Apolinar v. PROF. CONST. SERVICES, INC.

694 So. 2d 537, 1997 WL 232212
CourtLouisiana Court of Appeal
DecidedMay 7, 1997
Docket96-CA-1492
StatusPublished
Cited by1 cases

This text of 694 So. 2d 537 (Apolinar v. PROF. CONST. SERVICES, INC.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Apolinar v. PROF. CONST. SERVICES, INC., 694 So. 2d 537, 1997 WL 232212 (La. Ct. App. 1997).

Opinion

694 So.2d 537 (1997)

Alfredo APOLINAR, et al.
v.
PROFESSIONAL CONSTRUCTION SERVICES, INC.

No. 96-CA-1492.

Court of Appeal of Louisiana, Fourth Circuit.

May 7, 1997.

*538 Dwight W. Norton and Bernard V. Davis, Metairie, for Plaintiff/Appellant Alfredo Apolinar.

Robert E. Leake, Jr., Donald E. McKay, Jr., Leake & Andersson, New Orleans, for Defendant/Appellee Professional Construction Services, Inc.

Before BARRY, LOBRANO, PLOTKIN, WALTZER and MURRAY, JJ.

MURRAY, Judge.

Plaintiffs, five employees of Professional Construction Services, Inc. (PCS), appeal both the trial court's refusal to certify this proceeding as a class action as well as a denial of their motion to compel discovery. In the exercise of our supervisory jurisdiction, we reverse both judgments and remand with instructions for further proceedings.

FACTS AND PROCEDURAL HISTORY

Alfredo Apolinar filed this suit in June 1994, seeking unpaid overtime wages plus interest, penalties and attorney fees under La. R.S. 23:631 et seq., claiming that PCS had failed to comply with an overtime provision in its public works contract for a certain project. Mr. Apolinar alleged that laborers were paid overtime on the project only if they worked more than forty hours a week, but PCS's contract specified that overtime would also be paid when an employee worked more than eight hours a day. Because the project's workweek allegedly consisted of four ten-hour days, Mr. Apolinar claimed that overtime pay was owed to himself as well as "all other laborers and mechanics" who had worked for PCS on that project. PCS's initial defense to the claim, that the contractual provision was ineffective because its inclusion in the bid specifications was illegal, was ultimately rejected by the Supreme Court, and the matter was remanded for further trial court proceedings. Apolinar *539 v. Professional Const. Serv., 95-0746 (La.11/27/95), 663 So.2d 17.

When the matter was returned to district court, an amending petition was filed to add Alan Therence as a named plaintiff and to obtain class certification based upon the allegation that "in excess of 60 persons" also were entitled to the same relief.[1] PCS opposed certification as a class action, arguing that neither the numerosity nor common character requirements were met. In support of its opposition, PCS submitted the affidavit of Edward J. Abate, Jr., its vice-president. The affidavit attested to Mr. Abate's ability to easily identify, by name, address, employee number and social security number, each employee who worked for PCS as a laborer on the project at issue. The affidavit also attested to Mr. Abate's personal knowledge of the number and identity of each employee who worked on the project at issue as an hourly employee as laborer or mechanic, and the number of hours and on what dates each employee worked. Attached to this affidavit was a computer printout showing weekly pay data for 136 different employee numbers.[2] Neither the affidavit nor the computer list indicates how many, or how few, of the 136 laborers worked over eight hours on any day during the project, which appears to have ended in February 1994.

After submission of additional memoranda by both parties, a hearing was held during which the trial court noted:

I read your memos, I don't think it's appropriate for a class action at this point. Now if there is—you all go back and look, he is giving you what he has, he knows them by name, give them to him, if you can figure it out. At this point it is not right for class action. I understand your argument, some people may be left out, that happens every day whenever somebody claims to be a part of a group of people are effected [sic], I mean sure, I just don't see it at this point, and I am not going to certify a class at this point. [Emphasis added.]

In response to this statement, plaintiffs' counsel offered testimony from the named plaintiffs to establish that they were aware of 70 to 80 other employees who they believed were in the same situation as they. The trial court refused to permit this evidence, stating:

They can bring their own action. I am not going to certify a class, if it gets down to a bunch of them file their suits and they all get consolidated.... But what I am saying is I am not going to certify it as a class today. If I get—the cases get filed and there are a bunch of them I may end up having to do it, but I don't see it today. I am not going to certify the class today.

A written judgment denying class certification was entered on April 4, 1996.

Relying on the portions of the court's remarks highlighted above, plaintiffs' counsel moved on April 11, 1996 to compel responses to his prior discovery requests for identifying information and payroll data concerning other employees who might be owed overtime. In opposition, PCS argued that because class action status was refused, the requested information was "irrelevant, immaterial and not reasonably calculated to lead to the discovery of admissible evidence." The defendant further contended that production of the information would violate its employees' privacy rights and its own right to proprietary information necessary to maintaining a competitive advantage; would be overly burdensome and expensive; and "is being requested solely for the purpose of recruiting and soliciting these individuals so as to `create' a class."

After oral arguments, the trial court denied the motion to compel because "[i]f there's no class action, he is not required to give you the names." It was again emphasized that there was no need to certify a class because the employees were identifiable from their time sheets and because plaintiffs' counsel had not established that the workers did not know they might be entitled to additional *540 wages. After entry of a written judgment on May 22, 1996, plaintiffs filed the instant appeal, challenging both judgments.

DISCUSSION

1. Jurisdiction

PCS contends that this court lacks jurisdiction to consider this appeal because both judgments at issue are interlocutory and the plaintiffs have not alleged irreparable harm. This court, however, may review such interlocutory matters under its supervisory jurisdiction, La.Const. art. V, § 10(A), and we do so here. See Cotton v. Gaylord Chemical Corp., 96-2426 (La.10/25/96), 680 So.2d 1187.

2. Class certification

A class action may be instituted when the persons constituting the class are so numerous as to make it impracticable for all of them to join or be joined as parties, and the character of the right sought to be enforced for or against the members of the class is common to all members of the class. La.Code Civ.Proc.Ann. art. 591. The class action is nothing more than a procedural mechanism designed to efficiently and economically manage large numbers of claims in which common issues predominate over individual issues. Stevens v. Board of Trustees of Police Pension Fund, 309 So.2d 144, 151 (La.1975). The sole consideration for a trial court in ruling on certification, and for this court in reviewing that ruling, is whether the case at bar is one in which the procedural device of a class action is appropriate.

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Cite This Page — Counsel Stack

Bluebook (online)
694 So. 2d 537, 1997 WL 232212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/apolinar-v-prof-const-services-inc-lactapp-1997.