author: CONERY, Judge.

text:
    William WEEMS, et al. v. HOUSTON SPECIALTY INS. CO., et al.
    17-14
    Court of Appeal of Louisiana, Third Circuit.
    05/17/2017

      Joseph Payne Williams, Williams Family Law Firm, LLC, Post Office Box 15, Natchitoches, Louisiana 71458-0015, (318) 352-6695, COUNSEL FOR PLAINTIFF/APPELLANT: William Weems and Tina Weems Indiv. & on b/h of Hailey Brooke Weems and Dylan Chase Weems
    Donald James Armand, Jr., Pettiette, Armand, Dunkelman, Post Office Box 1786, Shreveport, Louisiana 71166-1786, (318) 221-1800, COUNSEL FOR DEFENDANT/APPELLEE; Houston Specialty Ins. Co.
    Brian Allen Homza, Cook, Yancey, King &. Galloway, 333 Texas Street, Suite 1700, Shreveport, Louisiana 71120, (318) 221-6277, COUNSEL -FOR THIRD PARTY/APPELLEE: Moreman, Moore & Company, Jeff Dickerson
    Court composed of Shannon J. Gremillion, John E. Coriery, and David E. Chatelain , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   CONERY, Judge.

|! William A. Weems and Tina Weems, individually and on behalf of their minor children Hailey Brooke Weems and Dylan Chase Weems (Weems plaintiffs),' appeal the June 23, 2016 judgment of the trial court denying their motion for partial summary judgment and granting summary judgment in favor of defendant, Houston Specialty Insurance Company (Houston Specialty) and partial summary judgment in favor of third party defendants, Jeff Dickerson and Moreman, Moore & Company, Inc. (Moreman Moore). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 31, 2011, Mr. Weems, an employee of Cane River Construction LLC (Cane River), was driving Cane River’s 1995 Chevorolet Model 3500 vehicle on Interstate-49, while in the course and scope of his employment, when he was struck from behind by a 2005 Chevorlet Suburban and severely injured.

Houston Specialty provided automobile liability insurance to Cane River. Under the terms of the policy, which covered the period from March 26, 2011 to March 26, 2012, the automobile bodily injury liability limit was one million dollars. Due to the severity of his injuries, Mr. Weems sought uninsured/underinsured motorist (UM) coverage under Cane River’s policy issued by Houston Specialty. Houston Specialty denied that its policy provided UM coverage to Cane River, and in the alternative, filed a third party demand against More-man Moore, its insurance agent, and Mr. Dickerson, the agent at Moreman Moore responsible for obtaining the documents necessary to complete Houston Specialty’s in house file.

Certain facts pertaining to the execution of the UM waiver are undisputed. Mr. Tim Moran was the owner and principal of Cane River in 2011, and was authorized to either accept or reject 'UM coverage on behalf of Cane River when he | obtained the automobile bodily injury liability insurance policy at issue. Mr. Moran negotiated with Moreman Moore’s agent, Mr. Dickerson, in order for Cane River to secure insurance coverage.

On August 28, 2008, the Commissioner of Insurance, (Commissioner) had promulgated LDOI Bulletin No. 08-02, which included a revised UM waiver form that became mandatory on or after January 1, 2010. On the date at issue in this case, insurance companies were required to use the revised UM waiver form included in LDOI Bulletin No. 08-02 in securing a determination by a client of whether to accept or reject UM insurance coverage, or accept UM coverage at lower limits.

On March 23, 2011, Mr. Dickerson delivered an application form, and in accordance with LDOI Bulletin No. 08-02, the mandated blank Uninsured/Underinsured Motorist Bodily Injury Coverage Form (UM waiver form) to Mr. Moran on behalf of Cane River. Mr. Moran properly completed, signed and dated the UM waiver form rejecting the UM coverage available under the automobile bodily injury liability insurance policy of one million dollars the next day on March 24, 2011. He faxed the documents, including the UM waiver form mandated by the Commissioner, to More-man Moore, who in turn emailed the signed forms to RISCOM, Houston Specialty’s Managing General Agent. On March 25, 2011, RISCOM, on behalf of Houston Specialty bound the policy, and sent an email to Moreman Moore giving notice that the policy was bound and effective immediately. An automobile bodily injury liability insurance policy |scovering the period from March 26, 2011 to March 26, 2012 was in fact issued to Cane River by Houston Specialty without any UM coverage based on the UM waiver signed on behalf of Cane River by Mr. Moran.

It is also undisputed that the UM waiver form in question did not contain a policy number. As per the instructions of LDOI Bulletin No. 08-02, which were applicable to the UM waiver form signed by Mr. Moran on behalf of Cane River, a policy number was not required for the UM waiver form at issue to be properly completed before the policy was bound and legally in effect.

Specifically in LDOI Bulletin No. 08-02, the Commissioner stated under the section entitled “Important Form Changes” as follows:

Policy number and other policy inden-tification information—The revised UM form includes two boxes on the lower right hand corner of the form.
The upper box contains an area that the insurer may use for policy information purposes (e.g. policy number, binder number, application number, etc.) This box does not need to be filled in for the form to be properly completed.

(Emphasis added.)

On the revised UM form incorporated into LDOI Bulletin No. 08-02 issued by the Commissioner, the upper box described above states, “< Optional Information for Policy Identification Purposes Only>[.]”

The trial court relied on LDOI Bulletin No. 08-02 in granting summary judgment in favor of Houston Specialty and partial summary judgment in favor of Moreman Moore, and denying the partial summary judgment of the Weems plaintiffs. Reasons for judgment were issued June 3, 2016, and the trial court’s judgment was signed on June 23, 2016, reflecting the trial court’s ruling granting summary judgment in favor of Houston Specialty and partial summary judgment in 14favor of Moreman Moore and Mr. Dickerson, and denying the partial summary judgment of the Weems plaintiffs.

Pursuant to La.Code Civ.P. art. 1915(B)(1), the trial court designated the partial summary judgment granted to Moreman Moore and Mr. Dickerson as final and appealable. It is from the trial court’s June 23, 2016 judgment that the Weems plaintiffs have timely appealed.

ASSIGNMENTS OF ERROR

The Weems plaintiffs assign the following errors on appeal:

1. The trial court legally erred and/or was manifestly erroneous in granting the motion for summary judgment by Houston Specialty Insurance Company, and denying Plaintiffs’ motion for summary judgment, because there is a genuine issue of material fact as to whether or not a valid UM waiver form existed on August 31, 2011.
2. The trial judge legally erred and/or was manifestly erroneous in granting the motion for summary judgment by Houston Specialty Insurance Company, and denying Plaintiffs’ motion for summary judgment, because there is a genuine issue of material fact as to whether or not a controlling superseding UM waiver form was created after the accident on August 31,2011.
3. The trial court legally erred and/or was manifestly erroneous in granting the partial summary judgment of [Moreman], Moore & Company, Inc. and Jeff Dickerson to the extent it holds there is no UM coverage under Houston Specialty’s liability policy on August 31, 2011.

LAW AND DISCUSSION

Standard of Review

The Louisiana Supreme Court in Gray v. American National Property & Casualty Co., 07-1670, pp. 6-7 (La. 2/26/08), 977 So.2d 839, 844 succinctly provided the standard of review when cross-motions for summary judgment are before the trial court:

When an appellate court reviews a district court judgment on a motion for summary judgment, it applies the de novo standard of review, “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 a judgment as a matter of law.” Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638. Because this case involves cross motions for summary judgment, “we will determine whether either party has established there are no genuine issue of material fact and [that] it is entitled to judgment as a matter of law.” Duncan v. U.S.A.A. Ins. Co., 06-0363, p. 4 (La.11/29/06), 950 So.2d 544, 547.

Further, Gray, 977 So.2d at 844, instructed, “In so doing, we must be mindful of the burdens of proof imposed upon a movant in a motion for summary judgment,” which are now found in La.Code Civ.P. art. 966 which provides:

D. (1) The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all 'essential' elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burd.en is on the adverse party to produce factual support sufficient to. establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

The trial court in its reasons for judgment correctly summed up the only material issue before the court and stated:

Although there was a considerable amount of argument presented,' the Court believes that the issue before the Court is rather straightforward. In January 1, 2010, according to Louisiana Department of Insurance Bulletin No. 08-02, the revised “new” Commissioner’s UM waiver form became mandatory. This form was used hr this case. The automobile accident occurred on August 31, 2011. On March 24, 2011, Tim Moran completed, signed, and dated the UM waiver form along with other forms, and faxed them to Moreman Moore (Defendant’s Exhibit A). On the UM waiver form, Cane River explicitly rejected UM coverage (Defendants Exhibits A, | rA-3). The policy was written without UM coverage and became effective as of March 26, 2011.

Assignment of Errors

The Weems plaintiffs argue in their assignment of errors that there are material issues of fact that should have precluded the granting of both the summary judgment to Houston Specialty and the partial summary judgment to Moreman Moore and Mr. Dickerson. They further argue that the addition, of the policy number to the UM waiver form after the August 11, 2011 accident also created a. genuine issue of material fact as to whether a superseding UM waiver form was created.

The supreme court in Chicas v. Doe, 15-147, p. 1 (La. 5/1/15), 166 So.3d 238, 238 (alteration in original), succinctly summarized the law as to the validity of the Commissioner’s UM waiver form:

The regulations of the Commissioner of Insurance, as contained in LDOI Bulletin 08-02, provide for a box on the UM selection form which the insurer may use for policy information purposes, such, as policy number, binder number, application number, etc. The regulations further provide, “[t]his. box does not need to be filled in.for the form to be properly completed.” In light of this provision, the absence of a blank box for the policy number does not create a question of fact concerning the form’s validity.

Thus, once the mandatory "UM waiver form was properly executed by Mr. Moran, despite the lack of a policy number and in spite of the addition of a policy number after the August 11, 2011 accident, there is no question of material fact that" Cane River validly rejected UM coverage in conjunction with the automobile bodily injury liability insurance coverage purchased from Moreman Moore and Houston Specialty. The law is clear that a policy number on the UM waiver form is optional and not required- for a valid waiver of - UM coverage.

Therefore, we find that the trial court correctly ruled, “that the Cane River [7UM Form was valid when it was signed, it was valid when the accident occurred, and it was valid when the policy number was later added to it after the accident.”

CONCLUSION

For the foregoing reasons, the trial court’s judgment dated June 23, 2016, is affirmed in its entirety, granting summary judgment, and dismissing all claims made by plaintiffs, William A. Weems and Tina Weems, individually- and on behalf of their minor children Hailey Brooke Weems and Dylan Chase Weems, against Houston Specialty Insurance Company. Further, the partial summary judgment, filed on behalf of third-party defendants, Jeff Dickerson and Moreman, Moore & Company, Inc. is also affirmed. Finally, the. trial court’s decision to deny the motion for partial summary judgment filed on behalf of the plaintiffs, William A. Weems and Tina Weems, individually and on behalf of their minor children Hailey Brooke Weems and Dylan Chase Weems is affirmed. All costs of this appeal are assessed to the plaintiffs. William A. Weems and Tina Weems, individually and on behalf of their minor children Hailey Brooke Weems and Dylan Chase Weems.

AFFIRMED.

      . The term "bound" is defined in Black’s Law Dictionary as "1.Constrained by a contractual or other obligation." Therefore, at the time RISCOM gave notice to Moreman Moore that the insurance policy was bound, Houston Specialties was contractually obligated to provide automobile bodily injury liability insurance coverage to Cane River, which, as per Mr. Moran’s direction, did not include UM coverage.

      . The record reflects that the Weems plaintiffs initially argued to the trial court in their motion for summary judgment that the UM waiver form was invalid because it did not contain the policy number of the automobile bodily injury liability policy issued to Cane River. The Weems plaintiffs do not raise or address this argument in their brief to this court, so this argument is considered abandoned. Uniform Rules-Court of Appeal, Rule 2-12.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Scott POIENCOT v. LAFAYETTE CONSOLIDATED GOVERNMENT, et al.
    16-1009
    Court of Appeal of Louisiana, Third Circuit.
    05/31/2017
    William L. Goode, The Goode Law Firm, A.P.L.C,,-P. O. Box 3366, Lafayette, LA 70502-3366, Telephone: (337) 234-0600, COUNSEL , FOR: Plaintiff/Appellant-Scott Poiencot
    Michael P. Corry, Sr., J. Daniel Siefker, Sr., Briney Foret Corry,- 413 Travis Street, Suite 200, P. O. Drawer 51367, Lafayette, LA 70505-1367, Telephone: (337) 237-4070, COUNSEL FOR: Defendant/Appel-lee—Lafayette Consolidated Government
    Court composed of Sylvia R. Cooks, Billy H. Ezell and Van H. Kyzar, Judges.
   COOKS, Judge.

| ¿FACTS AND PROCEDURAL HISTORY

On September 12, 2012, Scott Poiencot, who was an officer with the Lafayette Police Department (hereafter LPD), was terminated from his employment by former LPD Police Chief James Craft. Poien-cot had been the subject of three separate Internal Affairs’ investigations: AD2012-007, AD2012-010 and AD2012-012. Prior to his termination, Poiencot had been employed by LPD for several years, obtaining the rank of Corporal.

Investigation AD2012-007 involved the removal and subsequent release to the media of a confidential document from a police file. It was eventually determined Lieutenant Greg Cormier removed the document in its original form from the file of an investigation. Certain information was whited out on the form before it was given to Poiencot. The confidential document was then disseminated to the local media and made public.

Investigation AD2012-010 pertained to Poiencot’s secret recording of a phone conversation between Gabe Thompson and Major George Alfred of the LPD. Thompson recorded the conversation, without the knowledge of Major Alfred, using a device provided to him by Poiencot. Poiencot admitted that he downloaded the conversation to a disc, which was later released to the media without authorization from Thompson, Major Alfred or the LPD.

Investigation AD2012-012 dealt with Poiencot’s failure to submit to a polygraph examination pursuant to Investigation AD2012-007. He initially refused to submit to the polygraph, but later agreed to do so. However, he was charged with insubordination for the initial refusal.

Poiencot appealed his termination to the Lafayette Municipal Fire & Police Civil Service Board (hereafter the Board). The Board considered Poiencot’s termination during an evidentiary hearing which occurred on November 11, 2015. |sAt the conclusion of that hearing, the Board unanimously upheld the termination of Poiencot’s employment with the LPD, finding the termination was “in good faith and for cause.”

Poiencot then appealed to the Fifteenth Judicial District Court, arguing the Board should only have considered Internal Affairs’ investigation AD2012-007 in its determination. Over Poiencot’s objection, the Board consolidated all three Internal Affairs’ investigations. Poiencot alleged he received three Personal Action Forms stating he had been terminated, one for each investigation. Poiencot argued he could only be fired one time, for the findings in investigation AD2012-007. He contended he could not be terminated on the findings in AD2012-010 or AD2012-012 because he was no longer a civil service employee upon the termination for the infraction stated in AD2012-007. As a result, Poiencot maintained the Board acted in bad faith and without cause in hearing the appeals for AD2012-010 and AD2012-012. Moreover, Poiencot asserted the Board reversed the termination in AD2012-007 which, he argued on appeal, voided and thus made the affirmances of AD2012-010 and AD2012-012 null and void.

In opposition to Poiencot’s argument, Lafayette City-Parish Consolidated Government (hereafter LCG) maintained the decision to terminate was made in good faith and for cause by a 5-0 vote of the Board. LCG argued the termination was justified because Poiencot violated confidentiality policies and/or released confidential information. LCG specifically noted Poiencot participated in secretly recording a fellow officer, an act which has been held by the courts to be sufficient to warrant termination. LCG also contended termination was an appropriate sanction for insubordination as a result of Poiencot’s refusal to take a polygraph examination upon request. LCG maintained Poiencot was terminated once for violations relating to all three of the investigations conducted against him.

|4The district court noted pursuant to La.R.S. 33:2501(3), the issue before it was whether the Board’s decision to affirm the termination was made in good faith and for cause. The district court gave the following reasons for its finding that the Board acted in good faith and for cause in terminating Poiencot:

A formal complaint triggered the start of the investigation of Mr. Poiencot. The Lafayette Police Department requested and was granted an extension to complete the investigation of sixty days. Mr. Poiencot was notified and able to participate in this investigation. Mr. Poiencot was notified of his predetermination hearing within the timeframe granted by the extension. Mr. Poiencot was also given predetermination hearings, represented by counsel through the entire process, and was able to prepare a defense to the allegations brought against him. As such, this court finds Mr. Poiencot was given due process as established in [Cleveland Bd. Of Educ. v.] Loudermill [470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)] and the Police Bill of Rights was not violated by the Board.
This case centers around three internal investigations that were conducted concerning Mr. Poiencot (AD2012-007, AD2012-010 and AD2012-012), and his subsequent determination from the Lafayette Police Department as a result. When examining the record, there was testimony from Chief Craft that Mr. Poiencot was terminated as a result of three administrative investigations. An objection was lodged'by appellant.
The Board, after' examination of the evidence, concluded that the actions of Mr. Poiencot warranted his termination. They voted 5-0 upholding the termination of Mr. Poiencot. The Board’s decision to have one hearing does not in and of itself lead the court to find that the Board did not act in good faith and for cause. No authority was cited by appellant to support that the Board must proceed with a separate trial for each investigation. The Board chose to act in an efficient manner and hear all matters that were consistent and employed the same form of procedure. Further, this court does not find any manifest error that would cause this court to overturn the Board’s factual conclusions. This court finds that the Board acted in good faith and for cause in the termination of Mr. Poiencot.

A final judgment was issued affirming the actions of the Board. Poiencot has appealed that judgment to this court, asserting in his lone assignment of error that the district court “was manifestly erroneous in finding that the Board acted in good faith and had legal cause to uphold Mr. Poiencot’s employment termination by the [Appointing Authority].” For the following reasons, we affirm the judgment of the district court.

^ANALYSIS

Louisiana Revised Statutes 33:2501(A) provides the procedure for appeals by civil service employees to the Board:

Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause, may, within fifteen days after the action, demand, in writing, a hearing and investigation by the board to determine the reasonableness of the action. .The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.

In the event of an appeal of the Board’s decision rendered under Subsection A, Subsection E provides a procedure to appeal the Board’s decision to the district court. Specifically, La.R.S. 33:2501(E)(1) provides:

Any employee under classified service and any appointing authority may appeal from any decision of the board, or from any action taken by the board under the provisions of the Part that is prejudicial to the employee or appointing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled.

The standard of review for appealing the Board’s decisions to the district court is set forth in La.R.S. 33:2501(E)(3), and provides as follows:

This hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part. No appeal to the court shall be taken except upon these grounds and except as provided in Subsection D of this Section.

In Moore v. Ware, 01-3341, pp. 7-8 (La. 2/25/03), 839 So.2d 940, 945-46, the Louisiana Supreme Court explained the standard of review required for an appellate court, as follows:

If made in good faith and statutory cause, a decision of the civil service board cannot be disturbed on judicial review. Smith v. Municipal Fire & Police Civil Service Bd., 94-625 (La.App. 3 Cir. 11/02/94), 649 So.2d 566; McDonald v. City of Shreveport, 655 So.2d 588 (La. App. 2 Cir.1995). Good faith does not occur if the appointing authority acted arbitrarily or capriciously, or as the* result of prejudice or political expediency. Martin v. City of St. Martinville, 321 So.2d 532 (La.App. 3 Cir.1975), writ denied, 325 So.2d 273 (La.1976). Arbitrary or capricious' means the lack of a rational basis for the action taken. Shields v. City of Shreveport, 579 So.2d 961, 964 (La.1991); Bichnell v. United States, 422 F.2d 1055 (5th Cir.1970). The district court should accord deference to a civil service board’s factual conclusions and must not overturn them unless they are manifestly erroneous. Shields v. City of Shreveport, 565 So.2d 473, 480 (La. App. 2 Cir.), aff'd, 579 So.2d 961 (La. 1991). Likewise, the intermediate appellate court and our review of a civil service board’s findings of fact are limited. Shields, 579 So.2d at 964. Those findings are entitled to the same weight as findings of fact made by a trial court and are not to be overturned in the absence of manifest error. Id.; City of Kenner v. Wool, 433 So.2d 785, 788 (La.App. 5 Cir.1983).

In his brief to this court, Poiencot argues he was terminated as a result of AD2012-007 and not AD2012-010 and AD2012-012. The record reflects the September 12, 2012 termination letter sent to Poiencot pertaining to AD2012-007 also listed the violations of AD2012-010 and AD2012-012. All three investigations were combined for the scheduled hearing as evidenced by the September 12, 2012 letter.

Poiencot calls our attention to the fact that three separate Personal Action Forms (PAF’s) were initially submitted to the Office of the State Examiner. However, during the hearing Chairman of the Board, Jason Boudreaux, specifically stated he refused to sign the three separate PAF’s, and would only sign the one PAF which combined all three investigations. Chairman Boudreaux specifically noted a PAF is “not valid unless I sign it, or in my absence, the vice-chairman.” Thus, the record does not advance Poiencot’s argument that he was terminated three times. The only signed PAF in the record is one that combined all three investigations, supporting the finding that Poiencot was terminated once following the probe into all three Internal Affairs’ investigations.

We also find Poiencot’s assertion that the Board reversed the termination in AD2012-007, thus making the affirmances of AD2012-010 and AD2012-012 null and void, is not supported by the record. Poiencot maintained in brief and before this court that a motion was made to reverse the termination in AD2012-007 and |7seconded and passed by the other members of the Board. A review of the transcript belies this argument:

CHAIRMAN BOUDREAUX:
Okay. What are the wishes of the Board?
MR. FORSYTH:
I’d like to make a motion that the letter—just charge Scott [Poiencot] with AD2012-010 and AD2012-012, and that AD2012-007 be removed, and that I can’t vote for it. I can’t vote for something that contains all three, but I can vote for those two, but I can’t vote for the first one.
CHAIRMAN BOUDREAUX:
So...
MR. FORSYTH:
That’s my motion, that it be amended.
SGT. LEBRETON:
I’m not sure we can delete a portion of a file submitted to us.
MR. CORRY:
It’s already been accepted.
SGT. LEBRETON:
I wouldn’t say you can support two of three claims or allegations in a hearing and not support one, but I don’t know that we can order or make it not appear on the record.
MR. FORSYTH:
How would that motion—
CHAIRMAN BOUDREAUX:
So what—if I understand—I’m going to try to understand what you’re saying. I don’t want to put words in your mouth, please. So what you’re saying is you want to uphold the City’s termination, but you’re only in support of—
MR. FORSYTH:
010 and 012.
CHAIRMAN BOUDREAUX:
010 and 012?
MS. HATTAN:
The motion, it would then be to uphold, to find that the Chief acted in good faith and for cause, that is the issue you can rule on, and then when you give your reasons for ruling, it would be part of the record why you voted the way you did. It gets transcribed with the rest of the—
IsMR. FORSYTH:
Okay.
CHAIRMAN BOUDREAUX:
Okay, so your motion is to uphold the Appointing Authority’s termination that he acted in good faith and for cause? MR. FORSYTH:
Yes, in two of them.
SGT. LEBRETON:
I would second the motion to affirm the action of the Appointing Authority.
MR. GOODE:
I’m sorry?
SGT. LEBRETON:
I would second the motion to affirm the action of Chief Craft, affirm the termination.
CHAIRMAN BOUDREAUX:
Okay. A motion and a second, call the role.
MS. ARNAUD:
Okay, Ralph?
MR. PETERS:
Yes.
MS. ARNAUD:
Craig?
MR. FORSYTH:
Yes. And I want to state for the record that I am supporting the AD2012-010 and AD2012-012, but not the AD2012-007.
MS. ARNAUD:
Jason?
CHAIRMAN BOUDREAUX:
Yes.
MS. ARNAUD:
Guy?
SGT. LEBRETON:
I would say yes, and I would like to add it’s my belief that all three allegations were substantiated, ...

The transcript clearly reveals the only Board member who voiced any disagreement with the termination being based on AD2012-007 was Craig Forsyth. | nThe other four members approved of Poiencot’s termination, and made no reference to any disagreement with AD2012-007. Forsyth asked that Poiencot’s termination be amended, and that any reference to AD2012-007 be “removed.” After additional discussion, it was questioned whether AD2012-007 could be removed from the record. Forsyth acknowledged he wished to uphold Poiencot’s termination, but only as to AD2012-010 and AD2012-012. The motion that was put forth to the Board did not involve any reversal of AD2012-007, as Poiencot mistakenly contends, but instead was “to uphold the Appointing Authority’s termination that he acted in good faith and for cause.” All five Board members approved of the motion to uphold the termination, with only Forsyth noting he supported termination only as to AD2012-010 and AD2012-012, and not AD2012-007. Thus, only one Board member voiced any concern with AD2012-007 and all five Board members voted to uphold the Appointing Authority’s termination of Poien-cot. Accordingly, Poiencot’s contention that the Board reversed his termination as to AD2012-007 is factually erroneous.

A review of the hearing before the Board establishes Poiencot’s termination by the Appointing Authority was unanimously approved. The district court concluded the Board’s decision to have one hearing was not done in bad faith and without cause. Poiencot has cited no legal authority to support his position on appeal that the Board should have proceeded with a separate hearing for each investigation. We find no error in the district court’s finding that the Board chose to act in an efficient manner. The district court also found no manifest error which would allow it to overturn the Board’s factual conclusions that the Board acted in good faith and with cause in upholding the termination of Poiencot. Likewise, we find nothing in the record to disturb that conclusion on appeal.

ImDECREE

For the foregoing reasons, the judgment of the district court is affirmed. All costs of this appeal are assessed to appellant, Scott Poiencot.

AFFIRMED.


author: AMY, Judge.

text:
    Kendall DIXON v. CITY OF ALEXANDRIA
    16-880
    Court of Appeal of Louisiana, Third Circuit.
    05/31/2017

      Eugene P. Cicardo, Jr., Post Office Box 1128, Alexandria, LA 71309-1128, (318) 445-2097, COUNSEL FOR PLAINTIFF/APPELLEE: Kendall Dixon
    Michael J. O’Shee, Joshua J. Dara, Jr., Steven M. Oxenhandler, Gold, Weems, Bruser, Sues & Rundell, Post Office Box 6118, Alexandria, LA 71307-6118, (318) 445-6471, COUNSEL FOR DEFENDANT/APPELLANT: City of Alexandria
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Marc T. Amy, Judges.
   AMY, Judge.

| iThe plaintiff firefighter’s employment was terminated following a purportedly failed breath alcohol test. Thereafter, his employment was repeatedly reinstated and terminated as the matter proceeded through various reviews. The plaintiff filed this matter seeking back pay attributable to the periods of retroactive reinstatement as well as for work actually performed during certain discrete periods. The plaintiff also sought penalties and attorney fees pursuant to La.R.S. 23:631 and La,R.S. 23:632. In pretrial proceedings, the trial court denied various exceptions, including an exception of no cause of action. The trial court denied those exceptions and, on the merits, awarded penalties, attorney fees, and court costs. The City appeals that ruling. The plaintiff answers the appeal. For the following reasons, we reverse the trial court’s denial of the City’s exception of no cause of action, in part, sustain the City’s exception of no cause of action, in part, and dismiss claims regarding back pay. We thereafter reverse the judgment on the merits and enter a judgment of entitlement to penalties and attorney fees pursuant to La.R.S. 23:632. We further deny the plaintiffs motion to supplement the record and motion to produce, both referred to in the merits of this appeal.

Factual and Procedural Background

The employment matter underlying the present wage claim initially arose after the City of Alexandria terminated the employment of firefighter Kendall Dixon, effective September 18, 2014, due to the results of a breath alcohol test. The propriety of that termination is the subject of multiple administrative and court rulings, resulting in periods of reinstatement and repeated terminations. Although the rulings are not now at issue in this wage-related matter, we revisit those somewhat convoluted time periods as relevant to this matter.

12Following the initial, September 2014 termination, the Alexandria Municipal Fire and Police Service Board reviewed the action, excluding the results of the breath alcohol test relied upon by the City. The Board ordered reinstatement of the plaintiffs employment retroactive to the September 18, 2014 termination.

However, on April 16, 2015, the Ninth Judicial District Court reversed the Board’s decision to reinstate the plaintiff and ordered the reinstatement of the City’s September 18, 2014 termination of employment. That termination was again reversed, when a panel of this court granted the plaintiffs writ application and, for the second time, reinstated the decision of the Board on August 25, 2015. See City of Alexandria v. Kendall Dixon, 15-585 (La. App. 3 Cir. 8/25/15)1 a (unpublished writ ruling), writ granted, City of Alexandria v. Dixon, 15-1718 (La. 11/16/15), 184 So.3d 20. However, the Supreme Court of Louisiana later reversed the writ ruling, reinstating both the trial court ruling in favor of the City and its order of remand to the Board for its consideration of the breath alcohol test previously excluded from consideration. See City of Alexandria v. Dixon, 15-1718 (La. 5/3/16), 196 So.3d 592.

Fire Chief Bernard Wesley explained at trial that the City, in turn, terminated the plaintiffs employment on the same date as the supreme court’s opinion, May 3, 2016. Yet, following the supreme court’s remand to the Board for reconsideration, the Board again reinstated the plaintiffs employment. A Personnel Status Change form included in this record indicates that the reinstatement was made retroactive to May 4, 2016. The City appealed that ruling to the Ninth Judicial District Court which, by a December 16, 2016 ruling, .affirmed the plaintiffs dismissal. The plaintiffs application for supervisory writs, in which he seeks review of the trial court’s ruling, is currently pending before this court. See City of Alexandria v. Kendall Dixon, 17-327.

During this period of repeated reinstate-ments and subsequent dismissals, the plaintiff filed this matter as a Petition for Unpaid Compensation on July 29, 2015. Therein, he alleged “that, upon his retroactive reinstatement, he did not receive the back-due supplemental pay for the period for which he was unemployed due to I ¿wrongful termination.” He also alleged that, following the April 16, 2016 discharge, he “did not receive his regular wages from the City for the shifts he worked on April 12th, 14th, and 16th, 2015[,]” and that he was not “paid the Firefighter’s Supplemental Salary (La. R.S. 33:2001, et seq,) for the period of time between September 17, 2014 and January 12,2016, and for the month of April, 2016.” He asserted that he made demand for those sums, but that the “wages have still not been paid.” He thus suggested that: “[b]ecause the City of Alexandria has failed or refused to comply with the provisions of R.S. 23:631, it is liable ... for ninety days wages at the daily rate of pay, or else for full wages from the time ... demand for payment was made until the City pays or tenders the amount of unpaid wages due.” He also sought attorney fees.

In its answer, the City advanced various exceptions, including those of prematurity, no cause of action for state supplemental pay, and improper use of summary proceedings. Those exceptions related, in part, to the City’s contention that the claim for penalties and attorney fees arising under La.R.S. 23:631 and La,R.S. 23:632 was inapplicable to the plaintiff as his employment status with the City was not final and still under review. The City also filed a reconventional demand against the plaintiff, suggesting that, because the district court retroactively terminated the plaintiffs employment by its April 15, 2015 ruling, it had “improperly overpaid ... wages not owed to him between September 17, 2014 and April 16, 2015.” The City therefore sought the return of “all wages, benefits, Rand other emoluments of employment” from that time period pursuant to La.Civ.Code art. 2299.

In response to the reconventional demand, the plaintiff filed an exception of no cause of action as to the City’s claim for reimbursement for previously paid back pay. Referencing La.R.S. 33:2501, the plaintiff contended that “the City has no right to reclaim compensation paid ... pursuant to the Board’s decision.” Citing Moore v. City of Abbeville, 01-1362 (La. App. 3 Cir. 3/6/02), 809 So.2d 1244. The plaintiff suggested that such a position is contrary to La.R.S. 33:2501(0 which, he contended, indicated that payment of back pay must be implemented immediately and not subject to a “suspensive appeal” pending review. Following a hearing, the trial court denied both parties’ exceptions.

The plaintiff fíled a supplemental petition on July 8, 2016, subsequent to the termination of employment that followed the supreme court’s May 3, 2016 judgment and after the Board again ordered the reinstatement of employment. The plaintiff asserted that, despite demand, “all compensation and benefit[s] due [him] after his September 17, 2014 termination and January 12, 2015 reinstatement [were] not paid ... within the delays allowed La.R.S. 23:631, et seq., subjecting the City to penalties and attorney’s fees.” He further asserted that “all compensation due ... from his actual work from January 12, 2015 until his April 16, 2015 termination was not paid ... within the delays allowed by La. R.S. 23:631, et seq., subjecting the City to additional penalties and attorney’s fees.” As for the time period immediately before the supplemental petition, the plaintiff Lagain suggested that “all compensation and benefits due ... after his May [3],[] 2016 termination and June 22, 2016 reinstatement [were] not paid ... within the delays allowed by La.R.S. 23:631, et seq., subjecting the City to additional penalties and attorney’s fees.” Thus, in addition to his claim for all back pay due, he alleged entitlement “to penalties and attorney’s fees for each time the City did not comply with La.R.S. 23:631, et seq.”

In its answer, the City again advanced exceptions of prematurity, no right of action, and no cause of action. The trial court considered these exceptions immediately prior to the beginning of the resulting trial on the plaintiffs claims. Following the presentation of evidence, the trial court denied the City’s exceptions. The resulting judgment both addressed the denial of the exceptions and determined “that wages were due and owing Kendall Dixon, proper demand was made and after demand wages were not paid by the City[.]” In turn, the trial court ordered the City to pay penalties to the plaintiff in the amount of $32,000.00 and attorney fees in the amount of $32,000.00. Taxing this latter award as court costs, the trial court ordered the City to pay court costs in the amount of $34,249.60.

The City appeals, assigning the following as error:

[1,] The Trial Court Erred in Denying the City’s Exceptions of Prematurity, No Cause of Action and No Right of Action.
|7[2.] Alternatively, The Trial Court Erred in Awarding Penalty Wages.
[3.] Alternatively, The Trial Court Committed Legal and Fact Errors in its Calculation of Penalty Wages.
[4.] Alternatively, Attorney Fees Were Improperly Awarded; or in the Further Alternative, the La.R.S. 23:632 Attorney Fee Award Erroneously Included Attorney Time Spent for Pursuing Back Wages Under La.R.S. 33:2501(0(1).
[5.] Alternatively, The Trial Court Erred in Making a Costs Award of $34,249.60 With No Determination of Compensable Costs or the Amount Thereof; Without Any Evidence to Support the Costs Award; and With No Evidence to Show That Costs of $34,249.60 Had Even Been Incurred.

The plaintiff answers the appeal, seeking specification of the amount of unpaid wages he was due and additionally requesting an increase in those wages. He also seeks an increase in the amount of attorney fees awarded and an amendment to the judgment indicating that interest is due on the award of penalties and attorney fees. Finally, he seeks attorney fees for work performed on appeal.

Discussion

Motions Filed on Appeal

Before submission of this matter to the panel, the plaintiff filed two motions with this court which were referred to the panel for consideration on the merits. First, the plaintiff filed a motion to supplement the record by which he seeks to introduce the image of a September 2016 check stub. He contends that this image reflects a post-trial payment by the City, acknowledging that sums are due him. Additionally, by a motion to produce, the plaintiff seeks an order to the City of an accounting of time spent, hours billed, and for work performed by counsel in this matter. He asserts that the billing information is relevant in the assessment of attorney fees he seeks for work performed on appeal.

| «However, an appellate court “may not consider evidence not in the record before the trial court and may not receive new evidence.” Pickett v. J.B. Tuck Land Clearing, 12-1409, p. 14 (La.App. 3 Cir. 5/1/13), 157 So.3d 34, 44. Both motions must be denied on this basis as they anticipate the introduction of evidence that was not and could not have been introduced below in light of their post-trial creation. Accordingly, we deny both the motion to supplement and motion to produce.

Exceptions

In its first assignment of error, the City addresses its exceptions of prematurity, no cause of action, and no right of action. As it has throughout this matter, the City continues to reference the ongoing reviews associated with the plaintiffs termination of employment pursuant to La,R.S. 33:2501. In light of the various terminations and reinstatements of employment, the City contends first that the plaintiff cannot avail himself of the provisions of La.R.S. 23:631 insofar as the statute anticipates a termination. The City pointedly notes that the plaintiff was an employee (with his employment having been reinstated) at the time he filed the July 2016 supplemental petition in which he sought both back pay attributable to reinstatement and those attributable to certain shifts he actually worked, namely April 12, 14, and 16, 2015. Accordingly, the City contended through its exception both that the plaintiffs claims were premature, as he could not be considered a former employee due to the lack of finality on the civil service claim and, alternatively, that the plaintiff had neither a right of action nor a cause of action.

We first set forth the relevant statutory framework. As apparent from the factual and procedural background, the merits of the civil service employment 19dispute are proceeding pursuant to La.R.S. 33:2501. Entitled “Appeals by employees to the board[,]” La.R.S. 33:2501 provides, in part:

§ 2501. Appeals by employees to the board
A. Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause, may, within fifteen days after the action, demand, in writing, a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.
C. (1) After the investigation provided for in Subsection B of this Section, the board may, if the evidence is conclusive, affirm the action of the appointing authority. If the board finds that the action was not taken in good faith for cause under the provisions of this Part, the board shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which he was removed, suspended, demoted, or discharged, which reinstatement shall, if the board so provides, be retroactive and entitle him to his regular pay from the time of removal, suspension, demotion, discharge, or other disciplinary action. The board may modify the order of removal, suspension, demotion, discharge, or other disciplinary action by directing a suspension without pay, for a given period, a reduction in pay to the rate prevailing for the next lower class, a reduction or demotion to a position of any lower class and to the rate of pay prevailing thereof, or such other lesser punitive action that may be appropriate under the circumstances.
(2) The decision of the board, together with its written finding of fact, if required, shall be certified, in writing, to the appointing authority and shall be forthwith enforced by the appointing authority.
E. (1) Any employee under classified service and any appointing authority may appeal from any decision of the board, or from any action taken by the board under the provisions of the Part that is prejudicial to the employee or appointing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled.

|io(Emphasis added.) Pursuant to Paragraph C, and upon each reinstatement of employment, the City began reimbursement of the plaintiffs pay from the time of discharge.

The plaintiff alleged in the instant proceedings that either the payments were not paid or were paid untimely. In particular, the plaintiff asserted in his supplemental petition that “he did not receive the back-due supplemental pay for the period for which he was unemployed due to wrongful termination.”

In addition to this form of back pay, the plaintiff asserted that, after his reinstatement and his discharge from employment on April 16, 2015, he “did not receive his regular wages from the City for the shifts he worked on April 12th, 14th, and 16th, 2015.” Accordingly, the plaintiff sought two types of wages: 1) aspects of back pay owed by virtue of his reinstatement, for a period of time for which he did not work; and 2) those for work actually performed during the period of reinstatement.

Suggesting that the City failed to comply with La.R.S. 23:631, the plaintiff further sought penalties and attorney fees. In this regard, La.R.S. 23:631 requires that:

§ 631. Discharge or resignation of employees; payment after termination of employment
A.(l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.

The provision permits such an employee to file an action to enforce the above wage claim by use of summary proceedings. See La.R.S. 23:631(B); La.Code Civ.P. art. 2692. In turn, La.R.S. 23:632 provides for an employer’s liability as follows:

A, Except as provided for in Subsection B of this Section, any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages.
B. When the court finds that an employer’s dispute over the amount of wages due was in good faith, but the employer is subsequently found by the court to owe the amount in dispute, the employer shall be hable only for the amount of wages in dispute plus judicial interest incurred from the date that the suit is filed. If the court determines that the employer’s failure or refusal to pay the amount of wages owed was not in good faith, then the employer shall be subject to the penalty provided for in Subsection A of this Section.
C.Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

With this framework in mind, we turn to consideration of the individual exceptions, beginning with the exception of no cause of action.

Cause of Action

Provided by La.Code Civ.P. art. 927(A)(5), the peremptory exception of no cause of action tests the legal sufficiency of the plaintiffs petition by determining whether the law affords a remedy on the facts alleged. Scheffler v. Adams and Reese, LLP, 06-1774 (La. 2/22/07), 950 So.2d 641. The exception is tried on the face of the pleading, as La.Code Civ.P. art. 931 instructs that no evidence may be introduced to support or to controvert the exception. "[F]or purposes of resolving the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true.” Id. at 646. The issue before the court in consideration of an exception of no cause of action is whether, “on the face of the petition, the plaintiff is legally entitled to the relief sought.” Id. Because the exception presents a question of law, appellate review of the trial court’s ruling as to whether the petition states a valid cause of action is de novo. Id.

The City’s argument to the trial court regarding each exception was intertwined with its overall argument that the plaintiffs claim for back pay, including state supplemental pay, could not be resolved until the appropriateness of the termination was resolved on the merits under the procedure of La.R.S. 33:2501. Referencing the underlying civil service litigation, the City suggested that “[ujntil Dixon’s final employment status is determined ... Dixon has no cause of action against the City for any claim associated with Dixon’s state supplemental pay,- and Dixon’s claim for unpaid state supplemental pay' should be dismisséd.”

On appeal, the City similarly argues that the plaintiff does not have a cause of action for penalties and attorney fees under La. R.S. 23:632, as those back supplemental salary sums cannot be considered “final wages” under the terms.of that statute. In particular, the “finality” of the employment has not yet been resolved and the supplemental salary sums were from a period of' reinstated employment and were thus not earned so as to constitute “wages”. Citing Boudreaux v. Hamilton Med. Group, Inc., 94-0879 (La. 10/17/94), 644 So.2d 619 (wherein the supreme court determined that La.R.S. 23:631 and La. R.S. 23:632 were inapplicable to amounts due under an employment agreement at the end of the plaintiffs employment, as “only compensation that is earned during a pay period will be considered wages under the statutes.”).

On review, we first find no error in the trial court’s denial of the exception of no cause of action to the extent that the plaintiffs petitions sought payment' of Jjjback due supplemental salary sums following reinstatement of employment. Undoubtedly, the plaintiffs employment status continues to be litigated. Yet, La.R.S. 33:2501(C)(2) provides that the decision of the Board “shall be forthwith .enforced by the appointing authority.” In this case, the reinstatements have included back pay from the period(s) of termination. Accordingly, to the extent that plaintiff would be able to prove that the City failed to enforce that decision; he stated a cause of action.

However, we find merit in the City’s contention that the petitions failed to state a cause of action for'penalties and attorney fees for those reimbursement sums under La.R.S. 23:631 and La.R.S. 23:632. Significantly, the plaintiffs right to sums for back pay arises under La.R.S. 33:2501, a statute specifically addressing the appeal process available to a fire and police civil sendee employee. The statute permits the Board to order a discharged employee’s' immediate reinstatement, to order that the reinstatement be made retroactive, and to order that the employee is entitled “to his regular pay from the time of ... discharge!)]” La.R.S. 33:2501(0(1). As noted above, the appointing authority must “forthwith” enforce that decision. La. R.S. 33:2501(0(2). However, this specific statutory framework does not authorize an award of penalty wages.

Rather, the plaintiff pursues those wages for back pay, i.e., state supplemental pay, under the provisions of La.R.S. 23:631 and La.R.S. 23:632. Yet, those statutes are applicable generally to discharged employees and require the employer “to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month[.]” La.R.S. 23:631(A)(1)(a). The back pay pursued by the plaintiff in this case was “not due under the terms of employment!)]” Instead, the back state supplemental pay was not earned under the terms of employment. It instead resulted from the reinstatement of employment with back pay. Simply, it was not earned, but was payable by function of La.R.S. 33:2501 and order of the Board or the courts. On this point, we find the supreme court’s discussion in Boudreaux, 644 So.2d 619 instructive, albeit not inclusive of the civil service statute under consideration. In Boudreaux, the supreme court determined that La.R.S. 23:631 and La.R.S. 23:632 were not applicable to an issue of timely payment of “Compensation on Termination” as required by an employment contract. Id. The supreme court instead explained that La.R.S, 23:631’s reference to “the amount then due under the terms of employment” “refers to wages which are earned during a payment period.” Id. at 622 (emphasis added). It also stated that the statute’s further reference to “ ‘terms of employment’ refers to a particular pay period” and, thus, “only compensation that is earned during a pay period will be considered wages under the statutes.” Id.

Expressing similar reasoning, the first circuit recently rendered decisions in companion cases wherein a civil service employee pursued recovery of past loss of wages and benefits pursuant to La.R.S. 49:113 and was awarded penalty wages and attorney fees under La.R.S. 23:631 and La.R.S. 23:632 by separate judgments. See Harris v. City of Baton Rouge, 16-163 (La.App. 1 Cir. 12/22/16), 209 So.3d 405, writ denied, 17-155 (La. 3/31/17), 217 So.3d 360, 2017 WL 1315839; Harris v. City of Baton Rouge, 16-164 (La.App. 1 Cir. 12/22/16), 2016 WL 7407376 (an opinion not designated for publication), writ denied, 17-0159 (La. 12/22/16), - So.3d -, In addressing the awards before it, the first circuit noted that the plaintiffs claim was one governed by La.R.S. 49:113, a statute addressing state or city civil service employees. Harris, 209 So.3d 405.

Louisiana Revised Statutes 49:113, entitled “Salaries and wages of employees illegally separated; off-set of wages earned in outside employment” provides:

Employees in the state or city civil service, who have been illegally discharged from their employment, as found by the appellate courts, shall be entitled to be paid by the employing agency all salaries and wages withheld during the period of illegal separation, against which amount shall be credited and set-off all wages and salaries earned by the employee in private employment in the period of separation.

Pointing out that the above statute addresses salaries and wages of employees in the state or city civil service, the first circuit observed that “La.R.S. 49:113 does not authorize the award of ‘penalty wages.’ ” Harris, 209 So.3d at 408. Finding no authorization for such an award, the first circuit thereafter reversed the penalty wages awarded. Id. (citing La.Civ.Code art. 3546 for the proposition that “[p]uni-tive damages may not be awarded by a court of this state unless authorized.”). In the unpublished companion case, the first circuit similarly reversed the award of attorney fees, again explaining that the suit was brought 11Bpursuant to the more specific provision applicable to state and city civil service employees, which does not authorize attorney fees. Harris, 16-0164.

Similarly, in this case, the plaintiffs petitions alleged a failure of the City to provide back pay and benefits as required by the parameters of the reinstatements of employment. Such a reinstatement, with back pay, is authorized by La.R.S. 33:2501, a provision specifically applicable to the plaintiffs position as a firefighter in his specific locality. However, and like La. R.S. 49:113, La.R.S. 33:2501 does not authorize a trial court’s award of penalty wages for failure to provide reimbursement of back pay for the prior period of termination. As noted by the first circuit in Harris, La.Civ.Code art. 3546 does not permit an award of a penalty absent authorization.

Even if La.R.S. 33:2501 can be viewed as conflicting with La.R.S. 23:631 and La.R.S. 23:632, the supreme court has explained that such a conflict dictates that “the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.” McGlothlin v. Christus St. Patrick Hosp., 10-2775, p. 12 (La. 7/1/11), 65 So.3d 1218, 1228. Additionally, the supreme court has observed that La.R.S. 23:632 is a penal statute and must be strictly construed. See Wyatt v. Avoyelles Par. Sch. Bd., 01-3180 (La. 12/4/02), 831- So.2d 906. Accordingly, we find that La.R.S. 23:631 and La.R.S. 23:632 do not apply to the payment or timeliness of back pay necessitated by reinstatement of employment.

h7Nor does La.R.S. 33:2501 provide for an award of attorney fees by the trial court. While La.R.S. 33:2501.1 permits such an award, it does so in the following limited sense:

When an appeal is taken by an employee in the classified service pursuant to R.S. 33:2501 to a municipal fire and police civil service board and the board determines, in reversing the decision of the appointing authority, that the corrective or disciplinary action taken by the appointing authority was without just cause as provided in R.S. 33:2501, the board may award to the appealing employee attorney fees to be assessed against the appointing authority not to exceed one thousand dollars in any one appeal,

(Emphasis added.) The statute does not authorize such an award, even at the one thousand dollar limit, by the trial court. See, e.g., Thibodeaux v. City of Opelousas, 97-1574 (La.App. 3 Cir. 7/22/98), 717 So.2d 254 (wherein a panel of this court rejected a plaintiffs claim for attorney fees under La.R.S. 33:2501.1, explaining that “[t]he statute does not provide for the award of attorney’s fees for a trial court’s reversal of a decision of the civil service board. The statute only applies when the civil service board reverses the decision of the appointing authority.”), writ denied, 98-2768 (La. 12/18/98), 731 So.2d 277.

For this reason, we find that the trial court erred in failing to sustain the City’s exception of no cause of action to the extent that the plaintiffs petitions sought penalty wages and attorney fees for the alleged failure to reimburse back pay for the period of time during which the plaintiffs employment was terminated. Accordingly, we below sustain the exception in part and dismiss the plaintiffs claims in that regard.

However, we find that the petitions do, rather, advance a cause of action for payment of wages due for work actually performed, i.e., “for the shifts he worked on April 12th, 14th, and 16th, 2015.” The plaintiffs petition plainly alleged that he | iswas again discharged on April 16, 2015, and further alleged that he did not thereafter receive regular wages from those shifts that he actually worked. While the record establishes that the City immediately paid those wages upon receipt of the petition, the claim remained at the time of the petition as did the claim for penalty wages and attorney fees thereon. Similarly, by his supplemental petition, the plaintiff alleged that certain wages for work prior to the May 3, 2016 termination of employment remained unpaid. As the plaintiff allegedly earned those wages, rather than gaining entitlement to them as back pay upon reinstatement of his employment, they are distinguishable from back pay due under La.R.S. 33:2501.

Instead, the plaintiffs claims for those wages squarely arise under La.R.S. 23:631 and La.R,S. 23:632 as they were “due under the terms of employment” and were allegedly not paid within fifteen days following the date of discharge. Thus, the plaintiffs petition advanced a cause of action both for the wages and the penalties and attorney fees thereon. Accordingly, we find no error in the denial of the exception of no cause of action to the extent the petition alleged entitlement to wages for work actually performed, as well as related penalties and attorney fees under La.R.S. 23:631 and La.R.S. 23:632.

Having identified the remaining cause of action contained within the petition, we turn to consideration of the City’s claims regarding the exception of prematurity and the exception of no right of action. Exception of Prematurity

The exception of prematurity is provided by La.Code Civ.P. art. 926(A)(1). The exception “questions whether the cause of action has matured to the point where it is ripe for judicial determination.” Moreno v. Entergy Corp., 10-2281, p. 3 (La. 2/18/11), 62 So.3d 704, 706 (quoting Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-0451 (La. 12/1/04), 888 So.2d 782). As stated above, the City both suggested and continues to argue that consideration of the plaintiffs petition was premature given the litigation as to his work status. However, we have observed that the plaintiff has no cause of action for penalties and attorney fees for back pay available due to the operation of La.R.S. 33:2501. Thus, the finality of the termination of employment pursuant to that statute is no longer relevant in this matter. In this sense, we find no merit in the City’s contention that consideration is premature pursuant to La.R.S. 33:2501.

Neither do we find error in the trial court’s denial of the exception of prematurity as to the remaining cause of action, i.e., entitlement to wages for work actually performed and a demand for penalties and attorney fees pursuant to La. R.S. 23:631 and La.R.S, 23:632. This cause of action relates to work actually performed. In particular, the plaintiff references wages for work performed on April 12th, 14th, and 16th, 2015 as well as for a less specific time frame preceding his May 3, 2016 termination of employment. He asserts that those wages were' not paid as statutorily required.

Although the City points out that the finality of the termination of employment is an open question, it is one that is not relevant to wages for work actually performed. Rather, within the context of La. R.S. 23:631(A), it is unquestioned that the plaintiff was “discharged” and, pursuant to that statute, the employer was obligated “to pay the amount then due under the terms of | anemployment ...” The plaintiff was obviously due sums attributable to work performed. See Boudreaux, 644 So.2d 619 (wherein the. supreme court explained that La.R.S. 23:631 and La.R.S. 23:632 “are designed to compel prompt payment of wages upon an employee’s discharge or resignation.”). Accordingly, we do not disturb the denial of the exception of prematurity.

Exception of No Right of Action

By similar reasoning, we further reject the City’s argument that the plaintiff had no right of action to bring the claim asserted in his supplemental petition. In this regard, the City contends, that he could not maintain a claim for final wages since the supplemental petition was filed after his employment status was reinstated. Thus, per the City’s argument, the plaintiff “had no right of action under La. R.S. 23:631, which applies ‘[n]pon the discharge of any laborer or employee,’ or ‘[u]pon the resignation of any laborer or other employee.’” However, and despite the unsettled question as to the permanency of the termination of employment, it is unquestioned that the plaintiff was discharged from employment and that wages were due for work actually performed. Any remaining question regarding subsequent reinstatement of employment does not resolve the wage litigation for those discrete periods of time.

This argument lacks merit.

Merits

Above, we have determined that the trial court committed a reversible error of law in failing to grant the exception of no cause of action in part. That foundational error obviously altered the course of the proceedings, influenced the introduction of evidence, and shaped the parties’ arguments and prayers for relief. Thus, it is apparent that the legal error interdicted the fact finding underlying the |⅞< final judgment. In particular, we note that the judgment makes no discernment between wages for work performed and back pay upon reinstatement, or how penalties and attorney fees were apportioned between those, if at all. Accordingly, we reverse that judgment on the merits. Typically, “[w]hen reviewing courts find that á reversible error of law was made in the lower cóurt, appellate courts áre required to re-determine the facts de novo from the entire record and render a judgment on the merits.” Boudreaux v. Cummings, 14-1499, p. 3 (La. 5/5/15), 167 So.3d 559, 561. We thus turn to consideration of the record in light of the remaining cause of action for past due wages for work actually performed and related penalties and attorney fees.

On this point, the plaintiffs petition of July 29, 2015 alleged that he was ‘‘again discharged from employment” oh April' 16, 2015, following the trial court’s reversal of the Board’s January 12, 2015 decision. Yet, he contended that, although “Friday May 1, 2015 was the regularly scheduled ‘payday’ for the pay cycle which included his last day of work for the City[,]” he did not thereafter “receive his regular wages from the City for the shifts he worked on April 12th, 14th, and 16th, 2015.” Similarly, but by a less specific allegation, the plaintiff contended in his supplemental petition that he was not paid “all compensation due” from “his actual work from August 25, 2015 until his May [3], 2016 termination” within the delays allowed by La.R.S. 23:631.

As established by the testimony of both the plaintiff and Dana Daigre, the City’s accounting manager, it was unquestioned that the plaintiff did not receive payment for those three shifts until after the July 29, 2015 filing of the original petition. As set forth above, the petition pointedly alleged that the plaintiff “did not receive his regular wages from the City for the shifts he worked on April 12th, | aa14th, and 16th, 2015.” Ms. Daigre indicated that, upon being informed of the need to pay the wages for the three shifts of April 12th, 14th, and 16th, she issued payment on August 6, 2015. Thus, those wages were paid outside the confines of La.R.S. 23:631, which provides for payment of “the amount then due under the terms of employment ... on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.” While those wages were paid by the time of trial, the plaintiffs claim for penalties and attorney fees pursuant to La.R.S. 23:632 remained as to the April 2015 wages.

We do not find, however, that the plaintiff established the same late payment for the wages for actual work performed during the second reinstatement of August 25, 2015 through the subsequent May 3, 2016 termination. Rather, the evidence regarding the plaintiffs paycheck following that termination is muddled with seemingly ongoing attempts at that point to recover items associated with back pay from periods of reinstatement. We therefore turn to consideration of the penalty and attorney claim only with regard to the April 2015 wages.

As set forth above, La.R.S. 23:632(A) provides that, absent a good faith dispute as to the amount of wages due, an employer failing to comply with La.R.S. 23:631 is liable for the lesser of “ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee[.]” Thus, in order to recover penalty wages, an employee must show that 1) wages were due and owing; 2) he or she made demand for payment at the place where the employee was customarily paid; and that 3) the employer did not pay following demand. Becht v. Morgan Bldg. & Spas, Inc., 02-2047 (La. 4/23/03), 843 So.2d 1109, cert. denied, 540 U.S. 878, 124 S.Ct. 289, 157 L.Ed.2d 142 (2003).

| ¾⅛As it did below, the City suggests that it immediately paid the three days of wages upon the filing of the petition by which it became aware of those uncompensated shifts. Ms. Daigre explained that these wages were not included in the paycheck tendered immediately after the plaintiffs April 16, 2015 termination of employment as the final payroll check was written from a time sheet turned in prior to the termination. The City here suggests that the immediacy of its payment upon the three shifts being brought to its attention by the petition demonstrates its good faith. This point is relevant to the inquiry of La.R.S. 23:632(B), which provides that “[i]f the court determines that the employer’s failure or refusal to pay the amount of wages owed was not in good faith, then the employer shall be subject to the penalty provided for in Subsection A of this Section.”

Unquestionably, the City paid the outstanding wages upon the plaintiffs filing of the petition and did not dispute the plaintiffs entitlement thereto. Furthermore, “La.R.S. 23:632 is a penal statute that must be strictly construed and may yield to equitable results.” Wyatt, 831 So.2d at 916. However, the City’s explanation as to why it was unaware of those outstanding wages—for an employee who performed actual work beyond the prior time sheet—reflects merely poor internal communication or deficiency in its payroll process. In this regard, an employer’s mere negligence does not constitute a good faith defense. Steak v. Hat World, Inc., 15-1108 (La.App. 4 Cir. 5/4/16), 191 So.3d 712; Schuytn v. Superior Sys., Inc., 05-2358 (La.App. 1 Cir. 12/28/06), 952 So.2d 98. Accordingly, we conclude that the plaintiff established entitlement to penalties for those wages untimely paid for work performed on April 12th, 14th, and 16th.

However, we limit the award of penalties to the August 6, 2015 payment for those April 2015 wages. The plaintiff argues that, even that payment was ^inadequate due to the City’s failure to include state supplemental pay and additional sums that were subsequently tendered. On this point, however, it is apparent that the City was responding to the plaintiffs developing employment status and information received from the State regarding its need to pay state supplemental pay. That circumstance does not appear to have resulted from the same type of omission that led to the City’s failure to recognize that shifts were worked at all on April 12th, 14th, and 16th.

Additionally, and as no equitable defense is available for attorney fees as envisioned by La.R.S. 23:632(C), we find that the City is liable for attorney fees for the recovery of the full amount of the April 2015 wages. Subsection (C) provides for “[reasonable attorney fees[,]” “in the event a well-founded suit for any unpaid wages whatsoever be filed by the ... employee after three days shall have elapsed from time of making the first demand following discharge or resignation.” At the earliest arguable point of notice for the April wages, the plaintiffs counsel issued a July 7, 2015 demand letter following the April 16, 2015 termination “requesting all wages due to Kendall Dixon since his termination from employment with the Alexandria Fire Department.” However, payment did not begin until August 6, 2015, well in excess of the three day period contained within La.R.S. 23:632(C). Accordingly, we find that attorney fees, for the suit filed for recovery of those three days of wages, are appropriate as well.

Having found that the plaintiff demonstrated entitlement to penalties and attorney fees pursuant to La.R.S. 23:632 is warranted, we remand to the trial court for calculation and imposition thereof. The parties present this court with a full record which would seemingly allow a calculation of both penalties and attorney fees. However, on review we find that both the evidence and argument below so UfiConflated the issues surrounding back pay and wages due for work actually performed that, it is necessary to remand this matter for calculation of both penalties and attorney fees, as limited to the discrete cause of action found meritorious here, i.e.,' wages due for April 12th, 14th, and 16th, 2015. As stated within the context of .the exception of no cause of action, attorney fees are not permissible for pursuit of back pay.

, Finally, arjd with regard to the necessity of the reversal of the trial court’s award of penalties and attorney fees, the plaintiff suggests both in his brief to this court and in post-hearing briefing that those awards related solely to the City’s failure to pay sums due for work actually performed. However, that assertion is contrary to the petitions’ prayers for relief and does not acknowledge that much of the proceeding was dedicated to the payment of back pay which would otherwise not have been relevant to the wages for work actually performed. Certainly such a ruling is not obvious from the record. Particularly, neither the reasons for ruling nor the judgment reflect, that the trial court parsed the expanse of evidence to such an extent. Furthermore, the quantum of attorney fees awarded could arguably include fees not strictly related to recovery of the wages for work actually performed. Accordingly, we find that a reversal and remand, with instructions, is warranted.

Remaining Assignments of Error

Our resolution of the above issues pretermits consideration of the parties’ remaining assignments of error.. However, we specifically decline the plaintiffs request in his answer to the appeal in which he asks that the judgment of the trial court “should be modified to include- the compensation due to him at the time of trial.” Notably, the trial court judgment did not indicate that outstanding 1 ^compensation was due him at the time of trial. The judgment instead reflects only that “wages were due and owing Kendall Dixon, proper demand was made and after demand wages were not paid by the City[.]” Such a statement would appear to relate strictly to the subsequent award of penalties and attorney fees. While the plaintiff suggests that wages remained due at the time of trial—he advances the amount of $783.00—such a representation is-not .so clearly demonstrated in the record. In this regard, the plaintiff .references Ms. Daigre’s testimony wherein- she confirmed that, at the time of trial, he had not been paid “his August supplemental pay.” However, she explained that, in the event the State “determine[d] that they’re not going to pay a piece of it[,]” the City would do so. Given this uncertainty as to what appears to be a portion of back pay, we decline to enter an order of payment of wages as requested by the plaintiff.

However, in his answer, the plaintiff seeks additional attorney fees for work performed on appeal. As he has successfully defended his entitlement to penalties and attorney fees for wages related to work performed in April 2015, we below award him $3,500.00 for work performed as to this aspect of the appeal.

DECREE

The trial court’s denial of the exception of no cause of action is reversed, in part, and judgment is entered sustaining the exception, in part, dismissing the claims of the plaintiff for penalties and attorney fees associated with back pay. In other respects, the trial court’s denial of the exceptions is affirmed. Judgment on the merits is reversed and, upon de novo review, judgment is entered finding the defendant, the City of Alexandria, liable to the- plaintiff, Kendall Dixon, for penalties and attorney fees pursuant to La.R,S. 23:632 due to untimely payment of -wages actually earned for work performed on April 12th, 14th, and 16th, 2015. As to |g7the defense of the penalties and attorney fees on that segment of the plaintiffs claim, we award $3,500.00 in attorney fees to the plaintiff for work performed on appeal. This matter is remanded for calculation of penalties and attorney fees for failure to timely pay wages for those periods per La.R.S. 23:631 and La.R.S. 23:632. The Motion to Supplement Record on Appeal and Motion to Produce filed by the plaintiff, Kendall Dixon, are denied. Costs of this proceeding are assessed equally to the plaintiff and to the City of Alexandria, in the amount of $943.75 each.

MOTION TO SUPPLEMENT THE RECORD DENIED. MOTION TO PRODUCE DENIED. DENIAL OF EXCEPTION OF NO CAUSE OF ACTION REVERSED IN PART; EXCEPTION OF NO CAUSE OF ACTION SUSTAINED IN PART, DISMISSING CLAIMS REGARDING BACK PAY. JUDGMENT ON THE MERITS REVERSED; JUDGMENT AWARDING ENTITLEMENT TO PENALTIES AND ATTORNEY FEES RENDERED. ATTORNEY FEES AWARDED FOR WORK PERFORMED ON APPEAL.

      . Louisiana Revised Statutes 33:2501 provides as follows with regard to the applicable appeal procedure:
      A. Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause, may, within fifteen days after the action, demand, in writing, a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.

      E. (1) Any employee under classified service and any appointing authority may appeal from any decision of the board, or from any action taken by the board under the provisions of the Part that is prejudicial to the employee or appointing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled.
      (2) The appeal shall be taken by serving the board, within thirty days after entry of its decision, a written notice of the appeal, stating the grounds thereof and demanding that a certified transcript of the record, or written findings of facts, and all papers on file in the office of the board affecting or relating to such decision, be filed with the designated court. The board shall, within ten days, after the filing of the notice of appeal, make, certify, and file the complete transcript with the designated court, and that court shall thereupon proceed to hear and determine the appeal in a summary manner.
      (3) This hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part. No appeal to the court shall be taken except upon these grounds and except as provided in Subsection D of this Section.

      . The City includes this information as an exhibit to its Motion for Stay of Appeal, filed with this court during the pendency of the present appeal. By that Motion, the City sought the stay of this matter while the merits of the employment termination proceeded through the review process. A panel of this court denied the motion. See Kendall Dixon v. City of Alexandria, 16-880 (La.App. 3 Cir. 2/1/17), 2017 WL 443215 (an unpublished opinion rendered under the instant docket number).

      . This petition was filed following the trial court’s initial ruling in which it reinstated the City's September 18, 2014 termination of employment,

      . The record reflects that the City continued to provide back pay throughout the changes in the plaintiff's work status. By this suit, the plaintiff complained that the payments were not complete.

      . Louisiana Civil Code Article 2299 provides that: "A person who has received a payment or a thing not owed to him is bound to restore it to the person from whom he received it.”

      . The plaintiffs supplemental petition reports the supreme court’s decision and the resulting termination of employment as May 2, 2016. However, reference to both the decision and the testimony of Fire Chief Wesley indicate that the date of termination was May 3, 2016.

      . Notably, the judgment did not order the payment of any wages.

      . The plaintiff's attorney stated at the oral argument in this matter that the $34,249,60 award of costs is inclusive of the $32,000.00 awarded in attorney fees. See, e.g., La.R,S. 23:632(C) (providing that "Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee ... ”).

      . As the exception of no cause of action is reviewed on the face of the petition, and without reference to evidence, we do not address whether - payments for back pay remain outstanding. The. petitions simply alleged (hat they were unpaid. See La.Code Civ.P. art. 931.

      . We note here that the plaintiff suggests to this court that the matter at trial involved only penalties and attorney fees for wages related to wages for work actually performed. However, both his petitions as well as the presentation of evidence at trial clearly seek penalties and attorney fees for- both back pay and wages for work performed. Too, we consider the exception of no cause of action in relation to the petition, not to the plaintiff's argument as it may have progressed throughout the proceedings.

      .Louisiana Civil Code Article 3546 provides that:
      Punitive damages may not be awarded by a court of this state unless authorized:
      (1) By the law of the state where the injurious conduct occurred and by either the law of the state where the resulting injury occurred or the law of the place where the person whose conduct caused the injury was domiciled; or
      (2) By the law of the state in which the injury occurred and by the law of the state where the person whose conduct caused the injury was domiciled.

      . The plaintiff's petitions do not include a prayer for relief under La.R.S. 49:113, a statute applicable to state or city civil service employees "illegally discharged from their employment, as found by the appellate courts[.]”

      . That specific provision arises within the "Fire and Police Civil Service Law for Municipalities between 13,000 and 250,000[,]”

      . While the plaintiff's initial petition specifically identified the three allegedly, unpaid shifts worked in April 2015, the supplemental petition more generally alleged only as follows with regard to work actually performed before the May 3, 2016 termination: "Petitioner shows that all compensation due [him] from his actual work from August 25, 2015 until his May.2 [sic], 2016 termination was not paid to him by the City of Alexandria within the delays allowed by La.R.S. 23:631, et seq., subjecting the City to additional penalties and attorney’s fees.”


author: CRAIN, J.

text:
    STATE of Louisiana v. Jordan CHEATHAM
    NO. 2016 KA 1648
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 02, 2017

      Ricky Babin, District Attorney, Thomas Daigle, Assistant District Attorney, Napo-leonville, Louisiana, Attorneys for State of Louisiana
    Shannon L. Battiste, Demi L. Vorise, Port Allen, Louisiana, Attorneys for Defendant/Appellant, Jordan Cheatham
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

12Pursuant to a plea agreement, the defendant, Jordan Cheatham, pled guilty to possession with intent to distribute marijuana. See La. R.S. 40:966A(1). Prior to sentencing, he filed a motion to withdraw his guilty plea, which was denied. He was sentenced to ten years imprisonment at hard labor, with three years suspended, and three years of supervised probation with conditions upon his release from incarceration. The defendant appeals, arguing the trial court erred in denying his motion to withdraw the guilty plea. We affirm.

FACTS AND PROCEDURAL HISTORY

The factual basis for the guilty plea is set forth in the Boykin form signed by the defendant. After being stopped for a traffic violation, the defendant became visibly nervous and refused to allow a sheriffs deputy to search the vehicle. A drug detection dog was transported to the scene and made positive alerts on the vehicle. During the ensuing search, deputies found multiple bags of marijuana in the vehicle, including a large bag with twelve smaller bags inside, each containing about one ounce of marijuana; and a bag in a shoe box wedged under the front passenger seat containing approximately 5.9 grams of marijuana along with a smaller bag containing approximately four grams of marijuana.

On the morning of the defendant’s trial, he accepted the state’s offer of a plea deal, agreeing to plead guilty to possession with intent to distribute marijuana in exchange for a ten year sentencing cap and the state’s agreement not to pursue a habitual offender bill of information. The defendant was Boykinized and pled guilty as charged. Sentencing was deferred pending a presentence investigation report.

| ¡¡Prior to sentencing, the defendant filed a motion to withdraw the guilty plea, which stated no basis for the request and, for that reason, was denied. The defendant then filed a second motion to withdraw the guilty plea, wherein his counsel stated:

I, SHANNON L. BATTISTE, the undersigned counsel, erroneously] misinformed my client of the law and procedures regarding withdrawing pleas. Please see Exhibit A attached to this motion for further explanation.

In an attached letter, counsel stated he erroneously informed the defendant he could withdraw his guilty plea at any time before sentencing. According to the letter, the defendant’s motivation for pleading guilty was his belief he could withdraw the plea before sentencing.

At a hearing on the motion, defense counsel repeated the representations in his letter and presented testimony from the defendant. The defendant confirmed counsel told him during plea discussions that he could withdraw the plea before his next court date. When asked if that was the reason he pled guilty, the defendant replied:

Yeah, that, along with it wasn’t—I mean, it’s gone this far. I mean, and I’m still not found innocent. I didn’t think I was going [to] be found innocent with that, so I took the plea.

After further prompting by his counsel, the defendant agreed that he pled guilty because he believed he could withdraw the plea.

In response to detailed questioning by the trial court, the defendant confirmed he pled guilty only after (1) acknowledging no one had promised him anything, other than the plea deal, to plead guilty; (2) being extensively advised of his Boykin rights and waiving those rights; and (3) confirming under oath his understanding of the charged offense, sentencing range, and the plea deal.

In denying the motion, the trial court explained:

I find that you had sufficient education [to understand the plea]. You 14said you had some college, you were 31 years of age. You answered all of these questions under oath. And now, today, you’re going to sit here and tell me that you were lying to me, that you had no intentions of pleading “guilty” to begin with. I find that all of the elements for a valid plea were met, and the Motion to Withdraw your “[g]uilty” [p]lea is denied.

DISCUSSION

A guilty plea is a conviction and should be afforded a great measure of finality. State v. Carmouche, 589 So.2d 53, 55 (La. App. 1 Cir. 1991). Under Boykin, before accepting a guilty plea, a trial court must ascertain the defendant has knowingly and voluntarily waived his rights against self-incrimination, to a jury trial, and to confrontation. See State v. Balsano, 09-0735 (La. 6/19/09), 11 So.3d 475, 477-78; see also La. Code Crim. Pro. art. 556.1 A. If a guilty plea is induced by a plea bargain, the bargain must be enforced or the defendant must be allowed to withdraw from the plea. See State ex rel. Miller v. Whitley, 615 So.2d 1335, 1336 (La. 1993) (per curiam).

Under Louisiana Code of Criminal Procedure article 559A, a trial court may permit the withdrawal of a guilty plea before sentencing; however, a defendant has no absolute right to withdraw a previously entered plea of guilty. The court’s decision is discretionary, subject to reversal only if that discretion is abused or arbitrarily exercised. See State v. Ridgley, 96-0680 (La.App. 1 Cir. 2/20/98), 708 So.2d 793, 794 writ denied, 98-0759 (La. 7/2/98), 724 So.2d 206; Carmouche, 589 So.2d at 55. Generally, the denial of a motion to withdraw a guilty plea will not be reversed on appeal if the record clearly shows the defendant was informed of his rights and the consequences of his plea, and the plea was entered voluntarily. State v. Joseph, 12-0085, 2013 WL 596149 (La. App. 1 Cir. 2/15/13).

The defendant does not contend the trial court failed to properly advise him of his rights prior to his plea, nor does he allege any violation of the plea agreement. Rather, he wants to withdraw his guilty plea because his lawyer ^erroneously told him he could withdraw it at any time prior to sentencing. That misunderstanding, according to the defendant, was his sole reason for pleading guilty.

We share the trial court’s skepticism about the veracity of this claim. Prior to the plea, the defendant was placed under oath and was asked if he had been promised anything in order to get him to plead guilty. He replied “No.” Fully advised of his rights, and with his attorney at his side, he then agreed to the accuracy of the facts giving rise to his prosecution and pled guilty to the charged offense. In return, his sentence was capped at ten years and the state agreed not to file a habitual offender bill of information. Now the defendant asserts when he made those incriminating admissions and pled guilty, his intention all along was to withdraw the plea and go to trial. If true, the defendant’s actions, as well as those of his attorney who sat idly by while this charade was perpetuated, reflect an affront to the dignity of the court and make a mockery of the proceeding. This court will not condone the use of a guilty plea, with its great measure of finality, as a tool to manipulate a trial court’s docket. Furthermore, we And ample evidence the defendant’s guilty plea was not the product of counsel’s alleged erroneous advice.

A challenge to a guilty plea based on a claim of ineffective assistance of counsel is governed by the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See State v. West, 09-2810 (La. 12/10/10), 50 So.3d 148, 149 (per curiam). The defendant must show (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. Strickland, 466 U.S. at 687, 694, 104 S.Ct. 2052. In the context of a guilty plea, the “prejudice” component requires the defendant to prove that, but for counsel’s erroneous advice] he would have elected to go to trial rather than plead guilty. See Hill v. Lockhart, 474 U.S. 62, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); State v. Crawford, 15-0784 (La. 10/2/15), 176 So.3d 394, 395 (per curiam), cert. denied, - U.S. -, 136 S.Ct. 1454, 194 L.Ed.2d 557 (2016).

While the defendant argues he pled guilty merely because he thought he could later withdraw the plea, his testimony reveals other reasons for accepting the state’s offer, including concern about his prospects at a trial. In two exchanges he stated he pled guilty because “I didn’t think I was going [to] be found innocent” and “it looked like I was guilty.” In another exchange he offered that he pled guilty “because my attorney told me to plead guilty.” He made no mention of any misunderstanding about his ability to withdraw the plea, until prompted to do so by leading questions from his attorney.

Without the plea agreement, the defendant, if convicted, was facing a sentence of up to thirty years at hard labor, subject to further enhancement if he was adjudicated a multiple offender, plus a fine of not more than $50,000. See La. R.S. 40:966B(3) and 15:529.1. By accepting the state’s offer, the defendant significantly reduced his sentencing exposure by capping the possible sentence at ten years and removing the possibility of a multiple offender adjudication. Nevertheless, in his argument to this court, the defendant essentially asserts that he lied under oath—by agreeing to incriminating facts and falsely admitting his guilt—simply because he believed he could later retract the lie. The suggestion the defendant engaged in an act so counter to his self-interest, merely because he thought he could essentially “take it back,” defies reason. We further note the 17defendant was not unfamiliar with the plea process, as the presentence investigation report reveals numerous prior guilty pleas for other offenses.

The record contains a reasonable basis for the trial court’s implicit finding the defendant failed to prove that, but for counsel’s erroneous advice, he would have elected to go to trial rather than plead guilty. The record further reflects the defendant’s decision to plead guilty was knowingly and voluntarily made. The trial court did not abuse its discretion in denying the motion to withdraw the guilty plea. The sole assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

Holdridge J., concurs in results

      . “Boykin" is a reference to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Counsel's silence under such circumstances would be difficult to reconcile with his obligation of candor toward the tribunal under Rule 3.3 of the Rules of Professional Conduct.

      . A claim of ineffective assistance of counsel is usually relegated to post-conviction proceedings; however, where the claim is raised as an assignment of error on direct review and the record on appeal is adequate to resolve the matter, the claim should be addressed in the interest of judicial economy. State v. Calhoun, 96-0786 (La. 5/20/97), 694 So.2d 909, 914, Finding the record on appeal adequate to resolve the issue, we address the defendant’s contention that his guilty plea was induced by erroneous advice from counsel.