author: SUSAN M. CHEHARDY, Judge.

text:
    Dolores N. BUFORD and Cedrick E. Buford v. John H. WILLIAMS, Jr. and Universal Health Services, Inc. as Owner/Operator of River Oaks Hospital.
    No. 11-CA-568.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.

      Michael D. Riley, Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants, Dolores N. Buford and Cedrick E. Buford.
    David A. Bowling, Susannah C. McKinney, Wilson, Bowling & McKinney, A.P.L.C., Attorneys at Law, New Orleans, LA, for Defendants/Appellees, River Oaks, Inc. d/b/a River Oaks Hospital (incorrectly named as Universal Health Services, Inc. as Owner/Operator of River Oaks Hospital).
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

| ¡¡The plaintiffs appeal a judgment that granted the defendant hospital’s exception of prematurity, dismissing plaintiffs’ claims without prejudice on the ground the complaint must be reviewed by a medical review panel before the lawsuit can commence. We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiffs Dolores N. Buford and Ce-drick E. Buford sued John H. Williams and River Oaks, Inc. d/b/a River Oaks Hospital (“River Oaks”) for damages arising from the rape of Dolores Buford by defendant Williams while she was a patient at River Oaks Hospital on October 25, 2009.

Plaintiffs alleged that John Williams was an employee of River Oaks and that he is liable for his actions in engaging in non-consensual sex with Delores Buford, specifically rape. As to River Oaks, plaintiffs alleged that the hospital is liable for the acts of its employee under respondeat superior, and for the hospital’s own negligence in failing to properly superase, failing to properly train, failing to perform proper background checks, failing to take positive action to prevent the |sincident, failure to provide Dolores Buford a safe and secure room after being admitted, and other acts to be shown at trial.

River Oaks filed a dilatory exception of prematurity, arguing that the claims against it are covered by the Louisiana Medical Malpractice Act and must be reviewed by a medical review panel before commencement of litigation.

After a hearing, the district court granted the exception and dismissed the suit as to River Oaks without prejudice. The plaintiffs appeal.

ARGUMENTS ON APPEAL

On appeal the plaintiffs assert the district court erred in concluding that their claims are covered by the Medical Malpractice Act, that the plaintiffs were required to file a petition with a medical review panel prior to filing suit in the district court, and that the defendant’s exception of prematurity should be granted.

In opposition to the appeal, River Oaks asserts that the language of the Medical Malpractice Act mandates that this claim be panel-reviewed prior to suit because the allegations relating to the training and supervision of the offending employee are explicitly covered by the Medical Malpractice Act. Further, River Oaks argues, by alleging negligence with respect to the manner of the patient’s confinement, the plaintiffs-appellants have pleaded themselves squarely into the scope of the Medical Malpractice Act. In addition, since the petition asserts a claim for failure to monitor the patient, River Oaks asserts the allegations embrace the definitional language of the Medical Malpractice Act. Finally, River Oaks contends that the plaintiffs cannot escape coverage under the Medical Malpractice Act by alleging vicarious liability theories.

|„LAW AND ANALYSIS

The Louisiana Medical Malpractice Act is set out in La. R.S. 40:1299.41-1299.49. La. R.S. 40:1299.41(13) defines “malpractice” as follows, in pertinent part:

(13) “Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from, acts or omissions ... in the training or supervision of health care providers.... [Emphasis added.]

La. R.S. 40:1299.41(A)(22) defines “tort” as “any breach of duty or any negligent act or omission proximately causing injury or damage to another.”

Under the Medical Malpractice Act, a medical malpractice claim against a private qualified health care provider is subject to dismissal on an exception of prematurity if such claim has not first been presented to a medical review panel. La. R.S. 40:1299.47(A)(l)(a); LaCoste v. Pendleton Methodist Hosp., L.L.C., 2007-0008, p. 6 (La.9/5/07), 966 So.2d 519, 523.

The dilatory exception of prematurity questions whether the cause of action has matured to the point where it is ripe for judicial determination. La. C.C.P. art. 926; Williamson v. Hospital Serv. Distr. No. 1 of Jefferson, 2004-0451, p. 4 (La.12/1/04), 888 So.2d 782, 785. An action is premature when it is brought before the right to enforce it has accrued. La. C.C.P. art. 423.

The burden of proving prematurity is on the exceptor, in this case the defendant health care provider; therefore, the defendant must show that it is entitled to a medical review panel. Williamson, 2004-0451 at 4, 888 So.2d at 785. | ¿Accordingly, the question before the court is whether the plaintiffs claim is one of medical malpractice. Id.

The Louisiana Supreme Court has repeatedly emphasized that the Medical Malpractice Act and its limitations on tort liability for a qualified health care provider apply only to claims “arising from medical malpractice,” and that all other tort liability on the part of the qualified health care provider is governed by general tort law. LaCoste, 2007-0008 at p. 6, 966 So.2d at 524. The limitations of the Medical Malpractice Act on liability of health care providers were created by special legislation in derogation of the rights of tort victims. LaCoste, 2007-0008 at p. 7, 966 So.2d at 524. Hence, any ambiguity should be resolved in favor of the plaintiff and against finding that the tort alleged sounds in medical malpractice. Id. The limitations of the Medical Malpractice Act, therefore, apply strictly to cases of malpractice as defined in the Medical Malpractice Act. Id.

The issue of whether a claim sounds in medical malpractice involves a question of law, so we conduct a de novo review. Hernandez v. Diversified Healthcare-Abbeville, LLC, 2009-546, pp. 1-2 (La.App. 3 Cir. 11/4/09), 24 So.3d 284, 285, writ denied, 2009-2629 (La.2/12/10), 27 So.3d 849.

The petition sets out the following allegations:

IV.
On or about October 25, 2009, the petitioner, DELORES BUFORD, checked into River Oaks Hospital to be treated for drug addiction.
V.
On the same day after checking in, BUFORD was in the shower when defendant, WILLIAMS, sneaked into her shower without consent and began washing plaintiff. Defendant, WILLIAMS, left after being confronted by plaintiff and told to leave.
VI.
Later that night and after plaintiff had taken medication to help her sleep, defendant, WILLIAMS, entered her room without consent and raped DELORES BUFORD in her bed at River Oaks Hospital.
JeVII.
At all material times, JOHN H. WILLIAMS, JR., was an employee of River Oaks Hospital.
VIII.
JOHN H. WILLIAMS, JR., is liable to the plaintiff for his actions in engaging in non-consensual sex with the plaintiff, specifically rape.
IX.
Universal Health Services and River Oaks Hospital, as the employer of WILLIAMS, are responsible for the acts of its employees, pursuant to the theory of respondeat superior.
X.
Further, Universal Health Services and River Oaks Hospital was negligent in this matter in the following ways:
A. Failing to properly supervise;
B. Failing to properly train;
C. Failing to preform [sic] proper background checks;
D. Failing to take positive action to prevent the incident;
E. Other acts to be shown at the time of trial.

In a First Supplemental and Amending Petition, the plaintiffs made the following additional allegation:

II.
To supplement paragraph X to add as follows:
f. Failure to provide Dolores N. Buford a safe and secure room after being admitted.

For purposes of this appeal, the facts are not in dispute. The issue before us, therefore, is whether the district court correctly interpreted and applied the law. Appellate review of questions of law is simply a review of whether the trial court was legally correct or incorrect. Williams v. Notami Hospitals of Louisiana, Inc., 2004-2289, p. 5 (La.App. 1 Cir. 11/4/05), 927 So.2d 368, 372.

The question before the court was whether the allegations in the petition invoked coverage by the Medical Malpractice Act.

In Coleman v. Deno, 2001-1517, pp. 17-18 (La.1/25/02), 813 So.2d 303, 315-316, our supreme court set out the factors to determine whether a defendant’s factions are covered under the Medical Malpractice Act: (1) whether the particular wrong alleged is “treatment related” or caused by a dereliction of professional skill; (2) whether the alleged wrongdoing requires expert medical evidence to determine whether the appropriate standard of care was breached; (3) whether the pertinent act or omission involved assessment of the patient’s condition; (4) whether the act or omission occurred in the context of a physician-patient relationship or was within the scope of activities which a hospital is licensed to perform; (5) whether the injury alleged would not have occurred if the patient had not sought treatment; and (6) whether the tort alleged was not intentional.

At the hearing on the exception, River Oaks presented the testimony of Lori Susan Gillespie, R.N., a registered nurse employed by River Oaks Hospital with 18 years of experience in psychiatric nursing. Gillespie testified that the River Oaks Hospital Competency Based Job Description for John Williams, Jr. accurately describes the duties of a psychiatric counselor. This document was introduced at the trial of the exception as Exhibit A. It indicates that the psychiatric counselors are supervised by nursing staff, and that their role is to “assist in the care of the patient....” The Provision of Care section of the job description form indicates that psychiatric counselors “contribute to the provision of quality nursing care.”

Gillespie characterized the psychiatric counselors as “the 24/7 staff that are out there with the patient, talking with them, getting them to groups, making sure they get their vital signs taken, making sure they make it to meals, monitoring if they are on a visual status.”

Gillespie described how nurses utilize counselors to implement the nursing care rendered to patients. She explained that the psychiatric counselors are the employees giving the most direct care, assessment and monitoring of the patient. They report their assessment findings to the supervising nurse in charge of the unit. IsGillespie indicated that psychiatric counselors, as well as nurses, have to perform a “balancing act” to maintain patient safety, while at the same time providing the least restrictive environment possible.

Gillespie’s testimony established that nursing staff is heavily involved in not only the supervision, but also the training of psychiatric counselors. Gillespie described the manner in which psychiatric counselor training performed by registered nursing staff covers the issue of “patient and staff interactions and boundaries.” She said the issue of sexual interactions with patients is explicitly discussed in psychiatric counselor training. Gillespie testified that the counselors are told “very specifically you may not have that type [sexual] relationship with patients.” Therapeutic boundaries in the Dual Diagnosis Unit, commonly referred to as “the detox unit,” are the subject of training on an ongoing basis. Staff members are taught that they should not be in a patient’s room when the door is closed. That rule was also set out in Exhibit E, Professional Conduct Policy, and Exhibit D, Guidelines for Potential Violations of Professional Conduct. Exhibit C, which was introduced during the hearing, documents that defendant Williams was specifically trained by nursing staff about subjects including “Patient and Staff Interactions/Boundaries.”

Gillespie noted that the units at the hospital are not sexually segregated, and that protecting the patients from all kinds of adverse events, including sexual offenses, is part of the medical care of the patients.

On cross examination, plaintiffs’ counsel attempted to elicit testimony that keeping patients safe is not part of medical treatment, but Gillespie did not agree:

[T]o be honest it would be very hard for me to separate it out because the whole issue of safety is what my job at the hospital is, is making sure that the care we are providing includes them being safe, whether it’s from the|3wrong medication or from another patient striking them, or a staff member who does something.

Gillespie testified that room assignments at the facility are often based on the assessment of patients, and she pointed out that the most vulnerable patients in need of closer supervision are placed in rooms which allow closer monitoring.

Gillespie indicated that the Director of Nursing interviews all potential employees, such as Mr. Williams, prior to the employees undergoing a second interview by the Human Resources Department.

Reviewing this evidence, we agree with the district court that the actions of River Oaks are within the definition of malpractice in La. R.S. 40:1299.41. (We distinguish between River Oaks’ direct actions and the allegations that River Oaks is vicariously liable for Williams’ actions) The direct allegations against the hospital are of negligence relating to the hospital’s responsibility arising from acts or omissions in the training or supervision of John Williams, as well as negligence in the supervision and handling of Dolores Buford as a patient. Thus, the court correctly granted the exception of prematurity as to the negligence claims against River Oaks.

We distinguish Fuentes v. Doctors Hosp. of Jefferson, 2001-0305 (La.App. 4 Cir. 11/21/01), 802 So.2d 865, 869, cited by the plaintiffs. Fuentes involved a sexual battery to a patient by an ultrasound technician, in which the plaintiff also made claims against the hospital for failure to provide the presence of a nurse or technician during examinations. The fourth circuit held that the claim for failure to provide a nurse/technician during the examination was covered by the Medical Malpractice Act, but the claims for negligent hiring, negligent supervision, and |insimilar allegations were not covered by the Act because none of the other allegations fit the definition of medical malpractice, as it was then set out in the Medical Malpractice Act. Fuentes, 2001-0305, p. 7, 802 So.2d at 869.

The incident in Fuentes, however, occurred prior to the legislative amendment of La. R.S. 40:1299.41 to add a hospital’s tortious failure “in the training or supervision of health care providers” to the definition of malpractice. Therefore, the Fuentes decision does not apply to the claims of River Oaks’ negligence here.

The general rule is that any conduct by a hospital of which a patient complains is within the scope of the MMA if it comes within the definitions of the MMA, even if there are alternative theories of liability. Richard v. Louisiana Extended Care Centers, Inc., 02-978 (La. 1/14/03), 835 So.2d 460. The current definition of malpractice appearing at La. R.S. 40:1299.41(A)(13), which is applicable in this case, specifically includes “all legal responsibility of a health care provider arising from acts or omissions ... in the training or supervision of health care providers.” “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La.Civ.Code art. 9. Because Plaintiffs’ claim is one of negligent supervision, and because negligent supervision is specifically defined as an act of malpractice under the MMA, as of the 2001 amendment, the MMA applies.

Dinnat v. Texada, 2009-665, pp. 4-5 (La. App. 3 Cir. 2/10/10), 30 So.3d 1139, 1142, writ denied, 2010-0540 (La.6/18/10), 38 So.3d 322.

On the other hand, we find the district court erred in granting the exception of prematurity with a blanket ruling as to all the claims against River Oaks, including the claim that River Oaks is liable under respondeat superior for Williams’ rape of Dolores Buford.

| nEmployers are answerable for the damage caused by their employees in the exercise of the functions in which they are employed. La. C.C. art. 2320; Ermert v. Hartford Ins. Co., 559 So.2d 467, 475 (La.1990). Vicarious liability is imposed upon the employer without regard to his own negligence or fault; it is a consequence of the employment relationship. Sampay v. Morton Salt Co., 395 So.2d 326, 328 (La.1991).

The test is whether “the tortious conduct of the employee so closely connected him time, place, and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests.” LeBranc v. Lewis, 292 So.2d 216, 218 (La.1974). It can thus be regarded as within the scope of the employee’s employment, so that his employer is liable in tort to third persons injured thereby. Id.

Our purpose in this appeal is not to determine whether River Oaks is in fact vicariously liable for Williams’ rape of Dolores Buford, but only to determine whether vicarious liability for the rape is within the scope of the Medical Malpractice Act.

As pertinent to this issue, the Medical Malpractice Act limits its definition of “malpractice” to “any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient....” La. R.S. 40:1299.41(13). The Medical Malpractice Act defines “tort” as “any breach of duty or any negligent act or omission proximately causing injury or damage to another.” La. R.S. 40:1299.41(A)(22)

|12Rape is an intentional tort. An employer may have vicarious liability for intentional acts of an employee if the employee was acting within the course and scope of his employment. LeBrane, supra. Determination of course and scope is made by analyzing the acts through the factors set out in LeBrane v. Lewis, supra, and its progeny.

An employer’s liability in respon-deat superior shares the nature of the employee’s act for which the employer is liable, because for vicarious liability, the employer is standing in the shoes of the employee. Therefore, because rape is an intentional act, any vicarious liability of River Oaks for rape is also classified as an intentional act. As such, River Oaks’ vicarious liability is excluded from the Medical Malpractice Act.

DECREE

For the foregoing reasons, the judgment is affirmed as to the negligence claims, but reversed as to the claims for any intentional act. The case is remanded for further proceedings in accord with this opinion. Costs of this appeal are assessed equally against the parties.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

      . River Oaks, Inc. d/b/a River Oaks Hospital was incorrectly named in the petition as "Universal Health Services, Inc., as owner/operator of River Oaks Hospital."

      . Although Cedrick Buford seeks damages for loss of consortium, his relationship to Dolores Buford is not stated in the petition.

      . The plaintiffs also filed an application for supervisory writs, which this Court dismissed on the ground that the proper mode of review for this judgment is by appeal rather than by writ application. Buford v. Williams, 11-318 (La.App. 5 Cir. 4/4/11) (unpublished writ disposition).

      . "A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient's condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and the facts of that case.” Hunt v. Bogalusa Cmty. Med. Ctr., 303 So.2d 745, 747 (La.1974).

      . Dinnat distinguished two earlier cases, finding the prior cases inapplicable because the facts in both occurred prior to the 2001 amendment to the Medical Malpractice Act’s definition of malpractice. Id., 2009-665, p. 4, 30 So.3d 1139, 1141-42.

      . See, e.g., Paul v. Montesino, 535 So.2d 6, 7 (La.App. 4 Cir.1988), writ denied, 536 So.2d 1222 (La.1989): "A rape necessarily requires the intentional use of force and/or violence upon the person of another. Although all batteries are not rapes, all rapes necessarily are batteries.”

      . For contrasting determinations that were fact-dependent, see Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994 (hospital held not liable for sexual assault by one employee on another employee), and Samuels v. Southern Baptist Hospital, 594 So.2d 571 (La. App. 4 Cir. 1992), writ denied, 599 So.2d 316 (La.1992) (hospital held liable for rape of patient by nursing assistant).

      ."Although the employer and employee are not joint tortfeasors, they are nonetheless each obligated for the same thing[,] total reparation of the damages to the victim. The derivative nature of the employer’s liability is of no concern to the victim, and he can compel either the employer or the employee to compensate him for the whole of his damages.” Sampay, 395 So.2d at 328.


source: Caselaw Access Project

author: MARION F. EDWARDS, Chief Judge.

license: Public Domain

text:
    Salvatore FICARRA v. Fay Pauline FICARRA.
    No. 11-CA-569.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.

      Roland A. Ditta, Attorney at Law, Gret-na, LA, for Plaintiff/Appellant.
    Lee W. Rand, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.

      . Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

   MARION F. EDWARDS, Chief Judge.

| gPlaintiff/appellant, Salvatore Ficarra, appeals a judgment of the trial court that granted a motion filed by defendant/appel-lee, Fay Pauline Westbrook (Salvatore Fi-carra’s ex-wife), to increase child support and that denied his motion to decrease child support. Ms. Westbrook has answered the appeal seeking a change in the award of interest. We affirm.

Salvatore Ficarra (“Mr. Ficarra”) and Fay Pauline Ficarra (now Westbrook) (“Ms. Westbrook”) were married on January 1, 1991. One child was born of the marriage on August 1, 1991. The parties separated on November 11, 1994, and, on February 16, 1995, Mr. Ficarra filed a petition for divorce. By virtue of a consent judgment rendered on November 16, 1995, and signed on January 9, 1996, Ms. Westbrook was given sole custody of the minor child. The judgment also provided that Mr. Ficarra pay $550 in monthly child support.

On July 1, 2001, Ms. Westbrook filed a motion to increase child support alleging a substantial change of circumstances involving the health of the child. The motion asserted that the child had a serious heart problem, which required surgery and caused seizures, and had been diagnosed with Attention Deficit, Hyper Activity Disorder. Ms. Westbrook stated that, because of the child’s medical laproblems, he is unable to attend public school and is now enrolled in John Curtis Christian School.

On May 25, 2004, Mr. Ficarra filed a motion to reduce child support alleging that he suffered a heart attack on January 22, 2004, was unable to work, and had applied for disability payments. The child support matters were held open for the parties to depose a representative of John Curtis Christian School and to submit a transcript of a June 13, 2005 Social Security hearing on Mr. Ficarra’s disability claim. The results of that hearing are not certain from this designated record. However, it appears that Mr. Ficarra’s claim was successful and that his son is also now receiving benefits.

The matter went to a hearing officer for a recommendation. The hearing officer recommended an increase in child support for July 12, 2001 through June 30, 2004 requiring Mr. Ficarra to pay an additional sum of $16,670. Mr. Ficarra filed an objection to the recommendation in the district court and the matter was heard on March 30, 2010.

After the hearing, the trial court rendered judgment granting Ms. Westbrook’s increase in child support, denying Mr. Fi-carra’s motion to decrease child support, and ordering Mr. Ficarra to pay a total of $15,719.50 to Ms. Westbrook for the period of 2001 (when the motion to increase was filed) and 2004 (when Mr. Ficarra and his son began receiving disability). The amount was made executory, and Mr. Fi-carra was ordered to pay interest from the date of judgment until paid. Mr. Ficarra appealed the judgment. Ms. Westbrook filed an answer to the appeal seeking interest from the due date of each payment.

\ ¿LAW AND ANALYSIS

In brief to this Court, Mr. Ficarra contends the trial court erred in ruling that an increase in child support was warranted. Mr. Ficarra assigns four errors for our review. The first three involve factual findings made by the trial court. Mr. Ficarra argues the trial court erred in finding:

1) that Ms. Westbrook was entitled to an increase in child support, and that Mr. Ficarra was not entitled to a decrease in child support;
2) that Mr. Ficarra was obligated to pay his pro rata share of a camp/child care expense; and
3) an extraordinary expense for education involving private school tuition.

The appellate court’s review of factual findings is governed by the manifest error-clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Therefore, where there is a reasonable basis in the record to support the trial court’s finding of fact, our inquiry is whether that factual finding is manifestly erroneous. Further, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. The manifest error standard of review obligates an appellate court to give great deference to the trial court’s findings of fact. We will not reverse factual determinations, absent a finding of manifest error. More specifically, the trial court’s order of child support is entitled to great weight and will not be disturbed on appeal absent clear abuse of discretion.

IsThe trial judge gave written Reasons for Judgment in which he set forth his factual findings supporting the judgment. The trial judge stated

Based on the testimony of the parties and the evidence submitted, the Court finds that Mr. Ficarra’s gross monthly income for the relevant time period was $6,000.00; and that Mrs. Westbrook’s gross monthly income was $1,143.41. As such, the Child Support Guideline mandates a basic child support obligation of $895.58/month....
In addition to the basic monthly obligation, the Court finds an extraordinary expense for camp/child care in the amount of $41.66/month. The Court also finds an extraordinary expense for education in the amount of $383/ month.... These extraordinary expenses increase the basic obligation to $1,320.24/month.

We find these factual findings are adequately supported by the record.

Mr. Ficarra, who was sixty years old at the time of the hearing, stated that he has been a bench technician, working on starters and alternators for his entire life until he became disabled after a heart attack in 2004. In 1993, his twenty-two-year-old daughter, Melissa, incorporated Starting Systems & Services, Incorporated (Starting Systems). At the time of the incorporation, Ms. Westbrook was the president of the corporation; however, after the divorce, Mr. Ficarra became the president. Although Mr. Ficarra admitted to holding the office of president of the company, he testified he knew nothing about the finances or even if the company filed a corporate tax return. He denied any conversations with the company’s accountant regarding the finances or how certain items and expenses should be listed on the books of the company. Essentially, Mr. Ficarra’s testimony was that his daughter ran the business, and he stayed in the shop and worked on starters and alternators.

Mr. Ficarra testified that he was a direct employee of Starting Systems, but he never received a W-2 or a 1099 form to show income. Mr. Ficarra’s tax returns for the years 2001 through 2004 were introduced into evidence. The only reported | (¡income is from Starting Systems, and the returns shows that Mr. Ficarra earned $6,750 in 2001; $8,150 in 2002; $6,150 in 2003; and nothing in 2004.

Mr. Ficarra testified that the reported income was correct but admitted other information on the tax returns for 2001, 2002, and 2003, such as the earned income credit, was not truthful. Mr. Ficarra claimed the credit all three years by declaring that his son lived with him all year, despite the fact that the child lived with his mother the entire time.

Mr. Ficarra testified that he received very little money per month from Starting Systems, but he explained that the company paid his truck note, gas, insurance, toll tags, and uniforms. Mr. Ficarra was presented with evidence that he applied for vehicle loans in 1998 and 2000. The loan applications indicate that Mr. Ficarra is the owner of Starting Systems and that his income is $60,000 to $80,000 per year. Mr. Ficarra either denied signing the loan applications or stated that he did not remember applying for the loans. Mr. Ficarra could not recall if he was the personal guarantor on the business property lease. He did recall personally guaranteeing a loan for his daughter, but he could not recall what he represented his income to be on the application. Mr. Ficarra also stated that he may have made other loans for the business, but he does not remember.

Ms. Westbrook contradicted the testimony of her husband. She acknowledged that she was the incorporator of Starting Systems and that her husband ran the business and made all of the management decisions. Ms. Westbrook stated that Mr. Ficarra’s daughter was not involved much in the business.

Mr. Ficarra was questioned about certain accounting entries in the company’s books. He stated that he received some funds every year entered as “cost of goods sold” and “loan to manager for his personal use.” However, he |7testified that he could not remember how much and had no accounting of anything that was paid back on the loan.

Leo Seago, who purchased the company in October 2005, testified that, in his negotiations to purchase the company, he met with both Mr. Ficarra and his daughter, Melissa. However, he believed Mr. Ficar-ra was the actual owner of the business. Mr. Seago understood that the reason Starting Systems was up for sale was that Mr. Ficarra had a heart attack and could no longer operate the business.

In his due diligence before the purchase, Mr. Seago found some accounting irregularities that he questioned. In response to the questions, Mr. Ficarra confirmed that his and Melissa’s salaries were contained in cost of goods sold for tax purposes. Further, it was explained that the loan to manager was money taken for personal use. Mr. Seago acknowledged that there is a lawsuit pending regarding his purchase of Starting Systems to which he has filed a counter claim.

The deposition of John deVay is also contained in the record and shows that he is a certified public accountant who prepared certain financial statements for Starter Systems when the company attempted to get financing. In the preparation of these documents he used information supplied to him by Melissa Ficarra. From the testimony and the documentation attached to the deposition, it is clear that Starter Systems elected to make loans to its general manager instead of paying a salary. No salaries for either Mr. Ficarra or Melissa Ficarra are shown on the balance sheets for years 2000 through 2004. Mr. deVay could not recall if he prepared the income tax returns for the company or for either of the individuals involved. Further, Mr. deVay did not know where the funds loaned to the managers were taken from or to which individual the funds were loaned.

| ^Attached to the deposition is a letter written to Starting Systems in March of 2004. In the letter, Mr. deVay states, “[T]he company has elected to loan its General Manager advances instead of reflecting said advances as a salary....” The financial balance sheets attached show that the figures for the “loans to manager” were $89,012 in 2001; $25, 267 in 2002; $100,000 in 2003; and $69,481 in 2004.

Bruce Miller, the Special Master who was appointed to determine the assets and liabilities of the community, the reimbursement claims, and Mr. Ficarra’s earnings for child support purposes, testified at the hearing. He stated that Mr. Ficarra’s earnings for the years of 2001 through 2004 were difficult to ascertain. However, considering the tax returns, the financial obligations listed in Mr. Ficarra’s bankruptcy proceeding in 2005, repayments of loans to his brother, and the fact that he owned an expensive race car, Mr. Miller estimated Mr. Ficarra’s income was $2,400 and $5,000 per month. However, Mr. Miller stated that he believed it was closer to the $5,000 per month level. He also imputed an additional $1,000 per month to that figure due to the fact that Mr. Ficarra was living in a home owned by a friend and not paying rent.

Ms. Westbrook testified as to her earnings during the period in question and her testimony is supported by her tax returns. The testimony and amounts show that the trial court’s determination of her monthly income is accurate.

Ms. Westbrook testified that, when she and Mr. Ficarra separated, they agreed that their son would always attend a private school. Mr. Ficarra denied making that agreement. Ms. Westbrook stated that Mr. Ficarra would often pay the bill for tuition in cash. Mr. Ficarra denies ever paying tuition for his son. He also denied knowing any justification for placing his son in a private school. | ^However, Mr. Ficarra admitted that, during the marriage, his son was enrolled in a private school.

After the separation, Ms. Westbrook made the decision to transfer him from Kehoe France to John Curtis for third grade because it was less expensive and was recommended to her by mutual friends. Mr. Ficarra agreed to the transfer, and the child was enrolled at John Curtis for the period of 2001 through 2004. Mr. Ficarra denied that he agreed to the transfer.

In her testimony, Ms. Westbrook outlined the cost of her son’s education and introduced the supporting documents. We find this testimony consistent with the findings of the trial court’s computation. She explained that her son had open heart surgery and had Attention Deficit Disorder. He required a low student to teacher ratio to learn. Given his medical condition, Ms. Westbrook felt it was necessary to have her son enrolled in a private school.

Ms. Westbrook also testified that she was able to survive on her income and the $550 per month child support only with financial help from her parents and friends. Some of the money received was in the form of a loan of $50,000 from her parents that Ms. Westbrook intends to repay in full. She is currently making payments on that loan. In April of 2005,. she received a check in the amount of $7,655 from the Social Security Administration for her son because of Mr. Ficar-ra’s disability.

This Court has recently stated:

The trier of fact determines the credibility of witnesses, and within the bounds of rationality, may accept or reject the testimony.... It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence.... When findings of fact are based on the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings....

11ftMr. Ficarra argues the trial court abused its discretion in finding that his income was $6,000 per month when his tax returns show an average of $584.72 per month. Mr. Ficarra also argues the trial court erred in its finding of Ms. West-brook’s earnings.

Clearly, the trial court found Mr. Ficarra’s testimony that he gave up a lifelong trade rebuilding starters and alternators to work for his twenty-one-year-old daughter’s new company at an income below minimum wage incredible. Rather, the trial court considered the testimony of the Special Master, the company’s accountant, and the balance sheets of the company in making the finding that Mr. Ficarra’s income during the years in question was $6,000 per month. We find no abuse of discretion in that finding. Further, the trial court found Ms. Westbrook’s testimony regarding her income credible. We find no abuse of discretion in that finding, and we find no merit to Mr. Ficarra’s assertion that the trial judge erred in granting an increase in child support.

Mr. Ficarra also argues the trial court abused its discretion in finding a camp/child care expense and a private school expense.

La. R.S. 9:315(0(7) provides that “ ‘net child care costs’ means the reasonable costs of child care incurred by a party due to employment or job search, minus the value of the federal income tax credit for child care.” Mr. Ficarra argues that the trial judge did not abide by the provisions of this law. However, it is clear from the Reasons for Judgment, that the trial court found this expense to be an extraordinary education expense, not a simple childcare expense.

Therefore, the applicable statute is La. R.S. 9:315.6, which reads as follows:

By agreement of the parties or order of the court, the following expenses incurred on behalf of the child may be added to the basic child support obligation:
(1) Expenses of tuition, registration, books, and supply fees ^required for attending a special or private elementary or secondary school to meet the needs of the child.
(2) Any expenses for transportation of the child from one party to the other.
(3) Special expenses incurred for child rearing intended to enhance the health, athletic, social, or cultural development of a child, including but not limited to camp, music or art lessons, travel, and school sponsored extracurricular activities.

A trial court’s determination of whether to include private school tuition and camp costs in a basic child support obligation will not be disturbed absent an abuse of discretion. Given the evidence, both testimonial and documentary contained in the record, we find no abuse in the findings that camp expenses and private school tuition are extraordinary expenses that should be added to the basic child support.

In the final assignment of error, Mr. Ficarra asserts the trial court erred in failing to consider the expense sharing benefit enjoyed by Ms. Westbrook because of living in her parents’ home during the time period in question. There is evidence in the record to show that Ms. West-brook’s expenses for her and her child were $2,450 and $1,085, respectively. Ms. Westbrook testified that the deficit was made up every month by family and friends. Specifically, Ms. Westbrook testified that she owed her parents $50,000 that she was paying back on a monthly basis.

La. R.S. 9:315(C)(5)(e) provides:

The court may also consider as in■come the benefits a party derives from expense-sharing or other sources; however, in determining the benefits of expense-sharing, the court shall not consider the income of another spouse, regardless of the legal regime under which the remarriage exists, except to the extent that such income is used directly to reduce the cost of a party’s actual expenses.

(Emphasis added.)

112The language of the statute is permissive, not mandatory. It is within the trial court’s discretion to include or disallow alleged expense-sharing benefits when determining adjusted gross income for child support purposes.

Given the facts of this matter, we find no abuse of the trial court’s discretion on this issue. Accordingly, we find no merit in any errors assigned by Mr. Ficarra.

ANSWER TO APPEAL

The trial court set forth the basis for its calculations in the Reasons for Judgment as follows:

Given the income of the parties, Mr. Ficarra is responsible for 84% of the monthly child support obligation, i.e.[,] $1,109.00/month. The new obligation is an increase of $559.00 compared to Mr. Ficarra’s prior obligation of $550.00. Mr. Ficarra is due a credit for payments made in addition to Social Security [B]enefits received in the amount of $550.00/month for 7.5 months....

Based on the above, the trial court determined that Mr. Ficarra owed Ms. West-brook a total of $15,719.50. That amount was made executory and Mr. Ficarra was ordered to pay interest from date of judgment until paid.

Ms. Westbrook has answered the appeal seeking a change in the calculation of interest on the amount made executory by the judgment. She argues the trial court should have awarded interest on the increased amount of each monthly child support payment due from the date the increased amount of monthly child support payment accrued. We disagree.

When, after a contradictory hearing, a court finds a payment of support under a judgment is in arrears it is required to determine the amount due and render judgment. When the object of the performance is a sum of money, damages for | isdelay in performance are measured by the interest on that sum from the time it is due.

In the matter before us, the court did not find Mr. Ficarra owed a payment of child support under a judgment that was in arrears. Mr. Ficárra was only ordered to pay the additional child support as of the date of judgment. While the payment covered additional child support for a period in the past, it was not in arrears as envisioned by the law. The payment to Ms. Westbrook did not become due until the judgment under review herein was rendered. Accordingly, we find no error in the award of interest made by the trial court.

Because we find no error in the trial court’s ruling, we affirm the judgment as rendered.

AFFIRMED

      . It is unclear from this designated record why that motion was not heard.

      . It appears from the arguments of counsel that the Social Security benefits for Mr. Ficar-ra and his minor son began on July 1, 2004.

      . Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

      . Stobart v. State, DOTD, 617 So.2d 880, 883 (La.1993).

      . Carmouche v. Carmouche, 03-1106 (La.App. 5 Cir. 2/23/04), 869 So.2d 224.

      . The Articles of Incorporation show that it was actually Ms. Westbrook who incorporated the company; not Mr. Ficarra’s daughter.

      . McKinnis v. Reine, 10-753 (La.App. 5 Cir. 4/26/11), 65 So.3d 688, 692-93 (citations omitted).

      .This statute was amended in 2001, removing the language requiring that a "particular educational need” to attend the special or private school be shown. The statute, as amended, is less restrictive to encompass generally "the needs of the child.” However, we find even under the old standard the particular educational need was established herein by the medical evidence presented.

      . State Dep’t of Social Serv. ex rel. K.L. v. Lesky, 07-599 (La.App. 5 Cir. 12/27/07), 975 So.2d 657.

      . The version of this statute in force in 2001 was amended by Acts 2001, No. 1082, § 1; however, only the numbering and not the substance of the pertinent part was changed.

      . Kern v. Kern, 00-1126 (La.App. 4 Cir. 4/25/01), 786 So.2d 193, 198.

      . Aupied v. Aupied, 09-636 (La.App. 5 Cir. 3/9/10), 38 So.3d 899.

      . La. C.C. art. 2000.


author: MARC E. JOHNSON, Judge.

text:
    DATA MANAGEMENT CORPORATION v. The PARISH OF ST. JOHN THE BAPTIST.
    No. 11-CA-581.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.

      Robert L. Raymond, Attorney at Law, Destrehan, LA, for Plaintiff/Appellant.
    Thomas F. Daley, District Attorney, Ed-gard, LA, for Defendant/Appellee.
    Denise C. Puente, Douglass F. Wynne, Jr., Attorneys at Law, New Orleans, LA, for Intervenor/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| gPlaintiff/app ellant, Data Management Corporation, appeals from the trial court’s denial of its petition for preliminary and permanent injunctive relief, mandamus relief and declaratory judgment relating to a public contract for which bids were advertised under the Louisiana Public Bid Laws. For the reasons that follow, we affirm.

FACTS & PROCEDURAL HISTORY

On November 3, 2010, the Parish of St. John the Baptist (“the Parish”) advertised for bids on a drainage excavation service contract (“the Project”) and set a December 14, 2010 deadline for submitting bids. Data Management Corporation (“DMC”), along with several other contractors, timely submitted a bid on the |sProject. After the bids were tabulated, it was determined that DMC was the lowest bidder with a bid of $9,476.00.

The next day, on December 15, 2010, Compass Ventures Unlimited, LLC (“Compass”), a contractor with the second lowest bid of $9,866.50, sent an email to the Parish Engineer, C.J. Savoie, challenging DMC as the lowest bidder for the Project on the basis DMC did not possess the Earthwork, Drainage and Levees license (“EDL license”) as required by the bid specification documents. Two days later, Mr. Savoie sent an email to the Attorney General’s Office seeking an unofficial opinion as to the validity of DMC’s bid. Mr. Savoie noted that DMC held a license which may qualify it to perform the contractual work but that it did not hold the specified license. The Attorney General’s Office responded the same day advising that the bid documents specified a particular license classification and any bidder who did not have the specified license classification would not be a responsive bidder; thus, its bid would have to be rejected.

On December 20, 2010, the Louisiana State Licensing Board for Contractors responded to inquiry by the Parish as to which licensing classifications would be appropriate for the work detailed in the Project contract. The Board listed six categories of classifications that would be acceptable: (1) Clearing, Grubbing, and Snagging; (2) Earthwork, Drainage, and Levees; (3) Dams, Reservoirs, and Flood Control Work other than Levees; (4) Highway, Street, and Bridge Construction; (5) Heavy Construction; and (6) Building Construction.

On December 21, 2010, Mr. Savoie advised DMC via letter that its bid for the Project was rejected on the basis DMC did not possess the specified EDL license and, thus, it was a non-responsive bidder. DMC subsequently requested a ^Parish Administrative hearing on its disqualification, which was set for January 18, 2011. The results of this hearing are not included in the appellate record. However, correspondence from the Parish Attorney, Thomas Daley, to the Parish President and the Parish Council, indicates that on January 25, 2011, Mr. Daley recommended the Parish reject all of the bids received on the Project on the basis of ambiguities in the bid specifications regarding the licenses required for the Project. Additionally, the agenda from a January 25, 2011 council meeting shows the awarding of the Project contract to either DMC or Compass was tabled on January 11, 2011.

On the same day Mr. Daley made his recommendation to the Parish Council to reject all of the bids, DMC filed a Petition for Temporary Restraining Order, Preliminary and Permanent Injunction, Mandamus, and Declaratory Judgment in the 40th Judicial District Court. In its petition, DMC alleged it was the lowest bid and, thus, the Parish was obligated by the Public Bid Law to award the contract to DMC. DMC maintained it possessed the required licenses under the special conditions section of the bid documents. It asserted the bid documents required either a license that qualifies a bidder to do the specified work or the license specifically stated in the scope section of the bid documents. DMC further alleged the Parish did not have authority to reject all bids.

After a telephone conference with the Parish and DMC, the date of which cannot be determined from the record, the trial judge granted a temporary restraining order preventing the Parish from rejecting all bids, and a hearing was set for January 31, 2011. Three days prior to the hearing, Compass filed a Petition of Intervention, Declaratory Judgment, and Mandamus seeking a determination that it is the lowest responsible bidder and that the Parish be ordered to award the Project contract to Compass as such. Compass asserted DMC’s bid was nonjresponsive6 and was properly rejected. It further contended there was no just cause for the Parish to reject all bids.

All three parties, DMC, the Parish and Compass, appeared at the January 31, 2011 hearing and entered stipulations of facts and to the authenticity of numerous exhibits. The trial court rendered a written judgment on February 2, 2011 finding the Parish could not reject all bids because it did not have just cause to do so. It also determined DMC was a non-responsive bidder because it did not possess the EDL license required by the bid documents and, thus, denied DMC’s request for mandamus and declaratory relief. The trial court further granted Compass’ petition for intervention and mandamus relief on the basis Compass possessed the required EDL license and was the lowest responsive bidder. The Parish was directed to award the Project contract to Compass as the lowest responsible and responsive bidder.

ISSUES

On appeal, DMC contends the trial court erred in finding its bid to be non-responsive on the basis the bid documents required an EDL license, which DMC lacked. DMC maintains an EDL license was merely one acceptable license category listed in the bid documents and was not required to perform the work. It also argues the trial court erred in granting Compass’ petition for mandamus because its petition of intervention was never served; thus, any judgment relating to the petition is an absolute nullity.

LAW & ANALYSIS

Louisiana’s Public Bid Law provides that all public work contracts “shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised.” La. R.S. 38:2212(A)(l)(a). This is a prohibitory law founded on public policy. Hamp’s 6Construction L.L.C. v. City of New Orleans, 05-489 (La.2/22/06), 924 So.2d 104, 107. It was enacted in the interest of taxpaying citizens of this State, and its purpose is to protect the citizens against contracts awarded through favoritism, possibly involving exorbitant and extortionate prices. A.M.E. Disaster Recovery Services, Inc. v. St. John Baptist Parish School Bd., 10-500 (La.App. 5 Cir. 11/23/10), 54 So.3d 719, 722, writ denied, 10-2831 (La.2/11/11), 56 So.3d 1005, citing Haughton Elevator Division v. State, Through Division of Administration, 367 So.2d 1161 (La.1979).

Pursuant to the Public Bid Law, the legislature has specifically prescribed the conditions upon which it will permit public work to be done on its behalf or on behalf of its political subdivisions and a political entity has no authority to take any action which is inconsistent with the Public Bid Law. J. Caldarera & Co., Inc. v. St. James Parish Hosp. Service Dist., 09-166 (La.App. 5 Cir. 11/24/09), 28 So.3d 1112, 1114, writ denied, 09-2814 (La.3/26/10), 29 So.3d 1262, citing Hamp’s Const., supra. A public agency awarding a public works contract is vested with the power and discretion to determine the responsibility of the bidder and to reject all bids if none are satisfactory. However, the law does not allow the agency to arbitrarily select one bid, which is higher, and reject other bids, which are lower. The agency’s discretion must be exercised in a fair and legal manner and not arbitrarily. A.M.E. Disaster Recovery Services, 54 So.3d at 722.

Under La. R.S. 38:2212(A)(l)(b), any requirements of the Public Bid Law, the bid advertisement, and the bid form cannot be waived by the public entity under any circumstances, regardless of whether the requirements could be considered informalities. Hamp’s Const., 924 So.2d at 110. “[W]hen a public entity-elects to place certain requirements in its advertisements for bids and on its bid form, that entity is bound by those requirements and may not choose to waive 17them at a later date.” Broadmoor L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 04-211 (La.3/18/04), 867 So.2d 651, 657. This prohibition against waiver furthers the public interest because it expressly prevents a public entity from specifying certain requirements in a bid and later changing those requirements to accept alternate or substitute proposals. Beverly Construction. Co., L.L.C. v. Parish of Jefferson, 07-847 (La.App. 5 Cir. 2/6/08), 979 So.2d 551, 553-54.

The Parish’s advertisement for bids for the Project specifically stated that, “[a]ll bidders must show proof that he/she is licensed in the State of Louisiana to perform this type of construction.” The bid documents included Technical Specifications and Special Conditions. Under the “Scope” provision of the Technical Specifications, the contract described the type of work to be performed in the drainage excavation work as follows: “Excavating by use of a mechanical excavator to remove sediment soil material from parish ditches and to remove and replace culverts, supplied by the Parish, as needed. In addition, the Contractor shall cut, remove and replace paved driveways as required to complete the ditch excavation.” It further stated, “The Contractor shall have a current Earthwork, Drainage and Levees license as approved by the Louisiana State Contractors Licensing Board.” (Emphasis added.)

It is undisputed that DMC did not possess an EDL license. As such, the Parish deemed DMC’s bid non-responsive. On appeal, DMC asserts an EDL license was not required for the Project, but rather was only one of several permissive licenses as evidenced by the Special Conditions provision of the bid documents. DMC contends its bid was responsive because it was properly licensed under the Special Conditions requirements.

|sThe Special Conditions document addressed “Insurance, certificates, Contractor’s insurance responsibility, Hold Harmless Agreement, license requirements, Commencement of Work, Time of Completion, Public Works responsibility, Parish payment responsibility and Liens.” Subsection V, entitled “License Requirements,” provided:

1. When applicable, a current St. John the Baptist Parish Occupational License is to be maintained during the duration of this contract. Yearly, a copy of such license shall be provided to the Director of Purchasing.
2. When applicable, a current Louisiana State Contractor’s License should be furnished or as stated in the “Scope of Work.”

(Emphasis added.)

DMC contends this language means it could possess either any Louisiana contractor’s license or an EDL license as required under the Technical Specifications. We disagree.

In the interpretation of contracts, the specific controls the general. Barkley Estate Community Ass’n, Inc. v. Huskey, 09-268 (La.App. 5 Cir. 1/12/10), 30 So.3d 992, 998. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract. La. C.C. art. 2050; Lee v. First National Bank of Commerce, 04-659 (La.App. 5 Cir. 2/15/05), 893 So.2d 1030, 1034, writ denied, 05-907 (La.5/20/05), 902 S.2d 1054. Furthermore, the rules of strict construction do no authorize the creation of ambiguities where none exist. Hertz Corp. v. R & R Properties, L.L.C., 11-50 (La.App. 5 Cir. 12/28/11), 83 So.3d 205, 210 citing Freeport-McMoran Energy, LLC v. Cedyco Corp., 10-367 (La.App. 4 Cir. 1/5/11), 54 So.3d 813, writ denied, 11-442 (La.4/29/11), 62 So.3d 111.

The Special Conditions of the contract are clearly the more general provisions. They are not specific to the drainage excavation project but rather refer |9to the general conditions that apply to a public works contract with the Parish. The Licensing Requirements of the Special Conditions expressly refer to the more specific provision of the Technical Specifications pertaining to the scope of work. The “Scope” of the Technical Specifications expressly requires an EDL license for the Project.

To read the contract as urged by DMC would lead to an absurd result. Under DMC’s interpretation of the contract, a contractor’s license would not even be required to perform the work because the License Requirements of the Special Conditions, upon which DMC solely relies, only state that a contractor’s license should be provided when applicable; it does not independently mandate the license.

In applying the rules of contract interpretation and specifically interpreting all provisions in light of one another, we do not find the language of Subsection V of the Special Conditions dispensed with the express requirement of an EDL license in the Technical Specifications. Accordingly, we do not find the Parish abused its discretion in disqualifying DMC as a non-responsive bidder on the basis it lacked an EDL license as required by the Project contract. As such, we find no error in the trial court’s denial of DMC’s petition requesting mandamus relief and declaratory judgment.

Having determined DMC was a non-responsive bidder and, therefore, not entitled to being awarded the Project contract under the Public Bid Law, we find no need to address DMC’s second assignment of error relating to the trial court’s judgment granting Compass’ Petition of Intervention for mandamus relief.

1m DECREE

For these reasons, we affirm the trial court’s judgment denying DMC’s petition for mandamus and declaratory judgment. DMC is to bear the costs of this appeal.

AFFIRMED

      . Although appellant claims the trial court denied its preliminary and permanent injunction, the record reflects that the requested injunctive relief was granted; specifically, the Parish was enjoined from rejecting all submitted bids because just cause did not exist. Thus, this appeal is only from the denial of appellant’s request for mandamus relief and declaratory judgment relating to its right to be awarded the contract under the Public Bid Law.

      . It is noted that DMC possessed licenses for two of these categories: Heavy Construction and Building Construction. It is further noted that Earthwork, Drainage, and Levees is a sub-category of the Highway, Street, and Bridge Construction category.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Andrew E. HORNE.
    Nos. 11-KA-204, 11-KA-205.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 14, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintifi/Appel-lee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

|Jn this criminal proceeding, defendant/appellant, Andrew E. Horne, appeals his convictions and sentences. A 12-per-son jury found Mr. Horne guilty as charged of two-counts of the four-count bill of information: armed robbery and felon in possession of a firearm. The trial judge imposed respective 30-year and 10-year concurrent sentences. Thereafter, the trial judge found that Mr. Horne was a third-time felony offender and vacated the armed robbery sentence. The trial judge then imposed a 66-year concurrent habitual offender sentence. On appeal, Mr. Horne argues that his 66-year sentence is constitutionally excessive. For the reasons that follow, we affirm and remand with instructions to correct the minute entries/commitments.

Procedural History

The state filed a four-count bill of information with all offenses allegedly having occurred on July 16, 2008. The first count charged Mr. Horne with armed Rrobbery with a firearm in violation of La.R.S. 14:64 and La.R.S. 14:64.3. The bill alleged that Mr. Horne robbed Geraldine Winslow and/or Hancock Bank (count one). The second count charged Mr. Horne with attempted second degree murder of Gary Soileau, in violation of La.R.S. 14:27 and La.R.S. 14:30.1 (count two). The third count charged Mr. Horne with possession of stolen property valued at over $500 (a Chevrolet Tahoe belonging to Geraldine Alexander, in violation of La.R.S. 14:69 (count three). The fourth count charged Mr. Horne with possession of a firearm by a convicted felon in violation of La.R.S. 14:95.1 (count four).

Thereafter on the date of trial, March 9, 2010, the state amended the armed robbery count (count one) of the bill of information taking out the reference to La.R.S. 14:64.3 and adding “AND/OR LATOYA LEWIS” as a victim. Two days later, a 12-person jury found Mr. Horne guilty as charged of armed robbery and possession of a firearm by a convicted felon (counts one and four), and not guilty as to attempted second degree murder and possession of stolen property valued at over $500 (counts two and three). On March 24, 2010, the trial judge sentenced Mr. Horne to 30 years imprisonment with the Department of Corrections to be served without benefit of parole, probation, or suspension of sentence for armed robbery (count one) and 10 years imprisonment with the Department of Corrections to be served without benefit of parole, probation, or suspension of sentence for possession of a firearm by a convicted felon (count four). The sentences were ordered to run concurrently with each other.

Also, on that date with Mr. Horne present and represented by counsel, the state informed the court that it was filing a habitual offender bill of information as to the armed robbery conviction (count one). The bill, which was filed that day, alleged that Mr. Horne was a third felony offender. Defense counsel stated that he Previewed his copy of the bill. Counsel informed the court that he would waive the reading of the bill, enter a plea of “not guilty,” and requested a hearing date. Later, defense counsel filed a request for discovery and objections to the bill.

The matter was heard on April 28, 2010. Mr. Horne did not testify. After considering the evidence, the trial judge found Mr. Horne to be a third felony offender. About a month later, the trial judge vacated Mr. Horne’s original armed robbery sentence and imposed an enhanced sentence of 66 years imprisonment with the Department of Corrections. After recognizing that the armed robbery conviction was on count one, the trial judge ordered the sentence on count one to run concurrent with “all of the other sentences.” This timely appeal followed.

Facts

At approximately 10:00 AM on July 16, 2008, the Hancock Bank at 4041 Williams Boulevard in Kenner, Jefferson Parish, was robbed by two men: a gunman and an accomplice who retrieved the money. The gunman wore a bandana that covered most of his face. At trial, two bank eyewitnesses identified Mr. Horne as one of the robbers. They testified that the gunman threatened to kill them if they moved. Mr. Horne gave a statement to the police admitting he robbed the bank.

One of the eyewitnesses, Latoya Lewis, who was working on the day of the robbery as the drive-up teller, had close eye contact with the gunman. She identified Mr. Horne as the gunman by his eyes. Ms. Lewis testified that she previously identified Mr. Horne shortly after the robbery by his hair, tattoos, and shorts. Ms. Lewis stated that the gunman had distinctive features: twisted hair and visible tattoos that showed through his white shirt. At trial, the state asked Mr. Horne to show his chest. After that, Ms. Lewis stated that these were the tattoos she was referring to.

| ¿Another eyewitness, Daniel Drolla, was the sole customer inside the bank during the robbery. After the incident, he spoke with the police and described the robbers. Shortly after the incident, he identified both of the robbers. He recognized the shorts that the gunman was wearing during the robbery. He stated that he had taken a good look at the gunman in the bank. At trial, he identified Mr. Horne as the gunman.

Another bank teller witness, Geraldine Winslow, did not identify Mr. Horne as the gunman. Similarly, Jennifer Snowden, the on-duty manager of the bank, who was inside of her office at the time of the robbery, testified that she did not get a good look at the gunman.

Ms. Winslow testified to events that occurred just before and during the robbery. Before the robbery, she had received a large deposit of approximately $25,000. She stood at the end of the counter, counting the money and “banding it.” After she counted the money, she put it next to her keyboard. She then heard a loud noise and observed feet on the counter in front of her face. She screamed and jumped back to avoid being knocked down.

Ms. Winslow stated that the robber/non-gunman then took the money on the counter that she had banded and he placed it on the side. The subject then jumped to the floor, combed the drawers, and took money from her drawer. He tried to get back over the counter, but stumbled and hit the lamp. Money fell on the floor. The robber/non-gunman went to the floor to pick up the money that was dropped. Ms. Winslow testified she was scared, and feared for her life.

After the robbery, an eyewitness observed the two men flee the scene in a dark gray/black Tahoe SUV. The bank customer witness, Gary Soileau, who had previously been in law enforcement, was at the drive-through window and |Bwitnessed the robbery. He called 9-1-1 and moved his truck forward. Upon doing so, he observed another subject, who was wearing a white shirt and long shorts, in the parking lot standing by an SUV. After Mr. Soileau made eye contact with him, the subject began blowing the horn.

Mr. Soileau was on the phone with 9-1-1 and saw the SUV pull out of the driveway. He observed red smoke coming out of the passenger window, which indicated to him a “dye pack” had exploded in the vehicle. He followed the SUV in his truck. He explained that the suspect in the passenger seat, who was wearing a white shirt and long, dark shorts, was sticking his body and head out of the window. The subjects knew that Mr. Soileau was following them. Suddenly Mr. Soileau heard a bullet fly past his vehicle. He believed that they were shooting at him and he decided to slow down. He then observed the SUV crash into a cab. Mr. Soileau told the dispatcher that the subjects left the SUV and were running. Mr. Soileau went to the SUV and noticed large amounts of currency inside. He later identified both subjects and told the police which one was the shooter. At trial, Mr. Soileau identified Mr. Horne as the subject that was outside honking the horn and as the passenger in the SUV.

Ralph Hardy, who lived near the crash, walked down the steps of his porch into his front yard to see if he could be of assistance. He saw two vehicles involved in the accident. He also noticed two black males “kind of trotting” towards him. He heard police sirens as well. As he walked towards the accident, one of the males pulled a gun on him and put the gun in his face. He told Mr. Hardy to “Back the F up or I’m going to blow your f — ing head off.” Mr. Hardy was afraid and backed away. The male continued down the street, cutting between houses. Mr. Hardy went inside his house. He said this male wore a white t-shirt. He was shown a gun at trial and recognized it as being the same type of gun that 17was put in his face. He also rode with the police to another location and recognized Mr. Horne as the one that pulled a gun on him. He identified Mr. Horne in court. At trial, he was shown a white shirt, a cap, and long shorts. He believed that these were consistent with what Mr. Horne was wearing at the time.

Officer John Cusimano of the Kenner Police Department responded to the investigation and was directed to a nearby shed where a black male hid. The subject, Mr. Horne, was handcuffed, advised of his Miranda rights, and taken out of the shed and brought to Officer James Virgil, also of the Kenner Police Department. Officer Virgil stated that Mr. Horne understood his rights. The officer denied using any force, coercion or intimidation. Mr. Horne was also not promised anything. Mr. Horne advised Officer Virgil where the gun and money could be located inside the shed. Mr. Horne told Officer Virgil he could do what he wanted with the money. Officer Cusimano returned to the shed. He found a weapon where Mr. Horne said it would be inside the shed. There was a live round in the gun’s chamber. The dark gray/black Tahoe was processed and currency was found in it that was stained from the dye. Currency was also located in the street outside of the bank.

Detective Jeff Adams of the Kenner Police Department testified that at the police station, Mr. Horne gave an oral statement to him. He explained that Mr. Horne was advised of his Miranda rights by an Advice of Rights Form and indicated he understood his rights. He was not forced, coerced, intimidated, or promised anything. Mr. Horne said he was “down on his luck” and did not have a place to stay. An individual threatened to kill him and he obtained a handgun from his friend. He said he went to New Orleans and “hooked up” with Timothy | ¡/Timmons. He said that he and Mr. Timmons planned the bank robbery. After they fled, they noticed that a vehicle was following them. Mr. Horne admitted that he pointed a gun out of the window on the passenger side and fired two shots to scare the person off. He said he was not aiming at him. He said their vehicle struck a cab and they both got out on foot. He agreed that he pointed a gun at someone who was walking towards them and told that person to back off before hiding in a shed, where he was apprehended. During his statement, Mr. Horne indicated that he assumed the SUV belonged to Mr. Timmons.

At trial, the state introduced evidence of Mr. Horne’s prior conviction of simple burglary of an inhabited dwelling, La.R.S. 14:62.2.

Aischa Prudhomme of the Jefferson Parish Sheriffs Office crime lab, an expert in the field of latent fingerprint analysis, took Mr. Horne’s fingerprints and compared his fingerprint card to certified court documents showing Mr. Horne’s guilty plea conviction to La.R.S. 14:62.2. She stated that there were no differences in these fingerprints.

Also at trial, the state elicited testimony from Giselle Alexander that on or about July 15, 2008, she travelled to the New Orleans area in her 2005 dark gray Chevy Tahoe. She parked it in the hotel’s parking lot and then noticed it was gone the next morning. She denied giving anyone permission to take her car and said she did not know Mr. Horne.

After hearing the evidence, the jury found Mr. Horne guilty as charged of armed robbery and possession of a firearm by a convicted felon but not guilty on the remaining counts.

| ^Habitual Offender Sentence

Mr. Horne argues that his 66-year habitual offender sentence is constitutionally excessive.

Before Mr. Horne was found to be a third felony offender, he was convicted of armed robbery, the underlying offense. The trial judge stated that he had considered the sentencing guidelines pursuant to La.C.Cr.P. art. 894.1. Mr. Horne was originally sentenced to 30 years imprisonment with the Department of Corrections to be served without benefit of parole, probation, or suspension of sentence. However, the trial judge vacated this sentence and sentenced Mr. Horne as a third felony offender to 66 years imprisonment with the Department of Corrections.

As a third felony offender, for an underlying felony conviction punishable by imprisonment for any term less than his natural life, Mr. Horne was subject to a sentence of not less than two-thirds of the longest term and not more than twice the longest term. See State v. Otero, 09-468, p. 9 (La.App. 5 Cir. 1/26/10), 31 So.3d 1125, 1131, writ denied, 10-0489 (La.9/24/10), 45 So.3d 1072. See also La. R.S. 15:529.1. The term of imprisonment for an armed robbery conviction is not less than 10 nor more than 99 years of imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La.R.S. 14:64(B). Therefore, as a third felony offender convicted of armed robbery, Mr. Horne faced a sentencing range between 66 and 198 years of imprisonment at hard labor. See Ote-ro, supra. Thus, Mr. Horne received the mandatory minimum sentence.

Mr. Horne presents two arguments. First, he urges for a downward departure from the mandatory minimum sentence, citing State v. Dorthey, 623 So.2d 1276 (La.1993). Second, he asserts that even a mandatory minimum sentence can be reviewed for constitutional excessiveness.

|10As for the first argument, the state contends that since Mr. Horne raises a Dorthey claim for the first time on appeal he has not preserved this argument for review.

Mr. Horne did not file a motion to reconsider and only objected to the sentence as being constitutionally excessive. The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence only for constitutional excessiveness. State v. Ragas, 07-3, p. 10 (La.App. 5 Cir. 5/15/07), 960 So.2d 266, 272, writ denied, 07-1440 (La.1/7/08), 973 So.2d 732, cert. denied, 555 U.S. 834, 129 S.Ct. 55, 172 L.Ed.2d 56 (2008) (citation omitted); see also La.C.Cr.P. art. 881.1. Further, a mandatory minimum sentence under the Habitual Offender Law may be reviewed for constitutional excessiveness. State v. Lindsey, 99-3256, 99-3302, p. 4 (La.10/17/00), 770 So.2d 339, 342, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001). And, a Dorthey claim is considered in this Court’s review for constitutional excessiveness. See State v. Dupre, 03-256, pp. 7-9 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, 153-54, writ denied, 03-1978 (La.5/14/04), 872 So.2d 509.

Regarding constitutional excessiveness, the state argues that Mr. Horne failed to satisfy the burdens set forth in Dorthey and its progeny. And, the trial judge did not abuse his discretion when sentencing Mr. Horne to the minimum penalty for a third felony offender.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Wickem, 99-1261, p. 10 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839 (citations omitted). In reviewing a sentence for excessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. See State v. Lobato, 603 So.2d 739, 751 (La.1992).

The trial judge is afforded wide discretion in determining sentences, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Berry, 08-151, p. 17 (La.App. 5 Cir. 6/19/08), 989 So.2d 120, 131, writ denied, 08-1660 (La.4/3/09), 6 So.3d 767 (citation omitted). In considering whether the sentencing court abused its discretion, the reviewing court should consider, 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Pearson, 07-332, pp. 15-16 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656 (citation omitted). A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Williams, 03-3514, p. 14 (La.12/13/04), 893 So.2d 7, 16, citing State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

On review, an appellate court does not determine whether another sentence might have been more appropriate, but whether the trial court abused its discretion. Id.

In State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993), the Louisiana Supreme Court specifically held that when a trial court determines the minimum sentence mandated by La.R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than 11?,“the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive.

It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Mims, 00-1507, p. 6 (La.App. 5 Cir. 12/26/01), 806 So.2d 760, 765, writ denied, 02-0466 (La.2/7/03), 836 So.2d 88 citing State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 675. A court may only depart from the mandatory sentence if it finds clear and convincing evidence in the particular case before it that would rebut this presumption of constitutionality. In order to rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, that is, because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Mims, supra, citing State v. Lindsey, 99-3256 c/w 99-3302 (La.10/17/00), 770 So.2d 339, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001); Johnson, supra. Downward departures from the minimum sentence mandated by La.R.S. 15:529.1 should only occur in rare situations. Lindsey, supra at 99-3302 at 5, 770 So.2d at 342 (citation omitted).

On appeal, Mr. Horne suggests that he is exceptional because of his age, which would amount to him having a life sentence, and the nature of his predicate convictions, which he describes as nonviolent. However, this Court has held that a defendant’s age is insufficient justification for a downward departure. See State v. Lee, 09-37, p. 8 (La.App. 5 Cir. 5/12/09), 15 So.3d 229, 233-34. Further, under the Habitual Offender Law those third and fourth offenders who have a history of violent crime get longer sentences, while those who do not are allowed lesser | issentences. So while a defendant’s record of non-violent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive. Johnson, supra, 709 So.2d at 676.

This Court has previously affirmed 66-year sentences for third felony offenders with underlying convictions of armed robbery. See Otero, supra; State v. Johnson, 03-620, pp. 14-15 (La.App. 5 Cir. 10/28/03), 860 So.2d 180, 189-90, writ denied, 03-3171 (La.3/19/04), 869 So.2d 849.

In this case, as in State v. Thomas, 08-1171, p. 9 (La.App. 5 Cir. 4/28/09), 13 So.3d 595, 601, Mr. Horne failed to carry his burden of proof that the sentence imposed was excessive. Mr. Horne has not shown that he is exceptional because of unusual circumstances and that his sentence is not meaningfully tailored to his culpability as the offender, the gravity of the offense, and the circumstances of the case. Although Mr. Horne argues that no one was killed and that no one suffered lasting or permanent harm, Mr. Horne committed a violent offense of armed robbery when he robbed the bank, and then his fear-provoking actions continued after he left the scene. Mr. Horne was identified as the gunman, and his actions and expressed threats caused several people to fear for their lives during the robbery and in his attempt to escape. Mr. Horne put several peoples’ lives in danger and even admitted to discharging a weapon, and firing two shots at someone following him from the crime scene. Further, in his attempts to escape, the vehicle the robbers were in crashed into another vehicle. Mr. Horne continued with his threats in the yard of someone whose intentions were to assist with the collision. Mr. Horne received a minimum sentence of 66 years for his enhanced sentence, when he faced 99 years for the underlying crime. Accordingly, the trial judge did not abuse his discretion in sentencing.

114Errors Patent

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

Upon review, we note six errors patent, four of which require corrective action.

The first error that does not require corrective action concerns the March 24, 2010 original sentencing minute entry/commitment. The entry reflects the sentences on the two counts: armed robbery and felon in possession of a firearm. However, the entry states: “Sentence to be served without benefit of parole, probation, or suspension of sentence.” (Emphasis added). The entry does not specify which sentence or sentences have the statutory restrictions. In contrast, the trial judge made clear in the sentencing transcript that both sentences were imposed with those statutory restrictions as required by the sentencing statutes. See La.R.S. 14:64 and 14:95.1. Since the benefits provisions of these statutes are self-operating under La. R.S. 15:301.1, it is not necessary to remand the case and order the trial court to correct the commitment to conform to the transcript. State v. Moses, 05-787 (La.App. 5 Cir. 5/9/06), 932 So.2d 701, 715, writ denied, 06-2171 (La.4/5/07), 954 So.2d 140.

The second error that does not require corrective action concerns the May 26, 2010 habitual offender sentence.

According to the habitual offender sentencing transcript, the trial court failed to impose the required statutory restrictions although the minute entry/commitment reflects that the sentence was imposed without benefit of probation or suspension of sentence. La.R.S. 15:529.1(G) requires that all habitual offender sentences be served without the benefit of probation or suspension of sentence. Further, any 11shabitual offender sentence imposed under La.R.S. 15:529.1 following the offender’s conviction for armed robbery must carry the parole disability provided by La. R.S. 14:64(B). State v. Bruins, 407 So.2d 685 (La.1981). Nevertheless, under La. R.S. 15:301.1 and State v. Williams, 001725 (La.11/28/01), 800 So.2d 790, a statute’s requirement that a defendant be sentenced without benefit of parole, probation or suspension of sentence is self-activating. Therefore, no corrective action regarding the restriction of benefits is necessary. See State v. Strattman, 08-674, pp. 9-10 (La.App. 5 Cir. 4/28/09), 13 So.3d 1129, 1134-35, writ denied, 09-1157 (La.1/22/10), 25 So.3d 130.

We now turn to those errors patent requiring corrective action.

First, despite the language in the minute entries/commitments, which show otherwise, the sentencing transcripts, which prevail, do not reflect that Mr. Horne was advised of the prescriptive period for filing post-conviction relief as required by La. C.Cr.P. art. 930.8. In accord with State v. Davenport, 08-463, pp. 10-11 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473, we advise Mr. Horne by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

Second, La.R.S. 15:529.1 (D)(3) requires the trial court to vacate the previously imposed sentence prior to imposing a habitual offender sentence. The May 26, 2010 habitual offender sentencing minute entry/commitment does not reflect that the trial judge vacated the original armed robbery sentence although the transcript shows that the trial judge did vacate the original sentence. By failing to state that the trial judge vacated the original sentence, the minute 11fientry/commitment creates confusion as to the terms of the defendant’s confinement. In order to avoid such confusion, the trial court is ordered to correct the sentencing commitment/minute entry to reflect that the trial judge vacated the original armed robbery sentence, as shown in the sentencing transcript.

Third, both the March 24, 2010 original sentencing minute entry/commitment and the May 26, 2010 habitual offender sentencing minute entry/commitment reflect that Mr. Horne was convicted of “CONVICTED FELON WITH A WEAPON.” More accurately, Mr. Horne was found guilty of “felon in possession of a firearm.” La.R.S. 14:95.1. We accordingly order the trial court to clarify the commitment/minute entry by applying the correct terminology-

Fourth, both the March 24, 2010 original sentencing minute entry/commitment and the May 26, 2010 habitual offender sentencing minute entry/commitment reflect that Mr. Horne was found not guilty of “RECEIVING STOLEN THINGS $100 + .” According to the record, Mr. Horne was found not guilty of “Illegal Possession of Stolen Things valued at $500 or more.” We accordingly order the trial court to clarify the commitment/minute entry by applying the correct terminology.

Conclusion

Accordingly, it is ordered that Mr. Horne’s convictions, habitual offender finding, and sentences are affirmed. We further order that this case be remanded to allow the trial court to amend the minute entries/commitments as directed above. We direct the clerk of court to transmit the original of the respective minute entries/commitments to the officer in charge of the institution to which Mr. Horne has been sentenced, La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-1024417 (La.9/15/06), 937 So.2d 846 (per curiam), and to the legal department, the Department of Public and Safety Corrections (DOC).

CONVICTIONS AND HABITUAL OFFENDER FINDING AFFIRMED; SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS

      . Timothy E. Timmons was also charged in the first three counts of the bill of information. His trial, however, was severed and Mr. Timmons is not a party to this appeal.

      . The bands had to be stamped and initialed. Ms. Latoya Lewis, another bank employee, identified Ms. Winslow’s initials in a "strap of 20s” at trial.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . At a pretrial hearing, the trial judge denied Mr. Horne’s motion to suppress the statements.

        .See infra n. 4.

      . It is noted that count three in the bill of information names the victim as “Geraldine” Alexander. (R., p. 23).

      . According to La.C.Cr.P. art. 881.1(E), the "[f]ailure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessive-n'ess, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.”

      . State v. Lynch, 441 So.2d 732, 734 (La.1983) (The transcript prevails when there is a discrepancy between the commitment and the transcript.).