author: PICKETT, Judge. PICKETT, Judge. COOKS, J., GENOVESE, J.,

text:
    PETER D. VIZZI, M.D., A Medical Corporation v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT.
    No. 10-623.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.
    Rehearing Granted Feb. 2, 2011.
    Opinion on Rehearing Nov. 2, 2011.
    Katherine A Theunissen, Mahtook & La-fleur, Lafayette, LA, for Defendant-Appellant Lafayette City-Parish Consolidated Government.
    Kevin Scott Frederick, James P. Doherty, III, Frederick Law Firm, Lafayette, LA, for Plaintiff-Appellee Peter D. Vizzi, M.D., A Medical Corporation.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

| iThe appellant, Lafayette Consolidated Government, appeals a- judgment of the trial court awarding. Peter Vizzi, MD, A Medical Corporation (Dr. Vizzi) $14,062.00 in a suit on an open account plus attorney fees. Dr. Vizzi answers the appeal, seeking additional attorney fees for work done on appeal.

STATEMENT OF THE CASE

The Lafayette City Police responded to a call that someone had attempted to break into a home. When the police arrived, they discovered that the homeowner had shot the intruder, Quintín Contrell Sam, in the leg. The police placed Mr. Sam under arrest, and then a police officer accompanied Mr. Sam to the hospital, where he was treated by Dr. Vizzi.

Dr. Vizzi filed a Petition on Open Account against Lafayette Consolidated Government (Lafayette) and Mr. Sam for the amount of the services he provided, $14,062.00, plus attorney fees, alleging that, pursuant to La.R.S. 15:304, the parish was liable because Mr. Sam was under arrest at the time Dr. Vizzi treated him. Lafayette denied they were responsible for paying for Mr. Sam’s treatment and filed a cross-claim against Mr. Sam. Both Lafayette and Dr. Vizzi filed motions for summary judgment. Following a hearing, the trial court denied Lafayette’s motion for summary judgment and granted Dr. Viz-zi’s motion for summary judgment. The trial court awarded’ Dr. Vizzi '$14,062.00 on the open account, $4,687.33 in attorney fees, and legal interest from- the date of judicial demand. Lafayette now appeals, and Dr. Vizzi has answered the appeal.

| ^ASSIGNMENTS OF ERROR

Lafayette Consolidated Government asserts three assignments of error:

1. The trial court erred in finding that LCG was responsible for medical expenses for treatment of a criminal suspect who was shot and wounded prior to any involvement by police officers.

2. The trial court erred in concluding that the underlying facts were undisputed warranting the grant of summary judgment.

3. The trial court erred in awarding attorney’s fees pursuant to the Louisiana Open Account statute, La.R.S. 9:2781.

Answering the appeal, Dr. Vizzi seeks attorney fees for work done on appeal.

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Summary judgment is appropriately granted if there are no genuine issues of material fact and if the mover is entitled to judgment as a matter of law. Id.

Louisiana Revised Statutes 15:304 states, in pertinent part:

All expenses incurred in the different parishes of the state or in the city of New Orleans by the arrest, confinement, and prosecution of persons accused or convicted of crimes, their removal to prison, the pay of witnesses specifically provided for by law, jurors and all pros-ecutorial expenses whatever attending criminal proceedings shall, be paid by the respective parishes in which the offense charged may have been committed or by the city of New Orleans, as the case may be. The éxpenses shall be paid by the parish treasurer or by the city of New Orleans after an account of the expenses shall be duly certified to be correct by the presiding judge and the clerk of court.

Lafayette argues that since Mr. Sam was wounded by a third party before he was arrested, the parish should not be held liable for the medical bills associated with his treatment. We disagree. As soon as Mr. Sam was placed under arrest, the parish |sbecame liable for his necessary medical care. The record makes clear that Mr. Sam was under arrest and was being removed to prison when he was treated by Dr. Vizzi.

We find that once Mr. Sam was placed under arrest, La.R.S. 15:304 requires that the parish bear the expense of any medical treatment he may have needed. We also do not find persuasive the argument advanced by Lafayette that Dr. Vizzi was obligated to provide treatment to Mr. Sam, and that he should bill Medicaid. At the time of the treatment, Mr. Sam was in the custody of the police, and therefore the parish is obligated to pay for his treatment. The first assignment of error lacks merit.

As to the parish’s second assignment of error, we find that it is unnecessary to determine if the expenses were incurred “by the arrest” of Mr. Sam, as our discussion of the previous assignment explains. Furthermore, the argument that the procedure required by La.R.S. 15:304 was not followed or that the amount awarded was not reasonably proven are affirmative defenses that were not pled or raised in the trial court. See La.Code Civ.P. art. 1005. As these issues were not submitted to the trial court, we will not consider them on appeal. See Uniform Rules — Courts of Appeal, Rule 1-3. This assignment of error lacks merit. •

Finally, Lafayette argues that the trial court erred in awarding attorney fees pursuant to the open account statute, La.R.S. 9:2781. We find that the open account statute was properly utilized by Dr. Vizzi, and the award of attorney fees was proper under that provision. Furthermore, we find no abuse of discretion in the trial court’s award of attorney fees. See Industrial Screw & Supply Co., Inc. v. WPS, Inc., 05-1188 (La.App. 3 Cir. 4/5/06), 926 So.2d 134, writ denied, 2006-1063 (La.6/23/06), 930 So.2d 986. This assignment of error lacks merit.

|4The judgment of the trial court is affirmed. We decline to award Dr. Vizzi additional attorney fees for work done on appeal, as we find the amount awarded by the trial court adequate. Costs in the amount of $351.18 are assessed to the appellant, Lafayette Consolidated Government.

AFFIRMED.

ON REHEARING

Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.

PICKETT, Judge.

pFor the reasons assigned in the original opinion released by a three-judge panel of this court on December 8, 2010, the judgment of the trial court is affirmed.

AFFIRMED.

COOKS, J.,

dissenting.

|J disagree with the majority’s decision to reaffirm the earlier opinion in this matter. I believe the earlier opinion was in error, and I would reverse the judgment of the trial court and render judgment in favor of Lafayette City-Parish Consolidated Government.

Quintín Contréll Sam allegedly robbed a taxi driver, fled from the scene, and attempted to force his way into á private residence occupied by Mr. George Richard. In the attempt to eiiter the house, Mr. Sam was shot in the leg by Mr. Richard, who then called 911. Shortly thereafter, Acadian Ambulance and the police (after being notified by 911) arrived on the scene to find Mr. Sam injured. Mr. Sam was transported to Lafayette General Medical Center for emergency medical care by Acadian Ambulance. At some point prior to his arrival at the hospital, he was arrested. Mr. Sam was treated for his injuries by Dr. Peter Vizzi, who was Lafayette General’s on-call physician in the emergency room at that time.

Dr. Vizzi contends the Parish is liable because Mr. Sam was under arrest at the time Dr. Vizzi treated him. I disagree.

There are no disputed issues of fact in this case. The sole issue before us is whether La.R.S. 15:304 requires Lafayette to pay .the medical expenses of Mr. Sam under the facts of this case. La.R.S. 15:304 provides in pertinent part:

li>All expenses incuired in the different parishes of the state or in the city of New Orleans by the arrest, confinement, and prosecution of persons accused or convicted of crimes, their removal to prison, the pay of witnesses specifically provide for by law, jurors and all prosecutorial expenses whatever attending criminal proceedings shall be paid by the respective parishes which the offense charged may have been committed or by the city of New Orleans, as the case may be.

(Emphasis added.)

The statute specifically requires that expenses must be incurred as a result of “arrest, confinement and prosecution.” In this case, it is plainly obvious the resultant medical treatment required by the injury was not an “expense incurred ... by the arrest” of Mr. Sam as the statute mandates.

When the law is clear and unambiguous, and its application does not result in absurd consequences, it shall be applied as written and no interpretation may be made in search of the legislature’s intent. La. Civ.Code art. 9. When a statute is clear, the court must give credence to the mandate expressed by the legislature. Vogt v. Board of Levee Commissioners of the Orleans Levee District, 95-1187 (La.App. 4 Cir.9/4/96), 680 So.2d 149. Further, courts may not extend statutes to situations, which the legislature never intended to be covered thereby. Schackai v. Louisiana Board of Massage Therapy, 99-1957 (La.App. 1 Cir.9/22/00), 767 So.2d 955.

Counsel for Dr. Vizzi argued because the arrest occurred before Sam arrived at the hospital, the Parish is required to shoulder financial responsibility for the ar-restee’s care. I do not agree. The plain wording of La.R.S. 15:304 clearly provides that the Parish is only responsible for expenses that are “incurred ... by the arrest, confinement, and prosecution of persons accused or convicted of crimes.” The legislature did not intend to hold governmental entities financially responsible for situations they did not cause or that did not occur during the confinement of an arrestee or prisoner.

Dr. Vizzi cites Southwest Louisiana Hospital Association v. Hunt, 551 So.2d 818 (La.App. 3 Cir.1989) for his position that La.R.S. 15:304 places responsibility on the Parish in this case. In Hunt an inmate in the Beauregard Parish jail required hospitalization after being beaten by an inmate. The hospital eventually brought a suit for open account against curatrix of the inmate for payment of medical services. The curatrix of the inmate brought a third party action against the parish police jury. The trial judge found the police jury was responsible under La. R.S. 15:304 for the inmate’s medical care. The trial court specifically noted that at the time the injury was suffered the inmate was incarcerated in the parish jail. This court agreed with the trial court, specifically finding the police jury was statutorily responsible for the inmate’s medical care “while he was an inmate in the parish jail.” Id. at 820.

The' facts in Hunt are clearly distinguishable from those in the present case. Hunt involved injuries sustained by an inmate from another inmate while in the care and custody of the parish jail.

Dr. Vizzi also cites Opinion No. 89-308, of Louisiana’s Office of the Attorney General in support of his position. In that opinion, the attorney general concluded the parish was liable for the medical expenses of a subject who was shot by police while attempting to run through a roadblock. In reaching this conclusion, the attorney general stated:

In the present case, the subject was shot by law enforcement officials in the process during their attempt to arrest the subject. At that point, it became the duty of the Police Jury under R.S. 15:304 and Amiss v. Dumas[, 411 So.2d 1137 (La.App. 1 Cir.1982) ] to provide medical care to the subject.

As the Attorney General’s opinion specifically notes, the injury occurred during the police attempt to arrest the subject. Clearly that instance is distinguishable from this case. Here the injury occurred prior to law enforcement arriving on the scene.

| ¿The Parish is not automatically responsible for payment of expenses associated with an independent ambulance service bringing an injured man to a hospital for necessary medical treatment. Simply because Mr. Sam was arrested at the scene does not change the nature of the police involvement in this matter. The Lafayette Police Department did not cause or contribute in any way to the injuries sustained by Mr. Sam, nor did the injuries occur while he was in the care or custody of the police or housed in the jail. Therefore, the expenses were not incurred by the arrest, confinement or prosecution of Mr. Sam, and the Parish is not statutorily obligated to pay Dr. Vizzi for his services. Further, the statute which Dr. Vizzi relies upon for payment does not provide a penalty or attorney fees for failure to pay. Moreover, the Parish has good reasons to dispute the invoice forwarded to it. Additionally, the Parish did not have an existing relationship with ■ Dr. Vizzi' arid did not obligate itself to pay Mr. Sam’s medical expenses by consenting to or establishing an account with Dr. Vizzi. In order to prevail on a suit for an open account, the creditor must prove that the debtor “contracted for services on open account,” and there must necessarily be a contract which gave rise to the debt. Dixie Machine Welding & Metal Works, Inc. v. Gulf States Marine Technical Bureau, Inc., 96-869 (La.App. 5 Cir. 3/12/97), 692 So.2d 1167, 1169. An open account necessarily involves an underlying agreement between the parties on which the debt is based. Vintage Wings and Things, LLC v. Toce & Daiy, LLC, 04-706 (La.App. 3 Cir. 11/10/04), 886 So.2d 652. No such contract or agreement was present in this case between the Parish and Dr. Vizzi, thus any recovery of attorney fees under the open account statute is inappropriate. .

For the above reasons, I would reverse the trial court’s judgment holding otherwise and enter summary judgment in favor of Lafayette City-Parish Consolidated Government.

GENOVESE, J.,

dissents and assigns the following written reasons.

hi disagree with the majority’s affirmation of the trial court judgment in this case finding Lafayette City-Parish Consolidated Government (LCG) legally responsible for Mr. Sam’s medical expenses. This case is governed by La.R.S. 15:304, which states in pertinent part that “[a]ll expenses incurred ... by the arrest, confinement, and prosecution ... shall be paid by the respective parishes in which the offense charged may have been committed....”

It is an undisputed fact that Mr. Sam was wounded (shot) by a third party before he was arrested. A strict reading of La. R.S. 15:304 states that the parish (LCG) is responsible for all expenses incurred “by the arrest, confinement, and prosecution[.]” Mr. Sam’s medical expenses were not incurred “by [his] arrest” or as a result of his arrest or confinement; his medical expehses became manifest and were subsequently incurred when he was shot and wounded. His subsequent arrest and confinement were not the cause of his incurred medical • expenses. Being shot as an intruder was the cause of his incurred medical expenses.

This decision opens Pandora’s box and subjects all parishes to liability for any and all expenses incurred before and after an arrest regardless of their involvement in arrest, confinement, or prosecution. I do not find that to be the wording or the intent of the statute. Consequently, I dissent from the majority. 11 ¿would reverse the trial court judgment and absolve LOG from any legal liability for Mr. Sam’s medical expenses based on the facts of this case and La.R.S. 15:304.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    Shane SPENCE v. EXCELSIOR ENDEAVORS & DEVELOPMENT, INC., and Louisiana Home-builders Self-Insurers Fund.
    No. 2012-CA-0616.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 17, 2012.

      Charles E. Sutton, Jr., Michael B. Alker, Sutton & Alker & Rather, L.L.C., Mande-ville, LA, for Plaintiff/Appellee.
    Stephen W. Glusman, Glusman, Broyles & Glusman, LLC, Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU, Judge ROSEMARY LEDET).
   EDWIN A. LOMBARD, Judge.

hThe defendants, Excelsior Endeavors and Development, Inc. and Louisiana Homebuilders Association, appeal the judgment of the Office of Workers’ Compensation granting the plaintiff, Shane Spence, his claim for benefits under the Louisiana Workers’ Compensation Act. The Workers’ Compensation Judge (the WCJ) ruled that the plaintiff had overcome the presumption of intoxication and that the plaintiff had not violated the provision of La.Rev.Stat. 23:1208. After a thorough review of the record and evidence, we find that the WCJ’s findings are not manifestly eironeous. Accordingly, we affirm the judgment.

Relevant Facts and Procedural History

On July 1, 2011, the plaintiff sustained multiple severe injuries during the course and scope of his employment when he fell approximately thirty feet to the ground from a scaffold. At the time of the accident, the plaintiff was employed by Excelsior Endeavors and Development, Inc., a general contractor for the premises located at 924 Royal Street in New Orleans, Louisiana. Immediately after the ^accident, the plaintiff was transported to the hospital where a drug screening test was positive for Dihydroeodeine, Hydrocodone, and Oxycodone.

The plaintiff filed a claim for workers’ compensation benefits against his statutory employer, Excelsior Endeavors and Developments, Inc., and its insurer, Louisiana Homebuilders’ Association. The defendants denied his claim raising the defense of intoxication. After a hearing, the WCJ found that the plaintiff successfully rebutted the presumption of intoxication. The plaintiff was awarded temporary total disability benefits and medical expenses. The defendants appeal this decision of the WCJ.

Law and Discussion

On appeal, the defendant assigns as error: (1) the WCJ’s finding that the plaintiff carried his burden of proof to overcome the presumption of intoxication; and (2) the WCJ’s finding that the plaintiff did not violate the provisions of La.Rev.Stat. 23:1208.

Standard of Review

The appropriate standard of review to be applied by this court to the Office of Workers’ Compensation Judge’s findings of fact is the manifest error standard. Negri v. Authement Construction, Inc., 09-0584, p. 3 (La.App. 4 Cir. 10/14/09) 28 So.3d 1071, 1073; citing Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. Accordingly, we will not set aside the findings of the WCJ unless they are clearly wrong in light of the record viewed in its entirety. Id.

13Under the manifest error/clearly wrong standard of review, the appellate court need only determine whether - the factfinder’s conclusion was a reasonable one. Leeman v. Triple E Transport, Inc., 99-0229 (La.App. 4 Cir. 6/30/99) 744 So.2d 89, 91. Where two permissible views of the evidence exist, a factfinder’s choice between the two views can never be manifestly erroneous or clearly wrong. See Stobart v. State of Louisiana, Through Dep’t Of Transp. & Dev., 617 So.2d 880 (La.1993).

Applicable Law

Pursuant to Louisiana Revised Statute 23:1081(l)(b), an employee is not entitled to workers’ compensation benefits for an injury caused by the employee’s intoxication. La.Rev.Stat. 23:1081 presents two separate rebuttable presumptions that apply in intoxication cases. First, the employee is presumed to be intoxicated'if there was, at the time of the employee’s accident, evidence of either on-the-job or off-the-job use of a non-prescribed substance. La.Rev.Stat. 23:1081(5). Once the employer has proven that the employee was intoxicated, the second presumption arises, that such intoxication caused the accident. Id. At that point, the burden of proof shifts to the employee to prove that the intoxication was not a contributing cause of the accident. Id. If he does so, the intoxication defense of the employer is defeated.

In their first assignment of error, the defendants contend that the WCJ erred in finding that the plaintiff carried his burden of proof to overcome the presumption of intoxication. The defendants established the plaintiffs intoxication by presumption, based on the positive drug screening results. Accordingly, the burden shifted to the plaintiff to show that his intoxication was not a contributing cause of his accident.

14At the hearing, the plaintiff testified that he had not taken any medication in the recent days before the accident. On the day of the accident, he was tasked with spraying the wall with water, which caused the scaffold to become wet and slippery over the course of the day. The plaintiff stated that prior to the accident, he ascended and descended the scaffold several times throughout the morning without incident. He was also able to comprehend and follow the instructions provided by his supervisor and did not receive any complaints that he was unable to perform his work.

The testimony of Wayne Aubert, the plaintiffs co-employee and immediate supervisor, was admitted by deposition at trial. Mr. Aubert testified that he was present at all times with the plaintiff on the morning of the accident. He stated that there was nothing to indicate to him that the plaintiff was under the influence of any drugs, as the plaintiff was alert and obeyed instructions.

Mercedes Whiteeloud, the owner of the building where the plaintiff and Mr. Au-bert were working, testified through her deposition testimony that she arrived at the site several times a day. She stated that she observed the plaintiff always performing the work as he was required to do and never showed any sign of impairment or any sign of improper judgment.

After considering the presented testimony, the WCJ stated that, “[i]t is the Court’s opinion that even though the drug screen showed positive, the actions of the employee before and after the accident had nothing to do with intoxication. Again, there exists no other evidence to remotely indicate intoxication was caused by or contributed to the horrific fall and injuries suffered by Spence [the plaintiff].” Thus, the WCJ found that that the plaintiff successfully met his burden in rebutting the presumption of intoxication.

|,Jn reviewing the facts found by the trial court, the appellate court must do more than simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Stobart v. State of Louisiana, Through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993). Based upon this court’s review of the record, we find that the WCJ’s conclusion that the plaintiff’s alleged intoxication was not a contributing cause of his accident is supported by the record. Accordingly, we find that the WCJ did not commit manifest error in finding that the plaintiff successfully met his burden in rebutting the presumption of intoxication.

In their second assignment of error, the defendants contend that the WCJ erred in finding that the plaintiff did not violate the provisions of La.Rev.Stat. 28:1208. The defendants contend that the plaintiff made false representations either in his deposition testimony or at trial to explain the scientific evidence and obtain benefits.

Misrepresentation and forfeiture under the Workers’ Compensation Act are regulated by La.Rev.Stat. 23:1208 which states, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
|fiB. Any employee violating this Section shall, upon determination by [the] workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

Louisiana Revised Statute 23:1208 authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Bell v. Mid City Printers, Inc., 10-0818, p. 17 (La.App. 4 Cir. 12/22/10), 54 So.3d 1226, 1237.

The issue of whether an employee has forfeited his right to workers’ compensation benefits is a factual question that should not be disturbed on appeal absent manifest error. Id. “In determining whether a statement is willful, the courts have considered whether statements made by a claimant are merely inadvertent or inconsequential. Inadvertent or inconsequential statements will not rise to a finding of willful misstatement, triggering statutory penalties.” Stanich v. Canal Entertainment, 09-0707, p. 3 (La. App.4 Cir. 11/12/09), 26 So.3d 269, 272; citing Hernandez v. ESCKO, Inc., 00-0174, p. 3 (La.App. 4 Cir. 11/15/00), 773 So.2d 865, 867.

In this case, the WCJ determined that “[t]he allegations brought by the defendant of fraud against the employee have fallen short of illustrating any intentional misrepresentations .... ” We agree.

A review of the record indicates that there is a discrepancy between the plaintiffs statements made by the deposition testimony and statements made at trial. Although the defendants provided speculation as to why the plaintiff made erroneous statements, the defendants failed to present evidence to show that the |7plaintiff made any intentional or willful misrepresentation for the purpose of obtaining compensation benefits. Therefore, we find no manifest error in the WCJ’s conclusion that the defendants failed to carry its burden on this issue.

Conclusion

Based on the foregoing, we find no error in the WCJ’s findings. Accordingly, we affirm the WCJ’s judgment in its entirety.

AFFIRMED


author: PICKETT, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF WILDLIFE AND FISHERIES v. GULFPORT ENERGY CORPORATION.
    No. 12-356.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2012.

      Andrew Charles Wilson, Simon, Pera-gine, Smith & Redfearn, LLP, New Orleans, LA, Glenn W. Alexander, Jones & Alexander, LLC, Cameron, LA, Frederick Coller Whitrock, Louisiana Department of Wildlife & Fisheries, Megan K. Terrell, Assistant Attorney General, Baton Rouge, LA, for Plaintiff-Appellant, State of Louisiana, Department of Wildlife and Fisheries.
    David Lee Patron, Harry Rosenberg, Phelps Dunbar, L.L.P., New Orleans, LA, for Defendant-Appellee, Gulfport Energy Corporation.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PICKETT, Judge.

hThe Department of Wildlife and Fisheries (DWF), suing on behalf of the State of Louisiana, appeals a judgment of the trial court sustaining an exception of no right of action filed by the defendant, Gulf-port Energy Corporation (Gulfport), and dismissing the suit with prejudice.

STATEMENT OF THE CASE

DWF alleges that Gulfport damaged oyster beds and other oyster breeding grounds in Calcasieu Lake and West Cote Blanche Bay by engaging in dredging, pipeline construction, and drilling activities for over ten years, from 1998 through 2009. DWF claims that pursuant to the terms of the permits issued by the Louisiana Department of Natural Resources, Guliport had a duty to pay for any damages to oyster habitat, but failed to do so. DWF sent an invoice letter to Gulfport on February 25, 2010, for $3,253,715.05, using internal DWF calculations to reach that amount of damages. Gulfport refused to pay. DWF filed a Petition for Damages in Cameron Parish in October 2010, alleging damages to oyster cultches in Cameron, St. Mary, and Iberia Parishes.

Responding to the suit, Gulfport filed Exceptions of Improper Venue, Improper Cumulation of Actions, and No Right of Action. The trial court heard arguments on the exceptions on April 16, 2011. The trial court issued written reasons for ruling on November 28, 2011, wherein it found that DWF lacked the capacity to file a tort suit to recover for damages. Rather, the court found that the Department of Justice, through the Attorney General, is the proper party to sue on behalf of the state. On December 13, 2011, before the trial court rendered a judgment, two Assistant Attorneys General enrolled as counsel in this case as ^representatives of the Department of Justice. They filed a motion for leave of court to supplement and amend the petition in concert with the original attorneys for DWF, as well as a motion for a new trial. The trial court signed a written judgment sustaining the exception of no right of action on December 13, 2011. The motions for leave to amend the petition and for a new trial were later withdrawn by DWF. DWF filed this appeal.

ASSIGNMENTS OF ERROR

DWF asserts three assignments of error:

1. The [t]rial [cjourt erred in failing to recognize LDWF’s statutory right to bring suit to protect the State’s natural resources under the applicable law enacted by the [legislature.

2. The [t]rial [c]ourt erred in improperly confusing the Attorney General’s role in representing the State and its agencies in litigation, as opposed to the necessity for the Attorney General to appear as a proper party-plaintiff.

3.The [t]rial [c]ourt erred in failing to allow LDWF the opportunity to amend the Petition to address the Court’s ruling and, instead, simply dismissed the entire lawsuit in direct violation of Article 934 of the Louisiana Code of Civil Procedure.

DISCUSSION

The only issue before this court is the trial court’s judgment sustaining the peremptory exception of no right of action. The supreme court explained the appellate review of a ruling on this exception in Eagle Pipe v. Amerada Hess Corp., 10-2267, pp. 6-7 (La.10/25/11), 79 So.3d 246, 255-56 (additional citations omitted):

“The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.” Hood v. Cotter, 2008-0215, p. 17 (La.12/2/08), 5 So.3d 819, 829. An appellate court reviewing a lower court’s ruling on an exception of no right of action should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal | ..interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person. Id.

In its reasons for ruling, the trial court very clearly explains why the Attorney General and the Department of Justice is vested with the constitutional and statutory authority to represent all of the departments and agencies of state government in our courts. Any discussion of the authority of the Attorney General begins with our constitution, which creates the Department of Justice in Article 4, § 8:

There shall be a Department of Justice, headed by the attorney general, who shall be the chief legal officer of the state. The attorney general shall be elected for a term of four years at the state general election. The assistant attorneys general shall be appointed by the attorney general to serve at his pleasure.
As necessary for the assertion or protection of any right or interest of the state, the attorney general shall have authority (1) to institute, prosecute, or intervene in any civil action or proceeding; (2) upon the written request of a district attorney, to advise and assist in the prosecution of any criminal case; and (8) for cause, when authorized by the court which would have original jurisdiction and subject to judicial review, (a) to institute, prosecute, or intervene in any criminal action or proceeding, or (b) to supersede any attorney representing the state in any civil or criminal action.
The attorney general shall exercise other powers and perform other duties authorized by this constitution or by law.

The structure and duties of the Department of Justice is further explained by statute at La.R.S. 36:701 et seq. Specifically, the legislature created the civil division of the Department of Justice at La. R.S. 36:704(D):

There shall be within the Department of Justice a civil division. It shall be responsible for providing the full range of civil legal services requested by the officers and agencies of the state. The functions of the civil division shall include the assertion or protection of any right or interest of the state of Louisiana; legal representation of governmental officers, agencies, boards, or commissions; collection of money owed to the state of Louisiana and its agencies, boards, or commissions, construction claims and litigation on public |4works, and legal protection of state lands, water bottoms, and natural resources of the state.

In its first assignment of error, DWF argues that while it does not have the express authority to represent the state in this action, various statutes, when read in pari materia, act to show it has implied authority to bring this suit on behalf of the state. This includes La.R.S. 56:433(G), as amended by 2008 La. Acts No. 92, which sets certain time and geographic boundaries for the fishing of undersized oysters for use as seed oysters for bedding purposes. DWF points specifically to Section 2 of the Act, which states:

Nothing contained in this Act shall authorize or cause an increase in the amount of damages due to the Department of Wildlife and Fisheries as a result of oil and gas activities on public seed grounds. Any such damages shall be calculated by the same method and with the same formula that was applicable prior to the passage of this Act.

We note that the trial court correctly notes that Section 2 did not become part of La.R.S. 56:433(G). It did, however, express the will of the legislature that DWF had the authority to set the amount of damages due in cases where oyster seed grounds are damaged by oil and gas activities, and that the act was not intended to change that formula to cause an increase in the damages. We find that the trial court correctly found that the authority of DWF to set the amount of damages is not concomitant with the authority of DWF to file a lawsuit on its own behalf to collect those damages. In fact, the civil division of the Department of Justice has the responsibility represent DWF in any suit to collect those damages in a tort suit. See La.R.S. 36:704(D).

DWF also argues that La.R.S. 36:602 grants it the authority to bring this suit. They specifically cite subsection A, which states, “The Department of Wildlife and Fisheries is created and shall be a body corporate with the power to |5sue and be sued.” We reject that argument. As we have pointed out, the Attorney General has the authority to sue on behalf of DWF, but that does not authorize DWF to file suit on its own behalf in the absence of representation by the Attorney General. Furthermore, while DWF’s duties under La.R.S. 36:602(B) and 36:609 arguably include the activities involved in the underlying suit, the Department of Justice is specifically tasked with undertaking “litigation on public works, and legal protection of state lands, water bottoms, and natural resources of the state.” La.R.S. 36:704(D). Finally, the computation model used by DWF and whether the legislature approved it is not before us in the review of the exception of no right of action.

DWF further argues that statutory construction requires us to reverse the judgment of the trial court. Its arguments center on whether DWF can recover monies for damages to oyster beds, and we have no reason to find that they cannot. Like the trial court, though, we find that DWF cannot sue on behalf of the state without being represented by the Attorney General. The other arguments and questions raised by DWF in their brief are more properly raised in the merits’ phase of any future litigation.

DWF’s second assignment of error suggests that the trial court erred in finding that the trial court’s ruling requires that the Attorney General must appear as a party in any suit filed on behalf of the state. The trial court judgment includes no such holding. The trial court merely found that the Attorney General must appear on behalf of DWF, as required by our constitution and statutes. In fact, La.R.S. 49:257(A), cited by DWF, supports our conclusion. It states:

Notwithstanding any other law to the contrary and in addition to any other powers, duties, or authority granted to the attorney general and the Department of Justice by the constitution and laws of |r,the state, the attorney general shall represent the state and all departments and agencies of state government in all litigation arising out of or involving tort or contract.

While the issue was broached during the hearing on the exception below about whether the attorneys hired by DWF were acting pursuant to Lá.R.S. 49:257(E), there was no showing that the attorneys were acting pursuant to that section of the statute. In short, we find that the trial court did not err in requiring the Attorney General to intervene as a party because the trial court did not rule that the Attorney General had to be involved in the case as a party.

Finally, we find that the trial court erred in failing to allow DWF to amend its petition or otherwise act to cure the deficiencies of its action against Gulfport, as required by La.Code Civ.P. art. 934. In fact, as our review of the record indicates, the Attorney General took steps to enroll as counsel on the same day the trial court issued its judgment. We remand this matter to the trial court to allow DWF to amend its petition and for further proceedings consistent with this opinion.

CONCLUSION

The judgment of the trial court is affirmed insofar as the exception of no right of action was sustained. The judgment is reversed insofar as DWF’s suit was dismissed with prejudice. The case is remanded to allow DWF to amend its petition or correct the grounds of Gulfport’s objections to this suit. DWF and Gulfport are ordered to split evenly total costs of this appeal in the total amount of $3,437.32.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


author: GREMILLION, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. TRIANGLE PROPERTY, LLC, et al.
    No. 12-564.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2012.
    Rehearing Denied Dec. 19, 2012.
    Bernard L. Knobloch, Jr., Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellant, State of Louisiana, Department of Transportation and Development.
    Donald R. Wilson, Wilson & Wilson, Jena, LA, for Defendant/Appellee, W.B. McCartney Oil Company.
    V. Russell Purvis, Jr., Smith, Taliaferro & Purvis, Jonesville, LA, for Defendant/Appellee, CCI Management Corporation.
    J.W. Seibert, III, Seibert & Gibbs, P.A., Vidalia, LA, for Defendant/Appellee, Triangle Property, LLC.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|TThe plaintiff, the State of Louisiana through the Department of Transportation and Development, appeals the trial court’s order granting a writ of mandamus in favor of the defendant, CCI Management Corporation (CCI). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This litigation arises out of the State’s expropriation of property located in Jones-ville, Louisiana. The State filed suit against six different parties in the expropriation proceeding who owned property or operated businesses. Three of those parties, W.B. McCartney Oil Company (McCartney Oil), Triangle Property, L.L.C. (Triangle Property) and CCI, filed reconventional demands.

Following a jury trial in July 2010, CCI was awarded $894,764.00 plus legal interest. McCartney Oil was awarded $558,279.00 plus legal interest. Judgment was filed on August 18, 2010. McCartney Oil filed a motion for additur, or in the alternative, for a new trial or judgment notwithstanding the verdict on August 26, 2010. A hearing was held in December 2010. In its written reasons for judgment filed on February 17, 2011, the trial court stated it would grant the new trial with regard to McCartney Oil, but if the State would consent, it would enter an additur as an alternative to a new tidal. The new amount awarded to McCartney Oil would be $1,386,536.51, a figure based on uncon-tradicted expert testimony at trial. The State did not consent to the additur and requested a new trial. On March 25, 2011, the trial court granted McCartney Oil’s motion for new trial and entered judgment in favor of McCartney Oil for $1,386,536.51 plus legal interest. Notice of judgment was mailed on March 29, 2011. CCI filed a petition for a writ of | ¿mandamus ordering the State to pay its award under the August 18, 2010 judgment, which the trial court granted.

ISSUE

The State argues that because a new trial was granted to McCartney Oil, the judgment as to CCI either is not final or should be held in abeyance pursuant to La.Code Civ.Proc. art. 1971. The State’s sole assignment of error is that the trial court erred in finding the August 18, 2010 judgment final as to CCI.

LAW AND DISCUSSION

A trial court’s decision to grant a new trial, including its “authority to define and limit the scope of the new trial,” will not be reversed on appeal absent an abuse of discretion. Boudreaux v. Wimberley, 02-1064, p. 5 (La.App. 3 Cir. 4/2/03), 843 So.2d 519, 522, writ denied, 03-1251 (La.9/5/03), 852 So.2d 1037.

Louisiana Code of Civil Procedure Article 1971 states (emphasis added):

A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.

The State did not appeal the August 18, 2010 judgment in favor of either Triangle Property or CCI. The State’s opportunity to appeal was extended well beyond the usual sixty-day period due to McCartney Oil’s motion for new trial. Louisiana Code of Civil Procedure Article 2087(C) pertaining to devolutive appeals provides that, “When one or more parties file motions for new trial or for judgment notwithstanding the verdict, the delay periods specified herein shall commence for all parties at the time they commence for the party whose motion is last to be acted upon by the trial court.” Likewise, La.Code Civ.P. art. 2123(B) |3pertaining to suspen-sive appeals provides that, “Whenever one or more parties file motions for a new trial or for judgment notwithstanding the verdict, the delay periods specified herein commence for all parties at the time they commence for the party whose motion is last to be acted upon by the trial court.” Thus, the State had sixty days from the date that the trial court ruled on McCartney Oil’s motion for additur/new trial, which occurred March 25, 2011. The State has never appealed from the original judgment in favor of CCI nor from the March 25, 2011 grant of McCartney Oil’s motion for new trial. It only appealed from the writ of mandamus granted by the trial court on October 5, 2011.

All time delays for appealing had clearly expired when it attempted to hold the judgment against CCI in abeyance because of the new trial granted to McCartney Oil. The State offers little in way of argument in its two-page brief except to note the case of T.M. Thurman v. Star Electric Supply, Inc., 283 So.2d 212 (La.1973). Thurman was rendered prior to the amendments to La.Code Civ.P. art. 2087(C) and La.Code Civ.P. art. 2123(B), which essentially allowed all parties an extended period of time in which to appeal when one party files a motion for new trial, even if there are no underlying related issues. See Boyd v. Allied Signal, Inc., 07-1409 (La.App. 1 Cir. 10/17/08), 997 So.2d 111, writ denied, 08-2682 (La.1/16/09), 998 So.2d 105; Rosen v. State ex. rel. Dept. of Transp. and Dev., 01-499 (La.App. 4 Cir. 5/2/01), 785 So.2d 1049. Unfortunately, the State did not avail itself of this opportunity.

The trial court specifically found:

In trying to sort this out, we’ve got three separate entities who have, three separate interests in this property. One is the property owner, the other is the prime lessor, and the third is the subles-sor. And the appeal that was taken is as to one of those parties. And what I’m trying to sort out in my mind as you have argued this, and I’ve looked over the brief, if the Court of Appeals reversed and remanded this matter, could they order a new trial as to the parties who did not 14appeal? Could their rights be taken away and start over, since there was no appeal taken as to them. I don’t think so. I don’t think that the Court of Appeals, the only issue that the Court of Appeals would address would be the issue dealing with the one party out of the three that was, where the Court of Appeals review was sought. So, if you can’t change what has already been awarded by the jury, I think those are separable issues. Those issues have been carved in stone, because they were not appealed. And Mr. Knobloch’s argument was that he’s entitled to come back now and stay this matter and possibly come back and get some new appeal delays running, but I don’t think you can do that. I don’t think you get to take another bite of that apple. So from my analysis of this case, the only thing that is happening now is the two parties against whom the judgment was not appealed are being stonewalled. So, the Court is going to make the Writ of Mandamus absolute in this case with regard to the two parties against whom the appeal was not taken.

It is within the trial court’s discretion to hold a judgment in abeyance, and it chose not to in this case. There is no obvious reason to do so since there are no underlying factual issues that are mutually dependent upon resolution. The State’s entire argument in this regard is:

At the time of the trial the project was under construction and the impact of the project as completed was based in part on the effect of construction activities and not on the effect of the project as planned. The- project is now substantially completed and additional facts with respect to the effect of the project on the remaining improvements may be adduced at trial.

We do not find this argument compelling. A full trial on the merits of this case has already been held. The State further argues that the trial court erred in failing to notify it that neither the August 18, 2010 judgment nor the March 24, 2011 ruling on the motion for new trial/additur would be held in abeyance; therefore, it was properly appealable as a final judgment. This argument fails. Á trial court does not have.a duty to inform the parties of an action it is not taking.

The State failed to appeal the original judgment, and it failed to appeal when the trial court granted the motion for new trial in favor of McCartney Oil. Additionally, the trial court did not err in refusing to hold the August 18, 2010 judgment in abeyance. Accordingly, the trial court did not abuse its discretion in |figranting the writ of mandamus in favor of CCI. The State is ordered to pay CCI the amount due pursuant to the August 18, 2010 judgment.

CONCLUSION

The writ of mandamus issued in favor of the defendant-appellee, CCI Management Corporation, is affirmed, and the State is ordered to pay the sums due to CCI Management Corporation. All costs of this appeal are assessed against the plaintiff-appellant, the State of Louisiana through the Department of Transportation and Development in the amount of $7,613.75.

AFFIRMED.

      . Triangle Property owns the property. It leased a convenience store and retail gasoline station to McCartney Oil, who sub-leased the outfit to CCI. CCI also operated a Subway franchise in connection with the convenience store.

      . The State suspensively appealed from the writ of mandamus. Pursuant to La.R.S. 48:459, the proper procedure in expropriation proceedings is to file a devolutive appeal. Nevertheless, in either case, the time delays for appealing had long expired.


author: TERRI F. LOVE, Judge. BELSOME, J.,

text:
    Lee W. RAND, Jeremy D. Boyce, Keisha M. Guichard, and Edmond J. Harris v. CITY OF NEW ORLEANS.
    No. 2012-CA-0348.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 2012.

      Paul R. Valteau, Jr., Valteau, Harris, Koenig & Mayer, New Orleans, LA, for Appellees/Lee W. Rand, Jeremy D. Boyce, Keisha M. Guichard, and Edmond J. Harris.
    Lee W. Rand, Law Offices of Lee W. Rand, New Orleans, LA, for Appellee/In Proper Person.
    Shawn Lindsay, Assistant City Attorney, Kimlin S. Lee, Churita H. Hansell, James B. Mullaly, Deputy City Attorneys, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, New Orleans, LA, for Appellant/City of New Orleans.
    (Court composed of Chief Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

_[jThis appeal arises from whether the hearings conducted from tickets issued as a result of the traffic cameras installed in Orleans Parish violate due process rights. Lee Rand, Jeremy Boyce, Keisha Guich-ard, and Edmond Harris filed for a preliminary injunction and permanent injunction in the trial court. The trial court found that due process concerns existed and issued a preliminary injunction. The City of New Orleans appealed alleging that the trial court abused its discretion in granting the preliminary injunction because the hearing officers are not employees of the City of New Orleans and do not act as both the prosecutor and judge during the hearing. We find that the hearing officers act as the prosecutor and judge at traffic camera citation hearings and that the hearing officers are compensated by the City of New Orleans, which creates a violation of due process warranting a preliminary injunction. Therefore, we find that the trial court did not abuse its discretion and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The City of New Orleans (“City”), through its Administration and/or City Council enacted a group of ordinances, codified and promulgated as § 154-1701 through § 154-1704, or Article XVII, which created the Automated Traffic ^Enforcement System (“ATES”). Pursuant to ATES, citizens would receive notice of a traffic citation, which contained a photo of the license plate of the automobile, a photo of the automobile, the civil penalty, and the name of the registered owner of the vehicle. The citation would also provide the date, time, and location of the alleged infraction. If the citizen chooses to contest the ATES citation, the citizen must appear before the administrative adjudication bureau for a hearing. During the hearing, the hearing officer presents the evidence collected by ATES, allegedly listens to and accepts evidence from the accused citizen, and then determines the guilt or innocence of the accused citizen.

Lee Rand, Jeremy Boyce, Keisha Guich-ard, and Edmond Harris (collectively “Plaintiffs”) filed a petition for a preliminary and permanent injunction against the City alleging that the process following an ATES citation “violated its ordinances by enacting a law that deprives citizens of their due process rights to a contradictory hearing before an impartial trier of fact.” The Plaintiffs’ supplemental and .amended petition added Donna Klimm, Rudell Reynolds, and Yahia Ben Slimane as additional plaintiffs. All of the Plaintiffs received traffic citations issued pursuant to ATES and chose to attend a hearing to contest the citation.

Following a hearing, the trial court granted the Plaintiffs a preliminary |sinjunction “enjoining, prohibiting, and restraining” the City “from conducting any administrative hearings authorized by the enabling ordinance section 154-1701 et seq.” The trial court then stayed its ruling pending a final resolution with this Court. The City filed a notice and intent to apply for writ, which the trial court granted. However, this Court remanded the matter to the trial court to consider the notice of intent as a motion for appeal. See La. C.C.P. art. 3612. The City’s devol-utive appeal followed.

The City contends that the trial court abused its discretion in granting the Plaintiffs’ request for a preliminary injunction by “finding that there are due process considerations in cases adjudicated by hearing officers who are not City employees but perform impartial adjudicative services for the City pursuant to contracts with the City, when the City has a financial stake in the outcomes of the hearings.”

STANDARD OF REVIEW

“The standard of review for a preliminary injunction is whether the trial court abused its discretion in ruling.” Kern v. Kern, 11-0915, p. 6 (La.App. 4 Cir. 2/29/12), 85 So.3d 778, 781. See also A.M.E. Disaster Recovery Services, Inc. v. City of New Orleans, 10-1755, p. 4 (La.App. 4 Cir. 8/24/11), 72 So.3d 454, 456; Choice Prof'l Overnight Copy Serv., Inc. v. Galeas, 11-0034, p. 5 (La.App. 4 Cir. 5/25/11), 66 So.3d 1216, 1219; A to Z Paper Co., Inc. v. Carlo Ditta, Inc., 98-1417, p. 9 (La.App. 4 Cir. 9/9/98), 720 So.2d 703, 708; Oestreicher v. Hackett, 94-2573, p. 3 (La.App. 4 Cir. 5/16/95), 660 So.2d 29, 31; Hall v. Fertility Inst. of New Orleans, 94-1135, p. 5 (La.App. 4 Cir. 12/15/94), 647 So.2d 1348, 1351. “That broad standard is, of course, based upon a conclusion that the trial court committed no error of law and was not manifestly erroneous or clearly wrong in making a factual finding that was necessary to the proper exercise of its discretion.” Yokum v. Pat O’Brien’s Bar, Inc., 12-0217, p. 7 (La.App. 4 Cir. 8/15/12), 99 So.3d 74, 80.

PRELIMINARY INJUNCTION

“A preliminary injunction is an interlocutory device designed to preserve the existing status pending a trial of the issues on the merits of the case.” Oestreicher, 94-2573, p. 5, 660 So.2d at 32. “[A] preliminary injunction may be issued on merely a prima facie showing by the plaintiff that he is entitled to relief.” Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 03-2220, p. 9 (La.4/14/04), 875 So.2d 22, 29. “The standard of proof to obtain a preliminary injunction on a prima facie showing is, however, ‘less than that required for a permanent injunction.’ ” Yokum, 12-0217, p. 7, 99 So.3d at 80, quoting Historic Restoration, Inc. v. RSUI Indem. Co., 06-1178, p. 11 (La.App. 4 Cir. 3/21/07), 955 So.2d 200, 208.

“[T]he requirements to prevail on a hearing for a preliminary injunction are a showing that: 1) the injury, loss or damage mover will suffer if the injunction does not issue may be irreparable; 2) that he is entitled to the relief sought; and 3) that he is likely to prevail on the merits of the case.” Kern, 11-0915, p. 6, 85 So.3d at 781. “Irreparable injury means the moving party cannot be adequately compensated in money damages for his injury or suffers injuries which cannot be measured by pecuniary standards.” Oestreicher, 94-2573, p. 4, 660 So.2d at 31.

The Louisiana Constitution provides that “[n]o person shall be deprived of life, liberty, or property, except by due process of law.” La. CoNst. art. I, § 2. Our constitution also affords every citizen court access by stating that “[a]ll courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, forj^injury to him in his person, property, reputation, or other rights.” La. Const, art. I, § 22. Additionally, Article II, § 2-202(6) of the Home Rule Charter of the City provides that:

No law shall deprive any person of any rights, privileges, or immunities secured by the Constitution and laws of the United States or the State of Louisiana, nor shall any law discriminate against any person because of race, color, religion, or national origin. No law shall arbitrarily and capriciously or unreasonably discriminate against a person because of birth, disability, sex, sexual orientation, gender identification, culture, language social origin, or political affiliations.

A function of the Department of Public Works is to:

Collect and compile traffic data as directed by the Mayor or by ordinance; prepare engineering studies with regard to vehicular and pedestrian traffic as directed by the Mayor or by ordinance; prescribe regulations governing traffic and parking on streets and other public places; and determine the type, need, and location of all traffic control devices and markings and install, design, construct,. operate, and maintain them.

Art. IV, Ch. 8, § 4-901(4) of the Home Rule Charter. As to inconsistent provisions of ordinances and laws, the City’s Home Rule Charter provides that:

The provisions of all ordinances and other laws which are inconsistent with this Charter shall be superseded by the provisions of this charter at its effective date, except that ordinances that are inconsistent with those provisions of this Charter that require action by the Council to make them effective shall remain in full force until such action is had.

Art. X, § 10-104.

The City contends that the hearing officers’ actions are not controlled by the City because they are independent contractors paid by the City. Further, the City asserts that the hearing officers do not act in a prosecutorial role on behalf of the 1 ^City. Therefore, the City avers that the trial court abused its discretion in granting the Plaintiffs a preliminary injunction.

Section 154-1702(d)(e)(f) of the New Orleans Code of Ordinances provides that:

(d) The civil penalty shall not be assessed if, after a hearing, the hearing officer enters a finding of no liability.
(e) In an administrative adjudication hearing, the issues must be proved at the hearing by a preponderance of the evidence. The reliability of the automated traffic enforcement system used to produce the recorded image of the violation may be attested to in an administrative adjudication hearing by affidavit of a sworn law enforcement officer or the department of public works. An affidavit of a sworn law enforcement officer or from the department of public works that alleges a violation based on an inspection of the pertinent recorded image is admissible in a proceeding under this article and is evidence of the facts contained in the affidavit.
(f) A vehicle owner may prove by a preponderance of the evidence at the hearing that any of the following circumstances apply and thereby qualifies as an affirmative defense to the imposition of civil liability.
(1) The operator of the motor vehicle was acting in compliance with the lawful order or direction of a law enforcement or public safety officer;
(2) The operator of the motor vehicle violated the instructions of the speed limit sign in an effort to move out of the way of an immediately approaching authorized emergency vehicle;
(3) The motor vehicle was being operated as an authorized emergency vehicle under R.S. 32:24, and the operator was acting in compliance with R.S. 32:24;
(4) The motor vehicle was being operated by a person other than the owner of the vehicle without the consent of the owner, express or implied.
(5) The license plate depicted in the recorded image of the violation was a stolen plate and being displayed on a motor vehicle other than the motor vehicle for which the plate had been issued, if at the time of the violation the motor vehicle 17displayed a stolen plate, which must include proof acceptable to the hearing officer to prove that the theft of the vehicle or license plate had been timely reported to the appropriate law enforcement agency.
(6) The person who received the notice of violation was not the owner of the motor vehicle at the time of the violation; or

The hearing officer presents the City’s evidence of the citizen’s alleged traffic infraction by playing a DVD and reading from the citation. Then, section 154-1702(d) clearly demonstrates that the hearing officer is also the- adjudicator of the hearings because he assesses liability. Further, sections 154-1702(e)(f) place the onus onto the citizen to prove his innocence by a preponderance of the evidence.

The Louisiana Supreme Court stated that “there must be some type of neutral and detached decision maker, be it judge, hearing officer or agency.” Wilson v. City of New Orleans, 479 So.2d 891, 901 (La.1985). The Louisiana Supreme Court held that the lack of a “neutral decision maker” “falls short of due process requirements.” Wilson, 479 So.2d at 899. “ ‘[A]n impartial decision maker is essential’ to due process.” Wilson, 479 So.2d at 901, quoting Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970). Further, “[d]ue [p]rocess requires that a decision maker not have a direct or indirect financial stake which would, give a possible temptation to the average person as a decision maker to make him partisan towards maintaining a high level of revenue generated by his adjudicative function.” Wilson, 479 So.2d at 901. “Even if an individual cannot show special prejudice in his particular case, the situation in which an official occupies two inconsistent positions, one partisan and the other judicial, necessarily involves a lack of due process.” Wilson, 479 So.2d at 901-02.

As discussed at the hearing on the preliminary injunction, the City executes |sa contract between itself and each hearing officer. The City then considers each hearing ■ officer as an independent contractor and is paid by the City. The trial court stated: “I think the problem is, is [sic] that the person [sic] is adjudicating the tickets is also compensated by the City.” The trial court further stated:

I think there is an inherent due process problem with the way the administrative hearing system is set up. I have to agree with Mr. Valteau that for the independent contractors, the hearing officers, to be paid by the City who benefits from the fines that are collected is a problem. It’s a constitutional problem.

We agree. The record demonstrates that the hearing officers occupy two inconsistent positions, one as the prosecutor and one as the adjudicator, which violates the right to due process. The denial of due process is irreparable and cannot be compensated monetarily. We find that the trial court did not abuse its discretion because the Plaintiffs presented prima facie evidence that they are entitled to the preliminary injunction and may prevail on the merits. Therefore, we affirm.

DECREE

For the reasons discussed herein, we find that the trial court did not abuse its vast discretion in granting the Plaintiffs’ request for a preliminary injunction due to a denial of due process and affirm.

AFFIRMED

BELSOME, J., concurs with reasons.

BELSOME, J.,

concurs with reasons.

Ill respectfully concur in the result reached by the majority opinion, but write separately to more specifically address the manner in which the hearing procedure implemented by the City violates due process. The fact that the hearing officers are paid by the City may give rise to some concern, but the overriding due process concerns rest with the multiple roles the hearing officer fulfills in the performance of his duties. During the hearings, the hearing officer presents the evidence against the citizen by way of a video tape of the alleged infraction. Further, the hearing officer also elicits a self-incriminating affidavit from the citizen and determines if any further evidence will be allowed. Then, as the trier of fact, the hearing officer presumably weighs the evidence to determine whether the City or the citizen will prevail. I find that this commingling of prosecutorial and adjudicative functions violate the citizen’s constitutional right to due process. See, Allen v. Louisiana State Bd. of Dentistry, 543 So.2d 908 (La.1989).

      . Sec. 154-684. — -Parking adjudication bureau — Creation, provides:
      There is hereby created and established within the chief administrative office of the city, under the supervision of the chief administrative officer, a parking adjudication bureau which shall have jurisdiction of violations of any civil regulations of parking which is provided for in this article. Pursuant to section 4-302(5) of the home rule charter of the city, the chief administrative office may prescribe that the parking adjudication bureau be administered by another department of the city. The chief administrative officer, with the approval of the council, shall contract for the services of a chief hearing examiner and other such hearing examiners who shall preside at hearings for the adjudication of parking violations in this article. The chief administrative officer shall give consideration to persons with Spanish surnames, females, blacks and other minorities in the appointment of the chief hearing examiner and other hearing examiners required by the provisions of this chapter. Each hearing examiner shall be a resident of the parish and shall have been admitted to the practice of law in this state for a period of at least four years immediately preceding his selection. A hearing examiner may be selected from a list of qualified candidates who have satisfied the standards to be established by a duly constituted committee of parish attorneys. Such hearing examiners shall not be considered to be employees of the city.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Troy Ray LEWIS, Appellant.
    No. 48,373-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.

      Louisiana Appellate Project by Peggy J. Sullivan, for Appellant.
    Charles R. Scott, II, District Attorney, Jason T. Brown, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and PITMAN, JJ.
   STEWART, J.

|/The defendant, Troy Ray Lewis, was convicted of possession of crack cocaine, more than 28 grams but less than 200 grams, in violation of La. R.S. 40:967(F)(l)(a), and distribution of crack cocaine, in violation of La. R.S. 40:967(A)(1). For the possession of crack cocaine conviction, the defendant was sentenced to 25 years’ imprisonment, with the first five years without benefit of probation, parole, or suspension of sentence, and fined the mandatory minimum of $50,000.00. For the distribution of cocaine conviction, he was sentenced to 25 years’ imprisonment, with the first two years without benefit of probation, parole, or suspension of sentence, and fined $50,000.00, or ordered 60 days’ imprisonment in lieu of the fine. The trial court ordered that the sentences run concurrently. For the reasons discussed below, we affirm the defendant’s convictions, and affirm his sentences as amended.

FACTS

On August 31, 2010, at approximately 5:15 p.m., a “buy/bust” operation was conducted by the Caddo Parish Sheriffs Office (“the Sheriffs Office”), in conjunction with the Shreveport Police Department (“SPD”). During this operation, Corporal Steve McKenna of the SPD and a confidential informant met with Harry “Red” Scott to buy crack cocaine. The following evidence was adduced at trial.

McKenna, who was wearing a wire at the time of the meeting, testified that Scott, after being asked to secure crack cocaine, stated that he [2needed to contact “his guy.” Scott then walked into 1626 Rex Street, which McKenna presumed was his house. McKenna stated that he believed that Scott made contact with another person.

Shortly thereafter, Scott returned to' McKenna’s truck, climbed into the back of the pickup truck, and directed the confidential informant to drive to a specific intersection. McKenna stated that this location was approximately less than half a mile away, and that Scott told him and the confidential informant to remain in their vehicle. After receiving money from McKenna, Scott exited the vehicle and walked down the street. After McKenna relayed this information to Agent John Witham of the Sheriffs Office, who was the supervisor of the buy/bust operation, he and the confidential informant cautiously followed Scott in their vehicle.

McKenna testified that he witnessed Scott and an African American male engage in a hand-to-hand transaction in the front yard of 282 East Boulevard. McKenna stated that he later identified the African American male as the defendant.

In describing this observation, McKenna stated:

I seen Mr. Lewis cupped his hand and ended up giving an item to Mr. Harry Scott. At that time once he grabs it, looked like the money was also handed to — appeared to be handed to Mr. Lewis, and then he turned around and began walking off.

After returning to the vehicle, Scott handed .5 grams of crack cocaine to McKenna, and was immediately arrested. Based on McKenna’s observation of the drug transaction in the front yard of the residence, a search warrant was secured for the house at 232 East Boulevard.

IsThe search warrant was executed a couple of hours later, at approximately 8:40 p.m. The following persons were present at the location: Connie Lewis, the defendant’s mother and the owner of the home; Willie Mae King, the defendant’s aunt and Ms. Lewis’s sister; Katie Anderson, the defendant’s aunt and Ms. Lewis’s sister; and the defendant. In addition, Donald Harris, a local handyman, and Troy Duray Wallace, the defendant’s son, were in the carport area.

Witham and McKenna were both present during the execution of the search warrant. Witham noted that the defendant was seen exiting the room where the officers found “a pretty good amount of crack cocaine.”

McKenna stated that he made contact with the defendant, while he was lying in the hallway. He testified that he immediately recognized the defendant as the male who gave the crack cocaine to Scott earlier that day in the front yard of the home. McKenna stated that “there was no doubt in his mind,” regarding the defendant’s identity.

The room that the defendant was observed exiting by Witham was searched. According to Witham, the reports stated that a digital scale was found in a shirt pocket. Police also discovered two packages containing a white rock substance in a dresser drawer located in the middle room. Both packages respectively tested positive as crack cocaine. Witham testified that the street value of the crack cocaine was roughly $8,500.00.

|4McKenna testified that he discovered a “document of residency,” namely, a Metro PCS cell phone bill. He explained that “the starter of service request is Troy Wallace at 232 East Boulevard, Shreveport, Louisiana.”

. A search was also conducted of a vehicle on the premises. The vehicle, which Wit-ham described as a truck, was registered to the defendant. Even though the police recovered $1,295.00 in the armrest, none of the money was part of the controlled drug buy made earlier that day with Scott. Furthermore, the buy funds were never recovered.

Bruce Stenz, a forensic chemist with the North Louisiana Crime Laboratory in Shreveport, testified as an expert witness in forensic chemistry and drug analysis. Stenz testified that a total of three plastic packages containing a white substance were submitted for an analysis. These included a package containing 0.5 grams of crack cocaine from the initial transactions, a package containing 54.7 grams, and a package containing 30.32 grams, all of which tested positive for crack cocaine.

Lieutenant Carl Townley, employed by the Caddo Shreveport Narcotics Task Force and lieutenant over the street level interdiction unit and the drug unit commander for the Office, qualified as an expert in undercover techniques, buy/bust operations, search warrant executions, and SRT techniques. He testified that 85 grams of crack cocaine has a street value of $8,500.00, and -that it would be 850 individual units, translating into “850 hits.” He further testified that the amount was not consistent with | ¿¡personal consumption and that no smoking devices were present in the home.

Townley stated that electronic scales were more likely to be in the possession of a drug dealer, as opposed to a “crackhead,” who will generally “take the little rock from the dealer.” He opined that the evidence collected demonstrated a distribution of cocaine, and that the disappearance of the buy funds was normal and depended on how much dope was being sold.

Connie Lewis testified that she had surgery in April of 2010, and that some of her family members would periodically stop by to help her. She also testified that other family members were staying at her house for her family’s annual family reunion that took place during Labor Day weekend.

Ms. Lewis testified that Donald Ray Harris helped her with household chores, and that he was outside of her home when the police entered the residence. She testified that the defendant, and her grandson Troy Wallace, were not staying at her home. She commented that the defendant lived in Texas, and that on the occasions when he did visit, he would normally stay in the “front room” of her home. Mrs. Lewis testified that she did not know whom the crack cocaine belonged to.

Troy Duray Wallace testified that he is currently a college student, that he did not have a criminal record, and that he had been a resident of Texas for 22 years. Wallace testified that he rode with his father, the defendant, to Shreveport to visit his grandmother, who was in poor health. He stated that they traveled in his mother’s car. He identified the vehicle as a Mercedes. Wallace denied that he and his father transported any illegal |fidrugs, and claimed that the money discovered in the vehicle derived from his father’s recently cashed $1,200.00 check from his job at Pilgrim’s Pride.

Wallace testified that he was staying in the middle room of his grandmother’s home. Although there was a dresser in the room, Wallace testified that he had never used' it. Wallace denied being involved in the sale of narcotics, further testifying that he did not own a digital scale, that he had never seen his father with crack cocaine, and that his father has held the same job for several years.

The jury found the defendant gúilty as charged. At the time of the defendant’s sentencing hearing, the previously requested presentence investigation report (“PSI”) had not yet arrived. The defendant insisted that he be sentenced anyway, because “he had been locked up for months” and because “he wanted to move on with his appeal.” Although he didn’t advise it, the judge did inform the defendant that he could sentence him without considering the PSI. The defendant’s attorney stated that without the PSI, he was not prepared for sentencing and requested that a sentencing hearing be held once the PSI was obtained. However, the defendant again demanded that he be sentenced that day, over objections by his attorney, and after being advised of the sentencing ranges and mandatory fíne. Specifically, there was the possibility that the sentences imposed could be run consecutively, and the state could file a multi-bill. Lewis affirmed his decision to waive any delay and a sentencing hearing.

The judge stated that he had considered the sentencing factors found in La. C. Cr. P. art. 894.1, the defendant’s age of 44 years, his current 17convictions, his “priors” as listed on his rap sheet, and the fact that the state could file a habitual offender bill.

For the offense of possession of crack cocaine of more than 28 grams, the defendant was sentenced to 25 years at hard labor, with the first five years without benefit of probation, parole, or suspension of sentence. For the offense of distribution of a Schedule II CDS, the defendant was sentenced to 25 years at hard labor, with the first two years without benefit of probation, parole, or suspension of sentence. The sentences were ordered to run concurrently. In addition, the defendant was ordered to pay $50,000 on each count, or serve an additional 60 days in jail.

On November 5, 2012, the defendant filed a motion to reconsider sentence and asked the court to reduce the terms of imprisonment imposed on each count. The motion was denied on November 9, 2012.

On May 16, 2013, Lewis filed a letter titled “My Brief Letter,” and mailed a second letter on May 23, 2012. Both letters contained allegations amounting to claims of insufficient evidence, an issue more fully addressed in the assignments raised by his appellate counsel, and ineffective assistance of counsel, which he fails to argue.

The defendant now appeals his convictions and sentences.

LAW AND DISCUSSION

Insufficiency of Evidence

In the defendant’s first assignment of error, he asserts that the evidence was insufficient to convict him of possession of a controlled | «dangerous substance of more than 28 grams and possession of that controlled dangerous substance with intent to distribute.

When issues are raised on appeal, both as to the sufficiency of evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833. On appeal, a reviewing court must view the evidence in the light most favorable to the state and must presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. Jackson, supra.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, cert. denied, — U.S.-, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. Direct evidence provides proof of the existence of a fact, for example, a witness’s testimony that he saw or heard something. State v. Lilly, 468 So.2d 1154 (La.1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id. When the conviction is based on circumstantial evidence, La. R.S. 15:438 states:

The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

La. R.S. 15:438 does not establish a stricter standard than Jackson v. Virginia, supra. Rather, it serves as a helpful evi-dentiary guide for jurors in evaluating circumstantial evidence. State v. Major, 2003-3522 (La.12/1/04), 888 So.2d 798.

When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by the evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299. This is not a separate test that applies instead of a 1 insufficiency of the evidence test when circumstantial evidence forms the basis of the conviction. Id. Rather, all of the evidence, both direct and circumstantial, must be sufficient under Jackson to convince a rational juror that the defendant is guilty beyond a reasonable doubt. Id.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

The fact finder is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Eason, supra; State v. Casey, 99-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

La. R.S. 40:967(F)(l)(a) provides:

a. Any person who knowingly of intentionally possesses twenty-eight grams or more, but less than two hundred grams, Inof cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars.

La. R.S. 40: 967(A)(1) states:

A. Manufacture; distribution. Except as authorized by this Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II;

To support a conviction for possession of a CDS the .state must prove the defendant was in possession of the illegal drug and that he knowingly possessed the drug. The state need not prove that the defendant was in actual physical possession of the drugs found; constructive possession is sufficient to support a conviction. State v. White, 37,261 (La.App.2d Cir.6/25/03), 850 So.2d 987; State v. Matthews, 552 So.2d 590 (La.App. 2d Cir.1989), writ denied, 559 So.2d 137 (La.1990). Constructive possession is defined as having an object subject to one’s dominion and control, with knowledge of its presence, even though it is not in one’s physical possession. State v. Mingo, 42,407 (La.App.2d Cir.9/19/07), 965 So.2d 952; State v. White, supra. The mere presence of someone in the area where the CDS is found, or the mere association with the person found to be in possession of it is insufficient to constitute constructive possession. State v. Harris, 94-0970 (La.12/8/94), 647 So.2d 337. Guilty knowledge is an 112essential element of a possession charge, and such knowledge may be inferred from the circumstances. State v. Robbins, 43,129 (La.App.2d Cir.3/19/08), 979 So.2d 630; State v. Taylor, 39,651 (La.App.2d Cir.4/6/05), 900 So.2d 212.

A determination of whether the defendant was in possession depends on the “peculiar facts” of each case, which may include the following: (1) the defendant’s knowledge that the contraband is in an area; (2) his relationship with the person found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug use; and (5) the defendant’s physical proximity to the contraband. State v. Robbins, supra; State v. Taylor, supra. Further, a defendant may have constructive possession if he willfully and knowingly shares the right to control the contraband with another. Id.

Five factors have been identified as useful in determining whether circumstantial evidence is sufficient to prove intent to distribute CDS. The factors include: (1) whether the defendant ever distributed or attempted to distribute the controlled dangerous substances; (2) whether the drug was in a form usually associated with possession for distribution to others; (8) whether the amount of the drug creates an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of the drug found in the defendant’s possession is inconsistent with personal use; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute. State v. Cummings, 46,038 (La.App.2d Cir.1/26/11), 57 So.3d 499, writ denied, 2011-0341 (La.6/17/11), 63 So.3d 1037.

Testimony of street value and dosage of the drug is also relevant to the issue of intent to distribute. State v. Gladney, 29,791 (La.App.2d Cir.9/24/97), 700 So.2d 575. Mere possession of contraband does not amount to evidence of intent to distribute “unless the quantity is so large that no other inference is possible.” State v. Greenway, 422 So.2d 1146 (La.1982).

La. C.E. art. 701 permits a law enforcement officer to express an opinion regarding matters of personal knowledge gained through experience, even if the witness is not first qualified as an expert. State v. Lowery, 609 So.2d 1125 (La.App. 2d Cir.1992), writs denied, 617 So.2d 905 (La.1993).

The record supports the defendant’s conviction for both offenses. In determining whether the defendant distributed the .5 grams, the jury heard the testimonies of Officers McKenna and Wit-ham. Based on these officers’ personal knowledge gained through experience, the jury found them to be credible in their accounts of the drug buy.

McKenna testified that he used Scott to get some crack cocaine, and that Scott stated that he needed to contact his supplier. Soon thereafter, he witnessed Scott engage in a hand-to-hand transaction with the defendant, during which he handed “an item” to Scott. McKenna further testified that Scott immediately returned to the vehicle and gave him .5 grams of crack cocaine.

| MLater that day, both McKenna and Witham observed the defendant inside the house, and within close vicinity of the bedroom where the packages of crack cocaine and electronic scales were discovered. Witham stated that he observed the defendant coming out of the room where the cocaine was found. After reviewing the record, we find that the essential elements of the crime of distribution of a controlled dangerous substance, namely crack cocaine, were proven beyond a reasonable doubt.

With regard to the constructive possession of the cocaine packages, the state presented evidence that the defendant was seen emerging from the bedroom where the drugs were found. This fact, combined with the fact that he had been seen selling crack cocaine outside the house earlier in the day, provided sufficient evidence from which the jury could have found, beyond a reasonable doubt, that the crack cocaine was subject to the defendant’s dominion and control. Furthermore, the jury’s decision to believe Wallace’s denial of knowledge of the cocaine must be given great weight. With respect to intent to distribute, Townley testified that 85 grams of crack cocaine has a street value of $8,500.00, that it would be 850 individual units, translating into “850 hits.” He noted that this amount was not consistent with personal use and that no smoking devices were present in the home.

After a careful review of the record, we find that the testimony and evidence presented overwhelmingly satisfied the state’s burden of proving the essential elements of the charged offenses of possession of more than 28 grams of a Schedule II CDS, crack cocaine, and possession of a Schedule II |lsCDS, crack cocaine, with the intent to distribute. Accordingly, this assignment of error is without merit.

Excessiveness of Sentence

In the second assignment of error, the defendant asserts that the sentences imposed are harsh and constitutionally excessive. More specifically, he asserts that the trial court imposed near-maximum sentences on each count without the benefit of a PSI.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. McCall, 37, 442 (La.App. 2 Cir. 8/20/03), 852 So.2d 1162, writ denied, 04-0039 (La.12/17/04), 888 So.2d 858. On review, the appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

In reviewing claims of an excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reveals that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,633 (La.App.2d Cir.11/3/10), 55 So.3d 56.

The articulation of the factual basis for a sentence is' the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence | ^imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (his age, family ties, marital status, health, employment record), criminal history, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, supra.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless' infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A trial court has broad discretion in sentencing offenders. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App.2d Cir. 11/3/10), 55 So.3d 90.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the .worst offenses. State v. Young, 46,575 (La.App. 2 Cir. 9/21/11), 73 So.3d 473; State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665.

As we stated in the previous assignment, La. R.S. 40:967(F)(l)(a) states that a person convicted of possession of crack cocaine “shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars.” | i7Pursuant to La. R.S. 40: 967(A)(1), a person convicted of distribution of crack cocaine “shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more, than fifty thousand dollars.”

In this case, the defendant was sentenced to 25 years’ imprisonment at hard labor, the first five years being without benefits, and the mandatory minimum fine of $50,000, for his conviction of possession of crack cocaine more than 28 grams. He was also sentenced to 25 years’ imprisonment at hard labor, the first two years being without benefits, and the optional maximum fine of $50,000. These sentences were ordered to be served concurrently. We note that both of these sentences are within the.sentencing guidelines.

As we stated in the facts portion of this opinion, the defendant was sentenced without the benefit of a PSI. The defendant did insist that the trial court proceed without reviewing the PSI, even after the trial court and defense counsel advised the defendant to wait for the PSI. The defense attorney even objected to the defendant being sentenced that day, after expressing that he was not prepared for sentencing without it: '

Your Honor, the last we were here, we were still waiting on a PSI, which I had not received. And I know the State was attempting to find some information about priors. And without looking at those, I’m not prepared, and neither is Mr. Lewis, for a sentencing today. I probably would request a hearing after viewing those documents anyway.

| ^Despite the insistence of the defendant, the trial court should have used its discretion and postponed sentencing until after it had the opportunity to review the PSI, and after a sentencing hearing.

The defendant was informed that he could potentially be sentenced to 30 years for each count,-for a total of 60 years, if given consecutive sentences. Additionally, the trial court stated that portions of the sentences would be served without benefits, and that the state could possibly file a habitual offender bill. The record indicates no articulation of aggravating or mitigating circumstances. Further, there was no consideration of the defendant’s personal history, family history, or employment history.

We note that the trial court was able to discern, from the defendant’s rap sheet, that he had other drug charges pending and at least one felony conviction. After considering the defendant’s sentencing exposure, we nevertheless find that the trial court’s sentencing method was not manifestly erroneous. In future cases similar to this one, we caution the trial court not to sentence a defendant in the absence of a PSI and a sentencing hearing.

Considering the defendant’s maximum sentence exposure of 60 years’ imprisonment, coupled with a potential $200,000 fine, we find that his imposed sentence was not harsh. However, an indigent defendant cannot be subjected to default time in lieu of the payment of a fine, costs, or restitution. State v. Davenport, 43,101 (La.App.2d Cir.3/19/08), 978 So.2d 1189, twit denied, 2008-1211 (La.1/30/09), 999 So.2d 748; State v. Mack, 30,832 (La.App.2d Cir.6/24/98), 715 So.2d 126. A defendant’s claim of indigence in such a situation may be discerned from the record. State v. Williams, 484 So.2d 662 (La.1986); State v. Kerrigan, 27,846 (La.App.2d Cir.4/3/96), 671 So.2d 1242. Where a defendant is represented by the Indigent Defender’s Office, a court-appointed attorney, and the Louisiana Appellate Project, this court has considered it error for a trial court to impose jail time for failure to pay court costs. Kerrigan, supra. In the context of disposition of this claim, this court may choose to amend the defendant’s sentence. State v. Tillman, 43,569 (La.App.2d Cir.10/22/08), 997 So.2d 144. In the instant case, it appears that the defendant is indigent. He was represented at trial by a public defender and represented on appeal by the Louisiana Appellate Project. Accordingly, the portion of the defendant’s sentence ordering jail time in default of payment of his fines is vacated.

CONCLUSION

For the reasons discussed throughout this opinion, we affirm the defendant’s convictions, and amend his sentences to delete the portion ordering jail time in default of payment of fines.

AFFIRMED AS AMENDED.

      . The defendant’s son, Troy Duray Wallace, was similarly charged despite little evidence implicating him. The defendant and Wallace were jointly tried before a jury; Wallace testified, and was found not guilty.

      . The record is void of any information regarding where the shirt was located, or the identity of the owner of the shirt. Witham testified only that “they found the scale first,” that this discovery intensified their search, and that "within a minute after we found the scale, we found the crack.”