author: HANS J. LILJEBERG, Judge.

text:
    STATE of Louisiana v. Raymond E. MELANCON.
    No. 14-KA-221.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Vincent J. Paciera, Jr., Thomas Sanderson, Assistant District Attorneys, Gretna, Louisiana, for The State of Louisiana.
    Raymond E. Melancon, Angola, Louisiana, Defendant/Appellant.
    Cynthia K. Meyer, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| ¡¡Defendant, Raymond E. Melancon, appeals his convictions and sentences for distribution of heroin, possession with intent to distribute heroin, and possession of a firearm by a convicted felon. For the following reasons, we affirm.

PROCEDURAL HISTORY

Defendant was charged by bill of information with distribution of heroin, a violation of La. R.S. 40:966(A) (count two); possession with intent to distribute heroin, a violation of La. R.S. 40:966(A) (count three); and possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 (count four). He pled not guilty to all charges. A jury trial was held, and the jury found defendant guilty as charged on all counts.

The trial court sentenced defendant as follows: 30 years at hard labor on count two, with five years to be served without benefit of probation or suspension of sentence; 30 years at hard labor on count three, with five years to be served without benefit of probation or suspension of sentence; and 20 years at hard labor |4on count four to be served without benefit of parole, probation, or suspension of sentence. All sentences were ordered to run concurrently.

Thereafter, the State filed a multiple offender bill of information, and after a hearing, defendant was adjudicated a third felony offender. The trial court vacated the previous sentence on count two and re-sentenced defendant under La. R.S. 15:529.1 to 40 years at hard labor without benefit of probation or suspension of sentence.

FACTS

At trial, Detective Gary Barteet testified that in September of 2012, he was working in the narcotics division of the Jefferson Parish Sheriffs Office,- and he received information that caused him to conduct an investigation of defendant. Surveillance was established, and defendant was seen going to what the officers refer to as “neutral locations,” such as shopping centers, fast food restaurants, and busy parking lots. Detective Barteet testified that drug dealers and drug users often meet in these neutral locations in order to conduct drug transactions. The police also observed that defendant went to an apartment complex at 650 Bellemeade frequently enough for the surveillance team to believe that he had access there, although a particular apartment was not identified.

On September 28, 2012, while conducting surveillance, Detective Barteet saw defendant driving a gray Chevrolet truck in the 1500 block of Lapalco Blvd. in Harvey, Louisiana, near a Popeye’s restaurant. Detective Barteet watched defendant to see if he was just eating or if he was doing anything suspicious. Defendant never entered a business; rather, he moved from one position to another inside the parking lot and just parked. Based on that information, Detective Barteet contacted his superiors and told them that he believed a potential narcotics transaction would occur, but he left before any transaction took place.

IsBrook Franklin testified that she knew defendant through a mutual friend, that they “hung out” together, and that she bought drugs from him. On September 28, 2012, Ms. Franklin called defendant when she got off of work and defendant told her to meet him at the Domino’s Pizza near her home. Ms. Franklin drove to the location in her Toyota Corolla with a friend in the front passenger seat. Upon arriving, defendant waved her down after exiting Popeye’s, which was near Domino’s, and then got into the back seat of Ms. Franklin’s ear. Ms. Franklin moved to the driver’s side back seat and purchased “a bag” from defendant. Defendant then walked away and Ms. Franklin left in her car.

Soon after meeting with defendant, Ms. Franklin was pulled over by an unmarked police car. Two officers approached her car and ordered her out of her vehicle. Ms. Franklin complied. She attempted to hide the bag she had just bought but was unsuccessful; it “rolled down” and the officers picked it up. The officers also found paraphernalia in the car, a spoon, which was in “open view.”

Ms. Franklin testified that she had been charged with possession of heroin in relation to this case and was in the State’s diversion program, but she said she had not been provided a “deal” by the State in exchange for information or testimony.

Detective Patrick Evans testified that he was employed by the Jefferson Parish Sheriffs Office on September 28, 2012, when he received a call to assist a narcotics unit in an investigation. Pursuant to the instructions given to him, Detective Evans stopped a Toyota- Corolla, which was occupied by two white females, on Bannerwood just off of Lapalco. When Detective Evans and another officer approached the vehicle, Detective Evans saw a metal spoon in the car, which he knew was commonly used to cook heroin before loading it into a syringe. At that time he asked the driver, Brook Franklin, to exit the vehicle. When she stepped out of the car, a clear plastic bag containing a brown powder substance he ^believed to be heroin fell to the ground from her lap. Ms. Franklin was placed in handcuffs and advised of her rights. Ms. Franklin told Detective Evans that she had purchased the heroin “from a black male named Ray from the Popeye’s at Manhattan and La-palco.”

Agent Christy Clement of the Jefferson Parish Sheriffs Office testified that on September 28, 2012, she participated in the investigation of defendant. She saw a vehicle pull up and defendant exit the Popeye’s and get into the rear passenger side of the vehicle. The driver, Brook Franklin, exited the driver’s side and got into the rear driver’s side of the car. Thirty seconds to one minute later, Ms. Franklin got out of the car and back into the driver’s seat and appeared to be putting something in her pocket. Defendant then exited the vehicle and walked into the Domino’s while Ms. Franklin left in her car. From her position, Agent Clement could not see exactly what Ms. Franklin put into her pocket, but based upon her past experience it appeared to be a narcotics transaction. Agent Clement testified that defendant was taken into custody at the Domino’s location after a brief struggle.

Agent Clement also participated in the interview of Brook Franklin. Ms. Franklin was advised of her Miranda rights, and Ms. Franklin indicated that she wished to waive her rights and cooperate. Ms. Franklin then told Agent Clement that she had purchased heroin from defendant on several occasions. She stated that she sometimes purchased it from him at an apartment on Bellemeade and she was aware of the location of the apartment. Ms. Franklin also said that defendant had 50 to 100 bags of heroin with him when she bought heroin from him that day. When questioned about defendant not having anything on his person when he was arrested, Ms. Franklin said that she may have been confused because she had also [ ^purchased from defendant earlier in the day. Ms. Franklin described defendant’s vehicle and later pointed out defendant’s apartment to police while still in custody after physically travelling to the location.

After defendant was arrested, Detective Barteet learned that defendant was attempting to have family members remove items from his apartment and retrieve' money for his bond. Detective Barteet obtained a search warrant for 650 Belle-meade, Apartment 4-K, because this apartment had been identified as belonging to defendant.

During execution of the search warrant, several items were discovered, including a nine millimeter semi-automatic pistol with a loaded magazine, a gun case with spare magazines, various documents in the name of Raymond Melancon, two clear plastic bags with brownish powder that tested positive for heroin, one larger clear plastic bag with brownish powder that tested positive for heroin, a digital scale with brownish powder residue, a bottle of GNC inositol, a blender with brownish powder residue, a Samsung cell phone, and $20,000.00 in U.S. currency.

Margie Barfield testified that she was the property manager of Bellemeade Apartments, that her office was on the premises, and that she also resided in the apartment complex. She was generally familiar with the “comings and goings” of people who rent the apartments. Danielle McGinnis was the leaseholder for Apartment 4-K and defendant was listed as her employer. However, during the six-month rental period from May 1, 2012 through October 31, 2012, Ms. Barfield only saw Ms. McGinnis three times: when she applied for the apartment, when she signed the lease, and when she gave notice that the apartment would be vacated. ^During the entire term of the lease, Ms. Barfield never saw anyone “drop by that apartment other than' the defendant.” She also saw defendant driving vehicles that were listed on the parking registration for Apartment 4-K.

LAW AND DISCUSSION

Defendant has filed a counseled brief setting forth four assignments of error, and a pro se brief setting forth three assignments of error.

In his second counseled assignment of error, defendant argues that the evidence was insufficient to support the verdict on count two, distribution of heroin. In his third counseled assignment of error, defendant contends that the evidence was insufficient to support the verdict on count three, possession with intent to distribute heroin, and count four, possession of a firearm by a convicted felon.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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 beyond a reasonable doubt. See State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Under the Jackson standard, a review of a criminal conviction record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. State v. Flores, 10-651, p. 6 (La.App. 5 Cir. 5/24/11), 66 So.3d 1118, 1122. Rather, the reviewing court must decide whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.; State v. Holmes, 98-490, p. 3 (La.App. 5 Cir. 3/10/99), 735 So.2d 687, 690.

It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442, 443. The trier of fact shall evaluate credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Bradley, 03-384, p. 5 (La.App. 5 Cir. 9/16/03), 858 So.2d 80, 84, writ denied, 03-2745 (La.2/13/04), 867 So.2d 688. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. State v. Caffrey, 08-717, p. 5 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams, 05-59, p. 5 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 833. In other words, circumstantial evidence is evidence which proves a fact, and from that fact one may indirectly but reasonably and logically conclude another fact which is sought to be proven. State v. Le, 13-314, p. 9 (La.App. 5 Cir. 12/12/13), 131 So.3d 306, 313.

When circumstantial evidence is used to prove the commission of an offense, La. R.S. 15:438 provides that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” State v. Wooten, 99-181, p. 4 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. Id. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

COUNT TWO

Defendant was convicted in count two of distribution of heroin, a violation of La. R.S. 40:966(A). A defendant is guilty of distribution of heroin when he transfers possession or control of heroin to his intended recipient. See La. R.S. 40:961(14).

On appeal, defendant does not dispute that the substance Brook Franklin was arrested with was, in fact, heroin. Instead, he challenges whether the State proved that he transferred possession or control of the heroin to Ms. Franklin.

At trial, Detective Gary Barteet testified that on September 28, 2012, he saw defendant driving in a parking lot on Lapalco. Defendant never entered a business but ultimately moved from one position to another inside the parking lot and just parked. Brook Franklin testified that she knew defendant and had previously purchased drugs from him. She further testified that on September 28, 2012, she had contact with defendant for the purpose of purchasing drugs, and defendant told her to meet him at a specific location. Upon arriving, defendant got into her car and she purchased “a bag” from him. Ms. Franklin stated that she did not have any heroin, either on her person or in her car, before defendant got into her car. Agent Clement witnessed the interaction between defendant and Ms. Franklin. Agent Clement testified that, based upon her past experience, it appeared to be a narcotics | ntransaction. Officers subsequently detained Ms. Franklin, at which time heroin was discovered in her possession.

Defendant argues that none of the officers who testified at trial could say definitively whether he was in possession of heroin when he entered Ms. Franklin’s vehicle. Defendant attacks Ms. Franklin’s credibility on the basis that she was using heroin at the time she gave the statement identifying defendant as the person who sold her the drugs. He also contends that Ms. Franklin was not credible, because although she claimed that she was not given a “deal” by the State in exchange for her testimony, she was placed in a diversion program and the charges against her for possession of heroin were dismissed.

The jury heard evidence of Ms. Franklin’s drug use both during and after her arrest. It also heard that Ms. Franklin was placed in a diversion program. When the issue of a witnesses’ drug use is brought before the jury by a defendant, it is within the jury’s discretion to believe or not believe the evidence presented to discredit that witness. See State v. Alexander, 12-836 (La.App. 5 Cir. 5/23/13), 119 So.3d 698, writ denied, 13-1981 (La.3/21/14), 135 So.3d 614.

In the present case, the jury apparently found Ms. Franklin’s testimony credible in spite of the testimony about her drug use and the diversion program. Considering the entire record before us, we find that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that defendant distributed heroin to Ms. Franklin. This assignment of error is without merit.

COUNT THREE

Defendant was convicted in count three of possession with intent to distribute heroin, a violation of La. R.S. 40:966(A). To prove this offense, the State was required to show defendant knowingly and intentionally possessed | ^heroin and that he did so with the specific intent to distribute it. See State v. Jones, 11-8, pp. 5-6 (La.App. 5 Cir. 11/15/11), 78 So.3d 274, 279, unit denied, 11-2781 (La.4/13/12), 85 So.3d 1246; State v. Collins, 09-283, p. 6 (La.App. 5 Cir. 12/8/09), 30 So.3d 72, 77, unit denied, 10-0034 (La.9/3/10), 44 So.3d 696.

Possession of a controlled dangerous substance may be established by actual physical possession or by constructive possession. State v. Major, 03-3522, p. 7 (La.12/1/04), 888 So.2d 798, 802. A person not in physical possession of a drug may have constructive possession when it is established that the drug is under that person’s dominion or control. State v. Washington, 11-716, p. 8 (La.App. 5 Cir. 3/13/12), 90 So.3d 1157, 1162.

It is not contested that the substance found at 650 Bellemeade, Apartment 4-K, was heroin. Rather, defendant argues that the State failed to produce sufficient evidence to link him to the Bellemeade apartment.

At trial, the State presented evidence that defendant resided in and/or used the apartment in connection with drug distribution. Police officers asked Ms. Franklin where defendant lived and she guided them to the apartment complex, pointing out a specific apartment. Ms. Franklin said she had been to defendant’s apartment on several occasions to purchase and use drugs. Margie Barfield, property manager of Bellemeade Apartments, saw defendant on several occasions driving vehicles that were listed on the parking registration for Apartment 4-K. During the entire term of the lease, Ms. Barfield never saw anyone “drop by that apartment other than the defendant.” Detective Barteet testified that during the surveillance of defendant, police officers saw defendant visit the apartment complex at 650 Bellemeade frequently enough for the surveillance team to. believe that he had access there, although a particular apartment was not identified. Additionally, the search warrant executed for 650 Bellemeade, Apartment 4-K, | ^yielded several items including various documents in the name of Raymond Melancon.

The evidence shows that defendant had access to the apartment and often used it in connection with drug distribution. Based on the foregoing testimony and evidence, we find that the State presented sufficient evidence to prove that defendant exercised dominion and control over the heroin in the apartment and thus, he constructively possessed it.

Next, the State was required to show that defendant had the specific intent to distribute the heroin. La. R.S. 14:10(1) defines specific criminal intent as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” The intent to distribute may be established by proving circumstances surrounding the defendant’s possession, which give rise to reasonable inferences of intent to distribute. Jones, 11-8 at 6, 78 So.3d at 279. Factors that may give rise to a reasonable inference that a defendant had the specific intent to distribute include the following: 1) previous attempts to distribute, 2) whether the drug was in a form consistent with distribution to others, 3) the amount of the drug, 4) expert or other testimony showing the amount found in the defendant’s possession to be inconsistent with personal use only, and 5) paraphernalia evidencing an intent to distribute. Id.

Drug paraphernalia, such as a scale, is evidence that the defendant possessed with intent to distribute drugs. State v. Trahan, 425 So.2d 1222, 1225 (La. 1983). Further, possession of large sums of cash and possession of weapons may also be considered evidence of the intent to distribute. See State ex rel. B.L., 02-923, p. 4 (La.App. 5 Cir. 1/28/03), 839 So.2d 246, 248. In the absence of circumstances from which an intent to distribute may be inferred, the mere possession of drugs |14does not evidence the intent to distribute, unless the quantity is so large that no other inference is possible. State v. Henry, 08-658, p. 10 (La.App. 5 Cir. 10/27/09), 27 So.3d 935, 943, writ denied, 09-2485 (La.4/23/10), 34 So.3d 269.

In the present case, we note that the State presented evidence at trial that defendant had a prior conviction for possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A), in case number 01-6313 of the 24th Judicial District Court. Next, we find that the testimony of Detective Barteet and the State’s exhibits establish that a large amount of heroin was found in the apartment and there was an absence of paraphernalia indicative of usage, such as spoons or syringes. Evidence removed from the apartment also included tools used in the packaging and distribution of narcotics, such as a scale, inositol powder, and a blender. Additionally, defendant’s apartment contained a large sum of cash, $20,000.00, and a nine millimeter semi-automatic pistol.

Based on all of the testimony and evidence presented, we find that the State established that defendant had the specific intent to distribute the heroin found in the apartment. Accordingly, the State presented sufficient evidence to support defendant’s conviction for possession with intent to distribute heroin.

COUNT FOUR

Defendant was convicted in count four of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. In order to convict a defendant of illegal possession of a firearm by a convicted felon, the State must prove beyond a reasonable doubt that the defendant had (1) possession of a firearm, (2) a prior conviction for an enumerated felony, (3) an absence of the ten-year statutory period of limitation, and (4) the general intent to commit the offense. See La. R.S. 14:95.1; State v. Jones, 09-688, p. 6 (La.App. 5 Cir. 2/9/10), 33 So.3d 306, 314. Actual possession of a firearm is not necessary to prove the possession element of |1BLa. R.S. 14:95.1. Id. Constructive possession is sufficient to satisfy the element of possession. Jones, supra. A person is in constructive possession of a firearm if the firearm is subject to his dominion and control. Id., 09-688 at 6-7, 33 So.3d at 314.

On appeal, defendant does not dispute that the State established a prior felony conviction or the requisite ten-year statutory period of limitations. Instead, defendant argues that the State failed to present evidence that defendant possessed the weapon and that he had the requisite intent to possess it.

In our discussion pertaining to defendant’s conviction on count three, we noted the substantial evidence linking defendant to Apartment 4-K at 650 Bellemeade. Just as defendant had constructive possession of the heroin found at the apartment, we also find that he had constructive possession of the firearm found at the apartment.

Defendant argues that the evidence presented failed to exclude every reasonable hypothesis of innocence with respect to the firearm charge. Specifically, he points out that the record shows that detectives never questioned previous tenants of the apartment about the gun; it was not established who, if anyone, had access to the apartment between the time of defendant’s arrest and the execution of the search warrant; and it was not conclusively shown that a fingerprint on the gun matched that of defendant.

In State v. Captville, 448 So.2d 676 (La.1984), the Louisiana Supreme Court noted that a reviewing court does not determine whether another possible hypothesis has been suggested by defendant which could explain the events in an exculpatory fashion. Rather, the reviewing court evaluates the evidence in the light most favorable to the prosecution and determines whether the alternative hypothesis is sufficiently reasonable that a rational juror could not “have found proof of guilt beyond a reasonable doubt.” Id.

|1fiIn the instant case, based on the evidence viewed in the light most favorable to the prosecution, we find that the jury’s verdict on count four was reasonable. With all other elements of the offense conceded as proven by the State, the evidence also showed that defendant had regular access to the apartment where the firearm was found. Although defendant suggests that another person could have planted the gun in the apartment or that a previous tenant may have left it there, no evidence has been provided to support these theories. Thus, the jury reasonably rejected defendant’s version of events and found that the elements of La. R.S. 14:95.1 were proven beyond a reasonable doubt. This assignment of error is without merit.

In his first counseled assignment of error and second pro se assignment of error, defendant argues that the trial court erred in denying his motion to suppress the evidence retrieved from the apartment. Defendant argues that the affidavit in support of the search warrant contained several factual inconsistencies, was deficient generally, and was based upon unreliable information. Conversely, the State asserts that the issuing judge had a substantial basis for concluding that probable cause existed, based upon the totality of the information provided.

In determining whether the trial court’s ruling on a defendant’s motion to suppress is correct, an appellate court is not limited to the evidence adduced at the suppression hearing but may also consider the evidence presented at trial. State v. Huntley, 08-125, p. 6 (La.App. 5 Cir. 5/27/08), 986 So.2d 792, 796. A trial court’s determination on the motion to suppress should not be disturbed on appeal, unless it is clearly wrong. State v. Addison, 08-461, p. 12 (La.App. 5 Cir. 2/10/09), 8 So.3d 707, 716.

Under La.C.Cr.P. art. 162, “[a] search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a 117credible person, reciting facts establishing the cause for issuance of the warrant.” This article requires that the facts establishing probable cause be recited in the affidavit because it is the judge, not the affiant, who must be satisfied as to the existence of probable cause. State v. Clement, 11-1150, p. 11 (La.App. 5 Cir. 9/11/12), 101 So.3d 460, 468, writ denied, 12-2214 (La.4/1/13), 110 So.3d 139. The facts establishing probable cause for the warrant must be contained within the four corners of the affidavit. State v. Green, 02-1022, p. 8 (La.12/4/02), 831 So.2d 962, 969.

In the present case, Detective Barteet’s affidavit, submitted in support of a search warrant for defendant’s apartment at 650 Bellemeade Boulevard, Apartment 4-K, provides that following an anonymous tip that specifically identified defendant by name, address and date of birth, the Jefferson Parish Sheriffs Office established surveillance of defendant for alleged distribution of heroin. The affidavit states that defendant had four convictions for violations relative to illegal nar-cotíes possession and distribution. During surveillance, defendant was observed conducting a drug transaction; the buyer, Brook Franklin, was stopped and confirmed the sale of heroin to her by defendant. Defendant was subsequently arrested. On October 1, 2012, a reliable source of information told Detective Barteet that defendant was concealing a large sum of cash at his residence. During prior surveillance of defendant, agents had followed defendant to an apartment at 650 Belle-meade Boulevard in Gretna. A confidential source advised that defendant maintained a residence at that location. Based on the surveillance, the documented sale of heroin by defendant, as well as the information that he had hidden a large sum of money and the “totality of the investigation into Melancon’s distribution of heroin,” agents believed that defendant was concealing additional quantities of heroin and currency inside the residence. Agents confirmed | ^defendant’s residence at Apartment 4-K at 650 Bellemeade Boulevard. Finally, the affidavit provides that defendant’s car, identified by make, model, and license plate, was registered to the apartment; agents also confirmed that defendant had made monthly rent payments as well.

At the hearing on defendant’s motion to suppress, Detective Barteet admitted that there may have been a one day error in his affidavit which said that the hand to hand transaction took place on September 27, 2012, when it had, in fact, taken place on September 28, 2012. Also, Detective Barteet admitted that while he used the term “hand-to-hand transaction” in his affidavit, he did not actually witness a hand-to-hand transaction; rather, he saw evidence indicative of such a transaction. Detective Barteet testified that the person who purchased the drugs from defendant confirmed that it was a hand-to-hand transaction. With respect to the person who provided information that defendant had a large sum of currency in his apartment, Detective Barteet indicated in his affidavit that it was a reliable source.

At the conclusion of the hearing, the trial court denied defendant’s motion to suppress, finding that based on the affidavit in support of the search warrant, the magistrate had a substantial basis for concluding that probable cause existed for the issuance of the search warrant. We agree with the trial court.

Although there were some inconsistencies and incorrect statements in his affidavit, Detective Barteet confirmed that everything in his application for the search warrant was correct to the best of his knowledge. The information presented in the affidavit provided probable cause for the issuance of the search warrant. Based on the testimony and evidence presented, we find that the trial court did not err in denying defendant’s motion to suppress. This assignment of error is without merit.

|iaIn defendant’s fourth counseled assignment of error and first pro se assignment of error, he asserts that the trial court erred in denying his request for a mistrial. Defendant argues that Detective Barteet’s testimony that defendant instructed someone to remove drugs from the apartment “fatally tainted” the jury, and therefore, the trial court erred in failing to grant his motion for mistrial.

At trial, a recording of a phone call made by defendant while in jail was played for the jury. Thereafter, during cross-examination of Detective Barteet, the following exchange took place between defense counsel and Detective Barteet.

DEFENSE COUNSEL:

Okay. And you — you don’t know — you don’t know, of your own personal knowledge, and your investigation doesn’t know who placed those people — those items in the apartment?
DET. BARTEET:
Well there — there’s a jail conversation. Obviously it’s not on there. That he speaks of something in the rice dish after we went in with a search warrant, and—
DEFENSE COUNSEL:
Now there’s nothing — there’s nothing— in the — in the phone calls that — that were—
DET. BARTEET:
There is something in the phone calls. It just might not be on that disc. You asked me my personal knowledge. I listened to a call where he talks to a female person about the police finding stuff in a rice dish. That’s where the largest bag of heroin was.

Immediately following Detective Bar-teet’s response, defense counsel requested a bench conference and objected to the testimony on the basis that he had never heard the telephone conversation that Detective Barteet was referring to. The Court stated:

THE COURT:
Well, you [defense counsel] asked him a question, and he answered — and he answered that he personally heard it, so it’s overruled. That doesn’t mean — the State said that they’re going to try and find that call by tomorrow for you, and I hope that that happens.
DEFENSE COUNSEL:
Okay.

Thereafter, defense counsel asked Detective Barteet whether he had heard defendant refer to drugs or a firearm in the telephone conversation played for the jury, to which Detective Barteet replied that he had not.

On the second day of trial, counsel for defendant stated that he had reviewed two phone call recordings of defendant and a “very close friend” and that these recordings were inconsistent with Detective Bar-teet’s testimony that defendant told.someone by phone to “remove the drugs from the rice.” The State replied that the tape in question had not yet been located and that it had not yet rested. The trial court denied the motion for a mistrial, noting that Detective Barteet’s comment about the phone call was brought out on cross-examination at the urging of defense counsel who asked Detective Barteet what evidence he had that defendant knew the drugs were in the apartment.

On' appeal, defendant argues that the trial court erred in denying his motion for mistrial. The law pertaining to motions for mistrial is set out in La.C.Cr.P. arts. 770 and 771. La.C.Cr.P. art. 770 provides in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;

La.C.Cr.P. art. 771 states:

|21In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

In State v. Kimble, 375 So.2d 924, 928 (La.1979), the Louisiana Supreme Court held that “the state cannot be charged with testimony elicited by defense counsel implying that defendant had previously committed other crimes and that defendant cannot claim reversible error on the basis of that evidence which is elicited.” This holding was reiterated by the court in State v. Tribbet, 415 So.2d 182, 184 (La.1982).

In State v. Lions, 624 So.2d 436 (La.App. 5 Cir.1993), this Court considered a similar issue of whether a DEA special agent’s response to defense counsel’s question on cross-examination was grounds for a mistrial. In that case, the defendant had been convicted of possession with intent to distribute heroin, cocaine, MDMA, marijuana and methamphetamine. During trial, Agent Johnson was asked by defense counsel, “Did he (Lions) give you a particular location where he had gotten the drugs?” Johnson replied, “Well, he said this guy, the Mexican would come to town, place a phone call to him, let him know he was in town, and then he would go and meet with the Mexican. At that time he would let him know the quantity of drugs that he needed.” Lions, 624 So.2d at 438. Defense |22counsel immediately moved for a mistrial saying that he was caught by surprise and that Johnson’s answer constituted impermissible evidence of other crimes; i.e., that Lions had an ongoing relationship with a Mexican drug supplier. Id. The trial judge denied the motion for a mistrial. On appeal, this Court found that the trial court did not err in denying the mistrial, noting that the Louisiana Supreme Court has generally recognized that a police officer’s unsolicited, unresponsive reference to another crime by the defendant is not the comment of a court official under Article 770. This Court further noted that absent a showing of a pattern of unresponsive answers or improper intent by the police officer or prosecutor such comments would not fall within the purview of Article 770. Lions, 624 So.2d at 438-439.

In the present case, because Detective Barteet is not a judge, district attorney, or a court official, his answer would not fall under the provisions of La. C.Cr.P. art. 770. Detective Barteet’s answer about his personal knowledge that defendant was aware of drugs in the apartment was made while he attempted to respond to defense counsel’s open-ended question. Defense counsel elicited the response. Moreover, we find that defendant failed to show that Detective Barteet’s answer was the result of any pattern of unresponsiveness or improper intent. We find no error in the trial court’s failure to grant a mistrial under La.C.Cr.P. arts. 770 or 771. Accordingly, this assignment of error is without merit.

In his third pro se assignment of error, defendant argues that the trial court erred by denying his motion to suppress where the police lacked reasonable suspicion and probable cause to arrest him. While defendant’s counseled brief challenges the trial court’s finding that the search warrant issued for defendant’s apartment was supported by probable cause, in this pro se assignment, defendant lafurther challenges the warrant by also claiming that his arrest was initiated without reasonable suspicion or probable cause.

The record reveals that in defendant’s written motion to suppress, he did not brief the issue of whether there was reasonable suspicion to stop him or probable cause to arrest him. Furthermore, at the hearing on defendant’s motion to suppress, the validity of defendant’s arrest was not argued or considered by the trial court in making its ruling.

In State v. Dee, 09-712 (La.App. 5 Cir. 2/23/10), 34 So.3d 892, 901, writ denied, 10-705 (La.10/29/10), 48 So.3d 1097, this Court noted that where the defendant did not challenge his arrest as illegal in a motion to suppress and apparently raised the issue for the first time on appeal, the issue was not preserved. See also La.C.Cr. P. art. 841. Similarly, in State v. Johnson, 07-1040 (La.App. 4 Cir. 9/10/08), 993 So.2d 326, 331, writ denied, 08-2649 (La.6/5/09), 9 So.3d 868, the Fourth Circuit found that because defendant did not raise the issue of whether he was arrested without probable cause in the trial court, he was precluded from consideration of the issue for the first time on appeal.

In the instant case, because he failed to raise this issue in the trial court, defendant has waived any claim that he was detained without reasonable suspicion and arrested without probable cause. Nevertheless, even if the issue had been properly preserved for appellate review, we find it to be without merit. Based on the facts set forth in the record before us, there was reasonable suspicion to detain defendant and probable cause to arrest him. Defendant’s third pro se assignment of error is without merit.

| ^ERRORS PATENT

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

First, defendant received an illegally lenient sentence. La. R.S. 14:95.1(B) provides for a mandatory fine of not less than one thousand dollars nor more than five thousand dollars. In this case, neither the commitment nor the transcript reflects the imposition of the mandatory fine required under the statute.

The Louisiana Supreme Court has held that an appellate court has the authority under La.C.Cr.P. art. 882 to correct an illegally lenient sentence at any time, even if the issue of an illegal sentence was not raised by the defendant or the State. State v. Campbell, 08-1226, p. 8 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, 1081, writ denied, 09-1385 (La.2/12/10), 27 So.3d 842. This authority is permissive rather than mandatory. State v. Horton, 09-250, p. 10 (La.App. 5 Cir. 10/27/09), 28 So.3d 370, 376. This Court has often declined to use its authority to remand cases for imposition of a mandatory fine when the defendant is indigent. See Horton, supra.

In the present case, defendant is represented by the Louisiana Appellate Project, which provides appellate legal services for indigent criminal defendants in non-capital felony cases. Due to defendant’s indigent status, we decline to remand this matter for imposition of the mandatory fine.

Next, we note that the State of Louisiana Uniform Commitment Order reflects that the date of all of the offenses was September 28, 2012; however, the bill, of information reflects that the date of the offense for count four was actually October 1, 2012. In addition, the Uniform Commitment Order indicates that the “Adjudication Date” for the offenses was December 16, 2013, when it was, in fact, | ^December 5, 2013. Accordingly, we remand the matter and order the trial court to correct the Uniform Commitment Order to reflect the correct dates and direct the clerk of court to transmit the original of the Uniform Commitment Order to the officer in charge of the institution to which defendant has been. sentenced and the Department of Correction’s legal department. See La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-244 (La.9/15/06), 937 So.2d 846 (per curiam); State v. Long, 12-184, pp. 10-11 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

DECREE

For the foregoing reasons, we affirm defendant’s convictions and sentences. We also remand the matter and order the trial court to correct the Uniform Commitment Order and direct the clerk of court to transmit the original of the Uniform Commitment Order to the officer in charge o.f the institution to which defendant has been sentenced and the Department of Corrections’ legal department.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR CORRECTION OF UNIFORM COMMITMENT ORDER.

      . Brook Franklin and Katherine Mullins were charged in count one of the bill of informa-don with possession of heroin, a violation of La. R.S. 40:966(C).

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

      . Detective Barteet testified that inositol is a powder typically "used in the cutting procedure of narcotics” which allows the seller to "make a larger quantity."

      .Detective Barteet stated that a blender is often used to help with the cutting process and preparation of heroin.

      . When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992).


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Michael MORAN, Appellant.
    No. 49,196-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Marcus R. Patillo, Assistant District Attorneys, for Appellee.

      Before STEWART, CARAWAY and GARRETT, JJ.
   STEWART, J.

|, The defendant, Michael Moran, was charged with possession with the intent to distribute marijuana in violation La. R.S. 40:966(A)(1). He pled guilty as charged pursuant to a plea bargain whereby the state agreed not to file a habitual offender bill. There was no agreed upon sentence. He was sentenced to serve 25 years’ imprisonment at hard labor to run consecutive with any other sentence. He now appeals, arguing that his sentence is excessive. For the reasons set forth in this opinion, we affirm the defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On May 1, 2013, the defendant was working at the Minden Recreational Department in Minden, Louisiana, as a part of Bayou Dorcheat Correctional Facility’s work release program. Upon his return to the jail, the defendant was searched in accordance with jail policy. During the search, Sergeant Thomas Roland of the Webster Parish Sheriffs Office found an object concealed inside of the tongue of the defendant’s shoe. The concealed object appeared to be ten marijuana joints. After the cigarettes were tested, it was determined that they contained synthetic marijuana.

On June 20, 2013, the defendant was charged via bill of information with possession of marijuana with intent to distribute in violation of La. R.S. 40:966(A)(1). On August 26, 2013, he pled guilty as charged pursuant to a plea bargain whereby the state agreed not to file a habitual offender bill. A presentence investigation was ordered.

On October 14, 2013, the sentencing hearing was held. The trial court stated that it had reviewed the presentence investigation report. The | ¡.report revealed that the defendant .was classified as a sixth felony offender. He had previous felony drug convictions, but no history of violent crimes. At the time the instant offense occurred, the defendant was serving a ten-year sentence for an unrelated drug offense.

The trial court sentenced the defendant to 25 years’ imprisonment at hard labor, to run consecutive with any other sentence. On October 24, 2013, the defendant filed a motion to reconsider sentence. It was denied, and the defendant subsequently filed the instant appeal.

LAW AND DISCUSSION

In the defendant’s sole assignment of error, he argues that his sentence is unconstitutionally harsh and excessive. More specifically, he argues that his sentence makes no measurable contribution to the ends of justice or the needs of society. The defendant urges his need to receive treatment and to be released into society as a productive individual.

The state counters that the sentence imposed is within the statutory range and is not excessive for this sixth felony offender. Moreover, the defendant received a substantial benefit from the plea bargain and the state’s agreement not to file a habitual offender bill.

The test for reviewing an excessive sentence claim is two-pronged. 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 reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/Q7),3 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. 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. The important elements which should be considered include the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. 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); State v. Swayzer, 43,-350 (La.App.2d Cir.8/13/08), 989 So.2d 267. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, unit denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. Art. I, § 20 if it is grossly disproportionate to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

|4Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792; State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.

La. R.S. 40:966(B)(3) provides that a person convicted of possession with intent to distribute synthetic marijuana shall be sentenced to a term of imprisonment at hard labor for not less than five nor more than thirty years, and pay a fine of not more than fifty thousand dollars.

Here, the 42-year-old defendant was serving a ten-year sentence that commenced in November 2012, for a unrelated drug offense at the time the instant offense occurred. He dropped out of high school in the 11th grade, and was only briefly employed at Superior Bar and Grill and Lawnmasters. The defendant, a sixth-felony offender, has a criminal history that began in 1992. His parole has been revoked numerous times for repeat offenses.

At the defendant’s sentencing hearing, the trial court stated that it had reviewed the presentence investigation report, and that it had reviewed the | «¡sentencing guidelines pursuant to La. C. Cr. P. art. 894.1. The trial court reviewed the defendant’s criminal history, and opined that his criminal conduct was a result of circumstances that are likely to recur. The trial court found that the defendant was in need of correctional treatment that can be provided most effectively by his commitment to an institution, and that a lesser sentence would deprecate the seriousness of his crime. Moreover, as a sixth-felony offender, the defendant received an extensive benefit from the state’s agreement not to file a habitual offender bill. The defendant could have faced a term of mandatory life imprisonment.

After a careful review of the record, we find that the trial court adequately considered the facts of this case, the information in the presentence investigation report; and the sentencing guidelines set forth in La. C. Cr. P. art. 894.1. The defendant received, a considerable benefit from the plea agreement and reduced sentenced exposure. The. sentence imposed does not shock the sense of justice, is not disproportionate to the seriousness of the offense, and does not amount to a purposeless or needless infliction of pain and suffering. This assignment of error is meritless.

In reviewing the record for error patent, we find the sentence to be illegally lenient. The defendant pled pursuant to the provision of La. R.S. 40:966(B)(3), which requires that the trial court sentence the defendant to a term of imprisonment at hárd labor for not less than five nor more than thirty years and impose a fine of not more than fifty thousand dollars when sentencing a person convicted of possession with intent to distribute synthetic marijuana. The trial court imposed an illegally lenient sentence by ^failing to assess the mandatory fine. The defendant is not prejudiced in any way by the trial court’s failure to impose the mandatory fine. An illegally lenient sentence may be corrected at any time by 'the court that imposed the sentence or by an appellate court on review. La. C. Cr. P. art. 882(A). This court, however, is not required to take such action. State v. Young, 46,575 (La.App.2d Cir.9/21/11), 73 So.3d 473, writ denied, 11-2304 (La.3/9/12), 84 So.3d 550; State v. Griffin, 41,946 (La.App.2d Cir.5/2/07), 956 So.2d 199. Due to the defendant’s indigent status, we decline to impose such a fine at this juncture.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: CARAWAY, J.

text:
    STATE of Louisiana, Plaintiff-Appellee v. Labarrie WATSON in personam and 2007 Dodge Ram Pickup Truck VIN/1D7HA18277J506057 in rem Seized from and Claimed by: Labarrie Watson, Defendant-Appellant.
    No. 49,331-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Labarrie D. Watson in Proper Person.
    Charles R. Scott, III, District Attorney, Lucien Marineaux, John Ford McWilliams, Jr., Assistant District Attorneys, Lucien Marineaux, John Ford McWilliams, Jr., Assistant District Attorneys for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

|,The state served claimant with a notice of pending forfeiture of a vehicle allegedly used to facilitate claimant’s drug activities. Claimant filed a claim challenging the forfeiture. The state filed an exception of no right of action on the grounds of claimant’s failure to follow the statutory requirements for filing such a claim. After the trial court granted the exception and dismissed claimant’s request for return of the vehicle, this appeal followed. We affirm.

Facts

In June of 2011, Shreveport police received information from a confidential informant that Labarrie Watson was distributing controlled dangerous substances from several houses in Shreveport, including a home located at 1441 Claiborne Street. On June 2, 2011, police executed search warrants (including one for the Claiborne Street home) when Watson was present. After discovering cocaine, firearms and U.S. currency in the home, police arrested Watson. He was subsequently convicted of possession with intent to distribute a Schedule II controlled dangerous substance and attempted manufacture of a controlled dangerous substance.

At the time of the warrant execution, Watson possessed a 2007 Dodge Ram pickup truck which was parked in front of the Claiborne Street home. Police had observed Watson travel to and from the subject residences in the vehicle. A police dog alerted on the truck and police discovered $198.00 therein. Those funds included $25.00 of Shreveport Police Department buy |2funds, identified as funds used in a drug purchase by Watson at another location.

As acknowledged by Watson, the state mailed him a notice of pending forfeiture of the 2007 truck by certified mail, return receipt requested, on August 5, 2011. On August 26, 2011, Watson submitted an affidavit to the “State of Louisiana, First Judicial District and the Caddo Parish Sheriffs Office,” making a “claim/stipulation of exemption” as to why the truck should not be forfeited. The affidavit reads as follows:

(1) On June 2, 2011, my girlfriend Keri-ca Hymes had a service scheduled by Stanley Steamer to service her carpets at her residence located at 1441 Claiborne Ave., Shreveport, LA. On this date and time Ms. Hymes was working therefore I agreed to wait at her residence while Stanley Steamer serviced her carpets.
(2) Shreveport Police Department along with a K-9 Unit arrived on scene while Stanley Steamer was servicing Ms. Hymes carpets and searched the residence. Shreveport Police Department then began to search the parked vehicle in front of the residence. There was never any warrant produced for the search of my person, the vehicle, or the residence of 1441 Claiborne Ave., Shreveport LA.
(3) There was never any finding of drugs, weapons or other form of illegality or criminal violation contained upon myself or within my vehicle. Because this vehicle was specifically received and used for legitimate purposes and was not evidence or the fruit of any illegal activity whatsoever and is exempt per LSA-R.S. 40:2604 and LSA-R.S. 40:2605 and furthermore because no basis exists to support the assertion that said vehicle was derived from the sale of any illegal drugs as suggested by the District Attorney’s office, I respectfully request that said 2007 Dodge Ram 1500 Quad ST/SLT, VIN 1D7HA18277J506057 to be returned to me in its entirety through my attorney, F. Edward Mouton, whose office address is listed above in the heading of this affidavit, and such address shall serve as the address where I shall receive mail.

On June 12, 2013, the state filed an exception of no right of action arguing that although Watson timely mailed the claim to the district attorney’s office, he did not comply with the statutory requirements of La. R.S. 40:2610. Specifically, the state contended that Watson was not the registered owner of the vehicle, did not mail the claim via certified mail, return receipt requested, failed to give the nature and extent of his interest in the property and did not include the date, identity of the trans-feror and the circumstances of his acquisition in the property. The state’s exception also alleged that the title to the Dodge Ram truck was registered in the names of two other parties, who also had been given notice of this forfeiture action.

Hearing on the exception occurred on December 11, 2013. In his testimony Watson referred to this vehicle as “my truck,” and indicated that he bought it from Courtesy Auto Sales with funds from his survivors’ retirement disability check and the trade-in of his 1999 truck. However, no documentary evidence or title regarding the ownership of the vehicle was submitted to the court. After considering the evidence, the court dismissed Watson’s claim and granted the state’s exception of no right of action.

Watson appeals raising two assignments of error. He argues that the trial court erred in dismissing his claim for failure to comply with La. R.S. 40:2610 and that the officers’ testimony alone failed to establish by a preponderance of the evidence that the subject truck had any connection 14with the drug trade or was purchased with the proceeds of illegal drug sales.

Discussion

By filing a peremptory exception of no right of action, a defendant challenges whether a plaintiff has such a real and actual interest in the action. La.C.C.P. art. 927(A)(6); Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 10-2267 (La.10/25/11), 79 So.3d 246. At the hearing on the exception of no right of action, the exception may be submitted on the pleadings, or evidence may be introduced either in support of or to controvert the objection raised when the grounds thereof do not appear from the petition. La.C.C.P. art. 931; Eagle Pipe & Supply, supra.

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. Eagle Pipe & Supply, supra; Hood v. Cotter, 08-0215 (La.12/2/08), 5 So.3d 819. 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. Eagle Pipe & Supply, supra; Badeaux v. Southwest Computer Bureau, Inc., 05-0612 (La.3/17/06), 929 So.2d 1211.

The determination of whether a plaintiff has a right to bring an action raises a question of law. A question of law requires de novo review. Eagle Pipe & Supply, supra; Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 06-0582 (La.11/29/06), 943 So.2d 1037.

| sThe Louisiana Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989, La. R.S. 40:2601 et seq., established a civil system of expressly delineated procedures which allow the state to seize and forfeit property that is related to, is a proceed from, facilitates, or is itself a violation of the Uniform Controlled Dangerous Substances Law. State v. 2003 Infiniti G35 VIN NO. JNKCV51E93M024167, 09-1193 (La.1/20/10), 27 So.3d 824.

La. R.S. 40:2608 sets forth the procedure to be followed by the district attorney to commence forfeiture proceedings, including providing notice of pending forfeiture to the owner and interest holder in the property. The district attorney may bring a forfeiture proceeding in rem or in personam or both. See La. R.S. 40:2612 and 2613. Hearings are then held by the trial court to determine whether the property is to be forfeited. State v. Birdwell, 47,126 (La.App. 2d Cir. 5/16/12), 92 So.3d 1107.

The owner or interest holder in the property must take affirmative steps in order to preserve his interest in the property by filing a claim under La. R.S. 40:2610 which reads as follows:

A. Only an owner of or interest holder in property seized for forfeiture may file a claim, and shall do so in the manner provided in this Section. The claim shall be mailed to the seizing agency and to the district attorney by certified mail, return receipt requested, within thirty days after Notice of Pending Forfeiture. No extension of time for the filing of a claim shall be granted subject to forfeiture.
B. The claim shall be in affidavit form, signed by the claimant under oath, and sworn to by the affiant before one who has authority to | (¡administer the oath, under penalty of perjury or false swearing and shall set forth all of the following:
(1) The caption of the proceedings'as set forth on the Notice of Pending Forfeiture or petition and the name of the claimant.
(2) The address where the claimant will accept mail.
(3) The nature and extent of the claimant’s interest in the property.
(4) The date, identity of the transferor, and the circumstances of the claimant’s acquisition of the interest in the property-
(5) The specific provision of this Chapter relied on in asserting that the property is not subject to forfeiture.
(6) All essential facts supporting each assertion.
(7) The specific relief sought.

The mandatory plain-language requirement for the filing of a timely, valid claim are clear and, if not met, carry significant consequences. State v. 2003 Infiniti G35, supra. The failure to fulfill any of those requirements — whether it be missing the deadline, filing a claim not in affidavit form, or not setting forth the necessary averments — precludes the owner or interest holder from further participation in the forfeiture proceeding. Id. The failure of a claimant to specify the date, identity of the transferor, and the circumstances of the claimant’s acquisition of the interest in the property is fatal to the claim. State v. $144, 320.00, 12-0466 (La.12/4/12), 105 So.3d 694; State v. 2003 Infiniti G35, supra.

While Louisiana does not require that the certificate of title to a vehicle be transferred in order for a sale to be a valid one, the certificate of title constitutes pri-ma facie proof of ownership. Lambert v. Ray Brandt Dodge, Inc., 09-739 (La.App. 5th Cir. 1/26/10), 31 So.3d 1108, writ denied, 10-0430 (La.4/30/10), 34 So.3d 293.

|7In his affidavit, Watson failed to include any information showing the nature and extent of his interest in the property, the date, identity of the transferor, and the circumstances of his acquisition of the property in question. In this case, the state gave Watson notice of the forfeiture because of his use of the vehicle at the crime scene where he was arrested. However, the state also served notice upon others in whom the title of the vehicle was registered. Neither the state nor Watson presented any documentary proof of ownership. Accordingly, Watson’s failure to comply with the requirements of La. R.S. 40:2610 precludes his further participation in the forfeiture proceedings including any objection to the merits of the forfeiture action. The judgment of the trial court dismissing his claim on the exception of no right of action is affirmed. Costs of this appeal are assessed to Watson.

AFFIRMED.

      . On September 9, 2013, the state filed a Motion and Order to Correct Typographical Error seeking correction of the erroneous VIN referenced in the original exception. The order changed the VIN and caption of the suit to delete 1GKEBZ53R171022 and replace it with 1D7HA18277J506057: For purposes of this appeal, we have corrected the case caption accordingly.

      . Although the trial court stated that the proceedings were "a full-blown hearing,” "instead of an exception,” in oral reasons for judgment, the court specifically granted the state’s exception of no right of action. The written judgment contained in the record dismissed Watson's claim and did not order the vehicle forfeited to the state.

      .The state offered the record of Watson's criminal proceedings into evidence. The evidence, admitted over Watson’s objection, is not in the record before us.

      . "Interest holder” is defined as a secured party within the Louisiana commercial laws and "owner” means a person, other than an interest holder, who has an interest in property and, if required by law, is in compliance with any statute requiring recordation or reflection in public records in order to perfect the interest against a bona fide purchaser for value. La. R.S. 40:2601.


author: MOORE, J.

text:
    UNIVERSITY OF LOUISIANA MONROE FACILITIES, INC., Writ Applicant/Respondent-Appellant v. JPI APARTMENT DEVELOPMENT, L.P., and XYZ Insurance Company, Writ Applicants/Respondents-Appellees.
    Nos. 49,148-CW, 49,156-CW, 49,307-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 8, 2014.

      Hudson, Potts & Bernstein, Monroe, by Charles W. Herold, G. Adam Cossey, for Plaintiff, ULM Facilities, Inc.
    Couhig Partners, LLC, New Orleans, by Gary J. Rouse, Jason A. Cavignae, for Defendant Continental Casualty Co., as surety.
    Mayer, Smith & Roberts, Shreveport, by David F. Butterfield, for Defendants West Monroe Roofing, LLC, Central Roofing, Inc., & Central Roofing, LLC.
    Coats Rose, APC by Walter W. Christy, New Orleans, Robert N. Hancock, Jr., for Defendant B.R. Brick <& Masonry.
    Colliau Carluccio Keener, et al by Pamela Dunlop Gates, John I. Goodwin, Neuner Pate, Lafayette, by James L. Pate, for Defendants Continental Casualty Co., National Fire Ins. Co. of Hartford, & Transportation Ins. Co.
    Before MOORE, GARRETT and PITMAN, JJ.
   MOORE, J.

Lin these consolidated cases, University of Louisiana Monroe Facilities Inc. (“ULMFI”) appeals a judgment dismissing its claim against Continental Casualty Company (“Continental”), the issuer of a performance bond, on Continental’s exception of prescription; ULMFI seeks supervisory review of a ruling denying its motion to compel arbitration of claims; and several defendants (collectively, “the roofing contractors”) seek supervisory review of a judgment denying their exceptions of insufficient service and citation, lack of procedural capacity, no right of action and prescription. For the reasons expressed, we affirm the judgment that granted Continental’s exception of prescription on the performance bond; we grant ULMFI’s writ application, make it peremptory, and remand the case to the district court to order arbitration of claims; and grant the roofing contractors’ writ application and remand to the district court to refer their exceptions to arbitration.

Factual and Procedural Background

In 2004, ULMFI, as owner, executed a $21 million design/build contract with JPI Apartment Development LP (“JPI”), as general contractor, to renovate nearly 500 dorm rooms, demolish two dorm buildings, and build six new apartment-style buildings and a new student health center on the ULM campus. The design/build contract contained an arbitration clause |2and required the general contractor to have a performance bond. JPI bought a performance bond from Continental with a two-year claims limit. JPI hired a number of subcontractors, including Central Roofing Inc. (“CRI”). The standard-form subcontract with CRI also included an arbitration clause.

Construction of Phase 1 was completed in July 2006; Phase 2 was completed in December 2007. During this time, CRI merged into a different entity, Central Roofing LLC (“CRLLC”); in October 2008, CRLLC changed its name to West Monroe Roofing LLC (“WMR”); and WMR formally dissolved on June 22, 2009.

Also in 2009, ULM personnel began to notice “water intrusion” that was causing structural and external damage to the new buildings. An inspection showed that the roof, stucco, walls and flooring deviated from the contract specifications and industry standards. Filings in this record show that in April 2010, ULMFI began emailing JPI to request mediation or arbitration of these claims, but by then JPI had collapsed, was merely wrapping up creditors’ claims, had no reserves to defend ULM-FI’s claim or |spay a judgment, and thus it would not participate in arbitration.

ULMFI filed this suit on November 26, 2011, naming JPI and its unknown insurer as defendants. The petition alleged that the general contract provided for mediation or arbitration; “however, when ULM-FI attempted to resolve this issue through mediation/arbitration, JPI refused to participate. As such, the arbitration provision is deemed waived and the instant lawsuit is procedurally proper.” By amended petition, ULMFI joined as defendants Continental, which had issued JPI’s performance bond, and CRI. By subsequent amendments, ULMFI also joined as defendants CRI’s successor entities, CRLLC and WMR (“the roofing contractors”), and their liability insurers.

Continental filed a peremptory exception of prescription, asserting the two-year claims limit in its performance bond. It alleged that work was completed in December 2007, but ULMFI did not file suit until October 2011 or join Continental on the performance bond until March 2012. ULMFI countered that the bond contained an illegal attempt to shorten the statutory prescriptive period.

The roofing contractors filed exceptions of insufficient service and citation, lack of procedural capacity and no right of action. They showed that ULMFI never effected service on CRI or CRLLC; it served WMR | /‘through Mary McLaughlin, its agent for service,” but by that time, WMR had officially dissolved; also by that time, all the roofing contractors were out of existence, so they had no procedural capacity to be sued. They argued that because the entities are extinct, ULMFI had no right of action to sue them. Continental, as WMR’s liability carrier, later filed an exception of prescription, urging that after WMR’s dissolution on July 22, 2009, ULMFI had exactly three years to file suit, under La. R.S. 12:1338 D; since ULMFI did not join WMR until August 8, 2012, its action was prescribed.

On July 26, 2013, the roofing contractors applied for a temporary restraining order to enjoin ULMFI from seeking arbitration. They conceded that JPI’s general contract and CRI’s subcontract both called for arbitration of claims, but argued that ULMFI had no “privity of contract” with them. They also argued that ULMFI judicially confessed a waiver of arbitration in its original and amended petitions. The court granted the TRO; it was extended and remained in effect until the hearing.

On August 9, 2013, ULMFI filed the instant motion to compel arbitration and stay litigation. It argued that the only reason it “deemed” arbitration waived was that JPI was defunct and refused to participate, but that there was no intent to waive arbitration. It also argued that all subcontractors were bound to arbitration.

Action of the District Court

At a hearing on October 22, 2013, the court heard Continental’s exception of prescription. The court applied the two-year claims limit in the .performance bond, sustaining the exception without reasons. ULMFI has 1 ¿appealed this judgment (No. 49,307-CA).

At a hearing on October 25, 2013, the court heard all the remaining exceptions and ULMFI’s motion to compel arbitration. Although the court initially stated, “It’s clear to me there is some agreement to arbitrate here,” it then accepted the roofing contractors’ argument that the subcontract did not define “owner” to be ULMFI: “I find your argument convincing. * * * I’m walking in and reverse [sic] myself.” The court denied the motion to compel arbitration, and ULMFI took a writ to challenge this (No. 49,156-CW). Without stating reasons, the court also denied all exceptions. The roofing contractors and their liability carriers took a writ to challenge this (No. 49,148-CW).

This court granted the writ applications and ordered them consolidated with the appeal on February 27, 2014.

Discussion: Two-Year Limitation on Performance Bond

By its appeal, ULMFI urges the court erred in applying the two-year claims limit stated in the performance bond instead of the standard 10-year limit for personal actions stated in La. C.C. art. .3499. It shows that a juridical act cannot make “the requirements of prescription more onerous,” La. C.C. art. 3471, and contends that shortening the prescriptive period is a nullity. Cameron v. Bruce, 42,873 (La.App. 2 Cir. 4/23/08), 981 So.2d 204, unit denied, 2008-1127 (La.9/19/08), 992 So.2d 940; Prestridge v. Bank of Jena, 05-545 (La.App. 3 Cir. 3/8/06), 924 So.2d 1266, writ denied, 2006-0836 (La.6/2/06), 929 So.2d 1261. It also contends that La. C.C. art. 3040, which permits a surety agreement to be “qualified, conditioned, or | limited in any lawful manner,” does not exempt sureties from Art. 3471, and that cases appearing to do so are unpersuasive because they do not mention Art. 3471. Finally, it urges the theory of contra non valentem to suspend its action until it discovered the hidden defects in JPI’s work. By reply brief, ULMFI also contends that courts apply the discovery rule in cases of defective construction and redhibition, as in Landry v. Blaise Inc., 2002-0822 (LaApp. 4 Cir. 10/23/02), 829 So.2d 661, and Leach v. Alonso, 95-325 (La.App. 3 Cir. 10/4/95), 663 So.2d 344, writ denied, 95-2662 (La.1/26/96), 666 So.2d 671. It concludes that this court should reverse and reinstate the claim against Continental.

Continental replies that the district court applied a plain reading of the two-year limit in the performance bond. It also argues that reducing the period for claims is permitted under La. C.C. art. 3040, as recognized in cases like National Tea Co. v. Plymouth Rubber Co., 95-254 (La.App. 5 Cir. 10/18/95), 663 So.2d 801, J.B. Mouton & Sons Inc. v. Alumawall Inc., 583 So.2d 157 (La.App. 3 Cir.1991), and Travelers Cas. & Sur. Co. of Amer. v. University Facilities Inc., 2011 WL 1558009 (E.D.La.4/25/11). It contends that the cases cited by ULMFI do not involve performance bonds. Finally, it submits that contra non valentem applies only in exceptional circumstances, and such are not present here; in fact, no case has ever applied it to suspend the suit limitation period in a surety bond. It urges this court to affirm.

Suretyship is an accessory contract by which a person binds himself to a creditor to fulfill the obligation of another upon the failure of the latter |7to do so. La. C.C. art. 3035. Suretyship must be express and in writing. La. C.C. art. 3038. Suretyship may be qualified, conditioned, or limited in any lawful manner. La. C.C. art. 3040. Louisiana courts have consistently held that the two-year limit in suretyship contracts is valid and enforceable. National Tea Co. v. Plymouth Rubber Co., supra; J.B. Mouton & Sons Inc. v. Alumawall Inc., supra; Con-Plex, Div. of U.S. Indus. Inc. v. Vicon Inc., 448 So.2d 191 (La.App. 1 Cir.1984); Landis & Young v. Gossett & Winn, 178 So. 760 (La.App. 2 Cir.1937), unit denied (not rep., 1938); Travelers Cas. & Sur. Co. v. University Facilities Inc., supra (gathering cases); Kiva Const. & Eng’g Inc. v. International Fidelity Ins. Co., 749 F.Supp. 753 (W.D.La.1990), aff'd, 961 F.2d 213 (5 Cir.1992).

We recognize that Art. 3471 declares null any juridical act purporting to “make the requirements of prescription more onerous.” We also recognize that Cameron v. Bruce and Prestridge v. Bank of Jena, supra, invalidated contract provisions that purported to reduce the period of liberative prescription. These cases, however, did not involve suretyship contracts, which are specially governed by Art. 3040. When two statutes apply to the same situation, the special statute prevails over the general one. Louisiana Fed’n of Teachers v. State, 2013-0120 (La.5/7/13), 118 So.3d 1033; Silver Dollar Liquor Inc. v. Red River Parish Police Jury, 2010-2776 (La.9/7/11), 74 So.3d 641. The special provisions of Art. 3040 will prevail over the general principles of Art. 3471.

In National Tea Co. v. Plymouth Rubber Co., supra, the court upheld a two-year limitation similar to the one in Continental’s performance bond Land rejected an argument identical to ULMFI’s. The court found the two-year period was (1) clearly stated in the performance bond and (2) reasonable because the obligation of the bond concerned only finishing the job in the event the general contractor failed to do so, and not providing a warranty against defective construction.

By its own terms, the instant bond did not supply the same prescriptive period as the design/build contract itself; hence, it was not a case of contractual warranty subject to the standard 10-year prescriptive period. See also Kiva Const & Eng’g v. International Fidelity, supra. We agree with this reasoning and find that it excludes the application of contra non valentón or the discovery rule.

ULMFI’s assignment of error lacks merit. The district court did not err in applying the two-year limit stated in the performance bond. The judgment in No. 49,307-CA is affirmed.

Motion to Compel Arbitration

By its writ application, ULMFI urges the court should have compelled arbitration. It shows that CRI, the subcontractor, expressly consented to arbitration, and did so in language that excluded any consideration of whether ULMFI was designated as “owner” or even signed the subcontract. ULMFI also argues that arbitration is favored and must be ordered “even when the scope of an arbitration clause is fairly debatable or reasonably in doubt,” Aguillard v. Auction Mgmt. Corp., 2004-2804 (La.6/29/04), 908 So.2d 1. In brief, ULMFI does not directly address the contention that it waived arbitration by filing suit, but shows that the issue [9of waiver must be decided by the arbitrator, not by the court. International River Ctr. v. Johns-Manville Sales Corp., 2002-3060 (La.12/3/03), 861 So.2d 139. It urges the court to grant the writ and order the case to arbitration.

Continental, with the other liability carriers, urge that they never consented to arbitration, even if CRI did. They argue that nonsignatories are exempt from arbitration, Horseshoe Ent. v. Lepinski, 40,753 (La.App. 2 Cir. 3/8/06), 923 So.2d 929, writ denied, 2006-0792 (La.6/2/06), 929 So.2d 1259; Prasad v. Bullard, 10-291 (La.App. 5 Cir. 10/12/10), 51 So.3d 35, and that the Direct Action Statute applies only in a lawsuit, not in arbitration. They argue that ULMFI waived arbitration by failing to request it within a reasonable time, as required by § 10.3 of the design/build contract, and they were prejudiced by not receiving any notice of arbitration until years after the contract was completed and all the roofing contractors’ business entities had dissolved. They urge this court to deny the writ.

The roofing contractors reiterate Continental’s arguments and add that ULMFI waived its right to arbitration by filing an original petition and three amended petitions, all of which were totally inconsistent with a demand for arbitration. Simpson v. Pep Boys-Manny Moe & Jack Inc., 2003-0358 (La.App. 4 Cir. 4/10/03), 847 So.2d 617; Ritzel Commc’ns Inc. v. Mid-American Cellular Tel. Co., 989 F.2d 966 (8 Cir.1993). They concede that JPI, the general contractor, may have convinced ULMFI that it |10was insolvent and could not participate in arbitration, but they (the roofing contractors) were unaware of this and unable to pursue legal remedies against JPI while it still had assets. They urge this court to deny the writ.

Louisiana law favors arbitration as a preferred method of alternative dispute resolution. Aguillard v. Auction Mgmt. Corp., supra; Long v. Jeb Breithaupt Design Build, 44,002 (La.App. 2 Cir. 2/25/09), 4 So.3d 930. Specifically, La. R.S. 9:4201 provides:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

Similarly, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., reflects a “liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.” Moses H. Cone Mem. Hosp. v. Mercury Const. Co., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). One of the primary reasons for the existence of arbitration agreements is to achieve streamlined proceedings and expeditious results. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985); FIA Card Servs. v. Gibson, 43,131 (La.App. 2 Cir. 3/19/08), 978 So.2d 1230. It is of no moment that an arbitrable claim may be intertwined with other claims; an arbitrable claim must be referred to arbitration “even where the result would be possibly inefficient maintenance of separate proceedings in different forums.” Dean Witter Reynolds v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985); Bossier Parish Police Jury v. Walton Const. Co., 45,586 (La.App. 2 Cir. 11/17/10), 56 So.3d 271. Although arbitration is a matter of contract, nonparties to an arbitration provision may be bound by that provision under accepted theories of state law. Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009); Gunderson v. F.A. Richard & Assocs. Inc., 2005-917 (La.App. 3 Cir. 8/23/06), 937 So.2d 916.

The initial issue is whether the parties made an agreement for arbitration. La.R.S. 9:4203; International River Ctr. v. Johns-Manville Sales Corp., supra. As noted, the subcontract between JPI and CRI provides:

Should any dispute between Contractor and Owner arise involving acts or omissions of Subcontractor, Subcontractor consents to be enjoined as a party in any arbitration that may occur between Contractor and Owner. In the event of such joinder, the arbitration provisions of the Owner’s Contract with Contractor * * * shall control over any conflicting provisions of this Subcontract Agreement.

We are unpersuaded by Continental’s reliance on another portion of the subcontract, that provides for arbitration of disputes between CRI and JPI involving $100,000 or less. By contrast, the passage quoted above is a clear consent by CRI to be joined in arbitration of disputes between ULMFI and JPI, arising out of acts or omissions of CRI, with an agreement for the arbitration provisions of the design/build contract to prevail. CRI clearly consented to the motion to compel arbitration filed by ULMFI in this case.

We are also unpersuaded by Continental’s argument that as a nonparty to CRI’s subcontract, it cannot be bound to the arbitration | ^provision therein. As noted, a nonparty may indeed be bound to arbitration. Arthur Andersen LLP v. Carlisle, supra; Gunderson v. F.A. Richard & Assocs., supra. Ordinarily, the injured person may sue an insurer directly. La. R.S. 22:1269 B(1). ULMFI alleged that Continental was CRI’s liability insurer; Continental never conceded this status, referring to the roofing contractors as “their alleged insured(s),” but it has offered no policy language opting out or stating that, if its insured agreed to arbitration of claims, Continental would not participate. We also note that the cases of Horseshoe Ent. v. Lepinski, supra, -and Prasad v. Bullard, supra, did not involve liability carriers trying to avoid arbitration to which their insureds had agreed. On this record and in these special circumstances, we find that Continental (along with National Fire and Transportation Insurance) have consented to the arbitration to which their respective insureds agreed.

Further, we find no merit to Continental’s contention, and the district court’s finding, that the arbitration provision was invalid because the subcontract did not define the owner to be ULMFI. Although this document did not define the “owner,” it defined the “project” as “University of Louisiana Monroe Phase II located at 4106 Bon Aire Drive, Monroe, LA 71209,” stated that the subcontract was contingently assigned to the owner, and referred to a construction agreement between JPI and one of its sister entities. On this record, no one can seriously assert that the owner was anything other than ULMFI. In light of the whole subcontract and the favored status of arbitration, we find that the failure to clearly identify the |1sowner is not fatal to this arbitration clause.

With this conclusion, we find that the district court erred in refusing to order the case to arbitration. We note the contention of Continental and the roofing contractors that ULMFI waived the right to demand arbitration by filing a suit. However, the law is firmly established that once the court finds that the parties made an arbitration agreement and failed to comply with it, the issue of alleged waiver is a question for the arbitrator, not for the court. International River Ctr. v. Jones-Manville Corp., supra, citing Howsam v. Dean Witter Reynolds, 587 U.S. 79, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002); Wilson v. Allums, 47,147 (La.App. 2 Cir. 6/8/12), 94 So.3d 908, writ denied, 2012-1611 (La.10/26/12), 99 So.3d 650. We therefore pretermit any consideration of the merits of the exceptions and refer them to the arbitrator for ultimate determination.

For these reasons, ULMFI’s assignment of error has merit. The district court erred in denying the motion to compel arbitration. The writ in No. 49,156-CA is granted and made peremptory, and the matter is remanded to the district court with directions to refer the case to arbitration.

The Roofing Contractors’ Exceptions

By their writ application, the roofing contractors contend that after CRI merged with CRLLC, this terminated CRI’s existence and capacity to be sued, under La. R.S. 12:1361 and 12:115; then, after WMR dissolved, its business terminated except for any action “commenced timely against it,” La. R.S. 12:1340 C; although the law allows claims to be filed against a dissolved LLC, such claims must be filed within three years of dissolution |14or else they are “barred perpetually and peremptorily,” La. R.S. 12:1338 D; and because the claims were barred, service of process on WMR’s former agent was without effect, La. C.C.P. arts. 1261, 1266. They urge the court to grant the writ and sustain all exceptions.

Continental asserts that ULMFI sued WMR over three years after WMR dissolved, and thus all claims have prescribed and perempted. It also urges this court to grant the writ and sustain the exceptions.

ULMFI contends that the roofing contractors simply omitted key portions of the statutes on which they relied. Specifically, La. R.S. 12:1338 B requires the dissolving LLC to provide notice to any potential creditors. The peremptive period of § 1338 D starts to run “three years after the giving or completion of publication of the notice, whichever is Iater[.]” ULMFI submits that because the roofing contractors never provided the required notice, the three-year period never began to run, and the request for arbitration was therefore timely. It urges this court to deny the writ.

When a claim is subject to arbitration, the objection that the claim is untimely is referred to the arbitrator. Obey Financial Group v. Blue, 2013-554 (La.App.11/6/13), 125 So.3d 573; Parker v. St. Tammany Parish Hosp. Serv. Dist., 94-2278 (La.App. 1 Cir. 2/27/96), 670 So.2d 531, unit denied, 96-0805 (La.5/10/96), 672 So.2d 925. In fact, all “procedural questions” which grow out of the dispute and bear on its final disposition are presumptively not for the court, but for the arbitrator to decide. International River Ctr. v. Johns-Manville Sales Corp., supra, and citations therein.

11sEven though the parties appear to have litigated prescription and the other exceptions in the district court, in the interest of the policy favoring arbitration, we must refer these to the arbitrator.

The district court therefore erred in ruling on the roofing contractors’ and their insurers’ exceptions. The writ in No. 49,-148-CW is granted and made peremptory, for the purpose of referring the exceptions to arbitration.

Conclusion

For the reasons expressed, the judgment granting Continental Casualty Company’s exception of prescription on the performance bond is affirmed at ULMFI’s cost.

The writ application of ULMFI is granted and made peremptory, and the case remanded to the district court to refer the claims to arbitration.

The writ application of West Monroe Roofing LLC, Central Roofing Inc., Central Roofing LLC, Continental Casualty Company, National Fire Insurance Company of Hartford and Transportation Insurance Company is also granted and made peremptory, for the purpose of referring the exceptions to arbitration. Costs of the writ applications are to be paid one-half by ULMFI and one-half by the roofing contractors and their insurers.

AFFIRMED IN PART; WRITS GRANTED AND MADE PEREMPTORY; CASE REMANDED WITH INSTRUCTIONS TO REFER TO ARBITRATION.

      . The "Standard Form of Agreement between Owner and Design/Builder” provided, in pertinent part, § 10.1: "Claims, disputes or other matters in question between the parties to this Part 2 Agreement arising out of or relating to this Part 2 Agreement or breach thereof shall be subject to and decided by mediation or arbitration”; § 10.3: "A demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen.”

      . § 7.5 provided in part: "Design/Builder and/or JPI * * * shall provide a Payment and Performance Bond covering the full amount of the construction costs shown on the Schedule of Values attached!.]”

      . The "AIA Document A312 Performance Bond” provided, ¶ 9: "Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first.”

      . Subcontract, Exhibit "A” General Provisions, ¶ 25, second paragraph: "Should any dispute between Contractor and Owner arise involving acts or omissions of Subcontractor, Subcontractor consents to be enjoined as a party in any arbitration that may occur between Contractor and Owner. In the event of such joinder, the arbitration provisions of the Owner’s Contract with Contractor * * * shall control over any conflicting provisions of this Subcontract Agreement.”

      . An email dated August 3, 2011, advised ULMFI’s counsel that "JPI has not been able to locate the subcontractor's contracts (which would speak to [the] arbitration clause you mention)” and "if you and your client do pursue arbitration, please be advised that JPI Apartment Development * * * will not participate.”

      . Somewhat confusingly, CRI's liability carrier was Continental, which appears in the writ applications in this capacity, separate from its capacity as the bond issuer in the appeal. The roofing contractors’ other insurers are National Fire Insurance Company of Hartford and Transportation Insurance Company.

      . La. R.S. 22:1269 B(1) provides, in part, "The injured person or his survivors or heirs * * *, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and the insurer jointly and in solido, in the parish in which the accident or injury occurred on in the parish in which -an action could be brought against either the insured or the insurer under the general rules of venue prescribed by [La. C.C.P. art. 42] only[.]”

      . The subcontract, ¶ 25, first paragraph, provides in part: "All claims or disputes between Subcontractor and Contractor arising out of or relating to the Contract Documents or breach thereof involving $100,000 or less shall be decided by arbitration governed by the Federal Arbitration act and, in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association unless the parties mutually agree otherwise.”

      . The "owner’s contract” was between JPI Apartment Development LP and JPI Apartment Construction LP.