text:
    Kelly E. McGEE v. Julian MUTTER, Jr.; Julian Mutter; 511, L.L.C.; Raven Hinojosa, Individually and d/b/a Aurora Aerials; and the Black Forest Fancies; as well as their unknown liability Insurers.
    No. 2010-CA-1334.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 12, 2011.

      David A. Dalia, New Orleans, LA, for Plaintiff/Appellant, Kelly E. McGee.
    Carl J. Griffin, Jr., Howard B. Kaplan, Bernard, Cassisa, Elliott & Davis, APLC, Metairie, LA, for Defendant/Appellee, 511, L.L.C.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN).
   JOAN BERNARD ARMSTRONG, Chief Judge.

_JjThe plaintiff-appellant, Kelly E. McGee, appeals a June 14, 2010 summary judgment dismissing her claims against three of the defendants, Julian Mutter and his son, Julian Mutter, Jr., and 511, LLC (hereinafter “511”). However, the plaintiff appeals only the dismissal of her claims against 511. She does not appeal the dismissal of either of the Mutters. The judgment includes a determination that it is a final judgment subject to immediate appeal under La. C.C.P. art. 1915 B(l).

The plaintiff is suing for personal injuries sustained on March 4, 2008, when she fell from a stationary trapeze on premises owned by the appellees. She filed suit on March 3, 2009, naming the appellees herein as defendants as well as their as of that time unknown liability insurers, along with Ms. Raven Hinojosa, individually and d.b.a Aurora Aerials and the Black Forest Fancies and their unknown liability insurers.

511 filed its motion for summary judgment over eleven months later, on February 12, 2010. The hearing on the motion for summary judgment did not take place until over three months thereafter, on May 21, 2010.

|2Apparently, for some time prior to the accident the plaintiff had been receiving trapeze lessons from another defendant, Raven Hinojosa, the leader of an aerial group known as Aurora Aerials. The plaintiff provided massage services to Ms. Hinojosa in exchange for the trapeze lessons. The trapeze lessons were given in a warehouse owned by 511, L.L.C. (hereinafter referred to as “511”), which in turn is owned by Julian Mutter.

In her deposition, plaintiff testified that she had been practicing trapeze under Hi-nojosa’s instruction for five months before the accident. It is uncontested that during that time she had no contact with the Mutters or any interaction with any other representative of 511. She testified that she had no dealings with Julian Mutter and did not even know who he was. Nor did either Julian Mutter or his son have any involvement with her arrangement with Hinojosa. Likewise, she never had any interaction with 511.

She alleged that the trapeze was approximately ten feet from the floor and when she fell she landed on a mat that was approximately 1 ½ feet thick. She admitted in her deposition that she knew that if she fell she could hurt herself, stating, “Yeah. Everyone knew that.” She does not allege that the trapeze malfunctioned or broke or that any component of the premises malfunctioned or broke. She does not allege that the trapeze or the mats were owned by 511. She fell while attempting a difficult manoeuver called the “gazelle,” a manoeuver -with which she had informed Hinojosa she was not comfortable.

The plaintiff testified that after the accident, Hinojosa admitted to her that she caused the plaintiffs accident. The plaintiff does not argue that her accident was the result of any failure on the part of the appellees to properly maintain the building.

[¡¡The plaintiff argues that 511 knew or should have known of the dangerous conditions that existed on the premises in connection with the trapeze, and as the owner of the building should be responsible for the injuries she sustained when she fell. Added to this, the plaintiff argues that no lease between Hinojosa and 511 was ever produced so there is no lease language to shift liability from 511 as lessor to Hinojo-sa as lessee, i.e., no language shifting the care custody and control of the premises to the lessee. Finally, plaintiff argues that the summary judgment was improvidently granted as discovery was not complete.

This Court recently described the standard of summary judgment review as follows:

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230-81. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La.Code Civ. Proc. art. 966 A. (2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966 B. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.; La.Code Civ. Proc. art. 966 C. (2).
|4An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.Code Civ. Proc. art. 967; Townley v. City of Iowa, 97-493, p. 5 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.
The amended article 966 substantially changed the law of summary judgment. Under the prior jurisprudence, summary judgment was not favored and was to be used only cautiously and sparingly. Under the amended statute, the initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, under La.Code Civ. Proc. art. 966 C, once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Once the mover has properly supported the motion for summary judgment, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.
Argument of counsel and briefs, no matter how artful, are not sufficient to raise a genuine issue of material fact. La. Code Civ. Proc. art. 967; Cox Cable New Orleans, Inc. v. City of New Orleans, 94-2102, p. 4 (La.App. 4 Cir. 11/16/95), 664 So.2d 742, 744. Despite the presence of disputed facts, summary judgment will be granted as a matter of law if the contested facts present no legal issues. Davenport v. Amax Nickel, Inc., 569 So.2d 23, 27 (La.App. 4 Cir.1990).
A fact is material if it is essential to a plaintiffs cause of action under the applicable theory of recovery and without which plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4th Cir.1992).

Keasley v. Transit Mgmt. of Southeast Louisiana, 10-0786, pp. 16-18 (La.App. 4 Cir. 12/7/10), 52 So.3d 976, 986.

The plaintiff argues that 511 should be liable because it knowingly (or should have known) allowed trapeze lessons to be conducted in an unsafe manner |swith the trapeze at an unsafe height, without proper padding and cushioning to break the fall in the absence of safety nets. 511’s arguments focus on the fact that there is no showing that there was any failure to maintain the premises properly and that no defect in the structure caused the accident. 511 argues, in effect, that the risks associated with a trapeze do not per se render the premises defective any more than sky diving per se would render an airplane defective. Moreover, we note that in both cases the risks are immediately obvious to all those brave enough to engage in such activities. In fact, in plaintiffs brief to this Court, she states that “there were well known and dangerous [trapeze] activities taking place at the warehouse” owned by 511. Where the risk is obvious, there is no duty to warn or protect against it. Albert v. J & L Engineering Company, 214 So.2d 212 (La.App. 4th Cir.1968); Leonard v. Albany Mach. & Supply Co., 339 So.2d 458, 463 (La.App. 1st Cir.1976).

As the First Circuit explained in McCoy v. Liberty Mut. Life Ins. Co., 42,118, p. 5-6 (La.App. 2 Cir. 5/9/07), 956 So.2d 802, 806:

The owner of a building cannot be held responsible for all injuries resulting from any risk posed by his building, only those caused by an unreasonable risk of harm to others. Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983). Where a risk of harm is obvious, universally known and easily avoidable, the risk is not unreasonable. Jackson v. Gardiner, 34,643 (La.App. 2d Cir. 4/4/01), 785 So.2d 981, supra.

Id,

As the Supreme Court explained in Eisenhardt v. Snook, 08-1287, pp. 5-6 (La.3/17/09), 8 So.3d 541, 544-45:

[W]e have recognized that defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not | fibe unreasonably dangerous, and the defendant may owe no duty to the plaintiff. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care, or which was as obvious to a visitor as it was to the landowner. Dauzat v. Curnest Guillot Logging, Inc., 08-0528 (La.12/2/08), 995 So.2d 1184; Hutchinson v. Knights of Columbus, 03-1533, p. 9 (La.2/20/04), 866 So.2d 228, 234; Pitre v. Louisiana Tech University, 95-1466, 95-1487 at p. 11 (La.5/10/96), 673 So.2d 585, 591.

Id.; See also Bozeman v. Scott Range Twelve Ltd. Partnership, 03-0903, pp. 5-6 (La.App. 1 Cir. 4/2/04), 878 So.2d 615, 619.

In her affidavit in opposition to the motion for summary judgment, the plaintiff avers that the following dangerous conditions existed:

1. The “trapeze ... was located dangerously high up from the floor.”
2. “[Tjhere was no safety net under the trapeze.
3. “[Tjhere were other dangerous conditions present on the premises as well.”
4. “The trapeze could have been located lower to the ground, which would have prevented or mitigated my injuries.”
5. “There was also a “self repair” bicycle shop on the premises at which dangerous tools were in use on a regular basis.

The plaintiff contends that on the motion for summary judgment, the trial court was bound to accept as true the existence of each of these allegedly dangerous conditions and that the alleged existence of any one of these dangerous conditions creates a genuine issue of material fact as to 511’s responsibility for allowing that condition to exist on the premises. For purposes of argument only, we shall analyze each of plaintiffs contentions as though proven.

17First, we shall address the easiest of these allegedly dangerous conditions. The allegation that there “were other dangerous conditions present on the premises” is so broad and vague and conclusory in nature as to be of no legal consequence. Additionally, the plaintiff fails to make any allegations explaining how the existence of such unnamed dangerous conditions contributed in any way to her fall.

Likewise, the allegation that there were dangerous tools in use in the bicycle shop on the premises is legally insufficient as it fails to allege any connection between the presence of these tools and the plaintiffs fall.

The allegation that the trapeze was too high and the allegation that it should have been lower to the ground is essentially the same allegation expressed in two different ways. As noted earlier, this condition is so obvious that 511 had no duty to warn or protect against it.

Finally, there is the allegation that there was no safety net under the trapeze, which is integrally related to the allegations that the trapeze was too high and that it should have been lower to the ground. Again, this is a condition that is so obvious that 511 had no duty to warn or protect against it.

Based on these allegations, the plaintiff cites a number of cases which she contends support her theory of liability against the owner. The plaintiff relies primarily on Yokum v. 615 Bourbon Street, L.L.C., 07-1785 (La.2/26/08), 977 So.2d 859 and Sam v. Theriot, 49 So.2d 484 (La.App. 1st Cir.1950). The Louisiana Supreme Court approached Yokum from the standpoint of a predial servitude under the laws of vicinage, La. C.C. art. 667, et seq. Those code articles have no bearing on this case as the plaintiffs claim is not based on vicinage. See Dean v. Hercules, Inc., 328 So.2d 69, 71 (La.1976), where the Louisiana Supreme Court explained that:

laC.C. 667 is the embodiment of the maxim “sic utere tuo, ut alienum non lae-das;” along with articles 668 and 669, it establishes the reciprocal rights and obligations of neighbors. Chaney v. Travelers Insurance Co., 259 La. 1, 249 So.2d 181 (1971). See Yiannopoulos, Civil Responsibility in the Framework of Vicinage: Articles 667-69 and 2315 of the Civil Code, 48 Tul.L.Rev. 195 (1974).

More importantly, Yokum has nothing to do with an obvious risk.

In Sam, supra, a child was killed by an automobile at a “Hell Driving” exhibition held by the lessee on premises leased from the owner, i.e., the claimant was injured as the result of an activity conducted on the premises rather than a defect in the premises itself. The owner-lessor was relieved of liability because of a clause in his lease with the operator of the exhibition stating that the operator of the exhibition would have full control of the premises and that the operator of the exhibition would be responsible for all damages. The plaintiff infers from Sam that the absence of any similar lease in the instant case means that 511 can be held responsible for dangerous activities conducted on its premises with either its actual or constructive knowledge. However, the plaintiff cites no cases in Louisiana and this Court has found none that would impose liability on the owner under facts anywhere remotely resembling those of this case, regardless of whether there was a written lease. Moreover, there was no obvious direct risk to the child injured in Sam comparable to the risk of falling from the trapeze in the instant case.

Choyce v. Sisters of Incarnate Word, 25,958 (La.App. 2 Cir. 8/19/94), 642 So.2d 287, 290, was a slip and fall case in which it was determined that the defendant hospital frequently waxed its floors, which were marble or terrazzo. In holding the hospital-owner of the premises liable the court relied on the following finding that is inapplicable to the instant case: “The testimony of plaintiff’s expert |9that marble tile and terrazzo type floors become slippery when waxed is uncontroverted.” Thus, Choyce is distinguishable from the instant case in two critical respects: (1) the owner of the premises created the condition which resulted in the plaintiffs injury; and (2) the owner conducted the activity for which the premises was used. In the instant case, the owner neither created the condition that allegedly resulted in the plaintiffs injury nor conducted the trapeze class. And again, there was no obvious risk in Choyce comparable to that posed by the trapeze in the instant case.

Collins v. Christophe, 479 So.2d 537, 538 (La.App. 1st Cir.1985), involved a suit for damages in tort alleging a fall during a party at a private residence. It is inappo-site because as the court did not hold the owner liable and also because the owner was hosting the party. In the instant case the owner was not conducting the activities on the premises.

In Bertini v. Scaife, 04-1229 (La.App. 3 Cir. 2/16/05), 895 So.2d 619, the court held the lessor liable for a fire that the court found was caused more likely than not by a defect in the fireplace. The plaintiff does not allege the existence of any defect in the premises in the instant case; rather, the plaintiff alleges a defect on the premises created by the occupant of the premises. The facts in Bertini and the duty found to be owed under those facts have no bearing on the instant case.

In Patrick v. Employers Mut. Cas. Co., 99-94 (La.App. 3 Cir. 8/11/99), 745 So.2d 641, the parents of bar patron who was shot during an altercation in a bar parking lot sued the owner of shopping center in which bar was located. The court found that the owner of the center had the duty to provide security for the center and had breached that duty. The facts in Patrick and the duty found to be owed under those facts have no bearing on the instant case.

Granger v. U.S. Fid. & Guar. Co., 266 So.2d 526 (La.App. 3rd Cir.1972) involved the breach of the owner’s duty of due care owed to the owner’s business invitee who was gored by a bull, and the owner’s employees’ negligence in failing to restrain the bull or in failing to adequately warn the invitee. Therefore, Granger has no bearing on the instant case.

Again we note that none of the cases cited by the plaintiff imposed liability on the owner based on facts even remotely resembling the facts of the instant case, and this Court’s independent research has revealed none.

The plaintiff also makes the procedural argument that it was premature to grant the motion for summary judgment prior to completion of discovery. Specifically, the plaintiff contends that one of the defendants, Raven Hinojosa, is avoiding service and appears to be in active hiding from this lawsuit and that, therefore, discovery from her has not even begun. However, the plaintiff does not suggest how Ms. Hinojosa’s testimony would implicate 511 in plaintiff’s fall, i.e., the plaintiff fails to make a case for how she may be prejudiced in her case against 511 by being denied the opportunity to pursue further discovery against Ms. Hinojosa. The judgment from which the plaintiff appeals does not dismiss the plaintiff’s claim against Ms. Hinojosa and, based on the record before us, it appears that the plaintiff is free to pursue her claim against Ms. Hinojosa as well as further discovery in that regard.

The plaintiff also speculates that it is possible that there is a joint venture relationship between Ms. Hinojosa and 511 and that this cannot be determined without the deposition testimony of Ms. Hinojosa. The plaintiff does not contend that she has any reason to believe that such a joint venture exists, merely that it is a possibility. Because of this possibility, the plaintiff contends that the summary Injudgment was premature because it deprived her of the ability of deposing Ms. Hinojosa to determine whether a joint venture with 511 may have existed. Consequently, the plaintiff asserts that the summary judgment should be reversed on this account. If one could defeat a motion for summary judgment based on a mere conjectural possibility, it would render the summary judgment procedure useless. This is why a “mere allegations” and “argument of counsel and briefs, no matter how artful, are not sufficient to raise a genuine issue of material fact.” Keasley, supra, 10-0786 at pp. 17-18, 52 So.3d at 986.

The plaintiff does not describe what attempts she made to serve Ms. Hinojosa, and there is nothing in the record to show what attempts were made to serve her. Therefore, we find that the plaintiff has failed to show how the trial judge abused her discretion by denying her more time to pursue discovery against Ms. Hinojosa.

In any event, whether or not the plaintiff could have deposed Ms. Hinojosa would in no way have changed the fact that where the risks were obvious, as they were in the instant case, 511 had no duty to warn or protect against them.

The plaintiff argued in her opposition to the motion for summary judgment that: “The identity of an important witness, the night watchman and security man, Paul Lynch, has just been ascertained, and his deposition remains to be taken.” The plaintiff alleges that 511 could have acquired constructive knowledge of the activities on the premises through this night watchman. However, she does not explain exactly when or how the identity of the night watchman was obtained, or what efforts she made to obtain that information, or what efforts she has made since obtaining that information to depose Mr. Lynch, in order that this Court might determine the reasonableness of her assertion that the trial court erred in not | ^permitting her more time in which to pursue this aspect of discovery. Additionally, we find no formal motion for continuance based on this argument in the record.

The plaintiff filed her original petition on March 3, 2009. Ms. Hinojosa was named as a defendant in the plaintiffs original petition. 511 filed its motion for summary judgment over eleven months later, on February 12, 2010. The hearing on the motion for summary judgment did not take place until over three months later, on May 21, 2010.

From the record, it appears that 511 commenced discovery in October of 2009. We find nothing in the record showing that the plaintiff made any discovery attempts on anyone at any time in the trial court. The plaintiff alleges that Ms. Hinojosa is avoiding service, but there are no returns in the record that would support such a contention. There is nothing in the record indicating that the plaintiff has made a timely, good faith effort to pursue discovery. If there were any such evidence in the record before the trial court, and we are not saying that there was, it has not found its way into the record before this Court. The inadequacy of the record, if any, is imputable to the appellant. Yokum v. Court of Two Sisters, Inc., 06-0732, p. 3 (La.App. 4 Cir. 11/21/06), 946 So.2d 671, 673; Jamie Land Co., Inc. v. Jones, 05-1471, p. 3 (La.App. 1 Cir. 6/9/06), 938 So.2d 738, 739. The inadequacy of an appellate record for which an appellant is responsible cannot operate to the detriment of an appellee. Alexander v. Parish of St. John The Baptist, 09-840, p. 9 (La.App. 5 Cir. 3/23/10), 33 So.3d 999, 1005, writ denied, 10-1289, (La.9/17/10), 45 So.3d 1056. The burden is on appellant to comply with La. C.C.P. art. 2131 and to have a complete record before the court of appeal. Andries v. Andries, 07-88, p. 3 (La.App. 3 Cir. 5/30/07), 957 So.2d 954, 955.

11sThe plaintiff has not explained what efforts she may have made to pursue discovery or obtain service on Ms. Hinojosa. The same is true of her allegations regarding the night watchman, Paul Lynch.

La. C.C.P. art. 966 allows the filing of a motion for summary judgment after a “reasonable time for discovery.” There is no requirement that discovery be completed before a motion for summary judgment is filed or heard. Rucker v. Temps Today, Inc., 09-1257, p. 4 (La.App. 4 Cir. 5/5/10), 38 So.3d 1018, 1020, writ denied, 10-1264 (La.9/17/10), 45 So.3d 1054; Newton & Associates, Inc. v. Sheridan, 99-2048, p. 6 (La.App. 4 Cir. 12/13/00), 775 So.2d 1144, 1147. In Rucker, this Court explained that:

This Court has previously held that a summary judgment proceeding was not premature in a situation where some defendants, who apparently could not be served, had not answered the petition at the time the motion for summary judgment was filed. See Ladner v. Thomas, 487 So.2d 544 (La.App. 4 Cir.1986). Furthermore, there is no requirement that discovery be completed before a motion for summary judgment is filed or heard. Bourgeois v. Curry, 2005-0211, p. 10 (La.App. 4 Cir. 12/14/05), 921 So.2d 1001, 1008. Plaintiffs had a fair opportunity to conduct discovery in this case prior to the hearing on the motion for summary judgment.

Id.

The determination of what constitutes a “reasonable time for discovery” lies within the wide discretion of the trial court in discovery matters. This court discussed the trial court’s discretion in denying further discovery at length in Williams v. Mem’l Med. Ctr., 03-1806, p. 18 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, 1055, including the following statement:

It is the province of the trial court to control the progress of discovery. Where, as here, the plaintiff had adequate time since the filing of the complaint [in July |142001] to secure discovery and was given the opportunity for discovery, there was no abuse of the trial court’s wide discretion in discovery matters [in ruling on the motion in August 2002]. Rhea [v. Winn Dixie Market Place Store], 2002-2181 at p. 4 [ (La.App. 4 Cir. 6/4/03)], 849 So.2d [759] at 762.

Id., 03-1806 at pp. 17-18, 870 So.2d at 1055.

The summary judgment was granted in Rhea thirteen months after the filing of the petition prior to the completion of discovery. In the instant case over fifteen months elapsed from the filing of the petition to the granting of the motion for summary judgment.

Based on the record and timeline in the instant case, we find no abuse of discretion in the trial judge’s decision to proceed to summary judgment when she did.

The plaintiff also complains of an allegedly forged document that purports to be a limitation of liability agreement between the plaintiff and Ms. Hinojosa, but that document is irrelevant to this summary judgment appeal as 511 in no way relied upon that document in its motion for summary judgment or on this appeal.

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

AFFIRMED


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dion P. SIMMONS.
    No. 2010-KA-1508.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Brad Scott, Assistant District Attorneys, New Orleans, LA, for Appellee, State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant, Dion P. Simmons.

      (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   MAX N. TOBIAS, JR., Judge.

bOn 30 December 2009, the state charged the appellant, Dion P. Simmons (“Simmons”), with possession with intent to distribute cocaine. He entered a not guilty plea at his 5 November 2009 arraignment, and on 7 January 2010, the district court found probable cause and denied his motion to suppress the evidence. The state filed a notice of intent to introduce the criminalist report on 24 February 2010 and the defense filed its opposition to the notice on 18 May 2010, which was denied that same day. A jury subsequently found Simmons guilty as charged on 18 May 2010. He was sentenced on 1 June 2010 to serve twelve years at hard labor, to run concurrently with any other sentence that he may be serving. On 22 June 2010, the district court granted Simmons’ motion for appeal. A motion for new trial was filed on 1 September 2010 alleging newly discovered evidence. At the request of the defense, this court issued an order on 3 September 2010 remanding the matter to the district court for a hearing on the new trial motion. The motion for new trial was denied on 6 October 2010. Though a multiple bill was filed by the state, it was dismissed by the district court on 13 January 2011.

J¡FACTS

On 27 October 2009, Officers Moore and Gray were on proactive patrol in New Orleans at approximately 11:00 p.m. in a fully marked police vehicle. The area that they were patrolling contained abandoned properties and was known for violent crime and illicit drug sales. Upon entering the 2300 block of Saint Andrew Street, they observed a man walking on the sidewalk to their left wearing a hooded sweatshirt. When the man saw the police vehicle he was obviously startled. He hastened his pace and repeatedly looked over his left shoulder at the police vehicle as he continued to walk down the street. As the officers watched him, the man moved his hands to the front of his sweatshirt. When they could see his left hand again, it was clenched in a fist; the man then discarded what was in his fist, and he kept walking. The officers stopped and exited their vehicle. Officer Gray called to the man to stop and approach the vehicle. He complied. Officer Gray conducted a pat down search for weapons and found none while Officer Moore went to the area where the man discarded the item and immediately saw a clear plastic bag. Inside the bag were fourteen individually wrapped pieces of what appeared to be crack cocaine. The man was arrested and advised of his Miranda rights. Officer Moore testified that Simmons was charged with possession with intent to distribute cocaine because based upon his experience, the crack cocaine had been packaged in a manner for retail sale. Nothing was found in the search incident to Simmons’ arrest. Both officers identified Simmons at trial as the man they observed discard the crack cocaine.

The crime lab report prepared by Officer O’Neal was admitted into evidence. It showed that the substance discarded by Simmons tested positive for cocaine.

laToni Wesley testified for the defense and stated that she has known Simmons since middle school. On the night that Simmons was arrested, she was outside standing on the corner of South Liberty and Saint Andrew Streets waiting for her sister to pick her up. Ms. Wesley saw the police arrive, and she saw them talking to Simmons. She did not see Simmons drop anything to the ground or the officers pick anything up from the ground. Ms. Wesley admitted that she had a prior conviction for filing false records.

ERRORS PATENT

A review of the record fails to show that the district court restricted parole eligibility for the first two years of Simmons’ sentences as required by La. R.S. 40:967. However, as per La. R.S. 15:301.1 A and State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the sentence is deemed to have been imposed with the restriction, even in the absence of the trial court’s failure to delineate the restriction. Thus, no need exists for this court to correct the sentence. See State v. Phillips, 03-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675.

No other patent error was found.

We discuss Simmons’ assignments of error numbers 1 and 3 in reverse order.

ASSIGNMENT OF ERROR NUMBER 3

By his third assignment of error, Simmons asserts that the evidence is insufficient to support his conviction. When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). State v. Marcantel, 00-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55.

The standard of review for the sufficiency of the evidence is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the state proved the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987).

To support Simmons’ conviction, the state must prove that he “knowingly” and “intentionally” possessed the cocaine with the “intent to distribute”. State v. Williams, 594 So.2d 476, 478 (La.App. 4th Cir.1992). Specific intent to distribute may be established by proving circumstances surrounding the defendant’s possession which give rise to a reasonable inference of intent to distribute. State v. Dickerson, 538 So.2d 1063 (La.App. 4th Cir.1989). Simmons urges that the state failed to prove that he had the requisite intent because the state did not show that the amount of crack cocaine seized was inconsistent with personal use.

In State v. Hearold, 603 So.2d 731, 735 (La.1992), the Court identified five factors which are useful in determining whether circumstantial evidence is sufficient to prove the intent to distribute a controlled dangerous substance as follows:

(1) [WJhether the defendant ever distributed or attempted to distribute the drug; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of drug created an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only; and (5) whether there was |sany paraphernalia, such as baggies or scales, evidencing an intent to distribute.

In State v. Cushenberry, 94-1206, p. 6 (La.App. 4 Cir. 1/31/95), 650 So.2d 783, 786, this court noted that the Hearold factors were “enunciated as ‘useful’ in determining whether circumstantial evidence is sufficient to prove intent to distribute,” but this court held that the evidence need not “fall squarely within the factors enunciated to be sufficient for the jury to find the requisite intent to distribute.”

Here, testimony established that the area in which Officers Moore and Gray were patrolling was known for violent crime and illicit drug sales. The clear plastic bag seized by Officer Moore contained fourteen individually wrapped pieces of crack cocaine. The officer testified that in his experience, the cocaine was packaged in a manner for retail sale. Though no expert testimony was presented to show that the amount of drugs found in Simmons’ possession was inconsistent with personal use, the circumstantial evidence presented by the state is sufficient for the jury to find that he had the requisite intent to distribute.

In State v. Fernandez, 489 So.2d 345 (La.App. 4th Cir.1986), this court upheld the conviction and sentence for possession with intent to distribute where the defendant was found to be in possession of twenty-one individually wrapped bags of cocaine. In the case, the state introduced testimony from a police officer to the effect that the size and number of bags found on the defendant’s person was inconsistent with personal use.

Similarly, in State v. Hollins, 99-278 (La.App. 5 Cir. 8/31/99), 742 So.2d 671, the court affirmed a defendant’s conviction and sentence for possession with intent to distribute where the defendant was discovered to be in possession of nineteen individually wrapped pieces of crack cocaine. The state introduced testimony from a police officer to the effect that the typical crack cocaine user only buys one to two rocks at a time.

In State v. Davis, 06-1330 (La.App. 4 Cir. 4/25/07), 958 So.2d 713, a case cited by Simmons, this court affirmed a conviction for possession with intent to distribute cocaine even though no testimony was presented that the amount of cocaine in the defendant’s possession was inconsistent with personal use. The court found that the jury reasonably inferred that the defendant had the requisite intent based upon three factors: (1) eighteen of the nineteen rocks of crack cocaine found in the defendant’s possession were individually wrapped; (2) he was in possession of $1,067.00 in cash; and (3) he was arrested in an area with a high incidence of narcotics trafficking.

In another case cited by Simmons, State v. Johnson, 621 So.2d 903 (La.App. 4th Cir.1993), this court found that the evidence was insufficient to support the defendant’s conviction for possession of cocaine with intent to distribute despite the fact that several people approached the defendant during a one-half hour time period, hand movement was observed, and six or seven rocks of cocaine were seized from him. The court noted that no testimony was presented regarding the packaging or amount of cocaine seized. No drug paraphernalia was seized, and he possessed only $81.00.

Simmons urges that his case is similar to Johnson because no evidence of actual distribution was presented and he was not found to have any cash or drug 17paraphernalia in his possession. Though this may be true, unlike Johnson, testimony established that the cocaine appellant possessed was individually packaged and that it was packaged for individual sale. Also, as in Davis, he was in an area known for illicit drug sales. The jury apparently concluded that the foregoing factors supported a finding that Simmons had the requisite intent to distribute, a conclusion that is based upon reasonable inferences by the jury and supported by the jurisprudence.

Therefore, we find this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error, Simmons asserts that his right to confront the witnesses against him was violated by the introduction of the criminalist report as prima facie evidence that the substance recovered by Officer Moore contained cocaine.

Just prior to the beginning of trial, counsel made a motion in limine raising the issue, citing Melendez-Diaz v. Massachusetts, — U.S. —, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). The state urged that the motion had to be made ten days before trial. The court asked whether the crimi-nalist could testify. The court learned that the criminalist was Harry O’Neal from St. Tammany Parish, who was not immediately available. It subsequently denied the motion in limine as untimely. Defense counsel noted his objection.

Is At the time of the alleged crime and Simmons’ arrest and trial, La. R.S. 15:499 stated:

A.All criminalistics laboratories established by laws of this state or by laws of the United States, and all coroners, forensic pathologists, and other persons, partnerships, corporations, and other legal entities practicing in fields of knowledge and expertise in the gathering, examination, and analysis of evidence by scientific means are authorized to make proof of examination and analysis of physical evidence by the certificate of the person in charge of the facility in which such examination and analysis is made. Such certificate shall list:
(1) The date and time such evidence was delivered to such facility.
(2) The name of the person making such delivery, and the person receiving same.
(3) A brief description of the evidence.
(4) The type of examination or analysis requested.
(5) The name of the person making the examination or analysis.
(6) The date or dates of the examination or analysis.
(7) The results of the examination or analysis.
B. The certificate shall give the name and address of the facility in which the examination or analysis was made, and shall be signed by the person making the examination or analysis and by the person in charge of the facility.
C. Criminalistics laboratories are authorized to utilize electronic signatures in order to comply with the provisions of Subsection B of this Section once final review of the certificate of analysis is completed. For purposes of this Section, “electronic signature” shall mean an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

]¿La. R.S. 15:500 states:

In all criminal cases and in all cases in juvenile or family courts which are of a criminal nature, and in civil forfeiture proceedings arising from criminal activity, the courts of this state shall receive as evidence any certificate made in accordance with R.S. 15:499 subject to the conditions contained in this Section and R.S. 15:501. The certificate shall be received in evidence as prima facie proof of the facts shown thereon, and as prima facie proof of proper custody of the physical evidence listed thereon from time of delivery of said evidence to the facility until its removal therefrom.

At the time of the alleged crime and Simmons’ arrest and trial, La. R.S. 15:501 stated:

|1ftA. The party seeking to introduce a certificate made in accordance with R.S. 15:499 shall, not less than ten days prior to the commencement of the trial, give written notice of intent to offer proof by certificate. Such notice shall include a copy of the certificate.
B. (1) The party against whom such certificate is offered shall be permitted to subpoena on cross-examination, the person who performed the examination or analysis of the evidence. If the subpoena is requested at least five days prior to the commencement of trial or the person subpoenaed responds to the subpoena, the certificate shall not be prima facie proof of its contents or of proper custody.
(2) When the attorney for the defendant, or the defendant acting in his own defense, requests that a subpoena issue to the person who performed the examination or analysis, the request shall be in writing and shall contain a certification that the attorney or the defendant intends in good faith to conduct the cross-examination.

By 2010 La. Acts 693 (effective 15 August 2010), the Louisiana Legislature amended La. R.S. 15:501 to read as follows:

A. The party seeking to introduce a certificate made in accordance with R.S. 15:499 shall, not less than forty-five days prior to the commencement of the trial, give written notice of intent to offer proof by certifícate. Such notice shall include a copy of the certificate.
B. The attorney for the defendant, or the defendant acting in his own defense, if not represented by counsel, may demand that the person making the examination or analysis testify by filing a written demand and serving it upon the district attorney or attorney general seeking to introduce the certificate. If such a demand is made timely as set forth below, the certificate shall not constitute prima facie proof of the facts thereon as set forth in R.S. 15:500.
C. Demand for the testimony of the person making the examination or analysis shall be filed and served by counsel for the defendant, or by a defendant acting as his own counsel, within thirty days of the receipt of the notice provided for in Subsection A of this Section. The trial court may extend this thirty-day period for good [n cause shown if such request is made prior to the expiration of the thirty days.
D. If no request for additional time is made prior to the expiration of the thirty-day period, an extension of time in which to make such a demand may be made only upon a showing of exceptional circumstances. Any allegation that such circumstances exist shall constitute a preliminary plea on the defendant’s behalf for the purposes of Louisiana Code of Criminal Procedure. The demand shall be made in writing and notice shall be served on the district attorney or the attorney general prosecuting the matter. The court shall conduct a contradictory hearing to determine if the extension is warranted.
E. The filing of a demand by the defendant does not prevent the admission of the certificate or its contents in any other manner otherwise appropriate pursuant to the Louisiana Code of Evidence or its aneillaries.

Here, the state’s notice of intent to introduce into evidence the state’s criminalist report as prima facie proof was timely filed on 24 February 2010 under La. R.S. 15:499-501 as it read at the time of Simmons’ trial. The defense did not request that a subpoena be issued within five days prior to trial and only noted its objection on the day of trial, 18 May 2010. After the objection was denied, the matter proceeded to trial.

Melendez-Diaz was a drug case in which the prosecution, pursuant to Massachusetts law, sought to offer sworn affidavits of analysts at a state laboratory attesting that the substance that had been seized from the accused and they analyzed was cocaine. The defense objected based on Sixth Amendment | ^Confrontation Clause grounds, arguing that the burden was on the prosecution to produce the witnesses. The Court found that the affidavits in question fell “within the ‘core class of testimonial statements’ ” described in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), as being “covered by the Confrontation Clause”:

As we stated in Crawford: “Most of the hearsay exceptions covered statements that by their nature were not testimonial-for example, business records or statements in furtherance of a conspiracy.” 541 U.S., at 56, 124 S.Ct. 1354, 158 L.Ed.2d 177. Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but beeause-having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial-they are not testimonial. Whether or not they qualify as business or official records, the analysts’ statements here-prepared specifically for use at petitioner’s trial-were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.
Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power — whether pursuant to state law or the Compulsory Process Clause — is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. See, e.g., Davis [v. Washington, 547 U.S., 813,] 820, 126 S.Ct. 2266 [165 L.Ed.2d 224 (2006) ] (“[The witness] was subpoenaed, but she did not appear at ... trial”). Converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses. [Emphasis supplied.]

Melendez-Diaz, 129 S.Ct. at 2539-2540.

This court has never addressed the current issue directly. The Louisiana First and Second Circuits have found that the use of the criminalist report did not violate the Confrontation Clause, specifically distinguishing the affidavit at issue in Melendez-Diaz from the system used in Louisiana. State v. Beauchamp, 10-0451 (La.App. 1 Cir. 9/10/10), 49 So.3d 5; State v. Dukes, 46,029 (La.App. 2 Cir. 1/26/11), 57 So.3d 489, 2011 WL 228645.

The Dukes court summarized the reasoning used in Beauchamp as follows:

In State v. Beauchamp, supra, the Louisiana first circuit court of appeal distinguished the Massachusetts law permitting the use of “certificates of analysis” as proof, which was struck down in Melendez-Diaz from Louisiana’s notice-and-demand statutory scheme for use of an analyst’s report as evidence. The court noted that Melendez-Diaz, itself recognized that other states’ “notice-and-demand statutes” did not shift the burden by converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause. Because “[t]he defendant always has the burden of raising his Confrontation Clause objection,” the court reasoned “notice-and-demand statutes simply govern the time within which he must do so.” State v. Beauchamp, 49 So.3d at 8, citing Melendez-Diaz, — U.S. at —, 129 S.Ct. at 2541.
In addressing the “notice-and-demand” scheme set forth in La. R.S. 15:499 et seq., the Beauchamp court concluded that the admission of a scientific analysis report in accordance therewith “did not violate MelendezDiaz.... ” as the scheme “merely requires a defendant to exercise his Confrontation rights prior to trial.” State v. Beauchamp, 49 So.3d at 9-10.
The Beauchamp court also noted that in a pre-Melendez-Diaz opinion, the Louisiana Supreme Court had concluded that Louisiana’s “notice-and-demand” statutes were constitutional under Crawford v. Washington, supra. See State v. Cunningham, 2004-2200 (La.6/13/05), 903 So.2d 1110. In rejecting the challenge to the scheme’s constitutionality, the Louisiana Supreme Court noted that to defeat the use of the certificate without the analyst, the defendant need only request a subpoena of the individual five days prior to trial. The court held this requirement did not “infringe upon defendant’s constitutional right to confrontation.” State v. Cunningham, 903 So.2d at 1121.

Dukes, pp. 10-11, 57 So.3d at 494-95.

Applying Beauchamp, the Dukes court found that Melendez-Diaz was not controlling in cases where the state had followed the proper procedure under La. R.S. 15:499, et seq., and that the admission of the certificate of analysis into evidence at trial did not violate a defendant’s rights under the Confrontation Clause by noting:

Unlike the scenario in Melendez-Diaz, however, the state’s duty under the Confrontation Clause is not converted into the defendant’s privilege under the Compulsory Process Clause. Under the Massachusetts law, the state’s use of the certificate of analysis was not dependent on the defendant’s failure to object; the state apparently could use the certificate as prima facie proof of its contents regardless of whether the defendant subpoenaed the analyst. In Louisiana, the mere request for a subpoena by the defendant five days prior to trial rendered the certificate useless to the state as prima facie proof of its contents or of proper custody. La. R.S. 15:501(B)(1). Accordingly, an unavailable or uncooperative analyst becomes the state’s problem in meeting its burden of proof and not the defendant’s in exercising his right to confrontation.

Dukes, p. 13, 57 So.3d at 495-96.

In State v. Cunningham, 04-2200 (La.6/13/05), 903 So.2d 1110, the Court found La. R.S. 15:499, et seq., did not “infringe” upon an accused’s constitutional right to confront witnesses against him. Id., p. 17, 903 So.2d at 1112. The Court opined that the accused “merely has to subpoena the person who performed the | ^examination or analysis of the evidence. If the defendant requests the subpoena at least five days prior to trial or if the person subpoenaed responds to the subpoena, the provisions of the statute provide that the certificate shall not be prima facie proof of its contents or proper custody.” Id. The Court analogized La. R.S. 15:499, et seq., to a case where the state offers hearsay evidence to which the defendant fails to contemporaneously object; in such a case, the hearsay is allowed into evidence. The holding was premised on the theory that a state may establish reasonable procedures to be followed in order to exercise a right guaranteed by the constitution, citing Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953).

In the case at bar, the state complied with the statutory requirements of La. R.S. 15:499, et seq., to-wit, a certified copy of the lab report was included with the notice of intent as required by law and the defense did not timely request that the criminalist be subpoenaed.

We are constrained to follow the Melendez-Diaz rationale rather than the Louisiana Supreme Court’s decision in Cunningham because the United States Supreme Court has now specifically held that the statutory procedure for introduction of the criminalist’s report over the objection of the defendant in lieu of the criminalist’s live testimony violates the Confrontation Clause of the United States Constitution. Further, in light of Melendez-Diaz, and unlike our colleagues in the First and Second Circuits, we find that the statutory scheme in effect at the time of Simmons’ trial violated Simmons’ rights under Melendez-Diaz. That is, our reading of Melendez-Diaz is that the Confrontation Clause does not allow the burden to be shifted to the defendant to call as a witness the criminalist, a witness obviously against him in view of the analysis report of the alleged illegal substance. The burden always remained with the state to call the criminalist as a 11Rlive-witness. Thus, we find that the admission of the certificate of analysis into evidence at trial did violate Simmons’ rights under the Confrontation Clause. This assignment of error has merit.

ASSIGNMENT OF ERROR NUMBER 2.

In his second assignments of error, Simmons asserts that the district court erred by denying his motion for new trial which is allegedly based upon newly discovered evidence. In light of our holding that Simmons’ first assignment of error has merit, thus requiring a reversal of his conviction, we pretermit a discussion of his second assignments.

CONCLUSION

For the foregoing reasons, we reverse the conviction and sentence of Dion P. Simmons and remand this matter to the trial court for further proceedings.

REVERSED; REMANDED.

      . The Louisiana Supreme Court granted the defendant’s writ in part and denied it in part. The writ was granted insofar as the district court restricted parole eligibility on the defendant’s entire sentence. State v. Davis, 07-1208 (La. 12/14/07), 970 So.2d 982.

      . For purposes of this assignment of error, we presume that the criminalist's report was properly admitted into evidence. However, as will be observed from our discussion of Simmons’ first assignment of error below, the criminalist's report was not properly admitted which results in a reversal of his conviction.

      . As amended by 2010 La. Acts 693 (effective 15 August 2010), La. R.S. 15:499 now provides:
      A. All criminalistics laboratories established by laws of this state or by laws of the United States, and all coroners, forensic pathologists, and other persons, partnerships, corporations, and other legal entities practicing in fields of knowledge and expertise in the gathering, examination, and analysis of evidence by scientific means are authorized to make proof of examination and analysis of physical evidence by the certificate of the person in charge of the facility in which such examination and analysis is made. Such certificate shall list:
      (1) The date and time such evidence was delivered to such facility.
      (2) The name of the person making such delivery, and the person receiving same.
      (3) A brief description of the evidence.
      (4) The type of examination or analysis requested.
      (5) The name of the person making the examination or analysis.
      (6) The date or dates of the examination or analysis.
      (7) The results of the examination or analysis.
      B.The certificate shall give the name and address of the facility in which the examination or analysis was made, and shall be signed by the person making the examination or analysis.
      C. Criminalistics laboratories are authorized to utilize electronic signatures in order to comply with the provisions of Subsection B of this Section once final review of the certificate of analysis is completed. For purposes of this Section, "electronic signature" shall mean an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
      D. All organizations, entities, or persons issuing certificates as set forth in this Section shall retain and provide upon written request all of the following:
      (1) A description of each analyst’s educational background, training, and experience.
      (2) A listing of all accreditations held by the laboratory or individual.

      . Both cases involved La. R.S. 15:499, et seq., prior to the amendments.

      . Although the issue is not presently before us, one could reasonably argue that the legislature's enactment 2010 La. Acts 683 that amended La. R.S. 15:501 was done to cure perceived or potential problems created by Menendez-Diaz to the former law.