author: JAMES F. McKAY III, Judge, Ad Hoc.

text:
    Felicia S. BAKER v. SPEEDWAY SUPER AMERICA, L.L.C.
    No. 2005 CA 2451.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 17, 2006.

      Joseph Albe, Bay St. Louis, MS, for Plaintiff/Appellant, Felicia S. Baker.

      Collins Rossi, Covington, for Defendant/Appellee, Speedway Super America, LLC.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr., serving as judges ad hoc by special appointment of the Louisiana Supreme Court).
   JAMES F. McKAY III, Judge, Ad Hoc.

hOn May 15, 2002, Felicia Baker injured her back and legs while working for Speedway Super America, LLC (Speedway). As a result of prior litigation Ms. Baker and Speedway entered into two consent judgments signed by the Office of Workers’ Compensation judge on December 11, 2002 and September 5, 2003, respectively. The December 2002 consent judgment contained an agreement whereby Speedway agreed to pay for the “medical evaluation, testing and treatment incurred by the claimant with Dr. Louis Provenza [subject to the utilization review procedures under the Act].... ” In the same consent judgment, the parties further agreed that “Claimant’s future rights are reserved to her for any additional reimbursement for medications, mileage reimbursements and medical treatment deemed necessary by the claimant’s treating physicians which has not been specifically mentioned above.... ” The September 2003 consent judgment contained an agreement by Speedway to approve and pay for specific testing recommended by Dr. Provenza and to approve and pay for consultation and physical therapy with Dr. Robert Beck. The September 2003 consent judgment also contained a reservation of future rights.

|2On March 17, 2005, Ms. Baker filed a disputed claim for compensation and “Motion for Expedited Hearing on Claimant’s Motion Seeking Post Judgment Penalties and an Order Requiring Defendants to Provide Benefits.” At trial, Ms. Baker testified that Frank Gates Service Company, Speedway’s workers’ compensation administrator, set up an arrangement with Ms. Baker’s pharmacy for a drug card but there was a delay of approximately five months in getting Frank Gates to pay her pharmacy bills. At one point she paid about $48.00 out-of-pocket for a prescription but was never reimbursed. Documentary evidence, including correspondence from Dr. Provenza stated a motorized cart was medically necessary. However, a second opinion by Dr. Fong said Ms. Baker would not fulfill the criteria set forth by Medicare for a motorized cart. The court found Ms. Baker to be a credible witness and that the evidence submitted at trial supported her position. The trial court ordered the defendant to pay for the motorized cart. The trial court also awarded Ms. Baker $6,000.00 (plus $48.65 reimbursement) in penalties and $6,000.00 in attorney’s fees for the failure to provide Ms. Baker with the cart, reimburse her for medical bills, and pay her medical bills. The defendant appeals this judgment and the plaintiff has answered the appeal.

On appeal, the defendant raises the following assignments of error: 1) the workers’ compensation judge erred in ordering Speedway to approve and pay for a motorized cart; 2) the workers’ compensation judge erred in awarding penalties and attorney’s fees based upon Speedway’s failure to reasonably controvert the claimant’s entitlement to a motorized cart; 3) the | ^workers’ compensation judge erred in assessing penalties and attorney’s fees against Speedway for their failure to pay the $48.65 out-of-pocket expense; and 4) the worker’s compensation judge erred in assessing penalties and attorney’s fees against Speedway for their delay in paying The Medicine Shoppe bills. Ms. Baker raises the following two assignments of error: 1) under the law, plaintiff-appellee is entitled to judicial interest added to the penalties and attorney fees awarded in the June 9, 2005 judgment; and 2) plaintiff-appellee is entitled to additional attorney’s fees for answering this appeal; and this appellate court generally awards an increase in attorney’s fees when the plaintiffs attorney has filed a timely answer, filed a brief and participated in oral argument before the appellant court.

Where there is proof of an event and of the following disability and need for medical treatment, without a showing of any subsequent intervening cause, it is presumed that the accident/event caused the disability and need for treatment. The burden then shifts to the employer to dispute entitlement. See Housley v. Cerise, 579 So.2d 973 (La.1991). In the instant case, the claimant has proven that a work related accident caused her disability and necessitated medical treatment (including prescriptions and a motorized cart). The defendant is unable to dispute Ms. Baker’s entitlement. As such, the defendant violated La. R.S. 23:1201(E) when they failed to pay Ms. Baker’s medical expenses within sixty days and failed to reasonably controvert her claim for prescription expenses. Violation of La. R.S. 23:1201(E) states that penalties [$50 per day/maximum $2,000] together with reasonable attorneys fees shall be awarded against the employer/carrier |4if they fail to pay any awarded benefits within sixty [60] days after it becomes due unless such nonpayment results from conditions over which the employer had no control. Accordingly, we find no error in the workers’ compensation judge awarding the claimant penalties and attorney’s fees. We also find no error in ordering Speedway to approve and pay for a motorized cart.

The appellant is also ordered to pay the claimant interest on benefits from the date ordered until the date satisfied and on penalties from the date of judicial demand until satisfied. We will not grant interest on attorney’s fees. See Spencer v. Gaylord Container Corp., 96 1230 (La. App. 1 Cir. 3/27/97), 693 So.2d 818. Furthermore, the claimant is awarded an additional $1,500.00 in attorney’s fees for answering this appeal.

For the foregoing reasons, we affirm as amended the judgment of the court below.

AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge, Ad Hoc.

license: Public Domain

text:
    James J. LIRETTE, Jr. v. PATTERSON SERVICES, INC. and Liberty Mutual.
    No. 2005 CA 2654.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 17, 2006.

      Stephen S. Stipelcovich, Houma, for Plaintiff/Appellant, James J. Lirette, Jr.
    Kenneth Krobert, Baton Rouge, for Defendant/Appellee, Patterson Services, Inc and Liberty Mutual.
    (Court composed of Judge JAMES F. MCKAY, III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr., serving as judges ad hoc by special appointment of the Louisiana Supreme Court).
   TERRI F. LOVE, Judge, Ad Hoc.

| ¿This appeal arises from a workers’ compensation claim. James Lirette injured his hand when he caught his fingers between a forklift and a bolt. Prior to his injury, James Lirette and Jack Leathers were involved in a verbal altercation. The Workers’ Compensation Judge found for James Lirette. Patterson Services, Inc. and Liberty Mutual Insurance Company appealed asserting numerous errors. We find that the Workers’ Compensation Judge did not err and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On July 2, 2004, James Lirette, Jr. (“Mr.Lirette”) and Roy Billiot (“Mr.Billi-ot”) were standing outside a door when Jack Leathers (“Mr.Leathers”) walked through the door after using the restroom. Mr. Billiot stated “something stink around here.” Mr. Lirette responded, “that’s Mr. Skidmark right there.” Mr. Leathers then approached Mr. Lirette and they proceeded to get involved in a verbal altercation. Both parties allegedly stated, “bring it on” repeatedly. Mr. Leathers walked away and Mr. Lirette allegedly threatened to kill him with the bolt. Several witnesses testified and|sMr. Lirette admitted that he and Mr. Leathers did not like each other because Mr. Leathers attained employment instead of Mr. Lirette’s son.

Mr. Lirette proceeded back to his job of loosening the nuts from the bolts by tapping it on the forklift, but he remained angry. Mr. Lirette hit the bolt on the forklift hard and “got pinched between the bolt and the iron on the forklift.” As a result, Mr. Lirette had his right index finger amputated and he required “surgical repair of his middle finger.” He missed three months of work and received medical treatment.

Mr. Lirette filed a 1008 form on July 26, 2004, seeking workers’ compensation benefits. The Workers’ Compensation Judge (“WCJ”) found in favor of Mr. Lirette by holding that the accident occurred in the course or and arising out of Mr. Lirette’s employment with Patterson Services, Inc. (“Patterson”) and that Mr. Lirette did not violate La. R.S. 23:1208. As to Patterson, the WCJ held that it “did not prevail on its defenses urged under La. R.S. 23:1081” or exceptions based on La. R.S. 23:1031. The WCJ held that Mr. Lirette was entitled to $347.50 a week from July 3, 2004 to October 25, 2004, and that he was also entitled to “all reasonable and necessary medical treatment.” As to past medical treatment, the WCJ ordered Patterson to pay $14,807.17, which was the amount of past medical treatment stipulated by both parties. The WCJ ordered that both parties should “determine if claimant incurred any permanent partial disability pursuant to La. R.S. 23:1221” and if so, the defendants must pay “after calculating any credit owed to defendants under La. R.S. 23:1223.” Lastly, the WCJ did not assess any penalties or fees against Patterson or Liberty Mutual Insurance Company (“Liberty”), its insurance provider.

LPatterson and Liberty, hereinafter referred to as the defendants, appeal asserting that: 1) the provisions of La. R.S. 23:1081 apply when the aggressor in the altercation injures himself; 2) the forfeiture pursuant to La. R.S. 23:1208 applies when a claimant gives false testimony about the occurrence of the injury; and 3) the provisions of La. R.S. 23:1031 bar the compensation of an employee who injures himself.

STANDARD OF REVIEW

Appellate courts review factual findings according to the manifest error or clearly wrong standard. Masinter v. Akal Sec., Inc., 05-1236, p. 3 (La.App. 4 Cir. 6/7/06), 934 So.2d 201, 203. If the factfin-der’s conclusion was reasonable, even if the record presents two permissible views, the appellate court will not reverse the findings. Id. at p. 3, 934 So.2d at 203-04. The interpretation of statutes pertaining to workers’ compensation is a question of law and warrants a de novo review to determine if the ruling was legally correct. Hand v. City of New Orleans, 04-0845, p. 5 (La.App. 4 Cir. 12/22/04), 892 So.2d 609, 612.

INITIAL AGGRESSOR— La. R.S. 23:1081

The defendants assert that Mr. Lirette’s injury is not covered under the Workers’ Compensation Act because they assert that he was the initial aggressor. The WCJ found that the doctrine was inapplicable to the case sub judice. La. R.S. 23:1081 states:

(1) No compensation shall be allowed for an injury caused:
(c) to the initial physical aggressor in an unprovoked physical altercation, unless excessive force was used in retaliation against the initial aggressor.

|sThe burden of proving that the claimant was the initial physical aggressor rests with the employer. La. R.S. 23:1081(2).

This assignment of error is without merit. This case presents a verbal altercation not a physical altercation, which the statute covers. Additionally, testimony presented to the WCJ demonstrated that Mr. Leathers initiated the verbal altercation when he approached Mr. Lirette and said, “say it again.” Mr. Lirette claims that his and Mr. Billiot’s statements were made in a joking manner because several employees jokingly commented on Mr. Leather’s smell or lack of personal hygiene. Mr. Lirette also stated that he told Mr. Leathers that he was not talking to him, but instead responding to Mr. Billiot. Mr. Leathers walked away from the altercation and neither he nor Mr. Lirette ever exchanged physical strikes. Furthermore, the testimony documents that the verbal altercation had ended prior to Mr. Lir-ette’s injury.

Considering the above, we do not find that the WCJ erred by finding that the initial physical aggressor doctrine did not apply to the facts and circumstances of this case.

FALSE TESTIMONY — La. R.S. 23:1208

Next, the defendants aver that Mr. Lirette forfeited his right to benefits because of his alleged false testimony. La. R.S. 23:1208(A) states:

[i]t shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.

The provision applies to “any false statement or misrepresentation, including one involving a prior injury, made willfully by a claimant for the purpose of obtaining benefits.” Chauvin v. S. Tech. & Servs., Inc., 02-1871, p. 6 (La.]6App. 1 Cir. 6/27/03), 858 So.2d 519, 522. The decision that a claimant forfeited “his right to workers’ compensation benefits is a question of fact.” Id.

The defendants must show that Mr. Lirette’s statements were false and that he “willfully and deliberately” made the statements to obtain benefits. Leonard v. James Indus. Constructors, 03-0040, p. 6 (La.App. 1 Cir. 5/14/04), 879 So.2d 724, 729. Willful can be defined as “proceeding from a conscious motion of the will; voluntary; knowingly; deliberate; intending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary.” Parfait v. Gulf Island Fabrication, Inc., 97-2104, p. 7 (La.App. 1 Cir. 1/6/99), 733 So.2d 11, 18, citing Grant v. Natchitoches Manor Nursing Home, 96-1546 (La.App. 3 Cir. 5/14/97), 696 So.2d 73, 76. “This burden requires more than a mere showing of inconsistent statements or inadvertent omissions by the claimant.” Williams v. Sheridan Constr. Co., 00-1697, p. 6 (La. App. 1 Cir. 9/28/01), 811 So.2d 8, 13.

Mr. Lirette testified that he was talking to Mr. Billiot and not Mr. Leathers. He stated that he did not intend “skid mark” to be a derogatory remark. However, on cross-examination, Mr. Lirette testified that he did say “skid mark” when Mr. Leathers was exiting the restroom and that it “could have been” in reference to the idea that Mr. Leathers had dirty underwear. Mr. Lirette also testified that it was routine to hit the bolt against the forklift to loosen the nut. Mr. Billiot and Shaun Leblanc (“Mr.Leblanc”), two coworkers, corroborated the testimony. Mr. Billiot stated that it was customary to “tap,” “pat,” or “hit” the bolts. Mr. Leblanc stated that he |7would tap the bolts. Mr. Lirette stated that he hit the bolt harder than usual after the verbal altercation, but the altercation had ended by that point and this act would not deprive him of workers’ compensation benefits.

After reviewing the above testimony, we do not find that the WCJ committed manifest error by holding that Mr. Lirette did not forfeit his benefits due to false testimony. Mr. Lirette admitted that he called Mr. Leathers “skid mark” and that he “could have” meant it in a derogatory manner. Mr. Lirette also stated that workers routinely hit the bolt against the forklift, which was corroborated by his co-workers. Although reasonable minds might differ on their conclusion as to Mr. Lirette’s motive behind initially stating that he did not say “skid mark” in a personal hygiene context, the defendants did not prove Mr. Lirette’s statements were made to obtain benefits.

BARRED COMPENSATION— La. R.S. 23:1031

Lastly, the defendants contend that Mr. Lirette’s injury did not arise out of or occur in the course of his employment. Workers’ compensation benefits require the claimant’s injury to occur “by accident arising out of and in the course of his employment.” La. R.S. 23:1031. “[T]he principal criteria for determining course of employment are time, place and employment activity.” Mundy v. Dep’t of Health and Human Res., 593 So.2d 346, 349 (La.1992). The inquiry also “focuses on the character or source of the risk which gives rise to the injury and on the relationship of the risk to the nature of the employment.” Id. This is a fact determination for the WCJ.

The defendants rely on Mundy, which involved a nurse who was 1 ¿repeatedly stabbed in a hospital elevator. 593 So.2d at 348. The Louisiana Supreme Court held that her injuries did not arise out of her employment because the risk of her injury “was not greater for the plaintiff than for a person not so employed.” Mundy, 593 So.2d at 350. Additionally, the Court held that the injuries were not sustained during the course of her employment because she had yet to begin working. Id.

Mundy is factually distinguishable. Using the Louisiana Supreme Court’s reasoning, Mr. Lirette’s injury arose out of his employment because a person not in the routine of loosening nuts by hitting bolts against a forklift has a decreased risk of sustaining his injury. Additionally, Mr. Lirette was working when his injury occurred. Mr. Lirette and two co-workers testified that it was customary to “tap” or “hit” the bolt against the forklift when trying to loosen the nut to remove it from the bolt.

Although Mr. Lirette testified that he hit the bolt harder against the forklift after the verbal altercation, this recklessness does not defeat the requirements of La. R.S. 23:1031. Creel v. Concordia Elec. Coop., Inc., 93-1329 (La.App. 3 Cir. 5/4/94), 640 So.2d 507, 509. The court, in Creel, opined that “[ojccasional lapses are a predictable vice of human nature.” Id. Accordingly, we do not find that the WCJ committed manifest error in finding that Mr. Lirette’s injury arose out of and during the scope of Mr. Lirette’s employment.

DECREE

Considering the above, we affirm the judgment of the Workers’ Compensation Court.

AFFIRMED.


author: CARTER, C. J. KUHN, J. WELCH, J.,

text:
    Wilson NAQUIN and Gladys Naquin, Individually, and Wilson Naquin as Administrator of the Estate of His Minor Children, Wilson Naquin, Jr., Peter Naquin and Chad Naquin v. LOUISIANA POWER & LIGHT COMPANY.
    No. 2005 CA 2104.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 17, 2006.

      See also, 943 So.2d 1156.

      Charlton B. Ogden, III, John J. Zvonek, New Orleans, for Cross-Claim Defendant/Appellant, Entergy Louisiana, L.L.C., f/k/a Entergy Louisiana, Inc., f/k/a Louisiana Power & Light Company.
    Robert T. Lorio, Covington, for Cross-Claim Plaintiff/Appellee, The Louisiana Land & Exploration Company.
    Before: CARTER, C.J., KUHN, DOWNING, McDonald, and WELCH, JJ.
   CARTER, C. J.

| ¡/This is an appeal of a judgment awarding damages, costs and attorney fees pursuant to an indemnity contract, rendered in favor of cross-claim plaintiff/appellee, The Louisiana Land & Exploration Company (hereafter referred to as “LL & E”) and against cross-claim defendant/appellant, Entergy Louisiana, L.L.C., formerly known as Entergy Louisiana Inc. and formerly known as Louisiana Power & Light Company (hereafter referred to as “Enter-gy”). This appeal marks the fourth time we have considered issues related to this litigation, which now spans thirteen years. We refer to our previous opinions for the factual and procedural background.

After a trial on the merits of the liability issue, the trial court concluded that Enter-gy owed indemnification to LL & E pursuant to the terms and conditions of a 1973 Righi^of-Way Permit Agreement (hereafter referred to as the “Agreement”). We affirmed the trial court’s findings and conclusion in a related appeal, Naquin v. Louisiana Power & Light Co., 05-2103 (La. App. 1 Cir. 9/15/06), 943 So.2d 1156, which was released simultaneously with this opinion.

The instant appeal involves a separate trial court judgment signed on May 6, 2005, awarding damages, costs and attorney fees to LL & E in the amount of $183,064.27, pursuant to the Agreement, which contained an indemnity clause. En-tergy appeals, arguing that the amount awarded is unreasonably high, unsubstantiated by the evidence, and beyond the provisions of the Agreement. LL & E answered the appeal, requesting an |sadditional amount for costs and attorney fees incurred in connection with this appeal and seeking post-judgment interest on the trial court award. For the following reasons, we affirm the trial court judgment, as amended.

THE AGREEMENT

In 1973, Entergy and LL & E entered into an Agreement wherein Entergy was granted a right-of-way to construct, operate and maintain an electric distribution line upon, over and across LL & E property. The right-of-way was subject to certain conditions and limitations, one of which was an indemnity clause that provided as follows:

[Entergy], its successors and assigns, hereby assume the full liability and responsibility of all risks and hazards and shall be solely and directly responsible and liable for all personal injury and/or loss of life and/or damage or destruction of the property of third persons, as well as all servants and employees of [LL & E] and/or [Entergy], caused by the construction, existence, operation and maintenance of said distribution line, and shall hold [LL & E] free and harmless with respect to any and all claims for loss, death, destruction or damage arising from the construction, existence, operation and maintenance of said distribution line, including a reasonable attorney fee; provided, however, that [Entergy] does not agree to hold [LL & E] harmless from any liability contributed to or caused by any act of negligence of [LL & E]. (Emphasis added.)

Focusing on the broad language in the indemnity clause, the trial court awarded $188,064.27 in damages, costs and attorney fees for LL & E’s expenses related to defending the underlying tort claim and establishing the right to indemnification. At the hearing on the motion to set the judgment amount, the trial court orally ruled:

After considering everything, it just seems to the Court that to be made whole, to be indemnified, means ... what it says. Free and hold harmless ... means ... we shouldn’t have had to pay, we shouldn’t have even been here, so whatsoever expenses and costs we incurred should be wiped out. It is broad.... [T]he Court finds that this language does include the right for LL & E to have their attorney’s fees paid, and costs... -14The Court finds that it is almost impossible to incur attorney’s fees without incurring court costs, or costs incurred in litigation.... So the Court interprets that to include costs.

The trial court also stated:

It is a broad contract... .But the way I read it, given the whole picture, given what I know about this case, and given the fact that this was written so many years ago, the way I read it is that it included everything, and it seems to me it was the intention of the parties for LL & E in this instance to be made whole, and to be made whole means ... what it means, to be made whole, to walk out of here without having to pay one penny out of its pocket ultimately.

On appeal, Entergy strongly urges that the indemnity clause did not cover any amount related to establishing the right to indemnification or any amount of costs incurred in either the underlying tort claim or the indemnity claim.

LAW AND ANALYSIS

Indemnity in its most basic sense means reimbursement, and may lie when one party discharges a liability which another rightfully should have assumed. Nassif v. Sunrise Homes, Inc., 98-3193 (La.6/29/99), 739 So.2d 183, 185; Richey v. Moore, 36,785 (La.App. 2 Cir. 3/7/03), 840 So.2d 1265, 1270, writ denied, 03-0987 (La.5/30/03), 845 So.2d 1054. The general rules governing the interpretation of contracts apply in construing a contract of indemnity. Soverign Ins. Co. v. Texas Pipe Line Co., 488 So.2d 982, 985 (La. 1986); Dean v. Griffin Crane & Steel, Inc., 05-1226 (La.App. 1 Cir. 5/5/06), 935 So.2d 186, 191.

Interpretation of a contract is the determination of the common intent of the parties. LSA-C.C. art.2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art.2046. Although |Ba contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include. LSA-C.C. art. 2051. When the parties intend a contract of general scope but, to eliminate doubt, include a provision that describes a specific situation, interpretation must not restrict the scope of the contract to that situation alone. LSA-C.C. art.2052. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. LSA-C.C. art.2053. When the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose. LSA-C.C. art.2054. Equity is based on the principles that no one is allowed to take unfair advantage of another and that no one is allowed to enrich himself unjustly at the expense of another. LSA-C.C. art.2055.

Applying these interpretive rules to the contract in the instant ease, we conclude that the parties intended to provide for indemnity against damages, costs and attorney fees in the underlying tort claim as well as the indemnity claim. The words of the indemnity clause are not explicit, rather they are general and broad, so further interpretation may be made in search of the parties’ common intent. When this clause is considered and interpreted in | slight of the Agreement as a whole, it is evident that the parties intended that Entergy be fully responsible for all damages, costs and attorney fees with respect to any and all claims arising from the existence and operation of the electric distribution line.

Furthermore, the reasonableness of attorney fees is within the great discretion of the trial court. Burford v. Burford, 95-2318 (La.App. 1 Cir. 6/28/96), 677 So.2d 722, 725. There is no requirement that the trial court hear evidence concerning the time spent or the hourly rates charged since the record will reflect much of the services rendered. Id. The trial court is also allowed to call upon its own experience and expertise in the valuation of legal services rendered by an attorney. Louque v. Jack Eckerd Drug Store No. 523, 405 So.2d 1097, 1099 (La.App. 4 Cir.1980). Based upon the facts of this case, the evidence submitted, and the voluminous record covering a thirteen-year period, we find that the trial court did not err in its award of attorney fees. The trial court saw the development and evolution of this case as a whole. The trial court was in the best position to observe and evaluate the attorneys’ work. Roccaforte v. Nintendo of America, Inc., 05-239 (La.App. 5 Cir. 11/29/05), 917 So.2d 1143, 1148-1149. After thoroughly reviewing the record, we are unable to say the award of attorney fees was an abuse of discretion. The law in Louisiana is well-settled that attorney fees in indemnity contracts are recoverable when specifically provided for by the contract, as they are in this case for both the underlying tort claim and the indemnity claim. See Richey v. Moore, 840 So.2d at 1268; Burns v. 7McDermott, Inc., 95-0195 (La.App. 1 Cir. 11/9/95), 665 So.2d 76, 79; Wuertz v. Tobias, 512 So.2d 1209, 1212 (La.App. 5 Cir.1987).

We also find no abuse of the trial court’s broad discretion in awarding costs to LL & E. We agree that costs are inherent in the defense of or pursuit of any and all claims, tort or indemnity. We also note that the trial court may render judgment for costs against any party as it may consider equitable. LSA-C.C.P. art.1920; Barham & Arceneaux v. Kozak, 02-2325 (La.App. 1 Cir. 3/12/04), 874 So.2d 228, 246, writ denied, 04-0930 (La.6/4/04), 876 So.2d 87; Thibodeaux v. USAA Cas. Ins. Co., 93-2238 (La.App. 1 Cir. 11/10/94), 647 So.2d 351, 362.

On appeal, LL & E seeks an additional award for attorney fees and costs associated with defending this appeal. An increase in attorney fees may be awarded where a party who was awarded attorney fees by the trial court is forced to and successfully defends an appeal. Curtis v. Curtis, 28,698 (La.App. 2 Cir. 9/25/96), 680 So.2d 1327, 1333. We find that a reasonable attorney fee award for this appeal is $2,500.00, in light of the effort put forth by LL & E’s counsel as evidenced by the record. We also find merit to LL & E’s request that the trial court judgment be amended to reflect post-judgment interest on the amount awarded. See Gulf Wide Towing, Inc. v. F.E. Wright (U.K.) Ltd., 554 So.2d 1347, 1355 (La.App. 1 Cir.1989); Carroll v. International Paper Co., 94-302 (La.App. 3 Cir. 11/2/94), 649 So.2d 474, 479, writ denied, 94-2924 (La.2/17/95), 650 So.2d 259. Therefore, we amend the May 6, 2005 trial court judgment to include post-judgment legal interest on the total amount awarded.

^CONCLUSION

For the stated reasons, we amend the trial court judgment to order post-judgment legal interest on the total award, and as amended, we affirm the trial court judgment awarding $183,064.27 to LL & E for damages, costs and attorney fees pursuant to the Agreement. We make an additional attorney fees award to LL & E in the amount of $2,500.00 for successfully defending this appeal. Legal interest on this additional $2,500.00 fee is awarded from the date' of this decision. Guitreau v. State Farm Mut. Auto. Ins. Co., 540 So.2d 1097, 1102 (La.App. 1 Cir.1989). Costs in this court and in the court below are assessed to the appellant, Entergy.

AFFIRMED AS AMENDED AND RENDERED.

KUHN, J., concurs and will assign errors.

WELCH, J., concurs and dissents with reasons.

McDONALD, J., concurs for the reasons assigned by J. WELCH and dissents for the same reasons.

KUHN, J.

hi concur with the majority to amplify what is obvious but unspoken in these proceedings. The appellant contends the attorney fee awarded is “unreasonable” in amount, yet in argument and indirectly in brief concedes that most of the award is justified under the indemnity clause. Essentially, appellant asserts that the award for (1) refund of costs and (2) attorney fees for enforcing the indemnity agreement against it is not provided for in the contract. The brief filed in this court, and the memorandum and argument made before the trial court, demonstrate how illogical this argument is. Followed to its conclusion, the appellant’s position is (1) we will reimburse your attorney fees for defending us but will not reimburse your litigation costs and (2) we will reimburse you those attorney fees only after we compel you to sue us and incur additional attorney fees to collect what we owe.

Appellant’s primary position on the indemnity agreement is that it is ambiguous or that it does not clearly compel payment of the disputed amounts. The broad language utilized in the contract is unambiguous and does not expressly limit the applicability on the indemnity provision to third-party claims as in Morris v. Schlumberger, Ltd,., 445 So.2d 1242 (3d Cir.1984), writ denied 449 So.2d 1345. That the contract did not include limiting language does not create an ambiguity as appellant seems to contend.

WELCH, J.,

Concurring in Part and Dissenting in Part.

11While I agree with the majority that LL & E was entitled to damages, costs, and attorney fees related to defending the underlying tort claim, I disagree with the majority’s conclusion that LL & E was entitled to attorney fees in establishing the right to indemnification from Entergy.

As a general rule, attorney fees are not allowed except where authorized by statute or contract. Nassif v. Sunrise Homes, Inc. 98-3193 (La.6/29/99), 739 So.2d 183, 185. Furthermore, the general law of indemnity provides that, although an indem-nittee may recover costs and expenses incurred in the defense of a claim against the principal from its indemnitors, the in-demnittee may not recover those costs and expenses incurred in establishing its right to indemnification from the indemnitors. State v. Laconco, Inc., 430 So.2d 1376, 1385 (La.App. 1st Cir.1983). However, attorney fees incurred in establishing the right to indemnity may be recovered when clearly and specifically provided for by contract. Wuertz v. Tobias, 512 So.2d 1209, 1212 (La.App. 5th Cir.1987).

Accordingly, in this case, the attorney fees incurred by LL & E in establishing the right to indemnification were not recoverable unless the language of the indemnity clause in the agreement clearly and specifically provided for such recovery. See Wuertz, 512 So.2d at 1212. The indemnity clause in the agreement | ^between LL & E and Entergy provided that Enter-gy would hold LL & E free and harmless with respect to “any and all claims for loss, death, destruction, or damage arising from the ... existence, operation, and maintenance of said distribution line, including a reasonable attorney fee ....” As succinctly noted by the majority opinion, “[t]he words of the indemnity clause are not explicit, rather they are general and broad.” As such, I believe that the indemnity clause contained in the agreement fails to specifically provide for the recovery of attorney fees incurred in establishing the right to indemnification, and that the trial court improperly awarded attorney fees to LL & E in enforcing the right to indemnity. Thus, I would reverse the judgment of the trial court in this regard and further, I would deny the request for attorney fees incurred in prosecuting this appeal.

In all other respects, I concur with the majority opinion.

      . Naquin v. Louisiana Power & Light Co., 05-2103 (La.App. 1 Cir. 9/15/06), 943 So.2d 1156; Naquin v. Louisiana Power & Light Co., 98-2270 (La.App. 1 Cir. 3/31/00), 768 So.2d 605, writ denied, 00-1741 (La.9/15/00), 769 So.2d 546; Naquin v. Louisiana Power & Light Co., 03-0220 (La.App. 1 Cir. 11/7/03), 857 So.2d 36 (unpublished).

      . We have considered the jurisprudence cited by Entergy and find those cases distinguishable and not dispositive of the issues in this case because they either do not involve contractual indemnity factual scenarios or the indemnity language is specifically limited to the right to indemnification for the underlying claim only. Cf State v. Laconco, Inc., 430 So.2d 1376, 1384-1385 (La.App. 1 Cir. 1983).
      There is no limiting language in the indemnity clause in the case sub judice.

      . The liability findings of the trial court have been affirmed in the related appeal, Naquin v. Louisiana Power & Light Co., 05-2103 (La. App. 1 Cir. 9/15/06), 943 So.2d 1156, and cannot now be disturbed.

      . An appellate court shall render any judgment that is just, legal, and proper upon the record on appeal, and may tax the costs of the lower or appellate court against any parly to the suit, as in its judgment may be considered equitable. LSA-C.C.P. art. 2164.


author: LEON A. CANNIZZARO, JR., Judge Ad Hoc.

text:
    Kenneth D. BAILEY v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Office of State Police.
    No. 2005 CA 2474.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 6, 2006.

      Evelyn M. Oubre, Lake Charles, for Plaintiff/Appellant, Kenneth Bailey.
    Kathy Williams, Baton Rouge, for Defendant/Appellee, Dept, of Public Safety and Corrections.
    William Norfolk, Baton Rouge, Commission for State Police.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge LEON A. CANNIZZARO, Jr., serving as judges ad hoc by special appointment of the Louisiana Supreme Court).
   LEON A. CANNIZZARO, JR., Judge Ad Hoc.

| ¿This is an appeal by the plaintiff, Mr. Kenneth D. Bailey, from a decision rendered by the State Police Commission (“the Commission”) upholding his termination by the Department of Public Safety and Corrections, Office of State Police (State Police). We affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Bailey had been employed by the State Police for twenty-four years and eleven months and was serving with permanent status as a sergeant, when he was terminated on April 26, 2004. In the termination letter from Louisiana State Police Superintendent Henry Whitehorn, Mr. Bailey was advised that his termination was based on conduct in violation of the following Louisiana State Police Policy and Procedure Rules: 01-02.05, Conduct Unbecoming of an Officer; 01-02.07, Badge of Office; 01-02.04, | oConformance to Laws; 01-02.18, Department Vehicles; 04-03.02, Vehicle Usage Limitations and Requirements; 04-03.03, Vehicle Off-Duty Use; 01-02.16, False Statements; and, 01-02.29, Use of Intoxicants.

|40n the evening of January 23, 2004, after attending a training seminar on terrorism, Mr. Bailey departed Meridian, Mississippi, and began traveling to his home in Lake Charles, Louisiana, driving an unmarked Louisiana State Police vehicle that had been assigned to him. At about 2:22 a.m., on the morning of January 24, 2004, Sergeant Tim Gilland and Reserve Deputy Geoff Landry of the Calca-sieu Parish Sheriffs Office observed Mr. Bailey run a red light at the intersection of La. Highway 27 and La. Highway 12 in DeQuincy, Louisiana. The officers made a U-turn and followed him. While in pursuit, they saw him cross the centerline of La. Highway 12 into the path of oncoming traffic and run onto the shoulder of the road. They then activated their police unit’s blue siren lights to initiate a traffic stop.

Mr. Bailey continued traveling east on La. Highway 12 and eventually turned into the parking lot of a store, where he stopped and activated the strobe lights of the state police vehicle. Mr. Bailey exited the vehicle, produced his license and identified himself as a State Police trooper. Noticing that Mr. Bailey was unsteady on his feet, had fumbled for his wallet, and had an odor of alcohol on his breath, the officers decided to conduct standard field sobriety tests on him. Meanwhile, Sgt. Gilland contacted Louisiana State Police Troop D to advise Mr. Bailey’s supervisor of the investigatory stop. In a tape recording of the stop, Mr. Bailey is heard telling Sgt. Gilland, “Please help me hang onto my job. If you do what|Byou’re going to do, I’ve lost my job.” Mr. Bailey further states, “All I am asking for is if you continue what you have started, I’ve lost my job, I’ve lost my retirement.”

After Mr. Bailey submitted to the field sobriety tests, the results of which indicated extreme impairment, Sgt. Gilland arrested him for operating a vehicle while intoxicated and careless operation of a vehicle, violations of La. R.S. 14:98 and La. R.S. 32:58, respectively. The officers then transported Mr. Bailey to the De-Quincy Police Department station, where he voluntarily submitted to the Intoxilyzer 5000 breath test. Mr. Bailey’s blood alcohol concentration registered .152%. Upon further questioning by Sgt Gilland, Mr. Bailey denied that he had been drinking but claimed he had consumed 16 ounces of Nyquil, an over the counter liquid cold medicine, after leaving Mississippi. In the meantime, Troop D had dispatched State Police Lieutenant Michael Field to the De-Quincy Police Department station after learning of Mr. Bailey’s arrest. Mr. Bailey was later released on his own recognizance and Lt. Field transported him home.

Also present at the police station when Mr. Bailey was brought in were DeQuincy Police Department Sergeant John C. Brown and Corporal | (iCody Landry. In a follow-up investigation by the State Police, Sgt. Brown, Cpl. Landry and Lt. Field told State Police investigator Lieutenant Marcel Poullard that they smelled an odor of alcohol on Mr. Bailey’s breath, his speech was slurred, and his gait unsteady.

On February 4, 2004, as part of the follow-up investigation, Lt. Poullard and Lt. George Dean interviewed Mr. Bailey. In a taped recording of the interview, Mr. Bailey told the investigators that he had not consumed any alcohol on the evening/morning in question but did take 16 ounces of Nyquil. He told them that he had stopped and vomited several times on his way home from Mississippi. Mr. Bailey also said that he was allowed to enter the restroom at the DeQuincy Police Department station, where he again vomited.

After the initial interview concluded, Mr. Bailey engaged in further discussions with the investigators. In those discussions, he admitted that he had not been “entirely truthful” and wanted to set the record straight. After restarting the tape recorder, Mr. Bailey told Lt. Poullard and Lt. Dean that he had not been truthful and that on the night/morning of his arrest, in addition to taking the 16 ounces of Nyquil, he had consumed approximately 6 to 8 ounces of “straight” Crown Royal whiskey over a period of two to three hours at the Iron Horse Bar in DeQuincy. He also told the investigators that he had lied about consuming the whiskey because he did not want to get the bar owner and bar tender in trouble. Mr. Bailey claimed that he knew they would never admit to serving him any alcoholic beverages.

In conjunction with the State Police investigation, Mr. Bailey had to provide Lt. Poullard with a written statement regarding his arrest. In his [7statement, Mr. Bailey acknowledged that he had taken Nyquil and Advil, an over the counter pain reliever, but failed to mention that he had stopped at the Iron Horse Bar and consumed whiskey. He claimed that he ended up in DeQuincy when he inadvertently exited La. Highway 28 west from U.S. Highway 165 and turned at the wrong intersection.

In addition to the aforementioned facts, Supt. Whitehorn noted four prior disciplinary actions taken against Mr. Bailey in the termination letter. These included: a twelve (12) hour suspension in April 1983 for failing to obey a direct order and failing to submit a report relative to a DWI arrest he had made; a twelve (12) hour suspension in September 1990 for failing to appear before a grand jury after being subpoenaed; a thirty (30) day suspension in January 1999 for giving surveillance photographs to a casino employee and for fraternization with a casino employee; and, a thirty (30) day suspension in July 1999 for being involved in a single car accident while driving under the influence of alcohol.

Mr. Bailey appealed his termination to the Commission, contesting the reported observations of the arresting officers and the statements allegedly made by him at the time of his arrest. Mr. Bailey denied that he was intoxicated and challenged the results of the field sobriety test and breathalyzer test. He also claimed that he was coerced into making a statement that he had consumed alcohol on the late night/early morning in question in order to retain his retirement benefits. While Mr. Bailey’s appeal to the Commission was pending but prior to the hearing, he was tried on August 5, 2004 in a judge trial in the Fourteenth (14th) Judicial District I sCourt for the Parish of Calcasieu and acquitted of the charge of driving while intoxicated.

Following a three-day public hearing, the Commission upheld Mr. Bailey’s termination. The Commission found that on the night/early morning of his arrest Mr. Bailey had operated the state police vehicle in a careless, reckless and dangerous manner and was greatly impaired due to his consumption of alcoholic beverages. The Commission concluded that the State Police had ample grounds to terminate Mr. Bailey’s employment given his four prior disciplinary infractions; his reckless operation of a state police vehicle; his consumption of alcohol while driving; his false and misleading statements to the law enforcement officers during the investigation; and the use of his status as a State Police officer in an attempt to influence the outcome of the traffic stop.

Mr. Bailey appealed the Commission’s decision to this Court.

ASSIGNMENTS OF ERROR

Mr. Bailey asserts the following assignments of error on appeal.

(1) The Commission, an administrative agency, erred in superseding the authority of the Fourteenth (14th) Judicial District Court.
(2) Mr. Bailey’s termination was overly severe and used to thwart his right to sue the State Police for conduct committed by the State Police in violation of his rights.

LAW AND DISCUSSION

In Department of Public Safety and Corrections, Office of State Police v. Mens- man, 95-1950, p. 3-4 (La.4/8/96), 671 So.2d 319, 321, the | ^Louisiana Supreme Court, adopting a recitation of applicable legal principles previously set forth by this Court stated:

An employee who has gained permanent status in the classified state police service cannot be subjected to disciplinary action by his employer except for cause expressed in writing. La. Const, art. X, § 46(A). Id. Such an employee may appeal from any disciplinary action to the Commission, and the burden of proof on such an appeal, as to the facts, is on the appointing authority. Id.
The Commission’s authority to “hear and decide” disciplinary cases (La. Const, art. X, § 50) includes a duty to decide independently from the facts presented whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction (cause). See Walters v. Department of Police of New Orleans, 454 So.2d 106, 113 (La.1984). In reviewing the Commission’s findings of fact, a court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. See Id. at 114. Moreover, in judging the Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the reviewing court should not modify the Commission’s order unless it is arbitrary, capricious or characterized by an abuse of discretion. See Id.
“Cause” for dismissal of a person who has gained permanent status in the classified civil service has been interpreted to include conduct prejudicial to the public service in which the employee in question is engaged or detrimental to its efficient operation. Walters v. Department of Police of New Orleans, 454 So.2d at 113. Dismissal from permanent employment is obviously the most extreme from of disciplinary action that can be taken against a classified state employee; thus, cause that may justify some other lesser form of disciplinary action may not justify a dismissal. Appeal of Kennedy, 442 So.2d 566, 569 (La.App. 1st Cir.1983).

Mr. Bailey argues in his first assignment of error that the Commission had no basis to uphold his termination in light of his acquittal on the DWI charge by the Fourteenth Judicial District Court. He contends that the violations of the Louisiana State Police Policy and Procedure Rules alleged by the State Police were based solely on the DWI charge, and because he was acquitted, the violation cannot be used to support his termination. In 1 mupholding the termination, Mr. Bailey contends, the Commission superseded the district court’s authority.

This Court has previously held that an acquittal on a criminal charge does not preclude a civil service disciplinary action based on the same set of facts. See Department of Public Safety and Corrections v. Hooker, 558 So.2d 676, 678 (La.App. 1st Cir.1990). Moreover, unlike a criminal proceeding in which the state must prove beyond a reasonable doubt all the elements of the charged crime, the appointing authority in an administrative proceeding need only prove by a preponderance of the evidence that the complained of action occurred and that it impaired the efficient operation of the public service. Walters v. Department of Police of New Orleans, 454 So.2d 106, 113 (La.1984).

The Commission correctly acknowledged that it was not their role to determine whether Mr. Bailey was guilty or innocent “as to the crime of driving while intoxicated” and that “[Mr. Bailey’s] acquittal, for whatever reason, by the Court in Calcasieu Parish of DWI, is interesting but certainly not dispositive of his disciplinary action before this tribunal.” The Commission concluded that the State Police presented sufficient evidence to support its claim that Mr. Bailey had operated a department vehicle while having a blood alcohol concentration level of .152%, almost twice the legal limit and, in doing so, jeopardized the public’s safety. Based on the testimony of Mr. Tommy Heil, a breath analysis instructor specialist for the State Police, the Commission found that the Intoxilyzer 5000 machine used on Mr. Bailey was certified and operating properly at the time of the test. The Commission also considered the testimony of Mr. John Ricca, an [^employee of the State Police Crime Lab who testified as an expert in ethyl alcohol metabolism analysis. According to Mr. Ricca, the ethyl alcohol found in Nyquil was the same as that found in whiskey, but Mr. Bailey would have had to consume four and one-half bottles of Nyquil to register the .152% reading on the Intoxilyzer 5000 breath test. Thus, the Commission determined Mr. Bailey’s intoxication at the time of his arrest resulted from his consumption of whiskey, not Nyquil.

The Commission found that the testimony of the witnesses called by the State Police demonstrated that Mr. Bailey exhibited “classic signs” of intoxication at the time of his arrest, including slurred speech, the odor of alcohol on his breath, and an unsteady gait. Notably, the Commission concluded that the testimony of the arresting officers, Sgt. Gilland and Deputy Landry, and that of the other law enforcement officers was “candid, consistent, and logical” while Mr. Bailey’s was “inconsistent to the extreme, consisting of different versions of the events depending on his audience.” Specifically, the Commission found the sequence of events leading to the traffic stop and Mr. Bailey’s arrest were in dispute “largely because of the numerous, conflicting versions of those events given by [Mr. Bailey] in his written and recorded statements and his testimony before the Commission.” The Commission emphasized that Mr. Bailey testified before them that he had only consumed two diet Cokes at the Iron Horse Bar, contradicting his earlier written and oral statements, yet he never called any witness from the bar to corroborate his testimony. His failure to do so, the Commission concluded, created a presumption that the testimony from any such witness would have been adverse to his claim.

| ^Furthermore, to accept Mr. Bailey’s argument that the Commission should be bound by the judgment of the Fourteenth (14th) Judicial District Court acquitting him of the DWI charge would effectively ignore the fact that his termination was based on misconduct other than his DWI arrest and reckless operation of a vehicle. The State Police submitted ample evidence to the Commission that demonstrated Mr. Bailey violated Louisiana State Police Policy and Procedure Rules not directly related to the DWI arrest. Based on the testimony and documentary evidence, the Commission determined that Mr. Bailey made a false statement in his written statement provided to Lt. Poullard shortly after his arrest, and that he made false and misleading statements to the other law enforcement officers investigating the incident, all in violation of Louisiana State Police Policy and Procedure Rule 01-02.16.

Additionally, the Commission determined that when Mr. Bailey produced his State Police badge and pleaded with the arresting officers “to, in effect, stop processing his case as a DWI,” he violated Louisiana State Police Policy and Procedure Rules 01-02.05, relative to conduct unbecoming of an officer, and 01-02.07, by using his State Police badge for the purpose of avoiding the consequences of illegal acts.

After reviewing the evidence in the record, we find the State Police had sufficient grounds to terminate Mr. Bailey. Although Mr. Bailey was acquitted of the DWI charge, he knowingly lied to both the arresting officers and State Police investigators, misused his State Police badge, and had four prior disciplinary measures imposed on him for misconduct. Collectively, these infractions clearly support the disciplinary action taken by the State | ^Police in terminating Mr. Bailey and the Commission’s decision to uphold the termination. We find no merit to the first assignment of error.

As to the second assignment of error, Mr. Bailey argues that the Commission’s ruling upholding his termination from employment was arbitrary, capricious and characterized by an abuse of discretion. He contends that Supt. Whitehorn acted hastily in terminating him before the criminal prosecution on the DWI charge had concluded. Mr. Bailey points out that he had been employed by the State Police for twenty-four years and eleven months and, during that time, had received several commendations and meritorious service certificates for his job performance. He claims that Supt. Whitehorn had agreed that he would not pursue the disciplinary action and would allow him to remain on the force using his annual leave time until his eligible retirement date if he would retire on that date. Mr. Bailey asserts that Supt. Whitehorn breached that agreement by pursuing the disciplinary action. He also contends that Supt. Whitehorn terminated him to prevent him from suing the State Police for violating his rights.

We find no merit to Mr. Bailey’s claim that Supt. Whitehorn breached an agreement with him to not pursue the disciplinary action. Supt. Whitehorn testified before the Commission that after sending Mr. Bailey notice of the intended termination, he responded, requesting that he not be terminated but instead be allowed to use his annual leave time until his retirement date and then retire. Supt. Whitehorn said he considered the request and was inclined to grant it considering Mr. Bailey’s length of service. However, he had one condition. Explaining that Mr. Bailey had threatened to sue the State Police as a result of the incident, Supt. Whitehorn |14informed him that he would honor his retirement request only if Mr. Bailey would agree to forego any legal action against the State Police. Supt. Whitehorn testified that Mr. Bailey initially agreed to those terms, but shortly thereafter sent a letter to the State Police stating, “based on the advice of his attorney they felt that they would win the criminal case against him and that, he was no longer going to sign any documents regarding retirement.” In view of Mr. Bailey’s decision to not retire, Supt. White-horn testified he had no option but to pursue the disciplinary action considering the severity of Mr. Bailey’s misconduct.

Mr. Bailey argued to the Commission that the condition placed on his retirement request by Supt. Whitehorn, ie., no legal action against the State Police, was “capricious and dishonorable” and violated his employment rights. The Commission, however, disagreed, stating,

It would make no sense to permit [Mr. Bailey] to use leave so that he could retire and escape termination without requiring that he forego any claims against the Department. As noted by the [attorney for [the] Louisiana State Police in her post hearing memorandum, the Department had no obligation to offer [Mr. Bailey] the opportunity to remain an employee until his retirement date. However, it did so and [Mr. Bailey] rejected that offer.

We also find no merit to Mr. Bailey’s claim that Supt. Whitehorn terminated him to “thwart” his right to sue the State Police for violating his rights. The termination in no way precludes Mr. Bailey from filing a suit against the State Police if he chooses to do so.

Finally, we consider whether the Commission’s ruling upholding Mr. Bailey’s employment termination was arbitrary, capricious or characterized by an abuse of discretion.

h sA conclusion of a public body is “capricious” when the conclusion has no substantial evidence to support it or the conclusion is contrary to the substantiated competent evidence. The word “arbitrary” implies a disregard of evidence or of the proper weight thereof. Khosravanipour v. Department of Transportation and Development, 93-2041, 93-2045, p. 8 (La. App. 1 Cir. 10/7/94), 644 So.2d 823, 827.

In Antoine v. Department of Public Safety and Corrections, 95-2558 (La.App. 1 Cir. 9/27/99), 681 So.2d 1282, this Court affirmed the Commission’s decision to uphold the termination of a trooper’s employment where the trooper had appeared for duty while under the influence of intoxicants and drove his unit in that condition. The Court determined that the Commission did not exercise its authority unlawfully in concluding that the punishment was commensurate with the cause upon which the disciplinary action was based. The Court concluded that the Commission’s decision was not arbitrary, capricious or characterized by an abuse of discretion, even in light of the mitigating circumstances set forth by Mr. Antoine, including the fact that he was an alcoholic and that subsequent to the incident which prompted his removal, he had received and continued to receive treatment for his condition. The Commission stated that Mr. Antoine, while on duty and entrusted with the enforcement of the law, was, in fact, engaged in law enforcement activities involving direct interaction with the public while noticeably under the influence of alcohol. His actions, the Commission found, not only had the potential of damaging the public’s perception of the State Police, but also were extremely dangerous and could have been fatal to himself and others. The Court also considered, as did the | ^Commission, Mr. Antoine’s sixteen years of experience and the testimony that he was a “ ‘salvageable employee.’ ” Considering the severity of the infraction and the record as a whole, the Court was unable to say that the Commission’s decision to affirm the termination was arbitrary, capricious or an abuse of discretion.

Although Mr. Antoine, unlike Mr. Bailey, was on duty at the time of the complained of behavior, Mr. Bailey’s situation is similar in that at the time of his arrest, he was driving a state police vehicle, and as such, had an obligation to enforce and obey the law. Mr. Bailey’s reckless operation of a state police vehicle while intoxicated put him and others in extreme danger. His actions also exposed the State of Louisiana to potential liability. In addition, Mr. Bailey, on four previous occasions, had been disciplined. The last disciplinary action, taken in July 1999, arose out of a vehicular accident in which Bailey was driving with a blood alcohol concentration of .11%. Considering the four prior infractions, one involving alcohol, and his actions at the time of his arrest and during the follow up investigation, the Commission concluded the State Police had ample grounds to terminate Mr. Bailey. Based on the evidence in the record, we do not find the Commission’s decision to uphold Mr. Bailey’s employment termination was arbitrary, capricious or characterized by an abuse of discretion. We agree with the Commission’s conclusion that Mr. Bailey’s termination was warranted and commensurate with his infractions.

CONCLUSION

Accordingly, for the reasons set forth herein, we affirm the decision of the Commission, upholding the termination of employment of Mr. Kenneth |17P. Bailey by the Department of Public Safety and Corrections, Office of State Police.

AFFIRMED.

      .01-02.05 CONDUCT UNBECOMING OF AN OFFICER
      A commissioned officer shall conduct himself at all times, both on and off-duty, in such a manner as to reflect most favorably on himself and the Department.
      Unbecoming conduct is defined as conduct which:
      — Brings the Department or any of its subdivisions into disrepute;
      — Reflects discredit upon the officer as a member of the Department;
      — Impairs the operations or efficiency of the Department, the officer, or state service;
      —■ Detrimentally affects the morale of the Department’s personnel; or
      — May unreasonably be expected to destroy public respect for State Police Officers and/or confidence in the Office of State Police.

      . 01-02.07 BADGE OF OFFICE
      The term "badge of office" shall include the identification/commission card, badge, official position, title, uniform or any other tangible or intangible thing by which it can be construed that the concept “Louisiana State Police” is being interjected...
      A commissioned officer shall not use his badge of office for the purpose of avoiding the consequences of illegal acts.

      . 01-02.04 CONFORMANCE TO LAWS
      A commissioned officer shall conform to, and abide by, the laws of the United States, the State of Louisiana, all other states of the United States and subdivisions thereof.

      . 01-02.18 DEPARTMENT VEHICLES
      A commissioned officer shall operate any vehicle in a careful and prudent manner and obey all laws of the State pertaining thereto.

        A commissioned officer shall at all times set a proper example for other persons by his proper operation of vehicles.

      .04-03.02 VEHICLE USAGE LIMITATIONS AND REQUIREMENTS
      Personnel shall drive all Department vehicles with prudence and care, mindful that abuse, misuse or recklessness reduces the operating efficiency of the Department’s fleet.
      Personnel shall not operate or use a Department vehicle in any manner which might bring discredit to the employee or the Department. ..
      Personnel shall observe all traffic laws and agency regulations when operating Department vehicles. Although officers are granted specific exemptions from the Highway Regulatory Act (LRS 32:24), they are not relieved of the responsibility to operate vehicles with due regard for the safety of all persons. Employees shall drive courteously and with proper regard for other motorists. ..
      No employee shall operate a Department vehicle after consuming alcoholic beverages unless an officer must do so as part of an official agency investigation. Only those officers who are working in an official, undercover capacity shall be given the latitude to consume alcoholic beverages during the course of an investigation...
      Unauthorized operation of a fleet vehicle after consumption of alcoholic beverages shall be prima facie evidence of intent to violate this order.

      . 04-03.03 VEHICLE OFF-DUTY USE
      Officers shall be held strictly accountable for their personal appearance, conduct and decorum while operating Department vehicles ...
      Officers are subject to the same rules and regulations off-duty as they are while on duty with regard to the operation and care of their assigned units.

      . 01-02.16 FALSE STATEMENTS
      A commissioned officer shall make no statement or falsify any written report to a superior officer knowing such statement to be incorrect or misleading.
      No commissioned officer shall willfully and/or intentionally withhold any information from a report or statement, knowing such information to be relevant to the report or statement.

      . 01-02.29 USE OF INTOXICANTS
      Off-duty: A commissioned officer while off-duty shall not consume alcoholic beverages to the extent that it results in public behavior which could reasonably be expected to destroy public respect and/or confidence in the officer and/or the Department or would render a commissioned officer unfit to report for his next regular tour-of-duty.

      . La. R.S. 14:98 provides, in pertinent part:
      A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when:
      (a) The operator is under the influence of aLcoholic beverages; or
      (b) The operator's blood alcohol concentration is 0.08 percent or more by weight based on. grams of alcohol per one hundred cubic centimeters of blood; ...

      . La. R.S. 32:58 provides:
      Any person operating a motor vehicle on the public roads of this state shall drive in a careful and prudent manner, so as not to endanger the life, limb, or property of any person. Failure to drive in such a manner shall constitute careless operation.


text:
    Nhut Van MAI v. George R. FLOYD.
    No. 2005 CA 2301.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 6, 2006.
    Rehearing Denied Feb. 14, 2007.
    Michael J. Coleman, Baton Rouge, for Plaintiff/Appellant, Nhut Van Mai.
    Raymond L. Simmons, Baton Rouge, for Defendant/Appellee, George R. Floyd.
    (Court composed of Judge JAMES F. MCKAY, III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr., serving as judges ad hoc by special appointment of the Louisiana Supreme Court).
   TERRI F. LOVE, Judge, Ad Hoc.

1 ?,This appeal arises from a petition for declaratory judgment regarding a lot of immovable property sold by tax deed. Nhut Van Mai asserted that he owned the property via possession and acquisitive prescription. George Floyd asserted ownership based on a tax sale deed. The trial court found that Nhut Van Mai was in possession of the property, but that George Floyd owned the lot and dismissed the declaratory judgment. We find the trial court erred in declaring George Floyd the owner, reverse the judgment, and render.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On May 23, 2002, Nhut Van Mai (“Mr. Mai”) filed a petition for declaratory judgment alleging ownership of “Addition to Roppolovilla, ... Lot Ten (10), Square Nine (9)” (“lot 10”), based upon possession and good faith, through successors of title, for ten years.

On June 19, 1984, Joseph and Lynn Campagna (“the Campagnas”) sold “LOTS NINE (9) AND TEN (10), SQUARE NINE (9)” to Richard and Beulah Albert (“the Alberts”). The Alberts then sold lots nine and ten to Ali |sand Inggub Tabrizi (“the Tabrizis”), and Susan Zare (“Ms. Zare”) on May 4, 1990. Ms. Zare sold her interest in the lots to the Tabrizis on July 17,1991. Mr. Mai purchased the lots from Mr. Tabrizi, after he divorced Mrs. Tabri-zi, on January 9, 1996. Mr. Mai operated the Premier Grocery Store (“Premier Grocery”) on lots nine and ten. All of the above conveyances concluded without a title examination.

Raymond Floyd purchased lot ten of Mr. Mai’s alleged property by tax sale in 1986. Raymond Floyd filed a petition for monition on April 26, 1996. The tax sale of lot ten was “confirmed and homologated” and “made perfect and complete” on June 20, 1996. In 1999, Raymond Floyd sold lot ten to his son George Floyd (“Mr. Floyd”). Mr. Floyd has paid and continues to pay the property taxes on lot ten.

In December 2001, Mr. Mai attempted to convey lots nine and ten to Ha Hoang (“Ms. Hoang”). While negotiating the purchase, Ms. Hoang’s attorney performed a title examination, during which she and Mr. Mai discovered a previous tax deed conveying lot ten to Raymond Floyd. Ms. Hoang began operating the Premier Grocery in January 2002, and remains the “current operator.” She redeemed lot nine from the State by paying over $15,000 around January 2005.

The trial court orally determined that Mr. Mai was in possession of lot ten, but held that Mr. Floyd was the owner and dismissed the petition for declaratory judgment. Mr. Mai’s appeal followed.

Mr. Mai asserts the trial court erred by declaring Mr. Floyd the owner of lot ten as he and his predecessors in title “have enjoyed continuous, peaceful, uninterrupted possession of the property” for over ten years by [maintaining and operating Premier Grocery.

STANDARD OF REVIEW

Appellate courts review a trial court’s decision to grant or deny a declaratory judgment using the abuse of discretion standard. Ricard v. State, 544 So.2d 1310, 1312 (La.App. 4th Cir.1989). Factual findings made by the trial court are reviewed with the manifest error or clearly wrong standard. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

DECLARATORY JUDGMENT

Courts “may declare rights, status, and other legal relations whether or not further relief is or could be claimed.” La. C.C.P. art. 1871. “[T]he existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.” La. C.C.P. art. 1871. The result “shall have the force and effect of a final judgment or decree.” La. C.C.P. art. 1871. Interested parties may-use a declaratory judgment to determine their rights when it regards a “deed, will, written contract or other writing constituting a contract.” La. C.C.P. art. 1872.

When the issue of ownership of immovable property or of a real right therein is presented in an action for a declaratory judgment ... the court shall render judgment in favor of the party:
(1) Who would be entitled to the possession of the immovable property or real right therein in a possessory action, unless the adverse party proves that he has acquired ownership from a previous owner or by acquisitive prescription; or
(2) Who proves better title to the immovable property or real right therein, when neither party would be entitled to the possession of the immovable property or real right therein in a possessory action.

|fiLa. C.C.P. art. 3654. Therefore, we must decide which party should prevail on a possessory action and if acquisitive prescription determines who owns lot ten.

POSSESSORY ACTION

A possessory action is brought by the alleged possessor “when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.” La. C.C.P. art. 3655. The possessor must prove that: 1) he had possession during the disturbance; 2) he and his predecessors in title had possession without interruption and quietly “for more than a year immediately prior to the disturbance, unless evicted by force or fraud”; 3) the disturbance could be one in fact or in law; 4) the “possessory action was instituted within a year of the disturbance.” La. C.C.P. art. 3658. A disturbance is “an execution, recordation, registry, or continuing existence of record of any instrument.” La. C.C.P. art. 3659. The trial court found that Mr. Mai was in possession of lot ten and the issue in not appealed in this case.

ACQUISITIVE PRESCRIPTION

Possession and ownership are distinct claims to a thing. La. C.C. art. 481. A party may acquire ownership of an immovable through prescription after ten years. La. C.C. art. 3473. Corporeal possession must be alleged by the adverse possessor. La. C.C. art. 3476. “Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing.” La.Civ.Code art. 3425. Acquiring ownership through the ten-year acquisitive prescription period requires that the person in possession be in good faith, have just title, and a “thing susceptible of acquisitive | ^prescription.” La. C.C. art. 3475. Good faith means that the person “reasonably believes, in light of objective considerations, that he is owner of the thing he possesses.” La. C.C. art. 3480. The Louisiana Civil Code presumes good faith that can be “rebutted on proof that the possessor knows, or should know, that he is not the owner of the thing he possesses.” La. C.C. art. 3481. “[Ejrror of fact nor error of law defeats this presumption.” La. C.C. art. 3481. “It is sufficient that possession has commenced in good faith; subsequent bad faith does not prevent the accrual of prescription of ten years.” La. C.C. art. 3482.

In the case sub judice, corporeal possession that is “continuous, uninterrupted, peaceable, public, and unequivocal” for ten years is mandated for prescription. La. C.C. art. 3476. Once proved, ownership boundaries are fixed according to “limits established by prescription rather than titles.” La. C.C. art. 794.

Mr. Mai asserts that he has had “continuous, uninterrupted, peaceable, public, and unequivocal” possession for at least ten years. The tax sale occurred in 1986 during the Alberts’ ownership: they sold the lots to the Tabrizis and Ms. Zare on May 4, 1990. If they were in good faith at the time of the conveyance, then Mr. Mai could tack on their ownership to his and become the owner of lot ten through the ten-year acquisitive prescription period. La. C.C. art. 3442.

The burden of proving bad faith remains with the party attempting to rebut the presumption of good faith. Phillips v. Parker, 483 So.2d 972, 979 (La.1986). Mr. Floyd avers that Mr. Mai was in bad faith because he stated that he was “happy” that he did not receive a tax bill for the property and 17that he knew he paid property taxes on his home and in Vietnam. However, this testimony does not address the central issue of Mr. Mai’s good or bad faith at the time of conveyance. Mr. Mai testified that he and Mr. Tabrizi went to the tax assessor’s office to check into whether delinquent taxes were owed on lots nine and ten. He was told that no taxes were due prior to his purchase. Additionally, the fact that no parties, prior to Ms. Hoang, conducted a title examination, which would have revealed the 1986 tax sale, does not create bad faith. Ponder v. Jenkins, 468 So.2d 1275, 1278 (La.App. 1st Cir.1985). The record is devoid of evidence as to bad faith on the part of the Tabrizis or Ms. Zare.

However, the record does document that the Premier Grocery has been operated without interruption for at least ten years. Mr. Floyd and Mrs. Floyd testified that Raymond Floyd attempted to sell lot ten to Mr. Mai. They also stated that Raymond Floyd and his attorney entered Premier Grocery on one occasion to inform the operators of lot ten’s “true” owner. Mr. Mai was not at the store that day, but both Mr. Floyd and his mother testified that a woman became angry and ordered them out of Premier Grocery. However, Mr. Floyd and Mrs. Floyd testified that, to their knowledge, no further legal action or attempts to take corporeal possession of lot ten were taken. Accordingly, we find that Mr. Floyd failed to meet his burden of proving bad faith. In fact, the record demonstrates a lack of action by Raymond Floyd and Mr. Floyd. Thus, the trial court erred by declaring Mr. Floyd the owner of lot ten as Mr. Mai acquired ownership by acquisitive prescription.

\ ¿DECREE

Accordingly, we reverse the decision of the trial court and render.

REVERSED AND RENDERED.