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Clark v. Wal-Mart Stores, Inc.

Court of Appeals of Louisiana, Fifth Circuit

October 31, 2018

TENISHA CLARK
v.
WAL-MART STORES, INC.

          ON 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. Harris

          COUNSEL FOR DEFENDANT/APPELLEE, WAL-MART STORES, INC. Sidney J. Hardy Christine M. Berger

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Stephen J. Windhorst

          STEPHEN J. WINDHORST JUDGE.

         Appellant/plaintiff, Tenisha Clark, seeks review of the trial court's October 30, 2017 judgment, [1] 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.

         Facts and Procedural History

         On July 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.

         On July 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.

         Defendant 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.

         In 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 appeal followed.

         Procedural Issue

         On 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.

         On 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 this appeal.

         An 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 [2]; 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.

         Our 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 ...


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