NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 CA 0269 v,
JA' MIRA PAUL on behalf of minor child J. PAUL
VERSUS gq
LDG PORT ROYAL DEVELOPMENT, L.L. C. and AXIS CAPITAL co Judgment Rendered: OCT 1 8 2021
On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. 686793
Honorable William A. Morvant, Judge Presiding
Kendall Plain Attorney for Plaintiff/Appellant, Baton Rouge, Louisiana Ja' Mira Paul on behalf of minor child J. Paul
Jennifer L. Simmons Attorneys for Defendants/ Appellees, Matthew T. Biggers LDG Port Royal Development, L.L.C. New Orleans, Louisiana and Axis Surplus Insurance Company
BEFORE: WHIPPLE, CJ., PENZATO, AND HESTER, JJ. PENZATO, J.
The plaintiff, Ja' Mira Paul, on behalf of her minor child, J. Paul, appeals the
trial court' s judgment denying, in part, her motion to strike exhibits, granting a
motion for summary judgment in favor of the defendants, LDG Port Royal
Development, L.L.C., and Axis Surplus Insurance Company, and dismissing her
claims. For the reasons that follow, we vacate the judgment in part and affirm the
summary judgment.
FACTS AND PROCEDURAL HISTORY
Ms. Paul and Jamison Tate (" Mr. Tate") are the parents of a minor child, J.
Paul. On August 23, 2018, Mr. Tate was fatally shot at the Port Royal Apartments
in Baton Rouge, Louisiana. On August 19, 2019, Ms. Paul filed a petition for
damages on behalf of their minor child against the owner of the Port Royal
Apartments, defendant LDG Port Royal Development, L.L.C. (" LDG"), and its
insurer, Axis Surplus Insurance Company (" Axis") ( collectively, " defendants").'
In her petition, Ms. Paul alleged that at the time of the shooting, Mr. Tate was
visiting his father, Murray Tate, who was a tenant at the Port Royal Apartments.
Ms. Paul alleged that the direct and proximate cause of the shooting was the
negligence of LDG in failing to provide for the safety of its tenants and their
guests, failing to provide adequate security measures, and failing to provide
security on the premises in light of known risks in the area.
On August 5, 2020, the defendants filed a motion for summary judgment on
the basis that under Louisiana law, LDG owed no duty to Mr. Tate. Ms. Paul
opposed the motion, arguing that adequate discovery had not been conducted and
myriad issues of material fact remain." In addition, Ms. Paul filed a motion to
strike four of the exhibits attached to the defendants' motion for summary
In her original petition, Ms. Paul erroneously named Axis Capital as LDG' s insurer. She correctly named Axis Surplus Insurance Company, LDG' s actual insurer, by an amended petition filed on November 20, 2019.
2 judgment. Following a hearing on November 16, 2020, the trial court signed a
judgment on December 10, 2020 that granted in part and denied in part Ms. Paul' s
motion to strike, granted the defendants' motion for summary judgment, and
dismissed Ms. Paul' s claims with prejudice. Ms. Paul appeals that judgment.
ASSIGNMENTS OF ERROR
Ms. Paul raises the following assignments of error:
1) The trial court erred in granting summary judgment dismissing Ms. Paul' s claims where the defendants failed to meet the burden of proof imposed upon them by La. C. C. P. art. 966 and genuine issues of material fact remain in dispute.
2) The trial court erred in granting the defendants' motion for summary judgment because LDG had a duty to protect parties on its property from foreseeable risks of harm.
3) It was an abuse of the trial court' s discretion to refuse to allow additional time for Ms. Paul to complete discovery prior to granting summary judgment and dismissing her suit, given the extenuating circumstances such as the global COVID- 19 pandemic.
4) The trial court erred in denying partially the motion to strike exhibits to the defendants' motion for summary judgment by admitting the defendants' Exhibit B, the incident report, and Exhibit C, the lease agreement, into evidence.
LAW AND DISCUSSION
The summary judgment procedure is favored and is designed to secure the
just, speedy, and inexpensive determination of every action. La. C. C. P. art.
966( A)(2). 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 to judgment as a matter of law. La.
C. C. P. art. 966( A)(3).
The burden of proof is on the mover. La. C. C. P. art. 966( D)( 1).
Nevertheless, if the mover will not bear the burden of proof at trial on the issue that
is before the court on the motion, the mover' s burden does not require him to
negate all essential elements of the adverse party' s claim, action, or defense.
3 Rather, the mover must point out to the court that there is an absence of factual
support for one or more elements essential to the adverse party' s claim, action, or
defense. Thereafter, the adverse party must 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. La. C. C. P. art. 966( D)( 1). If, however, the
mover fails in his burden to show an absence of factual support for one or more of
the elements of the adverse party' s claim, the burden never shifts to the adverse
party, and the mover is not entitled to summary judgment. Durand a Graham,
2019- 1312 ( La. App. 1 Cir. 6/ 12/ 20), 306 So. 3d 437, 440.
In determining whether summary judgment is appropriate, appellate courts
review evidence de novo under the same criteria that govern the trial court' s
determination of whether summary judgment is appropriate. Reynolds a Bordelon,
2014- 2371 ( La. 6/ 30/ 15), 172 So. 3d 607, 610. Because it is the applicable
substantive law that determines materiality, whether a particular fact in dispute is
material can be seen only in light of the substantive law applicable to the case.
Durand, 306 So. 3d at 440.
Ms. Paul contends that LDG had a duty to protect parties on its property
from foreseeable risks of harm. Whether a legal duty is owed by one party to
another depends upon the facts and circumstances of the case and the relationship
of the parties. Terrell a Wallace, 98- 2595 ( La. App. 1 Cir. 12/ 28/ 99), 747 So. 2d
748, 750, writ denied, 2000- 0297 ( La. 3/ 24/ 00), 758 So. 2d 158. Duty constitutes a
question of law. Id. Generally, there is no duty to control, or warn against, the
criminal actions of a third person so as to prevent him from causing physical injury
to another, unless some special relationship exists to give rise to such a duty. Id.
Courts traditionally have found such relationships to exist between parent and
child; employer and employee; carrier and passenger; innkeeper and guest; shopkeeper and business visitor; restaurateur and patron; jailer and prisoner; and
teacher and pupil. Id.
Additional Time to Complete Discovery
We first address Ms. Paul' s third assignment of error, that the trial court
abused its discretion by refusing to allow her additional time to complete discovery
given the extenuating circumstances such as the global COVID- 19 pandemic.
Louisiana Code of Civil Procedure art. 966( A)(3) provides that a motion for
summary judgment may be granted after an opportunity for adequate discovery if
the motion, memorandum, and supporting documents show that there is no genuine
issue as to material fact and that the mover is entitled to judgment as a matter of
law. The requirement that a summary judgment should be considered only after
adequate discovery" has been construed to mean that there is no absolute right to
delay action on a motion for summary judgment until discovery is complete; rather,
the requirement is only that the parties have a fair opportunity to carry out
discovery and to present their claim. Campbell a Dolgencorp, LLC, 2019- 0036
La. App. 1 Cir. 1/ 9/ 20), 294 So. 3d 522, 527. Unless a party shows a probable
injustice, a suit should not be delayed pending discovery when it appears at an
early stage that there is no genuine issue of fact. Id.
Pursuant to La. C. C. P. art. 967( C), if it appears from the affidavits of a party
opposing the motion for summary judgment that for reasons stated he cannot
present by affidavit facts essential to justify his opposition, the court may refuse
the application for judgment or may order a continuance to permit affidavits to be
obtained or depositions to be taken or discovery to be had or may make such other
order as is just.
Trial courts in Louisiana have broad discretion when regulating pre-trial
discovery, which discretion will not be disturbed on appeal absent a clear showing
of abuse. Primeaux a Best Western Plus Houma Inn, 2018- 0841 ( La. App. 1 Cir.
5 2/ 28/ 19), 274 So. 3d 20, 32. It is not an abuse of the trial court' s wide discretion in
discovery matters to entertain a motion for summary judgment before discovery has been completed. It is within the trial court' s discretion to render a summary
judgment or require further discovery. Dortch a Jane Doe & Chrysler Group,
LLC, 2016- 0933 ( La. App. 1 Cir. 4/ 6/ 17), 217 So. 3d 449, 454.
Mr. Tate was shot in August of 2018; Ms. Paul filed this lawsuit in August of
2019. Along with her petition, she propounded interrogatories and requests for
production of documents. The defendants responded to this discovery in January
2020. The defendants propounded discovery, to which Ms. Paul responded in
January 2020. The defendants filed this motion for summary judgment on August
59 2020, which was not set for hearing until November 16, 2020.
Ms. Paul argues on appeal that she was not afforded a reasonable
opportunity to take relevant depositions with all parties relevant to her case due to
the global pandemic forcing businesses to close down, and witnesses being forced
to quarantine. Governor John Bel Edwards issued an emergency order on March
16, 2020 suspending all legal deadlines until April 13, 2020.2 On April 30, 2020,
the governor suspended legal deadlines until May 15, 2020. 3 The deadlines were
again suspended until June 5, 2020, then ultimately to June 15, 2020.4
During the period that the emergency orders were in effect, Ms. Paul was
not prevented from engaging in written discovery, or seeking to take virtual
depositions. The record does not contain any attempts to schedule depositions
between the time the motion for summary judgment was filed on August 5, 2020,
and the hearing on the motion on November 16, 2020. Ms. Paul did not file a
motion to continue the hearing on the motion for summary judgment. Moreover,
2 See Proclamation Number 30 JBE 2020.
3 See Proclamation Number 52 JBE 2020.
4 See Proclamation Numbers 59 JBE 2020 and 75 JBE 2020.
G'7 she failed to comply with the provisions of La. C. C. P. art. 967( C) requiring her to
file an affidavit stating the reasons why she could not present by affidavit facts
essential to justify her opposition to the motion for summary judgment, to allow
the court to consider whether to order a continuance or to allow discovery. We find
Ms. Paul' s period to conduct discovery in connection with the motion for summary
judgment to be more than adequate. See Haygood a Louisiana State Board of
Dentistry, 2020- 1122 ( La. App. 1 Cir. 4/ 16/ 21), 2021 WL 1438723, * 3. Thus, we
find the trial court did not abuse its discretion in failing to allow Ms. Paul
additional time to conduct discovery, and find this assignment of error to be
without merit.
Motion to Strike
In her fourth assignment of error, Ms. Paul contends the trial court erred in
partially denying her motion to strike exhibits to the defendants' motion for
summary judgment by admitting the defendants' Exhibit B, the incident report, and
Exhibit C, the lease agreement, into evidence.' We find no merit to this assignment
of error because the December 10, 2020 judgment granted Ms. Pauls' motion to
strike exhibits B and C. Further, we find that Exhibit B, the incident report, and
Exhibit C, the lease agreement, were not properly authenticated. Because the
incident report and lease agreement are not proper summary judgment evidence,
we will not consider them in connection with our de novo review.
However, because the motion to strike is no longer a means of objecting to
the documents offered by the defendants in their motion for summary judgment,
we vacate that portion of the December 10, 2020 judgment granting the motion to
strike. See Ramus a KCIS Trucking, LLC, 2019- 0039, 2019- 0040 ( La. App. 1 Cir.
9/ 27/ 19), 287 So. 3d 728, 733. Pursuant to La. C. C. P. art. 966( D)( 2), any objection
5 The trial court denied Ms. Paul' s motion to strike the defendants' Exhibit D, the notice to vacate, and Exhibit E, the affidavit of Danielle Marshall. Ms. Paul does not raise the denial of her motion to strike these exhibits on appeal.
7 to a document shall be raised in a timely filed opposition or reply memorandum.
The 2015 amendments to La. C. C. P. art. 966 changed the prior law by specifically
removing the motion to strike as a means of raising an objection to a document
offered by an adverse party in support of or in opposition to a motion for summary
judgment. The intent of La. C. C. P. art. 966( D)( 2) was to make it mandatory that
any objection to a document filed in support of or in opposition to a motion for
summary judgment must be objected to in a timely filed opposition or reply
memorandum and not in a " motion to strike" or other pleadings. Adolph u
Lighthouse Property Insurance Corporation, 2016- 1275 ( La. App. 1 Cir. 9/ 8/ 17),
227 So. 3d 316, 319- 20.
Motion for Summary Judgment
In her remaining assignments of error, Ms. Paul contends the trial court erred
in granting summary judgment because the defendants failed to meet the burden of
proof imposed upon them by La. C. C. P. art. 966 and genuine issues of material fact
remain in dispute, and because LDG had a duty to protect parties on its property
from foreseeable risks of harm.
The defendants' motion for summary judgment was based on the following:
1) Under Louisiana law, LDG did not owe a legal duty to Mr. Tate ( a non -
tenant invitee) as LDG as a lessor/landlord had no legal duty to prevent
prohibited, criminal acts of unknown third parties;
2) The defendants did not know nor should have known that unwelcome,
unknown third parties would engage in prohibited, criminal activity which
would cause injury or death to Mr. Tate; and
3) As Mr. Tate was prohibited from frequenting the subject premises due to
his history of prohibited, criminal activity, the defendants could not be liable
for unlawful, criminal activity of unknown third parties that led to his death.
In support of their motion for summary judgment, the defendants filed the affidavit of Danielle L. Marshall, the property manager of the Port Royal
Apartments. Ms. Marshall attested that on November 8, 2017, Murray Tate entered
into a lease agreement with LDG/Port Royal Apartments, and was a resident of the
Port Royal Apartments at the time of the August 23, 2018 shooting of Mr. Tate.
Ms. Marshall further attested that Mr. Tate was not a resident of the Port Royal
Apartments at any time, but an invitee of his father at all relevant times. According
to Ms. Marshall, on July 16, 2018, she issued a notice to vacate to Murray Tate due
to a violation of the drug free/ zero tolerance policy of the Port Royal Apartments
for the actions and violent activity of Mr. Tate while on the Port Royal Apartment
premises. A copy of the notice to vacate was attached as an exhibit to the
defendants' motion for summary judgment. The defendants also attached to their
motion for summary judgment Ms. Paul' s answers to interrogatories and requests
for production of documents. 6
In opposition to the motion for summary judgment, Ms. Paul filed her and
the defendants' answers to interrogatories and requests for production of
documents. She argued that unresolved factual issues remained as to LDG' s
knowledge of prior dangerous criminal activity at the apartment complex and
whether the defendants exercised due care and provided adequate safety measures
given the known risks of violent crime in the area, precluding summary judgment.
The trial court determined that the evidence submitted in connection with the
motion for summary judgment established that Mr. Tate was shot by an unknown
third party. The trial court further concluded that Mr. Tate was at the Port Royal
Apartments as an invitee, not a resident, and that the only duty owed to Mr. Tate
was a general duty owed to an invitee. The trial court found no showing of any
breach of any duty that may have been owed. Finally, the trial court found the
6 As discussed above, the defendants also attached an incident report and lease agreement to their motion for summary judgment. Because these documents are not proper summary judgment evidence, we do not consider them in our de novo review. record was " void of any evidence that the defendant[ s] knew or should have known
that an unknown third party would commit a criminal act other than referenced to
Mr. Jamison Tate' s own conduct." Thus, the trial court granted the motion for
summary judgment and dismissed Ms. Paul' s case with prejudice.
On appeal, Ms. Paul argues that numerous issues of fact exist as to LDG' s
duty to tenants and visitors to provide a safe environment in the face of known
violent criminal activity. In support of her argument, Ms. Paul cites the following
language from Patrick a Employers Mut. Cas. Co., 99- 94 ( La. App. 3 Cir.
8/ 11/ 99), 745 So. 2d 641, 649, " although generally a lessor owes no legal duty to
guests or invitees of a lessee to protect them against misconduct of third persons,
the lessor may assume the duty to provide security." In Patrick, the parents of a
bar patron who was shot during an altercation in a bar parking lot sued the owner
of the shopping center in which the bar was located. Under a lease provision, the
owner of the shopping center assumed the duty to provide security for the shopping
center, and a jury found it breached that duty. Id. at 651. Herein, Ms. Paul
produced no evidence in connection with the motion for summary judgment of a
lease provision whereby LDG assumed a duty to provide security. Thus, we find
Patrick has no bearing on this case.
Ms. Paul further argues that LDG assumed the duty to provide security, and
its failure to provide security was evidenced by a broken security gate, which
allowed third parties to gain access to the property at will. However, the only
evidence submitted in connection with the condition of the security gate was
contained in LDG' s responses to discovery propounded by Ms. Paul. According to
LDG, the security gates were operable in a proper manner on the date of the
shooting, August 23, 2018.
Ms. Paul next contends that Green a Infinity International, Inc., 95- 2356
La. App. 1 Cir. 6/ 28/ 96), 676 So. 2d 234 " is a great case that highlights the legal
10 analysis that should be used" in cases involving a business owner' s liability for
injuries sustained by a patron as a result of the criminal acts of a third party. In
Green, this court affirmed a summary judgment finding no liability on the part of a
business owner for the fatal shooting of Ms. Green' s mother, which occurred by an
armed assailant in front of the defendant' s place of business. This court found that
the defendant business owner' s duty to take reasonable care for the safety of its
patrons did not extend to an unforeseeable criminal act. Id. at 236. Ms. Paul
argues that the instant case is distinguishable in that the defendants herein had
personal knowledge of the murders and criminal activity on the property where
Mr. Tate] was murdered." However, Ms. Paul did not produce any evidence of
criminal activity on the property. In fact, the only evidence of criminal activity
introduced in connection with the motion for summary judgment is contained in
LDG' s responses to Ms. Paul' s interrogatories. Ms. Paul' s " Second Interrogatory 11th)" No. 5 ( requested that LDG:
Describe any instance of criminal activity which occurred on the premise of the apartment complex includ[ ing] the charge, date and disposition of each offense.
LDG objected to the request, but responded that in addition to the August 23, 2018
shooting, it was aware of activities that were potentially criminal and/or in
violation of its drug free/ zero tolerance policy that occurred in or at Murray Tate' s
apartment, or by acts of Murray Tate, Mr. Tate, and/or their guest(s)/ associate( s)
that took place outside of Murray Tate' s apartment, but on the premises of the
apartment complex. In response to a subsequent interrogatory regarding other
shooting incidents on the premises, LDG stated that it was aware of a shooting
involving another individual near the playground on the apartment complex after
the instant shooting in September of 2018.
Thus, based upon our de novo review of the evidence filed in connection
with the motion for summary judgment, we do not find that LDG had knowledge
11 of any previous criminal activity at the Port Royal Apartments or in the
neighboring area other than that of Murray Tate, Mr. Tate, and/ or their
guest( s)/ associate( s). 7
Finally, Ms. Paul contends that we should remand this matter to the trial
court based upon the Louisiana Supreme Court' s opinion in Kenney a Cox, 95-
0126 ( La. 3/ 30/ 95), 652 So. 2d 992 ( per curiam). In Kenney, the plaintiffs'
decedent was abducted, sexually assaulted, and murdered when she was picking up
her grandmother at New Orleans Towers. The grandmother was a resident of New
Orleans Towers, an apartment complex for the elderly, which was alleged to have
emphasized security as well as a lighted parking lot in advertisements. In its brief
per curiam opinion, the Supreme Court held:
A summary judgment was granted when it is not clear that no legal duty was owed to the victim. Also there appear to be disputed issues of fact the resolution of which would aid in deciding the duty question. Trial of the matter is necessary to resolve the case. Id.
Based upon our de novo review of the evidence in this case, we do not find
disputed issues of fact regarding the legal duty owed to Mr. Tate. The defendants
introduced evidence that Mr. Tate was not a resident of the apartment complex, and
thus no special relationship existed to give rise to a duty to control, or warn
against, the criminal actions of a third person. See Terrell, 747 So. 2d at 750. Ms.
Paul failed to produce factual support sufficient to establish the existence of a
genuine issue of material fact that the shooter was other than an unknown third
party. She further failed to produce factual support sufficient to establish the
existence of a genuine issue of material fact as to whether LDG assumed a duty to
provide security. See Patrick, 745 So. 2d at 649. Ms. Paul produced no factual
7 Due to LDG' s knowledge of the Tates' criminal activity, which took place on June 22- 24, 2018, on July 16, 2018, Ms. Marshall issued to Murray Tate a notice to vacate the premises on or before August 31, 2018.
12 support sufficient to establish the existence of a genuine issue of material fact that
LDG knew or should have known that an unknown third party would commit a
criminal act. See Green, 676 So. 2d at 236. Accordingly, summary judgment was
proper, and the portion of the December 10, 2020 judgment granting the
defendants' motion for summary judgment is affirmed.
CONCLUSION
For the foregoing reasons, we vacate that portion of the December 10, 2020
judgment granting in part and denying in part the motion to strike exhibits filed by
Ja' Mira Paul, on behalf of her minor child, J. Paul. We affirm the remainder of the
judgment granting a motion for summary judgment in favor of the defendants,
LDG Port Royal Development, L.L.C., and Axis Surplus Insurance Company, and
dismissing plaintiff' s claims. Costs of this appeal are assessed to the
plaintiff/appellant, Ja' Mira Paul, on behalf of her minor child, J. Paul.
JUDGMENT ON MOTION TO STRIKE VACATED; SUMMARY JUDGMENT AFFIRMED.