ROSEMARY LEDET, Judge.
This is an action for mandamus, declaratory relief, and damages. The plaintiff, 2400 Canal, LLC ("2400 Canal"), is the former owner of property located at 2400 Canal Street in New Orleans (the "Property"), which was expropriated by the Board of Supervisors of Louisiana State University Agricultural and Mechanical College (the "Board"). The stated purpose of the expropriation was to facilitate the construction by the United States Veterans Affairs (the "VA") of a new hospital on the site, the new VA Medical Center hospital ("VAMC"). Thereafter, 2400 Canal commenced this action against the Board and its president, John Lombardi. In its petition, 2400 Canal alleged that the Board violated its constitutional rights under La. Const. Art. I, § 4(H)(1)
In March 2010, the Board filed a petition to expropriate the Property. In its petition, the Board stated that, pursuant to La. Const. Art. VII, § 14(C),
In September 2011, the parties settled the expropriation action by entering on the record a confidential compromise agreement. Under that agreement, 2400 Canal agreed to "forever release and discharge" the Board from "any and all liability and responsibility for any ... amount and all claims and causes of action that it may have or may have had arising out of or in any manner associated or connected with any events, facts, transactions or occurrences alleged or that could have been alleged in this matter." Following the settlement, 2400 Canal contended that it learned of the Board's intent to lease the Property to a third party, the VA, in violation of its constitutional rights under La. Const. Art. I, § 4(H)(1).
In November 2011, 2400 Canal filed the instant action, which it styled as a "Petition for Writ of Mandamus, For Declaratory Relief and For Damages," against the Board and its president. The principal relief it requested was the nullification of the Right of Possession, Use, and Occupancy Agreement, dated February 17, 2010, entered into between the Board, the VA, and the State (the "Use Agreement").
In response, the Board and its president (the defendants) filed multiple exceptions. As to the Board, the defendants asserted a peremptory exception of res judicata based on the compromise agreement and dilatory exceptions of unauthorized use of a summary proceeding and improper cumulation of actions. As to the Board's president, the defendants asserted peremptory exceptions of no cause and no right of action.
Following a hearing, the trial court sustained all of the exceptions and dismissed the action. As to the peremptory exceptions of no cause and no right of action, the trial court reasoned that "[a]ny actions undertaken by Mr. Lombardi in the instant case, were done in furtherance of his official duties as President of the LSU Board for which he cannot be held individually liable." As to the dilatory exceptions of improper use of summary proceeding and improper cumulation of actions, the trial court reasoned that the writ of mandamus was procedurally defective in that the substance of the relief sought by 2400 Canal was available in an ordinary proceeding. See La. C.C.P. art. 3862.
Agreeing with the defendants, the trial court found, based on the compromise agreement, that res judicata barred re-litigating the claims and issues raised in this action. In so finding, the trial court reasoned:
From that decision, 2400 Canal appeals.
The relevant facts in this case are undisputed; hence, the appeal is limited to legal questions. "Legal questions are reviewed utilizing the de novo standard of review." Fornerette v. Ward, 10-1219, p. 4 (La.App. 4 Cir. 5/11/11), 66 So.3d 516, 520 (citing Cherry v. Audubon Ins. Co., 09-1646, p. 4 (La.App. 4 Cir. 10/20/10), 51 So.3d 109, 113). "When considering legal issues, the appellate court assigns no special weight to the trial court and, instead, conducts a de novo review of questions of law and renders judgment on the record." Roger A. Stetter, La. Prac. Civ.App. § 10:53 (2011 ed.).
2400 Canal assigns as error the trial court's ruling sustaining all five of the defendants' exceptions — res judicata, improper use of summary proceeding, improper cumulation of actions, no right of action, and no cause of action.
The function of the peremptory exception of no cause of action is "to have the plaintiff's action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action." La. C.C.P. art. 923; Fagot v.
In deciding an exception of no cause of action a court can consider only the petition, any amendments to the petition, and any documents attached to the petition. B-G & G Investors VI, L.L.C. v. Thibaut HG Corp., 08-0093, pp. 4-5 (La. App. 4 Cir. 5/21/08), 985 So.2d 837, 841 (citing Spellman v. Desselles, 596 So.2d 843, 845 (La.App. 4 Cir.1992)); "[n]o evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action." La. C.C.P. art. 931. A court cannot consider assertions of fact referred to by the various counsel in their briefs that are not pled in the petition. State ex rel. Guste v. Audubon Park Commission, 320 So.2d 291 (La.App. 4th Cir.1975). The grant of the exception of no cause of action is proper when, assuming all well pleaded factual allegations of the petition and any annexed documents are true, the plaintiff is not entitled to the relief he seeks as a matter of law; any doubt must be resolved in the plaintiffs' favor. Kuebler v. Martin, 578 So.2d 113 (La.1991).
Applying these precepts, we find based on our review of the petition and the documents attached to it — the Expropriation Petition and the Use Agreement — that 2400 Canal lacks a cause of action. In its petition, 2400 Canal alleged the following:
Although 2400 Canal alleges in its petition that the Use Agreement is an illegal lease, this is a legal conclusion that we cannot consider in deciding an exception
Under Louisiana law,
The distinction between a lease and a right of use, as indicated in the Civil Code, is that a right of use is a real right and a lease is a personal right. "Louisiana treats all leases as personal contracts. Louisiana does not make a taxonomical distinction between leases of movables and leases of immovables, as does the common law, under which a lease of real property creates an estate in land while a lease of personalty creates only a personal right." General Elec. Capital Corp. v. Southeastern Health Care, Inc., 950 F.2d 944, 950 (5th Cir.1991). In sum, a lease is distinguishable from a real right, such as a right of use, because "[a] lease of real estate involves personal rights, rather than real rights." Peter S Title, 2 La. Prac. Real Est. § 18:2 (2d ed.2011)(citing Prados v. South Central Bell Tel. Co., 329 So.2d 744 (La.1975) (on rehearing)).
As noted, 2400 Canal labels the Use Agreement as a lease and thus contends that the Board violated its constitutional right under La. Const. Art. I, § 4(H)(1) by leasing the Property to the VA without first offering it a right of first refusal. The Use Agreement, which is attached to the petition as Exhibit "B," includes the following references that are relevant to the issue of whether this agreement is a lease:
The above quoted provisions of the Use Agreement belie 2400 Canal's label of this agreement as a lease. The Use Agreement, by its terms, confers real rights on the VA; hence, it is not a lease. See Richard, 03-1488 at pp. 17-18, 874 So.2d at 145 (noting that "[u]nder the civil law concept, a lease does not convey any real right or title to the property leased, but only a personal right.") Although the Use Agreement refers to the VA's payment of "rental" of one dollar per year, "if the right intended to be conveyed has the attributes of a real right such as a personal servitude or a limited personal servitude of use, then the contract is not a lease, even though the parties used terms like `rent' or `lease.'" La. C.C. art. 2668, Official Revision Comment (d). Such is the case here.
On appeal, 2400 Canal also contends that the Board violated La. Const. Art. I, § 4(H)(1) by selling the Property pursuant to an Act of Exchange and Amended Act of Exchange. It emphasizes that the Act of Exchange expressly states that it may be deemed to be a credit sale. Although 2400 Canal attached copies of the Act of Exchange and the Amended Act of Exchange as exhibits to its appellant brief, neither of these documents were introduced into evidence in the trial court. "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 Mgmt. Servs., Inc., 07-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88; see also Triss v. Carey, 00-0608, p. 3 (La.App. 4 Cir. 2/7/01), 781 So.2d 613, 615; Argence L.L.C. v. Box Opportunities, Inc., 07-0765, p. 4 (La.App. 4 Cir. 3/13/08), 980 So.2d 786, 789 n. 3. "Evidence not properly and officially offered and introduced [in the trial court] cannot be considered, even if it is physically placed in the record." Denoux, supra. Given that 2400 Canal failed to introduce either the Act of Exchange or the Amended Act of Exchange into evidence in the trial court, these documents are not part of the record on appeal and cannot be considered by this court.
Accordingly, we find that the Use Agreement is not a lease and that 2400 Canal therefore lacks a cause of action against either defendant under La. Const. Art. I, § 4(H)(1), which by its express terms applies solely to the sale or lease of expropriated property.
For the foregoing reasons, the appeals in 2012-CA-0221 and 2012-CA-0222 are