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Cajuns for Clean Water, LLC v. Cecelia Water Corp.

Court of Appeals of Louisiana, Third Circuit

October 3, 2018



          John Michael Parker L. Adam Thames Taylor, Porter, Brooks & Phillips, LLP Attorneys for Defendant/Appellant Cecelia Water Corporation.

          Rachael S. Kellogg Schafer & Schafer, LLP Attorney for Defendant/Appellant American Alternative Insurance Corporation.

          Jacques P. Soileau Attorney for Plaintiffs/Appellees Jacqueline Berard, Glenn Richardson, Laci Soileau and Cajuns for Clean Water, LLC.

          Court composed of Sylvia R. Cooks, John D. Saunders and Elizabeth A. Pickett, Judges.



         Jacqueline Berard, Brandi Berard[1] and Cajuns for Clean Water, LLC (Plaintiffs) filed suit against Cecelia Water Corporation d/b/a Cecilia Water Corporation (CWC) and their insurer, American Alternative Insurance Corporation, alleging damages as a result of poor water quality, no and/or low water pressure, arsenic contamination, bacterial contamination, and insufficient water supplied to meet ordinary daily needs of Plaintiffs. In the "First Supplemental and Amending Petition," Glenn Richardson and Laci Soileau joined as additional Plaintiffs adopting all claims made by the original Plaintiffs and seeking the same relief for damages. Plaintiffs filed a "Motion to Certify Class" seeking to convert this suit to a class action pursuant to the provisions of La.Code Civ.P. art. 591, asserting there are approximately 11, 700 potential putative class members who have sustained injuries as a result of Defendant's alleged actions and inactions concerning their supplying water to the local population served by (CWC). After a full hearing on the matter the trial court rendered judgment granting Plaintiffs' motion for class certification.

The trial court defined the class as follows:
All persons, businesses, or entities who belong to at least one of the following three groups, and who as a direct result of receiving their water service from Cecelia Water Corporation between December 1, 2010 and February 2015, have at least one of the following claims: mental and emotional distress; non-reimbursed personal expenses, non-reimbursed business expenses; loss of personal income; loss of business income; nuisance, annoyance, discomfort, and inconvenience; trespass; personal injury including fear of contraction of disease or illness; economic damages or property damage.
1. Households and their residents who at any time between December 1, 2010 and February 28, 2015, were receiving their water supply from the Cecelia Water Corporation;
2. Owners and/or occupants of businesses, schools or health care facilities who at any time between December 1, 2010 and February 28, 2015, were receiving their water supply to that business, school, or health care facility from the Cecelia Water Corporation;
3. Lessor/Lessees of residential and/or commercial property who at any time between December 1, 2010 and February 28, 2015, were receiving their water supply to that property from the Cecelia Water Corporation.

         The trial court also confirmed Jacqueline Berard and Glenn Richardson as representatives of the class and confirmed Jacques Pierre Soileau and W. Glenn Soileau as counsel for the Class. Further, the trial court prohibited any contact between defense counsel and the class representatives or class members regarding this class action suit "unless otherwise approved by [the] Court in advance." The trial court rendered an eight-page written reasons for judgment setting forth its findings of fact and detailing its reasons for concluding Plaintiffs satisfied the numerosity, commonality, typicality, and adequacy requirements of La.CodeCiv.P. art 591(A) as well as its reasons for identifying an objectively definable class of claimants. Plaintiffs also presented evidence satisfying "one or more criteria of La.C.C.P. art. 591(B)" according to the trial court.

         Defendants appeal the trial court's order granting class certification and the trial court's definition of the class, asserting the trial court failed to "perform a rigorous analysis of the claims and defenses presented." They also assert Plaintiffs failed to establish commonality, predominance and superiority "because they cannot prove breach, causation, and damages on a class-wide basis." Additionally, Defendants maintain the trial court erroneously based its finding of "numerosity" on the "number of potentially aggrieved parties" rather than on the "number of individuals actually aggrieved."


         The supreme court has made clear "any errors to be made in deciding class action issues should be in favor of and not against the maintenance of the class action." McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612, 618 (La. 1984). In Baker v. PHC-Minden, L.P., 14-2243 p. 12, 167 So.3d 528, 538 (emphasis added), the supreme court also set forth the applicable appellate standard of review:

A trial court has wide discretion in deciding whether to certify a class. Brooks, 08-2035 at p. 10, 13 So.3d at 554. Subject to the manifest error standard, its factual findings can only be reversed upon finding, based on the entire record, no reasonable factual basis for the factual finding and the factfinder is clearly wrong. Stobart v. State, through Department of Transp. and Development, 617 So.2d 880, 882 (La.1993). However, we review its ultimate decision of whether or not to certify the class under the abuse of discretion standard. Dupree, 09- 2602 at p. 7, 51 So.3d at 680. Implicit therein "is recognition of the essentially factual basis of the certification inquiry and of the district court's inherent power to manage and control pending litigation." Brooks, 08-2035 at p. 11, 13 So.3d at 554.

         After a full review of the record we cannot say the trial court's factual findings are manifestly erroneous. The record is replete with evidence which wholly supports the trial court's well-reasoned decision regarding class certification and its thoughtful definition of the class. Further, we find no abuse of discretion in the trial court's ultimate decision to grant certification of this matter as a class action. We are impressed with the trial court's detailed reasons for judgment and quote at length its findings:

Plaintiffs, customers of Cecelia water Corporation ("Cecelia"), have brought this suit against Cecelia alleging continued problems with water quality and quantity. They have alleged that over the course of several years Cecelia has provided water of inadequate quality and quantity. As of 2014 the Defendant Cecelia Water Corporation had roughly 3, 776 customers.
As to water quantity, Plaintiffs have alleged that water is regularly rendered by Cecelia to their homes as low to no water pressure. The evidence shows that the Cecelia Water Corporation has had continual and ongoing problems with water pressure and providing water to its customers in adequate amounts. In 1996 an extensive engineering report was written documenting Cecelia's inability to meet demand and Cecelia's low water pressure problems. The 1996 report recommemnded that a new plant be built on the Western end of the system at the D'Augerau Road location. Recognizing this continuing low-pressure problem, Cecelia has continued to discuss building a new plant at the D'Augerau Road location over the years. However, to date no new plant has been built.
Despite the documented demand problems, Cecelia has continued adding water lines and customers to its system throughout the years. Cecelia applied for a rate increase to the Louisiana Public Service Commission (LPSC), again noting the demand problems with their system and their inability to provide adequate amounts of water to the existing customer base. The proposed rate increase would cover the cost of a new plant at the D'Augereau Road location. This solution had been identified and proposed sixteen (16) years earlier in the 1996 engineering report. The 2011 rate increase to build the new plant was ultimately granted by the LPSC. Cecelia customers have been paying for a new plant now for over five years now. (sic) That plant has still not even begun to be built.
In 2015 Cecelia applied for a second rate increase with the LPSC, again citing the problems with demand and the need to build a new plant at the D'augereau Road location. The LPSC denied Cecelia's second rate increase application. The LPSC stated that one rate increase had already been granted for the new plant and Cecelia had still not even begun ...

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