author: DREW, J.

text:
    Joe GADDY and Terrie L. Gaddy, Plaintiff-Appellant v. UNIVERSAL CABLE SYSTEMS, INC., International Mapping Technologies, Inc., and Universal Collection Systems, Inc., Defendant-Appellee.
    No. 47,088-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 7, 2012.

      Walter D. White, APLC, Shreveport, LA, by Walter Douglas White, for Appellants.
    Robert M. Hanna, for Appellees Universal Cable Systems, Inc., and Universal Collection Systems, Inc.
    Tom McMillen, in Proper Person.
    Before WILLIAMS, DREW and SEXTON (Pro Tempore), JJ.
   DREW, J.

Lin their action for past wages, penalties and attorney’s fees, Oklahoma residents Joe and Terrie Lynn Gaddy sued Universal Cable Systems, International Mapping Technologies, Inc. (“IMT”), and Universal Collection Systems, Inc. Plaintiffs sought wages of $3,007.07, including deductions made for liability insurance along with statutory penalties plus judicial interest, costs and attorney’s fees under La. R.S. 23:631, et. seq.

The Gaddys worked in New Orleans auditing households to determine if unauthorized Cox Louisiana, L.L.C., (“Cox”) television hookups were in service and to sell Cox television subscriptions to unauthorized users and those residents without cable service. After plaintiffs worked one month, the Cox cable contract for auditing services with Universal Cable was terminated and the Gaddys’ work was no longer required. Following the Gaddys’ unsuccessful attempts to collect wages they asserted they were owed, they filed this suit.

After hearing testimony and reviewing multiple exhibits, the trial court determined that the Gaddys were employees of IMT and granted them judgment against IMT for $2,860.95. The trial court rejected the Gaddys’ demands for repayment of liability insurance premiums deducted from their pay and for penalties under La. R.S. 23:632. The judgment granted judicial interest from the date of judicial demand (November 6, 2009) until paid in full, plus all costs of the proceedings. The trial court granted to plaintiffs attorney’s fees of 12$15,000.00. The trial court rejected the Gaddys’ demands against Universal Cable and Universal Collection.

The Gaddys have appealed, contesting the dismissal of Universal Cable and Universal Collection as defendants, the finding that the defendants reasonably withheld insurance premiums from their wages and commissions, the denial of their claim for penalty wages; and requesting additional attorney fees for taking this appeal. None of the defendants have appealed, but Universal Cable and Universal Collections have filed a brief seeking affirmance. IMT has filed no brief. Plaintiffs did not complain about the trial court’s calculations which were primarily based upon the Gaddys’ research, computations, and testimony. Therefore, we will not revisit those figures.

We conclude that the trial court committed manifest error in denying the Gaddys’ request for penalty wages; we amend the judgment to assess penalty of $26,663.40 against IMT. We also award additional attorney fees of $2,500 against IMT. In all other respects, the judgment is affirmed.

BACKGROUND AND TESTIMONY

The record contains an “Independent Contractor Agreement” between Cox and Universal Cable Systems, Inc., which was represented by its president, Jim Moton, as signatory in July 2009. Universal Cable contracted to furnish cable use verification services for Cox in New Orleans subsequent to the 2005 Hurricane Katrina. In a contract executed thereafter, Universal Cable 1..¡contracted with IMT for it to perform the audit of Cox cable services in Louisiana (verifying accounts, account services, and sale of additional services).

President of two separate corporations, Universal Cable Systems and Universal Collection Systems, Inc., both located at the same Memphis, Tennessee address, James Moton testified that after Universal Cable contracted with Cox to perform audit services, Eddie Shaw, an officer in Moton’s company, placed an ad on cable-bar.com. Moton explained that any potential worker who contacted Shaw was referred by Shaw to personnel of IMT which actually hired the workers.

Joe Gaddy described cablebar.com as a networking site for its members working in the cable industry. According to Gad-dy, he first spoke with Eddie Shaw, who referred Gaddy’s inquiry for employment to someone who contacted him by phone a number of days later. Phone records showed that Gaddy also spoke with Tom McMillen. Basically hired via telephone, the Gaddys were instructed to sign authorizations and releases for background checks and drug screens and to report to New Orleans for work starting July 29, subject to favorable background checks and drug screens.

The “Authorization and Release” for background checks and drug screens signed by the Gaddys was labeled “Universal Collection Systems, Inc.” Moton testified the form “probably should have said Universal Cable” which had the checks and tests performed on behalf of IMT. Moton’s company had contracts with companies to conduct background checks and perform drug screens on potential workers. The results of both tests were sent to Universal Cable. Moton testified that 95% of his business activity related to television cable and only 5% dealt with collections.

LMoton explained that the New Orleans audit project was a visual audit in which workers observed the physical hookup on the telephone pole or pedestal in the yard to determine whether or not television cable was installed at a particular residence. Workers were given a list of non-subs (persons who did not have cable, never had cable, or had their cable disconnected). If a nonsub scribing home was connected to cable, the worker went to the door and attempted to sell the resident Cox cable service. If the resident made the purchase, the worker called in the sale to Cox and the cable service was left on. If the resident refused to buy cable or was not at home, the cable service was disconnected by audit workers, who left a door tag with contact information for purchasing cable service.

Moton’s company owned Palm Pilot devices, which were pre-loaded with locations to be worked on a particular day. These devices were distributed daily by the IMT project supervisor, Ralph Boykin, to the audit workers who input sales, disconnects and ok status of assigned locations each day. At the end of the day, the workers returned the devices to IMT which in turn delivered them to Universal Cable’s personnel. Steve Phillips was Universal Cable’s onsite supervisor who printed a “daily hot sync sheet” from the Palm Pilots, which revealed what the worker had done each day with what results. Phillips electronically transmitted the work results to Cox, which then conveyed the next day’s assignments which were loaded onto the devices which were returned to IMT whose supervisor, Boykin, distributed the devices to the audit workers the following morning. Phillips served as a link for Cox, Universal Cable, and IMT. Boykin described Phillips as the Universal Cable person for whom he worked on this job.

IsMoton also identified a shirt worn by the New Orleans workers with the imprint:

UNIVERSAL CABLE

CONTRACTOR FOR COX

COMMUNICATIONS

Moton acknowledged receiving emails from the Gaddys after the project terminated in early September 2009. Therein, the Gaddys complained about the amount of compensation they received and asserted they were entitled to more payment for work done. Moton responded via email that he did not know what the Gaddys’ compensation arrangement was with IMT, but that Gaddy had no agreement for compensation with Universal Cable. He informed the Gaddys that he would check with IMT to see if he could be of assistance. He never issued a check to the Gaddys.

Tom McMillen testified that IMT was responsible for paying the Gaddys and that IMT’s accountant in Staunton, Virginia, did the payroll for and mailed the paychecks to the New Orleans audit workers. Joe Gaddy signed a W-9 prepared by IMT’s accountant. McMillen stated and Joe Gaddy confirmed there was no written agreement with the Gaddys concerning their New Orleans work.

After the project ended around September 1, 2009, McMillen stated he began receiving the Gaddys’ complaints about not receiving all payment they were due. According to McMillen, the amounts demanded did not match the records he had received. McMillen also cited deficiencies on the parts of Boykin and Phillips as delaying factors in resolving the dispute. McMillen repeatedly requested that the Gaddys supply documentation of their claims. On ^September 25, McMillen offered to pay the Gaddys what the company admitted owing them.

The parties jointly placed the deposition of Ralph Boykin into evidence. Having worked as an independent contractor for IMT for seven to eight years, Boykin stated he was IMT’s project manager for the New Orleans audit and served as a liaison between Universal Cable and IMT. The majority of IMT’s work was through Universal Cable, which performed audits for a number of cable television companies. On behalf of IMT, he hired independent contractors to work as subcontractors for IMT performing the audit in the field.

Although assisted in New Orleans by his wife, Terrie Gaddy, only Joe Gaddy received payment from IMT. Testimony was that cable audit workers used wives or girlfriends as drivers or assistants, who were not paid workers. For security reasons, Terrie Gaddy was issued a Cox identification badge as an explanation of her presence on property being audited. Because he knew that Terrie Gaddy assisted with sales of cable service, Boykin also issued her an identifying tech number for paperwork; however, she did not conduct audits. Terrie Gaddy stated that the amounts the Gaddys sought in the litigation covered the work done by both Gad-dys. Her acknowledgment make a nonis-sue of the Gaddys’ complaints in brief about Terrie’s not being paid directly.

Stating he provided no training to the Gaddys, Boykin said another subcontractor showed them how to operate the Palm Pilots. The Gaddys asserted they were trained by defendants. Boykin distributed the Palm Pilots to the audit workers approximately 7:00 a.m. at a hotel in Metairie and collected them around 7:00 p.m. each day. In addition to giving the workers the Palm Pilot, Boykin also gave them a hard copy of their work assignment as backup in 17case the PDA malfunctioned. Boykin also asserted the audit workers were always to keep a hard copy of their sales reports. If audit workers needed copies of sales records, Boykin stated he made copies for them.

According to Boykin, each worker determined the order in which to conduct his or her daily assignments. Boykin described his supervision of audit workers by IMT as “quality control” which included determining whether the workers used the correct colored tags, were properly removing traps (apparently, equipment that controlled the amount and type of channels available to a subscriber), and made sales at a particular address. Boykin also reported that he communicated to the Gad-dys how they would be paid commissions and the rates for different tasks performed. Boykin denied that the company set hours in which work was performed but acknowledged work could not commence before 8:00 a.m. Workers also had to leave the field by 8:00 p.m.

As to equipment used for the audit, workers were required to have a truck, a 28' ladder, and disconnect equipment. Universal Cable owned the Palm Pilots which were supplied to IMT to use in the audit. According to Boykin, IMT provided the Gaddys with signs from the cable company, magnetic signs for the vehicles, plus traps, ties and tags. Gaddy stated that Cox provided a certain disconnect tool.

Boykin took the audit workers to the Cox facility to obtain ID badges to work on the audit. Boykin stated that both Jim Moton of Universal Collection and Steve Phillips from Universal Cable were present when the security badges were distributed to the workers. Everyone listed Universal Cable as their employer when they obtained the badges from Cox. Boykin also admitted his | ^confusion as to which Universal entity was contracted with Cox. His testimony did not appear to distinguish clearly between Universal Collection and Universal Cable.

During the audit, Boykin admitted Gad-dy contacted him “a couple of times” about discrepancies in his pay. The Gaddys also complained to him about unpaid sales commissions. Their paycheck was also late a couple of times. If a discrepancy was found, Boykin notified McMillen. Generally, he thought the matter was resolved because he did not hear back from anyone. After the work ended and the Gaddys complained about nonpayment, Boykin informed McMillen if IMT had made an error on the Gaddys’ pay or reported to McMillen that he could not find a discrepancy. Boykin referred payroll questions to McMillen.

A longtime worker in the cable television business, Joe Gaddy traveled to various locations working in different capacities in that industry. In some locations, he was accompanied and assisted by his wife. While wording as a subcontractor for Foster Cable Company in Ruston, the Gaddys saw an internet ad on cablebar.com labeled “Audit/Sales” with Preferred Hiring Terms “Independent Contractor.” The text of that notice was placed into evidence at the trial. The contact person for information was “Eddie at 901-869-2624” or by a link to an email address. Qualifications set out in the ad were “Must be able to pass background check, drug screen and have a valid driver license.” Applicants were required to have a truck, a 28' ladder and disconnect tools. The job description was “Non Sub Sales Audit, ability to sell is a key. Must disconnect if no sale is made.”

|9In late July, the Gaddys reported as directed to New Orleans. Beginning July 31, they worked in New Orleans but picked up equipment and work assignments in Metairie each day. At the end of each day, they returned the equipment to Metairie. Defendants’ agents informed the Gaddys they would receive additional pay based upon a “commission schedule.”

The Gaddys stated that the defendants assured them that they would be paid for sales arising from their contacts with residents in their assigned work areas. If a home had an unauthorized cable connection or no cable connection, the plaintiffs contacted the resident to sell cable service. Resulting sales were called into the Cox Communication call center. If a resident was not present or refused to make a purchase, Gaddy disconnected any unauthorized hook-up and left a door tag with a Cox phone number for the resident to call. If a customer Gaddy disconnected later called Cox to acquire cable service, that person would be on daily reports as Gad-dy’s customer for whom Gaddy was to receive compensation for the sale.

Gaddy also described the procedure for ' returning to an address to check whether the customer was paying for the services he was receiving. Because defense agents failed to properly report the data to Cox, the Gaddys contended they were not paid for all the sales and work accomplished and they were not paid correctly according to the information they supplied their supervisors.

The Gaddys say they were terminated without notice on September 1, when the contract one or more of the defendants had with Cox Communications was “not renewed.” According to Gaddy, he did not know for whom he was working but everything he saw “had Universal on it.” Gad-dy stated he signed Imthe W-9 after he had begun working in New Orleans. He also signed paperwork stating he was employed by Universal Cable in order to get his badge.

Before work each day, he met with Boy-kin at the hotel. Initially, the PDAs did not work correctly so they used paper instructions. Two or three days later, they began using the Palm Pilots. If they arrived late, they were reprimanded. There was no option to change work areas on a given day. Gaddy stated he had to obey everyone, including Boykin and Steve Phillips.

Gaddy stated they were not timely paid for their sales. Initially, Gaddy was paid for his audits but not for sales made. McMillen did not pay on the day he had told Gaddy payment would be made. Gad-dy said payments were inaccurate from the beginning and that his first paycheck came from Oklahoma City and was issued by IMT.

When leaving door tags, the Gaddys initially included a local phone number supplied by Boykin, which was answered by Boykin’s wife in Alabama. However, they were unsuccessful in getting sales credit for some calls customers made to that number. When the Gaddys left their own phone number, they made a lot more money from called-in sales. In Gaddy’s view, IMT exercised so much control, there was no option to be a contractor.

Gaddy had no written contract with IMT. Gaddy did not care whether he was working for IMT or Universal Cable. After the job ended, Gaddy wrote Moton that his pay had been shorted approximately $1,600. Although told by Moton and/or McMillen that there would be no disconnects in the audit, Gaddy stated that disconnecting was necessary to get a sale. Among his job duties wasJjjattempting to contact unauthorized customers, turn in U/A forms, and make a visual audit.

To determine how much they were owed, the Gaddys maintained a running sales total which they compared periodically to the hot sync totals from the Palm Pilots. They did not bill for regular pay but made submissions to IMT when the payments they received were incorrect. The Gaddys prepared a spreadsheet submitted September 8. “Invoices” referred to in the Gaddys’ emails were prepared to cover discrepancies in payments. In an email to McMillen, Gaddy stated they had been paid only for 14 out of 51 sales they made. On September 15, Gaddy wrote McMillen that the deal regarding payment was between Gaddy and “your company (IMT).” On December 23, IMT’s attorney sent the Gaddys $762.97 and a release.

Gaddy explained that his September 18 email to Jim Moton stating he worked for Tom McMillen of IMT in New Orleans and would sue for “breach of contract” was his attempt to get paid for the work done. A September 22 email from McMillen to Gaddy stated he was trying to resolve the discrepancy in their figures.

In a September 30 email, Gaddy claimed $2,664.07 was due him. Gaddy explained that he calculated sales for which he was not paid by returning to addresses he had disconnected. If the location had service, he called Cox to verify the level of service purchased and obtained the account number from Cox.

Gaddy understood there were two levels of payment: one for sales at the door and another for customers who called into Cox. Returning to cut off residents who had unauthorized cable service was, Gaddy acknowledged, not | ^authorized work included on the Palm Pilot daily assignments. He returned to check on cable service on his own. Gaddy explained that frequently when he returned to complete a sale, he would check a nearby location that he had previously disconnected. Gaddy stated he worked off the Palm Pilot instructions every day. Gaddy said all his disconnects were made at the side of the house and not on the pole itself.

Compared with work he did under contract for Foster in Ruston, Gaddy stated that beginning work at 7:00 a.m. and turning in equipment at a particular time each day was required for the New Orleans work. Initially, Gaddy thought he worked for Universal Cable because his paycheck was the only thing that stated IMT. In contrast to Boykin’s testimony about sales records, Gaddy was not allowed to keep any of the four sales receipt copies; the only sales for which he had records were copies Boykin made of some Gaddy sales.

Terrie Gaddy testified she prepared the spreadsheet submitted by correlating everything she got from the job including route sheets, audit tag sheets, Cox information, customer information plus anything else they had. Terrie also described the personal records and notes she kept of the couple’s daily activities. All the information came from the work done on the New Orleans audit. After August 15, Boy-kin stopped giving them copies of their daily sync sheets.

Terrie explained their payment demand by stating they earned $7,294.00 while working and were paid $5,511.00, leaving a balance of $1,783.06 plus $1,260.50 from sales commissions for Cox cable service for a total of $3,043.56. She obtained the data from red tag sheets concerning sales called into Cox for which they had not been paid. When the Gaddys realized they | iswere not being paid as they should have been, they started making copies of records. The average daily rate of $305.53 was calculated by dividing 26 or 28 working days into $8,554.00, the sum of the pay they received plus the amount they asserted they were due.

Terrie said for whom they worked was, ‘Tour guess is as good as mine.” They took orders from everyone: Ralph Boykin on a daily basis, Steve Phillips was seen occasionally and gave directives, and they spoke with Jim Moton once.

Terrie also explained that the couple were paid only for those audits listed on the PDA. They were not paid for any other locations audited in the area they were working. However, Cox was very interested in any locations where people were stealing cable service. Although they were told the work was a visual audit only, the only way they could make sales was to disconnect unauthorized users after they had verified the location was not a Cox subscriber. If they made a sale to such an unauthorized user at a location not listed in the PDA, Terrie asserted they were absolutely entitled to be paid for that sale.

REASONS FOR JUDGMENT

In written reasons, the trial court found that Cox entered an independent contractor agreement on July 14, 2009, with Universal Cable for the latter to perform an audit of Cox’s cable service in New Orleans. On August 4, 2009, Universal Cable entered a contractor agreement with IMT for the actual performance of the audit; Tom McMillen signed this agreement on behalf of IMT. Thereafter, someone at IMT placed an ad for an audit/sales position described as an “independent contractor.”

| uWorking in Ruston at the time, the Gaddys responded to the ad and drove to New Orleans, where they worked from approximately July 29 until September 1, 2009. On that date, Cox terminated its agreement with Universal Cable.

The Gaddys claimed that they were still due $3,043.56 for sales, audits and improper insurance deductions, plus 90 days’ penalty wages at the rate of $305.53 per day, reasonable attorney fees, judicial interest and all costs.

The court noted that the application of R.S. _ 23:631-632 depended upon finding that the Gaddys were employees, not independent contractors, a factual determination made on a case-by-case basis. White v. Frederick, 44,563 (La.App.2d Cir.8/19/09), 17 So.3d 1016, writ denied, 2009-2059 (La.11/25/09), 22 So.3d 168. The court performed an intricate analysis of the evidence. The trial court reviewed the factors in Hickman v. Southern Pac. Transport Co., 262 La. 102, 262 So.2d 385 (1972), which denoted what constitutes an independent contractor relationship. The relevant query and important issue are whether the principal retained the right to control the work, not the actual supervision and control exercised. An independent contractor has freedom of action and choice when undertaking the work and a legal responsibility if the work is not done according to the contract. Hickman, supra.

The trial judge found that the relationship between the Gaddys and IMT was one of employer/employee, not principal/independent contractor, in spite of the facts that (a) the Gaddys’ position was advertised as an independent contractor, (b) no taxes were withheld for the Gaddys’ pay, and (c) payments were reported on a Form 1099 and not a W-2. Relying upon the “Scope of 11fiWork” attached in evidence, the trial court listed the duties and responsibilities of field auditors.

Upon discharge or resignation of an employee, R.S. 23:681 required the employer to pay the amount then due under the terms of employment on or before the next payday or no later than 15 days following discharge, whichever occurs first. A penal statute which must be strictly construed, R.S. 28:632 mandates that any employer failing to comply with R.S. 23:631 is liable to the employee for 90 days’ wages at the employee’s daily date of pay or full wages from the demand for payment until the employer tenders the amount of unpaid 11(iwages, whichever is less. Penalty wages are imposed only if the employer is in bad faith or unreasonable; if the employer has an equitable defense, no penalty can be imposed. Glover v. Diving Servs. Int’l, 577 So.2d 1103 (La.App. 1st Cir.1991).

The court considered the Gaddys’ claim that they were still due wages of $3,043.56, and IMT’s audit setting unpaid wages at $762.91. The court accepted the Gaddys’ calculations but deducted 6% for mandatory insurance coverage, awarding total unpaid wages of $2,860.95. The court found that the Gaddys were aware of the mandatory insurance coverage and disputed that they really needed it, but that this was a valid deduction and created a bona fide dispute precluding the award of penalty wages.

Finally, the court noted that reasonable attorney fees were due if the employee files a well-founded suit for unpaid wages, even if penalty wages are not imposed. Cleary v. LEC Unwired, 2000-2532 (La.App.1st Cir.12/28/01), 804 So.2d 916. The court awarded the Gaddys $15,000 in attorney fees, together with costs and interest from date of judicial demand until paid.

DISCUSSION

La. R.S. 23:631, Discharge or resignation of employees; payment after termination of employment, provides, in pertinent part:

A. (l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.
(b) Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under 117the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no later than fifteen days following the date of resignation, whichever occurs first.
(2) Payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.

As noted by the trial judge, application of this statute depends upon finding that the person seeking unpaid wages is an employee, a decision made upon the facts of each case. See Tower Credit, Inc. v. Carpenter, 2001-2875 (La.9/4/02), 825 So.2d 1125. In Hickman, supra, the Louisiana Supreme Court explained the independent contractor relationship:

connotes a freedom of action and choice with respect to the undertaking in question and a legal responsibility on the part of the contractor in case the agreement is not fulfilled in accordance with its covenants. The relationship presupposes a contract between the parties, the independent nature of the contractor’s business and the nonexclusive means the contractor may employ in accomplishing the work. Moreover, it should appear that the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction, in the performance of the service, of his employer, except as to the result of the services to be rendered. It must also appear that a specific price for the overall undertaking is agreed upon; that its duration is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach.
The law further recognizes that inquiry to determine whether a relationship is that of independent contractor or that of mere servant requires, among other factors, the application of the principal test: the control over the work reserved by the employer. In applying this test it is | iRnot the supervision and control which is actually exercised which is significant, the important question is whether, from the nature of the relationship, the right to do so exists.

Hickman, supra, at pp. 390-891. Citations omitted.

Gaddys’Status with IMT

We find no manifest error or clear wrong in the trial court’s factual finding that the Gaddys were employees of IMT. Although they were informed they were independent contractors, the Gaddys set out numerous examples of their labor being under the direct control of the IMT: where, how, and when they worked was controlled; Boykin provided training them for PDAs; the Gaddys supplied regular and daily reports; Joe Gaddy was paid at regular weekly intervals; the Gaddys worked solely on the audit from July 29 until September 1; and the Gaddys could have been fired at any time or quit at any time.

Besides directing the activities to be performed during the audit, Boykin, the IMT project supervisor, required the workers at an appointed time to pick up their daily instructions containing locations to be worked on a particular day and mandated that the PDAs be returned to Boykin at the same location in Metairie at a particular time. The Gaddys stated they were reprimanded if they did not comply with the times as dictated for beginning and ending work and for receiving and returning the PDAs.

Although Boykin stated the workers were free to decide in what order they audited each address, the locations themselves were carefully assigned each day on the PDAs distributed by Boykin. Gaddy stated the audit workers had no flexibility in deviating from the locations contained on the PDAs. Moreover, the workers had no flexibility to request different location | ^assignments if they were given a area which produced few sales. What Boykin described as “quality control” was in reality his close supervision of the tasks performed by the Gaddys including determinations that they properly used door tags and removed traps on cable service and verifications that they made sales at a particular address. In this case, IMT not only reserved the right to closely supervise and control the Gaddys’ labor, but also actively exercised that control and supervision. The trial court’s conclusion that the Gaddys were IMT employees is neither clearly wrong or manifestly erroneous.

Gaddys’ Status with Universal Defendants

The Gaddys contend on appeal that they were employees not only of IMT but both Universal defendants. The Gaddys seek to rely on the fact that the forms consenting to the drug and background checks were labeled “Universal Collection.” These forms were signed so that checks could be performed to ascertain whether the Gaddys were eligible to work as auditors. Although labeled Universal Collection, Moton stated that Universal Cable was the company involved in this cable audit. Both Moton and Boykin explained that the actual hiring was done by IMT.

Notwithstanding the Gaddys’ claim that they obeyed orders given by Steve Phillips of Universal Cable who coordinated between IMT and Cox Cable in New Orleans by servicing the Palm Pilots, the Gaddys provided no evidence of what type of instructions or when such instructions were ever given them by Phillips.

Universal Cable has a contractual relationship with Cox to provide the New Orleans audit. Universal Cable in turn subcontracted to IMT which actually performed the audit. Testimony is that both Universal Cable and IMT, 12pthrough Ralph Boykin, placed ads for workers. However, the contacts to Universal were referred to IMT whose personnel, McMillen and Boykin, spoke with and hired workers. The record does not establish that the Universal defendants retained any right to control the Gaddys’ work on the audit. Nor is there any evidence that any actual supervision by the Universal defendants took place. We find no clear wrong or manifest error in the trial court’s conclusion that there was no employment relationship between the Gaddys and the Universal defendants.

Single Business Entity

For the first time on appeal, the Gaddys argued that the Universal defendants operated as a single business entity with the result that they were all employers of the Gaddys. In Town of Haynesville, Inc. v. Entergy Corp., 42,019 (La.App.2d Cir.5/2/07), 956 So.2d 192, 198-199, writ denied, 2007-1172 (La.9/21/07), 964 So.2d 334, this court noted that under Louisiana law, corporate separateness is recognized and respected. Piercing the corporate veil is described as a radical remedy employed only in exceptional circumstances. Piercing the corporate veil on the basis of the “alter ego” theory involves considering five factors: (1) commingling of corporate and shareholder funds, (2) failure to follow statutory formalities for incorporating and transacting corporate affairs, (3) undercapitalization, (4) failure to maintain separate bank accounts and bookkeeping records, and (5) failure to hold regular shareholder and director meetings. This record contains no evidence establishing the presence or absence of the foregoing factors or the existence of exceptional circumstances which would have supported finding a single business entity among these defendants.

12iPenalties

La. R.S. 23:632 provides for the imposition of penalties on employers in certain circumstances:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

In Smith v. Acadiana Mortg. of Louisiana, Inc., 42,795 (La.App.2d Cir.1/30/08), 975 So.2d 143, 149-150, this court explained the imposition of penalties in suits for unpaid wages:

In order to recover penalty wages and attorney fees under LSA-R.S. 23:632, the claimant must show that (1) wages were due and owing; (2) demand for payment was made where the employee was customarily paid; and (3) the employer failed to pay upon demand.
An employee is entitled to recover penalty wages if he or she proves that the employer acted in an arbitrary or unreasonable manner. Penalty wages are penal in nature and must be strictly construed. La. R.S. 23:632 was designed to compel prompt payment of wages upon an employee’s discharge or resignation.
A claim for penalty wages under La. R.S. 23:632 may be defeated by an equitable defense. However, it is only “a good-faith, non-arbitrary defense to liability for unpaid wages, ie., a reasonable basis for resisting liability,” which permits a court to excuse the employer from the imposition of penalty wages.
An employer’s reliance on an unlawful company policy does not constitute a good faith, non-arbitrary defense to liability for unpaid wages under La. R.S. 23:632. However, Louisiana courts have recognized that an employer’s claim of setoff, or compensation, constitutes an equitable defense to a penalty wage claim.

Smith, supra at pp. 149-150. Citations omitted.

Whether there exists a valid equitable defense depends on the particular facts of each case. A trial court’s findings of fact with regard to whether the plaintiff is entitled to penalty wages cannot be reversed on appeal in the absence of manifest error or unless clearly wrong. Robinson v. Apria Healthcare, Inc. 38,438, (La.App.2d Cir.5/27/04), 874 So.2d 418. While the trial court denied penalties based on its finding of a “bona fide dispute,” the Gaddys contend that all of the defendants should pay penalties due to their arbitrary and capricious actions in dealing with the Gaddys.

A. 6% Deduction for Liability Insurance Premium

According to the Gaddys, the 6% deduction made for liability insurance coverage was unauthorized and was per se arbitrary. The Contractor Agreement between Universal Cable and IMT required that all workers have general liability insurance. The Independent Contractor Agreement between Cox and Universal Cable required that all personnel have liability insurance. Boykin stated he informed Gaddy about the mandate that audit workers have liability insurance. The alternative options Boykin presented to the Gaddys were: (1) the Gaddys could provide certification of their own personally obtained liability coverage, (2) the Gad-dys could purchase personal liability coverage and provide proof of insurance, or (3) the Gaddys could have a 6% deduction made from their pay for their coverage on IMT’s liability insurance coverage. Pursuant to a verbal agreement, Boykin said that Gaddy chose the 6% deduction from earnings. Gaddy testified that he disagreed with the need for liability insurance but was informed that the insurance was a requirement in border to have the job. Joe Gaddy was emphatic in his opinion that liability insurance was unnecessary because it was his opinion that audit workers did nothing that could result in liability.

The trial court accepted Boykin’s statement that the Gaddys opted for the 6% deduction to work on the audit. The trial court’s view that the Gaddys could have “negotiated a better agreement or simply declined employment” was unfortunately harsh in light of the contractual mandates that audit workers have liability coverage. Just as audit workers were required to have a truck and certain other equipment, they also had to be covered by liability insurance to perform the audit. IMT’s deduction for the insurance premium for mandated coverage cannot be characterized as arbitrary.

B. Defendants’ Failure to Produce Requested Records

The Gaddys also argue that the defendants’ repeated refusal to supply the requested documentation of sales and other compensable activities was intentional and demonstrated lack of candor and bad intent justifying imposition of severe penalties. However, trial commenced without any objection on that issue being made by plaintiffs. Moreover, the records of this court contain no indication that the Gaddys sought supervisory relief based upon the defense’s recalcitrance in providing requested sales records. At trial, the Gad-dys introduced into the record a large notebook filled with calculations based upon their own self-generated records and information and records obtained from the defendants. The trial court essentially adopted the figures produced by the Gad-dys in casting IMT in judgment. Thus, the Gaddys waived their complaints about any deficiency on the part of any defendants to provide materials.

C. Arbitrary and Unreasonable Delay

124An appellate court may not set aside a trial court’s finding of fact absent manifest error or clear wrong. The reviewing court should not substitute its opinion for the conclusions made by the district court, which is in a unique position to see and hear the witnesses as they testify. Robinson, supra. While the trial court denied La. R.S. 28:632 penalties based upon its conclusion that a “bona fide” dispute existed, we, with respect, conclude that the trial court was clearly wrong in denying penalties to the Gaddys under these particular facts.

All the witnesses testifying as to the Gaddys’ pay acknowledged that there was disagreement as to the amount owed. The basis on which we find that the trial court erred was that their employer, IMT, was arbitrary and unreasonable in its unconscionable delay in resolving the pay problem that had been brought to the attention of IMT’s project supervisor in New Orleans almost as soon as the Gaddys began working. There were repeated discrepancies in pay between the amounts they received and what their own records indicated they were owed. A particular problem occurred with sales for which the Gaddys provided (as directed) the local phone number answered by Boykin’s wife in Alabama. The Gaddys were not paid for a number of those sales. Joe Gaddy testified when they began leaving their personal cell phone number, they got many more sales responses for which they were paid. In response, the trial court awarded the plaintiffs the amount they sought for unpaid sales.

Boykin stated he referred pay issues to McMillen. At his deposition, Boykin described his response to the Gaddys after the audit ended: “I talked to them once or twice. And then I always go to Tom (McMillen) and say, look, we did make a mistake. I’ve looked here. This is what we owe them. Or, |2fithey’re saying we owe this, but I can’t find it. You need to find out what is going on. And that’s where I leave it.” As noted previously, McMillen’s primary response was to request documentation.

An example of IMT’s unreasonable, arbitrary conduct was demonstrated in McMillen’s September 25, 2009, email to the Gaddys which stated he was still “working on the numbers. But if you guys need that last check (the amount that we show), we can send that out ASAP.” Clearly, IMT had information very soon after the audit terminated that the Gaddys were owed payments and failed to comply with their obligations to the workers.

Based upon our review of this record, we find that IMT, the employer of the Gaddys, was arbitrary and capricious in its lack of response and unnecessary delay addressing the Gaddys’ complaints about being owed pay. While the total was disputed, IMT acknowledged in September 2009 the company owed the Gaddys back-pay but failed to make any kind of tender until 3]6 months after the Gaddys’ work was no longer required. The plaintiffs are entitled to recover penalties of 90 days’ average daily pay.

DECREE

The judgment of the trial court is amended to award to plaintiffs, Joe Gaddy and Terrie Lynn Gaddy, penalty wages under La. R.S. 23:632 in the amount of $26,663.40 against their employer, International Mapping Technologies. Further, the plaintiffs are awarded attorney’s fees for this appeal in the amount of $2,500.00. In all other respects, the judgment of the trial court is affirmed. International Mapping Technologies is cast with the costs of the appeal.

AMENDED, AND AS AMENDED, AFFIRMED.

      . Unfortunately, both of the Universal defendants have identical initial letters. Adding to the confusion in this record, the Gaddys referred in brief to Universal Cable Systems as “UCS” while the defendants in brief labeled Universal Collection Systems as "UCS.”

      . $3,007.07 is the figure in the Gaddys’ petition. At trial, the trial court used the figure $3,043.56 as both the amount due and sum from which the award was calculated.

      . In testimony and paperwork, unauthorized accounts were referred to as U/As.

      . From the average daily pay figure used by the trial court, $304.53, is subtracted $18.27 (the 6% liability insurance premium for which the Gaddys were denied recovery) for a daily pay of $296.26 x 90 days’ penalty, which equals $26,663.40, the penalty under La. R.S. 23:632.

      . This document was attached to the Independent Contractor Agreement between Cox Louisiana, LLC, and Universal Cable System, Inc:

        Scope of work

      Identify and report any and all unauthorized connections
      Properly secure pedestals lock boxes, and vaults whenever possible
      * Document any observed cable plant damage or locations where pedestals/lock-boxes are damaged or cannot be secured Identify and document addresses with satellite dishes
      Daily reporting of previous days work
      Complete and turn in U/A report daily on all U/A’s found
      Attempt to make contact and directly communicate with all unauthorized accounts for sales conversions
      Hang door hangers on all U/A addresses Contractor to work from 7a-7p for auditing only; after 7pm for follow-up sales until 8pm
      Tagging procedure will be communicated to contractor before work begins
      Sales offers will be communicated to contractor before work begins
      Sales number will be communicated before work begins
      Disconnects in error by contractor personnel must be reconnected by contractor personnel.
      Contractor must provide Cox with contact information for the person(s) delegated with this responsibility and/or any errors related to the scope of work.
      QC Review:
      • Unauthorized users identified Contractor Needs:
      • Tools and safety equipment needed, to be supplied by contractor with the exception of terminator tools, star keys or other system specific security tools which will be supplied by Cox)
      • Materials (i.e., locks, keys, peds, traps, sales materials, supplied by Cox)
      • Door hangers will be provided by Cox
      • Vehicles must have magnetic signs on drivers and passengers doors stating they are a contractor for Cox (provided by Cox)


source: Caselaw Access Project

author: SEXTON, Judge Pro Tem.

license: Public Domain

text:
    LUBA CASUALTY INSURANCE COMPANY, Plaintiff-Appellant v. HYGENIC CORPORATION, d/b/a Thera-Band; Helping Hands Physical Therapy, LLC; and American Casualty Company of Reading, Pennsylvania, Defendants-Appellees.
    No. 47,395-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2012.

      Funderburk & Andrews, Baton Rouge, LA, by David T. Butler, Jr., for Appellant.
    Mayer, Smith & Roberts, LLP, Shreveport, LA, by Steven E. Soileau, for Appel-lees, Helping Hands Physical Therapy, LLC & American Casualty Co. of Reading, PA.
    Keogh, Cox & Wilson, Baton Rouge, LA, by John P. Wolff, for Appellee, Hygenic Corporation, dba Thera-Band.
    Law Offices of Street & Street, Monroe, LA, by D. Randolph Street, The Williams Law Firm, LLC, Natchitoches, LA, by R. Bray Williams, for Intervenor/Appellant, Scott Ramociotti.
    Before STEWART, GASKINS & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

11Plaintiff/Appellant, LUBA Casualty Insurance Company (“LUBA”), and Interve-nor/Appellant, Scott Ramociotti, appeal two separate summary judgments in favor of Defendants/Appellees, Helping Hands Physical Therapy, LLC (“Helping Hands”), and its insurer, American Casualty Company of Reading, Pennsylvania, respectively dismissing with prejudice LUBA’s and Mr. Ramociotti’s claims against Helping Hands. For the reasons set forth herein, the summary judgments are reversed and the matter is remanded.

FACTS

Mr. Ramociotti’s left hand was injured by a saw blade in a work-related accident on May 7, 2008. The accident resulted in amputation of three fingers on his left hand and a fracture of his left index finger. Mr. Ramociotti underwent several surgeries, including fusion of his left index finger. LUBA was the employer’s workers’ compensation carrier and paid benefits to, and on behalf of, Mr. Ramociotti.

During the course of treatment, Mr. Ra-mociotti was referred to Helping Hands for physical therapy to restore function and strength to his left arm. The physical therapy regimen created for Mr. Ramo-ciotti by Helping Hands, and approved by his orthopedic surgeon, included exercises with a Thera-Band exercise band.

The Thera-Band is a yellow latex band, much like a very large rubber band, that is stretched during exercises providing muscle building through resistance. It was provided to Mr. Ramociotti by Chere Johnson, the Helping Hands physical' therapist, and the exercises were to be performed by Mr. Ramociotti at home.

|2Mr. Ramociotti used the Thera-Band uneventfully several times a week for about a month. On August 23, 2009, however, during one of the exercises, the Thera-Band broke and re-injured Mr. Ra-mociotti’s left index finger. This re-injury resulted in additional medical treatment and additional benefits paid by LUBA.

On August 2, 2010, LUBA filed suit against the manufacturer of the Thera-Band, Hygenic Corporation d/b/a Thera-Band, and Helping Hands to recoup additional benefits paid to, or on behalf of, Mr. Ramociotti resulting from the re-injury caused by the failure of the Thera-Band. Helping Hands’ insurer was added by supplemental petition on June 28, 2011. Helping Hands filed a motion for summary judgment on January 10, 2011. Hearing on the motion was set for August 4, 2011. In the interim, on July 19, 2011, Mr. Ra-mociotti filed a Petition for Intervention asserting product liability claims against Hygenic Corporation and negligence claims against Helping Hands for failure to properly instruct and warn him on use of the Thera-Band. The hearing on the motion for summary judgment on LUBA’s claims took place on August 4 and the motion was granted that date. LUBA took a devolutive appeal and the appeal order was signed on October 11, 2011.

On October 24, 2011, Helping Hands filed another motion for summary judgment in response to Mr. Ramociotti’s Petition for Intervention. Hearing on the motion was set for December 8, 2011. Following a very brief argument, the motion was granted by the trial judge and Mr. Ramociotti’s claims against |aHelping Hands were dismissed. Mr. Ramociotti also filed a devolutive appeal. Both summary judgments are before us for review.

DISCUSSION

Summary Judgment — Applicable Law

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Palmer v. Martinez, 45,318 (La.App.2d Cir.7/21/10), 42 So.3d 1147, writs denied, 10-1952, 10-1953, 10-1955 (La.11/5/10), 50 So.3d 804, 805. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and .shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact and that the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(B); Duncan v. U.S.A.A. Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544.

On a motion for summary judgment, the mover has the burden of proof. A mover who will not bear the burden of proof at trial on the matter before the court on the motion is not required to negate all essential elements of the adverse party’s claim, action or defense. Rather, the mover need only point out an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. La. C.C.P. art. 966(C)(2).

| ¿When the motion for summary judgment is made and supported as provided in La. C.C.P. art. 966, the adverse party “may not rest on the mere allegations or denials of his pleading,” but his response, by affidavits or other proper summary judgment evidence, “must set forth specific facts showing that there is a genuine issue for trial.” If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B).

In conducting our de novo review, we consider all reasonable inferences to be drawn from the record in the light most favorable to the non-movant. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764.

In order to prevail in a negligence action, the plaintiff must show that (1) the conduct in question was a cause in fact of the resultant harm; (2) the defendant owed a duty to plaintiff; (3) the duty owed was breached; and (4) the risk or harm caused was within the scope of the breached duty. Mart v. Hill, 505 So.2d 1120 (La.1987). In the case sub judice, the issue in both summary judgment motions was whether there exists a genuine issue of material fact regarding whether Helping Hands, through Ms. Johnson, breached its duty to properly instruct and warn Mr. Ramociotti about the Thera-Band. Our de novo review of the record reveals a clear factual issue that must be decided by the trier of fact and which renders summary judgment inappropriate.

The manufacturer’s warnings for proper use of the Thera-Band provide that the band is to be “examined for small nicks, tears or punctures” before each use and that the band should be discarded and replaced if “any flaws” are found. |5The danger is spontaneous tearing of the band which can result in injury, which is exactly what happened to Mr. Ramociotti.

In support of its motions for summary judgment, Helping Hands offered the deposition testimony of Ms. Johnson. She testified that she provided specific instructions and warnings to Mr. Ramociotti about inspecting the band for any nicks, tears or thin places prior to each use. Ms. Johnson stated that she explains to patients that the Thera-Band is a rubber band and can break. Specifically, Ms. Johnson testified, “I tell them to inspect it each and every time before they use it. Look for knicks (sic), pull it apart and see if it looks thinner.” She claims to advise all of her patients that, if there is a problem with the band, the patient should bring it to her and she will replace it with a new one.

Mr. Ramociotti testified in his deposition, prior to filing his Petition for Intervention, that he “eyeballed” the Thera-Band before using it and that he used his common sense in looking at the band to make sure it was not torn or cut before stretching it. After intervening and in opposition to Helping Hands’ motion, Mr. Ramociotti testified by affidavit that he was not given written manuals or warnings of any kind on proper use of the Thera-Band, nor did Ms. Johnson verbally instruct him on the importance of closely inspecting the Thera-Band in accordance with the manufacturer’s warnings. He further testified that Ms. Johnson did not advise him to inspect the band for any and all “small nicks, tears or punctures” or about the need to discard and replace the band if any flaws were present. Mr. Ra-mociotti testified in the affidavit that he did not examine the Thera-Band as closely as the manufacturer’s warning provides because he was not instructed to do so by Ms. Johnson. We find no [^conflict between Mr. Ramociotti’s deposition and affidavit testimonies. The focus of the inquiry is on the warnings given by Ms. Johnson, or lack thereof, not whether Mr. Ramociot-ti exercised good common sense in using the Thera-Band.

As previously stated, the sufficiency of the warnings and instructions provided by Helping Hands is the central issue in the case. The above-described testimony is contradictory and, thus, creates a genuine issue of material fact rendering summary judgment inappropriate.

As a final note, we are mindful of Mr. Ramociotti’s argument that the summary judgment procedure was abused in this case with the addition of last minute and untimely evidentiary support for Helping Hands’ motion for summary judgment. While we note possible procedural irregularities due to the last minute addition of supporting evidence by Helping Hands, m light of our holding on the merits, we pretermit discussion of this matter.

DECREE

For the foregoing reasons, the summary judgments in favor of Helping Hands Physical Therapy, LLC, and dismissing the claims of LUBA Casualty Insurance Company and Scott Ramociotti are reversed and the matter is remanded to the trial court for further proceedings. Costs of appeal are assessed to Helping Hands Physical Therapy, LLC.

JUDGMENTS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

      . Hygenic Corporation also filed a motion for summary judgment against LUBA’s claims, which was denied by the trial court.

      . Hygenic Corporation did not file a motion for summary judgment in response to Mr. Ramociotti’s petition for intervention.

      .LUBA’s return date passed in January 2012. Following the trial court’s granting of Helping Hand’s motion against Mr. Ramociotti and his motion and order for appeal, the clerk of the district court moved to have both appeals made returnable on the same date. The trial judge granted the motion; and, therefore, the appeals of both LUBA and Mr. Ra-mociotti are now before us.


text:
    AENEAS WILLIAMS IMPORTS, L.L.C. & Williams Automotive Group, L.L.C. Plaintiffs v. Butch CARTER, Tiger 1 Tire & Service Center, L.L.C. and Carter Group, Inc. Defendants.
    No. 47,989-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2012.

      Culpepper & Carroll, By: Bobby L. Cul-pepper, Counsel for Aeneas Williams Imports, L.L.C. & Williams Automotive Group, L.L.C.
    McLeod Verlander, By: David E. Ver-lander, III, Counsel for Applicants Butch Carter, Tiger 1 Tire & Service Center, L.L.C. and Carter Group, Inc.
    Before STEWART, CARAWAY & SEXTON (Pro Tempore), JJ.
   JJVRIT GRANTED; MADE PEREMPTORY; REMANDED.

Applicants, Butch Carter, Carter Group, Inc. and Tiger I Tire and Service Center, L.L.C., seek supervisory review of the trial court’s overruling of their exception of lack of subject matter jurisdiction.

The instant suit is for default on the payment of two promissory notes. The promissory notes do not contain any language regarding alternative dispute resolution. However, a previously executed sales agreement between the parties, and the basis for execution of the promissory notes, provided that any disputes arising from the sales agreement would be resolved by mediation, and, thereafter, if mediation was unsuccessful, binding arbitration. The sales agreement also provided that a portion of the sales price of the purchase would be paid by | ^execution of a promissory note. The applicants contend that the arbitration clause found in the sales contract should be incorporated into the promissory notes by reference.

In Aguillard v. Auction Management Corp., 908 So.2d 1, 2004-2804 (La.6/29/05) the Louisiana Supreme Court explained:

Accordingly, even when the scope of an arbitration clause is fairly debatable or reasonably in doubt, the court should decide the question of construction in favor of arbitration. The weight of this presumption is heavy and arbitration should not be denied unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation that could cover the dispute at issue.

When a party to a lawsuit claims that the matter is required to be submitted to arbitration, the threshold inquiry is whether the parties have agreed to arbitrate the dispute in question. Id. (citing Johnson’s, Inc. v. GERS, Inc., 34,268 (La.App.2d Cir.1/24/01), 778 So.2d 740). This determination involves two considerations: (1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls within the scope of that arbitration agreement. Id.

The Louisiana Third, Fourth and Fifth Circuit Courts of Appeal have held:

The incorporation of an arbitration clause by reference to another written contract is a suitable method of evidencing the parties’ intent to arbitrate as long as the arbitration clause in the contract that is referred to has ‘a reasonably clear and ascertainable meaning.

Woodson Const. Co., Inc. v. R.L. Abshire Const. Co., Inc., 459 So.2d 566 (La.App. 3d Cir.1984) (arbitration agreement contained in subcontract between contractor and subcontractor applied to the contract between one subcontractor and another subcontractor by direct reference to contract between contractor and subcontractor); Regions Bank v. Weber, 10-1169 (La.App. 4th Cir.12/15/10), 53 So.3d 1284 (promissory note and corresponding guarantee where “inextricably tied” and therefore arbitration clause in promissory note applied to suit against guarantor); Dufrene v. HBOS Mfg., LP, 03-2201 (La.App. 4th Cir.4/7/04), 872 So.2d 1206 (arbitration clause in “Arbitration Agreement” specifically incorporated by direct reference to the bill of sale).

In the instant case, the sales agreement, containing the arbitration clause, directly referred to the later execution of a promissory note for payment of the purchase price. The sales contract, therefore, demonstrates the parties’ intent to arbitrate any issues arising under the sales agreement, including the execution of a promissory note made in payment of the purchase price. Accordingly, the writ is | ¡.granted, Applicant’s exception of lack of subject matter jurisdiction is sustained and the case is remanded to the trial court to stay the proceedings and enforce the arbitration agreement.


author: HANS J. LILJEBERG, Judge.

text:
    STATE of Louisiana v. Michael D. BALL.
    No. 12-KA-710.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Michael Smith, Assistant District Attorneys, Gret-na, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

_JjOn January 27, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Michael D. Ball, with first degree robbery, in violation of La. R.S. 14:64.1. Defendant pleaded not guilty and proceeded to a jury trial on September 7, 2011. On September 8, 2011, a 12-person jury found defendant guilty as charged. On September 15, 2011, the trial court denied defendant’s Motion in Arrest of Judgment and Alternatively Motion for New Trial. Additionally on that date, the trial court sentenced defendant to 30 years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence with credit for time served.

The State filed a multiple offender bill of information alleging defendant to be a sixth felony offender. On March 8, 2012, the State withdrew the original multiple bill and re-filed a second multiple bill alleging defendant to be a second felony offender. On that date, defendant stipulated to the multiple bill. The trial court then vacated defendant’s original sentence and re-sentenced defendant to 40 | «years imprisonment at hard labor without benefit of probation or suspension of sentence with credit for time served. On March 13, 2012, the trial court granted defendant’s timely motion for appeal.

FACTS

Sergeant Charles Errico of the Harahan Police Department was working the night shift on January 7, 2011, when he responded to a Jefferson Parish Sheriffs Office call at about 2:00 a.m. about a subject in a white Chevy pickup truck stealing wooden pallets at Quikrete of New Orleans in Har-ahan, Louisiana. Sergeant Errico was behind Harahan lockup when he got the call, so he proceeded to the Quikrete location to assist Jefferson Parish deputies. Sergeant Errico was headed east on Jefferson Highway at the intersection with Hord Street when he saw a white pickup truck, matching the vehicle description given, turn right from Hord Street onto Jefferson Highway. Sergeant Errico turned and followed behind the truck as it turned onto Hickory Avenue. As the truck began to travel at a high rate of speed, Sergeant Errico put on his lights and siren and gave chase until the truck turned left into a parking lot at the end of Hickory Avenue and came to a stop. The driver jumped out of the truck and fled on foot. Jefferson Parish Sheriffs deputies arrived and one deputy pursued the suspect on foot.

Sergeant Errico had indicated via radio that a vehicle matching the description of the suspect’s was at Jefferson Highway and Hord Street. Jefferson Parish Sheriffs Office Deputy Micah Blange responded to the call and advised that he was en route. Upon approaching the intersection of Second Street and Hickory Avenue, he observed a white pickup truck traveling at a high rate of speed followed by Sergeant Errico. Deputy Blange joined the chase until the vehicle made an abrupt turn into a parking lot at the end of Hickory Avenue. The suspect |4got out of the truck and fled on foot. Deputy Blange exited his vehicle and chased the suspect, giving loud verbal commands to stop.

Deputy Blange was within ten feet of the suspect when he saw something black in the suspect’s hand. The deputy pulled his pistol and pointed it at the suspect, ordering him to stop and put his hands in the air. The suspect turned and faced him, enabling Deputy Blange to see that the suspect actually had a blue bag in his hand. Deputy Blange holstered his pistol and drew his taser, telling the suspect to stop. When Deputy Blange holstered his gun, the suspect took off again.

Deputy Daniel Lincoln of the Jefferson Parish Sheriffs Office approached from the other side and deployed his taser, causing the suspect to fall. The suspect continued to try to get up. Another deputy arrived and together, they rolled him onto his stomach, and handcuffed him. Deputy Blange read the suspect his rights, which the suspect indicated he understood. Deputy Blange asked the suspect “what are you on?,” and the suspect responded saying “the stupid things that drugs make you do.” Several moments later, Deputy Blange was advised via radio that an armed robbery had occurred at Mr. Binky’s, with the vehicle involved matching the description of the suspect’s vehicle and the perpetrator’s clothing matching those of the suspect. Two witnesses were brought to the scene and both identified the suspect as the perpetrator of the armed robbery.

Deputy Blange returned to the white truck and conducted a search of the vehicle. He found a red bandana on the driver’s side floor board and a pair of black sunglasses on the passenger side floorboard. After the suspect was apprehended, it was discovered he was in possession of a blue Capital One Bank money bag. The money bag contained approximately $210 cash. At trial, Deputy Blange identified the defendant in court as the person that he chased both in the truck and on foot, and ultimately apprehended.

IsMichael Doherty testified that he was at Mr. Binky’s in the early morning hours of January 7, 2011, between 12:00 a.m. and 2:00 a.m. Mr. Doherty testified that he went to Mr. Binky’s, talked to the clerk, Jennifer Rohrbacker, and then both went outside for a cigarette. While outside the store, a man approached them and told him to get on the ground. The man ran inside the store and asked for money. He came back out a minute later. Mr. Doherty testified that he and the clerk were directly outside the door and were only there a couple of minutes before the man approached them.

Mr. Doherty testified that the man was running when he approached them and was wearing a jumpsuit and hoodie, with his face covered from the nose down with a red bandana and sunglasses. The man’s hand was also covered with a bandana, which was either orange or red. Mr. Do-herty testified that he was unsure of what the man had in his hand. He described the man as a white male and further described the jumpsuit as gray or green, with no sleeves, like a mechanics jumpsuit, with a white or gray hoodie underneath. After Mr. Doherty got onto the ground in a squatting position, the man demanded money and asked the clerk, “Where do I go?” and then ran inside. The clerk followed him into the store. The man came out of the store and told them to stay on the ground before running back in the direction he came from. Mr. Doherty testified that he heard footsteps and eventually heard a car door shut, the vehicle start and speed off. Mr. Doherty testified that he was able to see a white vehicle that was either a car or a low lying truck. Mr. Doherty testified that the clerk called 911. The police later took Mr. Doherty to the suspect, who he positively identified based on the clothing he was wearing.

Jennifer Rohrbacker was the sole clerk on duty at Mr. Binky’s Adult Superstore at the time of the robbery. Around 2:00 a.m., she was assisting a | ^customer and spoke with that customer for about 30 minutes. She testified that upon completing a transaction with the customer, they both went outside to smoke a cigarette, leaving no one else inside the store. Ms. Rohrbacker testified that she is allowed to smoke only when no one is in the store. She and the customer were outside “chitchatting” and having a cigarette when she heard footsteps running and getting closer. She then saw a man running towards her. Ms. Rohrbacker described the man as tall, wearing a light green or gray jumpsuit. He was holding something towards her face and she thought it was a gun. The man had his face covered with a handkerchief and he said something about wanting money. She allowed him into the store because she was scared and did not know what else to do.

Ms. Rohrbacker testified that she turned around and watched him walk behind the counter and told him where the money was. She testified that he was not asking where the money was, but she told him because she was scared and wanted him to leave. The man grabbed an old Capital One money bag from behind the counter and left. Ms. Rohrbacker testified there was $210 in the bag. She explained that the store keeps spare change in the bag for customers who need it for the drink machine or back booth area. After the man left, she called 911 and the police arrived within minutes.

Ms. Rohrbacker was taken with the customer to an area nearby, where she identified the man who robbed her. She returned to Mr. Binky’s and was shown a wallet containing the driver’s license of the suspect. She recognized his face as a regular customer of the store who she saw once every couple of months. Ms. Rohrb-acker testified that the man would browse sale movies in the section right across from the counter, ask for change, then go to the back of the store. She |7would make change out of the cash bag. Ms. Rohrbacker also testified that the store had video surveillance inside and outside.

Ms. Rohrbacker identified the defendant in court as the man who robbed her. She testified that defendant had not been at Mr. Binky’s earlier that night, that she did not have a conversation with him, and that they did not “hatch up” a plan to have him come in and take the money. She testified that she thought he might shoot and kill her, but admitted that she went back in the store towards him and held the door for him when he left the store. Ms. Rohrbacker testified that she kept her eyes on the robber and watched his every move the whole time in case she was asked questions.

ASSIGNMENT OF ERROR

In his sole assignment of error, defendant asserts the trial court erroneously denied his requested special jury instruction on the law of conspiracy. Specifically, the defendant asserts that the trial court’s denial of the instruction deprived him of his right to present a defense, namely that the defendant and clerk conspired together to rob the store, thereby committing a mere theft rather than a robbery.

DISCUSSION

Both the Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. State v. Decay, 07-966 (La.App. 5 Cir. 6/19/08), 989 So.2d 132, 144, writ denied, 08-1634 (La.4/13/09), 5 So.3d 161.

Moreover, La.C.Cr.P. art. 802 mandates that the trial court instruct the jury on the law applicable to each case. State v. Batiste, 06-824, p. 14 (La.App. 5 Cir. 3/13/07), 956 So.2d 626, 636, writ denied, 07-0892 (La.1/25/08), 973 So.2d 751. The trial court is required to charge the jury on the law applicable to any theory of | Sdefense, when properly requested, which the jurors could reasonably infer from the evidence. Id. Under La C.Cr.P. art. 807, a requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly pertinent and correct. Id. The evidence presented at trial must support the requested special charge. Id. Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Lawson, 08-123, p. 15 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 527.

Prior to closing arguments, the defense attorney orally requested, off the record, a jury charge as it relates to conspiracy. It is preliminarily noted that defendant did not present a written request for a special jury charge, nor did he serve the State with a copy of such proposed instruction, as required by the first paragraph of La.C.Cr.P. art. 807. The trial transcript reflects that the trial judge and both counsel for the State and defendant participated in a “charge conference” off the record, after which defense counsel, on the record, requested a jury charge related to conspiracy, but added that the trial court had already indicated it would not include the charge. Defense counsel objected for the record and the trial court noted the objection. As defense counsel’s request was not made in writing as required by Article 807, the trial court was not required to grant the defendant’s requested instruction. State v. Netter, 11-202, 11-203 (La.App. 5 Cir. 11/29/11), 79 So.3d 478, 483; State v. Lawson, 08-123 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 527.

[ ciMoreover, even assuming that defense counsel had properly requested the special jury instruction in writing, the record reflects that the trial court properly denied the request for a conspiracy instruction. Defendant relies on Ms. Rohrb-acker’s testimony that she told him where the money was located and opened the door to allow the intruder to exit the store, rather than running away from the business, as evidence of his and her plan to rob the store. Thus, defendant argues that “some” evidence existed to support an instruction of the law of criminal conspiracy. La.C.Cr.P. art. 802 requires the trial court to charge the jury as to the law applicable to the case. This provision has been interpreted to include any instruction as to the law applicable to any theory of defense which a jury could reasonably infer from the evidence. State v. Mead, 377 So.2d 79 (La.1979), citing State v. Marse, 365 So.2d 1319 (La.1978). A defense of conspiracy based upon the above testimony alone, without more, cannot be reasonably inferred from the evidence. Ms. Rohrbacker explained her actions, testifying that she only told defendant where the money was located because she was scared and wanted him to leave. Ms. Rohrbacker stated that she knew defendant as a customer at Mr. Bulky's, but that he was not at the store on the day of the robbery. She further maintained that she did not have a conversation with defendant and did not “hatch up” a plan to have him come in and take the money.

Additionally, Article 807 requires that a requested special charge be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly pertinent and correct. We find that a charge on criminal conspiracy in the instant case would require explanation to the jury. This extraneous qualification is expressly prohibited by La.C.Cr.P. art. 807.

Furthermore, defense counsel was allowed to fully argue to the jury in closing argument his theory of an “inside job.” Because he was able to present his Imtheory of conspiracy to the jury, defendant has failed to show that he was prejudiced by the trial court’s failure to give the requested special jury charge.

Based on the foregoing, we find that the trial judge’s denial of defendant’s request for special jury instruction was proper and did not violate defendant’s right to present a defense.

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); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The record reflects that defendant’s enhanced sentence was illegally lenient as the trial court failed to order his sentence to be served without benefit of parole. La. R.S. 15:529.1(G) requires that all habitual offender sentences be served without the benefit of probation or suspension of sentence. Further, any habitual offender sentence imposed under La. R.S. 15:529.1 following the offender’s conviction for first degree robbery must carry the parole disability provided by La. R.S. 14:64.1. State v. Bruins, 407 So.2d 685 (La.1981). Nevertheless, this error does not require corrective action because under La. R.S. 15:301.1, the “without benefits” provision is self-activating. State v. McKenzie, 09-893, p. 13 (La.App. 5 Cir. 2/15/11), 61 So.3d 54, 61.

DECREE

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . La.C.Cr.P. art. 807 provides:
      The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Ivan R. CALISTE.
    No. 2012-KA-1548.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 14, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for the State of Louisiana/Appellee.
    John T. Fuller, IV, John T. Fuller & Associates, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU.)
   ROLAND L. BELSOME, Judge.

The defendant, Ivan Caliste, appeals his criminal conviction under State v. Crosby, asserting that the trial court incorrectly denied his motion to suppress the evidence. We affirm and remand for a correction of patent error.

STATEMENT OF CASE

The defendant was charged by bill of information with one count of possession with the intent to distribute heroin. The defendant pled not guilty at arraignment. After a hearing, the trial court denied his motion to suppress the evidence. The defendant later pled guilty to the lesser offense of simple possession of heroin, reserving his right under Crosby to appeal the court’s denial of his motion to suppress the evidence. After entering his guilty plea, the defendant was sentenced to serve four years at hard labor; his sentence was suspended; and he was placed on active probation for four years. He was also ordered to pay a fine of $1000. This appeal followed.

ERRORS PATENT

The minute entry from sentencing and the sentencing commitment reflect |2that the defendant pled guilty to “POSS WITD” heroin; however, the transcript reflects that defendant actually pled guilty to possession of heroin. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). We therefore remand and instruct the trial court to amend the minute entry from sentencing as well as the sentencing commitment to conform to the transcript. We further direct the Clerk of Court to transmit the corrected sentencing commitment to the officer in charge of the institution to which defendant has been sentenced and to the Louisiana Department of Corrections 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).

DISCUSSION

The defendant was arrested after heroin was seized from an ice chest inside of his work truck. He assigns as error the trial court’s denial of his motion to suppress the evidence. To support his claim that the State failed to meet its burden of proving that the warrantless search of his work truck was justified, the defendant makes three arguments: 1) the State did not call the officers who were present when the search was conducted; 2) the tip from the informant did not give officers reasonable suspicion of criminal activity to justify a stop; and 3) the officers could hot search the truck as incident to arrest.

Detective Gabriel Favarot of the New Orleans Police Department was the only witness to testify at the suppression hearing. Detective Favarot testified that |Ron May 10, 2010, he received a tip from a reliable confidential informant revealing that a Sewerage and Water Board (S & WB) worker was selling heroin from his work truck near the corner of North Pri-eur Street and Orleans Avenue. The informant described the worker as an older black male with gray hair and glasses, approximately 5'7" to 5'10" tall.

Based upon this tip, Detective Favarot set up a surveillance of that corner, while other officers were stationed in the area. During the investigation, Detective Favar-ot observed the defendant, who fit the informant’s description, exit a S & WB truck near the intersection. The defendant walked to the corner of the intersection and met with an unknown subject. They spoke briefly and the subject gave the defendant currency. The defendant walked back to the S & WB truck, retrieved a red and white ice chest from inside of the truck, and took a small object out of the ice chest. He then walked back to the subject and looked around before handing the object over. After receiving the object, the subject walked away.

The defendant returned to the S & WB truck and exited the scene with another S & WB worker, later identified as Ronald Eagleton. Detective Favarot followed. Mr. Eagleton then drove to the intersection of Elysian Fields Boulevard and North Claiborne Avenue, where he pulled over in front of a gas station. After arriving at that location, the defendant flagged down a second subject, who walked over to the passenger side of the truck, where the defendant was sitting. The second subject gave the defendant money, and the defendant handed over a small object. The second subject walked away, and the truck left the scene.

14After receiving notification from Detective Favarot, Sergeant Imbraguglio and Detectives Bishop and Smith stopped the truck. Both the defendant and Eagleton were ordered to exit the vehicle and advised that they were under investigation for narcotics activity. Detective Bishop went to the ice chest, which was still open, and removed a pill bottle and two clear plastic bags. Inside of the pill bottle, Detective Bishop found rice and sixteen foil packets containing a brown substance consistent with heroin. The two plastic bags also contained a brown substance consistent with heroin. Detective Bishop then advised the two men of their Miranda rights and placed them under arrest. Incidental to arrest, the officers seized $218 from the defendant.

Detective Favarot also testified that after their arrest, both men gave written statements. Eagleton’s statement indicated that the drugs belonged to the defendant. The defendant acknowledged that the drugs were his and stated that Eagle-ton had no knowledge of the drugs.

On cross-examination, Detective Favarot admitted that he was not on the scene when the defendant was stopped. However, he acknowledged that the officers did not have a search warrant or consent to search the truck.

The defendant asserts that the State failed to establish that the warrantless search of the vehicle was justified once they removed him and his co-worker from the truck.

Because the heroin and money were seized without a warrant, the State had the burden of showing a lawful basis for the seizure. See La.C.Cr.P. art. 703; State v. Wells, 08-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581. We review a trial court’s ruling on a motion to suppress under the abuse of discretion standard. Wells, supra. Although it is well-settled that an appellate court should review a trial court’s rulings under a deferential standard with regard to factual determinations, its legal findings are subject to a de novo standard of review. State v. Hunt, 09-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751 (citation omitted).

First, the defendant argues that the State failed to elicit sufficient evidence as to the search of the ice chest because it did not call any of the officers who were present when the search occurred. However, because the testimony concerning the search was taken during a suppression hearing, the State was allowed to elicit what the other officers told Detective Fa-varot. Hearsay evidence is admissible in a hearing on a motion to suppress. See State v. Shirley, 08-2106 (La.5/5/09), 10 So.3d 224; State v. Washington, 99-1111 (La.App. 4 Cir. 3/21/01), 788 So.2d 477. Thus, under the circumstances of this case, the mere fact that the State did not call the officers who were present when the drugs were found in the ice chest does not automatically render the State’s proof of the legality of the search insufficient.

Next, the appellant argues that the tip from the informant was not sufficient to give the officers even reasonable suspicion of criminal activity on his part to allow them to stop him. See La.C.Cr.P art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Temple, 02-1895 (La.9/9/03), 854 So.2d 856. The defendant cites to Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), in concluding that there was no reasonable suspicion for the stop because the tip contained no predictive information other than the defendant’s presence at the area |Bwhere the informant said he would be. Contrary to the appellant’s argument, the tip was corroborated when Detective Favarot’s observed two hand-to-hand transactions. Together, this information gave the officers reasonable suspicion to stop the S & WB truck.

Moreover, this evidence also establishes that the officers could search the truck pursuant to the “automobile” exception to the warrant requirement. This court discussed this exception in State v. Anderson, 06-1031, p. 5 (La.App. 4 Cir. 1/17/07), 949 So.2d 544, 547-548:

Although a warrant is generally required prior to conducting a search, California v. Carney, 471 U.S. 386 [105 S.Ct. 2066, 85 L.Ed.2d 406] (1985), the “automobile exception” to this requirement is well-established. Carroll v. United States, 267 U.S. 132 [45 S.Ct. 280, 69 L.Ed. 543] (1925). Pursuant to the “automobile exception”, there is no separate exigency requirement if there is probable cause to search a vehicle. U.S. v. Ross, 456 U.S. 798, 809 [102 S.Ct. 2157, 72 L.Ed.2d 572] (1982); see Pennsylvania v. Labron, 518 U.S. 938, 940 [116 S.Ct. 2485, 135 L.Ed.2d 1031] (1996) (“If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.”); see also State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330 (if a vehicle is readily mobile, there is no difference between seizing the car while obtaining a search warrant and immediately searching the vehicle without a warrant). Thus, if there is probable cause to search and the vehicle is readily mobile, even if stationary at the time the search proceeded, any evidence will be considered constitutionally seized.

See also Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); State v. Meyers, 11-1145 (La.App. 4 Cir. 9/19/12), 100 So.3d 938; State v. Adams, 04-2177 (La.App. 4 Cir. 6/29/05), 909 So.2d 5.

Given the tip and Detective Favarot’s observations, the officers who stopped the S & WB truck had probable cause to believe that the ice chest located inside the 17truck contained drugs. Thus, Detective Bishop could lawfully search the ice chest and seize the contents believed to be contraband within it. Upon finding the drugs, the officers had probable cause to arrest the defendant and Eagleton. Incidental to his arrest, the officers seized money from the defendant’s person. See State v. Parker, 06-53 (La.6/16/06), 931 So.2d 353; State v. Mathieu, 07-1579 (La.App. 4 Cir. 6/25/08), 988 So.2d 803; State v. Dowell, 03-1143 (La.App. 4 Cir. 9/24/03), 857 So.2d 1098.

Finally, the appellant also cites Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), and argues that the officers could not search the truck “as incidental to their arrests,” after the defendant and Eagleton were removed from it. In Gant, the Court considered whether police officers could search a suspect’s vehicle incidental to his arrest when the suspect had been removed from the vehicle and had no access to the vehicle. The Court found that where there is no possibility that the suspect could reach anything in the passenger compartment, officers are not justified in searching the passenger compartment without first obtaining a warrant. The Court further held, however: “we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ Thornton [v. U.S.] 541 U.S. [615], at 632, [124 S.Ct. 2127 (2004)] (Scalia, J., concurring in judgment).” Gant, 556 at 343, 129 S.Ct. at 1719. The Court noted that many times, especially in traffic stops as was the case in Gant, the arresting officer would have no probable cause to believe that there is evidence of a crime contained in the vehicle, and thus if the defendant is removed from the vehicle and has no access to it, a search incidental to the traffic arrest would not include the passenger area of the car.

Gant does not apply to this case, because the ice chest inside the truck was not searched incidental to the appellant’s arrest; indeed, he was not arrested until after Detective Bishop went to the open ice chest and seized the drugs inside. Instead, Detective Bishop seized the drugs from the ice chest in the S & WB truck because she had probable cause to believe that the chest in the truck contained drugs.

Based on these circumstances, we cannot find that the trial court abused its discretion in denying the defendant’s motion to suppress the evidence. Accordingly, the defendant’s conviction is affirmed.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . 338 So.2d 584 (La.1976).

      . The defendant sought supervisory review, but this Court denied his writ, finding that he would have an adequate remedy on appeal if he was convicted. State v. Caliste, unpub. 2011-K-1311 (La.App. 4 Cir. 9/16/11).

      . Relying on the police report, the defendant also argues that the officers had no legal basis to search his personal vehicle. However, there was no testimony elicited at the hearing to suggest that the officers searched and recovered any evidence from the defendant’s personal vehicle. Moreover, the police report was not introduced into evidence at the hearing. Accordingly, our discussion is limited to the evidence seized from the ice chest and the defendant after his arrest.

      . Later on cross-examination, Detective Fa-varot stated that the informant was paid in connection with this case and with other cases.

      . At the close of the hearing, the State entered the crime lab report into evidence, which confirmed that the brown substances were heroin.

      . Detective Favarot further testified that once the defendant was arrested, the officers obtained a warrant to search the defendant's home, where they seized forty dollars, two used sandwich bag boxes, two used boxes of aluminum foil, a photo of the defendant, an envelope with the defendant's name, a set of keys, and a pill bottle containing five orange pills. However, the evidence recovered pursuant to the search warrant is not at issue in this appeal.

      . Despite the defendant’s argument to the contrary, the collective knowledge doctrine, or "fellow officer rule[,”] provides that in certain circumstances, several officers' observations can be aggregated to establish the probable cause needed for a warrantless search or seizure, or to obtain a search or arrest warrant under the Fourth Amendment. The courts have applied this doctrine where teams of officers, central dispatches, police computer systems, police from other jurisdictions or agencies, and undercover officers have shared information leading to the establishment of probable cause. State v. Mundy, 11-1000, pp. 6-7 (La.App. 3 Cir. 4/4/12), 87 So.3d 300, 305 (citing Kimberly J. Winbush, Application in State Narcotics Cases of Collective Knowledge Doctrine or Fellow Officers’ Rule Under Fourth Amendment—Cocaine Cases, 4 A.L.R.6th 599 (2005)). See also State v. Elliott, 09-1727, p. 5 (La.3/16/10), 35 So.3d 247, 251 (citations omitted) (the determination of whether probable cause exists for an arrest or reasonable suspicion for an investigatory stop is a purely objective inquiry that takes into account all of the information known collectively to the law enforcement personnel involved in the investigation).