Pulver v. 1st Lake Properties, Inc.

681 So. 2d 965, 1996 WL 525856
CourtLouisiana Court of Appeal
DecidedSeptember 18, 1996
Docket96-CA-248
StatusPublished
Cited by19 cases

This text of 681 So. 2d 965 (Pulver v. 1st Lake Properties, 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
Pulver v. 1st Lake Properties, Inc., 681 So. 2d 965, 1996 WL 525856 (La. Ct. App. 1996).

Opinion

681 So.2d 965 (1996)

Russell D. PULVER & Rebecca S. Pulver, et al.
v.
1st LAKE PROPERTIES, INC., et al.

No. 96-CA-248.

Court of Appeal of Louisiana, Fifth Circuit.

September 18, 1996.

*967 Russell D. Pulver, Houston, TX, C. Theodore Alpaugh, III, Metairie, for Russell D. Pulver & Rebecca S. Pulver.

William J. Wegmann, Jr., Orr Adams, Jr., Metairie, for Central Realty of La., Inc.

Cyril G. Lowe, Jr., New Orleans, for Michael Lawrence & 1st Lake Properties, Inc.

Geoffrey H. Longenecker, Covington, for Lafayette Insurance Company.

David C. Hesser, New Orleans, for Ray & Charlene Chatagnier, Exceptors.

Before CANNELLA and DALEY, JJ., and RICHARD J. GARVEY, J. Pro Tem.

DALEY, Judge.

This is an appeal from the decision of the trial court denying plaintiffs' request to certify this matter as a class action. For the reasons that follow, we affirm the trial court judgment.

This suit involves eight plaintiffs who were tenants in various apartment complexes owned by four entities or individuals, defendants 1st Lake Properties, Inc., Michael Lawrence, Central Realty of Louisiana, Inc. and Ray and Charlene Chatagnier. This suit was brought following the torrential rains of May 8, 1995 which caused widespread flooding in Jefferson Parish, including flooding to the individual apartments leased by the plaintiffs. The various plaintiffs seek damages allegedly suffered as a result of the flooding and subsequent actions or inactions by the defendants and seek certification as a class action for all similarly situated plaintiffs, estimated at between 700 to 1,000. They also request the court to confirm the named plaintiffs as representatives of the class of petitioners and to confirm the "defendants ... as the representatives of the class of defendants...." Defendants oppose class certification. The trial court refused to certify this matter as a class action and plaintiffs have appealed. We affirm.

STANDARD OF REVIEW

The trial court is afforded great discretion in class action certification. Elliott v. State, 619 So.2d 137 (La.App. 1 Cir. 1993). Wide latitude must be given the trial court in considerations involving policy matters and requiring an analysis of the facts under guidelines helpful to a determination of the appropriateness of a class action. Ellis v. Georgia-Pacific Corp., 550 So.2d 1310 (La.App. 1 Cir.1989); Terrebonne Bank & Trust Co. v. Lacombe, 510 So.2d 78 (La.App. 1st Cir.1987). Unless the trial court has committed manifest error, we must confirm the order. Ellis, supra;

CLASS CERTIFICATION

In determining whether to certify an action as a class action under Louisiana law, the following requirements are necessary:

1. A class so numerous that joinder is impracticable, and
2. The joinder as parties to the suit one or more persons who are
(a) members of the class, and
(b) so situated as to provide adequate representation for absent members of the class, and
3. A "common character" among the rights of the representatives of the class and the absent members of the class.

LSA C.C.P. Articles 591 and 592[1]; McCastle v. Rollins Environmental Services, 456 So.2d 612 (La.1984), State ex rel Guste v. General Motors Corp., 370 So.2d 477 (La. 1978) (on rehearing), Williams v. State, 350 So.2d 131 (La.1977), Stevens v. Board of Trustees, 309 So.2d 144 (La.1975); Rivera v. United Gas Pipeline Co., 613 So.2d 1152 *968 (La.App. 5 Cir.1993), Becnel v. United Gas Pipeline Co., 613 So.2d 1155 (La.App. 5 Cir. 1993) Olavarriette v. Tonti Properties, Inc., 658 So.2d 25 (La.App. 5th Cir.1995).

All three of the elements must be met for a class action to be appropriate and it is well settled that it is plaintiffs' burden to prove each element, by a preponderance of the evidence. Dumas v. Angus Chemical Co., 635 So.2d 446 (La.App. 2d Cir.1994) writ denied 640 So.2d 1349 (La.1994).

The first requirement, that the persons constituting the class are so numerous as to make joinder impracticable, is often referred to as "numerosity." The numerosity requirement is not met by simply alleging a large number of potential claimants. To establish numerosity, i.e., "a class so numerous that joinder is impracticable," a determination must be made on the facts and circumstances of each individual case. Farlough v. Smallwood, 524 So.2d 201 (La.App. 4th Cir.1988), writ denied. Although the identification of all potential class members is unnecessary, the party seeking certification should be able to establish a definable group of aggrieved persons.

The second requirement, "proper joinder," is to ensure adequate representation of the absent class members by requiring that one or more of the class members will represent the interests of the entire class adequately.

Third, plaintiffs must establish that a "common character" exists, that is, the questions of law or fact common to the members of the class predominate over any questions affecting only individual members. This requirement restricts the class action to those cases in which it would achieve economies of time, effort, and expense and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. McCastle, supra. When a "common character" of rights exists, a class action is superior to other available adjudicatory methods for the purpose of promoting the basic aims and goals of a procedural device: (1) effectuating substantive law; (2) judicial efficiency; and (3) individual fairness. McCastle, supra; Guste v. General Motors Corp., supra; Williams v. State, supra; Stevens v. Board of Trustees, supra.

The fundamental objective of the class action device is the achievement of economies of time, effort and expense. Thus, it must be decided whether the intertwined goals of effectuating substantive law, judicial efficiency and individual fairness would be better served by some other procedural device.

In their petitions and at the hearing on class certification, plaintiffs allege there are potentially 700 to 1000 plaintiffs who are tenants in complexes owned by these defendants (and possibly owners of other rental units) who suffered damages as a result of the May flood. They allege defendants are liable under LSA C.C. Article 2697 or Article 2700 for failure of defendants to make timely repairs, prorate rents, return prepaid rents and security deposits and to allow the revocation of leases.

Civil code article 2697 provides:

Total or partial destruction of thing during lease

If, during the lease, the thing be totally destroyed by an unforseen [unforeseen] event, or it be taken for a purpose of public utility, the lease is at an end. If it be only destroyed in part, the lessee may either demand a diminution of the price, or a revocation of the lease. In neither case has he any claim of damages.
Civil code article 2700 provides:
Necessary repairs during lease

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Bluebook (online)
681 So. 2d 965, 1996 WL 525856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pulver-v-1st-lake-properties-inc-lactapp-1996.