Opinion
NO. 2012 CA 0271
11-02-2012
JEFFERY P. DUHE v. EAST BATON ROUGE PARISH PLANNING AND ZONING COMMISSION
JEFFERY P. DUHE BATON ROUGE, LA IN PROPER PERSON PLAINTIFF-APPELLANT CYNTHIA C. BOHRER BATON ROUGE, LA ATTORNEY FOR DEFENDANT-APPELLEE CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE
NOT DESIGNATED FOR PUBLICATION
Appealed from the
19th Judicial District Court
in and for the Parish of East Baton Rouge, Louisiana
Trial Court No. 594746
Honorable Kay Bates, Judge
JEFFERY P. DUHE
BATON ROUGE, LA
IN PROPER PERSON
PLAINTIFF-APPELLANT
CYNTHIA C. BOHRER
BATON ROUGE, LA
ATTORNEY FOR
DEFENDANT-APPELLEE
CITY OF BATON
ROUGE/PARISH OF
EAST BATON ROUGE
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ .
PETTIGREW , J.
In this matter, plaintiff, Jeffery P. Duhe, filed an appeal to the 19th Judicial District Court from a decision of the East Baton Rouge Board of Adjustment ("Board") that had approved several variances related to the construction of a fence located on property in Spanish Town, a historic district in Baton Rouge, Louisiana. Defendant, City of Baton Rouge/Parish of East Baton Rouge ("the City/Parish"), filed an exception raising the objection of prescription pursuant to La. R.S. 33:4727(E)(1). The City/Parish argued that Mr. Duhe's petition, filed on September 15, 2010, was untimely as La. R.S. 33:4727(E)(1) requires that an appeal from a decision of the Board be filed within 30 days of the date the decision was filed in the Board's office, which in this case was July 20, 2010.
Louisiana Revised Statutes 33:4727(E)(1) provides as follows:
Any person or persons jointly or severally aggrieved by any decision by the board of adjustment of any officer, department, board, or bureau of the municipality, may present to the district court of the parish or city in which the property affected is located a petition, duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board. [Emphasis added.]
The matter proceeded to a hearing before the trial court, at which time the trial court made the following findings:
The court has carefully examined the record and considered the stipulation that has been submitted and hereby finds that the decision was filed in the Board's office on July 20, 2010, more than 30 days prior to September 15, 2010 and the date of the filing of the petition in the instant suit. Accordingly, the exception of prescription is hereby granted, and the matter is dismissed with prejudice at plaintiffs cost.A judgment in accordance with these findings was signed by the trial court on July 12, 2011. This appeal by Mr. Duhe followed.
DISCUSSION
On appeal, Mr. Duhe's argument seems to be that a prior appeal filed in this matter and assigned to a different section of the 19th Judicial District Court somehow extended the statutory time allowed for filing this appeal from the decision of the Board. However, we find no evidence of this prior appeal in the record before us. Notably, the document on which Mr. Duhe relies is attached to his appellate brief, but was apparently never filed in the trial court record or admitted into evidence at the hearing on the prescription exception. As an appellate court, we have no jurisdiction to review evidence that is not in the record on appeal, and we cannot receive new evidence. Niemann v. Crosby Development Co., LLC, 2011-1337, p. 7 (La. App. 1 Cir. 5/3/12), 92 So.3d 1039, 1044. We further note that appellate briefs are not part of the record on appeal, and an appellate court has no authority to consider on appeal facts referred to in appellate briefs, or in exhibits attached thereto, if those facts are not in the record on appeal. Capitol House Preservation Co., LLC. v. Perryman Consultants, Inc., 2001-2524, p. 9 (La. App. 1 Cir. 12/31/02), 836 So.2d 680, 685, writs denied, 2003-0323, 2003-0324 (La. 4/21/03), 841 So.2d 794, 795.
Generally, the party pleading prescription has the burden of proving the facts supporting the exception. Quality Gas Products, Inc. v. Bank One Corp., 2003-1859, p. 4 (La. App. 1 Cir. 6/25/04), 885 So.2d 1179, 1181. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Carter v. Haygood, 2004-0646, p. 9 (La. 1/19/05), 892 So.2d 1261, 1267. A trial court's findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review. Marin v. Exxon Mobil Corp., 2009-2368, p. 11 (La. 10/19/10), 48 So.3d 234, 244-245; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart, 617 So.2d at 882-883.
After a thorough review of the documentary evidence and applicable law, we find the record demonstrates that the decision of the trial court was not manifestly erroneous. We are satisfied that a reasonable factual basis exists for the trial court's finding that Mr. Duhe's suit was prescribed pursuant to La. R.S. 33:4727(E)(1). See Aucoin v. City of Mandeville, 552 So.2d 714, 716-717 (La. App. 1 Cir 1989). The trial court did not err in granting the City/Parish's exception raising the objection of prescription and dismissing Mr. Duhe's claim with prejudice.
DECREE
For the foregoing reasons, the trial court's July 12, 2011 judgment is affirmed in accordance with Uniform Rules-Courts of Appeal, Rule 2-16.1B. All costs associated with this appeal are assessed against plaintiff-appellant, Jeffery P. Duhe.