APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 773-681, DIVISION
"L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, TENISHA CLARK Michal J.
COUNSEL FOR DEFENDANT/APPELLEE, WAL-MART STORES, INC. Sidney
J. Hardy Christine M. Berger
composed of Judges Jude G. Gravois, Marc E. Johnson, and
Stephen J. Windhorst
STEPHEN J. WINDHORST JUDGE.
Tenisha Clark, seeks review of the trial court's October
30, 2017 judgment,  granting an exception of prescription
filed by appellee/defendant, Wal-Mart Stores, Inc., and
dismissing with prejudice plaintiff's claims against
defendant. For the following reasons, we reverse and remand
for further proceedings.
and Procedural History
6, 2016, while at defendant's store located at 300 W.
Esplanade Avenue, in Kenner, plaintiff allegedly slipped and
fell on a wet spot on the floor. As a result of this
incident, plaintiff allegedly sustained injuries.
4, 2017, plaintiff filed via facsimile a petition for damages
with the Clerk of Court for the 24th Judicial
District Court for the Parish of Jefferson. The Clerk of
Court received the facsimile on July 5, 2017. Plaintiff's
counsel prepared and mailed via the United States Postal
Service, a certified mail package containing the original
petition for damages and applicable fees to the Clerk of
Court's address listed as P.O. Box 10, Gretna, Louisiana
70054. The certified mail package's return receipt
requested card ("green card") was delivered to the
P.O. Box address and was signed by Faye Simoneaux on July 13,
2017. On July 14, 2017, the Clerk of Court stamped as filed
plaintiff's original petition for damages.
filed an answer and an exception of prescription. In its
exception, defendant argued that plaintiff failed to satisfy
the requirements of La. R.S. 13:850 B(1) because
plaintiff's original copy was not delivered to and
received by the Clerk of Court within seven days of the
facsimile filing on July 4, 2017. Defendant contended that
plaintiff's original copy was received on July 14, 2017,
one day after the applicable seven-day time period, and
plaintiff's claim was therefore prescribed.
response to defendant's exception, plaintiff filed a
memorandum in opposition arguing that she complied with La.
R.S. 13:850 B because the original petition and applicable
fees were mailed to the Clerk of Court via certified mail
return receipt requested to the Clerk of Court's listed
addressed and it was delivered to the Clerk of Court when the
green card was signed by Ms. Simoneaux on July 13, 2017. In
support of her opposition, plaintiff attached the affidavit
of her counsel, wherein counsel stated that he mailed the
original petition and applicable fees via certified mail,
return receipt requested, to the address listed on all of the
Clerk of Court's communications - Clerk of Court, P.O.
Box 10, Gretna, Louisiana 70054 - and the green card was
signed by Ms. Simoneaux on July 13, 2017. Plaintiff also
attached a copy of the green card and a copy of the Clerk of
Court's facsimile filing receipt. After a hearing, the
trial court granted defendant's exception of prescription
and dismissed plaintiff's claims against defendant. This
March 16, 2018, plaintiff filed a motion to supplement the
record on appeal by including an affidavit executed on March
13, 2018, by Ms. Simoneaux, the deputy clerk of court.
Plaintiff argues that the affidavit and its attached exhibit
are relevant and material to key issues of law before this
Court and are required for a complete record.
March 20, 2018, defendant filed an opposition to
plaintiff's motion to supplement, arguing the trial court
granted defendant's exception of prescription on October
30, 2017. Defendant contends that the affidavit sought to be
included in the record was not previously introduced in the
exception of prescription hearing in the trial court.
Defendant argues that La. C.C.P. art. 2132 does not permit
the introduction of new evidence after an appeal is filed in
the appellate court. Further, defendant contends that La.
C.C.P. art. 2164 precludes the appellate court from
considering new evidence that is not part of the record on
appeal. Defendant contends that Ms. Simoneaux's affidavit
was not a part of the trial court record as it was executed
on March 13, 2018, after the record was lodged for appeal
with this Court. Therefore, defendant argues that this Court
should deny plaintiff's motion to supplement the record
on appeal. This Court referred the motion to the merits of
appellate court must render its judgment upon the record on
appeal. La. C.C.P. art. 2164; In re Melancon,
05-1702 (La. 07/10/06), 935 So.2d 661, 666. A court of appeal
is a court of record, which must limit its review to evidence
in the record before it. La. C.C.P. art. 2164; Black v.
Anderson, 06-891 (La.App. 5 Cir. 03/13/07), 956 So.2d
20, 23, writ denied, 07-0794 (La. 06/01/07), 957
So.2d 180. An appellate court cannot review evidence that is
not in the record on appeal and cannot receive new evidence.
Hover v. Farber, 05-613 (La.App. 5 Cir. 01/31/06),
922 So.2d 637, 638. Even after the record has been
transmitted to the appellate court, the record can be
supplemented by stipulation of the parties, by the trial
court, or by order of the appellate court, only if the
evidence was properly filed into the record in the trial
court. La. C.C.P. art. 2132 ; Nuccio v. Robert,
99-1327 (La.App. 5 Cir. 04/25/00), 761 So.2d 84, 87, writ
denied, 00-1453 (La. 06/30/00), 766 So.2d 544.
review of the record establishes that the affidavit was not
introduced into evidence or before the trial court at the
hearing on the exception of prescription. Moreover, the
affidavit itself shows that it was not executed until after
judgment was rendered and the record was lodged for appeal