author: PICKETT, Judge. THIBODEAUX, Chief Judge, AMY, J.,

text:
    Louise BULLOCK v. THE RAPIDES FOUNDATION d/b/a Rapides Regional Medical Center. Walter Randall v. The Rapides Foundation d/b/a Rapides Regional Medical Center.
    Nos. 2006-26, 2006-27.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 11, 2006.

      George A. Flournoy, Flournoy & Dog-gett (APLC), Alexandria, LA, for Plain-tifflAppellee, Louise Bullock.
    Brandon A. Sues, Eugene J. Sues, Michael J. O’Shee, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendant/Appellant, The Rapides Foundation.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

On April 8, 2002, Louise Bullock, an eighty-year-old retired teacher, along with her daughter, Jan Reich, accompanied another of her daughters to the Rapides Regional ER. Louise Bullock’s other daughter, Beverly Merchant, now deceased, suffered from chronic asthma and was in the midst of an asthma attack. Ms. Bullock had already taken Beverly to her primary care physician’s clinic that day, but Beverly’s condition worsened at home, and Ms. Bullock was now rushing her to the ER. Beverly was pale and gasping for breath, and her oxygen level was in the eighties. Ms. Bullock and Jan answered questions for Beverly in triage. Beverly was wheeled into an examination room of the ER by a nurse. Jan and Ms. Bullock followed, pursuant to the hospital’s policy of allowing two visitors per patient into the examination room. Jan put the coats and purses she carried onto the only straight back chair in the room, and Ms. Bullock put her coat and purse there too. The nurse helped Beverly into the bed, administered a preliminary examination, and left the room. Ms. Bullock, exhausted, saw one available seat near the head of the patient bed, a rolling physician’s stool. The stool had no back and no arms.

Ms. Bullock attempted to sit on the rolling stool as she had sat on similar stools in the past. However, the stool immediately rolled out from under her and slammed into the wall as soon as the backs of her legs touched the stool. Ms. Bullock was already in a sitting position and could not prevent her downward motion. She fell to the floor and struck her head on a cabinet, blinding her for a couple of moments. She sustained a cerebral concussion. At the time of trial three years later, Ms. Bullock still had a knot behind her right ear where she struck the cabinet. Ms. Bullock also | ¡.sustained significant contusion injuries to her right hip. She was taken through triage herself and was put in an examination room next to her daughter’s.

Ms. Bullock was ultimately left with a permanent balance problem that caused her to become dependent for the first time on a cane and later on a walker. She had been a very active retiree, serving as councilwoman, president of her garden club, active gardener, producer of youth plays, and she enjoyed walking and riding a bicycle daily in summer and enjoyed ballroom dancing with her husband. After the accident, she was unable to resume these activities.

Prior to Ms. Bullock’s fall on April 8, 2002, Rapides Regional ER had eight reported incidences of similar falls to the floor involving these rolling physician’s stools in less than three years. Two incidents occurred on the same day, June 2, 1999, in two separate examination rooms of the ER, when two different visitors attempted to sit on two different rolling stools. One of these visitors fell against a glass cabinet and shattered the glass, resulting in shoulder and neck pain. Three incidents occurred in 2000. On February 22, 2000, a visitor in an examination room attempted to sit on a rolling stool and fell to the floor when the stool slipped from underneath him. On March 6, 2000, another visitor tried to sit on a rolling stool and fell to the floor when it rolled backward. On May 3, 2000, yet another visitor attempted to sit on a physician stool when it rolled backward, and she fell on her hip and then her right shoulder, resulting in pain in both areas. On June 7, 2001, a visitor again tried to sit on a doctor’s stool in an ER room and fell to the floor as the stool rolled out from under her. On August 1, 2001, another visitor fell off of the stool in an exam room in the ER. This time, the visitor had been told not to sit on the stool, but he did so anyway. The eighth incident occurred on March 24, 2002, two weeks before Ms. [ ^Bullock’s accident, when the stool rolled out from under a visitor while she was attempting to get up, causing her to hit her bottom on the floor and hit her head on a crash cart. She had to be assisted off the floor and into a wheelchair and had complaints of back pain.

Accordingly, Ms. Bullock’s fall in April 2002 was the ninth reported fall from a rolling physician stool since June of 1999 when the hospital began maintaining a data base for these incident reports. Additionally, the record contains reports of four similar falls by visitors after Ms. Bullock’s fall in 2002, with three incidents occurring in 2003 and one occurring in 2005.

While Ms. Bullock testified that there was no warning label on the stool in her daughter’s room, there was testimony that other stools in the ER had warning labels and that nurses were known to tell patients to be careful when sitting on the stools. There was also testimony that the labels on the stools were placed there not to warn of danger, but only to preserve them for use by physicians and medical staff so that the stools would be available when the medical personnel needed them.

Finding that the rolling stools were dangerous and that Rapides Regional had a duty to either put a warning or a wheel-locking mechanism on the rolling physician stool, the trial judge ultimately awarded Ms. Bullock $4,063.40 in special damages and $30,000.00 in general damages plus legal interest. The trial court assessed fault at fifty percent (50%) to Ms. Bullock and fifty percent (50%) to Rapides Regional. The final judgment to Ms. Bullock awarded her a total of $17,031.70 plus legal interest. Rapides Regional appealed the judgment, and Ms. Bullock answered the appeal.

I ¿ASSIGNMENTS OF ERROR

The appellant, Rapides Regional, asserts five assignments of error:

1. The trial court committed legal error in finding Rapides Regional had a duty to warn.
2. The trial court committed legal error in misapplying the law of “design defect” and finding Rapides Regional breached a nonexistent “duty” to provide a locking mechanism for the rolling stool.
3. The trial court committed prejudicial legal error in admitting and relying upon inadmissible evidence of dissimilar incidents having no probative value.
4. The trial court erred in relying on its own speculation.
5. The trial court was manifestly erroneous in finding Rapides Regional at fault.

Answering the appeal, the appellee Ms. Bullock argues that the allocation of fault is erroneous.

DISCUSSION

Standard of Review

The manifest error standard of review is the proper standard to be applied in cases involving findings of unreasonable risks of harm or unreasonably dangerous defects. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362. Thus, an appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two-tiered test must be applied in order to reverse the findings of the trial court:

a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
|Kb. the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

Even where the appellate court believes its inferences are more reasonable than the fact finder’s, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Additionally, a reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.

Reports of Prior Occurrences

We will first address the assignment of error by Rapides Regional that the trial court improperly admitted reports of prior incidents involving rolling stools in the Rapides Regional ER. As indicated in the factual section above, the record contains reports of eight visitors falling in connection with these rolling physician stools in the examination rooms of Rapides Regional’s ER department between June 1999 and March 2002, prior to the accident that caused Ms. Bullock’s injuries on April 8, 2002. The record also contains four post-injury incident reports. Rapides Regional contends that the reports are inadmissible because they are dissimilar, lack sufficient information to allow comparison with Ms. Bullock’s incident, and have no probative value. Specifically, Rapides Regional contends that the reports did not show the | ^physical or mental state of the person involved, the method used in attempting to sit on the rolling stool, the characteristics of the rolling stool involved, the person’s eyesight, and whether the person knew the stool had wheels before sitting on it.

Louisiana courts have found that evidence of prior accidents is admissible for the limited purpose of showing that a thing or place was dangerous and that the defendant knew of the dangerous condition. “[T]he prior accidents must be closely related in circumstance to the injury or hazard at issue.” Davis v. Louisiana Power & Light Co., 612 So.2d 235, 239 (La.App. 4 Cir.1992), writ denied, 615 So.2d 336 (La.1998). “[T]o be relevant, the other accidents should occur at substantially the same place and under substantially the same conditions and must be caused by the same or similar defect, danger, act or omission.” Lee v. K-Mart Corp., 483 So.2d 609, 613 (La.App. 1 Cir. 1985), writ denied, 484 So.2d 661 (La. 1986); Brodtmann v. Duke, 1996-0257 (La.App. 4 Cir. 2/11/98), 708 So.2d 447, writs denied, 98-0645, 98-0658 (La.4/24/98), 717 So.2d 1177-78, cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).

In the present case, all of the accidents reported occurred in Rapides Regional’s ER department examination rooms, which exist for the purpose of treating patients in some kind of distress, and accommodating those who bring them in. The rooms had all been similarly furnished with a patient bed, one straight back chair, and one physician’s rolling stool. The hospital’s policy throughout the ER was to allow two visitors with each patient admitted to its examination rooms therein. All of the persons who fell in connection with these stools were visitors accompanying a patient. This is true of the eight incidents preceding Ms. Bullock’s injury and of the four incidents following Ms. Bullock’s injury. Of course, the eight incidents ^preceding Ms. Bullock’s accident are the most probative because they indicate the hospital’s knowledge of existing conditions at the time Ms. Bullock was hurt. Six of the eight pre-injury incidents occurred when the visitor was attempting to sit on a similar stool and it rolled out from under him or her; one was attempting to get up off the stool; and one “fell off’ apparently after sitting.

Rapides Regional argues that in one case the person fell off the stool as a result of fainting. However, that isolated incident occurred on April 15, 2005, three years after Ms. Bullock’s accident and does not affect the eight similar accidents that occurred and were reported before Ms. Bullock’s injury, and of which the hospital had prior knowledge. Rapides Regional further argues that the picture of the stool attached to the accident report from August 17, 2001 shows a stool of a different design. This is not entirely correct. The stool appears to have four legs instead of five, as in Ms. Bullock’s case, but both stools have rollers on every leg and do not have backs or arms to grasp when attempting to sit, while sitting, or when attempting to rise. Testimony indicated that similar physician stools were put in every room. Based upon the foregoing, it is clear that the other accidents occurred at substantially the same place, under substantially the same conditions, and were caused by the same or similar danger. Rapides Regional’s assertion of error is without merit.

Duty To Warn

Rapides Regional contends that the trial court committed legal error in finding that the hospital had a duty to warn, because the stool was in good condition and did not have a defect according to Rapides Regional’s expert, Gerald Whitehouse. Rapides Regional argues that if there is no ruin, vice, or defect, there is no duty to warn and cites Crittenden v. Fidelity & Cas. Co. of N.Y., 88 So.2d 538, (La.App. 2 lsCir.1955) and Madden v. Saik, 511 So.2d 855 (La.App. 4 Cir.), writ denied, 514 So.2d 131 (La.1987).

In Crittenden, the plaintiff was a forty-five-year-old carpenter who visited the Warmack residence to discuss a business matter. The owner of the residence, Mr. Warmack, was not at home. The carpenter pulled forward a porch chair, and as he lowered himself onto the front edge of the chair, the base slipped on the smooth waxed concrete surface of the porch, causing him to fall and sustain a serious injury. Eye witnesses to the incident testified that the plaintiff attempted to seat himself on the forward or front edge of the chair, which caused it to tilt forward and slide backward. The plaintiff admitted that he had waxed the Warmack porch floor himself about two weeks prior to the accident. In addressing the questions of whether the chair was inherently dangerous or whether it was improperly used, the Crittenden court ultimately determined as follows:

There are no circumstances in this case which required of the insured special care toward plaintiff. Crittenden entered Warmack’s porch of his own accord. He was entirely familiar with the premises, having himself waxed the floor two weeks before and he had not only had occasion to observe the porch chair in question, but had actually seated himself in similar furniture. Obviously, Mr. and Mrs. Warmack had no more knowledge of any inherent danger in the use of the chair than plaintiff had himself. There should be, therefore, no reasonable basis for requiring a warning from Mr. or Mrs. Warmack since plaintiff was entirely familiar with the chair and knew that the porch was waxed.

Crittenden, 83 So.2d at 540-41 (emphasis added).

Crittenden, therefore, is factually distinguishable from the present case because in Crittenden there was no evidence of previous accidents or knowledge by the defendants that others had fallen from similar chairs on their porch. As a matter of law, the language in Crittenden supports a duty to warn in light of the knowledge possessed by Rapides Regional. More specifically, with regard to knowledge, the [ sCrittenden court cited 65 C.J.S., Negligence, § 50, p. 541 and articulated as follows:

‘The basis of the inviter’s liability for injuries sustained by the invitee on the premises rests on the owner’s superior knowledge of the danger, and as a general rule he is not liable for an injury to an invitee resulting from a danger which was obvious or should have been observed by the invitee in the exercise of reasonable care, or from a condition which ivas as well known or as obvious to the invitee as to the inviter, or which the inviter had no reason to believe would not be discovered by the invitee. There is no duty to warn the invitee of any defect or danger which is as well-known to the invitee as to the owner or occupant, or which is obvious or which should be observed by the invitee in the exercise of ordinary care. However, even though the invitee has knowledge of the danger, or the defect is obvious, the duty of the owner or occupant to use reasonable care to keep the premises reasonably safe for invitees remains, and it runs concurrently with the duty of the invitee to protect himself, so that, where the invitee does not fully appreciate the danger or is without fault, the owner or occupant may be held liable for the injury.

Crittenden, 83 So.2d at 540 (emphasis added).

Accordingly, unlike Mr. and Mrs. War-mack in the Crittenden case, Rapides Regional in the present case had superior knowledge of the conditions on its premises. Rapides Regional knew of eight previous accidents involving their rolling physician stools, while Ms. Bullock had no such knowledge of previous accidents. In fact, she testified that she had sat on rolling stools in hospitals and doctors’ offices on several prior occasions without incident. In any event, Ms. Bullock was not as familiar with the stools and conditions at Rap-ides Regional as the defendant was familiar with its own premises.

While Ms. Bullock knew that the stool had rollers and was intended to roll, she had never had one suddenly roll out from under her in previous locations. Therefore, Ms. Bullock did not fully appreciate the danger, as she would have, had she known that Rapides Regional had had eight prior accidents involving the rolling physician |instools in their ER. Moreover, Ms. Bullock testified that if the stool had contained a visible warning of its slippery nature, she would not have sat on the stool. It is the superior knowledge of Rapides Regional of the previous accidents and the dangerous condition of the stools on their premises that created a duty to warn, and it is their breach of that duty that renders them liable for Ms. Bullock’s accident.

Rapides Regional also cites Madden, 511 So.2d 855, where the plaintiff asserted injuries caused by an uneven differential of five-eighths of an inch in a restaurant’s floor. Specifically, the plaintiff sustained a broken ankle when he jumped backward from the top of a table in the restaurant/bar, dropping thirty to thirty-six inches to the floor. There, the defendant’s son admitted that he was aware of the uneven spot in the floor. He testified that repairing it had been considered. However, the defect was located in a low-traffic area, and in fifteen years there had been only a couple of complaints about it. Significantly, there was no evidence of any prior harm caused by the uneven spot. Under the circumstances of that case, the court found that the uneven spot did not create an unreasonable risk of harm giving rise to a duty to warn. Accordingly, because there were no previous incidents of harm, Madden, is clearly distinguishable from the instant case.

Another case cited by Rapides Regional for the proposition that there is no duty to warn of open and obvious conditions is Goll v. Bugsy’s Bar and Grill, Inc., 2003-0475 (La.App. 4 Cir. 3/10/04), 870 So.2d 341. There, a restaurant patron was injured when he tripped on stairs attached to a stage, and the restaurant was not assessed any fault for the injury. Again, there were no reports of previous injuries. In fact, the appellate court upheld the trial court’s use of the fact that other people in the party had traversed the stairs without incident in making a determination | nregarding the risk posed by the steps. Conversely, in the present case, the evidence reveals eight previous incidents in less than three years in the Rapides Regional ER wherein visitors were injured while trying to sit on rolling stools in the examination rooms. Accordingly, in the present case, the hospital had superior knowledge of the risk created by the rolling stools.

Speculation

Rapides Regional contends that the trial court erred in relying on its own speculation. This contention is based merely on an observation made by the trial court that “[t]he number of unreported or near missed incidences is unknown. Records of these would be unreported by their nature .... ” We do not consider this observation a “rebanee on speculation.” Where the court assessed the content of eight pre-injury reports of similar incidents with rolling stools in the hospital’s ER in less than three years, as well as several post-injury reports, and then provided a three page explanation of its findings, it would not be reasonable to conclude that the court “relied” on its own speculation in making factual determinations. This contention is also without merit.

Allocation of Fault

The allocation of fault among all negligent parties applies to “any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability,” regardless of the basis of liability. La.Civ.Code art. 2323(B); Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002. The trier-of-fact is owed great deference in its allocation of fault. Even if the reviewing court would have decided the case differently, the trial court’s judgment should be affirmed unless manifestly erroneous or clearly wrong. Clement v. Frey, 11295-1119 c/w 95-1163 (La.1/16/96), 666 So.2d 607. In determining percentages of fault, the Louisiana Supreme Court has outlined five factors that may influence the degree of fault assigned: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances that might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967, 974 (La.1985).

After reviewing these factors in light of the entire record, and after giving appropriate deference to the trial court, we find that the trial court did not commit manifest error in assessing fault at fifty percent to each party.

CONCLUSION

Based upon the foregoing, the judgment of the trial court is affirmed. Costs of this appeal are assessed equally to Rapides Regional and Ms. Bullock.

AFFIRMED.

THIBODEAUX, C.J., concurs in part and dissents in part with written reasons.

AMY, J., dissents with written reasons.

SULLIVAN, J., dissents for the reasons assigned by Judge AMY.

THIBODEAUX, Chief Judge,

concurring in part and dissenting in part.

hi agree with the imposition of liability, but disagree with the affirmance of the apportionment of fault.

After reviewing the Watson factors in light of the entire record, and after giving appropriate deference to the trial court, the trial court and this court are clearly wrong in assessing fault at fifty percent (50%) to each party. More specifically, in considering whether the conduct resulted from inadvertence or involved an awareness of the danger, I conclude that Ms. Bullock’s actions were only inadvertent and without awareness of danger while Rapides Regional was fully aware of the dangerous propensities of the rolling stools in the ER due to the eight previous accidents in the ER. Ms. Bullock had sat on rolling stools in hospitals and doctors’ offices several times in the past without incident. She touched her legs to the back of the stool and started to sit, which is the normal method for sitting down. At trial, Rapides Regional cross-examined Ms. Bullock about the fact that she had backed up |2to the rolling stool. Ms. Bullock agreed that that was correct and then explained that, “[y]ou can’t sit on the stool facing the stool.”

In assessing fault in Lemaire v. Airline Lions Club Home, Inc., 02-699 (La.App. 5 Cir. 11/26/02), 833 So.2d 464, writ denied, 02-3221 (La.3/14/03), 839 So.2d 44, the trial court determined that the eighty-one-year-old plaintiff had no fault for the fall on the rug because “her act of stepping was a typical act that one would make as one steps away from a table to turn and walk away....” Id. at 467. There, the court assessed fault against the defendant at one hundred percent (100%). Therefore, there is jurisprudential support for a similar finding herein. However, in the present case, the trial court found that Ms. Bullock should bear some responsibility for the accident.

In considering the second factor, the risk which was created by the conduct, I again conclude that Rapides Regional created a great risk by not putting warnings on the stools. Rapides Regional knew of the eight prior incidences, particularly of the incident occurring only two weeks pri- or on March 24, 2002, when a fifty-two-year-old visitor hit her head on a crash cart when the stool started rolling before she could g et all the way off of it. Likewise, Rapides Regional knew of the incident on June 2, 1999, when a twenty-seven-year-old visitor fell against a cabinet and shattered the glass in the cabinet when a rolling stool rolled away while she was attempting to sit on it. In both incidents, as well as the incident on May 3, 2000 involving a fifty-four-year-old visitor, the falls to the floor resulted in shoulder, neck, hip, or back pain. Ms. Bullock, on the other hand, knew nothing of the risks, and was simply attempting to sit as she had done in the past.

With regard to the third factor, the significance of what was sought by the conduct, Ms. Bullock was merely attempting to sit after a long day filled with |shospital visits and concern for her daughter who was, at the time, gasping for breath. She saw no other place to sit, as the one straight-back chair was covered with coats and purses. Ms. Bullock’s conduct was normal under the circumstances. Rapides Regional, on the other hand, sought to leave the stools in order to accommodate the physicians and medical staff in the examination rooms in moving from one task to another. However, armed with prior knowledge, Rapides Regional also sought to ignore the previous incidents, stating that the problem did not merit action given the number of incidents compared to the number of people coming through the ER every year. In essence, it sought to avoid the simple matter of placing warning signs on rolling stools that had previously caused their visitors to hurt themselves, resulting in a ninth incident and serious injury to Ms. Bullock.

In assessing the fourth factor, capacities of the actor, whether superior or inferior, it is clear that Rapides Regional was the superior party and possessed superior knowledge. Under the facts of this case, Rapides Regional knew of the unique situation posed by the existence of the rolling stools in its ER examination rooms before Ms. Bullock’s accident. Rapides Regional had knowledge of prior accidents and had filled out eight accident reports in less than three years prior to Ms. Bullock’s accident, one of them only two weeks pri- or. Accordingly, it had superior knowledge and were intimately aware of the danger. On the other hand, Ms. Bullock did not know of the prior accidents at Rapides Regional, and had never had a rolling stool shoot away from her in this manner, even though she had sat upon such stools on several occasions.

Rapides Regional’s position was that the rolling stools were for physicians and medical personnel, and that those specialized persons did not require any cautionary warning labels. At trial, Rapides Regional called a physician, the |4director of its emergency department, Dr. Giroir, to demonstrate how he would sit on the physician’s stool in question. Dr. Giroir, who admitted that he had sat on these types of rolling stools “thousands” of times, testified that he would start to lower himself, then reach around behind him and pull the stool underneath him before lowering himself all the way onto the stool. The stool had no arms and no back. The only part available for grabbing was the seat of the stool. This action requires a bit of agility and twisting. Ms. Bullock was eighty years old, and she did not do this. Ms. Bullock is not a specialized medical person, nor were the previous visitors who fell. As the superior actor, Rapides Regional should have acted reasonably to ensure that the premises were safe for all invitees. They had the financial and human ' resources to apply simple warnings in this case. Notwithstanding its superior capacity, it chose a path of callous disregard. The acts of negligence of Rapides Regional were clearly paramount in comparison to Ms. Bullock’s slight inadvertence in failing to hold the stool in place before attempting to sit.

It is apparent that the fifth factor, extenuating circumstances that might require the actor to proceed in haste without proper thought, exculpates Ms. Bullock for the most part in this accident. It was after five o’clock in the evening. Ms. Bullock had taken her chronically asthmatic daughter, Beverly, to her primary care clinic earlier in the day with the instruction that if she did not get better, she should be taken to the emergency room. Beverly’s sister, Jan, testified that Beverly had chronic obstructive pulmonary disease. Beverly’s condition became worse at home. At the time that Ms. Bullock and Jan brought Beverly to the ER, Beverly was pale and gasping for air. Ms. Bullock and Jan had to answer questions for Beverly in triage. Ms. Bullock was eighty years old and tired and worried. Once the nurse had Beverly in the patient bed, Ms. Bullock looked for somewhere to sit. She saw one | fiStool near the head of Beverly’s bed. By its very nature, the ER invites people in just the condition that this family was in, not at their best and all in the midst of extenuating circumstances. Rapides Regional, on the other hand, was conducting business as normal.

Based upon the foregoing, the record does not support the trial court’s and our court’s equal allocation of fault to Ms. Bullock and Rapides Regional Medical Center. Once an appellate court finds a clearly wrong apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607.

In Southern v. Lyons, 97-19 (La.App. 3 Cir. 5/28/97), 696 So.2d 128, turit denied, 97-1729 (La.10/13/97), 703 So.2d 617, where a thirteen-year-old boy was left unsupervised and was struck by a boat while swimming underwater, this court found that the supervisor was the superior actor in creating the hazardous situation, and that the boy was guilty only of inadvertence in causing the accident. Accordingly, under the facts of that case, we found that the highest percentage of fault that the trial court could reasonably have apportioned to the boy was twenty percent, while the lowest percentage of fault that could have been apportioned to the supervisor was eighty percent. Similarly, in the present case where the hospital had superior knowledge of accidents in its ER involving rolling stools but failed to remedy the situation or at least warn of the danger, and where Ms. Bullock was only slightly inadvertent in attempting to sit on the stool, I would apportion eighty percent (80%) of the fault to Rapides Regional and twenty percent (20%) of the fault to Ms. Bullock.

For the foregoing reasons, I dissent in part.

THIBODEAUX, C.J., concurs in part and dissents in part with written reasons.

AMY, J., dissents with written reasons.

SULLIVAN, J., dissents for the reasons assigned by Judge AMY.

AMY, J.,

dissenting.

_JjIn my opinion, the trial court’s imposition of liability on Rapides Regional was error. Insofar as recovery was based on a theory of negligence, I find that the facts and circumstances of this case do not reveal a duty to equip this physician’s stool with a locking mechanism or to warn that it was for physician’s use. See Posecai v. Wal-Mart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762 (wherein the supreme court explained that the question of whether a duty exists is a question of law and the determination as to whether a duty exists in a particular court requires the court to make a policy decision in light of the unique facts and circumstances presented).

Photographs and testimony indicate that the five-wheeled stool was obviously a rolling one. There is no indication that the stool was faulty or that it malfunctioned. Furthermore, and relevant to the question of whether a warning label was required, |2the plaintiff explained that she had previously used rolling stools and was aware that the stool was for physician use. Insofar as various other stools at the hospital had been labeled by staff members, testimony indicated that the labeling was done in order to reserve the stool for staff use rather than as an injury-prevention measure. With regard to the lack of a locking mechanism, the plaintiff did not establish that such a mechanism was available, desirable, or even possible for such a rolling stool.

Insofar as the parties’ arguments reference strict liability recovery, I find that the plaintiffs evidence fails in this regard as well. Again, the plaintiff did not establish the existence of a vice or defect in the stool’s operation. Notwithstanding this failure, the record further lacks indication of an unreasonable risk of harm. As noted in Boyle v. Board of Supervisors, Louisiana State Univ., 96-1158 (La.1/14/97), 685 So.2d 1080, consideration of whether an unreasonable risk of harm exists is guided by a risk-utility balancing test which weighs factors such as gravity and risk of harm with individual and societal rights and obligations, as well as the social utility involved.

As pointed out by the plaintiff, a number of incidents involving the stools had occurred at the hospital. According to Ms. Noel, the hospital’s Vice-President of Resource, Risk and Quality Management, these incidents occurred approximately 1.25 times per year. However, this number must be considered in light of Ms. Noel’s further testimony that approximately 120,000 patients and visitors enter the emergency department each year. Furthermore, Ms. Noel was aware of only one other stool-related incident that resulted in medical treatment during the six-year period. She explained that, to her knowledge, Ms. Bullock’s injuries were the most serious of those associated with the stools. Ms. Noel reported that the stool incidents rank “very, very low” in the incidents generally arising at the hospital.

Is As for the stool’s utility, the record contains the testimony of Dr. John Giroir, Jr., the emergency department’s Medical Director. He explained that the stool is common medical equipment in many facilities. He did not recall cautionary labeling on stools in other facilities. When asked about the stool’s purpose, he explained:

Quite frequently, we do some type of— of procedures where it’s easier to be performed if you are close up to whatever you’re performing; suturing, minor procedures where you might be removing a foreign body or doing an incision drainage on an abscess. They’re used when we do pelvic examinations. We use them when we examine an eye using an instrument called a slit lamp. I also use it quite frequently when I’m taking a history from a patient. I’ll — I’ll sit on the stool and have my chart and be questioning them and then writing on the chart as I’m taking their history.

In light of the relatively low risk associated with the stool’s use and the unquestioned utility, any determination that the plaintiff established an unreasonable risk of harm is erroneous.

As I find that the plaintiff failed to establish the elements necessary for recovery under either a theory of negligence or a theory of strict liability, I conclude that the trial court’s imposition of liability on Rapides Regional was in error. Accordingly, I respectfully dissent from the majority opinion.

      . A companion case, Randall v. The. Rapides Foundation, D/B/A Rapides Reg. Med. Center, 06-27, was appealed also. However, issues were neither submitted nor briefed. Thus, it is abandoned.


source: Caselaw Access Project

author:
AMY, Judge.
      EZELL, J.

license: Public Domain

text:
    RANGER INSURANCE COMPANY v. STATE of Louisiana, et al.
    No. 06-487.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 11, 2006.

      David F. Hutchins, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Graymond F. Martin, Halpern & Martin, LLC, Metairie, LA, for Plaintiff/Appellant, Ranger Insurance Company.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

hThe plaintiff filed these consolidated actions, seeking declarations of nullity of two judgments of bond forfeiture entered by the commissioner of the Fifteenth Judicial District Court. The trial court granted one of the petitions, annulling one of the judgments after a determination that the forfeiture was not supported by adequate evidence. As for the remaining matter, the trial court found that the commissioner lacked authority to issue the judgment of bond forfeiture. However, due to the trial court’s determination that the commissioner was acting as a de facto officer, the petition for nullity was denied. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Ranger Insurance Company, filed petitions for nullity after judgments of bond forfeiture were entered in two criminal matters for which it acted as commercial surety. See State v. Zamora, District Court Docket Number 96347, wherein Ranger acted as a surety for an underlying charge of negligent homicide. See also State v. McClendon, District Court Docket Number 96142, wherein Ranger acted as a surety for an underlying charge of unauthorized use of a movable. The judgments were entered in March 2003 by the commissioner of the Fifteenth Judicial District Court.

pRanger subsequently filed Petitions For Nullity of Judgment in response to the judgments of forfeiture in Zamora and McClendon. As for Zamora, Ranger asserted that the procedural and evidentiary requirements for forfeiture, set forth by La.R.S. 15:85, had not been satisfied and, therefore, the judgment of forfeiture should be annulled. With regard to the judgment of forfeiture in McClendon, Ranger questioned whether the notice requirements of La.R.S. 15:85 had been met. In both matters, Ranger alternatively raised the constitutionality of La.R.S. 15:85. Upon the unopposed motion of Ranger, the matters were consolidated.

Following a hearing, the trial court ruled that the petition in the forfeiture judgment rendered in Zamora “against Ranger Insurance Company as surety and Juanito Ray Zamora as principal is hereby annulled, set aside and cancelled on grounds that the transcript of the proceeding failed to reflect that the proper evidence was introduced in support of the judgment of forfeiture.” With regard to McClendon, the trial court denied Ranger’s petition, explaining that the commissioner of the Fifteenth Judicial District Court, functioning through La.R.S. 13:716(A) and a rule of court, lacked the authority to enter the judgment of forfeiture. However, it denied the petition for nullity due to the applicability of the de facto officer doctrine.

Ranger appeals, assigning the following as error:

1. The Trial Court erred when it denied the surety a release of all obligations under the bond contract where the state failed to fulfill the statutory requirements of [La.R.S.] 15:85 within a sixty day window from the defendant’s nonappearance on November 19, 2002.
2. The Trial Court erred when it held that the Commissioner for the 15th Judicial District Court, Parish of Lafayette, was acting as a de | facto officer when he adjudicated a civil matter between persons under private signature and rendered and signed final money judgments.

Discussion

Zamora

The trial court ruled in favor of Ranger in Zamora, finding that the record of the related proceedings did not reflect adequate evidence to support the judgment of forfeiture. The trial court’s judgment did not address Ranger’s alternative contention that the procedural requirements of La.R.S. 15:85 were not met as notice of the forfeiture was allegedly not mailed within a sixty-day window and, therefore, it was released from all surety obligations under the bond. Ranger again addresses the concern on appeal.

Although the transcript reflects that the trial court expressed reluctance to accept this aspect of Ranger’s argument in discussion at the hearing, neither the trial court’s reasons for ruling nor its judgment touch upon this issue. The absence from the judgment is crucial as an appellate court reviews only a trial court’s judgment, not its reasons for ruling. See La.Code Civ.P. art.2082 (emphasis added.) which provides that an “[ajppeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.” See also Johnson v. Henderson, 04-1723 (La. App. 4 Cir. 3/16/05), 899 So.2d 626. Additionally, since Ranger prevailed in Zamora and the State has not appealed that judgment, Ranger’s alternative theory of relief has been rendered moot. Accordingly, we do not address the merits of this argument.

|4McClendon

As for McClendon, the trial court determined that the commissioner of the Fifteenth Judicial District Court, as an appointed officer and not an elected judge, was without authority to adjudicate the bond forfeiture. This determination was based upon the original jurisdiction of district courts conveyed by La. Const, art. 5, § 16 and the supreme court’s reasoning as to what constitutes “judicial power” to be exercised solely by elected judges. See State v. O’Reilly, 00-2864, 00-2865 (La.5/15/01), 785 So.2d 768. The trial court concluded that the “essential nature and purpose of a judgment of bond forfeiture is the rendering of a final judgment in a civil matter” and, thus, is a function vested solely in elected judges.

| fiThe State has neither appealed nor filed an answer questioning the above determination. As Ranger prevailed in this regard, it does not question this portion of the trial court’s reasoning. Rather, Ranger questions the denial of its petition for nullity insofar as the trial court further determined that the judgment of bond forfeiture should not be annulled based upon the defacto officer doctrine.

In O’Reilly, 785 So.2d 768, the supreme court considered the constitutionality of a portion of a statute, see La.R.S. 13:719 repealed by 2002 La. Acts No. 28, § 2, that empowered the judges of the Twenty-Second Judicial District Court to select a commissioner who would have jurisdiction over misdemeanor criminal matters. Finding that portion of the statute unconstitutional, the supreme court addressed the applicability of the de facto officer doctrine to the underlying misdemeanor convictions/sentences. The supreme court explained that the de facto officer doctrine is one founded on public policy grounds and that it “proclaims that the acts of a de facto officer are valid as to third persons and the public until the officer’s title to office is adjudged insufficient.” Id. at 776 (emphasis added). The supreme court explained further that:

The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient. The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.

Id. at 777 (quoting Ryder v. United States, 515 U.S. 177, 180, 115 S.Ct. 2031, 2034, 132 L.Ed.2d 136 (1995)). Notably, the defacto officer doctrine indicates that “until a de facto officer’s |7title to the office is attacked directly and held to be invalid, ‘the acts of a de facto official are as valid and effectual, when they concern the public or the rights of third parties, as though he were an officer de jure....’” Id. (quoting State v. Stripling, 354 So.2d 1297, 1300-01 (La.1978)).

In the present case, the trial court reasoned as follows in finding the de facto officer doctrine applicable and in the denial of the petition for nullity:

It should be noted that the judgment rendered in this case arose out of the non-appearance of a defendant for arraignment in a criminal matter. An arraignment is a preliminary proceeding at which an accused is informed of the charges against him. La CCrP art 551. It is a quasi-judicial function which may be performed by a commissioner up to the point at which a defendant indicates a desire to enter a guilty plea. As such, it is a proceeding over which a commissioner may preside. As a corollary to that authority, the commissioner may issue a warrant for the non-appearance of a defendant at such a proceeding. The non-appearance simultaneously triggers the right of the State to move for a judgment of forfeiture of the appearance bond posted on behalf of the non-appearing defendant. See La.RS 15:85. By local rule, as noted above, the commissioner was delegated the authority to grant the State’s simultaneous motion.
The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient. The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office ... Additionally, while it is generally true that in order for there to be a de facto officer, there must be a de jure office, an exception exists where an office is provided for by an unconstitutional statute and the incumbent, for the sake of public policy and public justice, will be recognized as an officer de facto until the unconstitutionality of the Act has been judicially determined in a direct proceeding for that purpose. Anderson v. Texas, 149 Tex.Crim. 423, 195 S.W.2d 368 (1946). See O’Reilly, at p. 777.
In the instant case, as in O’Reilly, the commissioner was not a usurper of an office who was acting without color of right. He was at a minimum a de facto officer sitting pursuant to an apparently valid statute hand local rule whose constitutionality had not been attacked directly or declared unconstitutional at the time judgment was rendered. The forfeiture judgment arose out of a proceeding over which the commissioner had authority to preside and as a corollary thereto pursuant to La.RS 15:85(1). Therefore, the de facto officer doctrine applies in this case and the judgment of forfeiture rendered in this matter will not be annulled based upon the commissioner’s lack of authority to render the judgment.

Ranger questions the trial court’s application of the doctrine and particularly asserts that the commissioner was not acting as a de facto judge so as to invoke the doctrine, but was, instead, acting as a de jure commissioner who was “simply not authorized by law to take the actions he took.”

Having reviewed the record, we conclude that the trial court’s application of the defacto official doctrine is consistent with the framework set forth by the supreme court in O’Reilly, 785 So.2d 768. As in O’Reilly, the commissioner entering the judgment of bond forfeiture was not an usurper of office acting without color of right. Rather, like the commissioners in O’Reilly who were acting pursuant to then La.R.S. 13:719, the commissioner in the present case held an office created by statute. See La.R.S. 13:716(A), which establishes the position of commissioner of the Fifteenth Judicial District Court and instructs that he or she “shall perform such duties as are assigned by the chief judge of the district in accordance with rules which shall be prescribed by the elected judges of the court, not inconsistent herewith or with the constitution and laws of the state.” See also Appendix 3 of the District Court Appendices purporting to permit the court-appointed commissioner to sign “forfeiture motions.” As in O’Reilly, at the time of the signing of the judgment at issue, there had been no direct constitutional attack on either the statute or court rule from which the judgment of bond forfeiture devolved.

Ranger’s assignment of error further lacks merit insofar as it argues that the commissioner’s action in this case was contrary to law, see La.R.S. 15:85 which | amdicates that “the judge ” shall “order a judgment decreeing the forfeiture of the bond.... ” This factor is relevant to the underlying question of whether the commissioner acted permissibly, a question not appealed. Again this circumstance is analogous to the factual background in O’Reilly, 785 So.2d 768, in which the commissioner’s actions stemmed from a procedure permitted by the face of a statute. Although later found to be invalid, the judgment entered prior to the determination of invalidity was sustained. Id.

For the above reasons, we find no error in the trial court’s determination that the de facto officer doctrine is applicable to the instant matter and that, through its operation, the judgment is maintained.

DECREE

For the foregoing reasons, the judgment of the trial court in this consolidated matter is affirmed. See also Ranger Insurance Company v. State of Louisiana, 06-488 (La.App. 3 Cir.10/11/06), 941 So.2d 191. All costs of this appeal are assigned to the appellant, Ranger Insurance Company.

AFFIRMED.

EZELL, J.

dissenting.

hi respectfully disagree with the majority in this matter. Not only would I address Ranger’s assignment of error concerning notice in the Zamora judgment, but I would also reverse the trial court’s judgment finding the commissioner of the Fifteenth Judicial District Court had authority to sign both the Zamora and the McClendon bond forfeiture judgments.

Although Ranger succeeded in having the Zamora judgment nullified, it asks this court to address its alternative contention that the procedural requirements of La. R.S. 15:85 were not met as notice of the forfeiture was allegedly not mailed within a sixty-day window. A finding that the procedural requirements were not met would release the surety of any and all obligations under the bond. La.R.S. 15:85(3). The majority recognizes that neither the trial court’s reasons nor its judgment touches upon this issue. Citing La.Code Civ.P. art.2082, the majority declines to address the merits of the argument. I would address the merits of this issue because it was presented to the trial court and is raised on appeal as an assignment of error.

However, I find that the evidence in the record indicates that there is no merit to this argument which is probably why it was not addressed by the trial court. Silence on an issue raised in the trial court is considered a rejection of that issue. Mitchell Co. v. Mucavil, Inc., 02-381 (La. App. 3 Cir. 10/1/03), 855 So.2d 426.

On February 18, 2003, Zamora failed to appear for a hearing. It was noted that Zamora had failed to appear at a previous hearing and a fugitive warrant and bond forfeiture was in effect. However, no judgment of bond forfeiture had been signed. It was not until after this hearing that a judgment of bond forfeiture was signed on [ 2March 19, 2003. Notice to the parties was mailed within sixty days of the date of the February 18 hearing. Ranger tries to assert that notice should have been mailed within sixty days of November 19, 2002, when Zamora first failed to appear. However, the judgment of bond forfeiture was based on Zamora’s failure to appear at the February 18 hearing. As this court held in State v. Breaux, 94-1553, 94-1562, (La.App. 3 Cir. 5/31/95), 657 So.2d 371, the State’s notice of nonappearance could be sent to the appearance bond surety within sixty days after date the of nonappearance upon which the bail bond forfeiture judgment was based and was not required to be sent within sixty days from when defendants first failed to appear for trial. Therefore, I find that the evidence indicates that notice was timely.

Regarding the signing of the bond forfeiture judgments by the court commissioner in both cases, La.R.S. 15:85(2) provides that “the court shall sign a written judgment of bond forfeiture.” In this case the commissioner for the Fifteenth Judicial District Court signed both judgments of bond forfeiture. The position of commissioner was created by La.R.S. 13:714. Regarding the commissioner’s authority, La.R.S. 13:716(A)(emphasis supplied) provides that:

The commissioner of the Fifteenth Judicial District Court shall perform such duties as are assigned by the chief judge of the district in accordance with rules which shall be prescribed by the elected judges of the court, not inconsistent herewith or with the constitution and laws of the state.

Louisiana Revised Statutes 13:716(B)(4)(a)(emphasis supplied) further provides:

In civil cases, the commissioner may be designated and assigned to conduct hearings, including evidentiary hearings, and trials, except motions for injunctive relief and temporary restraining orders. In furtherance of the above, civil trials and hearings by the commissioner shall be governed by the following rules:
The commissioner may conduct any or all proceedings on any matter pending before the court and order the entry of judgment in any case where the parties consent to the matter being heard and adjudicated by the commissioner. Each judgment so entered shall be signed by a judge of the district. The clerk of court, at the time the action is filed, shall notify the parties of their right to consent to the exercise of such jurisdiction. The decision of the parties shall be communicated to the clerk. An aggrieved party may appeal a judgment of the commissioner rendered pursuant to the authority of this Subsection in the same manner as an appeal from any other judgment of a district court.

[3The majority cites the Louisiana Supreme Court case of State v. O’Reilly, 00-2864, 00-2865 (La.5/15/01), 785 So.2d 768, which discusses the application of the de facto official doctrine. The supreme court in O’Reilly, 785 So.2d at 711 (quoting Ryder v. United States, 515 U.S. 177, 180, 115 S.Ct. 2031, 2034, 132 L.Ed.2d 136 (1995) (internal citations omitted)), explained the application of the doctrine as follows:

The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient. The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.

In this case we are not dealing with a de facto officer. The commissioner is a validly appointed position under state law. There is no argument about the constitutionality of the commissioner to act. The law simply does not provide the commissioner with the authority to sign judgments. There is no provision in the law giving the commissioner authority to sign the judgment. It is just the opposite. Aside from La.Code Civ.P. art.1911 providing that every final judgment shall be signed by a judgment, La.R.S. 13:716 specifically provides that a judge of the district court shall sign a civil judgment. The commissioner has the no authority to sign judgments under the law. Simply put, the commissioner exceeded the authority conferred on him by law.

In Bankers Ins. Co. v. State, 32,460 (La. App. 2 Cir. 10/27/99), 743 So.2d 870, the second circuit recognized that a judgment of bond forfeiture must be signed by the judge who ordered the judgment. As noted by La.R.S. 15:85(1), it is the judge, not the commissioner, who orders the judgment of bond forfeiture. While La.R.S. 13:716 gives the commissioner the authority to hold hearings and order the entry of judgment when the parties consent, the judge must still sign the judgment.

I also do not find that the local rules of the Fifteenth Judicial District Court confer any authority upon the commissioner to sign judgments. Local Rules for the Fifteenth Judicial District Court Parish of Lafayette provide that the commissioner can sign “forfeiture motions.” It does not provide that he can sign forfeiture judgments.

|4I think it is clear that the commissioner exceeded his authority in signing the judgments of bond forfeiture. In Bankers, 743 So.2d 870, the second circuit found that a judgment of bond forfeiture signed by a judge other than the one who ordered the judgment was a relative nullity pursuant to La.Code Civ.P. art 2004. The second circuit noted that the term “ill practice” was not limited to cases of actual fraud or wrongdoing, but broadly defined to encompass all situations in which a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right. The second circuit further noted that a judgment will be annulled for ill practices only when the circumstances under which it was rendered show the deprivation of legal rights of the litigant who seeks relief, and when enforcement of the judgment would be unconscionable and inequitable.

In the present cases the absence of a judge signing the judgment of bond forfeiture is a fatal defect. There have been cases in which the judge who signed the judgment was not the judge who heard the case. Cases have held this is a fatal defect and remanded the case to the trial court to issue a proper and valid judgment once the present judgment is annulled. See Employers Nat. Ins. Co. v. Workers’ Comp. Second Injury Bd., 95-1756 (La.App. 1 Cir. 4/4/96), 672 So.2d 309; and Louisiana Paving Co., Inc. v. St. Charles Parish Pub. Schs., 593 So.2d 892 (La.App. 5 Cir.1992). In this case, the fact that the commissioner signed the judgment and had no authority is a deprivation of legal rights that Ranger is entitled to under La.R.S. 15:85, enforcement of which would be unconscionable and inequitable. Therefore, I find that the judgments should be annulled and the case remanded for the issuance of a valid judgment.

I also note that the majority states that Ranger’s assignment of error lacks merit because Ranger did not raise the issue of whether the commissioner acted permissibly. I respectfully disagree as I find that this is precisely the issue that Ranger has raised.

      . The bond forfeiture matter appeared before the commissioner of the Fifteenth Judicial District Court through operation of La.R.S. 13:716(A), which provides, in pertinent part: "The commissioner of the Fifteenth Judicial District Court shall perform such duties as are assigned by the chief judge of the district in accordance with rules which shall be prescribed by the elected judges of the court, not inconsistent herewith or with the constitution and laws of the state.” Additionally, Appendix 3 of the District Court Appendices, insofar as it relates to the commissioner of the Fifteenth Judicial District Court, provides that the commissioner, shall:
      Handle such other miscellaneous duties as may be assigned by the Judges, including, but not limited to, receiving the report of the Grand Jury, signing search warrants, arrest warrants, juvenile probable cause affidavits, forfeiture motions, transportation writs, and such other orders as may need signing.
      (Emphasis added.).

      . See also Ranger Insurance Company v. State of Louisiana, 06-488 (La.App. 3 Cir. 10/11/06), 941 So.2d 191.

      . La.R.S. 15:85(3)(c) provides that: "Failure to mail proper notice of the signing of the judgment within sixty days after the defendant's failure to appear shall release the sureties of any and all obligations under the bond.”

      . Louisiana Constitution Article 5, § 16 provides, in part:
      Section 16. (A) Original Jurisdiction. (1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters.

      . Louisiana Constitution Article 5, § 1 provides that: "The judicial power is vested in a supreme court, courts of appeal, district courts, and other courts authorized by this Article.” (Emphasis added.)

      . Louisiana Constitution Article 5, § 22(A) provides, in part, that: "Except as otherwise provided in this Section, all judges shall be elected.”

      . While this portion of the trial court's ruling is not appealed, we set forth the trial court’s reasons for purposes of explanation:
      In State of Louisiana v. O’Reilly, 2000-2864 (La.5/15/01), 785 So.2d 768, the Louisiana Supreme Court held that a commissioner could not conduct trials, accept pleas and impose sentences in misdemeanor cases. The Court concluded that this constituted a grant of power to an appointed commissioner to make an ultimate determination in a case. The Court reasoned such a grant of power could not stand because it constituted a "judicial power” as intended by Article V of the Louisiana Constitution which could only be exercised by an elected judge. Therefore, the resolution of this issue turns upon whether the granting of a judgment of bond forfeiture is solely a judicial power.
      The Supreme Court again confronted this issue in State of Louisiana v. Umezulike, 2003-1404 (La.2/25/04), 866 So.2d 794. The Court noted the specific language of Article 5, § 1 grants "judicial power,” not adjudicative power, to the courts of this state. Therefore, the Court found the proper inquiry to be whether an initial probable cause determination and the issuance of a search warrant was a "judicial power” as intended by the Louisiana Constitution of 1974. The Court stated:
      [W]e find that Bordelon [v. Louisiana Dept. of Corrections, 398 So.2d 1103 (La.1981)] and O’Reilly are not dispositive where the Louisiana Constitution specifically addresses the function which may be a "judicial power.” Although we stand by our decisions in Bordelon v.[and] O’Reilly and adopt the pattern of analysis employed in both cases by examining the essential nature and purpose of the function at issue, we decline to base our decision solely on jurisprudential interpretations of judicial power when Article 5 of the Louisiana Constitution specifically addresses the function at hand. Succession of Lauga, 624 So.2d 1156, 1166 (La.1993). We must, therefore, examine the basic tenets of the right to privacy as protected by the issuance of a search warrant in pari materia with the constitutional grant of judicial power to determine whether the issuance of a search warrant is solely a judicial power. Umezulike, supra at p. 797.
      The Court then noted Article 1, Section 5 of the Louisiana Constitution is the basic tenet of the right to privacy and examined that provision in determining that the probable cause determination associated with the issuance of a search warrant is a quasi-judicial function and not solely a judicial power.
      Therefore, this Court must determine whether there are basic constitutional tenets, in addition to Article 5, which address the function of rendering a judgment of bond forfeiture and, if so, examine those in pari materia with Article 5 to determine whether the issuance of a judgment of bond forfeiture is solely a judicial power.
      Bond forfeitures are basically civil proceedings, although subject to special rules set forth in the Code of Criminal Procedure. State v. Likens, et al., 89-1040-89-1043 (3rd Cir.3/13/91), 5[7]7 So.2d 285. Pursuant to La.R.S. 15:85, upon failure of the defendant to appear and answer when called in a criminal proceeding, "on motion of the prosecuting attorney and upon hearing of proper evidence,” ... the judge shall "issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond” and thereafter "the court shall sign a written judgment of bond forfeiture”. It is clear that the statute contemplates issuance of an arrest warrant and the rendition of a final civil money judgment against the defendant and his sureties. Ranger challenges the authority of the commissioner to render that money judgment.
      The grant of judicial power is found in the Constitution of the State of Louisiana of 1974, Article V Section 16(A) which provides:
      Original Jurisdiction. (1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters.
      The Court can find no other constitutional tenets implicated in the rendering of a judgment of forfeiture. Therefore, the Umezu-like analysis is not applicable and this Court must look to Bordelon and O’Reilly and adopt the pattern of analysis employed in both cases by examining the essential nature and purpose of the function at issue. The essential nature and purpose of a judgment of bond forfeiture is the rendering of a final judgment in a civil matter. Such a function encompasses the original jurisdiction of the district courts as set forth in Article 5 Section 16. As such, and following the analysis in O’Reilly, this function is solely a judicial power and may be exercised only by an elected judge pursuant to Article V section 22 of the Louisiana Constitution of 1974.


author: AMY, Judge. EZELL, J.

text:
    RANGER INSURANCE COMPANY v. STATE of Louisiana, et al.
    No. 06-488.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 11, 2006.
    David F. Hutchins, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Graymond F. Martin, Halpern & Martin, LLC, Metairie, LA, for Plaintiff/Appellant, Ranger Insurance Company.
    Court composed of Oswald A. Decuir, Marc T. Amy, and Billy Howard Ezell, Judges.
   AMY, Judge.

| ¡.The judgment in this consolidated matter is affirmed. See also Ranger Insurance Company v. State of Louisiana, 06-487 (La.App. 3 Cir. 10/11/06), 941 So.2d 182. All costs of this appeal are assigned to the appellant, Ranger Insurance Company.

AFFIRMED.

EZELL, Judge, dissents with written reasons.

EZELL, J.

dissenting.

hi respectfully disagree with the majority in this matter. Not only would I address Ranger’s assignment of error concerning notice in the Zamora judgment, but I would also reverse the trial court’s judgment finding the commissioner of the Fifteenth Judicial District Court had authority to sign both the Zamora and the McClendon bond forfeiture judgments.

Although Ranger succeeded in having the Zamora judgment nullified, it asks this court to address its alternative contention that the procedural requirements of La. R.S. 15:85 were not met as notice of the forfeiture was allegedly not mailed within a sixty-day window. A finding that the procedural requirements were not met would release the surety of any and all obligations under the bond. La.R.S. 15:85(3). The majority recognizes that neither the trial court’s reasons nor its judgment touches upon this issue. Citing La.Code Civ.P. art.2082, the majority declines to address the merits of the argument. I would address the merits of this issue because it was presented to the trial court and is raised on appeal as an assignment of error.

However, I find that the evidence in the record indicates that there is no merit to this argument which is probably why it was not addressed by the trial court. Silence on an issue raised in the trial court is considered a rejection of that issue. Mitchell Co. v. Mucavil, Inc., 02-381 (La. App. 3 Cir. 10/1/03), 855 So.2d 426.

On February 18, 2003, Zamora failed to appear for a hearing. It was noted that Zamora had failed to appear at a previous hearing and a fugitive warrant and bond forfeiture was in effect. However, no judgment of bond forfeiture had been | gsigned. It was not until after this hearing that a judgment of bond forfeiture was signed on March 19, 2003. Notice to the parties was mailed within sixty days of the date of the February 18 hearing. Ranger tries to assert that notice should have been mailed within sixty days of November 19, 2002, when Zamora first failed to appear. However, the judgment of bond forfeiture was based on Zamora’s failure to appear at the February 18 hearing. As this court held in State v. Breaux, 94-1553, 94-1562, (La.App. 3 Cir. 5/31/95), 657 So.2d 371, the State’s notice of nonappearance could be sent to the appearance bond surety within sixty days after date the of nonappearance upon which the bail bond forfeiture judgment was based and was not required to be sent within sixty days from when defendants first failed to appear for trial. Therefore, I find that the evidence indicates that notice was timely.

Regarding the signing of the bond forfeiture judgments by the court commissioner in both cases, La.R.S. 15:85(2) provides that “the court shall sign a written judgment of bond forfeiture.” In this case the commissioner for the Fifteenth Judicial District Court signed both judgments of bond forfeiture. The position of commissioner was created by La.R.S. 13:714. Regarding the commissioner’s authority, La.R.S. 13:716(A)(emphasis supplied) provides that:

The commissioner of the Fifteenth Judicial District Court shall perform such duties as are assigned by the chief judge of the district in accordance with rules which shall be prescribed by the elected judges of the court, not inconsistent herewith or with the constitution and laws of the state.

Louisiana Revised Statutes 13:716(B)(4)(a)(emphasis supplied) further provides:

In civil cases, the commissioner maybe designated and assigned to conduct hearings, including evidentiary hearings, and trials, except motions for injunctive relief and temporary restraining orders. In furtherance of the above, civil trials and hearings by the commissioner shall be governed by the following rules:
The commissioner may conduct any or all proceedings on any matter pending before the court and order the entry of judgment in any case where the parties consent to the matter being heard and adjudicated by the commissioner. Each judgment so entered shall be signed by a judge of the district. The clerk of court, at the time the action is filed, shall notify the parties of their right to consent to the exercise of such jurisdiction. The decision of the parties shall be communicated to the clerk. An aggrieved party may appeal a judgment of the commissioner rendered pursuant to the authority of ]3this Subsection in the same manner as an appeal from any other judgment of a district court.

The majority cites the Louisiana Supreme Court case of State v. O’Reilly, 00-2864, 00-2865 (La.5/15/01), 785 So.2d 768, which discusses the application of the de facto official doctrine. The supreme court in O’Reilly, 785 So.2d at 777 (quoting Ryder v. United States, 515 U.S. 177, 180, 115 S.Ct. 2031, 2034, 132 L.Ed.2d 136 (1995) (internal citations omitted)), explained the application of the doctrine as follows:

The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient. The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.

In this case we are not dealing with a de facto officer. The commissioner is a validly appointed position under state law. There is no argument about the constitutionality of the commissioner to act. The law simply does not provide the commissioner with the authority to sign judgments. There is no provision in the law giving the commissioner authority to sign the judgment. It is just the opposite. Aside from La.Code Civ.P. art.1911 providing that every final judgment shall be signed by a judgment, La.R.S. 13:716 specifically provides that a judge of the district court shall sign a civil judgment. The commissioner has the no authority to sign judgments under the law. Simply put, the commissioner exceeded the authority conferred on him by law.

In Bankers Ins. Co. v. State, 32,460 (La. App. 2 Cir. 10/27/99), 743 So.2d 870, the second circuit recognized that a judgment of bond forfeiture must be signed by the judge who ordered the judgment. As noted by La.R.S. 15:85(1), it is the judge, not the commissioner, who orders the judgment of bond forfeiture. While La.R.S. 13:716 gives the commissioner the authority to hold hearings and order the entry of judgment when the parties consent, the judge must still sign the judgment.

j4I also do not find that the local rules of the Fifteenth Judicial District Court confer any authority upon the commissioner to sign judgments. Local Rules for the Fifteenth Judicial District Court Parish of Lafayette provide that the commissioner can sign “forfeiture motions.” It does not provide that he can sign forfeiture judgments.

I think it is clear that the commissioner exceeded his authority in signing the judgments of bond forfeiture. In Bankers, 743 So.2d 870, the second circuit found that a judgment of bond forfeiture signed by a judge other than the one who ordered the judgment was a relative nullity pursuant to La.Code Civ.P. art 2004. The second circuit noted that the term “ill practice” was not limited to cases of actual fraud or wrongdoing, but broadly defined to encompass all situations in which a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right. The second circuit further noted that a judgment will be annulled for ill practices only when the circumstances under which it was rendered show the deprivation of legal rights of the litigant who seeks relief, and when enforcement of the judgment would be unconscionable and inequitable.

In the present cases the absence of a judge signing the judgment of bond forfeiture is a fatal defect. There have been cases in which the judge who signed the judgment was not the judge who heard the case. Cases have held this is a fatal defect and remanded the case to the trial court to issue a proper and valid judgment once the present judgment is annulled. See Employers Nat. Ins. Co. v. Workers’ Comp. Second Injury Bd., 95-1756 (La.App. 1 Cir. 4/4/96), 672 So.2d 309; and Louisiana Paving Co., Inc. v. St. Charles Parish Pub. Schs., 593 So.2d 892 (La.App. 5 Cir.1992). In this case, the fact that the commissioner signed the judgment and had no authority is a deprivation of legal rights that Ranger is entitled to under La.R.S. 15:85, enforcement of which would be unconscionable and inequitable. Therefore, I find that the judgments should be annulled and the case remanded for the issuance of a valid judgment.

I also note that the majority states that Ranger’s assignment of error lacks merit because Ranger did not raise the issue of whether the commissioner acted permissibly. I respectfully disagree as I find that this is precisely the issue that Ranger has raised.


author: AMY, Judge.

text:
    Gregory James KLUMPP v. Susan Dows Blake KLUMPP.
    No. 06-1141.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 11, 2006.

      S.C. Garcia, III, Basile J. Uddo, Garcia & Bishop, Metairie, LA, for Defendant/Appellant, Susan Dows Blake Klumpp.
    Kathleen Kay, Lake Charles, LA, for Plaintiff/Appellee, Gregory James Klumpp.
    Paul H. Spaht, Kantrow, Spaht, Weaver & Blitzer, Baton Rouge, LA, for Plaintiff/Appellee, Gregory James Klumpp.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

LThe plaintiff, Gregory James Klumpp, moves to dismiss the suspensive appeal of the defendant, Susan Dows Blake Klumpp, based on irregularities pursuant to La. Code Civ.P. art. 2161. For the reasons assigned, we deny the motion to dismiss and remand the case to the trial court for further consideration as explained below.

This case arises out of the community property dispute incident to the divorce of the parties. On December 15, 2005, the trial court signed a final judgment regarding the community property division. Notice of the judgment was mailed to the defendant on December 28, 2005. The defendant filed a motion for new trial that was denied by the trial court. Notice of this ruling was mailed to the defendant on February 3, 2006. The defendant timely filed a motion and order for suspensive appeal on February 15, 2006. The trial judge signed an order recusing himself on February 21, 2006, but thereafter signed the order for appeal on March 7, 2006. The trial court set a suspensive appeal bond in the amount of $292,202.56.

The record in this appeal was lodged in this court on September 5, 2006. The instant Motion to Dismiss Appeal for Irregularities was filed in this court on September 7, 2006.

In order to perfect a suspensive appeal, the appellant must obtain an order granting the appeal and file the suspensive appeal bond within the delays set forth in La.Code Civ.P. art. 2123. The plaintiff argues that the defendant did not perfect her appeal. The plaintiff contends the order granting the appeal is invalid because it was signed by a judge who had already been recused in this case. Judge Guy E. Bradberry signed an order recusing himself from this case on February 21, 2006. Thereafter, Judge Bradberry signed the order for | {.appeal on March 7, 2006. The judge was without authority to sign any order in the case once he had been re-cused. La.Code Civ.P. art. 153. Therefore, the order for appeal is null and has no effect. However, the defendant timely filed her motion and order for appeal with the trial court before the recusal and should not be penalized for the trial court’s error in signing the order. Accordingly, we deny the motion to dismiss the defendant’s appeal, and further remand this case to the trial court in order for the order for appeal to be considered by a judge with jurisdiction in this case.

The plaintiff also challenges the manner in which the defendant posted bond in this matter. We find that this issue is properly presented to the trial court pursuant to La.Code Civ.P. art.2088, and will not be considered by this court.

MOTION TO DISMISS APPEAL GRANTED IN PART AND DENIED IN PART.

CASE REMANDED WITH INSTRUCTIONS.


author: CARLSON, Justice,

text:
    The PARK ON LAKELAND DRIVE, INC. and Shane Douglas v. Nancy J. SPENCE.
    No. 2005-IA-02033-SCT.
    Supreme Court of Mississippi.
    Oct. 19, 2006.

      Leann W. Nealey, Robert A. Miller, Jackson, Lem Montgomery, III, attorneys for appellants.
    Michael Hartung, Jackson, S. Malcolm 0. Harrison, attorneys for appellee.
    Before WALLER, P.J., EASLEY and CARLSON, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. This case comes to us via an interlocutory appeal after the Circuit Court for the First Judicial District of Hinds County entered an order denying the motion to transfer venue to Rankin County and to dismiss Shane Douglas, filed by The Park on Lakeland Drive, Inc. The parties present a question of whether Shane Douglas was fraudulently joined for the sole purpose of establishing venue in Hinds County, Mississippi. Therefore, at issue is whether the plaintiff, Nancy J. Spence, asserted a reasonable claim of liability against Shane Douglas. Finding that the trial judge erred in refusing to transfer venue to Rankin County and dismiss Shane Douglas, we reverse the circuit court’s order and remand this case to the Circuit Court for the First Judicial District of Hinds County with instructions to transfer venue to the Circuit Court of Rankin County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. This personal injury suit arises from a collision between two ice skaters at The Park on Lakeland Drive, Inc. (The Park) during a public session. The Park is an amusement park in Rankin County. On or about January 2, 2002, the plaintiff, Nancy J. Spence, took her two children ice skating at The Park. Because her children were inexperienced skaters, Spence proceeded to teach them how to skate by skating backwards and holding their hands for guidance. While skating backwards, Spence and Maggie Harper, a ten-year-old girl, collided. Maggie was an amateur competition skater who was also a student at The Park. Maggie had attended private one-on-one lessons and group lessons. However, when this particular incident took place, Maggie was skating for her own recreational purposes. At the time of this incident, Maggie was at The Park during a paid public session, although she previously had a skating lesson earlier that same morning. The facts are disputed as to how the collision occurred. Spence claims Maggie was practicing maneuvers in the center ice when Maggie fell into Spence’s path and Spence tripped over Maggie, hitting Spence’s head on the ice.

¶ 3. Thereafter, on June 29, 2004, Spence filed the present lawsuit against The Park and its managers, Martha White, Jeffrey Wilburn, and Shane Douglas. After being served with process on August 31, 2004, The Park filed a motion for a transfer of venue and dismissal of Shane Douglas as a fraudulently joined defendant. The Park’s motion was heard on November 22, 2004, before Circuit Judge Winston L. Kidd. In support of its motion, The Park appended the sworn affidavit of Martha White, its general manager, detailing the incident and the responsibilities of Shane Douglas.

¶ 4. Spence then filed a motion to stay until discovery had been completed on the issue of whether venue was proper in Hinds County. Since the circuit court did not rule on the motion, discovery ensued. After discovery was completed, The Park again raised its objection to venue. On October 10, 2005, the Circuit Court of Hinds County entered an order denying The Park’s motion to transfer venue and Douglas’s motion to dismiss. It is from this order that The Park and Douglas filed a petition for an interlocutory appeal, which was granted by this Court. See M.R.A.P. 5.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN DENYING THE PARK’S MOTION FOR A CHANGE OF VENUE FROM HINDS COUNTY TO RANKIN COUNTY.

¶ 5. While the primary issue is that of the trial judge’s failure to transfer venue, we must also review the trial judge’s refusal to dismiss Shane Douglas as a defendant. When we are called upon to consider a trial court’s grant or denial of a motion to dismiss, this Court must apply a de novo standard of review. Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006). Likewise, in reviewing a trial court’s ruling on a motion to dismiss, we will consider the allegations of the complaint to be taken as true, and the motion to dismiss “should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Id. (citing Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1236 (Miss.1999)). See also T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995).

¶ 6. On the other hand, when reviewing a trial court’s ruling on a motion to change venue, this Court applies an abuse of discretion standard of review. Austin v. Wells, 919 So.2d 961, 963 (Miss.2006) (citing Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1002 (Miss.2004)); see also Christian v. McDonald, 907 So.2d 286, 287-88 (Miss.2005). A trial judge’s ruling on such motion “will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case.” Austin, 919 So.2d at 964 (quoting Wayne Gen. Hosp., 868 So.2d at 1002) (citing Stubbs v. Miss. Farm Bureau Cas. Ins. Co., 825 So.2d 8, 12 (Miss.2002); McCain Bldrs., Inc. v. Rescue Rooter, LLC, 797 So.2d 952, 954 (Miss.2001); Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446, 448 (Miss.1997)).

¶ 7. The Park asserts that Douglas is not a proper party to this lawsuit and that Spence named Douglas as a defendant solely for the purpose of establishing venue in Hinds County. Because The Park believes that Douglas was fraudulently joined, The Park requests this Court to transfer venue to Rankin County, which, according to The Park, is the only proper county for venue purposes.

¶ 8. “Venue is a function of statute.” Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1155 (Miss.1992). This lawsuit was commenced on June 29, 2004; however, in 2004, the Legislature amended Miss. Code Ann. Section 11-11-3. Despite the 2004 legislative amendment to the statute, the pre-amendment version was applicable to the facts of this case because of the June 2004 filing date. When this lawsuit was commenced, the relevant parts of Mississippi’s general venue statute, section 11-11-3 stated, “[cjivil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant resides or in the county where the alleged act or omission occurred or where the event that caused the injury occurred ...” Id. We have previously addressed venue issues in cases involving more than one defendant.

[W]here venue is good as to one defendant, it is good as to all defendants. This is true where the defendant upon whom venue is based is subsequently dismissed from the suit. In such situations, venue as to the remaining defendants continues despite the fact that venue would have been improper, if the original action had named them only.

Estate of Jones v. Quinn, 716 So.2d 624, 627 (Miss.1998); Blackledge v. Scott, 530 So.2d 1363, 1365 (Miss.1988) (citing Jefferson v. Magee, 205 So.2d 281 (Miss.1967)).

¶ 9. In New Biloxi Hospital, Inc. v. Frazier, 245 Miss. 185, 192, 146 So.2d 882, 884-85 (1962), we outlined a threé-prong test in which an action may remain in a county where it was brought.

Where an action is properly brought in a county in which one of the defendants resides, it may be retained notwithstanding there is a dismissal of the resident defendant, provided the following exists — [1] the action was begun in good faith in the bona fide belief that plaintiff had a cause of action against the resident defendant; [2] the joinder of the local defendant was not fraudulent or frivolous, with the intention of depriving the non-resident defendant of his right to be sued in his own county; and [3] there was a reasonable claim of liability asserted against the resident defendant.

Frazier, 245 Miss, at 192, 146 So.2d at 884-85 (citations omitted). Furthermore, to determine whether the joinder of a defendant is a result of fraud, the appropriate question to ask is “whether the facts support inclusion of the defendant upon whom venue is based.” Wayne Gen. Hosp., 868 So.2d at 1002; Estate of Jones, 716 So.2d at 628 (citing Jefferson v. Magee, 205 So.2d at 283). The Court is not concerned with whether the plaintiff’s attorney had the intent to fraudulently or frivolously establish venue. Id. In fact, the intent of the plaintiffs attorney is irrelevant. Therefore, in today’s case, we must determine whether Spence had a reasonable claim of liability against Douglas, or whether Douglas was in fact fraudulently joined.

¶ 10. It is necessary to begin with the “well-pleaded allegations of the eomplaint[,]” and any “other evidence in cognizable form[,]” including affidavits. Flight Line, Inc., 608 So.2d at 1155. In addition, it is well settled in Mississippi that “the plaintiff selects among the permissible venues, and his choice must be sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue.” Id. However, venue is a valuable right to the defendant as well and timely objections to improper venue must be honored. Id.

¶ 11. In the instant case, Spence failed to assert a reasonable claim of liability against Douglas. Therefore, the third prong of the Frazier test has not been satisfied. That being said, we are constrained to find that venue was never proper in Hinds County and that the trial judge abused his discretion in allowing Spence to conduct discovery. Douglas should have been dismissed following The Park’s submission of affidavits detailing the incident and the role, or non-role, that Douglas maintained in this incident. Spence never offered any evidence to support the inclusion of Douglas as a defendant.

¶ 12. Spence’s complaint alleges that the “Defendants, Martha White, Jeffrey Wilburn, and Shane Douglas were managers at the Ice Park, and in charge of supervision and safety and breached their duties of care causing or proximately contributing to the cause of Plaintiffs injuries and damages.” The complaint, nor anything else in the record, sets forth exactly what affirmative act or omission by Douglas created liability on his part.

¶ 13. After being served with Spence’s complaint, The Park filed a motion to transfer venue and to dismiss Douglas as a defendant in the lawsuit. In support of its motion, The Park appended an affidavit from its general manager, Martha White. In her affidavit, White states that Douglas was not present at the skating rink when the accident took place; that Douglas was not responsible for supervising public sessions; that Douglas’s only connection with The Park related to private skating lessons; and, that Douglas had no duty to discourage high speed skating, or to hire floor guards or rink attendants, nor did Douglas decide the rules of the rink.

¶ 14. Spence was unable to sufficiently respond to The Park’s motion and show that Douglas was in any way even remotely responsible for Spence’s accident. Initially, Spence responded to The Park’s motion by seeking discovery to compile factual support for Spence’s allegation. The trial judge never ruled on The Park’s motion; and therefore, discovery ensued. However, we find that even upon completion of discovery, there was nothing offered by Spence to assert a reasonable claim of liability against Douglas. Spence’s main theory relies on Douglas’s expertise in skating. Douglas cannot be responsible based solely on his knowledge of skating. In order to prevail against Douglas, Spence must show some duty on the part of Douglas, and that Douglas breached that duty. Stated differently, in order to recover against Douglas, Spence is required to prove the conventional tort elements of (1) duty, (2) breach of duty, (3) proximate causation, and (4) damages. City of Greenville v. Jones, 925 So.2d 106, 109 (Miss.2006); Montgomery v. Wool-bright, 904 So.2d 1027, 1029 (Miss.2004). This, Spence has wholly failed to do. Additionally, to impose liability on Douglas anytime a “skating student” gets into an accident would be nonsensical, especially when the student is involved in recreational skating during a public session. That being said, the motion to dismiss Douglas and transfer venue to Rankin County, Mississippi was improperly denied. We thus find this issue to have merit.

II. WHETHER THE CIRCUIT COURT ERRED IN DENYING THE MOTION TO DISMISS SHANE DOUGLAS.

¶ 15. Alternatively, The Park argues that Douglas was not served with process within the 120-day provision as set out in Miss. R. Civ. P. 4(h), and that Douglas must therefore be dismissed from this action. However, based on our disposition of Issue I, we find it unnecessary to address this issue.

CONCLUSION

¶ 16. For the reasons stated, we find venue in this case is improper in Hinds County, because Shane Douglas was fraudulently joined and must be dismissed from the case. Accordingly, we are constrained as a matter of well-established law to reverse the circuit court’s order denying the motion to dismiss Shane Douglas and transfer venue to Rankin County, and remand this case to the Circuit Court for the First Judicial District of Hinds County with instructions to (1) dismiss, without prejudice, Shane Douglas as a defendant and (2) transfer the venue of this case to the Circuit Court of Rankin County for further proceedings consistent with this opinion.

¶ 17. REVERSED AND REMANDED.

SMITH, C.J., WALLER, P.J., EASLEY, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. COBB, P.J., AND GRAVES, J., NOT PARTICIPATING.

      . In the record, Jeffrey Wilburn is sometimes referred to as Jeffrey Welborn. Since his signed affidavit reveals Jeffrey's surname as "Welborn,” we will maintain consistency by referring to Jeffrey as "Welborn,” except when referring to quoted text using the name "Wilburn.”

      . In her complaint, Spence asserted that the individual defendants were all residents of Hinds County; however, in its motion to transfer venue and dismiss Douglas, with the attached affidavits of Martha White and Jeffrey Welborn, The Park alleged, inter alia, that both White and Welborn were Rankin County residents, and that only Douglas was a Hinds County resident.

      . Shane Douglas was not served with process until November 18, 2004, approximately 142 days after commencement of the case. Therefore, he was not served within the requisite time period as provided in Miss. R. Civ. P. 4(h).

      . The affidavit alleged various facts, such as: "Shane Douglas, although employed by The Park, was not working, was not scheduled to work, and was not present at The Park when the subject incident occurred on January 2, 2002.” Douglas was a skate instructor at The Park, and his job was to schedule and administer private skating lessons upon request; Douglas did not manage The Park, did not hire skate attendants or participate in any staffing or employment decisions, and did not decide the rules of the rink that applied during public skating sessions; while Douglas, as a skate instructor, enforced the rules and supervised his skaters while he was on the ice giving lessons, Douglas was not scheduled to teach a skating lesson and was not on the premises at the time of Spence's alleged injury and, thus, Douglas could not have personally committed any act or omission that caused Spence to fall.

      .Shane Douglas joined in The Park's motion in addition to filing a separate motion for his dismissal from the lawsuit.

      . The 2004 legislative amendment to section 11-11-3, which was effective "from and after Sept. 1, 2004, and applicable to all causes of action filed on or after Sept. 1, 2004,” is not applicable to this case.