author: GARRETT, J.

text:
    Doris STEVENS, Plaintiff-Appellant v. CITY OF SHREVEPORT and Center-Point Energy Resources Corp., Defendants-Appellees.
    No. 49,437-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.
    Rehearing Denied Jan. 8, 2015.

      Doris Stevens, In Proper Person.
    Law Offices of Ronald F. Lattier, LLC by Ronald F. Lattier, Curtis R. Joseph, Jr., Shreveport, Senae D. Hall, for Appel-lee City of Shreveport.
    Barham Warner Stroud, LLC, Shreveport, by Richard G. Barham, for Appellee, CenterPoint Energy Resources Corp.
    Before MOORE, PITMAN arid GARRETT, JJ.
   GARRETT, J.

hThe plaintiff, Doris Stevens, appeals from the trial court’s grant of summary judgments in favor of the defendants, City of Shreveport (“City”) and CenterPoint Energy Resources Corp. (“CenterPoint”), dismissing her claims. For the following reasons, we affirm.

FACTS

On April 11, 2013, the plaintiff, represented by counsel, filed a petition for damages against the City and CenterPoint. Stevens alleged that on April 17, 2012, she was riding a bicycle on a sidewalk on Lakeshore Drive when she rode into a section where the concrete was missing. Stevens claimed her bicycle flipped and she was injured. Stevens asserted that people in the neighborhood told her Cen-terPoint had been doing work on the sidewalk. She alleged that the defendants knew or should have known of the defective condition of the sidewalk. Both defendants answered and denied any liability.

Discovery was undertaken. Stevens and representatives from the City and Center-Point were deposed. On September 13, 2013, the matter was set for a jury trial on February 24, 2014. On October 31, 2013, the plaintiffs attorney sent her a withdrawal letter, candidly stating that the cost of litigation outweighed any potential settlement that might be received for her claim. The withdrawal letter advised that the matter was set for jury trial on Febru-' ary 24, 2014, and there were no motions pending before the court. A motion to withdraw was filed on November 5, 2013, and the order allowing the -withdrawal was signed by the trial court on November 7, 2013.

|2On November 20, 2013, CenterPoint filed a motion for summary judgment. On January 3, 2014, the City filed its motion for summary judgment. The legal bases for these motions and the evidence submitted in support of them are discussed below. Stevens then applied for in forma pauperis status, which was granted by the trial court on January 16, 2014.

Both motions for summary judgment were considered on February 3, 2014. Stevens had not hired new counsel and proceeded pro se. Although Stevens was served with the motions, it appears that she erroneously thought that she was appearing in court for a trial. No written response or opposition to the motions for summary judgment was filed by Stevens. The trial court granted the summary judg-merits in favor of the defendants. Stevens appealed.

SELF REPRESENTATION

Stevens is representing herself on appeal. She states in her brief that she requested a continuance on February 3, 2014, in order to secure a new attorney, but her request was omitted from the transcript of the hearing. The record shows that Stevens was personally notified on October 31, 2013, that her attorney was withdrawing, that her case was set for a jury trial on February 24, 2014, and at that point no motions were pending. The hearing on the motions was held on February 3, 2014. As noted by the trial court, Stevens had three months to hire another attorney to represent her in this matter and she failed to do so. The record shows that the trial court had carefully reviewed the motions for summary judgment, together with the | .^evidence submitted in support of the motions, prior to the hearing. The court noted its review of the suit indicated that no opposition had been filed. The court also patiently listened to the plaintiffs comments in court. Contrary to the assertions in her brief, the record does not reflect that Stevens ever requested a continuance. Under the circumstances presented in this case, we find no error on the part of the trial court in proceeding to consider the defense motions for summary judgment.

The City urges that, because Stevens failed to list any assignments of error in this appeal, under URCA 2-12.4, she has abandoned any and all potential assignments of error. Pursuant to La. C.C.P. art. 2129, an assignment of errors is not necessary in any appeal. La. C.C.P. art. 2164 gives the appellate court authority to render any judgment which is just, legal, and proper upon the record on appeal. Based upon these authorities, the Louisiana Supreme Court has held that an appellate court has the authority to consider an issue even when there is no assignment of error. Merrill v. Greyhound Lines, Inc., 2010-2827 (La.4/29/11), 60 So.3d 600.-

Where pro se litigants are concerned, in the interest of justice, this court will read pro se filings indulgently and attempt to construe a brief as though assignments of error were properly made. See Greenwood Cmty. Ctr. v. Calep, 48,737 (La.App.2d Cir.1/15/14), 132 So.3d 470; In re Succession of Taylor, 44,471 (La.App.2d Cir.6/24/09), 13 So.3d 1253; Graham v. Nissan, 39,656 (La.App.2d Cir.6/29/05), 907 So.2d 213. In this matter, Stevens essentially argues that the trial court erred in granting summary judgments in favor of the defendants, dismissing her suit against them. We decline to reject the brief for noncompliance and will consider whether the summary judgments were properly granted.

However, even with the leeway or patience extended to a pro se litigant in the form of liberally construed pleadings, the pro se claimant is still required to meet his burden of proof. Greenwood Cmty. Ctr. v. Calep, supra. The pro se litigant assumes all responsibility for his own inadequacy and lack of knowledge of procedural and substantive law. Dixon v. Shuford, 28,138 (La.App.2d Cir.4/3/96), 671 So.2d 1213; Murray v. Town of Mansura, 2006-355 (La.App.3d Cir.9/27/06), 940 So.2d 832, writ denied, 2006-2949 (La.2/16/07), 949 So.2d 419, cert. denied, 552 U.S. 915, 128 S.Ct. 270, 169 L.Ed.2d 197 (2007); Cutler v. McGee, 2009-1290 (La.App.3d Cir.5/5/10), 38 So.3d 481, writ denied, 2010-1879 (La.11/19/10), 49 So.3d 393; Gray v. State, 2005-617 (La.App.3d Cir.2/15/06), 923 So.2d 812; Williams v. Jefferson Parish Credit Union, 13-1005 (La.App.5th Cir.6/24/14), 145 So.3d 491; Dronet v. Dronet, 96-982 (La.App.5th Cir.4/9/97), 694 So.2d 426, writ not cons., 97-1263 (La.9/5/97), 699 So.2d 82.

IsSUMMARY JUDGMENT PRINCIPLES

Summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A). A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof remains with the mov-ant.

However, if the movant will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to provide factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

An adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or other appropriate summary judgment evidence, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967; Samaha v. Rau, supra.

| ^Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991); Lewis v. Coleman, 48,173 (La.App.2d Cir.6/26/13), 118 So.3d 492, writ denied, 2013-1993 (La.11/15/13), 125 So.3d 1108.

CENTERPOINT

CenterPoint argues that the trial court ruling granting summary judgment in its favor was proper where the motion, with supporting evidence, had been pending for more than two months and' the plaintiff failed to submit any opposition to the motion. It claims there was a complete lack of evidence that it had any care, custody, or control over the sidewalk or that it created the hole where Stevens allegedly fell off her bicycle. According to Center-Point, this was an essential element of the plaintiff’s claim against it and she failed to produce sufficient factual support to establish that she would be able to satisfy her evidentiary burden at trial. Therefore, it claims that the grant of summary judgment in its favor was proper.

Discussion

Regarding the liability for the damage caused by things, La. C.C. art. 2317 provides:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

[7La. C.C. art. 2317.1 states:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Actions under La. C.C. art. 2317.1 require proof that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage, and that the defendant knew or should have known of the defect. Odom v. Siegel, 48,757 (La.App.2d Cir.1/15/14), 130 So.3d 1024; Johnson v. Super 8 Lodge-Shreveport, 47,081 (La.App.2d Cir.4/25/12), 92 So.3d 519.

In this case, CenterPoint urged below that it did not have custody of the sidewalk and that this fact was not in dispute. In support of its motion, CenterPoint introduced a portion of the deposition of its representative, Robert Kidd, who stated that CenterPoint does not own the sidewalk and did not maintain it. CenterPoint also pointed to allegations in the plaintiffs petition that the sidewalk was owned by the City of Shreveport. Further, Kidd attested that, while CenterPoint installed a pipeline in the area of the sidewalk, that work was not done until July 2012, several months after the plaintiffs accident.

As the adverse party to a motion for summary judgment, Stevens could not rest upon the mere allegations of her pleadings, but her response, |sby affidavits or other appropriate summary judgment evidence, must set forth facts showing that there is a genuine issue for trial. She was required to produce factual support establishing that she could satisfy her evidentiary burden of proof at trial. This burden of proof included a showing that CenterPoint had custody of the sidewalk. Stevens was represented by counsel during discovery in this matter. Discovery failed to produce any proof that CenterPoint had custody of the sidewalk during the time this accident occurred. Stevens filed no opposition to CenterPoint’s motion for summary judgment. Therefore, Stevens failed to provide factual support sufficient to show that she would be able to satisfy her evidentia-ry burden of proof at trial and there is no genuine issue of material fact as to Center-Point’s liability. The trial court acted properly in granting summary judgment in favor of CenterPoint.

CITY OF SHREVEPORT

The City argues that Stevens failed to produce any evidence of its liability in this matter. According to the City, Stevens failed to show that the City had actual or constructive notice of the alleged defective condition of the sidewalk prior to the accident or that the City had a reasonable opportunity to remedy any alleged defect prior to the accident. The City also asserted that Stevens failed to show that the sidewalk presented an unreasonable risk of harm. The City contends that Stevens did not introduce any evidence to show that the City breached any duty to her.

| ^Discussion

La. R.S. 9:2800 provides in pertinent part:

C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge....
G. (1) “Public entity” means and includes ... political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions....
(2) “Public site or area” means any publicly owned or common thing, or any privately owned property over which the public’s access is not prohibited, limited, or restricted in some manner including those areas of unrestricted access such as streets, sidewalks, parks, or public squares.

To recover against a public entity for damages due to a defective thing, a plaintiff must prove that: (l) the thing which caused the damage was in the custody of the public entity; (2) the thing was defective due to a condition creating an unreasonable risk of harm; (3) the entity had actual or constructive notice of the condition yet failed to take corrective action within a reasonable period of time; and (4) the defect was a cause of plaintiffs harm. Chambers v. Village of Moreauville, 2011-898 (La.1/24/12), 85 So.3d 593; Benson v. State, 48,300 (La.App.2d Cir.10/9/13), 124 So.3d 544. Failure to meet any one statutory element will defeat a negligence claim against a public entity. Benson v. State, supra; Breitling v. City of Shreveport, 44,112 (La.App.2d Cir.5/13/09), 12 So.3d 457, writ not cons., 2009-1330 (La.9/25/09), 18 So.3d 95; Skulich v. Fuller, 46,733 (La.App.2d Cir.12/14/11), 82 So.3d 467.

The City has not disputed the plaintiffs allegation that it had custody of the sidewalk. Stevens was then required to show that the sidewalk was defective due to a condition creating an unreasonable risk of harm. Courts have adopted a risk-utility balancing test to determine whether a condition is unreasonably dangerous, wherein the trier of fact balances the gravity and the risk of harm against the individual and societal utility and the cost and feasibility of repair. Chambers v. Village of Moreauville, supra; Dickson v. City of Shreveport, 47,268 (La.App.2d Cir.8/8/12), 104 So.3d 9, writ denied, 2012-2284 (La.11/30/12), 103 So.3d 375. The test requires the consideration of whether or not the sidewalk was maintained in a reasonably safe condition for persons exercising ordinary care and prudence. Therefore, although municipalities have a duty to maintain sidewalks in a reasonably safe condition, they are' not insurers of the safety of pedestrians and are not required to maintain sidewalks in perfect condition. To be liable for damages caused by a defect, the defect must be dangerous or calculated to cause injury. Chambers v. Village of Moreauville, supra.

While pedestrians are not required to scrutinize a walkway for irregularities, they do have a duty to see what should be seen and to observe whether a pathway is clear. Williams v. Ruben Residential Properties, LLC, 46,040 (La.App.2d Cir.3/2/11), 58 So.3d 534; Dickson v. City of Shreveport, supra. Defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition should have been obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. Eisenhardt v. Snook, 2008-1287 (La.3/17/09), 8 So.3d 541; Dowdy v. City of Monroe, 46,693 (La.App.2d Cir.11/2/11), 78 So.3d 791; Williams v. Ruben Residential Properties, LLC, supra.

In its motion for summary judgment, the City relied in part upon the deposition testimony of Stevens to show that the sidewalk did not present an unreasonable risk of harm because the defect, if any, was open and obvious. Stevens admitted that the accident occurred before noon on a clear, sunny day, and she had no problem seeing. She failed to come forward in an opposition with any facts showing that she could prove at trial that the sidewalk presented an unreasonable risk of harm. The plaintiffs failure to establish a genuine issue of material fact on this element of her claim is sufficient to support the summary judgment in favor of the City.

The City also shows that there is a lack of factual support for another essential element of the plaintiffs claim — actual or constructive notice to the City of the condition of the sidewalk. Before a municipality can be held liable for injuries resulting from a defect in the condition of a public way, the municipality must have had actual or constructive notice of the particular defect that gave rise to the injury. Failure to meet this statutory element will defeat a negligence claim against a public entity. Actual notice is knowledge of dangerous defects or conditions by a corporate officer or | ^employee of the public entity having a duty either to keep the property involved in good repair or to report defects and dangerous conditions to the proper authorities. Constructive notice is defined by La. R.S. 9:2800 as the existence of facts which infer actual knowledge. Ordinarily, to establish constructive notice, plaintiffs must prove that the defect causing the injury existed over a sufficient length of time to establish that reasonable diligence would have led to its discovery and repair. Smithwick v. City of Farmerville, 45,362 (La.App.2d Cir.6/23/10), 42 So.3d 1039, writ denied, 2010-2013 (La.11/12/10), 49 So.3d 888; Benson v. State, supra; Breitling v. City of Shreveport, supra.

In support of its motion for summary judgment, the City presented the deposition of its representative, Nathan Kemps, who testified that the City was never made aware of any unsafe condition pertaining to the sidewalk before the plaintiffs alleged accident. Kemps also stated that he had no information that the City or its representatives removed the portion of the sidewalk where the alleged accident occurred. Stevens herself testified in her deposition that she had no evidence that the City knew about the condition of the sidewalk before her alleged incident. Stevens never presented any evidence in opposition to the City’s motion for summary judgment to show that at trial she could carry her burden of proving that the City had actual or constructive notice of the alleged defect in the sidewalk. Her failure to establish a genuine issue of material fact as to this essential | ^element of her claim provides additional support for the grant of summary judgment in favor of the City.

CONCLUSION

For the reasons stated above, we affirm the trial court’s grant of summary judgments in favor of CenterPoint Energy Resources Corp. and the City of Shreveport, rejecting the claims of the plaintiff, Doris Stevens. All costs in this court are assessed to Doris Stevens, to the extent permitted by La. C.C.P. art. 5186.

AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, DREW, MOORE, PITMAN and GARRETT, JJ.

Rehearing denied.

      . The attorney withdrawal letter, signed by Stevens, clearly advised her the case was set for a jury trial on February 24, 2014.

      . In her brief, Stevens also contends that the trial court rushed her case, was not patient with her, and did not allow her to fully explain why she was representing herself. She alleges that the defendants’ attorneys approached the bench and talked with the judge, but the trial court prevented her from approaching the bench. Based upon these actions, Stevens claims that the trial court violated the Code of Judicial Conduct, Canon 3, dealing with adjudicative responsibilities. The plaintiff’s assertions are completely unsupported by the record. Further, this court is not the proper forum in which to assert alleged violations of the Code of Judicial Conduct.

      . The scheduling order for the jury trial provided that all witness and exhibit lists were required to be filed no later than sixty (60) days before trial. It does not appear from the record that the plaintiff ever filed a witness or exhibit list.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    CADLEROCK JOINT VENTURES CO., INC., Plaintiff-Appellant v. J. GRAVES SCAFFOLDING CO., INC., J.W. Graves Enterprises, Inc., Brian E. Bristow, Holly Bristow, Michael M. Allen, Eddie T. Scott, Karen P. Scott, John Glen Tyler and Doris L. Tyler, Defendant-Appellees.
    No. 49,475-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Newman, Mathis, Brady & Spedale by Mark C. Landry, Metairie, LA, for Appellant, CadleRock Joint Venture, L.P.
    Weiner, Weiss & Madison by R. Joseph. Naus, M. Allyn Stroud, Shreveport, LA, for Appellees, Brian E. Bristow and Holly Bristow.
    Patrick R. Jackson, APLC by Patrick R. Jackson, for Appellees, J. Graves Scaffolding Co., Inc., J.W. Graves Enterprises, Inc., Eddie T. Scott and Karen P. Scott.
    Daye, Bowie & Beresko by Ralph Scott Bowie, Shreveport, for Appellee, Michael M. Allen.
    Garth J. Ridge, Baton Rouge, for Appel-lees, John Glen Tyler and Doris L. Tyler.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   MOORE, J.

| CadleRock Joint Venture LP appeals a judgment dismissing, on exceptions of prescription, its suit for a deficiency judgment. For the reasons expressed, we affirm.

Factual Background

The original borrower, J. Graves Scaffolding Inc., obtained a line of credit from Bank One La. in May 1999. It executed a collateral mortgage note in the principal sum of $500,000, encumbering two industrial tracts on West 62nd St. in Shreveport; an act of collateral mortgage, par-aphed ne varietur for identification with the collateral mortgage note; and a collateral pledge agreement, all in favor of Bank One La. The other defendants executed commercial guarantees, making them solidarity liable for any debts incurred on the credit line.

J. Graves Scaffolding borrowed money on the credit line, executing promissory notes (“the hand notes”) for $2,087,824 and $700,000 on February 27, 2002. By this time, Bank One La. had merged into Bank One NA; in 2004, Bank One NA merged into JPMorgan Chase.

The hand notes fell into default. In February 2005, JPMorgan Chase filed an executory process suit against J. Graves Scaffolding in the First Judicial District Court. Attached to the petition were the original hand notes and collateral mortgage note; these remained in the possession of the First JDC clerk of court. The matter proceeded to a sheriffs sale on June 15, 2005, at which the lender, JPMor-gan Chase, bought the two tracts for 12$200,000, leaving a deficiency of over $2 million. JPMorgan Chase took no further steps to collect the deficiency. The clerk of court marked the act of collateral mortgage “cancelled” on August 8, 2005.

Over two years later, on September 12, 2007, JPMorgan Chase sold the hand notes and collateral to CadleRock. The bill of sale listed a principal balance due on the notes of over $8.1 million, but stated no sale price and declared the sale to be “as is,” without warranty, recourse or representation as to title, collectibility or otherwise.

Nearly six years later, on September 6, 2018, CadleRock filed a motion to substitute itself as party plaintiff in the executo-ry process suit, with a motion to withdraw the original hand notes and collateral mortgage note; this was granted on September 10, and CadleRock received the original notes on September 13.

Procedural History

CadleRock filed the instant suit for deficiency judgment in the 26th Judicial District Court on September 23, 2013. It named J. Graves Scaffolding and all the guarantors as defendants, and alleged principal and interest of almost $3.2 million due on the hand notes.

The defendants, in various alignments, filed four exceptions of prescription. They asserted that the claim was prescribed on its face, coming over five years after the notes fell due, La. C.C. art. 3498, or five years after the final payment, by sheriffs sale on June 15, 2005. They argued that prescription was not interrupted by possession of the pledged | .¡collateral mortgage note, as CadleRock did not get corporeal possession of this until September 2013, years after the claim prescribed. They also argued that JPMorgan Chase abandoned the matter by failing to take any step in its prosecution for three years after the sheriffs sale, La. C.C.P. art. 561, La. C.C. art. 3463.

CadleRock opposed the exceptions, urging the “constant acknowledgment rule,” that prescription does not run in favor of a debtor whose debt is secured by a pledge as long as the thing pledged remains in the possession of the pledgee. McGill v. Thigpen, 34,386 (La.App. 2 Cir. 2/28/01), 780 So.2d 1224, and citations therein. It argued that a pledgee need not have actual possession of the collateral mortgage and note to interrupt prescription; “it is sufficient that it be in [the possession of] someone who holds for the account of the creditor,” Scott v. Corkern, 231 La. 368, 380, 91 So.2d 569, 573 (1956). It submitted that JPMorgan Chase was required to deliver the pledge to the clerk of court, La. C.C.P. art. 2635, so the clerk was holding on behalf of the creditor; after buying the hand notes, CadleRock was under no duty to substitute itself as party plaintiff unless ordered by the court, La. C.C.P. art. 807. It concluded that “precarious possession” by the clerk of court after September 2007 interrupted prescription on CadleRock’s behalf.

After a hearing on February 24, 2014, the district court ruled orally that the proees-verbal of the sheriffs sale was August 8, 2005, after which the action was abandoned for failure to prosecute for three years, effective August 8, 2008; on that date, the five-year prescriptive period began | ^running again, ending on August 8, 2013. CadleRock did not move to withdraw the collateral mortgage note until over five years later, on September 11, 2013, and thus the action was prescribed. The court rendered judgment sustaining the exceptions and dismissing CadleRock’s •suit.

The Parties’ Positions

CadleRock has appealed, raising two related assignments of error: (1) The court erred in sustaining the exceptions of prescription; (2) The court erred in concluding that the effect of the corporeal possession of the collateral mortgage note by the clerk of court terminated after the sheriffs sale and that the executory proceeding was abandoned by operation of law. CadleR-ock reiterates the general concept of the constant acknowledgment rule, as summarized in three articles by Prof. Max Nathan, this court’s synopsis in McGill v. Thigpen, supra, and the supreme court’s seminal opinion of Succession of Picard, 238 La. 455, 115 So.2d 817 (1959).

CadleRock urges that the act of pledging, not the identity of who holds the pledged property, is what actually interrupts prescription. “Possession, though essential to the validity of the pledge, need not be always in the creditor. It is sufficient that the thing pledged be in the possession of one occupying ad hoc, the position of a trustee.” Conger v. City of New Orleans, 32 La.Ann. 1250 (1880); Scott v. Corkern, supra (using the term pro hac vice); First Nat’l Bank of Shreveport v. Querbes, 253 So.2d 123 (La.App. 2 Cir.1971) (using the phrase “in the capacity of a | ¡^trustee”). JPMorgan Chase had to file the act of collateral mortgage with the clerk of court to prove its right to executory process, La. C.C.P. art. 2635, and the clerk became the custodian of that document, La. C.C.P. art. 253. As such, the clerk was custodian of the document for JPMorgan Chase and, later, for CadleRock. In support, it cites Gulf National LLC v. Alfortish Inc., 05-804 (La.App. 5 Cir. 3/14/06), 926 So.2d 676, writ not cons., 2006-0879 (La.6/2/06), 929 So.2d 1241, which it urges is indistinguishable from the instant case.

By its second assignment, CadleRock disputes the court’s finding that the sheriffs sale extinguished the mortgage. Again citing Succession of Picard, supra, it urges that regardless of the value of the thing pledged, the obligation of the pledg-ee to return the property continues: “Possession is the factor which serves as a constant acknowledgment of the debt.” Even if the parties revoked the contracts, the pledge would continue to interrupt prescription, as in Kaplan v. University Lake Corp., 381 So.2d 385 (La.1980). CadleRock suggests that the debtor could have requested return of the notes after the seizure and sale, but did not do so, thus continuing the pledge and interruption of prescription. It concludes that the hand notes cannot prescribe, and the exceptions of prescription must be overruled.

The defendants respond that constant acknowledgment is irrelevant: once the property encumbered by the act of collateral mortgage was sold, the collateral mortgage note ceased to exist and was no longer a pledge that interrupted prescription. The claim prescribed on its face five years after the hand notes were due, La. C.C. art. 3498; and the act of collateral | f,mortgage was canceled by operation of law by the sheriffs sale of the mortgaged property, La. C.C. art. 3391(2) and (4), as noted by the clerk of court on August 8, 2005. Because an essential element of a collateral mortgage, the act of collateral mortgage, was extinguished, the whole package was extinguished; the five-year prescriptive period started on the date of the sheriffs sale and ended June 15, 2010. With no collateral mortgage, there was nothing to interrupt prescription under the constant acknowledgment rule. In support, they cite Diamond Servs. Corp. v. Benoit, 2000-0469, p. 17 (La.2/21/01), 780 So.2d 367, 377:

Without an act of mortgage, there can be no mortgage note; without a mortgage note, there is no collateral to be pledged; without the pledge of the note, the mortgage is dormant and there is no obligation secured by the mortgage. Nathan and Marshall, [op. eit], 33 La. L. Rev. at 521.

The possession of an “empty and valueless” obligation, they contend, such as the extinguished collateral mortgage note, is not the type of pledge that interrupts prescription. When the thing pledged is extinguished, they submit, there is no constant acknowledgment. Finally, they show that the extinction of the principal obligation extinguishes the suretyship, La. C.C. art. 3059; Finova Capital Corp. v. Short’s Pharmacy Inc., 39,642 (La.App. 2 Cir. 5/13/05), 904 So.2d 57, writ denied, 2005-1930 (La.2/17/06), 924 So.2d 1022. They conclude that the judgment should be affirmed.

Discussion

A collateral mortgage is a mortgage given to secure a written obligation, such as a collateral mortgage note, negotiable or nonnegotiable instrument, or other written evidence of debt, that is issued, pledged, or 17otherwise used as security for another obligation. La. R.S. 9:5550(1); Diamond Servs. Corp. v. Benoit, supra. A collateral mortgage is not a “pure” mortgage but a hybrid combining the security devices of mortgage and pledge into one. Diamond Servs. Corp. v. Benoit, supra; First Federal Sav. & Loan Ass’n v. Moss, 616 So.2d 648 (La.1993). In a collateral mortgage, the borrower’s mortgage secures a fictitious collateral mortgage note, which is payable to bearer on demand; the collateral mortgage note is then pledged under a collateral pledge agreement to secure the borrower’s true indebtedness under one or more hand notes. Diamond Servs. Corp. v. Benoit, supra, citing David S. Willenzik, Louisiana Secured Transactions, § 2:13 (2000). The effect of the pledge is at issue in the instant case.

Prescription does not run in favor of a debtor whose debt is secured by a pledge as long as the thing pledged remains in the possession of the pledgee. Kaplan v. University Lake Corp., supra; McGill v. Thigpen, supra. This principle, known as the constant acknowledgment rule, holds that it is not the act of pledging that interrupts prescription; rather, it is the retention by the pledgee of the thing pledged that serves as constant acknowledgment of the debt and renunciation of prescription. Id. Even when the note pledged to secure another note has prescribed, the pledgee’s retention of the prescribed promissory note still interrupts prescription on the primary debt. Succession of Picard, supra; McGill v. Thigpen, supra.

Moreover, “personal liability does not generally arise on the collateral mortgage note when the note is pledged to secure the obligation of a third party.” Diamond Servs. Corp. v. Benoit, supra at 22-23, 780 So.2d at 380. |sThe facts of Benoit and the plurality’s use of “generally” limited the holding to a situation where the maker of the ne varietur note allowed its pledge for the debt of a third party. However, the rationale may logically be extended to apply to any ne varietur note, even when the maker of that note and the maker of the hand note are the same. Nevertheless, as the Louisiana Supreme Court has not addressed the issue, we will rest our ruling on the failure to reconstitute the pledge of the ne varietur note after the conclusion of the executory process proceeding.

Executory process is a proceeding in rem and does not seek a personal judgment against the debtor. Louisiana Bank & Tr. Co. v. Pernici, 372 So.2d 788 (La.App. 2 Cir.1979); First Guaranty Bank v. Ratcliff, 424 So.2d 289 (La.App. 1 Cir.1982), writ denied, 432 So.2d 265 (1983). Only after converting the concluded in rem action to an ordinary proceeding may the creditor seek a deficiency judgment. La. C.C.P. art. 2772. The distinction between an in rem action on the mortgage itself, and an ordinary personal action, which might arguably encompass liability on the ne varietur note, is crucial. In an in rem action, the creditor may withdraw the ne varietur note after the sheriffs sale and thereby reconstitute the pledge; or the creditor may convert the in rem action to an ordinary action for a deficiency, starting prescription anew. In the latter case, the ne varietur note would remain with the clerk of court from one suit to the next, and interruption of prescription by suit would suffice. La. C.C.P. art. 3462. However, if the in rem suit has been concluded by sheriffs sale, and the creditor has not withdrawn the ne varie-tur note from the clerk of court |9within five years, prescription operates. Such is the case here.

In reaching this conclusion, we reject CadleRock’s assertion that the pledge of the ne varietur note continued upon the institution of the executory process suit and the filing of the note' into the suit record. The privilege imparted by the pledge, or the pledge itself, exists only when the note “has been actually put and remains in the possession of the creditor, or of a third person agreed on by the parties.” La. C.C. art. 3162. Possession is relinquished by the pledgee upon the filing of suit, and the clerk of court is not within the language and meaning of “a third person agreed on by the parties” who might continue the pledge in force.

The instant record shows that the pledge occurred on May 12, 1999, and constant acknowledgment began to operate from that date. JPMorgan Chase filed for executory process on February 25, 2005, and the suit interrupted prescription from that date. The sheriffs sale occurred on June 15, 2005. As of that date, prescription was interrupted only by partial payment received from the sheriffs sale, and would accrue in .five years. The record does not show that JPMorgan Chase withdrew the act of collateral mortgage from the clerk of court until September 6, 2013, or over five years later. The district court did not err in finding that by this time, prescription has run.

hoWe do not accept CadleRock’s contention that Gulf National v. Alfortish, supra, mandates the opposite result. That opinion states that the suit for executory process was “supplemented” on July 28, 1997; that the original creditor sold the debt package to Gulf National on September 27, 2002; and that Gulf National moved to withdraw the collateral mortgage package on October 21, 2004. The, opinion critically does not state when the judgment of default was taken against the guarantors or whether any sheriffs sale ever occurred. It is entirely possible that Gulf National retook the ne varietur note within five years after payment by execution, in which event the result is justified. Gulf National is therefore distinguished, and to the extent that it recognizes constant acknowledgment after payment of the hand note and without the creditor’s actual possession of the collateral mortgage package, we would decline to follow it.

In summary, JPMorgan Chase did not convert the concluded executory process proceeding to an ordinary action and continue the interruption of prescription on its debt. Likewise, it did not withdraw the ne varietur note from the suit record and attempt to reconstitute the pledge. Both of these actions were within the creditor’s power, but because they did not occur, prescription ran.

In light of this conclusion, we pretermit consideration of the other contentions raised by the parties.

Conclusion

For the reasons expressed, the judgment sustaining the exception of prescription is affirmed at CadleRock Joint Venture LP’s cost.

AFFIRMED.

      . The other defendants are J.W. Graves Enterprises Inc., a related company, and Brian and Holly Bristow, Michael M. Allen, Eddie and Karen Scott, and John and Doris Tyler, officers of J. Graves Scaffolding.

      . The corporations were actually domiciled in Bossier Parish, as were three of the seven guarantors.

      . Max Nathan Jr. & H. Gayle Marshall, The Collateral Mortgage, 33 La. L. Rev. 497 (1973); Max Nathan Jr. & H. Gayle Marshall, The Collateral Mortgage: A Reassessment and Postscript, 36 La. L. Rev. 973 (1975); Max Nathan Jr. & Anthony P. Dunbar, The Collateral Mortgage: Logic and Experience, 49 La. L.Rev. 39 (1988).

      . Art. 3162 was repealed by 2014 La. Acts No. 281, but it applies to this case. The new La. C.C. art. 3149, effective January 1, 2015, provides: “The pledge of a corporeal movable is effective between the parties only if the thing pledged has been delivered to the pledgee or a third person who has agreed to hold the thing for the benefit of the pledgee. The pledge of other things is effective between the parties only if established by written contract, but delivery is not required.”


text:
    Mark BARRON on behalf of Minors, Coby Brian BARRON and Cameron Blake Page Barron, Plaintiff-Appellee Tanja Parker, Individually and as Natural Tutrix for the Minor, Tyler Nicholas Parker, Plaintiff-Appellee v. SAFEWAY INSURANCE COMPANY OF LOUISIANA, Defendant-Appellant.
    Nos. 49,519-CA, 49,520-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Tracey L. Oakley, Counsel for Appellant Safeway Insurance Co. of La.
    J. Patrick Hennessy, Counsel for Appel-lees Mark Barron, et al.
    Alan Stegall, Counsel for Appellees Tan-ja Parker, et al.
    Before MOORE, PITMAN and GARRETT, JJ.
   MOORE, J.

Ijn these consolidated cases, Safeway Insurance Company of Louisiana appeals a judgment that found its insured, Tanja Parker, 100% at fault in an intersectional collision that occurred in Hot Springs, Arkansas, injuring her three children who were passengers in her car, and applied Louisiana law instead of Arkansas law, which would have provided “parental immunity” for the claim. We affirm.

Factual and Procedural Background

In June 2011, Ms. Parker and her family — husband, Mark Barron, and her three minor children, Tyler Parker and Coby and Cameron Barron — were taking a family vacation from their home in Bossier City, Louisiana, to Hot Springs. Ms. Parker was driving her 2007 Pontiac G6, insured by Safeway. Driving west on East Maurice, she pulled up to the intersection with Valley Road, stopped at the stop sign, looked both ways, and then proceeded across Valley Road. For some reason, she did not notice a 1997 GMC Suburban coming south on Valley Road, the favored street. The Suburban “T-boned” or struck the middle passenger side of Ms. Parker’s Pontiac, injuring the three children — Tyler most severely.

In February 2012, Coby and Cameron’s father, Mark Barron, filed a direct action against Safeway, seeking damages for their injuries. In March 2012, Ms. Parker filed a separate direct action against Safeway, seeking damages for Tyler’s injuries. Both suits were filed in Bossier Parish, where Ms. Parker, Mr. Barron and the three children live and where the Safeway personal automobile insurance policy was issued. The suits were 12consolidated for trial.

Safeway raised several exceptions, including one of no right or no cause of action, urging that because the accident occurred in Arkansas, it was subject to Arkansas law, under which “parental immunity” prohibits a child from suing his parent. Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938); Attwood v. Attwood’s Estate, 276 Ark. 230, 633 S.W.2d 366 (1982). It also argued that Louisiana’s Direct Action Statute gave no special rights to insureds with contract claims against their insurer. Green v. Auto Club Group Ins. Co., 2008-2868 (La.10/28/09), 24 So.3d 182.

The district court denied all exceptions. Prior to trial, Safeway settled with the driver of the Suburban, who was an Arkansas resident.

The matter came to trial in January 2013. Ms. Parker, her son Tyler (by then 16 years old) and Mark Barron testified about the accident. They agreed that she stopped at the stop sign and looked both ways. Ms. Parker, who was behind the wheel, testified that she did not see the Suburban “until it was too late”; her husband, in the front passenger seat, never saw it; and Tyler, in the back seat by the passenger door, saw it only about 10 feet before impact. All agreed the Suburban had the right-of-way. On cross-examination, in response to leading questions, Ms. Parker and Mark Barron agreed that Valley Street, to their right, may have had a steep incline down which the Suburban was driving before it struck them.

Ms. Parker introduced the deposition of Officer Zachary Rostan, the Hot Springs police officer who worked the accident. He confirmed that East Maurice had stop signs and Valley Road was favored. Based on his report |s(he had no independent recollection of the event), he stated that Ms. Parker “pulled out in front of the oncoming vehicle.” He also stated that from where Ms. Parker was situated, there was clear visibility to the right, “it’s a pretty straight shot on both sides,” and he did not find speed to be a factor in the accident.

Finally, Ms. Parker introduced copies of Tyler’s medical records and bills, photos of his injuries, and a copy of the endorsement page of the Safeway policy. Mr. Barron introduced copies of Coby and Cameron’s medical records and bills.

Safeway called no witnesses, but introduced a copy of the personal automobile insurance policy issued to Ms. Parker, her claim form, proof of the settlement with the driver of the Suburban, and copies of the plaintiffs’ depositions.

At the end of trial, Safeway stipulated that of the original policy amount of $30,000, only $23,500 remained, and if the court found liability, Tyler was entitled to $15,000, with the rest to be split between Coby and Cameron. The court stated that it had “already ruled on the jurisdiction issue.”

In a written opinion, the court found that the accident was caused totally by Ms. Parker’s pulling out from the stop sign into the path of the oncoming Suburban. It awarded Tyler $15,000, per the stipulation, and allocated the balance 90% to Coby and 10% to Cameron. Finally, the court wrote that it had already decided that Louisiana law applied to the matter.

Safeway has appealed, raising three assignments of error.

| ¿Discussion

By its first assignment of error, Safeway urges the court erred in assigning any fault to Ms. Parker because, under Arkansas law, parental immunity destroys the child’s cause of action. It reiterates that parental immunity means “an un-emancipated minor child may not maintain an action for an involuntary tort against his parent,” Rambo v. Rambo, supra, and concedes that under Louisiana law, there is no such bar. Walker v. Milton, 263 La. 555, 268 So.2d 654 (1972). By its third assignment, Safeway urges the court erred in refusing to apply Arkansas law to the claim. In support, it cites La. C.C. art. 3543:

Issues pertaining to standards of conduct and safety are governed by the law of the state in which the conduct that caused the injury occurred, if the injury occurred in that state * * *.

Because the accident occurred in Arkansas, the alleged damages and injuries occurred in Arkansas, and Ms. Parker was contended to be at fault, Safeway submits the case was governed by Arkansas law, under which the plaintiffs simply cannot maintain an action against Ms. Parker.

Ms. Parker responds that the case presents a “false conflict,” identical to that found in Jagers v. Royal Indem. Co., 276 So.2d 309 (La.1973), in that only Louisiana has any interest in the application of its law to the claim. She also suggests that if there is a genuine conflict of laws, it is governed by La. C.C. art. 3544:

Issues pertaining to loss distribution and financial protection are governed, as between a person injured by an offense or quasi-offense and the person who caused the injury, by the law designated in the following order:
ls(l) If, at the time of the injury, the injured person and the person who caused the injury were domiciled in the same state, by the law of that state.

Because the injured persons were Louisiana residents, the alleged tortfeasor was a Louisiana resident, and the insurance policy was issued in Louisiana, Ms. Parker argues that the case is governed by Louisiana law, which allows suit by the minor children. Mr. Barron has adopted his wife’s arguments.

We find that Jagers v. Royal Indem. Co., supra, is both factually apposite and legally persuasive. In that case, Ms. Jag-ers, a Louisiana resident, was injured when the car driven by her minor son, a Louisiana resident who lived with her, rear-ended another vehicle in Pass Christian, Mississippi. Ms. Jagers filed suit, in Louisiana state court, against her son and their auto insurer; the trial court rendered judgment in Ms. Jagers’s favor. The insurer appealed, arguing that under Mississippi’s intrafamily immunity doctrine, she had no right or cause of action. The Third Circuit affirmed, refusing to apply Mississippi law, and the Supreme Court affirmed, stating:

When the foreign state has no interest in the application of its law in Louisiana litigation, we deem that the application of Louisiana courts will contribute much greater predictability, certainty and constancy to the law.

The same applies equally here. Ms. Parker and her family were transitorily in Arkansas when the accident occurred, and the other driver was an Arkansas resident, but the claim is fundamentally between Louisiana residents seeking to enforce an automobile insurance policy that was issued in Louisiana. On these facts, Louisiana has the more substantial interest in | ^applying its law than does Arkansas. See also Champagne v. Ward, 2003-3211 (La.1/19/05), 893 So.2d 773. The district court did not err in denying Safeway’s exceptions and in declining to apply the Arkansas parental immunity rule. These assignments of error lack merit.

By its second assignment of error, Safeway urges the court erred in not assigning all fault and liability to the driver of the Suburban. It argues that all witnesses agreed that Ms. Parker stopped at the stop sign, looked both ways, and proceeded safely into the intersection; she was not drunk or distracted; in short, “there is nothing Ms. Parker could have done to have avoided the accident.” Safeway suggests that because the Suburban came out of nowhere, its driver must have been speeding and thus at least partly at fault.

Ms. Parker responds that the court’s findings are not plainly wrong. Officer Rostan, the only witness familiar with the intersection, reported that Ms. Parker failed to yield to oncoming traffic that had the right-of-way, and this was the sole cause of the accident. She submits that the court did not abuse its discretion in accepting the officer’s testimony over the accounts of witnesses who were not familiar with the intersection.

When a driver is confronted with a stop sign at an intersection, it is her duty to come to a complete stop, to appraise traffic and to make certain that the way is clear before proceeding. Kessler v. Amica Mut. Ins. Co., 573 So.2d 476 (La.1991); Matthews v. Arkla Lubricants Inc., 32,121 (La.App. 2 Cir. 8/18/99), 740 So.2d 787. When a motorist stops her vehicle before entering a right-of-way street, she has performed only half the duty the law |7has imposed on her. The duty to proceed safely from a stop sign mandates that the driver see what she should have seen with the exercise of due diligence; she is required to see a vehicle which is traveling on a favored roadway as it approaches her position. Eaglin v. State Farm Ins. Co., 489 So.2d 464 (La.App. 3 Cir.1986). To stop and then proceed in the immediate path of an oncoming vehicle constitutes gross negligence. Coleman v. Rabon, 561 So.2d 897 (La.App. 2 Cir.1990), writ denied, 567 So.2d 617 (1991); Matthews v. Arkla Lubricants, supra.

We recognize Safeway’s effort to cast some negligence on the driver of the Suburban, first by suggesting that Valley Road to Ms. Parker’s right was at the foot of a steep decline, and she could not be expected to gaze upward to anticipate traffic. However, Officer Rostan testified it was a “pretty straight shot on both sides,” providing a reasonable basis for the district court to reject counsel’s hypotheticals and find that nothing impeded Ms. Parker from seeing the Suburban. Safeway next argued that the Suburban must have been speeding, or else Ms. Parker would have seen it when she stopped and looked before starting to cross Valley Road; however, there was no direct evidence of this, and Officer Rostan testified that speed was not a factor in the accident.

On this record, the district court did not abuse its discretion in accepting the officer’s testimony and finding that Ms. Parker was solely at fault for failing to see the large, black Suburban before pulling into the favored street. This assignment of error lacks merit.

1 sConclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by Safeway Insurance Company of Louisiana.

AFFIRMED.

      . Ms. Parker also had a fourth son, who was a major and was not on the trip to Hot Springs.


author: AMY, Judge. THIBODEAUX, Chief Judge,

text:
    Grady P. GALLAND v. Heidi M. GALLAND.
    No. 14-343.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 26, 2014.
    Rehearing Denied Jan. 14, 2015.

      Brian K. Thompson, Alexandria, LA, for Defendant/Appellant, Heidi M. Galland.
    Cory P. Roy, Roy & Scott Law Offices, Marksville, LA, for Plaintiff/Appellee, Grady P. Galland.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

| ,In this custody dispute, the parents could not agree on either a custody arrangement or which school their children would attend. The mother filed a recon-ventional demand, seeking allegedly unpaid child support and seeking to make a previous cost award executory. After a hearing, the trial court awarded joint custody, with the father having domiciliary status, and establishing a physical custody schedule. The trial court also directed that the children be enrolled in the school proposed by the father. The mother appeals. For the following reasons, we affirm.

Factual and Procedural Background

The parties to this litigation, Grady P. Galland and Heidi M. Galland, have two minor children together, Colin and Cadence. The procedural history of this matter was set out in a previous appeal, Galland v. Galland, 12-1075, pp. 2-4 (La.App. 3 Cir. 3/20/13), 117 So.3d 105, 106-7, reh’g granted (for the limited purpose of clarifying previous judgment), which stated:

The parties entered into a stipulated Consent Judgment dated December 23, 2009, awarding them joint custody and co-domiciliary status. The parties shared physical custody on a week-by-week (7/7) basis. At the time of the divorce, both parties lived in Plauche-ville, Avoyelles Parish, Louisiana. Heidi subsequently moved to Alexandria, Louisiana [in nearby Rapides Parish]. Shortly after Heidi moved, Grady sought and obtained an order from the trial court that Colin would attend St. Mary’s for the 2010-2011 school year. Colin attended St. Mary’s for the 2010-2011 school year. The parties continued to share custody on a 7/7 basis despite the increased distance between their homes.
In January 2011, Grady filed a Motion to Compel Psychological Evaluations of both parties and their children to determine the optimal custodial and school arrangements. In June |¾2011, Grady filed a Motion for Contempt because Heidi was contemplating enrolling Colin in Nachman despite the previous judgment allowing him to attend St. Mary’s until further order of the court. In July 2011, Heidi filed a Rule for Declaration on School Attendance (“Rule to Declare School”), seeking an order allowing Colin to attend Nachman for the 2011-2012 school year. The trial court deferred these various motions and rules pending the results of the independent psychological evaluation ordered by [the] court. Indeed, the trial court ordered Dr. Daniel Lonowski to evaluate the parents and the children in the fall of 2011.
While the trial court motions were pending, Heidi and Grady reached a verbal agreement whereby Cohn would attend Nachman for the 2011-2012 school year. The parties also verbally agreed to modify the shared 7/7 custody plan such that the children remained with Heidi during the school week. The parties sought to minimize travel time and maximize stability for the children. At that time, Colin attended Nachman, and Cadence attended Calvary Daycare in Alexandria. Grady later changed his mind about Colin’s schooling, feeling that Colin “would be more comfortable at St. Mary’s.” Nevertheless, Colin finished the school year at Nachman, achieving the A/B Honor Roll.
In its written Reasons for Ruling, the trial court rendered a Considered Decree, granting the parties joint custody on a “9/3 split” and appointing Grady the primary domiciliary parent. Specifically, the trial court ordered the children to reside with Grady during the school week, with Heidi receiving visitation every other weekend, with an additional two evenings during the month for dinner. The trial court granted Heidi increased visitation during the summer months. The Considered Decree further ordered both children to attend St. Mary’s in Cottonport.

Finding that the trial court went beyond the scope of the pleadings in making a custody determination, the panel reversed the decision of the trial court and ordered that “the parties shall have co-domiciliary status and shall share physical custody on a week-by-week (7/7) basis[,]” and that the children be enrolled at Nachman for the 2013-2014 school year. Id. at 109. The record indicates that the parties agreed that, because there was a short period of time left in the school year, |sCoIin should finish the 2012-2013 year at St. Mary’s. However, the children began the 2013-2014 school year at Nachman as ordered.

Thereafter, the trial court held hearings on the issues of child custody and Ms. Galland’s reconventional demand. After multiple days of testimony, the trial court determined that Mr. Galland should have domiciliary custody.. Further, the trial court ordered that, during the school year, Ms. Galland would have physical custody on alternating weekends, with a “supper night” during the week, and during the summer months, the parties would split physical custody on a “7 and 7” basis, with Ms. Galland having one 14-day vacation period. Further, the trial court ordered that the children attend St. Mary’s. Additionally, the trial court denied Ms. Gal-land’s reconventional demand, which sought payment of child support allegedly owed by Mr. Galland and to make executo-ry costs associated with the previous appeal.

Ms. Galland appeals, asserting as error that:

1. The trial court abused its discretion by permitting ex parte communications and documents not admitted into evidence to influence its decision, and failing to perform its duties without bias and prejudice.
2. The trial court abused its discretion in finding that the twelve (12) nonexclusive factors provided in Louisiana Code of Civil Procedure Article 134 [sic] favored designating Appel-lee-father as domiciliary parent of the parties’ two minor children and ordering them to attend school in the Appelle[e]-father’s home parish when the evidence presented proved that it is in the best interest of the children for Appellant-mother to continue acting as the domiciliary parent and for the child to attend school in the mother’s home parish.
3. The trial court abused its discretion by denying the Appellant-mother’s request, without any reason, to place Appellee-father in arrears for his failure to pay child support since July 2012 in violation of the December 23, 2009 Consent Judgment on Rule, signed by the trial court.
|t4. The trial court abused its discretion by denying Appellant-mother’s request, without any reason, to make executory and payable the amount of the appeal costs assessed to Ap-pellee-father by this Court in its March 20, 2013 opinion reversing the trial court’s July 2012 ruling in this matter.

Discussion

Allegations of Bias and Consideration of Evidence Outside the Record

Ms. Galland first contends that the trial court was biased against her. In support of this argument, she points to the trial court’s observation that “talk on the street” was that she had made disparaging comments about the trial court and the trial court’s questioning of her regarding recordings she made of conversations between her and Mr. Galland. Ms. Galland also points to the trial court’s questioning of witnesses and comments concerning the witness testimony and his own life experience. Further, Ms. Galland alleges that the trial court erred in relying on documents which were not admitted into evidence, in particular the deposition of one of the counselors, Dr. Karin Ebersohn.

As an initial observation, we note that Ms. Galland’s accusations regarding bias were not presented to the trial court within the context of a motion to recuse. One of the grounds for recusal is when the judge is “biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys or any witness to such an extent that he would be unable to conduct fair and impartial proceedings.” La.Code Civ.P. art. 151(A)(4). The procedure for recusal requires that a motion to recuse “shall be filed prior to trial or hearing unless the party discovers the facts constituting the ground for recusal thereafter, in which event it shall be filed immediately after these facts are discovered, but prior to judgment.” La.Code Civ.P. art. 154. Where a party claims that the trial court was biased but fails to file a motion to recuse, this court has | ¿previously held that the issue may not be considered on appeal. Campbell v. Nat’l Union Fire Ins. Co., 92-592 (La.App. 3 Cir. 12/7/94), 647 So.2d 569.

Our review of the record shows that the trial of this matter was on three separate days spread out over the course of a period of more than two months. Although the trial court issued oral reasons for judgment on October 31, 2013, formal judgment was not signed by the trial court until December 19, 2013. See Radcliffe 10, LLC v. Zip Tube Sys. of La., 06-128 (La.11/3/06), 942 So.2d 1071. Further, Ms. Galland’s allegations of bias primarily stem from actions taken by the trial court during the trial of this matter. Thus, Ms. Galland had sufficient opportunity to discover the facts she alleges are possible grounds for recusation and to file a motion to recuse, if warranted, within the time periods contemplated in La.Code Civ.P. art. 154. Accordingly, because this matter was not raised below, through a motion to recuse, we do not consider this issue for the first time on appeal. Campbell, 647 So.2d 569.

With regard to Ms. Galland’s allegations that the trial court considered documents outside the record, in particular, the deposition of Dr. Ebersohn, our review of the record shows that, in its reasons for ruling, the trial court stated that “we have the deposition testimony of Dr. Ebershon [sic], which I have reviewed in this case.” The trial court later states that on “page 3” Dr. Ebersohn noted that the “children wanted‘to stay ... at least Colin at St. Mary. Not happy at Nach-man. Felt like he was being picked on at school.” Our review of the record indicates that Dr. Ebersohn’s report (which included progress notes) was admitted into evidence, but not her deposition. Although it is unclear from the record whether Dr. |fiEbersohn’s deposition was actually available to the trial court, we observe that the information that Ms. Gal-land complains of in her brief is contained in Dr. Ebersohn’s report (e.g., in regards to Nachman: “[Colin] feels that people pick at him. He named 6 incidents that made him feel uncomfortable.”). Further, we observe that the trial court issued lengthy reasons for judgment, of which Dr. Ebersohn’s observations constituted only a small part. Accordingly, even if the trial court erroneously considered Dr. Eber-sohn’s deposition, we find any such error harmless. See Midland Funding LLC v. Kelly, 11-659 (La.App. 4 Cir. 12/7/11), 81 So.3d 84.

Custody Determination / Article 13U Factors

Ms. Galland’s primary complaint on appeal is that the trial court erred in awarding domiciliary custody to Mr. Galland and directing that the children attend school in Avoyelles Parish. Ms. Galland contends that the trial court improperly weighed the evidence and testimony presented at trial. According to Ms. Galland, almost every one of the “best interest” factors contained in La.Civ.Code art. 134 weighs in her favor, and, in support of that argument, she points to the testimony of Dr. Lonowski, who recommended that the children be placed with Ms. Galland; Mr. Galland’s lack of religiousness; the animosity and inability to communicate between the parents and their respective families; the superiority of the children’s education in Rapides Parish; and Ms. Galland’s contention that she had been primarily responsible for the children since they were born.

Even if it would have weighed the evidence differently, an appellate court [ 7cannot set aside the trial court’s factual findings unless they are manifestly erroneous or clearly wrong. Stewart v. Stewart, 11-1334 (La.App. 3 Cir. 3/7/12), 86 So.3d 148. Further, the trial court’s custody determination is entitled to great weight and will not be reversed absent an abuse of discretion. Pepiton v. Turner, 13-1199 (La.App. 3 Cir. 3/5/14), 134 So.3d 160.

The trial court’s award of custody shall be made in accordance with the best interest of the child. La.Civ.Code art. 131. Pursuant to La.Civ.Code. art. 134:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
|s(ll) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The trial court is not required to make a mechanical evaluation of all of the factors listed in Article 134. Stewart, 86 So.3d 148. Nor is it bound to give more weight to one factor over another; the relative weight of each factor is left to the discretion of the trial court. Harvey v. Harvey, 13-81 (La.App. 3 Cir. 6/5/13), 133 So.3d 1, writ denied, 13-1600 (La.7/22/13), 119 So.3d 596.

Our review of the record shows that the trial court issued lengthy and well-supported oral findings of fact in making its custody determination. Therein, the trial court addressed the Article 134 factors, and found that many of the factors were “absolutely equal[,]” although several of the factors weighed in favor of the father. The trial court also noted that neither Ms. Galland nor Mr. Galland was perfect, and that both parents had “made some mistakes.” The trial court found that both parents were equally to blame ■for the lack of encouragement of a close, continuing relationship with the other party. With regard to Mr. Galland, the trial court faulted him for an incident involving Colin’s cell phone and for drinking alcohol at a barbeque where Colin fell and bruised his arm. With regard to Ms. Galland, the trial court found that both she and Mr. Galland were “good parents,” but that she lost much of her credibility and is “opportunistic and manipulative.” In particular, the trial court pointed out that Ms. Gal-land’s testimony was directly contradicted on two occasions by her sworn testimony in another pending matter, that she testified that she could take breaks from her job whenever it was needed but that she failed to schedule a counseling session with the children’s teacher, and |flthat she attempted to record Mr. Galland in “an obvious attempt by her to manipulate him and extort him or trap him in an unfair manner.”

The majority of Ms. Galland’s arguments concern the trial court’s findings of fact or determinations concerning the weight of the evidence—determinations which are well within the trial court’s purview and will not be disturbed by this court absent manifest error or an abuse of discretion, as appropriate. See Stewart, 86 So.3d 148; Pepiton, 134 So.3d 160. Although Ms. Galland argues that the trial court’s determination with regard to almost every one of these factors was erroneous, our review of the record reveals adequate support for the trial court’s findings of fact. Further, we find no abuse of discretion in the trial court’s weighing of the evidence or award of custody. For example, although Ms. Galland complains that the trial court erred in failing to consider Mr. Galland’s lack of religiousness, the record shows that, although Mr. Gal-land stated that he is not a churchgoer, he felt that it was important for the children to have a religious foundation, and that St. Mary’s, a Catholic school, did a “good job” in that regard. In making its custody determination, the trial court specifically referenced that testimony with regard to the parties’ capacity “to give the child love, affection, and spiritual guidance[.]” La. Civ.Code art. 134(2).

Accordingly, we find no merit to Ms. Galland’s assignment of error in this regard.

Unpaid Child Support and Court Costs

Ms. Galland asserts that the trial court erred in denying her reconventional demand, which sought allegedly unpaid child support and to .make executory the appeal costs associated with the previous appeal, without giving any reasons. Ms. Galland’s argument herein consists of two sentences which essentially reiterates 110her assignment of error. Of note, Ms. Galland cites no codal article, statute, rule, or case which supports her argument. Louisiana Uniform Rules — Courts of Appeal, Rule 2-12.4(B)(4) requires that “[a]ll assignments of error and issues for appeal must be briefed. The court may consider as abandoned any assignment of error or issue for review which has not been briefed.” Restating an assignment of error without argument or citation without authority does not constitute briefing. Cormier v. La. Farm Bureau Cas. Ins. Co., 12-892 (La.App. 3 Cir. 2/6/13), 109 So.3d 509, writ-denied, 13-427 (La.4/5/13), 110 So.3d 596. Accordingly, we do not consider Ms. Galland’s arguments in this regard.

DECREE

For the foregoing reasons, the judgment of the trial court signed on December 19, 2013, is affirmed. Costs of this appeal are assessed to the appellant,. Heidi M. Gal-land.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns reasons.

GREMILLION, J., dissents for the reasons assigned by Chief Judge THIBODEAUX.

THIBODEAUX, Chief Judge,

dissenting.

hi dissent from the majority’s decision to affirm the judgment of the trial court awarding domiciliary status to Mr. Gal-land.

Dr. Daniel Lonowski testified as an expert in clinical psychology. He conducted an evaluation of all of the parties in November 2011. He testified that his reports and conclusions were as valid at the time of this custody trial as they were in November 2011. He reached this conclusion despite being questioned about the potential impact of Mrs. Galland pleading guilty to disturbing the peace and having a pending charge of cruelty to the infirm. He further based his conclusion despite his knowledge of Mr. Galland’s being accused of physical abuse of the child. Because of the volatility of the relationship between Mrs. Galland and the paternal grandparents, he was not surprised by the criminal charges, and he could have predicted the spanking of the minor child because of his characterization of Mr. Galland as being “emotionally reactive in ’ conflict situations.”

The trial judge observed that “Dr. Lo-nowski had thorough reports based on his interview with all the parties.” He further observed that Dr. Lonowski was “the most important witness on the case.” The trial judge did not give any- weight whatsoever to Dr. Lonowski’s findings despite Dr. Lo-nowski being “the most |2important witness on the case.” Dr. Lonowski was not contradicted. It is axiomatic that “the trier of fact should accept as true the uncon-tradicted testimony of a plaintiff witness, absent a sound reason for his rejection.” Johnson v. Ins. Co. N. Am., 454 So.2d 1113, 1117 (La.1984). The trial court had no sound reason for the failure to consider Dr. Lonowski’s testimony, and did not articulate a reason.

Dr. Lonowski testified that Mr. Galland “would tend to be reactive in the face of novelty ... emotionally reactive in conflict situations.” Certainly, the long history of animosity and litigation between these parents suggests a high potential for “conflict situations.” Mr. Galland, according to Dr. Lonowski, “could engage in somewhat devious maneuvers ... in order to achieve his goals,” and “he can become quite impatient under stress.”

Moreover, Dr. Lonowski unequivocally testified as follows:

Q. Can you explain where that recommendation came from other then
A. It came from my impression from all four parties. The children, the observation of the children with both parents seemed relatively equal in terms of the affection displayed, the attention, the management of the children in the observation period. Their perceptions of the children another, the way the children related to each of their parents, the parenting stress index indicated that both parents were experiencing normal parenting stress, they could manage their children well, although with perhaps different styles of parenting, that was the crux of their conflict while in their marriage as well as after their marriage. So, putting all that together there was no psychological disorder discerned from each parent, they had certain different personality styles, he’s more of a risk taker caviler [sic], shoot from the hip, she’s more compulsive and organized and perhaps a little rigid in terms of her outlook in life and so those two personalities don’t work very well, obviously it didn’t work for their marriage, they didn’t know how to make that blend, and didn’t work in terms of their parenting styles so, it seemed to me that the tender ages of the children, the fact that they were that age and perhaps needed more of the maternal influence as well, but not necessarily because I think both parents could meet the children’s needs, but I think, I can’t specifically state any one particular factor that lent itself to the mother having domiciliary custody except that it just, the feel of it from all the data suggested that that would be best for the kids.
hQ: So no any one particular factor, but a cumulative effect of your evaluation?
A: Right. Some of these things get close, they tend to get close and I’m not sure if an evaluator can always dismiss the fact, raised by the momma and the tender age of the children, that they perhaps need a maternal influence early on, that may have had a factor in it.

I am cognizant that a trial court has discretion in child custody matters. However, that discretion is not immutable and must be based on sound judgment after a consideration of the entire record. I am convinced that the trial court abused its discretion in awarding Mr. Galland domiei-lary status based on the foregoing reasons. I would reverse the judgment of the trial court and remand for the implementation of a Joint Custody Order.

      . Ms. Galland is also referred to as Ms. Mahl, her maiden name, in the record. Additionally, the record contains various spellings of Colin and Cadence's names. We use the spellings contained in the petition.

      . In his sur-reply brief, Mr. Galland has attached several pages of Dr. Ebersohn's deposition in support of his argument that "page 3” of Dr. Ebersohn’s deposition consists of "boilerplate” language and not testimony. However, we note that the appellate court may not consider evidence which is not in the record on appeal and cannot receive new evidence. Reese v. Dresser Valve Indus., 10-241 (La.App. 3 Cir. 10/6/10), 48 So.3d 406. Since documents attached to appellate briefs are not part of the appellate record, the appellate court may not consider those documents if they are not included in the record on appeal. Id.


author: KING, Justice,

text:
    Richard (Rickey) PALERMO and Shelia Palermo v. LIFELINK FOUNDATION, INC. d/b/a LifeLink Tissue Bank.
    No. 2012-CT-01228-SCT.
    Supreme Court of Mississippi.
    Nov. 20, 2014.
    David Neil McCarty, Frank G. Vollor, Allen Austin Vollor, Vicksburg, attorneys for appellants.
    Christy Vinson Malatesta, John Alfred Waits, Jackson, Mark C. Carlson, Ridge-land, attorneys for appellee.
   ON WRIT OF CERTIORARI

KING, Justice,

for the Court:

¶ 1. Richard Palermo alleged that he was injured by infected tissue surgically placed into his knee. He sued LifeLink Foundation, Inc., under, inter alia, the Mississippi Products Liability Act (“MPLA”), Mississippi Code Section 11 — 1— 63. The trial court and Court of Appeals both found that Mississippi Code Section 41-41-1, which defines the procurement, processing, storage, distribution, and use of human tissue as a “service,” exempted LifeLink from liability under the MPLA. While we clarify the analysis surrounding this issue, we ultimately find no error, and thus affirm the trial court and the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶2. The recitation of facts is taken largely from the Court of Appeals opinion.

On March 2, 2005, Richard injured his right knee while working as an employee for Letourneau Technologies Inc. Richard sought treatment from Dr. Gene Barrett, an orthopedic surgeon at Mississippi Baptist Medical Center (MBMC). Dr. Barrett recommended surgery described as “anterior cruciate ligament construction and medical meniscus repair and the use of an allograft.”
On March 22, 2005, LifeLink, a nonprofit tissue bank, filled an order placed by Nu[T]ech Medical Inc. (“NuTech”) for a tibialis tendon-anterior allograft. Prior to LifeLink’s shipment of the allo-graft, it was tested and there were no findings of sepsis or medical infection in the medical history or autopsy of the allograft donor. LifeLink shipped the allograft to Nu[T]ech, where it remained for six days. On March 28, 2005, Nu[T]eeh shipped the allograft to Medical Arts East Physician Surgery Center in Jackson, Mississippi. Dr. Barrett performed Richard’s surgery with the allograft on April 5, 2005. After the surgery, Richard’s knee began to exhibit signs of infection. Dr. Barrett removed the allograft from Richard’s knee on May 11, 2005, and the infection subsided. After the allograft was removed from Richard’s knee on May 11, 2005, further testing was done on the allo-graft. It showed that no bacteria was present.
The Palermos filed their first complaint in this action on March 7, 2007, against numerous defendants, including MBMC, Dr. Barrett, NuTech, and Li-feLink. After the dismissal of several defendants, the Palermos filed a First Amended and Supplemental Complaint against LifeLink on March 16, 2010.
LifeLink moved for summary judgment on August 9, 2011.... On December 20, 2011, the trial court granted summary judgment in favor of LifeLink. In its opinion and order, the court determined that Mississippi’s public health statute, Mississippi Code Section 41^11-1 (Rev. 2013), also applied to human tissue and therefore prohibited the Pal-ermos’ claims brought under the Mississippi Products Liability Act as codified in Mississippi Code Annotated [Ejection 11-1-63 (Rev. 2012) — strict products liability, products liability negligence, and breach of warranty. The court also stated that, because the Palermos failed to prove the elements of breach of duty or causation, they could not prove a case of simple negligence.
On appeal [to the Court of Appeals], the Palermos argue[d] the following issues: (1) the trial judge committed reversible error in granting LifeLink’s motion for summary judgment, (2) the trial judge abused his discretion in denying the Palermos’ supplementary expert designation of Dr. Marion Kainer, and (3) the trial judge abused his discretion in denying the Palermos’ request for a court reporter to transcribe the hearing on summary judgment....

Palermo v. LifeLink Foundation, Inc., 2012-CA-01228-COA, 152 So.3d 1177, 1178-80, 2014 WL 114531, at **1-2 (Miss.Ct.App. Jan. 14, 2014).

¶ 3. The Court of Appeals affirmed the trial court. It noted that the question of whether “section 41-41-1 [is] an exception to section 11-1-63” or whether “section 11-1-63 [is] an exception to section 41-41-1” was a matter of first impression. Id. at 1180, 2014 WL 114531, at *3. It ultimately found that “[s]trict-products-liability protection is not provided for the distribution of human tissue for medical procedures under the public policy of Mississippi underlying section 41^1-1, as well as the strong nationwide public policy established against such liability in statutes and case law in the overwhelming majority of other states.” Id. at 1181, 2014 WL 114531, at *4. It also found that “human tissue provided to others in medical procedures is not a ‘product’ subject to products-liability law, and the distribution of human tissue, including reasonable payments for related services, does not constitute a ‘sale’ for purposes of strict liability.” Id. The Court of Appeals also held that the trial court did not err in granting LifeL-ink’s motion for summary judgment in regard to the Palermos’ simple negligence claim, that the trial court did not abuse its discretion in excluding one of the Palme-ros’ experts, and that the denial of the Palermos’ motion for a court reporter was harmless error. Id. at 1181-83, 2014 WL 114531, at **4-6.

¶ 4. The Palermos filed a petition for writ of certiorari, as well as a supplemental brief thereto, with this Court. They argued that the Court of Appeals erred by finding that Section 41-41-1 excepted Li-feLink from the purview of the MPLA, that whether the allograft was contaminated with bacteria is a question of material fact that the Court of Appeals misapprehended, and that the denial of a court reporter was a violation of due process. Because Section 41-41-1 has never been interpreted by this Court, and because the issue of whether human tissue is subject to products liability law is a “fundamental issue[ ] of broad public importance requiring determination by the Supreme Court,” we granted certiorari. M.R.A.P. 17(a)(3)(ii). We limit our review to the issue of whether the MPLA, Mississippi Code Section 11-1-63, applies to human tissue in this circumstance, especially in light of the rule pronounced by Mississippi Code Section 41-41-1. See Guice v. State, 952 So.2d 129, 133 (Miss.2007) (Supreme Court “unquestionably” has the authority to limit the issues on review).

ANALYSIS

¶ 5. We review a trial court’s grant of summary judgment de novo. Seymour v. Brunswick Corp., 655 So.2d 892, 894 (Miss.1995). “A motion for summary judgment lies only when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law.” Id. at 895. Further, when the question before the trial court was a question of law, our standard of review is de novo. Id.

¶ 6. The crux of the Palermos’ several arguments is that, under Mississippi law, plaintiffs have a viable strict products liability claim with regard to human tissue. They essentially argue that Section 41-41-1 and the MPLA have no bearing on one another. For the reasons explained below, the Palermos’ arguments have no merit.

¶ 7. In July 1966, this Court first held that, under common law, strict products liability was a viable cause of action. State Stove Mfg. Co. v. Hodges, 189 So.2d 113 (Miss.1966), superseded by statute, Miss. Code Ann. § 11-1-63. In eliminating privity of contract as a requirement for suing the manufacturer or seller of a product, the Court examined both the national and local legal landscape. It noted that the doctrine of privity of contract, which was, in 1966, “now universally rejected,” began in 1842, and courts immediately began eroding the concept. Id. at 115-16. The “most important exception” to privity of contract was created in 1916, and made a seller liable based “upon the relation arising from the purchase, together with the foreseeability of harm if proper care was not used” rather than that arising from contract. Id. (emphasis added). As to this exception to privity of contract, the Court noted Prosser’s analysis in his 1964 edition of Torts, quoting him as saying that the exception “found immediate acceptance, and at the end of some forty years is universal law in the United States, with the barely possible but highly unlikely exception of Mississippi.” Id. at 116 (quoting Prosser, Torts 661-63 (3d ed. 1964)). The Court thus noted that “[pjrivity of contract between a consumer of a product and its manufacturer has not only been abandoned by every State in the Union, except Mississippi, but it has no rational basis for continuance in such an action in this jurisdiction.” State Stove, 189 So.2d at 116.

¶ 8. The Court abolished the requirement of privity of contract in a suit by a consumer against a manufacturer and held that a “manufacturer, by placing a chattel or product upon the market, assumes a responsibility to the consumer, resting not upon the contract but upon the relation arising from his purchase, together with the foreseeability of harm if proper [care] is not used.” Id. (emphasis added). The Court then noted that “in several cases beginning in 1954, this Court expressly pretermitted the question of whether privity was necessary in a suit against a manufacturer, but indicated that requirement might be rejected.” Id. (emphasis added). Indeed, it opined that all the cases “rendered caveats to the applicability of [the] doctrine [of privity of contract in a suit by a consumer against a manufacturer] in Mississippi.” Id. at 118. The Court analyzed several cases that indicated that, when the proper case was before the Court, it would eliminate the requirement of privity of contract. Id. at 116-18. It also highlighted a 1927 case that established that “privity of contract is not an essential part of a cause of action against a manufacturer” in food and beverage cases. Id. at 117-18 (citing Coca-Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305 (1927)). Thus, the Court made clear that caselaw had previously indicated that its holding in State Stove was inevitable. Moreover, the Court indicated that liability existed due to the relationship arising from the purchase (and consequently, the sale) of a product. It went on to adopt the standard contained in the Restatement (Second) of Torts, which explicitly conditioned the viability of strict liability claims on the presence of a sale. State Stove, 189 So.2d at 118 (quoting Restatement (Second) of Torts § 402A (“One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property ....”) (emphasis added) (Comment d provides that the rule “extends to any product sold in the condition ... in which it is expected to reach the ultimate user or consumer.”) (comments repeatedly refer to a sale as a necessary predicate for strict products liability)).

¶ 9. In May of 1966, the Legislature passed the blood banking statute. 1966 Miss. Laws, Ch. 475, § 1; see Miss. Code Ann. § 41^41-1 (Rev. 2013). The law provided that

[t]he procurement, processing, storage, distribution and/or use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing, transplanting the same or any of them into the human body for all purposes whatsoever is the rendering of a service by every person participating therein, ... and does not constitute a sale.

1966 Miss. Laws, Ch. 475, § 1. This statute and others of its ilk are often coined “blood shield” statutes. The historical legal landscape surrounding the enactment of these statutes is pertinent to the Paler-mos’ argument that this statute has nothing to do with the MPLA.

The statutory and common law protection of the suppliers of blood and blood products from strict liability and breach of warranty claims developed during the mid 60’s through early 70⅛ in response to the transmission of the hepatitis virus by blood and blood products.... States feared that the threat of liability without fault would drive the suppliers out of the very necessary business of providing blood.

Doe v. Travenol Labs., Inc., 698 F.Supp. 780, 782 (D.Minn.1988) (citing Comment, Hospital and Blood Banks Liability to Patients Who Contract AIDS through Blood Transfusion, 23 San Diego L.Rev. 875, 883 (1986)). While Section 41-41-1 has never been interpreted by this Court, it has been widely regarded as a “blood shield” statute, along with similar statutes passed by other states. See Michael J. Miller, Note, Strict Liability, Negligence and the Standard of Care for Transfusion-Transmitted Disease, 36 Ariz. L.Rev. 473, 488-490 (1994) (“In 48 states the common law of liability for diseases transmitted by blood no longer applies because the legislatures have passed statutes to protect hospitals and blood banks from strict liability. The exceptions are New Jersey, and Vermont.”) (“The majority of these statutes ... specify that blood is a [service] and not a [sale]. The majority of the statutes also either specify that negligence is the only theory available, or specifically exclude both strict products liability and implied warranty theories.... Eight states [including Mississippi] do not mention any theory specifically, but rather rely on the sales/service distinction.”); Salbu, Steven R., AIDS and the Blood Supply: An Analysis of Law, Regulation, and Public Policy, 74 Wash. U. L.Q. 913, 923 (1996) (“Most'states define the distribution of blood and blood components as a provision of services rather than a sale of products, effectively removing them from the scope of strict liability and warranty actions .... ”); McIntosh, Phillip L., Tort Reform in Mississippi: An Appraisal of the New Law of Products Liability, Part I, 16 Miss. C.L.Rev. 393, 410 (1996) (“Processing and distributing blood and blood products are clearly outside the scope of products liability rules because the legislature has designated such activities as services, not sales.”).

¶ 10. Given the historical context when the Legislature passed Section 41-41-1, and the fact that the common law and Restatement (Second) of Torts predicated strict products liability in tort on the existence of a sale, the logical conclusion is that, in passing Section 41-41-1, the Legislature intended to exempt blood from strict products liability law. See, e.g., Wilson v. Am. Red Cross, 600 So.2d 216, 217-18 (Ala.1992) (interpreting a similar statute and finding that the language “for all purposes” means that the Legislature intended the statute “to be applicable for all purposes, including negligence actions, breach of contract actions and” strict liability actions); Murphy v. E.R. Squibb & Sons, Inc., 40 Cal.3d 672, 221 Cal.Rptr. 447, 710 P.2d 247, 252 (1985) (noting that the purpose of a similar statute that defined the distribution or use of blood as a service and not a sale “is to avoid application of the doctrine of strict liability ... thereby promoting the constant availability of an adequate supply of blood”); Condos v. Musculoskeletal Transplant Foundation, 208 F.Supp.2d 1226 (D.Utah 2002) (interpreting a similar statute and common law strict liability, and finding that human bone tissue is not a “product” and the distribution of such is not a “sale” for purposes of strict products liability); Royer v. Miles Lab., Inc., 107 Or.App. 112, 811 P.2d 644 (1991) (interpreting a similar statute, and noting that “[i]n 1969, when the statute was enacted, what liability there was for injuries caused by defective products was based on concepts relating to contractual warranties[,]” but that “[s]trict liability in a tort action ... was at the infant stage”) (Reviewing legislative history and finding that “[t]he context in which the statute was enacted helps explain why strict liability was not mentioned expressly.... At that time, the courts had just created strict liability, and it was seen as an offshoot of warranty law ...” and concluding that “[bjecause strict liability cannot arise without there having been a sale, defendants could not be strictly liable.”).

¶ 11. Section 41-41-1 was amended in 1975 and again in 1980, and the only substantive changes made pertained to the “shelf-life” of blood, a portion of the statute irrelevant to today’s case. In 1987, the Legislature amended Section 41-41-1 to include in its purview “human tissue, organs or bones,” and Section 41-41-1 has since remained unchanged. 1987 Miss. Laws, Ch. 401, § 1. In its present form, Section 41-41-1 provides that

The procurement, processing, storage, distribution and/or use of whole blood, plasma, blood products and blood derivatives, human tissue, organs or bones for the purpose of injecting, transfusing, transplanting or transferring the same or any of them into the human body for all purposes whatsoever constitutes the rendering of a service by every person participating therein, whether or not any remuneration is paid therefore, and does not constitute a sale....

Miss.Code Ann. § 41-41-1 (Rev. 2013).

¶ 12. In 1993, the Legislature codified strict products liability. 1993 Miss. Laws, Ch. 302, § 1. In doing so, it provided for strict liability claims against a “manufacturer” or a “seller.” Id.; see also Miss. Code Ann. § 11-1-63 (Rev. 2014). When the Legislature passed the MPLA, it did so with the knowledge that, “for all purposes whatsoever,” it had statutorily defined people involved in blood procurement, processing, storage, distribution, and/or use as service providers, and that this definition as a service provider “for all purposes whatsoever” had been the law for twenty-seven years. It also passed the MPLA with the full knowledge that people involved in the procurement, processing, storage, distribution, and/or use of human tissue were statutorily defined as service providers, and had been for six years. Yet, in passing the products liability law, the Legislature chose only to apply strict products liability to “manufacturers” and “sellers,” and did not include service providers in its purview.

¶ 13. This Court does not “decide what a statute should provide, but [ ] determine^] what it does provide.” Lawson v. Honeywell Intern., Inc., 75 So.3d 1024, 1027 (Miss.2011). “The Court’s goal is to give effect to the intent of the Legislature.” Id. To determine that intent, this Court looks first to the language of the statute. Id. “If the words of a statute are clear and unambiguous, the Court applies the plain meaning of the statute and refrains from using principles of statutory construction.” Id. Furthermore, words and phrases contained in a statute are to be given their common and ordinary meaning. Id. at 1028. “Manufacturer” and “seller” are not defined by the MPLA, thus, this Court applies their common or popular meaning. Black’s Law Dictionary defines a “seller” as “a person who sells anything.” Black’s Law Dictionary (9th ed. 2009). Section 41-41-1 explicitly provides that those involved in the processing of human tissues are not selling anything, but providing a service, thus, they are clearly not “sellers” under the MPLA. This Court has defined “manufacturer” for strict liability purposes as “a person or company who regularly and in the course of their principal business, creates, assembles and/or prepares goods for sale to the consuming public.” Lawson, 75 So.3d at 1028 (quoting Scordino v. Hopeman Bros., Inc., 662 So.2d 640, 645 (Miss.1995)) (internal quotations and alterations omitted). It has also noted that “a manufacturer produces goods as a principal part of its business and sells them either directly or for resale to the consuming public.” Lawson, 75 So.3d at 1029 (quoting Scordino, 662 So.2d at 645) (internal quotations and alterations omitted). In contrast, Black’s Law Dictionary defines a “service” as “[t]he act of doing something useful for a person or company,” “[a] person or company whose business is to do useful things for others,” and “[a]n intangible commodity in the form of human effort, such as labor, skill, or advice.” Black’s Law Dictionary (9th ed. 2009).

¶ 14. A service provider does not “produce” a good for sale. See Lawson, 75 So.3d at 1029. “Black’s Law Dictionary defines ‘produce’ as ‘to bring into existence’ or ‘to create.’” Id. (quoting Black’s Law Dictionary 1245 (8th ed. 2004)). This Court has indicated that “the manufacturer of a good is the person or company who brings the good into its tangible form.” Lawson, 75 So.3d at 1029. When a company, by statutory definition, provides a service by doing something useful for others, it is not, because of that statutory definition, functioning as a “manufacturer” under the definitions of “manufacturer” provided by this Court. See id. Thus, a mere service provider “does not fall under the definition of a ‘manufacturer,’ as that term is used in the MPLA.” Id. “The Legislature did not state that the MPLA applies to, or precludes, claims against [service providers]. Holding that the MPLA is applicable to such claims would constitute an improper addition to the statute, since [service providers] plainly are omitted.” Id. at 1030.

¶ 15. The historical context of Section 41-41-1 indicates that the Legislature intended to exempt “every person participating” in the “procurement, processing, storage, distribution, and/or use” of “whole blood, plasma, blood products and blood derivatives, human tissue, organs or bones for the purpose of injecting, transfusing, transplanting or transferring the same or any of them into the human body” from liability under the theory of strict products liability. Nothing in the MPLA indicates that the Legislature intended to change that long-standing concept. Moreover, even absent the historical context regarding the interplay of Section 41-41-1 and strict liability law, the plain language of the MPLA makes clear that it does not apply to mere service providers. In this circumstance, LifeLink is statutorily defined as a service provider. Thus, the trial court did not err by granting LifeLink’s motion for summary judgment on the Pal-ermos’ product liability claim, nor did the Court of Appeals err by affirming the trial court’s judgment.

¶ 16. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR.

      . Even though common law strict liability "is no longer the authority on the necessary elements of a products liability action” due to the adoption of the MPLA, the common law principles "are a driving force in products liability actions even after adoption of the statute.” Huff v. Shopsmith, Inc., 786 So.2d 383, 387 (Miss.2001); see also Williams v. Bennett, 921 So.2d 1269, 1274 (Miss.2006) (“Similar to its common law predecessor, today’s statutory scheme reflects the same tenor as the common law scheme adopted from the Restatement (Second) of Torts by this Court in State Stove.").

      . In 2014, the Legislature amended the MPLA to include "designers.” 2014 Miss. Laws Ch. 383, § 1.

      . We recognize that some of the actions performed by people who fall under the purview of Section 41-41-1 are not traditional or common "services." However, the fact that those people are statutorily defined, "for all purposes whatsoever" as providing a service overrides any traditional notions of what a service is in this circumstance.