author: SULLIVAN, Judge.

text:
    Hayward WILLIAMS, et al. v. FRANK PARRA AUTO PLEX, INC., et al.
    No. 05-737.
    Court of Appeal of Louisiana, Third Circuit.
    March 22, 2006.

      Walter C. Dumas, NaTashia Carter Be-noit, Dumas & Associates Law Corporation, Baton Rouge, Louisiana, for Plaintiffs/Appellants, Hayward Williams, Ericka Williams, Jazmine Williams.
    Charles A. Schutte, Jr., Robert L. Graves, Guglielmo, Marks, Schutte, Ter-hoeve & Love, Baton Rouge, Louisiana, George P. Hebbler, Jr., Miranda, Warwick, Milazzo, Giordano, and Hebbler, Metairie, Louisiana, for Defendant/Appellee, Frank Parra Auto Plex, Inc.
    Nan M. Landry, Attorney at Law, Lafayette, Louisiana, for Defendant, Salient Designs, Inc.
    Larry G. Canada, Doris T. Bobadilla, Candace M. Minerich, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, Louisiana, for Defendant/Appellee, J.R.’s Custom Auto Service, Inc.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and J. DAVID PAINTER, Judges.
   SULLIVAN, Judge.

| plaintiffs, Haywood and Ericka Williams, individually and on behalf of the estate of their minor daughter, Jazmine Williams, appeal the dismissal of Defendants, Frank Parra Autoplex, Inc. (Parra) and J.R.’s Custom Auto Service, Inc. (J.R.’s), on exceptions of lack of personal jurisdiction. For the following reasons, we affirm.

Factual and Procedural Background

This litigation stems from a tragic automobile accident that claimed the lives of two of the Williamses’ children. On March 9, 2003, Mr. and Mrs. Williams, residents of Plano, Texas, and their three minor daughters were traveling eastbound on U.S. Highway 90 in Lafayette Parish, Louisiana, when a westbound vehicle crossed the median and struck their 1999 Chevrolet Suburban. Their infant daughter, five-month-old Jazmine, was killed after a custom-installed overhead TV/VCP console became dislodged and struck her on the head. According to the police report, another daughter, six-year-old Leah, was also killed in the accident, but her death is not at issue in this suit. The record does not reflect what injuries were sustained by their third daughter, Alanah, who was also a passenger in their vehicle.

On February 27, 2004, the Williamses filed an action for the wrongful death of Jazmine in Lafayette Parish, naming as Defendants Parra, J.R.’s, and Salient Designs, Inc. (Salient). Plaintiffs alleged that Salient manufactured the TV/VCP overhead console and that J.R.’s installed the unit at the request of Parra, the | ^.Suburban’s original seller. Plaintiffs further alleged that all three defendants maintained their principal places of business in the State of Texas.

Parra and J.R.’s filed exceptions of lack of personal jurisdiction. Salient answered the suit, then filed a motion seeking dismissal on summary judgment. The trial court granted the exceptions filed by Parra and J.R.’s. The record does not yet contain a ruling on Salient’s motion for summary judgment.

As shown by the affidavit of Parra’s general manager, Thomas Quintana, Parra is an automobile dealership in Irving, Texas, that is not authorized to conduct business in Louisiana. According to Mr. Quintana, Parra does not sell vehicles in Louisiana, and it does not directly or indirectly solicit customers from Louisiana. The Williamses, nonetheless, argue that Parra is amenable to suit in Louisiana because it maintains an Internet “web store” with a sales department that can conduct “live chats” with Louisiana residents. In opposing the exception, the Williamses introduced online correspondence between a Parra employee and an individual claiming to be resident of Shreveport, Louisiana, who was interested in purchasing a vehicle from Parra. That correspondence was initiated by an associate of the Williamses for the purpose of opposing this exception.

James Reeves, the owner of J.R.’s, stated in his affidavit that J.R.’s is not licensed to do business in Louisiana; does not have any offices, stores, or service centers in Louisiana; does not target advertising to Louisiana residents; and does not perform installations for any Louisiana dealerships or clients. In its memorandum in support of its exception, J.R.’s stated that it has engaged in “unrelated, very limited |sand sporadic wholesale distribution of automobile parts, upon specific request, to an occasional Louisiana dealership.” The Williamses further point out that J.R.’s also maintains a website, on which it posts a toll-free number.

Discussion

The Louisiana long-arm statute, La. R.S. 13:3201, provides for the exercise of personal jurisdiction over a nonresident defendant by stating in part:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
(8) Manufacturing of a product or component thereof which caused damage or injury in this state, if at the time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer’s marketing practices.
B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

(Emphasis added.)

With the enactment of La.R.S. 13:3201(B), the limits of the Louisiana long-arm statute and of constitutional due process have become coextensive; thus, the sole inquiry into jurisdiction over a nonresident is whether it comports with constitutional due process requirements. Alonso v. Line, 02-2644 (La.5/20/03), 846 So.2d 745, cert. denied, 540 U.S. 967, 124 S.Ct. 434, 157 L.Ed.2d 311 (2003). Nonetheless, the specific contacts listed in La. R.S. 13:3201(A) “now serve as a ‘valuable list of ... contacts sufficient to give rise to in personam jurisdiction.’ ” Alonso, 846 So.2d at 750 (quoting Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise, Vol. 1, Civil Procedure, § 2.3, p. 15 (1991)).

In Ruckstuhl v. Owens Coming Fiberglas Corp., 98-1126, pp. 6-7 (La.4/13/99), 731 So.2d 881, 885-86, cert. denied, 528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 (1999), the supreme court summarized the test for constitutional due process as follows:

The due process test first enunciated in International Shoe [Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ] requires that in order to subject a nonresident defendant to a personal judgment, the defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice....
The test has evolved into a two-part test, the first part being the “minimum contacts” prong, which is satisfied by a single act or actions by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Burger King Carp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). The nonresident’s “purposeful availment” must be such that the defendant “should reasonably anticipate being haled into court” in the forum state. World-Wide Volkswagen Corp. v. Woodson, ... 444 U.S. [286] at 297, 100 S.Ct. 559, 62 L.Ed.2d 490 [ (1980) ].
The second part of the due process test centers around the fairness of the assertion of jurisdiction. Hence, once the plaintiff meets his burden of proving minimum contacts, “a presumption of reasonableness of jurisdiction arises” and “the burden then shifts to the opposing party to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum.” de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 107 (La.1991) (citing 4 Charles A, | ./Wright and Arthur R. Miller, Federal Practice and Procedure Sec. 1067, pp. 301-302).

To determine whether minimum contacts exist, a court must engage in “a factual examination of the ‘relationship among the forum, the defendant, and the litigation.’ ” A & L Energy, Inc. v. Pegasus Group, 00-3255, p. 6 (La.6/9/01), 791 So.2d 1266, 1271-72, cert. denied, 534 U.S. 1022, 122 S.Ct. 550, 151 L.Ed.2d 426 (2001) (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580, 53 L.Ed.2d 683 (1977)). In the present ease, the record reveals that the Plaintiffs and Defendants are .either residents of Texas or are businesses domiciled in that state. Defendant Parra, an automobile dealership, does not sell any vehicles in Louisiana, and Defendant J.R.’s does not target its advertising to Louisiana residents, although it does supply automobile parts to “an occasional” Louisiana dealership at that dealer’s request. Although the accident giving rise to this litigation occurred in Louisiana, the acts or omissions alleged as the cause of injury occurred in Texas. Specifically, the Williamses allege that Parra directed J.R.’s to install the TV/VCP unit and that J.R.’s did so before the vehicle’s original sale to a third person in Texas.

In asserting that Louisiana may exercise personal jurisdiction over Parra and J.R.’s, the Williamses rely heavily on the fact that both Defendants have Internet websites that are accessible to Louisiana residents. The Williamses point out that the |fiParra website is interactive, with sales personnel having the ability to “chat” with potential customers; as to J.R.’s website, they state only that it posts a toll-free number. They cite Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997), as authority for the exercise of personal jurisdiction based upon these activities.

In Zippo, 952 F.Supp. at 1124 (emphasis added), the court recognized that “the likelihood that personal jurisdiction can be constitutionally exercised [based on Internet use] is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.” The court then proposed the following “sliding scale” analysis:

At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.

Id. (emphasis added) (citations omitted). In Mink v. AAAA Development LLC, 190 F.3d 333 (5th Cir.1999), the United States Fifth Circuit applied the Zippo analysis to conclude that Texas could not assert personal jurisdiction over a defendant whose only contact with that state was through a website that allowed communication by email, but required consumers to place orders by regular mail or fax. The court concluded: “In this case, the presence of an electronic mail access, a printable order form, and a toll-free number on a website, without more, is insufficient to establish 17personal jurisdiction.” Id. at 337. In Revell v. Lidov, 317 F.3d 467, 471 (5th Cir.2002), the fifth circuit questioned whether the Zippo analysis is helpful in a general jurisdiction case “because even repeated contacts with forum residents by a foreign defendant may not constitute the requisite substantial, continuous and systematic contacts required for a finding of general jurisdiction — in other words, while it may be doing business with [the forum], it is not doing business in [the forum].”

In the present case, the Williamses have shown that Parra does operate an interactive website that permits exchange of information with Louisiana residents through its “chat live” feature. However, Parra contends that consumers may not use its website to purchase vehicles. While customers may contact its employees on the website, the purchase must take place at its dealership in Texas. As to J.R.’s, the Williamses have only pointed out that its website includes a toll-free number. When this limited exchange of information over the Internet is considered with the acts or omissions allegedly giving rise to liability, i.e., the customization of a vehicle that was originally sold to a third person in the State of Texas, we must conclude that the Williamses have not met their initial burden of showing sufficient minimum contacts with the State of Louisiana that would support its exercise of personal jurisdiction over either Defendant. The occurrence of the accident in Louisiana was a fortuitous event, and the Williamses have failed to show how either Parra or J.R.’s have “purposefully availed” themselves of the privilege of conducting activities in this state.

| ^Decree

For the above reasons, the judgments of the trial court sustaining Defendants’ exceptions to personal jurisdiction are affirmed. Costs of this appeal are assessed to Plaintiffs-Appellants, Haywood and Ericka Williams.

AFFIRMED.

      . Mr. Williams’ first name appears as "Hayward” in the caption of this case but as "Haywood” in the pleadings and other documents in the record.

      . The Williamses did not name as a Defendant in this suit the driver of the other vehicle, Derrick Williams, a resident of Lafayette, Louisiana, who allegedly suffered a seizure immediately prior to the accident.

      . The Williamses did not purchase the vehicle from Parra. They later sued their vendor, United Motor Cars (United), a Texas sole proprietorship, but then consented to United's dismissal after it filed an exception of lack of personal jurisdiction.

      . In interpreting the due process clause, the United States Supreme Court has recognized two types of personal jurisdiction: (1) specific jurisdiction, which is appropriate when the defendant "has purposefully directed its activities at residents of the forum state and the litigation results from alleged injuries that arise out of or relate to those activities,” and (2) general jurisdiction, which attaches "where the nonresident defendant’s contacts with the forum state, although not related to the plaintiff’s cause of action, are continuous and systematic.” Alonso, 846 So.2d at 751, n. 4 (quoting A & L Energy, Inc. v. Pegasus Group, 00-3255, pp. 5-6 (La.6/9/01), 791 So.2d 1266, 1271, cert. denied, 534 U.S. 1022, 122 S.Ct. 550, 151 L.Ed.2d 426 (2001)). "However, 'the classification of general versus specific jurisdiction merely serves as an analytical tool to categorize the degree of interrelation between the defendant’s activities, the forum, and the cause of action; the same two-part due process evaluation must be conducted considering the fats in each individual case.' " Id. (emphasis added). In their appellate brief, the Williamses argue that the present case is one of general jurisdiction.


source: Caselaw Access Project

author: LEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    John JOHNSON, Individually and as a Representative of the Class of Those Similarly Situated v. ORLEANS PARISH SCHOOL BOARD, XYZ Insurance Company, City of New Orleans, and ABC Insurance Company.
    No. 2005-CA-0796.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 22, 2006.

      Sheila L. Birnbaum, Don J. Frost, Jr., Skadden Arps Slate Meagher & Flom LLP, New York, Charles S. McCowan, Jr., Glenn M. Farnet, Kean Miller Hawthorne D’Armond McCowan & Jarman, L.L.P., Baton Rouge, Counsel for Third-Party Defendants, CFI Industries, Inc and IPC, Inc.
    Nannette V. Jolivette, Douglas L. Grundmeyer, Jonathan C. McCall, Katherine L. Young, Chaffe McCall, L.L.P., New Orleans, Counsel for Defendant/ Appellant, Orleans Parish School Board.
    (Court Composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, Jr.)
   LEON A. CANNIZZARO, JR., Judge.

hThe Orleans Parish School Board filed a third party demand against CFI Industries, Inc. and IPC, Inc. CFI and IPC filed exceptions of no cause of action and no right of action. The trial court granted the exceptions. The School Board is appealing the trial court’s decision.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The plaintiffs are current or former residents of three residential developments in New Orleans. The plaintiffs originally filed suit against the City of New Orleans, the Housing Authority of New Orleans, and the School Board. The plaintiffs alleged that they had suffered damages as a result of the construction of their residential community on a former municipal landfill site known as the Agriculture Street Landfill. According to the plaintiffs’ allegations, the defendants developed residential and commercial property and an elementary school on the site of the landfill without first removing hazardous substances from the site and without warning the plaintiffs of the existence of the substances. The development occurred during the 1960’s and the 1970’s.

The defendants in the suit filed third party demands for direct damages, indemnification, and contribution against the corporate successors to companies that allegedly improperly disposed of hazardous materials at the landfill site prior | ¡¡to 1958, when the landfill was closed. The third party defendants involved in the instant appeal are CFI and IPC, the successors to Letellier Phillips Paper Company. The third party plaintiff involved in this appeal is the School Board.

CFI and IPC filed exceptions of no cause of action and no right of action in response to the third party demands against them. The trial court granted the exceptions. The School Board appealed that decision. In Johnson v. Orleans Parish School Board, 03-0828, 03-1573 (La. App. 4 Cir. 11/3/04), 890 So.2d 579, this Court affirmed the trial court decision granting the exception of no cause of action and remanded the case to the trial court with instructions to permit the amendment of the third party demand to state a cause of action.

After the case was remanded, the School Board amended the third party demand against CFI and IPC. CFI and IPC filed exceptions of no cause Of action and no right of action to the amended third party demand. The exceptions were again granted by the trial court, and the School Board is appealing that decision.

DISCUSSION

The Third, Party Claims Against CFI and IPC

In the original third party demand against CFI and IPC, the School Board made the following allegations:

30.
Letellier-Phillips Paper Company salvaged bottles, cans, rags, paper, glass, scrap metal and other materials from the Agriculture Street Dump, beginning in or about 1948.
Jj31.
Letellier-Phillips handled and knew or should have known of the type, quantity and nature of wastes disposed of at the Agriculture Street Dump.
32.
Letellier-Phillip’s actions, omissions and/or negligence caused or contributed to some or all of the alleged contamination of the Agriculture Street Dump site with allegedly hazardous chemicals.
33.
Letellier-Phillip’s successor corporations, CFI Industries and IPC, Inc. are liable for any acts, omissions or negligence of Letellier-Phillips.

An amended third party demand was filed after this Court had determined that the original third party demand failed to state a cause of action against CFI and IPC. In the amended demand, the School Board attempted to remedy the problems this Court had with the original third party demand. Rather than specifically naming CFI and IPC in their allegations in the amended demand, the School Board refers to all of the third party defendants collectively.

The amended demand alleges:

1. that the third party defendants illegally generated or transported wastes to the former Agriculture Street Landfill;

2. that an Environmental Protection Agency inspection of samples that were taken from the area of the former landfill detected in most of the samples polyaro-matic hydrocarbons, lead, and arsenic in concentrations above the federal guidelines;

j43. that the third party defendants improperly or illegally disposed of materials with elevated levels of toxicity at the site and should have known that such activity would cause harm to others or to the environment;

4. that the third party defendants were unjustly enriched, because they improperly disposed of toxic waste and thereby avoided the higher cost of the proper disposal of such waste;

5. that the third party defendants had a duty to use the landfill properly; and

6. that the third party defendants had a duty to disclose information regarding the materials that were deposited at the landfill.

The amended demand also incorporates by reference all prior pleadings that had been filed in the case, including the third party demands filed by the City of New Orleans and HANO as well as the original third party demand filed by the School Board.

Stating a Cause of Action

As explained in Johnson, cited above, the Louisiana Supreme Court, in Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1284 (La.1993), defined a cause of action in the context of a peremptory exception of no cause of action as “the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant.” 03-0828, 03-1573, p. 4, 890 So.2d at 581-82. Additionally, this Court stated that “[t]he function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading.” 03-0828, 03-1573, p. 4, 890 So.2d at 582.

| Jn determining whether a pleading states a cause of action, a court must review the pleadings and accept properly pleaded facts as true. Id., citing Jackson v. State ex rel. Department of Corrections, 00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806. The issue at the trial of an exception of no cause of action is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Id., citing Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131. The pertinent question at such a trial is whether, in light of the facts viewed most favorably for the plaintiff and with all doubts resolved in favor of the plaintiff, the petition states a valid cause of action. Id., citing City of New Orleans v. Board of Commissioners of the Orleans Levee District, 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253.

In Johnson, this Court based its determination that the exception of no cause of action filed by CFI and IPC was properly granted by the trial court on the grounds that the petition failed to identify a legal duty owed by CFI and IPC to the School Board. This Court held that “[ajccepting the allegations of fact in the third party demands as true, the third party plaintiffs have not shown that the third party defendants owed a duty to plaintiffs, and therefore, third party plaintiffs have no claim for contribution or indemnity against the third party defendants.” 03-0828, 03-1573, p. 5, 890 So.2d at 582.

In Johnson, this Court also stated that “the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action.” Id., citing Montalvo v. Sondes, 93-2813, p. 6, 637 So.2d 127, 131. Thus, to defeat an exception of no cause of action, the facts that are pled must be sufficiently specific for a court to find that those facts, if proven, demonstrate that a legal duty is owed by one party to another. | (Assignments of Error

The School Board has raised two assignments of error. In the first assignment of error, the School Board asserts that the trial court erred when it granted CFI’s and IPC’s exceptions of no cause of action. In the second assignment of error, the School Board asserts that the trial court erred when it granted CFI’s and IPC’s exceptions of no right of action.

The School Board has alleged that CFI and IPC had a duty to the plaintiffs in this case, because CFI and IPC knew or should have known that their activities would cause injury to persons living on or near the Agriculture Street Landfill. Nevertheless, it was a predecessor company, Letellier Phillips Paper Company, that the School Board has alleged “salvaged bottles, cans, rags, paper, glass, scrap metal and other materials from the Agriculture Street Dump, beginning in or about 1948.” Although this allegation regarding Letellier Phillips is in the original third party-demand, rather than the amended third party demand, the allegations in the original demand are expressly incorporated by reference into the amended demand. In the amended third party demand, the School Board makes allegations regarding CFI and IPC as the corporate successors of Letellier Phillips.

Thus, on the face of the amended petition, including the pleadings expressly incorporated by reference, Letellier Phillips salvaged, rather than deposited, material from the Agriculture Street Landfill. The amended third party demand then alleges that CFI and IPC, as the corporate successors to Letellier Phillips, improperly or illegally disposed of materials with elevated levels of toxicity at the site and should have known that such activity would cause harm to others or to the environment. The only specific factual allegation regarding CFI and IPC, as the |7corporate successors to Letellier Phillips, is that Letellier Phillips salvaged certain items from the Agriculture Street Landfill.

Even after it was amended, the third party demand does not allege that a legal duty was owed to the plaintiffs in this case. CFI and IPC owe no duty to the plaintiffs under the allegations on the face of the amended third party demand.

Although all of the third party defendants are stated to have owed a duty to the plaintiffs to use the Agriculture Street Landfill only for its designated purpose and to disclose what materials were disposed of at the landfill, the only allegation that specifically relates to CFI’s and IPC’s predecessor does not involve depositing or dumping any materials, much less any that were not supposed to have been dumped at the landfill. The specific allegations relating to CFI’s and IPC’s predecessor are contained in the original third party demand and are incorporated by reference into the amended third party demand. These allegations relate to removal of certain materials from the landfill. There are no allegations in the original third party demand or the amended third party demand that the removal of materials from the landfill caused damage to anyone. Additionally, there are no factual allegations in either the original or the amended third party demand that demonstrate how the School Board reached the legal conclusion that CFI and IPC are liable for the activities of a corporate predecessor that allegedly occurred sometime between 1948 and 1958.

Although the School Board has raised an assignment of error contending that the granting of CFI’s and IPC’s exception of no right of action was in error, we need not address that assignment. Our finding that the School Board has no cause of action against CFI and IPC, that finding is dispositive of this case.

Amendment of the Pleadings

La. C.C.P. art. 934 provides that “[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” Article 934 further provides, however, that if the grounds for the objection raised through the peremptory exception cannot be removed, the claim shall be dismissed. The School Board has already been given an opportunity to amend the third party demand, and the objections raised by CFI’s and IPC’s exception of no cause of action have not been removed. Therefore, the claim asserted in the third party demand and the amended third party demand by the School Board against CFI and IPC is dismissed.

CONCLUSION

The trial court judgment is hereby affirmed. The third party demand and the amended third party demand by the School Board against CFI and IPC are hereby dismissed with prejudice.

AFFIRMED AND THIRD PARTY DEMANDS AGAINST CFI INDUSTRIES, INC. AND IPC, INC. DISMISSED.

      . La. C.C.P. art. 927(A)(4)-(5) provides that the objections that may be raised through peremptory exceptions include the exceptions of no cause of action and no right of action.


author: TERRI F. LOVE, Judge. TOBIAS, J.,

text:
    Catherine Dunn, Wife of/and Durward B. DUNN, III v. EASTOVER COUNTRY CLUB (A Partnership in Commendam), Eastover Development Corporation and East New Orleans Properties, Inc. Auguster and Cleo Cage and Ladine R. Cage v. Eastover Property Owners’ Association, Inc.; Eastover Country Club, Inc.; Eastover Country Club (A Partnership in Commendum); and Eastover, Inc.
    No. 2005-CA-0496, 2005-CA-0497.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 22, 2006.
    Arthur A. Lemann, III, Aurhur A. Lem-ann IV, Arthur A. Lemann & Associates, Inc., New Orleans, Counsel for Plaintiff/Appellee.

      Ronald J. Sholes, Mark R. Beebe, Robert N. Markle, Rusty J. Savoie, Adams and Reese, LLP, New Orleans, Counsel for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS Jr., Judge LEON A. CANNIZZARO Jr.)
   TERRI F. LOVE, Judge.

BThe Appellants in this case, Eastover Country Club, L.L.C. (now known as Golf Club of New Orleans, L.L.P., but hereinafter referred to as “Eastover”) and East-over Property Owners’ Association, sus-pensively appeal, requesting this Court to review a denial of a new trial and five issues stemming from litigation surrounding the usage of the Eastover Country Club golf driving range.

FACTS AND PROCEDURAL HISTORY

In 1988, Mr. Auguster Cage and Mrs. Cleo Cage (“collectively, Cages”) purchased a treed lot in the Eastover subdivision located in New Orleans East to build a family home. Shortly after moving into their home, stray golf balls from the driving range, located behind their lot, caused damage to their home and vehicles, decreased the use of the backyard, and caused Mr. Cage personal injury. East-over and the Cages sought a non-litigious solution by relocating the golf tee box further from the Cages’ property. However, this relocation caused another Eastover property owner, the Dunns, to begin experiencing similar problems with errant golf balls. The Dunns filed suit on October 31, 1996, seeking damages, injunctive relief, and alleging negligence, the breach of several agreements to remedy the safety concerns, and intentional infliction of emotional distress.

| ^Relocating the golf tee box did not remedy all of the Cages’ problems. The Cages filed suit against Eastover on April 24, 2000, seeking damages and an injunction to prevent the driving range from operating pending resolution of the suit. The trial court granted a motion to consolidate the Dunns’ and Cages’ suits for discovery purposes only. Seven months later the Dunns settled all claims out of court.

After the Dunns’ case settled, the Cages entered into consent judgments ordering Eastover to install netting systems to protect the Cages and their property from the golf balls. However, the netting systems installed by Eastover did not obtain the desired result. The trial court subsequently ordered Eastover to install a new netting system designed by court appointed expert David Tanner, as well as instructed Eastover to limit the type of golf clubs used to lessen the chances of a ball hitting the Cages’ home before completion of the netting system. Eastover did not comply with the court ordered deadline for installing the netting system designed by Mr. Tanner. The trial court bifurcated the injunction and damages proceedings and proceeded to trial on the injunction matter.

The trial court: 1) granted ■ injunctive relief; 2) ordered Eastover to remove, at their cost, all trees leaning on or endangering the Cages’ property; 3) ordered Eastover to remove the remnants of any prior netting systems adjacent to the Cages’ and Dunns’ properties; 4) ordered Eastover to implement Mr. Tanner’s plan created during the proceedings, later known as N-l; 5) required the use of limited flight golf balls on the driving range and limited the tee box to 50 by 200 feet; 6) ordered the closure of the driving range until Mr. Tanner’s design could be | ¡¡implemented; 7) assessed expert fees and construction costs to Eastover; and 8) assessed transcription costs of the trial to the Cages. Eastover filed a Motion for a New Trial/to Modify and/or Clarify Judgment (“Motion for a New Trial”) alleging new evidence. The trial court denied the motion without reasons. Eastover suspen-sively appealed alleging that the judgment and denial of a new trial constituted reversible error.

Eastover alleges the trial court erred by: 1) denying the motion for a new trial; 2) granting excessive and economically inequitable injunctive relief; 3) providing relief to parties not included in the suit; 4) requiring the construction of Mr. Tanner’s plan which violated zoning laws and the Dunns’ settlement; 5) requiring the removal of trees, which the Cages’ injunctive relief claim did not request; and 6) failing to grant Eastover’s exception of prescription.

STANDARD OF REVIEW

The trial court has wide discretion when deciding to grant a new trial. La. C.C.P. Art. 1973. However, Louisiana law provides that a “new trial shall be granted, upon contradictory motion of any party” when the “judgment appears contrary to the law” or when a “party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during trial.” La. C.C.P. Art. 1972. The appellate court will reverse a denial of a new trial upon a showing of abuse of discretion by the trial judge. \ McGhee v. Wallace Drennan, Inc., 2004-0950, p. 11 (La.App. 4 Cir. 4/20/05),904 So.2d 3, 9.

DENIAL OF MOTION FOR NEW TRIAL

A motion for a new trial should be granted when new evidence could not be discovered prior to trial. La. C.C.P. Art. 1972. Eastover presented new evidence post-trial. At trial, Mr. Tanner testified that a netting system encompassing the entire driving range was unnecessary to protect the Cages and their property. Post-trial, Mr. Tanner created a new design that would be less financially cumbersome to Eastover than the $500,000 N-l plan and would not impinge on the property owners surrounding the driving range who were not parties to any litigation. The new .plan also complied with local zoning ordinances whereas the N-l plan ordered by the trial court violated local zoning ordinances. Lastly, the N-l plan would require Eastover to violate the previous settlement in the Dunns’ ease.

The new evidence presented by East-over was not discoverable before trial because Eastover was unaware that the trial court’s judgment would encompass a netting system that included parties not before the court. Therefore, we find the trial judge abused his discretion by denying Eastover’s Motion for New Trial in light of post-trial evidence.

INJUNCTIVE RELIEF AND PRESCRIPTION

We pretermit the discussion of the remaining assignments of error due to the reversal of the trial court’s denial of the Motion for New Trial.

DECREE

We remand all issues to the trial court for reexamination considering the new evidence and to seek a final resolution between the parties.

REVERSED AND REMANDED.

TOBIAS, J., concurs in the result, dissents in part, and assigns reasons.

TOBIAS, J.,

concurring in result and dissenting in part.

hi respectfully concur in the result of the majority to reverse the judgment of the trial court and remand this matter to the trial court for further proceedings. I respectfully agree with the majority that we should pretermit a decision on East-over’s peremptory exception of prescription in light of the remand. However, I respectfully dissent from the majority’s decision to pretermit a discussion of East-over’s remaining assignments of error because resolution and discussion of them is material to an understanding of why the trial court erred in failing to grant a new trial.

I ¿The majority fails to address East-over’s assignments of error that the trial court granted excessive and economically inequitable injunctive relief, ordered “relief’ to nonparties to the litigation, ordered implementation of a plan that specifically violated New Orleans zoning ordinances and the settlement agreement between Eastover and the Dunns, and ordered the removal of trees which the Cages did not request. In my view, the trial court’s actions far exceeded anything requested by the Cages’ pleadings and addressed issues not raised in the pleadings (issues that were neither tried with the express or implied consent of the parties). See La. C.C.P. art. 1154. The Cages sought by their petition certain limited relief. The trial court rendered a judgment that far exceeded the relief requested. The trial court’s judgment is thus totally erroneous as a matter of law and fact. A full reversal of the trial court’s judgment is required and a new trial had so that a judgment that conforms to the evidence adduced is rendered.

      . We pretermit a discussion of the Dunns’ case because they settled out of court, with prejudice, on March 27, 2003.

      . Mr. Tanner is one of the nation's foremost experts on designing protective netting systems for driving ranges.

      . A new trial may be granted in any case if there is good ground therefore, except as otherwise provided by law.

      . La. C.C.P. Art. 1972: Peremptory grounds
      A new trial shall be granted, upon contradictory motion of any party, in the following cases:
      1) When the verdict or judgment appears clearly contrary to the law and the evidence.
      2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during trial.
      3) When the juiy was bribed or has behaved improperly so that impartial justice has not been done.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Willy Mae THOMAS v. STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS, Orleans Parish Criminal Sheriff's Department & City of New Orleans.
    No. 2005-CA-0959.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 29, 2006.

      Newton T. Savoie, Savoie & Savoie Law Firm, LLC, Marrero, Counsel for Plaintiff/Appellant.
    John F. Weeks, II, T. Allen Usry, Usry, Weeks & Matthews, New Orleans, Counsel for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge MAX N. TOBIAS Jr.)
   JOAN BERNARD ARMSTRONG, Chief Judge.

hThe plaintiff, Willie Mae Thomas, appeals the summary judgment dismissal of her survival action and wrongful death claim on behalf of her son, Derrick Thomas (“Thomas” or “the deceased”), against Sheriff Charles C. Foti, Jr. (“the Sheriff’). We affirm.

The pertinent facts of this case are not in dispute. On September 5, 1997, Thomas was escorted to the nurse’s clinic by a prison guard after he allegedly fainted. Thomas was examined by a licensed practical nurse employed by the Sheriff, Diane F. Ison (Ison). Ison found Thomas’ blood pressure to be 90/56, his temperature to be 101.2 degrees, his respiration 20 and his pulse 112. She noted that he appeared to be dizzy and disoriented and did not seem to know his whereabouts at the time. Ison’s notes reflect that she had some indication, the source of which is unclear from the record, that Thomas had consumed another inmate’s medication. After her assessment of Thomas, Ison made telephone contact with Dr. Marguerite R. Poreda (Dr. Poreda), one of the physicians on call at the prison. Dr. Poreda was not an employee of the Sheriff; however, she provided her services under contract between the Sheriff and her employer, Louisiana State University Health Science Center (LSU). Dr. Poreda is a medical |2doctor who specializes in psychiatry. Dr. Poreda was told that Thomas was hypoten-sive, weak, and shaky. She was also informed that Thomas had taken another inmate’s prescription drug medication. Dr. Poreda instructed that Thomas be seen by a physician on the next available sick call.

Dr. Poreda saw Thomas on September 8, 1997. At that time, she observed that he was extremely thin at 100 lbs., 6'1" tall. Thomas admitted to her that he had been taking his friend’s prescription of Thorazine because he thought it might help him pick up his weight. Thomas told Dr. Pore-da that he had stopped taking the drug and that he was doing better. Dr. Poreda found that Thomas had nothing acute at the time. Dr. Poreda’s impression was that Thomas had a history of drug conduct disorder, that he had a drug intoxication with side effects that was resolving, and that he didn’t need to return for follow-up unless there was another problem.

On September 15, 1997, Thomas was rushed to Charity Hospital where he was forced to undergo several surgeries as a result of a bacterial infection which started in his teeth and gums and spread to his heart and brain. Thomas remained in Charity Hospital until his death on November 10,1997.

On January 28, 1998, the plaintiff filed a Petition for Wrongful Death and Survival Action against the Department of Corrections (“DOC”), the Sheriff, and the City of New Orleans (“City”). On September 19, 2003, an amended petition was filed, naming LSU and Dr. Poreda as additional defendants.

The City was released on an Exception of No Cause of Action on November 17, 1999. The Sheriff and DOC each filed a Motion for Summary Judgment which |swere presented to the trial court on September 22, 2003. The DOC’s Motion for Summary Judgment was granted as unopposed. The judgment granting the Motion for Summary Judgment in favor of the Sheriff was rendered on December 2, 2003.

The plaintiff appealed the judgment dismissing the Sheriff. (Appeal No.2004CA-0210); however, on June 23, 2004, this Court dismissed the appeal without prejudice because the judgment was an unap-pealable partial judgment pursuant to La. C.C.P art. 1915(B) as amended in 1997. The dismissal of the appeal was based on this Court’s finding that two defendants remained in the case, namely LSU and Dr. Poreda, and that the trial court did not certify the judgment as final. On November 19, 2004, the trial court dismissed LSU and Dr. Poreda pursuant to an Exception of Prematurity, thereby rendering the December 2, 2003 judgment in favor of the Sheriff final and appealable. On January 18, 2005, the plaintiff filed the instant appeal, asserting that the trial court erred in granting the Motion for Summary Judgment in favor of the Sheriff when genuine issues of material fact exist.

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480, p. 2 (La.4/11/94), 634 So.2d 1180, 1182. “Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” King v. Parish National Bank, 04-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966(A)(2)).

Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show |4that there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B); Jones v. Estate of Santiago, OS-1424, p. 4 (La.4/14/04), 870 So.2d 1002, 1005. The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. La. C.C.P. art. 966C(2); Hutchinson v. Knights of Columbus, Council No. 5717, 03-1533, pp. 6-7 (La.2/20/04), 866 So.2d 228, 233.

The only issue raised in the Sheriffs Motion for Summary Judgment is the plaintiffs allegation of negligence against Ison. It is undisputed that the Sheriff is not responsible under the doctrine of re-spondeat superior for any of Dr. Poreda’s actions. The plaintiffs claim against Ison is based on the premise that Ison was negligent in choosing to call a psychiatric physician (Dr. Poreda) rather than an internal medicine physician to review Thomas’ complaints. The record reflects that Dr. Poreda was not the only physician on-call on September 5, 1997. In connection with the Sheriffs Motion for Summary Judgment, the trial court reviewed the depositions of Ison, Dr. Poreda, and the plaintiffs medical expert, Dr. Reginald J. Ross. An affidavit of Dr. Ross, prepared subsequent to his deposition, was also submitted.

Ison stated in her deposition that based on Thomas’ symptoms, i.e., dizzy and disoriented, and the presumption that Thomas had taken another inmate’s medicine, she believed that Thomas needed to see a psychiatric doctor. We note from Dr. Ross’ deposition testimony that he had no criticism of the medical care | ^provided by Ison. Specifically, he stated: “I think the nurses acted as they can, in the sense of relaying the information to the physicians and leaving it up to the physicians to make a determination as to what needed to be done.”

The only evidence offered by the plaintiff in opposition to the Motion for Summary Judgment, to show negligence on the part of Ison, was the affidavit of Dr. Ross. In this affidavit, which was prepared after the filing of the Motion for Summary Judgment and more than one year after his deposition, Dr. Ross opined that Ison was negligent based solely on the fact that Ison chose to call a psychiatric physician when she had the option of calling an internal medicine physician.

It is well established that supporting and opposing affidavits shall be made on personal knowledge and set forth facts that would be admissible in evidence. La. C.C.P. art. 967. Ultimate facts and conclusions of law contained in supporting affidavits cannot be considered for purposes of summary judgment. JCM Const. Co., Inc. v. Orleans Parish.School Bd., 02-0824, p. 42 (La.App. 4 Cir. 11/17/03), 860 So.2d 610, 635.

At the conclusion of the hearing, the trial judge expressed his findings orally on the record, as follows:

The Court is of the view that the only link to the Sheriffs Department is Nurse Ison, and that Nurse Ison contacted a doctor, gave the doctor the vitals, as well as the behavior of the— inmate. And the doctor prescribed a regime of treatment which the records seem to reflect Nurse Ison followed.
The defendants — I’m sorry, the plaintiffs expert, Dr. Reginald Ross, when deposed indicted that he didn’t find any of the actions of the medical providers, including Nurse Ison, to be a breach of any standard, but did indicate that he would like to see further records. Allegedly, he saw further records and was able to indicate that the Ronly negligence, and that’s the doctor’s term, not the Court — although it should be the Court and not the doctor’s, the only negligence he found was that the nurse called an internal physician — I’m sorry, called a psychiatric doctor and not an internal physician.
The Sheriffs Department has already indicated that the doctor at that time, Dr. Poreda, was in fact one of the doctors on call for Nurse Ison to call. And, we all know that as a — factual matter, a psychiatric doctor is also a medical doctor, and by definition has to be.
Further, the record is replete with information, factual information, demonstrating that on September the 8th, Dr. Pore-da actually met with and evaluated Mr. Thomas. And in the doctor’s opinion, the problem that Mr. Thomas was complaining about was resolved and the doctor didn’t see any need for any hospital intervention. Now, certainly,' if that’s the doctor’s view on September the 8th, we cannot hold Nurse Ison to a higher standard than we hold the doctor.
And for all the foregoing reasons, this Court grants the motion for summary judgment on behalf of the Orleans Parish Criminal Sheriffs Department.

After our own review of the record, we find no error on the part of the trial court. The plaintiff relies on the opinion of Dr. Ross to defeat the Sheriffs Motion for Summary Judgment. However, we find that Dr. Ross’s affidavit is eonclusory and offers not a scintilla of specific facts pertinent to Ison’s alleged negligence. Dr. Ross opined only that Ison was negligent in calling Dr. Poreda instead of an internist. Such a eonclusory statement does not constitute factual support sufficient to establish that the plaintiff will be able to satisfy her evidentiary burden of proof at trial.

For the foregoing reasons, the judgment of the trial court, granting summary judgment in favor of the Sheriff, is affirmed.

AFFIRMED.

      . Thorazine is an anti-psychotic drug that is prescribed for psychotic disorders and behavioral problems.

      . Dr. Ross did, however, express the opinion that Dr. Poreda was negligent. As previously slated, the allegations against Dr. Poreda are not at issue in this appeal.


text:
    Michael L. BROWN and William C. Pritchard v. Marion Sullivan Vandenberg SCHREINER and American Wholesale Fence Co., Inc.
    No. 2005-CA-0255.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 5, 2006.

      Randall A. Smith, Smith & Fawer, L.L.C., New Orleans, Counsel for Plaintiffs/Appellees, Michael L. Brown and William C. Pritchard.
    C. Gary Wainwright, New Orleans, Counsel for Defendants/Appellants, Marion Sullivan Vandenberg Schreiner and American Wholesale Fence Co. Inc.
    (Court Composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, Sr., Judge LEON A. CANNIZZARO, Jr.)
   LEON A. CANNIZZARO, JR., Judge.

_[jThis case involves a contractual dispute between the plaintiffs, Michael L. Brown and William C. Pritchard, and the defendant, Marion Sullivan Vandenberg Schreiner, regarding the ownership of the defendant, American Wholesale Fence Company, Inc. The case was tried as a bifurcated matter in a non-jury trial, resulting in a judgment in favor of the plaintiffs for the first phase of the trial on November 10, 2003. After the trial court denied their motion for a new trial, the defendants filed a notice of intent to seek a suspensive appeal from the November 10, 2003 judgment. However, on February 3, 2004, the parties and the trial court signed a consent order, reserving all appeals from the November 10, 2003 judgment “until the conclusion of the trial on the second phase of this bifurcated proceeding, or any appeal therefrom if a suspensive appeal from this Court’s judgments is entered herein.”

Following the second phase of the trial, the trial court rendered a judgment on March 26, 2004, partitioning the ownership interests that had been recognized in the judgment of November 10, 2003. The plaintiffs timely filed a motion for |anew trial, which the trial court denied on May 27, 2004. Neither the plaintiffs nor the defendants timely appealed from the March 26, 2004 judgment.

On September 20, 2004, the plaintiffs filed a motion in the district court to dismiss the defendants’ appeal, arguing that because the defendants had never obtained an order of appeal or posted an appeal bond after filing their notice of intent to seek a suspensive appeal from the November 10, 2003 judgment, and also failed to appeal from the March 26, 2004 judgment, they had not reserved their rights to appeal. The trial court, nevertheless, granted the defendants a devolutive appeal on December 21, 2004.

The defendants are now before this Court, arguing that the instant appeal is an appeal from the November 10, 2003 judgment, not the March 26, 2004 judgment, and the trial court merely honored the terms of the February 3, 2004 consent order by granting them a devolutive appeal. We find no merit to this argument.

Despite the consent order reserving all appeals from the November 10, 2003 judgment until after rendition of a judgment in the second phase of the trial, if the defendants, after filing their notice of intent to seek a suspensive appeal from the November 10, 2003 judgment, had obtained an order of appeal and/or posted an appeal bond in accord within the time delays set forth in La. C.C.P. arts. 2123 and 2124, then they would have properly appealed from that judgment. However, because the defendants failed to obtain an order of appeal and/or post an appeal bond after filing their notice of intent to seek a sus-pensive appeal, there is no |sappeal, either suspensive or devolutive, from the November 10, 2003 judgment pending in this court.

Moreover, pursuant to La. C.C.P. art. 2087 A(l), the defendants had sixty (60) days from the date of the mailing of the notice of the trial court’s denial of the motion for new trial to appeal from the March 26, 2004 judgment. The record reflects that the trial court mailed the notice on May 27, 2004. Thus, the defendants had until July 26, 2004 to take a devolutive appeal from the March 26, 2004 judgment, but failed to do so.

The defect of not taking an appeal timely is jurisdictional. State ex rel. EA, 2002-996 (La.App.10/02/02), 827 So.2d 594. The trial court, the appellate court, or counsel cannot extend the statutory time allowed for taking an appeal. Hawkins v. Shropshire, 275 So.2d 821 (La. App. 4th Cir.1973). The defendants failed to timely appeal either the November 10, 2003 judgment or the March 26, 2004 judgment, and the trial court had no authority to extend the statutory time delay and grant them a devolutive appeal.

Accordingly, the devolutive appeal granted by the trial court on December 21, 2004 is dismissed.

APPEAL DISMISSED.


text:
    Rosalind BROWN v. Freddie LEE, Zulu Social Aid and Pleasure Club, Inc., Clarendon America Insurance Company.
    No. 2005-CA-1302.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 5, 2006.

      Pierre F. Gaudin, Elizabeth M. Gaudin, Gaudin & Gaudin, Gretna, Counsel for Plaintiff/Appellant, Rosalind Brown.
    Lambert J. Hassinger, Jr., Galloway Johnson Tompkins Burr & Smith, New Orleans, Counsel for Defendants/Appel-lees, Zulu Social Aid & Pleasure Club, Inc., Mr. Freddie Lee and Clarendon America Insurance Company.
    (Court Composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, Sr., Judge LEON A. CANNIZZARO, Jr.)
   LEON A. CANNIZZARO, JR., Judge.

|-i Rosalind Brown, the plaintiff, is appealing a trial court decision granting summary judgment in favor of the defendants, Zulu Social Aid and Pleasure Club, Inc., Freddie Lee, a member of the Zulu organization, and Clarendon American Insurance Company, Zulu’s insurer. Ms. Brown is appealing only the summary judgment in favor of Mr. Lee.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Ms. Brown sued the defendants for damages in connection with injuries that she allegedly sustained when she was hit by a coconut while she was watching a parade sponsored by Zulu in New Orleans on Mardi Gras Day. As a float in the Zulu parade was turning a corner, a rider on the float allegedly threw a coconut at her, and she was hit in the face. She was momentarily rendered unconscious, and she was treated at an emergency room shortly after the incident. Subsequently, she sought further treatment when the pain from the injury persisted, and she was diagnosed with an orbital fracture.

| 2Ms. Brown has alleged that Mr. Lee, the rider who threw the coconut to her, was grossly negligent in throwing a coconut in an overhand manner a distance approximately equivalent to one and a half times the length of a large automobile. Therefore, she sought to hold Mr. Lee, as well as Zulu and its insurer, liable for her injuries. All three defendants filed motions for summary judgment, and the motions were granted.

‘ In support of the motion for summary judgment, Mr. Lee submitted an affidavit stating that he was attempting to give Ms. Brown a coconut, because he recognized her as an acquaintance. He further stated in his affidavit that he never intended to harm Ms. Brown. Additionally, an affidavit was executed on behalf of the Zulu organization by its president. In that affidavit, which was also submitted in support of the motion for summary judgment, it was stated that at the time of the alleged incident, Zulu was staging a Mardi Gras parade pursuant to a permit issued by the City of New Orleans. The affidavit executed on Zulu’s behalf additionally stated that the Zulu organization only allows coconuts to be handed, not thrown, to spectators at its parades.

The trial court determined that the defendants would not be liable to Ms. Brown even if she were able to prove all of her allegations, because the trial court found that the defendants were exempt from liability under La. R.S. 9:2796. That statute provides that no person shall have a cause of action against any organization or any member of any organization that presents Mardi Gras parades for any damage caused by the organization or a member in connection with a |3Mardi Gras parade. There is, however, also a provision in the statute that exempts from the immunity afforded by the statute any damage caused by a deliberate and wanton act or the gross negligence of the organization or any of its members. The trial court granted the defendants’ motion for summary judgment and dismissed Ms. Brown’s lawsuit with prejudice.

Ms. Brown did not appeal the summary judgment granted in favor of Zulu or its insurer. She did, however, appeal the summary judgment in favor of Mr. Lee, because she asserts that her damages are the result of his gross negligence.

DISCUSSION

Standard of Review

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. See also Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230.

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). If the court finds that a genuine issue of material fact exists, summary judgment must be rejected. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material |4fact exist. Id. At that point, if the party opposing the motion “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.” La. C.C.P. art. 966(C)(2). Summary judgment should then be granted.

In Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606, the Louisiana Supreme Court stated that “[a] fact is ‘material’ when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” 98-2821, p. 6, 744 So.2d at 610. The Supreme Court also stated that “[fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Id.

Applicable Law

Mardi Gras Statute

La. R.S. 9:2796 provides immunity from liability in connection with Mardi Gras and certain other types of parades. That statute reads in relevant part as follows:

A. Notwithstanding any other law to the contrary, no person shall have a cause of action against any krewe or organization ... or any member thereof, which presents Mardi Gras parades ... for any loss or damage caused by any member thereof, during or in conjunction with or related to the parades ... unless said loss or damage was caused by the deliberate and wanton act or gross negligence of the krewe or organization, or any member thereof ....
B. Any person who is attending or participating in one of the organized parades of floats ... assumes the risk of being struck by any missile whatsoever which has been traditionally thrown, tossed, or hurled by members of the krewe or organization in such parades held prior to the effective date of this Section. The items shall include but are not limited to ... coconuts ... unless said loss or | ¡¡damage was caused by the deliberate and wanton act or gross negligence of said krewe or organization.

Gross Negligence

In Pierre v. Zulu Social Aid & Pleasure Club, Inc., 04-0752 (La.App. Cir.9/29/04), 885 So.2d 1261, this Court discussed the definition of “gross negligence” as follows:

Gross negligence has a well-defined legal meaning, which is distinctly different from the definition of ordinary negligence. In Ambrose v. Neto Orleans Police Department Ambulance Service, 93-3099, 93-3110, and 93-3112 (La.7/5/94), 639 So.2d 216, 219-220, citing State v. Vinzant, 200 La. 301, 7 So.2d 917 (La. 1942), the Louisiana Supreme Court stated that “Louisiana courts have frequently addressed the concept of gross negligence” and that “[g]ross negligence has been defined as the ‘want of even slight care and diligence’ and the ‘want of that diligence which even careless men are accustomed to exercise.’ ”

04-0752, pp. 5-6, 885 So.2d at 1264.

Analysis

In the instant case, Ms. Brown was injured by a coconut that was allegedly thrown a considerable distance in an overhand fashion from a Mardi Gras float as it turned a corner. Under La. R.S. 9:2796(A), Mr. Lee, a member of the Zulu organization who allegedly threw the coconut, is liable for any damages caused by his throwing the coconut if he was grossly negligent in throwing the coconut. | (¡Therefore, the issue in this case is whether or not Mr. Lee was grossly negligent in the way he handled the coconut that injured Ms. Brown. Ms. Brown contends that Mr. Lee threw the coconut in a grossly negligent manner, and Mr. Lee contends that he simply handed the coconut to Ms. Brown. These contentions present a material issue of fact.

Unlike the trial court, we believe that throwing a coconut in the manner Ms. Brown contends it was thrown constitutes gross negligence. We believe that throwing a hard, heavy object such as a coconut at someone in a crowd of people a distance equal to the length of one and a half cars in an overhand manner demonstrates the “want of even slight care and diligence” that is the very definition of “gross negligence.” The Zulu organization prohibits its members from throwing coéonuts into a crowd and only permits its members to disseminate coconuts to parade spectators by handing them to the intended recipient. If Mr. Lee did not follow the rules of the Zulu organization with respect to distributing coconuts along the Zulu parade route, and instead threw a coconut in Ms. Brown’s direction in the manner alleged by her, he was grossly negligent. If, on the other hand, Mr. Lee handled the coconut that hit Ms. Brown in a manner that was not grossly negligent, then he is shielded from liability by the provisions of La. R.S. 9:2796.

Because we find that a genuine issue of material fact exists as to how Mr. Lee handled the coconut that injured Ms. Brown, we find that the trial court erred in granting summary judgment in favor of Mr. Lee. A trier of fact must resolve the 17genuine issue of material fact that exists in this case.

CONCLUSION

The judgment of the trial court granting summary judgment in favor of Mr. Lee is reversed. This matter is remanded for a trial.

REVERSED AND REMANDED.

      . An orbital fracture is a break in one of the bones of the eye socket.

      . We note that La. R.S. 9:2796(A) provides immunity from lawsuits for krewes, organizations, and members of organizations absent deliberate or wanton or grossly negligent acts of those parties. La. R.S. 9:2796(B) provides that spectators at parades assume the risk of being struck by objects traditionally thrown or tossed from floats absent deliberate or wanton or grossly negligent acts of krewes and organizations. Members of the krewes and organizations covered by La. R.S. 9:2796(B) are not mentioned in La. R.S. 9:2796(B). We assume that this omission was a legislative oversight. In the instant case, the language "[n]otwithstanding any other law to the contrary" included in La. R.S. 9:2796(A) makes it clear, however, that deliberate, wanton, and grossly negligent acts of members of parading organizations are not included within the grant of immunity provid-,⅛, R c 0.9704


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Ricky VALENTINE.
    No. 2005-KA-0223.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 5, 2006.

      Eddie J. Jordan, Jr., District Attorney, Meri M. Hartley, Assistant District Attorney, New Orleans, Counsel for Plain-tifflAppellee.

      Christopher A. Aberle, Louisiana Appellate Project, Mandeville, Counsel for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   MICHAEL E. KIRBY, Judge.

| .STATEMENT OF CASE

On May 13, 2004, defendant, Ricky Valentine, was charged by indictment with the first degree murder of Linda Johnson while in the perpetration or attempted perpetration of an aggravated burglary. The defendant pled not guilty at his arraignment on May 25, 2004 and after a five day jury trial on June 7-11, 2004, he was found guilty of second degree murder. On August 12, 2004, defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant’s oral motion for appeal was granted. After the sentencing hearing, he filed motions for new trial, post verdict judgment of acquittal and post verdict modification of verdict. On August 19, 2004, the trial court set aside the sentence imposed on August 12, 2004 and the court considered the motions. All were denied. The defendant waived all legal delays and was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

I STATEMENT OF FACT

Officer Yvonne Farve responded to a call at 2826 Clara Street, Apartment E, in the early morning hours of September 15, 2000. When she arrived on the scene, she knocked on the door but no one answered. The door had to be forcibly opened. Once the door was opened, the officer found a woman, in a seated position behind the door, bleeding from the back of her head and right abdomen. The officer tried to render aid, but the victim was unresponsive. The officer then requested an emergency unit. The victim was later identified as Linda Johnson. Officer Farve noted, upon viewing the scene, that the air conditioning unit had been pushed out of the window and was on the floor. The window above the air conditioning unit was open. The officer noted that there was water on the window ledge. When the emergency unit arrived, the medics rendered aid to the victim and transported the victim to the hospital. The officer spoke with the victim’s children. She also requested a crime lab unit be sent to the scene. The officer then turned over the case to Detectives Crowden and Johnson.

Officer Karl Palmer, a technician with the New Orleans Police Department Crime Lab, was called out to he scene at 2826 Clara Street. The officer sketched the layout of the apartment. He noted that there were two drops of blood on the living room floor.

Detective Bernard Crowden was the lead detective who investigated the case. When he arrived on the scene, the victim had been transported to the hospital. The victim’s four children (ages seven, nine, eleven, and thirteen) were still on the scene. A witness who lived across the street from the victim was located. The officer took statements from the witness, Eteria Nelson, and the victim’s children. Detective Crowden noted that the air conditioning unit was on |sthe floor inside the residence. The officer also observed that there was water and condensation on the window ledge. He did not observe footprints in the area around the water. Detective Crowden stated that he did not see any watermarks in the apartment.

After Detective Crowden returned to the Sixth District office, he learned that the defendant, Ricky Valentine, was at Central Lockup. Detective Crowden went to Central Lockup and picked up Valentine. Valentine asked the officer if the victim, Linda Johnson, was dead. Ms. Nelson identified the defendant in a photographic lineup as the person she saw climbing into the victim’s residence during the early morning hours of September 15, 2000. A search warrant was obtained for the defendant’s mother’s house. A red backpack containing the defendant’s driver’s license and other items belonging to the defendant was found during the search. The driver’s license listed defendant’s mother’s address as defendant’s address. Defendant’s clothing tested negative for blood and gunpowder. Detective Crowden noted that there were no signs of a struggle on the defendant, i.e., there were no scratches or bruises. The defendant was initially arrested for attempted first degree murder. However, when it was learned that the victim had died at the hospital, the defendant was re-arrested for first degree murder. The victim died from three gunshot wounds — one to the head, one to the buttocks and one to the abdomen.

The officer obtained a copy of the apartment lease from the Housing Authority of New Orleans. The parties listed on the lease agreement were the victim, Linda Johnson, and her four children. The defendant was not listed on the lease agreement.

| ¿Officer Jeffrey Wall and his partner, Officer David Osborne, were on their way to the Second District station when they saw a child, later identified as Paul Johnson, wearing only a shirt and underwear, running down Napoleon Avenue. The officers pulled their vehicle next to the child and blew the horn. The child then began flagging the officers down. After speaking with the child, the officers learned that a COPS unit was handling a call of an aggravated battery by shooting. The COPS unit informed the officers that they had the scene under control and requested that the officers relocate to the scene with the child. When the officers arrived on the scene, they observed the victim being placed into an ambulance. The officers attempted to console the child, who was very emotional. The officers handed the child over to the detectives handling the case.

Dr. Richard Tracy performed the autopsy on the victim, Linda Johnson. The autopsy revealed that the victim had been shot three times. The first and fatal shot entered the victim above and behind the right ear. Bullet fragments were found in the victim’s head. The second wound entered near the lower end of the spine, traveled through the kidney and liver, and ended beneath the skin. The bullet from the second wound was retrieved during the autopsy. The third wound was a flesh wound to the right buttock. The bullet passed through soft tissue under the skin and exited in front of the hip. All three wounds entered from the back of the body. Dr. Tracy testified that he would not expect much external bleeding from the gunshot wounds. The gunshot wound to the head would not bleed out but there would be bleeding inside the head. The gunshot wound in the abdomen damaged the kidney and liver but did not leave any route for blood to escape the body. The blood 1 saccumulated in the body cavity. The flesh wound to the buttock caused no significant injury, and there would be no blood from that wound.

Officer Kenneth Leary, a firearms examiner with the New Orleans Police Department Crime Lab, examined the bullets and fragments recovered during the victim’s autopsy. Officer Leary was unable to determine if the bullets, .38 caliber, were fired from the weapon found on the premises due to the deformity of the bullets.

Caroline Johnson was seven years old when her mother, Linda Johnson, was killed. On the night of the incident, September 15, 2000, Caroline, her mother, her sister, Cassandra, and her two brothers, Paul and Jeremiah, were sleeping in the front room of their apartment. The children were sleeping on mattresses on 'the floor and Linda Johnson was sleeping on the sofa. Caroline awoke when she heard noise coming from the air conditioning unit. She saw the air conditioning unit fall on the floor and a man coming in through the window. She recognized the man as the defendant, her mother’s boyfriend. The defendant was carrying a burgundy backpack and holding a gun. Cassandra grabbed Caroline’s hand and they ran into the bathroom with their brother, Jeremiah. Cassandra locked the bathroom. Caroline saw Paul, her older brother, run through the back door. After the defendant left, Caroline and her siblings came out of the bathroom. Her mother was lying by the front door, unable to walk or talk. Cassandra then called 911. Caroline testified that the defendant had been staying with them but that her mother had just broken up with the defendant.

Jeremiah Johnson, the victim’s youngest son, was nine years old at the time of the incident. He, his mother and his siblings were sleeping in the front room of their apartment when he heard noise from the air conditioning unit. He awoke to |fifind the defendant pushing the air conditioning unit out the window. Jeremiah saw the defendant holding a backpack and a gun. He and his two sisters ran into the bathroom. Jeremiah’s older brother, Paul, ran out the back door. While he was in the bathroom, he heard gunshots. After hearing the front door slam shut, Jeremiah and his sisters came out of the bathroom. His mother was lying on the side of the front door. She was bleeding and immobile. Cassandra called the police. Jeremiah stated that his mother and defendant were dating but they had broken up shortly before the incident.

Paul Johnson, the victim’s oldest child, testified that he was awakened by the defendant’s voice. He heard the defendant calling his mother’s name. The defendant was standing outside the window, holding a gun. The defendant had pushed the air conditioning unit out of the window. When the defendant started shooting, Paul ran out the back door of the apartment to get help. Paul ran down Napoleon Avenue and flagged a police officer. The police officer took Paul back to his house. Paul testified that the defendant did not live with them. He also stated that he did not see the defendant and his mother struggle for the gun.

Eteria Nelson lived across the street from the victim. Her bedroom window faces the victim’s apartment. On the night of the incident, Ms. Nelson had left her bedroom window open. She woke when she heard noise outside. Ms. Nelson saw a man push an air conditioning unit out of a window and climb through the window. She then heard gunshots. A few minutes later, Ms. Nelson saw the same man exit the apartment from the front door and walk down the steps. Ms. Nelson identified the defendant as the man she saw entering the victim’s apartment from the window and leaving the apartment through the front door.

RSergeant Carlos Louque of the Orleans Parish Criminal Sheriffs Office was on duty on September 15, 2000. Sergeant Louque was advised that a man had arrived at Central Lockup and wanted to turn himself in on a murder charge. The officer went to Intake and Processing and met the defendant. The defendant told Sergeant Louque “he did a murder” and “wanted to turn [himjself in.” The officer asked the defendant when and where the murder occurred. The defendant answered that he did not remember. Sergeant Louque then ran the defendant’s name through the computer and could not find any outstanding warrants. Noting that the defendant’s address was listed as Third Street, the officer called the Second District. Sergeant Louque was informed that there had been a shooting in the Sixth District. The officer from the Second District called Louque back and informed him that the defendant was wanted in regards to a shooting in the Sixth District and that officers from the Sixth District would be coming to pick up the defendant. When the Sixth District officers arrived, the defendant was arrested and placed in handcuffs.

Ricky Valentine testified on his on behalf. He acknowledged that he had fourteen prior convictions for simple robbery. He stated that he and the victim, Linda Johnson, had been involved for four years and lived together for three years. They became engaged in 2000. Valentine testified that he was self-employed as a trucker. ■ He arrived home, at the victim’s apartment, around 2:30 a.m. from a job. He entered the house from the front door, with a key, and noticed that Linda was sleeping on a mattress on the floor in the front room. The television was on. Linda got up and went to the bathroom. When she came back, she questioned him about his whereabouts. They quarreled, and she told him to leave. He went to take the air conditioning unit out of the window. The defendant testified that he purchased | sthe unit. When he turned around, Linda was reaching for a gun in her closet. The defendant dropped the air conditioning unit and lunged toward Linda. They struggled and shots were fired. The defendant stated that Linda had firm control over the gun. After the shots were fired, Linda fell to the floor. The defendant told the children to stay in the apartment and he would go get help. He did not believe the telephone in the apartment was working. He ran down the stairs and headed towards a grocery store on Washington Avenue to call the police. When he turned around he saw Paul standing on the steps, holding the gun. This frightened defendant so he ran to his mother’s house and told her what happened. His mother and brother then took him to Central Lockup. When he arrived at Central Lockup, he refused to speak with anyone. The defendant admitted that his driver’s license, which was issued in June, 2000, listed his address as Third Street. He also acknowledged that he was not listed on the lease for the victim’s apartment.

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, the defendant argues that the trial court erred when it refused to instruct the jury on the law of negligent homicide.

La.C.Cr.P. article 807 provides:

The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges |ato the other party when the charges are submitted to the court.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

La.C.Cr.P. article 802 provides that the court shall charge the jury as to the law applicable to the case. La.C.Cr.P. article 808 states that “[w]hen a count in an indictment sets out an offense which includes other offenses of which the accused could be found guilty under the provisions of Article 814 or 815, the court shall charge the jury as to the law applicable to each offense.”

Negligent homicide is defined in LSA-RS 14:32 as follows:

§ 32. Negligent homicide
A. Negligent homicide is the killing of a human being by criminal negligence.
B. The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.

Criminal negligence is defined by LSA-R.S. 14:12, to wit:

12. Criminal negligence
Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

Under La.C.Cr.P. article 814, negligent homicide is not a responsive verdict to first degree murder. As a general matter, a trial judge has the duty to instruct jurors as to “every phase of the case supported by the evidence whether or not accepted by him as true,” and that duty extends to “any theory ... which a jury Imcould reasonably infer from the evidence.” La.C.Cr.P. article. 802; State v. Marse, 365 So.2d 1319, 1323 (La.1979); State v. Johnson, 438 So.2d 1091, 1097 (La.1983); State v. Goodley, 01-0077 (La.6/21/02), 820 So.2d 478, 482. In State v. Johnson, 438 So.2d at 1097, the Supreme Court held that the defendant was not entitled to a negligent homicide instruction because “[t]he defendant simply did not present any evidence which could fairly support a defense of negligent homicide.”

In the present case, defendant relies on his testimony that there was a struggle for the weapon and that the weapon fired during the struggle in support of his argument. In making this argument he seems to try to bring himself within the purview of State v. Williams, 606 So.2d 1387 (La. App. 2d Cir.1992). In that case Williams was convicted of second degree murder upon the following facts: He and a friend drove to Lisa Webb’s house where they encountered several people standing in the yard. As the defendant walked into the yard, the victim struck him knocking him to the ground. After he was assisted to his feet defendant returned to his vehicle and obtained a handgun. There was conflicting testimony as to what happened upon defendant’s re-entry into the yard. Some witnesses said the defendant walked up to the victim and fired the gun, hitting him in the chest; others testified the victim grabbed for the gun which then discharged. There was some testimony that defendant and the victim engaged in a “tussle” prior to the shot. The defendant told a witness that he thought the gun was on safety when he returned to the yard.

At trial the defendant asked for a jury charge on negligent homicide but the trial court refused to give it since it found the charge was not supported by the Inevidence. However, the Second Circuit disagreed finding that the testimony about the victim grabbing for the gun prior to its discharge, the “tussle” and the defendant’s statement immediately after the incident to the effect that he thought the gun was on safety gave some support to a finding of negligent homicide. It reversed the conviction and remanded the case for a new trial.

The only similarity between Mr. Valentine’s case and the Williams, supra, case is that Mr. Valentine claims there was a struggle or “tussle”.

Here, the eyewitness testimony and medical evidence refute the defendant’s theory of a negligent homicide. The victim’s children testified that the victim did not struggle with the defendant. They stated that the defendant shot the victim from the window. Further, Dr. Tracy testified that the gunshot wounds sustained by the victim entered from the back. Dr. Tracy opined that there was no possibility that the victim could have inflicted the wounds on herself during a struggle. The only testimony concerning a struggle came from the defendant, but unlike in Williams, here the defendant asserts the victim always had the gun. According to his own testimony defendant never had the weapon.

We find that the outcome of this case is governed by State v. Johnson, supra, where the Supreme Court found the defendant’s evidence not probative of criminal negligence.

In the case sub judice the testimony, including that of the defendant, is bereft of any evidence that the defendant was negligent, much less grossly negligent. His testimony could have possibly served as a foundation for self-defense, but there is no criminal negligence aspect to such a defense. On the contrary, one has a privilege to defend one’s self. The mere fact that there was a tussle does not automatically entitle defendant to a negligence homicide charge.

hpThere was no evidence presented to the jury from which it could have concluded that the defendant’s conduct was in such disregard of the interests of others that it amounted to a gross deviation below the standard of care expected to be maintained by a reasonably careful person under like circumstances.

As there was no evidence from which the jury could infer that the defendant was guilty of negligent homicide, the trial court correctly denied the defendant’s request to charge the jury on the issue of negligent homicide.

This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 2

The defendant also contends that the trial court erred when it failed to grant his request for a mistrial based upon the prosecutor’s reference to his post-arrest silence. The reference occurred during opening statements.

Under La.C.Cr.P. article 771, when the prosecutor or a witness makes a reference to a defendant’s post-arrest silence, the trial court is required, upon the request of the defendant or the State, to promptly admonish the jury. In such cases where the trial court is satisfied that an admonition is not sufficient to assure the defendant a fair trial, the court may grant a mistrial upon motion of the defendant. State v. Kersey, 406 So.2d 555, 559 (La.1981). The granting of a mistrial is within the discretion of the trial court if the trial court is satisfied that an admonition is not sufficient to assure the defendant a fair trial. State v. Procell, 365 So.2d 484, 491 (La.1978), cert, denied, 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046 (1979). A brief reference to a defendant’s post-arrest silence does not mandate a mistrial or reversal when the trial as a whole was fairly conducted, the proof of guilt is strong, 11sand the prosecution made no use of the silence for impeachment purposes. State v. Ledesma, 01-1314 (La. App. 5 Cir. 4/30/02), 817 So.2d 390.

In State v. Smith, 336 So.2d 867 (La. 1976), the defendant’s motion for mistrial was based upon a comment made by the prosecuting attorney during the direct examination of the arresting officer in an attempt to summarize the officer’s testimony. The prosecutor stated that the defendant had refused to give a statement when he was under custodial arrest. The Supreme Court found that the reference by the prosecutor was incidental and inadvertent and there was no indication of the deliberate intent of the State to inject or exploit the issue, and held that the trial court did not abuse its discretion in denying the motion for mistrial.

In State v. Olivieri, 03-563 (La.App. 5 Cir. 10/28/03), 860 So.2d 207, the defendant challenged the comment made by the State in its opening statement referencing defendant’s post-arrest silence. The prosecutor commented in the opening statement, “And then when Agent Riker asked him about the rapes, the Defendant decided he didn’t want to talk any more.” The Fifth Circuit found that the comment did not warrant reversal of the defendant’s conviction. The court stated:

The prosecutor’s reference to defendant’s post-arrest silence during opening statement was brief. The record shows the State’s opening statement was approximately 18 pages and only one sentence out of the 18 pages referenced defendant’s post-arrest silence. There is no indication that the brief reference by the prosecutor was a deliberate attempt to inject or exploit the issue. The remark was made at the beginning of a three-day trial and there is no indication the State attempted to stress or make continued references to defendant’s post-arrest silence. Additionally, the evidence against defendant was overwhelming. Defendant admitted he kidnapped and robbed the victim. His DNA matched the DNA found in the semen stains |ulocated ⅛ the victim’s car and his fingerprint was found on an item in the victim’s car.
The record shows that the trial as a whole was conducted fairly and defendant’s guilt was overwhelming. Under these circumstances, a mistrial was not warranted. While defendant was entitled to an admonishment for the prosecutor’s improper remark, defendant did not request it. Nonetheless, the failure of a trial court to admonish the jury is considered harmless’ error when there is considerable evidence of the defendant’s guilt. See, State v. Jones, 94-0926 (La. App. 4 Cir. 12/28/94), 648 So.2d 472, 480, writ denied, 95-0272 (La.6/16/95), 655 So.2d 346; State v. Stelly, 93-1090 (La. App. 1 Cir. 4/8/94), 635 So.2d 725, 729, writ denied, 94-1211 (La.9/23/94), 642 So.2d 1309; State v. Smith, 336 So.2d 867, 869-870 (La.1976).

Olivieri, 03-563, pp. 12-13, 860 So.2d at 214-215.

An error is harmless, when it can be shown beyond a reasonable doubt that the complained-of error did not contribute to the verdict. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. McQuarter, 2000-1553 (La.App. 4 Cir. 6/6/01), 788 So.2d 1266.

In the case at bar, the prosecutor made the following comment during opening statements:

At some point, Ricky Valentine is brought into the sub-station where Detective Crowden is and Detective Crow-den gives Mr. Valentine an opportunity to make a statement if he chooses. He didn’t have to. He didn’t want to make a statement but he did ask one question.

Thereafter, the defendant immediately sought a bench conference and requested a mistrial. The trial court did not rule on the defendant’s motion at that time and h sallowed the prosecutor to continue her opening statement. When the prosecutor continued her opening statement, she stated “at some point, Ricky Valentine was brought to Detective Crowden and at that point, Ricky Valentine made a statement to Detective Crowden, ‘Is she dead.’ That was his statement.” The prosecutor made no other statements about the defendant’s post-arrest silence. Later, the trial court denied the request for a mistrial, finding that the statement was not a comment on the defendant’s failure to testify.

The prosecutor’s brief remark about the defendant not wanting to give a statement does not mandate a mistrial or reversal of the conviction. As the trial court noted, the prosecutor’s remark was meant to bring attention to a statement the defendant made, not that defendant did not make a statement. The prosecutor sought to bring attention to the fact that the defendant wanted to know if the victim had died. This evidence was brought out during trial through examination of Detective Crowden, to which the defendant did not object. As in Smith, the prosecutor’s statement was incidental. There was no indication of a deliberate intent to focus on the defendant’s post-arrest silence. In fact, the prosecutor’s comments were meant to focus on the question the defendant posed to Detective Crowden. The trial court did not abuse its discretion when it denied the defendant’s motion for mistrial.

Further, assuming that the trial court committed error in failing to admonish the jury, such error was harmless. The prosecutor’s comment did not contribute to the jury’s verdict, as there was substantial testimonial and physical evidence of the defendant’s guilt. The defendant admitted to Sergeant Louque that he committed a murder. The victim’s oldest child testified that he saw the defendant shoot his mother without provocation. The other children testified that they saw the | 1fidefendant enter the apartment through the window, holding a gun. Ete-ria Nelson, the victim’s neighbor, also testified that she saw the defendant enter the apartment through the window, heard gunshots, and then saw the defendant leave the apartment through the front door. Dr. Tracy stated that the victim sustained three gunshot wounds: one to the back of the head, one to the abdomen, and one to the buttocks. Dr. Tracy further testified that the victim could not have inflicted the gunshot wounds on herself, with or without a struggle.

This assignment of error is without merit.

CONCLUSION

For the above reasons defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The defendant was previously charged in another indictment with first degree murder, as there are references in the transcript concerning the nolle pressing of another case. Further, the appeal record contains the transcript of a suppression hearing held on November 7, 2001, which was held before the present indictment was filed. The transcript of the suppression hearing bears Criminal District Court case number 418-106, Section "E."

      . Community Oriented Police Services

      . The Fifth Circuit in State v. Cedrington, 98-253 (La.App. 5 Cir. 12/16/98), 725 So.2d 565, noted that jurisprudence established in State v. Johnson on the issue of sequestration was superseded by rule.