author: THIBODEAUX, Chief Judge.

text:
    MACRO OIL COMPANY, INC. v. CITY OF BREAUX BRIDGE.
    No. 12-932.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.

      James L. Pate, Jason T. Reed, Laborde & Neuner, Lafayette, LA, for Defendant/Appellant, City of Breaux Bridge.
    Kyle Liney Mark Gideon, Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, LLP, Lafayette, LA, for Plaintiff/Appellant, Macro Oil Company, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   THIBODEAUX, Chief Judge.

| TMacro Oil Company, Inc. (“Macro”) filed this suit against the City of Breaux Bridge (“City”) after the Breaux Bridge City Council (“City Council”) denied Macro’s rezoning and variance application. Macro filed a motion for partial summary judgment requesting that the trial court overturn the City Council’s decision and award Macro monetary damages. Following a hearing, the court granted Macro’s motion and ordered the City to grant Macro’s application. The court found the City was entitled to discretionary immunity, however, and granted summary judgment to the City on the issue of damages. Macro and the City appeal. For the following reasons, we affirm both judgments.

I.

ISSUES

We will consider:

(1) whether the trial court erred in granting summary judgment in favor of Macro on the issue of Macro’s zoning and variance requests; and
(2) whether the trial court erred in granting summary judgment in favor of the City on the issue of discretionary immunity.

II.

FACTS AND PROCEDURAL HISTORY

Macro purchased five acres of property at the intersection of Interstate 10 and Louisiana Highway 328 in St. Martin Parish (“the property”). Before the purchase, the company had requested and received confirmation from St. Martin Parish that the property was zoned for a truck stop casino that sells alcohol. That same year, after Macro purchased the property, the City annexed it into Breaux Bridge. The City zoned the property according to a C-2 classification, which |2permits commercial businesses, including a truck stop, but does not allow gaming devices or alcohol.

To build the truck stop casino under the new zoning arrangement, Macro filed an application with the Breaux Bridge Planning and Zoning Commission (“Commission”) requesting the property be rezoned to a C-4 classification to allow Macro to sell alcohol. Macro similarly requested a variance to include gaming devices at its establishment. Following a public hearing, the Commission recommended that the application be denied. Macro appealed to the City Council, which rejected the application after one member voted to deny, two members voted to approve, and two members abstained from voting.

Macro sued the City in district court to overturn the City Council’s decision and filed a motion for partial summary judgment, which the trial court granted. The court issued a writ of mandamus ordering the City to rezone the property and grant the variance. The City also filed a motion for partial summary judgment on the issue of damages, and the court granted the motion after finding that the City is entitled to statutory immunity. Both parties appeal.

III.

LAW AND DISCUSSION

Standard of Review

We review a grant of summary judgment de novo “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Servs. and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. Once the mover has made a prima facie case that the motion should be granted, the non-mover must then present evidence sufficient to show a genuine issue of material fact. La.Civ.Code art. 966(C)(2); Simien v. Med. Protective Co., 08-1185 (La.App. 3 Cir. 6/3/09), 11 So.3d 1206, writ denied, 09-1488 (La.10/2/09), 18 So.3d 117. If the non-mover fails to present some evidence that he might be able to meet his burden of proof at trial, the motion should be granted. Id. An appellate court reviews a zoning board’s decision directly, and considers whether the board “acted arbitrarily, capriciously or with any calculated or prejudicial lack of discretion.” King v. Caddo Parish Comm’n, 97-1873, p. 15 (La.10/20/98), 719 So.2d 410, 418 (quoting Papa v. City of Shreveport, 27,045, p. 4 (La.App. 2 Cir. 9/29/95), 661 So.2d 1100, 1103, writ denied, 95-2544 (La.1/5/96), 666 So.2d 295).

Discussion

I. The City Council was arbitrary and capricious in denying Macro’s requests.

The City argues that the trial court erred in holding that the City Council was arbitrary and capricious and in ordering the City to rezone the property and grant the variance. We disagree. The City Council was arbitrary and capricious if it acted with “willful and unreasoning action, absent consideration and in disregard of the facts and circumstances of the case.” King, 719 So.2d at 418 (quoting Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659, 666 (La.1974)). If the decision is “unreasonable under the circumstances,” and bears no relation to the health, safety, or general welfare of the public, then it should be reversed. Id.; Toups v. City of Shreveport, 10-1559 (La.3/15/11), 60 So.3d 1215.

|4The City Council was arbitrary and capricious because all of the community concerns it expressed related to Macro’s ability to build a truck stop, not to the substance of Macro’s request. Further, Macro offered remedial measures to each concern, even though such explanation was not required. Finally, the City Council treated Macro differently than other identical businesses in the area.

The only City Council member who voted against Macro cited concerns of traffic, drainage, and aesthetics. The City argues that these concerns are substantially related to the health, safety, and welfare of its citizens. All of these matters, however, regard Macro’s decision to build a truck stop, for which the property is already zoned, and do not address the addition of alcohol or gaming devices. For instance, the traffic issues involve the ability of eighteen-wheeled trucks to successfully maneuver to Macro’s proposed truck stop. This capability is neither hindered nor supported by alcohol or gaming. Likewise, the aesthetics of the truck stop and any drainage issues will remain the same regardless of alcohol or gambling. The City failed to justify why the introduction of alcohol and gaming would be detrimental to the safety or welfare of the Breaux Bridge community.

Furthermore, Macro proposed remedial measures to each truck stop concern. It offered to invest in a filter for the truck stop’s drainage and to install a fence and shrubbery in order to appease concerns about aesthetics. The company also stated that it would widen the service road leading to the property to minimize traffic congestion.

The City Council was similarly arbitrary because two other truck stop casinos that sell alcohol are allowed to operate in the area immediately surrounding Macro’s property. Where other businesses are granted zoning and permit requests in similar situations, the refusal of the rezoning request “may constitute non-uniform application of zoning ordinance[s]” that is arbitrary and capricious. King, 719 So.2d at 419; Clark v. City of Shreveport, 26,638, p. 9 (La.App. 2 Cir. 5/10/95), 655 So.2d 617, 622. Pilot’s Travel Center and Silver’s Casino both operate truck stop casinos that sell alcohol and are located to the southeast and northwest of Macro’s property, respectively. Both of these establishments faced public opposition, but were granted appropriate zoning classifications nonetheless. The City Council treated Macro’s request in a non-uniform and arbitrary way given the other identical businesses in the immediate area.

We find that the City’s decision to reject Macro’s application was arbitrary and capricious.

II. The City is entitled to discretionary immunity.

Macro argues that the City is liable to it for lost profits after the City Council rejected Macro’s application. The City claims immunity under the discretionary immunity statute, which states that liability “shall not be imposed on public entities ... based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.” La.R.S. 9:2798.1(B). Macro asserts that this case is excepted because the provisions of statutory immunity do not apply to acts which are “not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists.” La.R.S. 9:2798.1(C)(1). Macro contends that if we find the City Council was arbitrary and capricious, then we must per se find that the City Council’s actions were not reasonably related to a legitimate governmental objective. We disagree.

Discretionary immunity depends on a two-step inquiry. Fowler v. Roberts, 556 So.2d 1 (La.1989). We must first decide whether the zoning body exercised a choice; if it was required to follow a specific course of action, then discretionary immunity does not apply. Id. If the board exercised discretion, then we must examine whether the decision was grounded in social, economic, or |fipolitical policy. If the decision was not based on a policy consideration, then the board may be liable for damages. Id.

The City Council exercised a choice by rejecting Macro’s application, and that choice was grounded in policy considerations. Although the City Council’s policy concerns were misplaced because they related to the truck stop and not gaming or alcohol, it considered these policies nonetheless. Further, if we accept Macro’s argument that a zoning body which acts arbitrarily and capriciously will always be liable for monetary damages if its decision is overturned, it would significantly deter deliberative conduct by the zoning body. The City Council must be free to consider all circumstances of a decision without the threat of damages. We find the City is entitled to statutory immunity.

IV.

CONCLUSION

For the reasons above, we affirm the trial court’s grant of partial summary judgment to Macro on the rezoning and variance issues, and we affirm the trial court’s grant of partial summary judgment to the City on the issue of discretionary immunity. Costs of this appeal are to be shared equally by Macro Oil Company, Inc. and the City of Breaux Bridge.

AFFIRMED.

      . Some procedural details of Macro’s application process are irrelevant to our decision and are not included here.

      . A majority of the City Council members present were required to approve the application; therefore, Macro had to obtain three "yes” votes. Even though only one City Council member voted to reject the application, it was denied because two members abstained from voting.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    John K. SCARBOROUGH and Renea Scarborough, Individually, as Married Persons and on behalf of their Minor Children, John Kevin Scarborough and Patrick Cody Scarborough v. Carol A. RANDLE and General Insurance Company of America.
    No. 12-1061.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.

      Barry Ray Laiche, Patrick B. Sadler, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Marksville, LA, for Plaintiffs/Appellants, John K. Scarborough and Renea Scarborough, Individually, as Married Persons and on Behalf of their Minor Children, John Kevin Scarborough and Patrick Cody Scarborough.
    H. Minor Pipes, III, Susan M. Rogge, Kristen L. Beckman, Barrasso Usdin Kup-perman Freeman & Sarver, L.L.C., New Orleans, LA, for Defendant/Appellee, General Insurance Company of America.
    David T. Butler, Jr., Funderburk & Butler, Attorneys at Law, Baton Rouge, LA, for Intervenor/Appellee, Bridgefield Casualty Insurance Company.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

|,Plaintiffs, John Scarborough and Re-nea Scarborough, individually, and on behalf of their minor children, John Kevin Scarborough and Patrick Cody Scarborough, appeal the trial court’s grant of a Motion for Summary Judgment filed by Defendant, General Insurance Company of America, dismissing their claims. Interve-nor, Bridgefield Casualty Insurance Company, answers the appeal, and also seeks a reversal of the grant of summary judgment which dismissed its claim in intervention. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This action stems from a February 25, 2008 automobile accident that occurred when John Scarborough, driving a van owned by his employer, Medical Technology of Louisiana, Inc. (Medical Technology), and insured by General Insurance Company of America (GICA), was rear-ended by Carol A. Randle. The Scarbor-oughs filed suit against Ms. Randle, who was uninsured, and GICA for uninsured/underinsured motorist (UM) benefits. Bridgefield Casualty Insurance Company (Bridgefield), Medical Technology’s workers’ compensation insurer, intervened in subrogation for the workers’ compensation benefits it paid to Mr. Scarborough.

The Scarboroughs and GICA filed cross-motions for summary judgment on the issue, vel non, of UM coverage under GICA’s policy. GICA contended that the amount of UM coverage under the policy was $100,000.00. In opposition, the Scar-boroughs argued that UM coverage in an amount equal to the liability limits of $1,000,000.00 was available to them by operation of law, because GICA had not produced a valid and enforceable UM rejection form prescribed by the commissioner of insurance. The trial court denied the Scarboroughs’ Motion for Summary Judgment and granted GICA’s Motion for Summary Judgment, finding |aUM coverage had been validly rejected. The Scarbor-oughs appealed, and Bridgefield answered the appeal.

ASSIGNMENTS OF ERROR

On appeal, the Scarboroughs assert that “[t]he [district [cjourt committed reversible error by granting [GICA’s] Motion for Summary Judgment as there exist[ ] genuine issues of material fact sufficient to prevent [GICA] from being entitled to judgment as a mater of law.” Bridgefield joins in this assertion.

LAW AND DISCUSSION

The Scarboroughs seek a de novo review of the record to determine if the trial court erred in granting GICA’s Motion for Summary Judgment. A de novo review is the proper standard of review in a summary judgment case where there are contested issues of fact. Guillot v. Guillot, 12-109 (La.App. 3 Cir. 6/6/12), 92 So.3d 1212. However, “[i]n a case where there are no contested issues of fact, and the only issue is the application of the law to the undisputed facts, ... the proper standard of review is whether or not there has been legal error.” Tyson v. King, 09-963, p. 2 (La.App. 3 Cir. 2/3/10), 29 So.3d 719, 720 (quoting Bailey v. City of Lafayette, 05-29, p. 2 (La.App. 3 Cir. 6/1/05), 904 So.2d 922, 923, writs denied, 05-1689, 05-1690, 05-1691, and 05-1692 (La.1/9/06), 918 So.2d 1054, 1055, and the cases cited therein). In this case, the facts are not in dispute. Therefore, the proper standard of review is whether the trial court’s grant of summary judgment constituted legal error.

In 2006, the statute governing the form for rejecting UM coverage was La.R.S. 22:68o. At the applicable time, La.R.S. 22:680 read, in pertinent part:

RThe following provisions shall govern the issuance of uninsured motorist coverage in this state:
(l)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Section unless coverage is provided therein or supplémental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item (l)(a)(ii) of this Section. In no event shall the policy limits of an uninsured motorist policy be less than the minimum liability limits required under R.S. 32:900, unless economic-only coverage is selected as authorized herein. Such coverage need not be provided in or supplemental to a renewal, reinstatement, or substitute policy when the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer or any of its affiliates. The coverage provided under this Section may exclude coverage for punitive or exemplary damages by the terms of the policy or contract. Insurers may also make available, at a reduced premium, the coverage provided under this Section with an exclusion for all noneconomic loss. This coverage shall be known as “economic-only” uninsured motorist coverage. Noneconomic loss means any loss other than economic loss and includes but is not limited to pain, suffering, inconvenience, mental anguish, and other noneconomic damages otherwise recoverable under the laws of this state.
(ii) Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new L selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. An insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the commissioner of insurance. Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. For the purpose of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.

Additionally, our supreme court in Duncan v. U.S.A.A. Insurance Co., 06-363 (La.11/29/06), 950 So.2d 544, enumerated specific requirements for there to be a valid waiver of UM/UIM coverage. In this case, it is undisputed that the Duncan requirements were fulfilled; however, the Scarboroughs argue that the form titled “Louisiana Auto Supplement” is insufficient to constitute a valid UM/UIM rejection form since it was not prescribed by the commissioner of insurance. We disagree.

The document executed in this case is the same as the form prescribed by the commissioner of insurance except that it omits the two-line header, “State of Louisiana!,]” followed by: “This form was promulgated pursuant to LRS 22 § 1406-D.(l)(a)(ii). This form may not be altered or modified.” In all other respects, the Louisiana Auto Supplement form is identical to the commissioner’s form and contains the exact same substance and wording.

In Lachney v. Hanover Insurance Co., 04-2316 (La.App. 1 Cir. 11/4/05), 927 So.2d 380, writ denied, 05-2432 (La.3/24/06), 925 So.2d 1238, the first circuit considered the exact issue that is presently before this court. In Lachney, the plaintiffs argued that the same “magic words” were omitted from the UM rejection form, thereby rendering the rejection invalid. Though the form in Lachney |r,contained additional other deviations, the Lachney court held that the rejection was valid and enforceable, reasoning as follows:

After carefully reviewing the UM selection/rejection form signed on July 27, 2001, by the president and legal representative, we conclude that the method of rejecting and/or selecting UM coverage satisfies the statutory requirements. The form clearly states that the policy will include UMBI coverage at the same limits as bodily injury liability coverage unless requested otherwise. The form clearly informs the insured that it can select UM coverage in an amount equal to the bodily injury limits of the policy, or an amount that will compensate for economic and non-economic losses with limits lower than the bodily injury liability coverage.
Although not exactly on point with this case, in Jones v. Jones, 36,040 (La.App. 2 Cir. 5/8/02), 817 So.2d 454, the court ruled that even though the prescribed form requires that the insurance company name and policy number be included on the UM form, this omission should not invalidate an otherwise valid form because it was clear that the insured wanted to reject UM coverage. Here, despite a number of technical errors, it is clear that the insured intended to choose UM coverage in a lesser amount than the liability policy limits. The form employed comports in every substantial way with the required statutory form.
Further, Blacks Law Dictionary (8th ed.2004) provides that “prescribe” means to dictate, ordain, direct or to establish authoritatively (as a rule or as a guideline). It defines “promulgate” as to declare or announce publicly; to proclaim; to put a law into force and effect. These words are not synonymous. Thus, even though plaintiffs argue that the exact form promulgated by the Commissioner of Insurance was not used, they introduced no evidence to show that every word, including the superfluous language, was required by the Commissioner to make the form valid.

Id. at 382.

Our supreme court declined to apply a hypertechnical interpretation of the Duncan requirements in Banquer v. Guidroz, 09-466 (La.5/15/09), 8 So.3d 559. In Banquer, the plaintiffs also argued the invalidity of a UM rejection based upon the form containing the signature without the printed name of the legal representative of the corporate insured. Considering this issue, the first circuit stated, “[A]s compliance with the form prescribed by the commissioner of insurance is necessary for the UM form to be deemed valid, see Duncan, 06-363 at 14, 950 So.2d at 553, the ACE form must be deemed invalid for failure to include the printed name of the person who signed the form.” Banquer v. Guidroz, 08-356, pp. 6-7 (La.App. 1 Cir. 12/23/08), 5 So.3d 206, 210. The supreme court granted writs and reversed, finding that the Duncan requirements had been satisfied. Notably, as pointed out in the dissent to the first circuit opinion, that form also contained a “clerical error”, in omitting a word; yet, the supreme court found the rejection to be valid. Id. at 211.

Based upon the foregoing, we find no legal error in the trial court’s grant of GICA’s Motion for Summary Judgment. The enumerated requirements of Duncan were undisputedly fulfilled. Although the language advising of the prohibition against altering or modifying the form is absent, the form used in this case was not altered or modified. The form is otherwise identical to that of the insurance commissioner and constitutes a valid and enforceable waiver of UM coverage.

The Scarboroughs also argue that “the wrong ‘named insured’ is printed as the named insured on the UM rejection form” thereby rendering it invalid. They assert in brief that “[t]he correct name of the insured entity is actually ‘Medical Technology of Louisiana, Inc.[,’] which changed to ‘Medical Technology of Louisiana, LLC’ on October 24, 2007.” Given that the name appearing on the UM form was written as “Medical Technology of La. Inc.[,]” they conclude that the waiver is invalid. We find no merit to this contention.

GICA’s policy and the UM rejection form both consistently identify the named insured as “Medical Technology of La., Inc.” The affidavit of the company representative who executed the UM/UIM form, Mr. Elton Glynn Beebe, Jr., states that as the “legal representative of the Company, in 2006, [he] had the authority to make insurance decisions for the Company, and was authorized to accept, reject, or select lower liability limits of uninsured motorist coverage on behalf of the |7Company.” Mr. Beebe attests that he had authority “to sign uninsured motorist selection forms on behalf of the Company” and “was authorized to legally bind the Company.” Finally, he confirms that the UM form at issue in this case was executed by him “on behalf of the Company in 2006” and that “[i]t is, and always was, at all times relevant to this claim, the Company’s intention to only have $100,000.00 of UM coverage on its Auto Policy.”

There is no material discrepancy as to the identification of the named insured on GICA’s policy and the UM form. The name, “Louisiana Medical Technology of Louisiana, Inc.[,]” is consistently abbreviated on both the policy and the UM rejection form signed by Mr. Beebe as “Technology of La. Inc.” We agree with GICA that “[t]he sole fact that there was a slight difference in the full spelling of ‘Louisiana’ on the affidavits versus on the policy and the waiver form does not serve as a basis to invalidate the form.”

DECREE

For the foregoing reasons, the trial court’s grant of summary judgment in favor of Defendant, General Insurance Company of America, dismissing the claims of Plaintiffs, John Scarborough and Renea Scarborough, individually, and on behalf of their minor children, John Kevin Scarborough and Patrick Cody Scarborough, and the claims of Intervenor, Bridgefield Casualty Insurance Company, is affirmed. All costs of these proceedings are assessed equally to the Plaintiffs and the Interve-nor.

AFFIRMED.

      . The original UM/UIM statute was numbered La.R.S. 22:1406. It was redesignated as La. R.S. 22:680 by 2003 La. Acts No. 456, § 3, and it has since been renumbered as La.R.S. 22:1295.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Scott J. BROWN.
    No. 2012-KA-0853.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Gwendolyn K. Brown, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   EDWIN A. LOMBARD, Judge.

hThe defendant, Scott J. Brown, seeks reversal of his conviction for simple burglary of a vehicle pursuant to La.Rev.Stat. 14:62(A) and the denial of his motion for new trial and motion in arrest of judgment on the basis of insufficiency of evidence. For the reasons set forth below, we affirm the conviction and sentence.

Relevant Procedural History

The defendant was charged by bill of information with one count of simple burglary of a vehicle on May 4, 2011. He pleaded not guilty at his arraignment on June 15, 2011, and at the preliminary hearing on July 26, 2011, the trial court found that the evidence was insufficient to support a finding of probable cause. The defendant waived his right to a jury and, after a judge trial held on October 12, 2011, the defendant was found guilty as charged. On November 4, 2011, he filed a motion for new trial and motion in arrest of judgment, arguing that the evidence presented at trial was insufficient to support a conviction. The motions were denied on December 12, 2011.

On December 16, 2011, the defendant was sentenced to five years at hard labor. The court also imposed fines and fees of $500.00 to the Judicial Expense Fund and $191.50 in court costs. The sentence was suspended and the defendant was placed on five years active probation. The defendant was ordered to serve twenty-five Sundays in the “weekend warrior” program.

Assignment of Error

The defendant argues that the evidence is insufficient to support his conviction and, concomitantly, the trial court erred in denying the motion for new trial and motion in arrest of judgment. Specifically, the defendant argues that the evidence is insufficient in this case because the State failed to prove that the defendant himself entered the vehicle with the intent to commit a theft or that he acted in concert with someone who entered it with the intent to commit a theft.

Applicable Law

We review the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18. Accordingly, we “must determine that the evidence, -viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 2000-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657 (quoting State v. Captville, 448 So.2d 676, 678 (La.1984)). The determination of credibility is a question of fact within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Holmes, 2006-2988, p. 34 (La.12/2/08), 5 So.3d 42, 68; State v. Vessell, 450 So.2d 938, 943 (La.1984).

In this case, the defendant was charged with simple burglary which, as defined in La.Rev.Stat. 14:62, is “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein, other than as set forth in La.Rev. Stat. 14:60 [aggravated burglary].” The requisite intent required by La.Rev.Stat. 14:62 is specific intent. State v. Smith, 2002-1018, p. 7 (La.App. 5 Cir. 3/11/03), 844 So.2d 119, 125. Specific criminal intent is defined as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Specific intent may be inferred from the circumstances and actions of the defendant. State v. Ennis, 2011-0976, p. 7 (La.App. 4 Cir. 7/05/12), 97 So.3d 575, 580, quoting State v. Riley, 2008-1102, p. 9 (La.App. 4 Cir. 4/24/09), 10 So.3d 1232, 1237. Whether a criminal defendant possessed the requisite intent is for the trier of fact, and a review of the correctness of that determination is guided by the Jackson standard. State v. Naquin, 2010-0474, p. 9 (La.App. 5 Cir. 2/15/11), 61 So.3d 67, 71-72.

Entry, in relation to La.Rev.Stat. 14:62, is accomplished whenever any part of the defendant’s person passes the line of the threshold. State v. Conner, 2008-0473, pp. 5-6 (La.App. 4 Cir. 10/1/08), 996 So.2d 564, 568. It is sufficient that any part of the person intrudes, even momentarily, into the structure. Id.

Relevant Facts

The following evidence was adduced at trial:

On April 7, 2011, at approximately 4:00 a.m., in response to a 911 call from Gilbert Caesar, Officer Robert King of the New Orleans Police Department (NOPD) was dispatched to a vehicle theft in progress in the 8300 block of Curran Boulevard, near the intersection with Crowder Boulevard in Orleans Parish. The defendant was arrested at the scene. Mr. Caesar and Officer King, as well as Claudine Howard (the owner of the vehicle) testified at trial.

Mr. Caesar stated that on April 7, 2011, he awoke up around 4:00 a.m. when he heard a noise outside his residence at 8320 Curran Boulevard. From his upstairs window, he observed two men across the street near the vehicle owned by his neighbor, Ms. Howard. He saw one man carrying a car hood which was placed in the back of a truck or sport utility vehicle driven by another individual. Those two individuals drove away with the car hood. A third man, heavily built and wearing a green hat, walked back towards the vehicle. He continued to watch the man with the green hat while his wife telephoned the police. The stood in front of vehicle and then, as if something spooked him, started to walk away from the vehicle ducking in and out of dark yards down the street. Mr. Caesar saw no one else in the area at the time and was still watching the man in the green hat when the police arrived. Mr. Caesar testified that he had never lost sight of the man in the green hat, explaining that he directed the police to the man and watched as the police apprehended him.

On cross examination, Mr. Caesar conceded that he never saw the man in the green hat inside the vehicle, never saw him remove anything from the vehicle, and never saw him in possession of the hood or any of the vehicle’s contents. He also conceded that he never saw the man’s face and could not identify the defendant in court.

Officer King testified that he was dispatched to a possible auto theft in progress on the day and time in question and, upon arriving at the scene, saw the defendant (the only individual in the area) wearing jeans, a long-sleeve black shirt and a green “Mountain Dew” hat. As Officer King watched, the defendant walked down the street, past an empty lot and into the driveway of a residence several houses down from the victim’s vehicle, and picked up a newspaper on the ground. At this point, Officer King stopped the defendant to discover what he was doing out at that time of morning and, subsequently, recovered in the course of a pat-down some small hand tools, a flashlight, an open-end wrench, a lock to a tool used for removing lock nuts on vehicles, a socket, a screw that looked like part of a vehicle, and a towel.

Officer King observed that the vehicle in question was partially stripped. The hood was removed; there was a screwdriver wedged in between the headlight and the frame of the vehicle; the battery was removed; the doors were partially open; the inside of the vehicle had been rummaged through; and there was a bag of tools and CDs on the ground beside the vehicle. Officer King noted similarities between the tools found next to the vehicle and the tools found on the defendant’s person. He further testified that the bolt found on the defendant’s person was similar to the bolts that he observed on the victim’s vehicle.

Claudine Howard, the owner of the vehicle, testified that when she went to bed in the early morning hours of April 7, 2011, her vehicle was intact, but when the police came to her door later that morning, the vehicle’s hood was missing and the battery, along with some of the vehicle’s contents, had been removed from the vehicle and placed on the ground. In addition, an open bag of tools was on the ground next to her vehicle. Ms. Howard stated that she did not know the defendant and did not give anyone permission to enter her vehicle or to remove anything from her vehicle.

The defendant did not testify or call witnesses on his own behalf at trial.

Discussion

The defendant points out that the State did not prove that he actually entered the victim’s vehicle. However, it is well established that one may be a principal to a burglary without having personally entered the burglarized structure. State v. Arceneaux, 2007-0692, p. 11 (La.App. 5 Cir. 3/25/08), 983 So.2d 148, 154.

Because the State did not present evidence that the defendant personally entered the victim’s vehicle, it had the burden of proving that he was a principal to the unauthorized entry. State v. Arceneaux, 2005-0338, p. 7 (La.App. 5 Cir. 12/27/05), 930 So.2d 44, 49. La.Rev.Stat. 14:24 defines “principals” as “all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime.” Accordingly, the State did not need to prove that the defendant personally entered the vehicle; it only had to prove that he was someone “concerned with the commission of the crime” in order for him to be found guilty as a principal to the burglary. State v. McCord, 2011-0656, p. 9 (La.App. 4 Cir. 2/15/12), 85 So.3d 210, 215.

The record contains evidence which, viewed in the light most favorable to the prosecution, supports the judge’s finding that the defendant was guilty, beyond a reasonable doubt, of being a principal in the simple burglary of a vehicle pursuant to La.Rev.Stat. 14:62. The eyewitness testified that he saw a man walking away from the victim’s vehicle carrying a car hood, accompanied by a man in a green hat. He observed the man with the green hat return to the vehicle, stand directly in front of the motor, where he was “doing something.” At that time, he stated that it looked like the man got spooked and walked away, went to the back of a dark yard, came forward, then started walking down the street. Officer King identified the defendant as the man wearing the green hat that he apprehended near the crime scene, in possession of various tools and ear parts that were similar to those found on or near the victim’s vehicle.

Conclusion

The evidence is sufficient to support the defendant’s conviction for violation of La. Rev.Stat. 14:62(A) and, accordingly, the trial court did not err in denying the defendant’s motion for new trial and motion in arrest of judgment. The defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    Stacy Horn KOCH v. COVENANT HOUSE NEW ORLEANS.
    No. 2012-CA-0965.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 2013.
    Robert A. Kutcher, Nicole S. Tygier, Chopin Wagar Richard & Kutcher, LLP, Metairie, LA, for Plaintiff/Appellant.
    James M. Williams, Alanah O. Hebert, Gauthier Houghtaling & Williams, L.L.P., Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART).
   EDWIN A. LOMBARD, Judge.

In this appeal, the plaintiff/appellant, Stacy Horn Koch, seeks the review of the trial court granting the exception of no cause of action filed by the defendant/ap-pellee, Covenant House New Orleans (“Covenant House”). For the following reasons, we reverse and remand.

Relevant Facts and Procedural History

On October 7, 2010, following an investigation conducted by Covenant House International on complaints against Ms. Koch, executive director of Covenant House, Ms. Koch was informed that her employment was terminated. Upon her termination, she received a letter that outlined a possible severance package that Covenant House was willing to offer her, provided that she complied with the provisions of the letter. Ms. Koch subsequently requested from Covenant House: (1) a copy of Covenant House’s Human Resources Manual; (2) all drafts and the final investigative report regarding all complaints against her which resulted in her termination; and (3) a copy of her personnel file, to no avail.

On November 5, 2010, Ms. Koch filed a petition against Covenant House for damages allegedly sustained as a result of the events surrounding the termination of her employment. In her petition, she prayed for a judgment in her favor finding that (1) Covenant House failed to follow its own policies and procedures for terminating her employment; (2) Covenant House defamed her through its communications and termination of her employment based on false accusations; (3) Covenant House has been unjustly enriched by its failure to reimburse her for expenses incurred during the course of her employment; (4) Covenant House engaged in unfair practices by allowing her to see patients at her Covenant House office and then using this fact as grounds for termination of employment; and (5) she detrimentally relied upon the representations of Covenant House through its President, Sister Patricia Cruise.

On March 3, 2011, in a pleading entitled “Motion to Dismiss and/or For More Definitive Statement,” Covenant House requested the dismissal of the claims set forth in Ms. Koch’s petition, alleging the failure to state a claim for declaratory judgment, defamation, unjust enrichment, unfair trade practices, and detrimental reliance upon which relief could be granted and that Ms. Koch was an “at will” employee and did not allege a violation of any statutory or constitutional provision.

This matter was heard before the trial court in May 2011, and after taking the matter under advisement, the trial court entered a judgment with reasons on June 13, 2011. The trial court treated Covenant House’s pleading as an exception of no cause of action, granted the exception and dismissed Ms. Koch’s case in its entirety. In its reasons, the trial court stated its decision was reached “[a]fter considering the pleadings, the argument of counsel, the law, and upon finding that a justiciable controversy does not exist for purposes of declaratory judgment, and upon further finding that plaintiff was an ‘at will’ employee and that she failed to allege that her termination violated any statutory or constitution provision and therefore she was subject to termination at any time, and further considering that plaintiff failed to allege any defamatory words and/or communication to a third party.”

Discussion

In her appeal, Ms. Koch argues that the trial court (1) erred in maintaining Covenant House’s unpled exception of no cause of action, thereby dismissing the suit; and (2) abused its discretion in dismissing her case without granting her leave to amend or determining whether granting her leave to amend would be a futile act.

The exception of no cause of action “tests the legal sufficiency of a petition by examining whether, based upon the facts alleged in the pleading, the law affords the plaintiff a remedy.” Meckstroth v. Louisiana Dept. of Transp. & Dev., 07-0236, p. 2 (La.App. 4 Cir. 6/27/07), 962 So.2d 490, 492. “A peremptory exception of no cause of action is a question of law that requires the appellate court to conduct a de novo review.” R-Plex Enterprises, L.L.C. v. Desvignes, 10-1337, p. 5 (La.App. 4 Cir. 2/9/11), 61 So.3d 37, 40 (citations omitted). “The court reviews the petition and accepts all well pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is entitled to the relief sought.” Meckstroth, supra, p. 2, 962 So.2d at 492 (citing Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234-86 (La.1993) (citation omitted)). No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ. Proc. art. 931.

In reviewing the trial court’s granting of the exception of no cause of action, the issue presented for review is whether Ms. Koch’s petition for damages states a valid cause of action for which the law affords a remedy. A review of the record reveals that the exception of no cause of action granted to Covenant House attempts to achieve summary judgment. The trial court considered facts outside the face of the pleadings, thus allowing Covenant House to penetrate Ms. Koch’s allegations in her petition, which is the function of a motion for summary judgment, not that of an exception of no cause of action. See Mayer v. Valentine Sugars, Inc., 444 So.2d 618, 620 (La.1984). Accordingly, an exception of no cause of action is not the correct procedural vehicle for dismissing the case. Therefore, we find that the trial court erred in granting Covenant House the exception of no cause of action.

Lastly, we pretermit a discussion of the remaining assignments of error having already determined that the trial court erred in dismissing Ms. Koch’s suit.

Conclusion

The trial court’s judgment granting the exception of no cause of action in favor of Covenant House is reversed, and the matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED


author: MAX N. TOBIAS, JR., Judge.

text:
    Ray BYRD v. DEPARTMENT OF POLICE.
    No. 2012-CA-1040.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 2013.

      Raymond C. Burkart, III, Amanda A. Troselair, Burkart & Associates, L.L.C., Covington, LA, for Plaintiff/Appellant.
    Mary Katherine Taylor, Assistant City Attorney, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, City of New Orleans, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

| j Sergeant Ray Byrd (“Byrd”) seeks review of the New Orleans Civil Service Commission’s (“CSC”) decision affirming a forty-day suspension imposed upon him by New Orleans Police Superintendent, Roñal W. Serpas, the appointing authority, for Byrd’s alleged use of excessive force during an arrest and unprofessional conduct. For the following reasons, we affirm.

I.

On 27 June 2010, Byrd, employed by the New Orleans Police Department (“NOPD”) as a police sergeant with permanent status, was working a paid detail near the intersection of Broad Street and Orleans Avenue, during which he participated in the arrest of Muhammad Esmail. Muhammad’s brother, Mubarak Esmail (“Esmail”), interfered with the investigation and Byrd elected to arrest him. While attempting to restrain and handcuff Esmail and encountering resistance, Byrd delivered a closed fist strike, or a “stun punch,” to the side of Esmail’s face in an effort to overcome his resistance and to obtain his compliance with the arrest. The incident was captured on video surveillance that became public when it was broadcast ed on the news.

Following the incident, the NOPD Public Integrity Bureau (“PIB”) initiated an administrative investigation to determine whether Byrd’s use of force to secure a non-compliant subject was excessive under the circumstances. Police Sergeant Kevin Stamp (“Stamp”) of the PIB conducted the investigation, including the taking of Byrd’s statement on 1 September 2010. At the conclusion of the investigation, Byrd’s actions during Esmail’s arrest were deemed to have violated the NOPD’s internal regulations concerning Unauthorized Force and Professionalism.

Deputy Superintendent Marlon A. Deffl-lo (“Defillo”) conducted a hearing on the matter on 23 and 28 March 2011. After considering Byrd’s explanation, the evidence, and mitigating circumstances, De-fillo concluded Byrd’s actions warranted disciplinary action and recommended the imposition of a thirty-day suspension for his use of unauthorized force and a ten-day suspension for the violation of the rules of professionalism.

Based on Defillo’s recommendation, and determining that Byrd offered no evidence or testimony during the hearing that tended to mitigate, justify, or explain the actions he took during the arrest, Superintendent Serpas, as the appointing authority, issued a disciplinary letter to Byrd on 3 June 2011, imposing the recommended forty-day penalty. Specifically, the letter advised that the level of force Byrd used to overcome Esmail’s resistance to arrest was excessive and, therefore, constituted an unauthorized force violation. Additionally, the letter noted that the incident was covered by the media, which caused embarrassment to the NOPD; because Byrd failed to conduct himself in a manner equal to the standards established in NOPD policy, his actions constituted a violation of professional conduct. The superintendent concluded that Byrd’s conduct was contrary to the standards as prescribed by Rule IX, Section 1, paragraph 1.1 of the Rules of the CSC, which provides, in pertinent part, that when a classified employee is unable to perform his duties in a satisfactory manner or has committed any act to the prejudice of the service, the appointing authority shall take action warranted by the circumstances to maintain the standards of effective service. This action may include, inter alia, suspension without pay not exceeding 120 calendar days.

Byrd appealed his suspension to the CSC, arguing that his use of force against Esmail was not excessive under the circumstances. A hearing officer was appointed to receive the testimony. At the 11 August 2011 hearing, the parties stipulated that Byrd used force while effecting the lawful arrest of Esmail.

Stamp testified for the NOPD. According to him, Esmail’s brother, Muhammad, was being detained at a gas station for threatening the safety of private citizens by carrying and brandishing a firearm taken from a tow truck parked on the premises. Esmail, believed to have been the owner of the tow truck being driven by his brother, was notified of the situation and arrived at the scene. Esmail was allowed onto the investigative scene by a law enforcement officer to check on the status of his brother at which time he encountered Byrd. Based upon video surveillance, Stamp explained that, initially, a verbal exchange took place between Byrd and Esmail, and then Byrd attempted to physically detain Esmail, who showed resistance by pulling away. Thereafter, Byrd struck Esmail in the head area with less than full force in an apparent attempt to gain Es-mail’s compliance with the arrest. Stamp further testified that because he was unsure from his review of the video surveillance footage whether the use of force taken by Byrd was excessive, he consulted with Officer Charles Badon (“Badon”), a defensive tactics instructor at the NOPD Training Academy.

Badon also testified for the NOPD. According to him, the closed-fist technique used by Byrd to subdue Esmail is no longer taught at the police academy. Instead, because of the potential for injury, police officers are currently trained in techniques that do not include striking subjects who are refusing to place their hands behind their backs for handcuffing, which include verbal commands, hands-on escort, or the arm-bar technique, which forces the subject to the ground. Badon stated that although it would have been more appropriate for Byrd to have employed the arm-bar technique in securing the arrest of Esmail, based upon what he reviewed on the video surveillance, Byrd was struggling with Esmail and unable to get him into the proper position to execute an arm-bar.

Badon further testified that his observation of the video surveillance footage revealed no active resistance on the part of the subject (Esmail) being arrested. He described “active” resistance as involving a subject who turns his aggression (ie., kicking or punching), towards the police officer. He distinguished this from “passive” resistance, which he stated involves a situation where the subject is neither following verbal commands nor engaging in any type of behavior that would bring harm to the arresting officer. In his opinion, even though it did not appear to him from the video that Byrd was using full force or that he was trying to hurt the subject, the level of force exacted by Byrd upon Esmail was not appropriate for the level of resistance displayed, which appeared to him to be more “passive.” He explained that defensive tactics of that nature are reserved for situations where the subject has killed or poses a threat of great bodily harm to the officer necessitating the officer’s use of deadly force.

Officer Samuel Davis (“Davis”), a seven- and-a-half year veteran of the NOPD assigned to the NOPD Training Academy, testified at the hearing on behalf of Byrd. Based upon his review of the video surveillance footage, it did not appear to him that Byrd executed a full-force punch when he struck Esmail leading him to believe that, although possibly unwarranted due to Es-mail’s passive resistance, Byrd’s actions under the circumstances were not excessive. According to Davis, the video showed Byrd trying to get around Esmail to handcuff him, but because of Esmail’s resistance, albeit passive, Byrd was unable to maneuver him into the proper position to even attempt the arm-bar technique or to secure the handcuffs. Davis conceded Byrd could have used techniques other than the stun-punch to gain compliance from Esmail, such as distancing himself from the subject, a wrist lock or using OC spray.

Byrd testified on his own behalf at the hearing and stated that prior to initiating the arrest, Esmail disregarded instructions to stay away from the tow truck, which was a part of the crime scene. Byrd described the crime scene as being very chaotic and that he, along with several other officers, were trying to restore order. When Esmail refused to comply with verbal instructions, Byrd advised him that he was being placed under arrest for interfering with an investigation. Byrd then attempted to grab Esmail’s hand into a wrist lock, but Esmail pulled away and spun around insisting that he was “not going to jail.” By spinning around and refusing to respond to Byrd’s repeated verbal commands, Byrd stated that he did not know if it was Esmail’s intention to throw a punch at him or not. Additionally, Byrd stated that while he had a Taser gun on his belt, because they were situated in a crowd close to the gas pumps and flammable materials, he determined it would have been unsafe to use the Taser gun in order to obtain Esmail’s compliance. Consequently, Byrd explained that he resorted to his academy training and chose to execute a “stun punch” to Esmail’s neck in order to distract him and get him handcuffed. Byrd further explained that because Esmail continued to pull away and spin around, the punch inadvertently landed in Esmail’s facial area rather than the neck and did not work as intended. Ultimately, it took the aid of several other officers to successfully secure Esmail’s arrest.

According to Byrd, Esmail’s resistance consisted solely of his body tensing up and verbally repeating that he did not want to go to jail. Byrd conceded that at no time did Esmail attempt to strike him in any fashion, nor did Esmail physically or verbally indicate any intention of fleeing the scene. Byrd also conceded that he could have requested assistance from other subordinate officers on the scene, but because his attention was focused solely upon the immediate threat of successfully securing Esmail and not on anyone else who may have been in the vicinity to assist him, he did not do so. Byrd further conceded that he was trained in hand-control techniques at the Training Academy, including the escort position, the arm-bar technique, and the reverse wrist lock, but stated that his last training in defense tactics occurred between 1998 and 2000, at which time he was not trained in any new technique.

The hearing examiner issued his report on 27 December 2011 stating that “[Byrd] was punished for doing his job in a manner that is no longer sanctioned by the Appointing Authority. While there may have been mitigating circumstances that the Appointing Authority could have taken into consideration, we cannot say that the Appointing Authority acted arbitrarily or abused its discretion.” The CSC reviewed the hearing examiner’s report, the transcripts of the hearing, and all documentary evidence, including the video surveillance footage. After its review, the CSC issued its decision on 13 April 2012 adopting the hearing examiner’s findings and affirming the suspension imposed upon Byrd by the appointing authority. From this decision, Byrd appealed, averring that the judgment of the CSC was contrary to the law and evidence.

II.

Employees with the permanent status in the classified civil service may be disciplined only for cause expressed in writing. La. Const., Art. X, § 8(A). New Orleans police officers are included in the protection guaranteed by this provision. Walters v. Dept. of Police of City of New Orleans, 454 So.2d 106, 112 (La.1984).

“Legal cause exists whenever an employee’s conduct impairs the efficiency of the public service in which the employee is engaged.” Cittadino v. Dept. of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir.1990). 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. Newman v. Department of Fire, 425 So.2d 753, 754 (La.1983). Thus, the appointing authority must prove, by a preponderance of the evidence, the occurrence of the complained of activity and that the conduct did in fact impair the efficient and orderly operation of the public service. Id. See also Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767.

Byrd timely exercised his constitutional right to an appeal from the appointing authority’s disciplinary action to the CSC. La. Const. Art. X, § 8(A). The CSC has “the exclusive power and authority to hear and decide all removal and disciplinary eases ...” La. Const. Art. X, § 12(B); Pope v. New Orleans Police Dept., 04-1888 (La.App. 4 Cir. 4/20/05), 903 So.2d 1. Before the CSC, “the burden of proof on appeal, as to the facts, shall be on the appointing authority.” La. Const. Art. X, § 8(A); Walters, 454 So.2d at 112-113.

The CSC’s duty is to decide independently from the facts presented to it whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the infraction. Walters, 454 So.2d at 113-114. Although the CSC’s function is to effectuate the constitutional safeguards and protections for civil servants in the classified public service, equally important, according to the Louisiana Supreme Court, is “the appointing authority’s duty to undertake disciplinary action against an employee for legal cause that impairs the efficiency of the public service.” Mathieu v. New Orleans Public Library, 09-2746, p. 5 (La.10/19/10), 50 So.3d 1259, 1262.

The CSC’s decision is subject to appellate review on any question of law or fact, determining if its order was arbitrary, capricious, or characterized by an abuse of discretion. La. Const. Art. X, § 12(B); Barquet v. Dept. of Welfare, 620 So.2d 501, 505 (La.App. 4th Cir.1993); Cure, 07-0166, p. 2, 964 So.2d at 1095; Walters, 454 So.2d at 114. When no rational basis exists for the CSC’s action, its decision is arbitrary and capricious. Bannister v. Dept. of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647.

The judicial review function in a matter appealed from a civil service commission is “multifaceted.” Walters, 454 So.2d at 113-114. We review the CSC’s procedural decisions and interpretations of law under our traditional plenary function of insuring procedural rectitude and reviewing questions of law de novo. Id. But, because of the constitutional implications arising from the distinct functions of the CSC and of us as a reviewing court, we are more circumspect in our review of other aspects of the CSC’s decision. Id. Thus, in reviewing the CSC’s findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. Id.

Specifically, with respect to the issue raised by Byrd in this appeal, “[i]n 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 court should not modify the commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion.” Id. In practice, we afford great deference to the CSC’s ruling supporting the decision of the appointing authority. See Serignet v. Dept. of Health, 08-0469, p. 10 (La.App. 4 Cir. 5/20/09), 15 So.3d 1019, 1025. Neither the CSC nor a reviewing court should “second-guess” an appointing authority’s decisions. See Lange v. Orleans Levee District, 10-0140, p. 17 (La.11/30/10), 56 So.3d 925, 936. The CSC and a reviewing court may intervene only when the appointing authority’s decisions are arbitrary and capricious or characterized by an abuse of discretion. Id. Moreover, neither the CSC nor the reviewing court may serve as a de facto pardon board. Id. “[S]ympathy is not a legal standard.” Id.

III.

Before addressing the merits of Byrd’s appeal, we first turn to the NOPD’s argument that the appeal should be dismissed on procedural grounds. The NOPD contends that Byrd’s application (i.e., notice) for appeal to this court failed to timely assert assignments of error of the CSC’s decision. Specifically, the NOPD avers that Byrd’s application ^for appeal failed to separately and particularly set forth specific assignments of error.

Uniform Rules — Courts of Appeal, Rule 3-1.1, states, in pertinent part:

Every application for appeal from a final decision of any administrative body shall be filed with the appropriate administrative body in writing as required by law and shall include an assignment of errors, which shall set out separately and particularly each error asserted and a designation of the portions of the record,, desired to be incorporated into the transcript. Within 5 days after the filing of an application for appeal, any other party to the appeal may file a designation of additional portions of the record to be included for a proper review of the questions comprised within the assignment of errors. The administrative body shall transmit to a Court of Appeal, as a transcript of the record, only the portions of the record so designated. Costs for the inclusion of any unnecessary part of the record in any transcript may be assessed against the party requiring such inclusion. If by written stipulation filed with the administrative body, all parties agree on the portions of the record to be included in the transcript, only such portions shall be included. In all eases the application for appeal, the assignment of errors and the designation of the record shall be copied into the transcript. The administrative body shall certify the correctness of the transcript of the record.

In his brief, but not in his application for appeal, to this court, Byrd formally assigned as error that the CSC judgment “was arbitrary and capricious because its conclusion finds no support either in substantial evidence or in competent evidence; and that evidentiary lack failed to support legal cause for discipline, lacking the mandatory preponderance of evidence to support that judgment.”

First, we note that Byrd failed to particularly set forth any assignment of error in his application of appeal to the CSC, an administrative body. We note that the standard appeal form that the CSC provides to public employees to appeal a decision of the appointing authority to the CSC contains no space for the employee to assign errors committed by the appointing authority. Accordingly, we conclude that the CSC does not require a public employee to specifically assign and state an error committed by the appointing authority.

Although our Uniform Rule indicates that an application (ie., notice) of appeal of a decision to this court requires that the applicant assign errors, this rule is at odds and contrary to both statute and Louisiana Supreme Court jurisprudence.

In Rodrigue v. Rodrigue, 591 So.2d 1171 (La.1992), the Court stated:

Plaintiffs writ application is granted. The judgment of the court of appeal holding that Local Rule 22 of the Rules of the Thirty-Second Judicial District Court is not in conflict with the provisions of Louisiana Code of Civil Procedure article 1312 is hereby reversed.... The requirements of delivery or mailing of all pleadings under Local Rule 22 constitutes service under Code of Civil Procedure 1313. Article 1312 specifically exempts any pleading not required by law to be in writing from service. Code of Civil Procedure article 1701 provides that preliminary defaults may be obtained by oral motion in open court or by written motion. Since local rules of court cannot conflict with legislation, see Trahan v. Petroleum Cas. Co., 250 La. 949, 200 So.2d 6 (1967), Local Rule 22 of the Thirty-Second Judicial District Court is hereby declared null and void to the extent it conflicts with Code of Civil Procedure article 1312. The judgment of default entered by the trial court is hereby reinstated. [Emphasis supplied.]

We note that La. C.C.P. art. 2129 does not require an appellant in this court to assign errors in his brief, while the Uniform Rules, Courts of Appeal, Rule 2-12.4 provide otherwise. In light of the Supreme Court’s pronouncement in Ro-drigue, we cannot enforce it.

In Rocque v. Dept. of Health and Human Resources, Office of Secretary, 505 So.2d 726, 728 (La.1987), the Supreme Court held that summary dismissal of an appeal where the notice of appeal does not contain assignments of error “acts as a trap for the unwary appellant who does not learn of the insufficiency of his appeal ... until the time for remedying any deficiencies has already elapsed,” and is thus unreasonable and unduly burdensome on appellants. See La. Const. Art. X, § 8. Accordingly, we hold that an appellant in a civil service matter need not in his motion, application, or notice of appeal assign specific error(s) committed by the CSC.

IV.

In his next assignment of error, Byrd contends the CSC’s 13 April 2012 judgment was arbitrary and capricious because its conclusion is not supported by either substantial or competent evidence, and absent such preponderance of evidence to support the judgment, no legal cause for the discipline imposed upon him exists. Put simply, at issue is whether the actions taken by Byrd to secure the arrest of a non-compliant subject constituted an excessive use of force and unprofessional conduct that impaired the efficient operation of the police department.

After reviewing the appellate record, including Byrd’s verbal statement given to Stamp, the video surveillance footage of the incident, and the testimony of the witnesses presented before the hearing examiner, and in evaluating the CSC’s exercise of discretion in determining whether the disciplinary action imposed is based on legal cause and the punishment is commensurate with the infraction, we find a rational basis existed for the CSC’s decision, which is supported by substantial evidence. We find lawful cause was established through the testimony of Stamp, Badon, and Davis. After reviewing the video surveillance footage and conducting the investigation, Stamp concluded that Byrd’s use of force was excessive and merited both violations of moral conduct and professionalism. Though the NOPD received negative attention following media coverage of the incident, Stamp testified that this was not the motivating factor for Byrd’s suspension, but rather, his use of force was unprofessional whether or not captured in the public eye.

Both Badon and Davis testified that based upon their review of the video surveillance, Esmail’s conduct at the time of the arrest amounted to “passive,” as opposed to “active,” resistance, because he exhibited no physical threat towards Byrd. According to Badon, the level of force used by Byrd (ie., the use of a striking technique) to gain control of a subject who was passively resisting was unauthorized and that there were other techniques taught by the NOPD, which Byrd admitted to have been trained in (ie., hands-on escort, reverse wrist lock, arm-bar technique) that Byrd could have used to overcome Es-mail’s passive resistance. Moreover, Ba-don explained that because of the potential for injury, the stun punch is no longer authorized by the NOPD, and defensive tactics of this nature (ie. force to the subject’s face) are reserved solely for extreme circumstances wherein the subject has either killed or poses a threat of great bodily harm to the arresting officer.

Additionally, Byrd admitted that the only resistance exhibited by Esmail was the tensing of his body and his repeated verbal intentions not to go to jail. Byrd conceded he could have requested assistance from subordinate officers in close proximity on the scene, but did not. Further, Byrd acknowledged his training in the use of defensive tactics to overcome passive resistance that did not include the use of a “stun punch” that he relied upon.

Based upon the testimony and our review of the video surveillance footage, we cannot say that the CSC’s conclusion — that because Esmail was not acting violently towards Byrd, Byrd’s use of force was excessive under the circumstances — is arbitrary and capricious or without just cause. Accordingly, we find the CSC correctly determined that legal caused existed for suspending Byrd “for doing his job in a manner that is no longer sanctioned by the Appointing Authority.”

Similarly, we find a real and substantial relation between Byrd’s conduct and the efficient operation of the NOPD. In the instant case, it was established that Byrd’s act of striking a passively resistant subject in the face was unjustified and violated the NOPD’s regulations on excessive force and professionalism. Such lack of professionalism serves to undermine the image and efficiency of the NOPD. The record reveals that at the time of the incident, a crowd of civilians were present at the scene bearing witness to Byrd striking Esmail in the head. The incident was televised to the public creating a negative image and causing embarrassment to the NOPD. At the very least, we find Byrd’s conduct in striking a subject who was not physically posing a threat to him, negatively affects the public’s perception of the NOPD and tends to suggest that police officers act violently towards passively resistant citizens, without provocation or justification. Such a negative perception hinders the relationship between the NOPD and the citizens they are bound to protect by creating distrust in and disapproval of the operation of public service. Based on our review of the record, we find the CSC correctly determined that Byrd’s actions were prejudicial to the public service and/or impaired the efficient operation of the NOPD.

Lastly, we find the discipline imposed upon Byrd by the NOPD and affirmed by the CSC was commensurate with his violation of departmental regulations. See Razor v. New Orleans Dept. of Police, 04-2002, p. 8 (La.App. 4 Cir. 2/15/06), 926 So.2d 1, 4. As noted previously, Rule IX, § 1, paragraph 1.1(5) of the Rules of the CSC provides that when a classified employee has committed an act to the prejudice of the service or otherwise has been subjected to corrective action, the appointing authority shall take action as warranted by the circumstances to maintain the standards of effective service. This action may include suspension without pay for a period not exceeding 120 days. See Staehle v. Dept. of Police, 98-0216, p. 6 (La.App. 4 Cir. 11/18/98), 723 So.2d 1031, 1034, citing Rule IX, § 1.

We find the forty-day suspension imposed in the instant casé is both rationally based and commensurate to the dereliction. Byrd was given a thirty-day suspension for the excessive force violation and a ten-day suspension for violating rules against professionalism. In approving the appointing authority’s recommended penalty, Superintendent Serpas noted in his discipline letter to Byrd that at the CSC hearing when he was given an opportunity to explain his actions, Byrd “failed to offer any evidence ... which would tend to mitigate, justify, or explain his behavior.” Based upon the foregoing, we conclude the record evidence is sufficient to establish a rational basis for the punishment imposed upon Byrd.

CONCLUSION

For the foregoing reasons, the CSC’s decision denying Byrd’s appeal and affirming the discipline imposed by the appointing authority is affirmed.

AFFIRMED

      . The investigation initially commenced as a criminal matter, i.e., a potential simple battery by Byrd on Esmail, but it was determined that Byrd’s actions did not rise to the level of a battery and the matter proceeded as an administrative investigation as to the possible use of excessive force.

      . In the record on appeal, Sergeant Kevin Stamp is also referred to as Sergeant Kevin "Stamps.”

      . NOPD Operations Manual, Rule 2: Moral Conduct, paragraph 6, provides:
      Unauthorized Force
      6. Employees shall not use or direct unjustifiable physical abuse, violence, force or intimidation against any person. [Emphasis in original.]

      . NOPD Operations Manual, Rule 3: Professional Conduct, paragraph 1, provides:
      1. Professionalism
      Employees shall conduct themselves in a professional manner with the utmost concern for the dignity of the individual with whom they are interacting. Employees shall not unnecessarily inconvenience or demean any individual or otherwise act in a manner which brings discredit to the employee or the Police Department. [Emphasis in original.]

      . Excessive force is defined by Chapter 1.2 of the NOPD Operations Manual as:
      Force is excessive when its application is illegal, inappropriate, or unreasonable under the circumstances. The force may result in serious injury or death to the suspect, but this is not absolutely necessary for the force to be excessive. No single objective definition of excessive force can be offered, rather each situation must be evaluated according to its particular circumstances and within the guidelines established herein.
      Chapter 1.2 (1) of the NOPD Operations Manual provides, in pertinent part, that "Police Officers may use reasonable force to compel obedience to a valid police order or to protect persons or property from illegal harm."
      1.2 (2) provides:
      The legal right to use force is contingent upon the reasonableness of the act. The concept of reasonableness is applied in two ways:
      a. The need to resort to force to accomplish a lawful police objective must be reasonable. That is, if another alternative, such as verbal persuasion, would reasonably be expected to be effective under the circumstances, and this alternative was not attempted, the use of force is not legal.
      b. The degree of force used must be reasonable. The officer may only use enough force to overcome the amount of resistance or aggression met. When such resistance or aggression is reduced, the officer must correspondingly and immediately reduce the degree of force he is applying, or the use of force is not legal.

      . An escort position is where a police officer takes control of a person's arm on either side of his body and moves him from point A to point B.

      . Byrd testified that it was not his intention to injure the subject, but rather, his goal was to obtain his compliance with the lawful arrest for interfering with a police investigation.

      . Rule 2-12.4 states, in pertinent part:
      The brief of the appellant or relator shall set forth the jurisdiction of the court, a concise statement of the case, the ruling or action of the trial court thereon, a specification or assignment of alleged errors relied upon, the issues presented for review, an argument confined strictly to the issues of the case, free from unnecessary repetition, giving accurate citations of the pages of the record and the authorities cited, and a short conclusion stating the precise relief sought. [Emphasis supplied.]
      See also Uniform Rules — Courts of Appeal, Rule 3-1.5.