96 0137 La.App. 1 Cir. 2/14/97, Boudreaux v. State, Dept. of Transp. and Development

• Decision Date: 14 February 1997
• Citation: 690 So.2d 114
• Parties: 96 0137 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 114

690 So.2d 114

96 0137 La.App. 1 Cir. 2/14/97

Jean BOUDREAUX and the Victims of the Flood on April 6, 1983 on the Tangipahoa River v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al.

No. 96 CA 0137.

Court of Appeal of Louisiana First Circuit.

Feb. 14, 1997.

Byard Edwards, Jr., Andrew M. Edwards, Ponchatoula, and Jean-Paul Layrisson, New Orleans, for Plaintiffs-Appellees, Jean Boudreaux, et al.

Richard P. Ieyoub, Attorney General, Baton Rouge, and William J. Doran, Special Assistant to General Counsel, DOTD, Baton Rouge, and Julie Mobley Lafargue, Reginald W. Abrams, Abrams & Lafargue, Shreveport, for Defendant-Appellant, State of Louisiana, Department of Transportation and Development.

Before CARTER and PARRO, JJ., and McDONALD, ¹ J. Pro Tem.

[96 0137 La.App. 1 Cir. 2] PARRO, Judge.

In this class action for damages resulting from flooding, the State of Louisiana, through the Department of Transportation and Development ("DOTD") appeals the trial court judgment which denied its exception to plaintiffs' case as a class action and certified the plaintiffs' claims as a class action pursuant to LSA-C.C.P. arts. 591 and 592. For the following reasons, this court affirms.

Facts and Procedural History

On April 6, 1984, Jean Boudreaux ("Boudreaux") filed a petition styled as a class action suit for damages against DOTD, the State of Mississippi ("Mississippi") and the owners of the dams and property in Zemurray Park on Chappepeela Creek. She filed this action in proper person on her own behalf and as representative of the other flood victims. ² The petition identified plaintiffs as people who suffered damage from the April 6, 1983 flood waters from the Tangipahoa River in Tangipahoa Parish. Plaintiffs alleged, on the basis of negligence and strict liability, that defendants were liable for damages suffered by them, including mental anguish, property damage, and lost income and wages.

DOTD filed an exception to plaintiffs' petition insofar as it asserted a class action, claiming it lacked allegations sufficient to justify using this procedure and that the Louisiana trial court, lacking jurisdiction over Mississippi, could not adjudicate all controversies among the parties. DOTD requested a hearing to determine whether this action could be properly maintained as a class action. Plaintiffs opposed DOTD's exception and requested the trial court to certify the suit as a class action and to adopt a plan for the management of this action pursuant to LSA-C.C.P. art. 593.1(C).

Mississippi excepted to the lack of subject matter and in personam jurisdiction, based on the eleventh amendment to the United States Constitution and Mississippi's sovereign immunity. It later filed an exception of no cause of action based on its sovereign immunity. ³ These exceptions were eventually dismissed by the trial court, but [96 0137 La.App. 1 Cir. 3] the plaintiffs later moved to sever and stay their claims against Mississippi. Mississippi concurred with this motion; it is still pending.

Some time after filing its exception to the class action procedure, DOTD filed a peremptory exception raising the objection of prescription as to all plaintiffs except Boudreaux. It also filed a third-party demand against Mississippi for indemnity or contribution, to which Mississippi responded by again raising its jurisdictional objections, this time based on the United Stated Constitution, Article III, § 2.

On September 26, 1995, the trial court conducted a class certification hearing in conjunction with a hearing on DOTD's exceptions regarding the use of a class action and prescription. In support of their request for certification, plaintiffs presented the testimony of seven proposed class representatives and two other witnesses who testified as to the facts surrounding the flood and the damages they allegedly suffered as a result of it. These witnesses had personally viewed the flooding in the geographical area within the class boundaries. They described their damages and the extent of the flooding, and some testified about water flowing south across U.S. Interstate Highway I-12 ("I-12"). Plaintiffs introduced maps and graphic overlays showing the location of the property of the individuals who had asserted claims. The maps and graphic overlays were prepared by Paul Vidacovich of Pyburn & Odom, Inc., who testified at the hearing regarding the surveying procedures involved in their preparation. Plaintiffs also called Dr. Alim Hannoura, a professor and director of engineering and applied sciences at the University of New Orleans, who qualified as an expert in the area of hydrology, having special expertise in the analysis of numerical data related to the flow of flood water. DOTD presented no evidence to support its exceptions.

After the hearing, the trial court rendered a judgment in favor of plaintiffs, denying DOTD's exception of prescription and granting plaintiffs' request for class certification. The trial court defined the class as:

all persons residing, owning, and/or possessing movable and immovable property located in the southern part of Tangipahoa Parish which was affected from the waters of the Tangipahoa River in the flood of April, 1983, being more specifically depicted as the area bounded by blue lines and having blue diagonal lines all in accordance with a certain plat prepared for Byard Edwards, Jr. and introduced into these proceedings as "Pyburn & Odom Exhibit 2" on September 26, 1995, who suffered property, business, or personal injuries as a result of the flooding which occurred in April, 1983.

[96 0137 La.App. 1 Cir. 4] DOTD appeals this judgment and argues the trial court erred in certifying the class because there is no common character of rights asserted by the class members, the evidence does not support certification, and there are unresolved issues of jurisdiction over Mississippi. ⁴

Standard of Review

The appellate court's review of factual findings is governed by the manifest error--clearly wrong standard. The two-part test for the appellate review of factual findings is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). An appellate court may not set aside a trial court's factual finding unless, after reviewing the record in its entirety, it determines the trial court's finding was clearly wrong. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

The law is unclear concerning the appropriate standard of review for the trial court's discretionary decision granting or refusing class certification. The jurisprudence uniformly indicates that the trial court is afforded great discretion in class action certification. Wide latitude must be given the trial court in considerations involving policy matters and requiring an analysis of the facts under guidelines helpful to a determination of the appropriateness of a class action. Ellis v. Georgia-Pacific Corp., 550 So.2d 1310, 1313 (La.App. 1st Cir.1989), writ denied, 559 So.2d 121 (La.1990). Given this latitude, some cases state such decisions are reviewed only for an abuse of the court's discretion. See, e.g., Bergeron v. AVCO Fin. Services, 468 So.2d 1250 (La.App. 4th Cir.), writ denied, 474 So.2d 1308 (La.1985); Ducote v. City of Alexandria, 95-1197 (La.App. 3rd Cir. 3/6/96), 670 So.2d 1378. Other cases simply chant the manifest error mantra, which can be traced in many of these cases back to Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), a case which elucidated this standard of [96 0137 La.App. 1 Cir. 5] review, but had nothing to do with class certification or other discretionary decisions. See, e.g., Ellis v. Georgia-Pacific Corp., 550 So.2d at 1313 ("Unless the trial court has committed manifest error, we must confirm the order. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978)."). Still others refer, without much analysis, to both standards. See, e.g., Casse v. Sumrall, 547 So.2d 1381, 1384 (La.App. 1st Cir.), writ denied, 551 So.2d 1322 (La.1989) ("In the instant case, we find no abuse of discretion or manifest error in the trial court's certification of the present suit as a class action.")

However, we feel a more complete and correct analysis of the appropriate standard of review for this discretionary decision was provided by Judge Lanier in a well-reasoned concurrence in the Ellis case. He analogized this decision to other discretionary judgments, such as damage awards, which are reviewed for abuse of discretion, and stated:

[T]he factual findings upon which a class action certification is based should be reviewed on appeal by the manifest error (clearly wrong) standard. After the trial court makes its determinations of fact, it exercises its discretion to certify the class or not. This discretionary judgment must be reviewed on appeal by the abuse of discretion standard.

Ellis v. Georgia-Pacific Corp., 550 So.2d at 1326 (Lanier, J., concurring in part and dissenting in part). See also, Livingston Parish Police Jury v. Acadiana Shipyards, Inc., 598 So.2d 1177, 1184 (La.App. 1st Cir.1992) (Lanier, J., concurring), writ denied, 605 So.2d 1122 (La.1992). This view is supported by the Louisiana Supreme Court's emphasis on the discretionary nature of the class certification decision in Stevens v. Board of Trustees, 309 So.2d 144 (La.1975), and is consistent with the standard of review for other discretionary matters. Accordingly, we will review the trial court's factual findings under the manifest error standard, and will review the trial court's ultimate decision with respect to certification of the class using the abuse of discretion standard.

[96 0137 La.App. 1 Cir. 6] Prerequisites to Class Action

In determining whether a class action is proper under Louisiana law, ⁵ proof of the following requirements is...