author: Marion F. Edwards, Judge

text:
    Charles J. BALLAY, et al. v. Amos J. CORMIER, III, et al. Charles J. Ballay in his Official Capacity as The District Attorney of the Twenty-Fifth Judical District v. Amos J. Cormier, III and The Plaquemines Parish Government CDW Services, LLC v. The Plaquemines Parish Government and Mr. Amos J. Cormier, III in His Official Capacity as Parish President of Plaquemines Parish
    NO. 2017-CA-0512, NO. 2017-CA-0515, NO. 2017-CA-0516
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 13, 2017

      Dane S. Ciolino, DANE S. CIOLINO, L.L.C., 18 Farnham Place Metairie, LA, 70005, David C. Jarrell, Charles J. Ballay, District Attorney, OFFICE OF THE DISTRICT ATTORNEY FOR THE PARISH OF PLAQUEMINES, 102 Avenue G Belle Chasse, ..LA,, 70037, Frank A. Milanese, FRANK A! MILANESE, PLC, 650 Poy-dras Street, Suite 2617, New Orleans, LA, 70130-6101, COUNSEL FOR PLAINTIFF/APPELLEES
    Peter Barbee William, S. Culver, Jr., ATTORNEY AT LAW, 8056 Highway 23, Suite 200, Belle Chasse, LA, 70053 -AND-Robert A. Barnett, 19370 Hwy. 36, Coving-ton, LA, 70434, COUNSEL FOR DEFENDANTS/APPELLANTS
    (Court composed of Judge Paula A. Brown, Judge Marion F. Edwards, Pro Tempore, Judge Tiffany G. Chase)
   Marion F. Edwards, Judge

| tThe three consolidated cases in this appeal involve a dispute between Charles J. Ballay, the District Attorney of the Twenty-Fifth Judicial District, and Amos J. Cormier, III, the Parish President of Plaquemines Parish , regarding a contract with CDW Services, LLC -to renovate a building intended for the future use of the District Attorney’s Office. The construction project was needed because the Plaquemines Parish Courthouse in Point a' la Hache, which housed the District Attorney’s Office, was .damaged beyond repair in a fire caused by an arsonist on January 12, 2002.

Through land acquisitions, block grants and local and federal funding during the administrations of former Plaquemines Parish Presidents Billy Nungesser, Amos J. Cormier, Jr., and interim president, Ed Theriot, the Parish acquired and began developing several acres of land and buildings formerly owned by the State of Louisiana for the purpose of establishing a parish government complex. One of |athese buildings, Building 201, was designated for use as the District Attorney’s Office.

In the fall of 2016, the Parish advertised to receive bids on the renovation of Building 201 in accordance with the process set forth in the Louisiana ■ Public Bid Law embodied in La. R.S. 38 § 2212, et seq. In December of 2016, Interim Parish President Ed Theriot, accepted a bid from CDW Services, LLC (CDW) 'as the -lowest bid, and awarded the contract to CDW. CDW responded timely and completed the necessary paperwork for confection of the contract. However, between the time the project was let out for bids, and the completion of the required documentation process, Amos J. Cormier, III was sworn in as Parish President. On January 30, 2017, Mr. Cormier rejected all bids on the project and refused to certify the availability of funds for the project.

When Mr. Cormier refused to execute the contract with CDW, Mr. Ballay filed a Petition for a Writ of Mandamus seeking to compel the Parish to execute the contract with CDW, and a Petition for a Temporary Restraining Order seeking to prohibit the Parish from alienating or encumbering the funds previously appropriated for the renovations of Building 201. Additionally, CDW filed a Petition for a Writ of Mandamus to compel the Parish to execute the contract for the renovations. Mr. Cormier filed several exceptions to the mandamus petitions, including no cause of action, in which he asserted that the actions taken were ^discretionary, precluding the issuance of a writ of mandamus. In his answer, Mr. C’ormier also asserted several affirmative defenses. All three actions were consolidated in the trial court for consideration.

The trial court considered and denied the exceptions, and ultimately rendered an opinion in which it granted the mandamus and denied the preliminary injunction. All parties have appealed.

FACTS

The pertinent facts are undisputed. A call for bids on the project to renovate Building 201 was properly advertised pursuant to "the Public Bid Law during the Theriot administration, and CDW submitted the lowest responsive bid. Parish officials made certain CDW had a valid contractor’s license and had no issues that would invalidate the bid. Consequently, CDW’s bid was accepted by the Parish, and CDW was awarded the contract. CDW completed the necessary paperwork and secured the required insurance and performance bonds. Parish officials reviewed all documents submitted by CDW, and certified the bid as complete. The final contract was submitted to Mr. Cormier, the newly sworn in Parish President, for signature.

Funding for the projéct came from three sources. $274,000 came from the District Attorney’s office, $1.6 million came from a Community Development Block Grant (CDBG), and $616,000 was provided by the Hazard Mitigation Grant Program (HMGP). Additionally, the parish allocated $60,000 to re-design portions of the building. However, those funds were for design only, not construction.

At the time the bids came in, the Parish was still $712,000 short of the necessary funds. Pursuant to the Public Bid Law, the Parish is required to award |4the contract to the lowest bidder within 45 days or get an agreement from the contractor to extend their bid prices past that day. An extension was obtained, and the Parish was able to secure an additional $800,000 from Sandy Recovery, Federal Emergency Management Agency (FEMA) money set for use on Building 203, which was under construction. That freed up CDBG money to be moved to the Building 201 project. The CDBG grant was for both buildings, so the funds could be moved back and forth without council approval. Mr. Theriot verbally agreed to the transfer of funds at the council meeting.

Amos J. Cormier III, the current president of Plaquemines Parish, took office in January of 2017. He reviewed the parish finances and the contract with CDW and decided not to sign the CDW contract. Notification of that decision was sent by email to all concerned parties.

Mr, Cormier cited the timing of the contract, which occurred nine days after he was elected president,, parish finances, availability of funding for- the project, and his . determination that the grant funds would be put to better use on other projects in the Parish such as a library for Port Sulphur, as reasons for his decision not to execute -the contract. Mr. Cormier also expressed concerns over the legality of the donation* by the District Attorney’s Office toward the funding for the project, and the lack of an ordinance relating to the project which would authorize the obligation.

Mr. Cormier acknowledged that federal grant money was identified in the bid documents for funding .of the project, but stated that the Parish had not yet received the funds and he did not know whether the funds were actually available. |BHe admitted that his conversations with FEMA were general and he did nothing specific to determine whether the funds were available for the renovation of Building 201. Mr. Cormier also stated that he believed the District Attorney is required by law to be located in the parish seat, although he could not cite the legal support for that belief.

William Poche is a project manager for Hunt, Guillot <& Associates (HGA). He testified that HGA has a contract with Plaquemines Parish to manage grants. He explained that after Hurricane Katrina, Congress approved certain funds. Part of those funds included $616,000 which was allocated to Building 201 to retrofit, - or hurricane-proof the structure, and that money is' still available. The overall grant is for $8 million and works by reimbursement. When the project goes into construction, the grant managers review the invoices for eligibility then pass them on for approval to the State, and eventually on to FEMA.

Mr. Poche stated that the Parish does not pay the invoice before it is submitted to the State and Federal Homeland Security Departments. Rather, the invoices are sent to state and federal agencies and, when approved, the funds are sent to the Parish for payment of the invoices. Mr. Poche testified that it usually takes about 30 to 45 days before the process is completed and the checks are received by the Parish. He stated that he has been doing this job since 2012 and has never seen a problem with payment.

There was similar expert testimony to show that funding from CDBG is managed in a similar fashion. Specifically, there is $4 million in CDBG funds allocated for the Consolidated Government Complex in which Building 201 is located. About $1.6 million of that total was allocated to Building 201. When | ^construction begins and an invoice is received and approved, the Parish can “draw down” the money to pay the invoice.

DISCUSSION

The rulings of the trial court on appeal are the denial of exceptions of no cause of action, lack of subject matter jurisdiction, nonjoinder of an indispensable party, improper venue and no right of action filed by Mr. Cormier and Plaquemines Parish. The trial court granted a writ of mandamus filed by CDW and Mr. Ballay, and made the mandamus peremptory, directing Mr. Cormier and the Parish to execute the contract with CDW for the renovations of Building 201. Additionally, the trial court dissolved the temporary restraining order and denied the request for preliminary injunction , filed by Mr. Ballay seeking to prevent the Parish from spending the funds allocated for the Building 201 project on other projects.

There are appeals, answers and/or cross-appeals filed by all parties. Mr. Cor-mier and the Parish have appealed the ruling denying the exception of lack of subject matter jurisdiction and the grant of the mandamus. CDW answered the appeal of Mr. Cormier and the Parish, asserting the judgment is correct as it relates to the denial of the exception of lack of subject matter jurisdiction and the grant of mandamus. Mr. Ballay appeals the portion of the judgment denying the preliminary injunction.

LACK OF SUBJECT MATTER JURISDICTION

Although several of the assignments of error listed in brief by Mr. Cormier and the Parish assert that the trial court erred in denying the exception of lack of subject matter jurisdiction, in the argument on these, assignments, appellants acknowledge that the trial court has the procedural capacity to hear a petition for [^mandamus. It is clear from the arguments on these assignments that they relate to merits of the issuance of the mandamus, rather than the procedural issue of subject matter jurisdiction. La. C.C.P. art 2 provides that “(j)urisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” The actions herein relate to a writ of mandamus and a preliminary injunction. Both actions are within the grant of subject matter jurisdiction contemplated by our legal system.

Accordingly, we find no merit in the assertion that the trial court has no subject matter jurisdiction over the actions filed in this matter.

WRIT OF MANDAMUS

La. C.C.P. art. 3861 provides that a mandamus is a writ directing a public officer or a corporation or an officer thereof to perform any of the duties set forth in Articles 3863 and 3864. “A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law, ...” “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 ...” Our Supreme Court has explained that “mandamus will only issue where the action sought to be compelled is ministerial in nature, i.e., where itjs contains no element of discretion.” A ministerial duty is a “simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law.”

The Public Bid Law is intended to advance the interests of the taxpaying citizens and to prevent public officials from awarding contracts on an arbitrary basis to avoid possible exorbitant and extortionate prices. The Public Bid Law allows the governing authority to reject a bid for “just cause”. However, “(o)nce the public entity has exercised its option and accepted a lowest responsible bid, it cannot reject all the bids and re-advertise the project. To provide otherwisé would pérmit the possibility of favoritism in public bidding, which the statute was enacted to prevent.” Once this threshold has been crossed, the entity no longer has the option of rejecting all bids, even for just cause. The public entity is now required to award the contract to the lowest responsible and responsive bidder. Further, La. R.S. 38:2215B provides:

If the lowest responsible and responsive bidder has' timely provided all documents required by R.S. 38:2212, and no injunction or temporary restraining order is in effect, the lowest responsible and responsive bidder and the public entity shall execute the contract not later than sixty calendar days after the date of the public entity’s award of the contract to the lowest responsible and responsive bidder.

The legislative mandates in the Public Bid Law are substantive. There is no discretion afforded the public entity once it accepted the lowest Responsible and | ¡responsive bid. It is at this point-a ministerial .duty. Therefore, a mandamus action is an appropriate vehicle to compel a public entity to award a contract to the lowest bidder under the Public Bid Law.

In the matter before us, CDW was the lowest responsive bidder and there is testimony by Parish officials to show that CDW is a responsible entity with a valid contractor’s license and no issues that would prevent it from completing the contract as bid. Further, the Parish secured an extension of the 45 day period and awarded the contract to CDW, which in turn secured the necessary insurance and performance bonds. There is no indication that an injunction or temporary restraining order is in effect to prevent compliance with R.S. 38:2215B. The Parish cannot avoid its ministerial duty to sign the contract. Thus, any arguments relating to the reasons for the failure to sign the contract in an attempt to establish just cause for rejecting the bid are irrelevant. Since the Parish failed to comply with its obligation pursuant to the Public Bid Law, a mandamus was justified. We find the trial court was correct in issuing a writ of mandamus.

PRELIMINARY INJUNCTION

In his appeal, Mr. Ballay asserts - the trial court-erred in denying his petition for preliminary injunction.

“A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties, pending trial on the merits.” An injunction is a “harsh, drastic remedy that should only issue where Imthe petitioner is threatened with irreparable harm and has no adequate remedy at law.” “Irreparable injury is an injury or loss that cannot be adequately compensated in money damages, or is not susceptible to measurement by pecuniary standards.”

“To obtain a preliminary injunction, the petitioner must establish by prima facie evidence that: (1) it will suffer irreparable injury, .loss, or damage if the motion for preliminary injunction is not granted and (2) it is entitled to the relief sought’ through at least a showing that it will likely prevail on the merits of the case.” Additionally, the petitioning party must show that money damages cannot adequately- compensate for' the injuries suffered and the injuries cannot be measured by pecuniary standards. Mere inconvenience is not sufficient to support a claim of irreparable injury necessary for the issuance of a preliminary injunction.

Our standard of review of a trial court’s decision whether to grant a preliminary injunction was recently set forth by this Court as follows:

Trial courts have great discretion in deciding whether to grant or deny a preliminary injunction, and we, will not disturb their ruling absent a clear abuse of discretion. Of course, this standard is based on the conclusion that the trial court committed no error of law and was not manifestly erroneous in making a factual finding that was necessary to the proper exercise of its discretion. Where one or more legal errors interdict the trial court’s fact-finding process, the abuse of discretion standard becomes inapplicable, and we conduct our own de novo review of the record, (citations omitted)

_jjjln the matter before us, Mr. Ballay seeks to enjoin the Parish from using the funds identified for the renovation project on Building 201 for any other purpose. Mr, Ballay argues the trial court had the legal authority to enjoin Mr. Cormier and the Parish from alienating, encumbering, or otherwise interfering with the funds previously appropriated for the renovations of Building 201. Further, Mr. Ballay argues that, since the court has the authority to compel the execution of contracts under the Public Bid Law by mandamus, it follows that the court would also have the authority to enjoin conduct that would undermine and indirectly circumvent the court’s recognized authority to issue a mandamus. In simple terms, Mr. Ballay argues the preliminary injunction is incidental to the trial court’s order compelling Mr. Cormier to exécute the contract.

Further, Mr. Ballay seeks to take advantage of the jurisprudential exception to the irreparable harm requirement established by the Louisiana Supreme Court for instances when the plaintiff asks for an injunction that seeks only to order compliance with a prohibitory law. The requisite showing of irreparable injury is dispensed with “when the conduct sought to be restrained is unconstitutional or unlawful, ie,, when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law and/or a violation of a constitutional right.” Thus, “(o)nce a plaintiff has made a pri-ma fade showing that the conduct to be enjoined is reprobated by law, the petitioner is entitled to injunctive relief without the necessity of showing that no other adequate legal remedy exists.”

| ia“This jurisprudential rule, however, requires; three findings by the court ■before a plaintiff can circumvent the irreparable harm requirement: -first, that the ■conduct that is sought to be enjoined violates a prohibitory law (whether an ordinance or a statute or the constitution); second, that the injunction seeks to restrain conduct, not order it; and third, that the petitioner has met the low burden of making a prima fade showing that he is entitled to the relief sought.”

The trial court reasoned that the relief sought by the District Attorney is to prevent the Parish from using-the funds identified for .the renovation of Building 201 for any other purpose. The trial court found that the grant of an injunction under these circumstances would, amount to a mandate to the Parish on how to fund a construction project.. The trial court determined that the manner in which the Parish funds the mandated project is discretionary and not appropriate for a mandamus pursuant to the Public Bid Law. We find no legal error in that determination.

The trial judge concluded that the mandamus will require the Parish to. renovate Building 201 for the District Attorney’s use, and that the Parish will be obligated, to fund, the contract. For that reason, the trial judge found no showing of irreparable harm. The transcript shows that the trial court considered, and rejected, Mr. Balky’s assertion that the circumstances of this case fit into the jurisprudential exception to the irreparable harm requirement. The court found that the conduct sought to be enjoined does not constitute a direct violation of a prohibitory law or a violation of a constitutional right. Therefore, Mr. -Ballay is not entitled to an 11sinjunction. Upon review of the record, we find no abuse of discretion in that ruling. This assignment is without merit.

For the foregoing reasons, we affirm the trial court’s judgment.

AFFIRMED

      . Mr. Cormier represents himself as parish president, and the Parish of Plaquemines as its president in these actions.

      . It appears that the temporary restraining order was granted. However, that is not clear from this designated record.

      . La.R.S. 38:2215

      . La. C.C.P. art. 3863.

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

      . Newman Marchive Partnership, Inc. v. City of Shreveport, 07-1890 (La. 4/8/08), 979 So.2d 1262, 1269.

      . Landis Const. Co., LLC v. Reg'l Transit Auth., 2015-0854 (La.App. 4 Cir. 5/25/16), 195 So.3d 598, 605, (quoting Newman Marchive P'ship, Inc. v. City of Shreveport, 07-1890, p. 5 (La. 4/8/08), 979 So.2d 1262, 1266).

      . Haughton Elevator Div. v. State Div. of Admin., 367 So.2d 1161, 1164 (La. 1979).

      . La. R.S. 38:2214B.

      . Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans, 2000-1146 (La.App. 4 Cir. 10/3/01), 798 So.2d 1167, 1177 (citations omitted).

      . New Orleans Rosenbush Claims Service, Inc. v. City of New Orleans, 94-2223, (La. 4/10/95), 653 So.2d 538.

      . Enmon Enterprises, L.L.C. v. City of New Orleans ex rel. New Orleans Aviation Bd., 2011-0459 (La.App. 4 Cir. 9/28/11), 76 So.3d 548, 553, writ denied, 2011-2580 (La. 2/3/12), 79 So.3d 1029.

      . See New Orleans Rosenbush Claims Service, Inc., supra.

      . Desire Narcotics Rehab. Ctr., Inc. v. State, Dep't of Health & Hosps., 2007-0390 (La.App. 4 Cir. 10/17/07), 970 So.2d 17, 20.

      . MST Enterprises Co. v. City of New Orleans, 2015-0112 (La.App. 4 Cir. 7/29/15), 174 So.3d 195, 198, (citing, Kruger v. Garden Dist. Ass'n., 00-1135 p. 7 (La.App. 4 Cir. 1/17/01), 779 So.2d 986, 991).

      . Easterling v. Estate of Miller, 2014-1354 (La.App. 4 Cir. 12/23/15), 184 So.3d 222, 229 (citing Smith v. Brumfield, 2013-1171 (La. App. 4 Cir. 1/15/14), 133 So.3d 70, 75).

      . Id. 184 So.3d at 228.

      . Saunders v. Stafford, 05-0205 (La.App. 4 Cir. 1/11/06), 923 So.2d 751, 754.

      . Hobbs v. Gorman, 595 So.2d 1264, 1266 (La.App. 4 Cir. 1992).

      . Easterling, 184 So.3d at 226.

      . Jurisich v. Jenkins, 99-0076 (La. 10/19/99), 749 So.2d 597.

      . Id. 749 So.2d at 599.

      . Constr. Diva, L.L.C. v. New Orleans Aviation Bd., 2016-0566 (La.App. 4 Cir. 12/14/16), 206 So.3d 1029, 1035, writ denied, 2017-0083 (La. 2/24/17), 216 So.3d 59, (citing Jurisich v. Jenkins, supra 749 So.2d at 599).

        . Constr. Diva, L.L.C., 206 So.3d at 1035.


source: Caselaw Access Project

author: Judge Joy Cossich Lobrano

license: Public Domain

text:
    Carol BASTIAN and Frank Bastian v. Andrew ROSENTHAL and Olivia Rosenthal and ABC Insurance Corporation
    NO. 2017-CA-0284
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 20, 2017

      Laurence Cohen, Attorney at Law, 702 N. Carrollton Avenue, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
    Ann M. Halphen, Kari A. Bergeron, John M. Parker, Jr., TAYLOR, PORTER, BROOKS & PHILLIPS L.L.P., 450 Laurel Street, Suite 800, Chase Tower North, Baton Rouge, LA 70801, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Joy Cossich Lobrano)
   Judge Joy Cossich Lobrano

hln this premises liability case, .plaintiffs/appellants, Frank and Carol Bastían (collectively the “Bastians”), appeal the district court’s November 10, 2016 judgment granting the motion for summary judgment filed by defendants/appellees, Andrew and Olivia Rosenthal and their homeowners’ insurance carrier Access Home Insurance Company (collectively the “Rosenthals”), which dismissed all of the Bastians’ claims against the Rosenthals. For the reasons that follow, we reverse the judgment and remand this matter to the district court for further proceedings.

The Bastians and the Rosenthals are next door neighbors^ Carol Bastían (“Mrs. Bastían”) alleges that she sustained injuries when she fell on broken concrete where the Rosenthals’ driveway meets the sidewalk. The alleged incident occurred when Mrs. Bastían, who is in her seventies, was walking her dog at 10:15 p.m. while accompanied by Francis Pollachek (“Pollachek”), a security guard employed by Metro Security, Inc. (“Metro”), the private security company for the parties’ neighborhood association.

On January 3, 2014, the Bastians filed a petition for damages naming the Rosen-thals as defendants. On March 31, 2014, the Rosenthals filed a third party demand against the City of New Orleans (the “City”), alleging that the City owned the sidewalk and failed to repair that sidewalk. On April 8, 2014, the Bastians filed a supplemental and amending petition naming Metro as defendant, alleging that Polla-chek failed to safely escort Mrs. Bastían around the broken concrete on |athe night of the accident. The Bastians’ claims against Metro were dismissed via summary judgment on March 22, 2016 and are not a part of this appeal.

On August 8, 2016, the Rosenthals filed a motion for summary judgment, arguing they had no duty to warn the Bastians of any risk posed by the sidewalk or driveway or to prevent Mrs. Bastian’s injuries because thé broken concrete was an open and obvious condition. On October 6, 2016, the Bastians filed an opposition to summary judgment, arguing that the broken concrete was not obvious because of the “darkened conditions” at the time of the accident.

The facts most pertinent to this appeal were set forth in Mrs. Bastian’s deposition and the affidavit of Andrew Rosenthal (“Mr. Rosenthal”), both of which were introduced in support of the Rosenthals’ motion for summary judgment.

Mrs. Bastían testified in her deposition to the following account of the accident. Mrs. Bastían left her house with her dog at 10:15 p.m. and saw Pollachek down the street at the wrong building. It was Polla-chek’s first-day working for Metro. Mrs. Bastían was attempting to alert Pollachek that she was going back inside her house, so she walked toward him on the sidewalk past the Rosenthals’ house. Mrs. Bastían and Pollachek then- turned around to walk back toward the Bastians’ house; Pollachek was a large man who took up most of the sidewalk. Mrs. Bastían- walked alongside him on the driveway side of the sidewalk. There was a large vehicle in the Rosen-thals’ driveway, which cast a shadow on the broken concrete. Mrs. Bastían fell on the broken concrete. When asked why she fell, Mrs. Bastían testified that it was dark and she tripped on a “piece of cement.”

laMrs. Bastían had walked across the sidewalk approximately twenty to thirty times in the five years she lived next door to the Rosenthals, but she generally avoided the area because it was “difficult to cross” and because of prior altercations with Olivia Rosenthal. Mrs. Bastían did not ordinarily walk her dog at night, but did so on the night of accident because her husband was out of town. The Rosenthals’ driveway is on the opposite side of the Rosenthals’ house from the Bastians’ house, and Mrs. Bastían was able to see the driveway from her yard or her porch. She had seen pedestrians, walk into the street to avoid the broken concrete. Mrs. Bastían testified that the condition of the driveway had changed during the time she had lived next door to the Rosenthals. She stated that there was an area that collapsed and the “pieces in the driveway had been readjusted and changed out from time to time.”

Mr. Rosenthal attested in an affidavit that he had contacted the City three times before Mrs. Bastian’s accident to request repairs- to the sidewalk. He also attested that the sidewalk and driveway remained in nearly identical condition from the time he moved into the house in 2009 until the accident. No one complained to Mr. Rosen-thal about the sidewalk or driveway, and, to his knowledge, there were no prior accidents involving the broken concrete.

On November 10, 2016, the district court rendered judgment, granting summary judgment and dismissing all of the Bas-tians’ claims against the Rosenthals.

I/The Bastians set forth a single assignment of error on appeal, arguing that the district court erred as a matter of law in granting summary judgment, when, to the extent Mrs. Bastían was aware of the condition of the sidewalk and driveway, such evidence should instead be considered by the fact finder in determining comparative fault at trial.

Appellate courts review a grant of a motion for summary judgment de novo using the same criteria district courts consider when determining'if summary judgment is proper. Kennedy v. Sheriff of E. Baton Rouge, 2005-1418, p. 25 (La. 7/10/06), 935 So.2d 669, 686 (citations omitted). The summary judgment procedure is favored in Louisiana. La. C.C.P. art. 966(A)(2).

“After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled tó judgment as a matter of law.” La. C.C.P. art. 966(A)(3). Regarding the burden of proof on summary judgment, La. C.C.P. art. 966(D)(1)’ states:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’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 the absence of factual support for one or moré elements essential to the adverse, party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

The-Bastians. argue on appeal that the district court applied the incorrect standard in granting summary judgment. According to the Bastians, the district 1 ficourt improperly found that the Rosenthals owed the Bastians no duty; instead, the district court should have found that genuine issues of material fact remain as -to breach of duty. Specifically, the Bastians contend that the broken concrete presented an unreasonable risk of harm (a breach of duty issue) and was not an open and obvious condition (alleviating the homeowner of any duty to warn of or protect against the condition). The Bastians contend that Mrs. Bastian’s awareness of the broken concrete' should be considered by the fact finder in determining comparative fault at. trial.

“The threshold issue in any negligence action is whether the defendant owed the plaintiff a duty, and whether a duty is owed is a question of law.” Bufkin v. Felipe’s Louisiana, LLC, 2014-0288, p. 5 (La. 10/15/14), 171 So.3d 851, 855 (citing Milbert v. Answering Bureau, Inc., 2013-0022, p. 15 (La. 6/28/13), 120 So.3d 678, 687-88). La. C.C. art. 2317 and 2317.1 are relevant to this analysis, and provide:

Art. 2317. Acts of others and of things in custody
We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.
.Art. 2317.1. Damage caused by. ruin, vice, or defect in things
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate.case.

LWe note that in the matter 'before us, the record is not developed as to precisely where Mrs. Bastían fell, and the Rosen-thals do :not demonstrate/with undisputed facts, whether Mrs. Bastían fell on the public sidewalk or the private driveway or whether the Rosenthals owned or assumed custody over the area where Mrs. Bastían fell. The' Rosenthals, as defendants, will not bear the burden "of proof at trial and aré not required on a motion for summary judgment to negate all essential elements of the Bastians’ claims. See La. C.C.P. art. 966(D)(1). In seeking summary judgment, the Rosenthals essentially asked the district court to find, even if the Bastians can meet their burden to prove at trial that the Rosenthals assumed custody over the area in which Mrs. Bastían fell, that the Rosen-thals are relieved of liability by operation of the open and obvious doctrine. For the purposes of this appeal, we are not required to determine whether the Rosen-thals exercised custody over' the area in which the incident allegedly occurred. Rather, we must' determine whether the district court properly ‘ granted' summary judgment on the basis that the condition of the concrete open and obvious.

The Louisiana Supreme Court stated in Bufkin, 2014-0288 at pp. 5-6, 171 So.3d at 855-56:

The burden for tort liability arising from a defect in a public sidewalk is generally with the municipality, not the adjoining landowner, unless the abutting property owner negligently caused a defect in the sidewalk. See Randall v. Feducia, 507 So.2d 1237, 1239 (La. 1987); Arata v. Orleans Capitol Stores, 219 La. 1045, 1058-60, 55 So.2d 239, 244 (La.1951); Stern v. Davies, 128 La. 182, 54 So. 712 (La. 1911). Notwithstanding, a pedestrian has a duty to seé that which should be seen and is bound to observe his course to see if his pathway is clear. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228, 234; Williams v. Leonard Chabert Medical Center, 98-1029 (La. App. 1 Cir. 9/26/99), 7744 So.2d 206, 211, writ denied, 00-0011 (La.2/18/00), 754 So.2d 974.
When evaluating the duty owed relative to a sidewalk condition, the facts and surrounding circumstances of each case control and the test applied requires the consideration of whether the sidewalk was maintained in a reasonably safe condition for persons exercising ordinary care and prudence. Courts have adopted a risk-utility balancing test to determine whether such a condition is unreasonably dangerous, wherein the trier of fact balances the gravity and the risk of harm against the individual and societal utility and the cost and feasibility of repair. See Chambers v. Village of Moreauville, 11-0898 (La. 1/24/12), 85 So.3d 593, 597-98.

Specifically, “[i]n determining whether a condition is unreasonably dangerous, courts have adopted a four-part test. This test requires consideration of: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs activities in terms of its social utility, or whether it is dangerous by nature.” Dauzat v. Curnest Guillot Logging Inc., 2008-0528, p. 5 (La. 12/2/08), 995 So.2d 1184, 1186-87.

In Broussard v. State ex rel. Office of State Bldgs., 2012-1238, p. 11 (La. 4/5/13), 113 So.3d 175, 184, the Louisiana Supreme Court noted that the “second prong of this risk-utility inquiry focuses on whether the dangerous or defective condition is obvious and apparent.” Broussard held that whether a condition is unreasonably dangerous is a question of fact, and the fact-finder utilizes the risk-utility balancing test to determine which risks are unreasonable and whether those risks pose an open and obvious hazard. Id., 2012-1238 at p. 12, 113 So.3d at 184. The Broussard court further explained:

In order to avoid further overlap between the jury’s role as fact-ñnder and the judge’s role as lawgiver, we find the analytic framework for devaluating an unreasonable risk of harm is properly classified as a determination of whether a defendant breached a duty owed, rather than a determination of whether a duty is owed ab initio. It is axiomatic that the issue of whether a duty is owed is a question of law, and the issue of whether a defendant has breached a duty owed is a question of fact. E.g., Brewer v. J.B. Hunt Transp., Inc., 09-1408, p. 14 (La. 3/16/10), 35 So.3d 230, 240 (citing Mundy v. Dep’t of Health and Human Res., 620 So.2d 811, 813 (La. 1993)). The judge decides the former, and the fact-finder — judge or jury — decides the latter. “In the usual case where the duty owed depends upon the circumstances of the particular case, analysis of the defendant’s conduct should be done in terms of ‘no liability’ or ‘no breach of duty.’ ” Pitre [v. Louisiana Tech University ], 95-1466 at p. 22 [ (La. 5/10/96) ], 673 So.2d [585] at 596 (Lemmon, J., concurring). Because the determination of whether a defect is unreasonably dangerous necessarily involves a myriad of factual considerations, varying from case to case, Reed [v. Wal-Mart Stores, Inc.], 97-1174 at p. 4 [ (La.3/4/98) ], 708 So.2d [362] at 364, the cost-benefit analysis employed by the fact-finder in making this determination is more properly associated with the breach, rather than the duty, element of our duty-risk analysis.[footnote omitted] See Maraist, et. al., Answering a Fool, 70 La. L.Rev. at 1120- (“[0]ne might persuasively argue that the cost-benefit analysis used to determine- whether a risk is reasonable or unreasonable is the heart of the breach decision and is one that should be conducted by the fact-finder, rather than by the court....”). Thus, while a defendant only has a duty to protect against unreasonable risks that are not obvious or apparent, the fact-finder, employing a risk-utility balancing test, determines which risks are unreasonable and whether those risks pose an open and obvious hazard. In other words, the fact-finder determines whether defendant has breached a duty to keep its property in a reasonably safe condition by failing to discover, obviate, or warn of a defect that presents an unreasonable risk of harm.

Id., 2012-1288 at pp. 11-13, 113 So.3d at 185.

In Broussard, the Louisiana Supreme Court considered, on review of a judgment following a jury trial, whether an elevator stopped between floors was an “unreasonably dangerous” condition. 2012-1238 at pp. 1-2, 113 So.3d at 179. The Supreme Court explained that a condition is not unreasonably dangerous if it is an open and obvious hazard. Id., 2012-1238 at p. 11, 113 So.3d at 184. “In order for a hazard to be considered open and obvious, this Court has consistently stated the |9hazard should be one that is open and obvious to all, i.e., everyone who may potentially encounter it.” Id., 2012-1238 at p. 10, 113 So.3d at 184.

“The open and obvious inquiry thus focuses on the global knowledge of-everyone who encounters the defective thing or dangerous condition, not the victim’s actual or potentially ascertainable knowledge.” Id., 2012-1238 at p. 18, 113 So.3d at 188. The global knowledge requirement distinguishes risks that are “open and obvious to all” from “assumption of risk” by a particular plaintiff. Id., 2012-1238 at p. 18, 113 So.3d at 188-89.

On appeal, the Bastians contend that Mrs. Bastian’s age, the lighting conditions, Pollachek’s path taking up most of the sidewalk, and Mrs. Bastian’s lack of familiarity with the area at night all raise genuine issues of material fact as to .whether the broken concrete was an open and obvious condition. The Rosenthals argue that the broken concrete was obvious during the day and did not lose its obviousness by night; they also contend that Mrs. Bastían was particularly aware of the broken concrete, which was in front of her next door neighbor’s home.

We find, as a matter of law, that in order for a condition to be open and obvious, it must be visible. We further find that genuine issues of material fact remain as tó whether the broken concrete was visible.

The deposition and affidavit testimony demonstrated that both Mrs. Bastían and Mr. Rosenthal were aware of. the broken concrete; that members of the public walked into the street to avoid the broken concrete; that there had been no prior accidents on the broken concrete; that it was night time and dark outside at the time |, nof the accident; that the area in which Mrs. Bastían fell was dark and a shadow was’ cast by a large vehicle parked in the Rosenthals’ driveway.

There was no testimony, however, stating whether the broken concrete- was visible in the dark. While Mrs. Bastían testified that it was dark and she tripped, she did not specifically state whether she could see the broken concrete in the dark. Furthermore, there was no evidence as to length, width, or depth of the broken concrete.

Citing to Rodriguez v. Dolgencorp, LLC, 2014-1725 (La. 11/14/14), 152 So.3d 871, the Rosenthals encourage this Court to uphold summary judgment on the basis of Mrs. Bastian’s actual knowledge of the cracked concrete. Under the facts before us, we disagree.

We acknowledge that, in Rodriguez, the Supreme Court cited to the plaintiffs testimony admitting that she saw the shopping cart which caused her to fall. However, in Broussard, the Supreme Court- drew an explicit distinction between a condition that is “obvious to all who encounter it” and “assumption of risk” by a specific plaintiff faced with that condition. 2012-1238 at p. 18, 113 So.3d at 188-89. While we recognize that Mrs. Bastian’s knowledge of the broken concrete is relevant evidence that the condition was observable, we cannot find her particular knowledge dispositive of whether that the condition was. globally visible to all in the dark. See id. Considering Mrs. Bastian's testimony that she fell because it was dark and because there is no testimony that the broken concrete was visible in the dark, finding that the concrete remained open and obvious would Inrequire this Court to weigh evidence and make factual findings, which is not appropriate on summary judgment. See Grant v. Am. Sugar Ref., Inc., 2006-1180, p. 4 (La. App. 4 Cir. 1/31/07), 952 So.2d 746, 748.

The Rosenthals also cite to Williams v. Orleans Par. Sch. Bd., 541 So.2d 228 (La. App. 4th Cir. 1989) in arguing that “an otherwise open and obvious condition does not become unreasonably dangerous simply because night has fallen.” However, the Williams court did not examine whether the defect at issue was open and obvious. Rather, Williams merely stated that a plaintiff in darkness or who detects a shadow should proceed with more care than during the day. Id. at 230. In making these statements, Williams examined whether the defect in a sidewalk was unreasonably dangerous, which is a breach of duty issue and a question of fact. Id. See also Broussard, 2012-1238 at pp. 11—12, 113 So.3d at 185.

Accordingly, we do; not find that the Rosenthals have established, with undisputed facts, that the condition posed by the broken concrete was open and obvious to all comers. We, therefore, find that the district court erred in granting summary judgment and dismissing the' Bastiáns’ claims against the Rosenthals.

For the reasons stated above, we reverse the November. 10, 2016 judgment, and remand this matter to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED


author: Judge Daniel L. Dysart

text:
    STATE of Louisiana v. Anthony BAUMAN
    NO. 2017-KA-0659
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 20, 2017

      Leon Cannizzaro, DISTRICT ATTORNEY, Donna Andrieu, Chief of Appeals, ASSISTANT DISTRICT ATTORNEY, Mithun Kamath, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPEL-LEE/STATE OF LOUISIANA
    Sherry Watters, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, LA 70158, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet)
   Judge Daniel L. Dysart

liThe defendant, Anthony Bauman, appeals his conviction of purse snatching. For the reasons that follow, we affirm his conviction and sentence.

PROCEDURAL AND FACTUAL BACKGROUND

By bill of information dated December 1, 2015, the defendant was charged with one count of purse snatching, a violation of La. R.S. M^.l. The defendant pled not guilty to the charges and proceeded to a jury trial on June 1, 2016. On the day of trial, the defendant filed numerous motions, including a motion for a twelve person jury and a motion for the court to instruct the jury on responsive verdicts as provided in La. C.Cr.P. art. 815. At the conclusion of the trial, the jury found the defendant guilty. After the trial court denied the defendant’s post-trial motions (to arrest the judgment, for a new trial and for a post-verdict judgment of acquittal), the trial court sentenced the defendant to serve five years at hard labor with credit for time served. Thereafter, the State filed a bill of information charging the defendant as a multiple offender. The hearing on the multiple offender bill was set for December 9, 2016, but was continued without date.

This appeal followed.

This case arises out of an incident which occurred on November 6, 2015, at Razoo’s Bar and Patio (“Razoo’s”), located in the 500 block of Bourbon Street. According to Michael Roberts, who was employed as a security supervisor at Razoo’s on that date, he received a report over his radio that a guest’s wallet had | ?been stolen. After speaking to the victim, he reviewed the security camera footage to gather more information.

Mr. Roberts testified that, to his knowledge, Razoo’s had thirty-five video cameras placed intermittently throughout the bar at various angles. The cameras recorded twenty-four hours a day and the footage was stored on a hard drive for 365 days. After reviewing the footage that night from three of the cameras (two of which recorded the location of the offense from different angles, and the other recorded an outdoor view of the entrance/exit), he made a copy of the video footage to give to the police. He then escorted the victim to the Eighth District Police Station to file a report.

Mr. Roberts authenticated the videos during his testimony at trial and the State played them in open court while Mr. Roberts narrated the events. Mr. Roberts identified the victim and two suspects in the video. He positively identified the defendant at trial and explained that the footage depicted the defendant .and the other suspect speaking to each other, and the defendant then reaching toward the side of the victim, following which the two men exited Razoo’s.

Mr. Roberts testified that forty-five minutes after he had returned to Razoo’s from the police station, he assumed a security position at one of the doors to the club. From there, he observed the two suspects walking down the street together and immediately recognized them from the security footage.

The victim, Makenna Wilson, testified that she was visiting New Orleans from Little Rock, Arkansas, to attend a Saints football game with friends. Once she arrived and checked into her hotel, she and her friends went to dinner, explored Bourbon Street, and then entered Razoo’s around 10:00 pm. They were inside the | .¡bar for only a minute or two when a “shot girl” approached them, selling shots of alcohol. Ms. Wilson purchased one and removed her wallet from her purse to pay with cash. Ms. Wilson also removed her cell phone from her purse at the same time to take a picture. After she paid for the shot, she placed her wallet back into her purse, but left the purse open at that point so she could secure her cell phone inside her purse after she took the picture. When she placed the cell phone back into her purse, perhaps thirty seconds to a minute later, she discovered her wallet was no longer there.

Ms. Wilson testified that she began to panic and asked nearby patrons if they had seen anything, then reported the theft to a security guard and a bartender, who reported it to the manager. She then walked to the police station and made a written report which- she read in open court at the trial:

I, Makenna Wilson, was robbed the night of November 6, 2015, in Razoo Bar. The two men worked together. One distracted m¿, and the other reached in and took the wallet and walked out the door. The young man was the one that had contact. He was about six feet tall with a graphic tee, and a black male.

The State played the security footage in open court again and Ms. Wilson narrated the events. She identified herself in the video and the two men whom she claimed committed the theft. She explained that one of the men approached their group while she was attempting to convince her friend to drink the shot. When the man approached, he stood directly by her side and joined in cajoling the victim’s friend to drink thé shot, cheering, “Come on, you can take it; do it! Do it!” Ms. UWilson testified that she did not know who the man was, nor did she. invite him to join their group. '. .

As the video played in court, Ms. Wilson was able to pinpoint the moment that the defendant removed her wallet from her purse and identified her wallet in the defendant’s hand. She testified .that she did not know the defendant, had not invited him to join them, and gave him neither her wallet, nor consent to possess her wallet. She stated that once the defendant had her wallet in his possession, the man in the graphic tee departed “pretty quickly.”

According to Ms, Wilson’s testimony, at the time her wallet was taken, it contained about $160 in cash, a credit card, a debit card, her identification, memorabilia she had collected, over time, and a blank check signed by her boss. The next day, an unknown woman from Florida contacted her and stated that she had found some , of her belongings scattered in. an alley the night before. She met the woman and recovered her identification, debit card, credit card, health insurance card, and bank account card. Neither the cash nor the blank check was among the items recovered.

Louisiana State Police Trooper William Woodward stated that he was assigned to the French Quarter on foot patrol to assist the- New Orleans Police Department (“NOPD”) during heavy traffic flow on the weekends. Sometime after midnight on November 7, 2015, he was assisting the NOPD in effectuating an arrest on a drunk and disorderly subject one block from Bourbon Street when he heard a report over his radio of a pursé snatching in the area. .After completing the arrest, he observed a motorcycle rider on Toulouse Street commit several traffic violations, so he detained the rider to issue a citation. As hé was writing the citation, a man approached him and identified himself as a security guard from a | ¿nearby bar. He informed Trooper Woodward that “he had eyes on” the two suspects who had committed a purse snatching around the corner. Trooper Woodward told the security guard to “keep [his] eyes on [them],” while he finished conducting the traffic stop. Trooper Woodward and his partner then relocated to.the intersection of Bourbon and Toulouse Streets to meet the security guard.

Trooper Woodward testified that the security guard led him to two men loitering in the vicinity and touched each of them in the chest saying, “[h]im and him.” Trooper Woodward stated that one of the suspects appeared to be in his twenties and the other appeared to be in his late forties or early fifties. Trooper Woodward and his partner immediately placed the two suspects in handcuffs and issued Miranda, warnings. He took the suspects to the Eighth District Police Station and attempted to view the security footage but it would not play on the equipment at the station so he-returned to Razoo’s to view the footage there.

Once again, the state played the security footage in open court and Trooper Woodward identified the defendant and Mr. Washington on the video, described their appearance and" clothing, and confirmed that they were the two men he arrested,, stating that they were wearing the samé clothes at' the time of the arrest. Trooper Woodward also testified that he had taken pictures of the suspects at the police station, which the state introduced at trial, to show that they were wearing the same clothes in the photos as depicted in the security footage. Trooper Woodward stated that, in a search incident to arrest, he seized $190 in cash from defendant’s person.

Former co-defendant in the instant case, Kevin Washington, testified that, earlier that day, he pled guilty to felony theft. He stated that he did not take the victim’s wallet and he.,did not know who had..On cross-examination, he admitted |fithat he had been arrested and charged with purse snatching, but the state had allowed, him to plead to theft that morning to avoid trial. He stated that‘his lawyer advised him it was in his best interest and he had taken responsibility for his actions.

The defense called NOPD Officer, Juanita Stretz, who testified that she was the officer who wrote the initial report in the instant case. She stated that one. of her duties as .an administrative officer was to write reports based on information provided, by victim(s), and, based on that information, determine the appropriate booking charges. In the report she authored in this case, she entered “theft/pickpocket” under the “charges” section of the report, and wrote “pickpocket” under the “Incident Heading” section. She also listed the “signal code” as a “67-B,” which is the code for theft by pickpocket.

On cross-examination, Officer Stretz admitted that the charge she listed in her report was determined solely on information the victim provided. Although she had been in possession of the security footage, she had not viewed it because, as she stated, it was not her responsibility to fully investigate the case. She conceded that the charges listed in her initial reports are not always the charges the District Attorney accepts, and in this case, both the investigating detectives and the state determined the appropriate charge was purse snatching.

DISCUSSION

The defendant has raised two issues in this appeal: whether he was constitutionally entitled to a jury of twelve persons and whether he was entitled to |7a jury instruction regarding a responsive verdict. We address each contention in turn.

At the outset, however, we note that, while the defendant did not assign the sufficiency of the evidence as an error or expressly raise it as an issue in this case, in the body of his brief, he argues that the evidence presented at trial “was not sufficient to sustain a conviction for [pjurse [sjnatching” but rather, supported “a conviction for misdemeanor theft.” Accordingly, and “in accordance with the well-settled jurisprudence, ‘[wjhen 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. Miner, 14-0939, p. 5 (La. App. 4 Cir. 3/11/15), 163 So.3d 132, 135 (quoting State v. Hearold, 603 So.2d 731, 734 (La.1992)).

The United States Supreme Court provided the standard for review of a. claim of insufficiency of the evidence in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979):

... the relevant question is whether, after viewing the evidence in the light most favorable to .the prosecution, any rational trier of fact could have found the essential elements 'of the crime 'beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution, (emphasis in original, citation omitted).

In the instant case, the defendant was convicted of purse snatching, which is defined by La. R.S. 14:65.1 as:

|s...the theft of anything of value contained within a purse or wallet at the time of the theft, from the person of another or which is in the immediate control of another, by use of force, intimidation, or by snatching, but not armed with a dangerous weapon.

Although the defendant appears to concede that he committed the theft of the victim’s wallet, which contained cash and was in her immediate control, the defendant asserts that the state failed to prove the theft occurred by “snatching,” due to the lack of speed with which the defendant removed the victim’s wallet from her purse. He claims that the security footage shows him standing next to the victim for eighteen seconds, placing his hand on her purse for seven seconds, “then slowly re-movfing] the wallet out of the purse,” and walking out of the bar with his nephew at a normal speed. The defendant submits that the legislature has not defined the term “snatching,” and offers the definition accepted by the court in State v. Jackson, 439 So.2d 616, 617 (La. App. 1 Cir. 1983):

[W]e believe that “snatching” has a commonly accepted meaning, not significantly different from that given to the jury from Webster’s Dictionary by both the State and defendant which included “... to grasp or seize hastily, to grasp, a quick grasp, or grab ...” and “... to grasp abruptly or hastily, to seize or grasp suddenly without permission, ceremony or right ....”

It is fair to assume that reasonable jurors would be aware of that common meaning, and would have considered it when reaching their verdict. Here, the Insecurity footage was played in court several times and from several different angles. While deliberating, the jury asked the court to repeat the definitions of purse snatching and theft and the court complied by reading the respective statutes. Fifteen minutes later, the jury returned a verdict of guilty as charged.

The United States Supreme Court has held that a reviewing court “faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at 326, 99 S.Ct. at 2793. Therefore, even if reasonable minds could disagree as to whether the defendant’s actions constituted a “snatching” according to its commonly accepted meaning, we must presume that the jury resolved the conflict in favor of the prosecution.

This Court held in State v. Marts, 98-0099, p. 10 (La. App. 4 Cir. 5/31/00), 765 So.2d 438, 444 that to sustain a conviction of purse snatching, “it was not necessary for the State to present direct evidence concerning either the amount of pressure used to remove [the victim’s] wallet or the relative speed at which [the defendant] accomplished its removal,” (emphasis added) basing its finding on a summary of relevant jurisprudence:

In Anderson, sufficient evidence of a purse snatching was found where the victim testified only that she felt a vibration, then noticed that her purse was no longer on the floor by her feet. Similarly, in State v. Capote, 474 So.2d 497 (La. App. 4th Cir.1985), this court held that even though the victim did not feel her purse being removed from the back of her chair, the theft constituted purse snatching because the statute does not require a face to face confrontation, but only a taking from the area Imwithin the victim’s control. Under facts more similar to those presented here, a purse snatching conviction was upheld in State v. Spurlock, 539 So.2d 977 (La. App. 4th Cir.), writ denied, 544 So.2d 399 (La. 1989), where a security guard observed the defendant remove a wallet from the victim’s purse without her knowledge of the theft. More recently, in State v. Neville, 96-0137 (La. App. 4th Cir. 5/21/97), 695 So.2d 534, writ denied, 97-1637 (La. 12/12/97), 704 So.2d 1180, although the victim did not see or feel the defendant take her wallet from her purse, she saw him walking off with it, which was sufficient to support the defendant’s conviction for purse snatching.

Id., at pp. 9-10, 765 So.2d at 444;

The defendant further argues that if the term “snatching” can be interpreted so broadly as to include any taking, regardless of the nature or speed thereof, the legislature would not have ■ included the requirement that the theft be accomplished by force, intimidation, or by snatching. In searching for legislative intent, the defendant points,out that while both purse snatching and theft are included in Title 14, under the title “Offenses Against Property,” purse snatching is listed under the Subheading “By Misappropriation with Violence to the Person,” and is considered a crime of violence under La. R.S. 14:2(B)(24), while theft is included under the subheading “By Misappropriation Without Violence.” From this, the defendant concludes that the legislature must have intended for “snatching” to involve something more than just a simple taking; otherwise, the context would be rendered meaningless.

This Court rejected a similar argument in Marts, 98-0099, p. 8, 765 So.2d at 443, in which the defendant asserted that' because the victim was not immediately [ n aware that his wallet had been taken’from his pocket, a snatch had not occurred, therefore his conduct amounted to no more than misdemeanor theft.

In State v. Murray, 436 So.2d 775, 777 (La. 1983), the Louisiana Supreme- Court analyzed the legislative intent behind designating purse snatching a more serious offense than simple robbery without the requirement of force or intimidation. The Supreme Court explained, that “the legislature’s decision that purse snatching is more serious than simple robbery was reasonable considering the widespread exposure of the public to this crime, the personal nature of a wallet or purse, and the potential for loss of greater value.” Id.

Accordingly, the legislature’s decision to include purse snatching as a “crime of violence,” where the offense can be accomplished by an undetected “snatching,” does not appear to turn on the speed with which the theft occurred and, instead, appears to. focus on the nature of the human-to-human contact; the-wide-spread societal use of purses and wallets; their personal nature and common expectation that they contain items of value; and the substantial risk of force or violence reasonably foreseeable in the theft or defense of such valuable, personal items. For these reasons, we find that the defendants argument that: the state failed to -prove he committed the offense with sufficient speed.to meet the element of snatching has no merit. - - •

ASSIGNMENT OF ERROR NUMBER 1

. In the defendant’s first assignment of error, he asserts that the court erred in denying his motion to have his trial heard before a - twelve-person jury. The | ^defendant .further argues that because his potential adjudication as a multiple offender could result in a life sentence, a guilty verdict should require unanimity among all twelve jurors.

The Louisiana Constitution art; 1 § 17 (A) provides, in. pertinent part, as follows:

A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be. tried before a jury of twelve persons, ten of whom must concur to render a . verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict.

It is clear under this provision and under La. C.Cr,P. art. 782(A) that a twelve member jury is required for those cases where hard labor is mandated. Where the penalties provide for confinement.either with or without hard labor, a defendant is not entitled to be tried by a twelve member jury. In that case, a defendant is only entitled to a jury of six members.

Under La. R.S. 14:65.1(B), the punishment for the. offense of purse snatching is confinement for- not less than two and no more than twenty years, with or without hard labor. In this matter, therefore, because the. minimum sentence for the offense of purse snatching is greater than six months, but not necessarily | ^confinement at hard labor, the defendant’s right to a jury trial on a charge of purse snatching is confined to a six-person jury-

With respect to. the defendant’s claim that his potential status as a multiple offender could result in a life sentence at hard labor, and therefore should have entitled to him to a twelve-person jury in the instant case, it is well-established Louisiana law that:

[T]he habitual offender proceeding is a separate proceeding applicable only after conviction and then at the discretion of the district attorney. It forms no part of the punishment of the criminal case involving defendant’s guilt or innocence; therefore, it has no bearing on the determination of the number of persons comprising the jury for the trial of the case.

State v. Juengain, 09-0425, pp. 7-8 (La. App. 4 Cir. 1/20/10), 41 So.3d 499, 505, quoting State v. Sherer, 354 So.2d 1038, 1040 (La. 1978). The United States Court of Appeals for the Fifth Circuit discussed due process considerations in multiple offender senténce enhancing statutes:

We have no doubt that states may properly classify general recidivist statutes of this kind as relating only to the sentencing for the repeat offense. While , the fact that the operation of such statutes often increases both the minimum and maximum sentences is a consideration somewhat militating in favor of treatment similar to an offense element, nevertheless we believe that other contrary considerations are decisive. Such statutes are, and have historically been, generally recognized as sentencing statutes, not as separate offense statutes. They plainly involve no legislative attempt to evade constitutional rights. Moreover, they have no relation to the circumstances of the wrongdoing constituting the most recent offense, but rather to something which is wholly unrelated thereto. Further, they do not relate to determining what the accused has done, but rather to what the state has previously determined that he has done. And that previous determination must have been a formal, judicial determination of guilt; and hence one as to which the. full measure of constitutional protections was available. '

14Buckley v. Butler, 825 F.2d 895, 903 (5th Cir.1987). Additionally, this Court has repeatedly rejected identical claims. See Juengain, 09-0425, pp. 7-8, 41 So.3d at 504-05; State v. Winn, 07-1339, p. 3 (La. App. 4 Cir. 7/2/08), 2008 WL 8922920; and State v. Collins, 588 So.2d 766, 769 (La. App. 4 Cir. 1991)(all holding that a potential finding of multiple offender status and the sentence enhancement that may follow is not determinative of the size of the jury required under La. C.Cr.P. 782(A) in a trial for an underlying offense). Therefore, under the current law, the' court did not err in denying the defendant’s motion to have his case tried before a twelve-person jury.'

In his brief, the defendant questions the continued constitutional viability of any statute that authorizes a conviction by a verdict of fewer than twelve jurors. The defendant concedes that the long-established holding in Williams v. Florida, 399 U.S. 78, 103, 90 S.Ct. 1893, 1907, 26 L.Ed.2d 446 (1970) declared that a defendant’s “Sixth Amendment' rights, as applied to the States through the Fourteenth Amendment, [are] not violated by [a state’s] decision to provide a 6-man rather than a 12-man jury,” but nonetheless he argues that “[tjhiirty years of empirical research. ... has confirmed that twelve person juries are more likely to consist of a fair cross-section of society, give pause to minority (number) views, deliberate longer, and reach more consistent verdicts than six-person juries.”

While the defendant cites a litany of secondary sources which he suggests indicate that twelve-person juries guarantee due process more effectively than six-person juries, he fails to' cite any U.S. Supreme Court or Louisiana authority declaring a six-person jury unconstitutional. Moreover, the defendant appears to | ^acknowledge the constitutionality of a six-person jury, submitting only that “[t]he time has come for the Court to address” it, and asking this Court to “declare unconstitutional La. Const, art. 1,- § 17(A) and La. C.Cr.P. art 782.”

As the current law stands, a trial before a six-person jury for charges that do not necessarily carry a punishment of confinement at hard labor remains constitutional. This Court is not inclined to declare unconstitutional a practice upheld by the United States Supreme Court and the Louisiana Supreme Court, and therefore, we find that the defendant’s claims do not warrant relief.

ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, the defendant argues that the court erred in denying his motion to include “felony” theft as a responsive verdict.

In his pre-trial motion to instruct the jury on responsive verdicts, the defendant requested only that “theft” be included, not “felony theft.” Additionally, in his motion for Post-Verdict Judgment of Acquittal, the defendant requested that the court “modify the verdict and render a judgment of, conviction on the lesser included offense of theft instead,” arguing that, at best, the state proved only that defendant committed “misdemeanor theft.” The court’s instructions to the jury are not transcribed in the record, indicating that neither party objected to the jury charges issued. Because it appears that the defendant did not move to include ¡^“felony” theft as a responsive verdict nor lodge a contemporaneous objection to the instructions given, he waived any claim based on the allegedly insufficient jury charge. See State v. Newton, 42,743, p. 5 (La. App. 2 Cir. 12/19/07), 973 So.2d 916, 920, (where, on motion for new trial, defendant raised the issue of the trial court’s failure to give a responsive verdict to the jury, “court properly ruled that the defendant failed to make a contemporaneous objection to the alleged omission, and waived any right to preserve this issue on appeal”); State v. Morris, 05-290, p. 13 (La. App. 5 Cir. 11/29/05), 917 So.2d 633, 641 (where “defendant failed to make a timely objection to the trial court’s exclusion of attempted possession of a firearm by a convicted felon as a responsive verdict ... [the] defendant is precluded from raising the issue on appeal); State v. Craddock, 307 So.2d 342 (La.1975) (“alleged error concerning the sufficiency of the list of responsive verdicts given the jury, like error in the judge’s charge to the jury, is not renewable under Art. 920(2) and may not be considered unless objection is made in the trial court in time for the trial judge to correct the error”).

Moreover, it appears the court did include theft as a responsive verdict, as indicated in the colloquy at the conclusion of the trial:

Defense Counsel: Your Honor, as discussed previously, I filed a motion for Your Honor to include a responsive verdict of theft. As part of—
The Court: I did that, Mr. Miller. That’s done.
Defense Counsel: Yes, Your Honor
The Court: That’s the law. That’s done.
Defense Counsel: Thank you, Your Honor.
The Court: State v. March. You were correct. What else?

| ^Additionally, defense counsel indicated to the jury during closing argument that it could find the defendant guilty of a lesser offense, such as theft, if it was not convinced the defendant committed purse snatching. Finally, when the jury took a break from deliberations to ask the court to repeat statutory definitions, the court read both the purse snatching and the theft statutes.

Nevertheless, the defendant argues that the court should have included “felony” theft as a responsive verdict, especially since the jury asked the court why it was not considering “felony” theft as an option during their break from deliberations. Because the theft of something valued at less than $750 does not carry a possible punishment at hard labor, it is not a felony.

In this case, the jury heard Mr. Washington' testify that he was permitted to plead guilty to “felony” theft the morning of trial, which may explain why the jury inquired whether the defendant could also be convicted of “felony” theft. The trial court responded to the jury that “the state didn’t argue anything about value to draw a line as to what the values are. Okay? But that’s why. It came straight out of the Code regarding what the responsive verdicts were.”

In' any event, “felony” theft does not appear to be an appropriate responsive verdict to the offense of purse snatching. State v. Simmons, 422 So.2d 138, 142 (La. 1982), provides that “if any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive.” Purse snatching only requires the theft |1sof “anything of value from a purse or wallet” while the stolen property value required to make theft a “felony” is at least $750. Consequently, it is entirely possible to commit a purse snatching by stealing property valued at less than $750; Therefore, while the offense of theft is appropriately included as a responsive verdict to purse snatching, “felony” theft is not. Here, it appears that theft was included as a responsive verdict in this case; accordingly, this assignment of error is without merit.

CONCLUSION

For the reasons set out above, we affirm the conviction of the defendant Anthony Bauman for the offense of La. R.S.14:65.1; Purse. Snatching.

AFFIRMED

      . The State also charged Kevin Washington with the same offense, as a co-defendant. Mr. Washington pled guilty to the charge of felony theft on the day of trial.

      . Neither the Docket Master nor the minute entries reflect a ruling by the trial court on these motions. However, the record reflects that the jury was comprised of six members; therefore, the trial court necessarily denied the motion for a twelve member jury or tacitly denied it. The record likewise reflects, as discussed in assignment of error number two, that the trial court instructed the jury as to a responsive verdict of theft. It follows, therefore that the trial court either expressly or tacitly granted the motion for an instruction on responsive verdicts.

      . The victim testified that the shot was for her friend but he refused to drink it, so she did not end up taking his picture.

      . Throughout the victim’s testimony, she referred to the man who approached them as "the man in the graphic tee.” During a pretrial suppression hearing, Louisiana State Police Trooper William Woodward identified "the man in the graphic tee” as the co-defendant, Kevin Washington, and identified the defendant as the man who physically removed the wallet.

      . As is our customary practice, we have reviewed the record for errors patent and found none. See State v. Lambert, 15-0886, p. 5, n.6 (La. App. 4 Cir. 1/20/16), 186 So.3d 728, 733, writ denied, 16-0335 (La. 2/17/17), 216 So.3d 50, and cert. denied, — U.S. -, 138 S.Ct. 92, 199 L.Ed.2d 187 (2017).

      . Because Ms. Wilson testified that the defendant had not touched her or harmed her in any way, nor was she even aware of his presence, the use of force or intimidation does not appear to be an issue.

      . In analyzing whether the evidence was sufficient to uphold a conviction of purse snatching in State v. Murray, 436 So.2d 775, 778 (La. 1983), the Supreme Court deferred to the lower court’s definition of “snatching" in its charge to the jury as, "to grasp or seize hastily, eagerly, or suddenly. . .to make grasping or seizing motions.” Notably, Black’s Law Dictionary defines "sudden" as "happening without previous notice or with very brief notice; coming or occurring unexpectedly; unforeseen; unprepared for.” Merriam-Webster’s Dictionary defines "abrupt” as "action or change without preparation or warning; sudden and unexpected.” Thus, it appears that these two definitions contemplate foreseeability and not speed.

      .Although the court read the statutory definition of "theft,” it did not recite the grades of the offense nor the property values differentiating them.

        . State v. Anderson, 418 So.2d 551 (1982).

      . Although this Court held that the evidence was sufficient to sustain the conviction of purse snatching in Marts, the Court ultimately reversed the conviction and remanded for a new trial due to the trial court’s failure to charge the jury with theft as a responsive verdict.

      , La. R.S. 14:65.1 requires the purse or wallet to be on the person of the victim or in their immediate control at the time of the theft,

      , Additionally, it would not seem reasonable for the defendant to benefit from a lesser conviction of misdemeanor theft while committing the more serious offense of purse snatching, simply because he was successful in his attempt to avoid detection.

      , A virtually identical provision is contained - -in Article 782(A)- of the Louisiana • Code of Criminal Procedure: ‘ “Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by 'a jury composed of six jurors, all of whom must concur to render a verdict.” La. C.Cr.P. art. 782,

      . The defendant argues that the trial court in the instant case "should have applied [State v. ] Jones, 05-0226 (La. 2/22/06), 922 So.2d 508)] and granted [the defendant’s] motion for a twelve person jury.” Problematic in this argument is that the Jones court recognized that the twelve-person jury was constituted erroneously, in contravention of La. C.Cr.P. 782, and that here, the defendant’s charge required a six-person jury instead. (We note that Jones was abrogated by State v. Brown, 11-1044 (La. 3/13/12), 85 So.3d 52, which held that such an error was harmless where the twelve-person jury rendered a unanimous verdict).

      . The defendant’s constitutional challenge to the statute allowing a non-unanimous verdict among twelve jurors may not be properly before the court where the defendant did not serve the Attorney General with a copy of the proceeding. State v. Veal, 11-44 p. 6 (La. App. 5 Cir. 12/28/11), 83 So.3d 211, 213-14. See also, State v. Joseph, 10-1090 p. 9 (La. App. 4 Cir. 8/12/11), 71 So.3d 549, 554 (holding that a defendant whose verdict was unanimous lacks standing to challenge statute allowing non-unanimous verdicts).

      . Although the defendant uses the term "felony” theft in his initial assignment of error, he argues that the court erred in failing to include theft of any denomination as a responsive verdict.

      . The verdict sheets are absent from the record.

      . The court likely intended to reference State v. Marts, 98-099 (La. App. 4 Cir. 5/31/00), 765 So.2d 438, in which this Court reversed a purse snatching conviction due to the trial court’s failure to include theft as a responsive verdict. It appears to be merely an error in the transcription.