author: Judge Marion F. Edwards, Pro Tempore

text:
    Keyalah BELL v. DEPARTMENT OF POLICE
    NO. 2016-CA-0677
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 22, 2017

      Kevin V. Boshea, ATTORNEY AT LAW, 2955 Ridgelake Drive, Suite 207, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT, KEYALAH BELL
    Elizabeth S. Robins, ASSISTANT CITY ATTORNEY, Isaka Rachell Williams, ASSISTANT CITY ATTORNEY, Cherrell S. Taplin, SENIOR CHIEF DEPUTY CITY ATTORNEY, Rebecca H. Dietz, CITY ATTORNEY, 1300 Perdido Street, City Hall Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPEL-LEE, DEPARTMENT OF POLICE
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Marion F. Edwards, Pro Tempore)
   Judge Marion F. Edwards, Pro Tempore

_JjPlaintiff/Appellant, Keyalah Bell, appeals a ruling of the Civil Service Commission denying the appeal of her termination as a police officer with the City of New Orleans. For the following reasons, we affirm.

FACTS

In July of 2012, the New Orleans Department of Police terminated Officer Bell following a disciplinary investigation that determined that she was driving while intoxicated, crashed into a parked vehicle, fled the scene of the accident, and returned only after the owner of the damaged vehicle tracked her down. On July 2, 2013, the Civil Service Commission granted Officer Bell’s appeal, and overturned the New Orleans Department of Police’s termination decision based solely on the Department’s failure to complete its disciplinary investigation within the sixty-day time period set forth under La. R.S. 40:2531(B)(7). However, this Court, in Keyalah Bell v. Department of Police, 13-1529 (La.App. 4 Cir. 5/21/14), 141 So.3d 871, reversed the ruling of the Civil Service Commission, which relied upon La. R.S.40:25311 g(B)(7) as its basis for grant-mg Officer Bell’s appeal and remanded this matter to the Civil Service Commission to address the merits of Officer Bell’s appeal. This Court previously set forth the facts as follows:

Officer Keyalah Bell, was arrested in the early morning hours of May 6, 2011, for driving while intoxicated in violation of La. R.S. 14:98, and for hit and run driving, in violation La. R.S. 14:100. At the time of the incident, Bell was employed by the New Orleans Department of Police (hereinafter also referred to as “Department”) as a police officer with permanent status. It is undisputed that she had been drinking prior to the time that she crashed her personal vehicle into a parked car owned by Jocelyn Owens. Witnesses were interviewed and reported that Officer Bell initially left the scene of the accident, and returned only after Ms. Owens located her a few blocks away and asked her to return. One of Ms. Owens’ neighbors, Cheryl Vernado, specifically recalled observing Officer Bell exit her vehicle, inspect the damage while holding her mouth, get back into her vehicle, and drive away. In addition, the officer who arrived on the scene detected a strong odor of alcohol emitting from Officer Bell’s breath.
The Department avers that an administrative investigation was launched and that field sobriety and breathalyzer tests were administered because Officer Bell initially refused to submit to a breathalyzer test as part of the criminal investigation. At the time the tests were performed, Officer Bell’s blood alcohol content level was determined to be 0.15Sg%—nearly twice the legal limit. The Department’s Form DI-1, entitled “Initiation of a Formal Disciplinary Investigation,” was completed on May 9, 2011; however, the Department maintains that the administrative investigation did not continue until Officer Bell received a nolle prosequi from traffic court on October 3, 2011. Thereafter, the Department’s investigator requested and received a 60-day extension of time to complete the investigation. The investigation was completed on November 9, 2011.
laDuring the course of the investigation, Officer Bell gave an administrative statement admitting that her consumption of alcoholic beverages impaired her ability to drive. In the statement, Officer Bell admitted to going out and drinking with friends. On the way home, she said she was involved in an accident and hit her head. Officer Bell denied fleeing the scene and rather stated that she pulled over and stopped at the location where her vehicle rested. She also claimed to have no recollection of how her car ended up two blocks away.
Office Bell received a disciplinary letter from Department Superintendent Ronel W. Serpas dated July 31, 2012, advising that the Department’s internal investigation determined that she violated Rule 2: Moral Conduct, paragraph 1—Adherence to Law to wit: La. R.S. 14:100 relative to Hit and Run. Rule 2 states:
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.
Based on her statement, the Department also concluded that Officer Bell’s conduct violated Rule 3: Professional Conduct, paragraph 9, Use of Alcohol/Drugs Off Duty (Category 3), which states in pertinent part:
An employee while off duty shall refrain from consuming intoxicating beverages ... to the extent it results in impairment, intoxication, obnoxious or offensive behavior that discredits him/ her,' [or] the Department....
Officer Bell was dismissed as a result of these two sustained violations. Although Officer Bell was also investigated for an additional violation of Rule 2, relative to driving while intoxicated, no action was taken with regard to this violation because it was determined to be duplicative of the first Rule 2 violation for hit and run.
L Officer Bell timely appealed the Department’s termination decision to the Civil Service Commission for the City of New Orleans (hereinafter also referred to as “Commission”). A two-day hearing was held wherein testimony was obtained from the investigating officers and from Superintendent Serpas. In connection with the hearing, Officer Bell complained that she had been disciplined more severely than similarly situated officers. (Footnote omitted). She also argued that there was insufficient evidence to prove that she committed the crime of hit and run in violation of La. R.S. 40:100 because all criminal charges related to the incident had been dismissed, and because the Department could not satisfy its burden of proving that she had the requisite criminal intent to commit the crime of hit and run where there was evidence that she suffered a head injury and did not know why her car traveled from the scene of the collision, that she personally called the police department following the accident, and that there was no party injured at the scene to render assistance to.
Officer Bell further argued in post-hearing briefs that the Department’s investigation was untimely under Ro bin-son v. Dep’t of Police, 12-1039 (La.App. 4 Cir. 1/16/13), 106 So.3d 1272 because it was not completed within 60 days as required by La. R.S. 40:2531(B)(7). (Footnote omitted).
The Civil Service Commission granted Officer Bell’s appeal and reversed the Department’s decision to terminate her employment based solely on untimeliness argument....

Again, this Court reversed the May 21, 2014, ruling of the Civil Service Commission, which relied upon La. R.S.40:2531(B)(7) as its basis for granting Officer Bell’s appeal, and remanded this matter to the Civil Service Commission to properly address the merits of Officer Bell’s appeal. On May 6, 2016, the Civil Service Commission denied Officer Bell’s appeal finding that her “misconduct was extremely serious and must be deterred through discipline” and that “termination is the appropriate level of discipline.” Officer Bell now appeals this final judgment.

| .STANDARD OF REVIEW

An employee with permanent status in the classified city service may only be terminated, or otherwise subjected to disciplinary action, in writing and for good cause. La. Const. Art. X, § 8(A); Walters v. Dept. of Police of New Orleans, 454 So.2d 106, 113 (La.1984). Good “cause” for the dismissal of such a person includes conduct prejudicial to the public service involved or detrimental to its efficient operation. Id. The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained-of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority, Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir.1990).

The burden of proof on appeal to the City Civil Service Commission shall be on the appointing authority. Watters v. Dept. of Police of New Orleans, 454 So.2d at 112-113. The decision of the Civil Service Commission is subject to review on any question of law or fact upon appeal to this Court, and this Court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const. Art. X, § 12(B); Walters, 454 So.2d at 114. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this Court should not modify the Commission’s order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision by the City Civil Service Commission is “arbitrary or capricious” if there is no rational basis for the action taken by the Commission. Bannister v. Department of Streets, 95-0404, p. 8 (La. 1/16/96), 666 So.2d 641, 647.

^DISCUSSION

In this appeal, Officer Bell argues that the Civil Service Commission erred in terminating her for a violation of La. R.S. 14:98, operating a vehicle while intoxicated, when neither the superintendent of police nor the deputy superintendent terminated her on that basis, and that the Civil Service Commission acted in an arbitrary fashion and abused its discretion in dismissing her for consumption of alcohol while off duty. In response to Officer Bell’s appeal, the Department of Police argues its July 31, 2012 disciplinary letter stated two violations for which the penalty was termination; 1) the hit and run; and 2) use of alcohol off-duty (Category 3), a violation of New Orleans Police Department Rule 3, paragraph 9. Thus, the Department of Police argues that because the Civil Service Commission agreed with one of the two violations for which Officer Bell was terminated, her termination should be upheld. We agree.

The July 31, 2012, letter of termination referenced Officer Bell’s violation of Rule 3, Professional Conduct, specifically, paragraph 9, regarding the use of alcohol off-duty, listing this as a Category 3, or major offense. Rule 3, paragraph 9 provides as follows:

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 17individual or otherwise act in a manner which brings discredit to the employee of the Police Department.

Paragraph 9, Use of Alcohol/Drugs Off Duty states, in pertinent part:

An employee while off duty shall refrain from consuming intoxicating beverages ... to the extent [it] results in impairment, intoxication, obnoxious or offensive behavior that discredits him/her, the Department, or render the employee(s) unfit to report for his/her next regular tour of duty.

Although Officer Bell was also investigated for an additional violation of Rule 2, relative to driving while intoxicated, no action was taken with regard to this violation because it was determined to be duplica-tive of the first Rule 2 violation for hit and run. Nonetheless, the record clearly establishes that Officer Bell consumed alcoholic beverages on May 5, 2011, was intoxicated, and seriously damaged her car, and that of another, while driving home that night. Further, Officer Bell performed the field sobriety test unsatisfactorily and recorded a blood alcohol content of ,153g% as a result of the breathalyzer test, which was beyond the legal limit. . The Department of Police categorized Officer Bell’s violation of Rule 3, paragraph 9 as a “Category 3” or major offense that warranted her removal from service. After reviewing the record, we agree with the.Civil Service Commission’s finding that Officer Bell violated the Police Department’s Rule 3, paragraph 9, and that Officer Bell “was impaired and engaged in offensive behavior that discredited her.”

Officer Bell also argues that the disciplinary action of being dismissed was not commensurate with a first offense of violation of Rule 3, paragraph 9, the use |Bof alcohol off duty. In determining whether an appointing authority properly imposed disciplinary action against a classified employee, the reviewing court must consider whether the punishment is commensurate with the offense. Staehle v. Dep’t of Police, 98-0216, p. 5 (La.App. 4 Cir. 11/18/98), 723 So.2d 1031, 1034. The evidence in the record must establish a rational basis for the imposed discipline. Id., p. 6, 723 So.2d at 1034.

The Rules of the Civil Service Commission for the City of New Orleans provides that when a classified employee “has committed any act to the prejudice of the service, or has omitted to perform any act it was his/her duty to perform, or otherwise has been subjected to corrective action, the appointing authority shall take action as warranted by the circumstances to maintain the standards of effective service.” See Rule IX, § 1.1. This action may include: (1) removal from the service; (2) involuntary retirement; (3) reduction in pay within the salary range for the employee’s classification, subject to the provisions of Rule IV, Section 8; (4) demotion to any position of a lower classification that the employee is deemed by the appointing authority and the Director to be competent to fill, accompanied by a reduction in pay...; (5) suspension without pay not exceeding one hundred twenty (120) calendar days; and (6) fine. See Rule IX, § 1.1

In upholding the discipline imposed by the Department of Police for a violation of Rule 3, the Civil Service Commission found that “NOPD has established that Appellant [Office Bell] consumed alcoholic beverages on May 5, 2011, was intoxicated, and seriously damaged her car and that of another while driving home late at night. Thus, NOPD has proved, by a preponderance of the 19evidence, that Appellant was impaired and engaged in offensive behavior that discredited her.” Based on our review of record, we agree with the Civil Service Commission’s conclusion that the Department of Police established by a preponderance of the evidence that Office Bell’s behavior in May of 2011 seriously impaired the efficiency of the department. Thus, we do not find the Civil Service Commission was arbitrary and capricious or abused its discretion by denying Officer Bell’s appeal and upholding her termination.

For these reasons, we hereby affirm the May 6, 2016 judgment, which found that there was sufficient cause to terminate Officer Bell.

AFFIRMED

      . Louisiana Revised Statute 40:2531(B)(7) states, in pertinent part: When a formal and written complaint is made against any police employee or law enforcement officer, the superintendent of state police or the chief of police or his authorized representative shall initiate an investigation within fourteen days of the date the complaint is made. Except as otherwise provided in this Paragraph, each investigation of a police employee or law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days.... The investigation shall be considered complete upon notice to the police employee or law enforcement officer under investigation of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint. Further, nothing in this Paragraph shall limit any investigation of alleged criminal activity.

      . A violation of NOPD Rule 2; Moral Conduct ¶ 1—Adherence to law to Wit: La. R.S. 14:100 Relative to Hit and Run. NOPD Rule 2 states:
      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.

      . La, R.S. 14:98 provides that the crime of operating a vehicle while intoxicated is the operating of any motor vehicle, when any of the following conditions exist:
      (a) the operator is under the influence of alcoholic beverages, and
      (b) the operator’s blood alcohol concentration is 0,08 per one hundred cubic centimeters of blood.


source: Caselaw Access Project

author: JUDGE SANDRA CABRINA JENKINS

license: Public Domain

text:
    Shewanda MILTON v. DEPARTMENT OF PUBLIC WORKS
    NO. 2016-CA-0625
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 22, 2017

      WILLIAM G. LEGRAND, 500 North Causeway Boulevard, Metairie, LA 70001, COUNSEL FOR PLAINTIFF/APPELLANT
    REBECCA H. DIETZ, City Attorney, CHERRELL R. SIMMS, Senior Chief Deputy City Attorney, ELIZABETH ROBINS, Deputy City Attorney, ISAKA RACHELL WILLIAMS, Assistant City Attorney, 1300 Perdido Street, Suite 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins)
   JUDGE SANDRA CABRINA JENKINS

hShewanda Milton appeals the decision of the Civil Service Commission of the City of New Orleans (“the Commission”) denying her appeal and upholding her termination by the Department of Public Works (“DPW”). For the reasons that follow, we find the Commission’s decision was not arbitrary, capricious, or an abuse of discretion, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of her termination, Shewan-da Milton had been employed by DPW for nine years. For the last six or seven of those years, Ms. Milton worked as a senior parking control officer (“PCO”), whose primary duty is issuing citations to illegally parked vehicles. As a part of her job, Ms. Milton was required to carry a DPW-issued cell phone to access the Verrus parking payment application and verify whether a driver paid for parking by phone or internet prior to issuing a citation for a parking meter violation.

On July 11, 2018, Ms. Milton worked from 9:00 a.m. until approximately 12:00 p.m., when she ended her shift early due to rain. During her three-hour shift, |aMs. Milton issued thirty-three parking citations, of which twenty-one were parking meter violations. At the end of that day, DPW directed all PCOs to turn in their department cell phones to a supervisor for inspection. When Ms. Milton’s supervisor, Valerie Petty, requested Ms. Milton to turn in her department cell phone, Ms. Milton admitted that she did not have it with her and had not used it during her shift that day.

The next day, July 12, 2013, DPW issued a disciplinary notice to Ms. Milton placing her on a thirty-day emergency suspension for violation of departmental rules and regulations on July 11, 2013. The notice cited the following violations: failure to report to work with her required department cell phone; failure to safeguard her departmental equipment; issuing fraudulent tickets without proper verification through the Verrus application; and making false statements on citations that a required phone verification had been made. The notice also informed Ms. Milton that additional discipline, including termination, could be imposed following a full investigation of the matter.

On October 17, 2013, DPW issued a notice of termination to Ms. Milton that detailed the findings from its investigation and pre-termination hearing. During the course of the investigation, DPW reviewed all citations issued by Ms. Milton on July 11, 2013, and determined that Ms. Milton issued seven citations stating “no pay slip/no pay by phone” to drivers who had properly paid for their parking using |3the Verrus payment application. At the pre-termination hearing, Ms. Milton admitted that she violated departmental policies by failing to carry her department cell phone and failing to follow proper protocol once she realized she did not have her department cell phone. Ms. Milton then claimed that she had used another PCO’s department cell phone and her own personal cell phone to check the Verrus payment application before issuing all citations for parking meter violations. In response to the finding that she issued seven citations improperly, Ms. Milton suggested that the Verrus application was not functioning correctly or provided incorrect information. In its investigation, however, DPW determined that there were no records or reports of any technical problems with the Verrus application on July 11, 2013. Based on its review of Ms. Milton’s actions on July 11, 2013, DPW found Ms. Milton violated several departmental rules and Civil Service Rule IX, Section 1.1, regarding maintaining the standards of effective service, and concluded that termination was warranted.

Ms. Milton timely appealed her termination by DPW to the Commission. On February 3, 2015, a hearing was held before an appointed Hearing Examiner. Three witnesses, including Ms. Milton, testified at the hearing.

Ms. Petty, a Parking Control Supervisor, testified that she was Ms. Milton’s immediate supervisor at the time of the incident on July 11, 2013. Ms. Petty stated that Ms. Milton’s job as a senior PCO required her to patrol her assigned area and determine whether vehicles were parked illegally based on posted signage and meter payments. For vehicles parked in metered zones, Ms. Petty explained that |4PCOs must follow a certain procedure to verify whether there is a meter violation before issuing a citation. First, a PCO checks whether the meter is expired or whether the pay slip on the dashboard of the vehicle is expired; then, the PCO must access the Verrus application on her department cell phone to check whether a payment had been made for the metered space by phone or internet; if the Verrus application indicates no meter payment, only then can a PCO issue a citation for a meter violation. Ms. Petty testified that all PCOs are issued a department cell phone, to be used exclusively for accessing the Verrus application during shifts, and that Ms. Milton was aware of the DPW procedures requiring the use of the Verrus application to verify parking meter violations.

Regarding the incident involving Ms. Milton on July 11, 2013, Ms. Petty testified that on that day all supervisors were directed to retrieve the department cell phones from their PCOs to inspect whether any unauthorized programs had been downloaded onto the phones. When she requested Ms. Milton turn in her department cell phone, Ms. Petty recalled that Ms. Milton started looking through her belongings for the phone; after a few minutes, Ms. Milton stated that she must have left it in the hotel where the PCOs take breaks. Ms. Petty then told Ms. Milton that they should go back to the hotel to find the department cell phone; as they were leaving the office together, Ms. Milton admitted to Ms. Petty that she left her department cell phone at home and did not have it with her during her shift |Kthat day. Ms. Petty testified that she did not ask Ms. Milton any further questions, and she reported the matter to her supervisor.

Zepporiah Edmonds, the Parking Administrator, testified that she is responsible for investigating any reported violations of departmental policies and procedures, making recommendations to the Parking Director regarding disciplinary action that may be warranted, and imposing any disciplinary action that the Director approves. Regarding the incident on July 11, 2014, Ms. Ed-monds testified that she was informed through the chain of command about Ms. Milton’s infraction that day. She stated that Ms. Milton’s infraction—her failure to carry her department cell phone during her shift—involved a failure to perform her duties properly, failure to safeguard City-owned departmental equipment, and possibly involved fraudulent activity related to entering false information on public documents. Ms. Edmonds stated that the possibility of fraudulent activity stemmed from the fact that PCOs were required to verify meter violations through the Verrus application on their department cell phones and indicate on the issued citation that such verification had been made. Due to the serious nature of Ms. Milton’s infraction, Ms. Edmonds concluded that an emergency thirty-day suspension of Ms. Milton was appropriate, pending a full investigation.

Ms. Edmonds testified that during the course of her investigation into Ms. Milton’s actions, a staff member was assigned to work directly with a Verrus | (¡program manager and review all citations issued by Ms. Milton on July 11, 2013. The review found seven citations issued by Ms. Milton to drivers who had properly paid for parking through the Verrus application. In addition, the Verrus system showed that no license plate/payment verification queries had been made with any department cell phone prior to those citations being issued. Ms. Edmonds also stated that the staff member and the Verrus program manager checked whether the Verrus application experienced any problems or outages on July 11, 2013, and found no indication of any problems. Based on these findings, Ms. Edmonds determined that a pre-ter-mination hearing was necessary to afford Ms. Milton the opportunity to present her side of the case. Ms. Edmonds stated that Ms. Milton testified at the hearing but she did not offer a plausible explanation to counter the findings of the investigation. Specifically, Ms. Edmonds found that Ms. Milton’s claims—that she used a co-worker’s department cell phone and her own personal cell phone to access the Verrus application and that any improperly issued citations were the result of a problem with Verrus—were not supported by the evidence.

After the pre-termination hearing, Ms. Edmonds recommended to the Parking Director that Ms. Milton be terminated. Ms. Edmonds testified that Ms. Milton’s actions on July 11, 2013 impacted the efficient operation of DPW because her actions tarnished the credibility of the parking program, adversely affected citizens who had paid for parking but received improper citations, and caused DPW to devote extra time to review and correct the issues related to those citations.

|7On cross-examination, Ms. Edmonds acknowledged that Ms. Milton had been employed at DPW since 2004 and she was not aware of any other disciplinary action taken against Ms. Milton. Regarding the Verrus application, Ms. Edmonds agreed that it was not a perfect program and, occasionally, DPW experienced operational problems with Verrus. While she acknowledged that a person could use a personal cell phone to check whether a parking payment had been made to Verrus, Ms. Edmonds stated that PCOs were required to use their department cell phones to access the Verrus application, so that a parking payment query could be tracked back to a department cell phone. Ms. Ed-monds testified that she could not be certain whether Ms. Milton had used her personal cell phone to check the Verrus application. However, Ms. Edmonds reiterated that Ms. Milton had issued seven citations to citizens who had in fact paid for parking through the Verrus application and, therefore, Ms. Milton’s actions involved entering false information on citations.

Ms. Milton testified that on July 11, 2013, she did not realize that she did not have her department cell phone until she reported to her patrol area. Ms. Milton stated that she attempted to contact her supervisor to tell her that she did not have her department cell phone, but her supervisor did not answer the radio. She also stated that she could not contact dispatch because it was a street cleaning day and PCOs were told not to call dispatch during street cleaning. Ms. Milton admitted that she proceeded with her shift without her department cell phone and issued thirty-three citations during that shift. She stated that she verified all citations |sthrough the Verrus application by borrowing a fellow PCO’s department cell phone for part of her shift and then using her personal cell phone for the duration. She stated that a personal cell phone could be used in the same manner as the department cell phone to access the Verrus application and check whether a payment had been made by entering either the vehicle license plate or the meter number.

Ms. Milton testified that she did not issue any citations that day without verifying whether a payment had been made through Verrus. She acknowledged that seven of the citations she issued on July 11, 2013, were found to be invalid because parking payments had been made through Verrus. Ms. Milton stated that she had experienced problems with the Verrus application in the past in which citations were incorrect and had to be thrown out when citizens disputed them. Offering possible explanations for the invalid citations, Ms. Milton stated that there can be a time lapse between a payment being made and showing up on the Verrus application; or if a driver moves the vehicle from one meter zone to another then a query of the meter number would not show payment; or sometimes a license plate query just did not show that a payment had been made.

In rebuttal to Ms. Milton’s testimony, DPW recalled their two witnesses. Ms. Petty testified that she carried her department radio with her at all times and she did not receive a radio call from Ms. Milton on the day of the incident. Regarding Ms. Milton’s testimony that she could not contact dispatch, Ms. Petty testified that PCOs were told not to contact dispatch for a tow request during street ^cleaning hours on Tuesdays and Thursdays, but they could report other problems to dispatch at any time. Ms. Edmonds then testified that it was “quite unusual” for a PCO to issue seven invalid citations during a shift, and, given Ms. Milton’s testimony that she only worked for three hours that day, Ms. Edmonds stated that seven invalid citations was “very high,”

After the Commission hearing, the Hearing Examiner prepared a report for the Commission concluding that DPW had established legal cause for its termination of Ms. Milton and recommending that Ms. Milton’s appeal be denied. Subsequently, on February 24, 2016, the Commission issued its decision denying Ms. Milton’s appeal and upholding her termination by DPW.

Ms. Milton now appeals the Commission’s decision.

STANDARD OF REVIEW

An employee who has gained permanent status in the civil service shall not be subjected to disciplinary action by his or her appointing authority except for cause expressed in writing. La. Const. Art. X § 8. An employee also has the right to appeal any disciplinary action imposed by the appointing authority to the Commission. Id. On appeal to the Commission, the appointing authority must establish sufficient, legal cause for the disciplinary action by proving that the employee’s complained-of dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Clark v. Department of Police, 12-1274, pp. 4-5 (La.App. 4 Cir. 2/20/13), 155 So.3d 531, 534, citing Cure v. Department of Police, 07-0166, p.2 jin(La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094. The Commission must decide independently from the facts presented whether the appointing authority had legal cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. Whitaker v. New Orleans Police Dept., 03-0512, p. 2 (La.App. 4 Cir. 9/17/03), 863 So.2d 572, 574, citing Walters v. Department of Police of City of New Orleans, 454 So.2d 106, 113 (La. 1984).

The Commission’s decision is then subject to appellate review on any question of law or fact. La. Const. Art. X § 12. As to the Commission’s findings of fact, the appellate court applies the manifest error standard of review. Adams v. Department of Police, 08-0468, p. 3 (La. App. 4 Cir. 2/12/09), 7 So.3d 763, 765, citing Cure, supra. In reviewing the Commission’s determination as to whether the disciplinary action was based on legal cause and whether the punishment is commensurate with the dereliction, the appellate court should not modify the Commission’s decision unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id; Clark v. Department of Police, 12-1274, p. 5 (La.App. 4 Cir. 2/20/13), 155 So.3d 531, 535, citing Cure, supra. “‘Arbitrary or capricious’ means the absence of a rational basis for the action taken.” Bannister v. Department of Streets, 95-0404, p. 8 (La. 1/16/96), 666 So.2d 641, 647, citing Shields v. City of Shreveport, 579 So.2d 961 (La. 1991).

DISCUSSION

In her appeal of the Commission’s decision, Ms. Milton does not challenge the Commission’s finding that DPW had legal cause for taking disciplinary action. |nIn her sole assignment of error, Ms. Milton argues that the Commission erred in concluding that termination was commensurate punishment for her dereliction. Ms. Milton asserts that termination is an unreasonable and excessive punishment that was based solely on the incident of July 11, 2013 without consideration of her otherwise unblemished nine-year work history at DPW.

While the Commission and this Court both have authority to modify, reverse, or affirm punishment imposed by the appointing authority, neither is charged with the discipline of civil servants. See Clark, 12-1274, p. 4, 155 So.3d at 534; Pope v. New Orleans Police Departmenti 04-1888, pp. 5-6 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4; see also, La. Const. Art. X § 12. “The appointing authority is charged with the operation of its department, and it is within its discretion to. discipline an employee for sufficient cause.” Clark, 12-1274, p. 4, 155 So.3d at 534. “ ‘Cause’ for the dismissal of a person who has gained permanent status in the classified civil service has been interpreted to include conduct prejudicial to the public service in which the employee in question is engaged or detrimental to its efficient operation.” Department of Public Safety and Corrections, Office of State Police v. Mensman, 95-1950, p. 4 (La. 4/8/96), 671 So.2d .319, 321. When there is no dispute that .the employee engaged in conduct prejudicial or detrimental to the efficient operation of the appointing authority, then this Court should not reverse the Commission’s decision affirming the punishment imposed unless the decision is arbitrary or capricious, in that it lacks any rational basis under the circumstances of the case.

| ^Although Ms. Milton does not dispute that DPW had legal cause to take disciplinary action, we note that the Commission’s decision included a thorough discussion of the testimony and evidence upon which it based its determination that the DPW had established legal cause for the disciplinary action taken. The Commission made several factual findings related to Ms, Milton’s misconduct on July 11, 2013, as follows: Ms. Milton admittedly violated DPW policy by failing to have her department cell' phone with her during her shift on July 11, 2013; Ms. Milton did not attempt to contact her supervisor or dispatch to report that she did not have her phone; Ms. Milton issued, all twenty-one meter violation citations (of which seven were found invalid) without verifying whether payment had been made through the Verrus application; Ms. Milton initially tried to mislead her supervisor regarding the whereabouts of her department cell phone and only revealed the truth when forced to do so; no other PCO reported a problem with the Verrus application on July 11, 2013; the Verrus program managers did not find any prtiblems with the system on that date; no department cell phone was used to conduct a Verrus payment query for any license plate associated with the seven invalid citations issued by Ms. Milton; and seven invalid tickets issued by one PCO in a three-hour period is very unusual. In making these findings, the Commission questioned Ms. Milton’s credibility several times, noting her “dubious” explanations for not contacting her supervisor or dispatch, her doubtful claims that she used another PCO’s department cell phone, and her “unbelievable” explanation for the seven invalid tickets. Based on our review of the record, we 11scannot say that these credibility determinations and findings by the Commission are clearly contrary to the evidence. See Pearson v. Department of Police, 09-0725, p. 8 (La. App. 4 Cir. 11/12/09), 26 So.3d 264, 268 (“Unless clearly contrary to the evidence, credibility determinations are within the discretion of the trier of fact and will not be disturbed by the reviewing court.”).

The Commission also discussed how the DPW had satisfied its burden to establish that Ms. Milton’s misconduct impaired the efficiency of the department. The testimony of Ms. Edmonds established that extra work had been devoted to reviewing all citations issued by Ms. Milton on the day of the incident, further work was necessary to rescind those invalid citations, and that Ms. Milton’s misconduct in issuing unverified, invalid citations diminished the reputation and credibility of the parking program. The Commission also found that Ms. Milton’s misconduct adversely impacts the ability of the DPW to successfully implement parking programs by sowing distrust and frustration among citizens. Upon our review of the record, we find no manifest error in the findings that led to the Commission’s determination that DPW satisfied its burden of proving the legal cause for taking disciplinary action against Ms. Milton.

In making the determination that Ms. Milton’s termination was a commensurate disciplinary action for her offense, the Commission first noted that Ms. Milton failed in her primary responsibility as a PCO to faithfully enforce parking regulations, thereby harming those citizens who properly paid for parking and disadvantaging the citizens, businesses, and the City for whom those parking | ordinances are in place to benefit. The Commission then stated that Ms. Milton “compounded her misconduct by lying about it, first to her immediate supervisor, then during her pre-termination meeting and finally to the Hearing Examiner,” Finally, the Commission found that termination was warranted in this case based on Ms. Milton’s dereliction of duties on July 11, 2013, in combination with her deceitful attempts to cover up her infractions.

Upon review, we find the Commission’s decision to uphold Ms. Milton’s termination is rationally based on the facts established in this record. Although DPW did not present evidence of previous disciplinary action taken against Ms. Milton, the record reflects that Ms. Milton’s misconduct involved fraudulent actions on July 11, 2013, and deceitful attempts to excuse and cover up her infractions. While we acknowledge that termination from permanent employment is the most severe form of disciplinary action taken against a civil servant, we cannot say that the Commission’s decision to uphold termination in this case was arbitrary, capricious, or an abuse of discretion.

CONCLUSION

For the foregoing reasons, we affirm the decision of the Commission denying Ms. Milton’s appeal and upholding her termination by DPW.

AFFIRMED

      . During the thirty-day suspension period, DPW extended Ms. Milton’s suspension through October 2013 to allow more time to complete the investigation and conduct the pre-termination hearing,

      . The Verms application allows PCOs to verify meter payments by entering the vehicle’s license plate and the meter location.

      . Ms. Edmonds stated that she received a report from Jerry Conner, the Parking Section Manager at that time, who had been made aware of the situation by Betty Solomon, the Field Operations Supervisor and Ms. Petty’s supervisor. By the date of the hearing, Mr. Conner and Ms. Solomon had retired.


author: Judge Rosemary Ledet

text:
    AN ERNY GIRL, L.L.C. v. BCNO 4 L.L.C. and John Gregory Fox BCNO 4, L.L.C. v. An Erny Girl, L.L.C.
    NO. 2016-CA-1011, NO. 2016-CA-1012
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 30, 2017
    Rehearing Denied April 18, 2017

      David P. Vicknair, Brad P. Scott, SCOTT, SEVIN & VICKNAIR, 3850 N. Causeway Blvd., Suite 1130, Metairie, LA 70002. Ike Spears, SPEARS & SPEARS, 1631 Elysian Fields Avenue, New Orleans, LA 70117 COUNSEL FOR PLAINTIFF/APPELLANT
    Christy L. McMannen, Fred Sherman Boughton, Jr., CHRISTOVICH & KEAR-NEY, LLP, 601 Poydras Street, Suite 2300, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)
   Judge Rosemary Ledet

h This is a commercial lease dispute. The parties are BCNO 4, L.L.C. (“BCNO 4”), the lessor, and An Erny Girl, L.L.C. (“Erny Girl”), the lessee. From the trial court’s judgment denying Erny Girl’s dec-linatory exception of lis pendens and granting the BCNO 4’s petition for possession (eviction action), Erny Girl appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 23, 2013, the parties entered into a commercial lease agreement (the “Lease”). The leased premises were located at 619 Frenchman Street in New Orleans, Louisiana; Erny Girl leased the premises to operate the Frenchmen Art Market there.

On January 28, 2016, Erny Girl filed a Petition for Damages, Declaratory Judgment and Permanent Injunction (the “Declaratory Action”), captioned “An Erny Girl, L.L.C. v. BCNO 4 L.L.C. and John Gregory Fox,” which was allotted to ^Division “C” of the Orleans Parish Civil District Court (“CDC”). In its Declaratory Action, Erny Girl requested, among other things, a declaration that “the Lease is effective and continuing through June 9, 2016, and that the defendant, BCNO [4], is obligated and ordered to cease any and all attempts to improperly terminate the lease and undermine Lessee’s peaceful possession.”

In the Declaratory Action, Erny Girl alleged the following regarding the term of the Lease:

• The Lease had an initial term of February 1, 2013 through January 31, 2014 (Section 2 of the Lease);
• Sometime after January 31, 2014, Erny Girl began discussing a renewal option with BCNO 4; and around June 1, 2014, BCNO 4 and Erny Girl renewed the Lease for an additional year, through June 1, 2015.
• Around February 25, 2015, BCNO 4 began to discuss and negotiate with Erny Girl an additional renewal of the Lease for a third term.
• On June 9, 2015, BCNO 4 and Erny Girl agreed to a renewal option on the Lease, extending the Lease through June 9, 2016.

On the same day it filed the Declaratory Action (January 28, 2016), Erny Girl, by letter, attempted to exercise the renewal option under the Lease and thereby extend the term of the Lease to June 9,2017. The letter stated that Erny Girl was “electing to exercise its renewal option within Section 4 of the Lease, extending the term of the Lease through June 9, 2017.” The renewal clause (Section 4 of the Lease), however, provided that “Tenant shall have the option to renew this lease thirty (30) days before the end of the initial term.” (Emphasis supplied).

lsBy letter dated February 15, 2016, BCNO 4 rejected Erny Girl’s attempted renewal of the Lease, stating:

[Erny Girl’s] attempt to exercise the option to renew is without effect. The lease had an initial term of one year, expiring January 31, 2014 (See Section 2), with an option to renew for an additional one year term expiring January 31, 2015 (See Section 4). Upon expiration of the renewal term on January 31, 2015, the lease converted to month to month term. On January 11, 2016, my client [BCNO 4] sent the lessee written notice of lease termination, effective February 12, 2016.

In its answer to the Declaratory Judgment Action, BCNO 4 asserted that the Lease was validly terminated as of February 12, 2016. BCNO 4 also filed a recon-ventional demand requesting, among other thing, “a declaratory judgment be issued, stating that the Lease expired on February 12, 2016.” Additionally, BCNO 4 gave Erny Girl notice to vacate.

Thereafter, BCNO 4 filed two petitions for possession (eviction actions). Both actions were entitled “BCNO 4, L.L.C. v. An Erny Girlboth actions were filed in the same case number and allotted to CDC Division “J.” The first action, which was filed on April 25, 2016, sought to evict Erny Girl based on its failure to maintain all-risk property insurance as required by the Lease (the “First Eviction Action.”). The second action, which was filed on June 24, 2016, sought to evict Erny Girl based upon its judicial admission in its Declaratory Action that the Lease terminated on June 9, 2016 (the “Second Eviction Action”). Although Erny Girl was served with the Second Eviction Action on July 28, 2016, it failed to file an answer to that action.

|40n July 25, 2016, Erny Girl filed a declinatory exception of lis pendens. On July 29, 2016, Erny Girl filed an unverified answer to the First Eviction Action. The trial court, in Division “J,” set a hearing on the lis pendens exception for August 15, 2016.

In opposing Erny Girl’s lis pendens exception, BCNO 4 suggested that the trial court in Division “ J”—the division in which the eviction actions (the later filed actions) were pending-transfer the eviction actions to Division-“C”—the division in which the Declaratory Action was pending (the earlier filed action). See La. Rules for District Courts, Rule 9.4 (b) (providing that “all subsequent actions asserting the same claim by the same parties ... shall be transferred to the division to which the first case filed was allotted, whether or not the first case is still pending.”). Adopting the suggestion, the trial court in Division “J” transferred the eviction actions to Division “C” on August 1, 2016.

On August 15, 2016, a hearing was held, in Division “C,” on both BCNO 4’s pending eviction action and Erny Giii’s lis pen-dens exception. On August 17, 2016, the trial court rendered judgment overruling Erny Girls’ lis pendens exception and granting BCNO 4’s Second Eviction Action. In its written reasons for judgment, the trial court stated as follows:

I (¡After hearing argument, this Court overruled An Erny Girl, L.L.C.’s Exceptions of Lis Pendens filed in response and opposition to BCNO 4, L.L.C.’s two Petitions for Possession of Premises, finding that lis pendens, La. C.C.P. Art. 531, is inapplicable in this matter. An Erny Girl’s “Petition for Damages, Declaratory Judgment, And Permanent Injunction” seeks a declaration from the Court that the lease is effective through June 9, 2016. BCNO 4, L.L.C.’s second “Petition for Possession of Premises”, filed June 24, 2016, seeks possession of the premises based on the expiration of the lease on June 9, 2016, which An Erny Girl, L.L.C. judicially admitted in their Petition. The Declaratory Judgment action does not assert any right to possession past June 9, 2016. From this judgment, Erny Girl filed a suspensive appeal.

MOTION TO DISMISS

Before addressing the merits of the appeal, we must first address BCNO 4’s motion to dismiss. In its motion to dismiss, BCNO 4 does not argue that Erny Girl I ¡¡filed either its petition for appeal or its appeal bond untimely. Instead, BCNO 4 argues that Erny Girl’s appeal should be dismissed because it failed to comply with the requirements set forth in La. C.C.P. art. 4735 for a suspensive appeal of a judgment of eviction. BCNO 4 argues that Erny Girl’s answer, which was filed on July 29, 2016, was neither made under oath, nor pleaded an affirmative defense entitling Erny Girl to retain possession of the leased premises. Erny Girl counters that BCNO 4’s motion to dismiss fails to acknowledge a stipulation between the parties that was intended to preserve its suspensive appeal rights.

To place Erny Girl’s argument regarding the stipulation in context, we provide a brief review of the procedural history of this case. As noted earlier in this opinion, this case originated as two separately filed actions, which were allotted to two different divisions of CDC. After the eviction actions were transferred to the same division as the Declaratory Action, the trial court in that division held a hearing on BCNO 4’s pending eviction actions and Erny Girl’s lis pendens exception. At that hearing, Erny Girl’s counsel raised an issue regarding service upon Erny Girl of the Second Eviction Action. To resolve the issue, the parties entered into a stipulation, which is reflected by the following colloquy:

THE COURT:
17Okay. Good morning again. Counsel. Have we worked out the issue on service? Correct? Both matters have been served. And I understand you-all are going to stipulate that the answer that you filed will be applied to both actions; is that correct?
MS. McMANNEN [COUNSEL FOR BCNO 4]:
Yes, Your Honor.
MR.VICKNAIR [COUNSEL FOR ERNY GIRL]:
That is correct, Your Honor.

Erny Girl acknowledges that the above colloquy is the sole evidence in the record of the stipulation. For this reason, Erny Girl submits that the record is incomplete for this court to decide whether the stipulation was sufficient to preserve its right to a suspensive appeal. To resolve this issue, Erny Girl requests a limited remand to the trial court for clarification. Erny Girl points out that the trial court judge “was present for all discussions relative to the service problems and concerns to preserve Erny [GirlJ’s suspensive appeal rights between the parties.”

We decline Erny Girl’s invitation for a limited remand. The issue of whether Erny Girl validly filed a suspensive appeal is a legal, not a factual, issue. Regardless of the parties’ stipulation, the requirement of a verified answer is not subject to waiver. While the parties could stipulate the answer to the First Eviction Action would apply to the Second Eviction Action, the parties could not stipulate that the mandatory statutory requirements for perfecting a suspensive appeal, including a verified answer, would be waived. This court has held that “the provisions of [La. C.C.P.] Article 4735 are clear and unambiguous and provide a mandatory condition for the maintenance of a suspensive appeal from a judgment of eviction that the tenant must have filed an answer setting forth an affirmative 18defense verified personally by the tenant’s affidavit.” McMillan v. Chauvin, 281 So.2d 181, 182 (La. App. 4th Cir. 1973); see also Interstate Realty Mgmt. Co. v. Price, 11-1131, p. 9 (La.App. 4 Cir. 3/7/12), 86 So.3d 798, 803 (holding that because the appellants failed to answer the Rule for Possession under oath and sign it personally, the appellants were not entitled to a suspensive appeal). Given Erny Girl’s failure to file a verified answer to either eviction action, we find Erny Girl failed to preserve its right to a suspensive appeal. See La. C.C.P. art. 4785.

Alternatively, Erny Girl contends that the judgment denying the exception of lis pendens, incorporated into the final judgment, is appealable and subject to a suspensive appeal pursuant to La. G.C.P. art. 2121. We disagree. A judgment denying an exception of lis pendens is an interlocutory judgment. National Glass & Glazing, Inc. v. Grimaldi Constr,, Inc., 96-121, p. 13 (La.App. 5 Cir. 7/30/96), 680 So.2d 56, 63. Although the correctness of an interlocutory judgment that is incorporated into a final judgment may be considered on appeal, an interlocutory judgment cannot, on its own, provide a basis for a suspensive appeal. Since we find the eviction portion of the judgment—the only final judgment—failed to satisfy the requirements for a suspensive appeal, the denial of the exception of lis pendens—the interlocutory portion of the judgment— cannot satisfy the requirements for a sus-pensive appeal.

|9Thus, the dismissal of the suspensive appeal relating to the eviction action renders ineffective any suspensive relief with respect to the portion of the trial court’s interlocutory ruling denying the declinato-ry exception of Us pendens. The entirety of Erny Girl’s appeal can be maintained only as a devolutive appeal. For these reasons, we grant the motion to dismiss suspensive appeal, but maintain the appeal as devolu-tive.

DISCUSSION

On appeal, Erny Girl’s sole assignment of error is that the trial court erred in denying its declinatory exception of lis pendens. A trial court’s ruling on a Us pendens exception, pursuant to La. C.C.P. art. 531, presents a question of law; thus, it is reviewed de novo. Parker v. Tulane-Loyola Fed. Credit Union, 15-1362, p. 5 (La.App. 4 Cir. 5/25/16), 193 So.3d 441, 444-45 (citing Glass v. Alton Ochsner Med. Found., 02-0412, p. 3 (La. App. 4 Cir. 11/6/02), 832 So.2d 403, 405; and Krecek v. Dick, 13-0804, pp. 3-4 (La. App. 4 Cir. 2/19/14), 136 So.3d 261, 264); see also 727 Toulouse, L.L.G. v. Bistro at the Maison De Ville, L.L.C., 12-1014, p. 7 (La.App. 4 Cir. 8/21/13), 122 So.3d 1152, 1157. On issues of law, the appellate court’s standard of review is simply whether the trial court’s interpretive decision is legally correct. Glass, 02-412 at p. 3, 832 So.2d at 405; First Bank and Trust v. Simmons, 14-1210, 14-1211, p. 24 (La.App. 4 Cir. 4/22/15), 165 So.3d 1025, 1040.

luA declinatory exception of lis pendens is “[t]he procedure to prevent dual trial of duplicate suits in Louisiana courts.” 22 Catherine Palo, LA. CIV. L. TREATISE, SUMMARY JUDGMENT & RELATED TERMINATION MOTIONS § 2:36 (2016). This type of Us pendens exception is governed by La. C.C.P. art. 531, which provides as follows:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

The doctrines of res judicata and lis pendens are closely related. This relationship is reflected in the fact that when the Louisiana Legislature substantially revised the res judicata statute in 1990, it contemporaneously amended the lis pendens article to conform to those changes. See Comments to La. C.C.P. art. 531 (noting that this article was amended in 1990 “to conform to the changes made in the defense of res judicata by La. Rev. Stat. Ann, §§ 13:4231, 4232.”).

Since the 1990 amendment: to La. C.C.P. art. 531, “the requireinents for establishing Us pendens conform to the requirements of res judicata, and the test for lis pendens is whether a final judgment in the first suit would be res judicata in the subsequently filed suit.” Citizens Sav. Bank v. G & C Development, L.L.C., 12-1034, pp. 6-7 (La.App, 1 Cir. 2/15/13), 113 So.3d 1085, 1089; see also Aisola v. Louisiana Citizens Prop. Ins. Corp., 14-1708, p. 4 (La. 10/14/15), 180 So.3d 266, 269 (quoting United Gen. Title Ins. Co. v. Casey Title, Ltd., 01-600, p. 8 (La.App. 5 Cir. 10/30/01), 800 So.2d 1061, 1065, and citing Domingue v. ABC Corp., 96-1224 (La.App. 4 Cir. 6/26/96), 682 So.2d 246, 248) (holding that “[t]he ‘test’ established to determine if an exception of lis pendens should be sustained is the same as that for res judicata-, thus, an exception of Us pendens should be sustained if a final judgment in the first suit would be res judicata in the subsequently filed suit.’”). As this court has noted, [ejven before the 1990 amendment, this was referred to as a “fair test” for determining Us pendens.” First Bank and Trust, 14-1210, 14-1211 at p. 25, 165 So.3d at 1040—41 (citing 1 Frank L. Maraist and Harry T. Lemmon, LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE § 6.5 (1999)).

The jurisprudence has identified the following three requirements for Us pendens to apply:

1. There must be two or more suits pending;
2. The suits must involve the same transaction or occurrence; and
3. The suits must involve the same parties in the same capacities.

Aisola, 14-1708 at p. 4, 180 So.3d at 269. All three requirements must be met. Id.

Here, the first and third requirements are not disputed—the pendency of two or more suits and the identity of the parties. There are two or more suits concurrently pending—the Second Eviction Action and the Declaratory Actions. The suits are between the same parties in their same capacities—lessor and lessee. The second requirement—the same “transaction or occurrence”—requires further analysis.

hi/The phrase “transaction or occurrence” was first inserted into La. C.C.P. art. 531 by the 1990 amendment to that article, which substituted the phrase “transaction or occurrence” for “cause of action.” Addressing this change, a commentator notes:

The purpose of the change in language was to broaden the scope of the lis pendens doctrine. The phrase “transaction or occurrence” has a much broader meaning than the phrase “cause,of action.” Generally, a “transaction or occurrence” consists of two or more connected acts and/or agreements. A “cause of action,” on the other hand, involves a single theory of recovery or remedy.

1 Steven R. Plotkin and Mary Beth Akin, LA. PRAC. CIV. PROC., Article 531 (2016 ed.).

As this court has noted, “[n]o one test exists for determining what constitutes the same «transaction or occurrence.” Parker, 15-1362 at p. 7, 193 So.3d at 445 (citing Travcal Properties, LLC v. Logan, 10-323, p. 5 (La.App. 3 Cir. 10/6/10), 49 So.3d 466, 470); see Hy-Oc-tane Investments, Ltd. v. G & B Oil Products, 97-28, p. 6 (La.App. 3 Cir. 10/29/97), 702 So.2d 1057, 1060) (addressing extensively the meaning of the phrase “transaction or occurrence”). Ultimately, however, “[w]hat | ^constitutes a transaction or occurrence must be determined on a case-by-case basis.” Parker, 15-1362 at p. 7, 193 So.3d at 446-47 (citing Krecek, 13-0804 at p. 4,136 So.3d at 264).

On appeal, Erny Girl contends that the transaction or occurrence element is met because the two suits are both based on the validity and enforceability of the Lease. According to Erny Girl, its Declaratory Action seeks a determination that the Lease is effective based on the renewal option in Section 4. Similarly, Erny Girl contends that BCNO 4’s latter filed eviction action arises out of BCNO 4’s contrary position that the renewal option was not effective; hence, the Lease was no longer in effect between the parties. Furthermore, Erny Girl contends that if it is successful in obtaining relief in its Declaratory Action (the first-filed suit), BCNO 4 would be. barred by res judicata from evicting Erny Girl because the Lease would still be in effect between the parties.

If, as Erny Girl contends, both the Declaratory Action and the Second Eviction Action are based on an interpretation of the renewal provision of the Lease, the second requirement for granting lis pen-dens would be met. See Revel v. Charamie, 05-0976, pp. 4-5 (La.App. 4 Cir. 2/15/06), 926 So.2d 582, 584-85 (holding that “both actions clearly arise out of the same occurrence, i.e., Ms. Cheramie’s occupation of the property located at 140 Lonnie’s Lane in Venice, Louisiana.”); Spallino v. Monarch Sign Co., 00-447, p. 5 (La.App. 3 Cir. 10/11/00), 771 So.2d 784, 786 (noting that “[a]t the center of both suits instituted by Mr. Spallino is the question of whether or not the lease agreement has been breached.”). Such is not the case here.

The Second Eviction Action, as BCNO 4 contends, is not based on the effectiveness of Erny Girl’s purported renewal of the Lease. Rather, it is based on | i4Erny Girl’s judicial admission in its Declaratory Action that the Lease terminated on June 9, 2016. As BCNO 4 points out, “[t]he thing demanded in the Declaratory Action (a declaration that the Lease was effective until June 9, 2016) is therefore clearly different than the thing demanded in the Second Eviction Action (eviction of Erny Girl based on its admission that the Lease terminated on June 9, 2016).” The Second Eviction Action seeks to adjudicate Erny Girl’s entitlement to possession of the leased premises after June 9, 2016; whereas, the Declaratory Action, on the other hand, seeks to adjudicate Erny Girl s entitlement to possession of the leased premises until June 9, 2016. Thus, there is no overlap in the operative period of time addressed by those two actions. Given the judicial admission, the two actions present two wholly distinct issues.

Erny Girl also contends that the trial court erred by improperly applying pre-1990 amendment lis pendens jurisprudence to deny its exception on the basis that the first-filed suit (the Declaratory Action) is an ordinary proceeding while the second-filed suit (the Second Eviction Suit) is a summary proceeding. In support of this contention, Erny Girl cites Spallino, supra, as involving “the exact facts” as here and as dictating a finding that lis pendens applies here.

Erny Girl’s reliance upon the Spallino case is misplaced. The sole similarity between Spallino and this case, as BCNO 4 points out, is that both involved a lease dispute that was the subject of both an ordinary and a summary proceeding. 11fiUnlike this case, the Spallino case involved the two actions that presented the same issues regarding whether a lease was breached by a sign on the leased property. In Spallino, the parties in both suits were arguing over their obligations under the same lease, for the same property, involving the same sign. According to the Court in Spallino, a final judgment in one suit would have a res judicata impact on a judgment in the other suit. For those reasons, the exception of lis pendens was sustained in Spallino.

In this case, the exception of lis pendens was overruled not because of the difference in the form of the two actions, but because of the difference in the transaction or occurrence at issue. As discussed earlier in this opinion, the Declaratory Action seeks possession of the leased premises until June 9, 2016; whereas, the Second Eviction Action seeks possession of the leased premises after June 9, 2016. Thus, the issues presented in the two actions are separate and distinct. Again, the distinction arises from Erny Girl’s judicial admission.

Relying, in part, on a similar distinction arising from a stipulation, this court in Sauer v. Johnson, 12-0197 (La.App. 4 Cir. 12/13/12), 106 So.3d 724, affirmed a trial court’s decision overruling a lis pendens exception. In Sauer, we found the two pending suits presented separate and distinct issues based, in part, on 11Ba stipulation that the lease had a month-to-month term. In Sauer, the tenant filed a discrimination suit against her landlord, asserting refusal to renew the month-to-month lease and subsequent attempts at eviction were violations of anti-discrimination provisions of the Fair Housing Act, 42 U.S.C. § 3604. Thereafter, the landlord filed an eviction action. In response, the tenant filed a lis pendens exception. The tenant argued that the eviction action should be dismissed because it arose out of the same transaction or occurrence—the landlord’s decision not to renew the tenant’s month-to-month lease. The trial court overruled the Us pendens exception and granted the landlord’s eviction action.

Affirming, this court in Sauer reasoned that “even if [the tenant] Ms. Johnson were to receive judgment in her favor on the issue of discrimination, [the landlord] Ms. Sauer would still be able to evict [the tenant] Ms. Johnson without giving any reason because of the fact that the lease is on a month-to-month basis.” 12-0197, p. 7, 106 So.3d at 728. Given the stipulation that the lease was on a month-to-month basis, we thus found no error in the trial court’s denial of the lis pendens exception given that a final judgment in the first filed discrimination case would not be res judi-cata in the later filed eviction proceeding. Id.

In this case, as in Sauer, a final judgment in the Declaratory Action would not be res judicata in the later filed Second Eviction Action. Again, the two pending actions do not arise out of the same transaction or occurrence. Given the judicial admission, the two actions involve claims to entitlement of possession to the lease premises for separate and distinct operative periods—before and after |17June 9, 2016. The second requirement necessary for granting Us pendens has not been met. See Krecek, 13-0804 at pp. 6-6, 136 So.3d at 265 (finding that second element was not met given the two actions “involve separate and distinct occurrences, and a judgment in either suit would not constitute res judicata in the other.”). We thus find no error in the trial court’s ruling overruling the lis pendens exception.

Frivolous appeal damages

In both its motion to dismiss and its appellee brief, BCNO 4 requests frivolous appeal damages. See La. C.C.P. art. 2164. The proper procedure for an appellee to request frivolous appeal damages is to file either an answer to the appeal or a cross-appeal. Roger A. Stetter, LA. PRAC. CIV. APP. § 11:18 (2016) (“Stettter”) (citing La. C.C.P. art. 2133 and Galle v. Orleans Parish School Bd., 623 So.2d 692 (La. App. 4th Cir. 1993)). “Damages for taking a frivolous appeal cannot be recovered if they are claimed only in a motion to dismiss.” Stetter, § 11:19. Likewise, “[a]n appellee cannot recover damages for taking a frivolous appeal if the damages are first requested in the appel-lee’s brief.” Stettter, § 11:19. “An appel-lee’s brief does not constitute an answer or appeal for purposes of requesting frivolous appeal damages.” Stettter, § 11:19. (citing Sears, Roebuck & Co, v. Appel, 698 So.2d 682 (La. App. 4th Cir. 1992)).

In sum, neither a motion to dismiss nor an appellee brief is a proper procedural method for asserting a frivolous appeal damage claim. Since these were the only two methods in which BCNO 4 asserted a frivolous appeal damage claim, we decline to address it. See Armstrong Airport Concessions v. K-Squared Rest., LLC, 15-0376, pp. 18-19 (La.App. 4 Cir. 10/28/16), 178 So.3d 1094, 1106; Kirby v. Poydras Ctr., LLC, 15-0027, 15-391, p. 13 (La. App. 4 Cir. 9/23/15), 176 So.3d |18 601, 608; Carroll v. Department of Police, 06-0726, p. 5 (La.App. 4 Cir. 11/21/06), 946 So.2d 674, 677; Eckhardt v. Reveley, 04-0288, pp. 4-5 (La.App. 4 Cir. 7/21/04), 881 So.2d 128, 131. Accordingly, BCNO 4’s request for frivolous appeal damages is denied.

DECREE

For the foregoing reasons, the motion to dismiss the suspensive appeal is granted; however, the appeal is maintained as de-volutive. The judgment of the trial court is affirmed.

MOTION TO DISMISS APPEAL GRANTED, SUSPENSIVE APPEAL DISMISSED, AND APPEAL MAINTAINED AS DEVOLUTIVE; AFFIRMED

      . Although the lessor filed two eviction actions, the trial court's reasons for judgment reflect that it granted the lessor’s second one. We thus refer to a single eviction action, meaning the second one.

      . As discussed elsewhere in this opinion, we grant BCNO 4’s motion to dismiss, dismiss Erny Girl's suspensive appeal, and maintain the appeal as devolutive.

      . The hearing on the First Eviction Action was originally set for July 12, 2016; however, it was continued to August 1, 2016. On that date, as noted elsewhere in this opinion, the eviction actions were transferred to the division in which the Declaratory Action was pending.

      . At the commencement of the hearing, BCNO 4’s counsel stated that “our eviction proceeding is not based on insurance coverage [First Eviction Action]. It’s based on the judicial admissions that are in the petition in the underlying suit [Second Eviction Action]. So we don’t intend to address the insurance coverage issue at all this morning,”

      . As discussed elsewhere in this opinion, Erny Girl raised an issue at the hearing regarding service, which was resolved by a stipulation. In its brief to this court, Erny Girl asserts that "[it] had not been served with the Second Eviction Action set for August 15, 2016 with the new rule date. BCNO [4] requested that Erny [Girl] waive service for it. Erny [Girl] consented, but under the belief that the hearing would proceed only based upon the insurance theory raised in the First Eviction Action and was not aware that the Second Eviction Action was proceeding to hearing on that date.” Erny Girl further asserts that its counsel "specifically communicated to [the trial judge and counsel for BCNO 4] that he would move forward on the eviction that day and waive service if appellant’s suspensive appeal rights were preserved.”

      .Addressing the Second Eviction Action, the trial court further stated in its reasons for the judgment the following:
      The Court heard testimony from Brittany Thompson on behalf of BCNO 4, L.L.C. and from Katherine Gaar on behalf of An Erny Girl, L.L.C. and received documents into evidence.
      Section 2 of the lease executed between the parties provides an initial lease term expiring on January 31, 2014. Section 4 of the lease allows the tenant an option to renew the lease 30 days before the end of the initial term. Correspondence from counsel for BCNO [4] to counsel for An Erny Girl, dated February 15, 2016, advises that "upon expiration of the renewal term on January 31, 2015, the lease converted to month to month term.”
      There is no evidence that any further options to renew either existed or were [sic] timely exercised by An Erny Girl, and therefore after January 31, 2015, the lease converted to a month to month lease. The Court finds that An Erny Girl’s untimely attempt to exercise a renewal option, extending the term of the lease through June 9, 2017, is without effect. Other than the vague and uncertain testimony of Mr. Gaar relative to a conversation with Mr. Fox of BCNO [4], there is no evidence that the lease ever extended beyond January 31, 2015.
      On January 28, 2016, An Erny Girl, L.L.C. filed a Petition for Damages, Declaratory Judgment and Permanent Injunction ■judicially admitting and seeking a declaration by the Court that the lease terminates on June 9, 2016. Without admitting that the lease terminated on June 9, 2016, BCNO [4] accepted the judicial admission of An Erny Girl, sent a notice to vacate, and now seeks possession of the premises based on the June 9, 2016 termination.
      The Court finds that BCNO 4, L.L.C. is entitled to possession of the premises located at 618 Frenchmen Street, New Orleans, Louisiana, and judgment of eviction shall be rendered accordingly.

      . On August 18, 2016, Erny Girl filed a petition for suspensive appeal from the trial court’s August 17, 2016 judgment. On the same date, the trial court granted the petition for appeal and ordered that Erny Girl post a $10,000 suspensive appeal bond. Erny Girl posted the bond, and the appeal was lodged with this court.

      . La. C.C.P. art. 4735, which provides as follows:
      An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.

      . See Phillips v. Gibbs, 10-0175, p. 4 (La.App. 4 Cir. 5/21/10), 39 So.3d 795, 798 (citing People of Living God v. Chantilly Corp., 251 La. 943, 207 So.2d 752 (1968)) (noting that the correctness of an interlocutory ruling can be considered in conjunction with the appeal of a final judgment).

      . Erny Girl frames the issue as whether “[t]he trial court erred in its Judgment of August 17, 2016, in denying plaintiff-appellant An Erny Girl's Declinatory Exception of Lis Pendens based on the plaintiff-appellant’s previously filed Petition for Damages, Declaratory Judgment, And Permanent Injunction in Orleans Parish Civil District Court, which concerns the same transaction or occurrence, and is between the same parties in the same capacities.” '

      . See Brown v. A.J. Barcia’s Heating & Air Conditioning, Inc., 94-2539, p. 4, n. 2 (La. App. 4 Cir. 6/29/95), 657 So.2d 762, 764 (noting that ”1990 La. Acts No. 521 (effective January 1, 1991) amended La. R.S. ,13:4231 (res judicata) as well as La. C.C.P, art, 531 (lis pendens) to reflect similar changes.”).

      . The fact there is an additional defendant in the Declaratory Action does not dictate a different result. See First Bank and Trust, 14-1210, 14-1211 at p. 29, n. 40, 165 So.3d at 1043 (noting that ”[t]he failure to name Mr. Canizaro in the second suit does not defeat the exception of lis pendens as to the common parties to both suits.”).

      . Before the 1990 amendment, La. C.C.P. art. 531 read as follows: ‘‘[w]hen [i] two or more suits are pending in a Louisiana court or courts [ii] on the same cause of action, [iii] between the same parties in the same capacities, and [iv] having the same object, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925," The 1990 amendment removed not only the same cause of action requirement, but also the same object requirement. See' United Gen. Title Ins. Co. v. Casey Title, Ltd., 01-600, pp. 8-9 (La.App. 5 Cir. 10/30/01), 800 So.2d 1061, 1066 (noting that “the 1990 amendment of the article removed the 'same object' requirement, simply requiring that the suits arise out of the same transaction or occurrence. The fact that different types of relief are requested does not always exclude consideration of the exception of lis pendens when those suits involve the same issues” and citing Spallino v. Monarch Sign Co., 00-447, p. 8 La.App. 3 Cir. 10/11/00, 771 So.2d 784, 788).

      . See also Comments to La. R.S. § 13:4231 (noting that "[t]he central inquiry is not whether the second action is based on the same cause or cause of action (a concept which is difficult to define) but whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action.”).

      . Indeed, as noted elsewhere, BCNO 4 maintains its position that the Lease terminated on an earlier date, February 12, 2016.

      . In Spallino, the appellate court rejected the landlord’s argument that a lis pendens exception was not applicable to a summary eviction proceeding filed after an ordinary suit. The appellate court noted that "[t]he critical point expressed in [the landlord's] argument is that the two types of suits are not subject to a claim of lis pendens because they have different objects, in that one suit seeks to obtain ownership and the other seeks an eviction.” Spallino, 00-447 at p. 7, 771 So.2d at 788. Rejecting this argument, the appellate court noted that the requirement of identity of the objects of suits was expressly repealed by the 1990 amendment to the lis pendens article. Id. The appellate court thus held that "the fact that different types of relief are requested does not always exclude consideration of the exception of lis pendens when those suits involve the same issues.” Spallino, 00-447 at p. 8, 771 So.2d at 788.

      .The issues were "whether the sign interferes with the construction of the proposed jewelry store and, if so, then to interpret the terms of the lease agreement and determine whether Monarch is obligated to remove the sign or merely relocate the sign on another part of the properly.” Spallino, 00-447 at p. 5, 771 So.2d at 786.

      . See Irsch v. Argonaut Great Cent. Ins. Co., 02-988, p. 11 (La.App. 5 Cir. 1/28/03), 841 So.2d 831, 838 (noting that "[a] stipulation has the effect of a judicial admission or confession”).

      . We noted that "[t]he parties stipulated that the initial term of the lease between them expired on March 31, 2011, and after that date, the lease provided for an automatic renewal on a month-to-month basis only." Sauer, 12-0197, p. 7, 106 So.3d at 728.