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Harvey v. The Board of Commissioners

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2017

ROBERT HARVEY, DARLEEN JACOBS LEVY AND SUSAN AND WILLIAM LAURENDINE
v.
THE BOARD OF COMMISSIONERS FOR THE ORLEANS LEVEE DISTRICT, PARISH OF ORLEANS

         ON APPEAL FROM THE PARISH OF ORLEANS, STATE OF LOUISIANA NO. 05-11660, DIVISION "L" HONORABLE ROBERT J. BURNS, JUDGE AD HOC, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, SUSAN AND WILLIAM LAURENDINE, ET AL Darleen M. Jacobs Hunter P. Harris Richard M. Martin, Jr.

          COUNSEL FOR DEFENDANT/APPELLEE, STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT Jeffrey M. Landry Timothy W. Hassinger Kelsey L. Bonnaffons

          COUNSEL FOR DEFENDANT/APPELLEE, SEWERAGE AND WATER BOARD OF NEW ORLEANS Charles M. Lanier, Jr. J. Warren Gardner, Jr. Oscar M. Gwin, IV

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg.

          JUDE G. GRAVOIS, JUDGE.

         In this case arising out of flooding following Hurricane Katrina, plaintiffs/appellants appeal a trial court judgment that denied class certification under La. C.C.P. art. 591.[1] For the following reasons, we affirm the judgment of the trial court.

         FACTS AND PROCEDURAL BACKGROUND

         On September 24, 2005, plaintiffs, Robert Harvey, Darleen Jacobs Levy, Susan Laurendine, and William Laurendine, filed a claim for damages with a request for class action certification against the Board of Commissioners for the Orleans Levee District for the Parish of Orleans (the "Levee District"), asserting that the Levee District was negligent in its design and construction of flood walls along the 17th Street and London Avenue Canals in Orleans Parish, which flood walls collapsed during and in the aftermath of Hurricane Katrina on August 29, 2005, resulting in damages to their respective properties located in Orleans Parish. Plaintiffs further asserted that "the number of business and property owners affected by the negligence of the defendant are too numerous to mention and that this lawsuit should be certified as a class action for all residents, business owners, and occupants of the affected areas in the New Orleans area."

         On June 7, 2006, plaintiffs filed a First Supplemental and Amending Petition. Al LeBeouf, Aline Hodges, Pierre Ascani, Theresa Harvey, Dale Atkins and Anita L. Sarrat were added as plaintiffs, and Robert Harvey and Darlene Jacobs Levy were deleted as plaintiffs. Additional allegations of negligence were asserted against the Levee District. The next day, on June 8, 2006, plaintiffs filed a motion to certify the action as a class action pursuant to La. C.C.P. art. 592.

         Plaintiffs filed a Second Supplemental and Amending Petition on July 10, 2006, adding as defendants the State of Louisiana, Department of Transportation and Development (the "DOTD"), and the Sewerage and Water Board for the Parish of Orleans (the "SWB"), asserting additional acts of negligence by these defendants.

         In Case Management and Scheduling Order No. 1 signed by the trial court on December 23, 2013, the proposed class was defined by plaintiffs as follows: "All residents, domiciliaries, property owners and business owners of the parishes of Orleans and Jefferson (limited to Hoey's Basin) in the State of Louisiana whose properties or businesses were damaged by flooding caused by the failure of the 17thStreet Canal and London Avenue Canal hurricane protection levees and floodwalls in New Orleans, Louisiana on or after August 29, 2005."

         After a lengthy procedural history that is largely irrelevant to the instant appeal, the trial court conducted a hearing on plaintiffs' motion to certify the class on November 10 and 14, 2016.[2] At the close of plaintiffs' evidence, the trial court granted defendants' oral motion for involuntary dismissal and denied class certification, finding that plaintiffs had failed to produce evidence to support the requirements of commonality and typicality, as required by La. C.C.P. art. 591(A)(2) and (3), respectively, and superiority, as required by La. C.C.P. art. 591(B)(3). The trial court gave detailed oral reasons for its ruling. A written judgment to this effect was signed on November 22, 2016. Plaintiffs' appeal follows.

         On appeal, plaintiffs argue that the trial court procedurally erred in granting defendants' motion for involuntary dismissal, asserting that the class certification hearing was not a trial on the merits of the case. They also argue that the trial court erred in excluding the testimony and report of their expert engineer, James Phipps. Plaintiffs further argue that the trial court erred in finding that plaintiffs failed to prove commonality, as required by La. C.C.P. art. 591(A)(2), and superiority of the class action suit, as required by La. C.C.P. art. 591(B)(3).

         STANDARD OF REVIEW AND APPLICABLE LAW

         The standard of review for class certification is bifurcated: factual findings are reviewed under the manifest error/clearly wrong standard, but the trial court's judgment on whether to certify the class is reviewed by the abuse of discretion standard. Pollard v. Alpha Tech., Chevron U.S.A., Inc., 08-1486 (La. App. 4 Cir. 1/28/10), 31 So.3d 576, 581, citing Brooks v. Union Pacific Railroad Company, 08-2035 (La. 5/22/09), 13 So.3d 546, 554.

         The determination of whether a class action meets the requirements imposed by law involves a rigorous analysis. Brooks v. Union Pacific Railroad Company, 13 So.3d at 554. Such an analysis requires the district court to "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." Price v. Martin, 11-0853 (La. 12/6/11), 79 So.3d 960, 966-67, citing McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612, 618 (La. 1984). McCastle imparts a duty on the court to make active inquiry "into every aspect of the case" and "to require showings beyond the pleadings." Id. In practice, the analysis will frequently entail overlap with the merits of the underlying claim. Id, citing Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011).

         The threshold requirements for class certification are found in La. C.C.P. art. 591(A), which provides:

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. This prerequisite shall not be satisfied if it is necessary for the court to inquire into the merits of each potential class member's cause of action to determine whether an individual falls within the defined class.

         These prerequisites are generally known as numerosity, commonality, typicality, adequacy, and identifiability (class definition). Pollard v. Alpha Tech., Chevron U.S.A., Inc., 31 So.3d at 583. An action may be certified as a class action only if all of the five prerequisites of Article 591(A) are present. Id.

         If all of the prerequisites of Article 591(A) are satisfied, Article 591(B) provides that the court must also find that plaintiffs have met at least one of the following requirements found in Article 591(B)(1)-(3), to-wit:

(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 ...

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