text:
    STATE of Louisiana v. Joshua THOMAS.
    No. 10-KA-221.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 2010.

      See also, 54 So.3d 678, 2010 WL 4486339.
    Paul D. Connick, Jr., District Attorney, David T. Crigler, Terry M. Boudreaux, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.

      Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2Pefendant appeals his sentence of 49½ years at hard labor without benefit of probation or suspension of sentence from the 24th Judicial District Court. For the following reasons, we affirm.

In this appeal, defendant, Joshua Thomas, challenges only his habitual offender finding and sentence. Defendant challenges his convictions in companion ease, State v. Thomas, 10-220 (La.App. 5 Cir. 10/26/10), 54 So.3d 678, 2010 WL 4486389. Unless otherwise indicated, all record references herein are to the record in the instant appeal, 10-KA-221.

Defendant, Joshua Thomas, was found guilty by a jury of two counts of armed robbery (LSA-R.S. 14:64), one count of attempted armed robbery (LSA-R.S. 14:27:64), and one count of aggravated battery (LSA-R.S. 14:34). The trial court sentenced him to 40 years at hard labor on each count of armed robbery (counts 1 and 2), 20 years at hard labor on the attempted armed robbery (count 3), and 10 years at hard labor on the aggravated battery (count 4). The court directed |3that all of the sentences run concurrently with each other, and that they all be served without benefit of parole, probation, or suspension of sentence.

The State filed a habitual offender bill of information alleging defendant to be a third felony offender. The State specified that it sought to enhance defendant’s sentence as to Count 1, armed robbery. On October 9, 2009, the State agreed to amend the habitual offender bill to eliminate one of the alleged predicate convictions in exchange for defendant’s admission to second offender status. The trial court advised defendant of his right to a habitual offender hearing and his right to remain silent. Defendant indicated he understood his rights, and that he wished to waive them and stipulate to second offender status. The court accepted defendant’s admission.

The trial court vacated the sentence on count 1 and, in accordance with the sentencing agreement, imposed an enhanced sentence of 49½ years at hard labor without benefit of probation or suspension of sentence. Defendant made an oral motion to reconsider sentence, which the court denied. Defendant then filed a written motion to reconsider sentence, which the trial court also denied. Defendant filed a timely motion for appeal.

Defendant noticed his intention to file a pro se supplemental brief in his appeal. In an order dated May 19, 2010, this Court granted him until June 17, 2010 to file a pro se brief. Defendant did not file a supplemental brief.

The pertinent facts in this case are outlined in the opinion for the companion case, State v. Thomas, 10-220 (La.App. 5 Cir. 10/26/10), 54 So.3d 678, 2010 WL 4486339.

ASSIGNMENT OF ERROR

The trial court erred by imposing an excessive sentence.

| ¿DISCUSSION

Defendant contends that his 49½ year sentence, the minimum term allowed in his case under the Habitual Offender Law, is constitutionally excessive, arguing the sentence is not supported by the record. Defendant further argues that the trial court failed to articulate a basis for the sentence as required under LSA-C.Cr.P. art. 894.1. The State responds that defendant fails to show the circumstances of his case are such that he qualifies for a deviation below the mandatory minimum sentence prescribed by law.

As a second felony offender convicted of the underlying felony of armed robbery, defendant was subject to a sentencing range of 49½ to 198 years. LSA-R.S. 14:64 B; LSA-R.S. 15:529.1 A(l)(a). Defendant received the minimum sentence as part of the habitual offender sentencing agreement. Under LSA-C.Cr.P. art. 881.2 A(2), a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea. This Court has consistently recognized that Article 881.2 precludes a defendant from seeking review of an enhanced sentence to which he agreed prior to stipulating to the habitual offender bill. State v. Moore, 06-875, p. 15 (La.App. 5 Cir. 4/11/07); 958 So.2d 86, 46; State v. Goodwin, 05-51, p. 4 (La.App. 5 Cir. 6/28/05); 908 So.2d 56, 58. Thus, defendant is not entitled to review of this issue.

In any case, it is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 97-1906, p. 7 (La.3/4/98); 709 So.2d 672, 676. A court may only depart from the mandatory sentence if it finds there is clear and convincing evidence in the case before it that rebuts the presumption of constitutionality. Id. The burden is on the defendant to rebut the presumption of constitutionality by showing “ ‘[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a | ¡¡victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.’ ” State v. Johnson, 97-1906 at 8, 709 So.2d at 676, quoting State v. Young, 94-1686, pp. 5-6 (La.App. 4 Cir. 10/26/95); 663 So.2d 525, 531, writ denied, 95-3010 (La.3/22/96); 669 So.2d 1223 (Plotkin, concurring).

Downward departures from the minimum sentence mandated by LSA-R.S. 15:529.1 should only occur in rare situations. State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01); 792 So.2d 126, 132. The trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. State v. Ventress, 01-1165, p. 10 (La.App. 5 Cir. 4/30/02); 817 So.2d 377, 384.

The record in this case does not reflect that defendant urged the trial court to deviate from the mandatory minimum term at the time of his habitual offender stipulation. Nor did defendant urge the trial court to deviate below the mandatory minimum sentence in his motion to reconsider sentence. In his argument to this Court, defendant simply relates the general law on excessive sentences. He does not show that his circumstances are such that he is entitled to a deviation below the statutory minimum sentence.

Based on the foregoing reasons, we find that this assignment of error is meritless.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Since this appeal pertains only to the habitual offender proceedings, the error patent review is limited to those proceedings. See State v. Jones, 09-788, p. 13 (La.App. 5 Cir. 4/13/10); 35 So.3d 1162.

| ¡¡While the commitment reflects that the trial court advised defendant of the prescriptive period for applying for post-conviction relief at the time of his habitual offender sentencing, the transcript does not show that the court so advised defendant. The trial court’s advice at the time of defendant’s original sentencing was incomplete. As a result, we are now informing defendant in this opinion that no application for post-conviction relief, including an application for an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of LSA-C.Cr.P. art. 914 or 922. State v. Hill, 09-89, p. 7 (La.App. 5 Cir. 5/26/09); 15 So.3d 1042, 1046.

Additionally, the habitual offender commitment shows the trial court ordered that the enhanced sentence on Count 1 run concurrently with defendant’s three other sentences in this case. But, the habitual offender sentencing transcript is silent on the matter. LSA-C.Cr.P. art. 883 provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

The Official Revision Comment to the article provides that, “When the court does not expressly direct whether the sentences are to be served concurrently or consecutively, this article provides the rule of construction.”

In this instance, all of the offenses with which defendant was charged were part of the same scheme or plan. Thus, based on Article 883, the record is |7sufficient to show the trial court’s intention to have defendant’s habitual offender sentence run concurrently with his three other sentences.

DECREE

For the foregoing reasons, defendant’s sentences are affirmed.

AFFIRMED.

      . Where the transcript and the minute entry conflict, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Terrance L. MOSLEY.
    No. 10-KA-266.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 2010.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Desiree M. Valenti, Walter G. Amstutz, Trial Attorney, Assistant District Attorneys, Parish of Jefferson, Gretna, Louisiana, for Appellee, The State of Louisiana.
    James A. Williams, Roger W. Jordan, Jr., Attorneys at Law, Gretna, Louisiana, for Appellant, Terrance L. Mosley.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

12This is defendant, Terrance Mosley’s, third appeal to this Court. In this appeal, defendant seeks review of his habitual offender adjudication and enhanced sentence of life in prison.

In his first appeal to this Court, we affirmed his underlying conviction for possession with intent to distribute marijuana, a violation of La. R.S. 40:966(A), and underlying sentence of 25 years at hard labor. State v. Mosley, 08-1318 (La.App. 5 Cir. 5/12/09), 13 So.3d 705, writ denied, 09-1316 (La.3/15/10), 28 So.3d 1002.

After defendant’s conviction, the State, on August 8, 2008, filed a bill of information alleging that defendant was a third felony offender. On August 25, 2008, the trial court found that defendant was a third felony offender, vacated his underlying sentence of 25 years, and imposed an enhanced sentence of life imprisonment without benefit of probation or suspension of sentence.

In his second appeal to this Court, defendant appealed his habitual offender status and sentence. In that appeal, this Court, on error patent review, found that 13the trial court erred in finding that the defendant was a third felony offender because the State failed to prove that the cleansing period had not lapsed between defendant’s predicate and underlying offenses. State v. Mosley, 08-1319 (La.App. 5 Cir. 5/26/09), 16 So.3d 398. Based upon that finding, this Court vacated the habitual offender finding and sentence, reinstated defendant’s original 25-year sentence, and remanded for further proceedings. Id., 08-1319 at 10, 16 So.3d at 404.

On July 23, 2009, the trial court held the second habitual offender hearing. At the hearing, the trial court found that the State had proven that defendant was a third felony offender. The judge, thereafter, vacated defendant’s original 25-year sentence and imposed an enhanced sentence of life imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant appeals the adjudication and sentence.

DISCUSSION

In his first assignment of error, defendant argues that the trial court erred by failing to find that the predicate offenses on the multiple offender bill of information did not sufficiently inform the defendant of his right to cross-examine and confront the witnesses against him as mandated by La. C.Cr.P. art. 556.1. He specifically argues that his two predicate convictions were infirm because the trial court in both cases failed to properly advise him of his constitutional right of confrontation in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and La.C.Cr.P. art. 556.1.

I/The State responds that the evidence produced at the habitual offender hearing was sufficient to show that the two predicate guilty pleas were knowingly and voluntarily made, and the language used in the guilty plea forms adhered to the dictates of Boykin. The State further responds that La.C.Cr.P. art. 556.1 is not applicable to defendant’s predicate guilty pleas, which were entered before the article was enacted by 1997 La. Acts, No. 1061, § 1 and became effective on August 15,1997.

At the second hearing to prove defendant’s multiple offender status, the State introduced the following exhibits: the curriculum vitae of the fingerprint expert; a fingerprint card containing defendant’s fingerprints; and certified copies of defendant’s two predicate convictions in case nos. 95-5719 and 97-1488. Furthermore, at that hearing, defendant stipulated that he was the same person who was convicted of the two predicate felonies alleged in the habitual offender bill. Additionally, the parties stipulated that less than ten years had passed between defendant’s release from state custody on the second predicate offense and the commission of the underlying offense. .

Defendant, however, objected to both predicate convictions in the habitual offender bill, on the basis that, in both cases, the district court failed to advise him of his right of confrontation before accepting his guilty pleas. He makes the same argument on appeal.

When a defendant’s habitual offender status is based on convictions obtained by guilty pleas, the State has the burden of proving the existence of the guilty pleas and that defendant was represented by counsel when the guilty pleas |fiwere offered. State v. Shelton, 621 So.2d 769, 779 (La.1993); State v. Jenkins, 07-586, pp. 4-5, (La.App. 5 Cir. 1/22/08), 977 So.2d 142, 147. If the State meets its burden of proof, the burden shifts to the defendant to produce some affirmative evidence of an infringement of his rights or a procedural irregularity. State v. Shelton, supra; State v. Jenkins, 07-586 at 5, 977 So.2d at 147.

If the defendant meets his burden or irregularity or infringement, the burden shifts back to the State to prove the constitutionality of the plea by producing a “per-feet transcript,” which shows the defendant’s waiver of his Boykin rights was voluntary, informed, and express. Shelton, 621 So.2d at 779-80; Jenkins, supra. If the State produces anything less than a perfect transcript — such as a guilty plea form, a minute entry, or an imperfect transcript — the trial judge must weigh the evidence to determine whether the defendant’s prior guilty plea was both knowing and voluntary. Shelton, 621 So.2d at 780; Jenkins, supra.

As the State points out in its brief, this Court has recently addressed this issue. In State v. Otero, 09-468 (La.App. 5 Cir. 1/26/10), 31 So.3d 1125, writ denied, (La.9/24/10), 45 So.3d 1072, the defendant challenged his status as a third offender on grounds that he was not advised of his right to cross-examine witnesses against him in connection with his two predicate guilty pleas. Following the supreme court’s reasoning in State v. Mendenhall, 06-1407 (La.12/8/06), 944 So.2d 560 (per curiam), and State v. Smallwood, 06-2363 (La.5/18/07), 955 So.2d 1264, this Court found that the defendant failed to show any irregularity in the predicate guilty pleas, since the guilty plea forms showed both the defendant’s attorney and the trial court advised the defendant of his right to confront his | ^accusers, and the right of confrontation encompasses the right to conduct cross-examination at trial. Otero, 09-468 at 6-7, 31 So.3d at 1130.

Applying those precepts to this case, we find that the State met its initial burden at the second habitual offender hearing by introducing certified copies of defendant’s predicate convictions. The certified copies for each conviction contained a Waiver of Constitutional Rights Plea of Guilty form signed by defendant, his attorney, and the trial judge. Thus, the State established the existence of two prior guilty pleas in which defendant was represented by counsel.

Under Shelton, the burden then shifted to defendant to show an irregularity or infringement in the prior pleas. Defendant argued, and continues to argue on appeal, that the guilty plea form did not contain language to “specifically provide notice to the defendant of his right to confront and cross examine witnesses” against him.

Upon review, we notice that the guilty plea forms used in both of his predicate convictions are identical. The forms explain, in part, that by pleading guilty to the charged offenses, the defendant is giving up his right to “force the District Attorney to call witnesses who, under oath, would have to testify against me at trial; and to have my attorney ask questions of each of those witnesses.” The certified copies introduced at the multiple offender hearing show that defendant placed his initials (T.M.) next to that statement on both forms. Further, he signed both forms at the bottom, indicating he understood his rights and wished to waive them. We cannot say that the language pointed to by defendant shows an irregularity or infringement in the prior pleas. Based on the foregoing, we find no error in the trial court’s ruling that defendant’s predicate guilty pleas could be used to enhance the penalty for his underlying conviction.

|7In his second assignment of error, defendant argues that the sentence imposed by the trial court is unconstitutionally excessive and the trial court failed to comply with the requirements of La. C.Cr.P. art. 894.1. Because we find no ruling on the timely-fíled motion to reconsider in the record, we pretermit discussion of this assignment.

During our review of this record for errors patent, we noted that the record does not contain a ruling on defendant’s written motion to reconsider sentence. On or about July 28, 2009, defendant filed a motion to reconsider sentence, which was scheduled for hearing on September 21, 2009. Unfortunately, the transcript of that proceeding does not reflect a ruling on the motion to reconsider. It reflects only that the court called the case and that defendant’s attorney could not be located. There is no written judgment in the appellate record. Although there is a conflicting minute entry for that day, which reflects that the court denied the motion, it is well settled that the transcript controls when there is a conflict between it and the minute entry.

La.C.Cr.P. art. 881.4 provides that if it is “necessary to an appropriate disposition of a motion to reconsider sentence, the appellate court may remand the case to the district court with instructions to supplement the record or to hold an evidentiary hearing.” Ordinarily, where an appellant alleges a sentencing error on appeal along with one or more additional errors, and where the trial court has failed to rule on the appellant’s timely motion to reconsider sentence, this Court has ruled on the merits of the other assignments and remanded for a ruling on the outstanding motion.

In State v. Winfrey, 97-427, pp. 31-32 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, 81, writ denied, 98-0264 (La.6/19/98), 719 So.2d 481, the defendant filed a motion to reconsider his 100-year habitual offender sentence, which was still ^pending at the time he filed his appeal. On appeal, defendant claimed that the sentence was excessive. This Court held it would be premature to rule on the excessiveness issue while a timely-filed motion to reconsider sentence was pending, and remanded the case for a ruling.

In State v. Bolden, 03-266 (La.App. 5 Cir. 7/29/03), 852 So.2d 1050, the defendant raised several assignments of error on appeal, including an excessive sentence claim. This Court recognized that neither the transcript nor the commitment reflected that the trial judge had ruled on the defendant’s motion to reconsider sentence. This Court affirmed the defendant’s convictions and remanded the case for a ruling on the timely motion to reconsider. This Court instructed:

If the motion to reconsider is granted and defendant is re-sentenced, he may appeal the new sentence. If the motion is denied or if it has already been ruled on, defendant must move to re-lodge this appeal within sixty days of the date of the ruling on the motion to reconsider sentence or the date of this opinion, whichever is later.

Bolden, 03-0266 at 22, 852 So.2d at 1065. See also, State v. Williams, 04-1309, pp. 18-19 (La.App.4/26/05), 902 So.2d 485, 498, writs denied, 05-1640 (La.2/3/06), 922 So.2d 1173, and 05-1640 (La.2/3/06), 924 So.2d 144, 924 So.2d 144; State v. Evans, 02-1108, pp. 5-6 (La.App. 5 Cir. 3/11/03), 844 So.2d 111, 114. Accordingly, we affirm defendant’s habitual offender adjudication but remand the matter for a ruling on defendant’s motion to reconsider sentence. Furthermore,

If the motion to reconsider is granted and defendant is re-sentenced, he may appeal the new sentence. If the motion is denied or if it has already been ruled on [and defendant wants to appeal his life sentence], defendant must move to re-lodge this appeal within sixty days of the date of the ruling on the motion to reconsider sentence or the date of this opinion, whichever is later.

Bolden, 03-0266 at 22, 852 So.2d at 1065.

AFFIRMED; REMANDED.

      . Because this appeal seeks review of defendant’s multiple offender adjudication and sentence only, the facts of the underlying offense will not be repeated in this opinion. The underlying facts in this case can be found at State v. Mosley, 08-1318 at 3-5, 13 So.3d at 708-09.

      . Boykin requires that in order for a guilty plea to be valid, the defendant must first be advised of his constitutional rights to a jury trial and confrontation, and his privilege against self-incrimination. State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85, 89 (1971).

      . La.C.Cr.P. art. 556.1 A(3) provides, in part, that a court "shall not” accept a guilty plea without first informing the defendant that "he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”

      .With regard to the State's argument that La.C.Cr.P. art. 556.1 did not apply retroactively to defendant's 95 and 1997 guilty pleas, Article 556.1 A(3) is a codification of the Boykin criteria, which certainly applied to defendant's two predicate guilty pleas. See State v. Brown, 99-598, p. 13 (La.App. 5 Cir. 12/15/99), 750 So.2d 262, 270 ("[Tjhis Court has held that a review of the trial court’s compliance with La.C.Cr.P. art. 556.1 encompasses the issue of whether the defendant was properly 'Boykinized.' ").

      . The Louisiana Supreme Court found that the trial court sufficiently advised a defendant of his right to confrontation, where the judge informed the defendant, “The state would have to prove its case beyond a reasonable doubt and that his attorney would have the opportunity to cross-examine the state’s witnesses at a trial.”

      . The Louisiana Supreme Court held that the trial judge’s statement to defendant that the state "would have to prove its case beyond a reasonable doubt and that his attorney would have the opportunity to cross-examine the state's witnesses at trial” was sufficient to advise the defendant of his right of confrontation.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Lionel J. WETZEL.
    No. 09-KA-844.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 23, 2010.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Michael Smith, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Joseph R. Depaoli, Attorney at Law, Gretna, Louisiana, For Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

| ^Defendant, Lionel J. Wetzel, was charged by bill of information filed on January 23, 2008, with Fourth Offense operating a vehicle while intoxicated (“DWI”), a violation of LSA-R.S. 14:98(A)(E). After the denial of his Motion To Quash, defendant withdrew his not guilty plea and pled guilty as charged, reserving his right to appeal the denial of his Motion To Quash. On that same date, the trial judge sentenced defendant to 10 years at hard labor with all but 60 days suspended, credit for time served, a $5,000.00 fine, and various other special conditions of probation. The sentence was ordered to run concurrently with the sentence given in Twenty-Fourth Judicial District Court case # 08^119. Defendant’s appeal follows.

Because defendant pled guilty and did not proceed to trial, the facts are adduced from the bill of information. The bill provided that on or about December 4, 2007, defendant operated a vehicle while intoxicated after having been previously convicted three times of violating LSA-R.S. 14:98.

|sIn his sole allegation of error, defendant contends the trial judge erred in denying the motion to quash because the record of defendant’s 1998 DWI guilty pleas on the first and second predicate offenses do not establish a valid waiver of the right to counsel. Specifically, the defendant asserts that the plea colloquy of February 20, 1998, does not establish that the trial judge asked him about whether he wished to waive counsel. He argues that, had the two such convictions been quashed, then the charge to which he pled in the matter presently under appeal herein would have only been a second offense DWI, which would have been a misdemeanor with a maximum jail sentence of six (6) months. LSA-R.S. 14:98.

The State responds that the record shows that defendant was advised of his right to counsel and to appointed counsel in the waiver of rights form in the two predicate offenses at issue, and that he initialed the form thereby indicating that he both understood and waived his rights. The State further asserts that the 1998 transcript reflects that defendant was personally advised of his right to counsel and to appointed counsel by the trial court and waived that right.

Article I, Section 13 of the Louisiana Constitution guarantees a defendant the right to counsel in any case punishable by a term of imprisonment, regardless of whether imprisonment is actually imposed. State v. Deville, 04-1401 (La.7/2/04), 879 So.2d 689, 690 (per curiam). A defendant has the right to counsel under the Sixth Amendment of the United States Constitution only where a sentence of imprisonment is imposed. Scott v. Illinois, 440 U.S. 367, 374, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383 (1979). A sentence of imprisonment includes a suspended sentence in which the defendant is placed on probation. Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002). In the present |4case, defendant was sentenced to a suspended sentence of six months in parish prison in his 1998 predicate offenses. Therefore, he was entitled to a right to counsel under both the federal and state constitutions.

When a defendant challenges the constitutional validity of a predicate DWI conviction resulting from a guilty plea, the State bears the initial burden of proving the existence of the guilty plea and that an attorney represented the defendant during the plea. State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556, 559. When the plea is uncounseled, the State must also show a waiver of counsel. State v. Deville, 879 So.2d at 690, and the citations therein. If the State meets this burden, the defendant must produce affirmative evidence indicating an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to meet his burden, the State must prove the constitutionality of the plea. Deville, 879 So.2d at 691; Carlos, 788 So.2d at 559.

The State is entitled to rely on a well-executed waiver form in discharging its initial burden of proving a prior valid conviction for DWI. Deville, 879 So.2d at 691 ; State v. Theriot, 00-870 (La.App. 5 Cir. 1/80/01), 782 So.2d 1078. In the present case, the transcript introduced by the defendant as an exhibit to his |r,motion to quash showed that defendant pled guilty to two DWI charges on February 20, 1998. Therefore, the State met the first prong of its initial burden. The transcript reflected that defendant was advised of his right to counsel and appointed counsel, if indigent. The record also contains a contemporaneously-executed waiver form signed by defendant and the trial judge. The form outlined defendant’s rights and the fact that defendant was waiving these rights by pleading guilty. Specifically, the form advised defendant of his Boykin rights, as well as the right to have the assistance of an attorney, and to appointed counsel if he could not afford an attorney. Defendant acknowledged that the trial judge thoroughly explained his rights to him; he understood them; and he had no further questions to ask. He further acknowledged that he entered the pleas knowingly, intelligently, freely and voluntarily. We find that the state’s evidence met the initial burden of proving the validity of defendant’s guilty plea.

Once the state met its initial burden, defendant became obligated to produce affirmative evidence indicating an infringement of his rights or a procedural irregularity in the taking of the plea. Defendant produced no evidence in this case. Considering that defendant offered no countervailing evidence to meet his burden, we find that the trial court did not err in denying the motion to quash.

In his brief, the defendant also raises several other claims for the first time on appeal which were not presented to the district court in his Motion To Quash. Specifically, the defendant contends that the judge in the predicate convictions at issue erred in not advising defendant during his prior guilty pleas of the maximum sentence allowed by law, the actual sentence to be imposed, or that defendant could ask questions of the judge if he did not understand anything in the ^proceedings. Defendant also asserts that the judge in the predicate convictions failed to inquire into his education, experience, background, or competency. Generally, a new issue that has not been submitted to the trial court for a decision cannot be raised for the first time on appeal. State v. Shank, 05-421 (La.App. 5 Cir. 2/14/06), 924 So.2d 316, 326. Thus, these issues are not properly before this Court. Furthermore, while defendant states these issues, he did not brief them to this Court. A mere statement of an assignment of error in a brief does not constitute briefing of the assignment, and, therefore, we find these assignments to be abandoned. State v. Williams, 632 So.2d 351 (La.App. 1st Cir.1993), writ denied, 94-1009 (La.9/2/94), 643 So.2d 139.

We have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990), and find none which warrant attention.

For the above discussed reasons the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . At the time of the instant offense, LSA-R.S. 14:98(E)(l)(a) provided that "Sixty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.” It is noted, however, that Acts 2008, No. 161, § 1, substituted "Seventy-five” for "Sixty” in the second sentence of subparagraph (E)(1)(a). The law in effect at the time of the offense governs. State v. Hyde, 2007-1314 (La. 11/21/07), 968 So.2d 726.

      . The previous convictions were identified in the record as: "the first time being on 2/20/1998, under Docket Number S659855 in the Second Parish Court-Division B,”; "the second time being on 2/20/1998, under Docket Number S640310 in the Second Parish Court-Division B,”; "the third time being on 5/14/2001 under Docket Number 329485 in the Twenty-Second Judicial District Court Division F, in violation of R.S. 14:98[.]”.

      . State v. Carlos extended the burden shifting principles applicable to multiple offenders, as established in State v. Shelton, 621 So.2d 769, 779-80 (La.1993), to the recidivist provisions of the DWI statute.

      . In Deville, the defendant was charged with third offense DWI. He filed a motion to quash the bill of information on the basis that he did not knowingly and intelligently waive his rights when pleading guilty to his second predicate DWI. As evidence for that predicate, the State introduced an abstract of the court record indicating defendant's conviction; a certified copy of the criminal affidavit and breath test; and a certified copy of a waiver of the right to be represented by an attorney. In reviewing the waiver form in the predicate plea, the Louisiana Supreme Court pointed out that the waiver form was signed by the trial judge and the defendant, and it advised the defendant of his right to counsel, either appointed or retained. The form also provided the defendant with an explicit waiver of that right. The form reflected defendant attested that he had read the statement of rights; that he understood the advice; that he was willing to proceed without counsel; and that he did so freely and voluntarily.

      . In Theriot, defendant was charged with 3rd offense DWI. The predicate record reflected that the trial judge properly advised defendant of his Boykin rights, but failed to advise defendant at all of his right to counsel in his predicate guilty plea. However, the record contained a waiver of rights form, encompassing all of the rights stated by the trial judge as well as the right to counsel, and appointed counsel if indigent. Further, the record of the predicate offense reflected that the defendant had been advised of his right to counsel at arraignment. Based on all of these factors, this Court concluded that the record reflected a valid waiver of the right to counsel, even though the trial judge did not inquire into defendant's background or education, and even though the trial judge did not verbally advise defendant of his right to counsel.

      . Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).

      . Deville held that, once the State established its initial burden, it remained for the defendant to show evidence of a significant procedural irregularity in the plea. Id. at 689, 692.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    JEFFERSON FINANCIAL CREDIT UNION v. BILLY’S USED CARS, TOWING & RECOVERY, L.L.C.
    No. 10-CA-315.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 23, 2010.

      Robert A. Contreras, Eric D. Smith, Jr., D’Aquila, Volk, Mullins and Contreras, Attorneys at Law, Kenner, LA, for Plain-tiffAppellant.
    Larry S. Bankston, E. Dustin Bickham, Bankston & Bickham, L.L.C., Attorneys at Law, Baton Rouge, LA, for Defendant/Ap-pellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JUDE G. GRAVOIS, and MARC E. JOHNSON.
   EDWARD A. DUFRESNE, JR., Chief Judge.

12This is an appeal by Jefferson Financial Credit Union (JFCU), plaintiff-appellant, from a $9,654.88 judgment in favor of Billy’s Used Cars, Towing & Recovery, L.L.C. (Billy’s), defendant-appellant, in this action involving the sale of a used car. For the following reasons, we set aside the judgment and remand the matter for further proceedings consistent with this opinion.

The facts are that JFCU financed a Nissan Maxima sedan purchased by Inger Natasi, and had its hen noted on the title. Apparently, Natasi failed to make payments and executory proceedings were commenced in Orleans Parish. During those proceedings, JFCU discovered that the car was being offered for sale in Billy’s used car lot. JFCU began the present proceedings in Jefferson Parish to get possession of the car. The car was originally sequestered, but by agreement of the parties it was sold by the sheriff for $18,105, and these funds were placed in the registry of the court pending resolution of the suit.

|sIt was determined in the present action that on July 21, 2008, the car had been involved in an accident on the Crescent City Connection and the police had requested that B-T Towing, L.L.C. (B-T), tow it off the bridge. On August 6, 2008, B-T received notice from the Department of Safety and Corrections that the car was owned by Natasi, and was financed by JFCU. Pursuant to La. R.S. 32:1720, B-T sent the required notices to Natasi and JFCU informing them of its possession of the car. When neither responded after 45 days, B-T sent a second notice to these parties pursuant to La. R.S. 32:1728, informing them that it would apply for a permit to sell the car if no arrangements were made within 15 days to pay the storage fees and retrieve the car. However, the second notice to JFCU was improperly addressed.

After 15 days, B-T had still not heard from the owner or lienholder, so it applied to the Department of Safety and Corrections for a permit to sell the vehicle. Attached to this application were copies of the first and second notices, the U.S. Post Office “certificates of mailing,” and an appraisal made by an independent appraiser of $7,500 as the value of the car. Although the “certificate of mailing” of the second notice to JFCU was in error, this defect was not noticed by the Department, and a permit to sell the car was duly issued. At this time B-T’s storage and towing costs were $1,549.88. The car was then sold to Billy’s for $10,000 on November 5, 2008. As per La. R.S. 32:1730, the difference between its charges and the sale price, or $8,450.12, was to be carried on B-T’s books as belonging to the owner of the car for six months after the sale, after which time these funds would be forfeited to the towing company.

After purchasing the car, Billy’s had it repaired by Larson’s Body Shop, at a cost of $5,069.37 for labor and materials, and then offered it for sale on its used car lot for $18,900.

|4On January 28, 2009, JFCU began the present proceedings against Billy’s. B-T was never made a party to this suit, nor was the Department of Safety and Corrections. The trial court found that Billy’s had complied with all the statutory requirements to sell the car and awarded it $9,654.88. That amount was apparently arrived at as follows. Because JFCU began the proceedings to recover the car within six months of the November 5, 2008, sale by B-T for $10,000, the difference between that amount and the $1,549.88 in towing and storage charges was $8,450.12, which balance according to La. R.S. 32:1730 should have been carried on B-T’s books as belonging to the owner/lienholder, i. e. JFCU. The difference between that amount and the $18,105 being held in escrow is $9,654.88, and that was the amount awarded.

The difficulty with the proceedings is that neither B-T nor the Department of Safety and Corrections were made parties. Article 641(1) of the La.C.C.P. provides that a party in whose absence complete relief cannot be accorded among those who are parties “shall be joined as a party.” Failure to join such parties gives rise to the peremptory exception of “nonjoinder of a party under Articles 641 and 642,” La. C.C.P. art. 927 A(4), which exception may be noticed by an appellate court on its own motion, La.C.C.P. Art. 927 B. When an appellate court notices the absence of in-dispensible parties to a suit on appeal, the appropriate remedy is to set aside the judgment and remand the matter for join-der of the absent parties and retrial. James v. Maison Orleans II, Inc., 04-1132, pp. 3-4 (La.App. 4 Cir. 5/11/05), 913 So.2d 115, 122.

In light of the above circumstances, we must set aside the judgment, and remand the matter for further proceedings consistent with this opinion.

JUDGMENT SET ASIDE, REMANDED.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Gregory and Eleanora JOHNSON v. Frank LEE and Canal Indemnity Insurance Company.
    No. 10-CA-439.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 23, 2010.

      Joseph M. Bruno, Jr., Stephen P. Bruno, Attorneys at Law, New Orleans, LA, for Plaintiffs/Appellees.
    Harry J. Philips, Margaret L. Tooke, William H.L. Kaufman, Attorneys at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

|?F ollowing a jury trial in this tort suit, defendant appeals from the trial court’s allocation of fault and award of damages. For the reasons stated herein, we affirm.

Gregory Johnson, an employee of Boh Bros. Construction Co., Inc., sustained injury on February 10, 2006 during a delivery of pilings to a worksite by Frank Lee, a driver working for Gene’s Delivery Service, Inc. The pilings and the trailer carrying them were supplied by Boykin Brothers, L.L.C. During the delivery, Johnson was assigned the role of flagman and was charged with the responsibility of directing Lee to the proper location near a crane to unload the pilings. Two other Boh Bros, employees participated in this maneuver: Conrad Talbony, the foreman, and Anthony Barient, the crane operator. While Lee was attempting to position his truck, Johnson was pinned between the trailer and the crane and sustained serious injury.

On March 14, 2006, Gregory and Elean-ora Johnson filed the instant suit against Frank Lee and his insurer, Canal Indemnity Insurance Company. Plaintiffs | ^subsequently amended the suit to add Boykin Brothers, L.L.C. and their insurer, Travelers Property Casualty Company of America. All parties except Travelers settled prior to trial, and the matter proceeded to jury trial against Travelers in June of 2009.

Following several days of testimony, the jury allocated fault to Frank Lee in the amount of 75% and to plaintiff, Gregory Johnson in the amount of 25%. Judgment on this jury verdict was signed on July 6, 2009, and Travelers filed post-trial motions which were denied on August 21, 2009. Travelers suspensively appeals from this judgment on the basis of two assignments of error: 1) the trial court erred in failing to allocate fault to the Boh Bros, foreman and crane operator and allocated excessive fault to Frank Lee; and 2) the trial court awarded an excessive amount of damages to plaintiff for future pain and suffering.

Standard of Review

In Foley v. Entergy Louisiana, Inc., 06-983, pp. 9-10 (La.11/29/06), 946 So.2d 144, 153-54, the Louisiana Supreme Court restated the standard of review as follows:

The Louisiana Constitution provides that our jurisdiction in civil cases extends to both law and facts. LSA-Const. art. V § 5(C). This provision, resulting from Louisiana’s history as a civilian jurisdiction, has been interpreted as giving this court the power to decide factual issues de novo. The exercise of this power is limited, however, by the jurisprudential rule of practice that a trial court’s factual findings will not be upset unless they are manifestly erroneous or clearly wrong. Ferrell v. Fireman’s Fund Insurance Co., 94-1252, pp. 3-4 (La.2/20/95), 650 So.2d 742, 745. Under this rule, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Stobart v. State, Department of Transportation & Development, 617 So.2d 880, 882 (La.1993). If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883.
14When the findings are based on determinations regarding the credibility of witnesses, the manifest error-elearly wrong standard demands great deference to the findings of fact, for only the fact finder is cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story, a reviewing court may well find manifest error even in a finding purportedly based upon a credibility determination. Id. Where such factors are not present, however, and a fact finder’s determination is based on its decision to credit the testimony of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id. The rule that questions of credibility are for the trier of fact applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony. Lasyone v. Kansas City Southern Railroad, 00-2628, p. 13 (La.4/3/01), 786 So.2d 682, 693.
These standards for manifest error review are not new. These standards are the guiding principles that aid our review of a trial court’s factual determinations. A manifest error review is applicable to the fact-driven determinations presented in this case, including the finding of percentages of fault by the trier of fact. Clement v. Frey, 95-1119, p. 7 (La.1/16/96), 666 So.2d 607, 610

A review of general damage awards are governed by the same principles. In Youn v. Maritime Overseas Corp., the Supreme Court upheld the longstanding rule that an appellate court is not to decide what it considers an appropriate award, but rather to review the exercise of discretion by the trier of fact, considering the particular injuries and their effects on the particular circumstances of the particular plaintiff. Only when the appellate court determines that the trier of fact abused its much discretion, may the award be set aside as either too high or too low. Collier v. Benedetto, 04-1025, p. 8 (La.App. 5 Cir. 2/15/05), 897 So.2d 775, 779.

Apportionment of Fault

Travelers argues on appeal that the trial court erred in failing to apportion any fault to Boh Bros, employees Anthony Barient or Conrad Tabony as evidence | ¡-.presented by plaintiffs proved that these individuals played a substantial factor in the series of events which caused plaintiffs injuries. Travelers points to testimony that Tabony and Barient devised a dangerous plan to park the truck without causing Boh Bros, additional time and expense. Travelers also relies on testimony that Barient turned his back on plaintiff and failed to alert Lee to stop the truck. Thus, Travelers contends that a reallocation of fault is warranted.

At trial, Frank Lee testified that he was a commercial driver and on the date of the accident he picked up a load of pilings from Boykin Bros, in an 18 wheeler tractor trailer. The pilings were to be used to construct an overpass near the Bonnabel exit on the interstate in Jefferson Parish. Mr. Lee stated that it was not a usual delivery that day because there were problems with the machines and power lines. He stated that due to this situation, he was forced to put the truck in a place where he did not want to put it. Mr. Lee stated that he was assigned a flagman by Conrad Tabony, and Greg Johnson told him to watch him so they could put the truck where it needed to be. Mr. Lee stated at first that Mr. Johnson was off to the side of the trailer on the passenger side of the truck. Then, Mr. Johnson began walking behind the truck between the trailer and the crane and Mr. Lee was aware of Mr. Johnson’s position behind the truck. At some point, Mr. Lee lost sight of Mr. Johnson at approximately the same time the trailer hit the crane. Mr. Lee testified he saw Mr. Johnson fall backwards.

Although Mr. Lee testified that Boh Bros, employees were telling him where to put the truck, he further testified as follows:

Q. You have the control over that truck, over the brakes and the accelerator, isn’t that true?
A. Yes, I do.
1rQ. And you have the right as a licensed commercial driver not to move that truck if you know it’s not safe, isn’t that true?
A. Yes, it’s true.
Q. Regardless of what Broh Bros, says, isn’t that true?
A. This is correct.
Q. It’s ultimately your responsibility, you can’t pass it off on the foreman of the job, isn’t that true?
A. Okay.
Q. The operation of your truck?
A. Okay. The operation of my truck, that is my control, and I cannot pass that up on him, no.
Q. And you cannot pass off the fact that you backed up when you knew someone was behind your truck in an unsafe position, isn’t that true?
A. Yes.

Mr. Lee further testified that while he was backing up, he could see Mr. Johnson over his load from the chest up. He also testified that if he had to back up the truck all over again, he would never allow Mr. Johnson to stand behind the trailer as he backed up.

The record also contains the testimony of Anthony Barient, the Boh Bros, crane operator on the date of the accident. Mr. Barient stated that he previously drove 18 wheeler trucks, and was aware that the flagman should position himself on the side of the truck and not behind the truck. Mr. Barient stated that on the date of the accident four trucks arrived at the work site near the Bonnabel overpass to deliver pilings. The foreman decided where the trucks should be, and Greg Johnson started flagging the trucks back. During this time, Mr. Barient worked |7with David Perry to put the cables on the crane rigging that they would need to unload the pilings. Mr. Barient then stated:

At a point of maybe, I don’t know, Greg was maybe 15 feet away from the crane, 20 feet away from the crane when the truck got back on him, I noticed that Greg was behind the truck, but yet I was focused, you know, at that point he was not in danger of being in a pinch point or getting smashed because there was still a lot of distance between him and the crane.
Then I was focusing on my work with David, and at one point because of the design of the crane, I have a blind spot with the boom on the side, Greg and the back of the truck disappeared from my view. Then all of a sudden I felt the truck hit the track of the crane and Gregory went to screaming, and I came out of the crane and saw Greg there, you know, pinned between the back of the truck and the track of the crane.
And I immediately jumped off and just dialed 911 and got the ambulance on the way, you know. I’ve said in my previous deposition, you know, that I regret not telling Greg to get out from behind that truck. But like I say, at the point that I saw him, he was not in a near pinch point to be smashed.

Mr. Barient stated that it would not have been possible to move the crane to allow more room for the trucks to maneuver due to the presence of piles that had already been driven. Further, Mr. Bar-ient stated that the employees from Boh Bros, do not tell drivers how to maneuver the truck, except to say where the truck should be placed and to flag them to come back and when to stop. However, Mr. Barient stated he did not speak to Mr. Lee. Mr. Barient stated that like with cranes, the operator has the ultimate responsibility. However, Mr. Barient stated that although he saw Mr. Johnson behind the truck and had the ability to blow the horn and stop what was going on, but he did not do so.

The record also contains the testimony of Conrad Tabony who stated he was the Boh Bros, foreman at the worksite on the date of the accident. He stated he expects truck drivers who make deliveries at the site to operate their vehicle safely, but he cannot control how the trucks are operated.

IsPlaintiff also presented the testimony of John Ramirez who was qualified as an expert in trucking safety. He stated that Mr. Lee acted improperly by backing up when Mr. Johnson was behind the truck. He stated that the truck driver is supposed to coordinate signals with the flagman, and this failed to happen in this case.

Gregory Johnson also testified at trial that he was the flagman for Mr. Lee’s delivery truck as he had been on previous occasions. He stated that he made eye contact with Mr. Lee through the mirror as he walked backwards along the passenger side of the truck. He then said that because the truck was coming in at an angle he moved over to try to guide the truck in place. At some point, he lost eye contact with Mr. Lee, but he fell and the truck kept backing up.

At the close of trial, the jury rendered a verdict in favor of plaintiffs and found both Frank Lee and Gregory Johnson at fault in causing this accident. Travelers does not contest the allocation of fault to Gregory Johnson. However, defendant argues by this appeal that the jury was clearly wrong in failing to allocate any fault to Anthony Barient or Conrad Talbo-ny. Defendant argues that Boh Bros, employees made a decision to unload the truck in a very tight space which required the truck come in contact with the crane. Defendant contends that these employees were negligent in setting up the manner of the delivery and they should have been allocated fault for the accident.

Testimony in the record indicates that the delivery of pilings on the date of the accident was not unusual. Although defendant contends that Boh Bros, could have moved the crane to make the delivery easier, the evidence fails to support this argument. Plaintiff testified that he did not believe that another flagman was needed to get the truck into the required location. The jury apparently chose to credit the testimony at trial that the design of the delivery executed by the Boh [nBros. employees was not unusual or a cause of the accident. Our review of the record regarding the design of the delivery fails to support a finding that the jury was clearly wrong in finding no fault on the part of Conrad Talbony.

Further, Anthony Barient specifically testified that he was working in the crane in preparation of unloading the pilings once the truck was in the correct location. Although Anthony Barient saw Gregory Johnson walking behind the truck and regretted his failure to say anything, the record also indicates that Mr. Barient was focused on his work on the crane and that he did not believe plaintiff to be too close to the crane at this point. Further, Mr. Barient stated that as he turned the boom on the crane, there was a blind spot which prevented him from seeing the back of the truck. The record supports a finding that Mr. Barient was not the responsible party for placement of the delivery truck. We thus find no manifest error in the jury’s determination that Mr. Barient was not at fault for his actions on the date of the accident.

Under these circumstances, we find no reallocation of fault would be appropriate in this case. The record supports the jury’s determination that Frank Lee was the primary responsible party for safely backing up the truck in the desired location. He admitted that it was improper to continue backing up when he could no longer see the flagman, Mr. Johnson. The jury apparently credited the testimony of Mr. Lee that the operation of the delivery truck was solely within his control. The jury also heard testimony that Mr. Lee could not pass on the responsibility of backing the truck, and that only the driver can be responsible for backing up the truck. After a complete review of the trial testimony, we find no error in the jury’s allocation of fault in this case.

h pAivard for Future Pain and Suffering

Travelers argues that the jury erred in awarding plaintiff $937,500.00 for future pain, suffering, mental anguish and emotional distress, as it was greater than three times the award given for past pain and suffering. While Travelers acknowledges that plaintiff will likely continue to experience some pain and suffering in the future, Travelers contends that plaintiff has become relatively well-adjusted and that the worst of his medical treatment is behind him. Further, Travelers points out that plaintiffs surgical wounds have healed and no significant pain was noted in plaintiffs 2008 medical records.

Evidence presented at trial indicates that plaintiff sustained crush injuries to both legs below the knee requiring the installation of external fixations. Plaintiff also sustained injury to the blood vessels in his left leg, requiring amputation below the knee. Dr. Frank Rabito, the infectious disease doctor who treated plaintiff, testified that plaintiff had a poor surgical result which left him with an abnormal “stump.” He has tried to use a prosthesis, but has experienced great difficulty in doing so. The prosthesis causes wounds on his leg, which in turn create infections. He has encountered numerous infections from skin irritations to his amputated leg and he continues to experience skin lesions and recurring boils. Dr. Rabito testified that plaintiff will likely suffer from these painful boils for the rest of his life.

Dr. Keith Larkin, plaintiff’s treating orthopedist, testified that because of the problems developed since plaintiffs injury, it takes him a longer time to heal. There was also evidence that plaintiffs inability to use a prosthesis may require him to have another surgery on this stump. Unless he is able to get a functioning prosthesis, plaintiff will spend the rest of this life confined to a wheelchair or on crutches.

| nFurther, the record contains the deposition testimony of a pain management physician, Dr. John Clark, who testified that plaintiff requires schedule II narcotics for his pain, and he will likely need to do so for the rest of his life, requiring monthly doctor visits.

The record also indicates that plaintiff suffers from a variety of mental health issues, including post-traumatic stress disorder, depression and anxiety. Plaintiff testified that the loss of his leg and his job caused him to lose self-worth and self-esteem, and he has become introverted as a result. The record contains the testimony of a psychologist, Dr. Cary Rostow, who found plaintiff to be very depressed and disheartened, and obviously in pain. Dr. Rostow testified that plaintiffs high level of depression and anxiety will create significant problems in his future treatment, and that because of his low education level, he is not equipped to deal with his medical and psychological condition.

After hearing this testimony and evidence, the jury awarded plaintiff $937,500.00 in future pain, suffering, emotional distress and mental anguish. Although defendant relies on jurisprudence in support of its argument that this award constitutes an abuse of discretion, a review of these cases shows that they are distinguishable from the present factual situation. In the present ease, plaintiff is a former manual laborer in his mid-40s who suffered the loss of his leg below the knee. The testimony and evidence at trial indicates that plaintiff encountered an abnormal surgical result which causes repeated infections and painful boils. He continues to suffer pain and discomfort on a daily basis, and will likely require additional revisions to his amputated leg in the future. He lost his primary source of self-esteem in his job, and he is facing a future in a wheelchair. Our task is to consider whether the particular injuries sustained and their effects on the particular circumstances of the particular plaintiff justifies the award in this case. Although |12we find the jury’s award for future pain and suffering to be at the high end of the scale, we cannot say that the jury abused its discretion in rendering this award. We therefore decline to disturb the award.

Conclusion

Accordingly, for the reasons assigned herein, the judgment of the trial court is affirmed. Travelers Property Casualty Company of America shall bear all costs of this appeal.

AFFIRMED.


text:
    Larry “Brother” FLUENCE v. MARSHALL BROS. LINCOLN-MERCURY INC., and XYZ Insurance Companies.
    No. 10-CA-482.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 23, 2010.
    Randal L. Gaines, Attorney at Law, Laplace, LA, for Plaintiff/Appellant, Larry “Brother” Fluence.
    Glen E. Mercer, Kourtney Twenhafel French, Attorneys at Law, New Orleans, LA, for Defendant/Appellee, Marshall Bros. Lincoln-Mercury, Inc.
    Lawrence J. Boasso, Attorney at Law, Mandeville, LA, for Defendant/Appellee, Labiche Plumbing, Inc.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

l2The plaintiff appeals a summary judgment that dismissed his suit arising from injuries he sustained while working. We affirm.

FACTS

On April 27, 2006, Larry “Brother” Fluence was employed by Fleming Construction Company (“Fleming”), which was laying asphalt in the parking lot of Marshall Bros. Lincoln-Mercury, Inc. (“Marshall Bros.”), a car dealership in Metairie, Jefferson Parish. Labiche Plumbing, Inc. (“Labiche”), a plumbing contractor, had installed a new drainage system at Marshall Bros., and a four-foot-deep drain opening had been left uncovered. As Fluence walked across the parking lot, he fell into the uncovered hole and suffered injuries, including a herniated lumbar disc that required surgery.

Fluence filed suit against Marshall Bros, and Labiche, asserting they were hable for a dangerous condition that resulted in his injury. Both Marshall Bros, and Labiche filed motions for summary judgment, asserting they had breached no duty to the plaintiff and that the hole did not present an unreasonable risk of harm. They argued the plaintiff knew his work crew was there to lay asphalt around the new drainage system, and he had seen the hole earlier in the day, so he was aware |sthe hole was there. They argued that the hole could be seen from at least 20 feet away, so it was not a hidden defect, and plaintiffs walking backward toward the open and obvious hazard as he worked was an assumption of the risk. Further, the plaintiffs job that day was to assist in laying asphalt over the drainage system that had been installed by Labiche. The defendants contended that Fleming had been hired to work on that particular property, and Fleming had garde of it during the process, giving Fleming the responsibility for maintaining a safe worksite for its employees.

The plaintiff admitted he saw the open drain when he arrived for work, but said he forgot about it during the course of the day while working in another area of the jobsite. Later that day, as he was moving backward to smooth freshly-poured asphalt, he fell into the open drain. The plaintiff argued that the hole may have been open and obvious, but was not apparent to a worker whose job duty was to walk backwards smoothing off the newly-laid asphalt. The plaintiff conceded he may have had some responsibility, but stated the issue is the comparative fault of the parties, which the plaintiff asserted is a contested factual issue that should be determined by a jury.

The trial court ruled from the bench, stating, “I think in his deposition he said that he was aware that it was there, and as sympathetic as I may be to the plaintiff and his cause, I feel I’ve got to grant their motion for summary judgment....”

ARGUMENTS ON APPEAL

On appeal the plaintiff contends the trial court erred by granting the motions for summary judgment, because there are genuine issues of material fact as to whether the defendants breached their duties to the plaintiff. The plaintiff asserts Marshall Bros, failed in its duty to protect invitees from unsafe and unreasonably |4dangerous conditions, and to warn innocent invitees of existing hazards. The plaintiff asserts Labiche failed to properly supervise its employees, failed to timely replace the drain cover, failed to warn, and failed to mark off the area with yellow tape or to employ some other proper warning procedures.

Further, the plaintiff argues the trial court erred in not applying the comparative fault doctrine. The plaintiff contends that allocation of fault is a matter for the jury, and that the test for liability applicable to Labiche, as contractor hired to install drains, is different from the test for liability applicable to Marshall Bros, as landowner. The plaintiff contends that the facts and circumstances justify a finding of fault against the defendants, Marshall Bros, and Labiche.

The plaintiff argues that if fault is imputed to him based on the simple fact that he knew of the uncovered drain, the same knowledge should be assessed against La-biche because it was Labiche’s employees who removed the drain cover. Similarly, Marshall Bros, had legal control of the area and its employees traversed the area while attending to customers, so the plaintiff argues Marshall Bros, should be deemed to have had constructive notice of the condition. Hence, if fault is imputed to the plaintiff based on the “open and obvious danger” doctrine, the plaintiff asserts the doctrine should be universally applied to all parties involved. The plaintiff contends these factors, at a minimum, establish that material issues of law and fact exist, requiring reversal of the summary judgment.

In opposition to the appeal, Marshall Bros, asserts that the plaintiff and his statutorily-immune employer are collectively 100 percent at fault for this accident. The plaintiff was not working alone, but was part of a seven- or eight-worker crew. The plaintiff admitted that when he arrived for work in the morning, he noticed the uncovered drain; several hours later, he had forgotten about it and stepped into it while walking backwards and shoveling asphalt. Marshall Bros, contends the duty Uto provide the plaintiff with a safe workplace belonged to his employer, Fleming. Fleming could have stationed one of its employees as a lookout while the plaintiff was walking backwards to perform his job. Marshall Bros, argues that the plaintiff was actively working as part of a crew to lay asphalt around the drain, and therefore Marshall Bros, had no duty to ensure he did not injure himself in his workplace, or to remind him of a hazard of which he already was aware. Marshall Bros, urges us to affirm the summary judgment on the ground the uncovered drain did not present an unreasonable risk of harm to this plaintiff.

Labiche also opposes the appeal, arguing the trial court did not err in granting summary judgment because the hole was open and obvious and did not constitute an unreasonably dangerous condition, especially to a construction worker who was working to fill in the holes in the area and knew of the hole’s existence prior to the accident. Labiche asserts that only situations that produce an unreasonable risk of harm or an unreasonably dangerous defect should expose a defendant to liability. La-biche contends the trial court properly considered the law and evidence in determining there was no evidence that Labiche is not liable for an injury caused by an open and obvious condition that the plaintiff observed and of which he was aware before the accident.

LAW AND ANALYSIS

Summary judgment is appropriate when the pleadings, depositions, and affidavits show there is no genuine issue as to any material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. In a recent case our supreme court summarized summary judgment law as follows:

Appellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate. A motion for summary judgment is a procedural device used when | (¡there is no genuine issue of material fact. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to favorably accomplish these ends. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. [Citations omitted.]

King v. Illinois Nat. Ins. Co., 2008-1491, p. 6 (La.4/3/09), 9 So.3d 780, 784.

Summary judgments are now favored in the law and the rules should be liberally applied.
The mover bears the burden of proof; however, the mover need only to “point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim.... ” Once the mover has made a prima facie showing that the motion shall be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain. [Citations omitted.]

Alexander v. Parish of St. John the Baptist, 09-840, pp. 6-7 (La.App. 5 Cir. 3/23/10), 33 So.3d 999, 1003-1004, writ denied, 2010-1289 (La.9/17/10), 45 So.3d 1056.

In Dauzat v. Curnest Guillot Logging Inc., 2008-0528, pp. 4-5 (La.12/2/08), 995 So.2d 1184, 1186-1187, the plaintiff, a logging-truck driver, was injured when his truck hit a large hole in the logging road. He admitted he could have avoided the hole if he had seen it, and that it was sunny on the day of the accident and there was no standing water in the hole. He also admitted he knew the road was in bad condition. The trial court denied summary judgment and the court of appeal 17affirmed that decision. The supreme court, however, reversed those rulings and granted summary judgment. The court set out the applicable law as follows:

It is well-settled law that a landowner owes a duty to a plaintiff to discover any unreasonably dangerous conditions, and to either correct the condition or warn of its existence.
Nonetheless, we have recognized that defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care, or which was as obvious to a visitor as it was to the landowner.
In determining whether a condition is unreasonably dangerous, courts have adopted a four-part test. This test requires consideration of: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs activities in terms of its social utility, or whether it is dangerous by nature. [Citations omitted.]

Dauzat v. Curnest Guillot Logging Inc., 2008-0528, pp. 4-5 (La.12/2/08), 995 So.2d 1184, 1186-1187. The court held,

Taken as a whole, this evidence establishes that plaintiff was aware of the condition of the logging road, having traveled over it several times on the day of the accident. Moreover, the hole was not unusually large, as shown by plaintiffs testimony that he “never even thought twice about it” after he hit it. Under these circumstances, we must conclude that the presence of the hole in the logging road was an obvious danger which did not create a significant likelihood of injury.

Dauzat, 2008-0528 at p. 6, 995 So.2d at 1187.

laThis Court has made similar rulings in other “open and obvious hazard” cases. See, e.g., Stiebing v. Romero, 07-723 (La.App. 5 Cir. 12/27/07), 974 So.2d 752; Wallace v. Treasure Chest Casino, L.L.C., 05-484 (La.App. 5 Cir. 12/27/05), 920 So.2d 251; Trice v. Isaac, 99-839 (La.App. 5 Cir. 2/16/00), 759 So.2d 843, writ denied, 2000-1113 (La.6/2/00), 763 So.2d 600; Golan v. Covenant House of New Orleans, 96-1006 (La.App. 5 Cir. 5/14/97), 695 So.2d 1007; Mays v. Gretna Athletic Boosters, Inc., 95-717 (La.App. 5 Cir. 1/17/96), 668 So.2d 1207.

Applying these principles in our de novo review, we find no error in the trial court’s granting of summary judgment in this case. As both defendants have pointed out, not only did the plaintiff see the uncovered grate earlier in the day, but also the very purpose of his work crew’s presence at the site was to repair the open trenches in which the plumbing contractor had laid the pipework and drains for the new drainage system. Under the facts and circumstances, the defendants violated no duty to the plaintiff and cannot be held liable.

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the plaintiff.

AFFIRMED.

      . Fleming and its worker's compensation insurer, Gray Insurance Company, intervened to recover for worker’s compensation benefits paid to the plaintiff.


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    Lori Bordelon MASCARO v. PARISH OF JEFFERSON and Jefferson Parish Water Department.
    No. 10-CA-488.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 23, 2010.

      Joseph R. Depaoli, Attorney at Law, Gretna, Louisiana, for Plaintiff/Appellant.
    William P. Connick, Michael S. Futrell, Rachel M. Riser, Attorneys at Law, Me-tairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

12Plaintiff appeals from a judgment of the trial court dismissing her petition with prejudice. We reverse and remand for the reasons which follow.

On July 21, 2008, plaintiff Lori Bordelon Mascaro filed the instant lawsuit against the Parish of Jefferson seeking damages for injuries sustained in a trip and fall on a parish sidewalk. Defendants answered the petition, and forwarded certain discovery requests to plaintiff on February 9, 2009. Plaintiff failed to respond to the discovery, and on May 18, 2009, defendants filed a motion to compel the responses. In this motion, defendant prayed that the case be dismissed with prejudice in the event plaintiff failed to answer the discovery.

On June 22, 2009, the trial court signed a Consent Judgment between the parties ordering that plaintiff provide defendants with discovery responses by July 7, 2009 and that “should plaintiff fail to provide discovery to defendants by July 7, 2009, plaintiff consents to her case being dismissed with prejudice.” On July 8, |a2009, defendants filed a Motion to Dismiss with Prejudice (Emphasis in the original). Following a hearing on August 25, 2009, this motion was granted, dismissing plaintiffs case with prejudice and awarding defendants attorney’s fees and costs. The judgment was also certified as final and appeal-able pursuant to La. C.C.P. art. 1915. Plaintiff filed a motion for new trial from this judgment, and this motion was denied by the trial court. Plaintiff now appeals from this judgment.

Plaintiff argues on appeal that dismissal was inappropriate as counsel for defendant orally agreed to allow counsel for plaintiff an additional day to submit the discovery responses, and detailed responses were filed within this period. Further, plaintiff argues that the trial court erred in dismissing her petition with prejudice as she was not aware of the discovery deadline nor was she aware of the possible penalty for missing the deadline.

LSA-C.C.P. art. 1471 sets out the sanctions available against a party failing to comply with discovery orders. These sanctions include the following:

(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

The trial court has much discretion in imposing sanctions for failure to comply with discovery orders, and its ruling should not be reversed absent an abuse of discretion. Dismissal, however, is a draconian penalty which should be applied only in extreme circumstances. Dismissal is a sanction of last resort only to be imposed where a party has failed to comply with a court order of discovery |4and only after an opportunity to be heard has been afforded the litigant. Dismissal and default are generally reserved for those cases in which the client, as well as the attorney, is at fault. Bravo v. Borden, 07-380, pp. 4-5 (La.App. 5 Cir. 12/27/07), 975 So.2d 36, 39. (Citations omitted.)

In Horton v. McCary, 93-2315, p. 10 (La.4/11/94), 635 So.2d 199, 203, the Louisiana Supreme Court stated that LSA-C.C.P. art. 1471, like Federal Rule 37, allows the trial court to sanction a disobedient party with dismissal or a default judgment. The court in Horton stated that federal district courts consider four factors in these circumstances: (1) whether the violation was willful or resulted from inability to comply; (2) whether less drastic sanctions would be effective; (3) whether the violations prejudiced the opposing party’s trial preparation; and (4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney. Id.

The record in the instant case contains a copy of the Consent Judgment executed on June 22, 2009 following defendants’ Motion to Compel discovery responses. This judgment ordered that plaintiff provide defendants with responses by July 7, 2009, and that should plaintiff fail to do so, plaintiff consents to her case being dismissed with prejudice. The judgment was signed by both counsel for plaintiff and defendants as well as by the trial judge. The consent judgment does not contain the signature of the plaintiff in this matter.

The record also contains a copy of Fax cover sheet bearing the date and time of July 8, 2009 at 9:07 a.m., indicating that 24 pages of discovery responses were transmitted to counsel for defendants at this time, including detailed answers to interrogatories and requests for production of documents, as well as copies of medical invoices. The remark section of the cover sheet indicated that hard copies were mailed that morning, and the record contains a United States Postal Service | bracking sheet and delivery confirmation indicating the item was accepted on July 8, 2009 at 8:30 a.m., and was delivered to defense counsel’s office on July 9, 2009 at 9:18 a.m.

In addition, the record contains the transcript of the hearing on defendants’ Motion to Dismiss. At that hearing, counsel for plaintiff stated that he telephoned counsel for defendants during the afternoon of July 7, 2009 to relate that the answers to the discovery requests were forthcoming. He also stated that defense counsel orally agreed to allow him until July 8, 2009 to submit the answers. Defense counsel did not deny that she orally agreed to allow plaintiff to submit the documents prior to 8:30 a.m. on July 8, although she argued that any oral agreements do not alter the substance of the written consent judgment. Counsel for plaintiff offered into evidence documentation to support his argument, including a sworn copy of his opposition to defendants’ Motion to Dismiss with Prejudice in which he set forth the facts concerning the timing of the answers.

Following the hearing, the trial court rendered judgment granting defendants’ Motion to Dismiss with Prejudice. Our review of the record in this case fails to support the trial court’s ruling.

First, the consent judgment in this case ordering the answers to discovery to be provided by July 7, 2009 was not signed by the plaintiff and there is no indication that plaintiff was aware of the impending deadline yet willfully refused to comply. Simply put, there has been no showing that plaintiff participated in the violation of a discovery order sufficient to support the harsh penalty of dismissal of her action. Further, we note that this is a consent judgment between counsel, and not an order of the trial court compelling the answers. There is a distinction between the sanctions available for failure to comply with discovery and the sanctions available for disobedience of court ordered discovery.

|fiSecondly, we find that there was no willful violation or intent by counsel for plaintiff to disregard the deadline. Rather, the record contains ample evidence that counsel for plaintiff attempted to provide the requested information within the time specified, and the provided answers appear to be thorough. Further, the record supports a finding that defense counsel orally agreed to allow plaintiffs counsel until the morning of July 8, 2010 to submit the responses, and the responses were faxed to defense counsel at 9:07 a.m. on this date. Finally, there is no indication that plaintiff’s counsel’s actions prejudiced defense counsel’s presentation of the case in any way. Under these circumstances, we find that a less drastic sanction than dismissal was appropriate in this case.

Since there is no evidence that the plaintiff participated in violating the discovery orders and there was no willful violation or intent by counsel for plaintiff to disregard the deadline, the trial court abused its discretion in granting a dismissal of plaintiff’s case with prejudice. See, Horton, supra. A less drastic sanction could have been imposed in this case, and on remand, the trial court may impose a sanction which correlates with the conduct of plaintiff and her counsel in this case.

Accordingly, for the reasons assigned herein, the trial court’s judgment is hereby set aside and reversed and the case is remanded to the trial court for further proceedings consistent with this opinion. Each party shall bear its own costs of this appeal.

REVERSED AND REMANDED.

      . By supplemental and amending petition, the defendants were named as Road District No. 1 of the Parish of Jefferson, State of Louisiana, and Consolidated Waterworks District No. 1 of the Parish of Jefferson, State of Louisiana.


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    A.M.E. DISASTER RECOVERY SERVICES, INC. v. ST. JOHN the BAPTIST PARISH SCHOOL BOARD and Gerald J. Keller PhD.
    No. 10-CA-500.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 23, 2010.

      David C. Voss, E. Allen Graves, Jr., David W. Carley, Attorneys at Law, Baton Rouge, Louisiana, for Plaintiff/Appellant.
    Thomas F. Daley, District Attorney, Or-enthal Jasmin, Assistant District Attorney, Edgard, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

12This appeal involves the application of the Public Bid Law, La. R.S. 38:2212, et seq. For the reasons stated herein, we affirm the judgment of the trial court.

On March 9, 2010, A.M.E. Disaster Recovery Services, Inc. (“A.M.E”) brought this Petition for Temporary Restraining Order, Preliminary Injunction, Mandamus, and Permanent Injunction, or in the Alternative for Damages against the St. John the Baptist School Board and its president at the time, Gerald J. Keller. A.M.E alleged that in December of 2009, the School Board advertised for the receipt of bids for a public works project and that A.M.E submitted the lowest responsive bid on January 14, 2010. Although the School Board initially voted to award the contract to A.M.E on January 21, 2010, the School Board subsequently voted in a special meeting to vacate the award. The School Board then ^requested a disqualification hearing which was scheduled for March 10, 2010, and pending this hearing, the School Board refused to execute a contract for the project with A.M.E.

Plaintiff alleges that this action was -in direct violation of the Public Bid Law, and constituted irreparable injury to A.M.E as the successful bidder on the project. A.M.E sought a temporary restraining order to prevent the holding of the disqualification hearing. A.M.E also sought further injunctive relief to prevent the School Board from talking any action other than execution of the contract for the project with A.M.E. In the alternative, A.M.E sought a judgment of nullity of any contract for the project to any contractor other than A.M.E, and also for damages due to the School Board’s breach of its duty to execute the contract with A.M.E.

The trial court denied the request for the temporary injunction, and the hearing was held on March 10, 2010 as scheduled. Plaintiff subsequently filed a supplemental and amending petition seeking to restrain the School Board from awarding this contract to a bidder other than A.M.E. The trial court denied the request for a restraining order, but set a hearing on plaintiffs request for preliminary injunction and for a writ of mandamus to defendants to accept A.M.E’s bid and execute the contract with A.M.E or to show cause to the contrary at the hearing on the preliminary injunction.

Following a hearing on March Bl, 2010, the trial court denied plaintiffs request for a preliminary injunction and a writ of mandamus. Written judgment was signed on April 1, 2010. Plaintiff now devolutively appeals from this judgment on the basis of several assignments of error.

A.M.E contends by this appeal that the trial court erred in denying injunctive relief as the School Board had no authority to disqualify their bid Rafter it had been awarded. A.M.E further argues that the School Board disqualified their bid for reasons not stated in the notice for the due process hearing and failed to comply with the requirements of Louisiana Public Bid Law.

A.M.E argues that following the acceptance of A.M.E’s bid on January 21, 2010, the School Board had a ministerial duty to enter into a written contract with A.M.E. In support of its argument, A.M.E relies on the provisions of La. R.S. 38:2216(A)(1), which state as follows:

When any bid is accepted for the construction or doing on any public works, a written contract shall be entered into by the successful bidder and the public entity letting the contract, and the party to whom the contract is awarded shall furnish good and solvent bond in the amount of less than one-half of the amount of the contract, for the faithful performance of his duties.

A.M.E argues that because the project was awarded, it could not be vacated and A.M.E could not be disqualified.

However, a review of the minutes for the School Board’s January 21, 2010 meeting reveals that a motion was carried “.. to award the base contract with no alternates to the apparent low bidder for the Gary-ville/Mt. Airy Renovation Project [A.M.E Disaster Recovery] contingent upon low bidder meeting all LA Public Bid Law and Contract Document Requirements and Specifications.” Although A.M.E. was recognized by the School Board as the apparent low bidder, the contract award to A.M.E. was contingent upon meeting the requirements of the Louisiana Public Bid Law.

The Advertisement for Bids contained in the record states that bidders must meet the requirements of the State of Louisiana Contractor’s Licensing Law, La. R.S. 37:2151, et seq. The Instructions to Bidders requires the ^bidder for this project to be “fully qualified under all Louisiana State Laws, and all local licensing laws for Contractors in effect at the time and at the location(s) of the Work before submitting his Bid ...”

Pursuant to La. R.S. 37:2160, it shall be unlawful for any person to engage or to continue in this state in the business of contracting, or to act as a contractor, unless he holds an active license as a contractor. Further, La. R.S. 37:2158(E) provides that a contractor’s license may be revoked or suspended under law for failure to maintain a qualifying party to represent the licensee.

There is no dispute that at the time the bid was submitted by A.M.E. to the School Board in January of 2010, the qualifying party for the entity was listed as Burnell Moliere. Although A.M.E. attempted to substitute the qualifying party in early January of 2010, Mr. Moliere’s voluntary withdrawal as the qualifying party did not become effective until February 18, 2010 and a substitution was not approved by the Louisiana State Contractor Licensing Board until March of 2010.

At the special meeting of the School Board on March 2, 2010, the Board noted Mr. Moliere’s removal as the qualifying party for A.M.E., and therefore voted to vacate the award to A.M.E on the basis A.M.E.’s contracting license was subject to revocation or suspension. Thereafter, a Due Process hearing was scheduled by the District Attorney to present information to A.M.E. as to the basis for the disqualification. At this hearing which was held on March 10, 2010, A.M.E. argued that at the time the bid was submitted, their license was intact and that Mr. Moliere was no longer a principal in the corporation. A.M.E. admitted however that Mr. Moliere | ^remained as an employee and sales representative for the company, earning the same salary as when he was a principal.

At its meeting on March 18, 2010, the School Board voted to disqualify A.M.E. and awarded the project to the next lowest bidder. Our task is to determine whether the School Board was within its authority in disqualifying this bidder.

La. R.S. 38:2212, which requires that advertising and the obtaining of competitive bids, is a prohibitory law founded on public policy. It was enacted in the interest of taxpaying citizens of this state, and its purpose is to protect these citizens against contracts awarded through favoritism, possibly involving exorbitant and extortionate prices. Haughton Elevator Division v. State, Through Division of Administration., 367 So.2d 1161 (La.1979); J.W. Rombach v. Parish of Jefferson, 95-829 (La.App. 5 Cir. 2/14/96), 670 So.2d 1305, 1308-1309.

A public agency awarding a public works contract is vested with the power and discretion to determine the responsibility of the bidder and to reject all bids if none are satisfactory. However, the law does not allow the agency to arbitrarily select one bid, which is higher, and reject other bids, which are lower. The agency’s discretion must be exercised in a fair and legal manner and not arbitrarily. J.W. Rombach, supra.

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. The agency’s reasonable good faith interpretation of its own specifications should not be disturbed by a court whose views might be 17different. Systems Plus, Inc. v. East Jefferson General Hosp., 94-83 (La.App. 5 Cir. 5/31/94), 638 So.2d 404; J.W. Rombach, supra.

The duty of this court is to determine whether the School Board acted arbitrarily and/or unfairly in disqualifying A.M.E. J.W. Rombach, supra; B.F. Carvin Const. Co., Inc. v. Jefferson Parish Council, 98-1189 (La.App. 5 Cir. 5/19/99), 735 So.2d 859, 866, writ denied, 99-787 (La.10/8/99), 750 So.2d 969. We conclude that the School Board acted "within the dictates of the Public Bid Law in the present case, and we will not disturb the lower court’s judgment.

A public body has the right to take into consideration a number of factors in deciding who is the “lowest responsible bidder.” The term “responsible bidder” is not limited in its meaning to financial resources and ability. What the public wants is quality performance of public contracts. Public authorities, therefore, are invested with discretionary powers to pass upon the honesty and integrity of the bidder, qualities which are essential to the faithful performance of the contract; upon the bidder’s skill and business judgment; upon his experience and facilities for carrying out the contract; previous conduct under other contracts; and the quality of previous work; as well as the bidder’s pecuniary ability. When that discretion is properly exercised the courts will not interfere. Housing Authority of Opelousas, La. v. Pittman Construction Co., 264 F.2d 695 (5th Cir.1959); see also, Broadmoor L.L.C. v. Ernest N. Mortal New Orleans Exhibition Hall Authority, 04-211 (La.3/18/04), 867 So.2d 651, 656-657.

In the present case, the record shows that Burnell Moliere was the qualifying party on A.M.E.’s contractor’s license at the time the bid in this case was submitted. At this time Moliere was a convicted felon, and A.M.E. |8was attempting to substitute another employee as the qualifying party, but this function had not yet been completed at the time the bid was submitted. Thus, at the time the School Board vacated its award to A.M.E., A.M.E. did not have an approved qualifying party as required by the Louisiana State Contractor’s Licensing Law. The fact that A.M.E.’s contracting license remained intact once the qualifying party was substituted does not diminish the grounds for disqualification which existed at the time the bid was submitted.

Although A.M.E. contends that the law requires the School Board to meet certain procedural safeguards prior to disqualification, we find the School Board was not in violation of these requirements. The School Board determined that A.M.E. was the lowest bidder on January 21, 2010, but awarded the contract on a contingent basis. Based on this contingency of meeting contract licensing requirements, A.M.E.’s reliance on the principles of contract law regarding offer and acceptance are misplaced. In short, the contract was not awarded on the date the bids were opened pending a determination of bid requirements.

Further, during this contingency period, the School Board was notified that the state licensing board was investigating the qualification of A.M.E.’s qualifying party and other matters regarding the license held by A.M.E. On this basis, the attorney for the School Board notified A.M.E. in writing that the Board was considering disqualification of A.M.E. as a responsible bidder for the project for failure to meet contracting requirements.

This letter, dated March 3, 2010, informed A.M.E. that the reason the company was being considered for disqualification was twofold: that one of |flthe company’s principals was a convicted felon and that A.M.E.’s license has been put on hold by the state licensing board. Although A.M.E. submits that neither of these reasons was the reason A.M.E. was eventually disqualified and therefore the requirement of due process was not met, we find otherwise. At the hearing held on March 10, 2010, testimony indicated that although Burnell Moliere was no longer a principal for purposes of corporate records, he was still the named qualifying party for the corporation for licensing purposes at the time the bid in this case was submitted. The qualifying party is deemed to be the legal representative of the contractor without whom a contractor cannot obtain a license. La. R.S. 37:2156.1(D)(1). Further, there is no dispute that the state licensing board was investigating the qualifications of A.M.E.’s license at the time the bid was submitted, while it may not have put a “hold” on A.M.E.’s contractor’s license. This factor was a reasonable concern in the awarding of this public contract.

Our review of the March 3, 2010 disqualification letter as well as the transcript of the due process hearing held on March 10, 2010 convinces us that all procedural safeguards required by law were met in this case. Further, we find that the School Board did not abuse its discretion in determining that A.M.E. was not a responsible bidder pursuant to law at the time the bid in this case was submitted. We also find that the trial court did not err in denying A.M.E.’s request for a preliminary injunction and writ of mandamus. We conclude that the actions of the School Board in disqualifying this bidder were reasonable and in full compliance with the Louisiana Public Bid law.

j Accordingly, for the reasons assigned herein, the judgment of the trial court is affirmed. A.M.E. is to bear all costs of this appeal.

AFFIRMED.

      . The record in this case reveals that Mr. Burnell Moliere pleaded guilty to a felony in federal district court in 2008 and was sentenced to three years probation.