author: EDWARDS, JUDGE PRO TEMPORE, J.

text:
    CYPRESS FINANCIAL RECOVERIES, LLC v. Glenda SCHOUEST
    NO. 17-CA-605
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, CYPRESS FINANCIAL RECOVERIES, LLC, Gregory M. Eaton, Kevin J. Gillie, Michael L. Lancaster
    COUNSEL FOR DEFENDANT/APPELLEE, GLENDA SCHOUEST, William G. Cherbonnier, Jr.
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Marion F. Edwards, Judge Pro Tempore
   EDWARDS, JUDGE PRO TEMPORE, J.

Appellant, Cypress Financial Recoveries, L.L.C., appeals a trial court ruling which granted appellee's motion to dismiss, without prejudice, in an action to collect on an open account. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

On November 18, 2013, appellant, Cypress Financial Recoveries, L.L.C. ("Cypress"), filed a petition in Second Parish Court for the Parish of Jefferson which alleged that appellee/defendant, Glenda Schouest ("Schouest"), had defaulted on a loan made to her by Care Credit, and that it owned the right to collect the principal sum owed by Schouest, together with interest and attorney's fees. While the record does not show that Schouest filed an answer, she did file a response to Cypress' interrogatories on July 18, 2016. On the same date, Schouest also filed a peremptory exception of no right of action that asserted Cypress was not the owner of the account at issue and, therefore, had no standing to collect the alleged debt. Following a September 16, 2016 hearing, the trial court granted Schouest's exception and allowed Cypress 15 days to amend the petition, which it did on September 29, 2016. Cypress did not seek supervisory review of the trial court's judgment. Schouest filed a second peremptory exception of no right of action on November 18, 2016, which reiterated the objections set forth in her original exception. On January 6, 2017, the trial court granted Schouest's exception and gave Cypress 30 days to amend the petition in order to establish ownership of the account as well as the accuracy of the amount alleged to be owed by Schouest. Again, Cypress did not seek supervisory review of the trial court's judgment. Cypress untimely filed its second amended petition on February 16, 2017 and, on March 24, 2017, Schouest filed a motion to dismiss the case, in which she asserted that Cypress' original and amending petitions did not establish that it was the owner of the account at issue or that it had a right to bring the action. On June 15, 2017, the trial court granted Schouest's motion. In an order dated June 22, 2017, the court rendered a judgment that formally granted Schouest's motion to dismiss based upon a finding that Cypress failed "to submit documentation establishing their Right of Action." On July 26, 2017, the trial court amended the June 22, 2017 judgment to clarify that the dismissal was without prejudice.

This timely appeal follows.

ISSUE RAISED ON APPEAL

On appeal, Cypress claims that the trial court erred in granting Schouest's motion to dismiss based upon the finding that it had no right of action.

LAW AND ANALYSIS

"[A]n action can only be brought by a person having a real and actual interest which he asserts." La. C.C.P. art. 681. The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. La. C.C.P. art. 927(A)(6). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Babineaux v. Pernie-Bailey Drilling Co. , 261 La. 1080, 262 So.2d 328 (1972). The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Comm'n , 94-2015 (La. 11/30/94), 646 So.2d 885, 888. The determination of whether a plaintiff has a right of action is a question of law, which the appellate court reviews de novo . Johnson v. Motiva Enters., LLC , 13-305 (La. App. 5 Cir. 10/30/13), 128 So.3d 483, 488.

In Louisiana, suits to collect credit card debit are treated as suits on an open account. CACV of Colorado, LLC v. Spiehler , 09-151 (La. App. 3 Cir. 6/3/09), 11 So.3d 673, 675. A party who demands performance of an obligation must prove the existence of the obligation. La. C.C. art. 1831. In order to sustain an action on an open account, a creditor bears the burden of proving the demand by a preponderance of the evidence. Ochsner Clinic Found. v. Arguello , 11-326 (La. App. 5 Cir. 11/29/11), 80 So.3d 622, 625. In order to prove an open account, the creditor must first prove the account by showing that it was kept in the course of business and by introducing supporting testimony regarding its accuracy. Id.

In addressing similar issues, this Court has previously considered various factors to determine whether a creditor has provided sufficient evidence to establish a prima facie right to collect on an unpaid debt. For example, in Midland Funding v. Urrutia , 13-459 (La. App. 5 Cir. 12/19/13), 131 So.3d 474, 477-479, we found that a creditor's assignee in its suit to collect on a debtor's unpaid credit card had established its right to do so by producing the following documentation: an affidavit of correctness of account certifying the balance and terms sued upon, as well as verifying the credit terms and the itemized statement of the account; multiple documents described as a bill of sale of multiple defaulted credit card accounts from the original lender to the collection agency; supporting documentation, including an affidavit by an employee of counsel for the debt collector, establishing that the law office received the case from the debt collector, the account number of the defaulted credit card and the last four digits of the defendant's Social Security number. A second affidavit from a "legal specialist" at the debt collection agency verified that the plaintiff was the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to the defendant's account (identified by number), and that she had access to and had reviewed the records pertaining to the account and was authorized to make the affidavit on the plaintiff's behalf. A third affidavit, from an employee of the original creditor, stated that the defendant's account was originally opened by the company, and specifically identified the account by name, account number, opening date and the last four digits of defendant's social security number. The same affidavit attested that the records of the original creditor indicate that the account was sold to the debt collector, and that the original creditor retained no ownership interest in the account after it was sold. Attached thereto was data printed by the debt collector from electronic records provided by the original debtor, pursuant to the Bill of Sale/Assignment of Accounts, in connection with the sale of accounts from the original creditor to the debt collector. The data was information relating specifically to the defendant's account and contained his name, address, birthdate, redacted social security number and account number of the credit card in question. Also included in the documentation were three bills of sale of accounts from the original creditor to debt collector, and the Purchase and Sale agreement between the original creditor to the debt collector.

In the instant case, Cypress' original petition, in relevant part, offered the bare assertion that it is "the owner of all rights, title and interest in this receivable issued through GEC Retail Bank." Shouest challenged Cypress' claim in her exception of no right of action. In response to Schouest's motion, Cypress attached four exhibits to its memorandum in opposition, which were identified as follows: "Exhibit A-CareCredit/GECRB Monthly Statement dated 10/10/2012"; "Exhibit B-Bill of Sale titled "Cypress PSCC MP-May 2013"; "Exhibit C-Affidavit of Sale of Account by Original Creditor, signed May 23, 2013"; and "Exhibit D-Affidavit of Correctness of Account, signed December 7, 2013." At the September 16, 2016 hearing on Schouest's exception, in which no evidence was introduced and no witnesses testified, the trial court stated on the record its finding that Cypress' petition did not show that Cypress had a legal right to attempt to collect the debt. Rather than dismiss the action, however, the trial court gave leave for Cypress to amend its petition within 15 days.

In its first supplemental and amending petition, filed on September 29, 2016, Cypress added the following paragraphs: (31)

I.
The defendant, GLENDA SCHOUEST (SSN XXX-XX-XXXX), individual account holder, domiciled in BARATARIA, LA, knowingly, intentionally, and purposefully opened and agreed to all contract terms and conditions applicable to a CARE CREDIT account issued through GEC RETAIL BANK bearing account number# 6019183000123729.
II.
After opening the Account, Defendant knowingly, intentionally, and purposefully made payments on the Account, the last of which was a payment of $400.00 on or about March 7, 2012.
III.
The subject account was charged-off on October 10, 2012, in the amount of $6,496.88.
IV.
On or about May 19, 2013, the subject account and all rights, titles, and interests thereto was sold to Plaintiff, Cypress Financial Recoveries, LLC.
V.
The defendant has defaulted on the Account, owing a balance of $6,496.88, which remains due and owing after amicable demand by Plaintiff on or about September 9, 2013.
VI.
In accordance with the foregoing, Plaintiff, Cypress Financial Recoveries, LLC, is the owner of all rights, title, and interest in the Account.
VII.
In accordance with the foregoing, the defendant is justly indebted unto Plaintiff in the full sum of $6,496.88, together with additional interest of 4% from date of judgment, attorney's fees in the amount of 25% of the total of both principal and interest, and for all costs of these proceedings.

On November 18, 2016, Schouest filed her second peremptory exception of no right of action, which reiterated her objections set forth in her original exception. The record indicates in a minute entry that, following a hearing on January 6, 2017, the trial court granted Schouest's exception and, in an order dated January 12, 2017, gave Cypress 30 days "in which to amend their Pleadings in order to establish that they are the owners of the account, that is the subject matter of this litigation, and produce statements sufficient to establish the correct amount being sued upon."

On February 16, 2017, Cypress untimely filed its second amending petition, which asserted, in pertinent part, that Schouest had initially opened the account at issue "with CARE CREDIT, issued through GE CAPITAL RETAIL BANK," and that "[o]n or about May 23, 2013 GE CAPITAL RETAIL BANK sold the Account to Cypress Financial Recoveries, LLC." Cypress concluded in its amended petition that, "[i]n accordance with the foregoing, the petitioner is the owner of all rights, title and interest in the Account." On February 16, 2017, Cypress filed several documents into the record, identified as "Exhibits." These documents consisted of the same exhibits attached to Cypress' memorandum in opposition to Schouest's peremptory exception of no right of action, with the addition of an affidavit from Synchrony Bank employee, Felecia Rodriguez. It is unclear whether these documents were filed as attachments to Cypress' second amended petition. As noted above, these documents were never introduced into evidence.

On March 24, 2017, Schouest filed a motion to dismiss case, in which she asserted that Cypress' original and amending petitions did not establish that it was the owner of the account at issue or that it had a right to bring the action.

In our de novo review of the record for the instant case, we first note that no evidence of an original credit agreement between Schouest and CARE CREDIT appears in the record. Further, Schouest denied Cypress' request for admission of fact that she "applied for and were issued a(n) CARE CREDIT account bearing # *****00123729." There was no witness testimony presented by Cypress at either of Schouest's peremptory exceptions, or in her motion to dismiss, which established the existence of a credit agreement or the terms of such an agreement.

While it remains unclear whether Cypress' attachments to its second amending petition were considered by the trial court, nevertheless we find that, upon a review of these attachments, Cypress has failed to conclusively demonstrate its ownership of the account. To wit:

Exhibit "A," attached to Cypress' opposition memo to no right of action, which appears to be a copy of a monthly statement dated October 10, 2012, and which contains no type of verification as to its authenticity, does not sufficiently demonstrate proof of an original obligation.

Exhibit "B", which purports to be a bill of sale from GE Capital to Cypress dated June 4, 2013, generically refers to the sale of "Receivables" to Cypress, without any specific reference to Schouest's account.

Exhibit "C", titled "Affidavit of Sale Of Account By Original Creditor," similarly provides no evidence of an obligation by Schouest, let alone a specific transfer of interest in that account to Cypress.

Exhibit "D", an "Affidavit of Correctness of Account" executed by Charles Parrino, the "VP" of an unidentified entity in New Jersey, claims to have personal knowledge of Schouest's account, but that, in and of itself, does not cure any of the defects previously identified. Further, Parrino's affidavit claims that Cypress acquired ownership of Schouest's credit account from "GEC RETAIL BANK." This information differs from Cypress' own documentation, which variously refers to the original creditor as "Care Credit/GECRB," and "GE MONEY" in Exhibit "A"; "General Electric Capital Corporation," GE Capital Retail Bank," "GEMB Lending, Inc.," "Monogram Credit Services, L.L.C.," "RFS Holding, L.L.C," and GEM Holding, L.L.C.," collectively identified as the "Seller," in Exhibit "B"; as well as the affidavit if Felicia Rodriguez that identifies the original creditors as "GE Capital Retail Bank" and "Synchrony Bank."

Exhibit "E," a collection letter from counsel for Cypress to Schouest, likewise does not satisfy the lack of proof pertaining to the original obligation and proof that Cypress acquired ownership of the obligation.

The affidavit of Felicia Rodriguez states that GE Capital Bank sold the account at issue to Cypress, and that the amount owed, as "reflected in the system" is $6496.88. No documentation of an original credit agreement is attached to the affidavit. The affidavit itself also lacks the sufficient specificity seen in Urrutia , supra , in that it does not confirm Schouest's identity by reference to a social security number or similar means. A date that the account was opened is also not given. Finally, Rodriguez does not attest that the original creditor retained no ownership interest in the account after it was sold.

CONCLUSION

Based upon our de novo review of the record before us, and on the showing made, we find no error in the trial court's action of granting Schouest's motion to dismiss on the basis that Cypress had failed to establish the origin and ownership of the alleged debt. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED

CHAISSON, J., DISSENTS WITH REASONS

For the following reasons, I respectfully dissent from the majority opinion. As correctly noted by the majority, "[t]he exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. La. C.C.P. art. 927(A)(6). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit." However, the exception of no right of action does not raise the question of the plaintiff's ability to prevail on the merits nor the question of whether the defendant may have a valid defense. Hill v. Jindal , 14-1757, 14-1484 (La. App. 1 Cir. 6/17/15), 175 So.3d 988, 1000, writ denied , 15-1394 (La. 10/23/15), 179 So.3d 600. This objection is a threshold device to terminate a suit brought by one who has no interest in judicially enforcing the right asserted. Roger Boc, L.L.C. v. Weigel , 99-570 (La. App. 3 Cir. 11/3/99), 744 So.2d 731, 734. The party raising a peremptory exception bears the burden of proof. Shorter v. Akins , 11-1553 (La. App. 3 Cir. 4/4/12), 86 So.3d 883, 885, writ denied , 12-1363 (La. 10/8/12), 98 So.3d 853 ; Falcon v. Town of Berwick , 03-1861 (La. App. 1 Cir. 6/25/04), 885 So.2d 1222, 1224.

In her exception of no right of action, Ms. Schouest asserted, as the basis of her exception, that Cypress "cannot affirmatively prove by competent, admissible evidence that it is the sole and legal owner of, and has valid legal title to, the credit card account which it seeks to collect from Defendant in this proceeding." Without admitting the existence of an account, or naming an "Original Creditor," Ms. Schouest further averred that Cypress must produce evidence of "the complete chain of title of the account ... beginning with the Original Creditor and terminating with [Cypress]." On the same date that Ms. Schouest filed her exception of no right of action, she also filed a response to Cypress' request for admissions in which she denied that she "applied for and [was] issued a(n) CARE CREDIT account bearing # *****00123729."

Cypress filed an opposition to the exception of no right of action with various attachments, including one which purports to be a May 2013 Bill of Sale of a pool of bundled accounts from various GE entities to Cypress. This document was presumably attached in an attempt to establish the chain of title of this account between GEC Retail Bank and Cypress. Ms. Schouest filed a reply memorandum in which she correctly pointed out that the Bill of Sale attached to Cypress' opposition did not specifically identify any account in the name of Ms. Schouest that was being sold.

At the hearing on the exception, rather than introducing any evidence in support of her exception, Ms. Schouest relied upon the bare assertions made in her written exception. Likewise, Cypress introduced no evidence at the hearing on the exception, particularly failing to introduce the exhibits that were attached to its opposition. After the hearing, the trial court appropriately sustained Ms. Schouest's exception and gave Cypress fifteen days to amend its petition.

Cypress timely filed its first amended petition, in which it clearly alleged that Ms. Schouest opened a "CARE CREDIT" account, issued through "GEC RETAIL BANK," which account was later sold to Cypress. Cypress attached no exhibits to this amended petition. In response, Ms. Schouest filed a second exception of no right of action in which she merely reiterated the assertions made in her original exception of no right of action. Ms. Schouest at this time did not acknowledge the existence of any original debt and made no assertion that "CARE CREDIT" was a separate legal entity from "GEC RETAIL BANK," or that she had actually opened an account with "CARE CREDIT," not "GEC RETAIL BANK." After a hearing on Ms. Schouest's second exception of no right of action, the trial court again sustained the exception and gave Cypress thirty days to amend its petition.

In response, Cypress filed a second amended petition in which it again alleged that Ms. Schouest opened a "CARE CREDIT" account, issued through "GE CAPITAL RETAIL BANK," which account was later sold to Cypress. Attached to this petition were the affidavits and exhibits that Cypress had previously attached to its opposition to Ms. Schouest's first exception of no right of action, and the affidavit of Felicia Rodriguez, an Affidavit Documentation Specialist with Synchrony Bank (formerly known as GE Capital Retail Bank), establishing that Ms. Schouest's account # *****00123729, initially issued through GE Capital Retail Bank (i.e., the original creditor), was sold to Cypress on May 19, 2013.

In response to Cypress' second amended petition, Ms. Schouest filed a motion to dismiss the litigation on the basis that "[n]o petition filed by Plaintiff to date has established it as the owner of the account or the right party to bring this action. Nor has Plaintiff submitted any documentation to support its assertion that it is the owner of the subject account or the correct amount being sued upon." More specifically, Ms. Schouest argued in her written motion:

The only new document Plaintiff has produced to support that it is the owner of the subject account is an Affidavit of Sale by an individual who identifies herself as Felicia Rodriguez, an Affidavit Documentation Specialist at Synchrony Bank. However, the affiant does not describe exactly what is an 'Affidavit Documentation Specialist' nor does she describe her roles and responsibilities with Synchrony Bank. The Affiant does not state that she is familiar with the business records of Synchrony Bank but only that she has reviewed the information regarding Defendant's account, which means she is not familiar with the record. She does not identify any records that she has supposedly reviewed. She does not explain how the business records are maintained or the record-keeping procedures of Synchrony Bank and therefore cannot attest to the actual amount owed."

Again, in her motion to dismiss, Ms. Schouest did not acknowledge the existence of any original debt and made no assertion that "CARE CREDIT" was a separate legal entity from "GE CAPITAL RETAIL BANK," or that she had actually opened an account with "CARE CREDIT," not "GE CAPITAL RETAIL BANK."

At the hearing on the motion to dismiss, counsel for Ms. Schouest first raises the issue that Cypress' second amended petition was filed five days after the court-imposed deadline, and that "would be the easy resolution of this case;" however, without giving the trial court an opportunity to dismiss the matter on that basis if it so chose, counsel continued straight into his argument on the merits of the motion to dismiss. There is no indication in the record that the trial court dismissed the matter on the basis of the untimeliness of the second amended petition, or that it failed to consider the attachments to the petition as they related to the exception of no right of action. To the contrary, at the hearing the trial court indicated that the prior judgment ordering the amendment within thirty days did not contain language indicating that the matter would be dismissed if the amended petition was not timely filed. Additionally, the trial court's written judgment specifically indicates that the matter was dismissed on the basis that Cypress "failed to submit documentation establishing their Right of Action." I therefore agree with the majority's decision to consider the attached exhibits as they relate to the exception of no right of action. However, for the following reasons, I disagree with the majority's conclusion that Cypress "failed to establish the origin and ownership of the alleged debt."

I find particularly troubling that at the hearing on the motion to dismiss, counsel for Ms. Schouest, for the first time, acknowledges that Ms. Schouest did in fact incur a debt of approximately $6,000 with "CARE CREDIT," a statement which directly contradicts Ms. Schouest's prior denial of any such debt in her responses to Cypress' request for admissions. Also troubling in light of her prior denial is the fact that she now, for the first time, attempts to draw a distinction between "CARE CREDIT" and "GE CAPITAL RETAIL BANK," suggesting that they are two separate entities and that there is no evidence of the transfer of Ms. Schouest's account from "CARE CREDIT" to " GE CAPITAL RETAIL BANK." This specific assertion was not raised as a basis for Ms. Schouest's exception of no right of action.

In order to carry her initial burden on her exception of no right of action, Ms. Schouest relied solely upon her denial of the existence of any account (a position which she now contradicts by admitting the existence of an account with "CARE CREDIT") and her assertion that Cypress cannot produce a complete chain of title from the original (unnamed) creditor to Cypress showing that it is the owner of the account. In response, Cypress introduced evidence that the original creditor, "GE CAPITAL RETAIL BANK" (as consistently alleged in its petitions), transferred Ms. Schouest's account to Cypress. Ms. Schouest has introduced absolutely no evidence to counter Cypress' evidence.

In evaluating the weight of the evidence submitted by Cypress, the majority opinion compares the evidence submitted in this case to the evidence submitted in the cases of Midland Funding v. Urrutia , 13-459 (La. App. 5 Cir. 12/19/13), 131 So.3d 474 and Citibank S.D., N.A. v. Stanford , 42,191 (La. App. 2 Cir. 5/9/07), 956 So.2d 756. I note that both Midland and Citibank came before the court on motions for summary judgment in which the plaintiffs were seeking final judgments on the merits. I respectfully disagree that the weight of the evidence necessary to overcome an exception of no right of action is comparable to the weight of the evidence necessary to prevail on the merits, either by summary judgment or trial on the merits. The exception of no right of action merely addresses the threshold question of whether the plaintiff has an interest in judicially enforcing the right asserted. It does not raise the question of the plaintiff's ability to prevail on the merits nor the question of whether the defendant may have a valid defense. Consequently, I do not share the majority's concern that Cypress has produced no evidence to controvert Ms. Schouest's denial of Cypress' request for admission of fact that she "applied for and [was] issued a(n) CARE CREDIT account bearing # *****00123729," a position which Ms. Schouest has apparently now abandoned. Nor do I share the majority's concern that the original terms of the obligation are "particularly significant, as Cypress is claiming an entitlement to attorney's fees and interest," as those matters are not relevant to an exception of no right of action. Additionally, although I agree with the majority that the May 2013 Bill of Sale of a pool of bundled accounts from various GE entities to Cypress was clearly deficient in establishing Cypress' chain of title to Ms. Schouest's particular account, I find that Ms. Rodriguez's affidavit clearly establishes that "GE CAPITAL RETAIL BANK" is the original creditor of Ms. Schouest's particular account and also establishes the chain of title to Cypress. Ownership of the account, by proof of the identity of the original creditor and the chain of title to Cypress was the basis of Ms. Schouest's exception of no right of action. I do not find that any of the issues raised by Ms. Schouest regarding Ms. Rodriguez's affidavit, as quoted above, have any merit, as they call for proof of matters far beyond what is necessary to overcome an exception of no right of action. Rather than provide any evidence to counter Ms. Rodriguez's affidavit, Ms. Schouest merely relied upon her bare assertion that Cypress could not prove ownership of the account.

For the foregoing reasons, I respectfully disagree with the majority opinion that Cypress has failed to establish the origin and ownership of the debt. In my opinion, Ms. Schouest, having provided no evidence to contradict Ms. Rodriguez's affidavit, has clearly failed to carry her burden of proof on her exception of no right of action. I therefore would reverse the decision of the trial court and remand the matter for further proceedings.

      No evidence was introduced, and no witnesses testified at the hearing.

      No evidence was introduced and no witnesses testified at the hearing.

      La. R.S. § 9:2781(D) provides that an open account:
      [i]ncludes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. "Open account" shall include debts incurred for professional services, including but not limited to legal and medical services."

      Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. Denoux v. Vessel Management Services, Inc. , 07-2143 (La. 5/21/08), 983 So.2d 84, 88. Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Id. As noted by the First Circuit in Tranum v. Hebert , 581 So.2d 1023 (La. App. 1st Cir. 1991), writ denied , 584 So.2d 1169 (La. 1991), this specifically applies to memoranda (briefs), with attached exhibits, which are filed in the trial court, but not filed in evidence.

      At the hearing, counsel for Cypress "provided" Schouest's counsel and the trial court a copy of an affidavit executed by Felicia Rodriguez on September 12, 2016, which had not originally been included as an attachment to its memorandum. Schouest's counsel objected to the affidavit on several grounds, including that it was hearsay and not properly notarized. The record suggests that the trial court found the affidavit to be hearsay, but Cypress does not raise this issue on appeal.

      A transcript of the January 6, 2017 hearing has not been made a part of the record before us.

      Schouest objected to the untimeliness of Cypress' amending petition at the June 15, 2017 hearing on her motion to dismiss. It is unclear from the record whether the trial court considered the exhibits attached to the untimely amending petition.

      The original terms are particularly significant, as Cypress is claiming an entitlement to attorney's fees and interest.

      In the context of a summary judgment on an open account, in Citibank S.D., N.A. v. Stanford , 42,191 (La. App. 2 Cir. 05/09/07), 956 So.2d 756, 758, the Second Circuit held that copies of monthly statements, without more, were not sufficient evidence to establish a debt:
      A document that is not an affidavit, that is not sworn to, or that is not certified or attached to an affidavit, has no evidentiary value on a motion for summary judgment. Wells v. Red River Parish Police Jury , 39,445 (La. App. 2d Cir. 03/02/05), 895 So.2d 676 ; Boland v. West Feliciana Parish Police Jury , 03-1297 (La. App. 1st Cir. 06/25/04), 878 So.2d 808, writ denied , 04-2286 (La. 11/24/04), 888 So.2d 231.

      The appellate record does not include a copy of the transcript of this hearing; however, it does not appear from the trial court's written judgment that it considered any exhibits introduced by either party at this hearing. I therefore presume that none were admitted. Furthermore, I note that the trial court erroneously included in its judgment a requirement that Cypress "produce statements sufficient to establish the correct amount being sued upon." That is an issue relevant to resolution of the merits of the lawsuit, but is not an issue relevant to an exception of no right of action.

      Cypress referred to this petition as a "First Supplemental and Amending Petition," despite the fact that it had already filed a previous first amended petition. Additionally, it appears that Cypress corrected the official name of the original creditor by spelling out the word "CAPITAL" in its name.

      Although the majority maintains that it is unclear whether these documents were filed as attachments to Cypress' second amended petition, I note that the Clerk of Court's time stamp for filing the second amended petition and all of the attachments indicate that both the petition and all of the attachments were filed on the same date and time, to-wit: February 16, 2017 at 10:30 a.m. As attachments to the petition itself, both the trial court and this Court are able to consider them as they relate to the exception of no right of action just as we can consider any of the allegations of the petition itself.

      As previously noted, the issue regarding the "correct amount being sued upon" has absolutely no relevance to an exception of no right of action.

      The majority opinion indicates that "it remains unclear whether Cypress' attachments to its second amending petition were considered by the trial court;" however, the trial court stated at the hearing on the motion to dismiss, just prior to ruling, that "I've also gone through the affidavit."

      I find this to be a last minute red herring raised by Ms. Schouest, as the statement of account and affidavits submitted clearly show that "CARE CREDIT" is a type of account issued through "GE CAPITAL RETAIL BANK." Therefore, any suit by "GE CAPITAL RETAIL BANK" (or its assignee) is a suit much like American Express might sue a debtor on their Green Card, Gold Card or Platinum Card.

      Although counsel for Ms. Schouest indicated at the hearing on the motion to dismiss that Ms. Schouest was present and ready to testify regarding her now-acknowledged account with "CARE CREDIT" and that the "correct party in interest is CareCredit," Ms. Schouest was not called as a witness.


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    Succession of Thelma Carrick SCHEXNAYDER, through its Duly Constituted Executor, Elwood L. Schexnayder, Elwood L. Schexnayder, Individually, Douglas B. Schexnayder, Nancy Schexnayder v. Bruce SCHEXNAYDER and Mark Schexnayder
    NO. 17-CA-435
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, SUCCESSION OF THELMA CARRICK SCHEXNAYDER, Steven F. Griffith, Sr., Destrehan.
    COUNSEL FOR DEFENDANT/APPELLANT, BRUCE SCHEXNAYDER AND MARK SCHEXNAYDER, Mark D. Plaisance
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

In this appeal, appellants/defendants, Bruce Schexnayder and Mark Schexnayder, challenge a district court judgment nullifying a land donation based on fraud and awarding damages and attorney fees to appellees/plaintiffs, Succession of Thelma Carrick Schexnayder, through its executor, Elwood Schexnayder, Elwood Schexnayder, individually and Nancy Schexnayder. Having considered the evidence, testimony, pleadings and all other parts of the record, we affirm the trial court's judgment for the foregoing reasons.

Factual Background

This appeal involves the Succession of Thelma Carrick Schexnayder (hereinafter referred to as "Thelma" or the "mother"), who was married to Elwood L. Schexnayder (hereinafter referred to as "Elwood" or the father") (also collectively referred to the "parents") until her death. They were married for sixty-eight (68) years, and had five children, Douglas, Nancy, Bruce, Mark and Kevin. During their marriage, Thelma managed all of the couple's financial affairs, and was very careful in her financial decision making. In 1996, both Thelma and Elwood executed wills leaving their entire estate to the other upon death.

During Thelma's life, her mother donated to her several acres of land in Virginia. Beginning in 2008, Thelma's son, Mark, began asking his mother to donate the Virginia property to him. In 2009 and 2010, Thelma donated 2.0 acres and 4.4 acres, respectively, to Mark. A few years before Thelma's death, Bruce began urging his parents, Thelma and Elwood, to seek estate planning advice, but they did not heed his advice.

In late April 2012, Thelma suffered a debilitating stroke, after which she required extensive rehabilitation. She lived in a rehabilitation center for about a month, and during this time, she executed a power of attorney to Elwood dated May 6, 2012, authorizing him to manage her personal and medical affairs and to donate property. According to appellants, because of their mother's health issues, they were routinely urging their parents to consider divesture options so that their mother would be eligible for Medicare and/or Medicaid. Several emails between Thelma and Elwood's sons, Bruce, Mark and Douglas, indicate that they were determined to convince their parents to divest themselves of the Virginia property and to obtain the Virginia property for themselves before their mother died.

In an email dated May 30, 2012 from Mark to Douglas, Mark summarized his conversation with Elwood about finances and stated as follows:

I did tell daddy we need to look at his [sic ] all his finances and see how much $$ they have and he agreed. I agree with you that he seems pliable over the phone but reality (in person) may be different. The POA for him was also discussed. I strongly made the point that momma is currently not capable of making good decisions, so we must go around her and get things in motion and/or done when possible. No more farting around. Stay tuned for more regarding the VA land as I discussed doing something with you and Bruce in that area. It may involve some $$ from you/Bruce for a survey, but well worth it. Just keep your powder dry for now.
My plan is to fly down in mid-July for a week session of getting stuff squared away and perhaps helping Nancy move in. I basically gave him six weeks notice to get his mind right. * * * I also called Nancy to warm her up to things and make herself available during that week.
Things are not in real motion yet, but the table is being set, so have patience, grasshopper.

In another email that same day to Bruce, Mark states "[t]he big issue may be getting them to transfer title to nearly all their property to a trust, but that is what has to be done to get the divestment ball rolling. I think daddy will go along, but momma would flatly refuse. I talked [to] daddy at length today and I think daddy realizes that momma cannot make rational decisions at this point, and he is willing to take some action without her approval."

On July 2, 2012, Mark arrived in Louisiana from Virginia with a prepared Deed of Gift, effecting a donation of all the remaining Virginia property owned by Thelma to him. Approximately two weeks before coming to Louisiana and before Thelma or Elwood had agreed to the donation, Mark signed the act of donation and had it notarized in Virginia. Mark prepared the act of donation for Thelma's signature but because of her condition, she was unable to sign. Mark testified that he put Thelma's name on the document because it was his understanding that the name of the property owner should be on the deed regardless of whether the owner signed it or the power of attorney signed it. He believed that if the power of attorney signed for her, a copy of the power of attorney should be attached to the deed.

Early on July 16, 2012, the morning the Deed of Gift was executed, Mark emailed Bruce that he could "have just about whatever piece you want, but it will be a lot easier if it is a deal between us." Later that morning, Mark phoned Bruce and told him to come to their parents' home as soon as possible because they had something to do, which was have Elwood sign the Deed of Gift, donating the remaining Virginia property to Mark, as well as two other documents.

That afternoon, at his parents' house, Bruce presented the three documents to Elwood in the following order: (1) a Health Care Power of Attorney; (2) a Deed of Gift, Division, Boundary Line Adjustment and Merger Agreement by Thelma to Thomas L. Mountcastle; and (3) the Deed of Gift and Merger Agreement at issue here. The testimony is inconsistent as to the conversations that occurred during the signing and who was present. The testimony of Elwood, Bruce and Mark confirms that no one informed Elwood as to what he was signing when he signed the Deed of Gift, effecting the donation of the Virginia property to Mark. Bruce testified that the donation deed was folded over to the signature page when he gave Elwood the document to sign, thereby concealing the document title. During the signing, Elwood told Bruce he trusted him to do the right thing.

On May 10, 2013, appellees/plaintiffs (the Succession, Elwood and Nancy) filed suit against appellants/defendants (Bruce and Mark), seeking revocation of the donation deed and damages caused be defendants' fraudulent actions. This matter proceeded to a bench trial on October 29-30, 2015. The hearing to determine attorney's fees and costs was held on December 5, 2016. The trial judge rendered judgment in favor of appellees/plaintiffs as follows: (1) annulling the Deed of Gift and Merger Agreement and decreeing Thelma as the sole lawful owner of the Virginia property; (2) awarding appellees $5,000 for damages Thelma suffered due to the fraud; and (3) awarding appellees reasonable attorneys' fees, which were determined to be $100,000. This suspensive appeal followed.

Assignments of Error

Appellants assert the following assignments of error: (1) the trial court erred in finding appellants fraudulently induced Elwood to donate the Virginia property to Mark when he had the opportunity to read the act of donation; (2) the trial court committed manifest error in finding appellants committed fraud and awarding damages; (3) the trial court erred in failing to disqualify appellees' counsel because he allegedly advised the defendant, Bruce, on the property transfer to Mark; (4) the trial court erred in denying appellants' motion for directed verdict; and (5) the trial court erred in awarding $5,000 in damages when the transfer occurred two months before Thelma's death. Appellees/Cross-appellants assert that the trial court should have awarded mental anguish and distress damages to Elwood for the fraud perpetrated against him; and that the trial court should have awarded more than $5,000 in damages to Thelma.

Law and Analysis

According to La. C.C. art. 1948, "[c]onsent may be vitiated by error, fraud, or duress." La. C.C. art. 1953 provides that "[f]raud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction." While an exception to this provides that fraud does not vitiate consent if the truth could have been ascertained "without difficulty, inconvenience, or special skill," this exception does not apply where there is a relationship of confidence. A relationship of confidence exists when a person has reasonably induced the other party to rely on his or her assertions or representations. La. C.C. art. 1954. Where a party has charged as fraudulent an action involving close relatives, either by blood or marriage, the courts have deemed the relationship, in itself, a highly suspicious circumstance. Sanders Family, LLC No. 1 v. Sanders, 46,476 (La. App. 2 Cir. 12/14/11), 82 So.3d 434, citing Perot v. Perot, 46,431 (La. App. 2 Cir. 8/10/11), 71 So.3d 1123 ; George A. Broas Co. v. Hibernia Homestead & Sav. Ass'n., 134 So.2d 356 (La. App. 4 Cir. 1961). A trial court's determination of whether fraud occurred is a question of fact and is subject to the manifest error standard of review on appeal. Miralda v. Gonzalez, 14-888 (La. App. 4 Cir. 2/04/15), 160 So.3d 998.

Assignments of Error One, Two and Four

Appellants assert the trial court committed manifest error in finding that they fraudulently induced their father, Elwood, to donate Thelma's property to Mark because the record demonstrates that Elwood did not read the document he signed. Considering the record before us, we find the trial court was not manifestly erroneous in finding that Mark and Bruce fraudulently induced their father to execute the deed donating Thelma's property to Mark.

As determined by the trial court, the record contains a series of emails between primarily Bruce and Mark that, "when taken as a whole, show a clear and convincing pattern of wanting to obtain the Virginia property as soon as possible and prior to their mother's death by any means necessary." In a May 30, 2012 email to Bruce and Doug, Mark states: (1) "I agree with you that he [Elwood] seems pliable over the phone but reality (in person) may be different"; (2) "I strongly made the point that momma is currently not capable of making good decisions, so we must go around her and get things in motion and/or done when possible"; (3) "Stay tuned for more regarding the VA land as I discussed doing something with you and Bruce in that area;" and (4) "Things are not in real motion yet, but the table is being set, so have patience, grasshopper." Regardless of whether these statements are read as part of the entire email or separately, they support the trial court's conclusion that appellants were deceitful in obtaining the Virginia property from their parents.

Another May 30, 2012 email, this one from Bruce to Mark, supports the trial court's finding that appellants sought to obtain the property notwithstanding their parents' wishes. Bruce states "[t]he big issue may be getting them to transfer title to nearly all their property to a trust, but that is what has to be done to get the divestment ball rolling. I think daddy will go along, but momma would certainly flatly refuse." Also, as noted in his May 30, 2012 email, Mark traveled to Louisiana in July 2012 and brought with him a prepared Deed of Gift effecting a donation by his mother of all remaining Virginia property to him. Mark signed the Deed of Gift and had it notarized in Virginia. While under Tweedel v. Brasseaux, 433 So.2d 133 (La. 1983) it may be procedurally correct for Mark to sign the Deed of Gift accepting the donation in advance, his signature thereon before either parent had agreed to donate the Virginia property to him suggests that he intended to obtain the property regardless of their wishes. In Tweedel, the donors instructed the donees to sign in advance, and the acceptance was signed only one day before the donors signed the donation. Here, Mark prepared, signed and notarized the Deed of Gift when the donors had not agreed to the donation and had no knowledge of the donation.

Appellants' discussions as to the division of the property knowing their parents had not agreed to the donation further supports the trial court's finding that appellants planned to obtain the property regardless of their parents' wishes. At least some of these discussions occurred on the morning of the donation, July 16, 2012. Early that morning, Mark wrote to Bruce that he could "have just about whatever piece you want, but it will be a lot easier if it is a deal between us." Mark also stated, "[i]f daddy wants you to get something, I will abide by his wishes, so do not worry about that. I am more worried about how to handle Doug and giving him a piece." Later that morning, Mark phoned Bruce and told him to come to his parents' home as soon as possible because they had "something to do," i.e. , to obtain Elwood's signature on the Deed of Gift donating all the Virginia property to Mark, as well as two other documents. Bruce, who notarized the donation and is also an attorney, did not discuss the contents of the donation with Elwood when he presented the donation to him to sign. Mark did not discuss the donation with Elwood, despite that he was staying at his house. Indeed, while there is contradicting testimony as to who was present and what was said, the record shows that no one advised Elwood of the title of the donation document or that he was transferring the entirety of Thelma's Virginia property to Mark alone.

Appellants also contend that Bruce had no duty to tell Elwood what he was signing as he was only "acting as a Notary," and not as Elwood's attorney. We agree with the trial court's finding that this explanation is not "after-the-fact credible." Bruce advised another attorney that he could handle most of his father's estate planning needs. In addition, emails from Bruce to Mark show that Bruce did extensive research regarding possible options for their parents' estate planning, and regularly gave his father advice on how to manage his financial affairs. In a September 12, 2012 email, Mark tells Bruce "[a]s distasteful as you find it, you have to use emotions against emotions. Daddy is 90% emotion and 10% logic/thought. Tell him you are bound by attorney-client privilege, so whatever you hear must stay secret if he wants it to."

Appellants further contend that a donation cannot be fraudulent if the donee had the means, opportunity and ability to review the donation document before signing it, but does not. They rely on La. C.C. art. 1954, which provides that a party's failure to ascertain the truth does not preclude vitiation of consent if the parties are in a relationship of confidence with each other. The trial court concluded that because there was a relationship of confidence between Elwood and his two sons, Mark and Bruce, Elwood's failure to read the document is not fatal to the succession's fraud claim. We agree with this conclusion.

The record shows that appellants fostered a relationship of confidence with their father by regularly giving him advice, researching financial planning for him and repeated urgings to set up estate planning. This relationship was confirmed by Elwood's statement, after signing the documents, that he trusted them to do what was right. Despite this, appellants did not inform their father that one of the documents being presented was a donation of all the Virginia property to Mark, or that Mark, Bruce and Doug had already agreed how they would divide it up among themselves. Mark and Bruce took advantage of their father knowing that he could be easily influenced by whomever happens to be standing there at the time." If the brothers intended to be veracious with their father, they would have advised him as to what he was signing. Appellants choose to have their father sign the document without him knowing its effect or content.

In light of the foregoing, we find no error in the trial court's conclusion.

Assignment of Error Three

Appellants assert that the trial court erred in refusing to disqualify appellees' counsel, Steven Griffith, Sr. According to appellants' motion to disqualify, they contacted Mr. Griffith and discussed the proposed transfer of the Virginia property. Based on the record, we find no error in the trial court's denial of appellants' motion to disqualify Mr. Griffith as appellees' counsel.

The Rules of Professional Conduct provide that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest." There is a concurrent conflict of interest if "the representation of one client will be directly adverse to another client;" or "there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer." La. St. Bar Ass'n Art. XVI 1.7.

Appellants filed a motion to disqualify plaintiffs' counsel on July 25, 2013, but did not have it set if for a hearing until more than two years later, right before trial, on September 22, 2015. This suggests that appellants did not have a strong objection to Mr. Griffith's representation of appellees' or a substantial need to obtain testimony from him during discovery. In addition, the record indicates that appellants only briefly consulted with Mr. Griffith regarding the transfer of the Virginia property. In addition, appellants presented no persuasive evidence in support of their assertion, including no affidavits or testimony. There is nothing in the record which shows that a conflict of interest requiring the disqualification of appellees' counsel existed. Further, the delay in having the court address the motion, as well as moving to have it heard right before trial, suggests that appellants were not genuinely concerned about the existence of a conflict.

Considering the foregoing, we find that Mr. Griffith's representation of appellees did not involve a conflict of interest. This assignment of error lacks merit.

Assignment of Error Five/Appellee's Cross-Appeal

Appellants assert that the $5,000 award of general damages to Thelma is not warranted. The abuse of discretion standard of review applies to an appellate court's review of a factfinder's general damage award. Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70.

La. C.C. art. 1958 provides that "[t]he party against whom rescission is granted because of fraud is liable for damages and attorney fees." Based on the record, we cannot say the trial court abused its discretion in awarding $5,000 for Thelma's damages. There was testimony that Thelma was extremely upset about the donation. The record reflects that the property had been donated to Thelma by her mother, had been in the family for many years and obviously had deep sentimental value to Thelma. We do not find the trial court's award to be excessive.

In a cross-appeal, appellees claim that the trial court should have awarded damages to Elwood. On this claim, we also cannot say the trial court abused its discretion. At trial, there was limited testimony regarding damages. In addition, while Mark and Bruce took actions contrary to their parents' wishes and without their consent, it does not appear that they were attempting to leave them penniless. We therefore decline to award any additional damages.

Conclusion

For the reasons discussed above, we affirm the trial court's judgment.

AFFIRMED


text:
    MAN CHING HO v. Jimmy W. NEE
    NO. 17-CA-495
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, MAN CHING HO, Andrew T. Lilly
    COUNSEL FOR DEFENDANT/APPELLANT, JIMMY W. NEE, In Proper Person
    Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore
   WINDHORST, J.

Appellant, Jimmy Nee, appeals the trial court's August 26, 2015 judgments signed February 24, 2016 and June 3, 2016. For the reasons stated herein, the August 26, 2015 judgment signed February 24, 2016 is affirmed in part, reversed in part, and vacated in part. We further vacate the August 26, 2015 judgment signed June 3, 2016. This matter is remanded for further proceedings.

Facts and Procedural History

Mr. Nee and appellee, Man Ching Ho, were married in 1980 and physically separated on May 9, 1997. One child was born of the marriage in 1981. Ms. Ho filed a petition for divorce on May 27, 1997. Mr. Nee filed an answer and reconventional demand. The trial court granted a judgment of divorce in favor of Ms. Ho on August 23, 1999.

On March 23, 2012, Mr. Nee filed a petition for partition of community property and the parties filed their respective sworn detailed descriptive lists. Mr. Nee filed an objection to Ms. Ho's sworn detailed descriptive list regarding whether property was separate or community, the value of property, and items not listed.

After numerous continuances, the parties met with the domestic hearing officer on September 19, 2014 regarding the partition of community property and Mr. Nee's motion to set this case for trial filed August 6, 2014. At the hearing, the domestic hearing officer recommended that 1) Ms. Ho was entitled to receive reimbursement for ½ of all the mortgage payments which she made on or after May 27, 1997, on the property at 2721 David Dr., Metairie, Louisiana; 2) the property at 3008 19th Street, Metairie, Louisiana was the separate property of Ms. Ho because Mr. Nee signed a "Double Declaration" at the time of the act of sale dated January 31, 1991, declaring the same to be the separate property of Ms. Ho; and 3) the property at 3920 Belleview Street, Metairie, Louisiana was the separate property of Ms. Ho because Mr. Nee signed a "Double Declaration" at the time of the act of sale dated April 24, 1989, declaring the same to be the separate property of Ms. Ho. The parties stipulated that this matter would require an evidentiary hearing with an interpreter present and the matter was set for trial. Mr. Nee did not file an objection to the domestic hearing officer's September 19, 2014 recommendations.

On February 3, 2015, Mr. Nee filed a petition to revoke authentic act and a pleading entitled "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property." In the petition to revoke, Mr. Nee contended that the acts he executed on April 24, 1989 and January 31, 1991 were invalid because he did not have an interpreter present, and the alleged witnesses and notary were not present when he signed the document. In his other pleading, he sought a temporary restraining order (TRO) enjoining Ms. Ho from alienating, encumbering, donating, wasting, concealing, transferring, or destroying any community property, and a rule to show cause why a preliminary and permanent injunction should not be granted. The TRO was granted and the matter was set February 10, 2015 for a hearing on Mr. Nee's pleading entitled "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property."

The parties again appeared before the domestic hearing officer on February 10, 2015 regarding the partition of community property. Because the translator was not present, the parties agreed that the partition of community property be continued until March 12, 2015. The parties also agreed that Multi-Language Solutions of New Orleans be appointed translator in these proceedings, and the cost to be paid by the community.

On March 12, 2015, the parties appeared once again before the domestic hearing officer regarding the partition of community property and "injunctions."

Ling Shu was present as the interpreter for Mr. Nee. The parties stipulated that the immovable property located at 2721 David Drive, Metairie, was community property, and the domestic hearing officer stated that his recommendations were "contained and expressed in red in the attached exhibit A." Mr. Nee's and Ms. Ho's sworn detailed descriptive lists were attached as Exhibit "A." On Mr. Nee's sworn detailed descriptive list, the domestic hearing officer recommended, and the parties agreed, that the following items were community property: 1) the family home located at 2721 David Drive; 2) the 1993 Ford van; and 3) the 1996 Ford van. The domestic hearing officer also recommended that "Bonnie Nee's Personal Checking Account" was "not a community asset." The domestic hearing officer further recommended that the following assets and claims required a trial on the merits: 1) bank accounts, "existing on May 27, 1997," specifically, First National Bank of Commerce account # 2022-66796, First National Bank of Commerce account # 1104-61619, First National Bank account # 3009107774, and First National Bank of Commerce accounts # 6013-31087 and # 2022-66796; 2) the retail merchandise and jewelry stored at 3008 19th Street; and 3) "all money that Man Ching Ho sent out of the United States in a 3 year period." In a handwritten note on Exhibit "A" (Ms. Ho's Sworn Detailed Descriptive List), the domestic hearing officer recommended that payment of the mortgage for the family home located at 2721 David Drive was "to be demonstrated at trial." We note that the domestic hearing officer did not make a recommendation as to whether the family business, MC Trading, or the miscellaneous household items were separate or community property, although they were also listed on Mr. Nee's Sworn Detailed Descriptive List.

On March 19, 2015, Mr. Nee filed an objection to the domestic hearing officer's recommendation of March 12, 2015, relative to: "a prior stipulation of two (2) homes located at: 3920 Bellview [sic ] St., Metairie, La; and 3008 19th Street, Metairie, La. Both homes are community property, being that funds from the community regimine [sic ] purchased both houses."

On March 20, 2015, Mr. Nee filed a "Motion to Refix Hearing." Mr. Nee contended that a hearing on the partition of community property and injunction was set for March 12, 2015; however, the trial court did not address his petition to revoke and his pleading entitled "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property." The trial court granted Mr. Nee's motion and set his petition to revoke and his pleading entitled "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property" for March 31, 2015. On March 31, 2015, the parties did not appear and all matters were continued without date.

On June 26, 2015, Ms. Ho filed a motion to dismiss Mr. Nee's objection and an opposition to his objection. Ms. Ho argued that Mr. Nee's objection, filed on March 19, 2015, was untimely.

Mr. Nee's petition to partition community property, objection to domestic hearing officer's March 12, 2015 recommendation, and Mrs. Ho's claim for reimbursement were heard by the trial court on August 26, 2015. The trial court's August 26, 2015 judgment signed February 24, 2016, denied Mr. Nee's objection and maintained the domestic hearing officer's March 12, 2015 recommendations. The judgment decreed that Ms. Ho owned 100% of the former community home located 2721 David Drive, the former community 1993 Ford van, and the former community 1996 Ford van. The trial court found and decreed that Ms. Ho owed Mr. Nee $31,634.50 for his interest in the former community home and for the two vans. The trial court further found and decreed that Mr. Nee owed Ms. Ho a total of $78,918.27 for her reimbursement claims, and therefore, Mr. Nee owed Ms. Ho an equalizing payment of $47,283.77.

Mr. Nee filed a writ of mandamus seeking this Court to order the trial court to rule on his petition to revoke authentic act and his pleading entitled, "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property," which he filed in the trial court on February 3, 2015. This Court granted Mr. Nee's writ of mandamus and ordered the trial court to rule upon his pleadings, if it had not already ruled. Jimmy Nee v. 24th Judicial District Court, 16-206 (La. App. 5 Cir. 05/13/16) (unpublished writ disposition). Pursuant to this Court's order, the trial court entered another judgment with written reasons on June 3, 2016, which decreed that Mr. Nee's petition to revoke authentic act and his pleading captioned, "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property" had been ruled upon and denied at the August 26, 2015 hearing.

Mr. Nee filed this timely "Petition for Appeal" regarding the trial court's August 26, 2015 judgments signed February 24, 2016 and June 3, 2016.

Discussion

La. R.S. 9:2801 provides for the procedure for the judicial partition of community property and settlement of claims after dissolution of the marriage. The allocation of assets and liabilities provided in La. R.S. 9:2801 A(4) is as follows:

(4) The court shall then partition the community in accordance with the following rules:
(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.
(b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.
(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.
(d) In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.

A trial court has broad discretion in adjudicating issues raised by divorce and partition of the community regime. Goines v. Goines, 09-994 (La. App. 5 Cir. 03/09/11), 62 So.3d 193, 198, writ denied, 11-721 (La. 05/20/11), 63 So.3d 984. The trial court is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. Id. The trial court's allocation or assigning of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Id., citing Legaux-Barrow v. Barrow, 08-530 (La. App. 5 Cir. 01/27/09), 8 So.3d 87, writ not considered, 09-447 (La. 04/13/09), 5 So.3d 152.

An appellate court may not set aside a trial court's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Snider v. La. Med. Mut. Ins. Co., 14-1964 (La. 05/05/15), 169 So.3d 319, 323, rehearing denied, 14-1964 (La. 06/30/15), 2015 La. LEXIS 1501; Hoffman v. Jefferson Parish Hosp. Services Dist. No. 2, 11-776 (La. App. 5 Cir. 04/10/12), 87 So.3d 370, 372.

On appeal, Mr. Nee asserts the following assignments of error: 1) the trial court erred when it denied his objection to the domestic hearing officer's March 12, 2015 recommendations and maintained the domestic hearing officer's March 12, 2015 recommendations; 2) the trial court erred when it did not consider his sworn detailed descriptive list and only accepted Ms. Ho's sworn detailed descriptive list; 3) the trial court erred when it ordered Mr. Nee to pay Ms. Ho an equalizing payment of $47,283.77; and 4) the trial court no longer maintained jurisdiction over the case, once it granted Mr. Nee's motion for appeal.

First, we note that the only judgments appealed by Mr. Nee are the judgments rendered August 26, 2015, and signed February 24, 2016 and June 3, 2016. Because this Court's jurisdiction and the focus of our review is limited to those judgments, any issues raised by Mr. Nee relating to the houses located at 3920 Belleview Street and 3008 19th Street, in Metairie, Louisiana are not properly before this Court and will not be considered in this opinion. The domestic hearing officer's September 19, 2014 recommendation that the aforementioned houses were Ms. Ho's separate property was not objected to by Mr. Nee, and it became a final appealable judgment. La. R.S. 46:236.5. No appeal was taken by Mr. Nee and therefore, that ruling is final.

In his first assignment of error, Mr. Nee contends that the trial court erred when it denied Mr. Nee's objection to the domestic hearing officer's recommendations and maintained the domestic hearing officer's recommendations of March 12, 2015. Mr. Nee argues that the trial court previously granted his motion for an interpreter, however, no interpreter was present at the March 12, 2015 hearing. Mr. Nee contends that he stipulated, without an interpreter, to "something" at the March 12, 2015 hearing that he did not understand, and therefore, the "judgment should be null and void on its face."

Any party who disagrees with a judgment or ruling of a domestic hearing officer may file a written objection to the findings of fact or law of the domestic hearing officer within the time and manner established by court rule. La. R.S. 46:236.5. The trial court shall schedule a contradictory hearing where the trial court shall accept, reject, or modify in whole or in part the findings of the domestic hearing officer. Id. If the trial court in its discretion determines that additional information is needed, it may receive evidence at the hearing or remand the proceedings to the domestic hearing officer. Id.

At the time Mr. Nee filed his objection, Title IV, Rule 24.0 A(3)(e) 7 of the District Court Rules for the 24th Judicial District Court provided:

(e) A party shall have three (3) days from the receipt of the recommendation or order of the domestic hearing officer to file a written objection to said recommendation or order. Thereafter, the recommendation of the domestic hearing officer shall become the judgment of the court. The objecting party shall file a memorandum on the law and facts with the district court judge within five (5) working days of the date the objection is filed.

Mr. Nee's objection was filed March 19, 2015, more than three days from the domestic hearing officer's recommendation on March 12, 2015. Citing Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1985) and Shelton v. La. Dept. of Corrections, 96-0348 (La. App. 1 Cir. 02/14/97), 691 So.2d 159, Mr. Nee argues that the "mailbox rule" applies to an inmate's pleadings, and pleadings are deemed filed when turned over to prison officials for filing. Since his objection was given to prison officials on March 13, 2015, Mr. Nee contends his objection was timely.

Regardless of whether Mr. Nee's objection was timely, Mr. Nee did not object to any of the stipulations or recommendations made by the domestic hearing officer on March 12, 2015. Instead, Mr. Nee attempted to improperly object to the September 19, 2014 final judgment. Because an objection to the March 12, 2015 recommendations was not made, those recommendations were made the judgment of the court. La. R.S. 46:236.5. Therefore, we find the trial court did not err in denying Mr. Nee's objection to the domestic hearing officer's March 12, 2015 recommendations.

However, based on the unique circumstances of this case, we find that the portion of the August 26, 2015 judgment signed February 24, 2016, maintaining the March 12, 2015 recommendations must be affirmed in part and reversed in part. On March 12, 2015, the domestic hearing officer referenced several assets and claims, as previously stated herein, that required a trial on the merits and in which the trial court did not conduct such a trial. As a result, several alleged potential community assets and claims remain outstanding and not partitioned. Accordingly, we affirm in part the August 26, 2015 judgment signed February 24, 2016, in which the trial court maintained the domestic hearing officer's March 12, 2015 recommendations finding that the family home located at 2721 David Drive, the 1993 Ford van, and the 1996 Ford van were community property, and his recommendation that "Bonnie Nee's Personal Checking Account" was "not a community asset." However, the hearing officer noted on hearing officer conference Exhibit "A" that several claims had to be proven at trial on the merits, and consequently, he did not make a finding or recommendation on them. We therefore reverse in part, and remand for a trial on the merits, the August 26 judgment signed February 24, 2016, in which the trial court maintained the domestic hearing officer's March 12, 2015 recommendations concerning the following assets and claims that required a trial on the merits: 1) bank accounts, "if existing on May 27, 1997," specifically, First National Bank of Commerce account # 2022-66796, First National Bank of Commerce account # 1104-61619, First National Bank account # 3009107774, and First National Bank of Commerce accounts # 6013-31087 and # 2022-66796, 2) the retail merchandise and jewelry stored at 3008 19th Street, and 3) "all money that Man Ching Ho sent out of the United States in a 3 year period." We likewise remand all assets and claims related to the family business, MC Trading, and the miscellaneous household items for a trial on the merits.

In his second and third assignments of error, Mr. Nee contends that the trial court abused its discretion when it only accepted Ms. Ho's sworn descriptive list and concluded that Mr. Nee owed Ms. Ho an equalizing payment of $47,283.77.

Considering our finding, as previously stated herein, that the trial court erred in maintaining in part, the domestic hearing officer's March 12, 2015 recommendations, we find the trial court abused its discretion and committed manifest error in allocating community assets and liabilities as decreed in the August 26, 2015 judgment signed February 24, 2015. We further find that as a result of the trial court's decision not to conduct a trial on the merits on the domestic hearing officer's March 12, 2015 recommendations regarding alleged community property items listed on Mr. Nee's sworn detailed descriptive list, the trial court was manifestly erroneous in determining Ms. Ho's reimbursement claim and in ordering Mr. Nee to pay an equalizing payment, potentially without all of the necessary community assets and claims. Accordingly, we also vacate in part the August 26, 2015 judgment signed February 24, 2016, partitioning the community property regime, determining Ms. Ho's reimbursement claim, and ordering Mr. Nee to pay an equalizing payment and remand for further proceedings.

Because we are reversing in part and vacating in part the August 26, 2015 judgment signed February 24, 2016, we find the trial court was manifestly erroneous in denying Mr. Nee's petition to revoke authentic act and his pleading captioned "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property." Furthermore, despite the August 16, 2015 judgment signed June 3, 2016, stating that those pleadings had been previously ruled upon and denied, we find the record does not support this assertion. The record is unclear as to whether those pleadings were even set for hearing on August 26, 2015.

On February 3, 2015, Mr. Nee filed his petition to revoke authentic act and his pleading captioned "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property." The trial court set a hearing on February 10, 2015 on his pleading captioned "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property." His petition to revoke authentic act did not have an order for the trial court to set for a hearing date. The February 10, 2015 minute entry shows that Mr. Nee's pleading captioned "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property" was continued to March 12, 2015, with notice waived by all parties. On March 12, 2015, the trial court did not rule on Mr. Nee's pleading captioned "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property." On March 20, 2015, Mr. Nee filed a "Motion to Refix Hearing," contending that on March 12, 2015, the trial court did not rule on his petition to revoke authentic act and his pleading captioned "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property," even though the pleadings were both set for that day. The trial court ordered that those pleadings be set for March 31, 2015. It does not appear from the record that notice was issued to the parties regarding resetting Mr. Nee's pleadings for March 31, 2015. Pursuant to a review of the record, no one appeared on March 31, 2015 and all matters were continued without date. Because there is no evidence that Mr. Nee's petition to revoke authentic act and his pleading entitled "Clauses for Inclusion in Petition for Injunction against Alienation or Encumbrance of Community Property" were set for the August 26, 2015 hearing, we find the trial court was manifestly erroneous in denying Mr. Nee's pleadings in the judgment signed June 3, 2016. Therefore, we vacate the August 26, 2015 judgment signed June 3, 2016, and remand to the trial court for further proceedings.

Based on our above findings and rulings, we pretermit appellant's fourth assignment of error.

Conclusion :

For the reasons stated above, we affirm in part the August 26, 2015 judgment signed February 24, 2016, regarding the trial court's denial of Mr. Nee's March 12, 2015 objection and judgment maintaining the domestic hearing officer's recommendations that the family home located at 2721 David Drive, the 1993 Ford van, and the 1996 Ford van were community property, and that Bonnie Nee's personal checking account was not a community asset. We reverse in part, and remand for a trial on the merits, the August 26, 2015 judgment signed February 24, 2016, maintaining the domestic hearing officer's March 12, 2015 recommendations concerning the following assets and claims that required a trial on the merits: 1) bank accounts, "if existing on May 27, 1997," specifically, First National Bank of Commerce account # 2022-66796, First National Bank of Commerce account # 1104-61619, First National Bank account # 3009107774, and First National Bank of Commerce accounts # 6013-31087 and # 2022-66796; 2) the retail merchandise and jewelry stored at 3008 19th Street; 3) "all money that Man Ching Ho sent out of the United States in a 3 year period"; and 4) a determination as to whether the family business, MC Trading, or the miscellaneous household items were separate or community property, and their respective values, if any. We also vacate in part, the August 26, 2015 judgment signed February 24, 2016, partitioning the community property regime, determining Ms. Ho's reimbursement claim, and ordering Mr. Nee to pay an equalizing payment. We further vacate the August 26, 2015 judgment signed June 3, 2016. This matter is remanded for further proceedings consistent with this opinion.

FEBRUARY 24, 2016 JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND VACATED IN PART; JUNE 3, 2016 JUDGMENT VACATED; AND REMANDED

      Mr. Nee filed an answer on June 23, 1997, and an answer and reconventional demand on July 1, 1998.

      Mr. Nee filed his first sworn detailed descriptive list on May 10, 2013, and his supplemental and amending sworn detailed descriptive list with attachments on September 23, 2013. Ms. Ho filed her sworn detailed descriptive list with attachments on July 12, 2013.

      The notice of hearing indicates that the partition of community property and injunction were set on March 12, 2015. However, the domestic hearing officer's March 12, 2015 recommendation does not indicate that Mr. Nee's rule for an injunction was addressed.

      Mr. Nee stated he objected to the interim order of March 12, 2012, instead of 2015. We find that this was a typographical mistake on the part of Mr. Nee, who clearly meant to file an objection to the interim order by the domestic hearing officer on March 12, 2015, as stated in description of the objection and in his appellate brief.

      In his objection, Mr. Nee stated that he objected to the interim order in the following particulars:
      Because said properties were obtained by fraud, and was purchased with community funds. However, Mr. Jimmy Nee didn't have a [sic] interpreter present on February 10, 2015, like one was present on 3/12/15, therefore he didn't understand what he was stipulating to so such should be considered null and void.

      The minute entry does not specifically mention or continue without date Mr. Nee's motion to address his pleadings. It is unclear from the record when these pleadings were reset, or if they were reset for a later date.

      In Skipper v. Boothe, 08-1292 (La. 10/03/08), 991 So.2d 462, the Louisiana Supreme Court denied writs in a non-criminal proceeding without comment, but two dissenting judges noted that the reason for denial had been the untimeliness of the petitioner's filing, notwithstanding that the inmate petitioner had timely placed his application into the prison mailing system.

      Pursuant to La. C.C.P. art. 2164, this Court shall render any judgment which is just, legal, and proper upon the record on appeal.

      In his fourth assignment of error, appellant contends that the trial court was divested of jurisdiction after his "Petition for Appeal" was granted and therefore, any rulings or judgments granted after the motion for appeal were null and void.


author: CHAISSON, J.

text:
    AUCOIN-HART JEWELERS, INC. and Jewelers Mutual Insurance Company, as Subrogee of Aucoin-Hart Jewelers, Inc. v. METAIRIE SHOPPING CENTER, L.L.C., Metairie Properties, L.L.C., Liberty Mutual Insurance Company, BSD Construction, LLC, Landmark American Insurance Company, and Roof Technologies, Inc.
    NO. 18-CA-36
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2018
    COUNSEL FOR DEFENDANT/APPELLANT, METAIRIE SHOPPING CENTER, LLC, Richard G. Duplantier, Jr., Blake W. Bourgeois, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, ROOF TECHNOLOGIES, INC., Gerald A. Melchiode, James J. Reeves, II
    Panel composed of Judges Robert A. Chaisson, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore
   CHAISSON, J.

In this case arising out of an alleged breach of contract, Metairie Shopping Center, LLC ("MSC"), appeals a final judgment confirming an arbitration award rendered in favor of Roof Technologies, Inc., ("Roof Tech"). The only assignment of error MSC raises on appeal involves an interlocutory ruling of the trial court rendered prior to the commencement of the arbitration proceedings. In that ruling, the trial court denied a peremptory exception of no right of action filed by MSC. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On or about May 15, 2015, heavy rains caused water intrusion and extensive damage to retail premises at the Metairie Shopping Center, which is owned by MSC.

On April 5, 2016, Aucoin-Hart, a lessee of the retail premises, filed a petition for damages against MSC, Metairie Properties, LLC, Liberty Mutual Insurance Company, BSD Construction, LLC, Landmark American Insurance Company, and Roof Tech. According to allegations set forth in the petition, per addendum to the lease agreement between Aucoin-Hart and MSC, MSC had agreed to replace the roof over the leased premises prior to the May 15, 2015 heavy rains. Roof Tech was named as a defendant because, at the time of the incident, Roof Tech had been hired by MSC to repair certain portions of the roof at the shopping center.

On June 1, 2016, Roof Tech filed an answer to Aucoin-Hart's petition for damages, as well as a cross-claim against MSC in which Roof Tech alleged that it had entered into a contractual agreement with MSC on March 24, 2015, to repair portions of the roof at the shopping center. Roof Tech also alleged that on September 21, 2015, MSC rescinded their contract for the roofing work without cause. Pursuant to the terms of the contract, Roof Tech sought damages for costs incurred and lost profits in the amount of $74,218. Included with their cross-claim is an "AIA Document A101 Standard Form Agreement" signed by representatives of both Roof Tech and MSC, as well as a September 21, 2015 letter from MSC purportedly rescinding the offer to have Roof Tech complete the roofing work.

MSC filed a peremptory exception of no right of action in which it contended that Roof Tech has no claim against MSC for breach of contract because a contract never existed between MSC and Roof Tech. Roof Tech contended that rather than a contract, there was a series of proposals that never resulted in an agreement between the parties. At the same time, MSC also filed a dilatory exception of prematurity in which they argued that, should the trial court find that a contract existed between the parties, then the mandatory arbitration clause requires that the trial court dismiss Roof Tech's cross-claim pursuant to La. C.C.P. art. 933. In their opposition to these exceptions, Roof Tech filed a motion to stay the proceedings pending arbitration in accordance with La. R.S. 9:4202.

Following a hearing on the exceptions, during which no evidence was introduced, the trial court rendered judgment overruling the exception of no right of action, sustaining the exception of prematurity, and staying the cross-claim of Roof Tech pending arbitration. MSC did not seek review of this judgment at that time.

The parties proceeded to arbitration. MSC filed in the arbitration a motion to dismiss Roof Tech's claim on the basis that there was no contractual agreement between MSC and Roof Tech. The arbitrator denied the motion, finding that a valid and enforceable contract existed between the parties. Following a hearing, the arbitrator found in favor of Roof Tech and awarded a lump sum of $59,340 as reasonable overhead and profit to be paid by MSC.

Roof Tech filed a motion to confirm the arbitration award pursuant to La. R.S. 9:4214. MSC opposed the motion to confirm the arbitration award, although it did not seek to have the arbitration award vacated on any of the grounds enumerated in La. R.S. 9:4210, or on the grounds that no contract existed between Roof Tech and MSC. Rather, MSC argued that the arbitrator had acted with "manifest disregard of the law" in making his award because Roof Tech did not provide evidence of damages from the breach of contract, an essential element of the claim. Following a hearing on the matter at which time the parties introduced various documents into evidence, the trial court granted the motion to confirm and entered a judgment in favor of Roof Tech against MSC.

MSC filed a suspensive appeal of the judgment of the trial court confirming the arbitrator's award. As its sole assignment of error, MSC argues that the trial court, in its ruling on the exception of no right of action, erred in finding that a valid, enforceable contract existed between MSC and Roof Tech.

DISCUSSION

Motion to Dismiss

This Court first addresses the motion to dismiss filed by Roof Tech in its appellate brief in which it argued that, because MSC only seeks review of the trial court's previous interlocutory ruling, but not the final judgment confirming the arbitration award, this Court does not have jurisdiction over this appeal pursuant to this Court's reasoning in Palmisano v. Nauman-Anderson , 17-511 (La. App. 5 Cir. 12/27/17), 236 So.3d 1275. In that case, this Court dismissed for lack of jurisdiction an appeal filed by a defendant who took a devolutive appeal from a trial court judgment denying her Motion to Enforce a Settlement Agreement on the basis that it was an interlocutory judgment rather than a final one. The case before this Court is factually distinguishable because MSC has clearly taken a suspensive appeal from the trial court's final judgment confirming the arbitration award. Under the Louisiana Binding Arbitration Law, an appeal may be taken from a judgment entered upon an arbitration award as from a judgment in an action. La. R.S. 9:4215.

MSC seeks to attack the final judgment by limiting its argument to the absence of a contract between the parties, which was the basis of its exception of no right of action. This Court has stated, "[w]hen an unrestricted appeal is taken from a final judgment, the appellant is entitled to review of all adverse interlocutory rulings prejudicial to him or her, in addition to review of the final judgment. The failure to file a writ application seeking review of an interlocutory judgment does not waive a party's right to appellate review of that judgment upon appeal of a final judgment in the case." Branch v. Young , 13-686 (La. App. 5 Cir. 2/26/14), 136 So.3d 343, 350. We find that MSC's appeal is within this Court's jurisdiction, and, accordingly, we deny Roof Tech's motion to dismiss this appeal.

Exception of No Right of Action

The peremptory exception of no right of action functions as a test of whether the plaintiff has a real and actual interest in the action. La. C.C.P. art. 927. The determination of whether a plaintiff has a right of action is a question of law, which the appellate court reviews de novo . Khoobehi Props., LLC v. Baronne Dev. No. 2, L.L.C. , 16-506 (La. App. 5 Cir. 3/29/17), 216 So.3d 287, 296. In examining an exception of no right of action, a court focuses on whether a plaintiff belongs to a particular class of persons to whom the law grants the cause of action asserted in the suit, and the court assumes that the petition states a valid cause of action. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com'n , 94-2015 (La. 11/30/94), 646 So.2d 885. Evidence supporting or controverting an exception of no right of action is admissible. La. C.C.P. art. 931. However, in the absence of evidence to the contrary, the averments of fact in the pleadings will be taken as true. Denoux v. Vessel Mgmt. Servs. , 07-2143 (La. 5/21/08), 983 So.2d 84, 88 ; State v. AstraZeneca AB , 16-1073 (La. App. 1 Cir. 4/11/18), 249 So.3d 38, 2018 WL 1755535. Determination of whether a plaintiff has a right of action is a question of law. Id.

While the record shows that both parties attached various documents to their memorandum in support of and in opposition to the exceptions, there is no indication in either the minute entries or the transcript of the proceedings that either party properly introduced evidence at the trial on the peremptory exception of no right of action pursuant to La. R.S. 13:3723. Documents attached to memoranda do not constitute evidence and cannot be considered such on appeal. Jackson v. United Servs. Auto. Ass'n Cas. Ins. Co. , 08-333 (La. App. 5 Cir. 10/28/08), 1 So.3d 512, 515.

In its petition, Roof Tech makes the following allegations: on March 24, 2015, Roof Tech and MSC entered into a Standard Form Agreement for roofing repairs at Metairie Shopping Center for the sum of $303,985; on September 21, 2015, MSC rescinded their offer to Roof Tech to complete the referenced roofing work at Metairie Shopping Center; pursuant to the clause contained in the contract which allows for termination at Owner's convenience and without cause, the Contractor is entitled to payment for work executed and costs incurred, including reasonable overhead and profit on the work not executed; MSC refused to compensate Roof Tech or pay for lost overhead and profit; MSC's refusal to pay is a material breach of the contract between the parties; and, due to the breach of contract, MSC is indebted to Roof Tech in the amount of $74,218.

Roof Tech's petition clearly articulates a claim for breach of contract, a cause of action long recognized under Louisiana law. Taking the facts as set forth in the petition as true, as this Court must in the absence of evidence properly introduced at the hearing on the exception, Roof Tech, as a party to the contractual agreement, is clearly within the class of persons the law recognizes as having a right to bring a claim for breach of contract. Therefore, we affirm the decision of the trial court denying MSC's exception of no right of action and the judgment confirming the arbitration award.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court.

AFFIRMED

      American Institute of Architects.

      In their memorandum in support of the exceptions, MSC attached exhibits that included various Roof Tech proposals and a copy of the AIA Agreement containing the arbitration clause.

      Roof Tech attached to its memorandum in opposition to MSC's exception multiple documents including: an affidavit from Roof Tech's project manager, Larry Lopez, stating that MSC had accepted Roof Tech's Proposal # 4 for repair of the roof, a copy of Proposal # 4, a copy of the signed AIA Agreement containing the arbitration clause, and an affidavit from Jerry Householder, a civil engineer and licensed contractor, stating that, in his opinion, MSC and Roof Tech had entered into an agreement when both parties signed Proposal # 4.

      While MSC raises only one assignment of error, it also argues that the enforcement of the contract at issue violates Louisiana public policy. We decline to consider this argument raised for the first time on appeal. FIE, LLC v. New Jax Condo Ass'n , 17-0423 (La. App. 4 Cir. 2/21/18), 241 So.3d 372, 2018 WL 992520.

      An exception exists with respect to summary judgment motions. La. C.C.P. art. 966(D)(2) permits a court to "consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made." See Wood Materials, LLC v. City of Harahan , 17-142 (La. App. 5 Cir. 10/2/17), 228 So.3d 293, 295 fn.2.