text:
    Lorena Hadley, Wife of/and Louis HADLEY v. The STATE of Louisiana through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2004-CC-1820.
    Supreme Court of Louisiana.
    Aug. 2, 2004.
   In re Louisiana State of; Transportation and Development Dept, of; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. C, No. 94-942; to the Court of Appeal, Fourth Circuit, No. 2004-C-0830.

Denied.

VICTORY, J., would grant the writ.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Jesse James CASTON.
    No. 2004-KK-1986.
    Supreme Court of Louisiana.
    Aug. 5, 2004.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Madison, 6th Judicial District Court Div. B, No. 108,550; to the Court of Appeal, Second Circuit,- No. 39058-K.W. ■ ■ •

Writ granted. The district court did not abuse its discretion in granting the Motion to Sever filed by the State. Consequently, the judgment of the court of appeal reversing the district court’s ruling of severance is reversed and the district.eourt’s order of severance is reinstated.

TRAYLOR, J., recused.


text:
    Lee Joseph PETITJEAN, Jr., et al. v. HIBERNIA NATIONAL BANK.
    No. 2004-CC-1707.
    Supreme Court of Louisiana.
    Aug. 5, 2004.
   In re Hibernia National Bank; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court. Div. F, No. 99-2849; to the Court of Appeal, Third Circuit, No. CW 04-00319,

Stay denied. Writ denied.


author: WALTER J. ROTHSCHILD, Judge. h EDWARDS, J.,

text:
    Vincent CARACCI and Frank J. Caracci v. COBBLESTONE VILLAGE CONDOMINIUM ASSOCIATION; Hanover Insurance Company; Anthony Scandaliato; Shelly Stephens and XYZ Insurance Company.
    No. 03-CA-1487.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.
    Rehearing Denied Aug. 9, 2004.
    Leonard L. Levenson, Kristine K. Sims, New Orleans, LA, for Plaintiff/Appellant.
    Charles L. Stern Jr., Alan M. Cohen, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

Vincent Caracci and Frank Caracci appeal from a judgment of the trial court granting a preliminary injunction.in favor of the Cobblestone Village Condominium Association. We affirm.

Plaintiff, Frank Caracci is the owner of a condominium unit within the development known as Cobblestone Village in Kenner, La. Plaintiff, Vincent Caracci is the resident of that condominium unit. Defendant, the Cobblestone Village Condominium Association, (CVCA), is a non-profit corporation designated as a manager of the condominium properties, In September of 2001, the Caracci unit sustained water damage which caused an infestation of toxic mold on the premises. The Carac-cis notified CVCA of these problems on September 26, 2001. CVCA through its insurer retained a mold contamination .evaluator. The report issued as a result of this evaluation confirmed the presence of mold contaminants within the Caracci unit and other units and further proposed remediation of this condition. The Carac-cis independently retained their own mold evaluation experts, who disagreed with the remediation plan proposed by the CVCA expert. On the [¡¡basis of this dispute, plaintiffs refused to allow CVCA to enter the premises to conduct th,e proposed mold remediation. ..

In May of 2002; plaintiffs filed the present suit for damages and breach of contract against CVCA,-its insurer and others for failure to maintain and repair the common elements of the condominium units, resulting in property damage to the Carac-ci unit. Subsequently, CVCA filed an answer and reconventibnal demand seeking a preliminary injunction'to obtain access to the Caracci unit to perform the remediation work.

This matter was heard by the trial court on September 20, 2003. At this hearing, the parties stipulated to a number of exhibits, including the condominium declaration, the subject insurance policy, reports of the mold assessment service, estimate for mold remediation, photographs of the properties , and general correspondence. The matter was taken under advisement by the trial court..

By judgment rendered on October 20, 2003, the trial court issued a preliminary injunction allowing CVCA access to - the Caracci’s condominium unit for the purpose of remediation services. The issuance of the injunction was conditioned on the posting of a- security bond in the amount of $1,000 by CVCA. It is from this judgment that the Caraccis now appeal.

By this appeal, the Caraccis raise six assignments of error. First, the Caraccis contend that the trial court erred in granting a preliminary ■ injunction where the condominium association had no authority to pursue the reconventional demand in this case. The Caraccis also contend that CVCA also was without power to contract with the remediation company as the remediation contract was not approved by the bylaws of the corporation. Further, plaintiffs contend that CVCA was without power to grant the remediation company indemnification. Plaintiffs also argue that the contract. between CVCA and the remediation company is illegal based on a 2003. Louisiana statute because the mold assessment service |4and the mold remediation service are owned by the same person. Plaintiffs argue that .CVCA breached its fiduciary duty to the Caraccis by contracting with the remediation service. Finally, the. Caraccis contend that .the bond set by the trial court for the preliminary mandatory injunction was insufficient.

Appellate courts review the issuance of a preliminary, injunction pursuant to the manifest error standard. Parish of Jefferson v. Lafreniere Park Foundation, 98-148 (La.App. 5 Cir. 7/28/98), 716 So.2.d 472, 478. In its reasons for judgment, the trial court stated as follows:

Upon of the law and the evidence, [sic], the Court finds that the defendant, Cobblestone Village Condominium Association is entitled to the relief sought for the purposes of performing mold remediation. Condominiums are- subject to both individual ownership and ownership .in indivisión of the common areas. Mold infestation is likely to affect individual units as well as common elements requiring a contractor to repair both areas. The association under the Condominium Declaration and the Louisiana Condominium Act is responsible for these repairs whether in individual units or common areas.
The plaintiffs raise several other issues, however, the Court finds that the only. issue pertinent to this particular proceeding is whether the Condominium Association has the right to enter the plaintiffs unit in order to perform remediation services. Therefore, the Court will not address any other issues at this time.

In order to obtain a preliminary injunction, a party must show its entitlement to relief by a preponderance of the evidence and must demonstrate that it will suffer irreparable injury absent the injunction. City of New Orleans v. Bd. of Directors of the Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748, 756; Lafreniere Park Foundation v. The Friends of Lafreniere Park, Inc., 97-152 (La.App. 5 Cir. 7/29/97), 698 So.2d 449, 452, unit denied, 97-2196 (La.11/21/97), 703 So.2d 1312.

The Louisiana Condominium Act applies to property made subject to it by a condominium declaration duly executed and filed for registry. La. R.S.- |fi9:1121.102. Condominiums are a unique property regime under which portions of immovable property are subject to individual ownership and the remainder is owned in indivisión by the unit owners collectively. La. R.S. 9:112L103(12). A unit owners association, which must be organized when the condominium is created, manages and regulates the condominium. La. R.S. 9:1123.101, 102. The responsibility for maintaining property insurance and repairing the damaged or destroyed portions of the condominium is placed upon the unit owners association. La. R.S. 9:1123.112.

Cobblestone Village’s Condominium Declaration which is contained in the record sets forth the requirements of a unit owners association as established by statute; As such, CVCA had the responsibility and the authority to make repairs to damaged portions of the condominium units. There is no dispute in the present case that the remediation work to correct the mold infestation cannot be performed without access to the Caracci unit. The record shows that the mold infestation that is affecting the Caracci unit also affects other units on the premises and will continue to -spread without remediation. Thus, pursuant to the Louisiana Condominium Act and the Condominium Declaration executed by Cobblestone Village, CVCA is entitled to access to the condominium units as necessary to make the needed repairs.' We conclude that CVCA showed by a preponderance of the evidence that it was entitled to a preliminary injunction allowing them access to the Car-acci unit for the purpose of mold remediation, and that absent the injunction, CVCA will suffer irreparable injury. The trial court was not manifestly erroneous in granting the preliminary injunction in this case.

Further, we find no merit in the Caracci’s claim that the bond set by the trial court for the granting of the injunction was too low. The trial court stated in its reasons that the bond should be minimal, which determination is supported by evidence that the mold infestation requires remediation as quickly as possible and |fithe condominium declaration requires CVCA to properly repair this condition. We find no abuse of the trial court’s -discretion in setting bond in this case.

The Caraccis’s remaining arguments concern CVCA’s ability to contract with the mold remediation company, as well as the contents and legality of that contract. Based on its determination that the only issue pertinent to the request for a preliminary injunction was whether CVCA had the right to enter the Caracci unit to perform remediation services, the trial court refused to address the other issues raised by plaintiffs regarding the remediation contract. W,e agree with this determination, and we further find that none of the issues raised by plaintiffs in brief affects the legal and contractual rights, and responsibilities of the condominium association to gain access to plaintiffs’ unit for the purposes of remediation and repair.

Accordingly, for the reasons assigned herein, the judgment of the trial court granting a preliminary injunction in favor of the Cobblestone Village Condominium Association and against plaintiffs, Vincent and Frank Caracci is hereby affirmed. Plaintiffs are to bear all costs of this appeal.

AFFIRMED

EDWARDS, J., dissents with reasons.

h EDWARDS, J.,

dissents.

In .its determination that the Association has the right to enter the appellants’ unit in order to perform remediation services, the trial court effectively determines some of the merits of the appellants’ underlying suit for damages and breach of contract: for example, on the .adequacy of the response of Hanover. Further, in my opinion, the additional issues raised by the Caraccis regarding the Association’s ability to contract with the mold remediation company, as well as the contents and legality of the contract, directly affects the.merits of the injunction. Deciding that the Association has the right to enter and begin repairs begs the question of the legality of the contract, and the Caraccis’ right to repair the damage according to their own experts.

I believe that the suit filed by -the Carac-cis should have been tried along with the trial on the preliminary injunction, for a full determination of all the issues. For these reasons, I respectfully dissent.


author: DREW, J.

text:
    BRIGHT MORNING STAR MISSIONARY BAPTIST CHURCH, Plaintiff-Appellee. v. Charles E. BROWN and Alberta Brown, Defendant-Appellants.
    No. 38,333-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 28, 2004.
    Rehearing Denied July 14, 2004.

      Evelyn Denise Kelly, Michael Wayne Kelly, Lake Providence, for Appellants.
    McIntosh, Fox & Lancaster by John M. Lancaster, Lake Providence, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   DREW, J.

A defrocked Baptist pastor and his wife appeal a judgment ordering their removal from their church. We affirm the judgment.

FACTS

Rev. Charles Brown was elected as pastor of Bright Morning Star Missionary Baptist Church (“BMS”) in 1997. Rev. Brown subsequently alienated members of the church due to his pastoral style, and they sought to remove him from his position as pastor. -

On April 19, 2002, BMS, an unincorporated non-profit association, filed a rule for a temporary restraining order and injunction against Rev. Brown and his wife, Alberta Brown. The rule stated that the Board of Deacons voted on March 22, 1998, to relieve Rev. Brown of his official duties, and that the congregation voted to dismiss Rev. Brown as pastor on April 15, 2002. It was alleged that Rev. Brown continued to conduct services despite the votes against him. It was further alleged that the Browns behaved improperly during services, attempted to elect their own Board of Deacons, and placed a mortgage on church property. BMS prayed for a temporary restraining order prohibiting the defendants from coming within 100 feet of any church property; having contact with or harassing a pastor, deacon, or congregation member; writing checks or .making payments from church accounts; or taking any action regarding church property or records. BMS also prayed that the defendants be further ordered to return any property belonging to the church.

Ón April 25, 2002, the trial court ordered all BMS records to be turned over to the clerk of court in order to determine the church members | ¡¡.who would be eligible to vote at a meeting to be held on May 3, 2002, to decide whether Rev. Brown would remain as pastor. Eligible church members would be those individuals who were members prior to April 15, 2002, and who had not subsequently transferred their membership to another church. This order was essentially vacated by stipulation of the parties on May 6, 2002, in order to permit the Louisiana Baptist Association to determine the BMS members eligible to vote and to call a meeting to determine whether Rev. Brown would remain as pastor.

On August 19, 2002, a group of individuals designating themselves as a disgruntled group of members of BMS filed a rule .to show cause and for injunctive relief against Rev. Brown and his wife. It was alleged- that despite three elections to remove him as pastor, Rev. Brown refused to leave the church. It was also alleged that an election to remove Rev. Brown was never called at the meetings held by the Louisiana Baptist Association. This rule sought essentially the same relief as prayed for in the original petition. The April 19 petition and this rule for injunc-tive relief were both verified by a church deacon, John Pritchard, and the acting recording secretary, Stephanie Darden.

The Browns filed the exceptions of lis pendens, lack of procedural capacity, and vagueness. Following three days of testimony, the trial court rendered judgment granting the relief sought by plaintiffs. The Browns were prohibited from entering or coming upon BMS’s property; prohibited from interfering with any pastor, deacon, or congregation member in the ^exercise of religious freedom at BMS; and ordered to return all records, books, checks, keys, and other documents or property belonging to BMS.

DISCUSSION

The Browns’ primary contentions on appeal are that the trial court erred in finding that Darden and Deacon Pritchard possessed procedural capacity to bring this action in the name of BMS, and erred in finding that the meetings were legally sufficient to remove the Browns.

Sufficiency of Meeting

BMS conducted two types of meetings: regular meetings and special, or called, meetings. Deacon Albert Howard testified that if a member had an issue that needed to be resolved, that issue would be brought to the deacons for a discussion. After the deacons made a recommendation, a meeting would be called and the issue would be presented to the congregation for a vote. Deacon John Pritchard testified that if a member requested a meeting, the deacons would present it to the pastor, and if the pastor did not want a meeting but the deacons thought the request had merit, then a meeting would be announced in church. Charlie Hill, a church member for 68 years, testified that before a congregation meeting would be held, the meeting time and purpose would first be announced at a church service, where it would normally be read by the church secretary. Generally, the pastor would preside over a meeting. However, if the meeting was about the pastor, such as when the pastor was under charges, then someone else, usually the head deacon, presided.

|/The exact number of church members could not be determined at trial, as an official roll kept by Secretary Maybelle Simpson was not available. Even Rev. Brown did not know the number of church members. Various witnesses gave estimates on the number. Deacon Howard thought there were 65 members in 1998. Deacon Carl Glass, who was appointed a deacon in June of 2001 and is Rev. Brown’s nephew, testified that membership was between 100-125 in 1998, and around 100 in April of 2002. He based his estimates upon the number of individuals drinking wine at the.Second Sunday service. However, non-members would also drink the wine. It was stipulated that Rev. Brown and his wife would testify that BMS had 90 to 100 members prior to the litigation.

Of course, not all members showed up at the various meetings. Ellie Howard testified that there were normally around 28 members at a typical regular business meeting. Deacon Pritchard believed that around 30 members would usually show up for meetings.

In any event, regardless of the actual number of church members, issues would be decided by a majority vote of those members present at a meeting. Interestingly, the selection of a pastor would be determined by a majority vote at a scheduled meeting. Rev. Brown agreed that a majority of church members present at a meeting, not a majority of the total church members, controlled. In fact, according to Deacon Howard, there was not even a quorum present when Brown was elected pastor, as 14 of 65 members voted to elect him. Hill also testified that pastors were elected by | sa majority of those* members present. We note that when the congregation met in January of 2001 to vote on a mortgage, the vote was 21-7.

There was apparently no procedure set forth by BMS for the removal of a pastor. Rev. Brown was unable to tell, the court the proper method of dismissing a pastor. He believed, however, that the dismissal of a pastor should follow the same procedure as the selection of a pastor. Rev. Henry Hudson, president of the West Carroll Baptist Association, thought that a majority of a church could remove a pastor.

The first meeting to remove. Rev. Brown was held on March 12, 1998. Bobbie Ept-ing recalled that Deacon Howard announced the meeting at church. Deacon Howard testified that the announced purpose of the March 12 meeting was to discuss the grievances against Rev. Brown, but then it was decided after the discussion that many members did not want Rev. Brown to remain as pastor, so a vote was held.

Deacon Howard served as the meeting’s moderator. Deacon Pritchard could not recall how many members were present for the meeting, but he felt the majority of the church was there and that a majority of members present voted in favor of removing Rev. Brown. Epting,-who served as spokesperson at the meeting, remembered that 17 members voted to dismiss Rev. Brown, while 7 members voted against dismissing him.

Although the minutes from the meéting do not reflect that a vote was taken, Deacon Howard believed that Secretary May-belle Simpson counted the votes at the meeting. He also thought a majority of the church was present. Deacon Howard stated that he ensured that the meeting and vote 1 fiwere conducted properly. Deacon. Pritchard remarked that those members running a meeting would usually just record the number of votes and not write down the names of the voters..

Déacon Pritchard and Deacon Roy Henderson executed an affidavit or verification four days after this meeting stating that Rev. Brown had been removed as pastor. The' affidavit, a letter to Rev. Brown outlining the grievances against him, and a list of signatures were sent to Rev! Brown by certified mail later that month. Rev. Brown admitted receiving the affidavit and the grievances. A list purported to be the list of members present at the meeting was introduced into evidence. Rev. Brown thought that some of the names on the list were probably members. Deacon Pritchard was not certain that the list in evidence was the list in question, but he thought it could be' because some of the names of the members who voted to remove Rev. Brown were on the list] Epting thought it was a list of names from 1998 and 2000 or 2002.

On March 22, 1998, the congregation met for a second time to determine whether or not Rev. Brown should be removed from,his position as pastor. Epting testified that this meeting was called because Rev. Brown’s supporters complained about the first meeting. Deacon Howard again presided at this meeting. Deacon Howard recalled that the grievances against Rev. Brown were discussed, but he was not sure if a vote was taken at this meeting. However, Deacon Pritchard. testified that the congregation was present at the March 22 meeting and a vote was held, with a majority of the members present and the deacons voting to dismiss Rev. Brown.

|7A resolution dated.March 22, 1998, was signed by Deacons Paul Scruggs, Howard, Pritchard, and Henderson. The resolution stated that the deacons had met in a spe-dal meeting and unanimously passed the resolution to dismiss Rev. Brown as pastor. Deacon Howard considered the resolution to be the deacon board acting on the grievances presented to them and voted on by the congregation on March 12. Deacon Pritchard testified that the church members authorized the deacons to draft the resolution, which was drawn up at an attorney’s office.

There was apparently also a meeting held in March with representatives of the West Carroll Baptist Association. Rev. Henry Hudson, President of the West Carroll Baptist Association, testified about meeting with Brown, the deacons, and possibly a few church members. He insisted that the meeting took place on March 22, 1998, and that no vote occurred while he was present. He also claimed that he was presented the typed deacons’ resolution at this meeting. Deacon Pritchard testified that the meeting with Rev. Hudson and Rev. Brown was not the same meeting as the meetings with the congregation that were conducted on March 12 and March 22.

Deacon Howard testified that Rev. Brown called a meeting for March 22 after receiving the grievances, but he was not sure if Rev. Hudson was present on that date. Deacon Howard believed that Rev. Hudson may have met with the deacons and Rev. Brown on a date prior to the March 12 meeting. Rev. Brown could not recall meeting .on March 22, but he |sremembered calling a meeting sometime in March of 1998 that was attended by Rev. Hudson. Rev. Brown stated that no vote occurred at this meeting.

A third meeting to remove Brqwn was held on April 15, 2002. The prior Sunday, Deacon Pritchard stood in church and announced the meeting. Rev. Brown’s response was that there would not be a meeting. A revival at Green Grove Baptist Church was scheduled on that date, but it was disputed whether or not Rev. Brown also mentioned the revival when telling the congregation that there would not be a meeting. Those testifying at trial agreed that meetings would generally not be scheduled on the same night as a revival.' However, some also testified that in such instances of scheduling conflict, an attempt would be made to reschedule the revival.

Deacon Pritchard related that he did not receive notice of this revival until the meeting was called. Epting claimed that Rev. Brown had earlier stated that they were not going to the revival at Green Grove because BMS was having a youth revival, but that Rev. Brown changed his mind after Deacon Pritchard announced the meeting.

Deacon Pritchard acted as the moderator at the April 15 meeting, and Stephanie Darden was appointed acting recording secretary. Epting motioned to remove Rev. Brown as pastor, the motion was seconded, and Deacon Pritchard called a vote. All 27 adult members present voted in favor of dismissing Rev. Brown. Deacon James Quinn, the husband of Rev. Brown’s sister-in-law, testified that he was present for this meeting and a vote did not take place.

|9The fourth and final attempt to dismiss Rev. Brown was held on July 26,2002. A notice of this meeting, including its stated purpose of determining whether Rev. Brown would remain as pastor, ran in the West Carroll Gazette on July 24, 2002. In addition, an announcement was made by Renwick Darden at the prior Sunday’s services that there would be a meeting to discuss the direction of the church.

Deacon Pritchard was the moderator and Stephanie Darden was the acting secretary at this fourth meeting. Epting motioned to dismiss Rev. Brown, the motion was seconded, and Deacon Pritchard called for a vote. The vote was 23-0 to remove Rev. Brown as pastor. Four individuals who favored dismissing Rev. Brown came to the meeting after it was adjourned. These four people were allowed to sign their names, but their votes were not included in the vote total.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. Department of Public Safety & Corrections, 01-2123 (La.9/4/02), 825 So.2d 1134; Stobart v. State, Dept. of Transp. and Dev., 61.7 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989).

ImBased upon our review of this record, we conclude that the trial court was not clearly wrong in finding the meetings were legally sufficient to terminate and dismiss Rev. Brown.

We also conclude that the trial court was not manifestly erroneous in also rendering judgment against Alberta Brown. Although Mrs. Brown was not the subject of a vote, the evidence established that Mrs. Brown was as disruptive as her husband in church matters. . Stephanie Darden testified that on one occasion during church services, Mrs. Brown screamed at her and messed up her hair. Deacon Pritchard testified . that Mrs. Brown coached her husband. His testimony gave the impression that Mrs. Brown, in effect, pulled Rev. Brown’s strings. There was also testimony that Mrs. Brown did not announce the July 2002 meeting at church even though the notice of the meeting had been placed on a clipboard for her to read to the congregation. She and her husband came as a package deal, and should go in a package deal.

The Browns additionally argue that the plaintiffs took action in contravention of the trial ■ court’s April 25, 2002 ruling. This assertion is without merit as both parties agreed to essentially vacate- that ruling on May 6, 2002.

Procedural Capacity

The dilatory exception of lack of procedural capacity raises the issue of want of capacity of the plaintiff to institute and prosecute the action and stand in judgment and/or challenges thé authority of a plaintiff who appears Inin a purely representative capacity. Gibbs v. Magnolia Living Center, Inc., 38,184 (La.App.2d Cir.4/7/04), 870 So.2d 1111.

The trial court found that it was legally sufficient for plaintiffs to file suit either as “Bright Morning Star Missionary Baptist Church, an unincorporated association,” or as a “disgruntled group of members of the Bright Morning Star Missionary Baptist Church/’ The court concluded that BMS was an unincorporated association represented by authorized officers. The court also , added that the doctrine of virtual representation gave the plaintiffs the right to sue on behalf of themselves and others similarly situated.

. La. C.C.P. art. 689 provides that an unincorporated association has -the procedural capacity to sue to enforce its rights in its own name, and appears through and is represented by its president or .other authorized officer. ...

The doctrine of virtual representation recognizes the right of a few persons to sue on behalf of themselves and all other persons similarly situated. Jennings v. C.S. Lester, 76 So.2d 91 (La.App. 2d Cir.1954).

Charlie Hill agreed that any member of the group who voted in favor of removing Rev. Brown has the right to sue to remove him. Ellie Howard, a church member since 1945, testified that she, Stephanie Darden, Deacon Pritchard, and other members met with their attorney regarding Rev. Brown’s removal. She related that their attorney explained to them that he would only need one or two spokesmen in order to file suit on their behalf. They agreed that Darden and Deacon Pritchard would speak for them.

| ^Stephanie Darden testified that a majority of those members present at the July 26, 2002, meeting asked her and others to see an attorney after Rev. Brown refused to leave. Darden also stated that she and Deacon Pritchard were authorized by those who voted for Rev. Brown’s removal to represent them and file suit on their behalf. She added that she was appointed spokesperson at their attorney’s office.'

Deacon Pritchard testified that some church members approached him and requested that he contact an attorney as their representative. He felt that as a deacon he was obligated to do the bidding of the majority of the church members who voted for removal, and that he filed suit while acting as a deacon and officer of BMS.

Epting testified that Deacon Pritchard and Darden were appointed to represent them on the-date the trial court issued an order in this matter concerning the times for use of the church. She also testified that they met with their attorney and told him that Deacon Pritchard and Darden represented them.

There was no written authorization for Deacon Pritchard and Darden to sue. Nevertheless, the evidence established that they received verbal authorization. By the nature of his position, Deacon Pritchard was obligated to do the bidding of the many church members opposed to Rev. Brown. Thus, he was an authorized officer under La. C.C.P. art. 689. As recording secretary, Darden was also an officer. Moreover, when the second rule was filed on behalf of disgruntled members of BMS, Deacon Pritchard and 113Parden were suing not only on behalf of themselves but, pursuant to the doctrine of virtual representation, also on behalf of those similarly situated.

Accordingly, we find no error in the trial court’s denial of the exception of lack of procedural capacity.

Lis Pendens

The Browns additionally argue that the trial court erred in denying their exception of lis pendens. La. C.C.P. art. 531 provides that when two or more suits are pending in a Louisiana court on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed. In this matter, only one suit was pending. In fact, the second rule was filed under the same docket number as the original rule, 25,564. Accordingly, there was no error in the trial court’s denial of the exception.

Court Costs

In their final assignment of error, the Browns contend the trial court erred in ordering them to pay all court costs. We defer to the discretion of the trial court and conclude that the trial court did not abuse its discretion in ordering the Browns to pay all court costs.

DECREE

At appellants’ costs, the judgment is AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, PEATROSS, DREW and MOORE, JJ.

Rehearing denied.


author: | JAMES L. CANNELLA, Judge. | DUFRESNE, J., EDWARDS, J.,

text:
    Terrie DANIELS, Amanda L. Grant, and Vanessa C. Domino v. WITCO CORPORATION.
    No. 03-CA-1478.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 1, 2004.
    Rehearing Denied Aug. 9, 2004.

      Sidney D. Torres, III, Roberta L. Burns, Law Offices of Sidney D. Torres, III, Chalmette, LA, Irving J. Warshauer, Gerald E. Meunier, Gainsburgh, Benjamin, David, Meunier & Warshauer, Gilbert V. Andry, III, Jerald N. Andry, Jr., Andry & Andry, New Orleans, LA, for Appellants.
    S. Gene Fendler, Carol Welborn Reis-man, Liskow & Lewis, New Orleans, LA, William W. Hall, Metairie, LA, for Appel-lee.
    Panel composed of Judges EDWARD A. DUFRESNE, JAMES L. CANNELLA, MARION F. EDWARDS, SUSAN M. CHEHARDY and WALTER J. . ROTHSCHILD.
   | JAMES L. CANNELLA, Judge.

The Plaintiffs, Terrie Daniels, Amanda L. Grant, and Vanessa Domino, appeal from the trial court ruling in favor of the Defendant, Witco Corporation , denying their motion for class certification. For the reasons which follow, we reverse and remand.

On June 30, 1998 the Plaintiffs filed a Class Action Petition for Damages from an explosion and fire which occurred on July 9, 1997 on the Defendant’s premises at its Harvey, Louisiana chemical plant. As found by the trial judge, the explosion ignited a chemical fire that lasted for a period of time. Certain chemical elements, carbon monoxide, carbon dioxide, and particulate matter, were emitted into the air. The áecident was due to a misalignment of a valve by one of the Defendant’s employees. The Plaintiffs timely sought class certification pursuant to La. C.C.P. art. 592(A)(1). A hearing on the issue was held and the trial court, after taking the matter under advisement, rendered judgment on September 23, 2003 denying the Plaintiffs’ motion for class action certification. In her denial of certification, the trial judge only addressed the requirement of La. C.C.P. art. |o591(B)(3), that the common issues predominate over the individual issues. In doing- so, she expressly stated that she was not making a determination on any of the other class certification requirements set out in La. C.C.P. art. 591. The trial court reasoned that:

• Plaintiffs “common issues” and defendant’s stipulation of liability and general causation cross each other out and the only remaining factor is “primary causation of harm” to each individual plaintiff and the amount of compensatory damages to be awarded, which is Phase Two of plaintiffs proposed trial plan. Included in primary causation of harm, there will be the issue of the amount of chemicals released and the “footprint” of the dispersion.

It is from this ruling that the Plaintiffs appeal.

La. C.C.P. art. 591 provides the guidelines for class action certification as follows: ■

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 join-der 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.
B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
|4(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 the party opposing the class, or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(8) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
|b(4) The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subpara-graph B(3) might not otherwise be met.
C. Certification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class. However, following certification, the court shall retain jurisdiction over claims or defenses dependent for their resolution on proof individual to a member of the class.

Under Louisiana law, in order to meet class certification requirements, plaintiffs must meet all of the requirements of La. C.C.P. art. 591(A) and fall within one of the subsections of 591(B). Defmites v. State Farm Mut. Auto. Ins. Co., 03-1081 (La.App. 5th Cir 1/27/04), 864 So.2d 254. The burden of establishing that the statutory criteria are met falls on the party seeking to maintain the class action. Cooper v. City of New Orleans, 01-115 (La.App. 4th Cir.2/14/01), 780 So.2d 1158, writ denied, 01-720 (La.5/11/01), 792 So.2d 734; Billieson v. City of New Orleans, 98-1232 (La.App. 4th Cir.3/3/99), 729 So.2d 146, 154, writ denied, 00-946 (La.10/29/99), 749 So.2d 644 and writ denied, 99-960 (La.10/29/99), 749 So.2d 645. A trial court has wide discretion in deciding whether to certify a class and the decision will not be overturned absent a finding of manifest error or abuse of discretion. Defraites, supra; Adams v. CSX Railroads, 92-1077 (La.App. 4th Cir.2/26/93), 615 So.2d 476. However, any errors to be made in deciding class action issues should be in favor of and not against the maintenance of the class action, because a class certification order is subject to modification, if later developments during the course of the trial so require. McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612 (La.1984); Johnson v. E.I. Dupont de-Nemours and Co., 98-229 (La.App. 5th Cir.10/14/98), 721 So.2d 41.

The purpose and intent of a class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to the class | ¿representatives who bring the action, but to all others who are similarly situated, provided they are given adequate notice of the pending class action and do not timely exercise their option of exclusion. Defraites, supra; Doerr v. Mobil Oil Corp., 01-775 (La.App. 4th Cir.2/27/02), 811 So.2d 1135, 1141, writ denied, 02-920 (La.5/31/02), 817 So.2d 105 and vnit denied, 02-938 (La.5/31/02), 817 So.2d 106. The interests of justice are not served by the needless time consuming repetition of evidence and litigation of issues in individual trials on a one-by-one basis which are common to the claims of all affected. 5 Newberg on Class Actions, § 17:1 at p. 298 (4th ed.2002).

In this case, the trial court did not make any findings under Subsection (A). Instead, solely upon finding that “predomi-nancy” under Subsection (B)(3) was lacking , that is, that the questions of law or fact common to the members of the class did not predominate over questions affecting only individual members, the court denied class certification. Thus, the only ruling before this Court for review is the trial court finding that the predominancy requirement was lacking. We must determine whether this finding was manifestly erroneous.

Under La. C.C.P. art. 591(B)(3), the “predominance requirement”, the trial court must determine whether questions of law or fact common to the members of the class predominate over any questions affecting only individual members. While subsection (A)(2) of that article requires that there be questions of law or fact common to the class, subsection (B)(3) requires further that these common 17questions predominate over any questions affecting only individual members. This requirement restricts class actions to those cases in which it would achieve economies of time, effort, and expense, and promote uniformity of decisions as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. Singleton v. Northfield Ins., Co., 01-0447 (La.App. 1st Cir.5/15/02), 826 So.2d 55, Twits denied, 02-1660 (La.9/30/02), 825 So.2d 1200. The predominance requirement is intended to ensure that the disallowance of individual trials is warranted by a subjective gain in efficiency. Watson v. Shell Oil Company, 979 F.2d 1014 (5th Cir.1992). Subsection (B)(3) of article 591, taken from Federal Rule 23(b)(3), requires that “resolution of the common questions affect all or a substantial number of the class members.” Jenkins v. Raymark Industries, Inc., 782 F.2d 468 (5th Cir.1986).

In reviewing a trial court’s certification ruling on appeal, the appellate court is not called upon to review whether the plaintiffs will ultimately prevail on the merits,, nor review the plaintiffs’ claims on their substantive merit. Eisen v. Carlisle Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Duhe v. Texaco, Inc., 99-2002 (La.App. 3rd Cir.2/7/01), 779 So.2d 1070, unit denied, 01-637 (La.4/27/01), 791 So.2d 637. Rather, the task presented to the appellate court is to determine whether the certification of the action as a class is appropriate in light of Louisiana’s established criteria. Defraites, supra. Nevertheless, an examination of the plaintiffs’ substantive legal claims is necessary to make a determination of whether certification of the class is appropriate in the case.

In this case, as pointed out by the Defendant, to succeed the Plaintiffs must prove (1) fault, (2) injury, (3) causation and (4) damages. In proving their case, the Plaintiffs will have to prove that an explosion and fire occurred at the Defendant’s plant, through the Defendant’s fault, that the.Defendant breached a duty it owed to the Plaintiffs, that toxic chemicals were dispersed as a result, that the dispersion IsPatterns of the chemicals included areas of the class, that the level of the chemicals dispersed were capable of causing compen-sable harm and the amount of each Plaintiffs damages. Based on the cause of action asserted in this case, there are clearly numerous common questions of law and fact as to the members of the class. However, this is a much less demanding finding than whether the common issues predominate under 591(B)(3). Under La. C.C.P. art. 591(B)(3), the only factor ruled on by the trial judge herein, the question we must consider is whether the trial court erred in finding that these common issues do not predominate over issues affecting only individual members of the class.

It is well settled that the existence of individual damage issues is not a bar to class certification. Bartlett v. Browning-Ferris Industries Chemical Services, Inc., 99-0494 (La.11/12/99), 759 So.2d 755; McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612 (La.1984); Davis v. American Home Products Corp., 02-0942 (La.App. 4th Cir.3/26/03), 844 So.2d 242, writs denied, 03-1180 (La.6/27/03), 847 So.2d 1279; Atkins v. Harcross Chemicals, Inc., 93-1904 (La.App. 4th Cir.5/17/94), 638 So.2d 302, writs denied, 94-2158, 94-2161 (La.11/11/94), 644 So.2d 396; Adams v. CSX Railroads, 615 So.2d 476 (La.App. 4th Cir.1993); Billieson v. City of New Orleans, 98-1232 (La.App. 4th Cir.3/3/99), 729 So.2d 146. In Billieson v. City of New Orleans, 98-1232 (La.App. 4th Cir.3/3/99), 729 So.2d 146, the court noted that “the fact that resolution of class actions sometimes places added responsibilities and burdens on the trial court actually hearing the case should not be allowed to overcome the fact that a class action meeting all the requisites .will ‘facilitate a prompt, efficient, and relatively inexpensive single trial on the common nucleus of issues’ as compared to hearing the cases separately. McCastle, 456 So.2d at 620.” In accord, 2 Newberg on Class Actions, § 4:25 at p. 169-160, discussing the United States Second Circuit case In re Visa Check/Master-Money Antitrust Litigation, 280 F.3d 124 (2nd Cir.2001), cert. denied, 536 U.S. 917, 122 S.Ct. 2382, 153 L.Ed.2d 201 (2002), noted:

There are some situations where courts have determined that a case is not manageable as a class action because of the necessity for individualized damages determinations, but nevertheless, failure to certify an action under Rule 23(b)(3) on the sole ground that it would be unmanageable is disfavored and should be the exception rather than the rule.... [T]here are a number of management tools available to a district court to address any individualized damages issues that might arise in a class action....

Thus, we are here confronted with the difficult problem of balancing procedural fairness with judicial efficiency in the management of mass tort litigation.

Louisiana courts have recognized the usefulness of the class action procedure in mass tort cases, especially those arising from a common cause or disaster. In Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La.9/9/97), 703 So.2d 542, our Supreme Court addressed the question of whether class certification was appropriate in a case involving four different defendants emitting different types of substances over a four year period. In denying class certification in that case, the Court noted that class certification could be proper in a mass tort case that arises from a common disaster. The Court discussed the history of our class action law and noted that our law was modeled on the federal rules, particularly Federal Rule 23. The Court, then referencing a leading United States Supreme Court class action case, Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), noted that “mass tort cases arising from a common cause or |10disaster may, depending upon the circumstances, satisfy the predominance requirement.” The Court went on to state:

it is clear that a mass tort case may meet the requirements of Rule 23(b)(3) if it “arisfes] from a common cause or disaster,” but even then, the appropriateness of class certification will depend on the circumstances. That only mass torts “arising from a common cause or disaster” may be appropriate for class certification is in line with our holding today and the underlying reasoning of this court’s prior jurisprudence.

In Singleton v. Northfield Ins., Co., 01-0447 (La.App. 1st Cir.5/15/02), 826 So.2d 55, writs denied, 02-1660 (La.9/30/02), 825 So.2d 1200, the court, in affirming class certification involving a common disaster (blowout, fire and emission of toxic chemicals), discussed the predominance requirements stating:

Article 591A(2) requires that there be questions of law or fact common to the class. Paragraph B(3) of that article requires that these common questions predominate over any questions affecting only individual members. This requirement restricts class actions 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, 456 So.2d at 616.

The court went on to hold, in Singleton, that the “issue of liability predominates over any questions important to only individual members of the class, such as the type and extent of their damages.”

Most recently, in Bartlett v. Browning-Ferns Industries Chemical Services, 99-0494 (La.11/12/99), 759 So.2d 755, the Supreme Court, in a Per Curiam opinion which ultimately recalled the writ, noted:

This Court granted plaintiffs’ writ application to review the correctness of the court of appeal’s judgment. Bartlett v. Browning-Ferris Indus. Chem. Serv., Inc., 99-0494 (La.7/2/99), 747 So.2d 2. In granting the plaintiffs’ writ application, this Court was particularly concerned that the court of appeal committed an error of law in denying class certification based primarily on plaintiffs’ burden of proving damages. As we have made clear before and reiterate today, the mere fact that varying Indegrees of damages may result from the same factual transaction and same legal relationship or that class members must individually prove their right to recover does not preclude class certification. See McCastle v. Rollins Envir. Seros, of La., Inc., 456 So.2d 612, 620 (La.1984); State ex rel. Guste v. G.M. Corp., 370 So.2d 477, 489 (La.1978).

Mass tort cases arising from a common cause or disaster have been recognized as appropriate for class certification. Moreover, class certification is -not to be denied solely because of individual damage issues where the resolution of common issues will be judicially efficient, furthering the purpose for class actions.

The factual basis common to all the class members in this suit is that due to the Defendant’s fault, there was an explosion at the Defendant’s plant that caused the emission of toxic chemicals which, by their nature, quantity and disbursement pattern, caused compensable harm to the Plaintiffs. The liability of the Defendant is the central issue, which is common to all of the claimants. Certification'of the class will result in unitary adjudication and resolution of the common issues in a judicially economic manner and promote the purpose of class action procedure by obtaining a res judicata effect on all issues common to all who are similarly situated. While the claimants will have individual issues such as the type and extent of their damages, the' individual damage issues are not a bar to class certification. -The difficulties that arise in calculating each claimant’s damages can be controlled through a case management plan. La. C.C.P. art. 592. See also Richardson v. American Cyanamid Co., 99-675 (La.App. 5th Cir.2/29/00), 757 So.2d 135, writs denied, 00-0921 (La.5/12/00), 761 So.2d 1291.

In view of the foregoing, we find that in this case, like Singleton, where the cause of action of all the claimants arises from a single occurrence and fault and general causation can be resolved more efficiently ,for the class than on an individual basis, the common issues of law and fact predominate over the 112individual damage issues and the. trial court was manifestly erroneous and abused its discretion in holding otherwise.

The Defendant argues that because it has stipulated to fault as to the cause of the explosion and to general causation, that is, that the substances released in the air following the explosion could, in certain combinations and quantities, cause injury, it is in a different posture from Singleton. The Defendant argues that this stipulation effectively removes any common issues from the case such that only the individual issues of each claimant remain and, therefore, predominate. The trial court, in its reasons for judgment, agreed with this argument in finding that the common issues did not predominate.

The Plaintiffs point out, however, that this reasoning is flawed in several respects. First, although the Defendant has admitted that the released chemical compounds can cause injury at certain levels, they dispute that these levels were reached in this case and/or that any of the Plaintiffs were exposed to toxic injury causing combinations of chemical levels. Thus, some common issues do remain to be proven. Moreover, the stipulation is more of an admission of common issues than a negation of them. If the class is certified, a stipulation of fault will significantly and efficiently move the case forward for hundreds of plaintiffs rather than, without certification, requiring individual litigation in each separate case.

Furthermore, the ability of the plaintiff to prove his case or the means by which he meets his burden is not at issue in the certification hearing. As stated above, we do not herein make any finding as to whether the Plaintiffs can or will ultimately prevail on the merits. Rather, we are only making a determination as to whether there are common substantive issues in this case that predominate over individual issues. The question of whether there are predominant common questions of law and fact in a class certification inquiry is different from how such | tissues will ultimately be established, i.e., by evidence and testimony or by stipulation and settlement.

As stated above, the purpose and intent of class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to the representatives who bring the action but to all others who are similarly situated. Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La.9/9/97), 703 So.2d 542. If the class is not certified, and each claimant is forced to bring his or her own suit, the purpose of the class action procedure, efficient resolution and the res judicata effect on all common issues, would be defeated.

A stipulation by the Defendant, like a settlement, that resolves the fault issue as well as the general causation issues as to all the class members, tends to satisfy the predominance requirement, not negate it. The prospect for encouraging settlements weighs in favor of finding that common issues predominate. Central Wesleyan College v. W.R. Grace & Co., 6 F.3d 177 (4th Cir.1993). We find that the principles applicable to settlements are applicable here where the Defendant’s are stipulating to fault. Thus, in this case, we find that the unitary resolution or adjudication of the issues common to the class, even if by stipulation, satisfies the purpose of the predominance requirement by achieving economy of judicial time, effort and expense and promoting uniformity of decisions among those similarly situated. See In Re School Asbestos Litigation, 789 F.2d 996 (3d Cir.1986).

The trial court ruling herein, that class certification should be denied based on the lack of predominance of common issues, is contrary to the very purpose of the requirement, to promote judicial efficiency, uniformity of results, and a res judicata effect on all those similarly situated that would result with a contrary finding and with fault and general causation being admitted. Therefore, we find that the fault and causation issues, notwithstanding the stipulation, are common to all the class members and predominate over the individual issues. The trial court 114ruling to the contrary is manifestly erroneous. Any difficulties that the trial court faces with resolving the individual damage issues are not a reason to deny certification and can be alleviated or controlled by a case management plan or other options provided in La. C.C.P. art. 592.

Accordingly, for the foregoing reasons, the ruling of the trial court denying class certification is reversed and set aside and the case is remanded for the trial court to rule on all the remaining class certification issues presented in La. C.C.P. art. 591 and as are pertinent to a ruling on certification in this case. Costs of appeal are assessed to the Defendants.

REVERSED AND REMANDED.

DUFRESNE and EDWARDS, JJ., DISSENTS.

| DUFRESNE, J.,

dissents.

For the reasons assigned by Judge Edwards, I respectfully dissent.

EDWARDS, J.,

dissents.

I respectfully dissent from the finding made by the majority that there are lingering common issues which predominate over individual issues. I find that the stipulations by the defendant as to the cause of the incident by operational error, and to general causation, resolve the only issues truly common to these plaintiffs. The relevant question remaining is not whether the emissions had the capacity to cause harm, but whether they in fact did cause harm and to whom. That determination is highly idiosyncratic, and proof of causation will depend on individual factors such as the nature of each plaintiffs exposure and personal susceptibility. Although the existence of individual damage issues is not a bar to class certification, in the present case the criteria for the proposed class are far too general. In the absence of more specific, objective criteria, the individual issues clearly predominate.

The trial judge has vast discretion in determining whether to certify- a class. Mayho v. Amoco Pipeline Co., 99-620 (La. App. 5 Cir. 12/15/99), 750 So.2d 278, writ denied 2000-0110 (La. 3/17/00), 756 So.2d 1143. I find no abuse of discretion in the determination by the trial court that plaintiffs failed to prove any remaining common issues predominate over the many remaining individual issues.

Because our inquiry is limited to the findings of the court under C.C.P. art. 591(B)(3), we need reach no other questions.

      . Without explanation, the record indicates that Witco Corporation became Crompton Corporation. For consistency, we will refer to the Defendant as Witco Corporation.

      . By order dáted March 12, 2004 we denied the Defendant’s Motion To Dismiss Appeal upon finding that "[although the ruling is interlocutory, deferring review of this 'decision may cause irreparable injury.”

      . Despite the two-prong requirement of 591(B)(3), predominance and superiority, with several factors listed for the court's consideration thereunder, the trial court herein did not consider anything beyond finding that the common issues did not predominate over the individual ones. The court did not consider the superiority prong or the factors related thereto.

      . The Plaintiffs argue that this procedure by the trial court was per se erroneous, requiring reversal of her decision as a matter of law on this procedural basis. In view of our finding that denial of certification of the class based on the predominance requirement was manifestly erroneous, we do not address this argument by Plaintiffs but note the procedure with disfavor. The findings under La. C.C.P. art. 591(A) bear significantly on the considerations in subsection (B). Further, under this procedure, the appellate court could be called upon to review certification rulings piecemeal if the trial court rules on each subsection of 591(A) and (B) one-by-one. This is not judicially efficient and is disfavored. Moreover, decisions on class certification can be influenced by the totality of the circumstances of the case and should not be viewed in such a myopic fashion. For example, Louisiana courts have recognized that class actions are favored when, as in this case, they involve vindication of the rights of persons with negative value lawsuits. Clark v. Trus Joist MacMillian, 02-676, 02-512 (La.App. 3rd Cir. 12/27/02), 836 So.2d 454, writ denied 03-0275 (La.4/21/03), 841 So.2d 793; Duhe v. Texaco, 99-2002 (La.App. 3rd Cir.2/7/01), 779 So.2d 1070, writ denied 01-0637 (La.4/27/01), 791 So.2d 637.

      . The trial court did not make a commonality finding under La. C.C.P. art. 591(A)(2), declining to do so because of her finding that predominance was lacking. However, the commonality finding is a prerequisite to consideration of the predominance requirement of 591(B)(3).

      . On application for rehearing, the Court granted the rehearing in part to remand the case to the trial court for consideration under La. C.C.P. art. 593.1 of whether to permit amendment of the pleadings. The action did not affect the main opinion and principles espoused therein and referenced above. Ford v. Murphy Oil, U.S.A., Inc., 96-2913 (La. 10/10/97), 710 So.2d 235.


author: 11 WILLIAMS, J.

text:
    STATE of Louisiana in the interest of. J.C.O.
    No. 38,661-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    June 2, 2004.

      Herman A. Castete, Derwyn D. Bunton, for Appellant.
    James E. Lewis, Assistant District Attorney, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   11 WILLIAMS, J.

The juvenile, J.C.O., adjudicated delinquent after pleading guilty to oral sexual battery, a violation of LSA-R.S. 14:43.3, appeals from a disposition committing him to the custody of the Department of Public Safety and Corrections (“DPS”) until his nineteenth birthday. We affirm.

FACTS AND PROCEDURAL HISTORY

On August 13, 2003, the Winn Parish District Attorney filed a petition to declare J.C.O., born on August 9, 1989, a delinquent child. The petition alleged that on August 2, 2003, J.C.O. committed the offense of oral sexual battery upon another juvenile, J.S., who was under the age of fifteen and at least three years younger than J.C.O. The victim of the act was an eight-year-old girl. On August 18, 2003, J.C.O. appeared in court with his parents, but without counsel, and the court explained J.C.O.’s rights including the privilege against self-incrimination and the right to confront witnesses. The court also explained that the maximum disposition for this offense was placement of J.C.O. with DPS until J.C.O. reached the age of twenty-one. The court entered a denial to the petition on behalf of J.C.O. and ordered the appointment of an attorney.

On September 15, 2003, J.C.O., now represented by counsel, and his parents again appeared in court to allow J.C.O. to enter an admission to the allegations in the petition. At the beginning of the hearing, in the presence of J.C.O. and his parents, the juvenile’s attorney informed the court:

| aI have discussed this matter with the parents and step-parents and the child and at this time, it is my understanding that [J.C.O.] would withdraw his previous denial in this matter and enter an admission. I have told him what the cap is on the sentence. Also, that the sentence would be next month at [sic] dispositional hearing and. we would put on some evidence at that time.

The court then explained the nature of the charge against J.C.O., and in doing so ■stated:

At the disposition of this matter, the court has advised [counsel for J.C.O.] that the cap on this matter would be that he would be placed in the custody of the State of Louisiana, Juvenile Division until his nineteenth birthday. I will allow a disposition hearing for facts that you may wish to present and also that the state may wish to present at that time.

J.C.O. indicated that he understood the court’s statements. Next, the court engaged- J.C.O.’s parents in a colloquy which included the following:

Judge: All right. ■ [J.C.O.’s father], you understand the cap that I placed on this matter?
Father: Yes, sir.
Judge: And also, the mother, you understand that?
Mother: Yes, sir.

After explaining the juvenile’s constitutional rights, the court then informed J.C.O. and his parents that:

And if you disagree with any decision that is made [sic] of the trial court, there is an appeal that may be made through the Court of Appeals in Shreveport....

The juvenile and his family affirmed that they understood. Subsequently, the court accepted the juvenile’s admission to the allegation in the petition and adjudged J.C.O. delinquent based upon his commission of oral sexual battery. The record shows that the court did not order any ^examination of J.C.O. pursuant to La. Ch. C. art. 888. ‘ .

On November 17, 2003,. the court called the matter for a dispositional hearing, but rescheduled the hearing to December 15, 2003, due to the unavailability of a witness, Matthew Thornton, 'and the absence of Thornton’s counseling report on J.C.O. On December 15, 2003, the court held the ■dispositional hearing over the objection of the juvenile’s attorney. The attorney believed that the matter had been continued when it had not, and a psychological examination of J.C.O. was scheduled for December 17, 2003. The psychological examination had been scheduled by the DPS. The court elected to proceed without the benefit of the examination.

At the dispositional hearing, the juvenile called Steve Turner, a juvenile probation and parole officer with the Office of Youth Development (“OYD”), to testify about the results' of his pre-dispositional investigation. The OYD’s report was' introduced into evidence. The report shows that J.C.O. suffered from asthma and had failed kindergarten and the first . and sixth grades due to health problems. He was set to repeat the sixth grade in 2003 and had made good grades, except in math. The OYD spoke with J.C.O., his family, the victim and her family. J.C.O.’s mother and step-father live across the street from the victim and her family, but his father and step-mother lived “on the other side of Winn Parish.” J.C.O.’s parents believed that the best disposition would be to order J.C.O. to live with his' father, a greater distance away from the victim. The report indicates that J.C.O. claimed to be a follower in the delinquent act, but he was remorseful.

Turner testified that there were no records to show that J.C.O. had |4“ever been involved in any type of activity with the state”; the report indicated that J.C.O. had no history of inappropriate behavior at home, at school or in the community. Turner also testified that J.C.O. had shown “much remorse” for what he had done. The recommendation of the OYD was that J.C.O. be placed in the custody of the DPS until his seventeenth birthday, but that custody be suspended and the juvenile be placed on probation with various restrictions until his seventeenth birthday. Turner noted the pending psychological evaluation, but on cross-examination said that the evaluation was not mandatory and was calculated, at least in part, to tailor the rehabilitation services to be provided to the juvenile and not to the disposition.

Turner testified that in reviewing J.C.O.’s record for prior delinquent behavior, he reviewed the files in his office but not those of the Winn Parish Sheriffs Office. He also noted some discrepancies between the official incident reports and the account of the incident given to him by J.C.O.

The report of the North Louisiana Crim-inalistics Laboratory concerning the impact of the act on the juvenile victim was also entered into evidence. The report, prepared on the day after the act occurred, contains a description of the injury to the victim’s genital area, noting abnormal redness and swelling. The report also indicates that the victim suffered pain in her “private area” and burning with urination. Notably, this report contains a description of the incident provided by the victim. The victim was not called to testify. The victim’s statement in the report indicates in part that “[J.C.O.] touched me in my private area with his hand and then |5with his private.”

Also called to testify was Matthew Thornton, a family therapist who had counseled J.C.O. after this incident regarding the potential separation between J.C.O. and his family due to the disposition. Thornton testified that J.C.O. appeared to be remorseful and that he and his family wanted to conclude the matter. Thornton’s report also was introduced into evidence.

The state called Paul Alsup, an investigator and juvenile officer with the Winn Parish Sheriffs Office, to testify. Alsup testified that in April 2001, he investigated allegations of sexual battery and oral sexual battery against J.C.O. by J.C.O.’s six-year-old and four-year-old male cousins. No conclusion was reached by the sheriffs office, but the matter was referred to the district attorney’s office where no further action was taken.

At the conclusion of the dispositional hearing, the court declined to follow the recommendation of the OYD, but instead elected to place J.C.O. in the custody of the DPS. The court stated:

Let the record reflect that those present being the juvenile, both his mother and father.... The court makes the following factual findings, the juvenile in this case is before the court for disposition. The exhibits included the state recommendation, medical record of victim and expert witness to the court. State report recommendation is not accepted by the court due to several matters not being address [sic]. The testimony of the officer does not reflect any investigation with the juvenile officer of Winn Parish. The juvenile office [sic] testified that he had received a previous complaint. No action was taken on this complaint and therefore, should not be considered as a part of this proceeding, other than to reflect the lack of investigation to support the recommendation. The report also reflected the juvenile did understand the nature of his act. The victim report part [sic] responded there was no injury. However, the medical report submitted by the defense reported the victim suffered pain and burning in her private area. The long term mental effect on the juvenile victim was not' assessed and will probably 1 fiOnly be measured by the victim’s recovery for a longer period of time. It would be error to speculate that [but] to disregard the seriousness of the attack upon the female victim would not be appropriate. The juvenile was at the home of the victim by the consent of his mother and the parents of the juvenile victim. This juvenile, did in fact committed [sic] an oral sexual battery upon a young female. This act was a grave and serious violation of the right of privacy and dignity of a female victim of youthful age. This juvenile is in need of correctional treatment that can only be provided by a secure custodial environment. This juvenile requires extensive treatment and training, to reenforce in his mind that an offense of this nature will not be tolerated and should not occur again in the future. He is in need of a program of therapy and training, which could be provided by a secure custodial environment. To do less would deprecate the seriousness of the crime and fail to provide the behavioral training necessary to ensure this juvenile receives correct training, treatment and education of the consequences of inappropriate sexual behavior. Therefore, the sentence to secure detention is appropriate. File those findings. In accord, therewith, it is ordered and decree [sic] that effective this date, the 15th day of December, 2003, [J.C.O.]' having been adjudicated a delinquent of the following offense, oral sexual battery, delinquent disposition shall be until his nineteenth birthday. He is hereby placed in the custody of the Department of Public Safety and Corrections to be kept within the' jurisdiction of the court, pending further orders not to exceed his nineteenth birthday. It makes a further finding that reasonable efforts to prevent the removal are not necessary due to the serious nature of the act committed and the lack of local services available to provide for rehabilitation therapy. Reasonable efforts make it possible for his return, would be family therapy and behavioral therapy. The court only makes a recommendation that he be assigned to secure custody. That is the disposition of the court.

J.C.O. did not file a motion to reconsider the disposition, but now appeals, urging only that the disposition was excessive.

DISCUSSION

The most restrictive disposition for J.C.O. in this case would have been custodial placement with the DPS until J.C.O.’s twenty-first birthday. La. Ch. C. arts. 897(D) and 898; LSA-R.S. 14:43.3. However, J.C.O. admitted the allegation against him under the condition that his maximum disposition would be custodial placement with the DPS until J.C.O.’s nineteenth birthday; this “cap” was a part of the plea agreement on the record.

La. Ch. C. art. 803 provides:

The provisions of this Title shall govern and regulate delinquency proceedings of courts exercising juvenile jurisdiction. Where procedures are not provided in this Title, or otherwise by this Code, the court shall proceed in accordance with the Code of Criminal Procedure.

See also La. Ch. C. art. 104. With certain exceptions, a juvenile court retains the power to modify a disposition at any time the disposition is in force. La. Ch. C. art. 909; State v. J.R.S.C., 2000-2108 (La.6/1/01), 788 So.2d 424. This procedure differs from cases involving adult offenders where a legal sentence may be modified only upon a motion to reconsider sentence filed within the time limits set by LSA-C.Cr.P. art. 881.1.

LSA-C.Cr.P. art. 881.2 provides, in part:

(A)(2) The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.

Although the court informed J.C.O. that he had the right to appeal, the imposition of a disposition in accordance with an agreed-upon cap is not on appealable decisions. The juvenile’s counseled decision to admit the allegations in the petition in exchange for a sentencing cap was an agreement in his favor, and he is not, in the absence of a ruling on a motion to modify the disposition based on specific grounds, entitled to appellate review of the disposition.

| aEven if this court were to review the disposition on the theory that the juvenile was misled into believing that he was entitled to appeal the disposition, we would not find the disposition constitutionally excessive. Absent a showing of manifest abuse of the wide discretion afforded the juvenile court, a disposition will not be set aside as constitutionally excessive. State in Interest of T.L., 28,564 (La.App.2d Cir.5/8/96), 674 So.2d 1122. The record shows that the criminal act in this case was a sexual offense against an eight-year-old child, and that the child suffered injury to her genital area. There is very little victim impact information in this record, but we agree with the trial court that it would be error to disregard the seriousness of the attack on the victim. The record further indicates that the offender was aware of what he was doing and knew that his acts were wrong.

In its brief, the state makes several assertions that this court cannot verify or refute from the appellate record. The state asserts that J.C.O. was originally charged by police with aggravated rape and sexual battery, but the state elected to formally charge him with oral sexual battery, because it was aware that the judge would obtain a pre-sentence investigation. The state further asserts that J.C.O. was allowed to admit the crime of oral sexual battery in order to prevent any further emotional damage to the child victim should she have to testify at a rape trial. Finally, the state asserts that there was a report of a statement by J.C.O. to the victim’s brother before the assault that J.C.O. had said “he was going to screw [J.S.] after she went to sleep.” None of the reports or other evidence in this record reflects this |flinformation, and we do not consider it in making our decision, such matters being relevant for a hearing under La. Ch. C. art. 909 et seq.

The juvenile judge’s decision to require correctional treatment in a custodial environment in accordance with the agreed upon “cap” is amply supported by the record. Consequently, this disposition does not shock our sense of justice and is not grossly out of proportion to the seriousness of the offense. Thus, the disposition is not constitutionally excessive.

CONCLUSION

The disposition imposed upon J.C.O. by the trial court is hereby affirmed.

AFFIRMED.

      . Pursuant to Uniform Rules of the Courts of Appeal 5-1 and 5-2, the initials of all juveniles are used in this opinion in lieu of their names.

      . The victim’s initials were changed to "J.C.” in an amended petition filed on August 18, 2003. The victim’s initials are actually "J.S.” The amended petition also changed the name of J.C.O.'s mother.

      . We note one error patent. La. Ch. C. art. 892 provides that a dispositional hearing shall be conducted within 30 days of an adjudication of delinquency, but that such period may be extended for good cause. In this case, the dispositional hearing was not held within 30 days of the adjudication, but the delay was due to the preparation of reports in aid of the disposition and was extended in part on motion of the juvenile. We find that these factors when considered together are sufficient cause for delay.


author: CHARLES R. JONES, Judge.

text:
    Carey B. CASBON v. STATE of Louisiana, APPEALS TRIBUNAL FOR the OFFICE OF REGULATORY SERVICE.
    No. 2003-CA-1951.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 2004.
    Carey B. Casbon, Belle Chasse, LA, in Proper Person, Plaintiff-and Appellee.
    J. Jerome Burden; Louisiana Department of Labor,, Office of Employment Sec., Baton Rouge, LA, for Defendant and Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge TERRI F. LOVE).
   CHARLES R. JONES, Judge.

The instant suit arises out of a claim for unemployment compensation with the Louisiana Department of Labor (hereinafter “LDL”) filed by the Appellant, Carey B. Casbon. The LDL suspensively appeals the default judgment rendered by the district court in favor of Ms. Casbon. We reverse.

Ms. Casbon instituted a claim for unemployment compensation after leaving her employment with Pere Antoine, Inc., due to a dispute over her work hours. Ms. Casbon alleged that while she was originally told that her hours would be flexible because she had small children, she was reprimanded for coming in late, and subsequently quit. The LDL determined that Ms. Casbon left her job without good cause and for reasons that were not attributable to changes in her employment by Pere Antoine, Inc. The LDL further determined that she was disqualified from receiving unemployment benefits. Ms. Cas-bon subsequently appealed the decision li>by the LDL, which was later affirmed by the Administrative Law Judge. She then appealed to the Board of Review, which also affirmed.

On July 21, 2003, Ms. Casbon sought judicial review of the Board’s decision pursuant to La. R.S. 23:1634, which allows 60 days to file an answer and the administrative record with the district court. The LDL was served with the Petition for Judicial Review of Unemployment Compensation on August 6, 2003. However, on September 9, 2003, the district court granted a default judgment in favor of Ms. Casbon, and reversed the decision of the Board of Review. The district court confirmed the judgment against LDL on September 15, 2003. It is from this judgment that LDL seeks review by this Court.

The language of La. C.C.P. art. 1704 provides that prior to confirming a default judgment against a state agency, the Attorney General must be served with the minute entry of the default hearing and provided with a certified copy of the petition. Ubosi v. Sowela Technical Institute, 584 So.2d 340 (La.App. 3rd Cir.1991); Humphries v. Louisiana Dept. of Public Works, Div. Of Transp. And Dev., 498 So.2d 297 (La.App. 3rd Cir.1986); Bonnette v. Caldwell Parish Police Jury, 415 So.2d 247 (La.App. 2nd Cir.1982). When a party has failed to comply with La. C.C.P. art. 1704, the courts have stated that, “the language of the statute is clear and unequivocal and admits of no exceptions. It is clear that the article was added to the Code of Civil Procedure to afford the state additional protection against the rendition of default judgments against it ...” Bonnette, 415 So.2d at 248-249.

In the case at bar, the LDL is a department of the state to which the provisions of La. C.C.P. art. 1704 are clearly applicable. As the record fails to evidence that the Attorney General was served with the minute entry of the default |salong with a certified copy of the petition, a confirmation of the default judgment by the district court was improper.

DECREE

For the reasons stated herein, the default judgment granted by the district court in favor of Carey B. Casbon is reversed and remanded for further proceedings.

REVERSED AND REMANDED.