author: Judge Roland L. Belsome

text:
    Dwayne G. ALEXANDER v. The TIMES-PICAYUNE L.L.C; David Hammer
    NO. 2016-CA-1134
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 31, 2017
    Rehearing Denied June 27, 2017
    See also 211 So.3d 544.

      Robert G. Harvey, Sr., LAW OFFICE OF ROBERT G. HARVEY, SR., APLC, 600 North Carrollton Avenue, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
    Loretta G. Mince, Molly L. Wells, FISHMAN HAYGOOD, L.L.P., 201 St. Charles Avenue, 46th Floor, New Orleans, LA 70170-4600, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Terrel J. Broussard, Pro Tempore)
   Judge Roland L. Belsome

h Dwayne Alexander appeals the trial court’s granting of Defendants’ Special Motion to Strike and resulting dismissal of the petition with prejudice. For the reasons that follow, the judgment is affirmed.

Statement of the Case

Mr. Alexander is a former Private Investigator (“PI”). The Times-Picayune published two news articles written by reporter David Hammer. The first news article at issue was published on July 2, 2009, and reported that the Louisiana State Board of Private Investigators (the “Board”) issued a cease and desist order to Mr. Alexander for his failure to maintain a PI license. The October 24, 2011 news article reported that Mr. Alexander had been arrested in St. Charles Parish for providing PI services -without possessing a valid license.

Mr. Alexander filed suit against Defendants on December 16, 2015, alleging that he was defamed by these news articles. Defendants responded by filing a Special Motion to Strike the petition under La. C.C.P. art. 971. Defendants’ motion argued that Mr. Alexander could not establish a probability of success because his |2claims had prescribed. The trial court granted the motion on the grounds of prescription and dismissed the claims.

Mr. Alexander filed a motion for new trial. Defendants filed a motion to fix attorneys’ fees and costs. Mr. Alexander’s motion for new trial was denied and Defendants’ motion was granted. It is this judgment from which Plaintiff appeals.

Issues on Appeal

Mr. Alexander contends that the trial court erred in granting Defendants’ Special Motion to Strike. He claims that La. C.C.P. art. 971 did not apply to his claims because he is not a public official or figure and the claims do not relate to a public issue. He also argues that even if Article 971 did apply, the court improperly granted the motion on the basis of prescription. He further asserts that the trial court was required to give him the opportunity to amend his petition before dismissing his claims. Finally, he claims that attorney’s fees and costs were improperly awarded to Defendants.

Standard of Review

“Appellate courts review a trial court’s ruling on a special motion to strike using the de novo standard of review because it involves an issue of law; the issue on review is thus whether the trial court was legally correct.”

Law and Discussion

Applicability of the Special Motion to Strike to Mr. Alexander’s Claims

hOn appeal, Mr. Alexander argues that the La. C.C.P. art. 971 Special Motion to Strike does not apply to his claims because he is not a public official or public figure and that his claims do not relate to a public issue.

La. C.C.P. art. 971(A)(1) states that “[a]cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.” The purpose of the Article 971 Special Motion to Strike is “to screen out meritless claims pursued to chill one’s constitutional rights under the First Amendment of the United States Constitution to freedom of speech and press.” The party that files the motion “has the initial burden of proving that ‘the cause of action arises from an act in the exercise of his right of free speech regarding a public issue.’”

La. C.C.P. art. 971(F)(1)(c) provides that an act in furtherance of a person’s right to free speech under the First Amendment includes “[a]ny written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.” The content, form, and context of the statement(s) at issue must be. examined to establish if speech is a matter of public concern.

| ¿Defendants asserted in the motion that Mr. Alexander’s claims arose from acts in furtherance of the right of free speech and in relation to a public issue. The first article that Mr. Alexander claims he was defamed by was published on July 2, 2009, and reported that the Board had issued a cease and desist order to Mr. Alexander .because he failed to maintain a PI license. Specifically the 2009 article focused on Alexander’s earnings of more than $522,000 from the City of New Orleans during 2007 and 2008 for' services he conducted after his license lapsed in 2006. The second article at" issue was published on October 21, 2011, and reported on Mr. Alexander’s PI work for the St. Charles Parish School Board and his subsequent arrest for providing contract or PI services without possessing a valid license.

We find that both of these news articles concerned matters of public importance such that La, C.C.P. art. 971 does apply. The expenditures of public money by both the City of New Orleans and the St. Charles Parish School Board to an individual contracted to perform- services are certainly matters of public importance. Considering that the news articles concerned issues of concern to the community, it is irrelevant that Mr. Alexander was not a public figure or public official. Therefore, Defendants satisfied their initial burden of proof under La. C.C.P. art. 971.

IsPrescription cmd the Special Motion to Strike

Mr.- Alexander 'next- contends that an Article-971 Special Motion to Strike is only properly directed to the substance of a claim, and thus the trial' court committed legal error by granting the motion on the basis of prescription. We disagree.

La. C.C.P.art. 971 provides that once the movant has satisfied his initial burden of proving the claim qualifies under the statute, the burden shifts to the opposing party to demonstrate a probability of success oh the claim. To determine whether the opposing party has established a probability of" success on his claim, the court will examine the pleadings as well as supporting and opposing affidavits, Article 971 does not limit the grounds upon which a trial court may find that a plaintiff failed to establish a probability of success on the merits. As an affirmative defense, prescription will prevent a claimant from .being successful on the merits of his claim. As such, the affirmative defense of prescription may be asserted as a basis for granting the motion.

Defamation claims sound in tort, and as such are subject to a prescriptive period of one year which commences to run from the day the injury is sustained. Generally in the context of defamation, prescription begins to run from the date of | fithe publication of the allegedly defamatory remarks. The burden of proving prescription generally lies with the party asserting prescription; however, when a claim has prescribed on its face the burden shifts to the plaintiff to prove that his claim has not prescribed. In some exceptional circumstances, the doctrine of contra non valentum may serve to interrupt prescription “[wjhere the cause of action is neither known nor reasonably knowable by the plaintiff.” However, where the plaintiff could have learned of his cause of action through reasonable diligence, the “discovery exception” of contra non valentum will not apply to interrupt prescription.

In the Special Motion to Strike, Defendants did not attack Mr. Alexander’s ability to prove the elements of his defamation claim. Rather, they argued that Mr. Alexander would be incapable of prevailing on the merits of the case because his claims had prescribed.

It is clear that both of Mr. Alexander’s defamation claims were prescribed on the face of the petition. Mr. Alexander’s two defamation claims arose on the dates that the news articles at issue were published—July 2, 2009 and October 24, 2011, respectively. He filed this lawsuit -against Defendants on December 16, 2016. 17Therefore, well over a year had passed between each cause of action arising and the filing of the petition alleging defamation.

While it is clear that both of Mr. Alexander’s defamation claims were prescribed on the face of the petition, Mr. Alexander avers that the doctrine of contra, non valentum applied to his claims and interrupted the running of prescription because he did not discover certain evidence in support of his defamation claim until 2014 or 2015. He asserts that he could not have possibly known of the falsity of the claimed cease and desist order reported on in 2009 by Defendants until a witness at the 2014 trial testified that the cease and desist order was false.

A review of the record indicates that Alexander’s claim that he was unaware of the falsity of the cease and desist order until the 2014 trial is inaccurate. The record includes Alexander’s pleadings in his lawsuit against the Louisiana State Board of Private Investigator Examiners filed on January 14, 2013, in which he alleged that the Board and its executive director “fail[ed] to disseminate the correct information regarding the cease and desist order and to update petitioner’s file at the Agency, resulting in the loss of petitioner’s DBE contract and causing the local media to publicly ridicule petitioner.” These assertions defeat Alexander’s claim 18that he was not aware of the falsity of the claims made in the 2009 article until 2014. By his own admission, Mr. Alexander had knowledge of his defamation claim for the 2009 news article well over a year before he filed suit in December 2015. Therefore, the trial court was correct in finding that his claim was prescribed.

Additionally, the record indicates that Alexander had knowledge of the alleged falsity of the information in the 2011 news article which reported on Mr. Alexander’s arrest for engaging in PI services without a license in St. Charles Parish over a year before he filed the present suit. This Court’s previous ruling in Alexander v. La. State Bd. of Private Investigator Examiners found that Alexander had knowledge of the events giving rise to the alleged falsity of the grounds for his 2011 arrest on December 19, 2012. In the prior case, Mr. Alexander claimed that he learned at the time of his arrest on October 24, 2011 that he was being charged with conducting private investigation services without a license. Mr. Alexander | 9averred that the defamatory and tortious conduct against him was continuing and undiscoverable until he was provided with the State’s criminal file on December 19, 2012. This Court, in finding that contra non valentum served to suspend prescription based on the discovery doctrine, stated:

We further find that the contra non valentem doctrine applies to suspend prescription as to Mr. Alexander’s defamation claim arising out of the Defendants’ 2011 actions. As to that defamation claim, we find prescription was suspended until December 19, 2012. Since Mr. Alexander filed suit within the one-year of that date (on January 14, 2013), we find his defamation claim based on the Defendants’ 2011 actions is not prescribed.

Considering this Court’s prior finding that Mr. Alexander gained knowledge on December 19, 2012 of the alleged falsity of any information contained in the 2011 news article at issue, Mr. Alexander’s claims against Defendants relating to that article had also prescribed by the time he filed this lawsuit on December 16, 2015. Therefore, the trial court also correctly found that his defamation claim for the 2011 news article had prescribed.

Opportunity to Amend Petition

Mr. Alexander argues that he should have been given the opportunity to amend his petition to cure any defects. However, as prescription is a defect that cannot be cured, the court was correct in declining to give him an opportunity to amend his petition.

Attorney’s Fees and Costs

|inMr. Alexander’s final assignment of error is that the trial court erred in granting Defendants’ Motion to Fix Attorney’s Fees and Costs, and awarding the Times-Picayune $5,306 in attorney’s fees and $92.50 in costs.

La. C.C.P. art. 971(B) states that “[i]n any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.” (emphasis added). As Defendants prevailed on the motion, and the language of the statute provides that attorney’s fees and costs are mandatory for a prevailing party, we find that the trial court properly awarded attorney’s fees and costs to Defendants.

CONCLUSION

For the reasons set forth above,' we affirm the judgment of the trial court.

AFFIRMED

      . Herman v. Tracage Dev., L.L.C., 2016-0082, p. 4 (La.App. 4 Cir. 9/21/16), 201 So.3d 935, 939.

      . Shelton v. Pavon, 2016-0758, p. 3 (La.App. 4 Cir. 2/15/17), 212 So.3d 603, 606, quoting Lee v. Pennington, 02-0381, p. 4 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037, 1041.

        . Id., at 607, citing Melius v. Keiffer, 2007-0189, p. 3 (La.App. 4 Cir. 3/12/08), 980 So.2d 167, 171, writ not considered, 2008-1039 (La. 8/29/08), 989 So.2d 90.

      . Kirksey v. New Orleans Jazz & Heritage Found., Inc., 2012-1351, p. 6 (La.App. 4 Cir. 2/27/13), 116 So.3d 664, 669, writ denied, 2013-0686 (La. 5/3/13), 113 So.3d 216, citing Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

      . This finding is consistent with decisions made by Louisiana courts regarding matters of public importance. See Kirksey, p. 5, 116 So.3d at 668 (finding that allegations of misappropriation of funds' owed to the Foundation was a matter of public concern because the Jazz Festival is a premier entertainment event that contributes millions of dollars to the city’s economy each year); See also Melius, p. 5 980 So.2d at 172 (finding that statements on a neighborhood residents’ association website regarding opposition to plans to construct a new bar in the city involved matters of public importance).

      . Shelton, pp. 3-4, 212 So.3d at 607.

      . Id., p. 4, 212 So.3d at 607, quoting La. C.C.P. art. 971(A)(2).

      . See Scott v. Metro. Life Ins. Co., 97-1445 (La.App. 4 Cir. 2/11/98), 709 So.2d 223, 225, writ denied, 98-1010 (La. 5/29/98), 720 So.2d 668 ("[i]f the petition shows on its face it has prescribed, then the burden of proof shifts to the plaintiff to counter the affirmative defense of prescription.”)

      . La. C.C. art. 3492; Farber v. Bobear, 2010-0985, p. 11 (La.App. 4 Cir. 1/19/11), 56 So.3d 1061, 1069.

      . See, e.g. Clark v. Wilcox, 2004-2254, p, 10 (La.App. 1 Cir. 12/22/05), 928 So.2d 104, 112-13; Collinson v. Tarver Land Dev., LLC, 2011-1787, 2012 WL 688551, at *1 (W.D. La. Feb. 1, 2012), report and recommendation adopted, No. 11-CV-1787, 2012 WL 692193 (W.D. La. Mar. 2, 2012).

      . Farber, p. 11, 56 So.3d at 1069.

      . Renfroe v. State ex rel. Dep't of Transp. & Dev., 2001-1646, p. 9 (La. 2/26/02), 809 So.2d 947, 953.

      . Id., p. 10, 809 So.2d at 953.

      . See Melius, p. 5, 980 So.2d at 172. The elements of a defamation claim are: “(1) a false or defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.”

      . Mr. Alexander further argues that the Times-Plcayune had a duty to print a retraction once the publication became aware that the content of the news articles was false. It is of note that Louisiana does not have a requirement that news publications print such retractions. The printing of a retraction is simply a factor to be considered by the trial court as a mitigating factor for setting the amount of damages. See Francis v. Lake Charles Am. Press, 262 La. 875, 265 So.2d 206, 219 (1972).

      . See Alexander v. La. State Bd. of Private Investigator Examiners, 2015-0537 (La.App. 4 Cir. 2/17/17), 211 So.3d 544, reh’g denied (Mar. 10, 2017). Mr. Alexander filed suit against the Louisiana State Board of Private Investigators asserting, among others, claims of defamation.

      . 2015-0537 (La.App. 4 Cir. 2/17/17), 211 So.3d 544, reh’g denied (Mar. 10, 2017).

      . The following day the Times-Picayune published the news article at issue in the present case.
      The article included the following passages: The St. Charles Parish Sheriff’s Office has arrested [Mr. Alexander] accused of performing unlicensed private investigator work for the St. Charles Parish School Board,
      * * *
      He had been wanted since June on a warrant for that charge, issued following an investigation by the St. Charles Sheriff’s Office.

      The Metropolitan Crime Commission contacted St. Charles school Superintendent Rodney Lafon in May, according to the affidavit, at which time Lafon asked the Sheriff's Office to investigate.
      [Mr.] Alexander had been served with a cease-and-desist order from the Louisiana State Board of Private Investigator Examiners in 2009 preventing him from conducting any type of private investigations, and that order was still in effect when he did the work for the School Board, according to the affidavit.

      . See Wegmann v. Tramontin, 2015-0561, p. 8 (La.App. 4 Cir. 1/13/16), 186 So.3d 236, 241, writ denied, 2016-0276 (La. 4/4/16), 190 So.3d 1209 ("[I]f the amendment is futile, there is no right to amend.”).


source: Caselaw Access Project

author: Judge Joy Cossich Lobrano

license: Public Domain

text:
    800 IBERVILLE STREET LIMITED PARTNERSHIP v. V RESTAURANT GROUP, L.L.C., and Vanna Ly 800 Iberville Street Limited Partnership v. V Restaurant Group, L.L.C., et al.
    NO. 2016-CA-0799, NO. 2016-C-0483
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 7, 2017

      James M. Garner, Ryan O. Luminais, SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C., 909, Poy-dras Street, 28th Floor, New Orleans,. LA 70112-1033, COUNSEL FOR PLAINTIFF/APPELLANT
    Jimmy A. Castex, Jr., Darrell K. Cherry, Brian S. Sehaps, DEUTSCH KERRI-GAN, LLP, 755 Magazine Street New Orleans, LA 70130-3572, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed-of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano)
   Judge Joy Cossich Lobrano

liln this eviction and breach of lease case, plaintiff/appellant, 800 Iberville Street Limited Partnership (“800 Iber-ville”), appeals the district court’s April 29, 2016 judgment granting the motion to enforce settlement filed by defendants/appel-lees, V Restaurant Group, LLC and Vanna Ly (collectively the “restaurant” or “V-Sushi”).

This, matter arises out of a -sublease between 800, Iberville, a sub-lessor, .and the restaurant, a sub-lessee. The building, which the subject of the sublease and where the restaurant was located, is the former site of the D.H. Holmes Department Store and is owned by Canal Street Development Corporation (“CSDC”). There is a master, lease between CSDC and 800 Iberville. Various disputes developed between 800 Iberville and the restaurant, primarily involving unpaid rent, noise complaints, and certain improvements on the property. On February 25, 2014, 800 Iberville initiated eviction proceedings against the restaurant.

|2On January 29, 2016, 800 Iberville and the restaurant entered into a “settlement agreement in principle” in open court on the record. The settlement was not reduced to writing.

As recited on the record, in relevant part, by counsel for 800 Iberville:

The terms of that agreement are as follows; that 800 Iberville will pay to V Restaurant Group $775,000. Number two, no amplified music within the 45 day period that V Restaurant Group has to get out of the leased space. That’s term number 3, that V Restaurant Group has 45 days to vacate the leased space[ ]. That 45 day period starts upon the approval by CSDC and the Board of HRI of this settlement agreement.
So in the meantime we are sort of status quo. Once that approval is given, that 45 day clock to vacate starts. And within that 45 day period there will be no amplified music...
Counsel for the restaurant stated in open court:
We have discussed this with my client, he is here to verify that they accept these terms. The agreement, 45 days, let me just be clear, doesn’t start until after we’re notified of their approval, the approval. .. The $775,000 will be paid, we hadn’t discussed terms, but I think it’s only fair that it’s paid immediately upon the date we move. So we will have 45 days to move. They’ll also have 45 days to deliver the check.

The attorneys for both parties answered affirmatively on the record that they had their clients’ authority to enter into the agreement. However, neither the parties nor their counsel defined “HRI” or “Board of HRI” when reciting the terms of the settlement on the record.

On March 11, 2016, 800 Iberville advised the restaurant that the settlement was not approved. On March 15, 2016, the restaurant filed a motion to enforce settlement, arguing that 800 Iberville unreasonably delayed the approval of settlement then arbitrarily rejected the settlement.

|;jOn April 13, 2016, 800 Iberville filed an opposition, arguing that the settlement was subject to a suspensive condition—the approval of two third parties, CSDC and the Board of Directors of HRI Properties, LLC—and that the suspensive condition was not met, rendering the settlement unenforceable.

800 Iberville’s exhibits to its opposition included affidavits of David Abbenante and Edward Boettner. Attached to each affidavit was the “DH Holmes—V Sushi Resolution Agreement [Privileged and Protected]” (the “Request”). Abbenante attested in his affidavit that he is the President of HRI Management, LLC, a subsidiary of HRI Properties, LLC and that he prepared the Request, which was presented to the Board of Directors of HRI Properties, LLC on January 29, 2016. In the Request, HRI Properties, LLC sought “authorization and approval from the HRI Board and CSDC Board to enter in a resolution agreement (RA) with V-Sushi” and further requested authorization to loan to 800 Iberville “up to $875,000 to allow the onetime consideration payment to V-Sushi along with legal and transactional costs associated with the RA and releasing of the space; contingent upon CSDC Board approval of the RA and Loan Repayment Terms.” The Request recommended approval of the settlement and the proposed loan.

Boettner attested in his affidavit that he is the Chief Administrative Officer of HRI Properties, LLC and a member of the Board of Directors of HRI Properties, LLC. He attested that, on January 29, 2016, the Request was presented to the Board of Directors of HRI Properties, LLC, and that, on March 10, 2016, Boett-ner attended a meeting with the Board of Directors of HRI Properties, LLC, at which |4the settlement in principle was not approved, notwithstanding HRI Properties, LLC’s recommendation in favor of settlement.

On April 14, 2016, the restaurant filed a supplemental memorandum in support of its motion to enforce settlement, in which it argued that board approval was merely a formality to provide a timing mechanism for the restaurant to vacate the property, that 800 Iberville failed to disclose its attempt to obtain a loan as a condition of settlement, and that 800 Iberville represented to the restaurant that counsel for 800 Iberville had “full authority” to settle the “entire case.”

On April 15, 2016, 800 Iberville filed a restated opposition to enforcement of settlement and Boettner’s revised affidavit, which corrected the name of the entity from which 800 Iberville sought settlement approval, the Board of Managers of HRIP Holdings, LLC.

The district court rendered judgment on April 29, 2016, granting the restaurant’s motion to enforce settlement. 800 Iberville filed both an application for supervisory writs and an appeal with this Court, contending that the district court erred, as a matter of law, as follows:

1. by failing to find the settlement subject to a suspensive condition, approval by the HRI Board;
2. by enforcing settlement when the suspensive condition of approval by third parties was not fulfilled;
3. by characterizing 800 Iberville’s argument “to recognize and uphold the suspensive condition of approval as an ‘action to nullify a settlement agreement’ and, thus, imposing on 800 Iberville an unduly stringent burden of proof.”

| ¡jThis Court, on its own motion, consolidated the writ application with the appeal on August 24, 2016.

We first consider whether this Court has jurisdiction to review this matter. 800 Iberville seeks both supervisory and appellate review of the same district court judgment dated April 29, 2016.

Although the district court judgment granted the motion to enforce settlement, the judgment is not final, as it does not dispose of the entire matter and does not include the dismissal of any parties. See Gerhold v. Giles, 2011-0992, p. 8 (La.App. 4 Cir. 1/25/12), 83 So.3d 1170, 1175. See also Favrot v. Favrot, 2010-0986, pp. 3-4 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102-03. The judgment also does not conclude the issues between the parties without further action from the district court, i. e., entry of a money judgment against either party. The district court’s subsequent order dated June 10, 2016, explicitly states that the district court intended for the April 29, 2016 judgment to be final and appealable and that the district court is divested of jurisdiction pending appeal. However, like the April 29, 2016 judgment, the June 10, 2016 order does conclude or dispose of the entire case.

As the April 29, 2016 judgment is not final and appealable, in order for us to reach the merits of this appeal we must exercise our supervisory, rather than appellate, jurisdiction. See La. Const. art. V, § 10(A). See also Gerhold, 2011-0992 at p. 9, 83 So.3d at 1175. In many instances, this Court has exercised its discretion and “converted ‘appeals’ of non-appealable judgments to applications for 1 ^supervisory writs in those cases in which the motions for appeal were filed within the thirty-day period allowed for the filing of applications for supervisory writs.” Favrot, 2010-0986 at p. 6, 68 So.3d at 1104. See also Uniform Rules, Courts of Appeal, Rule 4-3. Here, the motion for appeal was filed within the thirty-day time period allowed for the filing of an application for supervisory writs. Nevertheless, because an application for supervisory writs was also timely filed, we find it unnecessary to convert the appeal of the April 29, 2016 judgment to an application for supervisory writs. Rather, we dismiss the appeal and consider 800 Iber-ville’s arguments under our supervisory jurisdiction. See Star Transp., Inc. v. Pilot Gorp., 2014-1228, p. 3 (La.App. 4 Cir. 6/24/15), 171 So.3d 1195, 1197, writ denied, 2015-1446 (La. 11/16/15), 184 So.3d 26; Narcise v. Jo Ellen Smith Hosp., 98-2417, pp. 7-8 (La.App. 4 Cir. 3/10/99), 729 So.2d 748, 752.

We now consider the merits of 800 Iberville’s writ application. 800 Iberville argues that the settlement was subject to a suspensive condition, approval of the settlement by third parties, and that the district court improperly enforced settlement even though this condition of settlement was not fulfilled. 800 Iberville also contends that the district court applied an incorrect and more stringent burden of proof to 800 Iberville, which it argues only applies to actions to nullify settlement.

|/The restaurant argues that the district court properly found the settlement enforceable because 800 Iberville waived any suspensive condition when it thwarted fulfillment of that condition. The restaurant also contends that it is entitled to have any doubt, arising out of the settlement terms, construed to benefit the restaurant.' According to the restaurant, “HRI”—as contemplated by the settlement terms—was Historic Restoration, Inc., which was the party that signed the sublease on behalf of 800 Iberville as its general partner. The restaurant argues that no settlement approval was sought from Historic Restoration, Inc., and that 800 Iberville instead requested a loan from the Board of Managers of HRÍP Holdings, LLC to fund the settlement. The restaurant contends that this loan request was not a part of the settlement terms and “is not consistent with ‘seeking approval from HRI or CSDC...’” The restaurant also' argues that an agreement was rejached as to all economic terms, such that any third party settlement approval was a “mere formality” and only a timing mechanism for the restaurant to vacate the property and 800 Iberville to make payment.

This Court reviews a judgment granting a motion to enforce settlement under the manifest error or clearly wrong standard of review. Howard v. La. Citizens Prop. Ins. Corp., 2010-1302, pp. 2-3 (La.App. 4 Cir. 4/27/11), 65 So.3d 697, 699 (“The district court made a factual determination that a contract existed between the parties when the court ruled on the motion to enforce séttlément agreement. Thus, we apply the manifest error or clearly wrong standard.”). As we explained in Gerhold, 2011-0992 at p. 9, 83 So.3d at 1175-76 (internal citations omitted):

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that -its own evaluations and inferences are as reasonable. Reversal of findings of fact on appeal requires that; (1) the appellate court find from the record that no reasonable factual basis exists for the trial court’s finding, and (2) the appellate court determine that the record establishes the finding is clearly wrong or manifestly erroneous.

Louisiana Civil Code Article 3071 defines a compromise as “a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” A compromise “shall be in' writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings.” La. C.C. art. 3072. A compromise agreement recited in open court and capable of transcription from the record will be treated as though it were a written contract, and each party acquires the right of judicially enforcing the performance of the agreement even.though its substance may later be written in a more convenient form. Trahan v. Coca-Cola Bottling Co. United, 2004-0100, p. 10 (La. 3/2/05), 894 So.2d 1096, 1104. “Recital of the agreement in open court must make full disclosure of the terms, ... so that the parties concerned are fully apprised of their rights and obligations.” Tolbert v. Hyatt Mgmt., 496 So.2d 1054, 1055 (La. App. 4th Cir. 1986) (citing Troxclair v. Parish of St. Charles, 450 So.2d 759, 761 (La. App. 5th Cir. 1984)).

“A compromise is valid if there is a meeting of the minds of the parties as to exactly what they intended when the compromise was reached.” Sileo v. Berger, 2011-0295, p. 8 (La.App. 4 Cir. 9/28/11), 74 So.3d 753, 758-59 (citing Elder v. Elder & Elder Enter., Ltd., 2006-0703, p. 3 (La. App. 4 Cir. 1/11/07), 948 So.2d 348, 350); Feingerts v. State Farm Mut. Auto. Ins. Co., 2012-1598, p. 11 (La.App. 4 Cir. 6/26/13), 117 So.3d 1294, 1301. “Compromises are favored in the law and the burden of proving the invalidity of such an agreement is on the party attacking.it.” Sileo, 2011-0295 at p. 8, 74 So.3d at 759 (citing Elder, 2006-0703 at p. 3, 948 So.2d at 350).

Contracts are formed by the consent of the parties established through offer and acceptance. La. C.C. art. 1927. “It follows that an enforceable compromise agreement formed by offer and acceptance[ ] may not be revoked by either party. The ‘flip side’ of this principle is that an agreement that has not been formed by offer and acceptance is not enforceable and therefore can be revoked by either party.” Richardson v. O’Byrne, 2000-2202, p. 8 (La.App. 4 Cir. 10/16/02), 830 So.2d 1013, 1020.

This Court has rejected the argument that, where a compromise contains a provision requiring approval of the compromise by a third party, approval was a formality only. Id., 2000-2202 at p. 7, 830 So.2d at 1019. Rather, this Court found |inth.at acceptance of the offer could not occur until the third party approved -the offer; thus, the compromise was not final or enforceable when the offer was revoked prior to third party approval. Id., 2000-2202 at p. 9, 830 So.2d at 1020.

In reviewing the evidence of record before us, wé do not find a factual basis from which to conclude that a valid compromise was reached. The transcript of the January 29, 2016' hearing reveals that the parties plainly set forth that their agreement was subject to the approval of third parties. Counsel for 800 Iberville stated, in reciting the terms: “That 45 day period.-starts upon the approval by CSDC and the Board of HRI of .this settlement agreement.” Counsel for the restaurant reiterated: “The agreement, 45 days, let me just be clear, doesn’t start until after we’re notified of their approval...” Counsel for the restaurant, when discussing on the record continuance of trial, stated: “But since this agreement is subject to those approvals, we don’t want to bump this can down the road for a year from now.” The record contains no approval of the settlement by any third party. Rather, the settlement was presented to and considered by Board of Managers of HRIP Holdings, LLC, which ultimately rejected settlement.

Notably, when reciting the terms of the settlement on the record, the parties and their attorneys failed to define “HRI.” The parties continue to disagree about the identity of “HRI,” whether each respective party should have anticipated its opponent’s interpretation of “HRI,” and whether HRI’s approval could properly encompass a loan request. When reciting the settlement terms, the parties and the district court also acknowledged on the record that certain disputes remained | nunresolved, namely, disposition of fixtures, furniture, and equipment and date of delivery for settlement funds.

Taking together the facts before us, we find no meeting of the minds. We further find that the in-court recitation of the settlement in principle was insufficient to make full disclosure of its terms. Thus, the settlement fails to meet the requirements of a valid and enforceable compromise. Under these circumstances, the district court was manifestly erroneous to find that a binding compromise was confected. Having reached this conclusion, we find it unnecessary to address 800 Iberville’s remaining arguments.

Accordingly, for the reasons stated above, we dismiss the appeal, grant the application for supervisory writs, reverse the April 29, 2016 judgment of the district court, and remand this matter for further proceedings consistent with this opinion.

APPEAL DISMISSED;

WRIT GRANTED; REVERSED AND REMANDED

      , “A conditional obligation is one dependent on an uncertain event. If the obligation may not, be enforced until the uncertain event occurs, the condition is suspensive. La. C.C. art. 1767.

      , "A condition is regarded as fulfilled when it is not fulfilled because of the fault of a party with an interest contrary to the fulfillment.” La. C.C. art 1772.

      , “In case of doubt that cannot be otherwise resolved, a contract must be interpreted against the obligee and in favor of the obligor of a particular obligation. Yet, if the doubt arises from lack of a necessary explanation that one party should have given, or from negligence or fault of one party, the contract must be interpreted in a manner favorable to the other party whether obligee or obligor.” La, C.C. art. 2057.

      . 800 Iberville contends that this matter should be reviewed de novo. For the reasons discussed here, we disagree.


author: Judge Madeleine M. Landrieu LOBRANO, J.,

text:
    Cynthia SMALL v. ROUSE’S ENTERPRISES, LLC d/b/a Rouses Market
    NO. 2016-CA-0953
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 7, 2017

      Matthew W. Langenberg, John Leslie Young, 915 St. Louis Street, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLEE
    Michael G. Gee, Michelle D. Brooks, Marla E. Mitchell, PORTEOUS, HAINK-EL & JOHNSON, L.L.P., 211 West Fifth Street, Thibodaux, LA 70301-3199, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano)
   Judge Madeleine M. Landrieu

hThe defendant, Rouse’s Enterprises, LLC d/b/a/ Rouse’s Market (“Rouse’s”) appeals the trial court’s judgment finding it liable for the injuries suffered by the plaintiff, Cynthia Small, and awarding her damages. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

Ms. Small filed a petition against Rouse’s alleging that she had purchased a plate of prepared food from Rouse’s buffet on June 14, 2014 and discovered a human fingernail in the food while she was eating it. Ms. Small claimed that as a result of Rouse’s negligence, she suffered persistent nausea and vomiting requiring medical treatment, as well as mental anguish. Following a bench trial held on May 10, 2016, the trial court rendered a written judgment on May 19, 2016 finding Rouse’s to be at fault and awarding the plaintiff $2500.00 in general damages, plus interest and costs. Rouse’s now appeals that judgment.

J2ISSUES

On appeal, Rouse’s contends that the trial court committed legal error by applying a strict liability analysis rather than a duty/risk analysis to find Rouse’s at fault. Alternatively, Rouse’s argues that the trial court committed manifest error by finding that it breached any duty it owed to Ms. Small.

DISCUSSION

The record does not reflect which standard the trial court employed to determine Rouse’s liability. It is unquestionable, however, that the duty/risk analysis is the appropriate legal standard by which to determine liability in this case. In Porteous v. St. Ann’s Cafe & Deli, 97-0837 (La. 5/29/98), 713 So.2d 454, an action against a restaurant for a deleterious substance (a pearl) present in a customer’s oyster sandwich, the Louisiana Supreme Court rejected the application of strict liability and held that the. proper standard to be applied was a duty/risk -analysis pursuant to the Louisiana Civil Code. See La. C.C. arts. 2315-2317. The Supreme Court stated:

In Louisiana, there is no statute which expressly addresses a commercial restaurant’s duty to serve food free of injurious substances. There is, nonetheless, no doubt that there is and should be such-a duty. :We determine that the duty is the following: A food provider, in selecting, preparing and cooking food, including the removal of injurious substances, has a duty to act as would a reasonably prudent man skilled in the culinary art in the selection and preparation of food.

Id., 97-0837, p. 5, 713 So.2d at 457(Footnotes omitted; emphasis supplied).

Accordingly, the relevant question here is whether Rouse’s breached this duty. Because whether a duty has been breached is a factual question, the trial lacourt’s finding in this regard is reviewed under the manifest error standard. See Hanks v. Entergy Corp., 2006-477 (La. 12/18/06), 944 So.2d 564, 580.

Three witnesses testified at trial. Ms. Small, testified that she went into the Rouse’s supermarket about five to ten minutes after 11:00 a.m. and made a plate of food from the buffet for her lunch. She testified that the food on the buffet appeared fresh and looked undisturbed. Her plate contained black-eyed peas, rice, peach cobbler and some sort of -meat, which she believed was beef or pork roast. She stood in line and paid for the food. Her receipt shows she paid $9.37 and checked out at 11:29 a.m. Because there were no unoccupied tables in the dining area outside the store, Ms. Small decided to eat in her car. She mixed her black-eyed peas and rice together and while eating them, .felt something hard in her mouth. She did not swallow the object. She pulled the object out of her mouth with her finger and discovered it was a human fingernail. She then called the telephone number on her receipt and spoke to a Rouse’s manager, who told her to bring the food back into the store and she would be given a full refund. She went into the store and was offered a refund but declined it, telling the manager she wanted to make a report. She filled out a claim report while the manager took photographs of the container of food she had returned, after which the manager told her an insurance adjustor would be contacting her.

Ms. Small testified that she was gagging and could not stop vomiting so she went to the hospital emergency room. The doctor who examined her told her the fingernail could not hurt her. The hospital records show Ms. Small was given anttjnausea4 medication and was discharged. Ms. Small testified that the medication helped for a few days but her stomach was affected for a few weeks. She would gag every time she thought of the incident, and had no appetite. She no longer eats at .-buffets.

Ms. Small did not know how the fingernail had gotten into the food. She believed the lunch buffet had just been put out when she arrived at the store because the food did not look like it had been touched, but she was not there when the food was put out. She could not say for sure that she was the first customer to take food from the lunch buffet that day.

Ms. Small testified that after the incident she got a letter from Rouse’s indicating that the store was not going to pay her claim because “nothing happened.” Then in September, one day after filing suit, she got a second letter, which informed her that she was banned from..Rouse’s. She testified that she suffered embarrassment and inconvenience on account of being banned from Rouse’s, where she had shopped her whole life.

Charles Bennett, Sr., testified that he is the assistant store manager of the Rouse’s location where Ms. Small purchased the food in question. He was with Ms. Small when she filled out the claim form at the store. He took a photograph of the plate of food she had purchased, and he.indicated on his portion of the incident report that the object in the food appeared to be. a piece of chicken bone rather than a fingernail. He testified that Rouse’s participates in the Serve Safe national training program regarding food safety and that all managers must pass the | sprogram’s exam. He had never before had a complaint of a fingernail being present in food sold by Rouse’s. Mr. Bennett stated that Rouse’s standard operating procedure requires all employees to wear gloves while handling food. Mr. Bennett checked the deli department right after Ms. Small reported the incident, and all the employees were wearing gloves at that time. He conceded that he could not state with one hundred percent certainty that no employee had broken the rules that day by not wearing gloves. The deli is staffed by five to ten employees at any given time, two of whom ■are managers certified by the Serve Safe program. The other employees receive on-the-job training from the managers. Mr. Bennett testified that the lunch buffet was put out at 11:00 a.m.

The final witness was Willard Bouquet, the insurance claims adjustor for Rouse’s. He testified that there was no record of any prior claims. (incident reports) made by Ms. Small against Rouse’s. However, 'when he interviewed Ms. Small, she told him that on prior occasions, she had complaints about spoiled meat, spoiled bread pudding and. an out-of-date wine cooler from Rouse’s..'Mr. Bouquet further testified that he had been told by Tommy Rouse (a store owner) to send out the letter banning Ms. Small from Rouse’s. Mr. Bouquet explained that every person who files suit against Rouse’s does not receive the “ban” letter. He said whether or not to ban a customer was an individual décisioh made by the owners in light of the circumstances of each case. He testified that when someone is banned, |fiRouse’s sends the “ban” letter to the customer by certified mail; no one else is informed.

Rousé’s argues that the trial court was manifestly erroneous in finding liability on the part of the store based on the evidence. Rouse’s contends that because there was no evidence showing how the fingernail got into the food that was purchased by Ms. Small, and there was no evidence that anyone at Rouse’s did anything inappropriate while preparing or handling the food, the plaintiff failed to prove that Rouse’s breached its duty to her.

The plaintiff counter argues that the trial court appropriately applied the theory of res ipsa loquitur to infer negligence on the part of Rouse’s under the circumstances presented here. As this court has stated:

Res ipsa loquitur is a rule of circumstantial evidence which permits the fact finder to infer negligence where 1) the circumstances surrounding the event are such they would not normally occur in the absence of negligence on someone’s part, 2) the instrumentality was in the exclusive control of the defendant, and 3) the negligence falls within the duty of care owed the plaintiff.

Zumpe v. Zara’s Little Giant Super Mkt., Inc., 2009-1255, p. 5, n.1 (La. App. 4 Cir. 3/24/10), 35 So.3d 1158, 1161(Citation omitted).

In this case, there is no question that the first and third criteria for the application of res ipsa loquitur exist under these facts. Rouse’s argues, however, that the second criterion is absent because food set out in a self-serve buffet, by ^definition, is no longer in the exclusive control of those who prepared the food and/or set up the buffet.

We agree that generally, once food has been placed on a self-serve buffet, it is no longer in the exclusive control of the preparer. However, in this case the trial court made a factual finding that Ms. Small was, if not the first, then one of the first, customers at the buffet that day and that, therefore, the food was undisturbed. The court reasoned:

... because the incident occurred so close in proximity to the time period where the food was placed on the steamer, that’s my problem with the liability argument of the defendant. If it had been 12:30 or 1:00, and we know that there is a rush pass through there, that’s a different conversation, but this is not a situation where... this is a situation where the plaintiff was, if not the first person but one of the first people to pass through there....

Considering the evidence, we cannot say that this factual finding of the trial court is manifestly erroneous. The evidence shows that Ms. Small arrived at the store within the first five or ten minutes after the lunch buffet was put out, and she testified that the food on the buffet appeared to be undisturbed. Rouse’s presented no evidence to refute that the food on the buffet had been touched by anyone other than employees of Rouse’s at the time Ms. Small made her plate. Considering these facts, the trial court’s inference of negligence is not manifestly erroneous.

CONCLUSION

Accordingly, for the reasons stated, we affirm the judgment of the trial court.

AFFIRMED

LOBRANO, J.,

DISSENTS AND ASSIGNS REASONS.

hi respectfully dissent. I disagree with the majority’s holding that res ipsa loquitur applies to the facts of this case, because I find that the second element, exclusive control, is not met. I do not find that the district court’s factual finding, that Ms. Small was, if not the first, then one of the first, customers at the buffet that day, is commensurate with Rouse’s maintaining exclusive control over the food its employees undisputedly had already placed at the self-serve buffet. No evidence was presented at trial that Rouse’s breached its “duty to act as would a reasonably prudent man skilled in the culinary art in the selection and preparation of food,” See Porteous v. St. Ann’s Cafe & Deli, 97-0837, p. 5 (La. 5/29/98), 713 So.2d 454, 457. The district court committed manifest error in holding otherwise.

Accordingly, I would reverse the May 19, 2016 judgment of the district court.

      . On redirect examination, Ms. Small testified that she had not actually voiced complaints about these prior purchases, except for the spoiled meat, about which she had telephoned the store. Although instructed to bring the meat back for a refund, Ms. Small had not done so.

      . The record indicates that the trial court made a factual finding that the object in Ms. Small's food was a fingernail, which would not normally be there in the absence of negligence, as opposed to a chicken bone.


author: Judge Edwin A. Lombard

text:
    Marsha THOMPSON v. DEPARTMENT OF POLICE
    NO. 2016-CA-1314
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 7, 2017

      Donovan A. Livaccari, LIVACCARI VILLARRUBIA LEMMON, LLC, 101 W. Robert E. Lee Boulevard, Suite 402, New Orleans, LA 70124, COUNSEL FOR PLAINTIFF/APPELLANT
    Corwin St. Raymond, ASSISTANT CITY ATTORNEY, Elizabeth S. Robins, DEPUTY CITY ATTORNEY, Adam J. Swensek, CHIEF DEPUTY CITY ATTORNEY, Rebecca H. Dietz, CITY ATTORNEY, 1300 Perdido Street, Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Daniel L. Dysart)
   Judge Edwin A. Lombard

hThe appellant, Marsha Thompson, seeks review of the Civil Service Commission’s October 24, 2016 decision upholding her forty-five (45) day suspension. Finding that the Commission’s rulings are not arbitrary or capricious, we affirm the decision of the Commission.

Facts

In November of 2010, the appellant, Marsha Thompson, an officer of the New Orleans Police Department (“NOPD”), responded to a simple arson call for service. When the appéllant arrived at the scene, she observed burn marks on the apartment’s front door. Investigating the matter, Officer Thompson spoke with the occupants of the- residence, Lashondra Fefíe and eight-year-old Omarion White, the sole witness to the incident. According to .Officer Thompson, Omarion indicated during their meeting that he saw his step-mother, Leslie Starks, use a lighter to ignite a piece of paper in a pipe; she used the pipe to set the residence’s door on fire. Omar-ion also stated that Leslie Starks’ daughters, Taylor Starks and Jessica Richardson, accompanied their mother during the incident; he stated neither of them hindered their mother from setting the apartment’s front door on fire, nor warned the surrounding neighbors of the danger.

|BBased on Omarion’s statement, Officer Thompson arrested Leslie Starks for Simple Arson, La. R.S. 14:52 and, after consulting with an arson investigator, sought two arrest warrants for Taylor Starks and Jessica Richardson, as principals to the crime. Officer Thompson wrote in the arrest affidavits that Taylor Starks and Jessica Richardson “arrived at the victim’s residence and [a witness] observed [them] using clear liquid and paper, ignited by a lighter, to set a fire in front of the front door.” As well, the appellant wrote that the resident’s son positively identified the two daughters as the individuals responsible for setting fire to the front door. After discussing the matter with Officer Thompson, a magistrate judge granted the two arrest warrants.

At later proceedings regarding the simple arson charge, Officer Thompson testified to the-inconsistency between the witness’s actual statement and her statements in the arrest affidavits. Officer Thompson affirmed that the witness only stated that Leslie Sparks started the fire and did not identify Taylor Starks and Jessica Richardson as ignitors of the fire. In testifying, the appellant also stated that she did not believe she wrote a false statement in the arrest affidavits because of her understanding that Taylor Starks and Jessica Richardson were “principals” to the crime of simple arson. The NOPD investigated the discrepancy between the police report and the arrest affidavits,and held a pre-disciplinary hearing for Officer Thompson. The NOPD found the appellant admitted to making the alleged fabrications. After the hearing, the NOPD issued a disciplinary letter concluding Officer Thompson violated various departmental rules. The NOPD suspended the appellant for a total of forty-five (45) days for the following infractions: 1) thirty U(30) days for violating Rule 2: Moral Conduct; Paragraph 1 Adherence to Law—La. R.S. 14:126; 2) ten (10) days for violating Rule 4: Performance of Duty;' and 3) five (5) days for violating Rule 3: Professional Conduct, Paragraph 1: Professionalism.

' Officer Thompson filed an appeal with the Civil Service Commission (“Commission”) to review her forty-five (45) day suspension. After a hearing, the Commission ruled that Officer Thompson violated the charged NOPD rules. The Commission concluded that the appellant engaged in making the inaccurate statements by stating facts substantially dissimilar to Taylor Starks and Jessica Richardson’s actual involvement. The Commission found, that the police report contained statements made under “oath or ‘equivalent affirmation’ ” by Officer Thompson that were inconsistent with the statements contained in the arrest affidavits she executed. Therefore, the Commission determined that this constituted a violation of La. Rev. Stat. 14:126. The Commission further found that the NOPD met its standard of proof establishing Officer Thompson did not act carelessly, but, rather knew the inaccuracy of her statements at the time she executed the arrest affidavits.

In stating that this type of misconduct negatively impacts the efficiency of the NOPD and the citizens’ trust in the department when their liberties are at stake, the Commission concluded that the negative impact on the NOPD’s reputation requires the department to use threats of significant discipline to deter such misconduct. In concluding such, the Commission found her forty-five (45) day suspension commensurate with the appellant’s misconduct. The Commission noted the NOPD’s leniency considering the possible disciplines provided for in its penalty matrix. Hence, the Commission denied the appellant’s appeal.

14 Officer Thompson timely filed the instant appeal in this Court, raising three (3) assignments of error:

1. The Commission erred when it found that the NOPD established, by a preponderance of the evidence, a lawful cause to discipline Officer Thompson.
2. The Commission erred when it found that the actions of Officer Thompson bore a “real and substantial” negative impact on the NOPD’s efficient operation.
3. The Commission erred when it found that the penalties imposed by the NOPD were commensurate with the alleged violations.

Standard of Review

The civil service employee is protected against being disciplined without cause. Cornelius v. Dept. of Police, 07-1257, p. 7 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724. On appeal to the Commission, the appointing authority bears the burden of proving 1) the occurrence of the complained activity and 2) that such activity “bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, (citing Marziale v. Dept. of Police, 06-459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767). Both requirements must be proven by a preponderance of the evidence. Id.

The Commission’s decision is subject to appellate review. La. Const, art. X, § 12. Appellate courts review the Commission’s finding of facts pursuant to the clearly wrong or manifest error standard. Muhammad v. New Orleans Police Dept. 00-1034, p. 4 (La.App. 4 Cir. 7/11/01), 791 So.2d 788, 791; See also Vara v. Dept. of Police, 16-0036, p. 5 (La.App. 4 Cir. 6/29/16), 197 So.3d 294, 297. In reviewing the Commission’s legal conclusions, an appellate court should not modify the Commission’s rulings unless it is arbitrary, capricious or characterized by an abuse of discretion. Id., 00-1034, pp. 4-5, 791 So.2d at 791. The Commission’s decision is arbitrary or capricious when there is no rational basis for the Commission’s ruling. Cure, 07-0166, p. 2, 964 So.2d at 1095.

Discussion

The appellant first argues that the Commission erred in finding the NOPD established a lawful cause for disciplining Officer Thompson. The appellant asserts that she did not violate NOPD Rule 2 because she did not violate the underlying statute, La. R.S. 14:126, upon which NOPD Rule 2 is based. Specifically, the appellant contends that her police report statement does not qualify as a statement sufficient to violate La. R.S. 14:126 because police report statements are not made under oath or affirmation. La. R.S. 14:126 provides:

[i]t shall constitute false swearing whenever any person, having made a statement under sanction of an oath, or an equivalent affirmation, required by law, shall thereafter swear or affirm in a manner materially contradictory of or inconsistent with his former sworn or affirmed statement.

The plain language of La. R.S. 14:126 permits an “equivalent affirmation” to violate the statute. Black’s Law Dictionary defines an affirmation as:

A solemn pledge equivalent to an oath but without reference to a supreme being or to swearing; a solemn declaration made under penalty of perjury, but without an oath. Fed. R. Evid. 603; Fed. R. Civ. P. 43(b). While an oath is “sworn to,” an affirmation is merely “affirmed,” Lbut either type of pledge may subject the person making it to the penalties for perjury.

Black’s Law Dictionary (10 Ed. 2014).

In State v. Williams, the Louisiana Supreme Court determined that a signed police department’s form was an affirmation because by the defendant signing the form he or she affirms all the statements and facts included in the form are true. 10-1514, p. 5 (La. 3/15/11), 60 So.3d 1189, 1192. Similarly, Officer Thompson signed the police report containing the contradictory statements, attesting that the statements in the form were true. Therefore, we find that the Commission had a rational basis for ruling Officer Thompson violated NOPD Rule 2 because Officer Thompson’s signed police report constituted an equivalent affirmation under La. R.S. 14:126.

The appellant next asserts that the Commission’s ruling that she violated NOPD Rules 3 and 4 is arbitrary and capricious because the Commission did not discuss its legal basis or underlying facts to justify the violation of those rules. We disagree.

An officer violates NOPD Rule 4 when he or she fails “to take appropriate and necessary police action [.] ” NOPD Rule 3 provides, in pertinent part, that an employee shall not “act in a manner which brings discredit to the employee or the Police Department.” Here, the appellant admits she made the inconsistent 17statements by inaccurately reporting facts from her investigation in two arrest affidavits. Accurately reporting facts from her investigation was the appropriate and necessary police action for Officer Thompson to perform. The appellant admittedly did not take the appropriate and necessary police action. In making inaccurate statements on the arrest affidavits, the appellant discredited herself and the NOPD. Therefore, we find that the Commission had a rational basis for finding Officer Thompson violated NOPD Rules 3 and 4.

Next, the appellant argues that the Commission erred in finding that Officer Thompson’s actions had a real and substantial impact on the adverse operation of the NOPD. Specifically, the appellant asserts that the only evidence the NOPD presented in support of that contention was the testimony of former NOPD Deputy Superintendent Darryl Albert (“Chief Albert”).

In McKain v. Dept. of Police, the appellant filed ,a police report falsely asserting his arrest' of an offender already in custody. 10-1781 (La.App. 4 Cir. 6/29/11), 72 So.3d 357. The court found the testimony of the superintendent sufficient to prove the actions of the appellant to be detrimental to the efficient operation of the police department. Id., 10-1781, p. 8, 72 So.3d at 363. Similarly, Chief Albert stated that this type of conduct negatively impacted the department. Chief Albert téstifíed the NOPD and the citizens depend on the proper representation of facts and truthfulness of officers, “especially when a citizen’s liberty is at stake.” Therefore, we find 'that the; NOPD’s witness testimony provided a rational basis on which' the Commission could base its ruling as a superior officer of a department may attest to the negative impact of an employee’s, actions upon the department.

IsLastly, the appellant argues that the Commission erred in finding the forty-five (45) day suspension was commensurate with her dereliction. Officer Thompson asserts she made a mistake with no malicious intent, thus nine (9) weeks of unpaid suspension is excessive. The appellant contends that' the facts of the case are determinative of the commensurate punishment and not NOPD’s penalty matrix, citing Cure, 07-166, p. 3, 964 So.2d at 1094.

The NOPD’s penalty matrix allows a maximum discipline of termination for the appellant’s violation's. The. NOPD’s choice to impose an unpaid suspension of nine (9) weeks is equitable compared to the prospect of termination. For instance, in Vara v. Dept. of Police, this court affirmed the termination of two officers that submitted a police report of an .arrest contradictory to the video of the incident. 16-36, p. 7 (La.App. 4 Cir. 6/29/16), 197 So.3d 294, 298. Moreover, in McKain, we affirmed the termination of a police officer for making a false statement of .taking credit for an arrest on a police report. 10-1781, p. 7, 72 So.3d at 362. Therefore, we find that the Commission possessed a rational basis for ruling that the forty-five (45) day suspension was commensurate with the appellant’s infractions and was not excessive.

DECREE

For the foregoing reasons, the decision of the Commission is affirmed.

AFFIRMED

      . Antoine White is a resident of the apartment and father of Omarion White.

      . Rule 2 Moral Conduct; Paragraph 1 Adherence to Law

        Employees shall act in accordance with the constitutions, statutes, ordinances, administrative regulations, and the official interpretations thereof, of the United States, the State of Louisiana, and the City of New Orleans. Neither ignorance of the law, its interpretations, nor failure to be physically arrested and charged, shall be regarded as a valid defense against the requirements of this rule.

      . Rule 3: (1) PROFESSIONALISM
      Employees shall conduct themselves in a professional manner with the utmost concern for the dignity of the individual with whom they are interacting. Employees shall not unnecessarily inconvenience or demean any individual or otherwise act in a manner which brings discredit to the employee or the Police Department.


text:
    Leonard JOHNSON, Sr., Husband of/and Merline Johnson v. HAMP’S CONSTRUCTION, LLC, Hamp’s Enterprises, LLC, Jose Doe and XYZ Insurance Company and Woodrow Wilson Construction Company, Inc. and Amerisure Insurance Company and Board of Secondary and Elementary Education and Louisiana Department of Education d/b/a Recovery School District
    NO. 2017-CA-0033
    Court of Appeal of Louisiana, Fourth Circuit.
    6/7/2017

      Morgan J. Wells, Jr., Lee M. Peacocke, LARZELERE PICOU WELLS SIMPSON LUNERO, LLC, 3850 N. Causeway Boulevard, Suite 1100—Two Lakeway Center, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    James A. Prather, C. Bowman Fetzer, Jr., . GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH, Three Sanctuary Blvd., Suite 301, Mandeville, LA 70471, COUNSEL FOR DEFENDANT/APPEL-LEE
    (Court composed of Judge Edwin A. Lombard,. Judge Roland L. Belsome, Judge Daniel L. Dysart)
   Judge Edwin A. Lombard

hThe Appellant, Orleans Parish School Board (“OPSB”), seeks review of the district court’s July 8, 2016 judgment granting 'a partial summary judgment in favor of the Appellee, Woodrow Wilson Construction Company, Inc. (“WWCC). Finding that, as a matter of'law, WWCC is not entitled to summary'judgment, we reverse the judgment of the district court and remand for further proceedings.

Facts

The instant appeal involves a dispute over the application of an indemnity provision contained within a public contract between the OPSB and WWCC obligating WWCC to defend, indemnify and hold OPSB harmless from the Johnsons’ claims.

The instant appeal arises from personal injuries sustained by Leonard Johnson, Sr., while he was on or near a construction sité at New Edward Hynes Elementary School in Orleans Parish. A tire blew out on a dump truck at the construction site and the force of the blowout expelled debris,. which struck and injured Mr. Jbhn-son. Resultantly, Mr. Johnson and his wife, Merline Johnson |a(“the Johnsons”) filed suit against the OPSB, WWCC, as well as other defendants who were involved in the construction project.

WWCC, the general contractor for the project, was awarded a public contract by OPSB. The public contract contained an indemnity provision requiring WWCC to defend, indemnify, and hold the OPSB harmless for injury claims made by third parties. Pursuant to that provision, the OPSB demanded that WWCC defend, indemnify and hold OPSB harmless from the claims of the Johnsons, but to no avail. The OPSB later filed a cross-claim against WWCC, which answered the demand and asserted affirmative defenses, namely that the OPSB’s claims were barred by La. Rev. Stat. 38:2216(G)(1).

Later, the OPSB moved for summary judgment seeking dismissal of the causes of actions asserted against it by the John-sons. The district court denied the motion. However, this Court granted the OPSB’s supervisory writ application, reversed the district court’s judgment and granted,the OPSB’s motion for summary judgment. Leonard Johnson, Sr., et al., v. Hamp’s Construction, unpub., 16-C-0128 (La. App. 4 Cir. 05/18/16).

Thereafter, WWCC filed a motion for partial summary judgment seeking dismissal of the contractual indemnity claims of the OPSB under La. Rev. Stat. 38:2216(G)(1). After the hearing, the district court granted the motion and dismissed the OPSB’s cross-claim against WWCC. The judgment was designated as a partial final judgment by the district court. OPSB filed a Motion for New Trial, which the district court denied. The John-sons’ remaining claims against all other defendants were settled prior to trial.

The instant timely appeal followed. The OPSB’s sole assignment of error on appeal is that the district court committed a legal error in its application of La. Rev. |3Stat. 38:2216(G)(1) prohibiting the OPSB from asserting a claim for contractual indemnity for recovery of its defense costs and attorneys’ fees since OPSB was found free of fault in this matter.

Standard of Review

“A motion for summary judgment is designed to secure the just, speedy, and inexpensive determination of an action.” La. Code Civ. Proc. art. 966(A)(2). “After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. Code Civ. Proc. art. 966(A)(3). “In general, summary judgment is appropriate as a matter of law when all the relevant facts are marshaled before the court, the facts are undisputed, and the only issue is the ultimate conclusion to be drawn from the applicable law.” Hon. Max Tobias, Jr., John M. Landis, and Gerald E. Meunier, Louisiana Practice Series, “Louisiana Civil Pretrial Procedure,” § 14:31 (2016-2017 ed.) (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730). The applicable law is determined by the issues raised in a case and can even involve an issue of first impression. Id. [citations omitted].

Although the burden of proof rests with the mover, if the mover does not bear the burden of proof at trial on the issue before the court, the mover need only point out an absence of factual support for one or more elements of the adverse party’s claim, action, or defense. La. Code Civ. Proc. art. 966 (D)(1). The burden then shifts to 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.” La. Code Civ. Proc. art. 966 (D)(1). If the adverse party fails to establish that a genuine issue of material fact exists, the mover is entitled to summary judgment as a matter of law. Id. Appellate courts review summary judgments de novo using the same standard that the district court applies: determining whether a genuine issue of material fact exists. Encalade v. A.H.G. Sols., LLC, 16-0357, p. 9 (La. App. 4 Cir. 11/16/16), 204 So.3d 661, 666 [citations omitted].

Lastly, summary judgment in matters involving the interpretation of a contract is appropriate when the document can be construed from the four corners of the instrument without needing to consider extrinsic evidence, as the matter is answered as a matter of law. Hon. Max Tobias, Jr., John M. Landis, and Gerald E. Meunier, Louisiana Practice Series, “Louisiana Civil Pretrial Procedure,” § 14:32 (2016-2017 ed.) (citing LaFleur v. Hollier Floor Covering, Inc., 00-0969 (La. App. 3 Cir. 12/6/00) 774 So.2d 359).

Application of La. Rev. Stat. 38:2216(G)(1)

The OPSB argues that the district court erred in finding that La. Rev. Stat. 38:2216(G)(1) prevents a non-negligent public body, such as itself, from pursuing a claim for contractual indemnity against a contractor to recover defense costs and attorneys’ fees. The OPSB maintains that its position is supported by Louisiana’s rules of statutory construction as well as the state’s public policy to support enforcement of contractual indemnity provisions. Lastly, the OPSB contends that analogous Louisiana jurisprudence supports the enforcement of the contractual indemnity provision at issue in its favor.

The OPSB asserts that the statutory language of La. Rev. Stat. 38:2216(G)(1) is clear and unambiguous; thus, it should be applied as written under La. Civ. Code art. 9. The statute prohibits a public body from recovering 15under a contractual indemnity provision when damages sustained by third parties were caused by either its own negligence or that of its employees or agents. The OPSB’s argument is that it is a non-negligent public body in the instant matter; therefore, its indemnification claim is not barred. It maintains that the enforcement of the contractual indemnity and hold harmless provisions should be enforced in its favor in accordance with Louisiana public policy under the Louisiana Public Bid Law, La. Rev. Stat. 38:2212, et seq., of which the statute at issue is a part. It further argues that it is in the interest of the taxpaying citizenry to be unencumbered from paying defense costs against meritless claims asserted against a public body, which has not been found negligent.

The OPSB relies upon three cases in support of its argument that analogous Louisiana jurisprudence supports the enforcement of the contractual indemnity obligations: Domingue v. H & S Construction Company, 546 So.2d 913 (La. App. 3rd Cir. 1989), writ granted, judgment rev’d, 551 So.2d 622 (La. 1989); Suire v. Lafayette City-Parish Consolidated Government, 04-1459 (La. 4/12/05), 907 So.2d 37; and Meloy v. Conoco, Inc., 504 So.2d 833 (La. 1987). The OPSB points out there is no Louisiana jurisprudence interpreting the statute at issue to prevent a non-negligent public body from asserting a contractual indemnity claim for recovery of its defense costs and attorneys’ fees against a contractor.

Domingue involved an interpretation of the . La. Rev. Stat. 38:2216(E), the predecessor of La. Rev. Stat. 38:2216(G)(1), The Third Circuit in Domingue, according to the OPSB, held that La. Rev. Stat. 38:2216 only prohibits a public Rbody from obtaining indemnification for its own negligence, but does not bar all contracts for indemnification in favor of public entities. Domingue, 546 So.2d at 917-18. It argues that the public body in Domingue was entitled to obtain indemnification under the terms of a public contract for claims asserted against it arising from the contractor’s negligence. Id. at 918.

It further avers that in Meloy, the Louisiana Supreme Court reasoned that the Louisiana Oilfield Anti-Indemnity Act did not preclude an indemnitee from recovering its cost of defense after it prevailed on the. merits at trial. Meloy, 504 So.2d at 839. In so holding, the OPSB contends that the Supreme Court reasoned that a plaintiffs pleadings are irrelevant to the indem-nitor’s indemnity obligation. Id.

Lastly, the OPSB asserts that in Suire, supra, the Louisiana Supreme. Court reasoned that La. Rev. Stat, 38:2816(G)(1) does not bar public bodies from asserting claims for contractual indemnity in all circumstances. The Supreme Court interpreted La. Rev. Stat. 38:2816(G)(1) to prohibit a public entity from obtaining indemnity if the public entity is found to be jointly or concurrently negligent with the contractor, but that the clause otherwise remained valid. Suire, 04-1459, pp. 20-22, 907 So.2d at 53. The OPSB further notes that the Suire court concluded that strict and absolute liability claims against the public body were not barred. Id.

WWCC responds that the district court properly granted its motion for partial summary judgment dismissing the OPSB’s cross-claim for indemnity. It argues that the indemnity provision at issue in this matter is against the public 17policy of Louisiana, as set forth in La. Rev. Stat. 38:2216(G)(1); thus, the provision is null and void.

WWCC asserts that the indemnity.pro-visión was properly nullified because: .

• it obligates WWCC" to indemnify OPSB from and' against damages caused by the OPSB’s oWn negligence;
• it is contrary to Louisiana’s public policy and statutorily null and void pursuant to La. Rev. Stat.. 38:2213(G); and
• it was illegal before OPSB was found free from fault.

First, the WWCC contends that the wording of the contractual indemnity provision obligates WWCC to indemnify the OPSB “regardless of whether or not” relevant claims, damages, losses or expenses are “caused in part by a party indemnified hereunder,” ie., the OPSB. Thus, WWCC maintains that because the .contract can be interpreted to require WWCC to indemnify the OPSB for its own negligence, the provision is in direct contravention of La. Rev. Stat. 38:2216(0(1).'

Lastly, WWCC contends that seven-years ago, when the contract was executed, the indemnity provision was already contrary to public policy and was null and void. The indemnity provision, it argues, is an absolute nullity under La. Civ. Code art. 2030. The provision’s nullification is independent of whether .a public body is eventually found at fault. It also maintains that it satisfied its contractual obligation by purchasing an Owners and Contractors Protective 1 ^Liability Insurance Policy, issued by Mid-Continent Casualty Company for the benefit of OPSB. WWCC maintains that Mid-Continent has assumed the defense of the OPSB and paid its attorneys’ fees. Thus, it maintains that the only costs the OPSB would have are as a result of the OPSB’s failure to timely notify Mid-Continent of its involvement in this litigation, which it was obligated to do under the policy.

We find that resolution of this matter hinges upon the interpretation of the indemnity provision of the public contract at issue as well as the application of La. Rev. Stat. 38:2216(G)(1) and Suire, supra.

The indemnity provision of the public works contract executed by.the OPSB and WWCC states:

§ 3.18.1 To the fullest extent permitted by law the Contractor [WWCC] shall indemnify and hold harmless the Owner [the OPSB], Architect, Architect’s consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to. or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. [Emphasis added].

“The words of a contract must be given their generally prevailing meaning.” La. Civ.Code art. 2047. Moreover, “[e]ach provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La. Civ.Code art. 2050.

|9The penultimate phrase of the above-referenced indemnity clause provides the requirements that must be -met for indemnification to be triggered. Thus, WWCC must indemnify and hold harmless the OPSB “but only” to the extent that the Johnsons’ claims were “caused by the negligent acts or omissions of the Contractor [WWCC], a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable.” The final phrase of the clause allows the OPSB to recover even if a party to be indemnified thereunder, including the OPSB [the Owner], partially caused the third party’s claim, damage, loss or expense.

The above referenced provision must be interpreted in conjunction with the Louisiana Public Works Act, La. Rev. Stat. 38:2211, et seq. Specifically, we must apply La. Rev. Stat. 38:2216(G)(1), entitled Written contract and bond, which provides:

G. It is hereby declared that any provision contained in a public contract, other than a contract of insurance, providing for a hold harmless or indemnity agreement, or both,
(1) From the contractor to the public body for damages arising out of injuries or property damage to third parties caused by the negligence of the public body, its employees, or agents, ...
⅜ ‡ ‡
is contrary to the public policy of the state, and any and all such provisions in any and all contracts are null and void.

The .language of La. Rev. Stat. 38:2216(G)(1) explains that hold-harmless and/or indemnity provisions contained within public contracts, wherein contractors agree to indemnify a public body for damages arising out of injuries or property hodamages that were caused in whole or part by the public body, its employees or agents, are contrary to public policy and are prohibited.

In the instant matter, WWCC argues, and the OSPB admits, that there is a portion of the above-referenced indemnity provision that could be interpreted to entitle the OPSB to be indemnified for its own negligence. On its face, the indemnity provision does not state that the OPSB can be indemnified for its own negligence. Nevertheless, that portion of the provision stating that the OPSB is entitled to indemnification “regardless of whether" third party claims, damages, losses or expenses are “caused in part by a party indemnified hereunder” is tantamount to allowing the OPSB to be indemnified for its own negligence. See Suire, supra. The Supreme Court in Suire faced a. similar broadly-worded contractual provision between a contractor and a public body that could have obligated the contractor to defend the City of Lafayette against the plaintiffs claims that both parties were jointly or concurrently negligent.

In Suire, a homeowner sued the City of Lafayette (“the City”), Boh Brothers, Construction Co., L.L.C. (“Boh Brothers”), and an engineering firm for property damages arising out of a public works project. The homeowner raised various claims against the defendants, including negligence and strict liability. Suire, 04-1459, pp. 1-3, 907 So.2d at 42-43. The City filed a cross-claim against Boh Brothers for defense and indemnification pursuant to the public contract they had executed. Id., 04-1459, p. 3, 907 So.2d at 43. Pursuant to the contract, Boh Brothers was obligated to indemnify the City and include it as an additional insured under Boh Brothers’ commercial general liability insurance policy. Id., 04-1459, pp. 3-4, 907 So.2d at 43. The indemnity clause required Boh Brothers to In defend and indemnify the City against “claims arising out of the performance of the work under the contract:”

including, but not limited to, any and all claims ... which result from any breach by the contractor of any of the terms ... of the contract, as well as any and all claims resulting from the sole negligence, liability, strict liability and/or fault of the contractor and/or the joint and/or concurrent negligence, liability, strict liability and/or fault of the contractor with any other persons or parties whomsoever.

Id., 04-1459, p. 17, 907 So.2d at 51.

The City also filed a third party demand against Boh Brothers’ insurer seeking defense and indemnification as an additional insured under Boh Brother’s policy. Id., 04-1459, pp. 3-4, 907 So.2d at 43. The insurance policy stated that coverage to an additional insured “shall be limited to the extent of any legally enforceable defense and indemnification clause in the contract with the additional insured.” Id., 04-1459, pp. 18-19, 907 So.2d at 52 [emphasis added].

Numerous motions for summary judgment were filed in the district court, which ultimately determined that Boh Brothers and its insurer owed a limited duty to defend the City solely against the absolute liability claim, and further held that duty was satisfied. Furthermore, having dismissed the plaintiffs’ absolute liability claim, the district court held that the City’s indemnity claim had' been extinguished. Id., 04-1459, p. 6, 907 So.2d at 45.

On appeal, the Third Circuit affirmed the judgment of the district court finding that Boh Brothers owed a duty to defend the City against the plaintiffs absolute liability claim and remanded the matter for the district court to determine the defense costs for the absolute liability claim. The Court further held that Boh Brothers’ insurer owed a duty to defend the City against the absolute liability claim | iaunder the additional insured provision of the insurance contract. Id., 04-1459, pp. 9-10, 907 So.2d at 46-47.

Reversing the Third Circuit, the Supreme Court held that the City’s indemnification claims against Boh Brothers were premature because a determination of liability had not been made, as required by the contract, and the City had not yet sustained a loss. The Supreme Court explained:

“[a]n indemnitor is not liable under an indemnity agreement until the indemni-tee ‘actually makes payment or sustains loss.’ Thus, [the Louisiana Supreme Court] has held that ‘a cause of action for indemnification for cost of defense does not arise until the lawsuit is concluded and defense costs are paid.”

Id., 04-1459, pp. 17-18, 907 So.2d at 51 (citations omitted).

It ordered that the claim be deferred until the lawsuit was concluded and liability was determined.

Moreover, the Supreme Court addressed the insurer’s argument that the entire indemnity provision of the public contract was rendered null because it included language prohibited by La. Rev. Stat. 38:2216. The Suire court held that the contractual provision was only partially rendered null, and further concluded that the City was entitled to indemnification for defense of the absolute liability claim. Id., 04-1459, pp. 20-22, 907 So.2d at 53-54. The Court explained:

But, this holding does not render entirely null the indemnity clause, in this case, a clause which speaks as well about strict or absolute liability.., We hold that the indemnity clause remains valid, so long as it is not interpreted to require indemnification and defense against the City’s own sole, joint, or concurrent negligence.

Id.

Based on the Supreme Court’s analysis, we find that the indemnity clause at issue is also rendered void to the extent that it can be interpreted to require 1 ^indemnification and defense against the OPSB’s -own negligence. The remaining portion of the indemnity provision, however, is valid. Furthermore, because the OPSB was not determined to be negligent, this is a moot issue.

Furthermore, regarding the WWCC’s assertion that the OPSB is not entitled to indemnification for the cost of its defense against the Johnsons’ negli-genee claims under La. Rev. State. 38:2216 (G)(1), we find no legal support for this argument.

Considering that an indemnification claim is not ripe until the conclusion of the lawsuit, by which point a détermination will have been made as to whether the public body was negligent, it is consistent with Suite that if a public body is not found to be negligent that it is entitled to seek indemnification for defense costs. A plaintiffs’ litigation strategy will most likely include suing the public body that retained the contractor and who may own the premises where an accident occurred and/or where their damages were sustained. Should a contractor be relieved of his or her contractual obligation to indemnify a non-negligent public body because a plaintiff alleges the public body was negligent? We think not. Similarly worded indemnification provisions . would be rendered virtually useless for public bodies that have entered into public works agreements with contractors thereby limiting their recovery of defense costs to the lawsuits where they have not been sued for negligence/ If this were the case, taxpayers ultimately would have to bear this cost. A plaintiffs allegation of negligence should not be the determining factor in applying the contractual provision. It is a finding of negligence that should be dispositive.

Moreover, this rationale was upheld by the Supreme Court, as the OPSB pointed out, and the First Circuit. The First Circuit, in Berninger v. Georgia-Pac. Corp., 582 So.2d 266, (La. App. 1st Cir. 1991), explained that in Meloy, swpra, the Supreme Court held that in indemnity agreements covered by the Louisiana Oilfield Indemnity Act a plaintiffs allegations are not dispositive of whether a party is due indemnification for defense costs:

In Meloy, the problem presented was allegations in a complaint that initiate the duty to defend in an indemnity agreement. The question was, would allegations that initiated the duty result in the indemnitor either having to defend at that point, or being responsible for defense costs even if the outcome was to exonerate the indemnitee from liability? The court held that unlike insurance contracts, allegations do not initiate the duty to defend in indemnity agreements. However, if, in the final judgment, the indemnitee would have been entitled to defense under the indemnity agreement, the defense costs can then be claimed from the indemnitor. Meloy simply states that the ultimate responsibility for defense costs in indemnity agreements is governed by the result rather than the allegations.

Id. at 269 [emphasis added],

Analogously, we find that that the allegation of negligence does not prohibit the OPSB from seeking indemnification for its defense costs under the Louisiana Public Works Act and the indemnity provision at issue. In light of the foregoing analysis, we find that as a matter of law WWCC is not entitled to summary judgment on this issue.

DECREE

For the foregoing reasons, we reverse the July 8, 2016 judgment of the district court and remand for further proceedings.

REVERSED AND REMANDED

DYSART J., CONCURS IN THE RESULT

      . The district court subsequently rendered a substantially similar judgment on July 18, 2016, granting WWCC’s. partial motion for summary judgment.

      . The OPSB asserts that the Louisiana Public Bid Law governs the manner by which all public contracts are to be awarded and "represents the legislative expression of the specific conditions 'under which the state will permit public work to be done ... on behalf of its political subdivisions.’ ” Dynamic Constructors, LLC v. Plaquemines Parish Government, 15-0271, p. 5 (La. App. 4 Cir. 8/26/15), 173 So.3d 1239, 1243.

      . The OPSB avers that the Johnsons alleged in their Petition for Damages and their Amended and Supplemental Petition for Damages that the negligence imputed to WWCC, Hamp’s Construction LLC, and Hamp’s Enterprises, LLC, was also imputed to the OPSB. In their Third Amended Petition, the Johnsons .alleged that, the OPSB should be held liable for negligence imputed to WWCC,

      . La. Civ. Code art. 2030, entitled Absolute nullity of contracts, states:
      A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. A contract that is absolutely null may not be confirmed.
      Absolute nullity may be invoked by any person or may be declared by the court on its own initiative.

      . As previously noted, in Suire a determination had not been made as to whether the City was negligent. The Supreme Court in Suire did not preclude recovery of defense costs baséd on the allegation of negligence, bút on whether the City was indeed negligent.