author: CARTER, C.J.

text:
    Radu COSMAN d/b/a Stucco Design v. Ivan T. CABRERA and D.K. Contractors, Inc.
    No. 2009 CA 0265.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 23, 2009.

      Kenneth L. Blanchard, Jr., Plaquemine, LA, for PJaintiff-Appellant, Radu Cosman d/b/a Stucco Design.
    A.M. “Tony” Clayton, Michael P. Fruge, Port Allen, LA, for Defendants-Appellees, Ivan T. Cabrera and D.K. Contractors, Inc.
    Before: CARTER, C.J., KUHN, and PETTIGREW, JJ.
   CARTER, C.J.

| ¡/This action involves a dispute over the balance due a subcontractor who had provided the stucco construction work on a new home pursuant to an oral contract. The subcontractor appeals a trial court judgment awarding a portion of the balance due. For the following reasons, we affirm the trial court’s judgment.

FACTS

In December 2005, general contractor, David Koulpasis of D.K. Contractors, Inc. (D.K.), offered an estimate to Ivan T. Cabrera to build Cabrera’s new home in Plaquemine, Louisiana. D.K.’s original estimate included $38,000.00 for stucco material and labor. Cabrera hired D.K., and construction of the Cabrera residence began in January 2006. During the building process, D.K. hired subcontractor, Radu Cosman, d/b/a Stucco Design (Cosman), on behalf of Cabrera to supply various materials and labor for stucco construction work on Cabrera’s home. D.K. was familiar with Cosman’s reputation as a stucco subcontractor, because he had previously worked with Cosman. There was no written agreement or estimate as to the total cost of the materials and labor for the stucco work prior to Cosman beginning the job.

After working approximately two months on the stucco construction, Cos-man gave D.K. an invoice for his near-completed work on June 8, 2006. This sole invoice for the stucco work demanded a total of $55,966.00, less a prior $10,000.00 direct payment from Cabrera to Cosman. A dispute arose over the final amount due when D.K. unilaterally decreased Cos-man’s invoice by approximately $8,000.00 after discussing the invoice with Cabrera. It is undisputed that D.K. did not make any payments to Cosman |sfor the stucco work; rather, Cabrera paid a total of $32,000.00 directly to Cosman. Cabrera also attempted to pay an additional final amount of $12,900.00 for the stucco work, but Cosman refused to accept the final payment because it was not the total amount due. Thereafter, Cabrera hired another stucco subcontractor to finish the work.

On September 6, 2006, Cosman filed suit to enforce a materialman’s privilege, alleging that D.K. and Cabrera were liable in solido for the $23,966.00 balance due for his stucco work, plus attorney’s fees, court costs, and civil penalties as provided by the Louisiana Private Works Act in LSA-R.S. 9:4814. D.K. and Cabrera responded with a reconventional demand, alleging that Cosman did not complete a portion of the stucco work and that the stucco work he had performed was substandard and improperly done. Cabrera alleged that he had sustained damages due to undue hardship, delay, and extraordinary expense in completing and correcting the stucco work on his home. Cabrera hired another subcontractor to complete the stucco work and paid him $4,200.00. Cabrera moved into his new home on October 20, 2006, and thereafter discovered additional cracking and peeling of the stucco that he alleges will require another $14,775.00 to repair.

A bench trial on the merits was held on April 14, 2008. During trial, Cosman filed a peremptory exception raising the objection of no right of action, arguing that Cabrera had no right to reconvene against Cosman because he had no contract, written or oral, with Cosman, and Cabrera’s 14exclusive remedy for defective work was against D.K. pursuant to the New Home Warranty Act. Cabrera and D.K. opposed Cosman’s exception; the trial court took the exception under consideration, ordering the trial to proceed. When Cosman rested his case, D.K. and Cabrera moved for a partial judgment of involuntary dismissal of Cosman’s claim for penalties and attorney’s fees, maintaining that Cosman had not presented any evidence that D.K. and Cabrera had knowingly failed to pay Cosman, and that Cabrera was not a party that could be found liable under LSA-R.S. 9:4814. The trial court granted the motion, finding that Cosman could not recover penalties and attorney’s fees in this case.

At the conclusion of the trial, the trial court took the case under advisement and requested post-trial memoranda from the parties. On July 23, 2008, the trial court issued a ruling with written reasons, denying Cosman’s peremptory exception raising the objection of no right of action and rendering judgment in favor of Cosman, ordering D.K. and Cabrera to pay Cosman $9,191.00. The trial court arrived at this amount by finding a valid outstanding contract price balance due of $23,966.00, less the $14,775.00 owed to Cabrera for the estimated cost to repair the substandard work. However, the trial court denied Cabrera’s claim for reimbursement of the $4,200.00 that he paid to have the stucco work completed, finding that Cabrera and/or D.K. had prevented Cosman from completing the job after the dispute arose over the balance due. Cosman appeals, raising three assignments of error.

^DISCUSSION

In Cosman’s first assignment of error, he claims that the trial court erred in denying his peremptory exception raising the objection of no right of action as to Cabrera’s right to bring a reconventional demand against Cosman. Cosman argues that he had a contract with D.K., not Cabrera, and that Cabrera’s exclusive remedy for defective work is against the general contractor, D.K., pursuant to the New Home Warranty Act (NHWA) at LSA-R.S. 9:3141, et seq. We find no merit to this argument. The NHWA is only exclusive between an “owner” and a “builder,” and status as an “owner” does not conclusively establish that the NHWA is the only remedy available to resolve issues of defects in a new home. LSA-R.S. 9:3150; Melancon v. Sunshine Const., Inc., 97-1167 (La.App. 1 Cir. 5/15/98), 712 So.2d 1011, 1015; Royer v. V.P. Pierret Const. Co., Inc., 02-263 (La.App. 3 Cir. 10/28/02), 834 So.2d 1078, 1079, writ denied, 02-2880 (La.1/31/03), 836 So.2d 73.

While it is true that the NHWA provides protection to new homeowners against builders, we do not interpret the NHWA so broadly that a subcontractor would be considered a builder, because subcontractors do not construct the entire structure and deliver it to the owner as a new home. See LSA-R.S. 9:3150 and 9:3143(1) & (3). See also Allstate Enterprises, Inc. v. Brown, 39,467 (La.App. 2 Cir. 6/29/05), 907 So.2d 904, 911-912 | faction against a subcontractor that was responsible for a portion of the work on a home); Nolan v. Roofing Supply, Inc., 36,403 (La.App. 2 Cir. 11/26/02), 833 So.2d 1026, 1032 (action against a seller/supplier of construction materials); Coussan v. Jim Tatman’s Mobile Homes, Inc., 99-956 (La. App. 3 Cir. 12/15/99), 755 So.2d 293, 296 (action against seller of a home). Furthermore, it is questionable whether the relatively minor aesthetic defects alleged to exist in the finished stucco on Cabrera’s house would constitute a “major structural defect” within the meaning of the NHWA. See LSA-R.S. 9:3143(5) and 9:3144(A)(3).

In this case, Cosman was not responsible for building a functional, completed home for Cabrera; the builder of Cabrera’s home was D.K. Cosman was only a subcontractor who orally agreed to perform part of the work on Cabrera’s new home. Although Cabrera could have, he did not initiate a claim under the NHWA against D.K. Instead, Cabrera’s reconven-tional demand was filed only in response to Cosman’s suit for the balance due under the building contract. As such, Cabrera’s claim was based on the damages he allegedly sustained because of Cosman’s incomplete and substandard stucco work for which Cabrera had made direct payments to Cosman. Cabrera’s claim included alleged damages for undue hardship, delay, and expense. It is undisputed that Cos-man agreed to provide materials and labor for the stucco work on Cabrera’s home and that Cabrera directly paid Cosman for his work. Clearly, Cabrera had a legal | interest — or right of action — in the subject matter of this litigation. See LSA-C.C.P. art. 927(A)(6); Long v. Jeb Breithaupt Design Build Inc., 44,002 (La.App. 2 Cir. 2/25/09), 4 So.3d 930, 941. We conclude that under this factual scenario, the NHWA does not limit an owner’s ability to bring a claim for damages caused by defective work or negligent workmanship against a subcontractor, despite the lack of privity of contract. See Long, 4 So.3d at 942. Therefore, Cabrera had a right to bring the reconventional demand against Cosman for his damages caused by Cos-man’s alleged defective and incomplete work. The trial court correctly denied Cosman’s peremptory exception raising the objection of no right of action.

Next, Cosman argues that the trial court erred in reducing his award for the alleged defective workmanship. Under Louisiana jurisprudence, a building contractor or subcontractor may recover the contract price even though defects and omissions are present after he has substantially performed the building contract. “Substantial performance” means that the construction is fit for the purposes intended despite the deficiencies; this is a question of fact for the trial judge. Mayeux v. McInnis, 00-1540 (La.App. 1 Cir. 9/28/01), 809 So.2d 310, 313, writ denied, 01-3286 (La.3/8/02), 810 So.2d 1164. However, where the owner presents evidence of the cost of completion of the work or correction of defective work, the contract price |smay be reduced by that amount. Id. The factors to be considered in determining whether there has been substantial per-formanee include the extent of the defect or non-performance, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the owner of the work already performed. Id.

After hearing testimony and receiving evidence from all of the parties, the trial court determined that Cosman had substantially completed the stucco work that he had contracted to perform at Cabrera’s house. D.K. testified that Cosman gave him the invoice after Cosman finished the stucco job. Cosman testified that approximately two hours of finishing work near the base of the columns was left incomplete when he gave D.K. the invoice, and that D.K. and Cabrera had hired another subcontractor to finish the work instead of allowing him to finish. Cabrera testified that Cosman’s finished stucco was discolored in certain areas on the house, and there were several areas of cracking, bubbling, and peeling in the finished stucco. Cosman testified that the problems were common in stucco work, and he was not allowed to make repairs/corrections even though he offered. Cabrera denied that he refused to allow Cosman to finish the stucco work, but admitted that he had paid another stucco subcontractor $4,200.00 to do the work that Cosman did not finish. Finally, Cabrera admitted that he moved into the house despite his claim that an estimated $14,775.00 of repair work was still necessary to make the stucco aesthetically acceptable.

Our review of the evidence reveals there is conflicting testimony concerning Cosman’s stucco workmanship and the extent of the damage caused by the deficiencies. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous |9or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 883 (La.1993). In reviewing the evidence, we find the trial court reasonably concluded that Cosman had substantially completed the stucco work. The evidence also reasonably supports the trial court’s finding that some obvious aesthetic defects existed in that the finished stucco was discolored in some areas and contained some cracking, bubbling, and peeling in other areas. We especially note that Cabrera’s occupancy and use of the residence supports the trial court’s finding that the stucco work served the purpose of the contract, despite the aesthetic deficiencies in the finished stucco.

Further, the evidence in the record supports the trial court’s reasonable conclusion that Cosman was prevented from completely finishing the stucco work and from making the necessary repairs. Evidence was presented that Cabrera’s cost to hire another stucco subcontractor to repair the defects in the stucco was estimated to be $14,775.00. Therefore, we find no manifest error or abuse of discretion in the trial court’s reduction of Cosman’s outstanding contract balance due by the cost of repairing the aesthetic defects in the finished stucco.

In Cosman’s final assignment of error, he argues that the trial court erred when it granted a partial involuntary judgment of dismissal as to Cosman’s claims for penalties and attorney’s fees pursuant to LSA-R.S. 9:4814. A trial court’s decision to grant an involuntary dismissal should not be reversed in the absence of manifest or legal error. Jackson v. Capitol City Family Health Center, 04-2671 (La.App. 1 Cir. 12/22/05), 928 So.2d 129, 131. After reviewing and strictly construing the statutory language, we agree with the trial court that Cosman is not entitled to penalties and | ^attorney’s fees in this case. It was undisputed that Cosman refused to accept D.K. and Cabrera’s offer to make a final payment for the stucco work. There was no evidence that Cabrera was an agent of D.K. or Cosman. Furthermore, there was no showing that D.K. and/or Cabrera knowingly failed to apply the construction loan funds to Cos-man’s invoice or that the construction loan funds were misapplied in any way. Thus, LSA-R.S. 9:4814 simply does not apply. Therefore, the trial court did not manifestly err in granting the partial involuntary dismissal.

CONCLUSION

We affirm the trial court’s judgment for the above-cited reasons. Costs of this appeal are assessed to plaintifi/appellant, Radu Cosman d/b/a Stucco Design.

AFFIRMED.

      . The Louisiana Private Works Act, found at LSA-R.S. 9:4801, et seq., grants subcontractors the right to make a claim for payment on work performed against a homeowner and contractor, even though there is no privity of contract between the homeowner and subcontractor. Cosman's lien preserving his claim was allegedly filed in the mortgage records on June 29, 2006. The existence and timeliness of the lien is not at issue in this appeal.

      . Cosman also filed a peremptory exception raising the objection of no cause of action as to D.K., asserting that D.K. could not reconvene against Cosman because D.K. had no actual damages. Cabrera and D.K. did not oppose the exception raising the objection of no cause of action, which is not at issue in this appeal.

      . Louisiana Revised Statute 9:3150 provides that the NHWA is "the exclusive remedjy] ... as between builder and owner relative to home construction....’’ (Emphasis added.) Under LSA-R.S. 9:3143(1), a "[b]uilder” is defined as "any person, corporation, partnership, limited liability company, joint venture, or other entity which constructs a home, or addition thereto_” (Emphasis added.) Under LSA-R.S. 9:3143(6), an ’To]wner” is defined as "the initial purchaser of a home and any of his successors in title....” (Emphasis added.) Under LSA-R.S. 9:3143(3), a "[hjome" is defined as "any new structure designed and used only for residential use ... constructed by the builder....” (Emphasis added.)

      . We distinguish Barnett v. Watkins, 06-2442 (La.App. 1 Cir. 9/19/07), 970 So.2d 1028, 1038, writ denied, 07-2066 (La. 12/14/07), 970 So.2d 537, where the NHWA was held to be the exclusive remedy for an action by an owner against the builder's liability insurer due to the natural "extension” of the owner’s claim against the builder for defective workmanship. In the case sub judice, the subcontractor's defective workmanship is not alleged to be connected or extended to the builder in any way.

      . We further note that D.K. unquestionably had a right to bring an action against Cosman for breach of contract. LSA-C.C. art. 2769. Implicit in every building contract is the requirement that the work be performed in a good, workmanlike manner, free from defects in material and workmanship. Davidge v. H & H Const. Co., 432 So.2d 393, 395 (La.App. 1 Cir. 1983). However, it was undisputed at trial that D.K. did not sustain any damages.

      . As an appellate court, we cannot set aside the trial court’s factual findings unless we determine there is no reasonable factual basis for the findings and the findings are clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993).

      . It is well settled that statutes creating liens or privileges or providing for penalties and attorney’s fees must be given strict construction. Craig v. Bantek West, Inc., 04-0229 (La. App. 1 Cir. 9/17/04), 885 So.2d 1241, 1245; Pennington v. Campanella, 180 So.2d 882, 885 (La.App. 1 Cir. 1965), writ granted, 248 La. 783, 181 So.2d 782 (1966).

      . Louisiana Revised Statute 9:4814 provides in pertinent part:
      A. No contractor, subcontractor, or agent of a contractor or subcontractor, who has received money on account of a contract for the construction ... of a building ... shall knowingly fail to apply the money received as necessary to settle claims to ... laborers due for the construction or under the contract. Any ... laborer whose claims have not been settled may file an action for the amount due, including reasonable attorney fees and court costs, and for civil penalties as provided in this Section. (Emphasis added.)


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    TRANSCONTINENTAL GAS PIPE LINE CORPORATION v. Cynthia BRIDGES, Secretary of the Department of Revenue, State of Louisiana and The State of Louisiana.
    No. 2009 CA 0421.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 23, 2009.
    Rehearing Denied Nov. 18, 2009.
    Writ Denied Feb. 26, 2010.

      Christopher J. Dicharry, Shannan Sweeney Rieger, Baton Rouge, LA, for Plain-tifi/Appellee, Transcontinental Gas Pipe Line Corporation.
    Donald Bowman, Frederick Mulhearn, Monica Doss Washington, Shone T. Pierre, David M. Hansen, Miranda Conner, Antonio Charles Ferachi, Baton Rouge, LA, for Defendant/Appellant, Cynthia Bridges, Secretary of Louisiana Department of Revenue.
    Before: CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

|2The Louisiana Department of Revenue (LDR) suspensively appeals, in part, a judgment overruling a peremptory exception asserting the objection of no cause of action. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 6, 2002, the LDR issued a “Notice of Proposed Tax Due” to Transcontinental Gas Pipe Line Corporation (Transcontinental), giving notice that the LDR proposed to assess Transcontinental for an alleged tax deficiency, plus applicable interest, for the taxable periods January 1, 1998 to December 31, 2000. Transcontinental submitted a written protest to the proposed assessment by a certified letter dated September 27, 2002, in accordance with La. R.S. 47:1563. By a letter dated February 18, 2005, the LDR notified Transcontinental that “[ejnclosed is your refund check in the amount of $335,302.94 for the Louisiana Natural Gas Franchise tax period [01/98-12/00]. This amount includes tax in the amount of $252,612.00 and interest in the amount of $82,690.94. This amount is the result of a field audit examination.” Thereafter, by a letter dated May 9, 2005, the LDR informed Transcontinental that “[o]n February 18, 2005[,] the [LDR] issued Transcontinental ... a refund in the amount of $835,802.94. This refund resulted from a re-examination of the records you had furnished. This refund did not include the deduction for synthetic gas as you requested.”

Transcontinental appealed the LDR’s decision to reject the requested deduction for synthetic gas by filing a “Petition for Refund and Alternative Claim Against the State” with the Louisiana Board of Tax Appeals (BTA). In the petition, Transcontinental alleged that “[p]ursuant to La. R.S. 47:1032(2), [it] is entitled to a deduction for the cost of gas purchased for resale; accordingly, [it] is entitled to a refund of approximately $107,000.00 in natural gas franchise taxes overpaid, plus interest as provided by law.” Transcontinental further prayed that | 3“the amount of approximately $107,000.00 for natural gas franchise taxes for the period covering 1998 through 2000 be recognized as refundable overpayments, and that the [BTA] approve the refund thereof, with interest....”

The LDR excepted to Transcontinental’s petition for refund, contending that based on Transcontinental’s failure to properly file a claim for refund, it had no cause of action pursuant to La. R.S. 47:1625. The matter proceeded to be heard by the BTA, and by a decision rendered November 14, 2007, the BTA denied the LDR’s exception and Transcontinental’s request for a refund. Transcontinental subsequently sought judicial review of the BTA’s decision. The LDR answered Transcontinental’s petition for judicial review requesting, in part, that the district court reverse the BTA’s decision overruling its exceptions.

On review, the district court affirmed the rulings of the BTA overruling the exceptions filed by the LDR, but it reversed the rulings of the BTA dismissing the claims of Transcontinental. The district court rendered judgment in favor of Transcontinental overruling the LDR’s assessment for the tax period January 1, 2001 through December 31, 2003, and ordering the LDR to refund Transcontinental the natural gas franchise tax overpaid for the tax period January 1, 1998 through December 31, 2000.

The LDR now appeals the district court’s judgment, asserting on appeal that the district court erred in affirming the BTA’s decision overruling the peremptory exception raising the objection of no cause of action.

^DISCUSSION

At the outset we observe, as has been recognized and is well settled in our jurisprudence, that the nature of an exception should be determined by its substance and not by its caption. Judson v. Davis, 04-1699, p. 11 (La.App. 1st Cir.6/29/05), 916 So.2d 1106, 1114, writ denied, 05-1998 (La.2/10/06), 924 So.2d 167. In reviewing the substance of the exception urged by the LDR, it is clear that the objection urged by the LDR more properly should have been brought as a dilatory exception raising the objection of prematurity, La. C.C.P. art. 926(A)(1), rather than a peremptory exception raising the objection of no cause of action, La. C.C.P. art. 927(A)(5). Thus, we will treat the LDR’s objection as a dilatory exception of prematurity. See Mosley v. Louisiana Department of Public Safety & Corrections, 07-1501, pp. 1-2 (La.App. 3d Cir.4/2/08), 980 So.2d 836, 837.

The dilatory exception raising the objection of prematurity questions whether the cause of action has matured to the point where it is ripe for judicial determination, because an action will be deemed premature when it is brought before the right to enforce it has accrued. LaCoste v. Pendleton Methodist Hospital, L.L.C., 07-0008, p. 5 (La.9/5/07), 966 So.2d 519, 523. The exception neither challenges nor attempts to defeat the elements of the plaintiffs cause of action; instead, the defendant asserts the plaintiff has failed to take some preliminary step necessary to make the controversy ripe for judicial involvement. LaCoste, 07-0008 at 6, 966 So.2d at 523. The viability of the dilatory exception urging prematurity is determined by the facts existing at the time the lawsuit is filed. Mathies v. Blanchard, 06-0559, p. 3 (La.App. 1st Cir.2/21/07), 959 So.2d 986, 988.

The objection of prematurity contemplates that the plaintiff has filed his action prior to some procedure or assigned time, and it is usually utilized in cases where the applicable law or contract has provided a procedure for one aggrieved by |5a decision to seek administrative relief before resorting to judicial action. Dailey v. Travis, 02-2051, p. 6 (La.App. 1st Cir.2/23/04), 872 So.2d 1104, 1108. Generally, all administrative remedies or specified procedures must be exhausted before the right to judicial review may be exercised. EOP New Orleans, L.L.C. v. Louisiana Tax Commission, 01-1452, p. 5 (La. App. 1st Cir.9/28/01), 809 So.2d 387, 390, writ denied, 01-3278 (La.3/15/02), 811 So.2d 907.

In asserting the objection of prematurity, the exceptor bears the initial burden of showing that an administrative remedy or procedure applies, by reason of which the judicial action is premature. Once the existence of an administrative remedy is established, the burden then shifts to the plaintiff to show that the specified administrative remedies or procedures have been exhausted. Williams v. Notami Hospitals of Louisiana, Inc., 04-2289, p. 6 (La.App. 1st Cir.11/4/05), 927 So.2d 368, 372.

The issue before this court on appeal is whether the trial court correctly interpreted and applied the law to find that Transcontinental properly established its right to seek review of, as well as relief from, the determinations of the LDR. Appellate review of questions of law is simply a review of whether the trial court was legally correct or incorrect. See Williams, 04-2289 at 5, 927 So.2d at 372.

In this case, while the LDR asserted in its exception that “[without a properly filed claim for refund, a taxpayer has no cause of action pursuant to La. R.S. 47:1625,” it is apparent that the agency is claiming that Transcontinental should have been precluded from seeking judicial review of its claim because it failed to comply with the provisions of La. R.S. 47:1625. That statute provides, in part:

If the collector fails to act on a properly filed claim for refund or credit within one year from the date received by him or if the collector denies the claim in whole or in part, the taxpayer claiming such refund or credit may appeal to the board of tax appeals for a hearing on the claim filed. No appeal may be filed before the | (¡expiration of one year from the date of filing such claim unless the collector renders a decision thereon within that time, nor after the expiration of sixty days from the date of mailing by registered mail by the collector to the taxpayer of a notice of the disallowance of the part of the claim to which such appeal relates.

The LDR argues that Transcontinental did not properly file a claim for refund; therefore, it was not entitled to appeal to the BTA for review of the LDR’s assessment or for a refund.

The LDR asserts that Transcontinental did not comply with the provisions of Title 47 that address refunds of over-payments, namely La. R.S. 47:1621-1627, and agency regulations promulgated pursuant thereto. Specifically, the LDR relies on the provisions of LAC 61:1.4909, promulgated by the secretary of the LDR pursuant to La. R.S. 47:1621(1), which provides in pertinent part:

A. Taxpayers filing claims for refunds or credits of overpayments of tax, penalty or interest as authorized by R.S. 47:1621 and in accordance with R.S. 47:1623 must comply with the following procedures.
1. A claim for refund or credit shall be written in the English language, and be:
a. submitted on claims for refund/credit forms provided by the secretary; or
b. written in a format substantially the same as that provided by the secretary; or
c.submitted by timely filing an amended return.
2. A claim for refund shall be signed and dated by the taxpayer or his authorized representative, and shall:
a. contain a clear statement detailing the reason for the claim;
b. indicate the appropriate tax and tax amount by tax period; and
c. be submitted to an appropriate office, division, or representative of the Department of Revenue....
Ji•• • •
C. Claims for refunds that have not been approved within one year of the date received or that have been denied may be appealed by taxpayer to the board of tax appeals in accordance with R.S. 47:1625.

While Transcontinental artfully represents that its September 27, 2002 protest letter was actually a claim for refund that substantially conformed to the format provided by the secretary of the LDR as outlined in LAC 61:I.4909(A)(2), we find that the September 27, 2002 protest letter does not meet the requirements of a claim for refund nor was it intended to be such at the time it was mailed to the LDR.

The protest letter differs from the format outlined in LAC 61:1.4909 in two material respects. First, there is no statement in the protest letter wherein Transcontinental requests a refund. Instead, the requested relief reiterated throughout the September 27, 2002 protest letter is the singular request “that the audit results be adjusted.” Second, there is no statement of what would be the appropriate tax and tax amount by tax period.

Instead, it is evident that the September 27, 2002 protest letter was submitted pursuant to the provisions of La. R.S. 47:1563, as advised in the “Notice of Proposed Tax Due.” That statute provides:

The taxpayer, within thirty calendar days from the date of the notice provided in R.S. 47:1562(A) or (B), may protest thereto. This protest must be in writing and should fully disclose the reasons, together with facts and figures in substantiation thereof, for objecting to the secretary’s determination. The secretary shall consider the protest and in his discretion may grant a hearing thereon before making a final determination of tax, penalty, and interest due.

Louisiana Revised Statutes 47:1564-65 then outline the procedures to be followed once a protest has been filed.

| ^Louisiana Revised Statutes 47:1564 provides that at the expiration of such time as may be necessary for the secretary to consider any protest filed, the secretary shall proceed to assess the tax, penalty, and interest that he determines to be due. Upon making such assessment, the secretary is required, by La. R.S. 47:1565(A), to send a notice by certified mail informing the taxpayer of the assessment and that the taxpayer has sixty calendar days from the date of the notice to either “pay the amount of the assessment or to appeal to the [BTA] for a redetermination of the assessment.” It is further provided that “[a]ll such appeals shall be made in accordance with the provisions of [La. R.S. 47:1401, et seq.].” Finally, La. R.S. 47:1565(B) states that “[i]f an appeal for a redetermination of the assessment has been filed, the assessment shall not be collectible by distraint and sale until such time as the assessment has been redetermined or affirmed by the [BTA] or the court which last reviews the matter.”

The LDR avers that an assessment pursuant to La. R.S. 47:1564-65 was not made. Yet, to the extent that the LDR’s May 9, 2005 letter could be construed to 'be the required notice of assessment issued after the secretary’s consideration of Transcontinental’s protest, Transcontinental timely appealed the LDR’s action to the BTA. Still, we must further consider whether Transcontinental properly appealed to the BTA in accordance with La. R.S. 47:1401, et seq. Considering those provisions, and specifically La. R.S. 47:1431, which states in part that a “taxpayer may appeal to the [BTA] for a redetermination of the assessment ... by filing a petition with the [BTA] within the respective periods set forth in R.S. |fl47:1565,” we find that Transcontinental did properly appeal to the BTA for a redetermination of the assessment by the LDR. Transcontinental filed its petition for appeal to the BTA on June 13, 2005, well within sixty calendar days of the date of the May 9, 2005 letter.

CONCLUSION

Based on the foregoing discussion, we find that the decisions of the lower tribunals overruling the peremptory exception raising the objection of no cause of action, which more appropriately should have been brought as a dilatory exception raising the objection of prematurity, was correct. We therefore affirm the decision of the district court. All costs of these proceedings in the amount of $2,520.50 are cast to the appellant, the Louisiana Department of Revenue.

AFFIRMED.

CARTER, C.J., and PETTIGREW, J., concur.

      . In the proceedings before the BTA, Transcontinental filed a second petition to void a subsequent assessment by the LDR for alleged deficient tax payments for the tax period January 1, 2001 through December 31, 2003, which the BTA joined with the pending action for a refund for overpayments for the tax period of January 1, 1998 through December 31,2000. See La. R.S. 47:1576(E). The LDR peremptorily excepted to the second petition on the basis of prescription. In the decision rendered November 14, 2007, the BTA denied Transcontinental's request to void the assessment for the tax period January 1, 2001 through December 31, 2003, and overruled the LDR's exception on the basis of prescription. Those additional rulings are not at issue in this appeal.

      . Louisiana Revised Statutes 47:1621(1) provides “[t]he secretary is authorized to promulgate regulations pursuant to the Administrative Procedure Act for the purpose of administration and enforcement of this Section. Such regulations will have the full force and effect of law.”

      . In its appellate brief, Transcontinental relates its failure to state the appropriate tax and tax amount in the protest letter as being due to the fact that "it was only after the allocation issues were resolved[ ] that the determination of the actual amount of [tax] due by [Transcontinental] could be determined and the actual amount of the overpayment could likewise be determined.”

      . While the May 9, 2005 letter does not recite that the taxpayer has sixty days by which to either pay the assessment or to appeal to the BTA, nor does the letter appear to have been sent by certified mail, it clearly indicates that there was consideration of Transcontinental’s protest and a decision made thereafter not to allow Transcontinental a deduction for synthetic gas. So to the extent that the LDR clearly expressed that it would assess Transcontinental the natural gas franchise tax without applying a deduction for synthetic gas to reduce the amount of the assessment, we find it reasonable that Transcontinental would construe the May 9, 2005 letter as requiring it to file an appeal of the LDR’s determination. We should point out, however, that Transcontinental was not required to take action in response to the May 9, 2005 letter because the letter did not meet the requisites of La. R.S. 47:1565(A).


author: GENOVESE, Judge.

text:
    Charlotte ALFRED v. Larry BUTLER, Kimberly Armstrong, Louisiana Rehabilitation, Inc. and ABC Insurance Company.
    No. 09-441.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Chris Villemarette, Scott, Louisiana, for Defendants/Appellants, Kimberly Armstrong and Louisiana Rehabilitation Services, Inc.
    Lucretia Peeantte-Burton, New Iberia, Louisiana, for Plaintiff/Appellee, Charlotte Alfred.
    Court composed of MARC T. AMY, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| following an adverse judgment and denial of new trial, Defendants, Kimberly Armstrong and Louisiana Rehabilitation, Inc. (Louisiana Rehabilitation), appeal only the denial of their Motion for New Trial. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Charlotte Alfred, seventy-two years of age, filed a negligence action against Larry Butler, Kimberly Armstrong, and Louisiana Rehabilitation, alleging that Mr. Butler “committed a sexual assault and battery and rape” against her on June 29, 2005. Kimberly Armstrong is the sole-owner of Louisiana Rehabilitation, a rehabilitation clinic in New Iberia, Louisiana.

On the date of the alleged assault, Ms. Alfred was a physical therapy patient of Louisiana Rehabilitation. At the time of the alleged assault, Ms. Alfred was being transported to her home from Louisiana Rehabilitation in a patient-transport van being driven by Louisiana Rehabilitation’s employee, Mr. Butler.

A bench trial was held on July 18, 2007, on Ms. Alfred’s vicarious liability claims against Ms. Armstrong and Louisiana Rehabilitation. At the conclusion of the trial, the trial court took the matter under advisement and allowed the parties to file post-trial memoranda. On August 15, 2007, the trial court issued Reasons for Judgment wherein it ruled that Defendants were solidarily liable with Mr. Butler to | 2Ms. Alfred for damages in the amount of $500,000.00. A judgment to this effect was signed by the trial court on September 21, 2007.

On October 1, 2007, Defendants filed a Motion for Judgment Notwithstanding the Verdict (JNOV) or, Alternatively, a Motion for New Trial. Defendants sought a new trial on the basis that “new evidence has come to light which radically challenges the facts alleged in the petition as well as the basis for the court’s December 5, 2005 judgment.” Defendants offered the trial court’s minutes from Mr. Butler’s November 28, 2006 criminal trial on the charge of aggravated rape involving the same incident alleged in the civil suit in support of their argument that newly discovered evidence warranted a new trial in this civil matter.

According to the Defendants, a mistrial was declared in the criminal proceeding after the trial court determined that certain witnesses allegedly perjured themselves during the course of Mr. Butler’s criminal trial. In Defendants’ Supplemental Memorandum in Support of Motion for JNOV and Alternatively New Trial, Defendants argue that “[t]he testimony in [Mr. Butler’s November 26, 2006 criminal trial] shows that [Defendants were the victims of fraud and that Charlotte Alfred was not raped but engaged in consensual sex with her boyfriend, Larry Butler.” Defendants admit that in March of 2007, Mr. Butler pled guilty to committing second degree battery against Ms. Alfred on June 29, 2005.

The trial court held a hearing on Defendants’ motion on August 29, 2008. At said healing, Defendants argued only for a new trial, which the trial court denied. A judgment denying Defendants’ Motion for New Trial was signed by the trial court on November 18, 2008. Defendants appeal.

|,ASSIGNMENTS OF ERROR

In their two assignments of error, Defendants assert that “the trial court erred in failing to exercise its discretion [in] denying [D]efendant’s [M]otion for [N]ew [T]rial” and “[t]he trial court erred in denying [D]efendant’s [Mjotion for [N]ew [T]rial when an examination of the facts clearly demonstrates that a miscarriage of justice will result.”

STANDARD OF REVIEW

In Williams v. W.O. Moss Regional Medical Center, 05-22, pp. 4-5 (La.App. 3 Cir. 6/1/05), 903 So.2d 1150, 1153, this court stated:

The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion. Martin [v. Heritage Manor South Nursing Home, 00-1023 (La.4/3/01) ], 784 So.2d 627. In order to apply this standard, “[w]e are faced with the balancing of two very important concepts: the great deference given to the jury in its fact finding role and the great discretion given to the trial court in deciding whether to grant a new trial.” Davis v. Wal-Mart Stores, Inc., 00-445, pp. 11-12 (La.11/28/00), 774 So.2d 84, 93-94. Though the “[trial] court has much discretion [in determining whether to grant a new trial] ...., this court will not hesitate to set aside the ruling of the trial judge in a case of manifest abuse.” Lamb v. Lamb, 430 So.2d 51, 53 (La. 1983).

LAW AND DISCUSSION

Louisiana Code of Civil Procedure Article 1973 provides that “[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” In brief, Defendants argue that “[t]he ‘good grounds’ in this case are evident from the fact that the State reduced the charges against Mr. Butler.... ” Louisiana Code of Civil Procedure Article 1972 provides, in pertinent part:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
14(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.

Defendants contend that they “were not aware of the strange proceedings at the criminal trial”; therefore, Defendants “had no reason of knowing that the court granted a mistrial or that [Mr.] Butler may have been innocent since he had already served almost three years in prison.” Defendants also note that “[t]he criminal trial took place in St. Mary Parish, while the civil trial proceeded in Iberia Parish.”

Ms. Alfred argues that Defendants had ample opportunity to obtain the information it now contends is newly discovered evidence prior to the civil trial held in this matter on July 18, 2007. In brief, Ms. Alfred argues that “[a]ll of the information surrounding the incidents that occurred in the criminal trial could have been easily obtained by [Defendants], All that information was public record.” We agree.

Our review of the record supports the trial court’s determination that a new trial in this matter was not warranted. Defendants had from November of 2006, the date Mr. Butler’s criminal trial ended in a mistrial, until the civil trial in July of 2007 to obtain the information it now argues warrants a new trial in the civil case filed by Ms. Alfred. Had Defendants exercised due diligence in preparation for the civil trial, this evidence would have been available and usable in their defense. Further, Mr. Butler’s guilty plea to second degree battery in March of 2007 constituted an admission of wrongdoing and figuratively eviscerated the defense that a consensual sexual encounter occurred between Ms. Alfred and Mr. Butler on June 29, 2005. Defendants have failed in their burden of proving a “good ground” for a new trial pursuant to La.Code Civ.P. art.1973. Likewise, Defendants have failed to prove due diligence | sin obtaining newly-discovered evidence pursuant to La.Code Civ.P. art,1972(2). Therefore, we find no abuse of discretion in the trial court’s denial of Defendants’ Motion for New Trial.

DECREE

For the above reasons, the judgment of the trial court denying Defendants’ Motion for New Trial is affirmed. Costs of this appeal are assessed against Defendants/Appellants, Kimberly Armstrong and Louisiana Rehabilitation, Inc.

AFFIRMED.

      . Ms. Armstrong was named as a Defendant both individually and as the sole-owner of Louisiana Rehabilitation. Ms. Alfred alleged that Ms. Armstrong was personally liable for her damages because Ms. Armstrong "acted in bad faith as shareholder, director[J and officer of the corporation by breaching her fiduciary duty by failing to secure insurance on behalf of [Louisiana Rehabilitation] and negligently [hiring Mr. Butler.]”

      . On December 5, 2005, the trial court signed a default judgment against Mr. Butler, awarding Ms. Alfred damages in the amount of $500,000.00. Though Mr. Butler is named as a Defendant in this action, for purposes of this appeal, we use the term “Defendants” to refer only to Ms. Armstrong and Louisiana Rehabilitation.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Eric SMITH.
    No. 09-KA-259.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Warren Mouledoux, III, Jerome G. Smith, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

|2Pefendant, Eric Smith, appeals his conviction of possession of cocaine. On appeal, he argues that the trial court unduly restricted his ability to test the affidavit of the search warrant, which he alleges relied exclusively upon the credibility of an informant. Defendant also requests an errors patent review. Finding no merit to defendant’s arguments on the merits, we affirm defendant’s conviction. Finding errors patent that require correction, we remand the matter to the trial court with instructions, as detailed below.

PROCEDURAL HISTORY

The Jefferson Parish District Attorney filed a bill of information charging defendant, Eric Smith, with possession with intent to distribute cocaine in violation of LSA-R.S. 40:967(A). Defendant was arraigned and pled not guilty to this charge. Following a hearing, the trial court denied defendant’s motions to ^suppress. The charges were nolle prossed because a witness was unavailable. Charges were refiled approximately one week later and defendant proceeded to trial. A 12-person jury found defendant guilty of a lesser charge, possession of cocaine, in violation of LSA-R.S. 40:967(C). Defendant was sentenced to five years imprisonment at hard labor.

The State filed a multiple offender bill of information, alleging that defendant was a second felony offender. After being advised of his rights, defendant admitted to being a second felony offender. His original sentence was vacated and defendant was thereupon sentenced to eight years at hard labor as a multiple offender. This timely appeal follows.

FACTS

Trooper Jacob Dickinson of the Louisiana State Police testified that on June 22, 2005, he prepared and obtained a search warrant for the search of defendant’s residence located at 203 Shrewsbury Road, Apartment No. 8, in Jefferson, Louisiana, in Jefferson Parish. This search warrant was executed the following morning, on June 23, 2005. Agents knocked on defendant’s door and identified themselves as members of the Louisiana State Police. When no one answered, Sergeant Dwight Robinette, also of the Louisiana State Police, breached the door with a ram. Trooper Dickinson went inside defendant’s residence and was followed by Trooper Sandy Cranen and Lieutenant John Kisler. Defendant and his wife were found in a small room in bed.

Defendant was handcuffed and in due course brought to a parking lot nearby. Trooper Dickinson searched defendant and discovered a clear plastic bag in defendant’s pocket. The bag contained approximately 15 separate baggies with |4off-white, rock-like substances, which he believed to be crack cocaine. Trooper Dickinson conducted a preliminary field test, which indicated cocaine was present. Further testing confirmed the presence of cocaine. In defendant’s apartment, Sergeant Robinette discovered over $1,600 in cash. Also, a clear purple-colored bag containing a green vegetable-like matter believed to be marijuana was discovered on a table next to the bed. Lieutenant Danny Jewell of the Jefferson Parish Sheriffs Office, qualified as an expert in the use, packaging and distribution of controlled dangerous substances, testified that in his experience, possession of the large number of individually wrapped rocks of crack cocaine and large amounts of money was indicative of distribution of crack cocaine.

While in the parking lot, defendant was advised of his Miranda rights. Trooper Dickinson testified that defendant said he was unable to get a job so he was forced to sell crack to support his family. Defendant consented to a written statement and wrote that he took responsibility for his actions and that he had a small amount of crack in his apartment.

Defendant testified at trial and denied being in possession of cocaine on the morning of the incident. He stated that crack cocaine was not recovered from his pocket. He did admit, however, that the marijuana was his. He stated that he was sleeping when the officers came into his residence. He testified that it was his birthday, that he had arrived home only several hours earlier, and that he was under the influence at the time the officers entered his apartment.

Defendant denied that Trooper Dickinson read him his rights and that he wrote a statement. He explained that the money taken from his apartment was his wife’s money and was a loan from her attorney in connection with settlement of a civil case.

| ¡ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant argues that the trial court erred in restricting his ability to test the affidavit of the search warrant, which he alleges relied exclusively upon the credibility of an informant. As such, he argues that in order to test the affidavit, it was essential to test the informant’s credibility. Defendant contends that the trial court’s failure to order disclosure of the informant’s identity based on the exceptional facts of this case was error. Further, defendant argues that at the very least, he should have been able to find out if the informant was worthy of belief, even if he was prohibited from learning his identity. He specifically points to the trial court’s refusing to allow his counsel to pursue a line of questioning concerning whether the informant was “working off a charge.” Defendant cites LSA-C.E. art. 607, which provides for attacking the credibility of a witness. Defendant concludes that he was prevented from effectively confronting the charges against him and that he was deprived of a fair hearing on his motions to suppress.

The State argues that defendant’s motions to suppress were filed in two dismissed cases, district court case numbers 05-4603 and 05-4604, and that the motions and ruling were never incorporated into the instant case, district court case number 08-3872. The State argues that because defendant failed to seek disclosure of the identity of the confidential informant in the instant case, he is precluded from assigning as error the ruling the other cases.

|fiWe find that the correctness of the rulings on defendant’s motions to suppress is properly before this court. The record on appeal was supplemented pursuant to defense counsel’s motion to include the suppression hearing transcript relating to this case. In his motion to supplement the record, defense counsel explained that the suppression hearing was conducted on September 12, 2007 in the same division by the same judge, but under a predecessor case number. Importantly, the State did not object to the defendant’s Motion to Supplement. This Court then granted defendant’s request to supplement the record with the September 12, 2007 transcript of the suppression hearing, and the record has been duly supplemented.

The State also addresses the merits of defendant’s claim and contends the trial judge did not abuse his discretion in not ordering disclosure of the confidential informant’s identity because the confidential informant was not a participant in the crime for which defendant was convicted.

At the suppression hearing, Trooper Dickinson of the Louisiana State Police testified that he sought an application for a search warrant for 203 Shrewsbury Road, Apartment No. 8. He stated that he affirmed the facts contained in the affidavit were true and presented it to the judge at 8:40 p.m. on June 22, 2005. He testified that the application indicated that information was received from a confidential informant, that he was familiar with the confidential informant, that he had used him several times in the past, and that he had proven to be reliable. He explained that the confidential informant’s cooperation had resulted in the seizure of illegal controlled dangerous substances in the past.

|7According to Trooper Dickinson, the confidential informant came to him and advised him that he was aware that an individual was distributing heroin and crack cocaine from the parking lot of two casinos in Jefferson and Orleans Parish and also at his residence in Apartment 8 on Shrewsbury Road.

Trooper Dickinson explained that he and Trooper Robinette obtained $20 of Louisiana State Police investigative expense money, photographed it, documented it, and met with the confidential informant on June 22, 2005. The confidential informant was searched and no contraband was found on him. The confidential informant was given the money, went to defendant’s apartment, and knocked on the door. The confidential informant then made a controlled buy from defendant at approximately 4:23 p.m. on June 22, 2005. Trooper Dickinson testified that he observed the hand-to-hand transaction in defendant’s doorway from a vantage point of about five yards away. Trooper Dickinson explained that he was about two doorways away and had a clear view of defendant. The confidential informant then went back to the troopers and gave them the crack cocaine. Trooper Dickinson testified that he put all of this information in his search warrant, and the judge issued an order for the search of the defendant’s residence. He testified that the search warrant did reflect that crack cocaine was purchased from defendant for $20 and that the controlled buy was monitored and observed by the “affiant” (Trooper Dickinson).

Trooper Dickinson testified that the search warrant was executed the following morning. After the door of the apartment was breached, defendant and his wife were located in bed. Defendant was arrested and a search incident to the arrest revealed that he had a clear plastic bag containing an off-white, rock-like | ^substance believed to be crack cocaine in his pocket. Also, Trooper Dickinson testified that over $1600 was found in the apartment. Of this money, $20 was the “buy money” that was prerecorded and had been used on the previous day. Further, marijuana was located on the desk. After defendant was advised of his Miranda rights, defendant executed a “statement of rights form” and made a statement.

On cross-examination, defense counsel asked if the confidential informant was arrested and trying to “work off his charge.” The State objected, arguing that counsel could not ask questions to identify the confidential informant. Defense counsel then asked for the identity of the informant. Again, the State objected to the question because it sought the identity of the informant. Defense counsel argued that he was entitled to the confidential informant’s name because he had participated in the drug transaction that directly led to the search warrant. He argued this was the exception to the privilege rule which allows the State to keep the confidential informant’s identity confidential. The State responded that defendant was not entitled to the confidential informant’s identity because the offense he was involved in was not the offense for which defendant was on trial. The court sustained the State’s objection.

The State objected to more defense questions about the confidential informant, arguing that this was not relevant because the officer had witnessed the transaction. The court sustained the objection on the basis that the witness was the afBant on the warrant application and that he had actually witnessed the alleged transaction between the defendant and the confidential informant.

The trial judge stated he did not see a problem -with the warrant and that he did not see a lack of probable cause, recognizing that it was defendant’s burden ^because the search was pursuant to a warrant. In addition, with respect to defendant’s statements, the trial judge ruled that he did not find coercion and did not find failure on the part of Trooper Dickinson to properly advise defendant of his rights. As such, the trial court denied defendant’s motions to suppress.

LSA-C.E. art. 514(A), pertinent to the issues presented herein, provides:

The United States, a state, or subdivision thereof has a privilege to refuse to disclose, and to protect another from required disclosure of, the identity of a person who has furnished information in order to assist in an investigation of a possible violation of a criminal law.

As a general rule, an informant’s identity is privileged information. State v. Clark, 05-61, p. 12 (La.App. 5 Cir. 6/28/05), 909 So.2d 1007, 1014, 1014 n. 18, writ denied, 05-2119 (La.3/17/06), 925 So.2d 538 (citing State v. Broadway, 96-2659, p. 19 (La.10/19/99), 753 So.2d 801, 815, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000)). This privilege is founded upon public policy and seeks to further and protect the public interest and law enforcement by encouraging people to supply information to the police by protecting their anonymity. However, exceptions to this privilege exist. See LSA-C.E. art. 514(C). The identity of an informant should be made known to the accused only when his right to prepare his defense outweighs the need for protection of the flow of information. The burden is on the defendant to show exceptional circumstances warranting disclosure of the name of a confidential informant. The trial court is afforded great discretion in making this determination.

|1ftWhen an informant has played a crucial role in the criminal transaction, and when his or her testimony is necessary to insure a fair trial, disclosure of the informant’s identity should be ordered. Conversely, when an informant only supplies information, and does not participate in the transaction, disclosure is not warranted.

In State v. Clark, supra, the trial court denied the defendant’s pretrial motion to reveal the identity of the confidential informant. This Court found that the trial court had not erred in denying the motion because although the confidential informant’s drug purchase supplied the probable cause necessary to obtain the search warrant, the informant’s participation was not integral to the transaction (i.e., the search) that uncovered the cocaine that was the basis for the instant charge. This Court explained that the defendant was not charged with the distribution of the cocaine to the confidential informant, but with possession of cocaine with intent to distribute that occurred on a later date.

We find, based on the foregoing, that defendant was not entitled to know the identity of the confidential informant. Importantly, the affiant of the probable cause affidavit and search warrant, Trooper Dickinson, observed the transaction between defendant and the confidential informant firsthand. Although the confidential informant was a source of the basis of the probable cause required for the search warrant, that fact in and of itself did not require disclosure of the confidential informant’s identity. Defendant has not presented exceptional circumstances that required disclosure of the confidential informant’s identity. The charge in this case was based on the cocaine found when the search warrant was executed. It was not based on the evidence seized from the controlled buy between |1, defendant and the confidential informant. The confidential informant did not play a crucial role in the transaction that led to defendant’s arrest because he played no part in the execution of the search warrant and the search of defendant’s person. The confidential informant’s role prior to the search was not even mentioned at trial.

For the reasons set forth above, we find no error in the trial court’s rulings on the issues involving the confidential informant. As such, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. TWO: ERRORS PATENT REVIEW

In his second assignment of error, defendant requests an errors patent review. This Court routinely reviews the record for errors patent regardless of whether defendant makes such a request. LSA-C.Cr.P. art. 920. State v. Oliveaux, 312 So.2d 337 (La.1975). State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The following matters were found.

The commitment and the transcript contain several discrepancies that require remand for correction. The commitment reflects that defendant “pleaded GUILTY under R.S. 15:529.1 on count 1) 40:967.A F II SCHEDULE II POSS. WITD OF A CDS — COCAINE.” However, the jury returned a responsive verdict of possession of cocaine, a violation of LSA-R.S. 40:967(C). When there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Accordingly, we remand the matter to the trial court for correction of the commitment to accurately reflect the verdict rendered by the jury.

Additionally, the commitment only specifies the terms of the enhanced sentence and does not specify the original sentence. On remand, the commitment h .¿should be corrected to include the terms of the original sentence, even though it was later vacated when the trial court imposed defendant’s enhanced sentence.

Also, immediately after sentencing, defendant orally moved for an appeal. The commitment does not reflect the oral motion for appeal. The commitment should also be corrected in this regard.

Further, the transcript reflects that defendant admitted that he was a second felony offender and was sentenced as such. The commitment reflects that defendant was “sentenced under Multiple Bill statute 15:529.1,” but does not reflect that defendant was sentenced as a second felony offender. Accordingly, on remand, the trial court is hereby ordered to correct the commitment to reflect that defendant was sentenced as a second felony offender. See State v. Scott, 08-703, p. 12 (La.App. 5 Cir. 1/27/09), 8 So.3d 658, 666; State v. Dufrene, 07-823, p. 5 (La.App. 5 Cir. 2/19/08), 980 So.2d 31, 34.

Further, we direct the district court to make the entries in the minutes reflecting these changes and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

In its brief, the State notes that the trial judge failed to impose the enhanced sentence without benefit of probation or suspension of sentence as mandated by LSA-R.S. 16:529.1(G). However, this Court need not take corrective action on this error, as State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799 and LSA-R.S. 15:301.1(A) provide that the “without benefits” provision is self-activating. See State v. Williams, 05-582, p. 7 (La.App. 5 Cir. 2/14/06), 924 So.2d 327, 332.

| ^Accordingly, for the reasons stated above, defendant’s conviction is hereby affirmed. The matter is remanded for correction of the minute entries as described above, and for transmission of the corrected minute entries to defendant and to the officer in charge of the institution to which the defendant has been sentenced.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The record does not include copies of defendant’s written motions to suppress.

      . Testing later confirmed that this matter was marijuana.

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

      . It is noted that the informant was not a witness in this case.

      . The bill of information in this case, district court case number 08-3872, was filed on July 24, 2008. Upon reviewing defendant's records, it appears that he was originally charged with possession with intent to distribute cocaine by a bill of information filed on July 28, 2005 in case number 05-4603. In case number 05-4604, defendant was charged with possession of marijuana in another bill of information filed the same date. On July 17, 2008, the State nolle prossed the charges in both of these cases and reserved its right to refile the charges. As noted, the current charge was filed against defendant approximately one week later.
      Defense counsel suggests that the predecessor case for the cocaine offense was 05-4604. However, the case involving the cocaine offense was case number 05-4603. The suppression hearing transcript that was supplemented in this appeal involved both case numbers 05-4603 and 05-4604.

      . It is noted that Trooper Dickinson mistakenly testified several times that defendant’s residence address was 208 Shrewsbury Road, when it is clear from viewing the record as a whole that the defendant's residence address at all times pertinent hereto was 203 Shrews-bury Road.

      . Although the transcript reflects defense counsel objected, it appears from the context of the transcript it was the State that objected to defense counsel’s questioning.

      . Clark, 05-61 at 12, 909 So.2d at 1014-15, 1015 n. 19 (citing Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957)).

      . LSA-C.E. art. 514(C)(3) states that no privilege shall be recognized if "[t]he party seeking to overcome the privilege clearly demonstrates that the interest of the government in preventing disclosure is substantially outweighed by exceptional circumstances such that the informer’s testimony is essential to the preparation of the defense or to a fair determination on the issue of guilt or innocence.”

      . Clark, 05-61 at 12, 909 So.2d at 1015, 1015 n. 20 (citing State v. Zapata, 97-1230, p. 7 (La.App. 5 Cir. 5/27/98), 713 So.2d 1152, 1158, writ denied, 98-1766 (La. 11/6/98), 727 So.2d 443).

      . Clark, 05-61 at 12, 909 So.2d at 1015.

      . Id.

      . Clark, 05-61 at 12-13, 909 So.2d at 1015, 1015 n. 23 (citing Broadway, 96-2659 at 20, 753 So.2d at 815; Zapata, 97-1230 at 8, 713 So.2d at 1158).

      . Clark, 05-61 at 13, 909 So.2d at 1015, 1015 n. 24 (citing Zapata, supra).


text:
    STATE of Louisiana v. Jerman JONES.
    No. 09-KA-478.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, George Wallace, Jr., Assistant District Attorneys, Gretna, LA, for State of Louisiana.
    Margaret S. Sollars, Attorney at Law, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

| ¡¡Defendant, Jerman Jones, appeals his conviction of possession of heroin in violation of LSA-R.S. 40:966 C, and possession of cocaine in violation of LSA-R.S. 40:967 C. On appeal, defendant argues that the evidence was insufficient to establish beyond a reasonable doubt that he possessed cocaine and heroin. After thoroughly reviewing the record and the law, we find no merit to this assignment of error and accordingly affirm defendant’s conviction.

PROCEDURAL HISTORY

The Jefferson Parish District Attorney filed a two-count bill of information charging defendant, Jerman Jones, with possession of heroin in violation of LSA-R.S. 40:966 C, and possession of cocaine in violation of LSA-R.S. 40:967 C. Defendant pled not guilty at arraignment. Defendant was tried by a 12-person jury on March 3, 4, and 5, 2009. The jury returned verdicts of guilty as charged on both counts.

|3On March 16, 2009, the trial court sentenced defendant to ten years at hard labor on Count 1, possession of heroin. On Count 2, possession of cocaine, the trial court sentenced defendant to five years at hard labor. The State noticed its intention to file a habitual offender bill of information in this case, but the habitual offender proceedings are not in the record and are not part of this appeal. Defendant timely filed a motion for appeal, which the trial court granted on March 30, 2009.

FACTS

Deputy Michael Borne of the Jefferson Parish Sheriffs Office testified that he was on patrol duty in Marrero in the early morning hours of December 4, 2008. He was dressed in uniform and was driving a marked patrol car. Just after midnight, Deputy Borne was in the 6200 block of the Westbank Expressway, a high crime area known for narcotics activity. He saw two black men, one of whom was defendant, standing in front of the Brass Rail Lounge. Deputy Borne testified defendant was making hand motions. He appeared to be flagging down motorists in order to sell drugs.

Deputy Borne testified that he stopped in front of the bar and exited his car. Defendant started to walk away and Deputy Borne called out to him. Deputy Borne then saw defendant remove a red glove he was wearing and drop it on the ground. The officer instructed defendant two or three times to walk to his patrol car and defendant finally complied. Deputy Cynthia Phelps, who arrived at the scene in another patrol car, secured defendant while Deputy Borne retrieved the discarded glove. Deputy Borne testified he found crack cocaine inside the glove.

Deputy Borne testified that he performed a pat-down search of defendant’s clothing for his own safety, and in doing so, recovered a syringe from defendant’s 14pocket. During the pat-down search, defendant hit Deputy Borne in the chest and fled on foot. Deputy Borne left the evidence with Deputy Phelps and pursued defendant. Deputy Borne reported the chase over the police radio and additional officers responded to the area. Deputy Borne caught up with defendant and the two engaged in a struggle. Defendant attempted to flee again and Deputy Borne tasered him. At that point Deputy Borne was able to subdue defendant and place him under arrest.

Deputy Borne transported defendant to the Jefferson Parish Correctional Center in his patrol car. Deputy Borne collected defendant’s property from him as part of the booking process. A small foil packet fell out of defendant’s right shoe when he removed the shoe. The packet contained heroin. Deputy Borne testified that he booked defendant with introduction of contraband into a correctional facility in connection with the heroin so found.

Deputy Phelps testified she was on patrol just after midnight on December 4, 2008, when she received a report of a suspicious black man hanging around in front of the Brass Rail Lounge and flagging down passersby. Deputy Phelps pulled up in front of the lounge just after Deputy Borne. She secured defendant while Deputy Borne retrieved the red glove. Deputy Borne informed her they had a “966”, their signal for crack cocaine.

Deputy Phelps began the pat-down frisk of defendant’s clothing as a safety measure and Deputy Borne completed the frisk. Deputy Borne asked defendant whether he had anything, and defendant replied that he had a syringe in his pocket. Deputy Borne then retrieved the syringe from defendant’s right pocket.

| BPeputy Phelps testified that she then saw defendant hit Deputy Borne and flee on foot. At that point, the crack cocaine and the syringe were on the hood of Deputy Borne’s patrol car. Deputy Phelps secured the scene and radioed the sheriffs office headquarters regarding the chase.

Defendant testified he is a convicted felon and a heroin user. He admitted that he possessed a syringe on the morning of December 4, 2008, but denied having cocaine or heroin.

Defendant stated that he and Deputy Borne knew each other prior to the incident at the Brass Rail. The officer sometimes asked for his help in determining who the area drug dealers were. Deputy Phelps asked defendant what he had on him, and he told her he had a syringe. Defendant took the syringe out of his pocket and placed it on the police car. With regards to the red glove Deputy Borne picked up, defendant testified it was a woman’s mitten and it did not belong to him.

Defendant admitted that he fled from the officers, but denied hitting Deputy Borne. He stated that he fell when he attempted to climb over a gate and Deputy Borne tasered him on his back. At that point, defendant claims that an officer other than Deputy Borne kicked him in the eye. An ambulance arrived at the scene and defendant was examined. He was then put in the back of a police car.

Defendant also testified that when they arrived at booking, Deputy Borne told him he was going to put “all kind of charges” on him. Defendant stated he was not shown any heroin, and that he was not booked with possession of heroin.

ASSIGNMENT OF ERROR

In his only assignment of error, defendant contends the State did not put on sufficient evidence to prove he had possession of cocaine and heroin. He points to alleged inconsistencies between Deputy Borne’s testimony and the information | (-.contained in his police report, arguing the discrepancies were serious enough to raise a reasonable doubt as to his guilt. Additionally, he contends that the State failed to establish a chain of custody for the heroin allegedly discovered in his shoe. The State responds that the discrepancies of which defendant complains are matters of witness credibility that went to the weight of the evidence and not to its sufficiency. The State argues the evidence at trial was sufficient to prove defendant possessed cocaine and heroin.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier-of-fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). Where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” LSA-R.S. 15:438; State v. Neal, supra. This statutory test is used with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury. State v. Neal, supra, citing State v. Rosiere, 488 So.2d 965, 968 (La. 1986).

Constitutional law does not require the reviewing court to determine whether it believes the witnesses or whether it believes that the evidence establishes guilt beyond a reasonable doubt. State v. Spears, 05-0964, p. 3 (La.4/4/06), 929 So.2d 1219, 1222, citing State v. Mussall, 523 So.2d 1305, 1309 (La.1988). The fact finder is given much discretion in determinations of credibility and evidence, and the reviewing court will only impinge on this discretion to the extent necessary to 17guarantee the fundamental protection of due process of law. Spears, 05-0964 at 3, 929 So.2d at 1222-23.

To support a conviction for possession of a controlled dangerous substance, the State must prove that the defendant was in possession of the illegal drug and that he knowingly possessed the drug. State v. Alo, 04-62, p. 4 (La.App. 5 Cir. 10/12/04), 886 So.2d 1130, 1132, writ denied, 04-2992 (La.3/24/05), 896 So.2d 1035. Guilty knowledge is an essential element of the crime of possession of contraband. Id. Since it is a state of mind, it need not be proven as fact; it may be inferred from the circumstances. State v. Major, 03-3522, pp. 8-9 (La.12/1/04), 888 So.2d 798, 803; State v. Lathers, 03-941, p. 6 (La.App. 5 Cir. 2/23/04), 868 So.2d 881, 885.

The element of possession may be established by showing that the defendant exercised either actual or constructive possession of the substance. A person not in physical possession of a drug is considered to be in constructive possession of the drug, even though it is not in his physical custody, when the drug is under that person’s dominion and control. Lathers, 03-941 at 6, 868 So.2d at 885.

Deputy Borne testified at trial that after he exited his patrol car in front of the Brass Rail, he saw defendant remove a red glove from his hand and discard it. Without losing sight of the glove, Deputy Borne walked over to where it lay and retrieved it. He immediately examined the glove and found crack cocaine inside of it. Deputy Phelps testified she did not see defendant drop the glove, but that Deputy Borne alerted her that he had seen defendant drop it. She saw Deputy Borne retrieve the glove, and she saw the crack cocaine Borne recovered from the glove. The testimony showed defendant had actual possession of the glove containing cocaine before he dropped it. The jury could have reasonably found that defendant had dominion and control over the cocaine when he dropped the 1 «glove, and that he thus had constructive possession of the cocaine in the glove when he discarded it.

On cross-examination, defense counsel questioned Deputy Borne regarding his police incident report. Deputy Borne testified that he wrote a five page report the next day and described the incident. He testified that his report was accurate and included everything that was important, yet after looking at his report, he agreed that it contained nothing about finding the heroin, nor gave the name of the person who collected it. In another discrepancy, Deputy Borne testified at trial that he saw two black men in front of the Brass Rail when he arrived there, whereas the report only describes defendant. In his report, Deputy Borne wrote Deputy Phelps conducted the pat-down search of defendant, but testified that he conducted the pat-down search.

Defendant suggests that the cocaine recovered from the glove could have belonged to the second man, whom he identified as his friend, Pimp, and that Deputy Borne purposely left Pimp out of his report in order to impute guilt to him (defendant). But Deputy Borne testified that he saw defendant, and not the second man, drop the glove that contained the cocaine. Deputy Borne’s testimony, if believed, eliminated the possibility that someone other than defendant dropped the glove containing the cocaine. Deputy Borne was thoroughly cross-examined by defense counsel regarding the discrepancies between his direct testimony at trial and his police report, yet the jury clearly credited his testimony over that of defendant.

Defendant points out that the State produced testimony about the red glove, but did not introduce the glove into evidence. This fact did not render the evidence [9of defendant’s cocaine possession insufficient. The State produced the crack cocaine at trial, and the officers both identified it as the cocaine that was removed from the glove. Introduction of the glove was unnecessary to proving the elements of possession of cocaine.

Defendant complains the State failed to introduce film taken by Deputy Borne’s taser at the time he tasered defendant. Deputy Phelps testified that the model of taser she and Deputy Borne use is equipped with a camera. But there is nothing in the record to indicate that any film was taken at the time defendant was tasered. In any case, defendant does not show how this adversely affected either Deputy Borne’s credibility or the sufficiency of the State’s evidence in general.

Defendant further complains that the State did not name the officer whom he claims kicked him in the eye. While defendant testified that an unknown officer kicked him in the eye after Deputy Borne tasered him, Deputy Borne testified that he did not believe an officer kicked defendant. Deputy Borne speculated that defendant injured his eye when he fell upon being tasered.

With regard to the heroin charge, defendant contends the State failed to prove chain of custody as to the heroin evidence, and that police failed to book him with possession of heroin. Deputy Borne testified that, with respect to the heroin, he booked defendant with introduction of contraband into a penal institution under LSA-R.S. 14:402. Despite defendant’s complaint concerning the heroin charge, the district attorney acted within his authority under LSA-C.Cr.P. art. 61 when he chose to charge defendant with possession of heroin, a different offense. As long as the State proved the elements of the charged offense of possession of heroin, it is of no consequence that the police arrested him for a different offense.

| iqAs to the chain of custody question, Detective Borne testified he collected the packet of heroin immediately after it fell out of defendant’s shoe during the booking process. He identified State’s Exhibit 4 as the packet of heroin he recovered. The police report indicates that the heroin and the cocaine in this case were released to “CRIME TECH JP 1105.” The crime lab report indicates that Thomas Angelica, Jr., the forensic scientist, tested the off-white substance, and the result was positive for heroin. There was no evidence at trial as to who, if anyone, handled the evidence before and after it was at the crime lab. Nevertheless, once a proper foundation has been laid with regard to a piece of evidence, a lack of positive identification or a defect in the chain of custody goes to the weight of the evidence rather than the admissibility. State v. Parks, 07-655, pp. 18-19 (La.App. 5 Cir. 1/22/08), 977 So.2d 1015, 1028-29, writ denied, 08-0495 (La.12/19/08), 996 So.2d 1126. Ultimately, a chain of custody is a factual matter for determination by the jury. Id. In this case, the State laid a proper foundation for the introduction of the heroin evidence. The sufficiency of the evidence regarding the chain of custody was thus a factual matter for the jury.

Although defendant testified at trial that he never possessed the crack cocaine or the heroin, the jury clearly found the officers’ testimony more credible than that of defendant. It is not the function of an appellate court to assess credibility or reweigh the evidence. State v. Macon, 06-0481, p. 8 (La.6/1/07), 957 So.2d 1280,1286. We find no merit to this assignment of error.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990). The review reveals no errors patent in this case.

|,, CONCLUSION

We find no merit to the defendant’s assignment of error that there was insufficient evidence to support his convictions. Accordingly, defendant’s convictions are affirmed.

AFFIRMED.

      . At the beginning of trial the parties agreed to stipulate that if the crime lab’s chemist were called as a witness, he would testify consistently with his report, that the substances seized in connection with this case tested positive for cocaine and heroin. The Jefferson Parish Crime Laboratory Report was admitted as State’s Exhibit 5.

      . The police report was admitted as Defense Exhibit 2 and State's Exhibit 10.

      . Deputy Phelps testified that she began the pat-down search, and upon her asking, defendant advised her of the syringe in his pocket.

      .LSA-C.Cr.P. art. 61 provides, "Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.”