text:
    GEORGIA-PACIFIC CONSUMER OPERATIONS, LLC (f/k/a Georgia-Pacific Corporation) v. CITY OF BATON ROUGE and Parish of East Baton Rouge
    Georgia-Pacific Consumer Operations, LLC (fka Georgia-Pacific Corporation) v. City of Baton Rouge-Parish of East Baton Rouge Department of Finance
    2017 CA 1553, 2017 CA 1554
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered JULY 18, 2018
    Shelton Dennis Blunt, Ryan Moon, Michael West, Baton Rouge, LA, Attorneys for Plaintiff/Appellee, Georgia-Pacific Consumer Operations, LLC
    Jeffrey G. Rice, Baton Rouge, LA, Attorney for Defendant/Appellant, City of Baton Rouge, et al
    BEFORE: HIGGINBOTHAM, HOLDRIDGE AND PENZATO, JJ.
   HOLDRIDGE, J.

The defendant, City of Baton Rouge and Parish of East Baton Rouge (City/Parish), appeals a summary judgment rendered in favor of plaintiff, Georgia-Pacific Consumer Operations, LLC (GP), holding that GP is entitled to tax refunds from the City/Parish. We affirm.

BACKGROUND

The facts forming the basis of this lawsuit are largely undisputed. On November 30, 2009, and July 15, 2011, GP filed petitions against the City/Parish seeking judicial review of the City/Parish's denial of its refund claims for sales taxes paid on the purchases of certain chemicals for the taxable periods January 1, 2003, through December 31, 2005, and from January 1, 2006, through January 1, 2008 (sometimes referred to as the "taxable periods"). During the taxable periods, GP operated a paper mill in Port Hudson, located in East Baton Rouge Parish, and purchased sodium chlorate, hydrogen peroxide, and elemental oxygen (sometimes collectively referred to as "the bleaching chemicals") for use in the bleaching process of GP's overall manufacturing process for its white paper products. For the first taxable period of 2003 through 2005, GP paid $1,576,182.39 to the City/Parish in local sales/use taxes on its purchases of the bleaching chemicals. During the second taxable period of 2006 through 2008, GP paid the City/Parish $1,695,105.65 on its purchases of the bleaching chemicals.

It is undisputed that during the taxable periods, GP purchased the bleaching chemicals for further processing into its pulp and paper products, which are tangible items of property that are ultimately sold at retail. It is further undisputed that the chemicals are beneficial to the final products, are recognized, identifiable, and integral components of the final products, and were purchased for the purpose of inclusion in the final products.

GP's refund claim is based on the Louisiana Supreme Court's 2008 decision in International Paper, Inc. v. Bridges, 2007-1151 (La. 1/16/08), 972 So.2d 1121. Therein, the Court held that International Paper's purchase of the bleaching chemicals used as a part of its white paper manufacturing process (sodium chlorate, hydrogen peroxide, and oxygen, the same chemicals used by GP) were non-taxable as purchases of "materials for further processing into articles of tangible personal property for sale at retail" pursuant to La. R.S. 47:301(10)(c)(i)(aa), commonly referred to as "the further processing exclusion." The court held that the chemical purchases fell under the further processing exclusion because: (1) they became recognizable and identifiable components of the end products; (2) they were beneficial to the end products; (3) they were materials for further processing, and as such, were purchased with the purpose of inclusion in the end products. International Paper, 972 So.2d at 1136.

In denying GP's refund requests, the City/Parish relied on a 1984 Compromise Payment Agreement (sometimes referred to as the "1984 Agreement") in which GP and the City/Parish agreed that the bleaching chemicals at issue were subject to the local sales and use tax. The parties acknowledged that GP determined in good faith that its purchases of the bleaching chemicals were exempt from the East Baton Rouge Parish sales and use tax, while the City/Parish believed those purchases were subject to its sales and use tax. The 1984 Agreement recognized that it was in the mutual interest of both parties to reach an agreement as to which chemicals would be considered taxable in the future to avoid the need for litigation and to provide GP with a means of paying its correct sales and use tax liability. The 1984 Agreement sets forth three categories of chemicals and additives: (1) chemicals, the purchases of which are taxable because the chemicals are not processed into pulp or paper; (2) chemicals, the purchases of which are not taxable when used for certain purposes; and (3) chemicals, the purchases of which are non-taxable because the chemicals are processed into pulp or paper. The bleaching chemicals at issue in this case were classified as "taxable" in the 1984 Agreement because they were not processed into pulp or paper. The City/Parish took the position that the 1984 Agreement, a good faith compromise to avoid future litigation with respect to the chemicals listed therein, and which had been followed by the City/Parish and GP, remained in effect, making the bleaching chemicals subject to the sales/use tax, despite the International Paper decision.

In both lawsuits, GP filed motions for summary judgment asking the court to grant it refunds for payment of sales taxes on the bleaching chemicals during the tax years 2003 through 2008. In its motions, GP asserted that it agreed to pay taxes on the bleaching chemicals in 1984 because the bleaching chemicals were not further processed into pulp or paper products during the manufacturing process in use at that time. However, in the mid-1990s, GP changed it bleaching process to one which was designed to and did in fact further process the chemicals into tangible personal property for subsequent sale at resale. GP urged that the 1984 Agreement only applied to materials used in the manufacturing process utilized in 1984 at the time that document was confected and did not provide for the continued taxation of materials that would be further processed into property for sale at retail under a different manufacturing process.

In support of the motions for summary judgment, GP attached the following documents to its memorandum: (1) the affidavit of Timothy A. Carlson, its director and senior counsel, who provided the procedural background of the parties' dispute, and to whose affidavit was attached documentation pertaining to GP's unsuccessful refund request from the City/Parish and its successful appeal of the Louisiana Department of Revenue's refund denials for the purchases of the bleaching chemicals at issue; (2) the affidavit of Barry Covington, GP's production manager for the Port Hudson facility; and (3) the affidavit of Dr. William Howard Daly, a chemistry professor.

Mr. Covington, a chemical engineer, attested that he has been involved in the pulp and paper industry for approximately 28 years, working mainly for International Paper and GP. According to Mr. Covington, GP uses the "Kraft Process" which utilizes subsequent bleaching processes to properly color the paper. He attested that while the Kraft Process has been in place since the Port Hudson facility opened, in the mid-1990s, the bleaching process underwent a significant change. According to Mr. Covington, at that time, GP switched from a chlorine-based bleaching process to a different bleaching process described in detail in his affidavit, which was utilized by the GP Port Hudson facility during the taxable periods from 2003 through 2008. Mr. Covington attested that the current bleaching process utilized by GP is the industry standard process which conforms to that of other manufacturers, including the process undertaken by International Paper at its Bastrop, Louisiana paper mill. Mr. Covington stated that the bleaching processes used by International Paper and GP at their respective facilities are substantially consistent and similar.

Mr. Covington stated that during the Kraft Process, paper products are manufactured from wood chips, beginning with a cooking process to remove or dissolve a portion of lignin, a chemical compound which gives wood pulp its brown color. During the bleaching process, oxidation occurs when oxygen atoms derived from the bleaching chemicals combine with the lignin; the oxidized lignin gives the paper its white color. According to Mr. Covington, oxidized lignin, and therefore, the oxygen atoms contributed by the bleaching chemicals, remain a part of the final paper products GP produces at the Port Hudson facility; the bleaching chemicals benefitted GP's paper products; those chemicals were recognizable and identifiable components of the paper products; and those chemicals were purchased for the purpose of inclusion in GP's paper products.

Dr. Daly, who has taught chemistry at LSU since 1966 and who has been qualified in the past an as expert in court in matters dealing with the application of the further processing exclusion in connection with the polymer industry, described GP's bleaching process in detail. He attested that he read the International Paper decision, and that the standard bleaching process, including the use of the bleaching chemicals as necessary and required steps in the manufacture of white paper products, is substantially consistent with and similar to that undertaken by International Paper at its Bastrop facility and GP at its Louisiana facilities.

In his affidavit, Mr. Carlson attested that in the 1984 Agreement, pulp and paper chemicals were organized into three categories based on the acid (sulfite) manufacturing process in use in 1984. He stated that the 1984 Agreement did not address any future switch by GP from the old manufacturing process to a different manufacturing process. Instead, the 1984 Agreement addressed only the chemicals purchased by GP for the manufacturing process in use by GP in 1984 and did not provide for continued taxation of materials that, under a different manufacturing process, would be further processed into tangible personal property for subsequent sale at retail.

Based on this evidence and the Supreme Court's decision in International Paper , GP argued that the City/Parish could not dispute that the bleaching chemicals are excluded from the sales tax because they are "materials for further processing into articles of tangible personal property for sale at retail." It further insisted that the 1984 Agreement did not bar its refund claim because its current bleaching process was not provided for in the agreement, those processes could not have been contemplated by the parties, and the 1984 Agreement could not be extended by implication to include the change in manufacturing process. According to GP, the 1984 Agreement extended only to the bleaching process in use at the time the agreement was confected (a chlorine-based process during which the bleaching chemicals were not further processed into tangible personal property for subsequent sale at retail) and does not extend to the current bleaching process, during which the bleaching chemicals are in fact further processed into pulp and paper products. Thus, GP asserted, the City/Parish could not present any evidence to show that the current bleaching processes, adopted by GP in the mid-1990s, are within the scope of the 1984 Agreement.

In opposition to the motions for summary judgment, the City/Parish relied solely on the 1984 Agreement at the hearing on the motion for summary judgment, submitting that document and the affidavit of its Revenue Manager, Tifani B. Delapasse, who attested to the authenticity of the document. The City/Parish took the position that GP remains bound by the terms of the 1984 Agreement specifically identifying the chemicals as being subject to the imposition of local sales taxes. It maintained that GP can offer no evidence to show that the 1984 Agreement is no longer valid and enforceable and insisted that GP's reliance on the International Paper case in a somewhat similar but factually different case as providing authority for GP to unilaterally breach the terms of that agreement is misplaced.

Following a hearing, the trial court determined that GP was entitled to summary judgment on its refund claims based on the further processing exclusion, La. R.S. 47:301(10)(c)(i)(aa), and Louisiana Supreme Court precedent. Specifically, the court found GP's purchase of the bleaching chemicals met all the criteria to qualify as non-taxable materials for further processing: (1) they became recognizable identifiable components of the end product; (2) they are beneficial to the end product; and (3) they are materials for further processing and as such were purchased with the purpose of inclusion in the end product. On July 20, 2017, the court signed a judgment granting GP's motion for summary judgment in suit Number 584,982 decreeing that GP is entitled to recover $1,576,182.39 plus interest through April 30, 2017, in the amount of $662,771.84, with interest running until the date of payment. The court also granted GP's motion for summary judgment in suit number 603,842 decreeing that GP is entitled to a refund in the amount of $1,695,106.86, plus interest in the amount of $504,516.41 through April 30, 2017, with interest continuing to run until the date of payment.

This suspensive appeal, taken by the City/Parish, followed.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Crosstex Energy Services, LP v. Texas Brine Company, LLC, 2017-0895 (La. App. 1 Cir. 12/21/17), 240 So.3d 932, 935, writ denied, 2018-0145 (La. 3/23/18), 238 So.3d 963. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential claims of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

Appellate courts review evidence de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Crosstex Energy Services, LP, 240 So.3d at 936. Thus, appellate courts ask the same questions: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Id. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Id.

DISCUSSION

GP submitted evidence in support of its motion for summary judgment that during the taxable period, it used the same bleaching chemicals and the same bleaching process as International Paper did at the time the Supreme Court rendered its 2008 decision in the International Paper . It also offered evidence that the use of the bleaching chemicals meets all of the criteria identified by the Louisiana Supreme Court in the International Paper decision to qualify for the further processing exclusion. Additionally, it offered evidence showing that after it entered into the 1984 Agreement in which it agreed to the taxability of the bleaching chemical purchases, it changed its manufacturing process to comport with the industry wide practice and the process utilized by International Paper. GP's chief counsel attested that the 1984 Agreement addressed only the chemicals purchased by GP for the manufacturing process in use by GP in 1984 and did not provide for the continued taxation of material that, under a different manufacturing process, would be further processed into tangible personal property for subsequent sale at retail.

The City/Parish has made no attempt to refute any of this evidence. Instead, it contends that the 1984 Agreement, executed to resolve a dispute between GP and the City/Parish regarding the taxability of the bleaching chemicals, clearly and unambiguously provides that GP's future purchases of the bleaching chemicals are subject to the imposition of sales tax. The City/Parish argues that the 1984 Agreement constitutes the law between the parties, and regardless of the International Paper decision, GP is not entitled to judgment as a matter of law.

Alternatively, the City/Parish insists that there are genuine issues of material fact regarding the motives and intent of the parties in executing the 1984 Agreement. It takes the position that the 1984 Agreement could not be more clear as to the parties' intent in executing that document and leaves no room for interpretation. Ironically, the City/Parish points out, GP entered into the agreement in 1984 to keep it from having to maintain the very action pending before this court. The City/Parish maintains that GP's argument regarding the inapplicability of the 1984 Agreement is disingenuous and irrelevant as GP was arguing that the purchase of these same chemicals was not subject to the imposition of the sales tax by the City/Parish back in 1984 as well. The City/Parish urges that if GP's motive and intent in executing the 1984 Agreement is deemed to be worthy of further examination by this court in order to determine what was or was not considered at that time by GP, such a determination in-and-of-itself presents a genuine issue of material fact precluding the granting of summary judgment in favor of GP. Finally, the City/Parish argues that the very existence of the 1984 Agreement mandates an outcome that is different from that reached by the Supreme Court in International Paper.

In International Paper, the Supreme Court noted that the Department of Revenue pointed out that it reviewed the taxability of the bleaching chemicals in the 1970s, and as a result a contract was entered into between the Department and a majority of paper manufacturers in the 1980s, including International Paper. This agreement basically stated that the chemicals used in the manufacture of white paper products were taxable, as the chemicals were primary used for bleaching/whitening of the pulp, as opposed to the chemical's incorporation with the final paper products. International Paper, 972 So.2d at 1124. The Court then noted in a footnote that over the objection of International Paper, a copy of purported contract from 1984 between the Department and International Paper was introduced at the hearing before the Board of Tax Appeals. The Board of Tax Appeals found that the agreement was irrelevant because the manufacturing processes currently utilized were materially different from those processes utilized in the mid-1980s. The Court stated that "[f]urthermore, the appellate court noted that the contract was not properly authenticated, and as such, the appellate court concluded that the contract constituted hearsay evidence. Thus, this contract is not a factor in the analysis of the issues presently before us." International Paper , Id. at n.6.

GP argues that the 1984 Agreement does not bar its refund claim for taxes paid on the bleaching chemicals during the taxable periods at issue in this case. It points out that the document clearly states that it was the parties' intent in executing the agreement to provide GP "with the means of paying its correct sales and use tax liability." (Emphasis added) GP urges that nothing in the 1984 Agreement suggests that the parties intended it to extend to subsequent bleaching processes that utilize the bleaching chemicals in a different process. GP notes that in the International Paper dispute, the appellate court pointed out that the Board of Tax Appeals considered a similar settlement agreement that International Paper had signed with the Louisiana Department of Revenue, but found that agreement to be irrelevant to the taxability issue as it was proven that International Paper utilized a newer, materially different bleaching process after that agreement had been confected. International Paper, Inc. v. Bridges, 42,023 (La. App. 2 Cir. 4/4/07), 954 So.2d 321, 326, rev'd, 2007-1151 (La. 1/16/08), 972 So.2d 1121.

Similarly, GP contends that the 1984 Agreement is irrelevant to the issue of the taxability of the bleaching chemicals because it applied only to raw materials used in an earlier and materially different chlorine-based bleaching process when admittedly, the chemicals were not further processed, while the current manufacturing processes do further process the chemicals into pulp and paper products. In short, GP maintains that the City/Parish cannot present any evidence to demonstrate that the current bleaching processes adopted by GP in the mid-1990s are within the scope of the 1984 Agreement, and it cannot point to any evidence to support its claim that the parties executing that agreement expected it to be applied to a substantially different manufacturing process than that which was utilized at the time the 1984 Agreement was negotiated and confected.

We agree. The mover, GP, has submitted sufficient evidence to show that there are no genuine issues of material fact and that it is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(D)(1). The City/Parish failed to produce factual support for its claim that the parties intended to settle the differences being asserted in this litigation in the 1984 Agreement. See La. C.C.P. art. 966(D)(1) ; Brown v. Drillers, Inc., 93-1019 (La. 1/14/94), 630 So.2d 741, 747. Louisiana Civil Code article 3076 provides that "[a] compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express." Thus, a compromise agreement extends only to those matters the parties expressly intended to settle and the scope of the agreement cannot be extended by implication. Brown, 630 So.2d at 748. The City/Parish offered no evidence whatsoever supporting its claim that the parties intended for the 1984 Agreement to apply to taxability issues arising over 20 years later when GP utilized a different manufacturing process and the Louisiana Supreme Court settled the dispute between a taxpayer and the taxing authority over the taxability of these same chemicals under the same manufacturing process.

While the granting of summary judgment based on intent may be rare, it is appropriate when there is no genuine issue of material fact concerning the pertinent intent. Carter v. BRMAP, 591 So.2d 1184, 1189 (La. App. 1 Cir. 1991). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Jackson v. City of New Orleans, 2012-2742 (La. 1/28/14), 144 So.3d 876, 882, cert. denied, --- U.S. ----, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014). The City/Parish has not met its burden on the motion for summary judgment of producing factual support sufficient to establish the existence of a genuine issue of material fact regarding the applicability of the 1984 Agreement to the present tax dispute, and the trial court correctly ruled that GP is entitled to summary judgment as a matter of law on its refund requests.

CONCLUSION

Based on the foregoing, the judgment appealed from is affirmed. Costs of this appeal, in the amount of $2,629.00, are assessed to the appellant, City of Baton Rouge and Parish of East Baton Rouge.

      The two petitions were consolidated in the trial court on October 26, 2016.

      Prior to filing suit, GP filed requests for refunds with the City/Parish, which were denied by the City/Parish. Following a redetermination hearing, the City/Parish again disallowed GP's refund requests.

      In its memorandum, GP pointed out that after the Supreme Court issued the International Paper decision, the City/Parish stopped collecting tax on its purchases of the bleaching chemicals.

      GP also argued that even if the 1984 Agreement could be construed so broadly as to encompass its current manufacturing process, it must be rescinded because it was based on mutual error of fact.

      The judgment decrees that the peremptory exception raising the objection of prescription filed by the City/Parish was withdrawn as moot. The record reflects that the City/Parish withdrew the objection at the outset of the hearing on the motion for summary judgment.

      Brown dealt with the application of La. C.C. art. 3073, the predecessor to La. C.C. art. 3076. Louisiana Civil Code article 3076 reproduced the substance of article 3073 of the Louisiana Civil Code of 1870. Revision Comments-2007 (a).


source: Caselaw Access Project

author: WELCH, J.

license: Public Domain

text:
    Shavondara Shaketa SCOTT v. Harrison Edmond HOGAN
    2017 CA 1716
    Court of Appeal of Louisiana, First Circuit.
    JUDGMENT RENDERED: JULY 18, 2018
    Gregory Cook, Baton Rouge, Louisiana, Attorney for Appellant, Defendant - Harrison Edmond Hogan
    Shavondara Shaketa Scott, Baton Rouge, Louisiana, Appellee, Plaintiff - Pro Se
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   WELCH, J.

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

FACTUAL BACKGROUND

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

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

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

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

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

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

MOTION TO SUPPLEMENT THE RECORD

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

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

As an appellate court, we have no jurisdiction to review evidence that is not in the record on appeal, and we cannot receive new evidence. Niemann v. Crosby Dev. Co., 2011-1337 (La. App. 1st Cir. 5/3/12), 92 So.3d 1039, 1044. An appellate court must render its judgment upon the record on appeal, i.e., that which is sent by the lower court to the appellate court and includes the pleadings, court minutes, transcripts, jury instructions (if applicable), judgments, and other rulings, unless otherwise designated. See La. C.C.P. arts. 2164 and 2127 - 2128. The trial court has jurisdiction to correct an omission from the trial record on appeal. An appellate court can neither supplement the record nor consider documents on appeal that were not introduced or filed into the record during the proceedings below. See La. C.C.P. arts. 2088(4) and 2132 ; Strawn v. Superfresh, 98-1624 (La. App. 1st Cir. 9/24/99), 757 So.2d 686, 688 n.2.

Exhibits 1 and 2 referenced in Defendant's motion are already a part of the appeal record; therefore, the request to attach these duplicative exhibits is moot. Exhibit 3 referenced in Defendant's motion is not part of the appeal record and may not be considered by this court. We note, however, that the substance of the court minutes reflected in proposed Exhibit 3, upon which Defendant relies, is contained in the appeal record. Accordingly, Defendant's motion to supplement the appellate record is denied.

ASSIGNMENTS OF ERROR

Defendant assigns the following as error on appeal:

1. The trial court erred when it granted the [ex parte ] protective order and permanent injunction from abuse absent a showing of immediate and present danger of abuse.
2. The trial court erred when it granted the [ex parte ] protective order and permanent injunction from abuse absent a showing of proof by a preponderance of the evidence[.]
3. The trial court erred when it granted the [ex parte ] protective order and permanent injunction against sexual abuse stalking absent clear evidence of a criminal violation and absent a reasonable basis that would cause a reasonable person to be in fear because petitioner received mail delivered by the U.S. Post Office with defendant's name on it at the exact address in which defendant previously resided which did not fall within the ambit of the Domestic Abuse Assistance Statute.
4. The trial court erred when it subsequently amended the trial court minute entry reflecting a different time that the court hearings began raising reasonable suspicion enough to imply such impropriety that prejudiced the defendant's right to a hearing.

LAW

Plaintiff petitioned the trial court for an order of protection from stalking or sexual assault, pursuant to La. R.S. 46:2171, et seq. or La. R.S. 46:2181, et seq. First, the injunction and protective order provisions set forth in La. R.S. 46:2127, et seq. of the Revised Statutes comprise Chapter 28-C of Title 46, known as the "Protection from Stalking Act." This Act is intended to provide a civil remedy for victims of stalking that will afford the victim immediate and easily accessible protection due to the:

present and growing need to develop innovative strategies and services which will reduce and treat the trauma of stranger and acquaintance stalking. The nature of stalking allegations are sometimes not easily substantiated to meet the prosecution's burden of proving the case beyond a reasonable doubt, and victims of stalking are left without protection. Orders of protection are a proven deterrent that can protect victims of stalking from further victimization; however, many victims are forced to pursue civil orders of protection through ordinary process, often unrepresented, rather than through a shortened, summary proceeding. Additionally, victims of stalking are not always aware of the vast resources available to assist them in recovering from the trauma associated with being a victim of stalking.

La. R.S. 46:2171. Under this Act, "stalking" means any act that would constitute the crime of stalking under La. R.S. 14:40.2 or cyberstalking under La. R.S. 14:40.3. See La. R.S. 46:2172.

Second, the injunction and protective order provisions set forth in La. R.S. 46:2181, et seq. of the Revised Statutes comprise Chapter 28-D of Title 46, known as the "Protection for Victims of Sexual Assault Act." This Act is intended to provide a civil remedy for all victims of sexual assault that will afford the victim immediate and easily accessible protection. See La. R.S. 46:2181. The provisions are limited in application to victims of sexual assault. See La. R.S. 46:2183(A). Under this Act, "victim" means a person against whom an act of attempted or perpetrated sexual assault was committed. La. R.S. 46:2187(A)(3). "Sexual assault" means any nonconsensual sexual contact and includes (but is not limited to) sex offenses as defined in La. R.S. 15:541(24), or obscenity as defined in La. R.S. 14:106. See La. R.S. 46:2184.

Under both Acts, victims of either stalking or sexual assault, by a perpetrator who is a stranger to or an acquaintance of the victim, shall be eligible to receive all services, benefits, and other forms of assistance provided by Chapter 28 of Title 46 of the Revised Statutes, which is the "Protection from Family Violence Act," and includes specific statutes on "Domestic Abuse Assistance" under Part II of Chapter 28 (i.e., La. R.S. 46:2131 -2143). See La. R.S. 46:2173 and La. R.S. 46:2183(A).

Pursuant to the Domestic Abuse Assistance statutes, upon good cause shown in an ex parte proceeding, the court may issue a TRO to protect a petitioner from abuse. Any petitioner who shows immediate and present danger of abuse shall constitute good cause for purposes of the statutes. See La. R.S. 46:2135(A) ; Thomas v. Hyatt, 2012-1891 (La. App. 1st Cir. 8/6/13), 2013 WL 4007777, at *2 (unpublished). The Protection from Stalking Act has no provision defining "good cause"; however, under the Protection for Victims of Sexual Assault Act, a showing that the person is or has been a victim of sexual assault shall constitute good cause for purposes of obtaining a temporary restraining order in an ex parte proceeding. See La. R.S. 46:2183(B).

If a TRO is granted without notice, the matter shall be set for a hearing within twenty-one days, at which time, cause must be shown why a protective order should not be issued. At the hearing on the rule for the protective order, the petitioner must prove the allegations of abuse by a preponderance of the evidence. La. R.S. 46:2135(B).

The defendant shall be given notice of the TRO and the hearing on the rule to show cause by service of process as required by law within twenty-four hours of the issuance of the order. La. R.S. 46:2135(B). A protective order may be rendered if reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person's right to due process. La. R.S. 46:2136(B)(2).

Louisiana law mandates that trial courts use a uniform form for the issuance of any TRO or protective order, called the "Louisiana Uniform Abuse Prevention Order." See La. R.S. 46:2136.2(0). The trial court checks off a box provided on the uniform form to indicate under which law it issues the TRO and/or protective order: (1) La. R.S. 46:2131, et seq. (Domestic Abuse); (2) La. R.S. 46:2151 (Dating Violence); (3) La. R.S. 46:2171, et seq. (Non-intimate stalking); (4) La. R.S. 2181, et seq. (Non-intimate sexual assault); (5) La. Ch.C. art. 1564, et seq. (Children's Code Domestic Abuse); or, (6) a court approved consent agreement.

A trial court's decision to issue or deny a protective order is reversible only upon a showing of an abuse of discretion. See James v. Warren, 2017-0757 (La. App. 1st Cir. 12/21/17), 240 So.3d 967, 969 (citing Rouyea v. Rouyea, 2000-2613 (La. App. 1st Cir. 3/28/01), 808 So.2d 558, 561 ). Additionally, the trial court sitting as a trier of fact is in the best position to evaluate the demeanor of the witnesses, and its credibility determinations will not be disturbed on appeal absent manifest error. Thomas v. Hyatt, 2013 WL 4007777, at *2.

DICUSSION

Assignment of Error No. 4

To facilitate our discussion of this matter, we begin our analysis with Defendant's fourth assignment of error. Defendant argues that his due process rights were violated when the trial court granted the protective order despite his absence from the hearing. Defendant contends that he arrived at the courthouse ten minutes prior to the scheduled hearing time of 9:30 a.m. but that due to "the security check-in delay at the entrance," by the time he arrived at the courtroom, the hearing was concluded. Defendant argues that at all pertinent times, he was a pro se litigant, and that generally, if a party is called and it is determined that a party may not yet be present, the court will pass the matter and allow time for the party to arrive and take up other matters, unless, it is the only matter on the docket.

Defendant further argues that the minute entry for the hearing was amended to reflect that court began at 9:30 a.m., and not at 9:00 a.m., as originally entered. Defendant argues that the trial court committed error "when it subsequently amended the trial court minute entry reflecting a different time that the court hearings began raising reasonable suspicion enough to imply such impropriety that prejudiced the defendant's right to a hearing."

Due process requires some kind of hearing and notice thereof. Paschal v. Hazlinsky, 35,513 (La. App. 2nd Cir. 12/19/01), 803 So.2d 413, 417. In the case sub judice, we can find no support for the assertion that Defendant was not afforded due process in defending Plaintiff's claims against him. Procedural due process requires that a person be given a meaning ful opportunity to be heard. Bays v. Bays, 2000-1727 (La. 2/21/01), 779 So.2d 754, 758. Parties who fail to avail themselves of the opportunities to be heard by the court, of which they admittedly were aware, may not complain that they were denied due process. Paschal v. Hazlinsky, 803 So.2d at 418.

Defendant was served with the form petition filed by Plaintiff, entitled "Petition for Protection from Stalking or Sexual Assault Pursuant to La. R.S. 46:2171 et seq. or La. R.S. 46:2181 et seq.," which gave him notice of the charges against him and informed him of the time and place of the hearing on the charges: June 28, 2017 at 9:30 a.m. in Courtroom 8A of the 19th Judicial District Court. Defendant admits in his brief to this court that he "was verbally called for the hearing and failed to respond," but that he "was present at a time when all parties remained in the court." Defendant admits he failed to appear at the hearing at the designated time and place, and offers as the only excuse or explanation for his absence that there were "security check-in delays" at the courthouse. Defendant was late for the hearing, of which he admittedly was aware, and therefore failed to avail himself of the opportunity to be heard. He cannot complain that he was denied due process.

Additionally, where there is a discrepancy between a minute entry and a transcript, the transcript prevails. Williams v. Cooper, 2005-2360 (La. App. 1st Cir. 10/6/06), 945 So.2d 48, 51. Here, the transcript of the hearing reflects that the hearing was scheduled to begin at 9:30 a.m. The amendment of the minute entry does not contradict the transcript. Furthermore, Defendant has offered no evidence of any alleged impropriety that may have occurred. Based on the foregoing, we hold that the process afforded Defendant in this case was sufficient to satisfy due process requirements of the Louisiana and U.S. Constitutions. This assignment of error is without merit.

Assignments of Error Nos. 1-3

To further facilitate our discussion, we discuss Defendant's first three assignments of error simultaneously, as they are interrelated. Defendant argues that the trial court erred in granting the protective order against him, alleging that Plaintiff failed to satisfy her burden of proof that she was entitled to a protective order issued pursuant to the Protection for Victims of Sexual Assault Act, " La. R.S. 46:2181 et seq. (Non-intimate sexual assault)." Defendant argues that Plaintiff failed to prove the allegations of the requested order of protection by a preponderance of the evidence, as is required under La. R.S. 46:2135(B). Defendant further alleges that Plaintiff did not show good cause that she was entitled to an order of protection, i.e., that she did not show an immediate or present danger of abuse, nor did she prove that she was a victim of sexual assault. See La. R.S. 46:2135(A), 46:2136(A)(1), 46:2183(A) and (B), and 46:2187(A)(3).

A thorough review of the record clearly reveals that Plaintiff failed to meet the threshold showing of sexual assault as defined in the Protection for Victims of Sexual Assault Act. See La. R.S. 46:2184. The evidence adduced in this case was that Defendant's employment was terminated by their mutual employer, Latter and Blum Property Management, on March 15, 2017. Plaintiff, who began working as Community Team Manager of the Midcity Gardens on North Boulevard just one month prior, on February 16, 2017, became concerned that Defendant blamed her for his termination because she had raised some issues with her supervisor regarding Defendant's behavior and actions while on the job. Defendant, who had worked at this property for two years prior to Plaintiff's employment at the property, was escorted off the premises by a BRPD officer and instructed not to return, i.e., banned from the property. However, Defendant drove by and trespassed on the property on at least one occasion, April 10, 2017. On June 6, 2017, a letter addressed to Defendant was sent by a third party to Plaintiff's personal residence.

Though the actions by Defendant may violate civil and criminal statutes defining stalking and afford Plaintiff protection under the Protection from Stalking Act, La. R.S. 46:2171, et seq. , Defendant's actions do not rise to the level of sexual assault as defined by La. R.S. 46:2184 in the Protection for Victims of Sexual Assault Act. Allegations that do not rise to the threshold of sexual abuse or violations of the criminal code are not in the ambit of the Protection for Victims of Sexual Assault Act. See also Thomas v. Hyatt, 2013 WL 4007777, at *3 (citing Rouyea, 808 So.2d at 561 ). At the hearing in the matter before us, Plaintiff presented no evidence that she was a victim of sexual assault. In fact, there were no allegations of sexual assault made in her verified petition. Nowhere in the record did the trial court make a finding that sexual assault occurred. The trial court only found at best that Defendant stalked Plaintiff. Accordingly, we find that the record contains insufficient evidence that Defendant's actions constituted sexual assault within the purview of Protection for Victims of Sexual Assault Act, La. R.S. 46:2181 -2188. Therefore, we conclude the trial court abused its discretion in issuing an order of protection in this case pursuant to the Protection for Victims of Sexual Assault Act, " La. R.S. 46:2181 et seq. (Non-intimate sexual assault)." We recall and vacate the June 28, 2017 protective order.

Plaintiff's verified petition, her testimony, and the orders and prohibitions contained in the June 28, 2017 protective order apply to protection against stalking. We recognize that the trial court may have inadvertently checked off the box for protection against sexual assault ("La. R.S. 2181, et seq. (Non-intimate sexual assault)") instead of the box for protection against stalking (" La. R.S. 46:2171, et seq. (Non-intimate stalking)") on the Louisiana Uniform Abuse Prevention Order form. Accordingly, we remand this matter to the trial court for further proceedings consistent with this opinion.

DECREE

The motion to supplement the record filed by the defendant, Harrison Edmond Hogan, is denied. The June 28, 2017 protective order granted by the trial court in favor of the plaintiff, Shavondra Shaketa Scott, and against the defendant, Harrison Edmond Hogan, pursuant to " La. R.S. 46:2181 et seq. (Non-intimate sexual assault)" is recalled and vacated. We remand this matter to the trial court for further proceedings consistent with this opinion. We assess all costs of this appeal equally between the parties.

MOTION TO SUPPLEMENT DENIED; PROTECTIVE ORDER RECALLED

AND VACATED; REMANDED.

      The box on the protective order ordering Defendant to seek professional counseling and/or complete a court-monitored domestic abuse intervention program was checked off with an "X"; however, the trial court did not initial that item.

      Defendant attached to his motion the following: (1) a copy of Plaintiff's petition; (2) a copy of a BRPD Incident Report Number 17-00036527-000 dated April 10, 2017; (3) a photocopy of the mail received by Plaintiff at her residence that was addressed to Defendant; (4) a copy of the protective order rendered June 28, 2017; (5) two motions to dissolve Plaintiff's protective order (also filed June 11, 2017), both of which the trial court denied; and, (6) a copy of a verified petition for protection from stalking or sexual assault allegedly filed against Plaintiff on June 28, 2018, rebutting the allegations of Plaintiff's petition.

      Louisiana Code of Civil Procedure article 1974 states: "The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913."

      Louisiana courts look beyond the caption, style, and form of pleadings to determine from the substance of the pleadings the nature of the proceeding; thus, a pleading is construed for what it really is, not for what it is erroneously called. Rochon v. Young , 2008-1349 (La. App. 1st Cir. 2/13/09), 6 So.3d 890, 892, writ denied, 2009-0745 (La. 1/29/10), 25 So.3d 824, cert. dismissed, 560 U.S. 921, 130 S.Ct. 3325, 176 L.Ed.2d 1216 (2010).

      Louisiana Revised Statutes 14:40.2(A) provides that stalking is:
      [T]he intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress. Stalking shall include but not be limited to the intentional and repeated uninvited presence of the perpetrator at another person's home, workplace, school, or any place which would cause a reasonable person to be alarmed, or to suffer emotional distress as a result of verbal, written, or behaviorally implied threats of death, bodily injury, sexual assault, kidnapping, or any other statutory criminal act to himself or any member of his family or any person with whom he is acquainted.

      As provided in La. R.S. 14:40.3(B), cyberstalking is:
      (1) Use in electronic mail or electronic communication of any words or language threatening to inflict bodily harm to any person or to such person's child, sibling, spouse, or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.
      (2) Electronically mail or electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of threatening, terrifying, or harassing any person.
      (3) Electronically mail or electronically communicate to another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct, or criminal conduct of the person electronically mailed or of any member of the person's family or household with the intent to threaten, terrify, or harass.
      (4) Knowingly permit an electronic communication device under the person's control to be used for the taking of an action in Paragraph (1), (2), or (3) of this Subsection.

      Louisiana Revised Statutes 15:541(24) defines a "sex offense" as the "deferred adjudication, adjudication withheld, or conviction for the perpetration or attempted perpetration of or conspiracy to commit human trafficking ..., or a second or subsequent conviction of R.S. 14:283.1 (voyeurism)" or, "aggravated oral sexual battery ...." See La. R.S. 15:541(24)(a) and (b). Under La. R.S. 14:283.1, "[v]oyeurism is the viewing, observing, spying upon, or invading the privacy of a person by looking ... through the doors, windows, or other openings of a private residence without the consent of the victim who has a reasonable expectation of privacy for the purpose of arousing or gratifying the sexual desires of the offender."

      Louisiana Revised Statutes 14:106 defines "obscenity" as the intentional "[e]xposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place open to the public view ... with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive."

      Defendant's Assignment of Error No. 2.

      Defendant's Assignment of Error Nos. 1 and 3.

      We note that the trespass here is disputed, since it was suggested by the police that the defendant may have been on public property.


author: PENZATO, J.

text:
    Matthew A. DEPHILLIPS, Individually, and on Behalf of All Others Similarly Situated v. HOSPITAL SERVICE DISTRICT NO. 1 OF TANGIPAHOA PARISH, doing business as North Oaks Medical Center/North Oaks Health System
    Earnest Williams, Individually and on Behalf of All Others Similarly Situated v. Hospital Service District No. 1 of Tangipahoa Parish d/b/a North Oaks Health System and North Oaks Medical Center, and Louisiana Health Service & Indemnity Company d/b/a Blue Cross Blue Shield of Louisiana
    2017 CA 1425, 2017 CA 1426
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JULY 18, 2018
    J. Lee Hoffoss, Jr., Claude P. Devall, Donald W. McKnight, Lake Charles, Louisiana and Derrick G. Earles, David C. Laborde, Marksville, Louisiana and Jeffery P. Berniard, Scott R. Bickford, Lawrence J. Centola, III, Norman F. Hodgins, III, New Orleans, Louisiana, Attorneys for Plaintiffs/Appellants, Matthew A. DePhillips and Earnest Williams, Individually, and on Behalf of All Similarly Situated
    Jonathan M. Herman, Dallas, Texas and Brian C. Roux, New Orleans, Louisiana and Allison N. Pham, Charles A. O'Brien, III, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee, Louisiana Health Service & Indemnity Company, d/b/a Blue Cross and Blue Shield of Louisiana
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

Plaintiffs Matthew DePhillips and Earnest Williams appeal the trial court's judgment sustaining a peremptory exception raising the objection of prescription filed by Blue Cross Blue Shield of Louisiana ("BCBS"), finding that Williams's claims are prescribed under the terms of his health plan.

FACTS AND PROCEDURAL HISTORY

On April 28, 2015, DePhillips filed a putative class action against Hospital District No. 1 of Tangipahoa Parish, doing business as North Oaks Medical Center/North Oaks Health System ("North Oaks"), alleging that North Oaks refused to submit and/or accept payment from his insurer for treatment he received at North Oaks as a result of a February 9, 2015 motor vehicle accident, instead seeking to collect directly from him by maintaining an action at law for payment. On May 8, 2015, Williams filed a similar class action petition for damages, naming as defendants both North Oaks and BCBS. Williams alleged that he was involved in a motor vehicle accident on February 26, 2011, for which he received medical treatment from North Oaks. According to the petition, Williams was insured under an insurance policy administered by BCBS at the time of the accident. Williams alleged that North Oaks filed a claim with BCBS and was paid for Williams's charges, then attempted to collect amounts from him in violation of its Member Provider Agreement and the Health Care Consumer Billing and Disclosure Protection Act (the "Billing Act"), La. R.S. 22:1871, et seq. , by asserting a lien against his liability insurance claim for the full and undiscounted charges. Williams, individually, and on behalf of all others similarly situated, asserted that North Oaks' actions violated the Billing Act, that BCBS was solidarily liable with North Oaks, and that Williams relied to his detriment on the promises of BCBS that North Oaks would perform in accordance with the insurance contract. The DePhillips and Williams matters were consolidated effective November 16, 2015, by order signed November 15, 2017.

On March 31, 2016, North Oaks filed peremptory exceptions raising the objection of prescription, contending that a one year prescriptive period applied to the claims of both DePhillips and Williams arising from the Billing Act. BCBS filed a peremptory exception raising the objection of prescription, arguing that at the time of the February 26, 2011 motor vehicle accident, Williams was covered by a Health Maintenance Organization Plan with the Louisiana Office of Group Benefits (LAOGB Plan), and that BCBS only provided administrative claims services under the LAOGB Plan. BCBS contended that Williams had no contract with BCBS, and further that his claims were prescribed under the LAOGB Plan. In support of this argument, BCBS attached to its memorandum filed in support of its exception the affidavit of BCBS staff counsel Paula Shepherd, along with an excerpt of the LAOGB Plan in place between Williams and LAOGB at the time of the alleged injury referenced in Williams's petition.

All of the pending exceptions came for hearing on October 11, 2016. The exhibits attached to BCBS's memorandum were referenced, but were not introduced into evidence at the hearing. The trial court granted North Oaks' exceptions. With regard to the exception filed by BCBS, the trial court indicated that it would "look at that one further." On July 3, 2017, the trial court signed a judgment that provided:

IT IS ORDERED, ADJUDGED, AND DECREED that [BCBS]'s Peremptory Exception of Prescription is GRANTED as to the claims of E[a]rnest Williams individually under the terms of the [LAOGB Plan], and to all putative and potential class members insured by [BCBS]. All such claims against [BCBS] are hereby DISMISSED, with prejudice, at Plaintiff's costs.

Plaintiffs DePhillips and Williams filed a motion for appeal from this judgment. An order granting a devolutive appeal to DePhillips and Williams, individually and on behalf of all others similarly situated, was signed on July 19, 2017.

RULES TO SHOW CAUSE

On October 17, 2017, this court, ex proprio motu , issued rule to show cause orders in each of the consolidated appeals. In appellate docket number 2017-1425, the rule to show cause order noted that the matter appeared to be non-appealable because the July 3, 2017 judgment and the motion and order for appeal signed on July 19, 2017 involve a non-party to the suit, Williams. In appellate docket number 2017-1426, the rule to show cause order noted that the matter appeared to be non-appealable because the July 3, 2017 judgment and the motion and order for appeal signed on July 19, 2017 involve a non-party to the suit, DePhillips. The parties were directed to show cause as to whether the appeals should or should not be dismissed for these reasons. On March 5, 2018, the rules to show cause were referred to this panel assigned to hear the consolidated appeals.

BCBS is not a defendant in the DePhillips suit. With regard to the appeal in the DePhillips suit, appellate docket number 2017-1425, plaintiffs indicate that there is no objection to the appeal being dismissed. With regard to the appeal in the Williams suit, appellate docket number 2017-1426, plaintiffs suggest that DePhillips has a right to appeal the judgment because if the Williams suit is certified as a class action, DePhillips will intervene in that suit. Plaintiffs further suggest that an appeal by DePhillips in the Williams suit serves the interest of judicial economy. Finally, plaintiffs argue that even if it is determined that the appeal by DePhillips was improper, this court should not dismiss the appeal filed by Williams.

Louisiana Code of Civil Procedure Article 2082 provides that an "[a]ppeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court." Louisiana Code of Civil Procedure Article 2086 provides that "[a] person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken." An intervention is an incidental demand. La. C.C.P. art. 1031(B). A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by: (1) joining with plaintiff in demanding the same or similar relief against the defendant; (2) uniting with defendant in resisting the plaintiff's demand; or (3) opposing both plaintiff and defendant. La. C.C.P. art. 1091. Article 1091 and the cases construing it establish that the requirement for intervention is two-fold: the intervenor must have a justiciable interest in, and a connexity to, the principal action. Clark v. State, Dept. of Revenue, 2002-0703 (La. App. 1 Cir. 5/9/03), 849 So.2d 700, 705, writs denied, 2003-1600, 2003-1619 (La. 10/3/03), 855 So.2d 320, 321. A "justiciable interest" is defined as "the right of a party to seek redress or a remedy against either [the] plaintiff or defendant in the original action or both, and where those parties have a real interest in opposing it." Mike M. Marcello, Inc. v. Louisiana Gaming Control Board, 2004-0488 (La. App. 1 Cir. 5/6/05), 903 So.2d 545, 548. The right, if it exists, must be so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervenor's rights. Id. An intervenor takes the proceedings as he finds them and cannot change the issues between the parties or raise new ones. IberiaBank v. Live Oak Circle Development, L.L.C., 2012-1636 (La. App. 1 Cir. 5/13/13), 118 So.3d 27, 32.

In contrast, a class action is "a nontraditional litigation procedure that permits a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common interest to persons so numerous as to make it impracticable to bring them all before the court," Baker v. PHC-Minden, L.P., 2014-2243 (La. 5/5/15), 167 So.3d 528, 537 (citations omitted). Its purpose and intent is to adjudicate and obtain res judicata effect on all common issues applicable to persons who bring the action, as well as to all others similarly situated. Id.

While Williams and DePhillips may have common theories of recovery, their claims are based on independent acts on the part of the named defendants. It is argued that "[i]f the Williams case is the case which is certified as a class action, DePhillips could, and almost certainly will, intervene in the Williams class action" (emphasis added). This argument is merely speculative at this juncture as there has been no class certification in this matter at the time of appeal. Further, a ruling on the exception of prescription would not bind the nonnamed class members who are not parties to the class action litigation before the class is certified. Claborne v. Housing Authority of New Orleans , 2012-0808 (La. App. 4 Cir. 5/29/13), 116 So.3d 983, 986, writ denied, 2013-1520 (La. 10/4/13), 122 So.3d 1022. Therefore, DePhillips has failed to demonstrate his right to intervene in the Williams matter in its current procedural posture.

As DePhillips is not a party to the Williams suit, and has not established his right to intervene in that suit, the appeal by DePhillips in the Williams suit, appellate docket number 2017-1426 is dismissed. The appeal in the DePhillips suit, appellate docket number 2017-1425, is also dismissed, as BCBS is not named as a party and thus, there is not a judgment against BCBS in that suit. Therefore, we address only the appeal by Williams in the Williams suit, appellate docket number 2017-1426.

LAW AND DISCUSSION

The trial court sustained BCBS's exception raising the objection of prescription "under the terms of the [LAOGB Plan]." In this appeal, both parties focus on the contractual prescriptive period contained in the contract between Williams and his employer's health care plan, the LAOGB Plan. Both parties argue that there is no contract between BCBS and Williams, and that BCBS provided administrative claims services under the terms of the contract between Williams and LAOGB. BCBS further argues that this court should consider that Williams has no cause of action as BCBS has no contract with Williams. However, as noted above, the parties did not introduce any evidence at the hearing on the exception. Although BCBS attached exhibits to its memorandum, those exhibits were not introduced into evidence. Unless properly offered and introduced into evidence, documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Atain Speciality Ins. Co. v. Premier Performance Marine, LLC, 2015-1128 (La. App. 1 Cir. 4/8/16), 193 So.3d 187, 190. We further note that appellate briefs are not part of the record, and an appellate court has no authority to consider on appeal facts referred to in argument of counsel, in such briefs, or in exhibits containing matters that are not in the pleadings or evidence, and as such, are outside the record. Niemann v. Crosby Dev. Co., L.L.C., 2011-1337 (La. App. 1 Cir. 5/3/12), 92 So.3d 1039, 1045. Thus, we are precluded from considering the affidavit of Ms. Shepherd and the LAOGB Plan between Williams and LAOGB, as well as the argument presented in the parties' appellate briefs regarding the relationships between Williams, LAOGB, and BCBS.

At the hearing on the exception raising the objection of prescription, evidence may be introduced to support or controvert the exception. See La. C.C.P. art. 931. In the absence of evidence, an objection of prescription must be decided upon facts alleged in the petition with all allegations accepted as true. Cichirillo v. Avondale Industries, Inc., 2004-2894 (La. 11/29/05), 917 So.2d 424, 428. If no evidence is introduced to support or controvert the exception, the manifest error standard of review does not apply, and the appellate court's role is to determine whether the trial court's ruling was legally correct. Harris v. Breaud, 2017-0421 (La. App. 1 Cir. 2/27/18), 243 So.3d 572, 578-79

The character of an action disclosed in the pleadings determines the prescriptive period applicable to that action. Starns v. Emmons, 538 So.2d 275, 277 (La. 1989). In Emigh v. W. Calcasieu Cameron Hosp., 2013-2985 (La. 7/1/14), 145 So.3d 369, a case that is substantially similar to the present case, a putative class action was filed against West Calcasieu Cameron Hospital for alleged violations of the Billing Act, and was expanded to name several health insurance issuers as defendants. The claim under review by the Louisiana Supreme Court in Emigh was asserted by a plaintiff against her insurer, BCBS. BCBS filed a peremptory exception raising the objection of no cause of action, which was overruled by the trial court. The Louisiana Court of Appeal, Third Circuit, denied writs, and BCBS filed a writ application with the Louisiana Supreme Court. The Louisiana Supreme Court affirmed the trial court's denial of BCBS's exception raising the objection of no cause of action, finding that the plaintiff stated a cause of action against BCBS under La. C.C. art. 1977, which provides:

The object of a contract may be that a third person will incur an obligation or render a performance.
The party who promised that obligation or performance is liable for damages if the third person does not bind himself or does not perform.

The Louisiana Supreme Court explained that, "[t]his civilian concept known as promesse deporte-fort contemplates a contract in which the object is that a third party will undertake a certain obligation; in the event of non-performance of that obligation by the third party, the promisor becomes liable to the promisee." Emigh, 145 So.3d at 374. The Louisiana Supreme Court found that, "an object of the contract [between the plaintiff and BCBS] is the entitlement to discounted health care costs. The actual billing of this promised, discounted charge is performed by a third party. Thus, [BCBS] is promising that a third party will render a performance, which fits squarely within the context of La. [C.C.] art. 1977" Id. at 375.

In his vaguely worded petition, Williams alleged a relationship with BCBS based on its administration of an insurance policy under which he was insured. He alleged that BCBS was a "Health insurance issuer" within the meaning of La. R.S. 22:1872(19), which provides health insurance coverage to individuals in Louisiana. Williams further alleged that BCBS made promises that contracted health care providers, such as North Oaks, would file claims with the health insurance issuer and/or would accept the contracted reimbursement rate from the health insurance issuer, and/or would collect from the enrollee or insured only any deductible, co-payment, co-insurance or other amounts as set forth in the policy of insurance as the insured's liability, all of which was an object of the contract between the insured and insurer. He alleged that BCBS was liable for North Oaks' failure to perform as promised by BCBS. Williams further alleged that he relied to his detriment on BCBS's promises that North Oaks would perform as detailed above, and that such reliance was justified given that Williams entered into a binding, written contract with BCBS and other health insurance issuers, wherein BCBS and other health insurance issuers and third party administrators promised that, in return for payment of premiums, health care providers such as North Oaks would collect from Williams only the deductibles, co-payments, coinsurance, and other amounts which were Williams's liability under his policy of insurance. We find that Williams's petition alleged a relationship with BCBS based on the administrative services it provided pursuant to an insurance policy under which he was insured, and, accepting as true all facts pled in the petition, Williams has stated a cause of action against BCBS under La. C.C. art. 1977. See Emigh, 145 So.3d at 374-75. We further find that BCBS's liability as alleged was based on a breach of contract theory for which La. C.C. art. 3499 provides a ten year prescriptive period. Williams's suit was filed on May 8, 2015, for treatment received in connection with a motor vehicle accident on February 26, 201L Accordingly, we reverse the judgment of the trial court and overrule BCBS's exception of prescription.

CONCLUSION

For the foregoing reasons, we dismiss the appeal in appellate docket number 2017-1425. We also dismiss the appeal by Matthew DePhillips in appellate docket number 2017-1426. We reverse the trial court's July 3, 2017 judgment sustaining BCBS's peremptory exception raising the objection of prescription and dismissing Earnest Williams's claims against BCBS with prejudice. We overrule the exception, and remand this matter for further proceedings. Costs of these appeals are assessed one-half against Matthew DePhillips and Earnest Williams, and one-half against Blue Cross Blue Shield of Louisiana.

APPEAL DISMISSED IN APPELLATE DOCKET NUMBER 2017-1425; APPEAL BY MATTHEW DEPHILLIPS IN APPELLATE DOCKET NUMBER 2017-1426 DISMISSED; JUDGMENT OF JULY 3, 2017 REVERSED; CASE REMANDED.

Holdridge, J., concurs

      The applicable prescriptive period for alleged violations of the Billing Act by a health care provider is the central issue of a related consolidated appeal decided this same date, and is not before the court in this case. See Matthew A. DePhillips Individually, And On Behalf Of All Others Similarly Situated v. Hospital Service District No. 1 of Tangipahoa Parish, Doing Business As North Oaks Medical Center/North Oaks Health System, 2017-1423 c/w 2017-1424 (La. App. 1 Cir. 7/18/18), 255 So.3d 1, 2018 WL 3471400.

      Louisiana Revised Statutes 22:1872(19) defines "Health insurance issuer" as:
      [A]ny entity that offers health insurance coverage through a policy or certificate of insurance subject to state law that regulates the business of insurance. For purposes of this Subpart, a "health insurance issuer" shall include a health maintenance organization, as defined and licensed pursuant to Subpart I of Part I of Chapter 2 of this Title, nonfederal government plans subject to the provisions of Subpart B of this Part, and the Office of Group Benefits.

      We expressly offer no opinion as to whether the evidence will support a finding that a contractual relationship existed between Williams and BCBS.