author: GUIDRY, J.

text:
    SATTERFIELD & PONTIKES CONSTRUCTION, INC. v. BREAZEALE SACHSE & WILSON, LLP, Murphy J. Foster III, Individually and Steven B. Loeb, Individually
    NUMBER 2015 CA 1355
    Court of Appeal of Louisiana, First Circuit.
    JANUARY 10, 2017

      James R. Clary, Jr., Christopher S. Suba, Baton Rouge, LA, Counsel for Plaintiff/Appellant Satterfield & Pontikes Construction, Inc.
    Michael A. Patterson, S. Brooke Barnett-Bernal, Latoya D. Jordan, Baton Rouge, LA, Counsel for Defendants/Appel-lees Breazeale Sachse & Wilson, LLP, Murphy J. Foster, III and Steven B. Loeb
    BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
   GUIDRY, J.

I Jn this legal malpractice action, plaintiff, Satterfield & Pontikes Construction, Inc. (S & P), appeals from a trial court judgment sustaining a peremptory exception raising the objection of peremption filed by defendants, Breazeale Sachse & Wilson (BSW), Murphy J. Foster III, and Steven B. Loeb, and dismissing S & P’s claims against them with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

S & P was a general contractor for construction of the Lawrence D. Crocker Elementary School in New Orleans (Crocker project). The State of Louisiana, Department of Education, Recovery School District (RSD) was the property owner and Jacobs Project Management Company/CSRS Consortium (Jacobs) was the project manager. Norman Chenevert and Chenevert Architects, LLC (collectively “Chenevert”) as well as sub-consultant structural engineers, Julien Engineering & Consulting, Inc. (Julien), created the plans and specifications for the Crocker project.

In August 2011, S & P met with Murphy J. Foster, III, a partner at BSW, and retained BSW to represent it in matters arising out of another project for which S & P also served as general contractor involving St. Mary’s Academy in New Orleans (St. Mary’s project). Thereafter, on August 12, 2011, Foster sent a letter to S & P, requesting a waiver of a potential conflict related to BSW’s representation of S & P on the St. Mary’s project. In this letter, Foster explained that one of his partners, Steven Loeb, had been representing Chenevert for many years and had been assisting Chenevert on matters concerning the Crocker project. Foster further advised S & P that because it was the contractor on the Crocker project, a conflict of interest may exist or arise. Therefore, Foster stated that while there may be no formal claims or litigation between S & P and Chenevert, professional rules ^applicable to lawyers required that BSW make disclosure and obtain written waivers from both clients. Laura Pontikes, the Chief Financial Officer for S & P, signed the waiver on behalf of S & P as requested on August 17, 2011. However, BSW and Loeb subsequently returned Chenevert’s file in the Crocker project per Chenevert’s request on November 1,2011.

On February 17, 2012, counsel for RSD sent a notice of consideration of contractor default to S & P, asserting S & P had repeatedly failed to proceed with changes in work as ordered on the Crocker project, failed to diligently perform work on the project and to take necessary action to bring work on schedule, failed to provide the architect with timely submittals, and failed to meet deadlines in its own submit-tal schedule, causing significant delays in the performance of the work. Thereafter, Denis Ducran, general counsel for S & P, and Laura Pontikes contacted Foster and asked for his assistance on the Crocker project.

On February 24, 2012, Foster sent a letter on behalf of S & P to counsel for RSD, responding to the claims raised by RSD in its notice of consideration of default. Thereafter, on March 6, 2012, Foster attended a settlement conference related to RSD’s claims raised in its notice of default. During this meeting, RSD and S & P reached a settlement.

On the day of the settlement conference, Foster sent a letter to Laura Pontikes, as representative of S & P, to confirm then-previous conversations regarding BSW’s representation of S & P in connection with the Crocker project and to advise of its concern regarding S & P’s dispute with Chenevert’s sub-consultant, Julien. Particularly, Foster reiterated that Loeb and BSW had represented Chenevert on the Crocker project for many years and advised that inasmuch as the sub-consultant worked for the architect, there were actually three parties that S & P could sue for damages suffered as a result of the delay and additional costs: RSD; the sub-consultant, Julien; and the architect, Chene-vert. |4Foster further- advised that S & P had a direct action in Louisiana against either or both the architect and the structural steel designer and had a contractual action for the same damages against RSD. Foster reiterated that BSW could not represent S & P if it chose to sue Chenevert. Foster stated that Chenevert believed that the structural steel design drawings were in error, and Foster stated that pretty much everyone feels the same way. Foster reiterated that it could defend S & P against the owner, RSD, and could sue the owner and the structural steel designer, but that it could not and would not sue Chenevert. However, Foster stated that S <& P had a viable cause of action against Chenevert that could be pursued, although it was likely that Chenevert would third-party his sub-consultant, which would ultimately be responsible for any judgment rendered. Foster stated that if BSW continued to represent S & P, it would proceed directly against the sub-consultant and not sue Chenevert. Foster concluded by asking S & P to sign a waiver if it would like BSW to represent it in pursing any claims and defenses on the Crocker project, acknowledging its waiver of any rights against Chenevert. Laura Pontikes acknowledged receiving Foster’s letter on March 7, 2012.

Although acknowledging receipt of the March 6, 2012 letter from Foster, Laura Pontikes never executed the waiver nor took any further action with regard to its contents. On March 28, 2012, RSD sent S & P a settlement letter agreement memorializing the agreement reached regarding RSD’s claims. Ducran reviewed and revised the agreement prior to its execution by S & P, and after its execution, Laura Pontikes thanked Foster for the “victory.”

Thereafter, in April 2012, BSW filed suit on behalf of S & P against Julien and its insurer and filed suit in February 2013 against RSD. Issues with RSD and Julien continued through 2012 and 2013, and in July/August 2013, S & P decided to also file suit against Chenevert. However, due to the aforementioned conflict, Foster recommended a new law firm to represent S & P in connection with the | ¡¡Crocker project, Shields Mott Lund, LLP (SML). On August 22, 2013, Ducran sent an email to Foster stating that S & P had retained SML to represent it in its lawsuits against RSD and Julien and requested that BSW’s entire file be sent to Sonny Shields at SML.

Thereafter, on July 31, 2014, S & P filed a petition for damages against BSW, Foster, and Loeb asserting claims of legal malpractice. In its petition, S & P asserted that when documents from BSW’s litigation file were sent to SML in February 2014, SML also received a copy of an October 3, 2011 email from John Haarala, senior project manager at Jacobs, to Norman Chenevert. In the email, Haarala stated that he had received the associated pricing for the miscellaneous steel scope of work and that was what he had been worried about from the start. Haarala told Chenevert that this information was to be included in an Errors & Omissions claim. Haarala stated that he had asked from the start for an order of magnitude from Chenevert, and he had yet to receive any response to those requests. Haarala reiterated that the entire evaluation was the responsibility of Chenevert. Chenevert forwarded the email to his associate, Mark Baum, and carbon copied Loeb.

S & P alleged in its petition that not until the discovery of the October 3, 2011 email did S & P discover that its own attorneys had withheld evidence and information from S & P, i.e., that Chenevert, RSD, and Jacobs all knew that the steel design plans were inadequate and incomplete and were the source of the delays and problems with the Crocker project. S & P alleged that had BSW informed it of this information, specifically the October 3, 2011 email, S & P would not have accepted the settlement terms with RSD,

In response, BSW, Foster, and Loeb filed a peremptory exception raising the objection of peremption on September 5, 2014. They asserted that the information S & P asserts BSW did not disclose to it, which formed the basis of its claim against |nBSW, Foster, and Loeb, was in fact expressly provided by BSW to S & P in the March 6, 2012 letter. Therefore, because S & P did not file its action against BSW, Foster, and Loeb until July 31, 2014, it was filed more than one year after S & P discovered or should have discovered the facts giving rise to its legal malpractice claim against them and as such is per-empted pursuant to the one-year peremp-tive period established by La. R.S. 9:5605.

The trial court held a hearing on defendants’ exception on December 1, 2014. Pursuant to a stipulation between the parties, the matter was submitted on briefs as well as attached exhibits and memoranda, which were offered and filed into evidence. On December 18, 2014, the trial court issued written reasons for judgment, finding that S & P should have known at the latest on March 7, 2012, the facts giving rise to any potential malpractice claim against BSW, Foster, and Loeb, and that those facts included, but are not limited to, the existence of a potential conflict between Chenevert and S & P in connection with the Crocker project and the ramifications thereof. Therefore, the trial court found that in accordance with La. R.S. 9:5605, which establishes a one-year peremptive period for legal malpractice claims, any claims of legal malpractice that S & P had against BSW, Foster, and Loeb are per-empted, as S & P’s suit was not filed until July 31, 2014, more than one year after S & P should have known or knew of the facts giving rise to any of the claims at issue.

Thereafter, the trial court signed a judgment in conformity with its ruling and dismissed all of S & P’s claims against BSW, Foster and Loeb, with prejudice. S & P filed a motion for new trial, which was denied. S & P now appeals from the trial court’s judgment.

STANDARD OF REVIEW

The objection of peremption is raised by the peremptory exception. La. C.C.P. art. 927(A)(2). Ordinarily, the ex-ceptor bears the burden of proof at the [ytrial of the peremptory exception. However, if peremption is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not per-empted. See Lomont v. Bennett, 14-2483, p. 7 (La. 6/30/15), 172 So.3d 620, 626-627, cert. denied, — U.S. -, 136 S.Ct. 1167, 194 L.Ed.2d 178 (2016).

At a hearing on a peremptory exception of peremption pleaded prior to trial, evidence may be introduced to support or controvert the exception. La. C.C.P. art. 931. If evidence is introduced at the hearing, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Lomont, 14-2483 at p. 8,172 So.3d at 627. Accordingly, if those findings are reasonable in light of the record reviewed in its entirety, an appellate court cannot reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Lomont, 14-2483 at p. 8,172 So. 2d at 627.

DISCUSSION

The time limit for filing a legal malpractice claim is set forth in La. R.S, 9:5605(A), which provides that an action for legal malpractice must be brought within one year of the date of the act, omission, or neglect, or within one year of the date of discovering the act, omission, or neglect and within three years of the date of the act, omission, or neglect. Jenkins v. Starns, 11-1170, p. 13 (La. 1/24/12), 85 So.3d 612, 620. Louisiana Revised Statutes 9:5605(B) farther provides that both the one-year and three-year periods of limitation provided in Subsection A are peremptive periods within the meaning of La. C.C. art. 3458 and as such, they cannot be renounced, interrupted, or suspended.

The “date of discovery” from which peremption begins to run is the date on which a reasonable person in the position of the plaintiff has, or should have, either actual or constructive knowledge of the damage, the delict, and the relationship between them sufficient to indicate to a reasonable person that he or she is the victim of a tort and to state a cause of action against the defendant. Teague v. St. Paul Fire and Marine Insurance Co., 07-1384, p. 13 (La. 2/1/08), 974 So.2d 1266, 1275. Put more simply, the date of discovery is the date the negligence was discovered or should have been discovered by a reasonable person in the plaintiff s position. Teague, 07-1384 at p. 13, 974 So.2d at 1275.

The Louisiana Supreme Court has consistently held that peremption commences to run in legal malpractice cases when a claimant knew or should have known of the existence of facts that would have enabled him to state a cause of action for legal malpractice. Jenkins, 11-1170 at p. 15, 85 So.3d at 621; Teague, 07-1384 at p. 14, 974 So.2d at 1276. Furthermore, the supreme court has held that a claimant’s mere apprehension that something may be wrong is insufficient to commence the running of peremption unless the claimant knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Teague, 07-1384 at p. 14, 974 So,2d at 1276.

The standard imposed is that of a reasonable person. Any plaintiff who had knowledge of facts that would place a reasonable person on notice that malpractice may have been committed shall be held to have been subject to the commencement of peremption by- virtue of such knowledge even though he asserts a limited ability to comprehend and evaluate the facts. Straub v. Richardson, 11-1689, p. 7 (La.App. 1 Cir. 5/2/12), 92 So.3d 548, 552, writ denied, 12-1212 (La. 9/21/12), 98 So.3d 341, cert. denied, - U.S. -, 133 S.Ct. 1805, 185 L.Ed. 2d 811 (2013). The focus is on the appropriateness of the claimant’s actions or inactions, and therefore, the inquiry becomes when would a reasonable person have been on notice that malpractice may have been committed. Straub, 11-1689 at p. 7, 92 So.3d at 553.

In the instant case, S & P alleged in its petition, and in opposition to defendants’ exception raising the objection of peremption, that the act of legal malpractice was defendants’ failure to disclose the October 3, 2011 email to S & P, |flresulting in the defendants’ failure to render a full and fair disclosure to S & P of all facts which materially affected its rights and interests in the dispute with RSD. Particularly, S & P asserted in its petition that defendants failed to provide S & P with information as to Chenevert and/or Ju-lien’s liability for the inadequate steel designs, that Jacobs and RSD had acknowledged the inadequacy of the steel designs, and that the inadequacy of the steel designs was the source of the delay on the Crocker project. As such, S & P alleged that defendants were negligent in: failing to make a full and fair disclosure to S & P that Chenevert admitted that the steel design plans and specifications were drafted and approved in derogation of professional standards of care; failing to make full and fan* disclosure to S & P that Chenevert held Julien responsible for the steel design errors; failing to make full and fair disclosure to S & P of their knowledge that RSD and Jacobs believed the design team was responsible for the steel design errors; failing to make a full and fair disclosure to 5 & P that RSD, Jacobs and Chenevert had concealed and were concealing material facts to gain an unjust advantage over S 6 P in the Errors and Omissions (E & 0) steel claims negotiation; failing to make a full and fair disclosure to S & P as to the true nature and scope of the adversity and conflict of interest between Chenevert and S & P; and failing to render ‘full, frank, and complete advice to S & P prior to negotiating with RSD.

Therefore, based on the allegations made by S & P in its petition, the act, omission, or neglect complained of is defendants’ failure to disclose all facts which materially affected its rights and interests in the disputes with RSD and which were contained in the October 3, 2011 email. In sustaining defendants’ exception |10raising the objection of peremption, the trial court found that S & P “should have known at the latest on March 7, 2012[,] the facts giving rise to any potential malpractice claims against BSW. Those facts include but are not limited to: the existence of a potential .conflict between Chenevert and [S & P] in connection with the Crocker [pjroject and the ramifications thereof. This is evidenced by an email from Laura Pontikes to Catherine Bell dated March 7, 2012, and a letter from [Poster] to Laura Pontikes dated March 6, 2012.” From our review of the record, we find no error in the trial court’s judgment.

. At the heart of all of S & P’s allegations is that the defendants failed to timely provide it with information that would have been beneficial in its negotiations with RSD—information not only about the liability of Chenevert but also as to the conflict presented by that liability. As recognized by the trial, court, Foster sent a letter to Laura Pontikes on the day of his negotiations with RSD, In this letter, emailed and faxed to Laura Pontikes from Foster’s assistant, Foster acknowledged that S & P’s dispute with- RSD arose from defective plans originating from the architect’s sub-consultant regarding the structural steel. Foster also stated that Chene-vert acknowledged that the steel design drawings were in error and that “everyone feels this way.” Foster informed Laura Pontikes that because the sub-consultant worked for the architect, she had a claim against RSD, the sub-consultant, and Chenevert for S & P’s damages suffered as a result of the delay and additional costs. However, Foster reiterated that his law partner, Loeb, had represented Chenevert on the Crocker project for many years, and therefore, BSW could not represent S & P in the event that S & P elected to sue Chenevert as one of the alleged parties at fault. Furthermore, while stating that BSW could defend S & P against RSD and could sue RSD and the sub-consultant on S & P’s behalf, it could not and would not not sue Chenevert. Accordingly, Foster stated that the only way BSW could continue to represent S & P was if S & P agreed to waive any Inactions against Chenevert. However, Foster reiterated that S & P had a viable cause of action against Chenevert that could be pursued.

Accordingly, the contents of this letter detail not only Chenevert and its sub-consultant’s liability but also provides S & P with information that Chenevert and everyone else involved was in agreement that the steel design drawings were in error. Furthermore, Foster reiterated several times that S & P had a claim against RSD, the sub-consultant, and Chenevert. Finally, the letter set forth an actual conflict of interest, requesting a waiver from S & P of any claims against Chenevert in order for BSW to continue representing S & P.

Although Laura Pontikes did not receive the letter until the following day, and as such, admittedly set it aside thinking that its contents were moot following the negotiation and settlement of S & P’s claims with RSD, it was enough notice to excite attention and put a reasonable person on guard to call for inquiry. See Jenkins, 11-1170 at p. 16, 85 So.3d at 621. At the time Laura Pontikes received the letter, she had constructive knowledge of BSW’s failure to provide her with information of Chenevert’s admission that the steel design drawings were in error and the concurrence in that admission of all other parties. Additionally, she was aware of a real conflict between S & P and Chene-vert. Given this information, Laura Pon-tikes had constructive knowledge that the settlement with RSD for a lesser amount was not in S & P’s best interest, and that had S & P known this information, it would not have agreed to settle the E & 0 steel claims with RSD at “a heavy cost.”

Furthermore, despite S & P’s argument to the contrary, the October 3, 2011 email from Haarala to Chenevert, which was not provided to S & P until February 2014, after it obtained new counsel, does not provide any new information. Rather, the email merely details the costs and delays incurred by S & P and directs Chenevert to include all of the information in an E & 0 claim. Furthermore, the |1¾email instructs Chenevert that it is responsible for the evaluation of these claims. However, contrary to S & P’s assertion, the email does not absolve S & P of any liability for delays in completion of the project. As such, this email does not provide any information in addition to that which was already provided in the March 6, 2012 letter.

Accordingly, from our review of the record, we find no error in the trial court’s finding that on March 7, 2012, S & P had knowledge sufficient to put it on notice that BSW was negligent in failing to provide S & P with material information prior to its settlement of the E & O steel claims with RSD. Because S & P did not file its claim for legal malpractice against defendants until August 1, 2014, it was clearly filed more than one-year following the discovery of the alleged act, omission, or neglect and, as such, was perempted in accordance with La. R.S. 9:5605.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to Satterfied and Pontikes Construction, Inc.

AFFIRMED.

Holdridge J. concurs. In an exception of peremption, involving conflicting facts and facts and documents that are subject to different interpretations, the mover should introduce testimony, as well as documentary evidence in order to carry their burden of proof. However, since the parties stipulated that this exception would be decided on the briefs, memoranda and attached exhibits, the record does not contain any testimonial evidence. For this reason, I concur in the result.

      . On appeal, S & P asserts that an additional act of legal malpractice was defendants’ breach of their ethical and fiduciary duties as attorneys to disclose that their loyalties completely laid with Chenevert and that their loyalty/responsibility to Chenevert materially limited their representation of S & P. However, this “divided loyalties” claim was not raised by S & P in its petition, nor was any argument as to this claim presented to the trial court in opposition to the defendants' exception raising the objection of peremption. Furthermore, we find any claim of fraudulent concealment asserted on appeal was likewise not raised in the trial court. Accordingly, we will not address the merits of these argument on appeal.

      . On appeal, S & P attempts to argue that it is the date of the email and not the information that is important. However, it is clear from the language of S & P’s petition and its opposition to defendants’ exception raising the objection of peremption that it is the information that was crucial.


source: Caselaw Access Project

author: THERIOT,,J.

license: Public Domain

text:
    Terri Lewis STEVENS and Jennifer Fruchtnicht, Wife of/and Craig Rivera v. ST. TAMMANY PARISH GOVERNMENT
    NO. 2016 CA 0197
    Court of Appeal of Louisiana, First Circuit.
    JANUARY 18, 2017

      Louis R. Koemer, Jr., New Orleans, Louisiana, James E. Blazek, Lacombe, Louisiana, Counsel for Plaintiffs/Appellants Terri Lewis Stevens and Jennifer Fruchtnicht, wife of/and Craig Rivera
    James L. Bradford, III, Kirk N. Au-randt, Government, D. Stephen Brouil-lette, Jr., Covington, Louisiana, Counsel for Defendant/Appellee St. Tammany Parish
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   THERIOT,,J.

|2This is a companion case to Stevens v. St. Tammany Parish Government, 16-0534 (La. App. 1 Cir. 1/18/17), 212 So.3d 568, handed down this same date. The plaintiffs-appellants, Terri Lewis Stevens and Jennifer Fruchtnicht, wife ofland Craig Rivera (collectively “the petitioners”), appeal a judgment entered by the trial court in favor of the defendant-appel-lee, St. Tammany Parish Government (“STPG”), denying the petitioners’ request for preliminary injunction on the construction of a certain public works project. For the following reasons, we dismiss this appeal as moot.

FACTS AND PROCEDURAL BACKGROUND

On February 18, 2015, the petitioners filed a petition for injunctive relief, damages, and attorney fees against STPG. The petitioners claimed they were the owners of adjoining five-acre tracts of land located in St. Tammany Parish, Louisiana, bordering Dove Park Road, a thoroughfare owned and maintained by STPG, and which fronts the northern border of Dove Park Subdivision. The petitioners claimed that in the 1950s, STPG or its predecessor in interest approved the development of Dove Park Subdivision, which, as originally designed, did not affect the drainage of water on the petitioners’ property. However, the petitioners claimed that, in or around 2003, STPG conceived and executed a public works project to pave the streets within the subdivision, which changed the drainage of water in a manner that substantially and unlawfully burdened the petitioners’ property. The petitioners claimed that STPG then approved another public works project to widen Dove Park Road in order to handle more drainage water, despite knowing that the project would substantially increase the drainage of water onto the petitioners’ property. Based upon the foregoing, the petitioners sought damages, permanent injunctive relief, mandamus |srelief, and a temporary restraining order and preliminary injunction prohibiting STPG from beginning or continuing work on the Dove Park Road widening project.

Relevant for purposes of this appeal, the trial court set the petitioners’ request for preliminary injunction for a hearing on March 27, 2015. At the hearing on the preliminary injunction, the trial court accepted testimony from the petitioners and several other witnesses regarding both the flooding conditions and the effects of the road widening project. After the petitioners presented their case-in-chief, STPG moved for involuntary dismissal. The trial court took the matter under advisement, and, on April 1, 2015, in open court, the trial court granted STPG’s motion for dismissal and assigned oral reasons for judgment. The trial court explained that the petitioners failed to provide any evidence that the road widening project would impact the current drainage conditions and that a preliminary injunction was therefore unnecessary to preserve the status quo. Thereafter, on April 20, 2015, the trial court signed a judgment granting the motion for involuntary dismissal and denying the petitioners’ request for the issuance of a preliminary injunction on the construction of the road widening project. The trial court reserved judgment on “all other issues for later determination.” The petitioners now appeal.

ASSIGNMENTS OF ERROR

The petitioners raise the following assignments of error:

|41. The trial court erred in not setting, considering, and ruling on the motions to receive additional evidence and alleging mandatory grounds for new trial.
2. It was error to refuse to consider Exhibits 28-31, contended to impeach the testimonies of Jay Pittman and Jean Thibodeaux and contended to demonstrate at least an ill practice on the part of STPG. The trial court erred in not reopening the preliminary injunction to consider these exhibits.
3. Although the original petition contained detailed factual allegations that STPG had trespassed on the petitioners’ property, had disturbed their possession, and had illegally burdened their land, the trial court erroneously refused to consider these causes of action and the testimonial proof positive that STPG was dumping water, trash, and sewerage that was eroding and fouling the petitioners’ property. There was additional error in not applying La. C.C.P. art. 1154 as evidence on these issues that was received without objection.
4.The prescription exception had no merit and did not provide an excuse not to rule on the drainage claims so that refusal to do so was in error.

STANDARD OF REVIEW

A preliminary injunction is an interlocutory procedural device designed to preserve the status quo between the parties pending a trial on the merits. Acadian Ambulance Service, Inc. v. Parish of East Baton Rouge, 97-2119 (La.App. 1 Cir. 11/6/98), 722 So.2d 317, 322, writ denied, 98-2995 (La. 12/9/98), 729 So.2d 583. Generally speaking, plaintiffs seeking issuance of a preliminary injunction bear the burden of establishing, by a preponderance of the evidence, a prima facie showing that they will prevail on the merits and that irreparable injury or loss will result without the preliminary injunction. La. C.C.P. art. 3601; Hill v. Jindal, 14-1757 (La.App. 1 Cir. 6/17/15), 175 So.3d 988, 1002, writ denied, 15-1394 (La. 10/23/15), 179 So.3d 600.

’ Although a trial court’s judgment on a preliminary injunction constitutes an interlocutory ruling, a party aggrieved by a judgment granting 15or denying a preliminary injunction is entitled to an appeal. La. C.C.P. art. 3612(B); Acadian Ambulance Services, Inc., 722 So.2d at 322. However, appéllate review of a trial court’s issuance of a preliminary injunction is limited. The issuance of a preliminary injunction addresses itself to the sound discretion of the trial court and will not be disturbed on review unless a clear abuse of discretion is shown. Hill, 175 So.3d at 1002. See also Smith v. W. Virginia Oil & Gas Co., 373 So.2d 488, 493 (La. 1979).

DISCUSSION

Rule to Show Cause

Initially, we must consider the rule to show cause order issued by this court, ex proprio motu, on February 29, 2016, following the lodging of the appellate record. The rule to show cause order directed the parties to show cause as to whether or not the appeal should be dismissed as premature. The rule to show cause order noted that before the tidal court signed the written judgment denying the preliminary injunction, on April 14, 2015, the petitioners filed a motion for new trial and that the appellate record did not contain a ruling on the motion for new trial. On May 16, 2016, a different panel of this court referred the rale to show cause order to the merits panel.

As previously stated, a preliminary injunction is an interlocutory judgment designed to preserve the status quo between the parties pending a trial on the merits. See Acadian Ambulance Service, Inc., 722 So.2d at 322. Nevertheless, La. C.C.P. art. 3612(B) provides that an appeal may be taken as a matter of right from an order or judgment relating to a preliminary injunction. The party aggrieved by the order or judgment must take an appeal within fifteen days of the order or judgment. La. C.C.P. art. 3612(C). The fifteen-day delay does not commence to run on a judgment granting or denying a preliminary injunction until the judgment is signed. Petroleum Treaters, Inc. v. Houma Land & Offshore Co., 545 So.2d 1300, 1302 (La. App. 1 Cir. 1989), In addition, the delay for taking an appeal is not affected by the filing of a motion for new trial. See Marlbrough v. Zar, 98-38 (La. App. 5 Cir. 5/27/98), 713 So.2d 1163, 1164.

In this case, on April 30, 2015, the petitioners timely filed a motion and order for devolutive appeal within fifteen days of the trial court's judgment denying the preliminary injunction, which judgment was signed on April 20, 2015. Though the petitioners had previously filed a motion for new trial on April 14, 2015, the petitioners had no right to move for new trial in the first place, since “[t]he articles regulating new trials ... pertain to cases which have been tried on the merits, and the articles have no relation to interlocutory orders such as orders or judgments bearing on preliminary injunctions which are only rendered during the course of the proceeding and before final judgment.” Morris v. Transtates Petroleum, Inc., 258 La. 311, 246 So.2d 183, 187 (La. 1971). Thus, the appeal is not subject to dismissal on the ground of prematurity.

Motion to Dismiss

Next, we turn to consider whether this appeal should be dismissed as moot. On March 23, 2016, STPG filed a motion with this court seeking to dismiss the appeal on the ground of mootness. STPG argued that the petitioners’ devolutive appeal should be dismissed as moot because the road widening project in the petitioners’ request for preliminary injunction had become substantially completed during the pendency of the appeal. This court accepted briefing on the issue of mootness, and, on May 16, 2016, a different panel of this court referred the motion to dismiss to the merits panel.

17An issue is moot when a judgment or decree on that issue has been “deprived of practical significance” or “made abstract or purely academic.” In re E.W., 09-1589 (La.App. 1 Cir. 5/7/10), 38 So.3d 1033, 1037. Thus, a case is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. If the case is moot, there is no subject matter on which the judgment of the court can operate; that is, jurisdiction, once established, may abate if the case becomes moot.' The controversy must normally exist at every stage of the proceeding, including the appellate stage. Id.

In this case, in support of its motion to dismiss the appeal, STPG attached the affidavit of Christopher Corvers, the project manager for the road widening project. Mr. Corvers testified that he had personal knowledge of the road widening project, including the contract to complete the road widening project entered between STPG and Magee Excavation & Development, LLC; that he had conducted a final inspection of the road widening project on March 11, 2016; that he had issued a “Notice of Substantial Completion and Punch List” to Magee Excavation & Development, LLC; and that the sole remaining items for performance did not pertain to drainage onto the petitioners’ property. In addition, STPG attached a copy of the aforementioned notice of completion to its motion.

In opposition to the motion to dismiss the appeal, the petitioners did not dispute that the road widening project had become substantially completed during the pendency of the appeal. Rather, the petitioners re-urged several matters originally raised in their appellate brief and argued that the rule of collateral consequences merited an exception from the rule of mootness, reasoning that their appeal presented important and unresolved issues. The petitioners cited several cases in support of the latter argument 18concerning the collateral consequences exception, none of which are relevant to the matter subjudice,

In the specific context of a preliminary injunction, courts will not review a case in which only injunctive relief is sought and where the need for the injunc-tive relief has ceased to be a justiciable issue. See Verdun v. Scallon Bros. Contractors, Inc., 263 La. 1073, 270 So.2d 512, 513 (La. 1972); Walters v. Childers, 214 La. 531, 38 So.2d 160, 161-62 (La. 1948). This is so because an “[injunction may be used to prevent but not to correct a wrong; it cannot be employed to redress an alleged consummated wrong or undo what has already been done.” Verdun, 270 So.2d at 613.

Thus, when an appeal is taken from an order denying injunctive relief and the act sought to be enjoined is accomplished pending appeal, the appeal must be dismissed as moot. Jackson v. Dobard, 15-0505 (La.App. 4 Cir. 12/9/15), 182 So.3d 1119, 1121 (quoting City of New Orleans Through Dept. of Safety & Permits v. Bd. of Comm’rs of Orleans Levee Dist., 96-0585 (La.App. 4 Cir. 9/26/96), 694 So.2d 975, 977, writ denied, 96-2820 (La. 1/6/97), 685 So.2d 116). See also Bristol Steel & Iron Works, Inc. v. State, Dept. of Transp. & Develop., 507 So.2d 1233, 1235 (La. 1987) (vacating an order enjoining a public works construction contract where the parties conceded that the project was “over ninety percent complete, i.e., substantially complete[,]” and explaining that injunctive relief is not available to enjoin a fait accompli).

|nLikewise, in the case at bar, the petitioners’ request for a preliminary injunction on the road widening project was the sole matter adjudicated in the April 20, 2015 judgment. The trial court reserved judgment on all other issues for later determination. The undisputed evidence proves that the road widening project has been substantially completed as of the date of the signing of this opinion. Thus, the appeal does not raise a present and actual dispute upon which the judgment of this court can effectively operate through a decree of conclusive character. The appeal must be dismissed as moot.

DECREE

For the foregoing reasons, we find that the issue of the preliminary injunction is moot. We therefore grant the motion to dismiss the devolutive appeal on the ground of mootness filed by the defendant-appellee, St. Tammany Parish Government. All costs of this appeal are assessed to the plaintiffs-appellants, Terri Lewis Stevens and Jennifer Fruchtnicht, wife of/ and Craig Rivera.

MOTION TO DISMISS GRANTED; APPEAL DISMISSED.

      , We note that in open court, STPG and the trial court framed the motion to dismiss as a "motion for directed verdict.” However, in its written judgment, the trial court framed the motion as a motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(B). In the interest of clarity, we point out that the proper procedural vehicle in this case was a motion for involuntary dismissal, because the matter was tried before a bench trial. Nevertheless, we find any misspoken terminology to be harmless, as it is clear that the trial court found the petitioners failed to carry their burden of establishing their entitlement to relief. See Stone v. Entergy Services, Inc., 08-0651 (La.App. 4 Cir. 2/4/09), 9 So.3d 193, 197 n.5, writ denied, 09-0511 (La. 4/17/09), 6 So.3d 797.

      . The collateral consequences exception applies when a challenged article, statute, or ordinance is amended or repealed to cure any alleged constitutional defects. See Felder v. Political Firm, LLC, 14-1266 (La.App. 1 Cir. 4/24/15), 170 So.3d 1022, 1027-28. Under the collateral consequences exception, the court considers whether curative changes leave unresolved collateral consequences, such as where damages , or other monetary relief have been claimed on account of the former provisions of the challenged article, statute, or ordinance. Felder, 170 So.3d at 1028 (citing Cat’s Meow, Inc. v. City of New Orleans, Through Dept. of Finance, 98-0601 (La. 10/20/98), 720 So.2d 1186, 1196). Notably, we have declined to extend the collateral consequences exception outside of the bounds discussed in Cat’s Meow, Inc., supra. See e.g., Louisiana Environmental Action Network v. Louisiana Dept. of Environmental Quality, 02-2377 (La.App. 1 Cir. 9/26/03), 857 So.2d 541, 544-45. Furthermore, the. collateral consequences exception “cannot apply where claimants have remedies available to pursue that can resolve the alleged harm.’’ Louisiana Environmental Action Network, 857 So.2d at 545,

      . Having found that the appeal should be dismissed as moot, we decline to consider the merits of the petitioners’ several assignments of error. In so finding, we recognize that the petitioners present extensive arguments pertaining to various issues other than the preliminary injunction. However, as explained above, the preliminary injunction is the only matter presented in the trial court’s judgment at issue on appeal. Under La. Const, art. V, § 10, this court has broad supervisory jurisdiction, but, even with such broad power, we will not act on the merits of claims not adjudicated by the lower tribunal. See Omega General Const. LLC v. Parish of St. Tammany, 12-1734 (La.App. 1 Cir. 6/7/13), 2013 WL 2487985, *2 (unpublished) (citing Uniform Rules, Courts of Appeal, R. 1-3).


author: THERIOT, J.

text:
    Terri Lewis STEVENS and Jennifer Fruchtnicht, Wife of/and Craig Rivera v. ST. TAMMANY PARISH GOVERNMENT
    NO. 2016 CA 0534
    Court of Appeal of Louisiana, First Circuit.
    JANUARY 18, 2017

      L. Kevin Coleman, Mandeville, Louisiana, Counsel for Plaintiffs/Appellants, Terri Lewis Stevens and Jennifer Fruchtnicht, wife of/and Craig Rivera
    James L. Bradford, III, Kirk N. Au-randt, D. Stephen Brouillette, Jr., Coving-ton, Louisiana, Counsel for Defendant/Ap-pellee, St. Tammany Parish Government
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   THERIOT, J.

12This is a companion case to Stevens v. St. Tammany Parish Government, 16-0197 (La. App. 1 Cir. 1/18/17), 212 So.3d 562, handed down this same date. The plaintiffs-appellants, Terri Lewis Stevens and Jennifer Fruchtnicht, wife ofiand Craig Rivera (collectively “the petitioners”), appeal a judgment of the trial court in favor of the defendant-appellee, St. Tammany Parish Government (“STPG”), finding Ms. Stevens and her attorneys in contempt of court, ordering them to pay STPG certain costs and attorney fees, and ordering that a protective order be made permanent. For the following reasons, we grant STPG’s motion to convert the sus-pensive appeal to a devolutive appeal, maintain the appeal, and affirm the trial court’s judgment.

FACTS AND PROCEDURAL BACKGROUND

On February 18, 2015, the petitioners filed a petition for injunctive relief, damages, and attorney fees against STPG. The petitioners claimed they were the owners of adjoining five-acre tracts of land located in St. Tammany Parish, Louisiana, bordering Dove Park Road; a thoroughfare owned and maintained by STPG, and which fronts the northern border of Dove Park Subdivision. The petitioners claimed that in the 1950s, STPG or its predecessor in interest approved the development of Dove Park Subdivision, which, as originally designed, did not affect the drainage of water on the petitioners’ property. However, the petitioners claimed that, in or around 2003, STPG conceived and executed a public works project to pave the streets within the subdivision, which changed the drainage of water in a manner that substantially and unlawfully burdened the petitioners’ property. The petitioners claimed that STPG then approved another public works -project to widen Dove Park Road in order to handle more drainage 13water, despite knowing that the project would substantially increase the drainage of water onto the petitioners’ property. Based upon the foregoing, the petitioners sought damages, permanent injunctive relief, mandamus relief, and a temporary restraining order and preliminary injunction prohibiting STPG from beginning or continuing work on the Dove Park Road widening project.

The petitioners removed their request for mandamus relief from the underlying suit and the trial court denied the petitioners’ request for a temporary restraining order. The issue of the preliminary injunction on the road widening project proceeded before the trial court for a hearing on March 27, 2015. In open court, on April 1, 2015, the trial court assigned oral reasons for judgment in favor of STPG. On April 20, 2015, the trial court signed a judgment in accordance with its oral ruling, denying the preliminary injunction and reserving judgment on all other matters for later determination. The trial court’s judgment on the preliminary injunction was lodged as the subject of the companion appeal under docket no. 2016 CA 0197.

Relevant for purposes of this appeal, before the trial court- signed the judgment on the preliminary injunction, an employee of STPG, Irma Russell, anonymously received a sealed envelope in her mailbox. The envelope was labeled with the name of Ms. Stevens, one of the petitioners herein. Ms. Russell was acquainted with Ms. Stevens and delivered the sealed envelope to her. Ms.- Stevens discovered that the envelope contained an electronic data storage device known as a “flash drive.” The flash drive contained digital copies of various documents associated with the property, drainage, and the public works project at issue in this suit.

|/Thereafter, according'to the minute entry for April 1, 2015, counsel for the petitioners made several statements to the trial court regarding new witnesses and documents relevant to the issue of the preliminary injunction; additionally, around this same time, the petitioners attempted to file a post-trial memorandum on the issue of the preliminary injunction. The > petitioners attached copies of three documents from the flash drive to the post-trial memorandum. The three documents, which are identified on appeal- as “Exhibits 28, 29, and 30,” had not been produced by STPG through discovery or public records requests and had not been entered into evidence during the trial on the preliminary injunction.

On April 14, 2015, STPG submitted interrogatories and requests for production of documents to the petitioners regarding the source and scope of them acquisition of Exhibits 28, 29, and 30. The petitioners objected to the written discovery request. STPG responsively filed a motion to compel discovery. STPG sought to compel a response to—and the production of documents identified in response to—the following three interrogatories:

INTERROGATORY NO. 16: Please describe in detail how you came to possess Exhibit 28. Your response should state the . date you first received Exhibit 28, and identify: each person providing you with Exhibit 28, all documents associated with your receipt of Exhibit 28 and all communication's relating in any manner to your acquisition of Exhibit .28.
INTERROGATORY NO. 17: Please describe in detail how you came to possess Exhibit 29. Your response should state the date you first received Exhibit 29, and identify: each person providing you with Exhibit 29, all documents associated with your receipt of Exhibit 29 and all communications relating in any manner to your acquisition of Exhibit 29.
INTERROGATORY NO. 18: Please describe in detail how you came to possess Exhibit 30. Your response should state the date you first received Exhibit 30, and identify: each person providing you with Exhibit 30, all documents associated with | fiyour receipt of Exhibit 30 and all communications relating in any manner to your acquisition of Exhibit 30.

On June 15, 2015, the trial court held a hearing on STPG’s motion to compel discovery. Following the conclusion of the hearing, on June 16, 2016, the trial court signed a written judgment on the motion to compel discovery. The trial court ordered the petitioners make a full and complete response, without further objection and within five business days, to the subject interrogatories and requests for production.

On June 23, 2015, the petitioners answered the interrogatories. The petitioners stated that Exhibits 28, 29, and 30 were offered to Ms. Stevens as public records on or about March 27, 2015. The petitioners stated that Exhibits 28, 29, and 30 were offered to Ms. Stevens by Ms. Russell and that no substantive discussion took place at the time at which the documents were received. The petitioners did not provide any further explanation concerning then-receipt of Exhibits 28, 29, and 30. The petitioners did not identify or turn over the flash drive or the other electronic data stored upon the flash drive. The answers were verified and signed by Ms. Stevens.

On July 13, 2015, STPG deposed Ms. Stevens. Counsel for STPG questioned Ms. Stevens about her receipt of Exhibits 28, 29, and 30 and learned that Ms. Stevens had received additional documents that had not been produced by the petitioners in response to the court-ordered discovery. The following day, on July 14, 2015, counsel for the petitioners delivered a letter to the trial court along with the flash drive and all of the original electronic data stored upon the flash drive.

On July 23, 2015, STPG filed a motion for protective order, contempt of court, and sanctions against the petitioners. STPG argued that it was entitled to a protective order because the flash drive contained a complete | r,copy of its litigation file containing privileged attorney-client communications and attorney work product that was obtained without its authorization or consent. STPG further argued that the petitioners had been in possession of the flash drive and had failed to disclose their possession of the flash drive in violation of court-ordered discovery. STPG submitted that the petitioners should be sanctioned for their willful conduct under La. C.C.P. art 1471.

On August 26, 2015, the trial court held a hearing on the motion for protective order, contempt of court, and sanctions. At the request of the petitioners, the trial court continued the issues of contempt and sanctions and limited the hearing to the issue of the protective order. The trial court heard arguments and accepted oral testimony regarding the acquisition, possession, and contents of the flash drive. On September 17, 2015, the trial court signed a written judgment granting the protective order, prohibiting the petitioners from viewing, possessing, using, sharing, or distributing any portion of the information contained upon the flash drive unless subsequently produced by STPG through discovery or public records requests; ordering the petitioners turn over all copies of the flash drive, identify all persons to which any information from the flash drive had been distributed, and deliver copies of any documents and attachments simultaneously to counsel for STPG; and decreeing that any documents produced by the petitioners be placed under seal.

On October 30, 2015, the trial court held a hearing on the motion for protective order, contempt of court, and sanctions in order to consider whether the petitioners should be held in contempt of court and sanctioned. On December 4, 2015, the trial court entered reasons for judgment in favor of STPG, finding Ms. Stevens and her attorneys in contempt of court for | failing to disclose their possession of the flash drive in violation of La. C.C.P. art. 1471(C). On January 21, 2016, the trial court signed a written judgment in accordance with its written reasons for judgment, finding Ms. Stevens and her attorneys in contempt of court, ordering that the protective order be made permanent, and ordering Ms. Stevens and her attorneys pay STPG the costs incurred in filing the motion for contempt as well as attorney fees in the sum of $2,500.00. The petitioners now appeal.

ASSIGNMENTS OF ERROR

The petitioners present the following assignments of error:

1. The trial court erred in finding Ms. Stevens, and her attorneys, Louis R. Koerner, Jr., and James E. Blazek, in contempt,
2. The trial court erred in permanently sealing the flash drive and its contents.

DISCUSSION

Motion to Convert Suspensive Appeal to Devolutive Appeal

First, we consider the motion to convert the petitioners’ suspensive appeal to a devolutive appeal filed by STPG with this court on May 5, 2016. STPG argued in its motion that the petitioners failed to satisfy the requirements set forth in La. C.C.P. art. 2123 to perfect a suspensive appeal and averred that the suspensive appeal should be converted to a devolutive appeal. On August 10, 2016, the motion to convert the suspensive appeal to a devolu-tive appeal was referred to the panel to which the merits of the appeal were assigned.

In order to perfect a suspensive appeal, an appellant must file a petition for appeal and furnish security within the thirty-day delay allowed in 8La. C.C.P. art. 2123. Clement v. Graves, 04-1831 (La. App. 1 Cir. 9/28/05), 924 So.2d 196, 200 (citing Wright v. Jefferson Roofing, Inc., 93-1217 (La. 1/14/94), 630 So.2d 773, 775). The mandatory language of La. C.C.P. art. 2123 suggests that there is little room for exceptions; however, the courts have held that the failure of an appellant to timely furnish a suspensive appeal bond is not a jurisdictional defect. Antwine v. Winfield, 15-1850 (La.App. 1 Cir. 9/16/16), 203 So.3d 454. Thus, where an appellant fails to file the required bond, the suspensive appeal should be converted to a devolutive appeal, so long as the appellant has met the requirements for taking a devolutive appeal, Clement, 924 So.2d at 200.

In this case, on January 21, 2016, the trial court signed a written judgment on the motion for protective order, contempt of court, and sanctions. On February 5, 2016, the petitioners filed a motion for suspensive appeal from the trial court’s January 21, 2016 judgment. Thereafter, on February 12, 2016, the trial court signed the order granting the petitioners’ motion for suspensive appeal “upon their posting security in the amount of $2,500[.00].” There is no evidence in the record that the petitioners 1 nfurnished the required security. However, no security is required for a devolutive appeal, see La. C.C.P. art. 2121(A), and the petitioners otherwise fulfilled the requirements for taking a devolu-tive appeal. Therefore, we will consider this appeal as devolutive in nature, see Schenker v. Watkins, 521 So.2d 686, 688 (La. App. 1 Cir. 1988), and grant STPG’s motion to convert the suspensive appeal to a devolutive appeal.

Rule to Show Cause

Next, we consider the rule to show cause order issued by this court, ex proprio motu, on May 3, 2016, following the lodging of the appellate record. The rule to show cause order noted that the trial court’s January 21, 2016 judgment appeared to be a nonappealable ruling and directed the parties to show cause as to whether or not the appeal should be dismissed for this reason. On August 10,2016, the rule to show cause order was referred to the panel to which the merits of the appeal were assigned.

Louisiana Code of Civil Procedure art. 1915 provides, in relevant part, as follows:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
***
(6) Imposes sanctions or disciplinary action pursuant to Article 191, 86B, or 864 or Code of Evidence Article 510(G).

In Robinson v. Harlan, 11-0703 (La. App. 1 Cir. 11/9/11), 79 So.3d 1034, this court addressed the proper application of La. C.C.P. art. 1915(A)(6). There, we found that a contempt judgment which did not impose sanctions pursuant to any of the enumerated codal provisions, i.e.,. La. C.C.P. arts. 191, 863, or 864, or La. C.E. art. 510(G), was not an [ inimmediately ap-pealable partial final judgment under La. C.C.P. art. 1915(A)(6). Thus, we dismissed the appeal, which, like the case at bar, involved appellants who had been found in contempt of court and sanctioned for discovery violations pursuant to La. C.C.P. art. 1471. See Robinson, 79 So.3d at 1035-36.

Thereafter, the Louisiana Supreme Court granted a writ of certiorari, reinstated the appeal, and remanded the case to this court for further proceedings. See Robinson v. Harlan, 12-0363 (La. 4/9/12), 85 So.3d 131 (citing La. C.C.P. art. 1915(A)(6); In re Jones, 10-66 (La.App. 5 Cir. 11/9/10), 54 So.3d 54, writ not considered, 10-2738 (La. 2/4/11), 56 So.3d 979). Although the Supreme Court did not explain its reasoning in Robinson, later, in Capital City Press, LLC v. Louisiana State University System Bd. of Sup’rs, 13-1994 (La. 8/28/13), 120 So.3d 250, the Supreme Court denied an application for supervisory writs submitted by a relator aggrieved by a contempt judgment imposing sanctions against him, reasoning the relator “ha[d] an adequate remedy by sus-pensive appeal.”

Based upon the foregoing decisions, we find that the trial court’s January 21, 2016 judgment, holding Ms. Stevens and her attorneys in contempt of court and sanctioning them for discovery violations under La. C.C.P. art. 1471, constitutes a partial final judgment subject to immediate appeal pursuant to La. C.C.P. art. 1915(A)(6). See Allen v. Allen, 13-0996 (La.App. 1 Cir. 12/29/14), 2014 WL 7368574, *2-3 (unpublished), writ denied, 15-214 (La. 5/22/15), 171 So.3d 922. Accord Trahant v. Perez, 02-1414 (La.App. 4 Cir. 3/19/03), 843 So.2d 479, 484 (finding that a contempt judgment sanctioning appellants for discovery violations under La. C.C.P. art. 1471 constitutes a final and appealable judgment pursuant to La. C.C.P. art. 1915(A)(6)). Therefore; the appeal is maintained.

\uContempt Judgment

In the petitioners’ first assignment of error, they argue that the trial court erred in finding Ms. Stevens and her attorneys in contempt of court and sanctioning them pursuant to La. C.C.P. art. 1471. The petitioners argue that they were not required to disclose their possession of the flash drive or turn over the electronic data stored upon the flash drive. The petitioners further aver that the evidence does not support the trial court’s finding that Ms. Stevens and her attorneys willfully or intentionally withheld the flash drive in contravention of the court-ordered discovery.

Louisiana Code of Civil Procedure art. 1471, which sets forth the sanctions available against a party who fails to comply with a discovery order, provides, in pertinent part, as follows:

A. If a party ... fails to obey an order to provide or permit discovery, including an order made under Article 1464 or Article 1469, the court in which the action is pending may make such orders in regard to the failure as are just, and among others any of the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the pai-ty obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters, in evidence.
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.
j SÜ *
C. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

A trial court has broad discretion in imposing sanctions against a party for failure to comply with court-ordered discovery, and a trial court’s ruling will not be reversed absent an abuse of discretion. Lirette v. Babin Farm, Inc., 02-1402 (La. App. 1 Cir. 4/2/03), 843 So.2d 1141, 1143. The criteria to be considered in imposing sanctions for failure to comply with a discovery order are the prejudice to the other party and the willfulness of the disobedient party. JP Morgan Chase Bank, N.A. v. Boohaker, 14-0594 (La.App. 1 Cir. 11/20/14), 168 So.3d 421, 429.

In the case at bar, the trial court granted STPG’s motion to compel discovery concerning the source and scope of the petitioners’ acquisition of Exhibits 28, 29, and 30. The petitioners did timely serve answers to the subject interrogatories, which, as noted above, were signed and verified by Ms. Stevens. However, Ms. Stevens failed to disclose the true nature of her acquisition of Exhibits 28, 29, and 30; that is, she did not reveal that the petitioners were in possession of the flash drive, nor did she turn over the flash drive or copies of the other electronic data stored upon the flash drive.

STPG subsequently deposed Ms. Stevens and learned of the existence of the flash drive. STPG then filed its motion for protective order, contempt of court, and sanctions, seeking, inter alia, sanctions against the petitioners pursuant to La. C.C.P. art. 1471. Following a hearing on the matter, the trial court concluded that Ms. Stevens and her attorneys had failed to comply with court-ordered discovery, without substantial justification. The trial [ 1scourt held Ms. Stevens and her attorneys in contempt of court and ordered them to pay STPG the costs incurred in the filing of the motion for contempt as well as attorney fees in the amount of $2,500.00. The trial court’s judgment does not constitute an abuse of discretion.

First, the subject interrogatories and requests for production were sufficiently broad in scope to require the petitioners to disclose their possession of the flash drive. The petitioners challenge the trial court’s interpretation of the interrogatories, which, for example, they point out did not inquire as to the “format” in which the documents were received. However, we regard it dispositive that Ms. Stevens and her attorneys failed to reveal their possession of the flash drive or turn over the flash drive in spite of the trial court’s order mandating they make a full and complete response, without further objection and within five business days, to the subject interrogatories and requests for production, which required the petitioners to describe in detail how they came to possess Exhibits 28, 29, and 30; identify all documents associated with their receipt of Exhibits 28, 29, and 30; identify all communications relating in any manner to their acquisition of Exhibits 28, 29, and 30; and turn over all documents identified in response to these questions.

Notably, the interrogatories defined “documents” as including “electronically stored information, writings, drawings, graphs, charts, photographs, phono-rec-ords, sound recordings, images, and other data or data compilations in any medium....” The interrogatories defined “identify” with respect to communications as including “(a) the method or nature of the communication (e.g., letter, memorandum, e-mail, phone call, text message, etc.); (b) the subject matter of the communication; (c) the date and time of the communication; (d) the person to whom the communication was 114directed, and the person who made the communication; and (e) a summary of the contents of the communication.” The interrogatories defined “identify” with respect to a document as including “(a) the type of document (e.g., letter, record, memorandum, e-mail, text message, etc.); (b) the subject matter of the document; (c) the date and time of the document; (d) the person who made the document and the person to whom the document was directed; and (e) a summary of the contents of the document.”

In addition to the broad scope of the interrogatories and requests for production, we note that the evidence in the record belies any suggestion that Ms. Stevens and her attorneys were unaware of the scope of the court-ordered discovery. For example, the transcript of the hearing on the motion to compel clearly reflects that counsel for the petitioners was apprised of the circumstances surrounding the court-ordered discovery; that is, counsel for the petitioners was informed that STPG sought to have the petitioners answer, under oath, interrogatories intended to uncover the persons, means, and methods involved in the acquisition of Exhibits 28, 29, and 30 and that STPG sought to have the petitioners produce all other documents received by them in conjunction with Exhibits 28, 29, and 30 outside of formal discovery or public records requests.

Finally, as it concerns the question of willfulness, we find it significant that Ms. Stevens and her attorneys did not disclose their possession of the flash drive until July 14, 2015, after Ms. Stevens had been deposed and questioned by counsel for STPG about her receipt of the Exhibits 28, 29, and 30, and well after the expiration of the five-day response period imposed by the court-ordered discovery. Ms. Stevens and her attorneys failed to disclose their possession of the flash drive until after the deposition of Ms. Stevens despite the fact that Ms. Stevens admitted in 11fian affidavit that counsel for the petitioners had been made aware of the existence of the flash drive and of the potentially privileged data stored upon the flash drive before the date of her deposition.

In light of all of these facts, we cannot say that the trial court erred in finding that Ms. Stevens and her attorneys willfully failed to disclose their possession of the flash drive or turn over the flash drive in violation of the court-ordered discovery. The trial court’s finding of contempt and choice of sanctions do not constitute an abuse of discretion. The petitioners’ first assignment of error lacks merit.

Protective Order

In the petitioners’ second assignment of error, they contend that the trial court erred in granting the protective order and permanently sealing the flash drive and its contents. The petitioners aver that STPG failed to carry its burden of proving that the contents of the flash drive were privileged and further claim that the electronic data stored upon the flash drive was subject to disclosure under Louisiana’s public records laws.

Initially, we must determine whether we have jurisdiction to review the merits of the trial court’s ruling on the issue of the protective order. Ordinarily, a trial court’s ruling granting a protective order is a nonappealable interlocutoiy ruling, because it does not determine the merits of a case in whole or in part. See La. C.C.P. art. 1841; Dupuis v. Becnel Co., 517 So.2d 1110, 1112 (La. App. 3 Cir. 1987) (“Lastly, the defendants’ [sic] have appealed the granting of a protective order, which is a discovery matter and is clearly interlocutory.”). See also Jowers v. State Through Dept. of Health and Hospitals, 610 So.2d 841, 843 (La. App. 1 Cir. 1992) (“Judgments dealing with discovery matters are interlocutory in nature, regardless of whether any other matters are pending before the trial court.”).

| ^However, when an unrestricted appeal is taken from a final judgment determinative of the merits, an appellant is generally entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. See State ex rel. Div. of Admin., Office of Risk Management v. Nat’l Union Fire Ins. Co. of Louisiana, 10-0689 (La.App. 1 Cir. 2/11/11), 56 So.3d 1236, 1242 n.6, writ denied, 11-0849 (La. 6/3/11), 63 So.3d 1023. While the instant appeal is not an unrestricted appeal from a final judgment on the merits, “[i]n the case of an appeal from a partial [final] judgment or partial summary judgment designated as final under La. C.C.P. art. 1915(B), an appellant may also appeal an interlocutory judgment involving the same or related issues.... ” Id.' Because the trial court’s interlocutory ruling on the issue of protective order is incorporated and interrelated with the trial court’s contempt judgment, it is appropriate to consider the merits of the petitioners’ second assignment of error.

Having found that we have jurisdiction to review the trial court’s ruling on the protective order, we turn to consider the legal authority for the trial court’s issuance of same. The record reflects that, after learning of the existence of the flash drive, STPG filed a motion for protective order, contempt of court, and sanctions, seeking, amongst other things, a protective order mandating the petitioners turn over certain electronic data stored upon the flash drive, which STPG identified as including its litigation file. STPG argued that its litigation file had been obtained without its consent or authorization outside of ordinary discovery processes or public records requests and that the file was not subject to disclosure. STPG argued that it was entitled to a protective order prohibiting the petitioners from using, possessing, or disclosing its litigation file in accordance with La. C.C.P. art. 1426.

117Louisiana Code of Civil Procedure art. 1426 is found within the “Discovery” Chapter of Title III of Book II of the Code of Civil Procedure and states, in pertinent part, as follows:

A. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to' a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment/ oppression, or undue burden or expense, including one or more of the following:
(1) That the discovery not be had.
(2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place.
(3) That the discovery may be had only by a method of discovery other'than that selected by the party seeking discovery.
(4) That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters.
(5) That discovery be conducted with no one present except persons designated by the court.
(6) That a deposition after being sealed be opened only by order of the court.
(7) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.
(8)That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the courts.

Louisiana Code of Civil Procedure art. 1462, as quoted above, does not provide codal authority for the trial court’s issuance of the protective order in this suit. The plain language of Article 1426 provides a trial court with authority to issue a protective order limiting the scope of discovery 11supon motion of a party or other person from whom discovery is sought in order to protect the party or person from annoyance, embarrassment, oppression, or undue burden or expense. The plain language of Article 1426 does not, on the other hand, provide a trial court with authority to issue a protective order or exercise control over allegedly protected information obtained by a party or other person outside of discovery.

Here, we note that the courts of this state have not yet considered whether a trial court is authorized to issue a protective order with respect to information gathered outside of formal discovery under La. C.C.P. art. 1426. However, the federal courts have addressed this question in the context of the federal counterpart to Article 1426—Fed. R. Civ. P. 26(c)—and have consistently held that Rule 26(c) does not authorize a trial court to issue a protective order with respect to information obtained outside of the judicial discovery rules. See Fayemi v. Hambrecht & Quist, Inc., 174 F.R.D. 319, 323-24 (S.D.N.Y. 1997); In re Shell Oil Refinery, 143 F.R.D. 105, 109 (E.D. La. 1992); Bridge C.A.T. Scan Associates v. Technicare Corp., 710 F.2d 940, 944-45 (2d Cir. 1983).

The federal courts that have considered this issue have explained that Rule 26(c) authorizes a trial court to issue a protective order limiting or foreclosing discovery or regulating the disclosure of information obtained in discovery, but does not provide a trial court with a basis for limiting the use of evidence obtained outside of discovery or provide blanket authorization to prohibit disclosure of information whenever it may deem advisable. See Fayemi, 174 F.R.D. at 323-24; Bridge C.A.T. Scan Associates, 710 F.2d at 944-45. Nevertheless, in a number of cases, the federal courts have found that a trial court has inherent authority to control the judicial proceedings, which includes the ability to control documents obtained outside of formal discovery, even though no authority exists for issuing a protective order with respect to such documents under Fed. R. Civ. P. 26(c). See Fayemi, 174 F.R.D. at 324; Shell Oil Refinery, 143 F.R.D. at 109.

Similarly, under Louisiana law, a trial court has inherent authority to require that judicial proceedings be conducted with dignity, in an orderly and expeditious manner, and to control the trial proceedings in the interests of justice. See La. C.C.P. art. 1631(A).' Furthermore, a trial court inherently possesses all powers necessary for the exercise of its jurisdiction, even though not expressly granted by law, see La. C.C.P. art. 191, and a trial court judge is constitutionally entitled to issue “all ... needful writs, orders, and process in aid of the jurisdiction of his court.” La. Const, art. V, § 2. This power and authority “[ujnquestionably ... would furnish ground for the issuance of a protective order to assure the fair administration of justice under proper circumstances.” Economy Carpets Mfrs. & Distributors, Inc. v. Better Business Bureau of Baton Rouge Area, Inc., 330 So.2d 301, [ 2n304 (La. 1976) (addressing same in context of trial court’s order prohibiting parties from using public media to draw attention to ongoing litigation).

Therefore, the trial court was authorized to issue the protective order with respect to the information contained upon the flash drive pursuant to its inherent authority to control the judicial proceedings. As set forth more fully in the preceding sections of this opinion, the petitioners acquired the flash drive outside of formal discovery and failed to disclose their possession of the flash drive or turn over the electronic data stored upon the flash drive in violation of the court-ordered discovery. Furthermore, the record establishes that some of the electronic data stored upon the flash drive constitutes confidential and protected attorney-client communications and/or attorney work product.

Finally, although the petitioners argue on appeal that certain documents found upon the flash drive were not protected and were subject to disclosure under Louisiana’s public records laws, at this juncture, it is unnecessary for us to determine whether any portion of the electronic data at issue might be discoverable. The trial court’s judgment on the protective order did not adjudicate the discoverability of the electronic data found upon the flash drive itself or delimit the petitioners’ right to pursue discovery or seek public records requests concerning this information; rather, the trial court prohibited the petitioners from viewing, possessing, using, sharing, or distributing any of the electronic data stored upon the flash drive “unless ... subsequently produced by [STPG] pursuant to discovery requests or a [pjublic [rjecord request[.]” The trial court’s ruling is appropriately and narrowly tailored, under the facts presented, to ensure the fair and orderly administration of justice and to preserve the integrity of the judicial process. The petitioners’ second assignment of error does not merit relief.

|21DECREE

For the foregoing reasons, we grant the defendant-appellee’s motion to convert the appeal from a suspensive appeal to a de-volutive appeal and maintain the appeal as converted. The trial court’s judgment, signed on January 21, 2016, finding Ms. Stevens and her attorneys in contempt of court, awarding costs and attorney fees to the defendant-appellee, and ordering that the protective order be made permanent is affirmed. All costs of this appeal are assessed to the plaintiffs-appellants, Terri Lewis Stevens and Jennifer Frutchnicht, wife of/and Craig Rivera.

MOTION TO CONVERT SUSPEN-SIVE APPEAL TO DEVOLUTIVE APPEAL GRANTED; APPEAL MAINTAINED; JUDGMENT AFFIRMED.

Higginbotham, J., concurs.

Chutz, J., concurs

      . The trial court ordered that the sanctions be imposed solely against Ms. Stevens and her attorneys, Louis R. Korner, Jr., and James E. Blazek. In written reasons for judgment, the trial court explained that the other petitioners, Ms. Fruchtnicht and Mr. Rivera, were not responsible for the monetary component of the sanctions award because they were not involved in the petitioners’ failure to disclose their possession of the flash drive.

      . Louisiana Code of Civil Procedure art. 2123 provides as follows;
      A. Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished; only within thirty days of any of the following;
      (1) The expiration of the delay for.applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
      (2) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.
      B. Whenever one or more parties file motions for a new trial or for judgment notwithstanding the verdict, the delay periods specified herein commence for all parties at the time they commence for the party whose motion is last to be acted upon by the trial court.
      C. An order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict. The order becomes effective upon the denial of such motions.
      D, The time within which to take a suspen-sive appeal under the provisions of this Article is interrupted for all parties upon the filing of a notice of removal in a district court of the United States, pursuant to the provisions of 28 U.S.C. 1446, and commences anew on the date the proceeding is remanded.

      . Federal Rule of Civil Procedure 26(c) is substantially similar to La. C.C.P. art. 1426(A) and provides as follows:
      (1) In General A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
      (A) forbidding the disclosure or discovery;
      (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discoveiy;
      (C) prescribing a discovery method other than the one selected by the party seeking discoveiy;
      (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;

        (E) designating the persons who may be present while the discovery is conducted;
      (F) requiring that a deposition be sealed and opened only on court order;
      (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
      (H)requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.


author: HOLDRIDGE, J.

text:
    L.J.D. v. M.V.S. and J.P.S.
    2016 CA 0008
    Court of Appeal of Louisiana, First Circuit.
    JANUARY 25, 2017

      Carolyn A. McNabb, Houma, LA, Attorney for Plaintiff/Appellee, L.J.D.
    M.V.S. and J.P.S., Dulac, LA, In proper person, Defendants/Appellants
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   HOLDRIDGE, J.

| .¿This appeal concerns a trial court judgment requiring a mother and her child to undergo paternity testing requested by an alleged biological father after the trial court overruled the mother and her husband’s exception of “prescription/peremption.” This Court also issued a rule to show cause as to whether the judgment is a final appealable judgment. For the following reasons, we maintain the appeal and reverse the trial court’s judgment.

FACTUAL AND PROCEDURAL HISTORY

On April 2, 2015, plaintiff L.J.D. filed a “PETITION TO ESTABLISH PATERNITY,” naming as a defendant M.V.S., the mother of J.S., who was born on April 5, 2013. L.J.D. alleged that he is the child’s father, asserting that he and M.V.S. were involved in an intimate relationship before the child’s birth. According to L.J.D., M.V.S. on numerous occasions told him he was the father and demanded child support. L.J.D. also named as a defendant J.P.S, to whom M.V.S. was married when the child was conceived. He noted that J.P.S. is legally presumed to be the child’s father.

L.J.D. alleged that blood testing of the parties would show his paternity. He requested that the trial court order the mother and the child to submit to blood collection and tissue sampling by a court-appointed expert. L.J.D. also sought an order that J.P.S. submit to paternity testing or produce the results of prior testing.

M.V.S. and J.P.S. responded with an exception of “prescription/peremption” wherein they acknowledged that J.P.S. was presumed to be the child’s legal father. They contended that, pursuant to La. C.C. art. 198, an action to establish paternity lsof a child presumed to be the child of another man shall be instituted within one year from the date of birth of the child.

The trial court held a hearing; no evidence was introduced or testimony taken. On November 3, 2015, the court signed a judgment, which states:

IT IS ORDERED, ADJUDGED AND DECREED that the Exception [of prescription/peremption] is dismissed;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a paternity test is ordered, at a facility designated by plaintiff with plaintiff paying the fees associated with said testing;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant [M.V.S.] has thirty (30) days from the date of the Judgment to report to the testing facility.

From this judgment, M.V.S. and J.P.S. appeal. This Court issued a rule to show cause as to whether the judgment is a final appealable judgment and then issued an order for the rule to be considered with the merits of the appeal.

LAW AND ANALYSIS

An appealable judgment is a final judgment or an interlocutory judgment that is appealable where expressly provided by law. La. C.C.P. art. 2083. Louisiana Code of Civil Procedure article 1841 provides that a judgment that determines the merits in whole or in part is a final judgment; a judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. See In re Succession of Reno, 2013-1823 (La.App. 1 Cir. 6/17/15), 175 So.3d 412, 416.

In this case, while L.J.D. entitled his petition as one to establish paternity, the only relief he sought was blood and/or tissue sampling of M.V.S., J.P.S. and the child. He did not seek to be declared the child’s father. The judgment orders a paternity test and orders M.V.S. to report to the testing facility within thirty days of the judgment. The judgment does not mention J.P.S. Generally, silence in a .Judgment of the trial court as to any issue, claim or demand placed before the court is deemed a rejection of the claim and the relief sought is presumed to be denied. Schoolhouse, Inc. v. Fanguy, 2010-2238 (La.App. 1 Cir. 6/10/11), 69 So.3d 658, 664. Because the order setting the rule to show cause, the minute entry and the transcript of the hearing indicate that the trial court was hearing the entire matter, silence in the judgment as to J.P.S. is deemed a denial of the request that he submit to paternity testing or provide paternity test results. L.J.D. only sought paternity testing on the interested parties in his suit, and the judgment orders the tests as to the mother and child and presumably denies the test as to the presumed legal father; therefore, the merits of the entire suit were decided and the judgment is a final judgment. The rule to show cause is recalled and the appeal is maintained.

M.V.S. and J.P.S. rely on La. C.C. art. 198 to support their contention that this action is perempted or prescribed. Louisiana Civil Code article 198 states:

A man may institute an action to establish his paternity of a child at any time except as provided in this Article. The action is strictly personal.
If the child is presumed to be the child of another man, the action shall be instituted within one year from the day of the birth of the child. Nevertheless, if the mother in bad faith deceived the father of the child regarding his paternity, the action shall be instituted within one year from the day the father knew or should have known of his paternity, or within ten years from the day of the birth of the child, whichever first occurs.
In all cases, the action shall be instituted no later than one year from the day of the death of the child.
The time periods in this Article are peremptive.

In this case, the child was born during the mother’s marriage and the husband is presumed to be the child’s father. La. C.C. art. 185. Where a child has a legal father, La. C.C. art. 198 requires a paternity action to be instituted within | Rone year from the date of the child’s birth. However, if M.V.S. in bad faith deceived L.J.D. about his paternity, a paternity action should have been instituted within one year from the day he knew or should have known of his paternity or within ten years from the child’s birthdate, whichever first occurred. La. C.C. art. 198.

As earlier discussed, while L.J.D. did file an action entitled “PETITION TO ESTABLISH PATERNITY,” the only relief which he requested was to obtain an order that the child’s mother, her husband and the child undergo paternity testing. According to 2005 Revision Comment (c) to La. C.C. art. 198, “[t]he alleged biological father may obtain a court order for blood tests without first instituting the paternity action permitted by this Article. R.S. 9:398.2 (1995).” Louisiana Revised Statute 9:398.2, entitled “Petition for order to submit to blood or tissue tests prior to bringing filiation action,” states, in pertinent part:

(A)(2) Notwithstanding any other provision of law to the contrary, the alleged biological father of a child born outside of marriage, prior to filing any action to establish filiation of the child, may petition a court of proper jurisdiction and venue for an order directing the mother, child, and petitioner to submit to the collection of blood or tissue samples, or both, for determination of paternity for the purpose of exercising rights relating to the child.
B. The petition authorized in Paragraphs (1) and (2) of Subsection A of this Section shall name the mother as defendant and shall allege specific facts tending to prove the relationship or the circumstances of any physical relationship with the mother, or facts tending to prove paternity, and other facts necessary to establish the jurisdiction and venue of the court.
C. The court, after contradictory hearing, may order the parties to submit to blood or tissue samples, or both, and direct that inherited characteristics in the samples, including but not limited to blood and tissue type, be determined by appropriate testing procedures as provided in this Part.

| (¡Louisiana Revised Statutes 9:398.2 applies to L.J.D.’s petition seeking an order for paternity testing because the child was allegedly born outside of the marriage of L.J.D., his alleged biological father, and his mother. Louisiana Civil Code article 3506(8) states, “A child born outside of marriage is a child conceived and born outside of the marriage of his parents.” The marriage that article 3506(8) refers to in this case is the marriage between the party seeking filiation and the child’s mother, not the marriage between the child’s mother and her husband. The purpose of the testing provided for in La. R.S. 9:398.2 is to use the results in an “action to establish filiation of the child,” or “for determination of paternity for the purpose of exercising rights relating to the child.” La. R.S. 9:398.2(A)(2).

Therefore, to determine whether L.J.D. has a right to obtain blood testing, he must have the right to file an action to establish filiation of the child. Louisiana ^Revised Statute 9:398.2(A)(2) only allows for the biological father to have paternity testing “prior to filing any action to establish filiation of the child .... ” However, once an avowal action is perempted pursuant to La. C.C. art. 198, the biological father has no corresponding right to court-ordered blood testing to establish paternity. While L.J.D. did not file an avowal action whereby he sought to be declared the father of the child, but instead simply sought paternity testing, the time period set forth in La. C.C. art. 198 controls his request as an alleged biological father for paternity testing where the child has a legal father.

We must determine whether L.J.D. has a right of action for establishing filiation of the child. While M.V.S. and J.P.S. objected to L.J.D.’s petition with an exception of “prescription/peremption,” we note that this Court can raise the objection of no right of action on its own motion. La. C.C.P. art. 927(B). Generally an action can only be brought by a person having the real and actual interest that he asserts. La. C.C.P. art. 681. The peremptory exception pleading the objection of no right of action tests whether the plaintiff has any interest in judicially enforcing the right asserted. See La. C.C.P. art. 927(A)(6); OXY USA Inc. v. Quintana Prod. Co., 2011-0047 (La.App. 1 Cir. 10/19/11), 79 So.3d 366, 376, writ denied, 2012-0024 (La. 3/2/12), 84 So.3d 536. Un-like the objection of no cause of action, evidence supporting or controverting an objection of no right of 18action is admissible to show that the plaintiff does not possess the right he claims or that the right does not exist. Id. Further, on consideration of an exception of no right of action, the averments of fact in the pleadings will be taken as true in the absence of evidence to the contrary. 1900 Highway 190, L.L.C. v. City of Slidell, 2015-1755 (La.App. 1 Cir. 6/3/16), 196 So.3d 693, 698.

Louisiana Civil Code article 198 expressly provides that the time period for asserting an action to establish paternity is peremptive. Peremption is a period of time fixed by law for the existence of a right, and unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. C.C. art. 3458. Public policy requires that rights to which peremptive periods attach are extinguished after passage of a specific period of time, and accordingly, nothing may interfere with the running of a peremptive period. State Bd. of Ethics v. Ourso, 2002-1978 (La. 4/9/03), 842 So.2d 346, 349. Unlike prescription, the peremptive period may not be interrupted, suspended or renounced, and exceptions such as contra non valentem are not applicable. La. C.C. art. 3461; Ourso, 842 So.2d at 349.

In this case, L.J.D.’s petition was filed almost two years after the child was born; L.J.D. did not allege that M.V.S. in bad faith deceived him about his paternity, but instead alleged that she told him on numerous occasions that he was the father and demanded child support. In their exception, M.V.S. and J.P.S. alleged that the exception to the one-year time period did not apply in this case because M.V.S. and J.P.S. were separated when she was involved with L.J.D., she informed L.J.D. that the child was his biological child and she made every attempt to develop a relationship between L.J.D. and the child. In oral reasons for judgment, the judge found that the applicable time period was prescriptive and was interrupted. He based his ruling on counsel’s allegations that initially M.V.S. told IflL.J.D. he was the father, but after the one-year period in which he could have filed a filiation action, she told him he might not be the father.

The trial court erred in finding that the time period was prescriptive subject to interruption because the time period in La. C.C. art. 198 is peremptive. L.J.D. failed to act during the time period set forth in La. C.C. art. 198; he did not file an action to establish paternity within one year of the child’s birth. The petition was filed almost two years after the child’s birth and there were no allegations that the mother in bad faith deceived the father as to his paternity. It is clear that any action that L.J.D. would have had to assert his paternity of the child is perempted and that action no longer exists. Therefore, L.J.D. has no right to file an action to establish filiation of the child because that action no longer exists. Accordingly, he has no corresponding right of action to obtain a court-ordered blood test pursuant to La. R.S. 9:398.2(A)(2). Once a party is perempted from filing an action to establish filiation under Civil Code article 198, he is also precluded from seeking blood testing under La. R.S. 9:398.2(A)(2).

CONCLUSION

For the above and foregoing reasons, the rule to show cause is recalled and this appeal is maintained. On our own motion, we render judgment declaring that L.J.D. has no right of action to file his petition to establish paternity and correspondingly, has no right of action to seek blood testing in accordance with La. R.S. 9:398.2(A)(2). Therefore, the judgment of the trial court ordering M.V.S. and | inthe child to submit to paternity testing is reversed. Costs of this appeal to be paid by L.J.D.

APPEAL MAINTAINED; REVERSED AND RENDERED.

      . To protect the identity of the minor child, we will use the initials to refer to the parties. See Uniform Rules, Courts of Appeal, Rules 5-1, 5-2.

      . The husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the termination of the marriage. La. C.C. art. 185.

      . While the judgment does not specifically name the child, it orders M.V.S. to report to the testing facility for a paternity test; because her paternity is not at issue, the order for paternity testing would clearly apply to the child, such that the judgment indicates that M.V.S. must report to the testing facility with the child for paternity testing.

      . This presumption has been referred to as the strongest presumption in the law. La. C.C. art. 185, Revision Comment (b).

      . While the Official Revision Comments are not the law, they may be helpful in determining legislative intent. Tracie F. v. Francisco D., 2015-1812 (La. 3/15/16), 188 So.3d 231, 238.

      . In T.D. v. 98-0167 (La. 3/2/99), 730 So.2d 873, 875 n.1, abrogated in part on other grounds, Fishbein v. State ex rel. La. State Univ. Health Sci. Ctr., 2004-2482 (La. 4/12/05), 898 So.2d 1260, the supreme court explained that the term "illegitimate” (which was then used instead of “child born outside of marriage”) referred to a child who was "not born in the marriage of his biological father to his mother and/or is assumed to be the child of another man. A child who enjoys legitimacy as to his legal father may also be the illegitimate child of his biological parent.” 2004 La. Acts, No. 26 changed the terminology in statutes and code articles from “illegitimate child” to "child bom outside of marriage.”

      .Other provisions in the Chapter entitled "Blood or Tissue Sampling for the Determination of Paternity” apply to the use of the test results in subsequent actions for filiation. Louisiana Revised Statutes 9:398.2(D) provides that if the court issues an order directing blood or tissue testing or both, the provisions of La. R.S. 9:397 through 397.2 and 397.3(A) and (B) shall be applicable to the filing of the test results in the record. Louisiana Revised Statutes 9:398.2(E) states, "The court shall not make a determination of paternity based on the test results and conclusions of the experts filed in the record; however, the test results shall be admissible in any subsequent action filed by any of the parties relating to the filiation of the child.” According to La. R.S. 9:397.3(B)(2)(b), a certified report of blood or tissue sampling that indicates by a ninety-nine and nine-tenths percentage point threshold probability that the alleged father is the child's father creates a rebuttal presumption of paternity.

      .A court order for blood testing to determine paternity is a search and seizure within the meaning of the Fourth Amendment of the United States Constitution. In the Interest of J.M., 590 So.2d 565, 567 (La. 1991). Because of the strong societal interest in determining minor children’s parentage and the minimal intrusion involved, court ordered blood testing in paternity cases is constitutionally permissible if justified under the circumstances of the particular case. Id at 572. The only other rights L.J.D. could exercise as to the child as a potential biological father would be as a plaintiff in a wrongful death action, but fortunately such an action is not involved in this case.

      . Under prior case law when filiation by a putative father was a judicially recognized action only, this Court found that the alleged biological fathers were entitled to blood tests under La. R.S. 9:396(A) either because they had an actual relationship with the child or they had been prevented from forming an actual relationship by the mother and they instituted an avowal action within a reasonable time of the child’s birth. Putnam v. Mayeaux, 93-1251 (La.App. 1 Cir. 11/10/94), 645 So.2d 1223, 1225-26, superseded by statute, La. C.C. art. 198, as recognized in Miller v. Thibeaux, 2014-1107 (La. 1/28/15), 159 So.3d 426, 434; Smith v. Jones, 566 So.2d 408, 414 (La. App. 1 Cir.), writ denied sub nom., Kemph v. Nolan, 569 So.2d 981 (La. 1990), superseded by statute, La. C.C. art. 198, as recognized in Miller v. Thibeaux, 2014-1107 (La. 1/28/15), 159 So.3d 426, 434. In these cases, this Court first examined the alleged fathers’ right to an avowal action before determining their right to a blood test.

      . This Court issued an interim order for the parties to brief the issue of the alleged biological father's right of action in this case.

      . Because the grounds for the objection of no right of action cannot be removed by amendment of the petition, we do not order its amendment. La. C.C.P. art. 934. While the trial court improperly based its ruling on L.J.D.’s counsel’s allegations that the mother initially told LJ.D. he was the father, but after the one year period told him he might not be the father, the exception for bad faith in La. C.C. art. 198 provides that the action shall be instituted within one year from the day the father knew or should have known of his paternity or within ten years from the child’s birthdate, whichever first occurs. LJ.D. initially was told he was the father.