text:
    Andrew MESSINA, Jr. v. ST. CHARLES PARISH COUNCIL.
    No. 03-CA-644.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      John A. Venezia, Metairie, LA, Aaron F. Broussard, Kenner, LA, David C. Clement, Clement & Gates, New Orleans, LA, for Appellants.
    Irwin Fritchie Urquhart & Moore, LLC, Gus A. Fritchie, III, Alan Dabdoub, New Orleans, LA, for Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. MeMANUS.
   | JAMES L. CANNELLA, Judge.

This is an appeal by the Plaintiffs, Andrew Messina, Jr. (Messina) and D & G Productions, Inc. (D & G), from a summary judgment denying an outdoor liquor permit by the Defendant, the Parish of St. Charles (the Parish). We affirm.

In April of 1994, D & G, through its President and owner, Messina, leased a building at 20 Avenue of the Oaks, Destre-han, Louisiana for the purpose of operating a wedding reception hall and restaurant. The building is 3,000-4,000 square feet, with a maximum capacity of 75 people and is located within 500 feet of a residential neighborhood. The Plaintiffs operated the business in the name of Messina’s Oak Plantation (Messina’s) for three years. The reception business steadily grew and the bookings increased to multiple events on the weekends and large parties. To accommodate the larger parties, the Plaintiffs erected large tents on the grounds outside the building to accommodate up to 250 people. Liquor was served outdoors and musicians played in an outside tent. In 1996, Huey Long (Long), a neighbor, complained of noise from a diesel operated truck which was hired to provide air-conditioning to the outside tents. The Plaintiffs I,-¡subsequently purchased air-condition units to replace the truck. However, as the events and the number of guests increased, the noise from the outside music increased. Long and other residents of the area nearby complained. Messina usually stopped the music if it was after 10:00 p.m. Eventually, the residents located near the facility signed a petition for the Parish to take some action to curtail the noise from the music.

The issue was considered by the Parish council on August 5, 1997 in a public hearing. A recommendation was made to amend the Code of Ordinances, Section 3-6, which regulates the permitting process for the sale and consumption of alcoholic beverages outdoors. At the time, the ordinance exempted restaurants from its provisions. The amendment would remove the exemption and provide for a procedure to appeal to the council if a permit application was denied. Several residents near the Plaintiffs’ business spoke in favor of the ordinance, contending that the noise and vibrations emanating from the bands playing for the outside wedding receptions was so bad that it seriously impeded conversations and shook the houses. During the discussion, it was noted that alcohol consumption causes raised voices, causing the music in turn to be played louder. Thus, regulation of the sales and consumption of alcoholic beverages would be a way to control the noise. The Parish council members acknowledged that a specific noise ordinance was more difficult to draft because of freedom of speech and law enforcement concerns.

Following the meeting, the Parish council passed an amended ordinance which required the Plaintiffs to apply to the Director of Planning and Zoning for a non-fee, one-time permit. The Plaintiffs continued to operate the business for [4four months without applying for it, although they were warned to comply. The Plaintiffs finally submitted the application in December of 1997, after the Sheriff shut down the business for providing alcoholic beverages outdoors without a permit. The permit was denied by the Director of Planning and Zoning and was then forwarded to the Parish council for consideration. A hearing was held on January 5, 1998, during which five residents affected by the permit spoke against granting the permit and one person spoke in favor. Two of the residents contended that the loudness of the music was directly related to the consumption of alcoholic beverages because the more people drink, the louder they speak and the louder the music is played to compensate. Messina also spoke at the council meeting, arguing that he purchased the property in 1994 for the purpose of operating a wedding reception business. Since the land outside of the restaurant is visually appealing and the building was too small to hold large receptions inside, he set about making the outside suitable for large receptions. Messina said that he purchased large tents, built a deck, and put lights in the trees. He noted that he cannot operate profitably using just the inside of the building because of its small size. He disagreed that the alcohol ordinance would solve the noise problem and was upset that the ordinance was passed without first holding a meeting with the neighbors. Messina argued that the council could not use an alcohol ordinance to deny his permit because of noise when the object of the ordinance is to regulate alcohol, and there was no showing that the two were related. The Parish council tabled the matter to permit Messina and the neighbors to have a town meeting to attempt to resolve the problem. According to the petition, the meeting was not held and on February 2, 1998, the Parish council denied the permit.

| sOn appeal, the Plaintiffs contend that the trial judge erred in granting the summary judgment because there are material issues of fact in dispute and because the Defendant is not entitled to a judgment as a matter of law. The Plaintiffs further assert that they were denied their constitutional rights of due process of law and equal protection and were deprived of property without just compensation

PROCEDURAL DUE PROCESS OF LAW

The Fifth and Fourteenth Amendments of the U.S. Constitution and La. Constart. 1, § 2 provide that no person shall be deprived of life, liberty or property without due process of law. “Procedural due process imposes constraints on governmental decisions which deprive individuals of property interests within the meaning of the Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Martin v. Rush’s Fabricare Center, Inc., 590 So.2d 707, 709 (La.App. 3rd Cir.1991). Thus, in any due. process claim involving the loss of property, the claimant must show the existence of a property interest that has been adversely affected by state action. Martin, 590 So.2d at 709. Further, affected persons have the right to be heard and in order that they may enjoy that right, they must first be notified. Jackson Court Condominiums, Inc. v. New Orleans, 874 F.2d 1070 (5th Cir.1989); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). However, when a governmental action is characterized as legislative, procedural due process requirements do not apply. Jackson, 874 F.2d at 1074. Zoning decisions by city councils are characterized as legislative or quasi-legislative, thereby negating procedural due process claims. Id.; South Gwinnett v. Pruitt, 491 F.2d 5, 7 (5th Cir.) (en banc), cert. denied, 419 U.S. 837, 95 S.Ct. 66, 42 L.Ed.2d 64 (1974).

|fiIn this case, the Plaintiffs argue that they were denied procedural due process because the ordinance was amended without notice to them. However, the Plaintiffs have no claim for procedural due process since the Parish council is a quasi-legislative body. Even so, the ordinance was discussed in a public hearing in which any interested party could participate, Messina knew about the ordinance after it was passed, yet waited four months to apply for the permit, and he participated in the discussion at the council meeting held in January of 1998 to determine whether he would receive a permit.

SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION

The Plaintiffs argue that the Parish council’s act of passing the ordinance and subsequently denying a permit to Messi-na’s affected a vested right and forced the closure of the business. He explains that the building only holds 75 people and it would have been unprofitable to operate a wedding reception/party business in such a small area. He further stated that no one would book the facility without outdoor access to alcoholic beverages. The Plaintiffs also contend that the Parish council passed the ordinance solely to affect Messina’s and there was no showing that any other restaurant would be affected, and that it was passed as a unconstitutional pretext to regulate noise.

Substantive due process rights are balanced against the police power of a governing authority to protect the health, safety, morals and general welfare of the people. State v. Edwards, 00-1246, 14, (La.6/1/01), 787 So.2d 981, 992. Governments have an inherent need “to protect the safety and welfare of their citizens from the unrestrained liberty of some individuals.” Nowak, Constitutional Law 389 (1978), citing Corwin, Liberty Against Government 72 (1948); Edwards, 00-1246 at 15, 787 So.2d at 992.

In Med. Exp. Ambulance Service, Inc. v. Evangeline Parish Police Jury, 96-0543, p. 7-8 (La.11/25/96), 684 So.2d 359, 365, the Court analyzed the equal protection and due process provisions of the federal and state constitutions in the context of a local ordinance. The Court stated:

Under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, in areas of social and economic policy, a statutory classification which does not proceed along suspect (FN10) or semi-suspect lines, (FN11) nor infringe on fundamental rights, (FN12) need only be rationally related to a legitimate governmental interest. City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). Similarly, the crux of the Due Process Clause of the Fourteenth Amendment, is protection from arbitrary and unreasonable action and when the ordinance or statute does not affect fundamental rights, but rather is merely economic or social regulation, it need only have a rational relationship to a legitimate governmental interest. Id.

The Court distinguished between the federal constitution and the rights guaranteed under the Louisiana State constitution, stating that “The rights guaranteed under our state constitution are not always synonymous with federal constitutional rights,” citing Crier v. Whitecloud, 496 So.2d 305 (La.1986) and Sibley v. Bd. of Supervisors of Louisiana State University, 477 So.2d 1094 (La.1985). In Sibley, the Louisiana Supreme Court rejected the three-tiered federal system standard of equal protection review for interpreting and applying the equal protection clause of our state constitution found in Article I, § 3. The Court shifted the focus from determining under which category a particular case falls (strict, intermediate, or minimum scrutiny), which then all but decided the case, to that of conducting an independent review of the specific merits of the individual |scase which necessarily entails a balancing or comparative evaluation of governmental and individual interests. Sibley, 477 So.2d at 1107; PANO v. City of New Orleans, 94-1078, p. 16 (La.1/17/95), 649 So.2d 951, 963. The Court stated that La. Const. Art. I, § 3,

“commands the courts to decline enforcement of a legislative classification of individuals in three different situations: (1) When the law classifies individuals by race or religious beliefs, it shall be repudiated completely; (2) When the statute classifies persons on the basis of birth, age, sex, culture, physical condition, or political ideas or affiliations, its enforcement shall be refused unless the state or other advocate of the classification shows that the classification has a reasonable basis; (3) When the law classifies individuals on any other basis, it shall be rejected whenever a member of a disadvantaged class shows that it does not suitably further any appropriate state interest.

Sibley, 477 So.2d at 1107-08.

“Under the third level of scrutiny, the law creating the classification is presumed constitutional and the party challenging the constitutionality of the law has the burden of proving it unconstitutional.” Med. Exp. Ambulance Service, Inc., 96-0543 at 10, 684 So.2d at 367.

In this case, the ordinance is not based on any classification enumerated in Article I, § 3, nor does it involve a suspect or semi-suspect class. Thus, the ordinance must be upheld unless the Plaintiff can show that it does not further an appropriate governmental interest under the state constitution, or that is not rationally related to a legitimate governmental interest, as required by the federal constitution. The Plaintiffs have produced no evidence to meet this burden, so the ordinance is presumed constitutional. The health, safety, and welfare of citizens are appropriate government interests, and alcohol regulations are directly related to the health, safety and welfare of the citizens.

The Parish council has the authority under law to enact ordinances to curtail noise or the unruly behavior associated with alcohol consumption in a specific 19location. See: West Central Louisiana Entertainment, Inc. v. City of Leesville, 594 So.2d 973 (La.App. 3rd Cir.1992); Callaghan v. Congemi, 1995 WL 354844 (E.D.La.1995). Municipal or parochial regulation of intoxicating beverages may be more stringent or restrictive than state law regulations if “appropriate to the necessities of the locality and that it is not in itself unreasonable.” City of Lafayette v. Elias, 232 La. 700, 95 So.2d 281, 284 (1957). Vonderhaar v. Parish of St. Tammany, 633 So.2d 217, 221 (La.App. 1st Cir.1993). If a rational basis can be found for the ordinance, the motive behind its passage is not subject to review as to whether the purpose of the statute can actually be fulfilled. FCC v. Beach Communications, Inc., 508 U.S. 307, 113 S.Ct. 2096, 2102, 124 L.Ed.2d 211 (1993), on remand, 10 F.3d 811 (D.C.Cir. 1993).

In this case, the Plaintiff has no fundamental right to serve alcoholic beverages. Although the denial of the permit affects the scope of his business, the ordinance does not affect his right to conduct either a restaurant business or a reception business. His right to provide alcoholic beverages inside was not revoked by the ordinance. The ordinance is merely economic or social regulation. Thus, it need only have a rational relationship to a legitimate governmental interest. Here, the restriction on alcohol outdoors has a rational relationship to a legitimate governmental interest, which is to regulate noise nuisance. Based on comments made in the Parish council meetings, the Parish council concluded that removing the exemption for restaurants was the best way to regulate the noise caused by loud music at outside parties. We find that this is not an unreasonable approach to the problem. Since the ordinance does not affect a fundamental right, does not constitute arbitrary and unreasonable action, and is rationally related to a legitimate government interest, it does not violate the federal or the state’s due Improcess protections. For the same reasons, we find that the denial of the permit was not an unlawful taking without just compensation.

SUMMARY JUDGMENT

A summary judgment is reviewed by the appellate courts de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750; Garrison v. Tanenbaum, 02-1181, p. 4 (La.App. 5th Cir.4/8/03), 846 So.2d 40, 42. The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of most actions. La.C.C.P. art. 966(A)(2); Garrison, 02-1181 at 4, 846 So.2d at 42.

The burden of proof is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the trial court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the trial court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Garrison, 02-1181 at 5, 846 So.2d at 43. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.; La. C.C. P. art. 966(C)(2). After the motion for summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Garrison, 02-1181 at 5, 846 So.2d at 43.

We find that the summary judgment was properly granted by the trial judge. We have determined that the trial judge did not err in finding that the Defendant [ndid not violate any constitutional rights of the Plaintiffs. Thus, there are no material issues of disputed fact left to be resolved that would affect the outcome of the case and the Parish is entitled to a judgment as a matter of law.

Accordingly, the judgment of the trial court is hereby affirmed. Costs of the appeal are to be paid by the Plaintiffs.

AFFIRMED.

      . After the application is received, the Director posts the notice of the application for 5 days. If no negative commentary is received, the permit may be granted. If there is negative commentary, or the Director denies the application without negative comment, the application is forwarded to the Parish council for consideration.

      . "Laws drawing lines along suspect classifications are subject to strict scrutiny and must be necessary to achieve a compelling state interest." Med Exp. Ambulance Service, Inc., 684 So.2d 365 at FN 10. "Laws drawing lines along semi-suspect classifications are subject to intermediate scrutiny and must substantially further an important state interest.” Id. at FN 11. "Like laws drawn along suspect lines, laws impinging on fundamental rights are subject to strict scrutiny.” Id. at FN 12.

      . Article I, § 3 provides in pertinent part:
      No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition or political ideas or affiliations....

      . Manuel v. Louisiana, 95-2189, p. 5 (La.7/2/96), 677 So.2d 116, 120.

      . We note that the property in question was initially built as a law office and later opened as a bar and restaurant. The houses surrounding the building were in existence before the building was built. The Plaintiffs furthermore did not have a vested right to an outdoor alcohol permit.


source: Caselaw Access Project

author: I,SOL GOTHARD, Judge.

license: Public Domain

text:
    ADVANTA BANK CORPORATION v. FIRST MOUNT ZION BAPTIST CHURCH.
    No. 03-CA-732.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Willie M. Zanders, Sr., New Orleans, LA, for Defendant/Appellant.
    Lawrence R. Anderson, Jr. Seale, Smith, Zuber & Barnette, Baton Rouge, LA, for PlaintifiyAppellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   I,SOL GOTHARD, Judge.

Defendant, First Mount Zion Baptist Church (hereinafter “the Church”), appeals from a judgment denying its petition for Nullity of Judgment. For the reasons that follow, we affirm the decision of the trial court.

On September 5, 2001, plaintiff Advanta Bank Corporation (hereinafter “Advanta”) filed a petition against defendants, alleging that it was the owner, lessor and assignee of musical equipment which it had leased to defendants, Toris Young and the Church, and that defendants agreed to pay rental payments sixty months, as well as interest on any delinquent payments. The petition further averred that the lease contained an acceleration clause in the event of default, and that defendants, jointly, severally and in solido, agreed to guaranty all payments and other obligations of the Church.

Defendants failed to answer the petition and on October 18, 2001, Advanta filed for preliminary default. After a hearing, the trial court rendered judgment on January 10, 2002 in favor of Advanta, confirming the default and awarding $15,052.07 plus legal interest, and attorney fees of 20% plus costs. The defendants did not appeal from this judgment.

On March 16, 2002, the Church filed a petition for nullity alleging that the default judgment obtained against it was null because its directors had not received [..¡notice of the lawsuit, and because its directors had not authorized Young, at that time its pastor, to enter into the lease agreement. It further alleged that the equipment leased was delivered to New Faith Baptist Church in New Orleans, without its consent, and that the equipment had never been placed in the Church, which is located in Buras, Louisiana.

On January 23, 2003, the trial court rendered judgment denying the Church’s petition for nullity. The Church filed this appeal.

In this appeal, the Church argues that the trial court erred or was clearly wrong in denying its petition for nullity “given the unique facts in this case.” The Church argues that the default judgment deprived the Church and its members of their legal rights and that enforcement of the judgment would be unconscionable.

An action to annul may be brought for either vices of form or substance. La. C.C.P. art. 2001; Lizama v. Williams, 99-1040 (La.App. 5 Cir. 3/22/00), 759 So.2d 865, 868; Hollander v. Wandell, 97-556 (La.App. 5th Cir.11/12/97), 703 So.2d 742.

Actions for nullity are governed by Louisiana Code of Civil Procedure Articles 2001 through 2006.

La. C.C.P. Art. 2002 states in pertinent part that:

A final judgment shall be annulled if it is rendered:
Against an incompetent person not represented as required by law.
Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.
By a court which does not have jurisdiction over the subject matter of the suit.

La. C.C.P. Art. 2004 states in pertinent part:

A final judgment obtained by fraud or ill practices may be annulled.

In Breaux v. City of New Orleans, 99-1188 (La.App. 4 Cir. 2/16/00), 753 So.2d 333, 335, the court said:

An action for nullity of judgment is available only if the judgment is subject to vices of form or substance listed in the Louisiana Code of Civil Procedure. State v. One 1990 GMC Sierra Classic Truck, VIN No. 1 GTCS142XL25052929, 94-0639 (La.App. 4 Cir. 11/30/94), 646 So.2d 492, 496, writ denied, 94-3171 (La.2/17/95), 650 So.2d 254; State v. Likens, 577 So.2d 285 (La.App. 3 Cir.1991), writ denied 580 So.2d 386 (La.1991). Accordingly, a final judgment may be annulled for a vice of form, as defined in Louisiana Code of Civil Procedure Article 2002, or because it was obtained by fraud or ill practices (vice of substance) under La. C. Civ. Pro. Art.2004.

In the case before us, there are no grounds for an action in nullity.

Pursuant to La. C.C.P. art. 2002, a judgment is absolutely null for failure of a defendant to receive notice of the suit; where there is a failure to serve the defendant with citation and a certified copy of the petition. Blue, Williams & Buckley v. Brian Investments, Ltd., 96-1451 (La.App. 1st Cir.6/20/97), 706 So.2d 999, writ denied, 97-2192 (La.11/21/97), 703 So.2d 1311. The record in this case shows that the Church was served on September 24, 2001, through personal service on Joseph Powell, Jr. On the date of service, Powell was a registered agent for service of process for the Church with the Secretary of State.

The Church argued that Powell failed to notify it of the pending suit. It further argued that it was the responsibility of Toris Young, as pastor, to change the designated agent, and that Young failed to do so. However, the Church’s suit was filed approximately eight months after Young left the church, and during that time the Church likewise failed to designate the new pastor as the registered agent for service of process.

Advanta followed the proper procedural guidelines in serving Powell with the petition. Accordingly, there are no grounds to declare the judgment an absolute nullity under La. C.C.P. art. 2002.

| ^According to La. C.C.P. art. 2004, any final judgment obtained by fraud or ill practices may be annulled. There are two criteria used to determine whether a particular judgment has been obtained by actionable fraud or ill practices: (1) when the circumstances show the deprivation of legal rights of the litigant who seeks relief, and (2) when the enforcement of the judgment would be unconscionable and inequitable. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983). Conduct that prevents an opposing party from having an opportunity to appear or to assert a defense constitutes a deprivation of the party’s legal rights. Id. A party seeking an annulment must demonstrate how he was prevented or excused from asserting any defenses he may have had, i.e., that he was deprived of the knowledge of the existence of the defense relied upon or the opportunity to present the defense by some fraud or ill practice on the part of the opposing party. Andrus v. Chrysler Financial Corp., 99-105 (La.App. 3 Cir. 6/2/99), 741 So.2d 780, 784, writ denied, 1999-1968 (La.10/15/99), 748 So.2d 1150.

In this case, the Church argues that the enforcement of the judgment would be unconscionable or inequitable, but does not point to any fraud or ill practice on the part of Advanta which deprived it of the opportunity to prevent a defense. Accordingly, the Church did not prove that it was entitled to a judgment of nullity pursuant to La. C.C.P. art. 2004.

Finally, the Church argues that Young did not have the authority to enter into the lease on the Church’s behalf, and thus the default judgment was wrongfully granted. However, the action for nullity based on fraud or ill practices is not intended as a substitute for an appeal or as a second chance to prove a claim which was previously denied for failure of proof. The purpose of a nullity action is to prevent injustice which cannot be corrected through new trials and appeals. Russland Enterprises, Inc. v. City of Gretna, 98-676 (La.App. 5 Cir. 1/26/99), 727 So.2d 1223, 1228-9; writ denied, 1999-0980 (La.5/28/99), 743 So.2d 669; Gladstone v. American Auto. Ass’n, Inc., 419 So.2d 1219, 1222 (La.1982). The proper procedure to remedy a failure of proof is through a motion for a new trial and/or an appeal. Russland Enterprises, Inc., supra; Clulee v. Louisiana Materials Co., Inc., 590 So.2d 780, 784 (La.App. 5 Cir. 1991), writ denied, 594 So.2d 1323 (La.1992). In this case, the trial court correctly found that “the authority of Young was question of fact to be presented by a defense on the merits of the case.”

For the above discussed reasons, the decision of the trial court denying the petition for nullity filed by First Mount Zion Baptist Church is affirmed. All costs are assessed against appellants.

AFFIRMED.


author: I «WALTER J. ROTHSCHILD, Judge. LDALEY, J.,

text:
    Susan Marie HUNT v. Samuel J. RAGUSA, Jr.
    No. 03-CA-830.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Howard B. Kaplan, Bernard, Cassisa, Elliot & Davis, Metairie, LA, for Plaintiff-Appellant, Susan Marie Hunt.
    Ronald J. Vega, D’Aquila, Volk, Mullins & Contreras, Kenner, LA, for Defendant-Appellee, Samuel J. Ragusa, Jr.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   I «WALTER J. ROTHSCHILD, Judge.

This is an appeal from a trial court judgment granting defendant’s exception of prescription. For the following reasons, we affirm.

On January 31, 2002. Susan Hunt filed the instant petition for damages against Samuel J. Ragusa, Jr. for redhibition of a home she purchased from defendant in 1992. In her petition, Hunt alleged that prior to her purchase of the home, defendant informed her that the house was on pilings and that she subsequently discovered that it was not. Plaintiff alleged that defendant knew or should have known that the house was not built on pilings and that he intentionally misrepresented this fact to her. Ragusa responded to the petition with an exception of vagueness or ambiguity, and plaintiff amended her petition to state that she attempted to sell the home to a third party in August of 2001, but was unable to do so because an inspection revealed the house was leaning because it was not built on pilings.

Thereafter, Ragusa brought an exception of prescription on the basis of La. C.C. art. 2534 which provides that in an action for redhibition against a seller who did not know of the existence of the defect, the prescriptive | ¡¡period is one year. Plaintiff opposed this exception, and argued that the prescriptive period for an action in redhibition is ten years from the time of the act of sale as it is a personal action governed by La. C.C. art. 3499.

Following a hearing in which counsel for both parties argued the issue of prescription, the trial court took the matter under advisement. On February 10, 2003, the trial court rendered judgment granting defendant’s exception of prescription and dismissing plaintiffs petition. It is from this judgment that plaintiff now appeals.

By this appeal, Hunt contends that the trial court erred in granting the exception of prescription where no evidence was offered on the issue of Ragusa’s knowledge of the defect and Ragusa failed to meet his burden of proving the claim had prescribed. Further, Hunt contends that her petition is not prescribed on its face.

Louisiana’s prescriptive period for actions in redhibition are provided by Civil Code Articles 2534 and 2546. La. C.C. art. 2534 provides in pertinent part:

“The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale. This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.”

La. C.C. art. 2546 applies to the situation where the seller is in bad faith and provides:

“In this case, the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice. This discovery is not to be presumed; it must be proved by the seller.”

14According to these articles, the prescriptive period for plaintiffs claim against Ragusa is one year from the act of sale, or if Ragusa is found to be in bad faith, one year from the plaintiffs discovery of the defect. These prescription statutes are strictly construed against prescription in favor of the obligation sought to be extinguished by it. Bouterie v. Crane, 616 So.2d 657 (La.1993). Nevertheless, when a petition reveals on its face that prescription has run, the plaintiff has the burden of showing why the claim has not prescribed. Bouterie v. Crane, supra.

Thus, the first issue presented for our review is whether the petition has prescribed on its face. The sale of the property giving rise to plaintiffs cause of action in this case occurred in 1992. Plaintiffs petition asserting a cause of action in red-hibition was not filed until 2002 based on her allegations that she discovered the problem in 2001. Plaintiff further contends that based on her allegations that defendant was in bad faith, the petition has not prescribed on its face and defendant bore the burden of proving the claim had prescribed. However, based on applicable jurisprudence, we find no merit in this argument.

The Louisiana Supreme Court case of Gustin v. Shows, 377 So.2d 1325, 1329 (La.App. 1 Cir.1979) is instructive. In that case, the court found that a purchaser’s action for redhibition prescribed on the face of the petition because a year passed between the date of the sale and the filing of the action. The court further held that plaintiffs had the burden of proving the defendant was in bad faith before the rules of La. C.C. art. 2546 apply. The holding in Gustin was followed in Insurance Storage Pool v. Parish National Bank, 97-2757 (La.App. 1 Cir. 5/14/99), 732 So.2d 815, 820, wherein the court stated, “plaintiffs cannot sit back and rely on the 1 ^allegations of their petition, but must set forth evidence on the trial of the exception showing that the [defendant] was in bad faith.” The First Circuit in that case concluded that plaintiffs failed to prove the applicability of La. C.C. art. 2546 by introducing evidence of bad faith, and that the prescriptive period is one year from the date of sale as set forth in La. C.C. art. 2534. See also, Dolese v. Harvey, 94-1763 (La.App. 4 Cir. 1/19/95), 649 So.2d 100, 102.

La. C.C.P. art. 931 provides that at the trial of an exception of prescription, evidence may be introduced to support or controvert the exception where the grounds are not contained in the petition. In the present case, plaintiff failed to introduce any evidence at the trial of the exception of prescription on the issue of defendant’s bad faith. Although plaintiff alleges in her petition that Ragusa informed her in writing that the house was built on pilings, she failed to submit any written evidence of such a statement. In fact, other than the allegations in plaintiffs petition which stated that she was informed by a third person that there were no pilings under the house, there was no evidence presented that the house was not built on pilings. Moreover, plaintiff failed to submit any evidence other than the allegations of her petition that Ragusa knew or should have known at the time of the sale to plaintiff that the house was not built on pilings.

Thus, the record fails to contain competent evidence sufficient to show whether the house sold to plaintiff was built on pilings or whether defendant misrepresented this fact when he sold her the house. Under these circumstances, plaintiff failed to prove the applicability of the bad faith provisions of La. C.C. art. 2546, and plaintiff does not have one year from the date of discovery of the alleged defect in which to file suit. Rather, the provisions of La. C.C. art. 2534 apply to this case, and plaintiffs action for | ^redhibition prescribed one year from the date of sale of the subject property. Accordingly, we find that the trial court did not err in granting Ragusa’s exception of prescription as to plaintiffs claim of redhibition.

For the reasons stated herein, the judgment of the trial court is affirmed. Plaintiff shall bear all costs of this appeal.

AFFIRMED.

DALEY, J., dissents with reasons.

LDALEY, J.,

Dissents with Reasons:

I respectfully dissent. I would reverse the grant of the Exception of Prescription and remand for further proceedings.

The majority opinion correctly sets forth the law that prescriptive periods are strictly construed against prescription in favor of the obligation sought to be extinguished by prescription. Doskey v. Hebert, 1993-1564 (La.App. 4 Cir. 9/29/94), 645 So.2d 674.

I agree with the majority’s position that where prescription has tolled on the face of the petition, the buyer bears the burden of showing the claim has not prescribed and, in this respect, if bad faith of the seller was alleged, the buyer must prove the seller was in bad faith before the rules of LSA-C.C. art. 2546 apply. Insurance Storage Pool, Inc. v. Parish Nat. Bank, 97-2757 (La.App. 1 Cir. 5/14/99), 732 So.2d 815.

The majority, in affirming the trial court’s grant of the Exception of Prescription, relies on the fact that the plaintiff failed to produce any evidence at the trial of the exception of defendant’s bad faith. At the hearing on the Exception of Prescription, however, defendant’s counsel admitted that his client gave false information to Mrs. Hunt regarding the existence of pilings. This admission of these facts, in my opinion, cures any deficiency regarding Hunt’s failure to produce evidence. As a general rule, arguments of counsel are not evidence. However, attorney’s statements of facts in argument can be admissions of adverse facts of evidentiary value. In Ott v. Richard, 556 So.2d 147 (La.App. 5 Cir.1990),2 plaintiff sued State Farm under her UM policy. State Farm filed an Exception of No Right of Action, arguing that because plaintiff had filed for bankruptcy, she no longer had the right to bring the suit. At the hearing on the exception, State Farm introduced “no tangible evidence as to the details of the bankruptcy,” but the exception was granted, and upheld on appeal, because plaintiff’s counsel admitted at the hearing that plaintiff had filed for bankruptcy AND that the petition in bankruptcy did not include the claim here sued upon as an asset of the bankrupt. Based upon the admissions of plaintiffs attorney, the court granted the defendant’s Exception of No Right of Action.

The fact that Defendant/Seller represented to Plaintiff/Buyer prior to the sale that the house was constructed on pilings is not contested. Quoting from the hearing on the prescription issue, defense counsel stated, “she [buyer] sends the subsequent, I think, letter to my client saying does the house have pilings; he [seller] says yes.”

Defendant/Seller does not contest the fact that plaintiffs redhibition suit was filed within one year of the discovery of the fact that the house was not constructed on pilings. Rather, defendant argues that he was in good faith because he did not know whether the house was built on pilings. Not knowing a fact, and affirmatively asserting a false fact, are treated quite differently for prescriptive purposes. Defendant/Seller’s counsel admitted that 1) Ragusa did in fact tell Mrs. Hunt that the house was on pilings, as she alleged he did; and 2) that Ragusa did not know that fact to be true at the time defendant made the material representation that the house was built on pilings. These admitted facts are enough evidence of Ragusa’s alleged bad faith to toll the prescriptive period. Therefore, I would reverse the grant of the Exception of Prescription and remand the matter for further proceedings.

      . The civil code articles on redhibition were amended by 1993 La. Acts No. 841, Section 1, effective January 1, 1995. We note that none of the revisions in these articles affect the outcome of the present case.
      However, since the effective date of the 1993 amendments is subsequent to the date of the sale of the property to plaintiff, all references to the law on redhibition in this opinion will be to the articles as they existed at the time of the sale which gave rise to plaintiff's cause of action. See, Insurance Storage Pool v. Parish National Bank, 97-2757 (La.App. 1 Cir. 5/14/99), 732 So.2d 815, 819.


text:
    STATE of Louisiana v. Herman J. WALKER.
    No. 2003-KA-1072.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, Counsel for PlaintifflAppellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, Counsel for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   I,SOL GOTHARD, Judge.

Defendant, Herman J. Walker, was charged by bill of information with seven counts of distribution of cocaine within 1000 feet of a school in violation of LSA-R.S. 40:981.3. Defendant went to trial on counts 1 and 3, and was found guilty as charged on count 1 and guilty of distribution of cocaine on count 3. He was sentenced to imprisonment at hard labor for 20 years on each count to run concurrently. Additionally, the trial court ordered that the first two years of the sentence on count 3 was to be served without benefit of parole, probation, or suspension of sentence, and that the sentence on count 1 was to be served without benefit of parole, probation, or suspension of sentence.

Pursuant to a multiple bill, the trial court thereafter found defendant to be a third felony offender. The trial court vacated the sentence on count 1 and sentenced defendant under the multiple bill statute to imprisonment at hard labor for 32 years without benefit of probation or suspension of sentence. The trial court ordered the multiple bill sentence to run concurrently with any other sentence and fined defendant $50,000.00. Defendant now appeals.

laThe following facts were proved at trial. On October 24, 2002, undercover agent Veronica Gordon purchased from the defendant six off-white rock-like objects, containing cocaine, for $100.00. The transaction occurred on the corner of Field and Eiseman Streets, approximately 400 feet from Ames Elementary School. On November 25, 2002, defendant again sold six off-white rock-like objects, containing cocaine to Agent Gordon. This transaction occurred in the same general area, approximately 200 feet from Ames Elementary School. Both transactions were videotaped.

In this appeal, defendant alleges that the trial court erred in denying his motion for mistrial premised upon repeated references to inadmissible evidence of appellant’s criminal record. He also requests that the record be reviewed for errors patent.

In his allegation of error, defendant specifically complains about the following references:

Sergeant Williams testified during direct examination that he reviewed the videotape of the October 24th transaction, and that he recognized defendant. Defense counsel objected to that line of questioning because it implied that defendant had a criminal record.

Agent Lisa Thornton testified during direct examination that, after the transaction was complete, they went to the office and viewed the videotape, and that Sergeant Williams “immediately knew who the defendant was.” Defense counsel restated his previous objection and said that, out of an abundance of caution, he was moving for a mistrial.

Agent Thornton subsequently testified that she conducted a criminal history inquiry and put together a photographic lineup. However, defendant did not object to this comment.

|4Pefendant alleges that these remarks constitute an indirect reference to his prior criminal record, and therefore the trial court erred in denying his motion for mistrial.

Except under certain statutory or jurisprudential exceptions, evidence of other crimes or bad acts committed by the defendant is inadmissible at trial. La. C.E. art. 404(B)(1). La.C.Cr.P. art. 770 mandates a mistrial upon motion of a defendant, “when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to ... [ajnother crime committed or alleged to have been committed by the defendant as to which evidence is inadmissible[.]”

The courts have consistently held that a police officer is not a “court official” for purposes of Article 770. State v. Hayes, 414 So.2d 717, 721 (La.1982); State v. Celestine, 98-1166 (La.App. 5 Cir. 3/30/99), 735 So.2d 109, 114, writ denied, 99-1217 (La.10/8/99), 750 So.2d 178. However, the jurisprudence provides that an impermissible reference to another crime deliberately elicited by the prosecutor is imputable to the State, and would therefore trigger the provisions of Article 770. State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 109.

A police officer’s simple reference to a familiarity with the defendant and observation of him on other occasions does not constitute a reference to “another crime” committed by the defendant within the meaning of La.C.Cr.P. art. 770(2). State v. Robinson, 02-530 (La.App. 5 Cir. 10/29/02), 831 So.2d 460, 466 (citation omitted).

Similar comments were addressed and found to be permissible by this court in State v. Tapps, 02-547, (La.App. 5 Cir. 10/29/02), 832 So.2d 995, writ denied, 02-2921 (La.4/21/03), 841 So.2d 789, wherein we said:

In State v. Celestine, 98-1166, p. 9 (La.App. 5 Cir. 3/30/99), 735 So.2d 109, 114, writ denied, (La.10/8/99), 750 So.2d 178, a ^similar complaint was lodged. In Celestine, a police officer testified regarding his identification of the defendant and stated in response to questioning at trial, “And when I got that name, I ran that subject’s name through the national crime computer and got a pass [sic] criminal history....” Defense counsel moved for a mistrial, but did not seek an admonition. This Court affirmed the trial judge’s refusal to grant a mistrial, stating, “In the present case, the officer did not refer to any specific crime committed by the defendant. He merely stated that he ran the defendant’s name through the national crime computer, got a past criminal history and obtained a photograph.”

At page 1003.

See also, State v. Jones, 00-162 (La.App. 5 Cir. 7/25/00), 767 So.2d 862, 866, writ denied, 00-2484 (La.6/22/01), 794 So.2d 783„ in which we said:

[ t]here was no specific mention of a pri- or crime or bad act. The mere fact that a police officer testifies to having previously known the defendant does not amount to improper introduction of other crimes evidence, where there is no reference to a specific crime or criminal activity.

In the instant case, there is no evidence in the record that the prosecutor was attempting to elicit information about other crimes or bad acts. Rather, the questioning was aimed at setting up the sequence of events leading to defendant’s arrest. Secondly, there was no specific mention of a prior crime or bad act by Sergeant Williams or Agent Thornton. Therefore, we find that the trial judge did not err in refusing to grant defendant’s motion for mistrial.

We have reviewed the record for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals the following errors patent.

The commitment indicates that defendant’s multiple offender sentence was to be served without benefit of parole, probation, or suspension of sentence. However, the transcript reflects that the trial judge correctly ordered the sentence to be served without benefit of probation or suspension of sentence. LSA-R.S. 15:529.1(G). In general, where there is a discrepancy between the minutes and the | ^transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand the matter so that the trial judge can correct the commitment to conform to the transcript. State v. Woodward, 02-1017 (La.App. 5 Cir. 3/25/03), 844 So.2d 236, 242.

The trial court failed to advise defendant of the prescriptive period for filing post-conviction relief as required by La. C.Cr.P. art. 930.8. We therefore remand this case and order that the trial judge send written notice to defendant that his application for post-conviction relief must be filed no more than two years after the judgment of conviction and sentence has become final, within ten days of the rendering of this opinion, and then file written proof in the record that defendant received the notice. State v. Pierre, 02-838 (La.App. 5 Cir. 12/30/02), 834 So.2d 1229, 1233.

For the above reasons, we affirm the defendant’s convictions and sentences. The matter is remanded for correction of the commitment, and for the trial court to advise the defendant of the delays for filing post conviction relief.

AFFIRMED AND REMANDED.


author: LSOL GOTHARD, Judge. h EDWARDS, J.,

text:
    Elvira MENJIVAR v. ROUSE’S ENTERPRISES, L.L.C., ABC Insurance Company.
    No. 03-CA-0808.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.
    Edwin R. Fleischmann, Jr., Fleischmann Law Firm, Metairie, LA, for Plaintiff/Appellant.
    J. Rene Williams, Lazarus, Brown & Williams, Houma, LA, for Defendants/Ap-pellees.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and CLARENCE E. McMANUS.
   LSOL GOTHARD, Judge.

Plaintiff, Elvira Menjivar, appeals a adverse judgment of the trial court in her slip and fall action that found defendant, Rouse’s Enterprises, L.L.C. (Rouse), free from any negligence. For reasons that follow, we affirm.

Mrs. Menjivar filed suit against Rouse and its insurer on February 2, 2002. The original petition alleges that Mrs. Menjivar was shopping at defendant supermarket in Metairie on Sunday, April 22, 2001. As she left the store she slipped on a foreign object and fell onto her left knee, twisting her back. The matter was joined, and in due course, a bench trial on the merits was held. Subsequently, the court rendered judgment with reasons in favor of defendant. It is that judgment on appeal in this matter.

At the trial, the court heard testimony from Itza Cabajal, daughter of the plaintiff. Ms. Cabajal explained that she was walking behind her mother as they walked down the exit ramp from Rouse’s Supermarket. The women had gone into the store to purchase bread and other items for their church dinner. As they walked down the ramp, Mrs. Menjivar was looking in her purse for her keys. Mrs. Cabajal stated that she saw her mother trip. Because she thought her mother caught herself and was unhurt, Ms. Cabajal continued walking. She realized her mother was hurt when she looked back and saw that her mother’s knee was bleeding. Mrs. 13Menjivar showed her daughter the cigarette butt on which she slipped. The two women went to their church and participated in the event. Later, Mrs. Menjivar complained of back pain and the two decided to return to Rouses’s to report the incident.

Yolanda Cerrato-Valladares, a friend of the plaintiff, testified that she received a telephone call from Ms. Cabajal. Ms. Ca-bajal explained that her mother had fallen and was now experiencing pain in her lower back and knee. Ms. Cerrato-Valla-dares went over to the Menjivar home and found Mrs. Menjivar lying down. She was crying and her knee was swollen. Ms. Cerato-Valladares took Mrs. Menjivar to the hospital emergency room. On the way to the hospital, the women stopped at Rouse’s to report the incident and speak to the manager. The manager took the report and went out to the car to speak to Mrs. Menjivar. Ms. Cerato-Valladares testified that she pointed out to the manager that there were cigarette butts on the ramp.

Mrs. Menjivar also testified at trial. She corroborated the testimony of her daughter regarding the purpose of the shopping trip to Rouse’s and the location and circumstances of the slip and fall. She further explained she was walking out of the supermarket on the handicap ramp, trying to locate her keys in her purse. She slipped and reached out for the handrail in an effort to keep from falling, but was unsuccessful. Her right leg went forward and her left knee hit the ground. She looked down and saw a cigarette butt about two inches from her shoe, which she believed caused her to slip. She stated that there were other cigarette butts and paper on the ramp. She went inside to get something for her injury and was given cotton balls, alcohol and bandages. She did not fill out a report at that time. Later, after she returned home her back was very painful. Mrs. Menjivar instructed her daughter to call her friend Yolanda (Ms. Cerrato-Valladares). The rest of her testimony corroborates that of Ms. Cerra-to-Valladares regarding the condition of |4her back and knee, and the trip to the store to formally report the incident. Mrs. Menjivar testified that after the report was made, the women went to the hospital for treatment. The remainder of her testimony concerns the extent of her injury and treatment.

Lon Levy, the assistant manager of Rouse’s, testified that he recalled the incident in which Mrs. Menjivar made a report that she slipped on a cigarette butt while walking down the handicap exit ramp. Mr. Levy accompanied Mrs. Menji-var out to the scene of the slip and fall, where Mrs. Menjivar pointed to a few cigarette butts on the ground which she said caused her fall.

Mr. Levy testified that Rouse’s cleans that ramp daily in the morning. He further explained that someone comes in at 5 a.m. who buffs and sweeps the floor, then cleans the bathrooms and break room. After that he goes outside and cleans the parking lot, including the handicap ramp. This usually occurs about 8 a.m. The cleaning person responsible for these duties leaves at 9 a.m. At night a crew comes in to clean up large objects left in the parking lot. Mr. Levy confirmed that the ramp on which Mrs. Menjivar slipped is swept every morning and was swept on the morning of the accident. He further testified that he personally checked the ramp that morning and found it clean.

Mr. Levy also testified that when Mrs. Menjivar first came into the store and told him of the fall, she did not want to fill out an incident report. However, she returned later in the day to fill out the report. Mr. Levy testified that the accident happened at about 9:45 a.m. at a time when the store was busy. He was running customer service at the time.

Mr. Levy testified that employees are not allowed to smoke inside of the store. There is an elevated area set up for employees to smoke outside of the store to the left of an emergency door which is not in normal use for the public. It is not in close proximity of the handicap ramp. Management checks to make sure that | ¡¡employees smoke only in the designated area, and Mr. Levy has never seen an employee smoke in the area where Mrs. Menjivar fell.

Contained in the record are photographs of the area introduced into the record by plaintiff. One large photo shows the ramp and the railing around it; another shows a close up view of the area below the railing on the side of the ramp. Another photo shows an area in which no obvious obstructions exist. It appears to be swept clean. The close up view does show several cigarette butts on the ground, but they are in an area under the rail, not on the actual walkway.

Defendant also introduced photos of the area of the fall and the area set aside for smoking employees.

LAW

La. R.S. 9:2800.6 provides in pertinent part as follows:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been [ (¡discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

In White v. Wal-Mart Stores, Inc., 97-0393 (La.9/997), 699 So.2d 1081, the Louisiana Supreme Court explained the burden of proof imposed on a plaintiff by the above cited statute. In White, 699 So.2d at 1086 the court stated:

The statute is clear. To prove constructive notice, the claimant must show that the substance remained on the floor for such a period of time that the defendant merchant would have discovered its existence through the exercise of ordinary care.

This court, citing White, has also held that a plaintiff must make a showing that the condition existed for some time before the fall occurred. A simple showing that the condition existed is insufficient for a finding of liability and recovery. Hernandez v. National Tea, Inc., 98-950 (La.App. 5 Cir. 5/19/99), 734 So.2d 958.

In the case before us, plaintiff has made nothing more than a showing that she slipped on a cigarette butt. She has made no showing that the condition existed for some time before the fall which would support a finding of constructive knowledge of the condition on the part of the defendant. Therefore, we find the trial court was correct in its finding that plaintiff failed to meet her burden of proof, and in the judgment in favor of defendant. Accordingly, we affirm the judgment of the trial court and assess costs of this appeal to plaintiff.

AFFIRMED.

EDWARDS, J., dissents.

h EDWARDS, J.,

Dissents.

I dissent from the majority, because in my opinion, Mrs. Menjivar proved her case under La. R.S. 9:2800.6. The evidence indicates that the ramp on which Mrs. Menji-var slipped was last cleaned at about 8:00 a.m., almost two hours before the accident. There was testimony that Rouse averages about 2500 customers per day, and employees smoked in the area, where there were no ashtrays. These facts, plus the evidence that there were “a few” cigarette butts on the ramp along with some other pieces of paper, indicates that the littered condition of the ramp existed for such a period of time that it would have been discovered had the supermarket exercised reasonable care in keeping it clean. Considering the amount of store traffic and the smoking habits of the employees, it is clear that the hazardous condition was foreseeable, that Rouse’s had constructive knowledge of the condition, and once-a-day early morning sweeps are insufficient to keep the area safe from hazardous conditions. Therefore I would reverse the judgment of the trial court.

For these reasons, I respectfully dissent.


author: I «SOL GOTHARD, Judge.

text:
    Anthony PRESTENBACH, Ginger Prestenbach, Individually and on Behalf of the Minor Children, Arec and Alec Prestenbach and Monica Lachute, On Behalf of the Minor Children Adam and Austen Prestenbach v. Barry BADEAUX, Hacker Mayronne, ABC and XYZ Insurance Company.
    No. 03-CA-809.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Daryl A. Higgins, James J. Young, IV, Windhorst, Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, for Plaintiff/Appellant (Anthony Prestenbach).
    John J. Hainkel, Jr., Nicholas C. Gristi-na, Porteous, Hainkel & Johnson, LLP, New Orleans, LA, for Defendant/Appellee (Louisiana Farm Bureau Mutual Insurance Company).
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and JAMES L. CANNELLA.
   I «SOL GOTHARD, Judge.

Plaintiffs, Anthony Prestenbach; Ginger Prestenbach, wife of deceased Arthur Prestenbach, individually and on behalf of Alee and Arec, minor children of Arthur Prestenbach; and Monica LaChute, on behalf of Adam and Austen, minor children of Arthur Prestenbach, filed suit for damages arising out of a confrontation between Anthony and Arthur Prestenbach and defendant, Barry Badeaux, which occurred on land owned by defendant, Hacker May-ronne. Barry Badeaux filed a reconven-tional demand for damages he incurred in the incident. Thereafter, Anthony Pres-tenbach filed a third party demand against Louisiana Farm Bureau Mutual Insurance Company (hereinafter “Louisiana Farm Bureau”), his homeowner’s insurer, alleging that it owed him a defense under the terms of his policy. Louisiana Farm Bureau filed a motion for summary judgment, arguing that the claims alleged were intentional torts, excluded under the terms of the policy. The trial court granted Louisiana Farm Bureau’s motion, and Anthony Prestenbach filed this appeal. For the reasons that follow, we affirm the decision of the trial.court.

|SA summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. Summary judgments are now favored in the law and the rules should be liberally applied. Creative Risk Controls, Inc. v. Brechtel, 01-1150 (La.App. 5 Cir. 4/29/03), 847 So.2d 20, writ denied, 2003-1769 (La.10/10/03), 855 So.2d 353. The summary judgment procedure shall be construed to accomplish the ends of just, speedy, and inexpensive determination of allowable actions. LSA-C.C.P. art. 966; Creative Risk Controls, Inc., supra.

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180; Creative Risk Controls, Inc., supra.

In this appeal, appellant alleges that the trial court erred in finding that Louisiana Farm Bureau did not owe a duty to defend Anthony Prestenbach.

Regarding the duty to defend pursuant to a homeowner’s insurance policy, this court has said:

Generally, the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. Yount v. Maisano, supra[ 627 So.2d 148 (La.1993)]. The insurer’s duty to defend suits brought against its insureds is determined by the allegations of the plaintiffs petition, and the insurer is obligated to defend the insured, unless the petition unambiguously excludes coverage. The allegations in the petition are to be construed liberally to determine whether they state grounds bringing the claims within the scope of the insurer’s duty to defend. Assuming all the allegations of the petition to be true, if there would be coverage under the policy and also liability to the plaintiff, the insurer must defend the suit, regardless of the outcome of the suit. The duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. The duty to defend is determined solely from the plaintiffs pleadings and the face of the .policy, without consideration of extraneous evidence. Yount v. Maisano, supra; KLL Consultants, Inc. [v. Aetna Cas. & Surety Co. of Illinois], supra[, 99-14 (La.App. 5 Cir. 6/1/99), 738 So.2d 691].

Houghtaling v. Richardson, 01-208 (La.App. 5 Cir. 10/17/01), 800 So.2d 1012, 1014.

14The policy at issue provides that:

SECTION II — LIABILITY COVERAGES
COVERAGE E — PERSONAL LIABILITY
If a claim is made or a suit is brought against any insured for damages, because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will:
* * *
2. provide a defense at our expense by counsel or our choice, even if the suit is groundless, false or fraudulent. We may investigate, settle, deny, or defend any claim or suit that we decide is appropriate. Our obligation to settle or defend ends when the amount we pay for damages resulting from the occurrence equals our limit of liability.
* * *
SECTION II — EXCLUSIONS
* * *
1. Coverage E — Personal Liability and Coverage f Medical Payments to Others do not apply to bodily injury or property damage:
a. resulting from intentional acts or directions by you or any insured. The expected or unexpected results of these acts or directions are not covered.

The court in Sperli v. Guiterrez, 00-1089 (La.App. 5 Cir. 10/18/00), 772 So.2d 805, 807 stated that, “This state’s jurisprudence provides that the intentional act exclusion applies when the insured acts intentionally in self-defense.” See also, Hewitt v. Allstate Insurance Company, 98-0221 (La.App. 4 Cir. 1/27/99), 726 So.2d 1120.

In his reconventional demand, Ba-deaux alleges that the incident described was caused solely by the “negligence and intentional treatment” of Anthony Presten-bach. Badeaux alleges he was hunting when he was approached by Anthony and Arthur Prestenbach, who cursed at him, threatened him and then chased him, backing him up to the edge of land. Anthony Prestenbach told his brother Arthur, “If he [Badeaux] runs, shoot him.” Arthur raised a high powered [¿rifle, pointed at Badeaux and said, “If you run, I’ll shoot you.” Badeaux alleged that he pleaded with the brothel’s to stop and to not come any closer, but his pleas went unheeded. When Badeaux saw Arthur Prestenbach shoulder his rifle, and saw Anthony Pres-tenbach approach him with hands raised and fists clenched, he raised his own weapon to his side, and without shouldering it, fired several rounds, first at Arthur and then at Anthony Prestenbach.

The Prestenbach petition alleges that Arthur Prestenbach died and Anthony Prestenbach was paralyzed as a result of injuries caused by Badeaux. In his petition, Badeaux states that charges filed against Badeaux were dismissed by the grand jury.

In this case, the petition filed by Ba-deaux against the Prestenbachs clearly alleges intentional, and not negligent acts, despite the use of the word negligent in the petition. Badeaux alleges that the Prestenbachs assaulted him, without reasonable cause, provocation or justification, engaged in or failed to avoid a confrontation with him, used excessive force and took actions which were unreasonable. Badeaux further alleges that Arthur Pres-tenbach pointed a high powered rifle at him, and told him that if he moved he would be shot, so that Anthony Presten-bach could beat him to death. Badeaux has clearly alleged that Anthony Presten-baeh committed intentional torts, coverage of which is excluded under the Louisiana Farm Bureau’s policy.

We also note that appellant, in reply brief, suggests that the grant of summary judgment is premature as there “has been no discovery in this matter to determine if the negligence allegations made in Ba-deaux’s reconventional demand can be substantiated by the facts.” As we noted in this opinion, the “duty to defend is determined solely from the plaintiffs pleadings and the face of the policy, without consideration of extraneous evidence.” Houghtaling, supra at page 1014.

[ (^Accordingly, we find that the trial court did not err in granting Louisiana Farm Bureau’s motion for summary judgment, finding that it owed no duty to defend Anthony Prestenbach under the re-conventional demand filed by Badeaux.

For the above discussed reasons, the decision of the trial court granting summary judgment in favor of Louisiana Farm Bureau, dismissing Prestenbachs’ third party demand against it. All costs are assessed against appellant/plaintiff, third party plaintiff.

AFFIRMED.