author:
DENNIS, Justice.
     WILLIAM H. BYRNES, III, Judge Ad Hoc,

text:
    STATE of Louisiana v. Lincoln LEWIS.
    No. 81-KA-2744.
    Supreme Court of Louisiana.
    July 2, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Fred Duhy, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Jeff Calmes, David Randall Buckley, Baton Rouge, for defendant-appellant.
   DENNIS, Justice.

On January 23,1980, the East Baton Rouge Parish Grand Jury returned a true bill charging defendant, Lincoln Lewis, with forcible rape, La.R.S. 14:42.1, aggravated burglary, La.R.S. 14:60, and aggravated crime against nature, La.R.S. 14:89.1. These offenses arose from one criminal episode on November 4,1979. After a trial by jury, defendant was found guilty as charged of all three offenses and sentenced as follows: forty years at hard labor without benefit of probation, parole, or suspension of sentence for forcible rape; thirty years at hard labor for aggravated burglary, to run concurrently with the forty year sentence; and ten years at hard labor for aggravated crime against nature, to run consecutively with the above sentences. On the basis of eight assignments of error , the defendant seeks the reversal of his convictions and sentences.

The twenty year old female victim testified that a black male appeared at her apartment at about 11:00 P.M. on November 4, 1979, and asked to use the telephone and for a drink of water. As she tried to slam the door upon refusing his requests, he forced his way inside. After an initial struggle in the victim’s living room, the perpetrator brought her to the bedroom and for approximately two and a half hours forced her to submit to sexual intercourse three times, performed oral sex on her four times, and compelled her to perform oral sex on him five times. The victim testified that the perpetrator smelled of alcohol and told her that the day of the attack was his birthday. She described the perpetrator as having a scar on the center of his nose and that he was dressed in a blue jersey, blue jeans, sneakers and a cap with leather stripes on each side.

After receiving information that a black male fitting the description of the perpetrator lived in an apartment complex next to the victim’s, investigating officers executed a search warrant of defendant’s apartment and seized items of clothing matching the description given by the victim. The defendant was arrested and identified as the perpetrator by the victim in a line-up conducted on November 6, 1979. At trial the victim positively identified the defendant as the perpetrator and identified the clothes seized by the officers as those worn by him at the time of the rape.

ASSIGNMENTS OF ERROR NOS. 4, 8 & 9

By these assignments defendant contends the trial court committed reversible error in admitting the testimony of state witness, Sylverine Parker, because it was irrelevant.

Ms. Parker testified that she knew the defendant and that he had come to her and her husband’s apartment at approximately 10:00 P.M. on the night of these offenses. Ms. Parker’s apartment is in the same complex as the victim’s apartment. Ms. Parker stated that the defendant was intoxicated and asked her for a drink of water. She refused the request because she and her husband were preparing to go to sleep. Ms. Parker also identified the clothes seized from defendant’s apartment as those which defendant was wearing on the night of the offenses.

Ms. Parker’s testimony was relevant evidence. Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. La.R.S. 15:441. Ms. Parker’s testimony, placing the defendant near the scene of these offenses and corroborating the victim’s testimony as to defendant’s apparel and intoxicated condition tended to show that the defendant committed these offenses. These assignments are without merit.

ASSIGNMENTS OF ERROR NOS. 5 & 7

By these assignments of error the defendant argues that the trial court erred in overruling his objections to hearsay testimony. On direct examination Ms. Parker was asked whether the defendant asked for anything when he came to her door on the night of the crime. Over defendant’s objection, Ms. Parker was allowed to answer that the defendant had asked for a glass of water. On cross-examination Ms. Andrea Lewis, the defendant’s sister, was asked what the defendant had told her regarding his whereabouts on the night of the offenses. Over defense objection, she was allowed to answer that the defendant had told her that he was with a friend at the time of the crimes.

These assignments were without merit. Hearsay testimony relating to an admission of the defendant is admissible under a widely recognized exception to the hearsay rule. La.R.S. 15:449, State v. Hampton, 384 So.2d 340 (La.1980); State v. Walker, 344 So.2d 990 (La.1977); State v. Butler, 302 So.2d 585 (La.1974).

ASSIGNMENT OF ERROR NO. 6

By this assignment the defendant contends that the trial court erred in denying his motion for mistrial on the ground that the state introduced an inculpatory statement of the defendant without prior notice in contravention of Article 768 of the Louisiana Code of Criminal Procedure. Defendant claims that he was not given notice of the state’s intention to introduce evidence that he asked Sylverine Parker for a glass of water when he appeared at her door on the night of the offenses.

Article 768 provides that, should the state fail to give notice of its intention to use a confession or inculpatory statement at trial, it is inadmissible. For purposes of this article, the term “inculpatory statement” refers to defendant’s out of court admission made after a crime has taken place which implicates defendant in its commission. State v. Brent, 347 So.2d 1112 (La.1977); State v. Brumfield, 329 So.2d 181 (La.1976). Because the defendant made the challenged statement one hour before the crimes took place, Article 768 does not govern its admission into evidence.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 10

By this assignment of error the defendant claims that the sentences imposed are excessive in violation of Art. I, Section 20 of the Louisiana Constitution of 1974. Because we conclude that the trial judge did not adequately comply with La.C.Cr.P. art. 894.1, thereby precluding our evaluation of defendant’s excessiveness claim, the sentences are vacated and the case remanded for resentencing in compliance with Article 894.1.

Article 1, Section 20, La.Constitution of 1974 prohibits the imposition by law of excessive punishment. In accordance therewith, in State v. Sepulvado, 367 So.2d 762 (La.1979), we held that “the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review of his conviction.” 367 So.2d 767; State v. Cox, 369 So.2d 118 (La.1979).

With respect to the appropriate standards for that review, we further stated that:

“.. . the statutory criteria legislatively provided by La.C.Cr.P. art. 894.1 (1977), which are similar to those evolved by courts in other American jurisdictions with a constitutional or statutory duty to review exces-siveness, provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives.” 367 So.2d at 769.

La.C.Cr.P. art. 894.1 (1977) sets forth three factors which justify a sentence imposing imprisonment, and eleven other factors which tend to indicate when suspension of sentence or probation is appropriate. The statute provides that the latter, “while not controlling the discretion of the court, shall be accorded weight” by the trial court in its sentencing decision. The enactment concludes that the trial court “shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” State v. Cox, supra, at 121.

Even without formal objection at the time, where the trial judge imposes a sentence without adequate compliance with the mandatory requirement of La.C.Cr.P. art. 894.1, that he state the considerations and the factual basis for his sentence, this court may vacate a sentence and remand for re-sentencing, when the reasons for a sentence that is apparently severe or arbitrary in relation to the particular offender and the actual offense committed do not appear in the record. State v. Wimberly, 414 So.2d 666 (La.1982); State v. Robicheaux, 412 So.2d 1313 (La.1982); State v. Cox, supra. State v. Jackson, 360 So.2d 842 (La.1978); State v. Scarborough, 359 So.2d 982 (La.1978); State v. Sepulvado, 359 So.2d 137 (La.1978). See also State v. Gibson, 362 So.2d 769 (La.1978).

In sentencing the defendant the trial court noted that the crimes committed by the defendant were “very violent,” that the victim was “severely affected emotionally and physically,” that the defendant was armed when he committed these offenses, and that there was no justification for the crimes. For these reasons the trial court sentenced the defendant to the maximum term for forcible rape and aggravated burglary, and ordered that the sentence imposed for aggravated crime against nature, which was two thirds of the maximum term, be served consecutively to the other sentences.

The trial judge’s statements do not represent adequate compliance with Article 894.1. There is no indication that the trial court considered the mitigating circumstances as well as those which weighed in favor of his incarceration. La.C.Cr.P. art. 894.1(B); State v. Gist, 369 So.2d 1339 (La.1979). The defendant had no prior felony or misdemeanor convictions, had been employed as a welder at the time the crime was committed, and his personnel records indicated he was a good worker. While not controlling the discretion of the court, these circumstances must be accorded weight in its determination of the sentence. Moreover, the imposition of consecutive sentences for crimes arising from a single course of conduct requires particular justification. State v. Jacobs, 371 So.2d 727 (La.1979); State v. Cox, supra. The trial court did not attempt to justify the consecutive sentences. Finally, it appears that the trial court believed that the defendant had been armed when he committed the crimes. There is no testimony by any witness that indicates the defendant was armed with a weapon during the commission of the offenses.

We agree with the trial court that the crimes of which defendant stands convicted were violent and reprehensible. Indeed, the sentences imposed may actually represent appropriate, individualized sentences considering these particular offenses and this particular defendant. State v. Robicheaux, supra. However, for the reasons stated above, we can not determine whether the punishment is within a range which constitutionally includes the offender as well as the crimes on the basis of the present inadequate record.

ASSIGNMENT OF ERROR NO. 11

By this assignment the defendant contends that there was insufficient evidence to convict him of any of the crimes charged. This assignment of error is without merit. The evidence, considered in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact of the defendant’s guilt beyond a reasonable doubt of every element of the offenses. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Ramoin, 410 So.2d 1010 (La.1982). State v. Harveston, 389 So.2d 63 (La.1980). The victim’s testimony, along with corroborating testimony from the investigating officers and that of Ms. Parker, establish every element of the offenses charged.

For the reasons assigned the defendant’s convictions are affirmed. The sentences are vacated and the case is remanded for resentencing.

BYRNES and WILLIAMS, JJ. Ad Hoc, concur in part and dissent in part and assign reasons.

WARD, J. Ad Hoc, concurs in part and dissents in part and will assign reasons.

WILLIAM H. BYRNES, III, Judge Ad Hoc,

concurring in part and dissenting in part.

I concur in the majority’s affirmation of the defendant’s conviction but respectfully dissent to remanding the case for resentenc-ing. The majority finds that a remand is required because mitigating factors were not given the weight required by Code of Criminal Procedure, Article 894.1. However, this court has held that where the sentence is not apparently severe on its face there is no need to remand. State v. Jones, 381 So.2d 416 (La.1980). State v. Day, 391 So.2d 1147 (La.1980).

The facts in the record before us provide abundant support for the sentence imposed. The defendant forced his way into the victim’s home at night, raped her three times and forced her to perform oral sex five times during a two and a half hour period. The victim suffered both physical and emotional injuries for which no compensation is possible and which will effect her the rest of her life. She in no way provoked this occurrence.

While the trial judge did not articulate his consideration of mitigating factors such as the defendant’s good employment record and lack of prior convictions, his failure to give those reasons on the record do not require remand under Jones and Day, supra. The brutal nature of this crime is unquestioned and merits severe punishment. The defendant’s work record and lack of prior convictions do not compensate for, or excuse in any way, his conduct.

In State v. Day, supra, a youth of nineteen was convicted of aggravated burglary and attempted simple rape. This court affirmed a forty two and one half year prison term composed of consecutive maximum sentences on each count. The court found that: “There seems little justification for a remand for resentencing when the record so plainly supports the sentence imposed. In the interest of judicial economy we decline to remand to require the trial court to re-state for the record matters which are already apparent from the record. ... In this case the record (emphasis original) plainly supports the forty two and one half year sentence although this was composed of consecutive sentences with a maximum for each offense.”

The facts of that case are similar to the instant case; both involved a nocturnal forced entry, the use of force on a helpless female, sexual assault, and physical abuse.

We note that the trial judge erroneously believed the defendant was armed when he committed these offenses. This belief was part of the trial court’s justification for the sentence imposed. The record does not show the defendant was armed. However, the other facts brought out by the record more than justify the sentence imposed even without the additional aggravating factor of a weapon.

The circumstances of this case simply do not warrant a remand for resentencing.

I therefore respectfully dissent.

R. M. WILLIAMS, Judge Ad Hoc, concurs in part and dissents in part.

I join in the opinion of BYRNES, Judge ad hoc.

       Judges Charles R. Ward, William H. Byrnes III and David R. M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.

      . The defendant originally noted eleven assignments of error, but only eight are briefed and argued; the remaining three are considered abandoned. State v. Sanchez, 400 So.2d 632 (La.1981).

      . Defendant’s argument that reversible error occured when Ms. Parker testified that the defendant and her husband were friends is merit-less because defense counsel elicited this testimony during cross-examination of Ms. Parker.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Robert AYLOR.
    No. 81-KA-3111.
    Supreme Court of Louisiana.
    July 2, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
    Don M. Burkett, Many, for defendant-appellant.
   PER CURIAM.

Defendant was charged by grand jury indictment with attempted second-degree murder in violation of La.R.S. 14:27; 14:30.-1. Prior to arraignment, and at counsel’s request, the trial court, with the Honorable John J. Pickett presiding, appointed a sanity commission for purposes of determining defendant’s competency to stand trial. On September 24, 1980, the state and defense submitted the question on the reports of the commission doctors and the trial court took the matter under advisement. On the next day, however, defendant failed to appear for arraignment and the trial court issued a bench warrant for his arrest. Thereafter, on April 1, 1981, defendant appeared in court before the Honorable W. Charles Brown and entered a plea of guilty to the reduced charge of aggravated battery, La. R.S. 14:34. On September 24, 1981, with the case set for sentencing, defendant then attempted to withdraw his plea on grounds that it was not knowingly and intelligently made. The trial court denied the motion, and sentenced him to nine (9) years’ imprisonment at hard labor.

Defendant has now appealed his conviction and sentence to this Court, urging that the trial judge abused his discretion by refusing to vacate the plea before sentence. See, La.C.Cr.P. art. 559; State v. Andrasi, 343 So.2d 175, 177 (La.1977). We have reviewed the trial court’s Boykin colloquy of April 1,1981, and find that the judge conducted a thorough examination of defendant with regard to the constitutional rights he was waiving, the elements of the offense, the scope of the plea bargain in the case, and the possible sentencing range provided by La.R.S. 14:34. On the present record, we therefore find no apparent defect in the plea colloquy.

We note, however, that the record fails to indicate that the trial court made a formal ruling on defendant’s capacity to proceed. The confusion no doubt stems from defendant’s failure to appear at arraignment on September 25, 1980, and his subsequent plea before another judge on April 1,1981. Nevertheless, it is fundamental that the state may not try a defendant, or accept a plea of guilty from him, if he lacks the capacity to understand the proceedings against him and aid in his own defense. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); State v. Harris, 406 So.2d 128 (La.1981); State v. Holmes, 393 So.2d 670 (La.1981). Once the trial court granted the request for a sanity commission, it could therefore take no further steps in the case until it found that defendant had the capacity to proceed. La. C.Cr.P. art. 642.

Because the commission doctors did in fact examine defendant in August of 1980 and reported their findings to the trial court before he entered his plea, we do not vacate the plea at this time. Compare, State v. Harris, supra. However, we remand this case to the trial court for a formal determination of defendant’s capacity to proceed. If the trial court finds, on the basis of the commission’s reports, that defendant was not competent to stand trial, it should then vacate his constitutionally infirm plea. See, State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977). On the other hand, in the event the trial court finds that he did have the capacity to proceed, we reserve to defendant the right to appeal from that determination.

CASE REMANDED.


author:
WATSON, Justice.
      CALOGERO, Justice,

text:
    STATE of Louisiana v. Stephanie STILLEY.
    No. 82-WA-0709.
    Supreme Court of Louisiana.
    July 2, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan S. Kemp, III, Dist. Atty., Frank L. Koles, III, Asst. Dist. Atty., for plaintiff-appellee.
    Hobart 0. Pardue, Jr., Springfield, for defendant-appellant.
   WATSON, Justice.

A grand jury charged Stephanie Stilley with loitering in violation of Louisiana Statute 18:1462. The trial court ordered a correction to specify that the violation was of LSA-R.S. 18:1462 A(2):

“A. Except as otherwise specifically provided by law, it shall be unlawful for any person, between the hours of 6:00 a. m. and 9:00 p. m. on the day on which there is being held any primary or general election, to perform or cause to be performed any of the following acts within a radius of six hundred feet of the entrance to any polling place being used in such election on election day or any place wherein absentee voting is being conducted:
* * * * * *
“(2) To loiter within the above described area of any such polling place; ...”

The trial court then quashed the indictment on the ground that LSA-R.S. 18:1462A(2) is unconstitutionally vague and overbroad. Since the state had the right to appeal the holding that the section of the statute was unconstitutional, the state’s writ application was granted. The matter has the status of an appeal.

A criminal statute is unconstitutionally vague if its meaning is not clear to the average citizen and policeman. Due process

requires that the public have notice of what conduct is proscribed.

The word “loiter” is defined in Blacks Law Dictionary, 5th Edition, as follows:

“To be dilatory; to be slow in movement; to stand around or move slowly about; to stand idly around; to spend time idly; to saunter; to delay; to idle; to linger; to lag behind.”

Thus, loiter does not have a precise meaning. See Scott v. District Attorney, Jefferson Parish, 309 F.Supp. 833 (E.D.La., 1970), affirmed 437 F.2d 500 (5 Cir. 1971). One can loiter by standing or walking. Almost any citizen within a six hundred foot radius of a polling place or absentee voting site could be charged with loitering. One walking to the polling place to vote could be accused of sauntering. See the discussion of loitering at 29 La.L.Rev. 373. LSA-R.S. 18:1462 A(2) is unconstitutionally vague. State v. Dousay, 378 So.2d 414 (La., 1979).

A criminal statute is unconstitutionally overbroad if its enforcement must necessarily be arbitrary. A statute should provide objective standards. Not only is the word loiter imprecise, it also encompasses a wide range of innocent activities. There are too many versions of loitering for the term to define criminal conduct. See State v. Pugh, 369 So.2d 1308 (La., 1979). Because the statute could be enforced against almost anyone or no one, LSA-R.S. 18:1462 A(2) is overbroad.

Therefore, the statute in question is both vague and overbroad. The trial court correctly held that LSA-R.S. 18:1462 A(2) is unconstitutional and quashed the indictment.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

While I agree that prohibiting “loitering” outside a polling place within the prescribed 600 foot radius is sufficiently vague that an ordinary citizen or policeman might be confused as to what activity is prohibited, I do not believe that conclusion applies to a person’s perception of what it means to “loiter” within the polling place, an area where there is no right to “stand idly around.” The reasons for being within the polling place are generally limited to those related to legitimate election-related pursuits (e.g. poll watching) and those not related to election-related pursuits, such as electioneering, or simply standing about. I therefore do not consider the law vague as it relates to “loitering” inside of the polling place.

Nonetheless, since the statute encompasses activities of both sorts, I concur in the majority declaration that the statute is unconstitutional. Statutory revision would seem to be in order, either or proscribe “loitering” within the polling place or to describe prohibited activity outside the polling place within the 600 foot radius more precisely.

      . Stephanie Stilley “did commit the act of loitering by refusing to leave the premises of Voting Precinct of Albany High School, State of Louisiana Parish of Livingston, Village of Albany, Ward ‘4’, Precint (sic) ‘2’ in violation of Louisiana Statute 18:1462.”

      . Because the legislative enactment of this statute contains a severability clause, this decision is limited to subsection (2) of LSA-R.S. 18:1462(A). See Act 810 of 1980.


text:
    STATE of Louisiana v. Victor MAGEE.
    No. 82-K-0930.
    Supreme Court of Louisiana.
    July 2, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Frank Bruno, Asst. Dist. Attys., for relator.
    Joseph Meyer, Jr., New Orleans, for respondent.
   PER CURIAM.

Defendant was charged by bill of information with carrying a concealed weapon in violation of La.R.S. 14:95. On April 8,1982, after a combined hearing on the merits, the trial court granted counsel’s motion to suppress the evidence. We have granted the state’s application for supervisory writs to review the ruling below, and now reverse.

On the night of December 12, 1981, New Orleans Police Officer Wellington Beauliau saw defendant and one Harold Cook arguing outside the J and L Lounge in the 800 block of North Claiborne. Cook worked as a waiter in the bar and had escorted defendant out of the door after a disturbance involving several patrons. Beauliau separated the two, ordered defendant on his way, and asked Cook to step back inside. At this point, with defendant halfway down the block, Cook informed the officer that defendant had pulled a gun on him in the bar. Beauliau caught up with defendant and advised him of Cook’s complaint. According to the officer, he also frisked him “.. . and recovered the weapon [a small-caliber handgun] in the crotch of his pants .. . way down.” Beauliau then placed defendant under arrest for carrying a concealed weapon.

At the close of the proceedings on April 8, 1982, the trial court observed that the case “turns on where that weapon was located.” In granting the motion, the court found it “... difficult to believe that when you do a pat down search you’re going to go inside a man’s crotch. That could be embarassing for everybody.”

The information provided by Cook, who later appeared as a witness at trial, had sufficient indica of reliability to justify Beauliau’s initial stop of defendant. La.C.Cr.P. art. 215.1; see, State v. Abadie, 390 So.2d 517, 518, n. 1 (La.1980); State v. Greenwald, 369 So.2d 1317 (La.1979); cf., State v. Bolden, 380 So.2d 40 (La.1980); State v. Jernigan, 377 So.2d 1222 (La.1979). Cook’s complaint about the gun and the armed assault inside the bar also justified a self-protective frisk of defendant for weapons by the officer. State v. Woods, 406 So.2d 158 (La.1981). Whatever the cost to his suspect’s sensibilities, Beauliau was therefore entitled to pat down defendant’s outer clothing, including his front pants pockets, and the area around his waistband, obvious places of concealment for a small handgun. See, State v. Clement, 368 So.2d 1037 (La.1979); State v. Colomb, 261 La. 548, 260 So.2d 619 (La.1972). Seizure of the gun from defendant’s pants was then authorized by the same circumstances that gave rise to the limited intrusion of the search. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

We therefore reverse the ruling of the trial court and remand this case for all proceedings now inconsistent with the views expressed herein.

REVERSED AND REMANDED.

LEMMON, J., concurs.


author: DIXON, C. J.,

text:
    STATE of Louisiana v. Billy E. RICHARDSON.
    No. 82-K-1394.
    Supreme Court of Louisiana.
    July 2, 1982.
   DIXON, C. J.,

joins in the denial; the certification of the machine is out of date (See Exhibit 1 — more than 4 months elapsed after certification) but the defendant did not object for that reason. There might have been a valid certification which could have been produced if the reason for the objection had been stated.

CALOGERO and WATSON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Jessie LEWIS.
    No. 82-K-1383.
    Supreme Court of Louisiana.
    June 11, 1982.
   In re Jessie Lewis, applying for reconsideration of denied writ of June 7,1982. Parish of Calcasieu. 415 So.2d 947.

Reconsideration denied. The matter is moot. Charge has been nolle prossed, we are advised.


text:
    STATE of Louisiana v. James W. BLACK, Jr., Clyde C. Waters and James Larry Prudhomme.
    No. 82-K-1542.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re James W. Black, Jr., Clyde C. Waters and James Larry Prudhomme, applying for expedited writs of certiorari or review. Rapides Parish. No. 204574.

Denied.


text:
    STATE of Louisiana ex rel., Jerry EWINS v. STATE of Louisiana.
    No. 81-KH-2891.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Jerry Ewins, applying for writ of mandamus. Parish of St. Mary. Nos. 98044 and 107288.

Granted. Boykin transcript ordered furnished. Otherwise denied.


text:
    STATE of Louisiana v. Jerry EWINS.
    No. 82-KH-1329.
    Supreme Court of Louisiana.
    June 21, 1982.
   In re Jerry Ewins, applying for writ of mandamus. Parish of St. Mary. Nos. 98044 and 107288.

Granted in part. The trial court is ordered to act forthwith.

Otherwise, denied.


text:
    STATE of Louisiana v. Roy SMALLWOOD.
    No. 82-K-1569.
    Supreme Court of Louisiana.
    June 22, 1982.
   In re Roy Smallwood, applying for writ of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 81— 4231.

Denied on the showing made.


text:
    STATE of Louisiana v. Mavrick HARMON.
    No. 82-K-1552.
    Supreme Court of Louisiana.
    June 22, 1982.
   In re Mavrick Harmon, applying for writs of certiorari, prohibition and mandamus. Parish of Lafayette. No. 47078.

Granted. Bond is reduced to $100,000.00.


text:
    STATE of Louisiana v. Ernest H. CROWELL.
    No. 82-K-1570.
    Supreme Court of Louisiana.
    June 23, 1982.
   In re Ernest H. Crowell, applying for remedial writs, for review, and stay order. East Baton Rouge Parish. No. 3-82-642.

Denied.


text:
    STATE of Louisiana v. Jesus TAPANES, Viesa Andrews, and Miguel Martinez.
    No. 82-K-1642.
    Supreme Court of Louisiana.
    June 25, 1982.
   In re Jesus Tapanes, Viesa Andrew, and Miguel Martinez, applying for writs of cer-tiorari, prohibition, mandamus and for stay order. Orleans Parish. No. 289-192.

Denied. Adequate remedy by review in event of conviction.


text:
    STATE of Louisiana ex rel. Ned EBBS v. Edwin A. LOMBARD, in His Official Capacity as Clerk of the Criminal District Court.
    No. 81-KH-2592.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Ned Ebbs, applying for writs of mandamus. Parish of Orleans. No. 277-648.

Granted. The District Court is ordered to act on relator’s Boykin motion on or before July 15, 1982.


text:
    STATE of Louisiana, ex rel. Roosevelt THOMAS v. W. Orie HUNTER, Jr, in His Official Capacity as Clerk of First Judicial District Court.
    No. 82-KH-0505.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Roosevelt Thomas, applying for supervisory and remedial writs and writ of mandamus. Caddo Parish. No. 116147.

Granted. The District Court is ordered to furnish relator a copy of his Boykin transcript.


text:
    STATE of Louisiana, ex rel., Alvin C. ROBAIR v. N. Burl CAIN/Warden, Dixon Correctional Institute.
    No. 82-KH-0738.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Alvin C. Robair, applying for writs of mandamus, prohibition and certiorari. Parish of Orleans. No. 278-621.

Granted. Trial judge ordered to sentence defendant without undue delay.


text:
    STATE of Louisiana v. Patricia DORSEY.
    No. 82-K-1066.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Patricia Dorsey, applying for supervisory writs. Parish Court, Ascension Parish. No. 53706.

Granted. Relator’s conviction is reversed and she is ordered discharged.


text:
    STATE of Louisiana, ex rel. Gerald P. JONES. v. CLERK OF COURT, PARISH OF ORLEANS, Criminal District Court, Edwin A. Lombard, State of Louisiana.
    No. 82-KH-1128.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Gerald P. Jones, applying for writ of mandamus. Parish of Orleans.

Granted. The district court is ordered to furnish relator with a copy of his Boykin transcript in Case No. 281-899B.


text:
    STATE of Louisiana, ex rel. Earl E. BEAN, Jr. v. Warden Roger AUCOIN.
    No. 82-KH-1225.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Earl E. Bean, Jr., applying for writs of prohibition and mandamus. Parish of East Baton Rouge. Nos. 835 and 594.

Granted. Relator’s habeas applications are hereby transferred to the district court and the court is ordered to act on relator’s application alleging double jeopardy within 14 days from date. It is further ordered that the district court conduct a preliminary examination within 7 days from date.


text:
    STATE of Louisiana v. Randy MELANCON.
    No. 82-K-1229.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Randy Melancon, applying for stay order. Parish of Jefferson Davis, 31st Judicial District Court.

Granted. The judgment of contempt is reversed.


text:
    CIBA-GEIGY CORPORATION v. IBERVILLE PARISH POLICE JURY and the Board of Commissioners of Iberville Parish Waterworks District Number Two.
    No. 82-C-1361.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Iberville Parish Police Jury and the Board of Commissioners of Iberville Parish Waterworks District Number Two, applying for writs of certiorari or review, to the Court of Appeal, First Circuit. No. 14640.

Granted. (See attached order). (Consolidate with 82-C-1360)


text:
    ALLIED CHEMICAL CORPORATION and its Wholly-Owned Subsidiaries, Allied Chemical Company and Union Texas Petroleum Company v. IBERVILLE PARISH POLICE JURY and the Board of Commissioners of Iberville Parish Waterworks District Number Two.
    No. 82-C-1360.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Iberville Parish Police Jury and the Board of Commissioners of Iberville Parish Waterworks District Number Two, applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of Iberville. 414 So.2d 409.

Granted. (Consolidate with 82-C-1361)


text:
    STATE of Louisiana v. Gloria BUCKLEY.
    No. 82-K-1283.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re State of Louisiana, through the Asst. District Attorney, applying for writs of certiorari. Parish of Orleans. No. 288-597.

Granted.


text:
    STATE of Louisiana v. Solomon BIRDSONG, Jr.
    No. 82-K-1346.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Solomon Birdsong, Jr., applying for supervisory and remedial writs. Caddo Parish. Nos. 120403 and 120403-A.

Granted.


text:
    STATE of Louisiana, ex rel. Levie ALMORE v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, State of Louisiana.
    No. 82-KH-1389.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Levie Almore, applying for writ of mandamus. Parish of Orleans. No. 276-603.

Granted. The district court is ordered to act on relator’s petition by July 14, 1982.


text:
    STATE of Louisiana v. Delbert James MANUEL.
    No. 82-K-1364.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Delbert James Manuel, applying for writ of certiorari, prohibition and mandamus. Parish of Calcasieu. Fourteenth Judicial District Court. No. 6765-82.

Writ Granted.


text:
    STATE of Louisiana v. Eldridge BRODNAX.
    No. 82-K-1402.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re State of Louisiana through the Asst. District Attorney Jack Peebles, applying for writ of certiorari. Parish of Orleans. Nos. 287-152 and 287-153.

Granted.


text:
    STATE of Louisiana v. Ronald HAWKINS.
    No. 82-K-1487.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Ronald Hawkins, applying for writ of review. Parish of Caddo. No. 118369.

Granted.


text:
    STATE of Louisiana ex rel. Ray T. WOODALL, Jr. v. Judge Frank SHEA, Jr., Dist. Court Sect. “G”, State of Louisiana, et al.
    No. 82-KH-1519.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Ray T. Woodall, Jr., applying for writ of review. Parish of Orleans. No. 259-043.

Granted. The trial judge is recused.


text:
    STATE of Louisiana v. Larry TURNER.
    No. 82-K-1524.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Larry Turner, applying for writs of certiorari, prohibition, mandamus and stay order. Caddo Parish. No. 114777 and 120480.

Writ granted. Probation revocation hearing is stayed until the conclusion of defendant’s trial for attempted second degree murder of Steve D. Robinson.

BLANCHE and LEMMON, JJ., would deny the writ.


text:
    STATE of Louisiana v. Ernest ROBERTSON.
    No. 82-K-1538.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari and mandamus. Orleans Parish. No. 289 — 118.

Granted.


text:
    STATE of Louisiana v. Paul Mark ARCENEAUX.
    No. 82-K-1543.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Paul Mark Arceneaux, applying for writs of certiorari, mandamus and prohibition. Parish of Calcasieu. No. 5351-82.

Granted.


text:
    STATE of Louisiana v. Reginald T. BROWN.
    No. 82-K-1672.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Reginald T. Brown, applying for writ of certiorari. Orleans Parish No. 289-730.

Writ Granted. The trial court is ordered to conduct a preliminary examination forthwith.


text:
    STATE of Louisiana ex rel. Albert PAUL v. COURT REPORTER/SECTION “B” CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 82-KH-0704.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Albert Paul, applying for writ of mandamus. Parish of Orleans. No. 281-333.

Granted. Respondent is ordered to furnish relator with transcript of the Boykin examination. Otherwise, the writ is denied.


text:
    STATE of Louisiana ex rel. Joseph W. JOHNSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0253.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Joseph W. Johnson, applying for remedial writs. Parish of Caddo. No. 65813.

Denied.


text:
    STATE of Louisiana ex rel. James STACKS v. Warden Donald GUILLORY.
    No. 82-KH-0312.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re James Stacks applying for remedial writ. Parish of St. Tammany. No. 57129, Div. “E.”

Denied.


text:
    STATE of Louisiana ex rel. Leonard BELL v. Alfred A. MANSOUR, Judge District Judge, Division “A” Parish of Rapides.
    No. 82-KH-0344.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Leonard Bell, applying for writ of certiorari on writ of habeas corpus. Parish of Rapides. No. 100237.

Denied.


text:
    STATE of Louisiana ex rel. Richard S. HALVORSEN v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0732.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Richard S. Halvorsen, applying for remedial writs, Criminal District Court. Parish of Orleans. No. 259-430.

Denied.


text:
    STATE of Louisiana, ex rel., Oscar Lynn SYKES v. TWENTIETH JUDICIAL DISTRICT COURT.
    No. 82-KH-0604.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Oscar Lynn Sykes, applying for writs of certiorari or review. Parish of West Feliciana. No. W-80-9-1100.

Denied.


text:
    STATE of Louisiana, ex rel., Lionel C. HILLS v. STATE of Louisiana Orleans Parish Criminal Sheriff Charles C. FOTI, Jr.
    No. 82-KH-0456.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Lionel C. Hills, applying for writ of mandamus. Parish of Orleans. No. 272-361 “G."

Denied.


text:
    STATE of Louisiana v. Anthony Lee RUSSELL.
    No. 82-KH-1565.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Anthony Lee Russell, applying for remedial writs. Parish of East Baton Rouge. No. 2-81-153.

Writ denied.


text:
    STATE of Louisiana, ex rel., Robert G. ROCKY v. Ross MAGGIO, Jr., Warden, et al., Louisiana State Penitentiary.
    No. 82-KH-0354.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Robert G. Rocky, applying for writ of habeas corpus. Parish of Orleans. No. 266-426.

Denied.


text:
    STATE of Louisiana v. Dexter BURAS and Hancell Reddick Buras.
    No. 82-K-0801.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Dexter Buras and Hancell Reddick Buras, applying for writs of certiorari and prohibition. Parish of Plaquemines. No. 61-799.

Denied.


text:
    STATE of Louisiana, ex rel., Clinton H. FOREST v. STATE of Louisiana Parish of Orleans.
    No. 82-KH-1259.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Clinton H. Forest, applying for writ of habeas corpus. Parish of Orleans. No. M-120700.

Denied.


text:
    STATE of Louisiana v. Shirley PRITCHARD.
    No. 82-K-1244.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Shirley Pritchard, applying for remedial writs. LaSalle Parish. No. 17226.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Aldon D. VARNADO.
    No. 82-AW-1523.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Aldon D. Varnado, applying for remedial writs. Parish of Jefferson, 24th Judicial District Court. No. 81-741.

Denied.


text:
    STATE of Louisiana v. Anthony A. TANNEHILL.
    No. 82-AW-1458.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Anthony A. Tannehill, applying for remedial writs. Parish of Grant, 35th Judicial District Court. No. 34105.

Denied.


text:
    STATE of Louisiana v. Vaj STOUT.
    No. 82-K-1268.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Vaj Stout, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Sabine. No. 29925.

Denied. The conviction and sentence are reversed. The log book entries furnished this court do not show that the ampules were tested. The P.E.I. test results were improperly admitted.


text:
    STATE of Louisiana v. Deborah CURRY.
    No. 82-K-1343.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Deborah Curry, applying for supervisory writs. Parish of East Baton Rouge. No. 5-81-570.

Denied.


text:
    STATE of Louisiana v. Walter Z. MIZELL.
    No. 82-K-1345.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Walter Z. Mizell, applying for writs of certiorari, prohibition, mandamus and stay order, Washington Parish. Nos. 37245, 37246, 37247.

Denied.


text:
    STATE of Louisiana v. Wayne Randall ROBERTS.
    No. 82-K-1354.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Wayne Randall Roberts, applying for writs of certiorari. Parish of Cameron. No. 3246.

Denied.


text:
    STATE of Louisiana v. Francisco GULLA.
    No. 82-K-1375.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Francisco Gulla, applying for remedial and supervisory writs. Parish of Orleans, Criminal District Court. No. 248 — 256.

Denied.

CALOGERO, and DENNIS, JJ., would grant the writ.


text:
    Mrs. Louise DECLUES v. STATE of Louisiana, et al.
    No. 82-C-1397.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Department of Health and Human Resources for the State of Louisiana and Ochsner Foundation Hospital, applying for writ of review. Parish of Orleans. No. 80"18192-

Denied.

CALOGERO, J., would grant the writ.


text:
    Glen D. GRAVES v. James A. THOMPSON, et al.
    No. 82-C-1399.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Glen D. Graves, applying for supervisory writs. Parish of Bossier, 26th Judicial District Court. No. 56466.

Denied.


text:
    STATE of Louisiana v. Karen WEEMS.
    No. 82-K-1405.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Karen Weems, applying for writ of certiorari, prohibition, mandamus and stay order. Parish of Rapides, 9th Judicial District Court. No. 200467-A.

Denied.

DENNIS, J., would grant.


text:
    STATE of Louisiana v. Larry James MARTIN.
    No. 82-K-I408.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Larry James Martin, applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. No. 4590.

Denied.


text:
    STATE of Louisiana v. Hue T. PHAN.
    No. 82-AW-1427.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Hue T. Phan, applying for remedial writs. Parish of Jefferson. No. 81-792.

Denied.


text:
    STATE of Louisiana v. David WALSH.
    No. 82-K-1449.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re David Walsh, applying for writs of certiorari, review and stay order. Parish of Caldwell. Nos. 23685, 23686 and 23687.

Denied.


text:
    Delores M. TOUSSAINT, et al. v. Anne Ferguson GUICE, et al.
    No. 82-C-1425.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Delores M. Toussaint, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 12654.

Denied.


text:
    CITY OF BASTROP v. Michael L. BEACH.
    No. 82-K-1454.
    Supreme Court of Louisiana.
    July 2, 1982.
   In re Michael L. Beach, applying for writs of review, from the Bastrop Municipal Court. Parish of Morehouse. No. 39403.

Denied on the showing made.


author: CARTER, Judge:

text:
    J. Charles COLLINS, Jr. v. Louis E. CHENEL, et al.
    No. 14856.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 13, 1982.
    Michael E. Soileau, Covington, and Patrick D. Breeden, New Orleans, for plaintiff, appellant.
    A. William Mysing, Jr., Covington, R. Carruth, New Orleans, for defendants, ap-pellees.
    Before LEAR, CARTER and LANIER, JJ.
   CARTER, Judge:

This is an appeal from a decision of the Twenty-Second Judicial District Court where judgment was rendered ordering a notice of lis pendens, filed by appellant, cancelled and erased from the mortgage and conveyance records of St. Tammany Parish and dismisses appellants’ petition and intervention with prejudice.

This matter was previously before this court in proceeding No. 10,601, being L.E.C., Inc. v. Collins, 332 So.2d 565 (La. App. 1st Cir. 1976) and although the present appeal is on different legal issues, the facts as set forth in the above opinion remain the same. We have carefully examined the entire record and conclude that the trial judge correctly decided the case both factually and legally. His reasons for judgment, which we adopt as our own, are attached hereto as an “Appendix”.

For those reasons, the judgment appealed from is affirmed at appellants’ costs.

AFFIRMED.

REASONS FOR JUDGMENT

J. Charles Collins, Jr. filed suit against Louis E. Chenel, F. Pierre Livaudais, Denise C. Vallon and L.E.C., Inc., seeking to obtain a mandatory injunction against the named defendants to have the Court declare the roadways and streets within Merrywood Estates Subdivision public and the ownership thereof vested in the public and to force the defendants to reopen the entranceway which had been relocated since the original plat was filed with the Clerk of Court. An amended petition was filed by the plaintiff alleging that the defendants had violated the restrictive covenants of the subdivision by resubdividing certain lots and constructing houses thereon. The claims enumerated in the amended and supplemental petition were apparently abandoned as no evidence was presented by the plaintiff in support of these contentions at the trial. The Court therefore considers them abandoned.

A petition for intervention was filed by Robert A. Pittman and Benedict X. Viola, residents of Merrywood Estates Subdivision, seeking not only the same relief as Mr. Collins but also to have an ordinance enacted by the St. Tammany Parish Police Jury November 18, 1971, declared null and void by reason of an alleged fraud perpetrated by L.E.C., Inc. The plaintiff intervenors have essentially argued that the ordinance was unconstitutional for failure to provide notice of hearing to them, as resident of the subdivision, prior to the holding of a public hearing. Neither Mr. Pittman nor Mr. Viola appeared and testified at the trial. Mr. Collins’ chief complaint was simply that he was not afforded personal notice of any scheduled deliberation by the St. Tammany Parish Planning Commission or the St. Tammany Parish Police Jury when any matters were taken up by either of those bodies concerning Merrywood Estates Subdivision. At the time of the hearings, Mr. Collins was a resident-domiciliary of the City of New Orleans, living at 942 Harding Drive and maintained no residence in the Parish of St. Tammany.

The only testimony adduced on behalf of the plaintiff and intervenors was by Mr. Collins. He had purchased his property under a bond for deed contract June 23, 1966. He subsequently began to build a house on this property in February of 1972. The ordinance that he is protesting was enacted by the St. Tammany Parish Police Jury on November 16, 1971, which in essence gave final approval of Merrywood Estates Subdivision, Additions 2,3 and 4. It was noted in the minutes of the Planning Commission meeting that Addition No. 1 had previously been approved by the Parish. Mr. Collins’ lot is located in Addition No. 1. He apparently adopted the allegations of the interve-nors in claiming that the ordinance approving Additions Nos. 2, 3 and 4 was unconstitutional because he did not receive actual personal notice from the Police Jury or the Parish that the matter would be considered at the regularly scheduled meeting.

There are no allegations nor proof that the agenda for the Police Jury was not duly posted and published or that newspaper advertisements were not published in accordance with the then prevailing requirements. An ordinance enacted by the St. Tammany Parish Police Jury is presumed, as a matter of law, to be valid and constitutional unless competent evidence is adduced which demonstrates that the ordinance is so clearly arbitrary and capricious as to be unreasonable and oppressive. See Manuel v. Evangeline Parish Police Jury, (La.App. 3rd Cir. 1974) 295 So.2d 600, and Landry v. Parish of East Baton Rouge, (Sup.Ct.1977), 352 So.2d 656. It is unreasonable to expect that every municipality or political subdivision within this State has the duty to personally serve each resident or citizen of any area which could be affected by a particular piece of legislation with actual notice of the scheduling of public hearings to deliberate a proposed ordinance or resolution. The notice requirements of the Constitution of the United States of America and of the State of Louisiana do not place such an onerous burden on local government. Thus, the Court is of the opinion that the ordinance approving Merrywood Estates Subdivision, Additions Nos. 2, 3 and 4 was validly enacted.

The St. Tammany Parish Police Jury, by Ordinance No. 1058, has accepted into the Police Jury Maintenance System, by formal dedication, all of the streets and roadways of Merrywood Estates Subdivision, Additions 1, 2, 3 and 4. Thus, that ordinance enacted in regular session in 1979, clearly and unequivocally vested title to the streets and roadways within the subdivision in the Parish of St. Tammany. Those allegations seeking a mandatory injunction against the named defendants are therefore moot. Furthermore, there was no proof presented to the Court which demonstrated that the named defendants have acted to assert ownership, dominion or control over the streets in the subdivision.

Mr. Collins has also petitioned the Court to have the entranceway relocated from where it is presently situated and as shown on the Fitzmorris survey, back to where it was originally constructed and as shown on the Berlin survey. The defendants have affirmatively pleaded that any claim or right which the plaintiff may have or had to force them to perform this work has prescribed under Article 781 of the Revised Civil Code of 1870.

That article provides:

“No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation. After the lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated.”

It is well known that subdivision plans within the parish have been changed either by order of the Police Jury or upon application of the subdivider to the appropriate agency to meet current requirements. The subdivision entranceway was relocated pri- or to filing of the Fitzmorris map in 1971. Suit was not instituted by Mr. Collins until June of 1974. The ordinance approving the Additions Nos. 2, 3 and 4 of the subdivision was enacted and spread for record in November of 1971. The new plat and en-tranceway was shown on the Fitzmorris plat and was apparently approved by the Policy Jury at that time. However, if the map approved by the St. Tammany Parish Police Jury did not meet constitutional requirements of notice when it was enacted on November 15, 1971, any claims respecting the present location of the entranceway of the subdivision has long since prescribed under Article 781 of the Revised Civil Code by the time Mr. Collins instituted the original suit. Mr. Collins had actual notice of the location of the new entranceway for more than two years prior to the institution of these proceedings. The Court is therefore of the opinion that any claim with respect to the relocation of the entranceway has prescribed. The Court further finds that neither Mr. Collins nor the intervenors were in any way harmed, or their property rights or values affected, by the relocation of the entranceway. In fact, the entrance-way was increased in size, from two lanes to four lanes, with a neutral ground and a more orderly flow of traffic seems to have resulted from its relocation.

The Court further finds that the St. Tammany Parish Police Jury, in accepting all of the streets and roadways into the road maintenance system and thereby acquiring title to the subsurface thereof, has rendered moot any issue with respect to the exercise of ownership of the substrata by any of the defendants.

It is therefore the Court’s opinion that the plaintiff and intervenors’ suit should be dismissed with prejudice and that the notice of lis pendens ordered cancelled. A judgment consistent with these reasons will be signed upon presentation to the Court.

Covington, Louisiana, July 14, 1981.

(s) Thomas W. Tanner JUDGE


author: ELLIS, Judge:

text:
    Charles B. McKINNEY, et al. v. LOUISIANA NATIONAL BANK and Aetna Life & Casualty Company.
    No. 14765.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Patsy Jo McDowell, Baton Rouge, for plaintiffs-appellants Charles B. McKinney and Ruth Fletcher McKinney.
    Carey J. Guglielmo, Baton Rouge, for defendants-appellees Louisiana Nat. Bank and The Standard Fire Ins. Co. (erroneously referred to in plaintiffs’ petition as Aetna Life & Cas. Co.)
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

We have carefully read the record and the briefs filed by the parties hereto, and find that the written reasons of the trial judge correctly resolve all factual and legal issues presented. We therefore attach those reasons hereto as an appendix, and adopt them as our own.

For those reasons, the judgment appealed from is affirmed, at plaintiffs’ cost.

AFFIRMED.

APPENDIX

CHARLES B. McKINNEY and RUTH FLETCHER McKINNEY

VERSUS

LOUISIANA NATIONAL BANK and AETNA LIFE AND CASUALTY COMPANY

Suit No. 228,542 DIV. “M”

19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE

STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

This is a suit by Charles McKinney and his wife Ruth for damages allegedly suffered during a purse-snatching attempt by two unidentified persons outside a branch bank operated by defendant bank. Plaintiffs assert that defendant bank has a duty to protect its patrons and would-be patrons against such assaults, relying upon an alleged “stricter duty” because the “product” which defendant sells is money, thereby increasing the risk of such assaults on patrons. Defendants, on the other hand, deny that there is any special duty of banks to protect patrons against assaults by unknown assailants, at least where there has been little if any previous indication of such incidents.

Plaintiffs’ original petition named Louisiana National Bank as a defendant, as well as Aetna Life and Casualty Company. By stipulation of counsel, the court ordered that The Standard Fire Insurance Company be substituted whereever any reference was made to the Aetna Life and Casualty Company. After defendants answered, and after pre-trial discovery, defendants filed a motion for summary judgment, accompanied by affidavits of two bank employees. Plaintiffs filed a “counter motion on the issue of law” which the court will treat as a motion of summary judgment in plaintiffs’ favor. Plaintiffs filed no supporting affidavits, but filed the depositions of Ruth McKinney, her physician, and the bank officer in charge of security.

When the matter came on for hearing, counsel agreed that both motions could be heard at that time, even though plaintiffs’ motion would otherwise have been untimely under Article 966 of the Code of Civil Procedure. Moreover, counsel stipulated that there is no genuine issue of material fact, and that only issues of law are presented. The matter was argued, submitted on mem-oranda and taken under advisement by the Court.

Under the circumstances, the Court perceives two issues to be determined: (1) whether summary judgment is appropriate under these circumstances and (2) whether, on the merits, defendant bank breached any duty owed to Mrs. McKinney.

Appropriateness of Summary Judgment

Articles 966 and 967 of the Code of Civil Procedure authorize and indeed require the trial judge to grant a motion for summary judgment if there is no genuine issue of material fact and if the mover is entitled to judgment as a matter of law. Nevertheless, there is a firm principle repeated in the decisions of our appellate courts that summary judgment should be rendered sparingly, and only when the mover is clearly entitled to judgment. This Court is well aware of the requirement that summary judgment be used with great caution, but entertains little doubt that this is an appropriate case for several reasons.

First, and most important, counsel for all parties stipulated at the hearing on these motions that there is no genuine issue of material fact, and that only issues of law are presented. Most, if not all, of the cases in which appellate tribunals have remanded cases for trial after the trial court had granted a motion for summary judgment are instances in which the unsuccessful party maintained (at the trial level and the appellate level) that there was a genuine issue of material fact. Neither party contends that in the present case, and has so stipulated before the trial judge.

Second, in response to the motion for summary judgment filed by defendants, plaintiffs responded only with their own similar motion and filed no counter-affidavits of any type, apparently being content to rely upon the depositions filed into evidence. While it is true that Article 967 of the Code of Civil Procedure permits a party opposing a motion for summary judgment to support his opposition with depositions rather than affidavits, there is little if anything in the depositions which suggests that the motion in favor of defendants should not be granted.

Finally, there is clear support in the cases for granting motions for summary judgment in an appropriate case. In Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976), both the appellate court and the Supreme Court affirmed a summary judgment granted in favor of defendants in a serious personal injury case, on the ground that the victim was eontribu-torily negligent. Of all issues on which summary judgment is overturned, fault of the victim is probably the most common. But even when that is the pertinent issue, summary judgment is appropriate when there is no genuine issue of material fact (as there is none here) and where the mover is clearly entitled to judgment as a matter of law (as is the case in this instance).

The very recent decision of the First Circuit Court of Appeal in Carline v. Lewis, et al, [400 So.2d 1167] No. 14,096 on its docket, decided April 13, [La.App.] 1981 is clearly distinguishable from the instant matter on the issue of appropriateness of summary judgment. Plaintiff claimed that certain defendants, who were the owner and manager of an apartment complex, were liable to her for injuries inflicted by an unknown intruder into her apartment. Summary judgment had been rendered against her in the lower court, but that judgment was reversed by the First Circuit. Plaintiff had claimed that the defendants had warranted that there would be a security guard on duty, and the defendants’ answers to interrogatories indicated that an individual had been hired as security guard. However, there was a genuine issue of material fact as to whether the guard had acutally been hired, and if hired, whether he was properly performing his duty on the day in question. Under the circumstances, summary judgment was properly reversed.

In the present matter, no such warranty has been alleged by plaintiffs, nor does one exist. Moreover, the parties have stipulated (as they apparently did not in the Car-line case) that there is no genuine issue of material fact.

Therefore, summary judgment is an appropriate vehicle to dispose of this matter.

Decision on the Merits

Plaintiffs assert that defendant bank owed them a duty to protect the wife against assaults by unknown persons on the bank premises, including the parking lot and approaches to the bank. If such a duty exists, it must be that the bank exercise reasonable care to protect business invitees such as Mrs. McKinney from risks which it knows or should know will pose an unreasonable hazard to her physical well-being. There is nothing in the stipulated facts to suggest that the bank has violated its duty in this respect.

A determination that a defendant has breached a duty toward the plaintiff must be based upon a showing that the magnitude of harm threatened to plaintiff (a combination of the likelihood of injury and the severity of the injury should it occur) outweighs the utility of the defendant’s conduct (a combination of the socia value of the activity in which the defendant was engaged and the advisability of the way in which defendant chose to conduct that activity). Louisiana courts have expressed this concept in varying ways in the appellate decisions. For example:

Negligence is conduct which creates an unreasonable risk of foreseeable harm to others . . . The risk of foreseeable harm to others is unreasonable so as to be negligence, if the magnitude of the risk created out-weighs the utility or social value of the conduct creating it; in this respect consideration is given, inter alia, to the probability or extent of the harm to others threatened by the risk. Goff v. Carlino, 181 So.2d 426, 428 (La.App. 3rd Cir. 1966), cert. den.

Under the facts presented, and as to which there is no issue, there is nothing to show that the magnitude of harm threatened to plaintiff outweighs the utility of the bank’s conduct. As to the likelihood of injury, the deposition of the bank officer in charge of security for all branches and the affidavits of the employees at the branch in question amply demonstrate that remarkably few similar incidents have occurred. Moreover, it is shown that the affected branch does not have a higher incidence of such problems than any other branch. Thus it must be concluded that the likelihood of injury was very low. As for the severity of the injury if it should occur, there certainly is a risk of some substantial harm. However, during daylight hours (as is the case here) and in close proximity to the actual bank building, the severity of harm is likely to be limited by the presence or presumed presence of other customers and passers-by. The limitations on severity of injury are in fact demonstrated by the depositions and affidavits establishing that the entire incident lasted only a few moments, and help from customers and bank employees alike was quick to arrive.

On the other hand, there can be little doubt that the social value of the activity which the defendant conducts on the premises is extremely high. It is difficult to imagine modern society without the services performed by banking institutions. This is well demonstrated by the fact that Mrs. McKinney was herself voluntarily using the bank’s services to change a negotiable instrument into cash. Moreover, the method which defendant cnose to carry out its banking business appears to be efficient and reasonably calculated to secure the safety of its patrons. The deposition of the bank officer in charge of security indicates that the absence of an armed guard was not an oversight on the part of the bank, or even a cost-saving device. Rather, it is a conscious decision of the bank aimed at providing the best protection for both the personal and property rights of its patrons (i.e., protection of the person of the patrons on the premises as well as the assets of those not on the premises who have deposited funds in the bank). The bank officer stated in his deposition that “we believe that the presence of an armed person can cause more injury in a robbery than without the person.” (p. 42) The fact that very few incidents of this type have occurred at defendant’s branch banks suggests that the bank’s decision on such matters has proved correct. But in any event, plaintiffs presented no contrary evidence. Indeed, there is no showing that the presence of an armed guard would have prevented the occurrence which forms the basis for this law suit.

Plaintiffs’ primary contention is that some sort of special duty ought to be imposed upon banks, since unlike other business entities in society, their “product” is money, thus enhancing the possibility that assailants such as those who attacked Mrs. McKinney will be loitering about the premises. The court fails to see that this argument has any particular merit. In the first place, it is not established that banks are known to be places which are an “easy” place to obtain cash by unlawful means, thereby producing an abnormally high incidence of thefts in the area. In fact, quite the contrary might be true. A great deal of banking takes place in paper transfers without the transfer of any cash. And even though there is certainly substantial cash on hand, it is well protected and the chances of anyone making off with a portion of it are slim indeed. It is likely that a much easier “mark” for the thief is an establishment which does its business mostly by cash and not by check — a fast-food outlet, bar or grocery store. The court can almost take judicial notice of the fact that, in this community, more robberies occur in fast-food outlets than in banks. While this fact is not critical to the outcome of this particular case, it suggests that no extra responsibility should be imposed on banks to protect customers.

Given the foregoing analysis, the court is compelled to conclude that the defendant bank has not breached any duty toward Mrs. McKinney, and indeed could not be shown to have done so under these facts. The court deplores the incident and sympathizes with Mrs. McKinney, but cannot hold that Louisiana law requires a bank to be the insurer of its patrons against unpredictable and unexplained assaults near the bank by unknown assailants. The administrative consequences of a contrary decision are substantial and important, and there is no support in prior Louisiana decisions for such a holding.

Neither counsel has directed the court to a similar factual situation in Louisiana involving a bank, nor has the court’s research revealed one. The great majority of decisions involving attacks upon a patron by unknown assailants in other settings, however, deny any recovery to the patron. Indubitably, this is why plaintiffs have developed the theory that “bank assaults” should be treated under a different rule from that developed for other stores and businesses. An examination of prior Louisiana decisions will reveal that banks do not differ from other businesses to the extent that they should be subjected to a higher standard of care.

Very recently, in Pennington v. Church’s Fried Chicken [393 So.2d 360], No. 13,823 ([La.App.] 1st Cir. 1980), the First Circuit Court of Appeal denied recovery for personal injuries to a patron of a fast-food outlet who was injured when her purse was stolen while she was waiting in line. The court held:

The duty to protect business patrons does not extend to the unforeseeable or unanticipated criminal acts of an independent third person. The owner or management does have a duty to protect patrons when it has knowledge, or can be imputed with knowledge, of the third person’s intended conduct.

Similarly, the court in Roberts v. Tiny Tim Thrifty Check, 367 So.2d 64 (La.App. 4th Cir. 1979) denied any recovery against a convenience store proprietor for the death of a patron using the telephone, who was shot during a hold-up attempt. There are numerous other instances of denials of recovery against the operator of a business for injuries inflicted upon a patron by an unexpected assailant. See Hodge v. St. Bernard Chapter No. 86, 338 So.2d 934 (La. App. 4th Cir. 1976); Guidry v. Toups, 351 So.2d 1280 (La.App. 1st Cir. 1977); Rodney v. Mansur, 219 So.2d 305 (La.App. 1st Cir. 1969); Callender v. Wilson, 162 So.2d 203 (La.App. 1st Cir. 1964).

The only exceptions to the general rule of denial of recovery may be grouped into (a) assaults in bars or taverns, where intoxication of patrons is at least expectable and sometimes encouraged; (b) assaults in places where patrons are expected to stay for some length of time, and given some assurance of safety or at least encouraged to relax their precautions; and (c) assaults in which the owner or manager has substantial prior indication of trouble, or even participates in it himself.

(a) Bars. In DeHart v. Travelers Insurance Co., 10 So.2d 597 (La.App.Orl.Cir.1942), plaintiff had entered a bar early in the morning to drink coffee. She was assaulted by another patron, who was intoxicated and had been in the bar for some time. This suggested to the court that plaintiff could show on remand that the proprietor could have foreseen some injury, especially with the aggravating circumstances of intoxication. To the same effect is Borne v. Bourg, 327 So.2d 607 (La.App. 4th Cir. 1976).

(b) Longer stay, or assurance of safety. In Nordmann v. National Hotel Company, 425 F.2d 1103 (5th Cir. 1970), a judgment in favor of a hotel patron against the Jung Hotel was affirmed. An unknown assailant followed plaintiff and her husband to their room, tied up the husband and sexually assaulted and beat plaintiff. Two grounds of negligence had been alleged: inadequate security precautions and failure to respond promptly to calls for help. Both suggest a longer period of stay and a certain reliance by the patrons upon the management that their safety in sleeping rooms will be assured. The recent decision of the First Circuit Court of Appeal in Carline v. Lewis, et al., supra, is in the same vein, since defendants envisioned that plaintiff would have a longer stay on the premises (apartment dweller) and defendants had allegedly warranted that the premises were safe.

(c)Prior indication of trouble, or participation of management. In Matrango [Ma-tranga ] v. Travelers Insurance Company, 55 So.2d 633 (La.App.Orl.Cir.1951), an award in favor of a restaurant patron was affirmed when the injury arose out of an altercation between the proprietor and his brother. In Anderson v. Clements, 284 So.2d 341 (La.App. 4th Cir. 1973), a pool hall patron was held entitled to recover against the proprietor because an employee of the pool hall was a participant in the fracas in which the patron was injured. Clear warning of impending trouble or prior incidents was the basis of recovery in DeHart v. Travelers Ins. Co., supra, Miller v. Derusa, 77 So.2d 748 (La.App. 1st Cir. 1955) and Borne v. Bourg, supra.

Even a cursory consideration of these decisions reveals that plaintiffs’ alleged cause of action does not fall within the exceptions. Mrs. McKinney would be expected to, and did in fact, spend a very short period of time on the bank’s premises— probably less time than she would have spent at a fast-food outlet. Her visit was during the daytime hours. She was not physically inside the building itself. There is no suggestion of the involvement of management, or the factor of intoxication. The only conceivable argument which plaintiff could make has been made: that there were prior incidents of this type. Even if that were demonstrated, the trouble was not of the immediate, imminent variety which was the basis of liability in some of the tavern cases. But it is impossible to conclude that there were sufficient prior incidents of this type, even non-imminent, which should have placed defendant upon any particular notice that such an incident was likely to occur at a predictable point in the future.

In light of the stipulation by counsel for all parties and the fact that there is no genuine issue of material fact, and in light of the court’s conclusion that defendants are entitled to judgment as a matter of law, it follows that the motion for summary judgment in favor of defendants must be granted.

Judgment will be signed accordingly.

Baton Rouge, Louisiana this 29th day of April, 1981.

/s/ Charles William Roberts

JUDGE, 19TH JUDICIAL DISTRICT COURT


author: FRED W. JONES, Jr., Judge.

text:
    Robert Oliver McILWAIN, et ux., Plaintiffs-Appellees, v. MANVILLE FOREST PRODUCTS CORPORATION, Defendant-Appellant.
    No. 14909.
    Court of Appeal of Louisiana, Second Circuit.
    June 15, 1982.

      Shotwell, Brown & Sperry by L. Michael Ashbrook and C. A. Martin, III, Monroe, for defendant-appellant.
    Dimos, Brown, Erskine & Burkett by Donald R. Brown, Monroe, for plaintiffs-ap-pellees.
    Traylor & Kramer by Chet D. Traylor, Winnsboro, for third party defendant-appel-lee Marilyn Hester Parker.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Robert Mcllwain and Charlotte Mcllwain filed a possessory action against Manville Forest Products Corporation (“Manville”), asking “to be restored and maintained in possession” of certain immovable property situated in Caldwell Parish. Manville answered and reconvened, converting the proceeding into a petitory action. Manville then filed against Marilyn Hester Parker a third party demand, which pleading contained the following pertinent allegations:

“3
“Manville Forest Products Corporation alleges that it is in fact the record owner to said property in question. By Warranty Deed, Manville Forest Products Corporation acquired the property subject to this litigation and described in Paragraph 2 of plaintiffs’ petition from Marilyn Hester Parker by instrument dated and filed February 11,1981, under Clerk’s Registry No. 147462 and recorded in Conveyance Book 137, page 364 of the public records of Caldwell Parish, Louisiana.
‘4
“Marilyn Hester Parker, a resident of and domiciled in Franklin Parish, Louisiana, having warranted title to the property herein, should be made a party to this suit and Manville Forest Products Corporation now calls Marilyn Hester Parker as a Third Party Defendant herein so that she may defend Manville Forest Products Corporation’s title to the property and should Manville Forest Products Corporation be held liable to Petitioners herein, then Manville Forest Products Corporation is entitled to judgment against Marilyn Hester Parker for like amount.”

Mrs. Parker filed an “exception of no cause of action and no right of action” directed at Manville’s third party demand. After a hearing, at which Mrs. Parker testified concerning her understanding of the import of her deed to Manville, the trial judge concluded that Mrs. Parker did not intend to warrant title to the property conveyed by her to Manville. Consequently, a “judgment on exception of no right and no cause of action to third-party demand” was rendered, sustaining the exception and dismissing the third party demand. Manville appeals that judgment.

Finding that Manville’s third party demand states a cause of action against Mrs. Parker and that Manville has a right of action against the third party defendant, we reverse and remand.

No Cause of Action

The purpose of the peremptory exception of “no cause of action” is to test whether plaintiff’s allegations entitle it to any remedy whatsoever at law. For purposes of deciding this exception, all well-pleaded allegations of the petition must be taken as true. Any doubt as to the sufficiency of the petition must be resolved in favor of plaintiff. Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975); American Bank & Trust Co. v. French, 226 So.2d 580 (La.App. 1st Cir. 1969).

As pointed out in Steagall v. Houston Fire & Casualty Co., 138 So.2d 433 (La.App. 3rd Cir. 1962):

“... in passing on an exception of no cause of action, a plaintiff is not required to negate all statements of fact which might bar his own recovery but, rather, the exception must be overruled unless its allegations affirmatively establish that under no facts admissible under the allegations of the petition does he have a cause of action and unless its allegations exclude every reasonable hypothesis of facts other than those showing that the plaintiff cannot recover as a matter of law.”

In its third party demand Manville alleged that it acquired the property in dispute by warranty deed dated February 11, 1981 from Mrs. Parker and, by virtue of that instrument, made her a third party defendant. For the purpose of deciding the exception of no cause of action, that allegation with reference to the warranty deed must be accepted as true.

Louisiana Code of Civil Procedure Article 1111 expressly provides, in pertinent part, that “the defendant in a principal action by petition may bring in any person, including a codefendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand.” Also see La.Civil Code Article 2506; Blanchard v. Norman Breaux Lumber Co., 216 La. 551, 44 So.2d 112 (1949).

There is no question, then, but that Man-ville has stated a cause of action in its third party demand against Mrs. Parker. Consequently, the trial judge should have overruled the exception of no cause of action.

No Right of Action

Since it is concluded that Manville’s third party demand states a cause of action, the next question is whether the remedy afforded by law can be invoked by this particular plaintiff. An exception of “no right of action” is the appropriate vehicle for raising that issue. Holzhauser v. Fagan, 363 So.2d 1232 (La.App. 4th Cir. 1978); Bamber Contractors, Inc. v. Henderson Bros., Inc., 345 So.2d 1212 (La.App. 1st Cir. 1977).

It was noted in Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3rd Cir. 1967), that:

“The want of interest raised by the exception relates primarily to whether the particular plaintiff falls as a matter of law within the general class in whose favor the law grants the cause of action sought to be asserted by the suit ...”

Manville alleged in the third party demand that it was the record owner of the disputed property under the warranty deed from Mrs. Parker. Manville’s status as owner of the property was not questioned by Mrs. Parker in her exception of no right of action. Clearly, therefore, Manville is the proper party to call Mrs. Parker in warranty and, consequently, has a right of action against her.

Mrs. Parker’s testimony at the hearing on the exceptions, concerning her understanding of the deed she executed to Manville covering the disputed property, was inadmissible in connection with the exception of no cause of action. Of course, evidence of this character may be admissible when offered to support appropriate allegations positing affirmative defenses to third party demands of this nature.

The trial judge should have overruled this exception also.

Decree

For the reasons assigned, the judgment of the trial court sustaining third party defendant’s exceptions of no cause and no right of action is reversed and set aside and the exceptions are overruled. The case is remanded to the trial court for further proceedings consistent with the views expressed herein. Third party defendant-ap-pellee is cast with the cost of this appeal.

      . Louisiana does not have an exception of “no cause of action and no right of action.” These are separate exceptions under Articles 927(4) and 927(5) of the La.Code of Civil Procedure.

      . This evidence was presumably admitted in connection with the exception of no right of action, since “no evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La.C.C.P. Art. 931.


author: MARVIN, Judge.

text:
    Lilliann Bouldin MILLS, Pike Hall Trichel, and Milton C. Trichel, Jr. v. STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS. Lilliann Bouldin MILLS, Pike Hall Trichel, and Milton C. Trichel, Jr. v. STATE of Louisiana Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    Nos. 14914, 14915.
    Court of Appeal of Louisiana, Second Circuit.
    June 15, 1982.
    Rehearing Denied July 23, 1982.
    William W. Irwin, Jr., Bryan Miller, Harvey Lee Hall, Johnie E. Branch, Jr., Baton Rouge, for defendant-appellant, State of La. through Dept, of Highways (now Dept, of Transp. and Development.
    Milton C. Trichel, Jr., Neil Martin Trichel, Eileen Trichel Baldwin, Shreveport, for plaintiffs-appellees.

      Before PRICE, MARVIN, and JASPER E. JONES, JJ.
   MARVIN, Judge.

In these consolidated possessory actions, the State appeals a judgment maintaining the landowners’ possessory right of enjoyment of 523.54' of access along the west side of their property that abuts the State’s right of way at the interchange of Interstate 220 with U.S. Highway 71 in Shreveport.

We had earlier held that the State’s expropriation of the southernmost .892 acres of the landowners’ property did not include the 523.54' control of access. State, Dept, of Highways v. Trichel, 348 So.2d 1260 (La.App. 2d Cir. 1977). Before that opinion, the landowners filed the first of these possesso-ry actions, alleging as a disturbance in fact, the State’s appropriation and partial fencing of the right of access. When the State resumed its efforts to fence the entire 523.-54' some 14 months later, the landowners filed the second of these possessory actions. Construction of the interchange has been completed and the highway opened to traffic many months before these actions were tried.

The “just compensation” merits of the expropriation of the .892 acre was consolidated with the possessory actions below, but has not been tried. The judgment appealed allows the State 60 days in which to either expropriate the right of access or institute a petitory action. That judgment also stayed the trial of the expropriation action for 60 days. See State, Dept. of Highways v. Trichel, 415 So.2d 22 (La.App. 2d Cir. 1982), where the State’s appeal in the expropriation action was dismissed.

In this appeal, the State did not file an exception of no cause of action, but suggests in three specifications of error that the landowners “have no cause to complain” and should not be able to bring a possessory action in circumstances where the State is exercising its police power of regulating and controlling traffic upon the public highway right of way. LSA-Const. Art. 1, § 4, LRS 48:304, State ex rel. Gebeiin v. Department of Highways, 200 La. 409, 8 So.2d 71 (1942); Department of Hwys. v. Southwestern Elec. Pow. Co., 243 La. 563, 145 So.2d 312 (1962).

In these circumstances, we shall consider on our own notice the landowners’ cause of action. CCP 927. In Gebeiin, the State expropriated a highway right of way for which the landowners were paid $30,000. After the expropriation was concluded and the highway was constructed, the landowners brought actions to mandamus the State to allow them access to the highway and to enjoin the State from interfering with the landowners’ construction of access ways. Alternatively, the landowners sought a money judgment for the diminution in value of the remainder of their property. The State contended that it was acting within its constitutional and statutory authority to regulate use of the highway and that its refusal to permit access ways to the landowners was not an invasion of the landowners’ property rights. The supreme court did not agree and upheld the judgment that granted several access ways to the landowners.

“An abutting landowner on a public highway has a special right of easement ... in the public road for access purposes ... a property right which cannot be . . . taken from him without due compensation. * * *
“The Department of Highways has authority ... to limit the ... access ... to such extent as the department deems necessary for the public safety . . . [b]ut the authority is not above or beyond that of the court. To deny to the landowner a judicial investigation .. . would violate his constitutional guarantee that private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.” 8 So.2d at p. 74, 75.

After Gebelin, the Legislature authorized the highway department to prohibit access to highways. See LRS 48:1(12), 302, 303, 344, and State v. Hub Realty Company, 239 La. 154, 118 So.2d 364 (1960), and statutes cited therein.

“The highway authorities may design any controlled-aceess facility and ... prohibit access ...” § 302, in part.
“Entrances to and exits from private properties adjacent to the rights of way of state highways may be . .. prohibited in the interest of the safety of the traveling public ... The department may apply to the courts for such process as may be necessary to make the provisions of this section effective.” § 344, in part. “The highway authorities may acquire private . . . property and property rights for controlled-access facilities . .. including rights of access ... by donation, purchase, exchange, lease, or expropriation in the same manner as they . .. may be authorized to acquire property ...” § 303, in part.

LRS 48:441 et seq., the quick-taking statute, states the manner in which the department may acquire “both corporeal property and servitudes ...” by expropriation. § 441. Emphasis supplied. When the requirements of that statute have been followed, the “title to the property and property rights specified in the petition [for expropriation] shall vest in the department and the right to just and adequate compensation shall vest in the persons entitled thereto.” § 445, in part. Emphasis supplied.

In its argument here, the State recognizes that the owner of lands abutting a public highway has the special property right of access to a public highway abutting his property, but contends that the “inherent police power of the State gives the highway authorities .. . the power to control the use of that right by deciding at which point or points along the boundary . . . access shall or shall not be available for the use of said right.” This quotation from Gebelin is cited as authority for that argument.

“But an [abutting] owner is not entitled, as against the public, to access to his land at all points in the boundary ... although entire access may not be cut off. If he has free and convenient access to his property, and his means of ingress and egress are not substantially interfered with by the public, he has no cause for complaint.” 8 So.2d at p. 75.

The quoted principles have not been enervated by the 1975 Louisiana Constitution or by the statutes enacted since Gebe-lin. We view these authorities and Gebelin as stating that the abutting landowner has cause for complaint if the highway authority, in the exercises of its police power, substantially interferes with his means of ingress and egress to the public highway without expropriating that access and paying just compensation.

The threshold question then is whether the landowner has alleged or shown that his right of access has been substantially interfered with by the State highway authorities in the exercise of its recognized police power. Here it is shown that the landowners had 673.54' abutting U.S. Highway 71 across which they enjoyed three access ways prior to the State’s erection of the fence. The State’s fencing of 523.54' removed two of these access ways. This deprives these landowners of either 5%7 of their former footage access or % of their actual access ways. In either event, the interference must be deemed substantial and as affording the landowner “cause” to complain of the disturbance of the special property right of access. Gebelin, supra.

The State’s third assignment relates to the holding of Southwestern Elec. Pow. Co., cited supra. There the electric utility serving Shreveport obtained from the City the franchise of using the city streets to install its utility lines and equipment to transmit electricity. The City later gave authority over these streets to the State. The threshold question there was whether the utilities’ franchise right "... is a property right of such a nature that it is not subject to reasonable exercise of the State’s police power by requiring removal ... of their lines ... without reimbursement of the costs ... for the forced change of location.”

On rehearing, it was held that the utility in such circumstances did not have a special property right and that the State could compel the utility to remove the transmission lines and equipment at its own expense. That holding does not avail the State in this appeal.

The owner of lands abutting a public highway has a special property right of access which may not be substantially interfered with or prohibited unless the highway authorities, in the exercise of their police power acquires this property right “by donation, purchase, exchange, lease, or expropriation in the same manner as they ... may be authorized to acquire property ...” LRS 48:304, quoted supra in part. Gebelin, supra.

While it is true that the landowners might have employed an action for inverse condemnation damages for the appropriation by the State of this property right of access, the availability of that remedy does not preclude the landowners from bringing any other action which may afford them relief from the appropriation. The State simply has not acquired this property right of access by conventional conveyance or by expropriation. To paraphrase Gebe-lin, the Department of Highways has authority to limit and even prohibit the right of access an abutting property owner enjoys to a public highway, but this authority is not above or beyond the authority of the courts to enforce the constitutional guarantee that private property shall not be taken or damaged except for public purposes and after just compensation is paid. LSA-Const. Art. 1, § 4. This property right of access is in the nature of a servitude, the expropriation of which, when substantially interfered with by the State, may be compelled by the owner of abutting lands in an action in the courts of this state to enforce the constitutional guarantee. See Gebelin, supra. This constitutional guarantee is not affected by the fact that the appropriator is exerting police power. See Southwestern Elec. Pow. Co., supra, at 145 So.2d p. 324.

The judgment appealed is affirmed at appellant’s cost.

      . The State’s three specifications of error are that the district court committed legal error ...
      “in failing to apply the principle of ... [Gebeiin ] * * *
      “by failing to apply the principle of law contained in LSA-Const. Art. 4, § 1 ...
      “in failing to apply the principle of ... [Southwestern Elec. Pow. Co.] * * * ”


author: PRICE, Judge.

text:
    Connie Elkins HARVEY, Plaintiff-Appellee, v. MR. LYNNS, INC., Doug Conn, Pat Wesson, and Argonaut Insurance Companies, Defendants-Third-Party Plaintiffs-Appellants, Maryland Casualty Company, Third-Party Defendant-Appellee.
    No. 14916.
    Court of Appeal of Louisiana, Second Circuit.
    June 15, 1982.

      Evans, Feist & Auer by Frank M. Auer, Shreveport, for plaintiff-appellee.
    Richie & Richie by C. Vernon Richie, Shreveport, for defendant-third party plaintiffs-appellants, Mr. Lynn’s, Inc., Doug Conn & Pat Wesson.
    Cook, Yancey, King & Galloway by Charles G. Tutt, Shreveport, for third-party defendant-appellee, Maryland Cas. Co.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Defendants, Mr. Lynn’s, Inc., Doug Conn and Pat Wesson, appeal the granting of a summary judgment dismissing their third party demands against Maryland Casualty Company, the insurer of the premises occupied by Mr. Lynn’s, Inc. at 726 Cotton Street, Shreveport, under an owners’, landlords’, and tenants’ liability policy (hereinafter OLT policy). We affirm.

To understand the posture of this case, a recitation of facts is necessary. According to the pleadings, on June 9, 1979, plaintiff, Connie Elkins Harvey, was injured in a fall at the Hilton Inn in Bossier City while performing in a fashion show sponsored and directed by Mr. Lynn’s, Inc. Plaintiff filed suit against Mr. Lynn’s, Inc., Doug Conn, and Pat Wesson, the managing officers of Mr. Lynn’s, Inc., alleging that her injury was the result of the negligence of the defendants in the staging of the show. Plaintiff alleged that the stage on which she was performing had become slippery because of the use of certain props in the production of the show.

The defendants filed a third party demand against Maryland Casualty Company, alleging that any damages owed due to their negligence in the production of the fashion show was covered by an insurance policy issued by the insurer to Mr. Lynn’s, Inc. They further alleged that under the terms of the policy, Maryland Casualty Company had an obligation to defend them in the main action.

Maryland Casualty Company filed a motion for summary judgment, supported by the OLT policy which was issued to Mr. Lynn’s, Inc. The affidavits submitted in opposition to the motion for summary judgment show that Mr. Lynn’s, Inc., operates a modeling school and also secures assignments for its models on a commission basis. Plaintiff was employed by Mr. Lynn’s, Inc., as both an instructor at the modeling school and as a professional model. The affidavits further show that the fashion show in which plaintiff sustained her injuries was being performed without charge to the Hilton Inn. The basic purpose of this show was to advertise the services of defendants and the models with the hope of securing compensated modeling contracts in the future.

The OLT policy in question provides coverage for bodily injury: As pertinent to this case, insured premises are defined as “the premises designated in the declarations.” The declaration sheet of the policy lists the address as 726 Cotton Street, Shreveport, Louisiana.

... caused by an occurrence and arising out of the ownership, maintenance, or use of the insured premises and all operations necessary or incidental thereto . .'.

Defendants contend that the policy issued by Maryland Casualty Company is a general liability policy and is not limited solely to OLT coverage. They further contend that even if the contract in question provides only OLT coverage, the fashion show in which plaintiff was injured arose out of an operation “necessary or incidental” to the use of the insured premises. They allege that the fashion show was incidental to the operation of Mr. Lynn’s, Inc., which uses the insured premises. Therefore, the fashion show was incidental to the use of the premises. They also contend that since there is no provision specifically excluding off-premise occurrences, the accident at the Hilton Inn should be covered by the policy. Finally, defendants argue that the provisions of the policy are ambiguous, thus the policy must be construed liberally in favor of the insured and against the insurer.

Contracts of insurance must be construed as a whole. While the labels and headings of the respective sections of the contract are pertinent, one section or its placement should not be construed separately and so as to disregard other sections or placements. Benton Casing Service, Inc. v. Avemco Ins. Co., 379 So.2d 225 (La.1979).

An insurance contract should be given a fair and reasonable construction that is in keeping with the plain intention of the parties as expressed in the words of the agreement. The contract should not be interpreted in a strained, forced, or unreasonable manner which would enlarge or restrict its provisions beyond what is reasonably contemplated by its terms. Clerk v. Connecticut Fire Ins. Co., 203 So.2d 866 (La.App. 2d Cir. 1967), writ denied 251 La. 733, 206 So.2d 90; Schmieder v. State Farm Fire & Casualty Co., 339 So.2d 390 (La.App. 1st Cir. 1976), writ denied, 341 So.2d 895 (La.).

Construing the insurance policy as a whole, we find the contract is not ambiguous, confusing, or uncertain as to what coverage is provided. Although the standard version of this policy can provide coverage for various types of liability, a study of the declarations page shows that the only coverage part purchased by Mr. Lynn’s, Inc., was owners’, landlords’ and tenants’ liability. This coverage properly pertains only to those claims which arise out of the ownership, maintenance, or use of the insured premises and all operations necessary or incidental to such ownership, maintenance, or use.

The purpose of owners’, landlords’ and tenants’ liability insurance is to protect against liability arising from the condition or use of a building. This must be distinguished from insurance against liability arising from the nature of the enterprise or activity conducted therein. Put another way, an OLT policy does not cover liability arising from the type of business activity which the insured conducts in the building. See 11 Couch on Insurance 2d, § 44:372 (2nd Ed. 1963).

The pleadings in this case indicate that the alleged injury sustained by plaintiff arose out of the use of the Hilton Inn premises, not the premises insured by Mr. Lynn’s, Inc. Thus under the very terms of the insurance policy, no coverage is provided.

Since the provisions of the insurance policy clearly preclude coverage, the insurer is under no duty to defend the main action. West Brothers of DeRidder, Louisiana v. Morgan Roofing, 376 So.2d 345 (La.App. 3rd Cir. 1979).

For the reasons assigned, the judgment appealed is affirmed at defendants’ costs.