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Scott v. Hogan

Court of Appeals of Louisiana, First Circuit

July 18, 2018

SHAVONDARA SHAKETA SCOTT
v.
HARRISON EDMOND HOGAN

          Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge, Louisiana Docket Number C658575 | Section 23 Honorable William A. Morvant, Judge Presiding

          Gregory Cook Attorney for Appellant Defendant - Harrison Edmond Hogan

          Shavondara Shaketa Scott Appellee Plaintiff- Pro Se

          BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.

          WELCH, J.

         The defendant, Harrison Edmond Hogan, appeals the trial court's grant of a protective order against him pursuant to the Protection for Victims of Sexual Assault Act, La. R.S. 46:2181, et seq., filed by the plaintiff, Shavondara Shaketa Scott. For the following reasons, we recall and vacate the protective order and remand the matter to the trial court for further proceedings consistent with this opinion.

         FACTUAL BACKGROUND

         Plaintiff initiated this suit on June 8, 2017, by filing a verified petition for protection from stalking or sexual assault, pursuant to La. R.S. 46:2171, et seq. (Protection from Stalking Act) or La. R.S. 46:2181, et seq. (Protection for Victims of Sexual Assault Act). Therein, Plaintiff sought a protective order for herself against her ex-coworker, the defendant. In her petition, Plaintiff alleged that Defendant harassed, stalked, harmed or threatened to harm her, was an uninvited presence at her workplace, and had mail sent to her residence, addressed to himself. During all material times, Plaintiff was the Community Team Manager at Midcity Gardens on North Boulevard for Latter and Blum Property Management. Plaintiff alleged that Defendant was fired by their mutual employer in the early part of 2017, and Plaintiff became concerned that Defendant blamed her for his termination. Defendant was escorted off the premises and instructed not to return. However, she claimed that Defendant continued to drive by and trespass on the property on multiple occasions. Plaintiff further alleged that Defendant had mail sent to her residence by a third party that was addressed to him, which caused her to feel threatened and fear for her safety, since this presumably meant that Defendant knew where she lived. As a result, a temporary restraining order ("TRO") was issued by the trial court on June 8, 2017, pursuant to "La. R.S. 46:2181 et seq. (Non-intimate sexual assault)," with a show-cause hearing scheduled for June 28, 2017, to determine whether a protective order should be issued. Defendant was served with the TRO on June 15, 2017. Defendant did not file any opposition to Plaintiffs petition for protection.

         The protective order hearing occurred on June 28, 2017, before the trial court. The minute entry and transcript from the hearing reflect that Defendant was not present in the courtroom when the docket was called at 9:30 a.m. The trial court stated: "he's been served and is aware of this. If he does not show up, it is my intention simply to go forward without him." The trial court instructed court personnel to call for Defendant out in the hall; however, no one responded. The trial court then began the hearing.

         Plaintiff testified at the hearing. Following the hearing, the trial court signed the order of protection pursuant to the Protection for Victims of Sexual Assault Act, "La. R.S. 46:2181 et seq. (Non-intimate sexual assault)." The protective order, made effective through June 28, 2018 (including some provisions that do not expire), prohibited Defendant from:

• abusing, harassing, assaulting, stalking, following, tracking, monitoring, or threatening Plaintiff in any manner whatsoever;
• contacting Plaintiff or any of her family members or acquaintances personally, electronically, by phone, in writing, through a third party, or via public posting, without the express written permission of the trial court;
• going within 100 yards of Plaintiff s person or residence;
• going to or interfering with Plaintiffs place or employment in any manner whatsoever; and,
• damaging or interfering with any belongings or property of Plaintiff, including shutting off any utilities, telephone service, or mail delivery.[1]

         Thereafter, the hearing concluded at 9:45 a.m. The minute entry reflects that Defendant then appeared in court at 9:50 a.m., after the hearing was concluded and after the trial court judge had left the bench. The parties were served in open court with a copy of the protective order.

         On July 11, 2017, Defendant filed a motion for new trial from the protective order granted against him on June 28, 2017, [2] which the trial court denied as untimely pursuant to La. C.C.P. art. 1974.[3] On August 2, 2017, Defendant filed a motion to modify or dissolve Plaintiffs protective order, which the trial court also denied. Defendant now devolutively appeals the protective order granted on June 28, 2017.

         MOTION TO SUPPLEMENT THE RECORD

         Defendant has filed a "motion for leave to attach exhibits," which may be treated as a motion to supplement the appeal record.[4] It is well-settled Louisiana law that "[e]very pleading shall be construed as to do substantial justice." La. C.C.P. art. 865.

         Defendant seeks to supplement the appellate record with three "exhibits": (1) a photocopy of the mail received by Plaintiff at her residence that was addressed to Defendant; (2) a copy of the Baton Rouge Police Department ("BRPD") Incident Report Number 17-00036527-000 dated April 10, 2017 (which notes that the officer could not locate a prior report where Defendant was banned from the premises at issue); and, (3) a printed-out docket report from the East Baton Rouge Parish Clerk of Court's Office website for Docket Number C658575, which shows that the minute entry from the June 28, 2017 hearing was amended to indicate that court started at 9:30 a.m., not 9:00 a.m., as set forth in the original minute entry.

         As an appellate court, we have no jurisdiction to review evidence that is not in the record on appeal, and we cannot receive new evidence. Niemann v. Crosby Dev. Co., 2011-1337 (La.App. 1st Cir. 5/3/12), 92 So.3d 1039, 1044. An appellate court must render its judgment upon the record on appeal, i.e., that which is sent by the lower court to the appellate court and includes the pleadings, court minutes, transcripts, jury instructions (if applicable), judgments, and other rulings, unless otherwise designated. See La. C.C.P. arts. 2164 and 2127-2128. The trial court has jurisdiction to correct an omission from the trial record on appeal. An appellate court can neither supplement the record nor consider documents on appeal that were ...


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