author: DENNIS R. BAGNERIS, SR., Judge.

text:
    STATE of Louisiana v. Corey Q. BAILEY.
    No. 2012-KA-1662.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 23, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Corey Q. Bailey.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge SANDRA CABRINA JENKINS).
   DENNIS R. BAGNERIS, SR., Judge.

| defendant, Corey Bailey, appeals his conviction on charges of possession of cocaine and possession of marijuana — second offense. Defendant’s appeal also asks this Court to resolve the discrepancy between the sentencing transcript whereby the trial court imposed a fine of $250.00, plus court costs on the marijuana possession charge, and the minute, entry that assessed a $500.00 fine and costs. Defendant represents that the $250.00 fine assessed in the sentencing transcript should prevail. For the reasons that follow, we direct the trial court to amend the pertinent minute entry to show that the proper fine imposed should be the $250.00 fine assessed in the sentencing transcript and order the Clerk of Court to transmit the corrected document to the officer in charge of the institution to which defendant has been sentenced. In all other respects, however, defendant’s conviction and sentence are affirmed.

STATEMENT OF CASE

On June 15, 2011, the defendant, Corey Bailey, was charged by bill of information with one count of possession of marijuana — second offense — in violation of La. R.S. 40:966(E)(2) and one count of possession with the intent to distribute cocaine in violation of La. R.S. 40:967(A)(1). The defendant pled not |2guilty. After a preliminary and suppression hearing, the trial court denied the defendant’s motions to suppress evidence and statement. A jury trial was held on June 19, 2012. The defendant was found guilty of possession of cocaine and guilty as charged on the possession of marijuana offense.

On June 27, 2012, the trial court denied defendant’s motions for new trial and post-verdict judgment of acquittal. After the defendant waived all delays, the trial court then sentenced the defendant to serve four years at hard labor on the possession of marijuana conviction, with credit for time served. In connection with that conviction, the trial court also imposed a fine of $250.00 and court costs of $201.50, although the minute entry provided that the court ordered defendant to pay $500.00 to the judicial defense fund, plus the court costs. Thereafter, the trial court sentenced the defendant to four years at hard labor on the possession of cocaine conviction, with credit for time served. Both sentences were to be served concurrently.

On the same day, the defendant pled guilty to the multiple bill of information, which alleged that he was a second felony offender. The defendant again waived delays. The trial court vacated the prior sentences and resentenced the defendant on each count to four years at hard labor, with credit for time served, to be served concurrently.

Defendant then filed the present appeal.

STATEMENT OF FACT

The following testimony was adduced at trial.

|sNew Orleans Police Detective Melvin McCollum testified that he conducted a narcotics surveillance of 1702 Egania Street. The residence was a double shotgun house with bars on both front doors. Det. McCollum saw the defendant enter and exit the right side of the residence on several occasions. He noted that the defendant had a key to the residence. The defendant’s mother lived in the left side of the residence. Det. McCollum testified that the defendant was the target of the surveillance. After conducting the surveillance, he applied for a search warrant which was granted on June 1, 2011. On June 4, 2011, at approximately 2:00 p.m., he executed the warrant, triggered in part by his partner’s surveillance that showed two black males removing furniture from the residence. The other officers involved in the warrant’s execution included Benja Johnson, Willard Pearson, and Todd Dur-rell.

When they arrived at the residence, Det. McCollum observed the defendant standing inside a U-Haul truck and his brother, Robert Bailey, standing on the ground, near the truck. He said Det. Pearson detained Robert Bailey, while Det. Johnson and he dealt with the defendant, who was standing in the truck with his hands behind his back. The officers identified themselves and told the defendant numerous times to let them see his hands, however, he did not comply. Det. McCollum explained that the defendant appeared to be fumbling with the back of his pants. After the officers drew their weapons, the defendant put his hands in front of his body. Det. Johnson handcuffed the defendant and took him to the truck. Det. McCollum did not see Det. Johnson’s search of the defendant. A search of the residence produced no contraband.

l4Pet. McCollum said the defendant was arrested based on what Det. Johnson found during his search. He revealed that the sum of $555.00 was found on the defendant during an additional search at the Fifth District. While at the Fifth District, Det. McCollum said the defendant admitted that the crack cocaine and marijuana, which Det. Johnson had seen defendant drop on to the ground, belonged to him. Det. McCollum added that the defendant signed a “rights of arrestee” form and that he initialed a statement that said “the drugs are mine.” Det. McCollum testified that the street value of the cocaine was approximately $180.00 dollars. He further stated that the amount of cocaine did not appear to be for individual use because each rock of cocaine was individually wrapped.

New Orleans Police Detective Willard Pearson testified that he assisted Det. McCollum in the execution of the search warrant. Det. Pearson said that he detained the defendant’s brother, Robert Bailey. He verified that the defendant’s hands were behind his back and that the other officers gave several commands to the defendant to show his hands. Although Det. Pearson was present when Det. Johnson searched the defendant, he did not see what happened during the pat down. He did see the search of the defendant at the police station, which yielded $555.00 in currency. He also maintained that the defendant signed the “rights of arrestee” form and that he saw the defendant write the statement that “the drugs are mine.” Det. Pearson denied that the defendant was threatened in any way.

New Orleans Police Detective Benja Johnson testified that he participated in the execution of the June 4, 2011 search warrant. He verified the accounts given by Det. McCollum and Det. Pearson of their initial encounter with the defendant and his brother; in particular, that the officers drew their weapons when the defendant failed to respond to their requests to show his hands. Once the ^defendant moved his hands, Det. Johnson entered the truck, handcuffed the defendant, and took him out of the truck. He conducted a visual inspection around the truck. During a pat-down search of the defendant, Det. Johnson said the defendant dropped a plastic baggie from the back of his pants. Det. Johnson retrieved the bag and observed that it contained eighteen rock-like substances and another baggie containing a green vegetable matter, which appeared to be marijuana. Det. Johnson informed Det. McCollum of the drugs found, placed the defendant under arrest, and advised the defendant of his Miranda rights. Once the search of the residence was completed, the officers returned to the Fifth District Police station. A further search of the defendant was conducted, and $555.00 dollars were found on the defendant. He saw the defendant sign a waiver of rights form and make the statement to Det. McCollum that the drugs belonged to him.

Robert Bailey, the defendant’s brother, testified that on June 4th, he and the defendant were in the process of moving their mother when the police arrived. He maintained that he never saw the defendant in possession drugs that day. Bailey testified that his brother was not selling drugs, and no one approached his brother to purchase drugs. Bailey claimed that while he and his brother were moving furniture into the U-Haul truck, five or six police officers ran up towards them, with their weapons drawn, and told them not to move. At that time, Bailey was standing on the ground and the defendant was in the U-Haul truck. He testified that both his mother and his fiancee were walking out of his mother’s house when the police arrived. One of the officers grabbed Bailey, handcuffed him and patted him down. Another one grabbed the defendant and patted him down. Bailey contended that the officers did not repeatedly yell at the defendant.

|fiHe testified that the defendant and he were standing in the street, handcuffed, for twenty to thirty minutes. Thereafter, the defendant was then moved to the corner, and a police officer claimed that he found something on the ground. Bailey stated that he did not see the defendant throw anything to the ground. He also denied that the defendant had his hands behind his back when the police arrived.

ERRORS PATENT

A review of the record for patent errors reveals none.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In the first assignment of error, the defendant contends, and the State concedes, that there is a discrepancy between the sentencing transcript and the minute entry as to the amount of the fine imposed. The sentencing transcript indicates that the trial court imposed a fine of two hundred fifty dollars in connection with the defendant’s conviction for possession of marijuana-second offense. However, the minute entry indicates that a fine of five hundred dollars was imposed. Whenever there is a discrepancy between the transcript and a minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983); State v. Randall, 2010-1027, p. 3 (La.App. 4 Cir. 6/22/11), 69 So.3d 683, 685, writ denied, 2011-1560 (La.1/13/12), 77 So.3d 952.

Defendant’s assignment of error has merit. Accordingly, we order the trial court to amend the pertinent minute entry to reflect the fine imposed by the sentencing transcript and instruct the Clerk of Court to transmit the corrected document to the officer in charge of the institution to which defendant has been sentenced. La. C.Cr.P. art. 892(B)(2). See State ex rel. Roland v. State, 2006-0244 (La.9/15/06), 937 So.2d 846.

| ASSIGNMENT OF ERROR NUMBER 2

Defendant’s next assignment of error contends that alleged improper comments by the prosecutor during closing argument influenced the jury and contributed to the verdict, thereby depriving defendant of a fair trial.

With reference to the scope argument, La.C.Cr. P. article 774 provides:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

Prosecutors may not resort to argument involving personal experience or turn argument into a plebiscite on crime. State v. Fortune, 2010-0599, p. 8 (La.App. 4 Cir. 12/22/10), 54 So.3d 761, 766; State v. Jackson, 2008-0286, p. 10 (La.App. 4 Cir. 4/29/09), 11 So.3d 524, 532-533. A prosecutor should refrain from making personal attacks on defense strategy and counsel. State v. Manning, 2003-1982, p. 75 (La.10/19/04), 885 So.2d 1044, 1108, citing State v. Brumfield, 96-2667, p. 9 (La.10/20/98), 737 So.2d 660, 666 and State v. Duplessis, 457 So.2d 604, 609 (La.1984).

However, prosecutors have wide latitude in choosing closing argument tactics. State v. Casey, 99-0023, p. 17 (La.1/26/00), 775 So.2d 1022, 1036; Jackson, 2008-0286, p. 10-11, 11 So.3d at 533. Further, a trial court has broad discretion in controlling the scope of closing arguments. Casey, supra; State v. Jones, 2010-0018, p. 9 (La.App. 4 Cir. 11/10/10), 51 So.3d 827, 833. Even in the case of a prosecutor exceeding the bounds of proper argument, a reviewing court will not reverse a conviction unless thoroughly convinced that the argument |sinfluenced the jury and contributed to the verdict. State v. Wiltz, 2008-1441, p. 6 (La.App. 4 Cir. 12/16/09), 28 So.3d 554, 558; State v. Harvey, 2008-0217, p. 4 (La.App. 4 Cir. 5/13/09), 12 So.3d 496, 499. Even where the prosecutor’s statements are improper, a reviewing court should accord credit to the good sense and fairmindedness of the jurors who heard the evidence. Harvey, supra.

In the case at bar, defendant complains of statements made by the prosecutor during rebuttal in which the prosecutor allegedly improperly vouched for the credibility of the State’s witnesses and attempted to shift the burden of proof to the defendant. Some of the comments the State made in closing argument to which defense counsel objected included the following.

Mr. Napoli:
Think about what their theory of this case has to be. Their theory of this case has to be a plant. Has to be that these drugs were planted on Corey Bailey and that these three detectives are lying to you.
What did his own brother tell you? He was standing out there and he looked over. He saw Detective Benja Johnson reach down and pick up something in plastic just a couple of feet away from his brother. Now if you are going to plant something on somebody you already have it on you. You don’t need to recover it from the ground. So plant is out. These detectives couldn’t have planted these drugs on him and we know that from his own brother.
Now what did we learn from that testimony. That the plastic was found just a couple of feet away from this defendant just like the detective told you.
Well they say he didn’t alert us for 30 minutes. Well ladies and gentlemen I submit what happened was he found the drugs right away you don’t start jumping up and down at the scene and say oh look what I found. You wait until the search is done and you alert everyone what you found and that is what was done in this case.
They are arguing to you ladies and gentlemen that these drugs were planted. Their option is that $180.00 worth of crack cocaine and this bag of marijuana—
Mr. Barksdale:
Objection, facts not in evidence. No value was established.
THE COURT:
19Ladies and gentlemen, you heard the testimony. I can’t recite testimony in here. What the lawyers say is argument. You have to rely upon your own memory as to what was said or not said.
Go ahead, sir.
Mr. Napoli:
We will rely on your memory that there is a(sic) $180.00 worth of crack cocaine and this bag of marijuana was just randomly lying in the grass and Detective Johnson just out of luck just picked it up and oh I’m going to plant it on this defendant. That all of these drugs were just randomly lying around.
I submit to you ladies and gentlemen, that is completely unreasonable. More than that, its ridiculous. That in Orleans Parish we would find $200.00 dollars worth of drugs just lying in the grass.
Mr. Barksdale:
Judge, I would just object to the mis-characterization. Mr. Bailey didn’t testify that that’s what he found. He testified that the officer bent down and said he found something.
THE COURT:
Ladies and gentlemen, it is ultimately be (sic) up to you. As I promised everyday in this building, they think the evidence signifies X and they think it signifies Y. Its for you to make whatever inferences you can make from the evidence.
Mr. Napoli:
Let me be very clear on this. The defense counsel maybe misheard what the officer testified to. He made it very clear that he bent down and he picked up something plastic off of the ground and that was the testimony.
Now as you learned in voir dire the defense is not required to put on a ease. When they choose to put on a case, you have to evaluate that case. You look at that case and give it the same scrutiny you give our case.
Mr. Sherman:
That is incorrect, your Honor.
THE COURT:
Ladies and gentlemen, I am going to give you the law as to who carries the burden and you already know that answer now.
Go ahead, sir. The defense doesn’t have to prove anything.
Mr. Napoli:
They have submitted to you throughout this entire trial that he is a welder. That is where the $555.00 dollars came from. That he is a welder. Well if that is true, ladies and gentlemen, they would have |inbrought his employer in. They brought something in here to demonstrate that.
Mr. Barksdale:
Judge, I don’t have to—
THE COURT:
That’s overruled.
Mr. Napoli:
There (sic) huge argument in this case is that this is just not reasonable to believe. That there is no way that a criminal defendant would throw down drugs right in front of an officer.
Well, that why we had Mr. Moll ask the detective about a throw down case because the truth is ladies and gentlemen this is so common. This is seen so often in this building that there is a name for it. This happens all the time. Mr. Sherman:
Objection.
THE COURT:
That’s sustained ladies and gentlemen. You are to judge what happens in this case and this case only.
Mr. Napoli:
Judge, the testimony was that this is a common thing.
THE COURT:
I understand and we are here to evaluate the facts of this case.
Mr. Napoli:
I understand. And the defense counsel argued that this is not reasonable. I would submit to you ladies and gentlemen that the reason is that this defendant did this is exactly what you just saw. For the defense attorney to come in here and argue oh, there is no way that someone would do that. There is a name for this type of case ladies and gentlemen.
Mr. Sherman:
Objection, your Honor.
THE COURT:
That’s overruled.
Mr. Napoli:
You also learned that he should have thrown it down in the truck. Why didn’t he throw it down in the truck? Think about the testimony defense counsel elicited on cross examination. The first officer saying there is no way he said this 20 times. Ladies and |n gentlemen, he was instructed 20 times to show his hands. There wasn’t just one officer there. There were four-or five officers by that truck instructing him repeatedly. So it wasn’t one saying it 20 times. It was 20 times total between the five of them. You will quickly (sic) in the heat of the moment that is going to take a few seconds. He refused to do it hiding something in his waistband, they drew their guns. They draw (sic) their guns while his hands are still in his waistband. Defense counsel, Mr. Barksdale, what did he ask about quick movements? Well ask yourself this. He has his hands behind his back trying to conceal something. At this point the guns are drawn on him and that object is still back there. You think he is going to make a quick movement to throw it away. He would be risking his life because he has guns pointed at him at that point. That’s why he held on to the drugs.
That’s why they were kept in his waistband when he was handcuffed and that’s why when he was brought down from the truck he did the only thing he could do. He reached and just threw them down so they could bring this argument to you today.
You also heard that there was nothing found in the house. So this case just doesn’t stand. He had everything he needed to be a drug dealer on his person. You heard this is $180.00 worth of crack cocaine. That’s what a drug dealer needs to distribute. He already has then (sic) individually wrapped.
You also learn through Mr. Barksdale himself about safe houses. About how drug dealers don’t keep their drugs in the house where they live. Well, ladies and gentlemen I submit to you perhaps there is another house where he keeps the rest of his crack.
Mr. Sherman:
Objection, Judge, facts not in evidence. He is just lying now.
THE COURT:
Ladies and gentlemen you are the ones that have to determine what is in evidence and is not. Try to keep your remarks to what is in evidence, sir.
Mr. Napoli:
We keep arguing all of these things and it wasn’t brought up during Mr. Moll’s closing.. It wasn’t brought up during defense closing. We are almost forgetting that he confessed.
Mr. Sherman:
I’m going to object.
THE COURT:
That’s overruled.
Mr. Napoli:
112Tell me this doesn’t sound like a confession to you? “The drugs are mine, CQB.” They want to argue to you that they were being threatened. That’s why he did it. Because he was being threatened. What I say is not evidence. What Mr. Moll says is not evidence and what defense counsel [says] is not evidence. The evidence is what you hear from this defense stand. Have you heard any evidence indicating that he was threatened?
They argued to you that a phone call was made and it was put on speaker phone and the mom was called and threatened and that’s why he confessed. She is sitting right here. If that were true don’t you think that she would have gotten on the stand and told you about that?
Mr. Barksdale:
Judge, objection—
THE COURT:
I’m sorry. What is the nature of the objection?
Mr. Barksdale:
Burden shifting, Judge.
THE COURT:
That’s overruled. Neither side has a burden of putting anything on. Once items are put into evidence and witnesses are sworn, then its (sic) up to you.
Mr. Napoli:
They presented to you in opening statements and throughout this case that there was a phone call made to this man’s mother.
First of all, I would be certain to have those phone records.
Secondly, I would certainly have his own mother and get on the stand and corroborate that if that was the truth.
While we are talking about the defendant’s mother remember she was there for all of this. She observed this entire thing happen. The entire search of the defendant. Where is she to testify like what his brother did? She is not up there because it is a lie.
Mr. Sherman:
Objection, Judge, we didn’t have to call her—
THE COURT:
Anybody could have called her, ladies and gentlemen.
Mr. Sherman:
It’s the State’s burden to prove their case.
THE COURT:
Anybody could have called her.
| iSMr. Napoli:
Now they also argue don’t consider the client. I mean consider the client and don’t consider anything you heard from the detectives. When I asked Detective McCollum who has dedicated his life to this what is the street value of this? What is the next word you heard? It wasn’t out of his mouth. Its was an objection out of theirs because they don’t want you to consider that. When I asked him is this personal use? Is this something for personal use? Objection again. They don’t want you to—
Mr. Sherman:
Objection, Judge.
THE COURT:
One at a time. What is the objection? Mr. Sherman:
The basis of our objection was that— THE COURT:
I don’t want a story. Just give me an evidentiary reason.
Mr. Sherman:
Its (sic) facts not in evidence. Its (sic)not arguing facts of the case and it is incorrectly stated and its (sic) burden shifting.
THE COURT:
Its (sic) overruled ladies and gentlemen, you all recall what is in evidence and what’s not.
Mr. Napoli:
We presented Detective McCollum with these drugs and we asked him your opinion as a narcotics detective in New Orleans is this for personal use? No. The way it is packaged, the value of this there is no way that this is for personal use. You don’t find $180.00 worth of crack cocaine on a crack head. You find it on a crack dealer. That’s why he had $555.00 in his pocket.
Finally, they get to the reason of the lie. They are going to argue to you why these three detectives lied to you all today. They are saying that Detective McCollum needs to cover his basis [sic] because he went and got a search warrant and he didn’t find anything. So now he his [sic] going to be in very big trouble. So he better plant some drugs on the defendant.
Well first off ladies and gentlemen, I would submit to you that if he was caught planting drugs on someone he would be in a whole lot of more trouble than if he went to a house and simply didn’t find drugs.
_[JiMore important that that [sic] ladies and gentlemen and I want you to think about what the most important witness in this case is. Its not Detective McCol-lum He is not the one who saw the throw down. Its Detective Benja Johnson. So if Detective McCollum was the one who waisted (sic) all this time and committed all these sins, why do you have Benja Johnson on the stand being the one saying that I saw him throw these drugs down? That doesn’t make sense.
I mean what this case boils down to is these three detectives. A combined 26 years of experience—
Mr. Barksdale:
Objection to bolstering the witnesses, Judge.
THE COURT:
That’s overruled. His opinion is just that ladies and gentlemen. Its (sic) opinion. Its (sic) your opinion that matters.
Mr. Napoli:
They have 26 years of experience. They told you what each of them did that day. Detective Johnson who has been on the force for 22 years made it very clear to you that he was standing right there when the defendant threw this to the ground. Its (sic) your job as jurors to determine if you think he was lying. If you think this man — and this wasn’t even his case. He put his entire career on the line to tell a lie for Detective McCollum. Its (sic) nonsensical ladies and gentlemen.
On top of all of that he wrote out his own statement confessing that the drugs were his.
Now its (sic) time to be accountable for that (sic) he wants to present this ridiculous argument. His argument is not supported by the evidence at all.
I ask you to focus on what you heard on the stand. What you got from this witness stand because that is what the evidence is. Not what they told you and not what they lied to you about the threats and all of this stuff and return the proper verdicts.
All three of these detectives were in that room when this statement was made. All three of them made it very clear to you the defendant made the statement and he wasn’t threatened in any way. He admitted to those drugs.
Now it is up to the 12 of you to determine who is telling the truth and who is telling a lie.
I submit to you ladies and gentlemen that they told you the truth. I submit these are three good detectives who did their job that day.

The defendant argues that the prosecutor’s comments were improper in three regards: the statements exceeded the evidence presented; the statements were 11Kburden-shifting; and the statements were made to bolster the credibility of the police officers.

While the prosecution must base its conclusions and deductions in closing argument upon evidence adduced at trial, both the State and defense are entitled to their own conclusions as to what is established by the evidence, and either may press upon the jury any view arising out of the evidence. State v. Sayles, 395 So.2d 695 (La.1981); State v. Everett, 2011-0714 (La.App. 4 Cir. 6/13/12), 96 So.3d 605, writ denied, 2012-1593, 2012-1610 (La.2/8/13), 108 So.3d 77.

In State v. Jones, 2010-0018 (La.App. 4 Cir. 11/10/10), 51 So.3d 827, the defendant argued that the prosecutor’s arguments exceeded the facts presented at trial. This Court rejected the defendant’s argument noting:

This court has refused, however, to reverse defendants’ conviction where the prosecutor’s argument included facts that were not adduced during testimony. See State v. Anthony, 2003-1031 (La.App. 4 Cir. 11/19/03), 862 So.2d 124 (noting that the prosecution’s argument was clearly speculation rather than a reference to facts known to the prosecutor but not brought out at trial). This court was not thoroughly convinced, given the common sense and fairmindedness of the jury, that the prosecutor’s argument contributed to the verdict or influenced the jury. See also State v. Plaisance, 2000-1858 (La.App. 4 Cir. 3/6/02), 811 So.2d 1172 (the prosecutor referred to blood on a seatbelt, a fact not adduced at trial). This court rejected the defendant’s claim that this argument merited reversal of his conviction.

Jones, 2010-0018, p. 13, 51 So.3d at 835.

Our review of the transcript before us fails to support defendant’s claim that the prosecutor’s comments improperly exceeded the evidence. In particular, the defendant claims that the State argued facts not in evidence when it suggested to the jury that the defense did not want the jury to know the street value of drugs. However, we conclude that the prosecutor properly referenced evidence presented during trial and merely argued to the jury the State’s view of that evidence. For instance, Det. McCollum did testify as to the value of the cocaine and also testified | 1(ithat the recovered cocaine did not appear to be for personal use. The prosecutor’s closing arguments stressed to the jury the State’s version as to what the evidence established and rebutted the defendant’s account; therefore, they did not exceed the evidence.

Next, we consider defendant’s complaint that some of the prosecutor’s statements suggested that the defendant had a burden of proof. Defendant contends that the prosecutor’s comments regarding the defendant’s failure to call his mother and employer as witnesses in order to bolster his claims that the confession was coerced and that he was gainfully employed as a welder amounted to burden-shifting. We disagree. Instead, we find that these comments were proper as they merely restated evidence or lack thereof that was presented during the trial.

In State v. Turner, 626 So.2d 890, 898-99 (La.App. 3 Cir.1993), the defendant argued that the State’s remark during rebuttal about the defense’s failure to call defendant’s brother as a witness was an unlawful attempt to switch the burden of proof. The trial evidence revealed that the defendant’s brother was present when the crime was committed. Relying upon this Court’s ruling in State v. Taylor, 533 So.2d 94 (La.App. 4 Cir.1988), the Court found that the prosecutor’s closing remarks concerning lack of defense witnesses were merely restatements of evidence presented at trial and therefore, were proper. For similar reasons, we reach the same result in the present matter.

Defendant also represents that the State engaged in “burden shifting” when it asked the jury to evaluate the defendant’s case as it would evaluate the State’s case. However, we also find that this statement did not improperly shift the burden of proof to the defendant. Taken in context, the prosecutor argued only that the | injury had the responsibility of evaluating the credibility of all the witnesses in the same manner. Upon review, none of the arguments cited by the defendant in the prosecutor’s closing argument amounted to unlawful attempts to shift the burden of proof. •

Lastly, the defendant contends his conviction should be reversed because the prosecutor made numerous improper comments to bolster the credibility of the police officers. The Supreme Court, in State v. Williams, 96-1023 (La.1/21/98), 708 So.2d 703, held that while a prosecutor may not give his personal opinion regarding the veracity of a witness, it is permissible for him to draw inferences about a witness’s truthfulness from matters on the record. A prosecutor is allowed to respond to defense counsel’s arguments attacking the credibility of police officers. Such remarks are within the scope of rebuttal. State v. James, 545 So.2d 560, 567 (La.App. 4 Cir.1989).

The defendant in State v. Johnson, 559 So.2d 911 (La.App. 4 Cir.1990), argued that the prosecutor improperly commented on the police officer’s credibility during closing arguments. The prosecutor stated, “The defendant’s trying to get you to believe that the police officers planted this gun and stuff on him. Now, that doesn’t make sense. These police officers would be risking their job, their livelihood to convict this man, what for? No reason.” 559 So.2d at 914. This Court noted that defense counsel failed to object to the statement and as such, defendant had waived his right to seek review on appeal. However, the Court considered the defendant’s argument and found that the prosecutor’s statement was not improper, considering that one of the defendant’s theories at trial was that the police planted the gun on the defendant. The Court held that “because the credibility of the officers was a crucial factor in that defense theory, the remarks in 11Rquestion regarding possible repercussions that the officers would suffer by such actions were appropriate comments in response to the allegations raised by the defense.” Johnson, 559 So.2d at 914.

Moreover, in State v. Jason, 99-2551 (La.App. 4 Cir. 12/6/00), 779 So.2d 865, this Court recognized that the prosecutor’s statement — that it was defense counsel’s job to attack the credibility of the State’s witnesses — was not improper. The decision explained that the statement was made to rebut defense counsel’s argument that the jury should not believe the State’s witnesses. The Court noted that “[t]he jury’s function is to assess the credibility of the witnesses, and it is proper for both sides to argue that their witnesses should be believed and the other side’s not believed.” Jason, p. 7, 779 So.2d at 870.

In the present case, the defendant relies upon United States v. Gracia, 522 F.3d 597 (5th Cir.2008), in support of his argument that the prosecutor’s remarks were prejudicial and deprived him of a fair trial. In Gracia, the prosecutors made remarks that allegedly bolstered the credibility of the agents.

Gracia points to four remarks by the prosecutor that bolstered the credibility of the agents who interviewed him. First, the prosecutor expressed his opinion to the jury that the agents were “very, very credible” witnesses (“Statement One”). Second, the prosecutor asked the jurors rhetorically whether they thought that an agent “who has worked as a law enforcement agent for many years, that is his career, that is his chosen life, a man from this area, a man with a family, do you think that he would throw all that away by taking this stand and taking an oath and lying to you to get Mr. Gracia”; and whether the agents “would put their careers and criminal prosecution on the line for committing the offense of aggravated perjury” (“Statement Two”). Third, the prosecutor told the jury: “I’m going to ask you to respect their efforts as law enforcement officials and to believe the testimony that they offered” (“Statement Three”). Fourth, the prosecutor admonished the jurors that, to acquit Gracia, they would have to believe that the agents “got out of bed” on the day they arrested Gracia and decided that this was “the day that [they] were going to start [a] conspiracy to wrongfully convict Mr. Gracia” (“Statement Four”). Gracia insists that these remarks constituted reversible plain error. The government concedes that Statements |1flOne and Three may have been improper, but nevertheless contends that all four statements were harmless error.

Gracia, 522 F.3d at 600. The Fifth Circuit found that the statements were improper and constituted error that required reversal of the defendant’s conviction.

However, the Fifth Circuit distinguished Gracia in United States v. McCann, 613 F.3d 486 (5th Cir.2010). In McCann, the defendant argued that the prosecutor made comments which bolstered the credibility of the police officers. One comment was made during closing argument and one comment was made during rebuttal. The government argued that the comments were an “invited response” to the accusations of framing and lying made by McCann’s counsel. See generally United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 1045, 84 L.Ed.2d 1 (1985) (“[I]f the prosecutor’s remarks were ‘invited,’ and did no more than respond substantially in order to ‘right the scale,’ such comments would not warrant reversing a conviction.”). The Fifth Circuit held that the closing comment, which was limited to factual comments concerning the defense’s repeated assertions that the officers were lying, was proper. McCann, 613 F.3d at 497-498.

The Fifth Circuit also distinguished Gracia in United States v. Surtain, 519 Fed.Appx. 266 (5th Cir.2013), and found the defendant’s reliance upon Gracia misplaced. In Surtain, the defendant complained that the prosecutor made improper remarks about the credibility of the federal agents. The prosecutor stated:

And these two phenomenal agents, Bobby Stoltz and Wyatt Evans, they went backwards. They went to the Augusts. “Hmm, insurance. Let’s dig a little deeper.” That led to Stefan James, and that led to this prosecution. Just phenomenal work that you saw over the last week.... [W]e put on a compelling case, thanks to those two gentlemen right here.

Surtain, 519 Fed.Appx. at 291.

|2oThe court held that the comments were not improper, but were based upon the prosecutor’s descriptions of the investigation. Moreover, the decision also found that the prosecutor did not improperly vouch for the credibility of witnesses where the prosecutor made comments on rebuttal to counter specific attacks defense counsel made on the credibility of the government’s witnesses. The court opined:

In each of these statements, the government fairly implied, based on record evidence, that the witnesses had strong motives not to lie. Moreover, the prosecutor made these comments on rebuttal to counter specific attacks defense counsel had made on the witnesses’ credibility. Bolstering is permitted in such circumstances. McCann, 613 F.3d at 495. Id.

In the present case, the prosecutor’s remarks were in response to defense counsel’s numerous statements that the police officers were lying and that the police officers planted the drugs on the defendant. Just as in Johnson, the prosecutor’s comments were appropriate because the credibility of the police officers was a crucial factor in the defense’s theory that the drugs were planted on the defendant because no drugs were found in the house during the execution of the search warrant. Accordingly, the defendant’s reliance upon Gracia is misplaced. The prosecutor’s rebuttal comments were a proper response to defense counsel’s closing argument which questioned the veracity and motives of the State’s witnesses.

Defendant does not convince this Court that any of the prosecutor’s closing arguments improperly influenced the jury and contributed to the verdict. The State’s closing remarks fell within the scope of rebuttal. Accordingly, this assignment of error lacks merit.

| „ CONCLUSION

Based on the foregoing reasons, defendant’s convictions are affirmed. However, we clarify defendant’s sentence to order the trial court to amend the pertinent minute entry to reflect that the fine imposed in regards to the defendant’s conviction for possession of marijuana-second offense was $250.00, and order the Clerk of Court to transmit the corrected document to the officer in charge of the institution to which defendant has been sentenced. In all other respects, the defendant’s convictions and sentences are affirmed.

CONVICTIONS AFFIRMED; SENTENCE AMENDED AND AFFIRMED AS AMENDED.

      . The State and the defendant entered into two stipulations at the beginning of trial. The first stipulation stated that if New Orleans Police Department Criminalist John Palm were called to testify, he would testify that the eighteen rock-like substances tested positive for cocaine and the green vegetable substance tested positive for marijuana. The second stipulation provided that the defendant had previously pled guilty to simple possession of marijuana in case number 2009-5501.

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


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    COMMAND CONSTRUCTION INDUSTRIES, L.L.C. v. CITY OF NEW ORLEANS. FHP Tectonics Corp. v. City of New Orleans.
    Nos. 2013-CA-0524, 2013-CA-0525.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 23, 2013.

      Denise C. Puente, Douglass F. Wynne, Howard B. Shreves, James A. Burton, Simon Peragine Smith & Redfearn, LLP, New Orleans, LA, for Appellant/Command Construction Industries, LLC.
    Christy C. Harowski, Deputy City Attorney, Sharonda R. Williams, City Attorney, New Orleans, LA, for Appellee/City of New Orleans.
    L. Etienne Balart, Jarred G. Trauth, Jones, Walker, Waechter, Poitevent, Car-rere & Denegre, L.L.P., New Orleans, LA, for Intervenor/Durr Heavy Construction, LLC.
    John M. Madison, III, Kracht Frazier Madison, L.L.P., Baton Rouge, LA, Ami-cus Curiae/Louisiana Associate General Contractors, Inc.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   DANIEL L. DYSART, Judge.

Lin this case involving the award of a public construction contract, appellant, Command Construction Industries, L.L.C. (“Command”), seeks reversal of the trial court’s denial of its request for injunctive relief (or mandamus). For the reasons that follow, we find that the trial court improperly denied Command’s request for injunctive relief (or mandamus). At this stage, with the near completion of the contract at issue, a reversal of the trial court’s rulings is no longer possible. As Command reserved its right to seek damages at a later date “should the contract be improperly awarded,” we remand this matter for a determination of whether Command is entitled to damages.

Intervenor, Durr Heavy Construction, L.L.C. (“Durr”), to whom the contract was awarded, appeals the trial court’s denial of attorney’s fees and costs. Because of our finding that the contract was improperly awarded to it, we do not reach the issues raised in its appeal as those issues are moot.

_|2F ACTUAL AND PROCEDURAL BACKGROUND

This matter involves the bidding on, and awarding of, a public works construction project by the City of New Orleans (“City”), known as the Harrison Avenue Streetscape Project (“the Project”). The contract for the work was ultimately awarded to Durr. Two unsuccessful bidders on' the project, Command and FHP Tectonics Corp. (“FHP”) filed separate actions seeking injunctive relief (or mandamus). Those cases were consolidated; however, FHP voluntarily dismissed its action on October 8, 2012. Accordingly, the only matter before this Court concerns Command.

Command initiated this action by filing a Petition for Temporary Restraining Order, Preliminary Injunction and Writ of Mandamus (“Petition”) on August 17, 2012, which sought to compel the City to award it the construction project for which it was allegedly the lowest bidder. The Petition also sought to enjoin the City from receiving bids and awarding or executing any contract until the request for preliminary injunction was heard.

According to the Petition, the City opened bidding on the Project on July 10, 2012. Bids were submitted by FHP, Durr and Command. FHP was the lowest bidder; however, because of irregularities in its submission, FHP’s bid was not considered. The next lowest bid was from Command, whose base bid totaled $2,793,046.00. Durr submitted a base bid in the amount of $2,974,275.00. By letter dated July 11, 2012 (the day after Durr submitted its bid), Durr sought to Ramend its bid because of a “clerical error,” and it substituted a revised base bid (“Revised Bid”) of $2,444,850.80.

On July 27, 2012, Command issued a letter of formal protest to Durr’s bid, which maintained that Durr’s bidding procedures violated the Louisiana Public Bid Law, La. R.S. 38:2212 et seq. At that time, the contract had not been awarded. However, the City reportedly advised Command that it intended to award the contract to Durr, leading Command to file this lawsuit on August 17, 2012.

By order dated August 20, 2012, the trial court denied Command’s request for a temporary restraining order and a writ of mandamus. The court set the application for injunctive relief for an August 30, 2012 hearing, with the matter to be heard upon the verified pleadings and supporting affidavits.

Durr intervened in the action on September 5, 2012, on the basis that the contract was properly awarded to it on August 17, 2012, as it was the lowest bidder on the project. As concerns Durr’s amended bid submission, Durr’s position was that a clerical error had been made, which was obvious from the bid submission form. In addition to a declaration that the contract had been properly awarded to it, Durr sought attorney’s fee and costs under La. R.S. 38:2220.4 B(l). Durr filed a Motion for Attorney’s Fees and Costs which was heard on November 30, 2012, and denied by judgment dated January 8, 2013.

The trial court then rendered judgment on February 19, 2013, denying Command’s request for a preliminary and permanent injunction. It further denied the request for a writ of mandamus as moot. Appeals were taken by Command as |4to the denial of injunctive relief and mandamus, and by Durr as to the trial court’s denial of its request for attorney’s fees and costs. DISCUSSION

The main issue in this appeal turns on whether Durr’s Revised Bid submission complied with the provisions of the Public Bid Law found at La. R.S. 38:2212 et seq. According to the documents in the record, the City solicited bids for the Project, which contained certain instructions, including the warning that “[bjids containing any conditions, omissions, unexplained alterations, or irregularities of any kind may be rejected as informal.” The City’s bid documents further indicated that “[t]he prices should be expressed in words and figures ... [and][i]n case of discrepancy between the prices written in the bid and those given in the figures, the price in writing will be considered as the bid.” Modifications to bids were permitted before bidding was opened, as the bid documents expressly stated that:

Prior to the time set for bid opening, written and online bids may be modified and withdrawn. Modified bids must be on official forms. Changes and erasures to written bids must be explained or noted over the initials of the bidder and signed by a person legally empowered to bind the bidder.
(Emphasis added).

Implicit within these guidelines is that, once bidding was opened, modifications were no longer permitted. Furthermore, any “changes and erasures” (i.e.“modifications”) had to be “explained or noted.” Again, though, changes and erasures to written bids were allowed only “prior to the time set for bid opening.”

|5The form used by the bidders, a Louisiana Uniform Public Work Bid Form, requires a declaration of each bidder that it is familiar with the project work site and a certification that it will provide “all labor, materials, tools, appliances and facilities as required to perform, in a workmanlike manner, all work and services for the construction and completion of [the Project], all in strict accordance with the Bidding Documents.” The bid form then 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).” (Emphasis added). Immediately after the total base bid, each bidder was to supply three alternates, each in a lump sum; one for “[cjross walk,” another for “planting in median area,” and a third for “PVC sleeves and pull boxes.”

There is no dispute that Durr’s original total base bid was mistakenly comprised of the base bid (an addition of all the unit prices) plus all three alternates. That is, Durr erroneously added the three alternates to the base bid unitRprices to arrive at its initial bid of $2,974,975.00. This sum is obviously higher than Command’s base bid of $2,793,046.00. When the three alternates are subtracted from the total base bid, however, Durr’s base bid is $2,444,850.90, as stated in its July 11, 2012 letter, which is lower than Command’s bid.

The question before this Court, therefore, is whether the City was required to consider only Durr’s initial bid of $2,974,975.00 or whether it could consider Durr’s entire bid packet (of seven pages) to determine the correct amount of its total base bid. Command maintains that, even if Durr’s original bid may have contained an accounting error, its July 11, 2012, attempt to substitute the first page of the bid documents was improper. Command further maintains that Durr’s sole recourse under the public bid laws was to withdraw its bid without forfeiting its bid bond.

We agree.

The Louisiana Public Bid Law, found at La. R.S. 38:2212 et seq., governs the manner by which all contracts for public works are to be awarded. Under La. R.S. 38:2212(A)(l)(a):

All public work exceeding the contract limit as defined in this Section, including labor and materials, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised, and no such public work shall be done except as provided in this Part.

Command correctly notes that “requirements contained in the Public Bid Law and in a public entity’s bid requirements may not be waived.” Hamp’s Const., L.L.C. v. City of New Orleans, 05-0489, p. 1 (La.2/22/06), 924 So.2d 104, 105. At issue in Hamp’s was whether the City of New Orleans could waive the failure of the lowest bidder on a public works project to attach a copy of the City’s Invitation to Bid in awarding it the project. The bid solicitation required the attachment of several documents, including a copy of the invitation to bid. It also warned that, where specifications were included in the bid proposal, “all bidders must comply with these specifications. Any deviations ... must be detailed and fully explained by bidder in writing.” Id., 05-0489 at p. 2, 924 So.2d at 106. The trial court held that the “substantive formalities as set forth in the bid requirement” had been met and therefore, the job had been properly awarded to the lowest bidder. Id., 05-0489 at p. 3, 924 So.2d at 107. This Court, in an unpublished opinion, reversed, finding that the City, which created the requirements for bidding “was bound by those requirements” and could not later waive them. Id.

The Supreme Court granted the City’s writ, reviewed the history of the legislative amendments to La. R.S. 38:2212(A)(l)(b) and noted:

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, 1 ^because once included, these requirements are non-waivable as a matter of law.

Hamp’s, 05-0489 at p. 9, 924 So.2d at 110. (Second emphasis added). It then held 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.” Id., 05-0489, pp. 10-11, 924 So.2d at 111.

Several cases decided after Hamp’s reflect that irregularities in bid forms, even if informal or seemingly inconsequential, may not be discounted and set aside. 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, for example, the City of New Orleans solicited bids for janitorial services at the Louis Armstrong New Orleans International Airport. Nine bids were submitted, all of which were rejected. One of the unsuccessful bidders sought a writ of mandamus, compelling the award of the contract to it. Among the issues with its bid were calculation errors, i.e. errors in arithmetic. Citing Hamp’s as evidence 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,” this Court found that the City properly rejected all of the bids. Id., 11-0459 at p. 10, 76 So.2d at 554. This Court further noted that, whatever the cause of the errors in the bids, including calculation errors, “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.

Similarly, in Roof Technologies, Inc. v. State, Div. of Admin., Office of Facility Planning and Control, 09-0925 (La.App. 1 Cir. 10/28/09), 29 So.3d 621, a public works contract bid solicitation for roofing work contained instructions including one that “[a]ny interlineations, alteration or erasure must be initialed by the Signer of the bid or his authorized representative.” Id., 09-0925 at p. 3, 29 So.3d at 622. One bid was submitted that contained certain typing errors that were corrected by the “word-out” typing feature of the typewriter used to prepare the bid. Under the corrected information, “faint shadows” of the errors could be seen, although there were no initials by the bidder next to these corrections. The Second Circuit, noting that “[a]s it pertains to projects let for public bid, form matters as much as substance,” reversed the trial court’s finding that there were no “typos that would necessitate rejecting” the bid. Id., 09-0925 at p. 5, 29 So.3d at 623.

The First Circuit held:

... while [the] bid proposal may be clear, unambiguous, and, because of the corrections made, error free, Roof Tech, nevertheless, failed to comply with Instruction 5.1.4 to initial the corrections or alterations made in the bid proposal. And pursuant La. R.S. 38:2212 A(l)(b)(i), the OFPC was required to reject Roof Tech’s bid because of its failure to comply with Instruction 5.1.4. While such an application of the Public Bid Law may not readily appear to further the policy of preventing public officials from awarding contracts on the basis of favoritism or at possibly exorbitant prices, see Capital City Towing & Recovery, Inc. v. City of Baton Rouge, 97-0098, p. 4 (La.App. 1st Cir. 2/20/98), 709 So.2d 248, 250, it nonetheless does foster and sustain public trust in that strict enforcement of Instruction 5.1.4 would establish that any changes made to a submitted bid proposal were made by the actual bidder and not an employee or representative of the public entity to favor or assist a bidder. See also Hamp’s Construction, L.L.C., 05-0489 at 10, 924 So.2d at 110. Thus, we find that the trial court erred in granting Roof Tech’s request for injunctive and declaratory relief.

Id., 09-0925 at pp. 5-6, 29 So.3d at 624.

In Beverly Constr. Co., L.L.C. v. Parish of Jefferson, 07-847, p. 5 (La.App. 5 Cir. 2/6/08), 979 So.2d 551, 553, the court rejected the bid of an unsuccessful bidder on a public works project which failed to attach its entire bid packet. In that case, the advertisements for bids stated that “this bid package must be returned in its entirety” and “bid package, including instructions and specifications, must be returned in its entirety for bid to be valid.” In finding the bid deficient, the court noted that “Hamp’s emphasized that even ‘informalities’ cannot be waived.” Id., 07-847 at p. 6, 979 So.2d at 554.

In light of Hamp’s, and its progeny, it is clear that public entities have no discretion in evaluating bids for public works to determine the lowest responsible bidder. Even ostensibly insignificant irregularities, such as failing to attach a copy of the public entity’s invitation to bid, as in Hamp’s, which in no way affected the actual bid price, cannot be waived.

Here, while Durr’s bid need not be disqualified, the City was required to consider the bid, as it was presented on July 10, 2012. According to the City’s bid documents, modifications to bids were permitted only until the time that bidding was opened. Necessarily, once bidding was opened, no modifications were | ^permitted. More importantly, the Uniform Public Work Bid Form expressly stated that the total base bid would be “[f]or any and all work required by the Bidding Documents” and specifically instructed the bidders not to include alternates. The bid documents could not be any clearer. As the Supreme Court noted in Hamp’s, citing Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 04-0211, p. 8 (La.3/18/04), 867 So.2d 651, 657, “when a public entity elects to place certain requirements in its advertisements for bids and on its bid forms, that entity is bound by those requirements and may not choose to waive them at a later date.” Id., 05-0489 at p. 7, 924 So.2d at 109.

In this case, the City required a total base bid, exclusive of the alternates and only allowed modifications to bids prior to the opening of bids. Durr’s mistaken inclusion of the alternates in its total base cannot alter its unequivocal total base bid. We find, therefore, that the record reflects that Command was the lowest responsible bidder, and the City improperly awarded the contract to Durr.

112Because the trial court denied the preliminary and permanent injunction and a mandamus, the project went forward, and, at this time, these remedies are no longer available. Durr maintains that “Command can never prove it was the lowest bidder and therefore can never be entitled to damages. Therefore, Command’s appeal is moot.” The City, too, argues that Command’s entitlement to damages is not before this Court. We agree that the issue of damages is not properly before this Court. However, we reject the notion that Command has no recourse.

As the Louisiana Supreme Court indicated in Airline Const. Co., Inc. v. Ascension Parish School Bd., 568 So.2d 1029, 1033 (La.1990) that “an unsuccessful bidder on a public contract who fails to resort to the relief granted by statute by attempting to enjoin timely the execution or the performance of the contract, when the facts necessary for injunctive relief are known or readily ascertainable by the bidder, is precluded from recovering damages against the public body.” The court expressly noted that it did not reach the issue of whether “an unsuccessful bidder [has] a cause of action ... to recover damages against a public body which awards a public contract in violation of the public bid laws.” Id. However, implicit in its holding that a bidder is precluded from recovering [ isdamages if it does not timely seek an injunction, is the corollary that, should the unsuccessful bidder timely seek an injunction, it may recover damages. Indeed, that right was recognized by the Fifth Circuit in D & O Contractors, Inc. v. St. Charles Parish, 00-882, p. 7 (La.App. 5 Cir. 2/28/01), 778 So.2d 1285, 1290, which noted that “there is no question that an unsuccessful bidder may also seek damages once a contract is awarded pursuant to a defective bid.” Id.

We make no determination as to whether Command is entitled to damages, as that issue is not before us. In its Petition, Command “reserve[d] the right to seek damages at a later date should the contract be improperly awarded to any entity other than Command.” Accordingly, we remand this matter to allow Command to pursue its claim for damages.

We need not address the issue raised by Durr in its appeal of whether the trial court erred in refusing to award it attorney’s fees and costs pursuant to La. R.S. 38:220.4(B)(1). That issue is moot.

CONCLUSION

Because we have concluded that the bid in this matter was improperly awarded to Durr, this matter is remanded to the trial court for further proceedings consistent with this opinion.

REMANDED.

      . Based strictly on the record, we find that the construction contract should not have been awarded to Durr Heavy Construction, L.L.C., as its bid did not meet the strict requirements of the Public Works Act and the City’s bid solicitation documents. We make no determination as to whether Command can show that it is entitled to damages as that issue is before us at this time.

      . As this Court noted in Concrete Busters of Louisiana, Inc. v. Board of Com’rs of the Port of New Orleans, 10-1172, p. 5 (La.App. 4 Cir. 2/2/11), 69 So.3d 484, 487:
      [a] Louisiana Uniform Public Work Bid Form was developed by the Louisiana Division of Administration pursuant to the mandate of La. R.S. 38:2212, which provides that the form so developed:
      shall require only the information necessary to determine the lowest bidder and the following sections and information: Bid Security or Bid Bond, Acknowledgment of Addenda, Base Bid, Alternates, Bid Total, Signature of Bidder, Name, Title and Address of Bidder, name of Firm or Joint Venture, Corporate Resolution and Louisiana Contractors License Number, and on public works projects where unit prices are utilized, a section on the bid form where the unit price utilized in the bid shall be set forth.
      La. R.S. 38:2212 A(l)(b)(ii)(aa)” [emphasis supplied in the original].

      . The City's reliance on Don M. Barron Contractor, Inc. v. City of Natchitoches, 04-00173 (La.App. 3 Cir. 7/7/04), 879 So.2d 414, for its position that "if [it] could definitively determine the correct bid amount from the information provided within the four corners of the submitted bid proposal, the bid is acceptable” is misplaced. Under Hamp's, rendered after Barron Contractor, it is abundantly clear that irregularities in a bid may not be waived.

      . We can conceive of the opposite situation, where a mistake is made in the total base bid where the unit prices are added incorrectly, resulting in a substantially lower base bid than that intended. In that case, the bidder has the option to withdraw its bid without penalty. La. R.S. 38:2214(C) specifically contemplates that situation and provides, in pertinent part:
      Bids containing patently obvious, unintentional, and substantial mechanical, clerical, or mathematical errors, or errors of unintentional omission of a substantial quantity of work, labor, material, or services made directly in the compilation of the bid, may be withdrawn by the contractor if clear and convincing sworn, written evidence of such errors is furnished to the public entity within forty-eight hours of the bid opening excluding Saturdays, Sundays, and legal holidays. Such errors must be clearly shown by objective evidence drawn from inspection of the original work papers, documents, or materials used in the preparation of the bid sought to be withdrawn. (Emphasis added).

        See, e.g., Terrebonne Parish Police Jury v. A.L. Sizeler Constr. Co., 491 So.2d 409 (La.App. 1st Cir.1986), where the low bidder mistakenly neglected to include certain costs in its bid and notified the public entity of its desire to withdraw or correct its bid, the bidder was allowed to withdraw its bid and the public entity could not compel the bidder to enter into a contract or forfeit its bond.

      .Durr refers to the bid of another bidder, Fleming Construction Company, and suggests that its bid was lower than Command's; and therefore, even if Durr’s bid is set aside, the bid should have gone to it. Fleming Construction Company is not a party to this appeal, and the record contains nothing with respect to its bid. Accordingly, this argument has no merit in this appeal.

      . See also Anne Lind & Associates v. Orleans Private Industry Council, 98-0848, p. 5 (La.App. 4 Cir. 2/3/99), 729 So.2d 1067, 1070 (where plaintiff waited almost a year after the completion of a public works project to seek an injunction, "she [was] precluded from bringing an action for damages”).


text:
    Peterson M. YOKUM, et al. v. NICHOLAS S. KARNO II, INC., et al. Peterson M. Yokum, et al. v. Nicholas S. Karno II, Inc., et al.
    Nos. 2012-CA-1736, 2012-C-1656.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 23, 2013.

      Stuart H. Smith, Smith Stag, L.L.C., Michael L. Martin, Ron Anthony Austin, Austin & Associates, L.L.C., Barry J. Cooper, Jr., Cooper Law Firm, L.L.C., New Orleans, LA, for Plaintiffs/Appellees.
    Peter J. Butler, Jr., Richard G. Passler, Susan F. Drogin, Breazeale Sachse & Wilson, LLP, New Orleans, LA, for Defendants/Appellants.
    (Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

| jPeter Yokum (‘Yokum”) and Polly Anderson (“Anderson”), Vieux Carre Property Owners Residents and Associates, Inc., and French Quarter Citizens, Inc., filed suit against Nicholas S. Karno II, Inc., d/b/a Old Opera House (“Karno”), requesting that a preliminary injunction be issued against Karno for violation of existing statutes and ordinances prohibiting excessive noise at its establishment in the French Quarter in New Orleans. On December 8, 2010, a preliminary injunction was issued by the trial court enjoining Karno from committing any further violations of these laws. Yokum subsequently filed a motion for contempt, arguing that on two occasions, March 18 and 19, 2011, the sound levels were in violation of the injunction.

After a March 14, 2012 hearing, the trial court rendered judgment on April 20, 2012, finding that Karno had violated the injunction and issued the following judgment:

IT IS ORDERED, ADJUDGED AND DECREED that Defendant, Nicholas S. Karno, II, Inc., d/b/a Old Opera House is found to have violated the Injunction set forth in this Court’s December 8, 2010 Judgment, by its violations of the City of New Orleans’ Municipal Code, |2Section 66-202, Louisiana Revised Statute 26:90A(14) a, and Louisiana Revised Statute 26:286A(14) a. The Court has advised the Defendanh-Re-spondent that sanctions are forthcoming. This Court has instructed the defendant to immediately institute policies and procedures to assure compliance with this Court’s December 8, 2010 Judgment, including, but not limited to making appropriate sound measurements as called for by New Orleans’ Municipal Code, and to reduce the level of sound emanating from Old Opera House to comply with La. RS. 26:90A(14)a, and La. RS. 26:286A(14)a. Plaintiffs-Movers are instructed to file a motion to determine damages to be awarded in accord with La. C.C.P. Art. 3611.

Pursuant to the judgment, Yokum submitted a motion to award damages on May 11, 2012, asking that Karno be ordered to pay Yokum an amount equal to the gross revenue for four dates xon which Yokum asserted that Karno violated the injunction and that Karno be ordered to pay Yokum an amount equal to Old Opera House’s gross revenues for January 17 and 18, 2012, and March 18 and 19, 2011, in addition to the costs of obtaining the injunction, totaling $39,380.05.

The trial court granted Yokum’s motion for damages in part, ordering Karno to pay a $1,000 fine to the court, and to pay Yokum’s expert fees and court costs in connection with the motion for contempt, but otherwise denied Yokum’s request for monetary damages. Yokum filed a motion for new trial on August 1, 2012, with respect to the trial court’s denial of his motion for damages.

On September 5, 2012, Karno filed a peremptory exception of no right of action to Yokum’s first supplemental and amending petition for damages and |sdeclaratory and injunctive relief, asserting that Polly Anderson, a named plaintiff, had no right of action against Karno under La. Civ. Code art. 667 as Anderson was not a landowner and did not have any ownership interest in any neighboring immovable in the vicinity of the Old Opera House.

On September 28, 2012, Karno filed a motion and order for devolutive appeal of the July 23, 2012 judgment and the underlying judgment of April 20, 2012. The trial court signed the order on October 8, but noted that several exceptions and a motion for new trial were set for hearing on October 12, 2012.

The trial court denied Yokum’s motion for new trial at the October 12 hearing and sustained Karno’s peremptory exception of no right of action. A written judgment was signed on October 29, 2012. Karno filed a second motion and order for devolu-tive appeal on November 8, 2012, to appeal the same July 23 and April 20, 2012 judgments. Yokum filed a notice of intent to seek supervisory review on November 16, 2012, relative to the October 12, 2012 judgment denying his motion for new trial and sustaining Karno’s exception of no right of action.

The appeal and writ have been consolidated in this Court. Yokum filed a motion to dismiss Karno’s appeal as untimely. For the following reasons, we deny Yo-kum’s motion to dismiss, affirm the July 23, 2012 judgment of the trial court, and deny Yokum’s writ application.

A. Motion to Dismiss Appeal as Untimely

Yokum filed á motion to dismiss appeal in this Court arguing that Kárno’s appeal was not timely. Specifically, Yokum argues that Karno’s appeal of the 14April 20, 2012 judgment was filed more than fifteen days after it was rendered, in violation of La.Code Civ. Proc. art. 3612 C. The article provides:

C. An appeal from an order or judgment relating to a preliminary injunction must be taken, and any bond required must be furnished, within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided.

Karno counters that the April 20, 2012 judgment was interlocutory in nature because although the trial court did find Karno in violation of the preliminary injunction, it did not assess a penalty. Rather, sanctions were not imposed by the trial court until the hearing on June 22, 2012, and made final in the judgment rendered on July 23, 2012.

This Court has held that “[u]ntil such time as the trial court actually imposes a criminal sentence or sanctions, there is nothing to appeal.” Branstetter v. Purohit, 06-1435, p. 4 (La.App. 4 Cir. 5/2/07), 958 So.2d 740, 743. Accordingly, a finding of contempt, without imposing either monetary or criminal sanctions, is a non-ap-pealable interlocutory judgment. As such, there was no judgment from which to appeal until the July 23, 2012 final judgment.

Karno filed its first motion and order for devolutive appeal on September 28, 2012, which is also arguably not within the fifteen day time limit set forth in La.Code Civ. Proc. art. 3612 C. However, we do not agree with Yokum that the fifteen day time limit is applicable to an appeal of a judgment of contempt. Article 3612 refers to orders or judgments “relating to a preliminary injunction.” We have found no case law, nor is any cited by Yokum, to suggest otherwise. Instead, we find that the normal delays for appeal, as set forth in La.Code Civ. Proc. art.2087, Rapply. Yokum filed a motion for new trial on August 1, 2012, which was denied by written judgment dated October 28, 2012. Karno then filed a second motion and order for devolutive appeal on November 8, 2012.

We therefore find Karno’s appeal to be timely and the motion to dismiss is denied.

B. Appeal No. 2012-CA-1736

Karno seeks reversal of the July 23, 2012 judgment of the trial court finding it in contempt of the preliminary injunction issued by the court on December 8, 2010. The injunction ordered Karno to comply with the City of New Orleans’ noise ordinance.

Yokum filed a motion for contempt on October 31, 2011, alleging that Karno had on two occasions, March 18 and 19, 2011, violated the preliminary injunction. After a hearing on March 14, 2012, the court found Karno had indeed violated the injunction, and advised Karno that “sanctions are forthcoming.” The court further instructed Karno to immediately institute policies and procedures to assure compliance with the December 8, 2010 judgment. The judgment also instructed Yokum to file a motion to determine damages in accord with La.Code Civ. Proc. art. 3611.

On June 22, 2012, the court heard numerous motions, including Karno’s motion for summary judgment regarding La. Civ. Code arts. 667, 668 and 669; Karno’s motion for summary judgment regarding La. R.S. 26:286A(14)(a) and La. R.S. 26:90(a); and Yokum’s motion to award damages. The trial court granted Karno’s motion for summary judgment regarding the state statutes, denied Karno’s [ ^motion for summary judgment regarding the civil code articles, and granted in part, denied in part Yokum’s motion to award damages.

Relative to the motion to award damages, the court ordered Karno to pay $1,000 within ten days to the clerk of court, and to pay Yokum’s expert fees and court costs in connection with the motion for contempt. The court declined to award civil damages to Yokum.

Karno maintains on appeal that it is not challenging the injunction itself, but is rather challenging the trial court’s interpretation of the ordinance. Karno’s argument has been reviewed by this Court on numerous occasions. In 2009-C-0248, Karno argued, among other things, that the ordinance in question fails to give actual notice of the prohibited conduct. This Court noted in a similar case, Yokum v. Court of Two Sisters, Inc., 06-0732, p. 4 (La.App. 4 Cir. 11/21/06), 946 So.2d 671, a case in which Karno was named individually as a defendant and as the owner of the property leased to the restaurant, wherein this Court affirmed the grant of a preliminary injunction for violating the very same ordinance. We stated that “the trial judge’s specific reference to a particular noise ordinance adequately informs the defendant, pursuant to La.Code Civ. Proc. art. 3605, of the act ‘sought to be restrained’ by the preliminary injunction.” Id., p. 4, 946 So.2d at 674.

In 2010-C-0357, Yokum sought review of the trial court’s refusal to issue a preliminary injunction. Initially, this Court did not consider Yokum’s writ application for a procedural reason, but after remand from the Supreme Court, l7Yokum’s writ was granted on November 9, 2010, and we ordered the trial court to issue a preliminary injunction. No writ was taken by Karno to the Supreme Court.

The trial court issued the subject preliminary injunction on December 8, 2010, the very injunction which forms the basis of this appeal, and Karno appealed. The Supreme Court denied the writ. In 2011-CA-0231 , this Court dismissed the appeal based on res judicata, and Karno’s writ to the Supreme Court was denied.

Accordingly, we find no merit to this assignment of error on the basis of the prior findings by this Court that plaintiffs were entitled to the issuance of a preliminary injunction against defendant Karno,

Karno next argues that its due process rights were violated because on the same day that the trial court interpreted the putatively vague ordinance, it imposed criminal sanctions, and therefore, Karno was not given clear and actual notice of the facts constituting the contempt as required by law.

Yokum argues that the trial court did not find Karno in contempt, but rather found that it had violated the ordinance. We find this is a distinction without a difference, as La. Code Civ. Proc. art. 3611 states in part, “[disobedience of or resistance to a temporary restraining order or preliminary injunction or final injunction is punishable as a contempt of court.”

The April 20, 2012 judgment clearly stated that “Nicholas S. Karno, II, Inc., d/b/a Old Opera House is found to have violated the Injunction set forth in this Court’s December 8, 2010 Judgment, by its violations of the City of New Orleans’ 1 ^Municipal Code, Section 66-202, Louisiana Revised Statute 26:90A(14) a, and Louisiana Revised Statute 26:286A(14) a.”

We first address Karno’s argument that because the law was not clear, it could not be found in contempt for not following the directive of the court. As we have explained, this Court has previously determined that specific reference to a particular noise ordinance adequately informs the defendant of what conduct is sought to be restrained. Court of Two Sisters, supra. It therefore follows that the defendant was equally aware of what conduct constitutes a violation of the injunction.

We reject Karno’s second argument that the trial court could not impose a criminal, or even a civil penalty for violating a vague ordinance, for the previous reasons set forth herein.

La.Code Civ. Proc. art. 224 addresses constructive contempt of court. Specifically, Article 224(2) explains that “[w]ilful disobedience of any lawful judgment, order, mandate, writ, or process of the court” is a contempt. Article 227 provides in part that “[t]he punishment which a court may impose upon a person adjudged guilty of a contempt of court is provided in R.S. 13:4611.” La. R.S. 13:4611(l)(b) provides that the punishment for disobeying or resisting a lawful preliminary injunction is “a fine of not more than one thousand dollars, or by imprisonment for not more than six months, or both.”

Because we find that the trial court did adjudge Karno in contempt of court, the punishment in the form of a fine of $1000 was lawful. This argument has no merit.

Karno raises as an assignment of error that the two state statutes, La. R.S. 26:90A(14) a, and La. R.S. 26:286A(14) a, do not apply to the Old Opera House, lain the July 23, 2012 judgment, which is the subject of this appeal, the trial court granted Karno’s motion for summary judgment on this issue making this assignment of error moot.

Finally, Karno argues that the trial court erred by ruling in favor of Polly Anderson, a long-time resident of Yokum’s home as she was not named as a movant in the motion for contempt. We agree. However, because Anderson was not named in the July 23, 2012 judgment, this assignment of error is also moot.

C. Writ No. 2012-C-1656

In his writ application, Yokum seeks review of the trial court’s denial of his motion for new trial regarding the July 23, 2012 judgment discussed infra. Particularly, Yokum argues that the trial court erred in not awarding him monetary damages. He also seeks review of the trial court’s grant of Karno’s exception of no right of action as to Polly Anderson in a judgment dated October 29, 2012.

Yokum seeks review of the trial court’s denial of his motion for new trial regarding the trial court’s ruling finding that Karno violated an existing preliminary injunction and ordering Karno to pay the costs of Yokum’s noise nuisance action, but denying his request for damages under La.Code Civ. Proc. art. 3611. Yokum argues that he is entitled to compensatory damages in connection with Karno’s violation of the noise ordinance. He relies on La.Code Civ. Proc. art. 3611, which provides:

Disobedience of or resistance to a temporary restraining order or preliminary or final injunction is punishable as a contempt of court. The court may cause to be undone or destroyed whatever may be done in violation of an injunction, and the person aggrieved thereby may recover the damages sustained as a result of the violation.

Id. (emphasis added).

| inYokum contends that the trial court misinterpreted the meaning of the article, which he argues clearly contemplates that in addition to fines for violations and awards of costs and expenses, an additional remedy to the mover for all civil damages associated with the contempt.

Karno counters that La.Code Civ. Proc. arts. 221-227 and La. R.S. 13:4611 govern the concept of contempt in our law and should be read together. He argues that there is a maximum fine of $1,000 that can be levied by the court, plus costs and expert fees. See Jackson Avenue Foundation, Inc. v. Lassair, 03-1759, p. 8 (La.App. 4 Cir. 6/2/04), 876 So.2d 926, 930-31.

As this Court has explained in In re: Succession of Horrell, 07-1533, pp. 14-16 (La.App. 4 Cir. 10/1/08), 993 So.2d 354, 366:

A fine must be made payable to the court, not a party. City of Kenner v. Jumonville, 97-125, 97-210, 97-602 (La.App. 5 Cir. 8/27/97), 701 So.2d 223, 231. Fines for contempt of court are collectable by the sheriff and payable to the court or designated officials, rather than opposing litigants. La. C.C.P. art. 330. The reasoning underlying this requirement is that contempt proceedings are “designed for vindication of the dignity of the court rather than for the benefit of a litigant.” Joseph v. Entergy, 05-0263, p. 8 (La.App. 4 Cir. 8/3/05), 918 So.2d 47, 52.
Likewise we find the monetary “damage” assessments to be “fines” for Mr. Horrells’ act of contempt, pursuant to La. R.S. 13:4611. Further, we find that the trial court erred in making the fines payable to the Horrells’ attorneys as opposed to the court. A fine payable to the Horrells or their attorneys serves to benefit them and not vindicate the court.

Id. (emphasis added).

The trial court, in its discretion, awarded Yokum court costs and expert fees that Yokum incurred in connection with filing the motion for contempt. The trial court also ordered Karno to pay the court $1000 as a contempt sanction, although it lnwas erroneously included in the judgment as part of the granting in part and denying in part of Yokum’s motion for damages.

We disagree with Yokum’s interpretation that the trial court believed it could only impose a fine. Rather, we rely on the above cited jurisprudence and interpret the court’s actions to mean that it chose not to award civil damages, as was within its discretion. This interpretation is partially based on the trial court’s statement at the hearing: “As for other damages, that’s something that we would have to deal with at the time of trial as relates to your claim for damages based on Mr. Yo-kum’s mental anguish and other things of that sort.” In our view, the court was exercising its discretion to award damages in connection with the contempt in the form of fees and costs, and reserving judgment to the time of trial for any compensatory damages. Accordingly, we find no error in the trial court’s denial of Yokum’s motion for new trial.

The basis for Karno’s exception of no right of action when applying La. Civ. Code art. 667 to Polly Anderson’s cause of action, is that she does not co-own the property at 723 Toulouse, but rather lives at the address with Yokum. Yokum argues that Anderson has resided at that address since 1993, and most certainly qualifies as a “neighbor” to the offending property (Old Opera House).

La. Civ.Code art. 667 provides in part:

Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew, or in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the 1 ^exercise of reasonable care, and that he failed to exercise such reasonable care.

Yokum further cites Inabnet v. Exxon Corp., 642 So.2d 1243, 1251 (La.1994), where the Louisiana Supreme Court defined the term “proprietor” as used in La. Civ.Code art. 667:

The term “proprietor” in Article 667 also has been expansively interpreted by the courts to apply not only to a landowner, but also to a person whose rights derive from the owner. See, e.g., Lombard v. Sewerage and Water Bd. of New Orleans, 284 So.2d 905 (La.1973); see generally Ferdinand F. Stone, Tort Doctrine in Louisiana: The Obligations of Neighborhood, 40 Tul. L.Rev. 701, 711 (1966). Therefore, delictual actions under Article 2315, based on conduct which violates the obligations of Articles 667-669 not to use one’s property so as to cause damage to neighbors or to deprive neighbors of the enjoyment of their property, may be brought by persons holding rights derived from the landowner or against such persons.

Karno asserts that no reversible error occurred when the trial court granted its peremptory exception of no right of action regarding Anderson under La. Civ.Code art. 667 because Anderson is not a lessee or an owner and has no right to or interest in immovable property belonging to Yokum, a necessary precondition for a right of action, citing Salter v. B.W.S. Corp., Inc., 290 So.2d 821 (La.1974). In Salter, an industrial waste disposal company began dumping chemical waste on certain property, and the Calcasieu Parish district attorney, a police juror and the mayor of DeQuincy obtained a restraining order. Salter, 290 So.2d at 823. An adjacent landowner, Ivey Vanwinkle, and an individual who described himself in the petition as a lessee, George Frazier, intervened. Id. Frazier “who occupie[d] a tract adjacent to the northeast corner of [the company’s] property, established that he had a shallow well to the depth of twenty-thirty [sic] feet located five hundred |lsfeet east of [the company’s] property.” Id. In determining whether Frazier had a right of action under La. Civ.Code art. 667, the Court found:

We must now consider whether Frazier, who is at most a lessee, has a right of action. In State ex rel. Villett [Violett] v. King, 46 La.Ann. 78, 14 So. 423 (1894), the court held that a tenant had a right of action in a proceeding to enjoin certain objectionable aspects of an operation conducted on neighboring property where that operation threatened the health and comfort of the tenant. In Robichaux v. Huppenbauer, 258 La. 139, 245 So.2d 385 (1971), we granted injunctive relief to tenants whose health and safety were threatened by the manner in which the neighboring property was being used. In Lombard v. Sewerage and Water Board of New Orleans, 284 So.2d 905 (La.1973), we recognized that ‘proprietor’ as used in C.C. 667 need not be limited to owners.
We find that under the circumstances before us Frazier has a legally cognizable interest in the litigation and has a right of action to seek an injunction.

Id. at 824 (emphasis added).

Karno argues that although Yokum relies on Salter, Salter merely stands for the proposition that a lessee has a right of action under La. Civ.Code art. 667.

We disagree. We interpret La. Civ. Code art. 667 to mean that Anderson’s rights derive from Yokum’s rights, and therefore, under the facts of this case, has a legally cognizable right of action.

D. Motion to Dismiss Upon Exception of Res Judicata

Yokum filed a second motion to dismiss after this case was submitted. We do not find that the exception lies.

Yokum argues that the issue of the preliminary injunction and whether it should have been granted has been considered numerous times by the district court, this Court, and the Supreme Court. However, the issue before this Court on appeal is the motion for contempt of the preliminary injunction. Those are two separate and distinct issues.

114Accordingly, we deny Yokum’s motion to dismiss upon exception of res judicata.

E. Conclusion

For the reasons set forth herein, we deny Yokum’s motion to dismiss the appeal as untimely, affirm the July 23, 2012 judgment of the trial court, and deny Yokum’s writ as to the denial of his motion for new trial, but grant as to the exception of no right of action of Polly Anderson.

MOTION TO DISMISS AS UNTIMELY DENIED; APPEAL NO. 2012-CA-1736 AFFIRMED; WRIT NO. 2012-C-1656 DENIED IN PART, GRANTED IN PART MOTION TO DISMISS (RES JU-DICATA), DENIED

      . The motion for contempt only claimed violations on March 18 and 19, 2011.

      . This amount was itemized in an affidavit and attached spreadsheet compiled on behalf of Yokum. The dollar amount includes costs from August 5, 2009 to November 11, 2010, in pursuit of the preliminary injunction. Other costs were from January 13, 2011, to the time of preparation of the spreadsheet for costs incurred to establish the contempt.

      . The motion for contempt was filed on behalf of Yokum only. Polly Anderson was not named as a movant.

      . Yokum v. 615 Bourbon Street, L.L.C, d/b/a The Rock, Old Opera House, Inc., d/b/a Old Opera House and Willie Mintz, unpublished.

      . Yokum v. Nicholas S. Karno, Inc., d/b/a Old Opera House, unpublished.

        . Yokum v. Nicholas S. Karno, II, Inc., d/b/a Old Opera House, unpublished.