author: RKUHN, J.

text:
    Kane CORTE and Coins Count, L.L.C. v. CASH TECHNOLOGIES, INC. and CoinBank Automated Systems, Inc.
    No. 2002 CA 0846.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.

      Patrick H. Yancey, Houma, Counsel for Plaintiffs/Appellees Kane Corte and Coins Count, L.L.C.
    Andrew A. Lemmon, Hahnville, Sidney C. Sundbery, Houma, Counsel for Defendants/Appellants Cash Technologies, Inc. and CoinBank Automated Systems, Inc.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   RKUHN, J.

Defendants, Cash Technologies, Inc. (“Cash Technologies”) and CoinBank Automated Systems, Inc. (“CoinBank”), have appealed two judgments that purportedly confirmed earlier preliminary default judgments in favor of plaintiffs, Kane Corte and Coins Count, L.L.C. (“Coins Count”). Because plaintiffs did not comply with the method of proving long-arm service directed by La. R.S. 13:3205, the preliminary default judgments and the subsequent judgments confirming the preliminary default judgments are invalid. Accordingly, we vacate the two judgments that defendants have appealed and remand for further proceedings.

I. PROCEDURAL AND FACTUAL BACKGROUND

According to the allegations of the petition, Corte and Coins Count purchased 23 coin-counting machines from Cash Technologies and CoinBank during October 1999. When plaintiffs placed these machines in service in various grocery stores, they began to malfunction. When efforts to remedy the malfunctioning machines were unsuccessful, representatives of the grocery stores asked plaintiffs to remove the machines. On February 25, 2000, plaintiffs filed this suit against Cash Technologies and CoinBank seeking rescission of the sale. Plaintiffs seek to recover the purchase price of the machines, along with interest from the date of purchase, related expenses, and attorney fees.

In the petition, plaintiffs identified Cash Technologies and CoinBank as foreign corporations doing business in the state of Louisiana. Plaintiffs |3requested service upon both defendant corporations through the Louisiana Long Arm Statute, La. R.S. 13:3201-3207. Upon plaintiffs’ April 7, 2000 motion, the trial court ordered the appointment of “an employee and/or agent of Speedy Attorney Service, 850 Venice Blvd., Los Angeles, California” as special process server for the purpose of serving subpoenas and pleadings. On May 9, 2000, two affidavits of service of process were filed into the record. Derek Z. Lee executed these notarized affidavits on May 4, 2000 in the County of Los Angeles, State of California. One of the affidavits states that, “affiant is the independent process server; that affiant received a true copy of the annexed Citation and Petition on 04/18/00, and personally served same on the defendant, [CoinBank] on 4/19/00 2:40 p.m. (ANDRE DOE: Asian, male, 30 y§ars, 5'8", 160 lbs., brown eyes, brown hair).” The other affidavit contains identical language except that it indicates service was made on Cash Technologies rather than CoinBank.

Thereafter, plaintiffs filed a motion for preliminary judgment by default, which the trial court granted on May 22, 2000. The record contains a minute entry confirming the court’s order of judgment against the defendants. On May 25, 2000, plaintiffs introduced evidence to support the preliminary default judgment during a confirmation hearing held before Judge Paul R. Wimbish. On that day, Judge Wimbish signed a judgment in favor of plaintiffs and against defendants in the amount of $221,076.45 plus | ¿legal interest, along with the amount of $95.00 per month (storage fee) from January 1, 2000, until satisfaction of judgment plus legal interest. The judgment further ordered defendants to “pick up the machines or otherwise pay for the pick up and shipping of [the] machines .... ” The judgment further ordered defendants to pay attorney’s fees in the amount of 25% of the total judgment.

Thereafter, according to the representations of counsel, plaintiffs determined that the May 25, 2000 judgment was invalid because it was confirmed only sixteen days after the filing of the affidavits of service. Plaintiffs’ counsel acknowledged that based on the provisions of La. R.S. 13:3205, a default judgment cannot be obtained until 30 days after the filing in the record of the affidavit of service. Thus, on August 9, 2000, plaintiffs filed another motion for preliminary judgment by default, which Judge Timothy C. Ellender granted on that date. On August 15, 2000, Judge Ellender signed a judgment confirming the August 9, 2000 preliminary default judgment. The August 15, 2000 judgment rescinded the May 25, 2000 judgment but ordered judgment in favor of plaintiffs and against defendants using decretal language that was exactly the same as the May 25, 2000 judgment addressed above.

During the trial court proceedings, the defendants filed no exceptions or pleadings, or otherwise made any type of appearance. They now appeal | Bthe May 25, 2000 and August 15, 2000 judgments. On appeal, defendants claim these judgments are invalid because the service of process was deficient and because plaintiffs failed to provide the information needed to confirm the default judgment as required by La. C.C.P. arts. 1702 and 1702.1.

II. ANALYSIS

Jurisdiction over a person who has not submitted or waived objection is based upon service of process on the defendant. La. C.C.P. art. 6. Citation and service thereof are essential in all civil actions except summary and executory proceedings and certain divorce actions. La. C.C.P. art. 1201. Without them, all proceedings are absolutely null. Id.

Louisiana Code of Civil Procedure article 1701, addressing judgment by default, provides, that if a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. A default judgment may not be taken against a person who has not received citation and service thereof. Clay v. Clay, 389 So.2d 31, 35-36 (La.1979). Generally, a defendant must file an answer within 15 days after service of citation upon him. La. C.C.P. art. 1001. But in this instance, the application of La. R.S. 13:3205 effectively extended the normal fifteen-day answering period to thirty days. Reid v. Reid, 602 So.2d 335, 337 (La.App. 4th Cir.1992).

Service of process on non-residents such as the defendant corporations involved in this suit must be effected by complying with the Long Arm | fiStatute, a statute that permits our courts to exercise in personam jurisdiction over non-residents to the fullest extent allowed by the due process clause of the Fourteenth Amendment of the United States Constitution. Clay v. Clay, 389 So.2d at 37. La. R.S. 13:3204 A sets forth the mandatory manner in which service of process must be made under the Long Arm Statute:

A certified copy of the citation and of the petition in a suit under R.S. 13:3201 shall be sent by counsel for the plaintiff, or by the plaintiff if not represented by counsel, to the defendant by registered or certified mail, or actually delivered to the defendant by commercial courier, when the person to be served is located outside of this state or by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general, limited, or small claims jurisdiction.

La. R.S. 13:3205 provides that no default judgment can be rendered against the defendant until thirty days after the filing in the record of an affidavit showing compliance with Section 3204. Section 3205 reads as follows:

No default judgment can be rendered against the defendant until thirty days after the filing in the record of the affidavit of the individual who either:
(a) mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mails, to which shall be attached the return receipt of the defendant; or
(b) actually delivered the process to the defendant, showing the date, place and manner of delivery.

|7The words “default judgment” used in this section refer to the preliminary default judgment rather than the confirmation of default. Howard v. A & M Const. Co., 93-1013, p. 9 (La.App. 1st Cir.4/29/94), 637 So.2d 575, 580.

Generally, the question of sufficiency of service on a non-resident defendant may not be raised for the first time on appeal but rather should be raised in a suit to annul the judgment. Bickford v. Lutz, 339 So.2d 1268, 1270 (La.App. 1st Cir.1976); State, Dept. of Social Services v. Matthews, 96-711, p. 5 (La.App. 5th Cir.1/28/97), 688 So.2d 137, 140; State Through Louisiana Div. of Health and Human Resources v. Simmons, 542 So.2d 1150, 1153 (La.App. 2d Cir.1989). The justification for requiring a separate suit is so that a hearing can be held to ascertain facts regarding whether defendants were properly served. See Decca Leasing Corp. v. Torres, 465 So.2d 910, 914 (La.App. 2d Cir.1985), writ denied, 468 So.2d 1211 (La.1985).

In this case, we note that service may have been properly effected. See La. R.S. 13:3204, addressing service of process pursuant to the Long Arm Statute and La. C.C.P. art. 1261, addressing service on a foreign corporation. However, the record before us does not contain sufficient information to resolve that issue. The trial court did not conduct a hearing to address sufficiency of service because service was not challenged until this appeal. Accordingly, the jurisprudence appropriately directs that we do not address whether service was validly effected. We do conclude, however, |sthat the judgments challenged on appeal are invalid because plaintiffs failed to comply with La. R.S. 13:3205.

When plaintiffs filed both their May 22, 2000 and August 9, 2000 motions for preliminary default judgment, the May 4, 2000 affidavits of Derek Z. Lee were the only affidavits that had been filed into the record. While these affidavits state that Mr. Lee served the process on both CoinBank and Cash Technologies on April 19, 2000, these affidavits do not meet the strict requirements of La. R.S. 13:3205. They do not show the place of service of process. Additionally, while Lee’s affidavits aver that process was “personally served” on the individual defendants, the affidavits only make reference to the person of Andre Doe, with no explanation of Doe’s relation to the defendants.

The provisions of La. R.S. 13:3205 are mandatory. Clay v. Clay, 389 So.2d at 37. A preliminary default judgment obtained without strict compliance with the procedural requirements of La. R.S. 13:3205 is an absolute nullity. Lee’s affidavits do not satisfy the mandate of La. R.S. 13:3205. Therefore, both the May 22, 2000 and August 9, 2000 judgments of preliminary default are absolute nullities. A judgment confirming a ^default judgment that is obtained on the basis of an invalid preliminary default is, likewise, a nullity. Livingston Parish Police Jury v. Patterson, 589 So.2d 9, 10 (La.App. 1st Cir.1991); Davis v. Tele-Total, Inc., 465 So.2d 948, 949 (La.App. 2d Cir.1985). Therefore, the May 25, 2000 and August 15, 2000 judgments confirming the null preliminary default judgments are also invalid. Thus, we vacate these judgments and remand this matter. If further proceedings result, the trial court can appropriately determine whether there is a basis for exercising personal jurisdiction over the defendant corporations based on the sufficiency of service and the method of proof thereof. See Bickford v. Lutz, 339 So.2d at 1272.

III. CONCLUSION

For these reasons, we vacate the May 25, 2000 and August 15, 2000 default judgments that confirmed the invalid May 22, 2000 and August 9, 2000 preliminary default judgments. We remand this matter for further proceedings consistent with the opinions expressed herein. Assessment of appeal costs are to await a final determination of this matter.

VACATED AND REMANDED.

      . Although the petition requested service on Bruce Korman as agent for service of process for both Cash Technologies and CoinBank, the record contains no information verifying that Korman is the registered agent for service of process for the defendant corporations.

      . Counsel for both plaintiffs and defendants filed a May 10, 2002 joint “Narrative of Facts” which includes this assertion.

      . There is no evidence establishing that Andre Doe was an officer, director, or employee of the defendant corporations. Additional information regarding service of process on the defendants was filed into the record on December 20, 2001, following the defendants' appeal of the trial court's judgments confirming the default judgments. This information included supplemental affidavits by Mr. Lee and affidavits regarding process that had been mailed to the defendant corporations. This information demonstrates that defendants attempted to frustrate plaintiffs’ service of process but it cannot be considered in determining the validity of the May 22, 2000 and August 9, 2000 preliminary default judgments.

      . In the event that further litigation addressing sufficiency of service results, we note that a litigant may not defeat service by merely refusing to accept a letter containing a citation. McFarland v. Dippel, 99-0584, p. 6 (La.App. 1st Cir.3/31/00), 756 So.2d 618, 622, writ denied, 00-1794 (La.9/29/00), 770 So.2d 349.


source: Caselaw Access Project

author: JgPETTIGREW, J.

license: Public Domain

text:
    Cynthia Diane Hutcheson ARNOLD v. Jeffrey Travis ARNOLD.
    No. 2002 CA 0819.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.

      Page McClendon, Ponchatoula, for Plaintiff-Appellant Cynthia Diane Hutche-son Arnold.
    Karen Fulda, Ponchatoula, for Defen-danb-Appellee Jeffrey Travis Arnold.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   JgPETTIGREW, J.

In this case, plaintiff appeals from the trial court’s judgment granting defendant’s motion to terminate spousal support. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The parties in this case, Cynthia Diane Hutcheson Arnold and Jeffrey Travis Arnold, were divorced by virtue of a judgment of divorce signed by the trial court on June 21, 2000. Both Cynthia and Jeffrey signed the judgment of divorce, which, in addition to granting the divorce, also addressed ancillary matters such as custody and the settlement of the community property. The judgment granted the parties joint custody of their minor child, Katie, with Jeffrey being designated as the domiciliary parent. Further, with regard to spousal support, the judgment specifically provided as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant, Jeffrey Travis Arnold, be and is hereby ordered to pay alimony in the amount of THREE HUNDRED AND NO/100 ($300.00) DOLLARS per month unto Petitioner, Cynthia Diane Hutche-son, payable on the 1st day of each month, and each subsequent month thereafter, beginning on the 1st day of April, 2000 for a period of forty-eight (48) consecutive months[.]

Subsequent to the signing of this judgment, Jeffrey filed a pleading entitled “Petition For Temporary Restraining Order, Rule To Show Cause Why Preliminary And Permanent Injunction Should Not Issue, To Set Child Support And Eliminate Obligation Of Spousal Support.” With regard to the issue of spousal support, Jeffrey alleged that Cynthia was living with a man named Van Pritchard, Jr. and, thus, was no longer entitled to spousal support. The matter proceeded to a hearing on March 1, 2001. Judgment was subsequently signed by the trial court on November 5, 2001, granting Jeffrey’s request that spousal support be terminated. Said termination was granted retroactive to the date of the filing of the petition, July 18, 2000. It is from this judgment that Cynthia has appealed, assigning the following specifications of error:

1. The trial court erred in failing to find that payment of alimony (a/k/a spousal support) for a certain period of time and for a set amount was lump sum alimony and therefore not subject to termination.
|o2. Alternatively, the trial court erred in failing to find that the amount of alimony (a/k/a spousal support) stipulated to by the parties and reduced to a consent judgment was a binding contract between the parties and not subject to modification.
3. The trial court erred in finding that the defendant/mover carried his burden of proving a significant change in circumstances of at least one of the parties, from the time of the judgment to the time of trial.

DISCUSSION

At the outset, we note that the petition for divorce in the instant case was filed on March 28, 2000, after the effective date of 1997 La. Acts No. 1078 (the spousal support revision act), which amended and reenacted La. Civ.Code arts. Ill through 117. Under the old law, as it existed prior to January 1, 1998, the date the spousal support revision [4act became effective, La. Civ.Code art. 112 provided for both permanent periodic alimony and lump sum alimony. A lump sum award required the parties’ consent thereto, but vested in the claimant spouse a right that was neither terminable upon remarriage or death nor subject to any modification.

[4] With the passage of 1997 La. Acts No. 1078, however, the laws governing spousal support were changed in several respects. The authorization”given the trial court in former Article- 112(B) to award alimony in a lump sum when the parties consented thereto is not found anywhere in the amended and reenacted articles dealing with spousal support. Rather, the awarding of rehabilitative support, with or without the parties’ consent, is now permitted under the terms of Article 112, as amended, which provides as follows:

A. The court must consider all relevant factors in determining the entitlement, amount, and duration of final support. Those factors may include:
(1) The needs of the parties.
(2) The income and means of the parties, including the liquidity of such means.
(3) The financial obligations of the parties.
(4) The earning capacity of the parties.
(5) The effect of custody of children upon a party’s earning capacity.
(6) The time necessary for the claimant to acquire appropriate education, training, or employment.
(7) The health and age of the parties.
(8) The duration of the marriage.
(9)The tax consequences to either or both parties.
B. The sum awarded under this Article shall not exceed one-third of the obligor’s net income.

As noted in the Revision Comments following Article 112, “[t]he sixth factor listed in this Article, coupled with the word ‘duration’ in the first sentence of the Article, permits the court to award rehabilitative support and other forms of support that terminate after a set period of time.” The Revision Comments to Article 112 continue, noting that “[ojther factors may also form the basis of a fixed-duration award, but it is contemplated that such awards will ordinarily be based upon the assumption that certain facts (such as employment of the recipient) will occur within the term fixed in the judgment awarding support.” La. Civ.Code art. 112, Revision Comment (c). Thus, the Legislature clearly I.^intended to retain the court’s authority to order a fixed-duration award of rehabilitative support under certain circumstances.

In her first assignment of error, Cynthia argues that the trial court erred in failing to find that the spousal support ordered in this case was a lump sum award and therefore not subject to termination. She contends that because Jeffrey was ordered to pay spousal support in the amount of $300.00 per month for exactly 48 months, it was a lump sum award that is neither terminable upon remarriage or death nor subject to any modification. This argument is completely without merit.

As previously indicated, the Legislature has effectively abolished the concept of a lump sum award of spousal support. Rather, the courts can now, under certain circumstances, award rehabilitative spousal support that terminates after a set period of time. Accordingly, the argument that the spousal support ordered in the instant case was a lump sum award that is not subject to termination must fail. Moreover, there is no indication in the record of the instant case that the award of spousal support was in any way intended to be rehabilitative, and therefore, it does not qualify as such under the current law. Thus, our inquiry turns to whether there is evidence in the record to support the trial court’s decision to terminate the award in question. We note that the trial court offered no oral or written reasons indicative of why it granted Jeffrey’s request that spousal support be terminated. However, Jeffrey based his rule to terminate spousal support on the fact that Cynthia was currently living with another man and was no longer entitled to spousal support. Therefore, we will focus our attention accordingly in determining whether the trial court was in error in terminating Jeffrey’s obligation of spousal support.

Prior to the application of 1997 La. Acts No. 1078, Article 112(A)(4) provided that “[permanent periodic alimony ... terminates if the spouse to whom it has been awarded remarries or enters into open concubinage.” However, the Louisiana Civil Code no longer uses the phrase “open concubinage” to identify a manner of extinguishment of the spousal support obligation. Rather, with regard to the modification or extinguishment of a spousal support obligation, La. Civ. Code art. 115 requires “a judicial determination that |fithe obligee has cohabited with another person of either sex in the manner of married persons.” According to Revision comment (e), the new language used in Article 115, i.e., “cohabited ... in the manner of married persons,” means to live together in a sexual relationship of some permanence. It does not mean just acts of sexual intercourse, and it obviates the difficulties of proving absence of concealment inherent in the term “open concubinage.”

With regard to her living arrangements during the time in question, Cynthia testified that within one month of moving out of the marital domicile, her boyfriend, Van Pritchard, Jr., moved into her apartment with her. In fact, Cynthia and Van were still living together at the time of the hearing on March 1, 2001. Cynthia indicated that Van kept his personal belongings in the apartment; such as clothing, shaving cream, and razors. Cynthia acknowledged that her daughter Katie had visited with her in the apartment that she and Van shared and was aware that Van was living there. Van also testified about their living arrangements, noting that he and Cynthia never hid the fact that they were living together. Jeffrey testified that he knew that Cynthia was involved with another man following their breakup, and indicated that shortly after signing the divorce papers, he learned that Cynthia and Van were living together.

Following our review of the record in this case, we are satisfied that there is sufficient evidence to support a finding that Cynthia and Van “cohabited ... in the manner of married persons” as is required under Article 115 for the extin-guishment of the obligation of spousal support. Having found no error in the trial court’s termination of spousal support pursuant to Article 115, we need not address the remaining issues raised by Cynthia on appeal.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the trial court granting Jeffrey’s request to terminate spousal support. All costs associated with this appeal are assessed against plaintiff-appellant, Cynthia Diane Hutcheson Arnold.

AFFIRMED.

      . Other ancillary matters were addressed in the November 5, 2001 judgment. However, only that portion of the judgment dealing with the termination of spousal support is before us now on appeal.

      . Prior to its amendment by 1997 La. Acts No. 1078, Article 112 provided, in pertinent part, as follows:
      Art. 112. Alimony after divorce; permanent periodic; lump sum.
      A. (1) When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, permanent periodic alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse.
      (2)In determining the entitlement and amount of alimony after divorce, the court shall consider:
      (a) The Income, means, and assets of the spouses;
      (b) The liquidity of such assets;
      (c) The financial obligations of the spouses, including their earning capacity;
      (d) The effect of custody of children of the marriage upon the spouse’s earning capacity;
      (e) The time necessary for the recipient to acquire appropriate education, training, or employment;
      (f) The health and age of the parties and their obligations to support or care for dependent children; and
      (g) Any other circumstances that the court deems relevant.
      (3) In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
      (4) Permanent periodic alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries or enters into open concubinage.
      B. (1) The court may award alimony in lump sum in lieu of or in combination with permanent periodic alimony when circumstances require it or make it advisable, and the parties consent thereto. In determining whether to award lump sum alimony, the court shall consider the needs of the claimant spouse and the financial condition of the paying spouse. In awarding lump sum alimony in lieu of or in combination with permanent periodic alimony, the court shall consider the criteria enumerated in Paragraph A of this Article, except the limitation to one-third of the paying spouse’s income, in determining entitlement and amount of alimony.
      (2) A lump sum award may consist of immovable or movable property or may be a monetary award payable in one payment or in installments.
      (3) A judgment which awards lump sum alimony shall vest in the claimant spouse a right which is neither terminable upon either spouse's remarriage or death, nor subject to modification.


author: J^FITZSIMMONS, J.

text:
    Nelson HYMEL, Jr. v. DEPARTMENT OF PUBLIC SAFETY
    No. 2002 CA 0734.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.
    Mark D. Plaisanee, Baker, Counsel for Plaintiff-Appellant Nelson Hymel, Jr.
    Michael C. Barron, Baton Rouge, Counsel for Defendant-Appellee Department of Public Safety.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J^FITZSIMMONS, J.

After his vehicle was stopped by a law enforcement officer, plaintiff-appellant, Mr. Nelson Hymel, Jr., refused to take the chemical test for intoxication. Mr. Hymel failed the field sobriety tests and was arrested for DWI. The officer seized Mr. Hymel’s driver’s license but in its place, the officer issued a temporary license, which was valid for thirty days. Mr. Hy-mel made a timely request for review of the suspension of his driver’s license to the Department of Public Safety and Corrections (department). After an administrative hearing, the officer’s actions were found to be reasonable and the suspension proper. Mr. Hymel then petitioned the District Court for the Nineteenth Judicial District for a de novo judicial review. The department was named as the defendant.

The district court, relying on Butler v. Department of Public Safety and Corrections, 609 So.2d 790 (La.1992), determined that the controlling statute, Louisiana Revised Statutes 32:667, was civil, and not penal in nature. The court reasoned that the statute was to be interpreted to give meaning to the intentions of the legislation, rather than the strict interpretation reserved for penal statutes. After considering all the provisions of the applicable statute and the intent of the legislation, the district court found that the statute did allow for suspensions after requests for hearings. The suspension was “upheld and the petitioner’s request for de novo review [was] dismissed,” with prejudice.

Mr. Hymel appealed. He argues that Louisiana Revised Statutes 32:667 is penal in nature and must be construed strictly. Under a strict interpretation, with a focus on 32:667B, he argues that the statute provides no authority for suspension of a driver’s license after a request for a hearing. Thus, the trial court erred by suspending his license.

After a thorough review of the record and applicable law, we disagree with Mr. Hymel’s analysis. We affirm the judgment of the district court.

^Louisiana Revised Statutes 32:667A(1) requires an officer to seize the arrestee’s driver’s license, if the arrestee “refuses to submit to an approved chemical test for intoxication .... ” After the seizure, the officer “shall issue in its place a temporary receipt of license .... ” La. R.S. 32:667A(1). “The temporary receipt shall also provide and serve as notice to the person that he has not more than fifteen days from the date of arrest to make written request to the [department] for an administrative hearing in accordance with the provisions of R.S. 32:668.” La. R.S. 32:667A(2). If such written request is not made, Louisiana Revised Statutes 32:667B(l)-(4) provides different options for suspensions based on the facts of the particular case. If a request for a hearing is timely made, “the department shall issue a document extending the temporary license, which shall remain in effect until the completion of administrative suspension ... proceedings.” La. R.S. 32:667D (emphasis added). “The department shall provide for.a hearing to determine suspension ... of driving privileges,” to “be held within ninety days of the date of arrest .... ” La. R.S. 32:667E (emphasis added). Louisiana Revised Statutes 32:668A lists specific issues to be considered at the hearing, including whether the arrestee refused to take the approved chemical test. If the suspension is found to be otherwise proper, the department “may” choose between various options for the suspension. Those options depend on the particular facts involved. La. R.S. 32:668B. “After a person has exhausted his remedies with the department, [which includes the administrative hearing process,] he shall have the right to file a petition in the appropriate court for a review of the final order of suspension or denial by the [department].” La. R.S. 32:668C (emphasis added).

Initially, we note that the Louisiana Supreme Court has specifically determined that the license suspension provision of Louisiana Revised Statutes 32:667 is civil in nature. Butler v. Department of Public Safety and Corrections, 609 So.2d at 795-796. Therefore, after considering the statute in its |4entirety, and other applicable law, the provision in question must be interpreted in a manner consistent with “the express terms of the law and with the obvious intent of the legislature in enacting it.” Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1129.

After a thorough review of the record and the applicable law, it is clear that the interpretation by Mr. Hymel would lead to an absurd result and frustrate the intention of the legislature. A reading of all of the provisions of Louisiana Revised Statutes 32:667, and the relevant portions of 32:668, evince the legislative intention to authorize suspension post-hearing. See Meilleur v. Louisiana Department of Public Safety, 613 So.2d 281, 282-83 (La.App. 3d Cir.), writ denied, 614 So.2d 1261 (La.1993). Specifically, upon receipt of a hearing request, Louisiana Revised Statutes 32:667D extends the temporary license only “until” the suspension proceedings are complete. The expressed purpose of the hearing is to determine the very issue of the suspension of driving privileges. La. R.S. 32:667E. The hearing does allow the arrestee “to have the reasonableness of the suspension determined .... ” Butler, 609 So.2d at 792. However, the mere request for a hearing does not act as a bar or erasure of a proper suspension. If the request alone acted as an automatic prohibition of suspension, the subsequent hearing and judicial review afforded the arres-tee would serve no purpose. See Meilleur v. Louisiana Department of Public Safety, 613 So.2d at 283. Thus, we agree with the district court’s judgment in favor of the department.

For these reasons, the judgment is affirmed. The costs of the appeal are assessed to plaintiff-appellant, Mr. Hymel.

AFFIRMED.


author: _[iPETERS, J.

text:
    STATE of Louisiana v. Carrol J. VINCENT.
    No. 02-1452.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2003.
    Rehearing Denied May 21, 2003.

      Bret L. Barham, Assistant Attorney General, Baton Rouge, LA, for State of Louisiana.
    Carrol J. Vincent, in Proper Person, Sul-phur, LA, for Carrol J. Vincent.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   _[iPETERS, J.

The State of Louisiana charged the defendant, Carrol J. Vincent, with simple battery, a violation of La.R.S. 14:35. After the trial court granted the defendant’s motion to quash the bill of information based on the state’s failure to timely institute trial, the state filed this appeal. For the following reasons, we reverse the trial court and remand the matter for further proceedings.

In this case, the state filed a bill of information charging the defendant with simple battery on February 6, 2001. The defendant filed three motions to quash the bill of information based on the running of the time limitations for commencing trial. The defendant filed the first motion to quash pro se on June 25, 2002, the second motion to quash through his legal counsel on August 6, 2002, and his third motion to quash pro se on September 17, 2002. The trial court granted the motion (or motions) after a September 27, 2002 hearing.

Louisiana Code of Criminal Procedure Article 578(3) provides: “Except as otherwise provided in this Chapter, no trial shall be commenced ... [i]n misdemeanor cases after one year from the date of institution of the prosecution.” The offense of simple battery is a misdemeanor. La.R.S. 14:2(4) & (6); La.R.S. 14:35. Prosecution may be instituted by the filing of a bill of information. La.Code Crim.P. art. 382(A).

Thus, absent interruption or suspension of the one-year period provided for in La. Code Crim.P. art. 578(3), the state had until February 6, 2002, in which to commence the trial on the merits. However, the one-year period may be suspended:

When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.

La.Code Crim.P. art. 580.

In State v. Brooks, 02-0792, p. 6 (La.2/14/03), 838 So.2d 778, 782, our supreme court explained:

For purposes of art. 580, a preliminary plea is any pleading or motion filed by the defense which has the effect of delaying trial. These pleadings include properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars. Joint motions for a continuance fall under the same rule.

(Citations omitted.)

Thus, in order to determine whether a suspension of the time limit occurred in this case, we must consider the motions filed by the defendant.

On February 20, 2001, the defendant, through his counsel of record, filed a motion to recuse the district attorney’s office from the prosecution of the charge and a motion to compel the disclosure of the initial police report. The defendant supplemented the motion to recuse the district attorney’s office with a pro se filing on August 27, 2001. The trial court granted the motion to recuse at a hearing held on September 28, 2001. Because we conclude that the motion to recuse is a “preliminary plea” for purposes of La.Code Crim.P. art. 580, the state had one year from September 28, 2001, in which to commence trial. Additionally, when the defendant filed his June 25, 2002 motion to quash, he again suspended the running of the time limitations on commencing trial. Therefore, we conclude that the trial court erred in granting the defendant’s motion to quash. Because we so conclude, we need not consider whether other defense motions, ruled upon or pending, have the same effect.

DISPOSITION

We reverse the trial court’s grant of the defendant’s motion to quash the bill of information and remand this matter to the trial court for further proceedings.

REVERSED AND REMANDED.


author: ! .WILLIAMS, J.

text:
    Barbara PAYNE and Clarence Payne (Employee: Daniel Payne), Plaintiff-Appellant, v. Sam David Racing STABLE, Defendant-Appellee.
    No. 36,831-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.
    William T. Allison, Shreveport, for Appellant.
    Kim L. Purdy-Thomas, for Appellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   ! .WILLIAMS, J.

In this workers’ compensation case, the claimants, Clarence and Barbara Payne, appeal a summary judgment in favor of their deceased son’s employer, Sam David Racing Stables, and its insurer, Continental Casualty Company. The Workers’ Compensation Judge (“WCJ”) found that the law in effect at the time of the deceased employee’s accident governed the surviving parents’ claim for death benefits. For the following reasons, we reverse and render.

The sole issue presented by this appeal is whether the amount of death benefits authorized by LSA-R.S. 23:1231, as amended, is applicable to this claim, where the work-related accident occurred prior to the effective date of the amendment, but the worker’s death occurred after the effective date of the amendment. We hold that because the claimants’ cause of action arose at the time of their son’s death, which was after the effective date of the amendment to LSA-R.S. 23:1231, the claimants are entitled to the amount of death benefits authorized by the statute, as amended. Consequently, the claimants’ partial motion for summary judgment should have been granted and the defendants’ motion for summary judgment was improvidently granted.

FACTS

On January 10, 2001, Daniel Payne (“Daniel”) was kicked in the chest by a horse at his place of employment, Sam David Racing Stables. The employer paid workers’ compensation benefits and medical expenses. On January 12, 2002, Daniel died.

The parties entered into a partial settlement whereby the employer Land its insurer paid the claimants death benefits in the amount of $20,000 each, in accordance with the provisions of LSA-R.S. 23:1231 as it existed at the time of Daniel’s work-related injury. They also paid $5,000 for burial expenses. The claimants reserved their right to pursue the balance of the death benefits authorized by Section 1231, as amended.

DISCUSSION

Plaintiffs contend the WCJ erred in denying their motion for summary judgment. They argue that the statute in effect at the time that their cause of action for death benefits arose governs the amount of benefits to which they are entitled.

A motion for summary judgment is proper when the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B)(C)(1).

At the time of Daniel’s accident on January 10, 2001, LSA-R.S. 23:1231 read, in pertinent part:

(2) However, if the employee leaves no legal | .^dependents, the sum of twenty thousand dollars shall be paid to each surviving parent of the deceased employee, ...

Acts 1992, No. 431 § 1 (emphasis added).

At the time of Daniel’s death on January 12, 2002, LSA-R.S. 23:1231 had been amended, effective August 15, 2001, and now reads, in pertinent part, as follows:

(2) However, if the employee leaves no legal dependents entitled to benefits ... the sum of seventy-five thousand dollars shall be paid to each surviving parent of the deceased employee, ...

Acts 2001, No. 1156, § 1 (emphasis added).

Our Courts have consistently held that the provisions of Section 1231 create a cause of action for death benefits. The death of the worker is a condition precedent to the creation of the cause of action. Williams v. Louisiana Office of Risk Management, 93-795 (La.App. 3d Cir.3/2/94), 634 So.2d 1260; Tran v. Avondale Shipyards, Inc., 95-542 (La.App. 5th Cir.11/15/95), 665 So.2d 507; Estate of Dean v. K-Mart Corporation, 96-142 (La.App. 6th Cir.7/30/96), 678 So.2d 599.

In the present case, the claimants’ cause of action, i.e., their son’s death, arose after the effective date of the amendment to LSA-R.S. 23:1231. Therefore, the amended statute governs the amount of the award for death benefits. As stated in Williams, supra and Estate of Dean, supra, “[A]n examination of the prospective versus the retrospective application of that law is unnecessary.” (emphasis added)

Here, each surviving parent was entitled to death benefits in the amount of seventy-five thousand dollars in accordance with the statute. Consequently, appellants were entitled to judgment as a matter of law and the WCJ erred in concluding otherwise.

CONCLUSION

For the above reasons, the summary judgment by the Office of Workers’ Compensation in favor of the defendant, Sam David Racing Stables, is reversed. Summary judgment is hereby rendered in favor of the 1 ¿claimants, Clarence Payne and Barbara Payne, awarding each claimant the sum of $75,000 in death benefits based on the work-related death of their son, Daniel Payne. Costs of this appeal are assessed to the defendant/appellee, Sam David Racing Stables.

REVERSED AND RENDERED.


author: I,CARAWAY, J.

text:
    Michelle PLATT, Plaintiff-Appellee, v. INTERSTATE DODGE, Defendant-Appellant.
    No. 37,059-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      M. Randall Donald, Monroe, for Appellant.
    Michelle Platt, in Proper Person.
    Before WILLIAMS, CARAWAY and KOSTELKA (Pro Tempore), JJ.
   I,CARAWAY, J.

In this case, the defendant undertook repair work on the sunroof of plaintiffs automobile which allegedly resulted in a severe water leak damaging the vehicle. The trial court held the defendant liable for the damage, and defendant appeals. For the following reasons, we amend the damage award in part and affirm the ruling of the trial court.

Facts

In February, 2000, Michelle Platt purchased a used 1998 Dodge Avenger from Car Town. One year later, she asked the service department at the Dodge dealership where she worked, Interstate Dodge (“Interstate”), to repair some minor problems. The car was still covered under the manufacturer’s standard 36,000 mile warranty.

One of the vehicle’s problems noted by Michelle was a “very mild leak” in the sunroof. She testified that “every three or four times it rained ... one or two beads of water [would] form on the screw ...” The service technician satisfactorily completed the other repairs, most of which were covered by the warranty. However, the sunroof repair was postponed a few days pending receipt of factory replacement parts. At this point, the parties presumed that the sunroof was factory installed and therefore covered by the manufacturer’s warranty. After obtaining the replacement parts, the service technician worked on the car for the second time. When he disassembled the sunroof, its gasket and the new gasket “did not match up.” He therefore discovered only after disassembling the sunroof that the sunroof was “after | ¿market,” meaning that it had not been factory-installed and was not covered by the Dodge warranty.

After the above discovery, the service technician, Jimmy Broussard, put the old gasket back in and reassembled the sunroof. Michelle testified that when she was told it was an after-market sunroof, she said “that’s fine, just put it back together, like it was,” and she would “handle it.” However, within a day or two following the work on the sunroof, when she took the car through the carwash, the sunroof leaked badly, flooding the car’s interior with water. Because of the flooding, the carpet mildewed, the roof trim was “spongy,” and the console lights, lighter, and dome lights no longer worked. The interi- or roof was water-stained. Further, Michelle testified that she couldn’t drive the car when it rained because it would flood on the inside. She said the sunroof leaked heavily around all four sides while she drove in the rain.

After the initial damage to the car from the carwash episode, Interstate worked on the car twice more attempting to adjust the sunroof so it would not leak so severely. Michelle testified that after two more service visits, Interstate told her they were going to quit working on it, because “every time they touched it, it got worse.” Michelle became so upset upon hearing this, she quit her job.

The only defense witness was Interstate’s service manager, Mr. Hodge, who described the various service repairs performed on Michelle’s car, including the work covered by the warranty. Although Michelle was charged for replacing the alternator and drive belts, because they were nonjwarranty3 items, she was not charged for the other, warranted repairs nor for the work on the sunroof. The problem consisted of leaking around the weather stripping. They only discovered the sunroof was after-market after the gasket was pulled out. Hodge testified that there was no way to tell whether or not it was factory or after-market until you took it apart. They put it back together and told Michelle it was an after-market sunroof. When Michelle returned the car after the carwash leak, Hodge then worked on it himself and attributed the leaking problem to excessive wear on one of the slide bars on the inside of the sunroof.

When Interstate attempted to introduce Hodge’s handwritten narrative describing the repairs into evidence, Michelle objected because the notes were prepared about a month afterwards. Thereafter, the court refused to admit it and defense counsel proffered the statement as Exhibit D-3. On cross-examination, Hodge confirmed that Michelle quit when they refused to repair her car.

Following trial, without written reasons, the court rendered judgment in Michelle’s favor, finding Interstate hable for $1,500.00 in damages. Interstate suspen-sively appeals. It initially asserts that, because of the lack of warranty regarding the sunroof, there is no basis for liability. It also asserts that the plaintiffs proof of damages was insufficient.

Discussion

The trial court rendered no findings of fact, and Interstate failed to request such findings of fact and reasons for judgment pursuant to La. C.C.P. art.1917. Nevertheless, we must give deference to the trier-of-fact Runder the manifest error standard for any facts in the record which reasonably support the finding of liability. Bolton v. Louisiana State Univ. Medical Ctr., 601 So.2d 677 (La.App. 2d Cir.1992).

A contract for work or service carries an implied obligation on the contractor to perform in a workmanlike manner, in default of which he must respond in damages for the losses that may ensue. La. C.C. arts.1994 and 2769; Gagliano v. Namias, 479 So.2d 23, 25 (La.App. 4th Cir.1985); Rogers v. Nelson Dodge, Inc., 407 So.2d 443 (La.App. 3d Cir.1981). In addition to contractual liability, this court has recognized that Interstate’s actions can also be considered as giving rise to a tort for the want of skill. Moore v. McCullough, 573 So.2d 598 (La.App. 2d Cir.1991); La. C.C. arts. 2315 and 2316. There must be some showing of want of skill, efficiency or knowledge or some lack of ordinary care in the performance of the work or in the selection of suitable equipment or materials. Gagliano, supra.

The trial court could conclude that Interstate undertook the repairs without properly recognizing that the sunroof was not covered by the factory warranty. Significantly, Interstate did not call Jimmy Broussard, who performed the initial dis-assembly of the sunroof, to explain why he did not recognize the sunroof as a non-Chrysler product. In any event, if the sunroof could not be identified as a Chrysler product before its disassembly, the evidence indicates that Michelle was not advised at the outset that such disassembly was required to determine whether the warranty applied. Nor Rwas she ever advised that removal and reinstallation of the same gasket might exacerbate the problem.

The trial court could also conclude that faulty workmanship occurred during Broussard’s reassembly of the gasket. Within days of his work, the vehicle suffered significant water damage. Reinstalling the used gasket apparently increased the likelihood of leakage. There was no evidence that Broussard tested the sunroof for leakage, and Michelle was not warned of the problem.

Under these circumstances, we believe that Interstate had a duty, attendant to its attempted performance under the Dodge warranty agreement, to fully advise Michelle of the above risks. The cause of the damage to the interior of the vehicle is attributable to Interstate’s breach of that duty, not a result of the pre-existing condition of the sunroof and its seal.

In reaching the above conclusion regarding liability, we also reject Interstate’s assignment of error pertaining to the trial court’s exclusion of the written report of Hodge’s work on the sunroof. The report was compiled by Hodge long after Broussard’s disassembly of the sunroof. Hodge’s subsequent repair efforts are not relevant to the conclusion concerning Broussard’s faulty workmanship which the trier-of-fact could determine.

Next, Interstate argues that there was no evidence presented in support of the $1500 damage award. ° Incidental to this argument, Interstate asserts that the trial court should have excluded the photos of the interior | ¡¡damage to the vehicle because of an insufficient evidentia-ry foundation for the photos. Those photos were taken by Michelle after the work was done on the sunroof. Generally, photographs are admissible when they are shown: (1) to have been accurately taken; (2) to be a correct representation of the subject in controversy; and (3) to shed light upon the matter before the court. Rudd v. Atlas Processing Refinery, 26,048 (La.App.2d Cir.9/21/94), 644 So.2d 402, writ denied, 94-2605 (La.12/16/94), 648 So.2d 392. From Michelle’s testimony, we are satisfied that these criteria were met and the trial court properly admitted the photos into evidence.

From the testimony of Michelle and the photos of her car’s interior, we believe the trial court had sufficient evidence to make a nominal award for the damage to the car’s interior. Additionally, the trial court could award damages for Michelle’s inconvenience caused by the leaking roof. She testified that she would not use the vehicle when it rained.

The remaining item of damage claimed by Michelle is the replacement cost of a sunroof. At trial, over objection by Interstate, she testified that she had received an estimate of $599 for the replacement cost of the sunroof. Interstate now re-urges its objection to this item of damage.

From our consideration of the warranty obligation and the breach of Interstate’s duty to Michelle arising from its initial work on the sunroof, we find that the evidence clearly establishes that the existence of the Dodge warranty did not necessitate the replacement of the after-market sunroof. Interstate’s duty was to have recognized tiie after-market sunroof before attempting its repair or to have warned Michelle of the greater potential for | .¡leakage following the mistaken disassem-bly of the sunroof and the disturbance of the gasket seal. While the breach of Interstate’s duty makes it liable for the subsequent water damage to the vehicle, Michelle was responsible for the repair or replacement of the after-market sunroof which was not covered by the Dodge warranty.

Accordingly, the trial court’s award of damage is reduced to $900 and the judgment as amended is affirmed. Costs are assessed to appellant.

JUDGMENT AMENDED, AND AS AMENDED, AFFIRMED.


author: h STEWART, J.

text:
    Ella Mae AUTMAN, Plaintiff-Appellant, v. BOARD OF SUPERVISORS, et al, Defendants-Appellees.
    No. 36,981-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.

      Dianne Hill, Monroe, for Appellant.
    Richard P. Ieyoub, Attorney General, Richard A. Bailly, Assistant Attorney General, for Appellees Board of Supervisors LSU and E.A. Conway Medical Center.
    Before BROWN, STEWART and DREW, JJ.
   h STEWART, J.

Ella Mae Autman (“Autman”) appeals the trial court’s grant of E.A. Conway Medical Center’s (“Conway”) motion for involuntary dismissal of her suit under La. C.C.P. Art. 1672. Finding no merit in the appellant’s claims, we affirm.

FACTS

On April 15, 1999, Autman, then eighty years old, was visiting a niece who was hospitalized in Conway. She was accompanied by her friend, Huey Ross. After their visit, they boarded an elevator on the third floor. As the elevator doors closed, an unidentified woman attempted to stop the elevator by holding the doors. This caused the elevator to jerk violently. The elevator proceeded downward between the second and third floors before going back up to the third floor where the woman got on the elevator. The elevator then proceeded unabated to the first floor. When the elevator was shaken, Autman was thrown into the door and injured her wrist and shoulder. She was treated in the emergency room of St. Francis Hospital and was later seen by her own doctor, J.D. Patterson.

Autman sued Conway to recover damages, including her medical expenses arising from the accident. Following the close of the plaintiffs case at trial, the defendant moved for an involuntary dismissal of her case pursuant to La. C.C.P. Art. 1672(B). The trial court granted the motion, and this appeal ensued.

1 ¡¡.DISCUSSION

Involuntary Dismissal

An appellate court should not reverse an involuntary dismissal based on La. C.C.P. Art. 1672(B) in the absence of manifest error. Davies v. Johnson Controls, Inc., 36,498 (La.App.2d. Cir.10/23/02), 830 So.2d 462; Wright v. Pratt, 33,471 (La.App.2d. Cir.8/23/00), 766 So.2d 668. If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Davies, supra; Fite v. Louisiana Title Co., 36,393 (La.App.2d Cir.9/18/02), 828 So.2d 165.

Autman contends that the trial court erred by involuntarily dismissing her suit under La. C.C.P. Art. 1672(B) which states:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Autman asserts that she presented a pri-ma facie case of liability by a preponderance of the evidence. However, the trial court concluded that she did not prove the existence of any defect in the elevator or that the hospital | shad prior notice of the defect. The trial court also found the doctrine of res ipsa loquitur inapplicable.

We conclude that the evidence presented does not support Autman’s contention that she met her burden of proof. In fact, her version of the events giving rise to her injuries was contradicted by her own witness. Specifically, Autman claimed that the elevator was shaking all the way up before she visited her niece. Henry Ross, who had accompanied her to the hospital, stated that the elevator “went up pretty good.” Ross’ testimony was that the problems with the elevator began when the young lady “snatched” the elevators doors open. Moreover, there was no testimony presented that demonstrated any defect in the elevators. They were inspected yearly by state elevator inspectors and repaired as necessary. The evidence presented demonstrates that the injury occurred through human intervention rather than mechanical malfunction. In the trial court’s reasons for judgment, the judge concluded that the woman who opened the elevator door was the only person who could have been at fault for Autman’s injuries.

We also find that the trial court was correct in not invoking the doctrine of res ipsa loquitur. To invoke the doctrine of res ipsa loquitur three requirements must be met: 1) the circumstances surrounding the incident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence on the part of the defendant; 2) the defendant had exclusive control over the thing causing the injury; and 3) the circumstances are such that the only reasonable and fair conclusion is the Raccident was due to a breach of duty on the defendant’s part. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992). There were no reports of any previous malfunction of the elevator at issue before April 15, 1999, or at any time after. Consequently, there was nothing to show any negligence on the part of the defendant. We faced a similar situation in Townsend v. Westinghouse Elevator Corp., 25,966 (La.App.2d. Cir.8/17/94), 641 So.2d 1022. In Townsend, a plaintiff was injured when an elevator stopped suddenly between floors and jarred her back. This court found that the elevator did not pose an unreasonable risk of harm. Moreover, we understand from Spott, supra, that the mere occurrence of an accident does not prove a defect. The doctrine of res ipsa loquitur was found to be inapplicable in those cases and we also find it to be inapplicable in the instant matter. The plaintiff failed to meet her initial burden of proof. Thus, the trial court did not commit manifest error by involuntarily dismissing her claim.

CONCLUSION

Based on the foregoing, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.