Opinion
NO. 19-C-329
10-02-2019
JOSHUA E. DEPHILLIPS v. TECHNOLOGY INSURANCE COMPANY, INC., ET AL
Susan Buchholz First Deputy Clerk IN RE TECHNOLOGY INSURANCE COMPANY, INC., BAYOU CONCRETE PUMPING, L.L.C. AND PAUL J. NELSON APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ST JAMES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JESSIE M. LEBLANC, DIVISION "D", NUMBER 38,63 Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and Timothy S. Marcel, Pro Tempore WRIT GRANTED, JUDGMENT VACATED; REMANDED
Relators, Technology Insurance Company, Inc., Bayou Concrete Pumping, L.L.C., and Paul Nelson, seek review of the trial court's ruling which granted respondent, Joshua E. DePhillips' motion in limine to exclude relators' expert witness pursuant to La. C.E. art. 702 and Daubert.
In their arguments at the hearing, the parties referred to documents attached to memoranda, including the expert's report. However, neither party introduced any evidence. In its ruling, the trial court refered to the expert's report, finding that it did not set forth the methodology and how the expert arrived at his conclusions. The expert's written report, while attached to relators' opposition, was not offered or admitted into evidence at the hearing.
When a motion must be proven, it is the moving party's burden to present evidence establishing the claims made therein. Scheuermann v. Cadillac of Metairie, Inc., 11-1149 (La. App. 5 Cir. 05/31/12), 97 So.3d 423, 426; La. C.C.P. art. 963. Evidence not properly and officially offered and introduced cannot be considered, even if it was physically placed in the record. Denoux v. Vessel Mgmt. Services, Inc., 07-2143 (La. 05/21/08), 983 So.2d 84, 88. Documents attached to memoranda do not constitute evidence and cannot be considered. Id. Appellate courts are courts of record and may not review evidence that is not in the appellate record or receive new evidence. Id. at 88-89.
A trial court commits legal error when it relies on evidence not properly introduced to form a basis for its decision. Jennings v. Ryan's Family Steak House, 07-0372 (La. App. 1 Cir. 11/02/07), 984 So.2d 31, 39.
In this case, the record shows that there was no evidence introduced by either party in support of the motion in limine to exclude relators' expert witness. Further, the trial court considered the expert's report, which was not admitted into evidence, in making its decision. We therefore find that the trial court committed legal error in granting the motion in limine to exclude relators' expert.
Accordingly, this writ is granted. The trial court's judgment granting the motion in limine is vacated, and this case is remanded for further proceedings.
Gretna, Louisiana, this 2nd day of October, 2019.
TSM
SJW
HJL
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)