Kimberly Hulbert VS National Democratic Committee, Louisiana Democratic Mayoral Campaign Committee, Democratic State Central Committee of Louisiana, ABC Insurance Company, XYZ Insurance Company and Britton Loftin
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0772 KIMBERLY HULBERT VERSUS NATIONAL DEMOCRATIC COMMITTEE DEMOCRATIC STATE CENTRAL COMMITTEE OF LOUISIANA LOUISIANA DEMOCRATIC MAYORAL CAMPAIGN COMMITTEE ABC INSURANCE COMPANY XYZ INSURANCE COMPANY AND BRITTON LOFfIN On Appeal from the 19th 7udicial District Court Parish of East Baton Rouge Louisiana Docket No 580 Section 27 183 Honorable Todd W Hernandez Judge Presiding Larry E Demmons C Taggart Morton L LA New Orleans Attorney for Appellant Plaintiff Kimberly Hulbert Randolph A Piedrahita Due Price Guidry Andrews APA PiedrahiW NAP Attorneys for Appellee Defendant Baton Rouge LA Committee of Louisiana Democratic State Central and Remy V Starns New Orleans LA BEFORE PARRO WELCH AND KLINE JJ udgment rendered MAY 0 6 2013 udge 1 William F Kline rretired is serving as judge ad hoc by special appointment of the Louisiana Supreme Court PARRO In this suit the trial court granted a defendanYs peremptory exception pleading the objection of no cause of action and dismissed all of the plaintiff sclaims against that defendant The plaintiff appealed from the adverse judgment After the appeal was lodged the defendant filed a motion to strike portions of the plaintiff sappellate brief For reasons that follow we grant the defendanYs motion to strike reverse the judgment and remand FACTUAL AND PROCEDURAL BACKGROUND In une 2008 the Democratic National Committee National Committee hired Kimberly Hulbert to work as a field organizer in Louisiana under a employment dual agreement with the National Committee and the Democratic State Central Committee of Louisiana State Committee According to Ms Hulbert shortly after her employment began the State Committee Executive Director Britton Loftin began a s pattern of continued repeated and offensive sexual harassment toward her After being laid off by the National Committee in the fall of 2008 Ms Hulbert continued to work for the State Committee and also worked for the Louisiana Democratic Mayoral Campaign Committee Mayoral Committee until early April 2009 when she alleges she was forced to resign from her employment as a result of Mr Loftin comments s repeated sexual harassment and refusal to pay her wages In July 2009 Ms Hulbert filed this suit for damages against the National Committee the State Committee the Mayoral Committee and Mr Loftin petition Ms Hulbert alleged two causes of action In her First she claimed Mr Loftin s actions constituted a sexually hostile work environment and sexual harassment in violation of Louisiana Employment Discrimination Law LEDL La R 23 et s S 301 seq and that the National Committee the State Committee and the Mayoral Committee were liable for Mr Loftin actions as his employers within the meaning of s the LEDL Second Ms Hulbert alleged Mr Loftin actions constituted the intentional s 2 In her petition Ms Hulbert also named ABC Insurance Company as the National Committee insurer s and XYZ Insurance Company as the State Committee insurer as defendants s 2 infliction of emotional distress Pursuant to the LEDL and LSA art 2315 she C sought compensatory damages back pay benefits front pay damages for emotional distress humiliation and embarrassment and attorney fees plus court costs The State Committee filed an answer and affirmative defenses to Ms Hulbert s suit Later the State Committee filed a peremptory exception pleading the objection of no cause of action contending Ms Hulbert action against it should be dismissed s because the State Committee was a nonprofit corporation to which the LEDL did not apply and that Ms Hulbert had judicially confessed to its status as such in her petition Ms Hulbert opposed the State Committee exception arguing that merely s because she alleged in her petition that the State Committee was a nonprofit corporation did not confer such status upon it In her opposition she sought the opportunity to conduct discovery on this issue prior to any hearing on the State s Committee exception She also argued that the LEDL exclusion of nonprofit s organizations from its coverage applied only to religious and educational nonprofit entities and not to entities such as the State Committee Lastly she argued that if her suit was indeed dismissed the trial court dismissal should be without prejudice or s should specifically reserve her right to amend and refile her suit against the State or Committee pursuant to Title VII of the Civil Rights Act Notably in their arguments in support of and in opposition to the State Committee sexception of no cause of action neither Ms Hulbert nor the State Committee addressed whether her petition stated a cause of action against the State Committee for intentional infliction of emotional distress In November 2009 the trial court held a hearing on the State Committee s exception of no cause of action At the hearing the trial court indicated that it would not delay its ruling to allow Ms Hulbert to conduct further discovery on the State s Committee nonprofit status that the LEDL clearly indicated that nonprofit entities were exempt from its coverage and that it would grant the State Committee s exception without any indication whatsoever as to reservations of Ms Hulbert s 3 rights On November 10 2009 the trial court signed a judgment stating in pertinent part IT IS HEREBY ORDERED AD AND DECREED that UDGED s Defendant Exception of No Cause of Action is granted and Plaintiff s claims against the State Committee be and are hereby dismissed with prejudice at Plaintiff cost s Ms Hulbert filed a motion for new trial repeating the arguments previously raised in opposition to the State Committee sexception of no cause of action State Committee opposed Ms Hulbert motion s The Neither party addressed the effect of the trial court judgment on Ms Hulbert claim for intentional infliction of emotional s s distress Thereafter on December 7 2009 the trial court signed a judgment stating that after considering the motion and memoranda Ms Hulbert motion for new trial s was summarily denied and the court had found no basis in law or fact reasonably leading it to believe that its judgment should be reversed or modified Ms Hulbert then filed a motion for appeal from the November 10 2009 judgment and the trial court granted the appeal by order dated February 11 2010 MOTION TO STRIKE After the appeal was lodged the State Committee filed a motion to strike certain portions of Ms Hulbert appellate brief which we will address before moving to the s merits of the appeal In support of its motion to strike the State Committee claims Ms sappellate brief impermissibly references irrelevant events that occurred after Hulbert the trial court signed the November 10 2009 judgment and after the order of appeal The appellate record shows that following the trial court dismissal of Ms s s Hulbert suit against the State Committee her suit against the remaining defendants continued The National Committee filed a motion for summary judgment seeking dismissal of Ms Hulbert claims against it and Mr Loftin filed multiple exceptions s challenging her suit Ms Hulbert opposed the motions and amended her petition 1 After the appeal was lodged this court issued a rule to show cause questioning the timeliness of the appeal Following a remand to the trial court for an evidentiary hearing the trial court issued a ruling finding the appeal was indeed timely filed After supplementation of the appellate record this court issued an order maintaining the appeal Kimberiv Hulbert v National Democratic Committee et al 10 0772 La App lst Cir 8 unpublished action 12 7 4 to include facts specifically describing acts of Mr Loftin alleged sexual harassment s and 2 to add causes of action against all of the defendants for violation of Title VII of the Civil Rights Act and for battery under LSA art 2315 Further in her brief Ms C Hulbert alleges that at a hearing on her motion to extend the time to pay appeal costs she made an oral motion again requesting that the trial court amend its November 10 2009 judgment to clarify that that judgment only dismissed her sexual harassment claim under the LEDL against the State Committee and not her claims for intentional infliction of emotional distress and battery The appellate record contains no transcript of this hearing but there is a minute entry dated March 29 2010 stating that a hearing was held and that plaintiff smotion to amend the judgment was denied The State Committee argues that Ms Hulbert reference to any of the above proceedings s all which occurred after the trial court signed the November 10 2009 judgment and the appeal was taken should be stricken from her appellate brief Generally this court appellate review is limited to the evidence that was in the s record at the time the trial court rendered its judgment See LSA art 2164 P C Gatlin v Kleinheitz 09 La App lst Cir 12 34 So 872 874 n writ 0828 09 23 3d 2 denied 10 La 2 28 So 280 Further arguments of counsel contained 0084 10 26 3d in appellate briefs and references to facts and issues not currently before the court are not considered record evidence Harrelson v Arcadia 10 La App lst Cir 1647 il 10 6 68 So 663 665 n writ denied i1 La 10 71 So 316 3d 4 1531 11 7 3d Accordingly we will address only those arguments urged by Ms Hulbert that pertain to matters submitted to the trial court prior to its rendition of the November 10 2009 judgment To the extent that Ms Hulbert brief references facts and issues that are s not part of the appellate record before us the State Committee motion to strike is s 4 The State Committee also claims Ms Hulbert brief contains foul language that is likewise not s relevant in this case We note that the foul language originates from alleged conversations and text messages between Mr Loftin and Ms Hulbert and Ms Hulbert reproduced this language in her amended petition as factual support for the claims brought in this suit Because Ms Hulbert filed her amended petition after she perfected the instant appeal the allegations of her amended petition are not before us 5 granted Id ASSIGNMENTS OF ERROR On appeal Ms Hulbert seeks reversal of the trial court November 10 2009 s judgment based on the following assignments of error 1 The trial court erred in refusing to briefly postpone the hearing on the State Committee sexception to allow the State Committee to respond to Ms Hulbert requests for production of documents that sought s evidence of the State Committee alleged nonprofit status s 2 The trial court erred in determining that Louisiana Anti s Discrimination Law LSA 23 exempts all nonprofit corporations from S2 R 302 b the definition of employer rather than all religious and educational institutions and nonprofit corporations 3 The trial court erred in failing to allow Ms Hulbert to amend her petition to remove the grounds for the State Committee exception s pursuant to LSA art 934 P C 4 The trial court erred in signing a judgment and later failing to amend that judgment pursuant to LSA art 1951 dismissing all of Ms P C s Hulbert claims when the State Committee exception only sought s dismissal of Ms Hulbert claim for sexual harassment s DENIAL OF CONTINUANCE Ms Hulbert contends the trial court erred by refusing to postpone the hearing on the State Committee exception of no cause of action so that she could pursue s discovery regarding the State Committee nonprofit status In opposition the State s Committee argues the trial court did not abuse its discretion in refusing to postpone the hearing because Ms Hulbert had already judicially confessed to its nonprofit status in her petition and because an exception of no cause of action is decided solely on the allegations contained in the petition Absent peremptory grounds a continuance rests within the sound discretion of the trial court Louisiana Code of Civil Procedure article 1601 provides for a 5 Likewise we do not consider facts and issues referenced in the State Committee brief that are not s part of the appellate record before us 6 The trial court may grant a continuance on peremptory or discretionary grounds LSA arts 1601 P C and 1602 There are only two peremptory grounds 1 the party seeking the continuance despite due diligence has been unable to obtain material evidence or 2 a material witness is absent without the contrivance of the party applying for the continuance LSA art 1602 St Tammanv Parish Hosoital P C v Burris 00 La App lst Cir 12 804 So 960 963 Ms Hulbert does not contend nor 2639 Ol 28 2d does the record reveal that there were any peremptory grounds for a continuance in this case 6 continuance if there is good ground therefor While the trial court discretion to s grant or deny a continuance is not absolute and may not be exercised arbitrarily appellate courts are reluctant to interfere in such matters See St Tammany Parish Hospital v Burris 00 La App 1st Cir 12 804 So 960 963 Absent a 2639 O1 28 2d clear abuse of discretion in granting or denying a continuance the ruling of the trial court should not be disturbed on appeal Denton v Vidrine 06 06 La 0141 0142 App ist Cir 12 951 So 274 284 writ denied 07 La 5 957 06 28 2d 0172 07 18 2d So 152 Moreover well jurisprudence establishes that an admission by a party in settled a pleading constitutes a judicial confession within the meaning of LSA art 1853 C and is full proof against the parry making it See J4H L v Derouen 10 La C 0319 App ist Cir 9 49 So 10 15 Article 1853 explicitly provides that a judicial 10 10 3d confession may be revoked only on the ground of error of fact We agree that Ms s Hulbert characterization of the State Committee as a non Louisiana profit corporation in her petition a status admitted by the State Committee in its answer constitutes a judicial confession within the meaning of LSA art 1853 C Robinson Wilson v Our Lady of the Lake Regional Medical Center Inc Accord No 10 584 D M La 2011 unpublished opinion 2011 WL 6046984 p Further Ms Hulbert at 2 no time asserted to the trial court that her judicial confession regarding the State s Committee nonprofit status was made in error It was not until she realized that her admission worked to her detriment with respect to the LEDL apparent exclusion of s nonprofit corporations from its coverage that she retreated from her former position Louisiana Civil Code article 1853 provides A judicial confession is a declaration made by a parly in a judicial proceeding That confession constitutes full proof against the party who made it A judicial mnfession is indivisible and it may be revoked only on the ground of error of fad 8 In a reply brief to this court which was filed months after the appeal was lodged Ms Hulbert contends Here Plaintiff submits that the status of the State Committee as a non corporation is an error of profit fad Ms Hulbert did not present this assertion to the trial court and this court does not consider assertions made in a brief or for the first time on appeal See Harrelson 68 So at 665 n 3d 4 7 See J4H L 49 So at 16 C 3d Also we note that under LSA art 9319 P C evidence is not admissible to support or controvert an objection that a petition fails to state a cause of action Thus the trial court did not abuse its discrekion by refusing to postpone the hearing at issue to allow Ms Hulbert to pursue discovery on the State s Committee nonprofit status as any evidence discovered would not have been admissible in ruling on the exception This assignment of error has no merit NO CAUSE OF ACTION In her remaining assignments of error Ms Hulbert essentially contends the trial court erred in sustaining the State Committee exception of no cause of action s because 1 the LEDL only exempts religious and educational nonprofit entities from its coverage not all nonprofit entities and 2 even if she has no claim under the LEDL against the State Committee her petition states causes of action for intentional infliction of emotional distress and battery as well She also argues the trial court erred in failing to allow her to amend her petition to remove the grounds of the State s Committee exception of no cause of action In ruling on an exception of no cause of action the court must determine whether the law affords any relief to the plaintiff if he proves the factual allegations in the petition and attached documents at trial Home Distribution Inc v Dollar Amusement Inc 98 La App lst Cir 9 754 So 1057 1060 1692 99 24 2d As earlier stated no evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action LSA art 931 When a petition is P C read to determine whether a cause of action has been stated it must be interpreted if 9 Louisiana Code of Civil Procedure article 931 provides On the trial of the peremptory exception pleaded at or prior to the trial of the case evidence may be introduced to support or controvert any of the objections pleaded when the grounds thereof do not appear from the petition When the peremptory exception is pleaded in the trial court after the trial of the case but prior to a submission for a decision the plaintiff may introduce evidence in opposition thereto but the defendant may introduce no evidence except to rebut that offered by plaintiff No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action 8 possible to maintain the cause of action instead of dismissing the petition Brister v GEICO Insurance O1 0179 La App lst Cir 2d 02 28 3 813 So 614 617 Any reasonable doubt concerning the su of the petition must be resolved in favor of ciency finding that a cause of action has been stated Id When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition the judgment sustaining the exception shal order such amendment within the delay allowed by the court If the grounds of the objection raised by the exception cannot be so removed or if the plaintiff fails to comply with the order to amend the action claim demand issue or theory shall be dismissed LSA art 934 The reviewing court P C conducts a de novo review of a trial court ruling sustaining an exception of no cause s of action because the exception raises a question of law and the lower court decision s is based only on the sufficiency of the petition B C Electric Inc v East Baton Rouae Parish School Board 02 La App ist Cir 5849 So 616 619 1578 03 9 2d In her petition Ms Hulbert alleged that the National Committee the State Committee and the Mayoral Committee were liable for the sexual harassment occasioned and hostile work environment created by Mr Loftin because these defendants were Mr Loftin employer within the meaning of the LEDL La R s S 301 23 etseq Under LSA 23 S 2the LEDL defines an employer as follows R 302 in pertinent part For purposes of this Chapter and unless the conte clearly indicates otherwise the following terms shall have the following meanings ascribed to them 2 Employer means a person association legal or commercial entity the state or any state agency board commission or political subdivision of the state receiving services from an employee and in return giving compensation of any kind to an employee The provisions of this Chapter shall apply only to an employer who employs twenry or more employees within this state for each working day in each of twenty or more calendar weeks in the current or preceding calendar year Employer shall also include an insurer as defined in R 22 with S 46 respect to appointment of agents regardless of the character of the s agent employment This Cha shall not apply to the followina ter The referenced Chapter is Chapter 3 Prohibited Discrimination in Employment under Title 23 A Labor and Workers Compensation of the Louisiana Revised Statutes 9 b Employment of an individual by a private educational or religious institution or anv nonprofit cor or the employment by a oration school college university or other educational institution or institution of learning of persons having a particular religion if the school college university or other educational institution or institution of learning is in whole or in substantial part owned supported controlled or managed by a particular religion or by a particular religious corporation association or society or if the curriculum of the school college university other educational institution or institution of learning is directed toward the propagation of a particular religion Emphasis added Ms Hulbert argues that the LEDL only excludes educational or religious nonprofit corporations from its coverage because when read in context the above underscored phrase or any nonprofit corporation in LSA 23 only modifies the S 2 R 302 b immediately preceding phrase a private educational or religious institution According to Ms Hulbert LSA 23 definition of employer is ambiguous S 2 R 302 s b susceptible of different meanings and shouid be interpreted by examining the context in which its words appear and the text of the law as a whole She argues that it is clear from the statute that the legislature meant to exempt from coverage any educational or religious institutions or profit non corporations not all non profit corporations In opposition the State Committee contends that the LEDL excludes nonprofit corporation from its coverage because LSA 23 uses the S 2 R 302 b disjunctive term or to separate the phrase any nonprofit corporation from the immediately preceding phrase a private educational or religious institution According I to the State Committee the use of the disjunctive or denotes separate entities i e private educational or religious institutions or any nonprofit corporation to which the LEDL does not apply The fundamental question in all cases involving statutory interpretation is legislative intent Arabie v CITGO Petroleum Cor 307 312 Z605 10 La 3 89 So 12 13 3d Further according to the general rules of statutory interpretation our interpretation of any statutory provision begins with the language of the statute itself 10 In re Succession of Faaet 10 La 11 53 So 414 420 When a statute 0188 10 30 3d is clear and unambiguous and its application does not lead to absurd consequences the statute is applied as written and no further interpretation may be made in search of legislative intent Dejoie v Medley 08 La 5 9 So 826 829 see LSA 2223 09 3d C art 9 LSA 1 Unequivocal provisions are not subject to judicial construction S R 4 and should be applied by giving words their generally understood meaning See Snowton v Sewerage and Water Bd 08 La 3 6 So 164 168 see also 399 09 17 3d C LSA art 11 LSA 1 S R3 Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language LSA 1 Further S R3 every word sentence or provision in a law is presumed to be intended to serve some useful purpose that some effect is given to each such provision and that no unnecessary words or provisions were employed Colvin v Louisiana Patient s Comoensation Fund Oversiaht Bd 06 La 1 947 So 15 19 Moss v 1104 07 17 2d 1963 State 05 La 4 925 So 1185 1196 2d 06 Consequently courts are bound to give effect to all parts of a statute if possible and to construe no sentence clause or word as meaningless and surplusage if a construction giving force to and preserving all words can legitimately be found Colvin 947 So at 19 Moss 925 So at 2d 20 2d 1196 Louisiana Environmental Action Network v Louisiana Deot of Environmental uali 1935 11 La App ist Cir 7 97 So 1148 1152 12 25 3d Under these rules of statutory construction our interpretation of LSA S R 2 302 23 begins with the language of the statute itself Section 302 sets forth the 2 general definition of employer which broadly includes a person association legal or commercial entity the state or any state agency board commission or political subdivision of the state receiving services from an employee and in return giving compensation of any kind to an employee However Subparagraph b of Section 2 302 provides exceptions to Section 302 definition of employer by stating that s 2 the LEDL shall not apply to certain entities Although the majority of the language in 11 Subparagraph b relates to educational and religious entities it also clearly or excludes any nonprofit corporation from the LEDL definition of employer To read s any nonprofit corporation as meaning only educational or religious nonprofit corporations requires that we ignore the words or any that separate educational or religious institution from nonprofit corporation Under the above stated rules of construction we cannot construe the language of Subparagraph b in such a manner as to render any of its words meaningless or as surplusage See Colvin 947 So at 2d 20 19 Rather we are bound to give effect to all parts of a statute if possible and to construe Subparagraph b in such a manner as to give force to and to preserve all of its words Id We must presume that when enacting Subparagraph b the legislature intentionally included the words or any between the phrases educational or religious institution and nonprofit corporation to serve a useful purpose Id Thus we must interpret Subparagraph b to give effect to these two words in doing so we agree with the State Committee that the use of the disjunctive term or between the phrases educational or religious institution and any nonprofit corporation denotes distinct and separate entities to which the LEDL does not apply We conclude that Subparagraph b excludes any nonprofit corporation from the LEDL definition of s employer and is not limited to educational or religious nonprofit corporations The following outline illustrates that giving effect to all words used in Subparagraph b the s LEDL definition of employer does not include 1 a private educational or religious institution or 2 any nonprofit corporation or 3 a school college university or other educational institution or institution of learning of persons having a particular religion if a the school college university or other educational institution or institution of learning is in whole or in substantial part owned supported controlled or managed by a particular religion or by a particular religious corporation association or society or b the curriculum of the school college university other educational institution or institution of learning is directed toward the propagation of a particular religion 12 Based on our interpretation of LSA 23 and considering Ms S 2 R 302 b s Hulbert judicial confession that the State Committee is a nonprofit corporation we conclude the trial court correctly determined that the LEDL does not provide a cause of action to Ms Hulbert against the State Committee We also conclude the trial court correctly refused to allow Ms Hulbert to amend her petition because the grounds of the State Committee exception of no cause of action i s e that it is a nonprofit corporation could not be removed by any such amendment See LSA art 934 P C Although we conclude the LEDL does not apply to nonprofit corporations this court on appeal must determine if the facts alleged in the petition state a cause of action See Martin v Bigner 27 La App 2nd Cir 12 665 So 709 711 694 95 6 2d 12 If the allegations of the petition state a cause of action as to any part of the demand the exception of no cause of action must be overruled Pitre v Opelousas General Hospital 530 So 1151 1162 La 1988 If there are two or more items of 2d damages or theories of recovery that arise from the operative facts of a single transaction or occurrence a partial judgment on an exception of no cause of action should not be rendered to dismiss one item of damages or theory of recovery See Evervthina on Wheels Subaru Inc v Subaru South Inc 616 So 1234 1239 La 2d 1993 Ms Hulbert argues the trial court erred by dismissing all of her claims against the State Committee when the State Committee sexception of no cause of action only pertained to her LEDL claim According to Ms Hulbert her petition also set forth claims against the State Committee for intentional infliction of emotional distress and battery In response the State Committee contends Ms Hulbert waived any right to complain about the terms of the judgment because she did not raise this issue to the trial court before the judgment was rendered 11 If hvo or more causes of action are based on separate and distinct operative facts a partial grant of the ecception of no cause of action may be rendered while preserving other causes of action See Walton Construction Comnany LLC v G Horne M 2d So 827 83Z Such is not the case here 13 Co Inc 07 La App lst Cir 2 984 0145 08 20 As earlier stated Ms Hulbert spetition specifically set forth claims for violation of the LEDL and for intentional infliction of emotional distress The State Committee s exception of no cause of action did not address the intentional infliction of emotional distress claim and Ms Hulbert arguments in opposition to the exception likewise did s not address the intentional infliction of emotional distress claim Therefore we conclude that the trial court sjudgment could not have disposed of this claim because it was never considered by the trial court Further in addition to recognizing the viability of Ms Hulbert intentional infliction of emotional distress claim we agree with s her that her petition also sets forth facts constituting a claim for battery under LSA C art 2315 which the trial court likewise did not address when ruling on the State s Committee exception of no cause of action Under the Louisiana Code of Civil s Procedure system of fact pleading as long as the facts constituting a claim are alleged the parly may be granted relief under any legal theory justified by those facts See LSA art 862 Lieux v Mitchell 06 La App lst Cir 12 951 P C 0382 06 28 2d So 307 317 writ denied 07 La 6 958 So 1199 Because under 0905 07 15 2d certain circumstances an employer can be held vicariously liable for the torts of its employee Ms Hulbert may be entitled to relief against the State Committee for the alleged torts committed by Mr Loftin See Martin 665 So at 711 despite no 2d 12 cause of action against employer under state statutes prohibiting discrimination in lZ Specifically Ms Hulbert petition alleges inter alia and in addition to the allegations set forth in s footnote 13 that Mr Loftin repeatedly sent text messages to her requesting sexual encounters implying that he wanted her to perform sexual favors for other persons at his request telling her that she knew that she was going to eventually have sex with him and explaining to her that had she agreed to have sex with him she wouldn be having problems getting paid In order to recover for t intentional infliction of emotional distress a plaintiff must establish 1 that the conduct of the defendant was extreme and outrageous 2 that the emotional distress suffered by the plaintiff was severe and 3 that the defendant desired to inFlict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct See White v Monsanto Co 585 2d So 1205 1209 La 1991 Whether Ms Hulbert petition contains sufficient allegations to establish a s cause of action for intentional infliction of emotional distress is not before us in this appeal See Baker v LSU Health Sciences Center Institute of Professional Educ 39 La App 2nd Cir 12 200 04 15 889 So 1178 1183 2d 1184 13 Specifically Ms Hulbert petition alleges inter alia that on one occasion Mr Loftin grabbed her butt s and attempted to kiss her without her consent and on another occasion during a car ride back from a meeting Mr Loftin reached across the car and put his hands between Plaintiff legs Battery is the s intentional harmful or offensive contact with another person See Caudle v Betts 512 So 389 391 2d La 1987 Although Ms Hulbert does not use the specific term battery in her petition Louisiana s system of fact pleading values substance over form and does not require the use of magic titles or terminology as a threshold requirement for validly pleading an action See Wheat v Nievar 07 La 0680 App lst Cir 2 984 So 773 776 see also LSA art 854 08 8 2d P C 14 employment and public accommodations plaintiff petition alleged facts that suggested s causes of action for assault battery and intentional infliction of emotional harm Therefore because Ms Hulbert petition sets forth facts sufficient to support s claims for intentional infliction of emotionai distress and battery against the State Committee we conclude that the trial court erred in granting the State Committee s exception of no cause of action Accordingly we reverse the judgment which dismissed all of Ms Hulbert claims against the State Committee We remand the case s to the trial court for consideration of all of Ms Hulbert claims against the State s Committee other than her claim under the LEDL CONCLUSION For the foregoing reasons we grant the motion to strike filed by the Democratic State Central Committee of Louisiana to the extent Kimberly Hulbert appellate brief s references facts and issues not part of the appellate record before us Further we reverse the November 10 2009 judgment insofar as it dismissed all of Kimberly s Hulbert claims against the Democratic State Central Committee of Louisiana This matter is remanded to the trial court for further proceedings consistent with this opinion Costs of this appeal are assessed equally between Kimberly Hulbert and the Democratic State Central Committee of Louisiana MOTION TO STRIKE GRANTED JUDGMENT REVERSED AND REMANDED 15
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