Writ application denied.
I respectfully dissent in this case solely on the dispositive issue of whether a memorandum is deemed a pleading. Simply stated, a memorandum is not a pleading. Louisiana Code of Civil Procedure art. 852 provides in part: “The pleadings allowed in civil actions, whether in a principal or incidental action, shall be in writing and shall consist of petitions, exceptions, written motions, and answers.” Cf. Vallo v. Gayle Oil Co., 94-1238, p. 8 (La. 11/30/94), 646 So.2d 859, 865 (footnotes omitted)(“The pleadings allowed in civil actions are petitions, exceptions, written motions and answers. LSA–C.C.P. art. 852. Therefore, when the unconstitutionality of a statute is specifically pled, the claim must be raised in a petition (the original petition, an amended and supplemental petition or a petition in an incidental demand), an exception, a motion or an answer. It cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings.”); and Meaux v. Galtier, 07-2474, p. 2 (La. 1/25/08), 972 So.2d 1137, 1138 (wherein this Court, citing La. C.C.P. art. 852 and Vallo, held that the issue of constitutionality was not properly raised when it was asserted in a filing by the plaintiff captioned, “Plaintiffs Memorandum in Opposition to Exceptions of Prescription/Peremption Filed by Defendants.”). A memorandum does not carry the weight of a pleading. For relief to be granted, there must be a pleading, as defined by Article 852, setting forth the issue, and it must be filed in the record of the proceeding. A memorandum is merely argument of counsel, presumably supported by law and jurisprudence. A memorandum has neither legal weight nor legal authority; it may or may not be filed in the record of the proceedings; and, it may, on occasion, be presented only to the court and counsel. To give a memorandum the equivalent status of a pleading would require a re-defining of the words “pleading” and “memorandum” within a legal context. Accomplishing said objective, in my view, would require legislative action as opposed to judicial creativity.
Hughes, J., would grant.
Genovese, J., dissents and assigns reasons.