author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. John F. COOPER, Appellant.
    No. 45,568-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 8, 2010.
    Rehearing Denied Jan. 20, 2011.

      Peggy J. Sullivan, for Appellant.
    Charles R. Scott, II, District Attorney, Tommy J. Johnson, Geya D. Williams Prudhomme, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   WILLIAMS, J.

| ,The defendant, John F. Cooper, was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. Subsequently, the defendant entered a plea of guilty as charged, reserving the right to seek appellate review of the trial court’s denial of his motion to suppress the evidence, pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced to serve 32 years of imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant appeals the denial of his motion. For the following reasons, we affirm.

FACTS

On the morning of August 3, 2004, Shreveport Police Corporal Raymond Bor-delon responded to an armed robbery reported by an employee of American Cash Depot, located on Youree Drive. According to Sonja Hoppaugh, the robbery victim, she was sitting at her desk when she heard a noise and then a tall black man, wearing a green sweatshirt with a white | ?cloth over his face, pointed a sawed-off shotgun at her and demanded money. The victim handed him approximately $2,300 in cash and a number of checks. The robber took the employee’s keys, purse, and driver’s license and threatened to come back for her if she called the police. Then, the robber told his accomplice to get the victim’s car and they drove away in her green Chevy Lumina.

Shreveport Police Officer Jason Person was on patrol that morning and received a radio dispatch generally describing the individuals who had committed the armed robbery and the victim’s car. About an hour later, Officer Person received a second radio dispatch stating that the victim’s car had been abandoned on Lexington Avenue. While canvassing the area near the location where the victim’s Lumina was found, Officer Person noticed several black men getting into a small vehicle. Officer Person made eye contact with one of the men, who looked startled to see the police. At that time, Officer Person believed they could be the suspects from the armed robbery. After they entered the vehicle and drove away, Officer Person initiated a traffic stop for a broken taillight. Immediately, Officer Person observed that the driver and passengers were very nervous. After some additional questioning, observation of the men’s demeanor, and a tentative identification by the victim, all the occupants in the car were arrested, | including the defendant, his brother, Travis Cooper, Cornell Hudson and the driver, Chris Starks.

Subsequently, the defendant was charged with armed robbery. Prior to trial, defendant filed a pro se motion to suppress evidence in September 2005, and his attorney filed a motion to suppress in January 2006. Then, defendant filed a pro se “Motion to Regress the Motion to Suppress” in March 2006. These motions variously alleged that the police officer did not have reasonable grounds to stop and search the vehicle, that the defendant was unlawfully detained and searched, and that any evidence seized was tainted and inadmissible. After a hearing in August 2006, the court denied defendant’s pro se motions. In January 2007, the trial court denied the motion to suppress filed by defense counsel. Defendant applied for supervisory review of the trial court’s January 2007 denial of his motion to suppress. This court denied the writ, finding no error in the court’s denial of the motion. State v. Cooper, 42,857 (La.App.2d Cir.8/23/07).

In August 2007, at the hearing on defendant’s motion to suppress identification, Officer Person testified that on the morning of the robbery, he received a radio dispatch that gave physical descriptions of the suspects and stated that the victim’s vehicle had been abandoned. Officer Person drove to the abandoned vehicle’s location, where he observed a green latex glove on 14the ground near the victim’s car. Upon arrival of other officers, Officer Person left the scene and drove down the street. Approximately 1,000 feet from the victim’s vehicle, he noticed several large men walking toward a brown Chevy Metro parked on the street. Officer Person testified that his attention was drawn by the sight of these large men getting into a small car and by the startled look of one of the men when he saw the officer.

When the vehicle drove away, Officer Person noticed that a taillight was out. At that time, he turned on his overhead lights and stopped the vehicle for an equipment violation. Officer Person stated that when asked for his license, the driver gave a long explanation for not having his license at the time. Officer Person testified that in his experience, the driver’s answer to a simple question differed from the type normally given by a person in a traffic stop and raised his suspicion. Once another officer arrived to assist with the traffic stop, Person asked all the individuals to step out of the car because “they were piled up in that car and I couldn’t see what was going on inside the car, I was kind of concerned.” Officer Person asked the men where they had come from and they gave vague, inconsistent answers. He noticed that the passengers displayed a type of nervousness that, from his experience, was consistent with someone who had just committed a crime.

1 r,Officer Person testified that he observed some of the men’s pockets were bulging and he conducted a pat down search for weapons for officer safety. When asked, Travis Cooper said the bulge in his pocket was approximately $40 in cash. Officer Person stated that because the bulge was too large for that sum, he asked to remove the object and Travis Cooper gave his verbal consent. Contrary to Cooper’s statement, the amount of money removed was at least two hundred dollars. Officer Person testified that as he removed the money from Cooper’s pocket, he also observed a green latex glove similar to the glove seen near the robbery victim’s abandoned car. He stated that he also recovered money from the defendant, but could not remember the amount. Officer Person then advised the detective assigned to the armed robbery about the traffic stop findings.

Shreveport Police Corporal Michael Crisp testified that he assisted Officer Person at the traffic stop. Corp. Crisp stated that he handcuffed all four occupants of the vehicle and advised them of their Miranda rights. He testified that although his usual procedure when placing handcuffs on a person was to immediately advise him of his Miranda rights, he could not specifically recall when he advised the defendant of his rights in this case.

Corporal Raymond Bordelon testified that when he arrived at the scene of the armed robbery, the victim stated that after she had opened the | r,office safe, she heard a loud crash and then a black man, wearing a green sweatshirt with a white cloth over his face, pointed a sawed-off shotgun at her and demanded money. The robber took cash and a number of checks from her, then he and an accomplice fled the scene in her car. After taking the victim’s statement, Bordelon was ordered to drive her to the location of the traffic stop, 64th St. and Southern Avenue, to try to identify the detained suspects. He testified that the victim remained in his car to view the suspects. When the first suspect stepped out of the police car, the victim stated that he might be the robber, but she was not sure. However, the victim then said she recognized the pants the suspect was wearing as the pants worn by the robber.

Shreveport Police Detective Michael McConnell investigated the armed robbery and testified that he talked with the victim at the scene of the traffic stop and that she had made a “tentative identification” of the suspects, meaning that the men matched the description of the robbers as far as height, weight, stature, and clothing. McConnell stated that prior to having the men taken to the detectives’ office, he considered the totality of the circumstances, including the facts that the suspects were seen in close proximity to the location where the victim’s vehicle was found, they 17matched the general description of the robbers and each was in possession of a large amount of cash.

At the conclusion of the hearing, there was a joint stipulation that the video and audio tapes recorded by the police equipment during the traffic stop were admitted into evidence. After considering the testimony adduced at the hearing and reviewing the police tapes of the traffic stop, the trial court issued a written opinion finding that there was reasonable suspicion to stop the vehicle because of the traffic violation and because the individuals fit the description of the suspected robbers, and that the officer did not act improperly in asking general questions prior to advising the defendant of his Miranda rights. The court also determined that the police reasonably detained the suspects after developing additional suspicion of criminal activity based upon the suspects’ inconsistent answers to questions, their nervousness and the recovery of a relatively large amount of cash from the suspects after a patdown search for officer safety. Accordingly, the trial court denied the defendant’s motion to suppress and concluded that all evidence seized by the state could be used against the defendant at trial.

Subsequently, the defendant entered a Crosby plea of guilty to armed robbery, reserving his right to seek appellate review of the denial of his motion to suppress. The trial court sentenced defendant to serve 32 years at [shard labor without benefit of parole, probation or suspension of sentence. This appeal followed.

DISCUSSION

A. Initial Stop

The defendant contends the trial court erred in denying his motion to suppress. Defendant argues that the traffic stop was not legitimate because Officer Person made the stop to investigate an armed robbery and not to cite the driver for a traffic violation.

The decision to stop a vehicle is reasonable where the police officer has probable cause to believe a traffic violation has occurred. Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Barnard, 37,032 (La.App.2d Cir.5/14/03), 847 So.2d 99. A traffic stop could be made upon satisfying the lesser burden of reasonable suspicion of the offense. U.S. v. Santiago, 310 F.3d 336 (5th Cir.2002). A violation of a traffic regulation provides reasonable suspicion to stop a vehicle. State v. Davis, 09-452 (La.App. 5th Cir.1/26/10), 31 So.3d 513. The subjective intent of the officer making the traffic stop is irrelevant, as long as he observed the traffic violation. Whren, supra.

Furthermore, a law enforcement officer may stop a person reasonably suspected of committing criminal activity and demand his name, address, and explanation of his actions. LSA-C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Flight, nervousness or a startled look may be a factor under LSA-C.Cr.P. art. 215.1 in finding a reasonable cause to stop a person. State v. Furlow, 34,339 (La.App.2d Cir.2/28/01), 780 So.2d 602, writ denied, 01-0889 (La.3/15/02), 811 So.2d 895.

In this case, Officer Person testified that he observed that defendant and the other suspects were passengers in a vehicle with a taillight that did not work, a violation of the vehicle equipment law. The videotape from the police car dash camera supported Officer Person’s testimony. Therefore, despite Officer Person’s testimony that when he saw the men, he thought to himself that they may be suspects in the robbery, he possessed the requisite probable cause to initiate the stop for a vehicle equipment violation.

In addition, Officer Person was also within his authority to stop the vehicle based upon reasonable suspicion that the individuals had just committed an armed robbery. Officer Person noted that the individuals fit the general description of the robbery suspects, the individuals were walking in the vicinity of the abandoned getaway vehicle, and one of the suspects looked startled when he made eye contact with Officer Person. Thus, the trial court was not clearly wrong in finding that the traffic stop by Officer Person was valid. This argument is without merit.

jjjB. Grounds for Removal from Vehicle and Search

The defendant contends the patdown search was not lawful. Defendant argues that because the officer’s decision to remove defendant from the vehicle and conduct a patdown search did not stem from a concern for officer safety, the money found should be suppressed as fruit of the poisonous tree.

Unreasonable searches and seizures are prohibited by the Fourth Amendment of the United States Constitution and Article 1, § 15 of the Louisiana Constitution of 1974. A warrantless search is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Tatum, 466 So.2d 29 (La.1985); State v. Ledford, 40,318 (La.App.2d Cir.10/28/05), 914 So.2d 1168. One of the exceptions to the warrant requirement is a search conducted pursuant to consent. Oral consent is valid. State v. Hudnall, 39,723 (La.App.2d Cir.5/11/05), 903 So.2d 605.

The United States Supreme Court has held that during routine traffic stops, officer safety concerns justify the minimal intrusion of ordering a driver and passengers out of a vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). The Louisiana Supreme Court has also adopted this principle in order to protect both the officer and occupants of the |nvehicle. State v. Benoit, 01-2712 (La.5/14/02), 817 So.2d 11; State v. Landry, 588 So.2d 345 (La.1991).

Additionally, an officer conducting a traffic stop may perform a patdown search of the driver and passengers upon reasonable suspicion that they may be armed and dangerous. State v. Brown, 09-209 (La.App. 5th Cir.12/29/09), 30 So.3d 907, citing Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). An officer does not need to show that the detained individual was probably armed and dangerous; rather, an officer need only demonstrate a substantial possibility of danger. Terry, supra.

In this case, Officer Person testified that he asked the passengers to exit the vehicle out of a concern that he could not see what they were doing inside the car. Once he started talking to the passengers, he noticed that they were very nervous and their stories were inconsistent. He also noticed large bulging pockets, and he testified that he “wanted to make sure there were no weapons, so I started patting people down.” The record shows that Officer Person was reasonable in believing that he could have been in danger, because the car’s occupants outnumbered the officers, they seemed nervous and they were suspected of being involved in an armed robbery. Therefore, the request for the men to exit the vehicle and the subsequent patdown for weapons was based upon reasonable, particularized grounds.

| ^Furthermore, the patdown which resulted in the discovery of large sums of money was valid. When Officer Person felt the bulge in Travis Cooper’s pocket and asked if he could remove the object, Cooper consented. As to the other individuals, Officer Person did not testify specifically as to how he retrieved the money. However, Officer Person can be heard on the police audiotapes asking the men how much money they had and whether he could see the money. By complying with the officer’s request, defendant consented to showing him the cash; therefore, the search was valid. This argument lacks merit.

C. Reasonableness of Roadside Detention

The defendant contends the trial court erred in finding that the detention was reasonable. Defendant argues that the stop was unlawful because it lasted far longer than necessary to cite the driver for a broken taillight.

In conducting a traffic stop, an officer may detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, when there is reasonable suspicion of additional criminal activity. LSA-C.Cr.P. art. 215.1(D). Reasonable cause for an investigatory stop is something less than probable cause, but the officer must have “articulable” ^knowledge of particular facts which, in conjunction with reasonable inferences drawn therefrom, provide reasonable grounds to suspect the detainee of criminal activity. State v. Flowers, 441 So.2d 707 (La.1983), cert. denied, 466 U.S. 945, 104 S.Ct. 1931, 80 L.Ed.2d 476 (1984). To assess the validity of an investigatory stop, the critical inquiry focuses on the officer’s knowledge at the time of the stop. State v. Williams, 421 So.2d 874 (La.1982). Flight, nervousness or a startled look may be a factor under. LSA-C.Cr.P. art. 215.1 in finding reasonable cause to stop a person. State v. Furlow, supra.

In this case, Officer Person had reasonable suspicion to detain the defendant and other occupants for a longer time period than needed to issue a citation. First, Officer Person had noticed the men, who fit the general description of the robbers, walking from an alley in close proximity to the location of the abandoned getaway car and he observed a startled expression on one man’s face in seeing the officer. Secondly, upon stopping the vehicle and questioning the occupants, Officer Person noticed that each of the men was very nervous, a type of nervousness that indicated to him that the individuals may have been involved in criminal activity, and some of their answers were inconsistent with each other. Time was also needed to conduct the patdown searches for the safety of the officers, who were outnumbered by the physically larger occupants of the automobile.

I uBased upon the totality of the circumstances, the trial court did not err in finding that Officer Person had reasonable suspicion to suspect the men of criminal activity, which warranted the officer detaining the men longer. Additionally, the police videotapes show that the entire incident, from the initial stop to the suspects’ arrival at the police station, lasted no longer than 45 minutes. This argument lacks merit.

D. Need to Advise of Miranda Rights

The defendant contends he should have been advised of his Miranda rights once he was not free to leave. Defendant argues that any statements made after the point at which he was not free to leave and before he was given a Miranda warning should be suppressed.

A Miranda warning must be given prior to interrogation after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. A warning is not required before there is general questioning of citizens in the fact-finding process, but only when the investigation ceases to be exploratory in nature. State v. Ned, 326 So.2d 477 (La.1976), citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

During the traffic stop, Officer Person began asking the driver some basic questions, such as where he had come from and where he was going. The driver said that he was coming from his house on Henderson Street, but | iBthen said that he had just left from “around the corner” where he had picked up the other three men. The driver then stated that he was coming from “their” house and that he had picked up the other three men because they asked for a ride. The officer also asked the passengers general questions, as he was entitled to do under Article 215.1. The officer was not required to advise defendant of his Miranda rights before asking such questions. Moreover, the defendant has not identified any statements that he made in the period after he was not free to leave and before he was advised of his Miranda rights that should be suppressed. This argument lacks merit.

E. Probable Cause

The defendant contends there was no probable cause to arrest him at the time Corporal Crisp arrived on the scene. The defendant argues that when he was handcuffed he was then under arrest, which was illegal because the police did not have a warrant or probable cause.

A police officer may lawfully arrest a person without a warrant when the officer has reasonable cause to believe that the person has committed an offense. LSA-C.Cr.P. art. 213. Probable cause to arrest exists when the facts and circumstances within the officer’s knowledge are sufficient to justify a man of ordinary caution to believe that the person to be arrested has violated the law. State v. Jones, 31,613 (La.App.2d Cir.4/1/99), 733 So.2d 127, writ denied, 99-1185 (La.10/1/99), 748 So.2d 434. All of the information possessed by the officer is to be considered in determining whether probable cause existed. State v. Buckley, 426 So.2d 103 (La.1983). The quantity and quality of the evidence needed for probable cause are measured by lesser standards than those for conviction at trial. Buckley, supra; State v. Thigpen, 42,320 (La.App.2d Cir.8/15/07), 963 So.2d 478.

In the present case, Corporal Crisp testified that he went to assist Officer Person with a traffic stop involving possible armed robbery suspects who were seen in close proximity to the location where the victim’s stolen vehicle had been found. Crisp testified that based upon his normal protocol, with that information and where there were four suspects and two officers, he would have discretion to place the men in handcuffs for the safety of both the officers and the suspects and because of a possible pending arrest.

Detective McConnell testified that he made the determination to take the suspects to the police station for further questioning. McConnell stated that at the time of the stop, defendant was in possession of $610 in cash and the two other passengers, Travis Cooper and Cornell Hudson, were each carrying $420 in cash.

Although carrying such an amount of cash can be legitimate, the combination of facts known to the police officer justified a suspicion that the [17money was taken in the armed robbery. Officer Person was aware from speaking with the suspects that neither the defendant nor the other two passengers were employed, and yet defendant was carrying more than $600 in his pocket. In addition, the officer also knew that defendant fit the general description of the robber, that defendant was present in close proximity to the victim’s abandoned vehicle, that more than one perpetrator had committed the armed robbery and that defendant’s companion was in possession of the same type of green glove found near the robbers’ getaway car. Thus, the cumulative information available to the officers created probable cause to arrest the defendant for armed robbery. Defendant’s argument lacks merit.

F. Identification Procedure

The defendant contends the trial court should have suppressed the victim’s out-of-court identification. Defendant argues that the show-up identification was unduly suggestive and created a likelihood of mis-identification because of the victim’s lack of opportunity to view the offender, her vague description of the robber, and the time lapse of one hour between the robbery and the show-up identification.

The defendant bears the burden of proof on a motion to suppress an out-of-court identification. In order to suppress an identification, the | ^defendant must prove: (1) that the identification was suggestive, and (2) that there was a likelihood of misidentification in the identification procedure. An identification procedure is unduly suggestive if a witness’s attention is focused on the defendant. State v. Hawkins, 572 So.2d 108 (La.App. 1st Cir.1990). The factors which courts must examine to determine, from the totality of the circumstances, whether the suggestiveness of a lineup presents a substantial likelihood of misidentification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (8) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness; and (5) the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). A trial court’s determination of the admissibility of an identification should be accorded great weight and will not be disturbed on appeal unless the evidence reveals an abuse of discretion. State v. Hawkins, supra.

In this case, the victim would not have been able to identify the robber’s face, which was covered by a white cloth. However, she provided a description of the offender’s height, build, and clothing. Corporal Bordelon testified that he brought the victim to the scene of the traffic stop for a show-up identification. He indicated that the suspects were presented at a distance |1flof between two car lengths and 150 feet away from where the victim was sitting inside his car. When the first man stepped out of the police car, the victim stated that she recognized his pants as those worn by the robber; however, she was not certain that he was the gunman.

The record shows that the likelihood of misidentification was slim considering the i'obber with the shotgun stood close enough to the victim to grab her and force her to the floor. Contrary to the defendant’s contention, the circumstances of the crime gave the victim a good opportunity to view the robber and identify his clothing. Furthermore, the fact that these men were apprehended at a location in close proximity to the victim’s stolen vehicle and a relatively short time after the robbery was committed lessened the chance of mis-identification. Therefore, the trial court did not abuse its discretion in denying the motion to suppress the identification. This argument is without merit.

G. Confession

The defendant contends his confession was not free and voluntary. Defendant argues that even though no testimony was produced as to the substance of the confession, the trial court likely considered the allegation that defendant had confessed in ruling on the motion to suppress.

12nIn the context of rulings on pretrial motions, Louisiana courts have held that when a defendant proceeds to trial without raising an issue which was the subject of a pending pretrial motion, he waives his right to have the motion heard or ruled upon. State v. Fletcher, 02-707 (La.App. 5th Cir.12/30/02), 836 So.2d 557, writ denied, 03-0409 (La.10/10/03), 855 So.2d 334; State v. Washington, 98-69 (La.App. 5th Cir.1/26/99), 727 So.2d 673.

In his motion to suppress filed in January 2006, defendant alleged that he was “harassed for approximately ten hours” before admitting his involvement in the armed robbery. However, at the hearing on the motion in January 2007, neither the defendant nor his attorney argued this issue. After hearing argument, the trial court asked whether there was anything else in the motion, besides the length of the stop, that the court needed to consider, and defense counsel stated, “No, that covers my motion.”

During the hearing on August 1, 2007, the defendant’s attorney again chose not to make an argument as to the harassment allegation. In addition, on September 17, 2007, the court allowed defense counsel to make further arguments if they desired, and defendant’s attorney stated, “Your honor, on behalf of Mr. Cooper, I don’t have anything else to add other than what I — my argument on August 1st.”

121 The record shows that defendant and his counsel were given numerous opportunities to address the harassment which allegedly produced the defendant’s confession, and they declined to raise the issue. Thus, the defendant has waived his right to obtain a ruling on the motion to suppress his confession on the grounds of coercion by physical mistreatment.

After reviewing the entire record, we conclude that the district court did not err in denying the defendant’s motion to suppress evidence. The assignment of error lacks merit.

We have reviewed the record for error patent and found none.

CONCLUSION

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

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, MOORE and LOLLEY, JJ.

Rehearing denied.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    PARISH OF ST. CHARLES v. R.H. CREAGER, INC., and David B. McDonald Corporation.
    No. 10-CA-180.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 14, 2010.

      Don P. Landry, Attorney at Law, Hahn-ville, Louisiana, for Plaintiff/Appellee.

      Gregory A. Miller, Attorney at Law, Norco, Louisiana, for Defendants/Appellants.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

| ¡>The issue presented for our review in this appeal is whether a writ of mandamus can be issued to compel St. Charles Parish, plaintiff/appellee, to pay a judgment deriving from an expropriation of private property for levee and drainage purposes.

In July of 1990, St. Charles Parish (the Parish) filed a petition for expropriation of land that constituted portions owned by defendants/appellants, R.H. Creager, Inc. (Creager) and Dianne and David McDonald (McDonalds), for drainage improvement purposes. The following procedural history was set forth in a prior decision of this Court.

In September of 1990, the parties entered into a stipulation that confirmed ownership of the property and the immediate need for the expropriation. In conjunction with that stipulation, the parties entered into a consent judgment that was signed on September 28, 1990. The judgment granted full ownership of the property to St. Charles Parish subject to a reservation of mineral rights in accordance with LSA-R.S. 31:149. The consent judgment also reserved the defendants’ rights to |3compensation, attorney’s fees, costs, and legal interest resulting from the expropriation.
On September 5, 1991, Creager and the McDonalds filed an answer and re-conventional demand in which they asserted that the expropriation of them land devalued the remainder of then-property by making it less desirable for commercial or industrial purposes. Creager and the McDonalds asserted that Parcel A-2 is located behind Dianne Place Subdivision and is bounded on the south by the Illinois Central Railroad, on the north by Louisiana and Arkansas Railroad, (now Kansas City Southern Railroad), on the east by land owned by a third party, and on the west by property owned by St. Charles Parish. The only legal access to the property before the expropriation was at its southerly boundary through a private crossing and servitude of access across the Illinois Central Gulf Railroad from the end of Janet Drive. Since the portion of the land expropriated by the parish included this crossing, the pleading sought damages for the expropriated land as well as severance damages for diminishment of value of surrounding land.
The parties conducted a lengthy discovery and, on February 22, 2005, Creager and the McDonalds filed a motion for summary judgment seeking $477,360 in severance damages based on the petition filed. The matter was heard on May 26, 2005. On September 13, 2005, the court rendered a judgment that declared that the judgment of September 28, 1990 constituted a taking by expropriation and that the judgment did not provide Creager and the McDonalds with a servitude or right of passage over the property. The judgment also declared that Creager and the McDonalds do not have legal access to the remainder of Parcel A-2 as a result of the taking by expropriation. The issue of damages was referred to the merits of the trial.
On November 30, 2006, the parties entered into a joint stipulation of fact. The stipulation by the parties included the following:
1.) 16,410.18 square feet of Parcel A-2 was expropriated.
2.) The remaining portion of Parcel A-2 contains 37.9223 acres.
3.) Experts for both sides agree that the fair market value of Parcel A-2 immediately prior to the taking was $12,000.00 per acre.
4.) The amount of compensation due to defendants for the 16,410.18 square feet expropriated is $4,520.00.
5.) As a result of the taking, the defendants do not currently have legal access from the remainder of Parcel A-2 to a public road.
146.) Defendants have a right to seek legal access to the remainder of Parcel A-2.
The parties also made a joint offer of exhibits which included the comprehensive appraisals of experts for both sides and maps of the area.
After a trial on the merits, the trial court rendered judgment in favor of Creager and the McDonalds for $56,883.45. All parties have appealed that judgment.

On appeal, we reversed and vacated the judgment of damages awarded and ordered the trial court to enter a judgment awarding Creager and the McDonalds $11,500 per acre for the remaining 37.9223 acres in severance damages for the remaining property. In accordance with that opinion and order, the trial court entered an order on November 20, 2008 in favor of Creager and the McDonalds in the amount of $436,106.45, together with legal interest thereon from the date of the judgment of taking on September 28, 1990, until paid, together with all costs of the proceedings. On that same date, the trial court signed a consent judgment in favor of Creager and the McDonalds awarding $209,839.92 in attorney’s fees, $6,669.59 in costs, and $10,350 in expert witness fees.

The Parish failed to pay the judgment and, on May 5, 2009, Creager and the McDonalds filed a petition seeking a writ of mandamus compelling the “Honorable V.J. St. Pierre, Jr., Parish President of St. Charles Parish and others to cause payment of the amount awarded in the final, definitive judgment.” The Parish answered and objected to the petition for a writ of mandamus, arguing a writ of mandamus is not permissible in this matter.

The trial court agreed with the objection of the Parish and rendered a judgment denying the mandamus with written reasons.

\-JLAW AND ANALYSIS

The parties do not contest the validity of the judgment. What is at issue is the manner in which the plaintiffs can enforce the judgment.

In general, the legislative intent as to the only manner of payment of judgments against the State is clear:

Any judgment rendered in any suit filed against the state, a state agency, or a political subdivision, or any compromise reached in favor of the plaintiff or plaintiffs in any such suit shall be exigi-ble, payable, and paid only out of funds appropriated for that purpose by the legislature, if the suit was filed against the state or a state agency, or out of funds appropriated for that purpose by the named political subdivision, if the suit was filed against a political subdivision.

There has been no appropriation of funds by the legislature for payment of this judgment. It is well settled that Louisiana courts may only issue a mandamus in an instance where the actions sought to be performed by the legislature are purely ministerial in nature. A purely ministerial duty is one in which nothing is left to discretion. The act of appropriation of funds is discretionary and specifically granted to the legislature by the constitution. Louisiana courts are without authority to issue a writ of mandamus directing the legislature to appropriate funds.

Creager and the McDonalds acknowledge the above law. However, they point out that this matter does not involve a judgment resulting from a tort or contract suit in an action against a state agency. In fact, this is a taking of land in an expropriation action taken by a state agency, rather than against it as the above law encompasses. Creager and the Mc-Donalds assert that, because this case involves the just payment for land taken pursuant to the power of expropriation, a mandamus is the proper remedy for receiving fair and just compensation when the | (¡Parish will not pay the judgment. As support, they cite the Louisiana Constitution and the Home Rule Charter of St. Charles Parish, both of which give the Parish the right of eminent domain and compels the council to make fair and just compensation for any properties acquired in the exercise of these powers. They reason that the taking of land under the eminent domain power establishes a constitutional entitlement to just compensation for which a mandamus can issue.

The Parish counters that any judgment rendered against it can be satisfied by no procedure other than appropriation of funds by the legislature or political subdivision against which judgment is rendered even if the judgment comes as a result of the use of the power of eminent domain.

The trial court concluded that the arguments presented by Creager and the Mc-Donalds relating to the power of the court to issue mandamus in expropriation cases were unconvincing. In its Reasons for Judgment the trial court stated:

The argument is that certain provisions of the state Constitution, state laws, and language in the Home Rule Charter of St. Charles Parish make payment of “fair and just compensation” a ministerial duty. Creager bases this assertion on language in the Louisiana Constitution that states that in expropriation actions “the owner shall be compensated to the full extent of his loss.” La. Const. Art. (B)(1). Furthermore, Creager asserts that the St. Charles Parish Home Rule Charter specifically mandates a writ of mandamus in the case in Article III, Section A, 7d which states “The council shall make fair and just compensation for any properties in the exercise of its powers, duties, or functions.” Essentially Creager’s position is that the word “shall” is clear and unambiguous in making payment by the Parish mandatory.
However, the inclusion of the word “shall” does not seem to create the “ministerial duty” situation that is contemplated by the jurisprudence since it is clear that a writ of mandamus cannot be used to compel a public entity to appropriate public funds to pay a judgment rendered against it....
Although Creager asserts that a ministerial duty arises from the word “shall” which would permit this court to issue a writ of mandamus, the law is clear that this ministerial duty arises when funds have already been appropriated by the legislature of there is no need 17to appropriate funds. This court cannot compel St. Charles to appropriate public funds to pay a judgment rendered against it.

(Emphasis as found in original.)

Creager and the McDonalds also argue that this case involves the expropriation of land for levee and drainage purposes which creates an exception to the prohibition of the use of mandamus to force the Parish to pay a judgment. Creager and the McDonalds cite La. Const, art. VI, § 42(A), which compels levee districts to levy taxes sufficient to pay for lands used or destroyed for levees if the district has no other funds or resources from which the payment can be made, and La. R.S. 88:301(C)(l)(a), which allows parishes outside of Orleans to expropriate land outside of regularly organized and acting levee districts, for the construction of drainage canals or drainage projects.

Creager and the McDonalds reason that, by willingly subjecting itself to the provisions of Louisiana law regarding expropriation of property for levee and drainage purposes, the Parish is bound as a defacto levee and drainage district. Creager and the McDonalds argue that by expropriation of their land for drainage purposes, the parish is bound by La. R.S. 38:390(B) which provides that a court must issue a writ of mandamus to compel payment of judgments that are not paid within sixty days.

The Parish asserts the above law and exception to the prohibition of mandamus does not apply to all entities expropriating land to build levees, but only to levee districts and levee and drainage districts. The Parish emphatically denies it is a de facto levee district.

The trial court analyzed the law and arguments and concluded that the levee constructed in the instant case is not the type of levee project to which the code and constitution refer. The trial court stated:

IsSimply put, St. Charles Parish is neither a levee board nor a levee district. St. Charles Parish contends that La. R.S. 38:513, which deals with levee districts that have actually merged with a parish, provides appropriate guidance. The statute gives a parish all of the powers of the levee district, but allows it to retain the superior police powers and immunities that it already possesses. La. R.S. 38:513(B) states that only certain provisions of this chapter applies [sic] to levee districts merged with the parish; La. R.S. 38:390 is not included in this list. The defendants urge that if the legislature does not allow mandamus to be utilized against an actual levee district merged with a parish, then it follows that 38:390 does not apply to a parish which simply constructs a levee.

(Footnote omitted.)

While we agree with the trial court that the actions taken by the Parish do not make it a “de facto ” levee district subject to the provisions of La. R.S. 38:513(B) and the mandamus power consistent with that law, we do believe the legislative intent of those statutes can be instructive in the matter before us.

When a levee district expropriates land, Louisiana law provides:

If the amount finally awarded exceeds the amount so deposited, the court shall enter judgment against the levee district or levee and drainage district and in favor of the persons entitled thereto for the amount of the deficiency. The final judgment together with legal interest thereon shall be paid within sixty days after becoming final. Thereafter upon application by the owner or owners, the trial court shall issue a writ of mandamus to enforce payment.

(Emphasis supplied.) By incorporating the mandamus power to compel payment of fair and just compensation into the proceedings for expropriation of land by levee boards, we believe the legislature intended that this be an exception to the general mandamus law. Furthermore, we note that the issuance of a mandamus by the trial court in that case is actually mandated by the legislature.

We also find some of the arguments presented by Creager and the McDonalds to be compelling. We believe the trial court erred in its reasoning by failing to consider that this matter does not involve a money judgment obtained |flagainst the Parish as the result of an action brought against the Parish in a tort or contract action. We find the fact that this matter results from an action taken pursuant to the Parish’s power of eminent domain requires a different analysis and outcome.

The right to sue the State in an action based in tort or contract law depends on the waiver of immunity found in La. Const, art. XII, § 10, and begins with the basic principal that the State as a sovereign enjoys immunity from suit unless it gives its permission to be sued or waives its right under the Constitution.

By contrast, eminent domain is a right given to the State in derivation of a basic constitutional right of any citizen to private ownership of property. It is a basic constitutional principal that no person shall be deprived of life, liberty, or property, except by due process of law. “ ‘Due process’ is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. Thus, when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process.”

| m“Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.” One permissible exercise of police power is land use for drainage, flood control, and levees which benefit of the public generally.

Our constitution provides:

(4) Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question.
(5) In every expropriation or action to take property pursuant to the provisions of this Section, a party has the right to trial by jury to determine whether the compensation is just, and the owner shall be compensated to the full extent of his loss. Except as otherwise provided in this Constitution, the full extent of loss shall include, but not be limited to, the appraised value of the property and all costs of relocation, inconvenience, and any other damages actually incurred by the owner because of the expropriation.

(Emphasis supplied.)

The power of expropriation or eminent domain is the right of the State or its subdivisions to appropriate private property for public purposes, and is inherent in police power of state. Clearly, St. Charles Parish had the right under the above-cited law to expropriate land owned by Creager and the McDonalds for use in the drainage and levee improvement project. However, the same law that affords the right of the Parish to exercise its police power compels the Parish to pay just and fair compensation, and to afford constitutional due process rights to citizens affected.

|n Expropriation laws are special and exceptional in character, in derogation of common rights, and, as such, must be strictly construed. The purpose for that rule of law is obvious given that the power of expropriation is fraught with possibility of abuse and injustice. Further, it is clear that compensation is required in expropriation cases, making it imperative that the Parish afford due process rights in this instance.

The Parish asserts that the judiciary is without authority to issue a writ of mandamus in any matter to enforce a money judgment against it unless the money for payment of the judgment has been specifically allocated. The Parish contends that rule of law applies even in cases, such as the one before us, where the Parish has expropriated private land, obtained title to it, and been cast in judgment for an exact amount of money damages. In support of that position, the Parish cites State, Dep’t of Transp. & Dev. v. Sugarland Ventures, Inc., We find that case to be distinguishable and not controlling.

In Sugarland, the State, through the Department of Transportation and Development, expropriated land from Sugarland Ventures, Inc. for the extension of an airport runway. A third party intervened in the suit seeking an award from the State for compensation based on their contract with Sugarland allowing them to haul dirt from portions of the subject property. The State ultimately abandoned the airport construction property. However, a judgment of expropriation and an award of damages were made final. The interven-ers filed a suit for declaratory judgment seeking, among other things, the following relief: (1) an order that the state pay the amount awarded by the trial court in the expropriation judgment; and (2) a declaration that the project’s abandonment did not affect the state’s obligation to |12pay the amount awarded. The First Circuit ruled against the interveners, concluding that “the state may, even after rendition of a final judgment in a Title 19 expropriation proceeding, declare its intention to abandon the public purpose behind the expropriation and decline to pay the amount awarded in compensation by the court.”

The statement in Sugarland, that judgments rendered in expropriation suits can be satisfied by no other procedure than by an appropriation by the legislature, is found in a discussion of one of intervenors’ arguments that certain relevant statutes and constitutional articles are in conflict and are in violation of due process. This statement is neither a finding, nor a holding of the court. The First Circuit made that clear in the statement, “At the conclusion of the hearing below, the trial judge voiced his concern with the potential for abuse by the state in these circumstances. We share his concern. However, we are not called upon in this case to address those concerns.”

This Court is now called upon to address these issues in the matter before us on appeal.

If we follow the reasoning of the Parish, the abuse and injustice is evident. Such a ruling would result in an outcome in an expropriation case that would allow the State to use its police powers to expropriate private land in deprivation of basic constitutional rights, be cast in judgment for the fair and just compensation of that property, and simply refuse to pay the judgment. Creager and the McDonalds would have, as the trial court determined, “a right without a remedy.” We find that outcome inconsistent with constitution principles, the body of law of eminent domain as set forth in the discussion in this opinion, and a violation of basic due process rights.

|1sWe recognize that the Louisiana constitution establishes a separation of powers among the three branches of government. Thus, our supreme court has stated that when litigants seek to invoke the power of the judiciary to compel another branch of government to perform or act, we must closely and carefully examine whether the action is within the confines of our constitutional authority. However, a mandamus will lie against the State when the duty to be compelled is purely ministerial and not discretionary. We find the wording of the expropriation laws and the constitution set forth by the legislature make payment of fair and just compensation mandatory and not discretionary. Accordingly, we find the judiciary has the constitutional authority to issue a mandamus in this matter if warranted.

A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice; provided, however, that no court shall issue or cause to be issued a writ of mandamus to compel the expenditure of state funds by any state department, board or agency, or any officer, administrator or head thereof, or any officer of the state of Louisiana, in any suit or action involving the expenditure of public funds under any statute or law of this state, when the director of such department, board or agency, or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency or be in violation of the requirements placed upon the expenditure of such funds by the legislature.

We find that payment of final judgments of damages in expropriation cases is a ministerial duty and not a discretionary one. We further find that, in this case, the law provides no relief by ordinary means and such an outcome would clearly violate constitutional due process. We also note there has been no argument by the Parish that the expenditure of these funds would create a deficit in the Parish funds. Accordingly, we find a mandamus may be properly issued for payment of the judgment in this ease.

| uFor the foregoing reasons, we reverse the ruling of the trial court and remand the matter with an order to the trial court to issue a mandamus in accordance with this opinion.

REVERSED AND REMANDED WITH ORDER.

      . Parish of St. Charles v. R.H. Creager, Inc., 07-676 (La.App. 5 Cir. 2/6/08), 975 So.2d 742, 744, writ denied, 08-0777 (La.6/6/08), 983 So.2d 918.

      . Parish of St. Charles v. R.H. Creager, Inc., supra.

      . La. R.S. 13:5109(B)(2).

      . Felix v. St. Paul Fire and Marine Ins. Co., 477 So.2d 676, 682 (La.1985).

      . Hoag v. State, 04-0857 (La. 12/1/04), 889 So.2d 1019, 1024.

      . Id. at 1025.

      . La. R.S. 38:390(B).

      . Suits Against The State
      Section 10. (A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.
      (B) Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or a political subdivision. A measure authorizing suit shall waive immunity from suit and liability.
      (C) Limitations; Procedure; Judgments. Notwithstanding Paragraph (A) or (B) or any other provision of this constitution, the legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages. It shall provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. The legislature may provide that such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered.

      . La. Const, art. I, § 2.

      . Hannah v. Larche, 363 U.S. 420, 446, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960); Mary Moe, L.L.C. v. La. Bd. of Ethics, 03-2220 (La.4/14/04), 875 So.2d 22, 31.

      . La. Const, art. I, § 4(A).

      . La. Const, art. I, § 4(B)(2)(b)(iii).

      . La. Const, art. I, § 4(B)(4), (5).

      . Hobgood v. Parish of East Baton Rouge, 563 So.2d 413 (La.App. 1 Cir.1990), writ denied, 567 So.2d 105 (La.1990).

      . Exxon Mobil Pipeline Co. v. Union Pacific R.R. Co., 09-1629 (La.3/16/10), 35 So.3d 192, 197.

      . Kimble v. Bd. of Comm'rs for Grand Prairie Levee Dist., 94-1134 (La.App. 4 Cir. 1/19/95), 649 So.2d 1112, writ denied, 95-0405 and 95-0416 (La.4/7/95), 652 So.2d 1347.

      . 476 So.2d 970 (La.App. 1 Cir. 1985), writ denied, 478 So.2d 909 (La. 1985).

      . State, Dep’t of Transp. & Dev. v. Sugarland Ventures, Inc., 476 So.2d at 975.

      . Id. at 976.

      . Hoag v. State, 889 So.2d at 1024.

      . La. C.C.P. art. 3862.


author: CLARENCE E. McMANUS, Judge.

text:
    Patricia M. RICHARDSON v. LOUISIANA-1 GAMING, a Louisiana Partnership in Commendam d/b/a Boomtown Belle Casino Westbank, et al.
    No. 10-CA-262.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 14, 2010.

      Barry & Piccione, Stephen R. Barry, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Murphy, Rogers, Sloss & Gambel, Robert H. Murphy, Emily Stevens Hardin, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

| gPIaintiff, Patricia Richardson, filed suit against Louisiana-1 Gaming, Pinnacle Entertainment, and Boomtown LLC. In the petition plaintiff alleged that the defendants operated a riverboat gaming vessel and dockside facilities known as Boomtown Casino. She further alleged that, while she was a customer/guest of the casino, she slipped on a die on the floor while walking to the escalator. As a result she fell, incurring injury.

Defendants filed a motion for summary judgment, contending that the uncontested facts show that plaintiff cannot meet her burden of proving that they breached their duty of care or that they had actual or constructive knowledge of the presence of the die on the floor prior to her fall. In opposition, plaintiff asserted that the die on the floor was a dangerous and foreseeable condition.

The trial court granted the motion for summary judgment, dismissing plaintiffs suit with prejudice. Plaintiff appeals from this ruling.

A motion for summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with |saffidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). The initial burden of proof is with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. LSA-C.C.P. art. 966(C)(2); Callis v. Jefferson Parish Hosp. Service, Dist. # 1, 07-580 (La.App. 5 Cir. 12/27/07), 975 So.2d 641, 643.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Specifically, appellate courts must ask the same questions as the district court; which is whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Matthews v. Banner, 08-339 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163.

LSA-R.S. 9:2800.6 governs negligence claims brought against merchants resulting from accidents caused by a condition existing on or in the merchant’s premises. A casino qualifies as a merchant under this statute. Rowell v. Hollywood Casino Shreveport, 43,306 (La.App. 2 Cir. 9/24/08), 996 So.2d 476.

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

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
|4B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
(3) The merchant failed to exercise reasonable care.

Failure to prove any of the requirements enumerated in La. R.S. 9:2800.6 will prove fatal to the plaintiffs case. Harrison v. Horseshoe Entertainment, 36,294 (La.App. 2 Cir. 8/14/02), 823 So.2d 1124.

Merchants are required to exercise reasonable care to protect those who enter the establishment, to keep the premises safe from unreasonable risks of harm, and to warn persons of known dangers. Although the owner of a commercial establishment has an affirmative duty to keep the premises in a safe condition, he is not the insurer of the safety of his patrons. A store owner is not liable every time an accident happens. Harrison, supra.

In her brief, the plaintiff presents three assignments of error. First she alleges that the trial court erred in dismissing the case based upon the abolished doctrine of assumption of the risk. Second, she alleges that the trial court erred in holding the plaintiff to a heightened duty to look for dice on the floor. Third, she alleges that the trial court erred in failing to find there was at a minimum a genuine issue of material fact regarding the plaintiffs accident, including whether the accident occurred or was foreseeable.

In his oral reasons, the trial judge stated that:

Alright. If you look at Ms. Mohammed’s deposition and plaintiffs deposition, I think what happened is the patron threw the dice, one of them went off the table. Immediately, the plaintiff was walking by and tripped on it. I don’t | ¿really liken it to a liquid on the floor of a grocery store, because you’re (sic) attention is — I mean, you’re at a grocery store to look for items that you’re shopping for. In this case, when you’re walking by a dice table, I think you may have a heightened duty to look for dice on the floor because, as plaintiff stated, it happens a lot, it happens often. It’s kind of like the baseball stadium scenario that we all learned in law school, assumption of the risk kind of thing. Immediately — and the facts as I find them are, as Ms. Mohammed states and not countervailed by the plaintiff, Ms. Mohammed immediately took steps to retrieve the dice after they were thrown on the floor, however, it was too late, Ms. Richardson already slipped. So, for that reason, the Court’s going to grant the motion for summary judgment.

The trial court was incorrect in its opinion that assumption of the risk applies. In applying assumption of the risk, the court suggested that the plaintiff has a heightened duty to look for dice on the floor in what the court described as a common occurrence, much like a known hazard in a baseball stadium. The trial court alluded to the assumption of the risk defense that had been used to bar recovery by plaintiffs who opted to place themselves in situations which involve virtually unpreventable risks, the textbook example being the sports spectator who has the misfortune of being hit by an errant ball. See: Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1125 (La.1988). On the contrary, the trial court must follow the Louisiana Supreme Court, which has abolished assumption of the risk. Id. For the reasons below, however, this Court finds, after our de novo review, that the motion for summary judgment was correctly granted.

Plaintiff, in her deposition, stated that she entered the casino and was walking near the craps table, while talking to her brother. She stepped on something that was hard and small, and as a result, lost her footing and fell. Plaintiff said that she did not know what the object was when she stepped on it. She discovered it was a die when the casino employee (Ms. Muhammad) showed it to her.

Jada Muhammad, table games supervisor, stated in her deposition that she saw a player throw the dice on the games table. One die bounced off the table and Islanded on the floor, and as soon as it landed, plaintiff stepped on it. Ms. Muhammad helped plaintiff up, and then retrieved the die and placed it back on the table. Ms. Muhammad stated that it was one of her duties to retrieve dice immediately if one bounced off the table. In the present case, she stopped play of the game as soon as the die left the table and went to retrieve it. Because the die landed on the floor and plaintiff stepped on it almost simultaneously, she did not have time to pick it up.

Plaintiff argues that the conditions surrounding the craps table were unreasonably dangerous, in that die would land on the floor repeatedly, and from the same vicinity as the one on which she slipped. This condition, which occurred repeatedly, was not only foreseeable, but also anticipated and likely to occur. Defendants argue that assuming that the die caused plaintiffs fall, she cannot bear the burden of proving that this created an unreasonable risk or that it did not exercise reasonable care. It was another patron, and not the casino, that created the condition by throwing the die off the table. Defendant contend that it could not have known that the die would leave the table at the same time that plaintiff walked by, and therefore plaintiff cannot prove that it had either actual or constructive notice of the dangerous condition prior to plaintiffs fall.

La. R.S. 9:2800.6(B) clearly and unambiguously requires the. claimant to prove each of its three subsections with no shifting of the burden. In order to prove constructive notice the statute clearly and unambiguously requires that the claimant prove that the damage causing condition existed for some period of time prior to the occurrence, White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081. The undisputed testimony of Ms. Muhammad reflects that the die hit the floor and plaintiff stepped on it simultaneously, and therefore plaintiff cannot prove that the condition causing her accident, the die on the floor, existed for some 17period of time prior to her accident. Accordingly, the trial court did not err in finding an absence of support for one element of plaintiffs case and in granting summary judgment for defendant, dismissing plaintiffs cause against them.

For the above discussed reasons, the decision of the trial court is affirmed. All costs are assessed against appellant.

AFFIRMED.


author: MARC E. JOHNSON, Judge.

text:
    Joseph Heath MELTON v. Torrence HORTON, St. James Stevedoring Company, L.L.C. and Optimum Claims Services, Inc.
    No. 10-CA-496.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 14, 2010.

      J. Neale Degravelles, Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellant.
    Joseph A. Devall, Jr., S. Daniel Meeks, Attorneys at Law, Metairie, LA, for Defendants/Appellees.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| i>This appeal arises from the granting of a Motion for Partial Summary Judgment in favor of Defendants/Appellees, St. James Stevedoring, LLC and State National Insurance Company (hereinafter collectively referred to as “SJS”), and against Plaintiff/Appellant, Joseph Heath Melton from the 23rd Judicial District Court, Division “B,” wherein all claims were dismissed. For the following reasons, we reverse the trial court’s judgment and remand the matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

According to the pleadings, Mr. Melton was employed by SJS as an equipment operator. Mr. Melton worked on the vessel D/B DON D, which was owned and operated by SJS and was in service on the navigable waters of the Mississippi River. Towards the end of Mr. Melton’s shift on December 21, 2006, he entered a shack on the vessel in order to await the arrival of a crew boat to take him to shore. Upon entering the shack, Mr. Melton was physically confronted by defendant, Torrence Horton. As a result of the confrontation with Mr. Horton, Mr. |sMelton suffered serious injuries to his right knee.

On October 2, 2007, Mr. Melton filed suit against Mr. Horton and SJS. Mr. Melton’s allegations against SJS included allegations of vicarious liability under the Jones Act and/or the General Maritime Law of the United States for the actions of Mr. Horton and independent acts of negligence, including but not limited to, failing to properly supervise its employees. In his First Supplemental and Amending Petition filed on March 27, 2008, Mr. Melton added State National Insurance Company, Inc. as a defendant to the action. Also, Mr. Melton alleged a new cause of action against SJS involving an incident that aggravated his right knee while on duty and additional independent acts of fault. On April 27, 2009, Mr. Melton filed a Second Supplemental and Amending Petition which alleged a new cause of action stemming from another incident which re-aggravated his right knee while lifting an industrial-sized tire. Mr. Melton also alleged additional allegations of negligence against SJS.

On November 30, 2009, SJS filed a Motion for Partial Summary Judgment. In the motion, SJS averred there was no genuine issue of material fact regarding whether Mr. Melton had an action against his co-employee, Mr. Horton, under the Jones Act and/or the General Maritime Law of the United States. The motion further averred Mr. Horton and SJS were entitled to a partial summary judgment as a matter of law regarding the claims against Mr. Horton.

In his Opposition to Motion for Partial Summary Judgment filed on February 19, 2010, Mr. Melton argued SJS lacked standing to raise a Motion for Partial Summary Judgment for Horton because he was represented by separate counsel. Mr. Melton also argued there were unresolved issues regarding the course and scope of employment and whether the incident involving Mr. Horton was | ^horseplay. Additionally, Mr. Melton raised the question of whether SJS was responsible for the actions of Mr. Horton if the incident between the two men was merely horseplay.

In its Reply to the Opposition to Motion for Partial Summary Judgment filed on February 23, 2010, SJS averred Mr. Horton and Mr. Melton were co-employees involved in horseplay at the time of the incident. SJS further averred the actions of Mr. Horton were not for the benefit of SJS, and the incident was unforeseeable. In its conclusion, SJS stated,

“not only does the Plaintiff not have a claim against Torrence Horton, a co-employee, he does not have cause of action under the Jones Act or the General Maritime Law, he does not have a cause of action against SJS for his alleged injury resulting from admitted horseplay under the Jones Act or for unseaworthiness.” (Emphasis added).

On February 29, 2010, Mr. Melton filed a Reply to SJS’s reply to the opposition to Motion for Partial Summary Judgment. Mr. Melton alleged SJS raised brand new arguments in its reply memorandum.

The hearing on the Motion for Partial Summary Judgment was held on March 1, 2010. The trial court granted SJS’s motion on March 18, 2010. In the decree, the trial court dismissed Mr. Melton’s claims against it with prejudice. From this judgment, the instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Mr. Melton raises the following assignments of error: whether a reply memorandum to an opposition to a Motion for Summary Judgment containing a brand new substantive arguments and filed untimely should be considered as a new Motion for Summary Judgment when that substantive argument had not been raised in the original, timely filed Motion for Summary Judgment, and whether SJS should have been granted a summary judgment as to claims and causes of action for which it did not seek summary judgment in its | ^original motion.

LAW AND ANALYSIS

Assignment of Error 1

Mr. Melton argues that SJS’s reply memorandum to an opposition to the Motion for Partial Summary Judgment untimely filed and containing brand new substantive arguments should be considered as a new Motion for Summary Judgment. Mr. Melton asserts that nowhere in SJS’s original Motion for Partial Summary Judgment, memorandum in support of its Motion for Partial Summary Judgment or its prayer does SJS seek to have his claims against it dismissed via a summary judgment. Mr. Melton further asserts that, because of the brand new substantive arguments raised in SJS’s reply memorandum, the reply memorandum itself was a very thinly veiled and brand new Motion for Summary Judgment. Additionally, Mr. Melton argues the reply memorandum was untimely filed, and he was not afforded a reasonable opportunity to address the new arguments. Mr. Melton contends the reply memorandum should not have been considered by the trial court.

In response to Mr. Melton’s position, SJS asserts the arguments raised in its reply memorandum were made in support of Mr. Horton’s Motion for Partial Summary Judgment and countered the assertions made in Mr. Melton’s opposition memorandum. SJS contends that it simply adopted the position of Mr. Horton in its reply memorandum, and Mr. Melton had ample notice of those arguments because they were already raised by Mr. Horton. Because Mr. Melton did not appeal the summary judgment granted in favor of Mr. Horton and is now a final judgment, SJS avers that Mr. Melton cannot re-litigate his claims through attacking SJS on the same grounds.

LSA-C.C.P. art. 966(B) provides that “[t]he motion for summary judgment | r,and supporting affidavits shall be served at least fifteen days before the time specified for the hearing.” The same article also provides that if the adverse party chooses to respond with a memorandum or opposing affidavits, the opposing affidavits and any memorandum “shall be served pursuant to Article 1813 at least eight days prior to the date of the hearing unless the Rules for Louisiana District Courts provide to the contrary.” Id.

Louisiana District Court Rule 9.9 states,

(a) When a party files an exception or motion, that party shall concurrently furnish the trial judge and serve on all other parties a supporting memorandum that cites both the relevant facts and applicable law. The memorandum shall be served on all other parties so that it is received by the other parties at least fifteen calendar days before the hearing, unless the court sets a shorter time.
(b) A party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing. The opposition memorandum shall be served on all other parties so that it is received by the other parties at least eight calendar days before the hearing, unless the court sets a shorter time.
(c) The mover or exceptor may furnish the trial judge a reply memorandum, but only if the reply memorandum is furnished to the trial judge and served on all other parties so that it is received before 4:00 p.m. on a day that allows one full working day before the hearing. For example, if the hearing is set for Friday, the reply memorandum shall be received no later than 4:00 p.m. the preceding Wednesday. If the hearing is set for Monday, the reply memorandum shall be received no later than 4:00 p.m. the preceding Thursday.
(d) Parties who fail to comply with paragraphs (a) and (b) of this Rule may forfeit the privilege of oral argument. If a party fails to timely serve a memorandum, thus necessitating a continuance to give the opposing side a fair chance to respond, the court may order the late-filing party to pay the opposing side’s costs incurred on account of the untimeliness.
(e) Any party may, but need not, file a copy of the memorandum with the clerk of court. See Rule 9.4 and Appendix 7 to determine whether a particular judicial district requires that memoranda be filed with the clerk of court or sent directly to the presiding judge.

17Rule 9.10(a) of the Louisiana District Court Rules provides that Rule 9.9 applies to motions for summary judgments.

In the instant matter, it is clear that SJS’s original Motion for Partial Summary Judgment and Mr. Melton’s response complied with the deadlines set forth in LSA-C.C.P. art. 966(B) and Louisiana District Court Rule 9.9. Whether SJS’s February 23, 2010, pleading complies with the procedures and could be considered by the trial court depends on how the pleading is classified. If it is in fact a reply memorandum, it was properly considered within the discretion of the trial court to determine whether to grant the Motion for Partial Summary Judgment, even if untimely filed. If it is a new Motion for Summary Judgment, it was improperly considered by the trial court in determining the motion. We find that the pleading filed by SJS on February 23, 2010, is a new Motion for Summary Judgment.

The basis for SJS’s original Motion for Partial Summary Judgment, as set forth in its memorandum, was that there was no genuine issue of fact against Mr. Horton under the Jones Act and/or the General Maritime Law. As such, SJS asserted the partial summary judgment dismissing the claims of Mr. Melton against Mr. Horton was warranted. However, the pleading filed on February 23, 2010, by SJS asserted Mr. Melton did not have a cause of action against Mr. Horton or SJS.

The new substantive issues raised in SJS’s February 23, 2010, pleading, e.g., Mr. Melton had no cause of action against SJS, was an attempt to circumvent the procedures set forth for a Motion for Summary Judgment. See Thibodeaux v. Comeaux, 08-0314, p. 7 (La.App. 3 Cir. 10/1/08); 996 So.2d 67, 72 (holding a late filing containing new substantive issues was a new motion for summary judgment and was nothing less than an attempt to circumvent the time afforded to the plaintiff to respond to a completely new issue). Accordingly, we find the trial |8court did err in considering SJS’s new substantive claims to determine SJS’s Motion for Partial Summary Judgment.

Assignment of Error 2

Mr. Melton argues the trial court erred by granting summary judgment as to all of his claims and causes of action raised, even when SJS did not seek to have all of his claims dismissed in its Motion for Partial Summary Judgment. Mr. Melton avers that the trial court not only dismissed the claims against SJS relating to the incident with Mr. Horton, but it also dismissed all of his claims related to the subsequent incidents (e.g., the incident involving the transfer of the truck tire while on light duty and his back injury). Mr. Melton further argues that the dismissal of the latter claims were not addressed or requested by SJS at all, even in its untimely reply memorandum.

In reply, SJS admits that it did not make any arguments regarding the allegations of Mr. Melton raised in his Second Supplemental and Amending Petition. SJS takes no position regarding whether those claims were also dismissed when the trial court granted its Motion for Partial Summary Judgment and dismissed it from the action.

In its original Motion for Partial Summary Judgment, SJS added a footnote stating, “Please note, by granting SJS’s Motion for Partial Summary Judgment, and/or granting Mr. Horton’s Motion for Summary Judgment, the Plaintiffs other claims, (i.e., his alleged back injury) against SJS would remain in litigation.” The trial court, in granting the partial summary judgment, dismissed all of the Mr. Melton’s claims against SJS. Because the other claims raised by Mr. Melton were not addressed by SJS in its Motion for Partial Summary, we find that the trial court erred in dismissing those claims in the summary judgment. See Merrick v. Bredero Price Co., 01-329, p. 7 (La.App. 5 Cir. 9/25/01); 798 So.2d 275, 279 (holding |sissues not raised in the Motion for Summary Judgment or at the hearing should not have been dismissed in the summary judgment).

DECREE

For the foregoing reasons, we reverse the trial court’s grant of the summary judgment dismissing Mr. Melton’s claims against St. James Stevedoring Company, LLC and State National Insurance Company and remand the matter to the trial court for further proceedings. St. James Stevedoring Company, LLC and State National Insurance Company are assessed the costs of this appeal.

REVERSED AND REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS.

      . At that time, St. James Stevedoring, L.L.C., not State Nation Insurance Company, Inc., was listed as a defendant.