Spencer v. Benny's Car Wash, LLC

• Decision Date: 04 May 2012
• Docket Number: 2011 CA 1708
• Parties: ELOUISE SPENCER v. BENNY'S CAR WASH, LLC AND CENTRAL CLAIMS SERVICE, INC.
• Court: Court of Appeal of Louisiana — District of US

ELOUISE SPENCER

v.BENNY'S CAR WASH, LLC AND CENTRAL CLAIMS SERVICE, INC.

2011 CA 1708

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Dated: May 4, 2012

NOT DESIGNATED FOR PUBLICATION

On Appeal from the

Nineteenth Judicial District Court

In and for the Parish of East Baton Rouge

Trial Court Number 516,558

The Honorable Todd W. Hernandez, Judge

Elouise Spencer

Baton Rouge, Louisiana

Plaintiff/Appellant

Pro Se

James A. Prather

Katherine F. Ogburn

Mandeville, Louisiana

Counsel for Defendants/Appellees

Benny's Car Wash, LLC and Certain

Underwriters at Lloyds, London,

Subscribing to Certificate Number

SVBPKG1123

BEFORE: GAIDRY, McDONALD, AND HUGHES JJ.

HUGHES, J.

This is an appeal of a judgment granting the defendants' motion for involuntary dismissal by the trial court. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On or about February 1, 2003¹ Elouise Spencer took her vehicle to Benny's Car Wash, on Coursey Boulevard, in Baton Rouge, to get a car inspection sticker. While walking through the garage area, Dr. Spencer² fell into a mechanic's oil-change pit and allegedly suffered injury. On January 29, 2004 Dr. Spencer filed suit against Benny's Car Wash, LLC ("Benny's") and its insurer, Certain Underwriters at Lloyds, London, Subscribing to Certificate Number SVBPKG1123 ("Lloyds").³

On March 21, 2011 a trial was held in this case, and after the presentation of evidence by the plaintiff, who appeared without the benefit of counsel, the defendants made a motion for involuntary dismissal, which the court took under advisement. On March 23, 2011 the trial court issued a written ruling finding the plaintiff failed to prove liability on the part of Benny's and granted the defendants' motion for involuntary dismissal; a judgment dismissing the plaintiff's case, with prejudice, was signed on April 14, 2011. Notice of judgment was sent to Dr. Spencer on May 4, 2011, and she filed a devolutive appeal on June 13, 2011.

On appeal, Dr. Spencer presents the following issues for review:⁴

A. To what extent did an unexpected change of a scheduled 3-day [j]ury trial to approximately a 3-hour [b]ench [t]rial deprive Plaintiff of her right to a jury trial as preserved by the Seventh Amendment?

B. To what extent did the proceedings of the [b]ench [t]rial deviate from the proceedings of the expected [j]ury [t]rial other than its informality?

C. To what extent did the malfunctioning of the telecommunication [i]nstruments/equipment and the [d]irector's claimed lack of knowledge to operate or correct contributed [sic] to the outcome of the bench trial?

D. To what extent did this abrupt change lead to the exclusion of pertinent and critical evidence to substantiate Plaintiff's claim of Defendant's negligent practices and dereliction of duty to protect patrons from hazardous conditions?

E. To what extent did denial of a jury trial; the exclusion of critical evidence (videos and photographs of fall into mechanical pit, injuries, [c]omplete medical records, depositions of physicians, expert photographer, interrogatories, pleadings and etc.); and the deviation from trial procedures inadvertently lead to a deprivation of due process as preserved in the Fifth [A]mendment[?]

F. To what extent did violations of a right to a jury trial and due process of the law lead to an unjust and an inequitable settlement of Plaintiff s case?

G. To what extent did Plaintiff's status as a pro se litigant prejudiced [sic] the proceedings and lead to a denial of her right to a jury trial and ensuing due process violation?

H. To what extent did Plaintiff's counsels' actions and inactions contribute to client's] deprivation of a right to a jury trial and ensuing due process violation?

I. To what extent did defense counsel avoidance of cooperation during the discovery phase, disregard for Plaintiff's desire to have a jury trial, even when they themselves had so requested and later withdraw jury bond, and incorrect accusations lead to Seventh and Fifth Amendments violations?

J. To what extent did Plaintiff's actions as client, as plaintiff and pro se litigant who demanded and never wavered [sic] her right to a jury trial as the best forum contributed [sic] to the outcome of her case?

K. To what extent did incomplete, incorrect and missing case records contributed [sic] to the denial of a jury trial and the ensuing denial of due process of law?

LAW AND ANALYSIS

U.S. Constitutional 7th Amendment Right to Jury Trial

On appeal Dr. Spencer makes the argument that she was deprived of her constitutional right to a jury trial, citing the 7th Amendment of the United States Constitution, which provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law."

This Constitutional Amendment has been interpreted as meaning that the right to a jury trial in civil cases under the Seventh Amendment is not among those provisions of the Bill of Rights that have been made applicable to the states through the Fourteenth Amendment. See R.J. Reynolds Tobacco Co. v. Bonta, 272 F.Supp.2d 1085, 1110-11 (E.D. Cal. 2003), affirmed, 423 F.3d 906 (9th Cir. 2005), cert, denied sub nom. R.J. ReynoldsTobacco Co. v. Shewry, 546 U.S. 1176, 126 S.Ct. 1344, 164 L.Ed.2d 58 (2006) (citing Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 418, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (holding that the "Seventh Amendment . . . governs proceedings in federal court, but not in state court"); Curtis v. Loether, 415 U.S. 189, 192 n. 6, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974) (holding that the Supreme Court "has not held that the right to jury trial in civil cases is an element of due process applicable to state courts through the Fourteenth Amendment"); Walker v. Sauvinet, 92 U.S. 90, 92, 23 L.Ed. 678 (1875) (holding that "[t]he States, so far as [the Seventh] amendment is concerned, are left to regulate trials in their own courts in their own way[; a] trial by jury . . . is not, therefore, a privilege or immunity of national citizenship, which the States are forbidden by the Fourteenth Amendment to abridge"). Thus, under the U.S. Constitution's 7th Amendment, the right to a jury trial is provided to a litigant only in a federal district court; this right does not extend to a litigant is a state district court, where any right to a jury trial is as provided by state law. See Arshad v. City of Kenner, 2011-1579, 2011-1814 (La. 1/24/12), ___ So.3d ___; Riddle v. Bickford, 2000-2408, pp. 5-6 (La. 5/15/01), 785 So.2d 795, 799-800.

In Louisiana, this state's Constitution provides for the absolute right to a jury trial only in criminal cases, as provided in Louisiana Constitution Article I, § 17 (A), which states:

A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict. The accused shall havea right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law. Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury but no later than forty-five days prior to the trial date and the waiver shall be irrevocable.

In a civil case, brought in a Louisiana district court, the right to jury trial is governed by the Louisiana Code of Civil Procedure. See LSA-C.C.P. art. 1731 et seq. The nature and amount of the principal demand determines whether any issue in the principal or incidental demand is triable by jury. LSA-C.C.P. art. 1731. In general, a trial by jury shall not be available in a civil suit unless a petitioner's cause of action exceeds fifty thousand dollars exclusive of interest and costs. See LSA-C.C.P. art. 1732.

In order to obtain a jury trial, if jury trial is not otherwise prohibited by law, the party so desiring must file "a pleading demanding a trial by jury and a bond in the amount and within the time set by the court pursuant to Article 1734." See LSA-C.C.P. art. 1733(A). The pleading demanding a trial by jury shall be filed not later than ten days after either the service of the last pleading directed to any issue triable by a jury or the granting of a motion to withdraw a demand for a trial by jury. LSA-C.C.P. art. 1733(C). Normally, the demand for a jury trial would be made by the plaintiff in his petition, or made by the defendant in his answer. If not made then, under Article 1733 it may be made in a supplemental pleading filed timely. This supplemental pleading would have to be filed not later than ten days after service of the answer, if there was no incidental demand, or not later than ten days after service of the answer to the incidental demand. However made, the pleading in which it was made would have to be served on the adverse party. LSA-C.C.P. art. 1733, 1960 Official Revision Comment (b). Paragraph C of Article 1733 further protects the rights of a party, who hasrelied upon another party's demand of trial by jury, by providing a reasonable time after the demand is withdrawn for such a party to file his own demand. LSA-C.C.P. art. 1733, 1983 Official Revision Comment (b).

In the instant appeal, Dr. Spencer asserts that she made a request for a jury trial both to her attorneys and to the trial court. Dr. Spencer further states that she has "remained steadfast in desiring a jury trial." However, Dr. Spencer acknowledged in her appellate brief that her third counsel of record, Mr. Pierre, told...