author: TERRI F. LOVE, Judge.

text:
    A.M.E. DISASTER RECOVERY SERVICES, INC. v. CITY OF NEW ORLEANS.
    No. 2010-CA-1755.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 24, 2011.

      David C. Clement, Lara D. Jensen, Clement Gates & May, New Orleans, LA, for A.M.E. Disaster Recovery Services, Inc.
    Nannette Jolivette Brown, City Attorney, Darryl M. Phillips, Chief of Litigation, Robert J. Ellis, Jr., Deputy City Attorney, Frederick A. Wild, III, Deputy City Attorney, New Orleans, LA, for the City of New Orleans.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

_jjThe plaintiff sought injunctive relief and a writ of mandamus ordering the City of New Orleans to execute a contract allegedly awarded pursuant to the Louisiana Public Bid Law. The trial court denied all of the plaintiffs demands. We find that the trial court did not abuse its discretion because the Louisiana Public Bid Law did not apply, the plaintiff failed to attend the hearing to adjudicate its status as a responsible bidder, and the remedy of a writ of mandamus was not warranted. Therefore, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Around October 2009, the City of New Orleans (“City”) solicited bids for the Interim Nuisance Abatement Program (“Project”), Bid Proposal No. 2144-00786, for biological growth, trash, and debris abatement. A.M.E. Disaster Recovery Services, Inc. (“A.M.E.”) submitted a bid proposal for the Project and received a letter from the City on November 17, 2009, stating that it was a successful bidder for districts B and E of the Project. Due to problems surrounding A.M.E.’s completion of its Louis Armstrong Park project, the City sent a letter to A.M.E. on August 4, 2010, as notification that it was no longer deemed a “responsible bidder.” Further, the City withdrew its prior determination of A.M.E. and disqualified it from receiving contracts for the Project. A hearing to refute the 12City’s contentions was scheduled for August 13, 2010.

However, A.M.E. did not participate in the hearing. Instead, A.M.E. filed a verified petition for a temporary restraining order, an application for a preliminary and permanent injunction, and a writ of mandamus against the City. A.M.E. alleged to have submitted the lowest, responsive, and responsible bid and sought to prevent the City from conducting the hearing, making a determination of A.M.E.’s status as a responsible bidder or awarding the contract to another entity. The trial court granted A.M.E. a temporary restraining order on August 13, 2010, which expired on September 8, 2010, as agreed by the parties. The City filed an opposition and alleged that A.M.E.’s action was premature and alleged that A.M.E. had neither a cause of action nor a right of action.

The trial court denied A.M.E.’s application for a preliminary injunction and permanent injunction and also denied its request for a writ of mandamus. A.M.E. subsequently filed an application for supervisory review with this Court. We denied the supervisory writ application because the trial court’s judgment was an appeal-able judgment. A.M.E. then filed a petition for a devolutive appeal, which was granted.

A.M.E. alleges that the trial court erred by finding that the Louisiana Public Bid Law (“LPBL”) did not apply, that A.M.E.’s action was premature even if the LPBL applied, and that the City did not have to award it the contract.

MOTION TO STRIKE

A.M.E. filed a motion to strike the exhibit attached to the City’s brief because the document was not contained in the record. Pursuant to La. C.C.P. art. 2164, we are a court of record and render our decision based on the appellate record before us. Therefore, we grant the motion, as exhibits attached to appellate |abriefs are not considered part of the record for appellate review. Bd. of Dirs. of Indus. Dev. Bd. of New Orleans v. Taxpayers, Prop. Owners, Citizens of New Orleans, 03-0827, p. 4 (La.App. 4 Cir. 5/29/03), 848 So.2d 733, 737.

STANDARD OF REVIEW

This Court stated:

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. J.W. Rombach v. Parish of Jefferson, 95-829, p. 12 (La.App. 5 Cir. 2/14/96), 670 So.2d 1305, 1310 (citing La. R.S. 38:2212). However, the agency’s discretion must be exercised in a fair and legal manner and not arbitrarily. J.W. Rombach, 95-829, p. 12, 670 So.2d at 1310.
On review of the state agency’s exercise of discretion determining whether a bidder is the lowest responsible bidder, a court should not substitute its judgment for the good faith judgment of an administrative agency. Id. at p. 13, 670 So.2d at 1311. The agency’s reasonable good faith interpretation of its own specifications should not be disturbed by a court that may have different views. Systems Plus, Inc. v. East Jefferson General Hosp., 94-83, p. 11 (La.App. 5 Cir. 5/31/94), 638 So.2d 404, 409 (quoting D.M. Clement Contr. v. St. Charles Parish, 524 So.2d 86 (La.App. 5th Cir. 1988)); J.W. Rombach v. Parish of Jefferson, 95-829, p. 13 (La.App. 5 Cir. 2/14/96) 670 So.2d 1305, 1311. The duty of this Court is to determine whether the OPCSO acted in a fair and legal manner and not arbitrarily in disqualifying Lemoine/Brasfield. J.W. Rombach, 95-829, p. 14, 670 So.2d 1305, 1311; B.F. Carvin Const. Co., Inc. v. Jefferson Parish Council, 98-1189, p. 12 (La.App. 5 Cir. 5/19/99), 735 So.2d 859, 865.

Lemoine/Brasfield & Gorrie Joint Venture, LLC v. Orleans Parish Criminal Sheriff's Office, 10-1220, pp. 3-4 (La.App. 4 Cir. 3/30/11), 63 So.3d 1068, 1070-71.

14The denial of a preliminary or permanent injunction is an appealable judgment pursuant to La. C.C.P. art. 3612(B). Appellate courts review denials of preliminary injunctions or permanent injunctions utilizing the abuse of discretion standard of review. Limousine Livery, Ltd. v. A Airport Limousine Serv., L.L.C., 07-1379, p. 5 (La.App. 4 Cir. 3/12/08), 980 So.2d 780, 783; FQCPRQ v. Brandon Investments, L.L.C., 05-0793, p. 7 (La.App. 4 Cir. 3/29/06), 930 So.2d 107, 112; Sessions, Fishman & Nathan, L.L.P. v. Salas, 04-1790, p. 6 (La.App. 4 Cir. 5/25/05), 905 So.2d 373, 377; A to Z Paper Co., Inc. v. Carlo Ditta, Inc., 98-1417, pp. 8-9 (La.App. 4 Cir. 9/9/98), 720 So.2d 703, 708. However, if the trial court’s discretionary decision was based on an erroneous interpretation of law, deference will not be given. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-72 (La.1983).

INJUNCTIONS

A.M.E. contends that the LPBL applies to the case sub judice, and that even if the LPBL does not apply, its application for injunctive relief was not premature.

“An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.” La. C.C.P. art. 3601(A). A.M.E. was required to establish, by prima facie evidence, that “(1) the injury, loss, or damage it will suffer if the injunction is not issued may be irreparable; (2) it is entitled to the relief sought; and (3) it will likely prevail on the merits of the case.” Limousine, 07-1379, p. 5, 980 So.2d at 783.

The City’s Home Rule Charter requires the usage of a competitive selection process. Section 6-308(5)(a) provides:

(5) (a) Except in the purchase of unique or noncompetitive articles, competitive bids shall be secured before any purchase, by contract or otherwise, is made or | ¡¡before any contract is awarded for construction, alteration, repair or maintenance or for the rendering of any services to the City, other than professional services, and the purchase shall be made from or the contract shall be awarded to the lowest responsible bidder after advertisement prescribed by ordinance or by applicable state or municipal law.

Therefore, the City must award the contract to the bidder who is responsible and submits the lowest bid.

However, in addition to the City Home Rule Charter, “[t]he Public Bid Law is a salutary provision designed to protect the public fisc from favoritism and exorbitant costs.” Wallace Stevens, Inc. v. Lafourche Parish Hosp. Dist. No. 3, 323 So.2d 794, 795 (La.1975). “The statute, however, does not apply to every contract of a governmental agency.” Id. The LPBL applies to contracts for “public works” and “materials and supplies” when the applicable monetary criteria are met. La. R.S. 38:2211 and La. R.S. 38:2212.1. A “public work” “means the erection, construction, alteration, improvement, or repair of any public facility or immovable property owned, used, or leased by a public entity.” La. R.S. 38:2211(12).

The trial court stated that the contract for the Project, by consisting of grass cutting and debris removal services, was a “service contract,” thereby making the LPBL inapplicable. The trial court further stated:

The INAP Project involved a program to assist the City in cleaning and remedying blighted property and did not involve the erection, construction, alteration, improvement, or repair of public property. Thus, the City did not have to follow the deadlines provided under the LPWA in awarding the contract to the lowest responsible bidder.

|/We agree. The award letter A.M.E. received regarded “Biological Growth and Trash and Debris Abatement.” Attach-merit “A” to the Invitation to Bid also provided that: “[t]his specification will produce a non-exclusive requirements’ contract,” which would not require “the City to issue or maintain any assignments hereunder.” Like the trial court, we do not find that this type of debris removal contract falls under the purview of the LPBL, as we do not find that it regards the erection, construction, alteration, improvement, operation, or repair of public property or immovable property. Accordingly, LPBL did not mandate that the City execute a contract with A.M.E. within forty-five days from the award letter.

Even if the Project constituted public works, the trial court found that:

La. R.S. 38:2212(J) provides for an administrative process for disqualifications of a bidder on the grounds that the bidder is not a “responsible bidder” where the agency must: 1) Give written notice of the proposed disqualification to such bidder and include in the written notice all reasons for the proposed disqualification; and 2) Give such bidder, who is proposed to be disqualified the opportunity to be heard at an informal hearing at which such bidder is afforded the opportunity to refute the reasons for the disqualification. Here the City complied with the requirements for a due process hearing in its letter of disqualify cation, for which A.M.E. declined to participate. In this regard, the court concludes this matter would be premature in light of the administrative process established pursuant to LA. R.S. 38:2212(j) and adopted by the City for the proposed disqualification hearing of A.M.E.

17(Citation omitted).

Again, we agree. The City scheduled a hearing for A.M.E. to refute the evidence that it was no longer a responsible bidder. However, A.M.E. chose not to attend the hearing and defend its status. During the hearing on the preliminary injunction, A.M.E. stated its reasons for not attending the City’s hearing to determine its responsibility as follows:

[T]he reason we didn’t go is because disqualification hearings are given great latitude in appellate review. We don’t get two bites at the apple. The City is judging themselves against my client’s responsibility, and then the Appellate Courts have to give that deference. We’re not going to get our fair day in court. It’s not going to be due process.

“[T]he public entity contracting the work” is vested “with wide discretion to determine bidder responsibility.” Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Auth., 04-0211; 04-0212, p. 7 (La.3/18/04), 867 So.2d 651, 656. To determine responsibility, the public entity can examine “financial ability, skill, integrity, business judgment, experience, reputation, quality of previous work on contracts, and other similar factors bearing on the bidder’s ability to successfully perform the contract.” Id.

Given the problems surrounding A.M.E.’s completion of its Louis Armstrong Park project, we do not find that the City’s actions were unfair or arbitrary. The City offered A.M.E. an opportunity to refute its new status as an irresponsible bidder, which A.M.E. declined because it did not believe the hearing and subsequent appellate review would be fair. Therefore, A.M.E. chose not to exhaust administrative remedies. Accordingly, we do not find that the trial court abused its discretion in denying A.M.E. request for injunctive relief because it failed to show that it was entitled to the relief sought.

\ ¡MANDAMUS

A.M.E. alleges that the City has a mandatory duty to execute a contract for the Project because the LPBL applies.

“A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law ... to compel the delivery of the papers and effects of the office to his successor.” La. C.C.P. art. 3863. A writ of mandamus is “an extraordinary remedy, to be applied where ordinary means fail to afford adequate relief.” Hoag v. State, 04-0857, p. 6 (La.12/01/04), 889 So.2d 1019, 1023. The remedy “must be used sparingly ... to compel action that is clearly provided by law.” Hamp’s Const., L.L.C. v. Hous. Auth. of New Orleans, 10-0816, pp. 3-4 (La.App. 4 Cir. 12/01/10), 52 So.3d 970, 973, quoting Allen v. St. Tammany Parish Police Jury, 96-0938, p. 4 (La.App. 1 Cir. 2/14/97), 690 So.2d 150, 153. “Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised.” Hamp’s, 10-0816, p. 4, 52 So.3d at 973. “The remedy is not available to command the performance of an act that contains any element of discretion, however slight.” Id.

As to the writ of mandamus, the trial court found that because the Project did not concern a public work, the City was not mandated to comply with the LPBL. Further, the trial court stated:

The issues raised herein concern matters, albeit contested ones, in which discretion and evaluation of evidence must be exercised. This case presents a res nova issue for the court’s consideration, ie., an agency’s exercise of its discretion to determine bidder responsibility after notifying bidder of the awarding of a services contract, but prior to the execution of the contract. While case law establishes that the public entity does not have the discretion to determine, after bids have been submitted, whether a requirement is substantive or non-substantive, waivable or non-waivable, there is no similar prohibition or limitation on the public agency’s exercise of its duty to | ^determine bidder responsibility and whether that discretion ends with the notification of contract award or whether it extends to execution of contract. Under the provisions of the Public Bid Law, a public entity is required to award a public contract to the “lowest responsible bidder”; however, this does not mean that the public entity is required to accept the lowest monetary bid. Nor does this court believe the law requires the public entity to ignore evidence of bidder irresponsibility.

(Citations omitted). Finally, the trial court found that:

Based upon the uncontroverted evidence submitted by the City Attorney, the Court finds that the City acted reasonably in determining bidder responsibility of A.M.E. and issuing the disqualification letter. There is but little dissent from the general rule that, in determining who is such ‘lowest responsible bidder,’ or ‘lowest and best bidder,’ public boards and officials are vested with wide discretion. Their decision, when based upon an honest exercise of the discretion thus vested in them, will not be interfered with by the courts, unless apparently arbitrary or capricious.

We agree. Considering our finding that the trial court did not abuse its discretion by denying A.M.E. injunctive relief, we also find that a writ of mandamus was not warranted due to the discretion afforded the City in non-LPBL cases. Even if the LPBL applied, the record before us presents evidence to support a finding of just cause on which to base A.M.E.’s disqualification letter. Therefore, we find that the trial court did not abuse its discretion by denying A.M.E. a writ of mandamus and affirm.

DECREE

For the above mentioned reasons, we find that the trial court did not abuse its discretion by denying A.M.E. injunctive relief and refusing to issue a writ of mandamus. Therefore, we affirm.

AFFIRMED

      . The statute was amended on June 24, 2011, to add "operation” to the definition of a public work.

      . La. R.S. 38:2215 Time period for holding bids; issuance of work orders to commence work; exceptions
      A. The state or any state agency upon receipt of bids for the undertaking of any public works contract shall act within thirty calendar days of such receipt to award said contract to the lowest responsible bidder or reject all bids. A political subdivision upon receipt of bids for the undertaking of any public works contract shall act within forty-five calendar days of such receipt to award said contract to the lowest responsible bidder or reject all bids. However, the public entity and the lowest responsible bidder, by mutually written consent, may agree to extend the deadline for award by one or more extensions of thirty calendar days.
      B. The provisions of this Section shall not be applicable when the contract is to be financed by bonds which are required to be sold after receipt of bids on the contract, or when the contract is to be financed in whole or in part by federal or other funds which will not be readily available at the time bids are received, or on contracts which require a poll of the legislature of Louisiana before funds are available to fund the contract. In the event the time limit stipulated herein is not applicable because of one of the exceptions outlined above, this fact shall be mentioned in the specifications for the project and in the official advertisement for bids required in accordance with R.S. 38:2212.
      C. Upon the execution of the contract, the public entity, within thirty days thereafter, shall issue to the contractor a notice to proceed with the project. However, upon mutual consent by both parties, the notice to proceed may be extended.
      D. These provisions shall not be subject to waiver.


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Larry ROBAIR.
    No. 2010-KA-1434.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 24, 2011.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Edward R. Greenlee, Louisiana Appellate Project, LaPlace, LA, for Defendant/Appellant, Larry Robair.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   PATRICIA RIVET MURRAY, Judge.

|, The defendant, Larry Robair, appeals his adjudication and sentencing as a fourth felony offender. Because the record contains insufficient evidence of the defendant’s prior convictions, we vacate his multiple offender adjudication and sentencing, and remand to the trial court for further proceedings.

STATEMENT OF THE CASE

On April 21, 2008, the State of Louisiana charged Larry Robair with aggravated battery, a violation of La. R.S. 14:34. Mr. Robair pled not guilty to the charge. On May 16, 2008, the trial court heard Mr. Robair’s motions, and they were denied. Mr. Robair was tried by a jury and was found guilty of second degree battery in violation of La. R.S. 14:34.1. On January 9, 2009, he was sentenced to five years at hard labor. On July 27, 2009, Mr. Robair filed an appeal alleging that his sentence was excessive and that the record contained insufficient evidence to sustain his conviction of second degree battery. On November 12, 2009, this Court affirmed the defendant’s conviction and sentence. State v. Robair, unpub., 2009-0865 (La.App. 4 Cir. 11/12/09), 25 So.3d 256.

Before this Court’s decision was rendered, the trial court on September 8, 2009, adjudicated Mr. Robair as a quadruple multiple offender. The trial court | j>then vacated its January 9, 2009 sentence and sentenced Mr. Robair to twenty-five years at hard labor. On March 31, 2010, Mr. Robair filed an application for post-conviction relief requesting permission to file an out of time appeal. His motion was granted, and this appeal followed.

STATEMENT OF FACT

The facts underlying the defendant’s conviction of second degree battery are not pertinent to this appeal and are discussed in our prior opinion. See State v. Robair, unpub., 2009-0865 (La.App. 4 Cir. 11/12/09), 25 So.3d 256.

ASSIGNMENT OF ERROR

Mr. Robair’s sole assignment of error is that the trial court erred when it determined that he was a fourth felony offender. He points out that the State introduced evidence from three prior convictions to establish that he was a multiple felony offender. The prior convictions bear docket numbers 358-273, 386^25, and 330-627. However, the only evidence of a prior conviction that is included in the appeal record is docket number 358-273. Because the record is devoid of evidence from the prior convictions bearing docket numbers 386-425 and 330-627, Mr. Robair argues that his conviction and sentencing as a multiple offender should be vacated and remanded for further proceedings.

In its appellate brief, the State concedes that Mr. Robair’s argument has merit. The appeal record also supports Mr. Ro-bair’s argument. On November 16, 2010, this court submitted a letter requesting a copy of the above noted exhibits. On March 29, 2011, the Criminal District Court submitted a response wherein it noted that the multiple exhibits were not in the file.

Although we found no cases on point from this Court, the parties both cite a similar case decided by the Fifth Circuit, State v. Wilson, 01-178, (La.App. 5 Cir. 6/27/01), 790 So.2d 702. In that case, the defendant was convicted of attempted first degree robbery and sentenced to twenty years. Thereafter, the State filed a habitual offender bill of information alleging that the defendant was a third felony offender. A habitual offender hearing was held, and the trial court determined that the defendant was a habitual offender and sentenced him to life in prison. The defendant appealed, arguing that the evidence submitted by the State was insufficient to support his adjudication as a third felony offender. In its decision, the Fifth Circuit noted:

A review of the record reveals that the State’s Exhibits 3 and 4 are missing from the record. Exhibit 3 is identified as “J.P.S.O Arrest Register,” and Exhibit 4 is identified as “C/C BOYKIN, BILL, SENT. W/COMM. 94-846 & C/C BILL, BOYKIN, DISMISSAL W/ TRANSCRIPT 94-847.” As far as this Court can determine, each missing exhibit concerns a different predicate felony, rendering the proof on each predicate offense incomplete in this record. Following this Court’s discovery of the missing exhibits, this Court contacted the Appeals Department of the 24th JDC in an effort to locate the missing exhibits, but was advised that they were unable to locate the exhibits. Without them, it is impossible to determine whether the State met its burden of proof at the multiple offender hearing. Accordingly, we must vacate the defendant’s adjudication and sentence as a multiple offender, and remand for further proceedings. Since double jeopardy principles are inapplicable to sentence enhancement proceedings, the State may retry defendant as an habitual offender. State v. Raymond, 98-119 (La.App. 5 Cir. 8/25/98), 718 So.2d 1010, 1014.

Wilson, 01-178, p. 3, 790 So.2d at 704-705.

Just as in Wilson, the merits of Mr. Robair’s claim regarding his habitual offender adjudication cannot be considered by this Court due to the unavailability of the exhibits introduced at the multiple bill hearing. Therefore, the defendant’s right to appeal his multiple bill adjudication and sentence has been denied. The State concedes that this assignment of error has merit.

\ .CONCLUSION

Accordingly, for the reasons stated, Mr. Robair’s adjudication and sentence as a multiple offender is vacated, and the case is remanded to the trial court for further proceedings.

VACATED AND REMANDED


author: MAX N. TOBIAS, JR., Judge.

text:
    I.F. v. ADMINISTRATORS OF the TULANE EDUCATION FUND.
    No. 2011-CA-0308.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 24, 2011.

      Michael R. Allweiss, Melanie Lockett, Lowe Stein Hoffman Allweiss & Hauver, L.L.P., New Orleans, LA for Plaintiff/Appellant.
    James M. Garner, Dorothy S. Watkins Lawrence, Paul R. Trapani, III, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   MAX N. TOBIAS, JR., Judge.

1 J.F., the plaintiff/appellant, appeals from a judgment dismissing his petition for preliminary and permanent injunction against the defendant/appellee, the Administrators of the Tulane Educational Fund (“Tulane”). For the reasons that follow, we reverse the judgment of the trial court and remand the matter to the court below for further proceedings consistent with this opinion.

I.F., a Tulane student, was accused of raping K.K., also a Tulane student, in the early morning hours of 18 September 2009. In addition to filing a complaint with Tulane, K.K. also contacted the New Orleans Police Department (“NOPD”), after which 1.F. was arrested and charged with simple rape and false imprisonment. I.F. was acquitted on all charges by the criminal court without his putting on a defense.

After his acquittal, I.F. participated in a three-day disciplinary proceeding before the Tulane Joint Hearing Board for his alleged violation of the Code of Student Conduct (“the Code”). I.F. was charged with “Sexual Misconduct,” which |2is defined as “non-consensual sexual behavior which may occur as a result of force, threat, intimidation, or through the use of the victim’s mental or physical helplessness of which the accused was aware or should have been aware.”

After the August 2010 hearing, the Joint Hearing Board found that “clear and convincing” evidence existed that K.K., the victim, was intoxicated and that I.F. knew or should have known of this fact. On 7 September 2010, the Joint Hearing Board issued its decision finding that I.F. was responsible for sexual misconduct as charged.

On 27 September 2010, following the procedures outlined in the Code, I.F. filed an appeal of the Joint Hearing Board’s decision to Tulane’s Appellate Board. I.F. claimed that (a) new and significant evidence had appeared that he could not have discovered before or during the hearing; (b) procedural errors deprived him of a fair hearing; and (c) the decision by the Joint Hearing Board was arbitrary and capricious. The appeal was rejected on 7 October 2010.

On 25 October 2010, I.F. filed a petition for preliminary injunction and permanent injunction seeking to enjoin Tulane from imposing, enforcing, or recording the discipline related to the Joint Hearing Board’s decision and to reverse the decision. The trial court held a hearing on the petition on 17 November 2010, at which time it ruled that the scheduled hearing on affidavits was | (¡inappropriate because I.F. sought a mandatory injunction for affirmative relief; thus an evidentiary hearing was required. The hearing was rescheduled for 5 January 2011. In the meantime, Tulane filed a motion to dismiss the petition based on the record, which included the transcript from the Joint Hearing Board hearing and various documents that were introduced therein. I.F. opposed the motion.

On 5 January 2010, prior to the scheduled evidentiary hearing, the trial court heard oral argument on Tulane’s motion to dismiss. The trial court granted the motion and dismissed I.F.’s petition with prejudice. The trial court requested that Tulane prepare the judgment and reasons for judgment. It did so; the reasons for judgment were over twenty pages in length. I.F. filed a competing judgment and objected to Tulane’s proposed reasons for judgment. In particular, I.F. objected to the continued reference to “evidence” because no “evidence” was introduced into the record. In addition, I.F. objected to many of the factual assertions that differed with the material previously submitted. In any event, the trial court signed the reasons for judgment prepared by Tulane without any revision. This timely appeal followed.

I.F. assigns three errors. First, he claims that the trial court erred in granting Tulane’s motion to dismiss absent the mandatory evidentiary hearing. Next, he argues that the trial court applied the incorrect legal standard to the petition seeking injunctive relief. Finally, he asserts that the trial court erred in finding that Tulane’s actions were not arbitrary or capricious.

|4Although I.F. filed a pleading entitled “petition for preliminary injunction and permanent injunction,” Louisiana is a fact pleading state that values substance over form and does not require the use of magic titles or terminology as a threshold requirement for validly pleading an action. As has been noted, “Pleading is the ‘handmaid rather than the mistress’ of justice.” Teachers' Retirement System of Louisiana v. Louisiana State Employees’ Retirement System, 456 So.2d 594, 596 (La.1984), quoting Erath Sugar Company, Ltd. v. Broussard, 240 La. 949, 953, 125 So.2d 776, 777 (1961); see also La. C.C.P. art. 854. Therefore, we look beyond the caption of the pleading to determine the actual relief sought by the plaintiff.

A review of the petition reveals that I.F. prayed that Tulane be enjoined from imposing the ordered discipline, including but not limited to reversing the Joint Hearing Board’s decision and ordering that all reference to the charge and/or the discipline be removed from his academic record. In other words, I.F. is not seeking that the status quo be maintained, which is what is normally sought in a “prohibitory injunction.”

A preliminary injunction will issue only in its prohibitory form. However, when a defendant obstructs the plaintiff in the enjoyment of a real right, the latter may be entitled to a prohibitory injunction restraining the disturbance and also to a mandatory injunction for the removal of the obstruction or to undo what has been illegally done. Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04-0270, pp. 6-7 (La.App. 1 Cir. 3/24/05), 906 So.2d 660, 664. A | ^mandatory injunction is one that commands the doing of some action; it cannot be issued without a hearing on the merits with live evidence and stipulations of fact by the parties. Further, since the jurisprudence has established that a mandatory injunction has the same basic effect as a permanent injunction, it may not issue on merely a prima facie showing that the party seeking the injunction can prove the necessary elements. Instead, the party seeking a mandatory injunction must show by a preponderance of the evidence at an evidentiary hearing that he is entitled to the preliminary injunction. Id. at p. 7, 906 So.2d at 664. Likewise, a permanent injunction may be issued only after a trial on the merits at which the burden of proof is a preponderance of the evidence. Id. It therefore stands to reason, that the trial court may not deny a mandatory injunction merely because the plaintiff is unable to make the prima facie showing required for a preliminary injunction.

As the Louisiana Supreme Court stated in City of New Orleans v. Board of Directors of the Louisiana State Museum, 98-1170, p. 11 (La.3/2/99), 739 So.2d 748, 756, citing, Denta-Max v. Maxicare La., Inc., 95-2128 (La.App. 4 Cir. 3/14/96), 671 So.2d 995:

A mandatory injunction may not be issued on a merely prima facie showing that the party seeking the injunction can prove the necessary elements; instead, the party must show by a preponderance of the evidence at an evidentiary hearing that he is entitled to the preliminary injunction.

In the instant case, the trial court granted Tulane’s motion to dismiss before holding the required evidentiary hearing. The court erred; it obviously applied the | (¡standard for a prohibitory preliminary injunction without regard to the mandatory relief sought by I.F.

In addition, Louisiana procedural law does not provide for a “motion to dismiss,” such as the one granted by the trial court. Pursuant to the Code of Civil Procedure, there are two types of dismissals: voluntary and involuntary. See La. C.C.P. arts. 1671-72. The motion for a voluntary dismissal of an action provided by La. C.C.P. art. 1671 must be made by a plaintiff and the action may be dismissed without prejudice or with prejudice in certain circumstances. On the other hand, an involuntary dismissal is rendered when a plaintiff or all parties fail to appear for trial or, pursuant to La. C.C.P. art. 1672 B:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence. [Emphasis supplied.]

The clear wording of article 1672 B indicates that the plaintiff must have completed the presentation of his evidence prior to the granting of an involuntary dismissal; the jurisprudence supports this interpretation. In Gagliano v. Amax Metals Recovery, Inc., 96-1751, 96-1752 (La.App. 4 Cir. 5/7/97), 693 So.2d 889, the defendant was allowed to put on two witnesses out of order during the presentation of the plaintiffs case in chief and was granted an involuntary dismissal at the conclusion of the plaintiffs case. Citing Blanchard v. Our Lady of the Lake Medical Center, 529 So.2d 1309 (La.App. 1st Cir.), writ denied, 532 So.2d 772 (La.1988), we held that a motion for involuntary dismissal may be made either at the close of the plaintiffs case or at the close of all evidence but not at points in between. Gagliano, 96-1751, p. 2, 693 So.2d at 890.

While a trial court has much discretion in determining whether to grant a motion for involuntary dismissal, the trial court is required to weigh and evaluate all evidence in order to make such a determination. Locke v. Sheriff, Parish of Jefferson, 94-652, p. 3 (La.App. 5 Cir. 12/28/94), 694 So.2d 257, 258.

Besides voluntary and involuntary motions to dismiss, three additional procedural vehicles exist by which an adverse party may dispose of a suit filed against him. One is through a peremptory exception of no cause of action, which is decided upon the four corners of the plaintiffs petition. A review of I.F.’s petition demonstrates that he has stated a cause of action against Tulane.

Second is a motion for judgment on the pleadings, La. C.C.P. art. 965. And third is a motion for summary judgment, La. C.C.P. art. 966. The similarity between a summary judgment and a judgment on the pleadings was recognized by this court in Canal Motors, Inc. v. Campbell, 241 So.2d 5, 5-6 (La.App. 4th Cir.1970):

A motion for judgment on the pleadings differs from a motion for summary judgment in that on the latter there may be submitted supporting affidavits and counter affidavits and depositions. LSA-C.C.P. art. 966. A motion for judgment on the pleadings is submitted on the pleadings which may include attached exhibits made a part of the pleadings. In either case the judgment may be |Rgranted as a matter of legal right if there does not appear to be a genuine issue of material fact. Our jurisprudential guidelines favor giving a party his day in court, hence summary judgments and judgments on the pleadings are granted only when the legal right is clearly established. (Citations omitted).

According to Tate, The Work of the Louisiana Appellate Courts for the 1966-1967 Term: Civil Procedure, 28 La. L.Rev. 386, 411 (1968) “[similar to the summary judgment remedy, the motion for judgment on the pleadings provides a method to dispose of litigation without a full-scale trial; [sic] in this instance when there is no dispute as to the material allegations of fact.”

The petition in question raises many genuine issues of material fact such that both a judgment on the pleadings and a summary judgment would be inappropriate vehicles by which to dismiss the pleading. Therefore, we find that the trial court erred in granting the motion to dismiss before holding an evidentiary hearing as required by law.

Because of the procedural error committed by the trial court, we do not reach the merits issues of whether I.F. was afforded due process and/or whether Tulane was arbitrary and capricious.

Based on the foregoing, we reverse the judgment granting the motion to dismiss filed by Tulane and remand the matter to the trial court for an evidentiary hearing on I.F.’s request for a mandatory injunction.

REVERSED; REMANDED.

      . Because of the sensitive nature of the facts of this case, we have chosen to use some of the parties’ initials in lieu of their names, although their names appear in the record.

      . I.F. was suspended from Tulane University during his senior year. He was placed on disciplinary probation from 7 September 2010, through the date of his graduation. He is prohibited from joining or acting as a member of a fraternity, holding an office with a student organization, and/or studying abroad. I.F. is also required to participate in counseling and provide monthly progress reports to the Office of Student Resources and Support Services. In addition, I.F. is forbidden from having any contact with K.K.

      . While the Federal Rules of Civil Procedure provide for a motion to dismiss, see Fed. R. Civ. Pro. 12(b)(6), Louisiana procedural rules do not per se recognize such a motion.

      . This means that during the plaintiff's case in chief where the plaintiff seeks a mandatory injunction, if in order to accommodate the taking of testimony of a defendant's witness (who, for example, might otherwise become unavailable), the court permits the defendant to call his witness out of order, the court must await the completion and taking of all evidence of the defendant and plaintiff before ruling. See La. C.C.P. art. 1632

      . Our view of Tulane's motion to dismiss, when reviewed in detail, is that it sounds and reads like a motion for summary judgment.


text:
    Nahlisha JONES v. DEPARTMENT OF POLICE.
    No. 2011-CA-0571.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 24, 2011.

      Donovan A. Livaccari, Livaccari Villar-rubia Lemmon, LLC, New Orleans, LA, for PlaintiffiAppellant.
    Mary Katherine Taylor, Assistant City Attorney, Nannette Jolivette-Brown, City Attorney, Victor L. Papai, Jr., Deputy City Attorney, Nolan P. Lambert, Senior Chief Deputy City Attorney, City of New Orleans, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

| fin this appeal, New Orleans Police Officer Nahlisha Jones (“Jones”) seeks review of a decision of the New Orleans Civil Service Commission (“CSC”), denying her appeal of discipline imposed by the appointing authority, the New Orleans Police Department (“NOPD”). For the following reasons, we affirm the decision of the CSC.

The NOPD employed Jones as a police officer in the Second District. Jones worked with the “A” platoon with a shift starting at 6:25 a.m. and ending at 3:00 p.m.

The NOPD issued a disciplinary letter, dated 25 February 2010, to Jones asserting that she failed to promptly report to duty on time on 4 April 2009. As a result of the failure to promptly report to work, a DI-2 was issued, which Jones refused to sign, resulting in a second violation. A pre-disciplinary hearing was held. Ultimately, the NOPD imposed a two-day suspension.

12Jones appealed to the CSC and it appointed a hearing examiner to take testimony. At the hearing, the hearing examiner noted that the basis for the disciplinary action was contained in the disciplinary letter, and reviewed the allegations regarding Jones’ unexcused absence and refusal to sign the DI-2. For identification purposes, the hearing examiner marked the disciplinary letter as “hearing examiner one” and made the disciplinary letter a part of the record.

The parties stipulated that Jones arrived late to work on 4 April 2009 and that she refused to sign the DI-2 form. She testified that on 4 April 2009, she arrived at work between 7:35 a.m. and 7:45 a.m. She also testified that she contacted the desk officer, Christina Watson, to let her know she would be late, though she did not tell her how late she would be and did not provide a reason therefor. Jones stated that her supervisor, Sergeant Duralph Hayes, III (“Hayes” or “the sergeant”), contacted her to inform her that she would not need furlough for that morning and to contact Lieutenant Travis McCabe (“McCabe” or “the lieutenant”) about attending COMSTAT. Jones stated that she requested Hayes to carry her on furlough for the time that she missed and that she was told to contact McCabe. She further testified that McCabe informed her that she was to attend COMSTAT on Tuesday 7 April 2009 at 3:30 p.m. Jones believed this to be an order. She stated that she advised McCabe that she was unable to attend COMSTAT on the day as she was responsible for picking up her daughter from | ^school; McCabe informed her that she would either be in attendance at COMSTAT on Tuesday or that she would be written up. Jones stated that she offered to attend COMSTAT on a later day, but the lieutenant refused.

The next morning after roll call, Jones stated that Hayes instructed her to accompany him to a meeting with McCabe. She testified that the lieutenant informed her she was not a team player and instructed Hayes to write her up and to change her time. Hayes did write her up and but she refused to sign the DI-2. Jones explained that she refused to sign the DI-2 because no platoon policy existed that required an officer who was late to attend COMSTAT and that other officers had come in late and did not have to attend COMSTAT. Jones stated that she knew she would be issued a DI-1 for refusing to sign the DI-2, but she still chose not to sign the DI-2.

Jones further testified that on 4 April 2009, she was a field training officer and was working with a recruit. She asserted that she did not set a bad example for the recruit by being late for roll call and by not signing the DI-2. She explained that she was late because she overslept due to medication which she takes for migraine headaches. She stated that she did not inform anyone why she was late because no one ever asked her why until McCabe conducted an investigation.

During the course of the lieutenant’s investigation, he requested that Jones provide a statement. Jones asked for a continuance because her counsel was unable to be present. Jones stated that additional charges were brought against her based on her not giving a statement. However, Jones noted that the NOPD exonerated her of the charges based on her not giving a statement and she was not | ¿disciplined based on those charges. She retained counsel and gave a statement regarding her failure to report for duty on time on 4 April 2009 and her failure to sign the DI-2.

Hayes testified that he was the supervisor of Jones on 4 April 2009 and that Jones was scheduled to report at 6:25 a.m., but did not report until 7:45 a.m. He considered that to be an excessive amount of time (one hour and twenty minutes) to be late. He explained that several options are available to an officer who is late, including informal disciplinary action (the DI-2). Further, an officer’s pay could be docked or the officer could be granted annual leave for the tardiness. He testified that McCabe would give some officers the option of going to COMSTAT to makeup the lost time when they were late.

Hayes further explained that a material difference exists between being a few minutes late for roll call and being an hour and twenty minutes late. If an officer is a few minutes late, roll call is still being conducted or an officer may arrive before roll call is completed. Hayes stated that the department understands that an officer can have a family issue crop up, can have a car breakdown, or be involved in a traffic accident. On the other hand, if one is an hour and twenty minutes late, citizens are not receiving police services because the officer is not present to respond to calls for service. In the case of Jones, Hayes stated that the officer was not available to respond to service calls and therefore her recruit sat at the station with nothing to do and was not on the street like she was supposed to be, receiving training. He stated that Jones was disciplined because she was more than a few minutes late.

Hayes also stated that Jones never contacted him to inform him that she would be late. He further testified that Jones did not even contact him once she | Barrived at the station on the morning of the incident. Instead, Jones picked up her recruit and went out. He stated that he contacted Jones to discuss her being late and he informed her to contact McCabe about attending COMSTAT. Later, Hayes issued the DI-2 and changed the payroll to reflect that Jones took annual leave for the time that she was late.

McCabe testified that an officer is allowed to contact the desk officer if he or she is going to be late. However, he stated that it does not absolve the officer of the responsibility to report for duty, and only a supervisor can authorize an absence. He stated that he would handle tardiness by granting an officer the option of attending COMSTAT and not logging the officer as taking unauthorized annual leave or any other action. The lieutenant stated that he asked the sergeant to bring Jones by his detail the morning after she was late for a meeting and that he believed that it was better to get an officer to cooperate than to institute disciplinary measures. He offered Jones the option of attending COMSTAT, but Jones refused. McCabe stated that Jones never requested furlough and he did not order Jones to attend COMSTAT, but that he did offer her that option over other disciplinary measures. He testified that Jones never asked to go to COMSTAT on a different day, but merely stated that she was not going to COMSTAT. He said that he instructed the sergeant to issue a DI-2, but that Jones refused to sign it. At that point, a DI-1 was issued and an investigation ensued.

McCabe stated that an officer being late impairs the efficiency of the department. He explained that during roll call, a lot of pertinent information, such as crime trends, is provided to officers and that any problems that have arisen are discussed, as well as any new policies or procedures. He stated that as a result of tardiness in the platoon, he announced, at roll call, his decision to allow officers to |fiattend COMSTAT to make-up for the time that they were tardy. He testified that an officer being late disrupts roll call and an officer being an hour and twenty minutes late sets a bad example. In the Jones’ case, the lieutenant stated that it set a bad example for the platoon as well as the recruit with whom Jones was working.

Officer Shantia McCormick testified that she was the recruit that Jones was working with on 4 April 2009. She stated that Hayes contacted Jones by telephone and that Jones had requested annual leave. Officer McCormick stated that Hayes instructed Jones to contact McCabe about attending COMSTAT.

The CSC found that Jones’ tardiness was unexcused and her refusal to sign the DI-2 was without justification. It found that Jones was never ordered to attend COMSTAT. The CSC found the NOPD disciplined Jones for cause and denied Jones’ appeal.

As we have often explained, the CSC has authority to hear and decide disciplinary cases, which includes the authority to modify as well as reverse or affirm a penalty. La. Const, art. X, § 12; Pope v. New Orleans Police Dept. 04-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority (here, the NOPD) is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. The authority to reduce a penalty can only be exercised if insufficient cause exists for imposing the greater penalty. Pope, pp.5-6, 903 So.2d at 4.

The appointing authority has the burden of proving by a preponderance of the evidence that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094; Marziale v. Dept. of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The protection of civil Service employees is only against firing (or other discipline) without cause. La. Const, art. X, § 12; Cornelius v. Dept. of Police, 07-1257, p. 8 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724; Fihlman v. New Orleans Police Dept., 00-2360, p. 5 (La.App. 4 Cir. 10/31/01), 797 So.2d 783, 787.

When a CSC decision is appealed to this court, we review the matter as to any question of law or fact, but we only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const, art. X, § 12; Cure, 07-0166, p. 2, 964 So.2d at 1094. In determining whether any disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court does not modify a CSC order unless it is arbitrary, capricious, or characterized by an abuse of discretion. Cure, 07-0166, p. 2, 964 So.2d at 1094. A decision of the CSC is arbitrary and capricious if no rational basis exists for the action taken by the CSC. Id., p. 2, 964 So.2d at 1095.

In her sole assignment of error, Jones argues that the CSC erred in denying her appeal without considering that the NOPD violated the rights provided to her in the Police Officer Bill of Rights. She argues that she asserted her right to counsel on the day she was to provide a statement and was disciplined for not giving a statement on that day without counsel present. Further, she argues that the discipline imposed is an absolute nullity.

Jones attached numerous exhibits to her appellant brief in support of her argument. The NOPD filed a motion to strike, averring that the exhibits attached to Jones’ brief were not offered, filed, and introduced into evidence during the her CSC hearing and that the argument presented therein was being raised for the first time on appeal.

18Our jurisprudence recognizes that “evidence not properly and officially introduced cannot be considered, even if physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal.” Ritter v. Exxon Mobil Corp., 08-1404, p. 9 (La.App. 4 Cir. 9/9/09), 20 So.3d 540, 546. In this case, the only document that was admitted into evidence was the 25 February 2010 disciplinary letter issued to Jones. It is the only documentary evidence that we can properly consider. Accordingly, we grant the motion to strike; the exhibits attached to Jones’ brief will not be considered by us, save the disciplinary letter.

An appellate court generally finds it inappropriate to consider an issue raised for the first time on appeal when that issue was not pled, urged, or addressed in the court below. Graubarth v. French Market Corp., 07-0416, p. 5 (La.App. 4 Cir. 10/24/07), 970 So.2d 660, 664. In Grau-barth, we declined to address an issue raised for the first time on appeal. Id.

At the start of Jones’ hearing, the hearing examiner reviewed the disciplinary letter. Certain facts were stipulated to. Counsel for Jones indicated that whether or not Jones provided an explanation for her absence and whether or not her explanation was good or valid were at issue.

The record on appeal reflects that at no time was the issue of whether or not a violation of the rights afforded Jones by the Police Officers’ Bill of Rights addressed by the hearing examiner or the CSC. Both the report of the hearing examiner and the decision of the CSC address only the issue of whether the NOPD proved by a preponderance of the evidence that it disciplined Officer Jones for cause.

|aBy virtue of the record on appeal properly before us, we find no manifest error in the ruling of the CSC. Jones was disciplined for cause. We decline to address the issue of whether the appointing authority violated the Police Officers’ Bill of Rights as applied to Jones because it has been raised for the first time on the appeal to this court.

Accordingly, for the foregoing reasons, we affirm the ruling of the CSC.

MOTION GRANTED; AFFIRMED.

      . Although not fully explained by the record on appeal, DI-2 and DI-1 appear to be forms that the NOPD uses internally relating to discipline and to commemorate and/or inform a police officer of allegations relating to misbehavior or alleged inappropriate acts or actions. DI-1 appears to be a form used to initiate a formal disciplinary investigation, whereas a DI-2 is a form used to give an officer an informal disciplinary warning advising an officer that the officer is in violation of department regulations. See Williams v. Dept. of Police, 08-0465, p. 4 (La.App. 4 Cir. 10/22/08), 996 So.2d 1142, 1144.

      . We understand COMSTAT to be a process to inform patrol officers of what is expected of them and to measure progress in the NOPD's application of a crime-fighting methodology, being a performance management approach to governing the NOPD. It apparently involves patrol officers meeting with supervisors to discuss how the police force should operate and what the appointing authority expects of and from them. It appears to be a process to warn an officer who has committed a minor infraction of the rules rather than giving an officer a DI-2, which goes on the officer’s permanent record. It is used to allow an officer to make up missed time from work without loss of compensation or vacation time.


author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Larry DILLON.
    No. 2011-KA-0188.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 24, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State Of Louisiana.
    Ariel Rose Test, Orleans Public Defenders, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| TTwenty years after the district attorney filed the bill of information charging him with issuing worthless cheeks, the defendant, Larry Dillon, was arraigned. Mr. Dillon moved to quash the bill of information on the ground that his speedy trial rights had been violated.

Finding that leaving a notice of arraignment on the door of the defendant’s home was sufficient service, and that the statutory two-year period within which to bring Mr. Dillon to trial had been interrupted, the trial judge denied the motion to quash. Mr. Dillon then entered a plea of guilty under Crosby, and reserved his right to appeal the denial of the motion to quash.

Because we find that the trial judge abused her discretion in finding that Mr. Dillon was properly served, we vacate her ruling. But because the trial judge did not reach other issues raised by the motion and by the prosecution, we remand, with instructions, to the trial court for further proceedings. We explain below in more detail our ruling.

_hi

Mr. Dillon was arrested and incarcerated on October 21, 1990. The magistrate set bail at $2,000, but it was not posted. On October 29, 1990, he was released from pretrial detention on a Prison Control Release (PCR). Unlike a secured or unsecured bail bond, the PCR did not contain any undertaking or obligation by the released person to agree to appear in court. The PCR was signed by Mr. Dillon and did include a home address for him.

On November 14, 1990, the district attorney filed the bill of information with the clerk of court, in which bill Mr. Dillon was charged with issuing worthless checks to a supermarket in the amount of more than $100 but less than $500, a non-capital felony at that time. The case was allotted and the arraignment was scheduled for December 6, 1990. A notice of arraignment was issued to Mr. Dillon, which commanded his appearance. His home address as shown on the PCR was provided for the service location.

The Orleans Parish criminal sheriffs deputy attempted to serve Mr. Dillon on three separate occasions at the home address, but there was no response. On the third and final date, which was December 5, 1990, the deputy left Mr. Dillon’s notice in the door of his home and noted his action on the notice’s return.

When Mr. Dillon did not appear for his arraignment, the district judge ordered the issuance of an alias capias for his arrest.

On July 29, 2010, Mr. Dillon was arrested and later appeared before the trial court for arraignment. He then filed his motion to quash. After its denial by the district judge, Mr. Dillon entered a plea of guilty as charged, but reserved his right |sto appeal the ruling. After accepting his guilty plea, the district judge sentenced Mr. Dillon. This appeal follows.

II

One ground for a pretrial plea that may be raised by a motion to quash is that “[t]he time limitation ... for the commencement of trial has expired.” LA. C.CR.P. ART. 582 A(7). Also, a defendant may raise a claim of denial of his federal and state constitutional speedy trial rights by a motion to quash. See State v. Reaves, 376 So.2d 136 (La.1979). As a general statutory rule, no trial shall be commenced in a non-capital felony case, such as this one, “after two years from the date of institution of the prosecution”. LA. C.CR.P. ART. 578 A(2). This time limitation, however, is subject to interruption. The cause of the interruption of the time limitation, as found by the district judge, was that Mr. Dillon, the defendant, “fail[ed] to appear at any proceeding pursuant to actual notice, proof of which appears of record.” LA. C.CR.P. ART. 579 A(3). The district judge decided, over the defense’s objection, that the deputy’s leaving the defendant’s notice of arraignment in his door was “proper service”.

Once a defendant has failed to appear after notice which appears in the record, the time accrued to that date is not counted, and the two-year time limitation “com-mencefs] to run anew from the date the cause of interruption no longer exists.” LA. C.CR.P. ART. 579 B. Thus, the district court concluded that the |4two-year time limitation had not expired and Mr. Dillon still could be subjected to trial on the charge of issuing worthless checks.

Ill

We generally review trial court rulings on motions to quash under an abuse-of-discretion standard. See State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206; State v. Batiste, 05-1571 (La.10/17/06), 939 So.2d 1245. We specifically review a ruling on a motion to quash on the ground that the time limitation or prescriptive period for commencement of trial has expired under that same standard. See State v. Ramirez, 07-652, p. 4 (La.App. 4 Cir. 1/9/08), 976 So.2d 204, 207. A district court necessarily abuses its discretion if its ruling is based on an erroneous view of the law. See, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); United States v. Taylor, 487 U.S. 326, 336, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988) (noting that discretionary choices are not left to a court’s inclination, but to its judgment, which is guided by sound legal principles). Thus, if a trial court in exercising its discretion bases its ruling upon an erroneous view or application of the law, its ruling is not entitled to our deference.

Here, the trial judge expressly based her finding that the time limitation had not expired on her conclusion that the deputy sheriffs leaving the defendant’s notice in the door of his home constituted proper service. There is, we first observe, no express provision of our procedural law specifically regarding service on a defendant of notice of his arraignment. The particular notice of arraignment, which is before us, expressly commands or orders Mr. Dillon’s to appear at a time and place specified. Thus, the notice of arraignment closely resembles the form for | fia subpoena of a witness. See LA. C.CR.P. ART. 733 (“A subpoena shall state the name of the court and the title of the case and shall command the attendance of a witness at a time and place specified.”) Contumacious failure to comply with a subpoena or order to appear for arraignment after notice is punishable by contempt. See La.C.Cr.P. arts. 21(1) and (2). We, therefore, extend the application of the procedural requirements for proper service of a subpoena to the proper service of notice of arraignment in those limited cases where the defendant is not in custody and not released on a bail undertaking.

And we have previously held that leaving a subpoena on the door of a residence is not proper service. See State v. Hill, 534 So.2d 1296, 1298 (La.App. 4th Cir. 1988). At the time we decided Hill, LA. C.CR.P. ART. 735 admitted of only two types of service: personal and domiciliary. We emphasized that “[pjroper domiciliary service requires that the sheriff leave the subpoena at the dwelling house or usual abode of the witness with a person of suitable age and discretion residing therein as a member of the domiciliary establishment of the witness.’ ” Id. We concluded that “the return indicates that the subpoena was delivered but delivered incorrectly.” Id.

La. C.CR.P. art. 579 A(3) provides for interruption of the two-year prescriptive period when “[t]he defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.” (emphasis added) Because the leaving the notice of arraignment in Mr. Dillon’s door on December 5, 1990 does not constitute proper service, the trial judge’s ruling is based upon an erroneous view of the law.

| f;In our examination of the record for any other documented proof of actual service, we have been unable to locate any other documentation. For example, as we noted earlier, had Mr. Dillon been released on bail, some particular reporting obligations on his part may have been triggered which might suffice for “actual notice.” See State v. Peters, 10-939 (La.App. 4 Cir. 11/17/10), 52 So.3d 233; see also La. C.CR.P. art. 322 C. But in the absence of a bail obligation, no such triggering occurred. See State v. Sorden, 09-1416 (La.App. 4 Cir. 8/4/10), 45 So.3d 181. Because Mr. Dillon was released from pretrial detention not on bail but by a PCR, the prosecution must show more than attempted domiciliary service on him. See State v. Foster, 96-0670 (La.6/28/96), 675 So.2d 1101.

As a consequence, the trial court’s erroneous finding that such service of the notice was proper cannot be the basis upon which the time limitation or prescriptive period was interrupted. Because that was the only basis for the trial court’s ruling, we reverse the ruling.

IV

Although we conclude that as a matter of law the deputy sheriffs return in this case does not satisfy the requirement of proof of actual notice, our decision to reverse the trial court’s ruling is not fully dispositive of the motion to quash in this matter.

The trial court’s erroneous ruling that there was proof of actual notice prematurely terminated the hearing on the motion to quash. If the prescriptive period had been interrupted by record proof of actual notice, no further action on the part of the prosecution would be required to carry its burden. See State v. Romar, 07-2140, p. 3 (La.7/1/08), 985 So.2d 722, 725; State v. Baptiste, 08-2468 (La.6/23/10), 38 So.3d 247. Now that we have reversed the erroneous ruling, we |7must afford the prosecution an opportunity to establish some other ground for its claim that the prescriptive period has been interrupted. Foster, supra.

The premature termination of the motion to quash hearing additionally prevented the defense from offering evidence that Mr. Dillon’s federal and state constitutional rights to a speedy trial had been violated. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Doggett v. U.S., 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Consequently, we remand the matter to the trial court with instructions. Cf. State v. Walton, 06-2553 (La.6/1/07), 957 So.2d 133, 134 (per curiam); State v. Floyd, 07-0216 (La.10/5/07), 965 So.2d 865.

REMAND INSTRUCTIONS

The case is remanded to the trial court for the purpose of re-opening the hearing on the motion to quash. At the hearing, unless the prosecution is able to show record proof of actual notice, it shall bear the heavy burden of showing that it is excused from trying the accused on the charge of issuing worthless checks beyond the two-year period of limitation. Romar, supra. Also, the defendant shall |8be afforded an opportunity to establish that his constitutional rights to a speedy trial have been violated.

If the trial court rules favorably to the defendant and sustains his motion, it shall provide him with the opportunity of withdrawing his guilty plea, dismiss the charges, and discharge Mr. Dillon. See LA. C.CR.P. ART. 581; Sorden, p. 17, 45 So.3d at 191. The prosecution may file an appeal from the ruling. See La. C.CR.P. art. 912 B(l).

In the event of a ruling on the motion adverse to the defendant, the trial court shall maintain the guilty plea, and Mr. Dillon may again appeal his conviction and sentence to this court on the basis of his original Crosby reservation. Floyd, supra.

DECREE

The trial court’s ruling on the motion to quash filed by the defendant, Larry Dillon, is reversed. The matter is remanded to the trial court in order for it to comply with our instructions.

REVERSED AND REMANDED

      . At the time this was a violation of former La. R.S. 14:71 B. Currently, the offense is a misdemeanor. See LA. R.S. 14:71 E.

      .The guilty plea was entered pursuant to State v. Crosby, 338 So.2d 584 (La.1976). A Crosby-plea allows a defendant to bargain for a reservation of a right to appeal an adverse pretrial ruling, which does not constitute a jurisdictional defect. A jurisdictional defect has been described as one which "may be invoked by any one at any time and anywhere.” State v. Nicolosi, 128 La. 836, 55 So. 475, 478 (1910). "A motion to quash on the ground that the time limitation for commencement of trial has expired may be filed at any time before commencement of trial.” LA. C.CR.P. ART. 535 B. The failure to seek dismissal of the charges by filing this motion before trial waives the ground. See State v. Major, 03-249 (La.App. 3 Cir. 3/2/05), 898 So.2d 548.

      . The district judge sentenced Mr. Dillon to serve one year in the Department of Corrections, which sentence was suspended on Mr. Dillon's satisfactory completion of a one-year active probationary term.

      . The time limitation is also subject to suspension, see LaC.Cr.P. art. 580, but suspension is not an issue in this case.

      . This apparent lacuna in the procedural law is likely attributable to the circumstance that in the usual case a defendant is either incarcerated (and his appearance is arranged directly through the sheriff, his custodian) or has been released from pretrial detention on bail (which has its own notification requirements).

      . La. C.CR.P. art. 735 was amended in 1989 (before the filing of the bill of information in this case) for service by United States mail. The record on appeal does not indicate mail service was attempted on Mr. Dillon.

      . We quote the complete Foster ruling:
      Granted in part; denied in part. The single attempt at domiciliary service upon relator by leaving the subpoena with an unidentified Ms. Lewis, who indicated that she did not see relator often at that address and refused to sign the return, did not establish that relator had actual notice of the proceedings and did not discharge the state's heavy burden "to exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him.” State v. Estill, 614 So.2d 709, 710 (La.1993). This case is remanded to the district court for purposes of reopening the hearing on relator’s motion to quash. The state may present evidence of what additional steps, if any, it took to execute the capias issued after relator's failure to appear in court and thereby secure his presence at trial. Cf., City of Baton Rouge v. Wheat, 377 So.2d 1234 (La.1970)[sic. The correct year is 1979.] Relator may also present evidence on the question of whether he absented himself from his usual abode or had actual notice of the arraignment for which he failed to appear. La.C.Cr.P. art. 579 A(l) and (3). The district court is to rule anew on the basis of the expanded record. Relator may appeal from an adverse ruling. In all other respects, the application is denied.

        Foster, 96-0670, p. 1, 675 So.2d at 1102.


author: JUDE G. GRAVOIS, Judge.

text:
    Mary DOUCET v. FIRST FEDERAL GUARANTY, Heith R. Huguet, John M. Compton, Jr., David Michael Compton, and Sherel J. Pizzolato, Jr.
    No. 11-CA-9.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 30, 2011.
    Rehearing Denied Sept. 28, 2011.

      Kirk Reasonover, Amanda Hogue, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellee.
    Nicholas J. Muscarello, Jr., Attorney at Law, Hammond, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

12This is a suit for damages under the Louisiana Securities Law, LSA-R.S. 51:701, et seq. Plaintiff, Mary Doucet, sued defendants, First Federal Guaranty (“FFG”), Heith R. Huguet, John M. Compton, Jr., David Michael Compton, and Sherel J. Pizzolato, Jr., for damages for breach of fiduciary duty as a result of their involvement in sales to her of unregistered securities that were later determined to be part of a “Ponzi scheme.” Prior to trial, Ms. Doucet settled all claims she had asserted against FFG, the Comptons and Mr. Pizzolato, leaving only Mr. Huguet as the remaining defendant at trial. After a one-day bench trial, the trial court found Mr. Huguet liable to Ms. Doueet for breach of fiduciary duty and awarded her $49,323 in damages, attorney’s fees and expert witness fees, plus judicial interest and costs. Mr. Huguet appeals, arguing first that the trial court erred in denying his motion for involuntary dismissal based upon a release and waiver of | ¡¡claims signed by Ms. Doueet, second that the trial court erred in calculating damages, and third that the trial court erred in awarding damages to Ms. Doueet for mental anguish.

For the following reasons, we affirm the trial court’s ruling denying Mr. Huguet’s motion for involuntary dismissal. Further, we amend the trial court’s $49,323 award to Ms. Doueet for damages, attorney’s fees and expert witness fees to $41,496. Ms. Doueet is further entitled to judicial interest on said amended award from September 16, 2010 until paid, plus taxable court costs through dismissal. As amended, the judgment of the trial court is affirmed.

FACTUAL BACKGROUND

Ms. Doueet is a devout Catholic whose sole financial resources were approximately $120,000 invested in certificates of deposits (“CDs”), most of which funds were inherited from her father, and a few thousand dollars contained in two checking accounts. Leading a life dedicated to devotion and prayer, Ms. Doueet paid her living expenses from the interest she earned from her CDs and the money in her checking accounts. She had no other income of any consequence. Until the time she invested with Mr. Huguet, Ms. Doucet’s investments always consisted of very conservative CDs, which she regularly would renew as they matured.

During 2003, Ms. Doueet read advertisements in The Times-Picayune newspaper targeted to CD owners about products offered by FFG that would bring a higher interest rate than CDs (referred to in the advertisements as “CD Type Annuity” and “CD Alternative”). The advertisements were introduced into evidence. Ms. Dou-cet called FFG and scheduled an appointment with Mr. Huguet, whom she did not know prior to that time. At their initial meeting, Ms. Doueet |4explained her financial situation to Mr. Huguet, specifically telling him that the safety of her principal was the most important thing to her; second was income. Ms. Doueet had no experience with investment vehicles other than CDs. At some point, she and Mr. Huguet discussed the Catholic faith which they supposedly shared, which she claims induced her trust in him.

The principals of FFG were Mr. Pizzola-to and the Comptons. Mr. Huguet was employed by FFG. He was licensed in Louisiana to sell insurance. Neither Mr. Huguet nor FFG held licenses to sell securities in the State of Louisiana. This was not disclosed to Ms. Doueet. Mr. Huguet told Ms. Doueet that FFG sold CDs and annuities. He advised Ms. Doueet against investing in the CDs his firm was offering because of his concerns about the security of clients’ personal information over the internet. After discussions with Mr. Hu-guet, Ms. Doueet decided to purchase an annuity with an insurance company though FFG. The annuity had a “free look” period following Ms. Doucet’s receipt of paperwork by mail from the insurance company. After reviewing the information packet she received from the insurance company, Ms. Doueet decided that she did not want to purchase the annuity, and made another appointment with Mr. Huguet to fill out the necessary paperwork to opt out of the annuity purchase.

At some point, Mr. Huguet told Ms. Doueet about another investment his company was offering with Resort Holding International, S.A. (“RHI”), referred to in the documents supplied by Mr. Huguet to Ms. Doucet as a “Universal Lease Program.” This investment offered investors the opportunity to purchase timeshare-type vacation unit leases in various resort properties located in Mexico and Central America. A minimum investment of $5,000 was required to participate in the “Universal Lease Program.”

|fiThe “Universal Lease Program” offered investors three possible options. Option One allowed investors to utilize the unit leases themselves and forego any return on their investment. Option Two allowed investors to handle the unit leases themselves and pay unit management and maintenance fees. Neither of these options offered any type of guaranteed, periodic return on the investment. Under Option Three, investors were required to hire an “independent” third-party management company to manage their unit leases. Option Three provided for a guaranteed, fixed income on the investment. Accordingly, this was the only option conducive to Ms. Doucet’s needs since she depended on periodic income generated by her investments to meet her daily living expenses.

Based on what Mr. Huguet represented to her, by selecting Option Three, Ms. Doucet was eligible to receive a guaranteed annual return of 9% on her investment. Mr. Huguet represented to Ms. Doucet that this investment produced significant returns without subjecting the principal to risk, that RHI was a reliable investment that had a long history of consistently making timely payments, and that Ms. Doucet could get her investment back promptly, without penalty, if she ever needed or wanted a return of her savings. Mr. Huguet also told Ms. Doucet that this investment was safe because the operators and facilities were debt free and that she would be insured against loss. At some point, Mr. Huguet further represented to Ms. Doucet that his father-in-law, co-defendant David Compton, had also invested in RHI. Mr. Huguet never disclosed to Ms. Doucet that FFG received a 12% commission on the sale of RHI investments, the largest commission that it earned on any of the products it sold.

On October 29, 2003, based on these representations made by Mr. Huguet, Ms. Doucet purchased $20,000 worth of RHI unit leases through FFG. Also at Mr. Huguet’s advice and request, Ms. Doucet agreed to cash in several other | ^certificates of deposit over time in order to purchase additional RHI unit leases, incurring early surrender charges that Mr. Huguet promised would be added to her RHI investments without additional cost to her. Eventually, from October 29, 2003 through February 26, 2004, Ms. Doucet invested the entirety of her former CD savings in RHI unit leases, in various increments totaling $120,882.

Instead of the promised guaranteed annual income of 9% on her RHI investments, Ms. Doucet received only sporadic income from her RHI investments, ultimately totaling only $7,848 for the more than two-and-a-half years that she held her RHI investments (amounting to an annual return of approximately 3%, according to Ms. Doucet’s expert). After experiencing concern over the lack of her RHI investments’ performance and the security of her principal, on August 3, 2006 Ms. Doucet entered into a Purchase Agreement with Comercializadora Vaca-cional Panama, S.A. (“CVP”) to sell all of her RHI unit leases to CVP for $71,400, to be paid to her in quarterly installments, beginning on September 30, 2006 and ending on June 30, 2008. In due course, Ms. Doucet received from CVP the entirety of the $71,400 agreed to in the Purchase Agreement.

FIRST ASSIGNMENT OF ERROR

In his first assignment of error, Mr. Huguet claims that the trial court erred in denying his motion for involuntary dismissal made at the close of Ms. Dou-cet’s case. He argues that in the Purchase Agreement to CVP, Ms. Doucet agreed to a release of RHI and CVP that also amounted to a release or waiver of her claims against him. For the following reasons, we find no merit to this assignment of error.

|7The release in question is contained in the Purchase Agreement between Ms. Doucet and CVP, and states, in pertinent part:

... Leaseholder [Ms. Doucet] on behalf of himself/herself and his/her heirs, successors, assigns and representatives, hereby irrevocably and forever RELEASES, WAIVES AND FOREVER DISCHARGES any and all claims and counterclaims, together with any and all obligations, liabilities, actions, causes of action and demands whatsoever, whether founded in fact, law or equity, whether known or unknown, that Leaseholder can, shall or may have, now or in the future against RHI and CVP or its respective parents, subsidiaries, affiliates, shareholders, directors, officers, employees, agents, successors, assigns and representatives, for any and all reasons or causes whatsoever related to or in any way connected with the Leases, the Vacation Unit or the transactions contemplated by this Purchase Agreement.

Mr. Huguet argues in brief that he was an agent of RHI and thus was covered by the terms of the release. The trial court, however, found that Mr. Huguet was not an agent of RHI and was not meant to be included in the release, a finding that is fully supported by the record.

There is no evidence in the record that Mr. Huguet was an employee, agent, successor, assign or representative of either RHI or CVP. Mr. Huguet was employed by FFG. He sold only the products that FFG offered. He never met with anyone from RHI nor did he visit any of the RHI properties. He never viewed any financial information, balance sheets, or income statements from RHI. It was his superiors at FFG who learned about RHI at a Canadian insurance meeting and who brought the RHI product into their portfolio. Mr. Huguet never communicated with anyone from RHI. His “due diligence” on behalf of Ms. Doucet consisted solely of asking his principals at FFG about the investment. He conducted no independent research into RHI.

Ms. Doucet’s expert testified that he had seen “no indication that [Mr. Huguet] was an agent of, that he was employed by, that he was a representative of, that he was acting in any way on the direct behalf of [RHI], or its affiliates.” To 1 sthe contrary, the expert testified, un-rebutted, that Mr. Huguet acted as Ms. Doucet’s “investment adviser” in connection with the RHI transactions. As such, it is clear that the release of “agents” and “representatives” of RHI did not include Mr. Huguet.

Further, by its own terms, the release did not cover Mr. Huguet. In analyzing whether a release bars recovery, it must be determined whether the claim at issue was intended to be covered by the release. According to LSA-C.C. art. 3076, “[a] compromise settles only those differences that the parties clearly intend to settle, including the necessary consequences of what they express.” A general release will not bar recovery for those aspects of a claim not intended to be settled/covered by the release. Trahan v. Coca Cola Bottling Co. United, Inc., 2004-0100, p. 16 (La.3/2/05); 894 So.2d 1096, 1107.

There is nothing in the record to suggest that the parties to the Purchase Agreement contemplated Mr. Huguet as being an “agent” or “representative” of RHI or as being released thereby. To the contrary, Ms. Doucet testified that in entering into the Purchase Agreement, she did not intend to release FFG, Mr. Pizzola-to, the Comptons, or Mr. Huguet. Indeed, Mr. Huguet’s argument in favor of his release resulting from Ms. Doucet’s execution of the Purchase Agreement would apply equally if not more strongly to his employers, as it was they who decided to sell the RHI investments. One of them purportedly even met with RHI officials and viewed one or more of the RHI properties. The Purchase Agreement did not release these other parties, however, given that they later entered into settlement agreements with Ms. Doucet in this suit. It is thus clear that the Purchase Agreement did not intend to release the claims that Ms. Doucet has asserted in this matter against Mr. Huguet.

| ;,Mr. Huguet further claims that he was released as a co-debtor in solido to Ms. Doucet with RHI and CVP under LSA-C.C. arts. 3071 and 2203, unless Ms. Dou-cet expressly reserved her rights against him. This argument is also with merit because Mr. Huguet was not a co-debtor in solido to Ms. Doucet with RHI or CVP.

The district court did not abuse its discretion in denying Mr. Huguet’s motion for involuntary dismissal.

SECOND ASSIGNMENT OF ERROR

Mr. Huguet next argues that the trial court improperly calculated the damage award to Ms. Doucet. We agree.

LSA-R.S. 51:714 provides for damages in this case, in pertinent part, as follows:

A. Any person who violates R.S. 51:712(A) shall be liable to the person buying such security, and such buyer may sue in any court to recover the consideration paid in cash or, if such consideration was not paid in cash, the fair value thereof at the time such consideration was paid for the security with interest thereon from the date of payment down to the date of repayment as computed in R.S. 51:714(C)(1), less the amount of any income received thereon, together with all taxable court costs and reasonable attorney’s fees, upon the tender, where practicable, of the security at any time before the entry of judgment, or for damages if he no longer owns the security. Damages are the amount which equals the difference between the fair value of the consideration the buyer gave for the security and the fair value of the security at the time the buyer disposed of it, plus interest thereon from the date of payment to the date of repayment as computed in R.S. 51:714(0(2).

In its judgment rendered on September 22, 2010 (which included reasons for judgment), the trial court stated that it calculated its award to Ms. Doucet by first deducting the $71,400 Ms. Doucet received in the CVP sale from Ms. Doucet’s total RHI investments of $120,882, resulting in a net amount due to Ms. Doucet of $49,482. The trial court then stated:

|inThe court finds that Ms. Doucet is entitled to the sum of $49,382.00 [sic], plus $4,000.00 for expert fees, plus attorney’s fees at the rate of 38.33% on the sum of $49,482.00, or the sum of $16,459.00, minus $20,518.00, the amount previously paid as attorney’s fees, for a total award of $49,323 [sic].
Accordingly,
IT IS ORDERED, ADJUDGED AND DECREED that Plaintiff be awarded the sum of $49323.00, from date of judicial demand, until paid and for all costs of these proceedings, [sic]

Mr. Huguet argues in brief that under LSA-R.S. 51:714, Ms. Doucet is entitled only to recover the amount paid for the security, less any income received thereon, plus taxable court costs and reasonable attorney’s fees. As such, he argues that the amount due Ms. Doucet on her RHI investments is $41,634 (being Ms. Doucet’s initial investment of $120,882, less $7,848 in income payments she received from RHI, and also less the $71,400 she received in CVP sale), plus $15,063.05 in judicial interest calculated from the respective dates of her investment purchases to the date she received her last payment from CVP, plus court costs of $2,127.55, for a total of 58,824.60, less the gross amount of the $70,000 settlement proceeds Ms. Doucet received from the other defendants, resulting in an “over payment” to Ms. Doucet of $11,175.40, which Mr. Hu-guet argues should be considered “reasonable” attorney’s fees to her counsel.

Ms. Doucet contends that Mr. Huguet’s calculation of her damages is incorrect, and that his calculation of judicial interest is flawed. At trial, Ms. Doucet introduced several exhibits prepared by her expert witness that calculated her damages utilizing two different methods, the “rescission” method and the “benefit of the bargain” method. The “rescission” method computes the difference between the value paid for the investment and the value received for the investment when sold, if sold in whole or in part. The “benefit of the bargain” method measures the loss sustained by the party owed the fiduciary duty and the [ nprofit of which he has been deprived if he still owns the investment, in whole or in part. Ms. Doucet argues in brief that the former method calculated her damages at $44,440, the latter at $93,252. Under both methods, Ms. Dou-cet’s expert applied a portion of the $70,000 settlement proceeds received by Ms. Doucet from the other defendants as a credit towards her damage award. On appeal, Ms. Doucet cites her expert’s rescission method of calculation to support the trial court’s award to her.

All things considered, we find that the trial court erred in calculating its award to Ms. Doucet. First, the trial court erred in not subtracting the $7,848 in income Ms. Doucet received from her RHI investments. Next, the trial court erred in not giving Mr. Huguet credit against Ms. Dou-cet’s economic damages for any of the $70,000 settlement proceeds Ms. Doucet received from the other defendants. Finally, the trial court erred in characterizing the $70,000 settlement proceeds as “damages to Ms. Doucet for her loss of interest and mental anguish.”

In order to determine Ms. Doucet’s damages in this case, LSA-R.S. 51:714 requires that we first start with the $120,882 that Ms. Doucet paid for the RHI investments, then subtract the $7,848 in income that she received therefrom, then add $52,072 in judicial interest, then subtract $136,984 in other amounts received by Ms. Doucet, resulting in a net award to Ms. Doucet of $28,122. Ms. | 12Poucet is further entitled to 33.33% of $28,122, or $9,374, as reasonable attorney’s fees, plus $4,000 in expert witness fees, for a total amended award to Ms. Doucet of $41,496. Ms. Doucet is further entitled to judicial interest on said amended award from the date of trial, September 16, 2010, until paid, plus taxable court costs through dismissal.

Mr. Huguet also argues that the amount of attorney’s fees awarded by the trial court (33.33%) is excessive. The trial court has much discretion in fixing the award of attorney’s fees and this award will not be modified on appeal absent an abuse of discretion. An award for reasonable attorney’s fees may be based upon a contingency fee contract. Norfleet v. Lifeguard Transp. Service, Inc., 05-0501 (La.App. 4 Cir. 5/17/06), 934 So.2d 846. At trial, Ms. Doucet presented evidence supporting the reasonableness of amount of attorney’s fees in the contingency fee contract that she executed with her attorneys. We find no abuse of the trial court’s discretion in this regard.

THIRD ASSIGNMENT OF ERROR

Mr. Huguet’s final argument is that the trial court was without authority to characterize Ms. Doucet’s settlement with the other defendants partly as damages for mental anguish. As noted above, we agree.

LSA-R.S. 51:714 does not provide for damages for mental anguish. Ms. Doucet cites Johnson v. First Nat. Bank of Shreveport, 00-870 (La.App. 3 Cir. 6/20/01), 792 So.2d 33, in support of her position that damages for fraud can include an award for mental anguish. However, while the Johnson case awarded | isdamages for fraud and breach of fiduciary duty, that case did not arise under the Louisiana Securities Law. Furthermore, legislation such as LSA-R.S. 51:714, which is directed to a specific matter, will prevail as an exception to more general statutes, such as LSA-C.C. art. 1994, et seq. See Daniel v. Wal-Mart Stores, Inc., 36,451 (La.App. 2 Cir. 12/11/02), 833 So.2d 1047, 1050. Accordingly, the trial court was without authority to characterize Ms. Dou-cet’s settlement with the other defendants partly as damages for mental anguish.

CONCLUSION

For the reasons stated above, we amend the trial court’s $49,323 award to Ms. Dou-cet for damages, attorney’s fees and expert witness fees to $41,496. Ms. Doucet is further entitled to judicial interest on said amended award from September 16, 2010 until paid, plus taxable court costs through dismissal. As amended, the judgment of the trial court is affirmed.

AFFIRMED AS AMENDED

      . In an Amended Petition for Damages that replaced the original Petition for Damages, Ms. Doucet named JDS-Safe Money Management, a Louisiana Partnership, as a party defendant in place of “First Federal Guaranty,” alleging that JDS-Safe Money Management, a Louisiana Partnership, was doing business as First Federal Guaranty. This defendant will be referred to herein simply as “FFG.”

      . Ms. Doucet settled all of her claims against the Comptons for $45,000 and against Mr. Pizzolato and FFG for $25,000, reserving all claims against Mr. Huguet.

      . This entity is referred to interchangeably throughout the record as "Resort Holding International, S.A.” and "Resort Holdings International, S.A.” It will be referred to herein simply as "RHI”.

      . Although Mr. Huguet cites to Civil Code article 2203 in his brief, this article was in fact vacated by the 1984 amendment and reenactment of Titles III and IV of Book III of the Civil Code (Acts 1984, No. 331, § 1).

      . This figure is apparently based on a document attached to Ms. Doucet’s brief that was not introduced into evidence.

      . Ms. Doucet does not argue in brief that the “benefit of the bargain” method of calculating damages should have been utilized by the trial court in this case rather than the "rescission” method. Accordingly, there is no need to discuss how this figure of $93,252 was derived. It is merely stated here for comparison purposes.

      .Ms. Doucet's expert only gives Mr. Huguet credit for the net amount of the settlement proceeds actually received by Ms. Doucet from the settling defendants (i.e., net of attorney’s fees and costs).

      . Judicial interest was properly calculated by Ms. Doucet's expert from the respective dates of Ms. Doucet’s purchases of the RHI investments through the date of trial, September 16, 2010, with appropriate credits injudicial interest on the income on said investments received by Ms. Doucet.

      . Ms. Doucet contends correctly that under LSA-R.S. 51:714(C), the sale of her RHI holdings to CVP did not constitute full repayment of the principal amount of $120,882 she invested, and accordingly, judicial interest is owed through the date of satisfaction of any judgment in her favor.

      . The amount of this credit is the net amount of $45,177 that Ms. Doucet received from her settlements with the other defendants, plus the $71,400 that Ms. Doucet received from the CVP sale, plus a credit of $20,407 in judicial interest on said amounts from the date of receipt thereof by Ms. Doucet through the date of trial. The amount of this credit was properly established through Ms. Doucet's expert witness’s testimony and exhibits in the record.

      . Although Ms. Doucet's expert's calculations recommended attorney’s fees of "33% Gross Up,” we find, as the trial court did, that a flat 33.33% of the damages awarded to Ms. Doucet for attorney's fees is appropriate.

      . This is the amount of expert witness fees granted to Ms. Doucet by the trial court and is not contested on appeal.

      . Judicial interest has already been calculated and included in the previous calculations herein though the date of trial, September 16, 2010, as noted above.

      . We further find that the investment contract in question was intended solely to gratify Ms. Doucet’s pecuniary interests (the protection of principal and the guarantee of income). Thus, we find that LSA-C.C. art. 1998, which allows the recovery of damages when the object of the contract was intended to gratify a nonpecuniary or intellectual interest, is not applicable herein. (See also Comments to this Article.)