give false testimony before any court, Grand Jury, Board, commission, official hearing, departmental hearing, or internal investigation.
Section 19: Paragraph C — No employee shall direct any malicious prosecution against any person.

On November 19, 2009, Vernon received written notice of his termination from the BCPD based on these violations. He appealed the decision to the Board, and an evidentiary hearing was held on February 3 Rand 4, 2010. Vernon argued that Sen-tell’s claims must have been made off-camera, and the report claiming that the incident occurred “en route” was technically true. In the Board’s Written Finding of Fact and Decision, it rejected Vernon’s argument, but determined no malicious prosecution was intended in Vernon’s actions. Although it found that the BCPD acted in good faith and with just cause, it determined the punishment too severe, and modified it to a 90-day suspension without pay.

Bossier City and Vernon appealed the Board’s decision to the 26th Judicial District Court in Bossier Parish. Bossier City challenged the Board’s decision to reduce Vernon’s punishment from termination to a 90-day suspension without pay. Vernon argued in his appeal that he was a victim of a “conspiracy” by Bossier City to terminate his employment. He further argued that the Board allowed Cecil Campbell, its legal advisor and Sentell’s colleague and friend, to preside as judge. Vernon also alleged that the Board spoiled the evidence because the transcript from the hearings was incomplete.

The district court found both parties’ appeals meritless, and affirmed the judgment of the Board. Both parties appealed.

STANDARD OF REVIEW

An employee under classified service may appeal from any decision of the civil service board that is prejudicial to him. La. R.S. 33:2501(E)(1). Such an appeal shall be taken to the district court wherein the civil service board is domiciled. Id. Review by the district court does not include a trial de novo. McCoy v. City of Shreveport, 42,662 (La.App. 2 Cir. 12/05/07), 972 So.2d 1178; Walsworth v. Municipal Fire & Police Civil Service Bd. of City of Shreveport, 567 So.2d 712 (La. App. 2 Cir.1990). Rather, the district court sits as a reviewing court and determines from the record of the Board’s proceedings whether its decision was made in good faith for cause. McCoy supra; Walsworth supra. The hearing “shall be confined to the determination of whether the decision made by the board was made in good faith for cause” and “[n]o appeal shall be taken except upon these grounds.” La. R.S. 33:2501(E)(3). The Board’s decision will not be overturned unless it is manifestly erroneous or arbitrary and capricious. McCoy, supra.

If made in good faith and for statutory cause, a decision of the civil service board cannot be disturbed on judicial review. Lee v. City of West Monroe, 39,-611 (La.App. 2 Cir. 5/11/05), 902 So.2d 1202; McDonald v. City of Shreveport, 26,877 (La.App. 2 Cir. 5/10/95), 655 So.2d 588. Good faith does not occur if the appointing authority acts arbitrarily or capriciously, or as a result of prejudice or political expediency. Moore v. Ware, 2001-3341 (La.2/25/03), 839 So.2d 940. Arbitrary or capricious behavior means without a rational basis for the action taken. Id.

The district court may not substitute its opinion for that of the board. The district court should accord deference to a civil service board’s factual conclusions and must not overturn them unless they are manifestly erroneous. Moore, supra. Likewise, the intermediate appellate court’s review of a civil service board’s findings of fact is limited. Id. Those findings are entitled to the same weight as findings of fact made by a trial court and are not to be overturned in the absence of manifest error. Id.

1 .ANALYSIS

Vernon’s Appeal

Vernon cites four assignments of error in his appeal. In the first assignment, he asserts that the district court and the Board erred in failing to consider whether it was prejudicial for retired Judge Cecil Campbell to preside as “judge” of the Board hearing, while also serving as legal advisor to the Board.

Vernon asserts that Judge Campbell im-permissibly served as a “judge” of the Board hearing, making it impossible for him to receive a fair and impartial process due to him by law. He argues that Judge Campbell’s claim that he did not officiate in any capacity is untrue, since the transcript reveals multiple instances in which he impermissibly made rulings on issues of law, fact, and evidence. As a result, Vernon contends that the Board intentionally failed to give him a fair hearing.

In the absence of an express reservation, the silence of the trial court on an issue raised by the pleadings and on which evidence was offered is to be taken as a rejection of that demand. Anthony’s Auto Sales, Inc. v. Shephard, 600 So.2d 125 (La.App. 2 Cir.1992). Silence on an issue raised in the trial court is considered a rejection of that claim. Mitchell Co. v. Mucavil, Inc., 02-381 (La.App. 3 Cir. 10/1/03), 855 So.2d 426. Since the district court did not address Vernon’s claim regarding a conflict of interest with Campbell, it is deemed rejected.

After reviewing the transcript from the Board hearing, we find that Campbell’s participation in the hearing did not prove prejudice in any |fimanner. Moreover, Vernon failed to specify a reasonable basis for his allegation of prejudice. The trial judge did not err in rejecting this issue. This assignment of error is without merit.

In Vernon’s second assignment of error, he contends that the district court erred in concluding as a matter of fact that he claimed that Sentell’s threats were recorded in his car, and that his supplemental report contradicted his claim that Sen-tell threatened the officers’ jobs. Vernon contends that the Board and Bossier City did not provide any evidence proving that his supplemental report contained a false statement. Vernon argues that Bossier City misinterpreted the phrase “en route to the jail” contained in the supplemental report to mean “the threats were recorded in the patrol car.”

We cannot agree with Vernon’s assertion that his supplemental report did not contain a false statement. It is clear that his supplemental report meant that Sen-tell’s threats were made in the patrol car, when Vernon noted that his observations occurred “while en route to the jail.” All of Vernon’s observations in the supplemental report are stated prior to when he noted their arrival the Bossier Parish Jail. Further, had Sentell been issuing threats to have the officers fired while en route to the jail, those threats would have been captured by the video recorded in Vernon’s patrol car.

After reviewing Vernon’s supplemental report, the transcripts from the internal affairs interview, and the testimonies of Vernon and Wells, we conclude 17that there was a reasonable basis for the district court to conclude that the report meant that the alleged threats were made in the police vehicle. This assignment of error is meritless.

In Vernon’s third assignment of error, he argues that Bossier City acted in bad faith in violating his rights as set forth in the Police Officer’s Bill of Rights by failing to record all of his interrogations with internal affairs and failing to apprise him of the nature of the investigation against him. He further argues that the district court erred in concluding that the Board’s actions against him were not arbitrary and capricious.

The records shows that the Board did not decide any claim by Vernon regarding a violation of the Louisiana Police Officers’ Bill of Rights. Further, Vernon did not raise this alleged violation before the district court.

As discussed above in the standard of review portion of this opinion, review by the district court does not include a trial de novo. McCoy, supra. Rather, the district court sits as a reviewing court and determines from the record of the Board’s proceedings whether its decision was made in good faith for cause. Id. Likewise, this court’s review of a civil service board’s findings of fact is limited. Moore, supra,.

This issue was not properly brought before the district court, nor was it properly brought before this court. This assignment is without merit.

Finally, in the fourth assignment of error, Vernon contends that the district court erred in finding that the Board’s actions in the submission of the recordings of the civil service hearings to the district court did not constitute the “spoliation [sic] of evidence.” Vernon alleges that the ^recordings had been altered and spliced together, and that numerous parts of the recordings were missing.

Vernon argues that the district court erroneously concluded that the Board did not have a duty to ensure a complete and accurate transcript of the proceedings. He asserts that the Board, as initial custodian and keeper of the recordings, had a duty not to spoil the evidence, since it was foreseeable that this evidence needed to be preserved due to the nature of the case.

La. R.S. 33:2501(B)(3) states:

The Board shall have complete charge of any such hearing and investigation, and may conduct it in any manner it deems advisable, without prejudice to any person or party thereto. The procedure followed shall be informal and not necessarily bound by the legalistic rules of evidence. The board shall not be required, to have the testimony taken and transcribed\ but either the employee or the appointing authority may, at their own expense, make the necessary arrangements therefor. In such cases, the board may name any competent shorthand reporter as the official reporter. If the testimony is not taken or transcribed, then the board shall make a written finding of fact. (Emphasis added.)

Pursuant to this statute, it was Vernon’s duty to make the necessary arrangements to have the testimony taken or transcribed, at his expense, if he wanted to preserve a permanent transcript of the Board’s proceeding. The district court correctly concluded that the Board was not under any obligation to preserve or prepare a transcript of the proceeding on Vernon’s behalf. This assignment is without merit.

Bossier City’s Appeal

Bossier City cites two assignments error in its appeal. In its first assignment of error, Bossier City asserts that the district court erred in ^holding that the Board’s decision to modify Vernon’s discipline was consistent with the principles that dictate when, and in what manner, such a modification may occur. In its second assignment of error, Bossier City argues that the district court erred in concluding that the Board’s decision to modify the discipline previously imposed by the city did not constitute an impermissible substitution of judgment by the Board. Since these two assignments relate to the Board’s decision to modify the discipline imposed by the City of Bossier, we will discuss them together.

La. R.S. 33:2501(0(1) states:

C.(l) After the investigation provided for in Subsection B of this Section, the board may, if the evidence is conclusive, affirm the action of the appointing authority. If the board finds that the action was not taken in good faith for cause under the provisions of this Part, the board shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which he was removed, suspended, demoted, or discharged, which reinstatement shall, if the board so provides, be retroactive and entitle him to his regular pay from the time of removal, suspension, demotion, discharge, or other disciplinary action. The board may modify the order of removal, suspension, demotion, discharge or other disciplinary action by directing a suspension without pay, for a given period, a reduction, in pay to the rate prevailing for the next lower class, a reduction or demotion to a position of any lower class and to the rate of pay prevailing thereof, or such other lesser punitive action that may be appropriate under the circumstances. (Emphasis added.)

Pursuant to this statute, the Board had the authority and discretion to modify Vernon’s discipline, if the modification was deemed appropriate. The Board may modify the discipline by “directing a suspension without pay, for a given period.” La. R.S. 33:2501(0(1); Hardison v. Natchitoches Mun. Fire & Police Civil Service Board, 614 So.2d 354 (La.App. 3 Cir.1993). In this instance, the Board determined that the City’s punishment of | ^termination was too severe, and modified it to a 90-day suspension without pay. We agree with the trial court’s determination that the Board’s modification was a permissible substitution of judgment pursuant to La. R.S. 33:2501(0(1). The City’s two assignments of error are without merit.

CONCLUSION

The district court’s ruling that upheld the civil service board’s decision is affirmed. Each party is to bear its own costs for these appeals.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, C.J., and STEWART, GASKINS, PEATROSS and LOLLEY, JJ.

Rehearing denied.

BROWN, C.J., would grant rehearing.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Marcelino Bruno LARA, Appellant.
    No. 46,639-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 2, 2011.

      Marcelino Bruno Lara, Pro Se.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Appellant.
    Jerry L. Jones, District Attorney, Brandon B. Brown, Assistant District Attorney, for Appellee.
    Before PEATROSS, DREW and LOLLEY, JJ.
   LOLLEY, J.

|, This criminal appeal arises from the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana. The defendant, Marcelino Bruno Lara, was convicted by a jury of possession of marijuana, more than 60 pounds, but less than 2,000 pounds, in violation of La. R.S. 40:966(F). He was subsequently sentenced to 27 years’ imprisonment at hard labor, with credit for time served, and a fíne of $60,000.00. In default of payment, the trial court ordered Lara serve an additional two years’ imprisonment, consecutive with the underlying sentence. Lara appeals his conviction and sentence. For the following reasons, we affirm his conviction and sentence, and vacate that portion of Lara’s sentence imposing default imprisonment for failure to pay his fíne.

Facts

After being stopped for a traffic violation on 1-20 in Ouachita Parish, Louisiana, and consenting to a search of his vehicle, Lara was arrested on March 17, 2010, and subsequently charged by bill of information with one count of possession of marijuana, more than 60 pounds but less than 2,000 pounds, in violation of La. R.S. 40:966(F).

At some point in the proceedings, Lara moved to suppress his prior statements to law enforcement officers and all evidence seized during a search of his vehicle as violations of the Fourth and Fifth Amendments. Specifically, he argued that the initial stop for a traffic violation was unlawful and the evidence was seized in violation of his constitutional rights, because his consent was not given freely, voluntarily and knowingly. Following a hearing on Lara’s motion to suppress, the trial court denied his |2motion, concluding that the state had met its burden to show consent was freely and voluntarily given.

Just before the jury trial commenced, the state brought a “Free and Voluntary” hearing on Lara’s statements to law enforcement after arrest. The trial court found that the state met its burden of proving that Lara’s admissions and statements were “voluntarily, knowingly, and intelligently rendered,” and the jury trial began. After the state rested, Lara moved for an acquittal on grounds that the state failed to prove the material seized was actually marijuana and that the tests used to identify the material were unreliable. The trial court denied the motion, stating that such determinations were to be made by the fact finder. Lara presented no evidence, and the trial proceeded to closing arguments. Lara was convicted as charged and was sentenced to 27 years’ hard labor, with credit for time served, and a fine of $60,000.00. In default of payment, the trial court ordered Lara to serve an additional two years consecutive with the other sentence. Following Lara’s motions to reconsider sentence as excessive and post verdict judgment of acquittal, both of which were denied, this appeal ensued.

Discussion

Sufficiency of the Evidence

In Lara’s first assignment of error, he argues that the evidence at trial was insufficient to convict him of possession of more than 60 but less than 2,000 pounds of marijuana. Specifically, he argues that only a small sample from the edge of each seized bundle was tested, so any test results would be lijConelusive only as to the sample from the outer edge, not the composition of the entire bundle. Since tests were made only on that small sample and not on any other outer area or the interior of the bundle, Lara maintains that the state failed to prove beyond a reasonable doubt that both bundles consisted entirely of marijuana. Therefore, according to Lara, the state failed to prove an essential element of the crime charged-that he was in possession of more than 60 pounds of marijuana. We disagree.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), evidence is sufficient when a rational trier of fact, viewing the evidence in a light most favorable to the prosecution, finds the essential elements of the crime were proven beyond a reasonable doubt. Review of sufficiency of the evidence does not extend to credibility determinations made by the trier of fact. State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). Appellate courts do not assess credibility or reweigh evidence. State v. Macon, 2006-481 (La.06/01/07), 957 So.2d 1280; State v. Hill, 42,025 (La.App.2d Cir.05/09/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

Lara was charged with La. R.S. 40:966(F), which applies when a person knowingly or intentionally possesses at least 60 pounds, but less than 2,000 pounds of marijuana. Where random samples of individual units, all similar, test positive for the drug charged, and the total weight of all the units fall within the range specified by the statute, courts have found that a rational trier of fact could conclude beyond a reasonable doubt that the 1.4substance of all the units was the same as the samples. State v. Riley, 587 So.2d 130 (La.App. 2d Cir.1991).

In State v. Williams, 471 So.2d 255 (La. App. 1st Cir.1985), writ denied, 475 So.2d 1102 (La.1985), the First Circuit found that the defendant’s conviction for possession of marijuana under La. R.S. 40:966 was based on sufficient evidence, as the samples tested were sufficient to determine that the substance seized was marijuana. The court noted that defendant did not present testimony or evidence to indicate that not all the contraband seized was marijuana. Id.

In State v. Ballom, 562 So.2d 1073 (La.App. 4th Cir.1990), writ denied, 575 So.2d 386 (La.1991), the Fourth Circuit Court of Appeal rejected the defendant’s argument of insufficient evidence based on the sampling procedure used to test the drugs found in his possession. The court noted that the criminologist testified that the procedure was department policy, and that the defense had stipulated that the criminologist was an expert in drug analysis and had cross-examined the expert on his procedures. Id. Furthermore, the court found that the testing of a random sample of the drug seized was reasonable and reliable, and thus met the “reasonable doubt standard” of Jackson. Id.

In State v. Lofton, 528 So.2d 188 (La.App. 3d Cir.1988), writ denied, 532 So.2d 149 (La.1988), the Third Circuit Court of Appeal found that random sampling of a large amount of contraband was permissible and rejected the defendant’s argument that untested portions should not have been admitted, because they were not proven to be marijuana. The portion |5of the evidence not tested “goes to the weight of the evidence rather than its admissibility.” Id.

Here, Lara was found with two bundles, similar in appearance and odor, that together weighed a total of 111 pounds. Sample tests from each bundle both tested positive for marijuana. Lara accepted the state’s witness, who performed the test and testified regarding the procedures used, as an expert in this type of analysis. Lara did not present any expert to rebut such finding, nor did he present any evidence to suggest that the bundles seized were comprised of something other than marijuana. From the evidence presented, a rational trier of fact could conclude beyond a reasonable doubt, that the two bundles found in Lara’s possession were completely composed of marijuana. Accordingly, the evidence was sufficient to convict Lara on possession of marijuana, more than 60 pounds but less than 2,000 pounds. This assignment of error is without merit.

Motion to Suppress

In his second assignment, Lara maintains that the trial court erred in denying his motion to suppress the evidence seized as a result of his detention and the following warrantless and unreasonable search. In support, Lara argues that the motion to suppress the seized material and his statements should have been granted because they were obtained without a search warrant and without valid consent. Lara claims his consent was involuntary because he was not free to go and was in custody at the time; therefore, he was entitled to a reading of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Further, | fiLara claims that the state failed to meet its burden to prove that consent was voluntary and free because the police officer failed to: read him his rights prior to asking for consent; advise him that he did not have to give consent; and obtain a waiver. Since the consent was not free and voluntary, Lara maintains, the search and seizure was invalid and any evidence seized is inadmissible and should have been suppressed. We disagree.

At the hearing on Lara’s motion to suppress, Master Sergeant Stan Felts, of the Ouachita Parish Sheriffs Office patrol division, testified that on March 17, 2010, he stopped Lara after observing him cross the fog line twice as he completed the curve of the exit ramp from 1-20 onto Camp Road. Sergeant Felts testified that both the vehicle’s left and right wheels crossed the fog line at two different times, a traffic violation of improper lane usage. Sergeant Felts testified that after obtaining Lara’s criminal history, he approached the vehicle and asked for Lara’s license and registration. He said Lara was suspiciously nervous, had labored breathing and trembling hands and refused to make eye contact with him. The officer also testified to smelling a strong odor of garlic, pickles, cologne, fabric softener, and another unknown chemical smell. Sergeant Felts testified he was suspicious of possible criminal activity because of his experience that masking odors are often used to conceal drugs, but that he did not yet have probable cause to obtain a warrant. Sergeant Felts said he asked Lara for consent to search his vehicle and Lara consented. He was joined by Officer David Crain in the search, which revealed an unusually heavy speaker box in the rear of the vehicle. After drilling into the speaker, the officers |7discovered two bundles of what they believed to be marijuana. Lara was then arrested and read his Miranda rights.

Every person’s rights against unreasonable search and seizure are guaranteed by the Fourth Amendment of the United States Constitution and the 1974 Louisiana Constitution. Any search and seizure without a warrant based on probable cause is considered unreasonable unless justified by an exception to the warrant rule. State v. Thompson, 2002-0333 (La.04/09/03), 842 So.2d 330; State v. Ledford, 40,318 (La.App.2d Cir.10/28/05), 914 So.2d 1168. The state has the burden to prove that any search and seizure conducted without a warrant was valid under one of the exceptions to the search warrant requirement. La. C. Cr. P. art. 703(D); State v. Johnson, 32,384 (La.App.2d Cir.09/22/99), 748 So.2d 31. Warrantless searches conducted pursuant to valid consent are allowed pursuant to both the federal and state constitutions. State v. Bostic, 26,000 (La.App.2d Cir.05/04/94), 637 So.2d 591, writ denied, 94-1476 (La.10/14/94), 643 So.2d 159. The state has the burden to prove consent was given freely and voluntarily. State v. Banks, 43,710 (La.App.2d Cir.12/03/08), 999 So.2d 808, writ denied, 2009-0151 (La.10/16/09), 19 So.3d 471.

Consent is valid when it is freely and voluntarily given by a person who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Bodley, 394 So.2d 584, 588 (La.1981); State v. Shumaker, 40,275 (La.App.2d Cir.10/28/05), 914 So.2d 1156.

The officer does not need any degree of reasonable suspicion, as opposed to intuition or “hunch,” to ask for and receive consent to search a vehicle. State v. Strange, 2004-0273 (La.05/14/04), 876 So.2d 39. In State v. Thompson, 543 So.2d 1077 (La.App. 2d Cir.1989), writ denied, 551 So.2d 1335 (La.1989), the court found that defendant’s nervous behavior and the smell of air freshener were enough to give the detaining officer reasonable suspicion that the truck contained contraband in the taped boxes in the truck bed and grounds to ask for consent to search, despite no smell of marijuana.

Oral consent to search is valid. State v. Banks, supra. Notice of the right to refuse a search is a consideration, but is not required for consent to be found voluntary. Id. Consent to search is “a non-communicative, non-testimonial statement falling completely outside the Fifth Amendment and therefore outside of the Miranda protections.” State v. Palmer, 2009-0044 (La.07/01/09), 14 So.3d 304. Failure to read Miranda does not negate voluntary consent to search. Id. Persons detained pursuant to traffic stops are not in custody and therefore typically no reading of the person’s Miranda rights is required. Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

Finally, valid consent is a factual question, and the trial court’s determination is given great weight. State v. Banks, supra; State v. Crews, 28,153 (La.App.2d Cir.05/08/96), 674 So.2d 1082.

|flHere, Lara was detained pursuant to a lawful stop for a traffic offense and was not in custody. As he was merely detained, and not in custody at the time, he was not yet entitled to a reading of Miranda prior to the officer obtaining his consent, and so the consent is not negated by the failure to read Miranda rights or obtain a waiver. Furthermore, as noted above, Lara’s consent to search his vehicle does not fall within the protections of the Fifth Amendment and so does not require the reading of Miranda rights in order to be voluntary and valid.

In this case, the officer had reasonable suspicion of possible criminal activity and did not violate Lara’s rights in asking for consent to search Lara’s vehicle, given that: Lara exhibited an extremely nervous demeanor; the unusual fact that the car was newly registered in a state different from where Lara resided; the vehicle’s insurance was in someone else’s name; and there were strong odors known to be used for masking illegal drugs. Further, Lara had authority to grant consent, and the officer was not required to read him his rights, obtain a written waiver, or advise him that he could refuse consent, in order to receive consent to search the vehicle. Under the facts and circumstances, there is no evidence to suggest that the trial court’s factual determination that consent was freely and voluntarily given was in error and, accordingly, should not be disturbed upon review. The trial court’s decision to deny the motion to suppress the evidence was correct. This assignment is therefore without merit.

_J^Sentencing

In his third assignment of error, Lara argues that his sentence, 27 years at hard labor and a fine of $60,000.00, was unconstitutionally harsh and excessive. Additionally, the trial court ordered that in default of payment of the fine, Lara was ordered to serve an additional two years’ imprisonment, consecutive to his hard labor sentence.

Under La. R.S. 40:966(F)(1), persons convicted of the subject crime “shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars nor more than one hundred thousand dollars.” Additionally, where the trial court imposes a sentence of a fine with additional imprisonment for default, La. C. Cr. P. art. 884 states that the maximum time for imprisonment for default of payment shall be one year.

To determine whether an imposed sentence is excessive, the reviewing court will first examine the record to ascertain if the trial court considered the aggravating and mitigating factors under La. C. Cr. P. art. 894.1 in determining a factual basis for the sentence imposed. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.03/28/08), 978 So.2d 297. The court must consider such factors as defendant’s personal history, prior criminal record, seriousness of the offense and likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.08/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.05/15/09), 8 So.3d 581.

In Second, the court will consider whether the sentence is grossly disproportionate to the seriousness of the offense. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). If the sentence imposed, in light of the harm done to society, shocks the sense of justice, then the sentence imposed is excessive. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379.

The trial judge has wide discretion in imposing sentences within the statutory limits and in consideration of aggravating and mitigating circumstances. Therefore, a reviewing court only considers whether the trial court abused its discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7.

The sentence of 27 years’ imprisonment at hard labor falls within the range of five to 30 years’ imprisonment specified by the statute under which Lara was convicted. The record shows that the trial court considered all aggravating and mitigating factors under La. C. Cr. P. art. 894.1. Lara has a criminal history with a recurring pattern of illegal acts, including a prior felony conviction of a sexual offense, unemployment, and alcohol and drug addictions. Here, he accepted money to transport the illegal drugs, an aggravating factor under La. C. Cr. P. art. 894.1(B). Given the large amount of marijuana, its street value, and its potential harm to society, there was an adequate factual basis for the sentence imposed and the sentence does not shock the sense of justice. The sentence imposed was not unconstitutionally harsh or excessive.

| yError Patent Review

As part of his imposed sentence, Lara was fined $60,000.00, and in default of payment of that fine, the judge ordered that Lara serve an additional two years’ time, consecutive to the underlying sentence. Our error patent review reveals that Lara’s sentence is illegal. First, we note that the additional two years’ imprisonment imposed for default of payment of the fine is a violation of La. C. Cr. P. art. 884, which limits additional time imposed to one year. Therefore, the additional time imposed for default of payment could not have been two years. However, for this defendant, the imposition of any jail time contingent on the payment of the fine and court costs was error. An indigent person may not be incarcerated because he is unable to pay a fine which is part of his sentence. State v. Tillman, 43,569 (La. App.2d Cir.10/22/08), 997 So.2d 144, writ denied, 2008-2836 (La.09/25/09), 18 So.3d 85. A defendant’s indigence in such a situation may be discerned from the record. State v. Williams, 484 So.2d 662 (La.1986); State v. Tillman, supra. The record shows that the Lara is indigent. He was represented at trial and on appeal by the indigent defender’s office. Therefore, the portion of the sentence imposing jail time in default of payment of the fine and costs should be vacated.

We note an additional error patent in that Lara’s motion for post verdict judgment of acquittal was not ruled upon until after his sentence was imposed, albeit on the same day, in contradiction of La. C. Cr. P. arts. 821 and 873. Louisiana C. Cr. P. art. 821 requires that a post verdict judgment of acquittal be moved on and disposed of prior to sentencing, and La. C. Cr. P. art. 873 requires that a minimum three days lapse between conviction and sentence, unless the defendant gives an express waiver or pleads guilty. However, in State v. Wilson, 469 So.2d 1087 (La.App. 2d Cir.1985), writ denied, 475 So.2d 778 (La.1985), this Court held that the trial court’s failure to wait 24 hours after the denial of a post verdict judgment of acquittal before imposing sentence constituted harmless error, as the defendant did not argue that he was prejudiced by the error. Accordingly, we conclude that this error was harmless.

Conclusion

For the foregoing reasons, the conviction of Marcelino Bruno Lara is affirmed. As to Lara’s sentence, it is amended to vacate that portion imposing jail time in default of payment of the fine and costs, and as amended, the sentence is affirmed.

AFFIRMED, AS AMENDED.