Lambert v. Up Cincinnati Race, L.L.C. ( 2022 )

[Cite as Lambert v. Up Cincinnati Race, L.L.C., 2022-Ohio-4699.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
ROGER D. LAMBERT, : APPEAL NO. C-220143
TRIAL NO. A-2003620
Plaintiff-Appellant, :
: O P I N I O N.
VS.
:
UP CINCINNATI RACE, LLC, d.b.a. :
THE BIRDCAGE,
:
Defendant-Appellee,
:
and
ANTHEM INSURANCE COMPANIES, :
INC., d.b.a. COMMUNITY
INSURANCE CO., :
Defendant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 28, 2022
Freking Myers & Reul LLC and Austin H. LiPuma, for Plaintiff-Appellant,
Lock Gordon Law Group, LLC, James H. Gordon and Jeremy R. Kopp, for Defendant-
Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Plaintiff-appellant Roger D. Lambert appeals the trial court’s order
granting summary judgment in favor of defendant-appellee Up Cincinnati Race, LLC,
d.b.a. The Birdcage (“The Birdcage”). Lambert sued The Birdcage, a bar located in
Cincinnati, Ohio, as a result of injuries he sustained when he tripped and fell at the
threshold of a patio entrance into The Birdcage in January 2020. For the reasons set
forth below, we affirm the trial court’s decision to grant summary judgment in favor
of The Birdcage.
I. Procedural History
{¶2} In November 2020, Lambert filed his first amended complaint in the
Hamilton County Court of Common Pleas against The Birdcage and Lambert’s
insurance carrier, Community Insurance Company, d.b.a. Anthem Blue Cross/Blue
Shield (“CIC”).1 Following discovery, The Birdcage filed its motion for summary
judgment in November 2021. After a hearing on the motion, the trial court granted
The Birdcage’s motion for summary judgment in March 2022. This timely appeal
followed.
II. Factual History
{¶3} On the evening of January 10, 2020, Lambert was out for a night on the
town, intending to follow his routine path of visiting a series of bars in Cincinnati.
Lambert had visited one bar and consumed a mixed drink and three glasses of wine
during the two hours prior to heading to The Birdcage. Upon his arrival at The
1In Lambert’s first amended complaint, the insurance company was listed as “Anthem Insurance
Companies, Inc. dba Community Insurance Co.” In its answer, CIC gave “Community Insurance
Company d.b.a. Anthem Blue Cross/Blue Shield” as its correct name. CIC filed a crossclaim against
The Birdcage for its own losses stemming from Lambert’s injury, in the form of payments of
Lambert’s medical bills. CIC also filed a counterclaim against Lambert to recover its payments.
CIC’s claims only asserted a subrogation right of recovery to any award that Lambert might win.
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OHIO FIRST DISTRICT COURT OF APPEALS
Birdcage, Lambert entered the bar through its Court Street entrance. Lambert ordered
a glass of chardonnay from the bar and took his drink out through the Race Street door
to the bar’s patio area. In the light rain, Lambert sat on the patio under his umbrella,
and finished his drink. Lambert took his empty wine glass back into the bar and
ordered another round. Lambert returned with his second glass of chardonnay from
The Birdcage to the Race Street patio. After finishing his drink, Lambert reentered The
Birdcage through the patio door, carrying the empty wine glass while closing his
umbrella. On crossing the threshold of the door, Lambert tripped over a small riser at
the doorway and fell to the ground, dislocating his shoulder.
{¶4} After Lambert’s fall, an employee of The Birdcage offered to call
emergency medical services (“EMS”) on his behalf. Lambert told the staff at The
Birdcage that his fall was not their fault. Eventually, EMS arrived and took Lambert to
the emergency room.
{¶5} Two days later, after receiving medical treatment, Lambert returned to
The Birdcage to investigate the cause of his fall. Initially, Lambert believed he had
slipped because of the rain. When Lambert saw the riser at the Race Street door, he
realized instead that he must have tripped over the riser.
{¶6} Lambert was a regular at The Birdcage and had visited the bar many
times since it opened in November 2018. Lambert knew the staff, and at least some of
the employees knew him by name. Lambert would occasionally go out on the patio,
particularly when it wasn’t too cold or crowded. The Race Street door where Lambert
tripped was the only way to enter onto and exit from that patio. Lambert traversed the
riser safely no fewer than three times the evening he fell: first, when he exited from the
bar onto the patio; second, when he reentered the bar from the patio; and third, when
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OHIO FIRST DISTRICT COURT OF APPEALS
he again exited from the bar onto the patio. Lambert then tripped on his fourth pass
over the riser.
III. Analysis
{¶7} In his sole assignment of error, Lambert argues that the trial court erred
in granting summary judgment in favor of The Birdcage on Lambert’s claims for
negligence and negligence per se.
{¶8} We review a trial court’s grant of summary judgment de novo. Collett v.
Sharkey, 1st Dist. Hamilton No. C-200446, 2021-Ohio-2823, ¶ 8. “Summary
judgment is appropriately granted when there exists no genuine issue of material fact,
the party moving for summary judgment is entitled to judgment as a matter of law,
and the evidence, when viewed in favor of the nonmoving party, permits only one
reasonable conclusion that is adverse to that party.” Id., citing State ex rel. Howard v.
Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994).
Negligence
{¶9} Generally, to recover in negligence, a plaintiff must prove that (1) the
defendant owed the plaintiff a duty; (2) the defendant breached that duty; and (3) the
defendant’s breach proximately caused the plaintiff’s injury. Chambers v. St. Mary’s
School, 82 Ohio St.3d 563, 565, 697 N.E.2d 198 (1998). The source of the duty may be
the common law, a legislative enactment, or the particular facts and circumstances of
the case. Id.{¶10} A business owner owes its invitees a duty to maintain the premises in a
reasonably safe condition. Asher v. Glenway Real Estate, LLC, 2019-Ohio-4851, 149
N.E.3d 1035, ¶ 15 (1st Dist.). This includes a duty to warn of latent or hidden dangers.
Duell v. City of Cincinnati, 2018-Ohio-4400, 122 N.E.3d 640, ¶ 5 (1st Dist.).
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{¶11} There is no dispute that Lambert was a business invitee of The Birdcage,
and therefore, The Birdcage owed Lambert a general duty to keep the premises in a
reasonably safe condition. However, The Birdcage argues that this general duty did
not include the duty to warn Lambert of the potential hazard at the threshold where
Lambert tripped because the condition was open and obvious. Although Lambert
disputes that the hazard posed by the threshold of the patio door was open and
obvious, Lambert also argues that attendant circumstances reimpose The Birdcage’s
duty to warn patrons of the hazard at the threshold.
1. The Open-and-Obvious Doctrine
{¶12} The open-and-obvious doctrine serves as an exception to the general
rule of premises liability. “ ‘Where a danger is open and obvious, a landowner owes no
duty of care to individuals lawfully on the premises.’ ” Asher at ¶ 15, quoting Lang v.
Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 11,
quoting Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788
N.E.2d 1088, syllabus. A danger is open and obvious when it is not “ ‘hidden,
concealed from view, or undiscoverable upon ordinary inspection.’ ” Id., quoting
Esterman v. Speedway LLC, 1st Dist. Hamilton No. C-140287, 2015-Ohio-659, ¶ 7,
quoting Thompson v. Ohio State Univ. Physicians, Inc., 10th Dist. Franklin No.
10AP-612, 2011-Ohio-2270, ¶ 12. The rationale underlying this doctrine is “that the
open and obvious nature of the hazard itself serves as a warning. Thus, the owner or
occupier may reasonably expect that persons entering the premises will discover those
dangers and take appropriate measures to protect themselves.” Simmers v. Bentley
Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992).
{¶13} The question of whether a hazard is open and obvious is typically a
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OHIO FIRST DISTRICT COURT OF APPEALS
question of law. Asher, 2019-Ohio-4851, 149 N.E.3d 1035, at ¶ 15. Such a
determination is made using an objective standard, not based on the plaintiff’s
subjective awareness. See Vaughn v. Firehouse Grill, LLC, 1st Dist. Hamilton No.
C-160502, 2017-Ohio-6967, ¶ 11; Esterman at ¶ 7. Courts routinely determine that a
hazard is open and obvious as a matter of law. See, e.g., McLaughlin v. Andy’s Coin
Laundries, LLC, 2018-Ohio-1798, 112 N.E.3d 57, ¶ 15 (1st Dist.).
{¶14} Lambert contends that this doorway represents a “Goldilocks” hazard:
one that is so slight and inconspicuous as to go unnoticed, but so hazardous as to be
an inevitable source of injury. Such logic runs counter to the Ohio Supreme Court’s
decision in Raflo v. Losantiville Country Club, 34 Ohio St.2d 1, 295 N.E.2d 202 (1973).
In Raflo, a wedding guest tripped while exiting from the venue by way of a single step
immediately outside the door, having previously entered by the same doorway. Id. at
2. The step was nine-and-one-half-inches high, despite the relevant building code
prohibiting such steps from being more than seven-and-one-half-inches in height. Id.
“[W]hen one successfully traverses a step, even if of a statutorily proscribed elevation,
upon entering a building, he cannot take the position that it was at that time so
insubstantial as to go unnoticed, but became unreasonably dangerous, hence
actionable, when injuries were occasioned by it upon exiting shortly thereafter.”
McGowan v. St. Antoninus Church, 1st Dist. Hamilton No. C-000488, 2001 Ohio App.
LEXIS 1610, 7 (Apr. 6, 2001), citing Raflo at 4.
{¶15} Once a person has successfully traversed an open-and-obvious
condition and encountered the danger thereby presented, that person is on notice of
the dangerous condition. Such a person cannot later claim ignorance of the condition
after injury has occurred. Accord Early v. Damon’s Restaurant, 10th Dist. Franklin
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No. 05AP-1342, 2006-Ohio-3311, ¶ 14 (“An invitee cannot minimize the effect of the
open and obvious doctrine by contending a far different and far more dangerous
situation existed upon leaving an area when the alleged defect, unchanged while she
was on the premises, was visible at the time she entered.”); Olivier v. Leaf & Vine, 2d
Dist. Miami No. 2004 CA 35, 2005-Ohio-1910, ¶ 42 (finding the condition was open
and obvious because plaintiff was necessarily on notice of the single step up to a raised
seating area due to her prior use); Greenwald v. Mapleside Farms, Inc., 9th Dist.
Medina No. 03CA0067-M, 2004-Ohio-111, ¶ 8-10 (affirming summary judgment in
favor of defendant where plaintiff tripped on a curb after encountering it previously
that day); Reinhardt v. Cedar Point, Inc., 6th Dist. Erie No. E-91-13, 1991 Ohio App.
LEXIS 5255, 7 (Nov. 1, 1991) (finding defendant owed no duty to plaintiff where
plaintiff “traversed the stairs upon [defendant]’s property less than ninety minutes
prior to her falling on these same steps” and therefore “had knowledge of the existence
of the stairs.”); Lajoie v. Maumee River Yacht Club, 6th Dist. Lucas No. L-89-014,
1990 Ohio App. LEXIS 312, 4 (Feb. 2, 1990) (finding that defendant yacht club was
not liable for wrongful death where the decedent was held to have knowledge of
conditions at the site because he was a long-time member of the club and had traversed
the area at least twice the day of the accident).
{¶16} Lambert tries to avoid the effect of his prior usage by reference to our
holding in Asher. In Asher, we held that the defective condition of a doorway at the
top of a set of stairs was not open and obvious, despite the plaintiff’s prior use of the
doorway. Asher, 2019-Ohio-4851, 149 N.E.3d 1035, at ¶ 16-17. In that case, however,
the hazard was not the door itself, but the way that the door swung open over the top
landing of the steps. Id. A person could not observe and appreciate the hazard posed
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by the way the door opened until after opening the door and thereby encountering the
dangerous condition. Id. However, Asher testified that on every previous occasion
when she had traversed the dangerous doorway, someone else had serendipitously
held the door open for her. Id. at ¶ 16. Thus, although she had traversed the doorway
on multiple prior occasions, she had never actually encountered the hazardous
condition prior to her injury. Id. at ¶ 17. The instant case is distinguishable: the
condition of the riser at The Birdcage did not change during use. The potential danger
posed to Lambert was the same each time he encountered the riser, and therefore, he
had already encountered and overcome the precise hazard at issue. Thus, he was on
notice of the existence of the riser.
{¶17} We similarly distinguish McClain v. The Drinkery, 2021-Ohio-4161, 180
N.E.3d 1254 (1st Dist.) (holding that, although the pool table slabs that caused the
plaintiff’s injuries were clearly visible, the nature of the danger they posed was not
apparent), and Holl v. Montrose, Inc., 82 Ohio App.3d 644, 647, 612 N.E.2d 1288 (9th
Dist.1992) (holding that awareness of a dangerous gap near the stairs previously
traversed by the plaintiff was not necessary to the successful use of the stairs). In each
of those cases, the specific nature of the danger posed was not readily apparent, and
thus the hazard was not open and obvious.
{¶18} The trial court properly found the riser at the doorway to The Birdcage
to be an open-and-obvious danger. The riser was not hidden or concealed. The nature
of the risk, that one might trip over it, was immediately apparent on ordinary
inspection. The obvious nature of the hazard was confirmed when Lambert visited the
bar two days after his injury, saw the riser at the doorway, and readily concluded that
he must have tripped over that riser. No special circumstances needed to coincide with
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the observation of the riser to see that it was a potential trip hazard. Because the hazard
posed by the riser was open and obvious, The Birdcage owed Lambert no duty to warn
him of the potential danger.
{¶19} Nevertheless, Lambert argues that there remain genuine issues of
material fact that cannot be resolved on summary judgment. Lambert asserts that The
Birdcage violated a number of Ohio Building Code and Cincinnati Building Code
provisions. These violations, Lambert argues, conclusively raise genuine issues of
material fact that cannot be resolved by summary judgment, as this court held in
Christen v. Don Vonderhaar Mkt. & Catering, Inc., 1st Dist. Hamilton No. C-050125,
2006-Ohio-715.
{¶20} To the extent that Christen held that building code violations preclude
summary judgment, that decision was abrogated by the Supreme Court in Lang v.
Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 21. If
a hazard is open and obvious, there is no duty to warn of the hazard, obviating the duty
component of negligence irrespective of a building code violation. See Vaughn v.
Firehouse Grill, LLC, 1st Dist. Hamilton No. C-160502, 2017-Ohio-6967, ¶ 15, citing
Lang at syllabus. Even where a hazard violates an applicable building code, unless the
plaintiff can properly invoke negligence per se, the defendant may still raise any
available defense to negligence, including the open-and-obvious doctrine. Lang at
¶ 21.
{¶21} Building code violations may be evidence of negligence. Asher,
2019-Ohio-4851, 149 N.E.3d 1035, at ¶ 25, citing Mann v. Northgate Investors, L.L.C.,
138 Ohio St.3d 175, 2014-Ohio-455, 5 N.E.3d 594, ¶ 29. However, the question of
whether the riser constitutes an open-and-obvious hazard is a threshold question that
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must be addressed before consideration of negligence based on the building codes.
Because we have determined that the riser constitutes an open-and-obvious hazard,
whether The Birdcage may have violated applicable building codes is irrelevant to
determining whether The Birdcage may have been negligent towards Lambert.
2. Attendant Circumstances
{¶22} Even where a hazard may be open and obvious, attendant
circumstances that reduce the degree of ordinary care that a person will take for their
own safety may create a genuine issue of material fact that will preclude summary
judgment. Esterman, 1st Dist. Hamilton No. C-140287, 2015-Ohio-659, at ¶ 11.
“ ‘Attendant circumstances’ reduce the degree of care an ordinary person exercises and
‘must, taken together, (1) divert the attention of the pedestrian, (2) significantly
enhance the danger of the defect, and (3) contribute to the fall.’ ” Id., quoting Shepherd
v. City of Cincinnati, 168 Ohio App.3d 444, 2006-Ohio-4286, 860 N.E.2d 808, ¶ 31
(1st Dist.). Attendant circumstances must pose a “significant distraction,” and cannot
include “regularly encountered, ordinary, or common circumstances.” Id., quoting
Haller v. Meijer, Inc., 10th Dist. Franklin No. 11AP-290, 2012-Ohio-670, ¶ 10.
Furthermore, “attendant circumstances do not include a person’s activity at the time
of a fall unless the person’s attention was diverted by ‘an unusual circumstance of the
property owner’s own making.’ ” Id., quoting McConnell v. Margello, 10th Dist.
Franklin No. 06AP-1235, 2007-Ohio-4860, ¶ 10.
{¶23} Lambert argues that attendant circumstances prevented him from
perceiving the potential danger at the threshold of the doorway. In particular, Lambert
claims as attendant circumstances: (1) the darkness of the evening hour and poor
illumination of the doorway; (2) the light rain falling at the time; and (3) that he was
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entering the bar while simultaneously carrying an empty wine glass and closing an
umbrella.
{¶24} Generally, darkness itself is an open-and-obvious condition, not an
attendant circumstance, which should increase, not decrease, the care that a
reasonable person takes for their own safety. See Esterman at ¶ 13, citing Shipman v.
Papa John’s, 3d Dist. Shelby No. 17-14-17, 2014-Ohio-5092, ¶ 30-31.
{¶25} Lambert does not describe precisely how the rain obscured his ability to
perceive and appreciate the degree of hazard posed by the step. Regardless of the
nature of rain as an attendant circumstance, we observe that light rain is surely a
“regularly encountered, ordinary, or common” occurrence. Even if the rain somehow
diverted Lambert’s attention, it was not created by The Birdcage. Thus, any diversion
the rain might have caused to Lambert’s attention cannot be charged against The
Birdcage as an attendant circumstance.
{¶26} Finally, Lambert claims that his attention was diverted from safely
entering the doorway because he was holding an empty wine glass and closing an
umbrella. Attendant circumstances “do not include a person’s activity at the time of a
fall unless the person’s attention was diverted by ‘an unusual circumstance of the
property owner’s own making.’ ” Esterman at ¶ 11, quoting McConnell, 10th Dist.
Franklin No. 06AP-1235, 2007-Ohio-4860, at ¶ 10. Lambert chose to carry both the
wine glass and the umbrella while maneuvering through the doorway and he chose to
close his umbrella at the same time. Although the wine glass was the property of The
Birdcage, it was Lambert who brought the glass outside and brought it with him back
inside. These activities may well have obscured the danger posed by the riser or
inhibited Lambert’s ability to exercise due care for his own safety. However, these are
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circumstances of Lambert’s own making. As such, they cannot be attendant
circumstances that mitigate the open-and-obvious nature of the doorway.
{¶27} The riser that caused Lambert’s fall was open and obvious. There were
no attendant circumstances that obscured the nature of the danger posed. As a result,
The Birdcage owed Lambert no duty to warn of the danger. The trial court did not err
by granting The Birdcage summary judgment on Lambert’s claim of negligence.
Negligence Per Se
{¶28} In addition to his claim of negligence, Lambert also asserts a claim of
negligence per se. Lambert points to a number of provisions of Title XI of the
Cincinnati Municipal Code that he claims The Birdcage violated. Chapters 1101
through 1119 of Title XI make up the Cincinnati Building Code (“CBC”). On appeal,
Lambert focuses our attention on three specific code provisions: Cincinnati Municipal
Code 1119-03.3, 1119-07.2, and 1119-04.2.
{¶29} Cincinnati Municipal Code 1119-03.3, entitled “Building structure,”
requires that “[t]he interior and exterior of a structure shall be maintained in good
repair, structurally sound and sanitary so as not to pose a threat to the public health,
safety or welfare.” Cincinnati Municipal Code 1119-07.2, entitled “Means of egress,”
provides that, “[s]afe, continuous and unobstructed means of egress shall be provided
from the interior of a structure to a public way.” Cincinnati Municipal Code 1119-04.2,
entitled “Required illumination,” specifies:
Every common hall and stairway required as a means of
egress, shall be lighted at all times with at least a 60 watt
standard incandescent bulb or equivalent for each 200
square feet of floor area, provided that the spacing
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between the lights shall not be greater than 30 feet. Every
exterior stairway, if required as a means of egress, shall
be illuminated with a minimum of one foot candle at
floors, landings and treads.
Because these code provisions were enacted by the Cincinnati City Council by
ordinance, each of them constitutes a legislative enactment.
{¶30} The open-and-obvious defense negates the element of duty where the
source of that duty is the common-law duty of reasonable care that a property owner
owes to business invitees. See Lattimore v. K & A Mkt., Inc., 1st Dist. Hamilton No.
C-150753, 2016-Ohio-5295, ¶ 9. Where the source of the duty is a legislative
enactment, failure to perform the duty is negligence per se. Chambers, 82 Ohio St.3d
at 565, 697 N.E.2d 198. In a case of negligence per se, the open-and-obvious defense
is unavailable. Mann, 138 Ohio St.3d 175, 2014-Ohio-455, 5 N.E.3d 594, at ¶ 24.
{¶31} However, in order for a legislative enactment to state a duty for the
purposes of negligence per se, that enactment must “set[] forth a specific and definite
standard of care.” Asher, 2019-Ohio-4851, 149 N.E.3d 1035, at ¶ 25, quoting Mann at
¶ 29. In Asher, we assessed two provisions of the CBC at issue in a negligence per se
claim, including Cincinnati Municipal Code 1119.03-3, on which Lambert relies. Id. at
¶ 26-27. At that time, we assumed without deciding that the Cincinnati Municipal
Code could provide the basis of a negligence-per-se claim. Id. at ¶ 27.
{¶32} We previously held that Cincinnati Municipal Code 1119-03.3 provides
only a “general, abstract, description of a duty” and is therefore insufficiently “specific
and definite” to set forth a duty for purposes of negligence per se. Id. Cincinnati
Municipal Code 1119-07.2 likewise provides only a “general, abstract, description of a
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duty,” and does not establish the sort of specific and definite standard of care
necessary to constitute negligence per se.
{¶33} Cincinnati Municipal Code 1119-04.2, however, does provide specific,
definite standards for compliance. That section requires, for example, certain wattage
lightbulbs, maximum spacing for light placement, and a specified level of illumination
for egress stairs.
{¶34} On summary judgment, the moving party has the initial burden to
inform the court of the basis for its motion and to demonstrate the absence of any
genuine issues of material fact. Blue Ash Auto Body, Inc. v. Frank, 2022-Ohio-1292,
190 N.E.3d 1180, ¶ 10 (1st Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293,
662 N.E.2d 264 (1996). “Once the moving party has met its burden, the nonmoving
party has a reciprocal burden to set forth specific evidentiary facts showing the
existence of a genuine issue for trial.” Id. However, “conclusory allegations” and “self-
serving interpretations of the evidence presented” are insufficient to survive summary
judgment. Id.{¶35} Lambert offers no evidence to show how The Birdcage failed to meet the
standard set forth in Cincinnati Municipal Code 1119-04.2. Lambert emphasizes that
no lighting directly lit the riser and that the area around the doorway was generally
poorly lit. Lambert, however, offers no information regarding placement of lightbulbs
in the area, nor any measurement of the illumination of the riser. The Birdcage
correctly points out that Lambert has offered no specific facts to establish a violation
of any municipal code provision. Conclusory statements and general allegations that
the area was poorly lit are not competent evidence sufficient to create a genuine issue
of material fact as to a violation of the specific requirements of Cincinnati Municipal
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Code 1119-04.2.
{¶36} Assuming that provisions of the Cincinnati Municipal Code could form
the basis for a negligence-per-se claim, Cincinnati Municipal Code 1119-03.3 and
1119-07.2 do not set forth a specific and definite standard that can be used to support
such a claim. Lambert has failed to present any competent evidence of a violation of
Cincinnati Municipal Code 1119-04.2. Accordingly, the trial court did not err in
granting The Birdcage’s motion for summary judgment as to Lambert’s claim of
negligence per se.
IV. Conclusion
{¶37} For the foregoing reasons, we overrule Lambert’s assignment of error.
We affirm the judgment of the trial court.
Judgment affirmed.
BERGERON, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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