author: ROBERT M. MURPHY, Judge.

text:
    Eileen Clare LYNCH-BALLARD v. LAMMICO INSURANCE AGENCY, INC. Nelson, Zenter, Sartor & Snellings, L.L.C., Fred W. Sartor, Jr. & ABC Insurance Company.
    No. 13-CA-475.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 19, 2013.

      James E. Shields, Sr., Attorney at Law, Gretna, Louisiana, for Plaintiff/Appellant.
    Sidney W. Degan, III, Richard C. Ba-deaux, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARC E. JOHNSON, ROBERT A. CHAISSON, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

| gPlaintiff-appellant, Dr. Eileen Clare Lynch-Ballard, appeals the January 24, 2013 judgment of the trial court, which granted defendant-appellee’s, Louisiana Medical Mutual Insurance Company (“LAMMICO”), motion for summary judgment, exception of no right of action and exception of prescription. Because we find that the judgment at issue is not a final, appealable judgment, we dismiss this appeal for lack of appellate jurisdiction and remand for further proceedings.

LAW AND DISCUSSION

In the present suit, Dr. Lynch-Ballard filed a petition against her defense attorney, his law firm and LAMMICO on December 15, 2011, alleging claims of breach of contract, fraud, tort and legal malpractice, for settling a medical malpractice claim on her behalf without her consent. Specifically, the petition alleges that LAM-MICO agreed to exclude Dr. Lynch-Ballard’s name from the settlement documents, but that it failed to do so, thereby breaching their agreement. |3Further, Dr. Lynch-Ballard contends that LAMMICO breached the insurance contract by failing to obtain her consent to settle the medical malpractice claims on her behalf, and for failing to secure, or to advise her to obtain, separate counsel before settling the claims on her behalf without her consent. Dr. Lynch-Ballard also alleges that as a result of LAMMICO’s report to the National Practitioner’s Data Bank (“NPDB”) of the settlement, she has suffered mental anguish, loss of earning capacity and loss of reputation.

On September 26, 2012, LAMMICO filed a “Peremptory Exception of Prescription, Peremptory Exception of No Right of Action, and/or Motion for Summary Judgment.” In its motion and exceptions, LAMMICO asserts that “[t]he gist of [Dr. Lynch-Ballard’s] claims against LAMMI-CO is that 1) it settled the case without her consent, and 2) that by reporting the settlement to the National Practitioner’s Data Bank, this action has caused her mental pain and anguish, loss of earning capacity and damage to her reputation.” Accordingly, LAMMICO moved for summary judgment on Dr. Lynch-Ballard’s breach of the insurance contract claims, alleging that the LAMMICO insurance policy expressly provides that LAMMICO is not obligated to obtain her consent to settle the claim because she was no longer an insured paying premiums on the policy at the time of the settlement. In addition, LAMMICO’s exception of no right of action urged that Dr. Lynch-Ballard had no right of action against it for mental anguish, loss of business opportunity or loss of reputation as a result of LAMMICO’s report of the settlement to the NPDB. Specifically, LAMMICO alleged that Section 42 U.S.C. 11137(c) of the Healthcare Quality and Improvement Act grants LAMMICO immunity from any civil action for reporting settlements in accordance with the Act. Finally, LAMMICO’s exception of prescription alleged that Dr. Lynch-jBallard’s4 tort claims have prescribed because she filed suit more than one year after she became aware of the alleged tortious conduct.

Following a hearing on the merits on January 24, 2013, the trial court granted LAMMICO’s motion for summary judgment and its exceptions of no right of action and prescription, and issued a judgment on that same day. It is from this judgment that Dr. Lynch-Ballard appeals. On appeal, Dr. Lynch-Ballard raises several assignments of error, three of which address some of her contract claims against LAMMICO. In response, LAM-MICO contends that the trial court’s grant of summary judgment in the judgment at issue resolved all contract issues. After a review of the record and applicable law, however, we find that the judgment at issue does not dispose of all of the claims that Dr. Lynch-Ballard asserted against LAMMICO in her petition, and therefore, is not final and immediately appealable.

Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Brown v. Loraso, 11-196 (La.App. 5 Cir. 10/27/11), 77 So.3d 455, 456. This Court cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. Powell v. Gramercy Ins. Co., 12-564 (La.App. 5 Cir. 3/13/13), 113 So.3d 343, 345; La. C.C.P. art.2083.

A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).

La. C.C.P. art. 1915(A)(3) (emphasis added).

A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case; however, a summary judgment shall be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.

|fiLa. C.C.P. art. 966(E)(1) (emphasis added).

Therefore, a judgment granted pursuant to La. C.C.P. art. 966(E) is not a final judgment. Powell, 113 So.3d at 345, citing La. C.C.P.1915(A)(3).

The judgment on appeal in this case does not dispose of all of the claims asserted against LAMMICO in Dr. Lynch-Ballard’s petition. For instance, noticeably absent from LAMMICO’s motion for summary judgment, as well as from its exceptions, is any argument as to the dismissal of Dr. Lynch-Ballard’s claim that LAMMICO breached the agreement to exclude her name from the settlement documents, or her claim that LAMMICO failed to secure, or to advise her to obtain, separate counsel before settling the claims on her behalf without her consent. Our review of the record shows that these claims were clearly asserted against LAM-MICO in Dr. Lynch-Ballard’s petition. Because these claims, and perhaps others, were not set forth in LAMMICO’s motion for summary judgment, or in its exceptions, the judgment at issue does not adjudicate all of the claims and issues asserted in Dr. Lynch-Ballard’s petition. See La. C.C.P. art. 1915(A)(3). Therefore, we find that the judgment at issue is not a final appealable judgment. Rather, the trial court rendered a partial judgment as to less than all of the claims asserted against LAMMICO in Dr. Lynch-Ballard’s petition.

Whether a partial judgment is ap-pealable is determined by examining the requirements of La. C.C.P. art. 1915(B), which provides in pertinent part:

B. (1) When a court renders a partial judgment or a partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination by the court that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or | (¡decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal....

Because the judgment at issue is a partial judgment, it must be designated by the trial court as final for the purpose of an immediate appeal. The trial court did not designate this judgment as final, nor did it make any determination as to whether there is no just reason for delay, as required by La. C.C.P. art. 1915(B).

Moreover, the language of the judgment itself further indicates that it is not a final judgment disposing of all claims. Specifically, nowhere in the judgment does it provide that Dr. Lynch-Ballard’s claims against LAMMICO are dismissed with prejudice. The judgment, signed on January 24, 2013, provides as follows:

This matter came for hearing on January 24, 2013 on Defendant’s, Louisiana Medial Mutual Insurance Company, Motion for Summary Judgment, Exception of No Right of Action, and Exception of Prescription.
PRESENT WERE: JAMES E. SHI-LEDS [sic], SR., Attorney for Plaintiff; RICHARD C. BADEAUX, Attorney for Defendant, Louisiana Medical [sic] Insurance Company,
After considering the law, evidence and for reasons orally assigned,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendant’s Motion for Summary Judgment be and is hereby granted.
IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that the Defendant’s Exception of No Right of Action be and is hereby granted.
IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that the Defendant’s Exception of Prescription be and is hereby granted.

A final judgment must contain decretal language and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the specific relief that is granted or denied. Claiborne Medical Corp. v. Siddiqui, 12-759 (La.App. 5 Cir. 2/28/13), 113 So.3d 1109, 1112. The specific relief granted or denied should be determinable from the judgment itself without reference to an extrinsic source such as pleadings or reasons for judgment. Id. The jurisprudence reflects a well-settled rule that the district court’s oral or written reasons for judgment form no part of the judgment, and that appellate courts review judgments, not reasons for judgment. Wooley v. Lucksinger, 09-0571 (La.4/1/11), 61 So.3d 507, 572.

In this case, the judgment is not a final judgment because it is not determinable from the judgment itself whether the trial court dismissed all, or only some, of the claims asserted against LAMMICO when it ruled in LAMMICO’s favor on its motion for summary judgment and exceptions. Based upon our review of the record, we find that the judgment does not dispose of all of the claims asserted against LAMMI-CO in Dr. Lynch-Ballard’s petition. Therefore, we find that it is a partial judgment as to less than all of the claims asserted against LAMMICO. Because the trial court did not designate the partial judgment as final, nor did it make a determination that there is no just reason for delay, it is not a partial final judgment subject to immediate appeal under La. C.C.P. art. 1915(B).

Accordingly, we dismiss this appeal, without prejudice, for lack of appellate jurisdiction. We remand the matter to the trial court for a determination of Dr. Lynch-Ballard’s remaining claims and whether there is no just reason for delay. Further, we note that when determining whether a partial judgment should be certified as appealable under La. C.C.P. 1915(B), the trial court may consider the following factors: 1) the relationship between the adjudicated and unadjudicated claims; 2) the possibility that the need for review might or might not be mooted by future developments in the trial court; 3) the possibility that the reviewing court might be obliged to consider the same issue a second time; and 4) miscellaneous | «factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense and the like. R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113, 1122.

CONCLUSION

For the foregoing reasons, we dismiss this appeal without prejudice, and remand the matter for further proceedings. Each party shall bear her/its own costs for this appeal.

APPEAL DISMISSED.

      . Dr. Lynch-Ballard’s claims against her defense attorney, F. Williams Sartor, Jr., and his law firm, Nelson, Zentner, Sartor & Snell-ings, LLC, were dismissed with prejudice on July 27, 2012, when the trial court granted their exception of peremption, finding that Dr. Lynch-Ballard’s suit was filed more than one year after the peremptive period for legal malpractice claims.


source: Caselaw Access Project

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

license: Public Domain

text:
    CITY OF NEW ORLEANS v. ADVANCED ENVIRONMENTAL CONSULTING, INC., Hamp’s Enterprises, L.L.C., and Hartford Fire Insurance Company Advanced Environmental Consulting, LLC/Hamp’s Enterprises, LLC, Joint Venture v. City of New Orleans and Mary Kay Kleinpeter-Zamora, in her Official Capacity as the Chief Procurement Officer for the City of New Orleans.
    Nos. 2013-CA-0409, 2013-CA-0410.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2013.

      Christy C. Harowski, Deputy City Attorney, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendant/Appellant, City of New Orleans.
    Albert A. Thibodeaux, Daniel Ernest Davillier, Davillier Law Group, LLC, New Orleans, LA, for Plaintiff/Appellee, Advanced Environmental Consulting, Inc., Hamp’s Enterprises, L.L.C., and Hartford Fire Insurance Company.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   TERRI F. LOVE, Judge.

|, This appeal arises from two bid solicitations by the City of New Orleans for the removal of material from a demolished apartment complex. The City of New Orleans deemed that the lowest bidder on the second bid solicitation was non-responsible and non-responsive and disqualified the lowest bidder. An administrative hearing officer affirmed the City of New Orleans’ decision. The lowest bidder sought relief from the trial court in several forms, which included the request for a declaratory judgment. The trial court found that the lowest bidder was responsible and responsive. The trial court reversed the City of New Orleans’ decision and the administrative hearing officer’s ruling and granted a declaratory judgment in favor of the lowest bidder. We find that the trial court did not abuse its discretion in finding that the City of New Orleans’ decision that the lowest bidder on the second bid solicitation was non-responsible and non-responsive was arbitrary and capricious. Therefore, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The City of New Orleans (“City”) adjudicated the Higgins Gate Apartments (“Higgins”) as a public nuisance and a blighted property. Higgins was demolished without asbestos abatement, which left the former site (“Site”) of Higgins covered with debris from the demolition. The City then issued a solicitation for bids (“Bid |;>1”) on May 25, 2011, to clear the demolished debris from the Site. Bid 1 required that the contractor “assess [the] site for the presence of materials requiring special removal or otherwise not suited for landfill disposal.” Further, Bid 1 specified that “[t]he Contractor will test all assigned structures and facilities for Regulated Asbestos Containing Material.”

Hamp’s Enterprises, L.L.C. (“Hamp’s”) and Advanced Environmental Consulting, Inc. f/k/a Advanced Environmental Consulting, L.L.C. (“Advanced”), combined as a joint venture (“Hamp’s/AEC”), were awarded the project as the lowest responsible bidder with a bid of $508,100.00 on July 18, 2011. The award letter included the following: “DEQ has already determined that this debris is RACM and must be managed, in accordance with LAC 83:111.5151.” The City’s Notice to Proceed, dated October 4, 2011, was signed by Charlie Hampton for Hamp’s/AEC on October 10, 2011. Hamp’s/AEC began removing the demolition debris and was required to complete removal within sixty days.

The Louisiana Department of Environmental Quality (“LDEQ”) and Hamp’s/ AEC began to disagree upon the proper method for the removal of the demolition debris and the percentage of the demolition debris that was Regulated Asbestos Contaminated Material (“RACM”). By January 20, 2012, the LDEQ threatened Hamp’s/AEC with “civil penalties of up to $32,000 per day” if it failed pto dispose of all of the demolition debris “in compliance with LAC 33:III.5151.J.” The LDEQ prevented Hamp’s/AEC from continuing to clear the Site after disapproving of Hamp’s/AEC proposed method of removal and attempt to comply with the LDEQ’s instructions.

Hamp’s/AEC requested an adjudicatory hearing on April 20, 2012, regarding “whether the entire demolition debris pile” at the Site was properly classified as RACM and whether “LAC 33:111.5151.-J.l.c” applies to the Site. On May 11, 2012, the City informed Hamp’s/AEC that it was in default on the contract for Bid 1.

The City filed a Petition for Damages and Declaratory Judgment against Hamp’s/AEC and Hartford Fire Insurance Company (“Hartford”), as the surety that provided the bid bond, “seeking damages, attorney’s fees, and costs for multiple egregious breaches of contract and bad faith failures to perform under a contract to remove hazardous, asbestos-containing demolition debris.”

While the City’s lawsuit was pending, the City issued a second solicitation for bids (“Bid 2”) to clear the Site. Hamp’s/ AEC was, again, the lowest bidder. However, the City mailed a letter dated August 15, 2012, informing Hamp’s/AEC that it was a non-responsible bidder. On August 16, 2012, the City e-mailed Mr. Hampton and attached an interoffice memorandum, both of which stated that Hamp’s/AEC was also deemed a non-responsive bidder. Hamp’s/AEC requested a hearing to refute the disqualification.

A hearing occurred on October 1, 2012, and the administrative hearing officer subsequently affirmed the City’s decisions. Hamp’s/AEC then filed a Verified Petition for Injunction, Judicial Review of Administrative Ruling, Declaratory Judgment, and a Writ of Mandamus against the City and Mary Kay 14Kleinp eter-Z amor a, in her official capacity as the Chief Procurement Officer of the City of New Orleans, seeking to enjoin the City from awarding Bid 2 to another contractor, a declaration that Hamp’s/AEC was the lowest responsible and responsive bidder on Bid 2, and a writ of mandamus directing the City to award the contract for Bid 2 to Hamp’s/AEC. Thereafter, the parties filed a Consent Motion to Transfer and Consolidate the City’s and Hamp’s/AEC’s lawsuits, which was granted. The trial court granted Hamp’s/ AEC’s “Verified Petition for Injunction, Judicial Review of Administrative Ruling, Declaratory Judgment and Writ of Mandamus” and entered “a Declaratory Judgment as follows:”

1. that AEC/Hamp’s is a responsive bidder to City Bid No. 2144-01829.
2. Any contract for the project awarded to and/or executed with a bidder other than AEC/Hamp’s is null and void.
8. That the contract for the Project be awarded to AEC/Hamp’s as the lowest responsive and responsible bidder.

The City’s suspensive appeal followed.

The City contends that the trial court erred by reversing the decision of the administrative hearing officer and by failing to deem Hamp’s/AEC a non-responsive bidder.

STANDARD OF REVIEW

“Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed.” La. C.C.P. art. 1871. “Use of the word ‘may,’ rather than ‘shall’ evidences the legislature’s intent to afford the trial court substantial discretion in deciding whether or not to render declaratory judgment.” In re Interment of LoCicero, 05-1051, p. 4 (La.App. 4 Cir. 5/31/06), 933 So.2d 883, 886, quoting La. C.C.P. art. 1871. “A declaratory judgment is a vehicle used to ‘declare rights, status, and other legal relations whether or not further relief is or could be claimed.’ ” Lo-Cicero, 05-1051, p. 5, 933 So.2d at 886, quoting La. C.C.P. art. 1874. “A trial court must render declaratory judgment where such judgment would terminate uncertainty or controversy giving rise to proceeding; however, within its sound discretion, it may choose or refuse to render declaratory judgment which would not terminate such uncertainty.” LoCicero, 05-1051, p. 5, 933 So.2d at 886.

Appellate courts review a trial court’s grant or denial of a declaratory judgment by determining whether the trial court abused its discretion. Battle v. Watson Invs., Inc., 06-0202, p. 2 (La.App. 4 Cir. 11/21/06), 946 So.2d 226, 228. “Moreover, the Louisiana Supreme Court has held that ‘[tjrial courts are vested with wide discretion in deciding whether to grant or refuse declaratory relief.’ ” Id., 06-0202, p. 3, 946 So.2d at 228, quoting Edgar Benjamin Fontaine Testamentary Trust v. Jackson Brewery Marketplace, 847 So.2d 674, 677-78 (2003).

NON-RESPONSIBLE BIDDER

The City contends that the trial court erred by declaring that Hamp’s/AEC was the lowest responsible bidder on Bid 2 because the decision was not arbitrary or capricious.

The City is granted great discretion in awarding contracts to the lowest responsible bidder; “[hjowever, the agency’s discretion must be exercised in a fair and legal manner and not arbitrarily.” Lemoine/Brasfield & Gorrie Joint Venture, LLC v. Orleans Parish Criminal Sheriff’s Office, 10-1220, p. 3 (La.App. 4 Cir. 3/30/11), 63 So.3d 1068, 1070. “[A] court should not substitute its judgment for the good faith judgment of an administrative agency.” Id., 10-1220, p. 3, 63 So.3d at 1071. “The agency’s reasonable good faith interpretation of its own specifications should not be disturbed by a court that may have different views.” Id.

Bid 1, issued on May 25, 2011, provided that the project name was the “Clearance and Removal of formally [sic] Higgins Gate Apartments” and included “Attachment A,” which listed the specifications of Bid 1. Attachment A states that “the contractor will assess site for the presence of materials requiring special removal or otherwise not suited for landfill disposal.” Attachment A also contained the following descriptions of additional contractor responsibilities:

(c) Hazardous Materials and Other Materials Not Suited for Landfill Disposal: The Contractor will examine the site and facilities on the site for Hazardous Waste (HW), White Goods, Waste Tires, and other materials not suited for landfill disposal. The Contractor will prepare a detailed, categorized list of such materials found at the site and deliver the list to the City Representative.
(d) Asbestos Containing Material: The Contractor will test all assigned structures and facilities for Regulated Asbestos Containing Material (“RACM”)....

Under the heading of “Environmental Protection,” the specifications state that “[t]rucks hauling RACM shall be lined” and “[a]ll trucks will have their loads covered with tarps during transport.”

Addendum 1 to Bid 1 includes logistical information regarding a visit to the Site, as well as an “Authoritative Conference Report” from potential bidders with questions asked during the June 6, 2011 pre-bid conference. Question 5 asked: “Is this straight demo or RACM? The City’s official response stated: “RACM. The issue is in the mud and rock.” Question 7 pertained to the trucks hauling demolition debris and stated: “Does the contractor need to haul the debris in lined 17trucks?” The City’s official response was: “Yes. That is a requirement for all commercial properties.” Addendum 2 changed Bid l’s opening date to June 30, 2011. Addendum 3 provided answers to additional questions asked by potential bidders and stated that the requirements for Bid 1 “are outlined to be what is required by Louisiana Department of Environmental Quality (LDEQ).”

Hamp’s/AEC submitted a bid of $811,900.00 minus $303,800.00 for the deductive alternative, which left an actual bid of $508,100.00. On July 18, 2011, Hamp’s/ AEC received an award letter from the City as the lowest responsible and responsive bidder. For the first time, the City stated that the

DEQ has already determined that this debris is RACM and must be managed in accordance with LAC 33:111.5151; and HHW (household hazardous waste) in the debris can be hauled to the same landfill. White goods can be segregated from debris and inspected to ensure that they are not contaminated with RACM and if not, can be recycled. Reference LAC 33:111.5151.

A contract between the City and Hamp’s/ AEC was confected on September 16, 2011.

Bid 1

The City subsequently mailed a Notice to Proceed on October 4, 2011, which Hamp’s/AEC received on October 11, 2011, meaning Hamp’s/AEC was required to complete demolition debris removal on the Site by December 11, 2011. On October 5, 2011, Hamp’s/AEC faxed the City in regards to its “Plan of Action for conducting the proposed Scope of Work.” Hamp’s/ AEC informed the City that it “mobilized a Louisiana Department of Environmental Quality (LDEQ) accredited Asbestos Inspector” who performed tests on materials collected at the Site and determined that RACM was not present. However, some “Category II Non-Friable Material” was identified and would be disposed of accordingly. |sHamp’s/AEC then stated that “[i]n the event RACM is encountered, it will be loaded, hauled and disposed of with Asbestos Disposal Verification Forms (ADVF) issued by the LDEQ” at the Riv-erbirch Landfill. On October 21, 2011, the LDEQ informed Hamp’s/AEC that the “LDEQ has declared all debris at this location to be ...” RACM and revoked the Asbestos Disposal Verification Forms (“ADVF”) based on “discrepancies” on the Asbestos Notification of Demolition and Renovation Form (“AAC-2”).

Following a meeting regarding the ADVF revocation, Hamp’s/AEC submitted a written demolition debris removal procedure on October 28, 2011, which stated that:

[w]e were instructed by LDEQ to check the Demo/Reno boxes; however, this project was bid and awarded as a removal of a debris pile, not a demolition or renovation [sic]
The companies involved will load waste into lined trucks while the material is wetted for transport and disposal at River Birch Landfill under ADVF manifests.
AEC was instructed by LDEQ to segregate white goods from the pile as they are encountered for recycling.

The LDEQ then e-mailed Hamp’s/AEC and informed them that the LDEQ was relying on test results from samples taken from the Site by a non-LDEQ accredited inspector prior to the demolition of Higgins. The LDEQ further stated that LDEQ inspectors subsequently obtained samples from the Site and that the “LDEQ will maintain the samples taken by LDEQ inspectors under chain of custody [sic] but will not have them analyzed for asbestos content at this time.” Hamp’s/AEC also obtained samples from the Site, which failed to document that all of the demolition debris was RACM. However, Hamp’s/ AEC stated that “AEC and Hamp’s will load and haul the areas containing brick and transite as RACM.”

|9On December 1, 2011, the LDEQ emailed Hamp’s/AEC wherein the LDEQ stated that “all demolition debris at the site is regulated asbestos containing waste material (ACWM) and must be handled and disposed of as regulated ACWM according to the Asbestos LESHAP (LAC 33:111.5151).” Further, the LDEQ informed Hamp’s/AEC that “[segregation and disposal of any of the demolition debris at this site as C & D waste at the Highway 90 Landfill, or any other landfill that is not permitted to accept regulated asbestos containing waste material, as you propose in your attached letter is prohibited.” Hamp’s/AEC responded that

[p]er EPA documents, materials present after a demolition, including transite, are considered ACWM, not necessarily RACM. We have, all along, been prepared to load and haul the debris as ACWM with disposal at a properly permitted landfill, Hwy 90. In the event we encounter RACM, the materials would be loaded, transported and disposed of as RACM accordingly.

Hamp’s/AEC also reiterated that Bid l’s specifications required the contractor to characterize the waste at the Site and that “there is a huge difference between regulated ACWM and RACM.” Documenting the frustration, Hamp’s/AEC also stated that “[w]e also find it interesting that the LDEQ would rely on an illegal survey for their position” and reminded the LDEQ “that until we pushed back, the LDEQ had not taken any samples at the site even though you had been investigating since March 2010.”

As of January 10, 2012, work had ceased at the Site and Hamp’s/AEC wrote a letter to the City requesting the City’s assistance with the LDEQ “to let [it] go back to work.” On January 19, 2012, Hamp’s/ AEC notified the City and the LDEQ that it planned to “re-mobilize” and begin removing demolition debris from the Site on January 23, 2012. Hamp’s/AEC stated that RACM would be removed |inpursuant to regulations “if and when” RACM was encountered. The following day, the LDEQ notified Hamp’s/AEC that if it proceeded as described in the January 19, 2012 letter, then the LDEQ would “address all violations of law with the authority provided by the Environmental Quality Act, which includes civil penalties of up to $32,000 per day of violation and referral to the appropriate authorities for criminal prosecution.” Thus, Hamp’s/AEC had to once again request assistance from the City to work on the Site.

Once Hamp’s/AEC received the LDEQ’s test results from the Site, Hamp’s/AEC noted that the LDEQ’s own test results did not support the position that all of the demolition debris was contaminated with asbestos. However, the LDEQ informed the City that all demolition debris must be treated as Asbestos-Containing Waste Material (“ACWM”). The LDEQ did not mention RACM in the correspondence. Hamp’s/AEC then notified the City that it would resume demolition debris removal at the Site on February 8, 2012.

However, on February 24, 2012, Hamp’s/AEC wrote additional correspondence to the City stating that the LDEQ forced it to cease operations at the Site. Hamp’s/AEC also alleged that a representative of the “LDEQ stated that the LAC 33:III.5151.J. [sic]” did “not apply to this project site” because it was a ‘“special case.’” Hamp’s/AEC also sent correspondence to the LDEQ on February 24, 2012, because an LDEQ representative previously informed Hamp’s/AEC “that [it] had to burrito wrap the waste or face a possible Notice of Violation” and | n reiterated that the LDEQ stated that La. Admin. Code tit. 33, pt. Ill, § 5151.J did not apply because the Site was considered a “ ‘special case.’ ” Lastly, Hamp’s/AEC requested clarification in writing from the LDEQ as to which applicable regulations apply in order for it to resume demolition debris removal to fulfill the contract with the City.

On March 2, 2012, the LDEQ informed Hamp’s/AEC that La. Admin. Code tit. 33, pt. Ill, § 5151.J.1.C did not apply to demolition debris removal at the Site. La. Admin. Code tit. 33, pt. Ill, § 5151.J.1.C provides that:

[f]or facilities demolished where the RACM is not removed prior to demolition according to Clauses F.3.a.i, ii, iii, and iv of this Section or for facilities demolished according to Subparagraph F.3.i of this Section, adequately wet asbestos-containing waste material at all times after demolition and keep wet during handling and loading for transport to a disposal site. Asbestos-containing waste materials covered by this Sub-paragraph do not have to be sealed in leak-tight containers or wrapping but may be transported and disposed of in bulk. (Emphasis added).

The LDEQ stated that it was “well within” Hamp’s/AEC’s “capabilities to review the regulations and determine what is required for compliance based on the activities you are undertaking.” The LDEQ informed Hamp’s/AEC that $32,500 in civil penalties per day for violations could be assessed. On March 5, 2012, Hamp’s/AEC proposed “to have asbestos accredited personnel wet the debris piles prior to and during loading operations.” The trucks carrying the demolition debris would “be covered with clear poly and secured with duct tape and spray glue in an effort to keep the materials wet while in transport” and the trucks would have “DOT nets over the plastic sheeting.”

Hamp’s/AEC then employed the Davillier Law Group, L.L.C. (“Davillier”) as its legal representation in connection with its contract with the City. Davillier [ ^corresponded with the LDEQ for clarification regarding the applicability of La. Admin. Code tit. 33, pt. Ill, § 5151.J.1.C.

The LDEQ instructed Hamp’s/AEC on March 21, 2012, that the proposed work plan was “deficient” and “unacceptable.” The LDEQ then requested that Hamp’s/ AEC “submit a new work plan that details how AEC plans to comply with all of subsections F and J for LAC 33:111.5151.” By April 4, 2012, the LDEQ contacted Davillier to reiterate that La. Admin. Code tit. 33, pt. Ill, § 5151.J.1.C did not apply to demolition debris removal at the Site. On April 11, 2012, Davillier wrote the City stating that Hamp’s/AEC could not resume demolition debris removal at the Site “[u]ntil the Contractor receives a final, non-appeal-able determination of the legality of its proposed work plan and its obligations under the applicable laws and regulations.” Hamp’s/AEC then filed a Request for an Adjudicatory Hearing.

On May 11, 2012, the City notified Hamp’s/AEC that it was in default on the contract for failure to perform within the allotted time, failure to perform the work within the contract term, failure to comply with the LDEQ regulations, and refusal to perform further work under the contract. Subsequently, the City filed the Petition for Damages and Declaratory Judgment on May 31, 2012.

Bid 2

The City subsequently issued a solicitation for Bid 2, on July 16, 2012, to clear the Site. Bid 2 was largely the same as Bid 1. However, Addendum 1 to Bid 2 included the following specific changes:

• Page 6, (2) Initial Verification and Assessment, (d) Asbestos Containing Material changes to The [sic] structures and facilities have been determine [sic] as RACM, therefore the Contractor is not required to perform any testing.
|1R* Page 23, b, Work Schedule, sentence one, changes to: The Contractor shall complete the work within ninety days of issuance of the NTP.
• There will be no segregation of any material from the pile. (Disregard anything in the bid that states otherwise). Everything goes as RACM to a certified RACM landfill. There will be no separation, from the point of picking, proper handling into trucks, it must be wrapped.
The concrete slabs will not be removed. The contractor shall remove all of the RACM off of the entire area, retard as much vegetation as possible and at that point the contractor will need to encapsulate the slab. The slab must be encapsulated in conjunction with the Asbestos Disposal Verification Form (ADVF)

During a pre-bid conference the City stated that it would work with the contractor on the 90-day completion request because “the City know[s] that they [sic] maybe [sic] factors that may delay the work....” The City also stated at the pre-bid conference, in regards to the demolition debris, that “you do have to burrito wrap it.”

Hamp’s/AEC submitted a bid of $821,-900.00 on Bid 2 and was the lowest bidder. However, the City notified Hamp’s/ AEC on August 15, 2012, that it was deemed a non-responsible bidder and disqualified from Bid 2. The City stated that Hamp’s/AEC:

1. Failed to perform within the allotted time.
2. Failed to perform work within the contract term.
3. Failed to comply with LDEQ regulations according to the Bid Specifications and other communications received by your firm from the City and/or LDEQ.
4. Refused to perform further work under the contract.

Further, the City found that Hamp’s/AEC demonstrated a “lack of operational 114competence,” an “inability to perform according to contract,” an “unwillingness to comply with state environmental regulations,” a “lack of oversight, carelessness, poor judgment,” a “lack of concern for the City’s contracting needs and systemic management deficiencies.” The City offered Hamp’s/AEC the requested hearing to refute the disqualification. After being disqualified for being deemed a non-responsible bidder, Hamp’s/AEC received an e-mail from the City indicating that Hamp’s/AEC was also deemed a non-responsive bidder.

Administrative and Trial Court Rulings

Following a hearing, an administrative hearing officer found that the City “submitted sufficient evidence to prove that it did not act in an arbitrary, unfair or illegal manner in disqualifying” Hamp’s/AEC from Bid 2. Further, the administrative hearing officer stated that she did not find “anything that would support a finding that CNO did not make a good-faith judgment” and affirmed the City’s decision to disqualify Hamp’s/AEC from Bid 2. Hamp’s/AEC then filed a Verified Petition for Injunction, Judicial Review of Administrative Ruling, Declaratory Judgment and a Writ of Mandamus. The trial court reversed the holding of the administrative hearing based on the following:

[t]his case essentially pits “wet truck removal” against “burrito wrap” for the removal of RACM at the Higgins Gate Apartment site. It involves different interpretations of LAC33III.5151.J and whether or not all of the debris at the former Higgins Gate site must be removed and handled as RACM. If all the debris were considered RACM, the debris would have to be “burrito wrapped” and transported to a landfill designated to receive RACM debris.
Upon review and consideration of the evidence, law and argument of counsel, the court find that it is undisputed that the Higgins Gate Bid No. 1 specifications |1Bas amended by the three (3) addenda thereto, did not expressly state that “all of the debris is RACM” and “the debris must be burrito wrapped.” The position taken by LDEQ and adopted by the City that all of the debris was RACM and the debris must be burrito wrapped is a position that was taken subsequent to the bid submission and opening and the awarding of the contract to AEC/Hamp’s. This change resulted in a significant increase to the bid proposal submitted by AEC/Hamp’s and, eventually resulted in an involuntary work stoppage despite the joint venture’s concerted efforts to resolve through negotiations and dialogue with the City and LDEQ.
The court finds that Bid specifications for Higgins Gate Bid No. 2 were very specific relative to the method of debris removal required for the project. City of New Orleans Bid Solicitation No. 2144-01329 (Higgins Gate Bid No. II) differs substantially from City of New Orleans Bid Solicitation No. 2144-01134 (Higgins Gate Bid No. I). Section B(2)(b)(Z), subpart (c) “Environmental Protection and Hazardous Materials” at page 11 of Higgins Gate Bid No. 1 provided in pertinent part:
Trucks hauling RACM shall be lined. All truck [sic] will have their loads covered with tarps during transport.
This same section (Section B(2)(b)(l), subpart (c), p 11-12) of Bid Solicitation No. 2144-01329 (Higgins Gate No. 2) provides in pertinent part:
Trucks hauling RACM shall be lined and in accordance with LADEQ standards, the material must be burrito wrapped to prevent dust and debris released during loading and hauling and transporting to the landfill. In addition, all trucks will have their loads covered with tarps during transport. (Emphasis added).
The court concludes that this change was substantial and goes directly to [sic] crux of the difference of interpretation that prompted AEC/Hamp’s to suspend work on the site under the threat of civil penalties which eventually led to the City’s disqualification of AEC/Hamp’s on Higgins Gate Bid No. 2.
Under any analysis, the language added to above referenced subpart is intended to clarify LDEQ and the City’s position that the debris should be burrito wrapped. Included in the action of clarifying this language is an acknowl-edgement that the previous language in City Bid |! (¡Solicitation No. 2144-01134 was not clear and was subject to reasonable interpretations of the Louisiana Regulatory Code that did not require burrito wrapping of all the debris. Accordingly the court concludes that the City did not act reasonably when it deemed AEC/Hamp’s a non-responsible bidder.
As the lowest responsive bidder on Higgins Gate Bid No. 2, AEC/Hamp’s is entitled to be awarded the contract for Bid No. 2144-01329 when the basis for its disqualification is unsupported by the record. The issue of the entire site being designated as “all RACM” was not clarified until post-bid award of the project. When AEC/Hamp’s pointed out the increased costs for implementing the burrito wrap method, the City did not want to pay the costs. When AEC/ Hamp’s offered the alternative wet truck method, which was less expensive but approved removal method under LDEQ regulations, LDEQ refused to accept this compromise. The additional cost for burrito wrap was not caused by AEC/Hamp’s but, rather the company that demolished the property, without authorization or remediation for asbestos containing materials at the apartment complex. This lack of diligence on the part of the City for allowing the demolition to proceed without proper precautions/protections against asbestos at the site should not be borne by AEC/ Hamp’s with the unfounded designation of “non-responsible” bidder.
* * *
Based upon the totality of the evidence submitted by the parties, the Court finds that the City did not act reasonably in determining bidder responsibility of AEC/Hamps and issuing the disqualification letter for Higgins Gate Bid No.2. There is but little dissent from the general rule that, in determining who is such ‘lowest responsible bidder,’ or lowest and best bidder,’ public boards and officials are vested with wide discretion. Their decision, when based upon an honest exercise of the discretion thus vested in them, will not be interfered with by the courts, unless apparently arbitrary or capricious.

The trial court then entered a declaratory judgment providing that:

1. that AEC/Hamp’s is a responsive bidder to City Bid No. 2144-01329.
2. Any contract for the project awarded to and/or executed with a bidder other than AEC/Hamp’s is null and void.
1173. That the contract for the Project be awarded to AEC/Hamp’s as the lowest responsive and responsible bidder.

As discussed above, the discretion to award a contract to the lowest responsible and responsive bidder “must be exercised in a fair and legal manner and not arbitrarily.” J.W. Rombach, Inc. v. Parish of Jefferson, 95-829, p. 13 (La.App. 5 Cir. 2/14/96), 670 So.2d 1305, 1310. While “a court should not substitute its judgment for the good faith judgment of an administrative agency,” we do not find that the trial court has done so in the case sub judice. Lemoine, 10-1220, p. 3, 63 So.3d at 1071.

Hamp’s/AEC repeatedly sought guidance from the LDEQ and assistance with the LDEQ from the City. The record documents Hamp’s/AEC’s attempted to comply with the environmental regulations. Once the City required that all of the demolition debris be “burrito wrapped” post-bid, Hamp’s/AEC’s costs surpassed the projections in Bid 1. Hamp’s/AEC attempted to recommence demolition debris removal at the Site twice, but was ordered to cease removal by the LDEQ or face possible criminal charges and civil penalties. Hamp’s/AEC contacted the City for further assistance with the LDEQ to no avail. When Hamp’s/AEC proposed the “wet truck” removal method, which was in compliance with LDEQ regulations, the LDEQ did not approve the removal method. Additionally, differing interpretations of La. Admin. Code tit. 33, pt. Ill, § 5151.J and discrepancies as to whether all of the demolition debris at the Site was RACM resulted in substantial changes in the requirements for demolition debris removal at the Site, as reflected in Bid 2.

The extensive attempts, as outlined above, demonstrates Hamp’s/AEC’s commitment to fulfilling the contract on Bid 1. Therefore, after reviewing all of 118the extensive evidence, we do not find that the trial court abused its discretion in granting the declaratory judgment, which held that the administrative officer was arbitrary and capricious by deeming Hamp’s/AEC a non-responsible bidder and affirm.

NON-RESPONSIVE BIDDER

The City asserts that even if Hamp’s/AEC was the lowest responsible bidder, Hamp’s/AEC was a non-responsive bidder because Mr. Hampton signed the Disadvantaged Business Enterprise Responsiveness Form (“DBE-1”) affirming that Boines Construction Equipment Company, Inc. (“Boines”) would perform thirty-five percent of the work required by Bid 2.

Mr. Hampton, as the designated signatory for Hamp’s/AEC, signed the DBE-1, which affirmed that Boines would perform thirty-five percent of the work on Bid 2. The City contests the signature and asserts that Michael Boines should have signed the DBE-1, as the President and Director of Boines. Mr. Boines signed an affidavit, which provided that he obligated Boines to perform with Hamp’s/AEC and that he:

authorized Charlie Hampton, in his capacity as the agent for AEC/Hamp’s Joint Venture, to execute any and all documents necessary to evidence Boines Construction’s acceptance of the aforementioned obligation and to affirm Boines Construction’s commitment to perform thirty-five (85%) of the scope of work of the project as discussed and agreed to between Boines Construction and AEC/Hamp’s Joint Venture.

The City concedes that it previously waived the DBE-1 signature requirements, but attempts to utilize Hamp’s Const., L.L.C. v. City of New Orleans, 05-0489 (La.2/22/06), 924 So.2d 104, for the premise that it is no longer permitted to waive requirements. Hamp’s held that a public entity cannot waive requirements | ^included “on the bid form” in accordance with the Public Bid Law. 05-0489, p. 10, 924 So.2d at 111.

However, we find Hamp’s distinguishable because no requirements needed to be waived for Hamp’s/AEC to be deemed a responsive bidder. In the case sub judi-ce, the bid proposal submitted for Bid 2 contained a DBE-1 signed by Mr. Hampton with Mr. Boines’ express permission. Accordingly, under the facts and circumstances presented, we do not find that the trial court abused its vast discretion in finding that Hamp’s/AEC was a responsive bidder and affirm.

DECREE

For the above-mentioned reasons, we find that the trial court did not abuse its discretion in granting Hamp’s/AEC’s request for a default judgment, as the record reflects it was the lowest responsible and responsive bidder. Therefore, we affirm.

AFFIRMED.

DYSART, J., Dissents With Reasons.

DYSART, J.,

Dissents, With Reasons.

hBecause I find that Hamp’s/AEC was a non-responsive bidder, I respectfully dissent.

The bid in question required that there be a thirty-five percent DBE participation on the referenced project. Hamp’s/AEC submitted a DBE form indicating that it was able to meet the DBE goal by subcontracting with Boines Construction Equipment Co., Inc., After reviewing the DBE responsiveness form (DBE-1), the City deemed the bid non-responsive because Mr. Hampton had signed the form for the president of Boines. After the bid was rejected as non-_|responsive,2 Hamp’s/AEC submitted the affidavit of Michael Boines, attesting that he had given Mr. Hampton permission to sign for him.

I find that the according to the clear dictates of Hamp’s Const., L.L.C. v. City of New Orleans, 05-0489 (La.2/22/06), 924 So.2d 104, the affidavit provided after the bid was submitted and rejected, is insufficient to cure the defect. The majority distinguishes Hamp’s on the basis that no bid requirements were waived because the minority company president gave Mr. Hampton permission to sign the DBE-1 for him. I disagree.

The Supreme Court clearly stated that no public entity has the discretion “to determine, after bids have been submitted, whether a requirement is substantive or non-substantive, waivable or non-waiva-ble.” Hamp’s, 05-0489, p. 9, 924 So.2d at 110 (emphasis added.).

In Enmon Enterprises, L.L.C. v. City of New Orleans ex rel. New Orleans Aviation Bd., 11-0459 (La.App. 4 Cir. 9/28/11), 76 So.3d 548, writ denied, 11-2580 (La.2/3/12), 79 So.3d 1029, this Court again followed the dictates of Hamp’s. In En-mon, an unsuccessful bidder claimed that calculation errors made in its bid should not preclude it from being awarded the job. This Court, citing Hamp’s, stated that the Supreme Court “made it clear that a public entity cannot deviate in any manner from the requirements it sets forth in its bid documents and the requirements set forth in any aspect of the Public Bid Law.” Id., 11-0459, p. 10, 76 So.3d at 554. This Court held that Hamp’s did not distinguish between types of error. Rather, it stated, “a public entity may not waive (1) any requirements of Public Bid Law, (2) any requirements stated in the advertisement for bid, or (3) any requirements stated on the bid form.” Id.

More recently, this Court again followed Hamp’s, supra. In Command Const. Industries, L.L.C. v. City of New Orleans, 13-0524 (La.App. 4 Cir. 10/23/13), 126 So.3d 716, 2013 WL 5757865, the form to be used by the bidders, a Louisiana Uniform Public Work Bid Form, sought a “TOTAL BASE BID” sum, which specifically stated that it was for “all work required by the Bidding Documents (including any and all unit prices designated as ‘Base Bid’ but not alternates).” Immediately after the total base bid, each bidder was to supply three alternates, each in a lump sum; one for “[c]ross walk,” another for “planting in median area,” and a third for “PVC sleeves and pull boxes.”

The total base bid of one of the bidders was mistakenly comprised of the base bid (an addition of all the unit prices) plus all three alternates. That is, the bidder erroneously added the three alternates to the base bid unit prices to arrive at its initial bid. Realizing its error after the bid had been submitted, the bidder sent a letter dated seeking to amend its bid because of a “clerical error,” and substituting a revised base bid. It was awarded the bid by the City. Another bidder filed suit, and on appeal, this Court considered whether the revised bid submission complied with the provisions of the Public Bid Law.

Again relying on Hamp’s, supra, this Court quoted the Supreme Court’s reasoning:

There is nothing ambiguous about La. R.S. 38:2212(A)(b); the requirements of the Public Bid Law, the advertisement for bids and the bid form shall not be waived by any public entity. The legislature changed the wording of this statute several times in an attempt to change the law, and to make clear that the requirements of the advertisement for bids and the bid form, as well as the Public Bid Law, shall not be waived. The most recent amendment to the statute serves to emphasize that these requirements cannot be waived under any circumstances, regardless of whether they could be considered as informalities. Accordingly, the public entity should not include any requirements in its advertisement for bids or bid form that it considers insignificant or waiva-ble, because once included, these requirements are non-waivable as a matter of law.

Command Constr., 13-0524, p. 7, 126 So.3d at 720, 2013 WL 5757865, at *4, citing Hamp’s, 05-0489, p. 9, 924 So.2d at 110. The Supreme Court further held that no public entity 14has the discretion “to determine, after bids have been submitted, whether a requirement is substantive or non-substantive, waivable or non-waiva-ble.” Command Constr., 13-0524, p. 8, 126 So.3d at 720, 2013 WL 5757865, at *4, citing Hamp’s, 05-0489, p. 10-11, 924 So.2d at 111.

Accordingly, I would find that the City was correct in finding Hamp’s/AEC to be a non-responsive bidder, and would reverse the ruling of the trial court.

      . The City’s First Amended and Supplemental Petition added that Hamp’s/AEC was "a purported joint venture.”

      . The original bid for $811,900.00 included a deductive alternative for the “Deduction of Demolition and Removal, including Recycling and Abatement, of Foundations, Slabs, Sidewalks, Driveways and Streets,” which Hamp’s/AEC valued at $303,800.00.

      . RACM is: "a. friable asbestos material; b. Category I nonfriable ACM that has become friable; c. Category I nonfriable ACM that will be or has been subjected to sanding, grinding, cutting, or abrading; or d. Category II nonfriable ACM that has a high probability of becoming or has become crumbled, pulverized, or reduced to powder by the forces expected to act on the material in the course of demolition or renovation operations regulated by this Subchapter.” La. Admin. Code tit. 33, pt. Ill, § 5151.

      . Bid 1 listed the project as a capital project as opposed to a public works project.

      . ACWM is characterized as ‘‘mill tailings or any waste that contains commercial asbestos and is generated by a source subject to the provisions of this Subchapter. This term includes filters from control devices, friable asbestos waste material, and bags or other similar packaging contaminated with commercial asbestos. As applied to demolition and renovation operations, this term also includes regulated asbestos-containing material waste and materials contaminated with asbestos, including disposable equipment and clothing.” La. Admin. Code tit. 33, pt. Ill, § 5151.

      . Hamp's/AEC's bid on Bid 2 was substantially higher than that of Bid 1.

      . The City attached an interoffice memorandum from the City’s Office of Supplier to Diversity to the e-mail.

      . Accordingly, we also find that Enmon Enterprises, L.L.C. v. City of New Orleans ex rel. New Orleans Aviation Bd.., 11-0459 (La.App. 4 Cir. 9/28/11), 76 So.3d 548 and Command Const. Indus., L.L.C. v. City of New Orleans, 13-0524; 13-0525 (La.App. 4 Cir. 10/23/13), 126 So.3d 716, 2013 WL 5757865, are equally distinguishable, as the cases involve the waiver of bid requirements.

      . Disadvantage Business Enterprise


author: LOLLEY, J.

text:
    NORAM DRILLING COMPANY, Plaintiff-Appellant v. E & PCO INTERNATIONAL, LLC, and E & PCo, LLC, Defendants-Appellants.
    No. 48,591-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2013.
    Gordon, Arata, McCollam, Duplantis & Eagan, by Samuel E. Masur, Lafayette, LA, Ryan J. Richmond, James Michael Fussell, Jr., for Appellant NorAm Drilling Company.

      Mixon & Carroll, Columbia, LA, by James Eugene Mixon, James Linus Carroll, for Appellee E & PCo International, LLC.
    McKool Smith by Joshua J. Newcomer, Emil Thomas Bayko, for Appellee E & PCo, LLC.
    Before BROWN, MOORE and LOLLEY, JJ.
   LOLLEY, J.

IgNorAm Drilling Company (“NorAm”) filed suit against E & PCo International, L.L.C. (“E & PCo Inti”), and E & PCo, L.L.C. (“E & PCo LLC”), in solido, for damages resulting from an alleged breach of contract. Holding that Texas law is applicable to the matter, the 37th Judicial District Court, Parish of Caldwell, State of Louisiana, granted summary judgment in favor of E & PCo LLC and dismissed it from the lawsuit. For the reasons set forth below, we affirm.

Facts

NorAm operates drilling rigs and provides contract land drilling services to oil and gas exploration and production companies. On December 7, 2007, NorAm and E & PCo Int’l entered into a drilling bid proposal and day work drilling contract, whereby E & PCo Inti, as operator, engaged NorAm, as an independent contractor, to drill and complete a horizontal coalbed methane well in Caldwell Parish, Louisiana (the “drilling contract”). E & PCo LLC was not a party to and did not sign the drilling contract.

Pursuant to the drilling contract, operations were to commence on December 15, 2007, or on a date mutually agreed upon by the parties. The drilling contract would remain in full force and effect until completion of operations, or for a term of one year from commencement of operations. The drilling contract also contained the following choice-of-law provision: “the [c]ontract is to be construed, governed, interpreted, enforced and litigated, and the relations between the parties determined in accordance with the laws of the State of Texas.”

| .¡Between December 7, 2007, and February 18, 2008, disagreements arose between NorAm and E & PCo Int’l surrounding each party’s obligations under the drilling contract. Alleging that performance had been tendered, NorAm submitted invoices to E & PCo Int’l demanding payment. However, E & PCo Int’l disputed these invoices, and argued, among other issues, that the drilling contract never commenced.

As a result of these disputes and E & PCo Int’l’s refusal to pay, NorAm filed suit against E & PCo Int’l and E & PCo LLC, in solido, seeking a money judgment for breach of the drilling contract. NorAm alleged that E & PCo LLC was obligated for E & PCo Int’l’s debts via the single business enterprise theory under Louisiana law. In particular, NorAm alleged that E & PCo Int’l and E & PCo LLC acted in concert and disregarded corporate formalities to avoid paying under the drilling contract, and as a result, each E & PCo company is liable for the other’s debts. In response, E & PCo LLC filed a motion for summary judgment on the grounds that it was not a party to the drilling contract, and thus is not liable to NorAm. Specifically, E & PCo LLC argued that Texas law applies to the lawsuit, and because Texas law does not recognize single business enterprise liability, E & PCo LLC is entitled to judgment as a matter of law. A hearing was held on E & PCo LLC’s motion on September 12, 2012, which was granted and E & PCo LLC was dismissed 14from the lawsuit. In its reasons for judgment, the trial court explained that Texas law applies to No-rAm’s claim against E & PCo LLC for two alternative reasons. First, the trial court reasoned that because NorAm’s allegations against E & PCo LLC are for contractual debts arising under the drilling contract, NorAm is estopped from arguing that the Texas choice-of-law provision does not apply. Second, it explained that under well-settled choice-of-law principles, Louisiana courts and courts applying Louisiana law apply the law of the place of incorporation to claims seeking to set aside corporate formalities. This appeal by NorAm ensued.

Discussion

On appeal, NorAm brings one assignment of error-the trial court erred as a matter of law in failing to apply Louisiana law. We disagree.

The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 1993-1480 (La.04/11/94), 634 So.2d 1180, 1182. A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

This is a choice-of-law case, and as such, there is one issue on appeal-whether Texas or Louisiana law applies to NorAm’s claim against E & PCo LLC. As discussed above, NorAm, a Texas corporation with its 1 ^principal place of business in Texas, is seeking to hold E & PCo Int’l and E & PCo LLC, two Texas limited liability companies with their principal places of business in Texas, liable, in solido, for breach of a drilling contract that was drafted, negotiated, and signed in Texas, and which also contains a Texas choice-of-law provision. According to NorAm, if Louisiana law were to apply, summary judgment would be precluded due to the likelihood of issues of material fact after application of the 18-prong, fact intensive single business enterprise liability test pronounced in Green v. Champion Ins., 577 So.2d 249 (La.App. 1st Cir.1991), writ denied, 580 So.2d 668 (La.1991). On the other hand, NorAm admits that if Texas law applies, summary judgment would be proper because of the Texas Supreme Court’s express rejection of single business enterprise liability.

Louisiana’s general and residual rule governing conflict-of-law issues is La. C.C. art. 3515, which provides:

Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its laws were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.

As explained in Comment (a), La. C.C. art. 3515 sets forth the general principles from which the more specific conflict articles derive. Thus, if any other article is found to be applicable to a particular case or issue, that article prevails. Here, because this matter concerns enforcement of a conventional | (¡obligation, i.e., the drilling contract, and because the drilling contract contains a choice-of-law provision, La. C.C. arts. 3540 and 3537 are the more specific articles and are more appropriate to this particular case.

Louisiana C.C. art. 3540 provides that “all other issues of conventional obligations are governed by the law expressly chosen or clearly relied upon by the parties, except to the extent that law contravenes the public policy of the state whose law would otherwise be applicable under Article 3537.” As noted, the contract at issue contains a choice-of-law provision whereby the parties effectively selected the law of Texas to be applied to any disputes arising under the drilling contract. It is well established that where parties to a contract stipulate the specific state law that will govern the contract, the choice-of-law provision must be given effect unless there is statutory or jurisprudential law to the contrary. Mobil Explor. & Prod. U.S., Inc. v. Certain Underwriters Subscribing to Cover Note 95-3317(A), 2001-2219 (La.App. 1st Cir. 11/20/2002), 837 So.2d 11, 42-43.

Here, the law that was expressly chosen and relied upon by the contracting parties is Texas. As a result, and pursuant to the clear dictate of La. C.C. art. 3540, Texas law must govern any claim arising under the drilling contract.

However, we recognize the legal conundrum of applying the contractual terms of the drilling contract to a claim against E & PCo LLC, who is not a party to the contract. Fortunately, La. C.C. art. 3537 allows us to determine which state’s law would apply in the absence of the choice-of-law provision. La. C.C. art. 3537 provides:

17Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multi-state commercial intercourse, and of protecting one party from undue imposition by the other.

In this case, it is clear that the Article 3537 factors also support the application of Texas law. NorAm, E & PCo Int’l, and E & PCo LLC are all formed under the laws of Texas and are domiciled therein. All of their records are maintained in Texas, and their company operations occur there. Although some of these entities are authorized to do business in Louisiana, none is incorporated, and no party’s principal place of business is in Louisiana. Other than the fact that the object of the contract was to be performed in Louisiana, Louisiana has marginal contacts with each party involved in the dispute. The drilling contract was also drafted, negotiated, and signed in Texas. Additionally, NorAm and E & PCo Int’l each had the justifiable expectation that litigation under the drilling contract, including disputes as to corporate form, would be governed by the laws of Texas.

We also note that this article is intended to be read in conjunction with La. C.C. art. 3515, which calls for this court to determine which state’s policies would be the most seriously impaired if not applied. E & PCo LLC maintains that Texas law would be the most seriously impaired because | ¿Texas has a strong interest in litigation deciding corporate structure of companies formed and existing under Texas law. We agree. This is especially true when a Texas company is attempting to hold two other Texas companies liable under a theory of liability that has been expressly rejected by the Texas Supreme Court.

Even more, the application of Texas law is also consistent with Louisiana jurisprudence. As explained by the trial court, Louisiana courts and courts applying Louisiana law apply the law of the place of incorporation to determine fundamental issues of corporate structure. In support of this contention, E & PCo LLC cites Quickick, Inc. v. Quickick Int’l, 304 So.2d 402, 406 (La.App. 1st Cir.1974), writ denied, 305 So.2d 123 (La.1974), where the court was faced with the decision whether to apply Texas or Louisiana law to a question of setting aside corporate forms based on the alter ego theory of liability. Although the court’s holding in Quickick was decided in the context of an alter ego analysis — not single business enterprise liability — we find this case to be persuasive and on point.

In Quickick, both plaintiff and defendant were incorporated under the laws of Texas. The agreements in dispute were also drafted, negotiated, and signed in Texas. The main office of the defendant was in Texas, and the records of both parties were located in Texas. However, although the Quickick plaintiff had an office in Texas, its main office was in Louisiana. Presented with the facts above, the court held that “[w]e think it is clear that the law of Texas should govern under those circumstances.” Id. at 406.

Almost identical to the facts in Quickick, E & PCo Int’l and E & PCo LLC are both formed under the laws of Texas, domiciled in Texas, and have |9their main offices in Texas. Likewise, NorAm is formed under the laws of Texas. In fact, NorAm’s principal place of business is in Texas, unlike the plaintiff in Quickick. Accordingly, we apply the same reasoning here, and conclude that because NorAm, E & PCo Int’l, and E & PCo LLC are all incorporated in Texas, Texas law applies to NorAm’s claim against E & PCo LLC.

Conclusion

Considering the foregoing, we conclude that the trial court properly granted summary judgment in favor of E & PCo, L.L.C., holding that Texas law applies to this lawsuit. All costs of this appeal are assessed to NorAm Drilling Company.

AFFIRMED.

      . The single business enterprise doctrine is an equitable doctrine used to break down corporate walls between affiliated corporations. Where a corporation has engaged in questionable business practices, the doctrine serves to preclude the concept of corporate separateness to extend liability to affiliated corporations to achieve equity.

      . In SSP Partners v. Gladstrong Invest., 275 S.W.3d 444, 447 (Tex.2008), the Texas Supreme Court expressly rejected the doctrine of single business enterprise liability and held that "corporations cannot be held liable for each other’s obligations merely because they are part of a single business enterprise."


author: STEPHEN J. WINDHORST, Judge.

text:
    STATE of Louisiana v. Louis K. COLE.
    No. 13-KA-540.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Gail D. Schlosser, Jeff Hufft, Blair C. Constant, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

|2Pefendant, Louis K. Cole, was convicted of possession of cocaine in violation of La. R.S. 40:967C, and in due course, was sentenced as a second felony offender to eight years imprisonment at hard labor, to be served without benefit of probation or suspension of sentence. Defendant now appeals from his conviction and sentence, alleging that the trial court erred in denying his motion to suppress evidence, and that the trial court erred in failing to grant a mistrial after prejudicial remarks by a potential juror. We affirm defendant’s conviction and sentence.

The following facts were developed at trial. On October 19, 2012, approximately 4:00 P.M., Detective Randy Picarella of the Jefferson Parish Sheriffs Office was canvassing on Highway 90 near the Bee-chgrove area. He executed a traffic stop after observing a vehicle fail to signal before making a left turn. Sergeant Shane Klein of the Jefferson Parish Sheriffs Office stopped behind Detective Picarella’s vehicle, and Detective Donald Clogher of the Jefferson Parish |sSheriffs Office stopped in front of the vehicle that was pulled over. Defendant was the driver of the vehicle that was stopped. There was also a female passenger in the vehicle.

Sergeant Klein approached the driver’s side of the vehicle, while Detectives Clo-gher and Picarella approached the passenger side. Detective Clogher approached from the front of the vehicle and noticed the driver bend over to his right after his hands went out of sight. Detective Clo-gher warned Sergeant Klein about the driver’s hand movements and his reaching down toward the floorboard. Because of Detective Clogher’s warning that defendant had made movements suggesting the possibility of a gun, Sergeant Klein requested that defendant exit the vehicle so that a pat-down search for officer safety could be performed.

After Sergeant Klein requested that defendant put his hands on the car so he could conduct a pat-down search, defendant began nudging him with his elbows and became very agitated, saying he did not have “anything.” Sergeant Klein asked defendant to let him do his job. Although defendant put his hands back on the car, once Sergeant Klein attempted to reach into the front of defendant’s waistband, he “aggressively pushed off the car” and pushed Sergeant Klein, causing Klein to almost lose his balance. Sergeant Klein explained to defendant he needed to pat him down for safety reasons, but defendant refused. At trial, Sergeant Klein testified that defendant knew they were police officers when he was attempting the pat-down search.

Sergeant Klein eventually handcuffed defendant, placed him under arrest, and then attempted to complete the pat-down for officer safety, however defendant continued refusing to let them check him for weapons. Defendant was wearing baggy pants that were “below his buttocks” and were falling down to his ankles as Sergeant Klein tried to gain control of him.

I ¿Because of defendant’s lack of compliance, and because his actions were “escalating,” Detective Clogher assisted Sergeant Klein in completing the pat-down search. Detective Clogher reached in the front of defendant’s waistband, an area that defendant seemed uncomfortable with having searched. While defendant’s pants were separated from his boxer shorts, Detective Clogher felt what he believed to be some type of narcotics in his boxer shorts. Detective Clogher removed crack cocaine from a slit that had been cut into defendant’s boxer shorts. Later tests showed the crack cocaine had a gross weight of two grams. No weapon was recovered from defendant’s person.

The third police officer on the scene, Detective Picarella, testified that defendant was belligerent, “moving about,” loud, resisting the search, and saying that he did not have anything on him. Detective Pi-carella further testified that typically there were no problems with pat-downs for weapons “unless there’s something up.”

Assignment of Error One

In his first assignment of error, defendant alleges that the trial court erred in denying his pretrial motion to suppress, in which he contended that the evidence was seized after an illegal stop and search.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. La. C.Cr.P. art. 703D; State v. Lewis, 12-902 (La.App. 5 Cir. 6/27/13), 121 So.3d 128. The trial court’s decision to deny a motion to suppress is afforded great weight and | (¡will not be set aside unless the preponderance of the evidence clearly favors suppression. Lewis, supra. When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings. Id.

Although not required to do so, an appellate court may review the testimony adduced at trial, in addition to the testimony adduced at the suppression hearing, in determining the correctness of the trial court’s pre-trial ruling on a motion to suppress. State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, 122, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).

At the hearing on defendant’s motion to suppress, Sergeant Shane Klein and Detective Donald Clogher testified that on October 19, 2012, they participated in an investigation that led to defendant’s arrest. Detective Clogher explained that information was received from a confidential informant (Cl), who had proven to be reliable in the past, regarding distribution of crack cocaine in the Beechgrove and Avondale areas. Thereafter, several officers in separate vehicles attempted to track down a vehicle that the suspect was allegedly driving, since the Cl had provided a specific license plate number of the vehicle.

Detective Picarella conducted an investigatory stop after the vehicle defendant was driving, bearing a license plate number that was one digit off from the information the Cl had provided, was pulled over for a traffic violation. Detective Clo-gher and Sergeant Klein were advised of the traffic violation by means of the radio and they proceeded to the scene of the stop. After the vehicle was stopped, Detective Clogher approached from the front of the vehicle. Other police personnel approached from different directions. At the hearing, Detective | (¡Clogher explained that there was less likelihood of a confrontation with a stop initiated as a traffic stop.

As Detective Clogher approached, he observed defendant quickly move his hands from the steering wheel out of sight and lean over towards the center of the car, almost to the floorboard. Detective Clogher advised Sergeant Klein of defendant’s actions and warned him to watch the driver’s hands as he approached the driver’s side of the vehicle. Detective Clo-gher stated that he thought that weapons may be on defendant’s person or in the vehicle and he was concerned about officer safety. After being alerted, Sergeant Klein ordered defendant to exit the vehicle and initiated a pat-down of defendant for weapons. Defendant appeared nervous, was moving his body, and refused to allow the pat-down to continue. Defendant became agitated and started pushing away from Klein. Sergeant Klein told defendant to stop, but he kept saying, “I don’t have anything on me.” Defendant refused to allow Klein to complete the pat-down. Detective Clogher assisted in the pat-down because defendant was resisting and struggling with Sergeant Klein. Defendant repeatedly told the officers to take him to jail and became “more confrontational.”

After being warned several times to allow Sergeant Klein to complete the pat-down, defendant was ultimately handcuffed and placed under arrest for resisting the pat-down. Defendant was searched after the arrest for resisting an officer and a little less than three grams of crack cocaine was discovered in a “front slit, like, a compartment cut into the front flap of his boxer shorts.” At the hearing, Detective Clogher explained that the closer they got to the location of the crack cocaine, the more defendant resisted. He also explained that the pat-down became a search. Defendant was then also arrested for possession of crack cocaine. There was no citation issued for the traffic violation.

|7The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. Lewis, supra. The exclusionary rule bars, as illegal fruit, physical and verbal evidence obtained either during or as a direct result of an unlawful invasion. Id. Warrantless searches and seizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. Id.

We first consider whether the officers were justified in conducting a traffic stop. The right of law enforcement officers to stop and interrogate those reasonably suspected of engaging in criminal activity is recognized by La.C.Cr.P. art. 215.1, as well as by State and federal jurisprudence. Lewis, supra at 135. The Terry standard, as codified in La.C.Cr.P. art. 215.1, authorizes police officers to stop a person in a public place whom they reasonably suspect is committing, has committed, or is about to commit an offense and demand that the person identify himself and explain his actions. Id. “Reasonable suspicion” to stop is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference. Additionally, a violation of a traffic regulation provides reasonable suspicion to stop a vehicle. Id. Generally, the decision to stop a vehicle is reasonable when the police have probable cause to believe a traffic violation has occurred. The fact that an officer does not issue a traffic citation is irrelevant to the constitutionality of the stop. Id.

| ^Police officers may make an initial traffic stop after observing a traffic infraction, even if the stop is a pretext to investigate for controlled dangerous substances. Generally, the decision to stop a vehicle is reasonable where the police have probable cause to believe that a traffic violation has occurred, and the standard is purely objective, without taking into consideration the subjective beliefs or expectations of the detaining officer. Lewis, supra. “ ‘Although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants.’ ” Id. (quotations omitted). “When an officer observes what he objectively believes is a traffic offense, the decision to stop the vehicle is reasonable, regardless of the officer’s subjective motivation.” State v. Hunt, 09-1589 (La.12/1/09), 25 So.3d 746, 753.

Defendant was stopped after he failed to use his turn signal. Failure to use a turn signal is a traffic violation. See La. R.S. 32:104B; State v. Turner, 12-855 (La.App. 5 Cir. 5/16/13), 118 So.3d 1186, 1191. Thus, the officers were justified in stopping the vehicle for a traffic violation, even if the stop was a pretext to investígate for controlled dangerous substances. State v. Davis, 09-452 (La.App. 5 Cir. 1/26/10), 31 So.3d 513, writ denied 10-2201 (La. 10/21/11). 73 So.3d 373.

Moreover, as noted above, detectives were acting on probable cause derived from information obtained from a Cl whose information had been reliable in the past. Therefore, the stop itself would have been constitutional without the basis of a traffic violation, no less so than had officers with probable cause approached defendant on the sidewalk. Inasmuch as Detective Clogher testified that there was less likelihood of a confrontation with a stop initiated as a traffic stop, it appears |9that the traffic stop may have been less pretextual and more for the purpose and hope of maintaining calm.

We next conclude that the officers were justified in ordering defendant out of the vehicle to conduct a pat-down of his person. Police officers should not be required to take unnecessary risks in performing their duties. They are authorized to take such steps as are reasonably necessary to protect their safety and to maintain the status quo during the course of a Terry stop. Lewis, supra at 136. Louisiana jurisprudence has recognized that there is potential danger for an officer even during a routine traffic stop. Id. at 137. A police officer who stops a vehicle for a routine traffic offense may be exposed, according to the circumstances, to a significant risk of attack, and concern for the safety of the officer may be a legitimate and weighty justification for reasonable intrusions into the privacy interests of the occupants of the stopped vehicle. Id.

Once an officer has lawfully stopped a vehicle for a traffic violation, he is authorized to order the driver out of the vehicle pending completion of the stop. State v. Kinard, 12-446 (La.App. 5 Cir. 11/27/12), 105 So.3d 974, 979.

Further, an officer conducting a traffic stop may perform a pat-down search of a driver and passengers upon reasonable suspicion that they may be armed and dangerous. Lewis, supra at 137. Such a search “must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Id. (quotation omitted). This limited protective search is justified under circumstances where a reasonably prudent person in those circumstances would be warranted in the belief that his safety or the safety of others was in danger. Id. “[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticular-ized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled | into draw from the facts in light of his experience.” Id. (quotation omitted). If a law enforcement officer has legally stopped a person pursuant to La.C.Cr.P. art. 215.1A, the officer may frisk the outer clothing of the person if the officer reasonably suspects that he is in danger. Id. (citing La.C.Cr.P. art. 215.1B). Additionally, if the officer reasonably suspects that the person possesses a dangerous weapon, he may search the person. Id.

Here, the officers had received information from a reliable Cl regarding crack cocaine. “Guns and drugs frequently go hand-in-hand[.]” State v. Warren, 05-2248 (La.2/22/07), 949 So.2d 1215, 1229. Further, upon Detective Clogher’s approach, he observed movements by defendant that led him to believe that defendant could have a weapon. For safety reasons, he advised Sergeant Klein about his observations and warned him as he approached the driver. Thus, the officers were justi-fled in conducting a pat-down search for weapons.

Third, we find probable cause to arrest defendant for resisting an officer. Under La. R.S. 14:108A, it is a criminal offense for a person being lawfully detained by an officer to resist that detention.

We find probable cause to arrest defendant for resisting the officer when he was being lawfully detained and Sergeant Klein was attempting to complete a pat-down search of weapons for officer safety. Evidence was presented that defendant physically resisted the officer’s attempts to pat him down, even pushing Sergeant Klein to the point where he almost lost his balance.

Finally, the officers were justified in searching defendant’s person and retrieving the crack cocaine from his boxer shorts. A search incident to an arrest is an exception to the warrant requirement. This exception holds that, once a lawful Inarrest has been made, a warrantless search of the arrestee’s person and of the area within his immediate control is permissible in order to remove any weapons from his person and to prevent evidence from being destroyed. Lewis, supra at 138.

In the instant case, the testimony presented at the suppression hearing indicates that defendant was arrested for resisting an officer after defendant physically resisted the pat-down search for weapons when the officer repeatedly told him to let him do his job and complete the pat-down. After the arrest, the search of defendant’s person was justified as an exception to the warrant requirement and, therefore, the seizure of the cocaine from defendant’s boxer shorts was lawful. See State v. Bellow, 07-824 (La.App. 5 Cir. 3/11/08), 982 So.3d 826, wherein this Court found that the war-rantless search of defendant and seizure of narcotics, incident to a lawful arrest of the defendant for resisting an officer, was legal.

We find that the trial court did not err in denying defendant’s motion to suppress. This assignment of error is without merit.

Assignment of Error Two

In his second assignment of error, defendant argues that the trial court erred when it denied defense counsel’s motion for a mistrial and to release the jury panel due to highly inflammatory remarks and references to racial prejudices, made by a potential juror, a mistake compounded when the court allowed her to speak and more prejudicial remarks were presented to the potential jurors. Defendant argues that her conduct tainted the jurors and made it impossible for him to have a fair and impartial jury.

La.C.Cr.P. art. 775 provides in part that “[u]pon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain |12a fair trial, or when authorized by Article 770 or 771.” Under La.C.Cr.P. art. 770(1), a mistrial shall be ordered when a remark or comment made within the hearing of the jury by the judge, district attorney, or a court official during trial or argument refers directly or indirectly to race, if such remark or comment is not material and relevant and might create prejudice against the defendant in the jury’s mind. An admonition to the jury to disregard the remark shall not be sufficient to prevent a mistrial, but if the defendant requests that only an admonition be given the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

In the present case, the alleged prejudicial comments were not made by the judge, district attorney, or court official, but by a prospective juror. Consequently, we find that the requirements for a mandatory mistrial under Article 770 were not triggered. See State v. Pennington, 12-0804, 2013 WL 596151 (La.App. 1 Cir. 2/15/13) (not designated for publication).

Rather, the controlling provision in this case appears to be La.C.Cr.P. art. 771, which sets forth permissive grounds for requesting an admonition or a mistrial when a prejudicial remark is made on grounds that do not require automatic mistrial under Article 770. Article 771 provides, in pertinent part, the following:

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

11SA mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed absent an abuse of that discretion. State v. Alexander, 12-807 (La.App. 5 Cir. 5/16/13), 118 So.3d 1138. An appellate court shall not reverse a ruling because of any error which does not affect the substantial rights of the accused. La.C.Cr.P. art. 921.

During voir dire, Jenette Porter was examined as a prospective juror. During the examination, she expressed that her home had been broken into and she blamed this on law enforcement. However, she believed that she could still be a fair and impartial juror. She also expressed that she would rather be at work than in court. Further, she said that she thought this was “a racial state outside of New Orleans.” She also said the following:

So like me or not. He committed a crime. You want someone to help you get him off the street or whatever. Put your burden of proof or your white talk. Continue. Ain’t going to pay my bills.... It’s a black state they say. But percentage of blacks going to be criminal. So he’s a criminal, as you would say, or his lawyer would say not. Proceed.

After this examination, a bench conference was held. Defense counsel requested a mistrial because counsel believed that the prospective juror said repeatedly that defendant was black, was a criminal, and was guilty of a crime. Counsel concluded this was a cause challenge. The State expressed that it had no problem “causing her out.” The court provided that it was willing to strike this prospective juror for cause. Defense counsel then stated that he believed she had tainted the entire jury panel by saying he was black and guilty of a crime. Counsel suggested that if the mistrial would not be granted that the court should at least 114instruct the panel that defendant, as he sits there, is not guilty. Thereafter, the court instructed the prospective jurors, as follows:

Some comments have been made by one of the prospective jurors, and I just want to give you an instruction to be sure that there’s no problem.
As the Defendant sits here today, he is not guilty. The burden is upon the State to prove that he is guilty of a crime beyond a reasonable doubt. As he sits here right now, there is a presumption of innocence. Okay? And I want you to disregard the comments of Ms. Porter.

Later, Ms. Porter asked to speak and denied that she said defendant was guilty, noting that a person is innocent until proven guilty. After further comments were made, the trial judge instructed her to stop and threatened her with contempt until she was escorted outside of the courtroom. The State then continued examining prospective jurors, noting that defendant was innocent until proven guilty and explained the State’s burden. Ms. Porter was ultimately excused for cause.

There was no showing that Ms. Porter’s comments affected the other prospective jurors, nor was there a showing of any prejudice tending to deprive the defendant of the reasonable expectation of a fair trial. The jury was instructed to disregard her comments and was reminded more than once of defendant’s presumption of innocence. Even Ms. Porter ultimately said defendant was innocent until proven guilty. We do not believe that Ms. Porter’s conduct made it impossible for defendant to obtain a fair trial. Compare State v. Scroggins, 40,746 (La.App. 2 Cir. 3/22/06), 926 So.2d 64, 69-71, writ denied, 06-0980 (La.11/3/06), 940 So.2d 655.

We therefore find that the trial court did not abuse its discretion in denying the motion for mistrial, and the admonishment, which was suggested by the | ^defense, was sufficient under the circumstances of this case. This assignment of error has no merit.

We have reviewed the record for errors patent, according to the mandates of La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find the following which merits our attention.

The commitment reflects that defendant’s sentence and enhanced sentence were imposed to run concurrently with the sentence imposed in case number 12-6015 and with “any other sentence currently serving.” The transcript of the original sentencing provides that defendant’s misdemeanor sentence in case number 12-6015 was ordered to run concurrently with the original sentence in this case. The transcript of the enhanced sentencing likewise provides that the eight-year enhanced sentence was ordered to run concurrently with the sentence in case number 12-6015. The transcript does not reflect that the sentences were imposed to run concurrently with “any other sentence” defendant was “currently serving,” as was provided for in the commitment. Generally, the transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983).

We remand the matter for correction of the commitment, and further direct the district court to make the entries in the commitment reflecting that the enhanced eight-year sentence runs concurrently with case number 12-6015, and we direct the Clerk of Court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced. See La.C.Cr.P. art. 892B(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam), and also to the Department of Corrections’ Legal Department.

| ,,We also note that the “State of Louisiana Uniform Commitment Order,” which is included in the record, does not reflect that the sentence was imposed without benefit of probation or suspension of sentence, as reflected in the record. We therefore remand this case for correction of the Uniform Commitment Order. See State v. Long, 12-184 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

We find no other error which merits correction.

For the above discussed reasons, the defendant’s conviction and sentence are affirmed. The case is remanded for action consistent with this opinion.

CONVICTION AND SENTENCE AFFIRMED; CASE REMANDED

      . At trial, the court simultaneously found defendant guilty of "resisting,” a misdemeanor, in cáse number 12-6015. Defendant was sentenced to six months in parish prison, concurrent with the sentence in this case.

      . Detective Clogher was asked if this area was consistent with the location where he had observed defendant reaching when he approached the vehicle. Detective Clogher agreed that it was, and testified that he was uncomfortable with having this area searched. He also agreed that a cell phone could have possibly been on his lap.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . La. R.S. 32:104B provides the following: "Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.”

      . La. R.S. 14:108A provides that resisting an officer is “the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest, lawful detention, or seizure of property ... when the offender knows or has reason to know that the person ... is acting in his official capacity.”

      . Ms. Porter was brought back into the courtroom. The court noted that it had learned that even more egregious behavior may have continued in the hall after she left the courtroom and that based on this behavior she would have to return to court for a contempt of court hearing.