DocketNumber: NO. 18-CA-52
Citation Numbers: 259 So. 3d 516
Judges: Windhorst
Filed Date: 10/31/2018
Status: Precedential
Modified Date: 7/29/2022
*518Appellant/plaintiff, Tenisha Clark, seeks review of the trial court's October 30, 2017 judgment,
Facts and Procedural History
On July 6, 2016, while at defendant's store located at 300 W. Esplanade Avenue, in Kenner, plaintiff allegedly slipped and fell on a wet spot on the floor. As a result of this incident, plaintiff allegedly sustained injuries.
On July 4, 2017, plaintiff filed via facsimile a petition for damages with the Clerk of Court for the 24th Judicial District Court for the Parish of Jefferson. The Clerk of Court received the facsimile on July 5, 2017. Plaintiff's counsel prepared and mailed via the United States Postal Service, a certified mail package containing the original petition for damages and applicable fees to the Clerk of Court's address listed as P.O. Box 10, Gretna, Louisiana 70054. The certified mail package's return receipt requested card ("green card") was delivered to the P.O. Box address and was signed by Faye Simoneaux on July 13, 2017. On July 14, 2017, the Clerk of Court stamped as filed plaintiff's original petition for damages.
Defendant filed an answer and an exception of prescription. In its exception, defendant argued that plaintiff failed to satisfy the requirements of La. R.S. 13:850 B(1) because plaintiff's original copy was not delivered to and received by the Clerk of Court within seven days of the facsimile filing on July 4, 2017. Defendant contended that plaintiff's original copy was received on July 14, 2017, one day after the applicable seven-day time period, and plaintiff's claim was therefore prescribed.
In response to defendant's exception, plaintiff filed a memorandum in opposition arguing that she complied with La. R.S. 13:850 B because the original petition and applicable fees were mailed to the Clerk of Court via certified mail return receipt requested to the Clerk of Court's listed addressed and it was delivered to the Clerk of Court when the green card was signed by Ms. Simoneaux on July 13, 2017. In support of her opposition, plaintiff attached the affidavit of her counsel, wherein counsel stated that he mailed the original petition and applicable fees via certified mail, return receipt requested, to the address listed on all of the Clerk of Court's communications - Clerk of Court, P.O. Box 10, Gretna, Louisiana 70054 - and the green card was signed by Ms. Simoneaux on July 13, 2017. Plaintiff also attached a copy of the green card and a copy of the Clerk of Court's facsimile filing receipt. After a hearing, the trial court granted defendant's exception of prescription and dismissed plaintiff's claims against defendant. This appeal followed.
Procedural Issue
On March 16, 2018, plaintiff filed a motion to supplement the record on appeal by including an affidavit executed on March 13, 2018, by Ms. Simoneaux, the deputy clerk of court. Plaintiff argues that *519the affidavit and its attached exhibit are relevant and material to key issues of law before this Court and are required for a complete record.
On March 20, 2018, defendant filed an opposition to plaintiff's motion to supplement, arguing the trial court granted defendant's exception of prescription on October 30, 2017. Defendant contends that the affidavit sought to be included in the record was not previously introduced in the exception of prescription hearing in the trial court. Defendant argues that La. C.C.P. art. 2132 does not permit the introduction of new evidence after an appeal is filed in the appellate court. Further, defendant contends that La. C.C.P. art. 2164 precludes the appellate court from considering new evidence that is not part of the record on appeal. Defendant contends that Ms. Simoneaux's affidavit was not a part of the trial court record as it was executed on March 13, 2018, after the record was lodged for appeal with this Court. Therefore, defendant argues that this Court should deny plaintiff's motion to supplement the record on appeal. This Court referred the motion to the merits of this appeal.
An appellate court must render its judgment upon the record on appeal. La. C.C.P. art. 2164 ; In re Melancon, 05-1702 (La. 7/10/06),
Our review of the record establishes that the affidavit was not introduced into evidence or before the trial court at the hearing on the exception of prescription. Moreover, the affidavit itself shows that it was not executed until after judgment was rendered and the record was lodged for appeal with this Court. Accordingly, we deny plaintiff's motion to supplement the record.
Discussion
Delictual actions are subject to a liberative prescription of one year. La. C.C. art. 3492. Prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished; thus, of two possible constructions, that which favors maintaining, as opposed to barring, an action should be adopted. Carter v. Haygood, 04-0646 (La. 1/19/05),
La. R.S. 13:850, which provides the procedure for facsimile transmission of pleadings and filings in civil cases, was amended by 2016 La. Acts, No. 109, effective August 1, 2016, ordinary session, and now provides in part:
A. Any document in a civil action may be filed with the clerk of court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time the facsimile transmission is received by the clerk of court. No later than on the first business day after receiving a facsimile filing, the clerk of court shall transmit to the filing party via facsimile a confirmation of receipt and include a statement of the fees for the facsimile filing and filing of the original document. The facsimile filing fee and transmission fee are incurred upon receipt of the facsimile filing by the clerk of court and payable as provided in Subsection B of this Section. The facsimile filing shall have the same force and effect as filing the original document, if the filing party complies with Subsection B of this Section.
B. Within seven days , exclusive of legal holidays, after the clerk of court receives the facsimile filing, all of the following shall be delivered to the clerk of court:
(1) The original document identical to the facsimile filing in number of pages and in content of each page including any attachments, exhibits, and orders. A document not identical to the facsimile filing or which includes pages not included in the facsimile filing shall not be considered the original document.
(2) The fees for the facsimile filing and filing of the original document stated on the confirmation of receipt, if any.
(3) A transmission fee of five dollars.
C. If the filing party fails to comply with any of the requirements of Subsection B of this Section, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for other matters related to filings by facsimile transmission. (Emphasis added.)
In her first assignment of error, plaintiff contends under the ordinary and unambiguous meaning of the word "deliver," the trial court erred in equating the word "delivered" with the term "filed." Plaintiff argues that under the plain and ordinary meaning of the word "delivered," she satisfied the requirements of *521La. R.S. 13:850 because the certified mail green card establishes that the original petition was timely delivered to the Clerk of Court's listed address on July 13, 2017, within seven days, rendering the petition timely as required by La. R.S. 13:850 B.
Defendant contends plaintiff's claim is prescribed because, at the trial court level, it was undisputed that the last day to timely file plaintiff's original petition was Thursday, July 13, 2017. Specifically, defendant contends plaintiff's petition was not delivered to the Clerk of Court until Friday, July 14, 2017, as evidenced by the date and time stamped on the original petition, and thus, plaintiff's petition is prescribed on its face. Defendant argues that the green card indicates that the original petition was sent to an incorrect address, instead of 200 Derbigny Street, Gretna, Louisiana 70053, and was received by someone who picked up the mail at the P.O. Box on July 13, 2017. Defendant clams, therefore, that the trial court correctly granted the exception of prescription.
There is no current jurisprudence interpreting La. R.S. 13:850 B as amended by 2016 La. Acts, No. 109, ordinary session. Subsection B provides that "Within seven days , exclusive of legal holidays, after the clerk of court receives the facsimile filing," the appropriate documents "shall be delivered " to the clerk of court's office. The prior version of subsection B provided that a party "shall forward " the appropriate documents and fees to the clerk of court's office.
The only issue before this Court is whether plaintiff's original petition was "delivered" to the Clerk of Court within the seven days as required by the amended version of La. R.S. 13:850 B. Questions of law, such as the proper interpretation of a statute, are reviewed under the de novo standard of review. City of Gretna v. Morice, 14-301 (La. App. 12/30/14),
In evaluating the proper interpretation of La. R.S. 13:850 B, we considered the common and approved usage of the word "deliver." Black's Law Dictionary (6th Ed. 1990) defines "delivery" as "[t]he act by which the res or substance thereof is placed within the actual or constructive possession or control of another." The word "deliver" is defined in the Webster's II New Riverside Dictionary as "[t]o take to the intended recipient < deliver mail>."
Upon our de novo review, considering the clear and unambiguous meaning of the word "delivered" and the circumstances of this case, we find that plaintiff's original petition and applicable fees were "delivered" to the Clerk of Court when the green card for plaintiff's certified mail - addressed to the Clerk of Court at P.O. Box 10, Gretna, Louisiana 70054
In her second assignment of error, plaintiff contends alternatively, that the trial court erred in failing to count seven days from July 5, 2017, the date the faxed petition was "filed" into the record, instead of counting from July 4, 2017, the date the faxed petition was "received" by the Clerk of Court.
An appellate court must render its judgment upon the record on appeal.
*523La. C.C.P. art. 2164 ; Black,
Whether the trial court erred in declining to count seven days from July 5, 2017, instead of July 4, 2017, was never addressed as a contested issue before the trial court. Accordingly, this issue is not properly before this Court on appeal.
Conclusion
For the reasons stated herein, the trial court's October 30, 2017 judgment is hereby reversed and the matter is remanded for further proceedings.
REVERSED AND REMANDED
The trial court provided written reasons for judgment on November 14, 2017.
La. C.C.P. art. 2132 provides:
A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.
The prior version of La. R.S. 13:850 provided in part:
A. Any paper in a civil action may be filed with the court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed was the same force and effect as the original.
B. Within seven days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
(1) The original signed document.
(2) The applicable filing fee, if any.
(3) A transmission fee of five dollars.
C. If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for other matters related to filings by facsimile transmission. (Emphasis added.)
Webster's II New Riverside Dictionary Revised Edition (1996) at p. 185.
Webster's New Universal Unabridged Dictionary (1983) at p. 481.
At the hearing on the exception of prescription, the trial court accepted into evidence plaintiff's counsel's uncontradicted affidavit stating that he properly mailed the original petition and applicable fees to the Clerk of Court's address listed on all its communications as P.O. Box 10, Gretna, Louisiana 70054. Plaintiff also submitted into evidence the green card addressed to the Clerk of Court and signed by Faye Simoneaux. Defendant did not submit any evidence to dispute counsel's evidence that the P.O. Box 10 address was a correct address for the Clerk of Court, or that the applicable fees were not paid.