NOLAN ESTOPINAL, ET AL.
PARISH OF ST. BERNARD, ET AL
[Copyrighted Material Omitted]
APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT. NO. 113-313, DIVISION " B" . Honorable Manuel A. Fernandez, Judge.
Sidney D. Torres III, Roberta L. Burns, Beau F. Camel, LAW OFFICES OF SIDNEY D. TORRES, III, APLC, Chalmette, LA AND Salvador Joseph Randazzo, SALVADOR J. RANDAZZO, ATTORNEY AT LAW, Mandeville, LA AND Jerald Norman Andry, Jr., ANDRY & ANDRY, L.L.C., New Orleans, LA, COUNSEL FOR PLAINTIFFS/APPELLANTS, NOLAN ESTOPINAL, ET AL.
Sue Buser, Dennis J. Phayer, BURGLASS & TANKERSLEY, Metairie, LA AND Patricia S. LeBlanc, Deborah A. Villio, Michael L. Fantaci, LEBLANC BUTLER, LLC, Metairie, LA, COUNSEL FOR DEFENDANT/APPELLEE, BAROWKA AND BONURA ENGINEERS AND CONSULTANTS, LLC.
Jeffrey C. Brennan, Jena A. Smith, DEGAN, BLANCHARD & NASH, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE, UNIFIED RECOVERY GROUP, LLC.
Kenan S. Rand, Jr., PLAUCHE' MASELLI & PARKERSON LLC, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE, HOUSTON CASUALTY COMPANY.
(Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins).
Terri F. Love, J.
[2013-1561 La.App. 4 Cir. 1] This appeal arises from the allegedly unconstitutional and unlawful condemnation of properties severely damaged by Hurricane Katrina located in St. Bernard Parish. The plaintiffs allege that a class action lawsuit is the proper procedural vehicle to seek recompense. The trial court found that variables between the plaintiffs precluded the usage of the class action procedure and denied their motion to certify the class. We find that a class action lawsuit is an inappropriate procedural device for these plaintiffs because commonality, typicality, adequacy, ascertainable class definition, predominance, and superiority do not exist, as required by La. C.C.P. art. 591. Therefore, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The St. Bernard Parish Government (" SBPG" ) created a plan to address an ongoing problem with properties that were severely damaged by Hurricane Katrina, but remained in a state of disrepair years later. SBPG's plan was allegedly utilized to condemn, and in some instances, demolish the property of approximately 10,000 property owners.
On February 26, 2009, sixteen plaintiffs, with the usage of joinder, filed a [2013-1561 La.App. 4 Cir. 2] Petition
for Damages alleging that SBPG's plan caused them to suffer property damage and/or complete demolition of their property, monetary damages, and infringement upon their property rights. The plaintiffs proceeded to file numerous amended and supplemental petitions until, on January 19, 2010, the Thirteenth Amended and Supplemental Petition was filed naming only Nolan Estopinal as the plaintiff, as well as the " Class Plaintiff" " on behalf of those individuals similarly situated" (collectively " Plaintiffs" ). The Thirteenth Amended and Supplemental Petition named the defendants as the Parish of St. Bernard (" SBP" ); the Department of Community Development, Office of Safety and Permits; Unified Recovery Group, L.L.C. (" URG" ); Asplundh Construction Corporation (" ACC" ); Barowka and Bonura Engineers and Consultants, L.L.C. (" BBEC" ); A.B.C. Insurance Company; AIG Casualty Company (" AIG" ); Scottsdale Insurance Company (" Scottsdale" ); and Houston Casualty Company (" Houston" ).
Thereafter, the Plaintiffs filed a Motion for Class Action Certification seeking to have their claims proceed as a class action, pursuant to La. C.C.P. art. 591. The proposed class definition included:
All persons who owned real property or property rights in the Parish of St. Bernard, State of Louisiana on or after August 29, 2005, which property or property rights have been unconstitutionally taken or damaged through the actions of the Parish of St. Bernard and/or its agents/contractors, including UNIFIED RECOVERY GROUP, L.L.C., and BAROWKA AND BONURA ENGINEERS AND CONSULTANTS, L.L.C., without just compensation following Hurricane Katrina. The class also includes those who were forced to institute legal [2013-1561 La.App. 4 Cir. 3] proceedings and incur expenses associated therewith, including motions for temporary restraining orders, to stop the defendants from illegally taking/damaging their properties.
The Plaintiffs' Fourteenth Amended and Supplemental Petition categorized the Plaintiffs into three sub-groups: 1) " Demolished Property," 2) " Damaged Property," and 3) " Harassed." Seventy-three Plaintiffs were named. BBEC filed a Motion for Partial Summary Judgment Denying Class Certification based upon the premise that the commonality, predominance, superiority, adequacy, and typicality requirements for class certification could not be met. ACC then filed a Motion to Adopt BBEC's Motion for Partial Summary Judgment Denying Class Certification. URG, Houston, and Scottsdale also filed Motions for Partial Summary Judgment seeking the denial of class certification. The Plaintiffs subsequently dismissed their claims against ACC without prejudice.
Following a hearing and post-hearing written memoranda, the trial court denied the Plaintiffs' Motion for Class Action Certification.
Plaintiffs' Motion and Order for Devolutive Appeal followed.
The Plaintiffs allege that the trial court erred " in failing to certify the class of plaintiffs in this matter under La. Code Civ. P. art. 591(B)(3) and 591(B)(1)(a)", in " failing to properly apply the law relative to class certification to the facts established," and " in granting SBP's exception of no cause of action as to the plaintiffs' claims for emotional distress." 
[2013-1561 La.App. 4 Cir. 4] STANDARD OF REVIEW
" The standard of review for certification of class actions is bifurcated." Watters v. Dep't of Soc. Servs., 05-0324, 05-0325, 05-0326, p. 6 (La.App. 4 Cir. 4/19/06), 929 So.2d 267, 273. " The factual findings are reviewed under the manifest error/clearly wrong standard; the trial court's discretionary judgment on whether to certify the class or not is reviewed by the abuse of discretion standard." Id. Therefore, our applicable standard of review is whether the trial court abused its discretion in denying the Plaintiffs' Motion for Class Action Certification and whether the trial court's findings in regards to the requirements of class certification were manifestly erroneous. Id.
" In reviewing factual findings, the reviewing court should not set aside the factual findings of the trial court absent manifest error or unless those findings are clearly wrong." Marshall ex rel. minor children v. Air Liquide-Big Three, Inc., 08-0668, p. 5 (La.App. 4 Cir. 12/17/08), 2 So.3d 541, 546. " The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was reasonable." Id. " However, if a court of appeal determines that the trial court committed a reversible error of law or manifest error of fact, the court of appeal must ascertain the facts de novo from the record and render a judgment on the merits." Id.
" [A] class action is nothing more than a procedural device; it confers no substantive rights." Id., 08-0668, p. 6, 2 So.3d at 546. " A class action . . . permits a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common interest to persons so numerous as to make it impracticable to bring them [2013-1561 La.App. 4 Cir. 5] all before the court." Brooks v. Union Pac. R. Co., 08-2035, pp. 9-10 (La. 5/22/09), 13 So.3d 546, 554. " The purpose and intent of class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to persons who bring the action, but to all others who are 'similarly situated.'" Id., 08-2035, p. 10, 13 So.3d at 554, quoting Ford v. Murphy Oil U.S.A., Inc., 96-2913, p. 4 (La. 9/9/97), 703 So.2d 542, 544.
" Whether a class action meets the requirements imposed by law involves a 'rigorous analysis.'" Dupree v. Lafayette Ins. Co., 09-2602, p. 6 (La. 11/30/10), 51 So.3d 673, 679, quoting Brooks, 08-2035, p. 10, 13 So.3d at 554. When conducting this analysis, the trial court " 'must evaluate, quantify and weigh [the relevant factors] to determine to what extent the class action would in each instance promote or detract from the goals of effectuating substantive
law, judicial efficiency, and individual fairness.'" Brooks, 08-2035, p. 10, 13 So.3d at 554, quoting McCastle v. Rollins Envtl. Servs. of Louisiana, Inc., 456 So.2d 612, 618 (La. 1984).
While any errors to be made in deciding class action issues should, as a general rule, be in favor of and not against the maintenance of the class action because a class certification is always subject to modification or decertification if later developments so require, see La. C.C.P. art. 592(A)(3)(c), that general rule cannot and should not be used as a substitute for the rigorous analysis required to determine whether the prerequisites of Louisiana's class action provisions have in fact been satisfied.
Price v. Martin, 11-0853, p. 7 (La. 12/6/11), 79 So.3d 960, 967.
In order to qualify for class certification, the party seeking certification must prove that:
(1) The class is so numerous that joinder of all members is impracticable.
[2013-1561 La.App. 4 Cir. 6] (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 ...