WENDY DUHON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
HARBOR HOMEOWNERS' ASSOCIATION, INC., XYZ INSURANCE COMPANY, WAGNER-TRAUX CO., INC., AND JACK ROSE
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2006-07013, DIVISION " D-16" . Honorable Lloyd J. Medley, Judge.
Mark P. Glago, GLAGO LAW FIRM, L.L.C., New Orleans, LA; Anthony D. Irpino, IRPINO LAW FIRM, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLEE.
Wayne J. Lee, Mary L. Dumestre, STONE PIGMAN WALTHER WITTMANN L.L.C., New Orleans, LA; Caleb H. Didriksen, III, Erin B. Saucier, DIDRIKSEN LAW FIRM, P.L.C., New Orleans, LA; John E. Unsworth, Jr., HAILEY McNAMARA HALL LARMANN & PAPALE, L.L.P., Metairie, LA, COUNSEL FOR DEFENDANT/APPELLANT.
(Court composed of Judge Roland L. Belsome, Judge Paul A. Bonin, Judge Madeleine M. Landrieu).
[2014-0583 La.App. 4 Cir. 1]
Roland L. Belsome, Judge.
In this appeal, the defendants contest the trial court's judgment granting the plaintiff's motion for class certification. For the following reasons, we remand for further proceedings.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Harborview Condominium complex, located at 500 Lake Marina Road, New Orleans, sustained wind and flood damage after Hurricanes Katrina and Rita. On August 4, 2006, the plaintiff, Wendy Duhon, filed a class action lawsuit against Harbor Homeowners' Association, Inc., its insurer, State Farm General Insurance Company, Wagner-Traux, Inc., and Jack Rose, the president of the Homeowners' Association. In her petition, the plaintiff asserted three claims against the Homeowners' Association, through the board and/or its president: 1) it unlawfully increased the insurance deductible without the required notice and approval from the condominium owners; 2) it unlawfully entered the units without authorization, gutting, destroying, discarding, and damaging the contents; and 3) it negligently [2014-0583 La.App. 4 Cir. 2] failed to administer and supervise the rebuilding process, causing an unnecessary delay in repairs and resulting damages. On January 19, 2007, the plaintiff filed a motion for class certification; however, the motion was denied without a hearing. On September 4, 2007, the plaintiff filed a second motion for class certification, which was set for hearing and continued without date. On July 2, 2013, the plaintiff filed a motion to re-set the class certification hearing. After a hearing, the defendants, the Association and State Farm, moved for an involuntary dismissal,
claiming that the plaintiff failed to establish the requisite elements for class certification. After receiving post-hearing briefs, the trial court granted the plaintiff's motion for class certification, and denied the defendant's motion for an involuntary dismissal. In its reasons for judgment, the trial court certified the class on the insurance and delay of repairs claims, only. This appeal followed.
After oral arguments on appeal, this Court received motions to file post-argument briefs from the plaintiff and the defendants. The plaintiff's brief advised that she voluntarily filed a motion to dismiss any uninsured claims with the trial court after oral arguments. She also filed a motion to dismiss any uninsured claims against the Association in this Court. In response, the defendants filed a post-argument brief also requesting that this Court dismiss any uninsured claims against the Association.
[2014-0583 La.App. 4 Cir. 3] We grant the parties' motions to file post-argument briefs. However, since our review of the record and ruling on appeal is limited to whether the class action procedural device is appropriate, any motion to dismiss uninsured claims that may affect the propriety of the trial court's ruling on this issue is not properly before us. See La. Const. art. 5 § 10; Galjour v. Bank One Equity Investors-BIDCO, Inc., 05-1360, p. 7 (La.App. 4 Cir. 6/21/06), 935 So.2d 716, 723 (citation omitted); Carreon v. Cal-Tex Phillippines, ...