author: |.MOORE, J.

text:
    Tisha C.L. LENSEY, Plaintiff-Appellant, v. The CITY OF SHREVEPORT MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD of the City of Shreveport, Defendant-Appellee.
    No. 36,934-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Hersy Jones, Shreveport, for Appellant.
    Edward F. Jones, Shreveport, for Ap-pellee.
    Before STEWART, PEATROSS and MOORE, JJ.
   |.MOORE, J.

Tisha C.L. Lensey (“Lensey”) appeals a judgment rendered with written opinion by the First Judicial District Court dated April 29, 2002, affirming an August 15, 2001, ruling of the Shreveport Municipal Fire and Police Civil Service Board (“Board”), which ruling determined that Lensey’s termination from the Shreveport Police Department was in good faith and for cause. Finding inadequate evidence for cause, we reverse the termination of Lensey, amend her punishment to a 90-day suspension without pay or benefits, re-institute her pre-termination employment as a Shreveport Police Officer, with back pay and all associated employment benefits following the 90-day suspension period.

Factual background

The following facts were established at the Board’s hearing in August, 2001.

On December 27, 2000, Lensey, while off-duty and in civilian clothing, drove her cousins Kenneth and Ronald Allen, and Melody Wright to the Shreveport bus terminal for Kenneth to catch a bus. Learning that they had missed the bus, Lensey drove the group to the Bossier City terminal in hopes that Kenneth could catch his bus there. Testimony at the Board hearing reflected that Kenneth and Ronald had been drinking alcoholic beverages when they arrived at the Bossier City bus terminal.

Kenneth then boarded his bus but became involved in an altercation with the bus driver, Raymond Trejo. In response to the altercation, the Bossier City Police were dispatched to the bus terminal to investigate; Officer Thomas Delrie (“Del-rie”) was first to arrive, followed by Officer LMike Williams (‘Williams”) and then by Sergeant Jim Viola (“Viola”).

Delrie testified that once he arrived at the scene, and before he could speak with Trejo, the battery complainant, Lensey approached him and identified herself as a Shreveport police officer. She also identified the accused assailant, Kenneth, as her fiancé and the other man, Ronald, as her fiancé’s brother, and told Delrie that neither man had done anything wrong. Del-rie testified that Lensey was talking loudly and was insulting to him by stating that she knew the law and what Delrie could do, and what she could do in responding to this incident. Delrie further testified that within moments Williams and Viola arrived and began speaking with Lensey, which allowed him to speak to Trejo concerning the alleged battery.

Delrie further testified that following his interview with Trejo, Trejo did not want to file battery charges against Kenneth, but wanted Kenneth off his bus. During this time, Williams made arrangements for Kenneth to catch a later bus. Then all three officers instructed Kenneth, Ronald, Melody and Lensey to get into Lensey’s car and leave. Kenneth, Ronald and Melody complied, but Lensey remained outside of her car in a roadway.

Viola then requested Lensey to leave the street area and speak with Williams, who would advise her of the resolution achieved between Trejo and Kenneth. However, Lensey refused to speak to Williams despite several requests by Viola and Delrie. Thereafter, Viola requested that Lensey get in her car and leave but she again refused. At this point, Viola placed Lensey under arrest for “interfering with an officer.”

| oViola further testified that before he arrested Lensey she was “hollering” and “screaming” at him, trying to tell him what had happened between Kenneth and Trejo, but that she was not using any foul or obscene language.

Lensey was then placed in Delrie’s police car and transported by Delrie to the Bossier City Police Department, where she was processed for her arrest.

Lensey testified that when Delrie arrived at the scene, he asked her what had occurred and she identified herself as a Shreveport Police Officer who had witnessed the incident.- Delrie commented to her that he had applied to the Shreveport Police Department and they refused him a position. Lensey testified that Delrie seemed angry about it. Lensey testified that she stood about 15 to 20 feet away from Delrie when he got Kenneth out of her car and began to verbally abuse him for assaulting Trejo. Lensey added that Kenneth and Delrie also argued over the whereabouts of Kenneth’s baggage, which was on the bus that had already left the terminal.

Lensey also Testified that she spoke to Viola regarding Delrie’s bad attitude towards her and her family and that she was filing a complaint against Delrie; Lensey testified that in reply, however, Viola cut her off and instructed her to go speak with Delrie, which Viola knew she would not do, in view of the circumstances. Finally, Lensey testified that she never spoke to Officer Williams.

Lensey also testified that after Delrie placed her in his unit, he made sexist and racist comments to her. She admitted that she then began to curse |4him. Delrie denied making any sexist or racist statements. No other witness corroborated Lensey’s accusations. Delrie did testify that Lensey called him an idiot, racist, and accused him of having a vendetta against the Shreveport Police Department. Delrie also denied telling Lensey about his failed attempt to join the Shreveport Police Department, but admitted he did apply some years ago, but was turned down because he scored too high on the psychological examination.

Ronald testified at the hearing that he witnessed Delrie exhibit a cocky and rude demeanor towards Kenneth, and that Del-rie used profanity in speaking to Kenneth. Ronald also testified that he and Kenneth had been drinking, but were not drunk.

Some seven hours after Lensey had been first transported to the Bossier City Police station, Lieutenant Robert Dowell (“Dowell”), of the Shreveport Police Department, arrived at the Bossier City jail to have Lensey released to him. Dowell testified that although Lensey appeared upset from having to spend the night in the Bossier City jail, Dowell was even more upset about the Bossier Police Department’s decision to arrest Lensey on the subject facts. Dowell went on to testify that if the same events had occurred in Shreveport with an off-duty police officer, a physical arrest would have not been made; rather, a summons would have been issued. Dowell further testified that he was instructed by his superior to go and pick up Lensey from the Bossier City jail and return her to the Shreveport Police station to the Internal Affairs Bureau (“Bureau”) to investigate the complaints pending against Lensey generated by the |Rarresting officers in Bossier City.

Dowell testified that the arresting officer filed a complaint against him for not calming Lensey down when Dowell came to retrieve her from the jail. Dowell concluded that, to his knowledge, the complaint against him was not being pursued. Delrie denied filing a complaint against Dowell, but testified that he did complain to his supervisor about Dowell’s passive attitude towards Lensey’s rude demeanor at the jail. Lensey admitted telling jailers that she considered Delrie incompetent for his handling of the incident at the bus terminal.

On December 29, 2000, just two days after Lensey’s arrest, she called the Traffic Clerk’s office with the Bossier City Police Department and spoke with clerk Felicia Howard (“Howard”). Howard testified at the Board hearing that Lensey identified herself on the telephone as a Shreveport Police Officer that had been arrested in Bossier City. Lensey wanted a copy of her incident report. Howard then advised Lensey that she had the requested report and she would fax Lensey a copy, which she did. Howard testified that although her office usually charges $5.00 for a copy of an incident report, she did not charge Lensey for the full report, as a routine police courtesy.

The City of Shreveport’s Chief of Police, Jim Roberts (“Chief Roberts”), testified at the Board hearing that he reviewed the entire record of the Bureau complaint and investigation relative to Lensey, and that following his review and consideration, he terminated Lensey on the following grounds:

Ifil. That Lensey’s conduct in Bossier City at the bus terminal was unbecoming conduct of a Shreveport Police officer; and
2. That Lensey abused her position as a Shreveport Police officer to obtain a copy of her incident report from the Bossier City Central Records Department.

Chief Roberts testified that prior to this incident Lensey had no discipline or performance problems or complaints. Lensey had been employed with the Shreveport Police Department since August 1999, and thus had permanent status as a civil servant.

At the conclusion of the Board hearing, the Board rendered a decision that the appointing authority, Chief Roberts, acted in good faith and for cause in the termination of Lensey and upheld Lensey’s termination.

Discussion: Sufficiency of the Evidence

The appropriate standard of appellate review of the actions by the Civil Service Commission is to determine whether the conclusion reached by the Commission was arbitrary or capricious. Newman v. Department of Fire, 425 So.2d 753, 754 (La.1983). Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service. The appointing authority must demonstrate, by a preponderance of the evidence, that the conduct did in fact impair the efficiency and orderly operation of the public service. La. Const. art. X, § 8; Newman, supra; Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962); Walters v. Department of Police of the City of New Orleans, 454 So.2d 106 (La.1984); Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641; Laborde v. Alexandria Municipal Fire & Police Civil Service Bd., 566 So.2d 426 (La.App. 3 Cir.), writ denied, 568 So.2d 1055 (1990).

In civil service cases, an appellate court is presented with a multifaceted review function. See, Walters, supra; Bannister, supra, at 647. First, as in all civil matters, deference will be given to the factual conclusions of the Commission. Walters, supra; Newman, supra; Bannister, supra. Hence, in deciding whether to affirm the Commission’s findings, a reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. Walters, supra; Bannister, supra; see also, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Second, in evaluating the Commission’s determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the court should not modify the Commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. See, Walters, supra; Newman, supra; Bannister, supra; cf. La. R.S. 49:964. “Arbitrary or capricious” means the absence of a rational basis for the action taken. Bannister, supra, and citations therein; Shields v. City of Shreveport, 579 So.2d 961(La.1991), citing Bicknell v. United States, 422 F.2d 1055 (5th Cir.1970).

Employees with permanent status in the classified civil service may be disciplined for cause expressed in writing. La. Const. art. X, § 8(A); R.S. 33:2500 D. “Cause” for the dismissal of such a person includes |sconduct prejudicial to the public service involved or detrimental to its efficient operation. Bannister, supra; Walters, supra. Stated differently, disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the “efficient operation” of the public service. Bannister, supra; Newman, supra; Laborde, supra.

“Complaints, publicity and gossip in themselves do not constitute legal cause for discharge. Notoriety is something a police officer, or any public employee, or official for that matter, cannot control. There must be more than mere notoriety, for that in and of itself proves nothing.” Reboul v. Department of Police, 420 So.2d 491, 495 (La.App. 4 Cir.1982).

Lensey asserts two main arguments in her appeal: (1) that there was insufficient evidence adduced at the Board’s hearing to show that her off-duty conduct in Bossier City had a real and substantial relationship with and impairment of the efficient operation of the Shreveport Police Department to justify her termination in good faith and for cause; and (2) the district court erred in not finding that Lensey produced sufficient evidence that she was discriminated against in her termination.

In her first argument, Lensey asserts that the findings of the Board were not supported by the showing made by the City of Shreveport (“the City”) that her conduct in Bossier City, while off-duty, impaired the efficient operation of her employer, the Shreveport Police Department or violated any policies or rules of the Shreveport Police Department concerning off-duty conduct.

|9In considering the showing made by the City at the Board hearing, Chief Roberts, the appointing authority, testified as follows:

Mr. Jones: Why did you terminate Ms. Lensey?
Chief Roberts: Ah, basically unbecoming conduct of a Shreveport Police Officer. Ah, and abuse of her position to obtain offense reports from Bossier City Central Records Department.
Mr. Jones: Why do you feel like what they’ve heard today supported your actions? What led you to the termination?
Chief Roberts: Well it was just a review of the entire situation that night. Ah, we had apparently some people that had been consuming alcohol. They were left in Shreveport apparently they purchased a ticket and missed the bus in Shreveport for whatever reason. I don’t know. Ah. Followed this bus to Bossier City ah in a confrontation with some of passengers vehicle became ah in a confrontation with the bus driver on this particular bus. Simple battery occurred, a fight ensued. Sound like the situation got out of hand. And then Ms. Lensey interjects herself into it and creates an additional disturbance and apart from what the Officers were trying to work and work out and of course bring the Shreveport Police into the mix. I think her conduct was unbecoming and not what I expect of a Shreveport Police Officer. (Civil Service transcript pages 53-54).

Lensey testified that she never interfered with the investigation carried out by the Bossier City officers. In fact, Lensey testified that she stood back and observed the incident from the start to the finish, which lasted about 45 minutes. When asked why she identified herself as a Shreveport Police Officer, she testified that since she was a witness to the events, she wanted the Bossier City officers to accept her recitation of the facts as credible. Lensey testified that even though Viola had placed her under arrest, she heard Delrie verbally order the arrest. She testified that she was only asked to get in her car one time, but before she could do so, Imshe was detained by Delrie for information and subsequently arrested.

The district court found that the fact that Lensey was off-duty did not justify or excuse her conduct, particularly in light of the fact that she continued to bring up the fact that she was a Shreveport Police Officer. The district court went on to state that under R.S. 33:2500, Chief Roberts may take such disciplinary action as the circumstances warrant in the event of “conduct of a discourteous or wantonly offensive nature to the public, any municipal officer or employee” and for “disgraceful” conduct. The court then concluded that, without doubt, there existed substantial evidence in the record that Lensey manifested conduct of a “discourteous or wantonly offensive nature to a municipal employee.”

On the instant record, the Board and the trial court were entitled to find that Len-sey’s conduct at the Bossier City bus terminal and at the Bossier City jail was discourteous, offensive and improper. Likewise, it may be concluded that Len-sey’s call to the traffic clerk for the Bossier City Records Department two days after her arrest was also improper, to the extent Lensey sought and obtained a free copy of her incident report based on a police courtesy. The later conduct is mitigated by the testimony of Howard, who testified that she freely extended the courtesy copy to Lensey with the knowledge that Lensey was the arrested party in the incident report.

The issue therefore is whether the City demonstrated by a preponderance of the evidence that Lensey’s discourteous or wantonly offensive conduct in violation of R.S. 33:2500 A(5), did in fact, impair the otherwise efficient operation of the Shreveport Police Department, which is hia mandatory showing for cause when terminating civil service employees. La. Const. art. X, § 8; Newman, supra; Leggett, supra; Walters, supra; Bannister, supra; Laborde, supra.

The only evidence to support the City’s burden of proof was the testimony of Chief Roberts. He expressed the opinion that Lensey’s conduct at the Bossier City bus terminal, Bossier City jail and with the traffic clerk, Howard, constituted unbecoming conduct of a Shreveport Police Officer and was an abuse of Lensey’s power as a Shreveport Police Officer. When asked exactly why he terminated Lensey, he replied very simply that Lensey’s conduct in declaring she was a Shreveport Police Officer during the incident investigation by the Bossier City Police Officers, and rudely interjecting her professional opinion as to the incident, necessarily threw the Shreveport Police Department into “the mix” of the bus terminal investigation. Chief Roberts concluded that he believed Lensey’s display was unbecoming and not what he expected from one of his officers.

No witness other than Chief Roberts testified that Lensey’s conduct impaired the efficient operation of the Shreveport Police Department. Thus, his testimony is pivotal as to this essential showing.

On close review, we find this evidence insufficient to prove that Lensey’s conduct impaired the efficient operation of the Shreveport Police Department. The jurisprudence delineates what kind of conduct must be proved to make an adequate showing of impairment.

In Leggett v. Northwestern State College, supra, Leggett was employed as a college watchman at Northwestern State College, which required him to counsel with student couples, and in the event of improper conduct, to take them to the appropriate dean for review; to exercise discretion in his relations with the students, and to maintain their respect. Leg-gett was fired for operating a business in downtown Natchitoches, which business was found by the Civil Service Commission to be a house for prostitution. The Commission found that it would be detrimental to the efficiency of Leggett’s service as a watchman at the college to retain him as such. Id. at 940, 140 So.2d 5.

In Newman v. Department of Fire, supra, Newman was a veteran firefighter with the rank of captain. While on-duty, Newman left the firehouse unannounced with another firefighter to obtain a meal and was gone for almost two hours. While Newman was away, his unit was called to an alarm and was under-manned due to his absence. Newman was demoted in rank and cited for failure to notify in case of absence, absence without permission and failure as a captain to enforce discipline and to maintain efficiency. The Court concluded that the testimony proved, beyond the cited violations, that his actions dangerously reduced the manpower level and efficiency of the station unit in violation of the department policy, and in violation of his duty as a fire captain and unit commander. The Court added that only refusing to fight a fire would be considered a greater dereliction of duty. Id. at 755.

Similarly, in McIntosh v. Monroe Mun. Fire, Etc., 389 So.2d 410 (La.App. 2 Cir.1980), a fireman was discharged because he had been arrested three times and convicted twice in 28 months for the offense of DWI. McIntosh was off-duty, but was required to be on-call at all times. McIntosh’s dismissal was confirmed by this court, which concluded that “obviously there is a real and substantial relationship between the rule prohibiting intoxication of an off-duty, on-call fireman and the public service offered by the fire department[.] The on-call requirement is patently necessary in the case of emergencies and catastrophes, and a fire department should be able to maintain themselves in a reasonable state of readiness and efficiency even though off-duty.” Id. at 413.

Also, we find in Powell v. Alexandria Fire & Police, 476 So.2d 1109 (La.App. 3 Cir.), writ denied, 479 So.2d 362 (1985), that a police officer was suspended for four days after being involved in a traffic accident. Prior to the accident, he received a radio call summoning him to back up a primary unit responding to a disturbance about four miles from his location. The court found legal cause for the police officer’s suspension, noting that his conduct, failing to insure that the intersection was clear before proceeding through a red light, impaired the efficient operation of the department by preventing him from completing his assignment. Id. at 1111.

In Shields v. City of Shreveport, supra, two Shreveport Police officers were terminated in good faith and for cause when, by their own admissions, they were found in violation of several departmental regulations while performing security duty at a high school reunion party in Shreveport, while [14in uniform and armed. The officers admitted to leaving the duty premises two times to purchase alcohol. They left the premises without notifying a superior, consumed alcohol and fell asleep, all while being paid to perform a security service. The court found that the officers’ conduct posed a serious danger to the safety of others, that the disciplinary action was taken for valid legal cause and that the officers were properly removed from the civil service. Id. at 964, 965.

Similar in facts to Lensey are the Third Circuit off-duty police cases of Laborde, supra, and Thibodeaux v. City of Opelousas, 97-1574 (La.App. 3 Cir. 7/22/98), 717 So.2d 254, writ denied, 98-2768 (La.12/18/98), 731 So.2d 277. Both cases deal with intoxicated off-duty police officers who were involved in reprehensible conduct. Laborde involved an Alexandria police officer and member of the DWI Task Force, who became intoxicated while off-duty and drove his car away from a bar at 2:30 a.m. After speeding through the City of Pineville, with Pineville police officers in pursuit, Laborde’s car came to rest on the grounds of the Central Louisiana State Hospital, after driving over handrails, shrubbery and striking an air conditioning unit. When the Pineville police officers made contact with Laborde, he identified himself as a police officer; he was arrested for DWI, after which the City of Alexandria terminated him. This action was upheld by the Board and trial court. Id. at 428, 429.

At the Board hearing in Laborde, when asked why he recommended that Laborde be terminated from employment, Chief of Police Glen Beard responded:

|1S“I just felt like it was conduct unbecoming an officer and I felt I didn’t want people like that representing the police department, and I feel I have a responsibility to the police department and it was my judgment to recommend that to the mayor.” Id. at 431.

The court of appeal held that when La-borde’s accident and subsequent arrest occurred, Laborde was off-duty and driving his own personal vehicle. He was not on patrol as a member of the Alexandria Police Department DWI Task Force. Id. The City produced no evidence whatsoever which tended to prove that Laborde’s conduct was detrimental to the efficient operation of the police department or violated any rules or regulations concerning off-duty conduct of a police officer. Id. at 432. The Third Circuit reversed Laborde’s termination.

In Thibodeaux, an intoxicated off-duty Opelousas police officer ran off the road outside the city limits of Opelousas, left the scene on foot and entered a home without the consent of the owners around of 2:30 a.m. The owners were awakened by Thibodeaux at their bedroom door. Thibo-deaux pulled out his police badge and announced he was a police officer responding to a 911 call from the house, which was, of course, untrue. The owners called the Opelousas Police Department to verify the alleged call and there was no record of any such call being made. In the meantime, the Opelousas Police Department was called to the scene of Thibodeaux’s truck, finding his revolver on the truck seat. Not knowing what had happened to Thibo-deaux, the Opelousas Police began an investigation which led them to Thibodeaux, who appeared intoxicated. He was consequently arrested for reckless driving and DWI. The City of Opelousas terminated Thibodeaux. Relying on Laborde, the trial court reversed the ^Board’s decision to terminate, finding that Thibodeaux’s actions, although embarrassing to the Opel-ousas Police Department, did not give rise to a termination from employment. Furthermore, the trial court found that Thibo-deaux’s off-duty actions did not affect the efficient and orderly operation of the Opel-ousas Police Department and that the Board failed to make a showing of any impairment, citing Laborde, supra, at 255, 256 and 258.

In distinguishing Laborde, the Third Circuit Court in Thibodeaux, pointed out that “In Laborde, we held ‘[t]here is no evidence in the record which we can conclude that his actions impaired the operation of the Alexandria Police Department or violated any policies or rules or regulations concerning off-duty policemen.’ Laborde, 566 So.2d at 432. In Laborde, it was the City of Pineville’s police department that was primarily disrupted by La-borde’s misconduct, unlike here, where the Opelousas Police Department, of which Thibodeaux was a member, had to respond to his drunken misconduct and the chaos it created.” The court concluded, “It goes without saying that the use of department resources to deal with this complaint, perform these investigations, locate Thibo-deaux, and require off-duty police officers to come to work in the middle of the night is, of necessity, detrimental to the department’s otherwise efficient operation.” Id. at 259. “Therefore, we find that Thibo-deaux’s conduct on the night in question was clearly contrary to La. R.S. 33:2500 A(3) and (15). Further, that it was ‘detrimental to [the police department’s] efficient operation,’ and thus met the guidelines of Walters, 454 So.2d 106. Also, ‘there was a real |17and substantial relationship between the improper conduct and the “efficient operation” of the public service,’ thus meeting the guidelines of Bannister, 666 So.2d 641, for there to be cause for Thibodeaux’s dismissal.” Id. at 260.

As was found in Laborde, supra, we find no evidence in the record which would allow us to conclude that Lensey’s conduct impaired the efficient operations of the Shreveport Police Department. More specifically, as was the case in Laborde, Lensey, at the time of the bus terminal incident, was off-duty and in Bossier City. Bossier City police officers were the investigating and arresting officers, and there is no evidence whatsoever that the Shreveport Police Department participated in the investigation or arrest or assisted in calming the brouhaha at the Bossier City bus terminal. The only resource diverted from the Shreveport Police Department was Do-well being sent to the Bossier City jail to retrieve Lensey.

To the extent the Board in its discretion affirmed Lensey’s termination, the harshest measure of discipline, for her infractions, after the City and Roberts failed to demonstrate any showing of impairment to the efficient operation of the Shreveport Police Department, said affirmance is mandatorily deemed arbitrary and capricious and a manifestly erroneous basis for cause for her dismissal. See, Walters, supra; Newman, supra; Bannister, supra; Shields, supra; Laborde, supra; and Pearson v. Municipal Fire and Police Civil Service Bd. for the City of Shreveport, 609 So.2d 1038 (La.App. 2 Cir.1992).

11sThroughout our jurisprudential history, there are many cases clearly distinguishable from Lensey’s where the conduct of the civil service employee was demonstrated by a preponderance of the evidence by the Board to have, in fact, impaired the efficient operation of the public service.

This is not a matter of a reviewing court overruling a decision of a Board merely because we disagree with the severity of the penalty imposed; rather we find the City failed to meet its required burden of proof. See, City of Shreveport v. Willis, 33,680, (La.App. 2 Cir. 8/25/00), 765 So.2d 1245; Pearson, supra. On the record before us, we will amend the penalty to the maximum allowed by statute, 90 days without pay or benefits. La. R.S. 33:2500 B. Judgment will be rendered accordingly.

In her second argument before this court, Lensey maintains that the district court erred when it concluded that she failed to produce evidence of discrimination by the City resulting from her termination. The district court concluded that Lensey failed to make any showing of discrimination by the City.

Inasmuch as this court is reversing the action of the Board, her claims for discrimination are moot. Nevertheless, the burden of proof to establish a prima facie case of discrimination requires proof that (1) she is black; (2) she was qualified for the position; (3) she was discharged, either actually or constructively; (4) the position remained open and was ultimately filled by a person of the majority race. See, Moody v. Weatherford U.S., 35,882 (La.App. 2 Cir. 7/17/02), 821 So.2d 780, 783. Lensey simply failed to offer any evidence to meet this burden; her claim would therefore fañ. See, Moore v. Ware, 01-3341 (La.2/25/03), 839 So.2d 940. This assignment of error is moot and lacks merit.

Conclusion

For the foregoing reasons, the evidence does not support a finding of good faith or legal cause for the City’s termination of Lensey. We therefore reverse her termination and amend the punishment to the statutory maximum period of suspension for 90 days without pay or benefits, as provided in La. R.S. 33:2500 B. We render judgment awarding Lensey full pay and benefits from the date of her reinstatement, together with legal interest thereon until paid. We affirm the district court’s judgment dismissing Lensey’s claims for discrimination. The cost of this appeal in the amount of $389.60 is cast on the City. La. R.S. 13:5112.

REVERSED IN PART, AMENDED AND RENDERED.

      . The actual written notice given to Lensey does not appear in the instant record but at the hearing, Lensey’s counsel conceded that written notice had been received.


source: Caselaw Access Project

author: L STEWART, J.

license: Public Domain

text:
    FORD MOTOR CREDIT COMPANY, Plaintiff-Appellee, v. Henrietta H. GEORGE d/b/a Impact Apostolic Ministries and Henrietta H. George, Individually, Defendant-Appellant.
    No. 36,893-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Henrietta H. George, J.L. George, in Proper Person.
    Shows, Cali & Berthelot by E. Wade Shows, Counsel for Appellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   L STEWART, J.

This is an appeal from a summary judgment in favor of plaintiff, Ford Motor Credit Company, in an action on a retail installment contract. Appellant, Henrietta George, asserts on appeal that she has been denied due process because of “the lack of knowledge and financial resource required to obtain ... legal representation,” and that Ford Motor Credit Company has participated in what she describes as “predatory business activities.” For the following reasons, we affirm.

FACTS

In July 1999, Henrietta George, doing business as Impact Apostolic Ministries, entered into a retail installment contract with White Ford Lincoln Mercury of Winnsboro, Louisiana, in connection with the purchase of a 1999 Ford Econoline vehicle. George also signed the contract, individually, as Guarantor. George subsequently executed a Voluntary Repossession Agreement, and the vehicle was resold. Although the vehicle apparently sold at auction for $13,000, the Voluntary Repossession Agreement guaranteed a surrender value of at least $16,000. However, after application of that amount, Ford alleged that George still owed the sum of $8,674.84. In December 2000, Ford filed suit against George, both individually and d/b/a Impact Apostolic Ministries, seeking the sum of $8,674.84, plus interest, attorney’s fees of 25% of the total principal and interest due, and all costs.

George filed an answer in which she admitted entering into the contract, but which stated that she did not have “proper foreknowledge” of all the terms of the contract, including the acceleration clause providing for [ ¿immediate maturity of the note if an installment was not paid promptly. She also admitted executing the Voluntary Repossession Agreement, but stated that the vehicle was surrendered under duress. Finally, she asserted in Paragraph 12 of her answer:

Said Retail Installment Contract provision [sic] were not explained or at least pointed out in the “hurried atmosphere” of the petitioner’s agent/vendor, acting on behalf and in advance of this petitioner’s suit. Such agreements, under like circumstances with a more “gullible” characteristic have become a pattern for such hard sell cmpaigns [sic] of Ford Motor Credit Company and or its agents/vendors.

In May 2002, Ford filed a motion for summary judgment, including a copy of the Retail Installment Contract and the affidavit of an Administrative Supervisor for Ford setting forth the affiant’s personal knowledge of the outstanding balance due. A second affidavit by Ford’s counsel was filed in support of an award of attorney fees in the amount of 25% of the principal and interest. The appellate record does not indicate that George filed any opposition to the motion for summary judgment. On July 24, 2002, the court granted Ford’s motion for summary judgment, awarding the sum of $8,674.84 plus interest of 4.9% from date of judicial demand until paid, together with attorney’s fees of 25% of the total of principal and interest due and owing, and for all costs of the proceedings. This appeal followed.

DISCUSSION

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary | ¿judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). When a motion for summary judgment is made and supported as provided by law, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967.

Ford’s motion for summary judgment was made and supported as provided by law. George could not then rest on the allegations of her answer, but had to respond, through affidavits or as otherwise provided by law, and set forth specific facts showing a genuine issue for trial. This she did not do. Accordingly, summary judgment was properly rendered against her.

Although she made allegations in her answer concerning lack of knowledge of the terms of the contract and of “hard sell” campaigns by Ford, no facts were ever placed before the court in support of these assertions. Similarly, on appeal George asserts “predatory business activities” on the part of Ford, but there is no evidence in the record to support these allegations. An appeal record includes the pleadings, court minutes, transcript, jury instructions, judgments, and other rulings unless otherwise designated; facts referred to solely in arguments of counsel, in 14brief or otherwise, are not considered record evidence. Thomas v. Connolly, 31447 (La.App.2d Cir.1/20/99), 726 So.2d 1052.

Finally, as previously noted, George seems to raise for the first time on appeal a due process argument based on her lack of financial resources to obtain legal representation. George defended this matter on an in forma pauperis basis in accordance with the provisions of La. C.C.P. art. 5181 et seq., which entitled her to proceed without payment of court costs pending the outcome of the matter. However, these provisions do not provide for the appointment of counsel for indigent parties in civil matters. Since this is not a criminal matter, George is not entitled to representation as required in criminal matters by virtue of the Sixth Amendment of the United States Constitution. We know of no legal authority requiring the appointment of counsel for George in this civil matter. In Lay v. McElven, 96-1325 (La.App. 1st Cir.3/27/97), 691 So.2d 311, the appellate court noted that constitutional due process requires the appointment of counsel to indigents in civil matters when fundamental constitutional rights are involved, but the court concluded that recovering damages for a violation of one’s civil rights is not a fundamental constitutional right which would entitle an indigent plaintiff to appointed counsel. Likewise, suit on a retail installment contract does not involve issues of fundamental constitutional rights. We find that a defendant in a suit on a retail installment contract is not entitled as an indigent defendant to appointed counsel.

IsCONCLUSION

For the reasons set forth above, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: JjPEATROSS, J.

text:
    AVALLONE ARCHITECTURAL SPECIALTIES, L.L.C., Plaintiff, v. DBCS CORPORATION, et al, Defendants.
    No. 36,971-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Wiener, Weiss & Madison, by John M. Madison, Jr., Shreveport, for Appellant, Caddo Parish School Board.
    Booth, Lockard, Politz, Lesage, Hayter & Odom, by John 0. Hayter, III, Shreveport, for Appellee, Avallone Architectural Specialties, L.L.C.
    Louis Raphael Avallone, Downer, Hammond & Wilhite, L.L.C., By: Kevin W. Hammond, for Appellee, Patterson Insurance Company.
    Michael D. Corbell, In Proper Person, Individually and as Sole Shareholder of DBCS Corp. and Design Build Development Services.
    Before STEWART, PEATROSS & MOORE, JJ.
   JjPEATROSS, J.

This is a suit to enforce a labor and materialman’s lien under the Public Works Act by a subcontractor for work performed on a public works project on property owned by the Caddo Parish School Board (“School Board”). Plaintiff, Avallone Architectural Specialties, L.L.C. (“Avallone”), initially filed suit against the general contractor and the School Board. Subsequently, Patterson Insurance Company (“Patterson”), the bid bond surety, was made a defendant in the suit by way of a third party demand filed by the School Board. Patterson filed a motion for summary judgment, which the trial court granted, thereby dismissing Patterson from the suit. The School Board appeals the trial court’s ruling on summary judgment. For the reasons stated herein, we affirm.

FACTS

In 1999, the School Board solicited bids for renovations to one of the School Board’s buildings on Knight Street in Shreveport (“the project”). Design Build Development Services, Inc. (“Design Build”), a Louisiana corporation owned by Michael Corbell, was one of the two bidders. Mr. Corbell also owned DBCS Corporation (“DBCS”), another Louisiana corporation. The School Board required bidders to submit a bid bond along with a bid and Mr. Corbell requested that Patterson issue a bid bond to secure his bid on the project. Patterson issued a bid bond for the project in |¡>the name of DBCS and the bid bond was submitted to the School Board with the bid of Design Build.

The School Board accepted Design Build’s bid and entered into an oral contract with Design Build for the renovation work on the project. The School Board issued a Notice to Proceed to Design Build on June 2,1999, which noted that “contract documents would be forthcoming.” The fact that these contract documents were never executed is not in dispute and no such documents were filed with the Caddo Parish Clerk of Court. In addition, while Superintendent Robert Schiller’s affidavit states that a payment and performance bond would be required of the successful bidder, no payment and performance bond on the project was ever furnished by Patterson or any other surety. Nonetheless, the work was performed by Design Build; and, on January 26, 2000, a certificate of substantial completion was issued and filed with the Clerk of Court. The School Board paid Design Build a total of $750,000 for work performed. Apparently, however, at least one of the subcontractors and suppliers, Avallone, was not fully paid by Design Build.

In May 2000, this suit was filed by Aval-lone alleging that it had not been paid in full for materials supplied for the project and further alleging the School Board’s liability for failure to secure a payment and performance bond from the contractor, Design Build. Subsequently, the School Board filed a third-party demand naming Patterson as defendant and alleging that [¡¡Patterson was liable to the School Board as surety on the bid bond it had issued to DBCS.

Patterson responded with a motion for summary judgment contending, in part, that it had only issued a bid bond, not a payment and performance bond; and, therefore, it could not legally be held liable as surety for the work performed or materials supplied by a subcontractor on the project. Patterson argued that the School Board’s failure to obtain a contract and a payment and performance bond barred the School Board’s claim against Patterson as surety. The trial judge agreed, specifically stating:

... the Court does find merit in Patterson’s motion that [the School Board] did not require Design Build to obtain a performance bond. The only bond which Patterson issued in connection with the Knight Street project was a bid bond, the purpose of which was to ensure that Mr. Corbell, if determined to be the low bidder, would accept the contract for the amount bid (sic). As succinctly stated by counsel for Patterson: ‘The damages available under a bid bond are to cover the cost of rebidding or having the contract performed at a higher price. They are not available to serve as a proxy for a performance bond which the School Board failed to obtain. Patterson’s motion is that simple.’
Because [the School Board] issued a Notice to Proceed, authorized construction and paid the contractor without obtaining either a written contract or a payment or performance bond, there is no genuine issue of material fact as to Patterson.

With this ruling, Patterson was dismissed, with prejudice, from the suit. This appeal ensued.

DISCUSSION

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and the procedure is favored |4and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

The Public Works Act provides a detailed procedure in the letting of public contracts. La. R.S. 38:2216 requires that:

a written contract shall be entered into by the successful bidder and the public entity letting the contract, and the party to whom the contract is awarded shall furnish good and solvent bond in an amount not less than one-half of the amount of the contract, for the faithful performance of his duties.

Further, La. R.S. 38:2241(A)(2) provides that the public entity shall require a payment bond for contracts in excess of $25,000. The scope and purpose of this section requiring a bond in connection with construction of public works is to protect the public authority from loss and expense arising out of the failure of the contractor to faithfully perform the contract. Town of Winnsboro v. Barnard & Burk, Inc., 294 So.2d 867 (La.App. 2d Cir.1974), applications denied, 295 So.2d 445. In addition, La. R.S. 38:2215(C) clearly states that, upon execution of the contract, the public entity has 30 days in which to issue a Notice to Proceed with the project.

|Jn the case sub judice, none of the above statutory procedures were followed. The School Board issued a Notice to Proceed with the project without a written contract and without a payment and performance bond having been procured and furnished by Design Build. The requirements of the Public Works Act are mandatory and a public entity does not have the discretion to dispense with the formalities of contract and bond. Indeed, any contract not in compliance with the Public Works Act, including the requirement of a payment and performance bond, is null and void. Davis v. Franklin Parish School Board, 412 So.2d 1131 (La.App. 2d Cir.1982), writ denied, 415 So.2d 942 (La.1982). Moreover, in Police Jury of Parish of Avoyelles v. Gaspard, 161 La. 70, 108 So. 128 (La.1926), the supreme court, applying Section 1 of Act 224 of 1918, an early version of Louisiana’s Public Works Act, specifically held that, where a contract for the construction of a parish road was not reduced to writing and no bond was exacted therefor, the public entity was liable for hens for labor on the public works project.

In the present case, the School Board disregarded the mandatory requirement of delivery of an executed written contract and a payment and performance bond. It is because of its failure to secure such contract and bond that it is faced 'with a claim of an unpaid subcontractor, Aval-lone, after it had already paid the general contractor, Design Build. In an effort to reduce its liability, the School Board now argues that the bid bond should cover a portion of its liability to Avallone. We are not persuaded by the School Board’s argument.

IfiThe bid bond in the case sub judice reads, in pertinent part:

... Patterson Insurance Company ... [is] ... firmly bound unto Caddo Parish School board ... as Obligee ... in the sum of Five Percent Greatest Amount of Bid Dollars (5% GAB) ...
NOW THEREFORE, if the Obligee (School Board) shall accept the bid of the Principal (Design Build) and the Principal shall enter into a Contract with the Obligee in accordance with the terms of such bid and give said bond or bonds as may be as specified in the bidding or contract documents with good and sufficient surety for the faithful performance of such contract and for the prompt payment of labor and material furnished ... or in the event of the failure of the Principal to enter such Contract and give such bond or bonds, if the Principal shall pay to the Obligee the difference not to exceed the penalty hereof between the amount as specified in said bid and such larger amount for which the Obligee may in good faith contract with another party to perform the Work covered by said bid, then this obligation shall be null and void, otherwise to remain in full force and effect.

The School Board argues that the above-quoted language guaranteed that Design Build would sign the contract and furnish the payment and performance bond, which it did not do. According to the School Board, Patterson is, therefore, liable on the bid bond for five percent of Design Build’s bid amount. We disagree.

The School Board has excised this portion of the text from the bid bond and would have us adopt a literal and out-of-context interpretation of this language. While we do recognize that, by its terms, the bid bond insures that the bidder sign the contract and furnish the bond once the bid is accepted, it further provides that, if the bidder fails to do so, the surety pays for the difference between the bid amount and the amount the School Board, in good faith, would have to expend to have someone else perform the \r¡work not to exceed “Five Percent Greatest Amount of Bid Dollars.” The bid bond, therefore, is intended to operate in the situation where, due to the bidder’s failure to proceed with the project on acceptance of its bid, the public entity is required to expend additional resources and funds to secure an alternate contractor for the project. A bid bond is not intended to operate in a situation such as we have in the present case, where the contractor proceeds with the project, performs the work to substantial completion and is paid by the public entity. Security for payment for work performed on the project in the case sub judice was the mandatory payment and performance bond, which, in contravention of state law, the School Board failed to require of the successful bidder. The School Board may not now avail itself of the bid bond to reduce its liability incurred as a result of its failure to comply with the Public Works Act. Our de novo review of the uncontested facts in the case sub judice reveals no genuine issue of material fact as to Patterson. We conclude, therefore, that the trial court properly granted Patterson’s motion for summary judgment.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. In accordance with La. R.S. 13:5112, we assess the costs of this appeal against the Caddo Parish School Board in the amount of $312.

AFFIRMED.

      . The fact that the bid bond was actually issued in the name of DBCS and the bid on the project was submitted under Design Build's contractor's license number was raised as an issue in the motion for summary judgment. In his ruling on summary judgment, the trial judge found the confusion of corporate names to be of no significance for purposes of enforcement of the bid bond and this finding has not been raised as an issue on appeal.

      . Also note that La. R.S. 38:2218(A) provides that a public entity advertising for bids for work may require the bidders to attach a certified check, cashier's check or bid bond. Requirements of a bid bond, therefore, are permissive in nature and are susceptible to waiver. See L & M Demolition, Inc. v. City of New Orleans, 534 So.2d 27 (La.App. 4th Cir.1988), writ denied, 537 So.2d 1173 (La.1989). This is in stark contrast to the mandatory requirement of performance bond of La. R.S. 38:2241(A)(2).


author: 1, GASKINS, J.

text:
    Kerry McCOY and Theresa McCoy, Plaintiffs-Appellees, v. Ronnie LUCIUS and Mildred Lucius, Defendants-Appellants.
    No. 36,894-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.
    Rehearing Denied April 3, 2003.

      Lavalle B. Salomon, Monroe, Counsel for Appellants.
    William H. Hallack, Jr., Monroe, Counsel for Appellees.
    Before GASKINS, CARAWAY and MOORE, JJ.
   1, GASKINS, J.

The defendants, Ronnie and Mildred Lucius, appeal from a judgment awarding damages to the plaintiffs, Kerry and Theresa McCoy, as a result of injuries sustained by the McCoys’ dog. For the following reasons, we reverse.

FACTS

The plaintiffs and the defendants are neighbors in West Monroe, and this lawsuit concerns injuries suffered by the McCoys’ dog in a fight with two dogs kept by the Luciuses.

The McCoys own a 10-pound Maltese dog named Jody. The dog is approximately 12 years old. Although Jody was a small dog, she had a reputation in the neighborhood for aggressiveness. Mr. McCoy described Jody as “one of those little yapping dogs.” On previous occasions while running free, Jody had bitten several neighborhood residents. One resident testified that Jody had charged her and her dog, causing her to fall, break her arm and knock her tooth loose; she said that she did not tell the McCoys that this had occurred because her insurance paid her medical bills. Mrs. Lucius said that she first met the McCoys after Jody bit one of the Luciuses’ grandchildren. After another biting incident where the victim required medical attention, the McCoys decided to keep Jody leashed in their yard when outside, along with their other dog, Max.

The Luciuses were caretakers of two dogs that belonged to their grandchildren. One of these dogs was a weimaraner named Trunks that at the time of this incident was between six and nine months old, two feet tall and weighed about 60 pounds. The other dog was a boxer named “Prince | {.Vegeta” that was slightly older than Trunks. Mrs. Lucius said that for a time these dogs were kept inside the house and were occasionally allowed outside to play; other neighbors said that the dogs routinely ran loose in the neighborhood and overturned trash cans.

Mr. McCoy said that on January 1, 2001, he broke up a fight between the Luciuses’ boxer and another neighborhood dog near his property. Both dogs had apparently been wandering loose; Mr. McCoy said that the boxer was very aggressive toward the other dog. Mrs. Lucius did not recall this incident even though Mr. McCoy said that he had brought the injured dog and the boxer to the Luciuses’ house and told Mrs. Lucius about the fight. Mr. Lucius said that he vaguely remembered the incident.

In another incident shortly after Easter in 2001, a neighbor saw the Luciuses’ boxer carrying a dead rabbit in its mouth on the McCoys’ property. The rabbit had been one of at least two rabbits that were Easter presents from the McCoys to their young daughters. The McCoys discovered that the rabbits’ cage had been destroyed and that the cage was full of dog hair. The Luciuses offered to pay for the damages, but nothing further was said about the incident and no payment was made. The boxer may also have killed rabbits belonging to another neighbor earlier in the year. Shortly after the incidents with the rabbits, the dogs were picked up and placed in the pound. After being informed of that fact by their veterinarian’s office, the defendants picked up the dogs.

By May 2001, Mrs. Lucius was keeping the dogs in a pen in her yard. She also said that the dogs had been to obedience school. At that time, no |3fence separated the property of the McCoys and the Luci-uses. On May 9, 2001, Mrs. Lucius was in her yard exercising the weimaraner and boxer; she said that the dogs were on leashes. She described the ensuing events:

A: I was putting my dogs up in their port-a-pen beside Ronnie’s garage and their dogs (sic) ran up the hill right there. It’s kind of sloped there and the dog ran up charging us. And when it did, these two jumped on it. I could not hold them.
Q: Did your dogs get loose from their leash?
A: Yes, they did, out of my hand.
Q: And what happened when they got loose from the leash?
A: Then they started ... that dog was still coming and they ran that a way and the dog was still barking and then it turned and run because they were nipping at it then. And it started running and they caught it right down there around Ronnie’s shop, right behind his shop.... The dog ... one had one end and one had the other and the dog just ... I thought they had killed the dog....

Mrs. Lucius was the only witness to the dog fight. She said that she did “nothing” when the dogs attacked the little dog. Mrs. Lucius said that she had the dogs in her sight the entire time of the incident and at no time did they go onto the McCoy’s property. Mr. Lucius said that he came out to put the boxer and weimar-aner in their pen and saw Jody lying on his property.

The McCoys’ other dog, Max, was leashed to the McCoys’ tree during the entire incident. Mr. McCoy said:

A: Both my dogs were on those [“screw-type deals (with a) chain (and) a cable.”] And when I got outside, what I saw was the screw was in the ground, the cables are there and there’s a leash and the leash is not broken, the leash is hooked together like it always is and there’s hair about and it looks like to me, that the dog was just pulled through its own collar.
[Objection by defense counsel.]
14A: Well, with hair there and, you know, what was left there, it looked that way to me. So-
Q: Did you see hair anywhere else?
A: Yeah, about 10 or 15 further down towards the lake, on my property there was a whole bundle of hair. I would say a foot radius or so.

Madge Smith, who lives across the street from the Luciuses and McCoys, said that she was standing in her driveway on May 9, 2001 when she saw the Luciuses, along with their daughter Cindy and her husband Doug, walking from their house towards the McCoys’ house. Ms. Smith said that one of them was carrying an empty folded black plastic bag. She said that the group walked “to the backyard behind the house, behind the McCoys’ house, in their backyard” to a point where she could no longer see them. She said that the group returned a few minutes later carrying the bag “with something in it.”

Doug Haynes, the Luciuses son-in-law, said that he and his wife, Cindy, came to the Luciuses’ house after being called and found Jody lying behind the carport on the Luciuses’ property. Believing that the dog was dead, Doug put the dog in a bag. Cindy Haynes said that Jody was lying on the Luciuses’ property and that she carried the bag containing Jody and put the bag in the back of her car.

Mrs. Lucius called Mrs. McCoy who then came over and got her dog. Some harsh words were passed among the parties. Mrs. Lucius testified that she overheard Mrs. McCoy telephone someone and say “Jody is dead and it’s all my fault and I don’t guess I put his collar on tight enough.” Soon thereafter, Mrs. McCoy discovered that the dog was alive. Mrs. McCoy | Ktook the dog to the veterinarian. Jody was treated for 12 days and released; the veterinarian’s bill was for $462.58. The dog made a full recovery from her injuries.

The McCoys sued the Luciuses for Jody’s veterinary bill, as well as for damages for the loss of their rabbits and cage. The Luciuses answered the lawsuit with general denials, but did not plead comparative fault. After hearing the evidence, the court ruled in favor of the McCoys on the claim for the rabbits, but took under advisement the claim regarding the veterinary bill. The court subsequently issued a judgment in favor of the McCoys, finding that the “defendants failed to establish by a preponderance of the evidence that they were free from fault.” The court stated that the defendants knew or should have known of the dangerous propensities of their dogs and that the damage caused by the dogs could have or should have been prevented. The Luciuses now appeal.

DISCUSSION

The defendants argue that the trial court erred in granting recovery to the plaintiffs for their veterinary bill. This argument has merit.

Prior to 1996, under La. C.C. art. 2321, the master of a domesticated animal was presumed to be at fault when the animal harmed another. The nature of the fault was strict liability. The plaintiff was required to prove that the defendant owned the animal causing the harm, that the animal created an unreasonable risk of harm, and that the damage occurred through this risk. The standard of strict liability required that the damage be caused |f;by a vice or aspect of the thing which created an unreasonable risk of harm. Unlike the standard of negligence, a defendant was liable for harm caused by a thing whether or not he was aware of the unreasonable risk of harm. The defendant could escape liability by showing that the harm was the fault of the victim, the fault of a third person for whom he was not responsible, or by a fortuitous event.

In 1996, La. C.C. art. 2321 was rewritten and now provides:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person’s provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. [Emphasis supplied.]

By the 1996 revision, the legislature has abolished strict liability under this article for damage caused by animals other than dogs. However, the revision retains strict liability for dog owners. As a result of this revision, there is no longer any reason for the court, in determining liability, to consider whether the dog owner knew or should have known that the dog’s behavior would cause damage or whether the dog owner failed to exercise reasonable care as would have prevented the damage. Pepper v. Triplet, 2002-0022 (La.App. 1st Cir.12/20/02), 834 So.2d 624. The effect of the 1996 revision is a three-part test for assessing the liability of a dog owner. First, the dog must have actually caused the damage to the plaintiffs person |7or property. Second, the owner must have been able to prevent the damages, but failed to do so. Third, the damages must not have been caused by the injured person’s provocation of the dog. Allen v. State Farm Fire and Casualty Company, 36,377 (La.App.2d Cir.9/18/02), 828 So.2d 190, writ denied, 2002-2577 (La.12/19/02), 833 So.2d 343. See also Pepper v. Triplet, supra.

The trial court’s reasons for judgment do not show that the court explicitly considered and applied the revised version of La. C.C. art. 2321 to the facts presented. The court stated that the defendants failed to establish by a preponderance of the evidence that they were free from fault. The court ruled that the defendants knew or should have known of the dangerous propensities of their dogs and the damage was a foreseeable risk of harm that the defendant could have prevented. Because the court did not apply the law as written in the 1996 revision of the code article, the correct burden of proof was not applied. Where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable and, if the record is otherwise complete, the reviewing court should make its own independent de novo review and assessment of the record. See Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502. Therefore, we will conduct a de novo review of the issues presented in this matter.

There is no dispute that the dogs kept by the defendants caused the damage to the plaintiffs’ dog. The two remaining elements of La. C.C. art. | «2321 are whether the owner was able to prevent the damage, but failed to do so, and whether the defendants’ dogs were provoked.

We find that the defendants’ dogs were provoked. Mrs. Lucius testified that Jody charged her and her dogs at the commencement of the incident, and she said that Jody was “still coming” when her dogs escaped from her control. She testified:

Q: And what was the maltese doing? Was it just coming up and licking you on the leg or licking the other dogs?
A: No, it came up barking and running. I mean, just like it was just fixing to get us.
Q: Okay. And that obviously got the attention of the two somewhat larger dogs?
A: Correct.
Q: And then they got loose because of the other dog running toward them, I guess, yipping, for lack of a better term?
A: Yeah.

Also, as noted, Mrs. Lucius was aware of Jody’s reputation for aggressive behavior and she said that Jody continued to charge until her dogs escaped from her control. The overwhelming majority of the evidence placed the site of the incident on the Luciuses’ property, and while this does not absolve the Luciuses from responsibility, it tends to corroborate Mrs. Lucius’ testimony that Jody provoked the incident by charging her two dogs on their territory.

3 La. C.C. art. 2321 speaks of “the injured person’s provocation of the dog” (emphasis added). This raises the question of whether the defense of provocation may be raised in a case for damages to a dog. There are comparatively few “dog-bites-dog” cases in the jurisprudence, see, e.g., Goldberg v. Ruckstuhl, 408 So.2d 374 (La.App. 1st Cir.1981), and none since the revision of La. C.C. art. 2321. However, we find that provocation under La. C.C. art. 2321 may be imputed to animals as well as to people. The defendants clearly established through independent testimony that Jody was prone to be aggressive toward people and other dogs. A dog that aggressively charges another dog may provoke an aggressive response from the dog being charged, and that appears to be what occurred in this case.

Although the defendants’ dogs caused the damage to the plaintiffs’ dog, the attack was provoked by the plaintiffs’ dog. Because the plaintiffs failed to prove an unprovoked attack on their dog by the defendants’ dogs, under La. C.C. art. 2321, they failed to carry their burden of proof in this case.

CONCLUSION

For the reasons stated above, we reverse the trial court judgment granting recovery to the plaintiffs for the injuries sustained by their dog. The unfortunate injuries to Jody and the resulting damages for her veterinary care are not the responsibility of the Luciuses. The uncontrovert-ed evidence shows that the small dog charged the larger dogs as if to attack them and that this provoked the larger dogs to attack Jody.

| ^Accordingly, we hereby reverse that portion of the trial court judgment granting recovery to the plaintiffs for their veterinarian bill in the amount of $462.58. The award of $50 for the rabbits and cage is not before us on appeal and is not affected by this reversal. Costs of this appeal are assessed to the plaintiffs, Kerry and Theresa McCoy.

REVERSED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, CARAWAY, KOSTELKA, and MOORE, JJ.

Rehearing denied.

      . The defendants do not argue that the trial court erred in granting recovery to the plaintiffs in the amount of $50 for the loss of their two rabbits and the destruction of the cage.

      . We note that La. C.C. art. 2321 makes no exception to strict liability for damages incurred by trespassers as such, so the fact that Jody was on the Luciuses’ property is irrelevant to this portion of the inquiry. Compare Pepper v. Triplet, supra, citing Vidrine v. White, 352 So.2d 776 (La.App. 3d Cir.1977), writ denied, 354 So.2d 1376 (La.1978). The Luci-uses were not the owners of these dogs, but they were the dogs' masters and harbored the dogs on their property. The jurisprudence has extended the liability under the various iterations of La. C.C. art. 2321 to such persons. See, e.g., Thompson v. Sicard, 385 So.2d 334 (La.App. 1st Cir.1980), writ refused, 386 So.2d 355 (La.1980).


author: hKOSTELKA, Judge Pro Tempore.

text:
    Gary D. HALE, Plaintiff-Appellant, v. Michael CORLEY and Gene Corley, Defendant-Appellee. Erica D. Hudson and Tava M. Hudson, Plaintiffs-Appellants, v. Financial Indemnity Company, Defendant-Appellee.
    Nos. 36,911-CA, 36,912-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      John S. Stephens, for Appellant, Gary D. Hale.
    C. Don McNeil, for Appellants, Erica D. Hudson and Tava M. Hudson.
    Kitchens, Benton & Kitchens, by Paul E. Kitchens Michael, Minden, for Appellee, Gene Corley.
    Stamey & Miller, LLC, by Joseph B. Stamey, J. Mark Miller, Natchitoches, for Appellee, Financial Indemnity Company.
    Before DREW, MOORE and KOSTELKA (Pro Tempore), JJ.
   hKOSTELKA, Judge Pro Tempore.

Gary D. Hale, Erica Hudson, and Tava Hudson (collectively, the “appellants”) appeal a judgment of the First Judicial District Court in favor of Financial Indemnity Company (“Financial”), determining that a policy of insurance previously issued by Financial had been properly canceled. For the following reasons, we affirm.

Facts

These cases stem from a motor vehicle accident which occurred on January 31, 1997 involving vehicles driven by Casey Corley (“Casey”), Gary Hale (“Hale”), and Erica Hudson. Tava Hudson was a passenger in Erica Hudson’s vehicle. As claimed in the consolidated lawsuits of Hale and the Hudsons, the accident was caused by Casey’s negligent operation of a 1992 Ford F-150 pickup truck allegedly covered by a policy of insurance (the “policy”) issued by Financial in favor of Casey’s father, Michael Corley (“Michael”). Financial answered the lawsuit and denied coverage, stating that the policy had been canceled as a result of nonpayment of premium at a date previous to the accident.

The policy had an effective period of August 5, 1996 through February 5, 1997; however, a cancellation notice for nonpayment of premium was mailed by Financial to Michael at the address listed on the application which was stated to be P.O. Box 296, Sibley, Louisiana 71073. The notice stated that in the event the premium was not remitted by January 4, 1997, the policy would be canceled effective January 5, 1997. Payment was not made as requested, and the policy was canceled; thus, the vehicle | ^listed on the policy and driven by Casey was uninsured on the date of the accident.

A bifurcated trial on the issue of insurance coverage was held. Testimony was given by three witnesses: Casey, Michael, and Janet Hanson (“Hanson”), the general manager of Webster Insurance Agency, which sold the policy to Michael. After considering the evidence, the trial court granted judgment in favor of Financial finding that no insurance coverage applied. This appeal by Hale and the Hudsons ensued.

Discussion

The sole assignment of error raised by the appellants is whether the trial court erred in its determination that there was no insurance coverage on the date of the accident as a result of the policy being canceled for nonpayment of premium. Specifically, the appellants argue that the Proof of Service by Mail prepared by Financial stating that the notice of cancellation was mailed does not include a zip code, although it sets forth the street address, city and state to which the notice of cancellation was mailed. Appellants maintain that this omission on the certificate of mailing is fatal and is not sufficient proof that the notice of cancellation was properly mailed to either Michael or Casey. We disagree.

Louisiana R.S. 22:636.1 provides, in pertinent part, as follows:

B.(l) A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons: (a) Nonpayment of premium.
|aD.(l) ... when cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason therefor shall be given.... Notice of cancellation for nonpayment of premiums shall not be required to be sent by certified mail....
F. Proof of mailing of notice of cancellation, or of intention not to renew or of reasons for cancellation, to the named insured at the address shown in the policy, shall be sufficient proof of notice.

The burden of proving that an insurance policy has been canceled for nonpayment of premium prior to the date of a loss giving rise to the denied claim is on the insurer. Folds v. Protective Cas. Ins. Co., 26,323 (La.App.2d Cir.12/07/94), 647 So.2d 1215; Burge v. Allstate Ins. Co., 97-1087 (La.App. 5th Cir.04/15/98), 710 So.2d 1196, citing, Chapman v. Leger, 405 So.2d 604 (La.App. 3d Cir.1981). Where the evidence is sufficient to establish a prima facie case that the insurer mailed the cancellation notice in compliance with the relevant statute, the burden shifts to the insured to establish non-delivery of the notice. Burge, supra, citing, Gooden v. McMorris, 588 So.2d 783 (La.App. 4th Cir.1991), writ denied, 590 So.2d 1202 (La.1992).

Following the trial on the issue of insurance coverage, written Reasons for Judgment in favor of Financial were entered by the trial court, wherein the following factual determinations were made:

... Casey Corley received and ignored the notices mailed by Financial Indemnity [Company] ... thus, no coverage existed on the date of the accident, January 31, 1997 (cancellation having been made on January 5, 1997), because of nonpayment of premiums and cancellation — a fact which Casey Corley probably knew in light of his alleged flight from the accident scene, on January 31, 1997.

4 Although Financial’s Proof of Service by Mail failed to list the zip code as part of the mailing address, this one omission does not serve to invalidate the effectiveness of the policy’s cancellation in light of all of the evidence at trial. The statute does not mandate that proof of proper mailing of a notice of cancellation be only by sworn affidavit that such was mailed. In this case, the trial court had other documentary evidence before it (in addition to the disputed Proof of Service by Mail), as well as the testimony of witnesses that the notice of cancellation was mailed to “the named insured at the address shown on the policy....” Based on that, the trial court made a factual determination that the insured, i.e., Michael, had been properly notified of the cancellation of his insurance.

A court of appeal may not set aside a trial court’s findings of fact unless there is manifest error or the trial court is clearly wrong. Stobart v. State, through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). In applying this standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. If the fact-finder’s findings are reasonable in fight of the record, viewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Reasonable evaluations of credibility and inferences of fact should not be disturbed upon review where conflict exists in the testimony. Absent a finding of | .^manifest error, the judgment should be upheld. Peterson Contractors, Inc. v. Herd Producing Co., 35,567 (La.App.2d Cir.02/27/02), 811 So.2d 130.

Here, the trial court’s factual determination was entirely reasonable and not clearly wrong in fight of all the evidence before it. Although the Proof of Service by Mail prepared by Financial fists the address to which the Notice of Cancellation was allegedly mailed without the zip code, such an omission in fight of the other documentary evidence and testimony at trial is not critical. In other words, Financial was able to establish a prima facia case that the notice of cancellation was properly mailed to the mailing address made part of the policy and as required by statute.

The copy of the application of insurance produced at trial indicated a mailing address for the insured of P.O. Box 296, Sibley, LA 71073. Michael signed the application, stating that the information therein was “accurate and truthful.” On the application, Casey was fisted as an operator of the vehicle and was an insured pursuant to the terms of Financial’s Family Car Policy which was also an exhibit at trial. The declarations page, a part of the policy pursuant to its terms, also showed the mailing address for Michael to be P.O. Box 296, Sibley, Louisiana 71073. Finally, and most importantly, the trial court considered a copy of the actual Notice of Cancellation for nonpayment of the insurance premium mailed to Michael which clearly indicated the precise and entire mailing address stated on the insurance application and declarations page, including the zip code. Said copy was made an exhibit at trial by Financial without objection.

|fiThe trial court’s factual finding is also reasonable in fight of the testimony at trial which indicated that all notices by Financial to Michael had previously been mailed to the address fisted on the application, i.e., the Sibley post office box. Hanson testified that Michael’s policy premiums were paid on a monthly basis direct to Financial and Financial mailed bills for the premiums to the address fisted on the application. Hanson stated that there was never any problem about the notices not being sent to the correct address or any change in the mailing address. In fact, Hanson testified that when the policy was subsequently renewed, she was explicitly instructed by Michael to keep the same mailing address at the Sibley post office box.

In its Reasons for Judgment, the trial court noted the inconsistent testimony by Michael and Casey which attempted to establish the non-delivery of the notice of cancellation. Specifically, Michael denied that his automobile insurance had ever been canceled due to nonpayment of the policy premium despite records of the Department of Motor Vehicles that indicated otherwise. Additionally, Casey denied receiving premium notices from August, 1996 through January, 1997, although payment of same was clearly made during that time period. In light of such, it was not unreasonable for the trial court to consider Hanson’s testimony more credible and give it more weight in the final determination.

So considering, Financial produced pri-ma facia evidence that the notice of cancellation was mailed to the proper address— notwithstanding the omission of the zip code on the Proof of Service by Mail. Thus, the trial court reasonably determined that the policy was effectively canceled as of |7January 5, 1997 for failure to timely pay the premiums due, and there was no manifest error in that ruling. Accordingly, there was no insurance coverage under the Financial policy as of the date of the accident.

Conclusion

For the foregoing reasons, the trial court’s judgment in favor of Financial Indemnity Company and against Gary D. Hale, Erica D. Hudson and Tava M. Hudson is affirmed, with costs assessed to the appellants.

AFFIRMED.

      . Financial's Proof of Service by Mail, which appears to be computer generated, set out a list of all notices of cancellation presumably mailed on the same date to various insureds by the company. None of the addresses listed a zip code.


author: h STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Ean Lamar JOHNSON, Appellant.
    Nos. 36,938-KA, 36,939-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Louisiana Appellate Project by James E. Beal, Glendale, CA, for Appellant.
    Richard Ieyoub, Attorney General, James M. Bullers, District Attorney, C. Sherburne Sentell, III, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   h STEWART, J.

Pursuant to a plea bargain which secured a reduction of charges, the defendant, Ean Johnson, pled guilty to a second offense possession of marijuana charge and a simple possession of cocaine charge. The trial court sentenced him to concurrent sentences of five years. The defendant argues that his sentences are excessive. We affirm.

FACTS

The matters of record show that on March 4, 2002, a confidential informant notified the police that the defendant was cutting a large rock of crack cocaine for sale. The defendant, who was on parole, was later seen at a convenience store carrying a case of beer. He was then arrested for a parole violation. While being booked at the Minden Police Department, the defendant took a bag from his shorts and put it in his mouth in an attempt to swallow it. After a brief struggle, the defendant was found to be in possession of a bag of marijuana and a bag containing rocks of crack cocaine worth $420. The crime lab verified the identity of the contraband seized from the defendant.

The defendant was charged with one count of possession of marijuana, fourth offense, a violation of La. R.S. 40:966, punishable by imprisonment with or without hard labor for not more than twenty years. He was also charged with one count of possession of cocaine with intent to distribute, a violation of La. R.S. 40:967(A), punishable by imprisonment for not less than two years without benefits to not more than thirty years. A plea bargain secured reduced charges, the dismissal of a related charge of resisting an officer, and the state’s agreement not to object to concurrent ^sentences. In accordance with the plea bargain, the defendant pled guilty to possession of marijuana, second offense, and simple possession of cocaine, both of which carry maximum penalties of imprisonment for not more than five years. The trial court imposed five-year sentences on both charges and ordered them to be served concurrently. The trial court also ordered that these sentences be served consecutively to a sentence of fifteen years without benefits which was imposed on an unrelated charge of possession of a firearm by a convicted felon. The defendant filed a motion to reconsider the concurrent five-year sentences based on excessiveness. The motion was denied. This appeal followed.

DISCUSSION

On appeal, the defendant assigns as error the trial court’s failure to give sufficient consideration to mitigating factors in fashioning the sentence, as well as the trial court’s imposition of the maximum sentences, which the defendant contends are excessive. Because the defendant’s motion for reconsideration merely alleged that the sentences are excessive, he is simply relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. McEachern, 624 So.2d 43 (La.App. 2d Cir.1993). Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992).

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not ^adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, a reviewing court may not set aside a sentence. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

Past records of drug offenses should weigh heavily in the decision to uphold the imposition of maximum sentences. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La.C.Cr.P. art. 883. It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Robinson, 33,921 (La.App.2d Cir.11/1/00), 770 So.2d 868; State v. Coleman, 32,906 (La.App.2d Cir.4/5/00), 756 So.2d 1218, 1247-48, writ denied, 00-1572 (La.3/23/01), 787 So.2d 1010; State v. Derry, 516 So.2d 1284 (La.App. 2d Cir.1987), writ denied, 521 So.2d 1168 (La.1988).

Prior to imposing sentence, the district court considered a PSI which provided detailed information concerning the defendant who, at the time of |4sentencing, was 25 years old. The court noted that the defendant was a fourth felony offender. He was convicted in 1994 for misdemeanor possession of marijuana. Thereafter, he had convictions for loitering, resisting arrest, and possession of marijuana in 1996, for which he received a four-year sentence. He was released on parole, but it was revoked. The defendant had further convictions for battery and drug traffic loitering. In 1997, he was convicted of possession of marijuana and received another four-year sentence. Again, he was paroled, and it was revoked. He amassed additional convictions for battery, disturbing the peace, and another possession of marijuana charge. Yet again, he was granted parole, but it was revoked. The trial court found that the defendant was in need of custodial treatment and that he was likely to commit another offense.

On this record, we do not find constitutional error. The defendant received a substantial benefit through his plea bargain which markedly reduced his sentencing exposure. The offenses of conviction do not adequately describe the defendant’s criminal conduct. He has multiple prior convictions for drug offenses which now warrant the imposition of the maximum sentences authorized. The sentences imposed are lawful. They are neither grossly disproportionate to the severity of the offense nor shocking to our sense of justice.

The concurrent sentences of five years, which are at issue in this appeal, arose from conduct unrelated to the conduct which resulted in the defendant’s conviction for the firearm charge for which he was sentenced to fifteen years. Thus, there was no error in ordering the concurrent sentences | sof five years to be served consecutively to the sentence imposed for the firearm conviction.

In sum, there is no showing of an abuse of the district court’s discretion in the imposition of the sentences in this matter.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.