source: Caselaw Access Project

author: HOLDRIDGE, J.

license: Public Domain

text:
    Steven MCDOWELL v. Russell DIGGS, United Services Automobile Association and Liberty Mutual Insurance Company
    2017 CA 0755 2017 CW 0595
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered OCTOBER 03, 2018
    Ross M. Leblanc, Amber Lorio Day, Baton Rouge, LA, Attorneys for Plaintiff/Appellant, Steven McDowell
    Stephen F. Butterfield, Valerie B. Bargas, Baton Rouge, LA, Attorneys for Defendants/Appellees Russell Diggs and United Services Automobile Association
    Rachel M. Roe, Baton Rouge, LA, Attorney for Defendant/Appellee Liberty Mutual Fire Insurance
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.
   HOLDRIDGE, J.

In this personal injury action, plaintiff, Steven McDowell, challenges the jury's allocation of 50% fault to him, the amount of the jury's past medical expense award, the jury's failure to award future medical expenses, and the jury's failure to award general damages after entering an award for past medical expenses. In this appeal and by way of supervisory writs, plaintiff challenges the trial court's denial of his motion for a new trial. For the reasons that follow, we affirm the fault allocation, the award of past medical expenses, and the denial of an award for future medical expenses. We find legal error in the jury's failure to award general damages, and upon conducting a de novo review of the record, we enter an award for general damages. Having corrected the jury's legal error in failing to award general damages, we affirm the denial of the motion for a new trial and deny the application for supervisory writs challenging that ruling.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of June 5, 2013, at approximately 6:00 a.m., Mr. McDowell was driving a 1994 GMC Sierra truck westbound on Hooper Road toward its intersection with Joor Road in East Baton Rouge Parish. Mr. McDowell's vehicle was travelling in the left lane of the two-lane highway, while Russell Diggs, Sr. was driving his 2000 Dodge 6000 truck westbound on Hooper in the outside, or right lane. The accident occurred near the end of a merge area where Hooper becomes a one-lane street for westbound traffic and vehicles in the right lane must merge into the left lane. As Mr. Diggs attempted to merge onto the main travel lane occupied by Mr. McDowell's vehicle, the left rear of Mr. Diggs' truck was struck by the right front of Mr. McDowell's truck.

On March 28, 2014, Mr. McDowell filed this lawsuit seeking damages against Mr. Diggs, his liability insurer, United Services Automobile Association (sometimes collectively referred to as "USAA"), and Liberty Mutual Insurance Company, Mr. McDowell's underinsured motorist carrier. Mr. McDowell sought to recover damages for past, present, and future physical pain and suffering, mental anguish, loss of enjoyment of life, and medical expenses. USAA disputed liability and the nature and the extent of damages allegedly suffered by Mr. McDowell as a result of the collision, maintaining that Mr. McDowell had pre-existing medical conditions which were not caused or aggravated by the accident.

The case was tried before a 12-person jury. Following the conclusion of the trial, during which medical evidence was presented by both sides, the jury rendered a verdict finding that Mr. Diggs and Mr. McDowell were negligent in causing the June 5, 2013 collision. The jury allocated 50% fault to Mr. Diggs and 50% fault to Mr. McDowell. The jury then found that Mr. McDowell proved by a preponderance of the evidence that he sustained injuries as a result of the collision. When asked to itemize damages, the jury entered a single award of $8,000.00 for past medical expenses. The jury entered $0.00 in each of the blanks on the jury verdict form for future medical expenses, past pain and suffering, future pain and suffering, loss of enjoyment of life, and mental anguish/emotional distress. The jury verdict was unanimous. On December 15, 2016, the trial court signed a final judgment in accordance with the jury verdict.

Mr. McDowell filed a motion for a new trial, contending that it was legal error for the jury to award special damages without awarding damages for pain and suffering. Mr. McDowell also claimed that the medical expense award was excessively low. The trial court denied the motion for new trial.

Mr. McDowell filed an application for supervisory writs challenging the trial court's denial of his motion for a new trial. The writ application was referred to this panel. McDowell v. Diggs, 2017-0595 (La. App. 1 Cir. 7/24/17) (unpublished writ action). Mr. McDowell also appealed the December 15, 2016 judgment. In this appeal, Mr. McDowell contests: (1) the jury's allocation of 50% fault to him; (2) the jury's failure to award him the full amount of past medical expenses he incurred and its failure to award future medical expenses; (3) the jury's award of past medical expenses without an award of general damages; and (4) the trial court's failure to grant his motion for a new trial after the jury committed legal error by awarding special damages without accompanying general damages.

FAULT ALLOCATION

In his first assignment of error, Mr. McDowell contends that the jury committed manifest error in allocating 50% fault to him, insisting that the record contains no evidence that he was negligent in causing the collision. He asserts that Louisiana law places a greater burden on Mr. Diggs, as the motorist changing lanes, to demonstrate that he changed lanes only after determining that it was safe to do so, and that Mr. Diggs breached his duty to determine that it was safe to merge into Mr. McDowell's lane of travel. Mr. McDowell maintains that his knowledge of Mr. Diggs' presence in the left lane does not sufficiently establish his fault in this matter; he urges that aside from Mr. Diggs' pure assumption that he sped up before Mr. Diggs merged into the left lane, the record contains no evidence of negligence on his part. He argues that Mr. Diggs' speculation alone does not require affirmance of the jury's allocation of fault, and asks this court to reverse that allocation and amend the judgment to more accurately reflect the evidence contained in the record.

A determination of negligence or fault is a factual determination. In order to reverse a factual determination by the trier of fact, this court must find that a reasonable basis does not exist for the finding and that the record establishes that the finding is clearly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). When factual findings are based on credibility determinations the manifest error standard of review demands great deference to the trier of fact's findings.

Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Id.

The allocation of comparative fault is also a factual determination; therefore, the trier of fact's fault allocation is owed deference by this court. Harris v. Delta Development Partnership, 2007-2418 (La. App. 1 Cir. 8/21/08), 994 So.2d 69, 74. In determining percentages of fault, the trier of fact must consider both the nature of the conduct of each party at fault and the causal relation between the conduct and the damages claimed. Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967, 974 (La. 1985). In assessing the nature of the parties' conduct, the following factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; (5) any extenuating circumstances which may require the actor to proceed in haste, without proper thought. Id.

Mr. McDowell testified that he was very familiar with the area where the accident occurred, as his mother lives nearby. He explained that Hooper is a two-lane highway which splits into four lanes at its intersection with Joor. Approximately 100 yards past the intersection, Hooper goes back to a two-lane highway, with one lane of travel in each direction. Traffic that is in the outside, or right lane of Hooper after the intersection must merge into the left lane of travel. Mr. McDowell testified that he always tries to get in the left lane of Hooper at this intersection because the right lane ends.

On the morning in question, during traffic described as "moderate," Mr. McDowell was travelling in the inside, or left lane on Hooper. He testified that he caught the red light at the intersection and that there were two vehicles in front of him and three in the right lane, with one vehicle directly on the side of him. Mr. McDowell stated that he was travelling behind another vehicle going approximately 30-40 mph; the vehicle that was beside him in the right lane crossed over Joor and then turned into a McDonalds. Mr. McDowell testified that after the vehicle in the right lane turned into McDonalds, he was paying attention to the traffic in front of him and did not see any traffic in the outside lane. According to Mr. McDowell, as he neared the area where the two lanes merged, a vehicle came "flying" around him and tried to fit into the last ten yards of space before the right lane ended and hit the side of his vehicle. Mr. McDowell insisted he would have done everything he could have to avoid the collision if possible, but it was not possible, because Mr. Diggs' vehicle came into his lane so fast and Mr. McDowell could not slow down or stop to avoid the collision. Mr. McDowell claimed he did not notice Mr. Diggs' vehicle until there was a collision between their two vehicles, and he denied having sped up his vehicle at the end of the merge area.

Mr. Diggs gave a different account of the events leading up to the collision. Mr. Diggs, who drove the same route every morning on his way to work, was also aware that after crossing Joor, the right lane of Hooper ended. Mr. Diggs testified that on the morning in question, he was in the right lane of Hooper when he caught the red light at Hooper's intersection with Joor. He stated that his vehicle was the first car in line at the red light. Mr. Diggs admitted that he saw Mr. McDowell's truck when they were at the intersection and saw Mr. McDowell's truck in his rear-view mirror when he got ready to merge.

Mr. Diggs claimed that he stayed in the right lane all the way down until ten yards before it ended, and that he cleared Mr. McDowell's truck by approximately five feet before he even made an attempt to merge over. He estimated that his truck was three-quarters of the way into the left lane at the point of impact. Mr. Diggs believed that Mr. McDowell sped up his vehicle before their vehicles collided. According to Mr. Diggs, if he had been in the left lane, this accident would not have happened, because he would have allowed the vehicle merging from the right lane to come into the left lane.

Louisiana State Police Trooper Tommy Lea, who investigated the collision, arrived at the scene at approximately 7:00 a.m. At that time, the vehicles had been moved, and there was no way for Trooper Lea to determine the exact point of impact. Trooper Lea stated there were no eyewitnesses to the accident. He testified that he learned from interviews at the scene that the collision took place at the end of the merge lane as Mr. Digg tried to get into the main lane of travel occupied by Mr. McDowell's vehicle. He stated that the damage to the vehicles was consistent with what the drivers told him. According to Trooper Lea, Mr. McDowell had control of the left lane and it was incumbent on Mr. Diggs to make sure there were no vehicles in the main travel lane before merging over, and if Mr. Diggs had sufficient room or enough space to merge, the collision would not have happened. Trooper Lea acknowledged that while a motorist with the right of way such as Mr. McDowell had does not have to yield to oncoming traffic, that motorist has a duty to maintain a careful lookout and should use caution to avoid an accident if possible.

The duties of a motorist making a lane change are set forth in the law and the jurisprudence. Brewer v. J.B. Hunt Transport, Inc., 2009-1408 (La. 3/16/10), 35 So.3d 230, 241. Pursuant to La. R.S. 32:79, when a road is divided into two or more clearly marked lanes of travel, a vehicle shall be driven as nearly as practical within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety. When there is a change of lanes by a motorist immediately preceding an accident, the burden of proof is on the motorist changing lanes to show that it was first ascertained that the movement could be made safely. Brewer, 35 So.3d at 243. Under the jurisprudence, a greater burden of care is required for a motorist changing lanes than is demanded of a driver preceding at a lawful rate on a straight line in a marked lane. Id. at 241. At the same time, all motorists have a never-ceasing duty to maintain a sharp lookout and to see that which in the exercise of ordinary care should be seen. Theriot v. Bergeron, 2005-1225 (La. App. 1 Cir. 6/21/06), 939 So.2d 379, 383.

In this case, the jury concluded that the drivers bore equal fault in the ensuing collision between their vehicles. We find that determination to be reasonably supported by the record, particularly the photographs of the damage to the vehicles and the testimony of Trooper Lea, Mr. McDowell, and Mr. Diggs. The photographs show that the front of Mr. McDowell's vehicle collided with the rear of Mr. Diggs' vehicle. The jury could have concluded that Mr. Diggs was at fault in moving into Mr. McDowell's lane of travel when that lane was occupied by another vehicle and that Mr. Diggs negligently failed to yield the right of way to Mr. McDowell. The jury could also have concluded that Mr. McDowell should have seen Mr. Diggs' vehicle attempting to merge ahead of him and had he been maintaining a sharp lookout, Mr. McDowell would have had an opportunity to avoid the collision by simply allowing Mr. Diggs to complete the merge into his lane of travel. The jury's fault allocation is not manifestly erroneous, and we affirm that ruling.

DAMAGES

Past and Future Medical Expenses

Mr. McDowell contends that the jury committed manifest error by not awarding him the full amount of the past medical expenses he incurred and in refusing to award any sums for future medical expenses. He submits that his medical experts and the defendant's medical experts agreed that his medical expenses were related to the collision and that he would likely require some medical treatment in the future. Mr. McDowell contends that the jury's $8,000.00 past medical expense award contradicts the testimony offered by both parties. Specifically, he points to the testimony of USAA's own experts who stated that his pre-existing degenerative conditions were exacerbated by the collision and that at least a portion of his medical treatment was related to the collision. Mr. McDowell asks this court to increase the jury's past medical expense award to $29,542.68, and to award him future medical expenses in the amount of $166,835.00.

When reviewing a jury's factual conclusions with regard to special damages, including the jury's decision to award no future medical expenses claimed by an appellant, an appellate court must engage in a two-step process based on the record as a whole. In order to disturb the jury's award of special damages or to reverse its refusal to award an element of special damages, there must be no factual basis for the jury's determination and the finding must be clearly wrong. Kaiser v. Hardin, 2006-2092 (La. 4/11/07), 953 So.2d 802, 810 (per curiam ).

At the time of the accident, Mr. McDowell was 57 years old and was working as a self-employed carpenter. He described his work as a lead carpenter as supervisory in nature, noting that he mostly did lay outs, cutting, and told others what to do. While Mr. McDowell did state that he missed days of work because of the accident, he did not ask the jury to award lost wages, and there was no detailed evidence adduced at trial of the extent of the days of work missed by Mr. McDowell due to the accident.

Regarding the collision itself, the drivers described the impact of their vehicles differently. Mr. Diggs described it as a "noticeable bump." Mr. McDowell, on the other hand, testified that the impact "slung" him to the other side of the vehicle, causing him to hit his head and shoulder on the driver's side door, and knocked him in the other lane "a little" and left him "a little" dazed. Mr. McDowell described the accident to various medical professionals as a "sideswipe" or a "t-bone" collision while travelling at a rate of 45-50 m.p.h. Mr. McDowell testified that after the accident, the front fender of his vehicle was rubbing against the tire, and that he pulled over at his mother's house, took a tire iron, and straightened it out so he could keep going. Mr. Diggs also drove his vehicle to work following the accident.

Mr. McDowell testified that after the collision, he had some pain in his neck and head, but it was not bad at that point. However, as the days progressed, his neck started hurting worse, and the pain went into his back and shoulders. Mr. McDowell stated that he had pain pills and muscle relaxers from prior doctor visits, which he took, but they did not help him. When the pain medication Mr. McDowell had been previously prescribed did not alleviate his pain, he decided to seek medical treatment. Mr. McDowell contacted a lawyer, who gave him a list of doctors. From the list, Mr. McDowell chose to visit Dr. Michael Goff, a chiropractor.

During his first visit to Dr. Goff on June 24, 2013, more than two weeks after the accident, Mr. McDowell's chief complaint was neck pain; he also complained of back and left shoulder pain. Mr. McDowell denied that his major complaints existed prior to the accident. Dr. Goff's examination of Mr. McDowell's spine revealed abnormalities in all areas, Specifically, Dr. Goff found muscle spasms in Mr. McDowell's cervical, thoracic, and lumbar regions as well as in his shoulders, which, according to Dr. Goff, are objective, positive indications for some type of nerve root impingement. Dr. Goff expressed his belief that the examination results were consistent with what Mr. McDowell had told him about the way the vehicular accident occurred and what it did to Mr. McDowell's body.

The record reflects that during the first week of treatment, Mr. McDowell saw Dr. Goff five times. In July, Dr. Goff treated Mr. McDowell twelve times; in August, Mr. McDowell was treated two times, and in September, Mr. McDowell visited Dr. Goff two times. During those 21 visits, from June 24, 2013 through September 30, 2013, various physical therapy treatments were performed on Mr. McDowell, including electrical stimulation, ultrasound, cryotherapy, traction, spinal manipulation, and myofascial release. Dr. Goff felt that the treatments were keeping Mr. McDowell from having too much pain; however, Mr. McDowell remained symptomatic throughout the treatment, and Dr. Goff ordered cervical and lumbar MRIs. The MRIs, conducted on August 26, 2013, showed disc bulges and herniations along Mr. McDowell's cervical spine and bulges at virtually every level of the lumbar spine, along with an annular tear at the L4-L5 level, with no evidence of any nerve root impingement.

According to Dr. Goff, based upon his findings and what was reported on the MRIs, it was his opinion that medically, more probably than not, the 2013 collision was the reason for Mr. McDowell's symptoms and necessitated the treatment his office performed on Mr. McDowell. Dr. Goff noted that Mr. McDowell did not report prior neck problems, and felt that because there were no prior neck problems, the collision initiated Mr. McDowell's neck pain. He also felt that while Mr. McDowell did have back problems prior to the collision, the accident exacerbated or aggravated that prior back condition. Dr. Goff acknowledged that he did not have any of Mr. McDowell's prior medical records and he never contacted any other medical providers, and admitted that the history provided to him by Mr. McDowell was part of the basis for his opinion that the June 5, 2013 accident caused Mr. McDowell's pain. He also admitted that there was nothing in his records showing that he ever asked Mr. McDowell to limit his day-to-day activities.

After receiving the MRI results and believing that Mr. McDowell was in need of more than chiropractic care, Dr. Goff referred Mr. McDowell to Dr. Joseph Turnipseed, a pain management physician. Mr. McDowell first saw Dr. Turnipseed on October 17, 2013, four and a half months after the collision. At that time, Mr. McDowell's chief complaints were neck and back pain, with pain radiating down his arms with numbness down to his fingertips. Dr. Turnipseed's notes mention Mr. McDowell having prior neck and back pain; however, the doctor explained that the notation regarding prior neck pain was an error. Dr. Turnipseed testified that Mr. McDowell's prior medical records indicated that Mr. McDowell had sought treatment for back pain from his primary physician once or twice a year until the year of the accident. He also stated that he did not see any evidence of complaints of neck pain in Mr. McDowell's records. Dr. Turnipseed performed a physical examination on Mr. McDowell, during which he found palpable spasms and limited range of motion along the cervical and lumbar spine. According to Dr. Turnipseed, the examination revealed that Mr. McDowell had sustained an injury limiting his range of motion, and the physical examination correlated with what the doctor saw on the MRIs and Mr. McDowell's complaints. Dr. Turnipseed diagnosed Mr. McDowell as having an annular tear of the lumbar disc, cervical and lumbar spondylosis, and herniated discs in both the cervical and lumbar area. He noted that cervical and lumbar spondylosis are basically arthritic changes which a majority of people over the age of 50 exhibit. Dr. Turnipseed testified that more than 50% of people with arthritic changes in the spine are pain-free, and noted that a trauma such as a sideswipe collision could make the arthritis become symptomatic. Dr. Turnipseed acknowledged that for someone with degenerative or arthritic conditions on their spine, the symptoms could be worsened or exacerbated permanently. According to Dr. Turnipseed, chronic pain is defined as pain after about six months; if the patient continues to experience pain after six months, it becomes less likely for those symptoms to abate or go away as you go into the future. Dr. Turnipseed expressed his opinion that more likely than not, the disc herniation and tear are subacute, that is, caused by some type of injury, and as Mr. McDowell developed pain after the motor vehicle accident, if you "put two and two together," the motor vehicle accident more likely than not caused Mr. McDowell's problems.

On November 5, 2013, Dr. Turnipseed gave Mr. McDowell a combined cervical and lumbar epidural steroid injection (ESI). Approximately seven months later, in June 2014, another round of a combined cervical and lumbar ESI was administered to Mr. McDowell by Dr. Turnipseed. In March of 2015, Mr. McDowell underwent a cervical ESI, and on November 17, 2015, another combined cervical and lumbar ESI was given to Mr. McDowell by Dr. Turnipseed. Finally, in 2016, Dr. Turnipseed gave Mr. McDowell had a combined neck and back ESI. (R458) Dr. Turnipseed testified that the ESIs were medically necessary, as Mr. McDowell failed at conservative therapy, had tried pain medications, anti-inflammatories, and muscle relaxers, and while Mr. McDowell may be a surgical candidate, he had elected to choose interventional treatment to potentially avoid surgery and to improve his pain and function.

Dr. Turnipseed testified that Mr. McDowell had responded effectively to all of the procedures and that the injections were effective in providing Mr. McDowell pain relief. He indicated that as long as they were providing Mr. McDowell with pain relief for at least three months, he would continue to give ESIs to Mr. McDowell. Dr. Turnipseed estimated that he could provide Mr. McDowell with pain relief for up to ten years at approximately the same cost and pattern similar to that he had provided to Mr. McDowell over the three years he had treated Mr. McDowell. Dr. Turnipseed acknowledged that Mr. McDowell has reached maximum medical improvement and will not get better than he was at the time of trial.

On cross-examination, Dr. Turnipseed admitted that Mr. McDowell did not bring any medical records detailing his prior treatment before the accident and that he was provided with medical records of prior treatment the day before he testified at the trial. He also stated that the first time he prescribed any medication to Mr. McDowell was in May of 2014, when he prescribed a muscle relaxer and an anti-inflammatory. Dr. Turnipseed testified that based on the history Mr. McDowell gave him, he believed the accident caused Mr. McDowell's pain for which he first saw Mr. McDowell in October of 2013. Dr. Turnipseed acknowledged that if that history was not correct, he would be unable to relate all of Mr. McDowell's past and future treatment to the vehicular accident. However, he opined that Mr. McDowell was injured in the vehicular accident and aggravated a pre-existing condition.

Dr. Thad Broussard, an orthopedic surgeon who performed an examination on Mr. McDowell at the request of the defense, was asked to offer his opinion as to what the MRI films showed, Dr. Turnipseed's opinion that Mr. McDowell will need ESIs for the rest of his life, causation as to Mr. McDowell's neck and back complaints, and whether Mr. McDowell is physically restricted from working as a result of the accident. Dr. Broussard, an expert in the field of orthopedic surgery, examined Mr. McDowell on June 9, 2015. At that time, Mr. McDowell reported that he was in pain every day and that the ESIs had given him periods of relief. Mr. McDowell also reported that his pain was aggravated by the amount of physical activity he was doing, but that he had no interest in giving up his job or in having back surgery. According to Dr. Broussard, Mr. McDowell's spinal examination results were all normal. Dr. Broussard testified that Mr. McDowell's MRI findings were degenerative in nature, and showed multilevel degenerative spondylotic changes which he described as global degenerative changes or "normal wear and tear" changes. Dr. Broussard stated that the findings documented on the MRI were not traumatic type injuries and that Mr. McDowell had spinal problems before the accident. He opined that the accident probably aggravated Mr. McDowell's spinal problems based on the history Mr. McDowell provided to him and the medical records Dr. Broussard reviewed. When asked what would be a reasonable time frame for Mr. McDowell to have suffered an aggravation of his neck and back problems after the accident, Dr. Broussard replied that was a difficult question, and one he could not answer, only having seen Mr. McDowell one time. Dr. Broussard believed that Mr. McDowell had some neck and back pain which, based upon Mr. McDowell's history, was consistent with the findings on the imaging studies.

Dr. Broussard opined that ESIs were not indicated in Mr. McDowell's case. In Dr. Broussard's opinion, ESIs were not indicated for back and neck pain alone, but must be supported by objective physical findings that correlate positively with an imaging study. In short, he testified, ESIs were indicated only for back or neck pain associated with objective findings of radiculopathy, or radiating leg or arm pain. However, Mr. McDowell did not have any objective radicular findings and did not even have any subjective radicular findings. Dr. Broussard did not feel that Mr. McDowell was a surgical candidate and believed that further orthopedic treatment is not indicated. Dr. Broussard described Mr. McDowell as a "high functioning individual" who is building houses and working every day, is not taking narcotics, and except for his subjective complaints of pain, had no objective findings to support them.

Dr. Sandra Weitz, a pain management specialist, was hired by the defense to render an opinion regarding the extent of treatment provided to Mr. McDowell relative to the vehicular accident and to offer an opinion regarding future medical treatment.

On August 25, 2015, Dr. Weitz conducted an independent medical examination on Mr. McDowell and reviewed the August 26, 2013 MRIs and Dr. Turnipseed's notes. According to Dr. Weitz, Mr. McDowell reported that he had a history of back pain prior to the accident that was not really significant and did not experience neck pain before the accident. However, after the accident, he started having back and neck pain with pain radiating down his arms. Mr. McDowell told Dr. Weitz that he had injections in his neck and following those injections, his neck pain was basically gone; however, his ongoing complaint was really his low back, for which he had pain radiating into his buttocks. Mr. McDowell also reported pain in his hands and knees and that he was remodeling a house. Dr. Weitz acknowledged that Dr. Turnipseed's notes indicated that Mr. McDowell had reported intermittent neck and back pain before the accident.

In reviewing Mr. McDowell's MRIs, Dr. Weitz denied that there was anything in those reports she believed was likely caused by the June 5, 2013 motor vehicular accident. According to Dr. Weitz, the MRI reports indicate that Mr. McDowell had pre-existing widespread significant degenerative disc disease pretty much at every level of the cervical and lumbar spine. She opined that Mr. McDowell's complaints of neck and back pain after the accident represented exacerbations of his pre-existing degenerative disc disease. When asked what treatment she believed was more likely than not related to the June 5, 2013 accident, Dr. Weitz answered that obviously the MRIs were reasonable. She also opined that one or two of the ESIs in the cervical spine and the first lumbar ESI were related to the accident. Specifically, Dr. Weitz related the ESIs in Mr. McDowell's neck and back on November 5, 2013, to the accident based on Mr. McDowell's report that he was not getting significant treatment for his neck or low back pain prior to the accident.

However, Dr. Weitz stated that it became harder to relate Mr. McDowell's later ESIs and his complaints of pain following those ESIs to the accident more probably than not because there was a history of waxing and waning pain predating the accident, and the kind of work Mr. McDowell was doing could cause intermittent flare-ups and exacerbate Mr. McDowell's neck and low back pain. She also stated that the fact that Mr. McDowell reported that he was better after the injection and then had symptoms again made it hard to relate the later ESIs specifically to the accident. She also acknowledged it would be difficult to say, more probably than not, that the accident, rather than Mr. McDowell's daily living, was responsible for the later ESIs. Dr. Weitz believed Mr. McDowell's job as a carpenter could currently result in his ongoing symptoms. Dr. Weitz acknowledged that her opinion that the first injections on November 5, 2013 were related to the accident is based solely on the history provided to her by Mr. McDowell, and opined more probable than not that Mr. McDowell would have needed an ESI for his back regardless of whether this accident occurred and would more probably than not have needed an ESI in his neck regardless of the accident.

With respect to future care, Dr. Weitz believed it was reasonable to repeat Mr. McDowell's ESIs as long as he continued to get more than 50% relief from each injection, but she was unable to relate this treatment to the accident. She disagreed with the frequency of the injections as recommended by Dr. Turnipseed. Dr. Weitz did not see the need for Mr. McDowell to have physical therapy, surgical intervention, or medication in the future. Dr. Weitz responded "clearly no" when asked if there was any pain management modality she could see Mr. McDowell needing more probably than not in the future.

Dr. Weitz agreed that Mr. McDowell did suffer neck and back pain after the accident and that there was a period of exacerbation of his pre-existing degenerative disc disease following the accident. However, she plainly disagreed that all of the care rendered to Mr. McDowell by Dr. Turnipseed is related to the motor vehicle accident, noting that Mr. McDowell's pain was not in fact dormant prior to the accident because he had reported neck and back pain to his treating physicians prior to the accident. She testified that the pain Mr. McDowell reported to her is consistent with having degenerative, arthritic changes throughout his body, and one would expect someone who was in Mr. McDowell's profession of building and remodeling houses requiring that he perform heavy manual labor to have pain generalized over his body.

Dr. Turnipseed testified that he did not agree with Dr. Broussard's opinion that future ESIs are not indicated as Mr. McDowell's pain improved or was alleviated over a period of time with the injections. He maintained that if he took the injections away, he would be unable to find that Mr. McDowell had reached his pre-injury baseline. He also disagreed with Dr. Weitz's opinion that Mr. McDowell's ongoing problems are not the result of his accident but probably are the result of Mr. McDowell's job, stating that he disagreed with Dr. Weitz's position that Mr. McDowell was performing a heavy duty job and characterized Mr. McDowell's senior carpenter job as "light duty." Dr. Broussard disagreed with Dr. Weitz's opinion that ESIs were indicated in Mr. McDowell's case.

After examining all of the medical evidence in this case, it is apparent that there were conflicting opinions regarding the nature, duration, and causation of Mr. McDowell's claimed injuries. The jury was required to base its past medical award on Mr. McDowell's credibility, the accuracy of his reporting of his underlying history, and the conflicting findings of the expert witnesses as to what treatment was related to the automobile accident. In light of the medical testimony and the medical expense summary offered into evidence outlining Mr. McDowell's treatment, it appears that the jury awarded Mr. McDowell the cost of Dr. Goff s treatment from June 24, 2013 through September 30, 2013, including the cost of the cervical and lumbar MRIs, and some, but not all, of the cost of Dr. Turnipseed's treatment. This award is entirely consistent with the testimony of Dr. Weitz, who attributed Mr. McDowell's medical treatment through the November 5, 2013 ESIs to the accident. Thus, we find that there is a reasonable factual basis for the jury's determination that only part of the medical expenses claimed by Mr. McDowell were attributable to the June 5, 2013 accident, and the jury was not clearly wrong in choosing to award Mr. McDowell less than the full amount of the claimed medical expenses.

Furthermore, the record reasonably supports the jury's refusal to award future medical expenses to Mr. McDowell. The evidence was clearly conflicting over whether any future treatment was even indicated in Mr. McDowell's case and conflicting evidence as to whether any future treatment could be reasonably related to the accident. The jury's choice between the conflicting opinions is not manifestly erroneous, and we decline to disturb its ruling.

General Damages

In his third assignment of error, Mr. McDowell asserts that the jury erred in awarding special damages without accompanying general damages. We agree.

Under La. C.C. art. 2324.1, a jury has much discretion in the assessment of general damages. However, when a jury awards special damages but declines to award general damages, a reviewing court must first determine whether the jury's finding is so inconsistent as to constitute an abuse of its much discretion. Green v. K-Mart Corporation, 2003-2495 (La. 5/25/04), 874 So.2d 838, 843-44. A trier of fact abuses its discretion in failing to award general damages where it finds that a plaintiff has suffered injuries causally related the accident that required medical attention. Id.

In this case, the jury specifically found that Mr. McDowell suffered injuries causally related to the accident that required medical treatment. The jury's failure to award general damages together with its award for special damages, given the circumstances of this case, is so inconsistent that it constitutes an abuse of discretion, warranting a de novo review of the record and the rendering of an appropriate award by this court. See Harris, 994 So.2d at 83. Because we have found legal error interdicting the damage-determining process, we shall make a de novo determination of damages. See Thibodeaux v. Donnell, 2016-0570 (La. 1/20/17), 219 So.3d 274, 279.

General damages involve mental or physical pain or suffering, inconvenience, loss of enjoyment of life, or other losses of lifestyle that cannot be measured definitively in terms of money. The primary objective of general damages is to restore the party in as near a fashion as possible to the state he was in at the time immediately preceding injury. Harris, 994 So.2d at 83-84. Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury. McGee v. A C and S, Inc., 2005-1036 (La. 7/10/06), 933 So.2d 770, 775. In correcting the error in failing to award general damages, we choose to make one undifferentiated award to Mr. McDowell for pain and suffering. See McLin v. McNabb, 2016-0449 (La. App. 1 Cir. 12/22/16), 2016 WL 7407384 (unpublished opinion).

The record demonstrates that Mr. McDowell sustained an exacerbation of his pre-existing degenerative disc disease as a result of the June 5, 2013 accident. He was treated 21 times for neck and back pain by a chiropractor from June 24, 2013 through September 30, 2013, and received treatment from Dr. Turnipseed thereafter, including ESIs on November 5, 2013 for his back and neck pain, all of which was related to the vehicular accident by USAA's own independent medical examiner. Further, it appears that Mr. McDowell had some lingering pain and suffering for a period of time thereafter which would be causally related to the accident. Based on all of the circumstances of this case, we conclude that a general damage award of $25,000.00 is consistent with the jury's $8,000.00 special damage award and the nature, duration, and effects of Mr. McDowell's injuries that are causally related to the accident. Accordingly, we render judgment awarding Mr. McDowell $25,000.00 in general damages.

Because we have corrected the jury's error in failing to award general damages, it is unnecessary for this court to address Mr. McDowell's assignment of error challenging the trial court's denial of his motion for a new trial based on the jury's failure to award general damages. For this same reason, Mr. McDowell's application for supervisory writs challenging the trial court's denial of his motion for a new trial is denied.

CONCLUSION

For the foregoing reasons, we affirm those portions of the judgment allocating fault 50% to each driver and awarding Mr. McDowell past medical expenses in the amount of $8,000.00. We reverse the jury's failure to award general damages and enter an award in favor of Steven McDowell and against Russell Diggs and United Sendees Automobile Association in the amount of $25,000.00. Steven McDowell's application for a supervisory writ is hereby denied. All costs of this appeal are assessed equally to the parties.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED; WRIT DENIED.

Higginbotham, J. concurs with the result.


author: WHIPPLE, C.J.

text:
    LEBLANC MARINE, L.L.C. v. State of Louisiana, DIVISION OF ADMINISTRATION, OFFICE OF FACILITY PLANNING AND CONTROL
    NUMBER 2018 CA 0434
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: OCTOBER 17, 2018 Rehearing Denied December 12, 2018
    Murphy J. Foster, III, Jacob E. Roussel, Baton Rouge, LA, Counsel for Intervenor/Appellant, Southern Delta Construction
    Eboni M. Rose, Baton Rouge, LA, Counsel for Defendant, State of Louisiana
    Craig N. Magnum, Cassandra R. Hewlings, New Orleans, LA, Counsel for Plaintiff/Appellee, LeBlanc Marine, L.L.C.
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

This matter is before us on appeal by the intervenor, Southern Delta Construction, L.L.C., from the trial court's grant of declaratory judgment in favor of LeBlanc Marine, L.L.C. For the reasons that follow, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

In May of 2017, the State of Louisiana, through the Division of Administration, Office of Facility Planning and Control ("the State"), issued an "Advertisement for Bids" for Phase III Levee Repairs at Rockefeller Wildlife Refuge, located in Grand Chenier, Louisiana, identified as Project Number 01-107-05B-13, Part ZM ("the Project"). The advertisement provided that bids would be received until September 19, 2017, and, with reference to written evidence of the authority of the person signing the bid, that the bidder was "required to comply with provisions and requirements of LSA-R.S. 38:2212(B)(5)." The Project's "Instructions to Bidders" further provided in Section 5.1.9 that:

The bid shall include the legal name of the Bidder and shall be signed by the person or persons legally authorized to bind the Bidder to a Contract. Written evidence of the authority of the person signing the bid for the public work shall be submitted at the time of bidding. The authority of the signature of the person submitting the bid shall be deemed sufficient and acceptable under any of the following conditions:
(a) A corporate resolution or a copy of the detailed record from the Secretary of State's business filings page submitted with the bid package as required by R.S. 38:2212(B)(5).
(b) When a corporation, partnership, or other legal entity has filed in the records of the Secretary of State, an affidavit, resolution or other acknowledged or authentic document indicating the names of all parties authorized to submit bids for public contracts. A bid package submitted by such a legal entity shall include a current Power of Attorney certifying agent's authority to bind Bidder, as required by R.S. 38:2212(B)(5). The name and license number on the envelope shall be the same as the entity identified on the Bid Form.

According to the bid tabulation sheet, LeBlanc Marine, L.L.C. ("LeBlanc Marine") submitted the lowest bid and Southern Delta Construction, L.L.C. ("SDC") submitted the second lowest bid for the Project. By letter dated September 20, 2017, however, the State informed LeBlanc Marine through its President, Ben LeBlanc, that its bid failed to comply with Section 5.1.9 of the Instructions to Bidders, because it failed to submit written evidence of the authority of the person signing the bid for the public work at the time of bidding, and that accordingly, its bid was rejected. The State thereafter determined that the second lowest bidder, SDC, was the successful bidder, and by letter dated September 25, 2017, awarded the contract for the Project to SDC.

On October 2, 2017, LeBlanc Marine, through its counsel of record, sent a letter to the State, challenging the rejection of its bid and requesting a public records inspection of the bids submitted for the Project within seventy-two hours in accordance with LSA-R.S. 44:1 et seq. On October 12, 2017, the State responded by providing LeBlanc Marine with a copy of SDC's entire bid for the Project.

The next day, on October 13, 2017, LeBlanc Marine filed a petition for injunctive and declaratory relief, seeking to enjoin the State from awarding the contract for the Project to SDC or, alternatively, a declaration that any contract entered into by the State and SDC be declared null and void. In its petition, LeBlanc Marine contended that SDC's bid was non-compliant and violated Section 5.1.9 of the Instructions to Bidders where it failed to include written evidence to prove that the person who signed SDC's bid had the authority to sign and submit the bid on SDC's behalf in the form of either: (a) a corporate resolution; (b) a copy of the detailed record from the Secretary of State's business filings; or (c) an affidavit, resolution or other acknowledged or authentic document indicating the names of all parties authorized to submit bids for public contracts with a current Power of Attorney. LeBlanc Marine contended that instead, SDC included a "Certification of Authority," which it argued failed to meet the requirements of Section 5.1.9. LeBlanc Marine thus sought the issuance of a temporary restraining order, preliminary injunction, and final injunction enjoining the State from awarding the contract for the Project to SDC, or alternatively, a declaration that the contract between the State and SDC was absolutely null.

On October 18, 2017, SDC filed a petition for intervention, maintaining that its bid was submitted in accordance with the Public Bid Law and the bidding documents, and seeking dismissal of the proceedings initiated by LeBlanc Marine.

On November 21, 2017, the matter proceeded before the trial court on LeBlanc Marine's declaratory judgment action. After considering joint stipulations of fact with accompanying exhibits and argument of the parties, the trial court issued a written ruling on December 1, 2017, granting the petition for declaratory relief and setting forth its reasons.

In conformity with its ruling, the trial court signed a judgment on January 4, 2018, granting LeBlanc Marine's petition for declaratory relief and determining that, pursuant to LSA-R.S. 38:2220.4, the State had violated the Louisiana Public Bid Law, LSA-R.S. 38:2211 et seq. , in awarding the Project to SDC, where SDC's bid was not the lowest responsive bid submitted in connection with the Project. The judgment further declared that any contract executed between the State and SDC in connection with the Project was an absolute nullity, in accordance with LSA-R.S. 38:2220.1 et seq. and LSA-C.C. art. 2029 et seq.

SDC now appeals from the judgment of the trial court, contending that the trial court erred in determining that: (1) SDC's bid failed to comply with the enumerated types of written evidence of authority set forth in Section 5.1.9 of the Instruction to Bidders; (2) the enumerated types of documentation set forth in Section 5.1.9 of the Instruction to Bidders were the exclusive forms of written evidence of authority that could be accepted by the State; and (3) the Instructions to Bidders can permissibly restrict the types of written evidence of authority which would otherwise be acceptable under the Public Bid Law.

DISCUSSION

Louisiana's Public Bid Law, codified in LSA-R.S. 38:2211 et seq. , is a prohibitory law founded on public policy. Hamp's Construction, L.L.C. v. City of New Orleans, 2005-0489 (La. 2/22/06), 924 So.2d 104, 107. Pursuant to the Public Bid Law, the legislature has specifically prescribed the conditions upon which it will permit work to be done on its behalf or on behalf of its political subdivisions. Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 2004-0211, 2004-0212 (La. 3/18/04), 867 So.2d 651, 656. The Public Bid Law was enacted in the interest of the taxpaying citizens of this State for the purpose of protecting them against contracts awarded through favoritism and involving exorbitant and extortionate prices. Hamp's Construction, L.L.C. v. City of New Orleans, 924 So.2d at 107.

A political entity has no authority to take any action that is inconsistent with the Public Bid Law. Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 867 So.2d at 656. Louisiana Revised Statute 38:2212(B)(1) clearly and unambiguously provides that "[t]he provisions and requirements of this Section and those stated in the bidding documents shall not be waived by any entity." "Bidding documents" are defined as the bid notice, plans and specifications, bid form, bidding instructions, addenda, special provisions, and all other written instruments prepared by or on behalf of a public entity for use by prospective bidders on a public contract. LSA-R.S. 38:2211(A)(2). Consequently, once the public entity establishes a requirement in its bidding documents, that requirement must be uniformly followed by all bidders. Hamp's Construction, L.L.C. v. City of New Orleans, 924 So.2d at 111.

As set forth above, LSA-R.S. 38:2212(B)(5) of the Public Bid Law provides that written authority of the person signing the bid is sufficient and acceptable if: (a) the signature is that of any corporate officer listed on the most current annual report on file with the secretary of state, or that of any member of a partnership, limited liability company, limited liability partnership, or other legal entity listed on file with the secretary of state; (b) the signature is that of an authorized representative as documented by the legal entity certifying the authority of the person; or (c) the legal entity has filed an affidavit, resolution, or other acknowledged or authentic document indicating the names of all parties authorized to submit bids for public contracts with the secretary of state.

Section 5.1.9 of the Instructions to Bidders provides that the authority of the signature of the person submitting the bid shall be deemed sufficient and acceptable under any of the following conditions: (a) a corporate resolution or a copy of the detailed record from the Secretary of State's business filings page submitted with the bid package as required by R.S. 38:2212(B)(5) ; or (b) an affidavit, resolution or other acknowledged or authentic document indicating the names of all parties authorized to submit bids for public contracts filed in the records of the Secretary of State along with a current Power of Attorney certifying agent's authority to bind Bidder, as required by R.S. 38:2212(B)(5).

The starting point in the interpretation of any statute is the language of the statute itself. Phylway Construction, LLC v. Terrebonne Parish Consolidated Government, 2013-1589 (La. App. 1st Cir. 9/5/14), 153 So.3d 516, 522, writ denied, 2014-2677 (La. 3/13/15), 161 So.3d 642. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. Hamp's Construction, L.L.C. v. City of New Orleans, 924 So.2d at 110. The meaning and intent of a law is determined by considering the law in its entirety, and all other laws on the same subject matter, and by placing a construction on the law that is consistent with the terms of the law and with the obvious intent of the legislature in enacting the law. In re Clegg, 2010-0323 (La. 7/6/10), 41 So.3d 1141, 1154. Questions of law, such as the proper interpretation of a statute, are reviewed by this court under a de novo standard of review, without deference to the legal conclusions of the lower court. Phylway Construction, LLC v. Terrebonne Parish Consolidated Government, 153 So.3d at 522.

The bid form submitted by SDC herein named Michael Mayeux, the Vice-President of SDC, as the "authorized signatory of the bidder" and was signed by Mr. Mayeux. As written authority for the person signing the bid, SDC submitted a "Certification of Authority" signed by Daniel K. Fordice, III, the President of SDC, certifying that Mr. Mayeux was duly authorized to submit bids and execute all contracts with all public entities, as follows:

Pursuant to the requirements of L.S.A. R.S. 38:2212 -0, the undersigned does certify that he is the President of Southern Delta Construction, LLC, and that Mike Mayeux, Vice President[,] is duly authorized to submit bids and to execute bids with all public entities.
THUS DONE AND SIGNED this 3rd day of June, 2011 at Vicksburg, MS.

In granting LeBlanc Marine's petition for declaratory judgment, the trial court held that:

After a review of the law, it appears that when a public entity prepares and advertises the Instruction to Bidders on a public works contract that imposes certain requirements upon bidders that complies with the statutory requirements of the Public Bid Law but also specifically states what will be accepted as evidence of authority, then it appears that the public entity is bound by [its] advertised Instruction to Bidders even though the Instruction to Bidders is more restrictive than the statutory requirements that establishes acceptable evidence of authority.
In this case, the State of Louisiana, in [its] advertised Instruction to Bidders, required with specificity what type of written evidence of authority would be accepted as sufficient to establish that the person signing the bid had the authority to do so. The written evidence required by the Instruction to Bidders was more restrictive than what is provided for in [LSA-R.S.] 38:2212(B)(5). Therefore, according to the law, the State of Louisiana is now bound by the more restrictive means of providing written evidence of authority. Specifically, the State of Louisiana is bound by the advertised Instruction to Bidders and any public contract awarded in violation of the Instruction to Bidders is an absolute nullity.

SDC contends that its bid fully complied with the Public Bid Law and that its "Certification of Authority" was "within the type of documentation automatically deemed sufficient and acceptable" under the statutory requirements of LSA-R.S. 38:2212(B)(5)(b), where the signature is that of an authorized representative as documented by the legal entity certifying the authority of the person. Moreover, SDC argues that its "Certification of Authority" is sufficient written evidence of authority of the person signing the bid under LSA-R.S. 38:2212(B)(2), which provides, in part, that:

The bidding documents shall require only the following information and documentation to be submitted by a bidder at the time designated in the advertisement for bid opening: Bid Security or Bid Bond, Acknowledgment of Addenda, Base Bid, Alternates, Signature of Bidder, Name, Title, and Address of Bidder, Name of Firm or Joint Venture, Corporate Resolution or written evidence of the authority of the person signing the bid, and Louisiana Contractors License Number. [Emphasis added.]

Noting that the State's bid advertisement for the Project specifically provided that the bidder was "required to comply with [the] provisions and requirements of LSA-R.S. 38:2212(B)(5)," SDC contends on appeal that its "Certification of Authority" fully complied with the applicable statutory provisions of the Public Bid Law as required and further complies with Section 5.1.9 of the Instructions to Bidders.

Assignment of Error Number One

In this assignment of error, SDC contends that the trial court erred in finding that its bid failed to comply with the enumerated types of written evidence of authority set forth in Section 5.1.9 of the Instruction to Bidders. SDC contends that pursuant to Section 5.1.9(b), it is a registered legal entity with the Secretary of State, and thus, could submit "an affidavit, resolution or other acknowledged or authentic document indicating the names of all parties authorized to submit bids for public contracts." SDC contends that its "Certification of Authority" constitutes a resolution or other acknowledged document of the company under Section 5.1.9(b) indicating the name of the individual authorized to submit bids on behalf of SDC. SDC further contends that the certification, in and of itself, also constitutes a Power of Attorney certifying Mr. Mayeux's authority to sign bids on behalf of SDC under Section 5.1.9(b). We disagree.

Notwithstanding whether the "Certification of Authority" was sufficient evidence of proof of authority under LSA-R.S. 38:2212(B)(5)(b) and 38:2212(B)(2), we reject SDC's interpretation of the requirements of Section 5.1.9 and its contention that its "Certification of Authority" complies with the type of written proof of authority required therein. In order for SDC's bid to be responsive under Section 5.1.9, SDC was required to submit: (a) a corporate resolution or copy of a detailed record from the Secretary of State's business filings; or (b) written evidence of a previously filed affidavit, resolution or other acknowledged or authentic document with the Secretary of State indicating the names of all parties authorized to submit bids for public contracts, along with a current Power of Attorney certifying the agent's authority to bind the bidder. SDC failed to do so herein.

Accordingly, we find the trial court correctly determined that SDC's bid failed to comply with the enumerated types of written evidence of authority set forth in Section 5.1.9. This assignment lacks merit.

Assignment of Error Number Two

In its second assignment of error, SDC contends that the trial court erred in finding that the types of documentation set forth in Section 5.1.9 of the Instructions to Bidders were the exclusive forms of written evidence of authority that could be accepted by the State. SDC contends that even if its "Certification of Authority" was not compliant with Section 5.1.9(b), neither LSA-R.S. 38:2212(B)(5) nor Section 5.1.9 provide that the types of written evidence specified within those provisions are the exclusive forms of documentation found to be acceptable by the public entity, but instead, merely serve as an example of the types of written evidence of authority that can be submitted with a bid.

The jurisprudence interpreting the Public Bid law is clear. Louisiana Revised Statutes 38:2212(B)(1) clearly and unambiguously provides that the public entity shall not waive the provisions and requirements of (1) the Public Bid Law and (2) the bidding documents, which include the bidding instructions. See LSA-R.S. 38:2211(A)(2). Moreover, once a public entity establishes a requirement in its advertisement or bid form, that requirement must be uniformly followed by all bidders. Hamp's Construction, L.L.C. v. City of New Orleans, 924 So.2d at 111. And, the public entity should not include any requirements in its advertisement for bids or bid form that it considers insignificant or waivable, because once included, these requirements are non-waivable as a matter of law. Hamp's Construction, L.L.C. v. City of New Orleans, 924 So.2d at 110.

Inasmuch as the courts have strictly construed the requirements set forth in the statute, Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 867 So.2d at 657, we disagree with SDC's contention that the listed requirements are merely "examples" of acceptable types of written authority. Certainly, if such requirements and provisions are not waivable, they cannot be merely illustrative examples. Indeed, if the intent of the legislature was to allow numerous and various unspecified forms of written evidence of authority to be acceptable, such that the requirements set forth in the Public Bid and bidding documents were not exclusive, the statute would expressly provide for such measures. However, the statutory scheme does not do so.

Accordingly, on review we find no error in the trial court's finding that the types of documentation set forth in Section 5.1.9 of the Instructions to Bidders were the exclusive forms of written evidence of authority that could be accepted by the State. This assignment of error also lacks merit.

Assignment of Error Number Three

In its final assignment of error, SDC contends that the trial court erred by determining that the Instructions to Bidders can permissibly restrict the types of written evidence of authority which would otherwise be acceptable under the Public Bid Law. In doing so, SDC points to Durr Heavy Construction, LLC v. City of New Orleans, 2016-609 (La. 4/15/16), 189 So.3d 384. In Durr, the City's bid instructions required that the bid be submitted in a sealed envelope bearing the proposal number and state contractor's license or online. The two lowest bidders failed to include the proposal number on their envelopes. Durr, the third lowest bidder, sought a preliminary injunction, which was denied by the district court. The Fourth Circuit reversed the district court and on review, the Supreme Court reversed the ruling of the Fourth Circuit and reinstated the district court's order. SDC relies on a concurrence by Chief Justice Johnson, wherein she opined that LSA-R.S. 38:2212(B)(2) provides an exclusive list of the only twelve items which a public entity can require bidders to provide in the "bidding documents," and that where a bid envelope bearing a "Proposal Number" is clearly not one of the enlisted items, the City erred in requiring same in its bidding instructions. See Durr Heavy Construction, LLC v. City of New Orleans, 189 So.3d at 385-386.

Even considering the concurring opinion in Durr, we note that Durr is factually distinguishable from the instant case. In Durr, the City or public entity required the bidders to submit information beyond those items required by LSA-R.S. 38:2212(B)(2) or the Public Bid Law. In the instant case, however, the State did not require that the bidder submit information in addition to that information already required by LSA-R.S. 38:2212(B)(2). Instead, the State's bidding instructions simply provided the manner in which bidders may establish one of the twelve items already required by the Public Bid Law, i.e., acceptable forms of written evidence of authority.

Pursuant to LSA-R.S. 38:2212(B)(2) of the Public Bid Law, the bidding documents required the bidder to submit a "Corporate resolution or written evidence of the authority of the person signing the bid ." (Emphasis added.) In the instant case, the bidding documents at issue set forth two forms of "written evidence of the authority of the person signing the bid " that the public entity would accept to sufficiently establish that the person signing the bid had the authority to do so; i.e., (a) a corporate resolution or a copy of the detailed record from the Secretary of State's business filings page submitted with the bid package as required by R.S. 38:2212(B)(5) ; or (b) an affidavit, resolution or other acknowledged or authentic document indicating the names of all parties authorized to submit bids for public contracts is filed with the Secretary of State along with a current Power of Attorney certifying the agent's authority to bind the bidder, as required by R.S. 38:2212(B)(5).

Louisiana Revised Statute 38:2212(B)(5) of the Public Bid Law, however, provided three options for submitting written evidence of the authority of the person signing the bid, as follows:

(a) The signature on the bid is that of any corporate officer listed on the most current annual report on file with the secretary of state, or the signature on the bid is that of any member of a partnership, limited liability company, limited liability partnership, or other legal entity listed in the most current business records on file with the secretary of state.
(b) The signature on the bid is that of an authorized representative as documented by the legal entity certifying the authority of the person.
(c) The legal entity has filed in the appropriate records of the secretary of state of this state, an affidavit, resolution, or other acknowledged or authentic document indicating the names of all parties authorized to submit bids for public contracts. Such document on file with the secretary of state shall remain in effect and shall be binding upon the principal until specifically rescinded and canceled from the records of the office.

The Public Bid Law clearly and unambiguously provides that "[t]he provisions and requirements of this Section and those stated in the bidding documents shall not be waived by any entity." LSA-R.S. 38:2212(B)(1) (Emphasis added). Thus, to the extent that the bidding instructions, which provided two options by which a bidder could establish written authority of the person signing the bid, may be arguably stricter than those set forth in LSA-R.S. 38:2212(B)(5) of the Public Bid Law, which provided three options for submitting written evidence of the authority of the person signing the bid, we nonetheless agree with LeBlanc Marine that the bid instructions herein are acceptable, where they consist of two of the three options allowed by the Public Bid Law and the statutory requirements for demonstrating written authority are also met under the analogous provisions of the State's bidding instructions.

After a thorough review of the record herein and consideration of the applicable law set forth above, we find no error in the trial court's conclusion that the State was bound by its more restrictive bid instructions, which met the statutory requirements. We further find no error in the trial court's determination that SDC's bid failed to comply with the Instructions for Bidders, and that any contract awarded by the State to SDC in connection with the Project was an absolute nullity.

This assignment of error also lacks merit.

CONCLUSION

For the above and foregoing reasons, the January 4, 2018 judgment of the trial court, declaring any contract executed between the State and SDC in connection with the Project an absolute nullity, is hereby affirmed. Costs of this appeal are assessed to the intervenor/appellant, Southern Delta Construction, L.L.C.

AFFIRMED.

McClendon, J., dissents and assigns reasons

McClendon, J., dissents.

I find that the bid in question met the statutory requirements set forth in LSA-R.S. 38:2212(B)(2) and (B)(5). I therefore dissent from the majority's conclusion that Southern Delta Construction, LLC was not a responsive bidder.

Prior to its amendment by 2014 La. Acts. No. 759, § 1, LSA-R.S. 38:2212A(2)(b)(ii)(a) provided in part that "[t]he bid form developed shall require only the information necessary to determine the lowest bidder and the following sections and information." The sections and information were specifically listed. Following its amendment, which included more restrictive language, the subsection was renumbered as 38:2212(B)(2). It now provides that "[t]he bidding documents shall require only the following information and documentation to be submitted by a bidder at the time designated in the advertisement for bid opening," and then specifically lists the requisite information and documents. Included in the requisite documentation is a "Corporate Resolution or written evidence of the authority of the person signing the bid."

Further, as explained in the majority opinion, Louisiana Revised Statutes 38:2215(B)(5) provides three acceptable methods for establishing the authority of the signature of the person submitting the bid. Only two of those methods were incorporated into the bidding instructions regarding the contract at issue. As recognized by the trial court, Southern Delta's bid fully complied with the statutory method which was omitted from the bidding instructions, insofar as the signature was that of an authorized representative as documented by the legal entity certifying the authority of the person. See LSA-R.S. 38:2212(B)(5)(b). Therefore, while Southern Delta's bid complied with the Public Bid Law, it did not comply with the bidding instructions.

However, the bidding instructions were inconsistent with the Public Bid Law. More specifically, the bidding instructions, as noted by the majority and conceded by LeBlanc Marine, limited the authority to two of the three methods that were statutorily acceptable. Further, the Public Bid Law specifically recognizes that any of the three methods "shall be deemed sufficient and acceptable ." Id. A political entity has no authority to take any action that is inconsistent with the Public Bid Law. Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority , 04-0211, 04-0212 (La. 3/18/04), 867 So.2d 651, 656. Accordingly, I disagree with the majority's conclusion that the bid instructions herein are acceptable where they "consist of two of the three options allowed by the Public Bid Law," when by statute Southern Delta's method of complying is specifically provided by LSA-R.S. 38:2212(B)(5)(b). Since Southern Delta's application was acknowledged to be statutorily acceptable, I conclude that its submission should "be deemed sufficient and acceptable." Therefore, I respectfully dissent.

      Louisiana Revised Statute 38:2212(B)(5) addresses the manner and particular requirements for establishing the authority of the person signing the bid, and provides as follows:
      Written evidence of the authority of the person signing the bid for public works shall be submitted at the time of bidding. The authority of the signature of the person submitting the bid shall be deemed sufficient and acceptable if any of the following conditions are met:
      (a) The signature on the bid is that of any corporate officer listed on the most current annual report on file with the secretary of state, or the signature on the bid is that of any member of a partnership, limited liability company, limited liability partnership, or other legal entity listed in the most current business records on file with the secretary of state.
      (b) The signature on the bid is that of an authorized representative as documented by the legal entity certifying the authority of the person.
      (c) The legal entity has filed in the appropriate records of the secretary of state of this state, an affidavit, resolution, or other acknowledged or authentic document indicating the names of all parties authorized to submit bids for public contracts. Such document on file with the secretary of state shall remain in effect and shall be binding upon the principal until specifically rescinded and canceled from the records of the office.

      Prior to trial, LeBlanc Marine stipulated that its petition did not contest the rejection of its bid by the State.

      A temporary restraining order enjoining the State from executing any contract in connection with the Project was signed by the trial court on October 13, 2017.

      LeBlanc Marine further contended that it was entitled to an award of attorney's fees, costs and interest in the event that it was successful in its injunctive or declaratory action.

      Along with its petition for intervention, SDC filed exceptions of lack of subject matter jurisdiction for mootness, no right of action, and prematurity. As to the exception of lack of subject matter jurisdiction for mootness, LeBlanc Marine, by joint motion with the State, filed a motion to dismiss its claim for injunctive relief, contending that at the time its petition was filed, it was not aware that the action it sought to restrain, i.e., execution of a contract in connection with the Project, had already occurred. As to the remaining exceptions, SDC subsequently conceded that its exception of no right of action was moot and withdrew its exception of prematurity.

      Regarding the issue of attorney fees and costs, the trial court's written ruling provided:
      Once this court or another court's judgment becomes final and all time delays for seeking writ and/or appeal have elapsed, the Court, upon written motion and order setting the matter for contradictory hearing will determine, if any, reasonable attorney fees and/or cost should be awarded to petitioner pursuant to La. R.S. 38:2220.1 et seq.
      Accordingly, the judgment provided that the issue of whether LeBlanc Marine was entitled to recover attorney's fees pursuant to LSA-R.S. 38:2220.1 would be decided upon written motion by LeBlanc Marine and after a contradictory hearing once the January 4, 2018 judgment became final and all delays for post-judgment relief had lapsed. See Williams v. Ferry Holding, LLC, 2012-1073, p.3, n.1 (La. App. 1st Cir. 2/15/13), 2013 WL 596145 (unpublished), writ denied, 2013-0825 (La. 5/24/13), 117 So.3d 511.

      In support, SDC relies on Dynamic Constructors, L.L.C. v. Plaquemines Parish Government, 2015-0271 (La. App. 4th Cir. 8/26/15), 173 So.3d 1239, writ denied, 2015-1782 (La. 10/30/15), 178 So.3d 562, and Ryan Gootee General Contractors, LLC v. Plaquemines Parish School Board & One Construction, Inc., 2015-325 (La. App. 5th Cir. 11/19/15), 180 So.3d 588. On review, we find these cases factually distinguishable and non-persuasive herein.
      In Gootee, the court found that the second sentence of LSA-R.S. 38:2212(B)(5), "The authority of the signature of the person submitting the bid shall be deemed sufficient and acceptable if any of the following conditions are met:," delineated three conditions under which signatory authority is deemed "sufficient and acceptable," and that those conditions were not alternatives to submitting the written evidence required by the first sentence. The court noted that while they were examples of written evidence deemed sufficient and acceptable to establish signatory authority, satisfying any one of those three conditions did not relieve a bidder of the first sentence's requirement to submit written evidence of that authority with its bid. The court pretermitted whether the statutory requirements of the public bid law may be supplemented by bidding instructions, where it found the two did not differ with regard to requiring submission of written evidence of signatory authority. Thus, the appellate court ultimately upheld the trial court's finding that the bidder's submission failed to comply with the Public Bid Law and bidding instructions where it did not include written evidence of authority of the person signing the bid. See Ryan Gootee General Contractors, LLC v. Plaquemines Parish School Board & One Construction, Inc., 180 So.3d at 600-602.
      In Dynamic Constructors, the appellate court held that the bidder's failure to submit some form of written evidence of authority to sign the bid, such as a copy of the company's current business record on file with the Secretary of State substantiating that the signor was, in fact, a member of the limited liability company and, thus, had the requisite authority to sign the bid on the company's behalf, rendered the company's bid noncompliant and mandated a rescission of the notice of the award. See Dynamic Constructors, L.L.C. v. Plaquemines Parish Government, 173 So.3d at 1245.

      It is undisputed that SDC did not submit a corporate resolution or detailed record from the Secretary of State's business filings page.


author: GUIDRY, J.

text:
    Tracy Billy KENT v. DEPARTMENT OF CORRECTIONS
    NUMBER 2017 CA 1761
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: OCTOBER 17, 2018
    Tracy Kent, Kinder, LA, In Proper Person, Plaintiff/Appellant
    William L. Kline, Baton Rouge, LA, Counsel for Defendant/Appellee Louisiana Department of Public Safety and Corrections
    BEFORE: GUIDRY, PETTIGREW, WELCH, CRAIN, AND PENZATO, JJ.
   GUIDRY, J.

An inmate appeals the dismissal of his petition for judicial review contesting the computation of his sentence by the Louisiana Department of Public Safety and Corrections (DPSC). For the following reasons, we vacate the district court's judgment and remand this matter with instructions.

FACTS AND PROCEDURAL HISTORY

According to documentation in the record before us, on July 29, 2013, the appellant, Tracy Kent, committed the offense of possession of a controlled dangerous substance (marijuana) with intent to distribute in violation of La. R.S. 40:966(A) (count 1), while also being in violation of La. R.S. 14:95.1, as a convicted felon in possession of a firearm (count 2). On March 18, 2014, Mr. Kent pled guilty to both offenses and was sentenced to 18 years imprisonment at hard labor on each count by the Twenty-Fourth Judicial District Court of Jefferson Parish, Louisiana (24th JDC). As to count 1, the sentence was without the benefit of probation or suspension of sentence. As to count 2, the sentence was without the benefit of parole, probation, or suspension of sentence. The sentencing court ordered that the sentences run concurrently with any and all other sentences that Mr. Kent might be serving, including his sentence under case number 815236, out of the 174th District Court of Harris County, Texas.

On reviewing his master prison record less than a month after sentencing, Mr. Kent determined that his sentence was not being executed in conformity with the sentence imposed by the sentencing court. Consequently, Mr. Kent filed a "motion to correct illegal sentence" with the sentencing court, alleging that his sentence was not being "run concurrently." By an order signed November 10, 2014, the sentencing court denied Mr. Kent's motion, citing Madison v. Ward, 00-2842, p. 11 (La. App. 1st Cir. 7/3/02), 825 So.2d 1245, 1255, and observing that the First Circuit has held that the Corrections Administrative Remedy Procedures Act [CARP], La. R.S. 15:1171 -79, is "the exclusive remedy by which an offender may challenge the DPSC's time computations." Further citing La. R.S. 15:571.15, the sentencing court held that by statute, Mr. Kent's claim contesting the computation of his sentence had to be filed in East Baton Rouge Parish.

Accordingly, Mr. Kent filed administrative remedy procedure (ARP) request number HDQ-2016-2726, seeking relief for his complaint that he was not receiving credit "for the time he served in Harris County[,] Texas on his sentence under case No. 815-236." In his ARP, Mr. Kent stated that "[i]t should be noted that the prisoner is not challenging the credit he received regarding case No. 13-3877 of the 24th Judicial Court nor anytime [sic] he served on parole for Harris County[,] Texas."

Upon failing to receive a response to his ARP, Mr. Kent filed a request for a writ of mandamus with the Nineteenth Judicial District Court of East Baton Rouge Parish (19th JDC), to be issued to the secretary of the DPSC, James LeBlanc, ordering him to respond to the ARP. Mr. Kent also filed a petition for judicial review, noting that more than 90 days had elapsed without any response to the ARP he had filed. A commissioner with the 19th JDC issued an order to Secretary LeBlanc, directing him to respond to the mandamus request within 30 days.

In response to the commissioner's order, Secretary LeBlanc filed an answer to Mr. Kent's petition for judicial review, acknowledging that Mr. Kent had exhausted available administrative remedies. The secretary then denied the allegations of Mr. Kent's petition and specifically denied that Mr. Kent "is entitled to any additional jail credits towards his instant sentence or that his sentence computations are in error." Along with his answer, Secretary LeBlanc filed a copy of the administrative record with the 19th JDC, which included the secretary's second step response to Mr. Kent's ARP. In the second step response, the secretary found that the relief requested in Mr. Kent's ARP "basically is to include all jail credit." The following reasons, in pertinent part, were given for denying the ARP:

[Y]our court minutes state that docket # 133877 is to run concurrently with case number 815236 out of Harris County, TX. The minutes [do] not state or give specific dates as to how much jail credit you should receive from Texas. According to Department Regulation B-04-001 you are entitled to credit for time served ONLY if you were held out-of-state SOLELY on the Louisiana warrant and/or charge. You should contact the arresting agency in [Harris] County, TX[,] requesting that they provide LA DOC with the arrest record which includes the arresting charge.[ ] Remember, credit will not be applied if you were in custody on another charge or for the State of Texas.

Notably, the second step response appears to be dated on or after Mr. Kent filed his request for issuance of a writ of mandamus and his petition for judicial review in the 19th JDC.

The commissioner subsequently ordered the parties to submit arguments by brief. Upon review of the administrative record, the commissioner found no error in the DPSC's time computations. The commissioner therefore recommended that the DPSC's decision be affirmed and that Mr. Kent's petition be dismissed, with prejudice, at his costs. By a judgment signed September 13, 2017, the district court affirmed the decision of the DPSC and dismissed Mr. Kent's petition for judicial review with prejudice. Mr. Kent timely appealed that judgment to this court.

DISCUSSION

In his appellate brief, Mr. Kent presents several issues for review, all of which generally assert that the DPSC and the district court erred in failing to give him credit on his sentences for the time he previously served in Texas. It is Mr. Kent's contention that such action is in disregard of the sentence ordered by the 24th JDC.

As pointed out by Mr. Kent, on March 18, 2014, the sentencing court stated the following upon initially sentencing Mr. Kent:

[I]t is the Court's intention that [the sentences] run concurrent with any time that you may be owing the State of Texas for a parole violation in case number 815-236, and that's 174th District Court, Harris County.
As I told you, I can't guarantee that they will honor my request , but I'm putting it in the minute entry that it is my intention that this sentence run concurrent with any and all other sentences that you may be serving , as well as any parole violations that you may owe Texas.
....
Also you get credit for all time served. [Emphasis added.]

Before the court concluded sentencing, the prosecution sought to have Mr. Kent adjudicated a second felony habitual offender on count 1. Upon Mr. Kent's acquiescence to the adjudication, the sentencing court vacated the initial sentence imposed for count 1 and imposed a new sentence. On imposing the new sentence, the sentencing court decreed:

That sentence is to be served without benefit of probation or suspension of sentence, and that's concurrent with count two, and the Court is also going to recommend that it run concurrent with any and all other sentences, including the sentence out of case number 815-236 of the 174th District Court in Harris County, Texas. You are to be given credit for all time served. [Emphasis added.]

In Blair v. Stalder, 99-1860, p. 9 (La. App. 1st Cir. 1/31/01), 798 So.2d 132, 139, this court recognized:

It is well settled that the determination of the sentence a defendant is to serve, and what, if any, conditions are to be imposed on that sentence, is made by the trial judge, not the defendant's custodian. The custodian's obligation is to see that the sentence imposed is the sentence served. Thus, [the DPSC] is charged with the responsibility of complying with any conditions placed on a sentence by the trial judge. [Citation omitted.]

Based on these principles, this court ordered the DPSC to comply with the sentencing court's order in calculating the defendant's sentence in that case, which included giving the defendant credit against his sentences for time previously served on an out-of-state offense. Blair, 99-1860 at p. 10, 798 So.2d at 140.

The facts of the instant case, however, differ from the facts in Blair in two material respects. First, the sentencing court in Blair expressly stated that the defendant in that case was to receive credit for time previously served out-of-state and provided the specific dates for the time previously served. Blair, 99-1860 at pp. 6-7, 798 So.2d at 137. Second, at the time the court sentenced the defendant in Blair, the prohibition against granting a defendant credit for any time served prior to the commission of the offense for which the defendant was being sentenced did not exist. In 2011, however, the Louisiana Legislature amended La. C. Cr. P. art. 880 to expressly provide that "[n]o defendant shall receive credit for any time served prior to the commission of the crime." La. C. Cr. P. art. 880(C) ; see 2011 La. Acts, No. 186, § 1.

The record reveals that Mr. Kent was prosecuted and sentenced to 15 years imprisonment for the offense of possession of marijuana in the amount of "more [than] 5 lbs less [than] 50 lbs" under case number 815236 in the 174th District Court, in Harris County, Texas, on April 30, 2001. Other than the plea judgment indicating that at the time of sentencing for the Texas offense, Mr. Kent had accrued 278 days of jail credit, there is nothing else in the record to indicate exactly how long Mr. Kent was incarcerated relative to the Texas offense.

In reviewing the sentence imposed by the 24th JDC, it should first be recognized that in ordering concurrent sentences, the sentencing court appeared to be facilitating a means by which the Texas court could give Mr. Kent credit against any remaining Texas sentence he might be ordered to serve in the event his parole is revoked based on his subsequent commission of felony offenses in Louisiana. As duly noted by the sentencing court, it could not "guarantee" that the request would be honored.

In State v. Smith, 595 So.2d 813 (La. App. 2d Cir. 1992), the court recognized that Louisiana courts are without authority to demand that a potential sentence from another state run concurrently with the Louisiana sentence. As the court in Smith explained, "the state that granted parole [will] properly determine what effect any new conviction will have upon the sentence imposed there. That decision appropriately encompasses both whether reasonable grounds exist for revocation, and, if so, whether service shall occur concurrently or consecutively with the later term of imprisonment." Smith, 595 So.2d at 814-15.

A similar proposition was recognized by this court in Dorman v. Ward, 97-1662, p. 5 (La. App. 1st Cir. 6/29/98), 718 So.2d 474, 476, writ denied, 98-2497 (La. 4/23/99), 740 So.2d 647, wherein this court held that because the sentencing court in Florida expressly ordered that the defendant's Florida and Louisiana sentences be served concurrently, the defendant was entitled to receive credit for the time served in Florida against his Louisiana sentence because such was authorized by Louisiana law. Consequently, whether Mr. Kent will receive credit on any sentence imposed by the Texas court will depend on whether the Texas court will choose to exercise its authority, if any, to allow concurrent sentencing as proposed by the 24th JDC. Hence, compliance with the concurrent sentencing imposed by the 24th JDC will be up to the responsible authorities in Texas, not the DPSC.

What remains at issue, however, is the sentencing court's decree as to time served. The commitment order explicitly states that "[d]efendant is given credit for time served from date of initial arrest til today for each day defendant actually served." The sentencing court's order as recited in the transcript and minute entry, however, is less explicit, as they both show that the court simply decreed that Mr. Kent be "given credit for all time served." If a discrepancy exists between the commitment order and the transcript, the transcript prevails. State v. Tillery, 14-429, p. 22 (La. App. 5th Cir. 12/16/14), 167 So.3d 15, 29, writ denied, 015-0106 (La. 11/6/15), 180 So.3d 306. Thus, considering the decree as recited in the transcript, it is unclear whether the sentencing court intended to grant Mr. Kent credit only for the time served pending his prosecution for the Louisiana offenses or whether the court also intended to award him credit for the time served in Texas for his felony conviction in that state, which sentence predated his commission of the instant Louisiana offenses. Compare Williams v. Cooper, 05-2360, p. 6 n.2 (La. App. 1st Cir. 10/6/06), 945 So.2d 48, 51 n.2 (where the minute entry and other evidence in the record helped to clarify the ruling of the sentencing court as recited in the transcript).

We recognize that interpreting the sentencing court's decree in accordance with Williams v. Cooper would in essence mean that the sentencing court rendered an illegal sentence. See La. C. Cr. P. art. 880(C). It is well established that a defendant in a criminal case does not have a constitutional or statutory right to an illegal sentence. State v. Williams, 00-1725, p. 9 (La. 11/28/01), 800 So.2d 790, 797. But on judicial review, the district court is without authority to correct an illegal sentence. Instead, the DPSC is required to carry out the sentence as imposed by the sentencing court. Boddye v. LA. Dept. of Corrections, 14-1836, p. 7 (La. App. 1st Cir. 6/26/15), 175 So.3d 437, 441-42, writ denied, 15-1688 (La. 10/30/15), 180 So.3d 303 (citing Robinson v. Stalder, 08-0495, p. 5 (La. App. 1st Cir. 9/23/08), 21 So.3d 318, 320, writ denied, 09-0539 (La. 12/11/09), 23 So.3d 916 ).

In this case, the sentence imposed by the sentencing court is unclear. Hence, it is uncertain whether or not the DPSC is complying with sentencing court's order. Clarity as to the sentence imposed is needed and must be sought from the sentencing court. See Blair, 99-1860 at pp. 9-10, 798 So.2d at 139-40 (wherein it was noted that the sentencing court held evidentiary hearings and issued additional orders to specify its sentence, and the DPSC was directed to calculate the defendant's sentence in accordance with the clarified orders); see also La. C. Cr. P. art. 882. Pending clarification from the sentencing court, we find that the evidence before the 19th JDC was insufficient for it to properly rule on Mr. Kent's petition for judicial review.

CONCLUSION

As we have recognized that the sentence imposed is unclear with respect to the order of credit for "all" time served and as the sentence was imposed pursuant to a plea agreement, we vacate the district court's judgment on judicial review and remand this matter to the 19th JDC with instructions to transfer the case to the 24th JDC for a definitive ruling as to the sentence imposed. See La. C. Cr. P. arts. 929 - 930 ; Blair, 99-1860 at pp. 3-6, 798 So.2d at 134-137. Costs associated with this appeal in the amount of $785.00 are assessed to the Louisiana Department of Public Safety and Corrections.

VACATED AND REMANDED WITH INSTRUCTIONS.

Crain, J. dissents and assigns reason

Penzato, J. dissents for the reasons assigned by Judge Crain

CRAIN, J., dissents.

The sentencing judge referenced the Texas conviction in connection with the concurrent nature of the sentence imposed. He did not reference it in ordering credit for all time served. Similar language regarding credit for time served is commonly used to refer to the charges being prosecuted in the sentencing court. I find no ambiguity in the trial court's order that the defendant be given credit for all time served and consider it governed by Louisiana Code of Criminal Procedure article 880, which prohibits credit for time served prior to the commission of the crime.

The inmate seems to argue the trial court deviated from the provisions of Article 880 and ordered credit for time served in Texas pursuant to a plea agreement. Louisiana Code of Criminal Procedure article 890.1 authorizes a trial court "to depart from the mandatory terms of imprisonment and conditions placed on those sentences otherwise specified by law by agreement of all parties." State v. Kondylis , 14-0196 (La. 10/3/14), 149 So.3d 1210, 1211. However, the record before us contains no evidence of such an agreement relative to credit for time served. Therefore, I would find the district court properly dismissed the petition for judicial review.

      The record indicates that Mr. Kent withdrew his original "not guilty" pleas and pled guilty to the offenses pursuant to a plea agreement.

      This sentence is the heightened sentence imposed after Mr. Kent was adjudicated a second offense, habitual offender.

      In his petition for judicial review, Mr. Kent alleged that he had filed an ARP with the warden of the Allen Correctional Center, and upon failing to receive a response, he filed a request for a second step review with Secretary LeBlanc. According to DPSC regulations, "[n]o more than 90 days from the initiation to completion of the process shall elapse, unless an extension has been granted. Absent such an extension, expiration of response time limits shall entitle the offender to move on to the next step in the process." LAC 22:I.325(J)(1)(c).

      CARP suits are generally assigned to a commissioner at the 19th JDC to conduct all proceedings and to make a recommendation of disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. See La. R.S. 13:713(A).

      We observe that La. C. Cr. P. art. 883.1(C), however, provides that "[i]f the department needs information relating to the sentence not provided in the Uniform Sentencing Commitment Order, it may request that information from the court." (Emphasis added.)

      The second step response appears to be dated as either the 13th or 17th of March, 2017.

      The date he committed the offense was January 26, 1999.

      While the sentencing court referred to Mr. Kent as being paroled on the Texas offense, there is no information in the record regarding the specifics of such parole.

      The guilty plea waiver form signed by Mr. Kent and the sentencing court is annotated with an even broader comment of "credit for any & all time served." (Emphasis added.)