Schexnayder v. Entergy Louisiana, Inc.

• Decision Date: 29 March 2005
• Docket Number: No. 04-CA-636.,04-CA-636.
• Citation: 899 So.2d 107
• Parties: Arthur SCHEXNAYDER, Jr., Alice Labat, Estate of Theodore Dreyfus, Inc. v. ENTERGY LOUISIANA, INC., Entergy Services, Inc., Entergy Technology Holding Company and Entergy Technology Company.
• Court: Court of Appeal of Louisiana — District of US

899 So.2d 107

Arthur SCHEXNAYDER, Jr., Alice Labat, Estate of Theodore Dreyfus, Inc. v. ENTERGY LOUISIANA, INC., Entergy Services, Inc., Entergy Technology Holding Company and Entergy Technology Company.

No. 04-CA-636.

Court of Appeal of Louisiana, Fifth Circuit.

March 29, 2005.

Rehearing Denied May 4, 2005.

Victor L. Marcello, Donald T. Carmouche, Talbot, Carmouche, & Marcello, Gonzales, LA, Brian A. Eddington, Baton Rouge, LA, Michael R. Mangham, Stacy N. Kennedy, Donald J. Ethridge, Mangham & Associates, Lafayette, LA, for Plaintiff/Appellee.

Ewell E. Eagan, Jr., Martin E. Landrieu, Wendy Hickok Robinson, Gordon, Arata, McCollam, Duplantis & Eagan, Marcus V. Brown, Entergy Legal Services, New Orleans, LA, Vincent J. Sotile, Jr., Sotile Law Firm, Prairieville, LA, for Defendant/Appellant.

Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.

CLARENCE E. McMANUS, Judge.

The defendants, Louisiana, Inc., Entergy Services, Inc., Entergy Technology Holding Company and Entergy Technology Company¹, appeal from the trial court's decision granting the Motion For Class Certification filed by plaintiffs, Arthur Schexnayder, Jr., Alice Labat, and the Estate of Theodore Dreyfus, Inc., and appointing them as representatives of the class. For the following reasons, we affirm the decision of the trial court. Entergy provides domestic retail electric utility service in Texas, Arkansas, Louisiana and Mississippi. In the 1990's, Entergy began installing a fiber optic cable network through several states, including Louisiana, within previously acquired servitudes, to meet its communication needs over the next several decades. Plaintiffs allege that defendant marketed its surplus to various communications entities.

On April 4, 2003, the plaintiffs, all Louisiana residents, filed suit against the defendants alleging that defendants committed a knowing and intentionally bad faith civil trespass by unlawfully physically invading their lands and those of the class members without their knowledge and permission, and failed to compensate them for the unauthorized and unlawful use of their land. The plaintiffs also alleged that the defendants concealed the existence of the fiber optic cable and its uses other than the transmission of electricity and/or internal communications, which includes leasing, selling, and otherwise allowing third parties to use excess fiber optic capacity on the network. The plaintiff sought damages for the physical damage to the property involved, lost profits, loss of revenue and use of the property, and all other damages to which they were entitled under Louisiana law.

Thereafter, on May 12, 2003, the plaintiffs filed a Motion for Class Certification, alleging that all five prerequisites for certification under LSA-C.C.P. art. 591(A) were satisfied, and that they were entitled to certification pursuant to LSA-C.C.P. art. 591(B)(1)(2) and (3). Plaintiffs proposed three class representatives: Arthur Schexnayder, Jr., a resident of St. James Parish; his sister, Alice Labat, a resident of Ascension Parish²; and the Estate of Theodore Dreyfus, Inc., a Louisiana Corporation with its principal place of business in Pointe Coupee Parish³.

The trial court granted the plaintiffs' motion and appointed Arthur Schexnayder, Jr., Alice Labat, and the Estate of Theodore Dreyfus, Inc., as the class representatives. The court certified the following class under LSA-C.C.P. art. 591(B)(1)(2) and (3):

All persons and entities who own, or have owned, land in Louisiana upon which defendants have strung or installed fiber optic cable that defendants have leased, sold, or provided to other persons or entities, or otherwise used (or that the defendants may lease, sell, provide to other persons or entities, or otherwise use in the future) for purposes other than the transmission of electricity and/or defendants' internal communications. Excluded from this Class are the defendants (and their officers, directors, and employees), and any entity in which the defendants (and their officers, directors, and employees) have a controlling interest. Also excluded from the Class are all agencies and subdivisions of the United States and any State, Parish, or local government or municipality or political subdivision thereof ...

The trial court found that the plaintiffs had satisfied each of the five prerequisites for certification under LSA-C.C.P. art. 591(A), that certification was appropriate pursuant to LSA-C.C.P. art. 591(B)(1) and (2), and that the case met the requirements of superiority and predominance under LSA-C.C.P. art. 591(B)(3).

Entergy appeals from the decision of the trial court.

ANALYSIS

LSA-C.C.P. art. 591 governs class action certification, as follows:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:

(1) The class is so numerous that joinder of all members is impracticable.

(2) There are questions of law or fact common to the class.

(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.

(4) The representative parties will fairly and adequately protect the interests of the class.

(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:

(1) The prosecution of separate actions by or against individual members of the class would create a risk of:

(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:

(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;

(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;

(c) The desirability or undesirability of concentrating the litigation in the particular forum;

(d) The difficulties likely to be encountered in the management of a class action;

(e) The practical ability of individual class members to pursue their claims without class certification;

(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or

(4) The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.

C. Certification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class. However, following certification, the court shall retain jurisdiction over claims or defenses dependent for their resolution on proof individual to a member of the class.

In Daniels v. Witco, 03-1478 (La. App. 5 Cir. 6/1/04), 877 So.2d 1011, this Court outlined the requirements for class certification and explained the purpose and intent of a class action procedure:

Under Louisiana law, in order to meet class certification requirements, plaintiffs must meet all of the requirements of La. C.C.P. art. 591(A) and fall within one of the subsections of 591(B). Defraites v. State Farm Mut. Auto. Ins. Co., 03-1081 (La.App. 5th Cir. 1/27/04), 864 So.2d 254. The burden of establishing that the statutory criteria are met falls on the party seeking to maintain the class action. Cooper v. City of New Orleans, 01-115 (La.App. 4th Cir.2/14/01), 780 So.2d 1158, writ denied, 01-720 (La.5/11/01), 792 So.2d 734; Billieson v. City of New Orleans, 98-1232 (La.App. 4th Cir.3/3/99), 729 So.2d 146, 154, writ denied, 99-946 (La.10/29/99), 749 So.2d 644 and writ denied, 99-960 (La.10/29/99), 749 So.2d 645. A trial court has wide discretion in deciding whether to certify a class and the decision will not be overturned absent a finding of manifest error or abuse of discretion. Defraites, supra; Adams v. CSX Railroads, 92-1077 (La.App. 4th Cir.2/26/93), 615 So.2d 476. However, any errors to be made in deciding class action issues should be in favor of and not against the maintenance of the class action, because a class certification order is subject to modification, if later developments during the course of the trial so require. McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612 (La.1984); Johnson v. E.I. Dupont deNemours and Co., 98-229 (La.App. 5th Cir.10/14/98), 721 So.2d 41.

The purpose and intent of a class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to the class representatives who bring the action, but to all others who are similarly situated, provided they are given adequate notice of the pending class action and do not timely exercise their option of exclusion. Defrait

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