author: PARRO, J.

text:
    Dale GRANDA and Jo Ann Granda, Individually, and on Behalf of Their Minor Daughter, Meredith Granda v. STATE FARM MUTUAL INSURANCE COMPANY, the State of Louisiana Through the Department of Transportation & Development, the St. Tammany Parish Police Jury, BellSouth, Cleco Corporation, Matthew D. Richard and Michael D. Richard.
    No. 2004 CA 2012.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.

      Edward J. Walters, Jr., Darrel J. Papil-lion, Moore, Walters, Thompson, Thomas, Papillion & Cullens, Baton Rouge, for Plaintiffs-Appellants Dale Granda and Jo Ann Granda, individually and on behalf of their minor daughter, Meredith Granda.
    William J. Crain, Jones Fussell, L.L.P., Covington, for Defendant-Appellee Bell-South Telecommunications, Inc.
    Lawrence E. Abbott, Joseph H. Hart, IV, C. McChord Carrico, Abbott, Simses & Kuchler, APLC, New Orleans, for Defen-danh-Appellee St. Tammany Parish Police Jury.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   PARRO, J.

|aThe plaintiffs, who are the parents of a minor child who was injured in a single vehicle accident, appeal from a judgment of the trial court, which granted a utility-company’s motion for summary judgment and dismissed the plaintiffs’ claims against it. For the following reasons, we affirm.

Factual and Procedural Background

On the afternoon of July 2, 1998, Matthew D. Richard (Matthew), the then seventeen-year-old son of Michael D. Richard (Mr. Richard), was driving a 1998 Chevrolet Blazer owned by his father. He was accompanied by his twelve-year-old sister, Abigail, and her friend, Meredith Granda. The girls were seated in the rear seat of the vehicle — Abigail on the driver’s side and Meredith on the passenger’s side. Matthew left his home with the intention of dropping something off for his mother at the local insurance office, bringing the two girls to a nearby movie theater, and going to work at a local grocery store. Matthew was aware that he had no time to waste if he did not want to be late for work. He was traveling east on Three Rivers Road, the road on which he lived and had traveled many times before, toward Highway 190.

Three Rivers Road is a two-lane, asphalt road belonging to the Parish of St. Tammany. The traveled portion of the roadway was approximately 18 feet wide. There was a limited shoulder, and a roadside drainage ditch along both sides of the road with an intersecting drainage culvert within the accident area that ran the width of the road, extending out from the edge of the roadway. Utility poles were located along the back edge of the ditch as mandated by a local ordinance. The posted speed limit was 35 miles per hour.

When Matthew was about one-half of a mile from his home, he veered off of the roadway while attempting to adjust the side-view mirrors on the Blazer, crossed the shoulder, descended into a roadside ditch, and struck a utility pole. Matthew had forgotten that the mirror selection switch had a center stop that had prevented him from Lbeing able to make the desired adjustment. In order to determine how to adjust the mirrors, Matthew took his left hand off of the steering wheel and his eyes off of the road. He refocused his attention on his driving when he felt the car riding rough. When he attempted to steer back onto the roadway, Matthew found that the steepness of the ditch precluded his efforts to recover.

After leaving the roadway and shoulder and traveling in the ditch, the Blazer hit the intersecting culvert that was located approximately 160 feet from where the Blazer left the road. The vehicle then went airborne and struck a utility pole located approximately seven feet from the edge of the roadway about 186 feet from the point at which the Blazer left the roadway.

In light of the injuries sustained by Meredith as a result of the accident, Meredith’s parents, Dale and Jo Ann Granda, filed a petition for damages against Matthew, Mr. Richard, State Farm Mutual Insurance Company — Mr. Richard’s automobile liability insurer (State Farm), Louisiana Department of Transportation and Development (DOTD), St. Tammany Parish Police Jury (Parish), BellSouth Telecommunications, Inc. (BellSouth), and Cle-co Corporation (Cleco). The Grandas sought to have the Parish and/or DOTD held liable for their acts of negligence with regard to the sufficiency of the shoulders, placement of a utility pole, the posted speed, the slope of the ditch, and signage. In connection with the placement of the utility pole, the Grandas alleged that Bell-South and/or Cleco, as owners with garde, custody, and control of the utility pole, were liable for their negligence and/or strict liability for the placement of the utility pole in an unreasonably dangerous location.

Upon being granted authority to settle Meredith’s claims against Matthew, Mr. Richard, and State Farm, the Grandas dismissed these defendants from the suit with full prejudice. Following a denial in its answer of ownership, garde, custody, and/or control of the utility pole in question, Cleco was dismissed, without prejudice, from the suit. Since Three Rivers Road was neither part of the Louisiana highway system nor maintained by the DOTD, the DOTD filed a motion for summary judgment seeking to be dismissed from the suit. Subsequently, the Grandas also voluntarily dismissed the DOTD, without prejudice. After the dismissal of these defendants, the remaining defendants, BellSouth |4and the Parish, filed separate motions for summary judgment. Both of these motions were granted by the trial court in separate judgments resulting in the dismissal of these remaining defendants. The Grandas have appealed the judgment in favor of BellSouth, contending that summary judgment was improper since the placement of the utility pole played a role in causing their injuries.

Summary Judgment Law

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Jarrell v. Carter, 632 So.2d 321, 323 (La.App. 1st Cir.1993), writ denied, 94-0700 (La.4/29/94), 637 So.2d 467. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Rambo v. Walker, 96-2538 (La.App. 1st Cir.11/7/97), 704 So.2d 30, 32. The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the nonmoving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2); Clark v. Favalora, 98-1802 (La.App. 1st Cir.9/24/99), 745 So.2d 666, 673.

| ¡¡Analysis

Louisiana Civil Code articles 2315 and 2316 provide the basic codal foundation for delictual liability for intentional torts and negligence in our state. Louisiana Civil Code articles 2317 and 2317.1 define the basis for delictual liability for defective things. In pertinent part, LSA-C.C. art. 2317.1 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the niin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Thus, to establish liability based on ownership or custody of a thing, the plaintiff must show that (1) the defendant was the owner or custodian of a thing which caused the damage, (2) the thing had a ruin, vice, or defect that created an unreasonable risk of harm, (3) the ruin, vice, or defect of the thing caused the damage, (4) the defendant knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect, (5) the damage could have been prevented by the exercise of reasonable care, and (6) the defendant failed to exercise such reasonable care. LSA-C.C. art. 2317.1.

The risk that occurs must be within the scope of the defendant’s duty to exercise reasonable care. Thus, the court must decide if the risk which caused the damage is within the ambit of protection of the duty. In other words, under the facts and circumstances of this case, did Bell-South owe a duty to protect the motorist and his passengers from the harm encountered when his vehicle left the roadway and struck the utility pole? See Bieber v. State Farm Mutual Automobile Insurance Company, 99-0527 (La.App. 1st Cir.3/31/00), 764 So.2d 988, 992, writ denied, 00-1253 (La.6/16/00), 765 So.2d 337.

1 flThe utility pole was not located in the traveled portion of the roadway or on the shoulder of the roadway, so it did not pose an unreasonable risk of harm to those using the roadway. It was located seven feet from the edge of the roadway on the back slope of the roadside ditch. Cleco had placed the subject utility pole in 1982. The ownership and/or custody of the pole had been transferred to BellSouth in 1986. Its location has not been disturbed. There is no record of BellSouth having performed any work on the subject pole since it was acquired from Cleco in 1986. The BellSouth project manager in the Coving-ton area averred in an affidavit that approximately 90 percent of the poles in his geographic area are located on the back edge of roadside ditches similar to the placement of the subject pole. There is no evidence that the pole had an intrinsic defect. It was in plain view. The record shows that there were no prior accidents or complaints known to BellSouth relating to the specific utility pole struck by Matthew.

On the other hand, Matthew was looking at the adjustments for the side mirrors of his Blazer when the wheels left the roadway and shoulder. He then traveled approximately 160 feet, a large portion of which was in the roadside ditch, hit a concrete culvert located in an intersecting drainage ditch, became airborne, and struck the utility pole located seven feet from the edge of the roadway on the back slope of the roadside ditch at a point located 186 feet, 2 inches from the point at which the Blazer left the roadway.

A motorist has a duty to control an automobile and to maintain a proper lookout. Bieber, 764 So.2d at 991. The roadway and shoulder of the highway are intended for vehicular use by statutory definitions; however, a roadside ditch is not so intended. See Capone v, Ormet Corporation, 01-0060 (La.App. 1st Cir.6/21/02), 822 So.2d 684, 693, writ denied, 02-2379 (La.11/22/02), 829 So.2d 1051. A roadside ditch is constructed and maintained for the purpose of draining the highway. Because the roadside ditch is intended for drainage and not vehicular use, there was no duty on the part of BellSouth to construct or maintain the utility pole located on the back slope of the ditch in such a way that it did not pose an unreasonable risk of danger for vehicles in the ditch. Rogers v. Parish of East Baton Rouge, 577 So.2d 1068, 1072 (La.App. 1st Cir.), writ denied, 580 So.2d 925 (La.1991); see Capone, 822 So.2d 684, 702-03. A utility company has no 17general obligation to guard against rare exigencies such as an out-of-control vehicle leaving a traveled roadway. Bieber, 764 So.2d at 991-92. Therefore, the granting of BellSouth’s motion for summary judgment on the basis that it did not owe a duty to the Grandas was appropriate.

Decree

For the foregoing reasons, the summary judgment dismissing BellSouth from this case is affirmed. Costs of this appeal are assessed against the Grandas.

AFFIRMED.

      . Meredith, who resided in Peoria, Illinois, was visiting with Abigail.

      . Admittedly, Matthew had learned in driver’s education class that the mirrors should be adjusted before driving.

      . The Grandas have also appealed the judgment in favor of the Parish, and this court has rendered its opinion in that appeal this date. Granda v. State Farm Mutual Insurance Company, 04-1722 (La.App. 1st Cir. 2/10/06), 935 So.2d 703, 2006 WL 528355.

      .The 1996 legislation enacting LSA-C.C. art. 2317.1, effective April 16, 1996, abolished the concept of strict liability governed by prior interpretations of LSA-C.C. art. 2317. See Dennis v. The Finish Line, Inc., 99-1413, 99-1414 (La.App. 1st Cir. 12/22/00), 781 So.2d 12, 20 n. 8, writ denied, 01-0214 (La.3/16/01), 787 So.2d 319. A more appropriate term now for liability under LSA-C.C. arts. 2317 and 2317.1 might be "custodial liability," but such liability is nevertheless predicated upon a finding of knowledge or constructive knowledge. See Rogers v. City of Baton Rouge, 04-1001 (La.App. 1st Cir.6/29/05), 916 So.2d 1099, 1102.

      . The term “vice” has been defined in the jurisprudence as an unreasonable risk of injury (or harm) to another. See Loescher v. Parr, 324 So.2d 441, 446-47 (La.1975).

      . See Moory v. Allstate Insurance Company, 04-0319 (La.App. 1st Cir.2/11/05), 906 So.2d 474, 480, writ denied, 05-0668 (La.4/29/05), 901 So.2d 1076; Higginbotham v. Community Christian Academy, Inc., 03-0462 (La.App. 1st Cir. 12/31/03), 868 So.2d 765, 769.

      . A duty to relocate a utility pole may arise where experience has shown that the location of the pole presents an unreasonable risk of harm to the motoring public. See Hebert v. Southwest Louisiana Electric Membership Corporation, 95-405 (La.App. 3rd Cir. 12/27/95), 667 So.2d 1148, 1160, writs denied, 96-0277 (La.5/17/96), 673 So.2d 607, and 96-0798 (La.5/17/96), 673 So.2d 608. Based on the undisputed facts of this case, it is clear that no duty was owed by BellSouth to the Gran-das to relocate the utility pole to any point beyond the back edge of the roadside ditch.


source: Caselaw Access Project

license: Public Domain

text:
    Dale GRANDA and Jo Ann Granda, Individually, and on Behalf of Their Minor Daughter, Meredith Granda v. STATE FARM MUTUAL INSURANCE COMPANY, the State of Louisiana Through the Department of Transportation & Development, the St. Tammany Parish Police Jury, BellSouth, Cleco Corporation, Matthew D. Richard and Michael D. Richard.
    No. 2004 CA 1722.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.

      Edward J. Walters, Jr., Darrel J. Papil-lion, Moore, Walters, Thompson, Thomas, Papillion & Culiens, Baton Rouge, for Plaintiffs-Appellants Dale Granda and Jo Ann Granda, Individually and on behalf of their minor daughter, Meredith Granda.
    Lawrence E. Abbott, Joseph H. Hart, IV, C. McChord Carrico, Abbott, Simses & Kuchler, APLC, New Orleans, for Defendant-Appellee St. Tammany Parish Police Jury.
    William J. Crain, Jones Fussell, L.L.P., Covington, for Defendant-Appellee Bell-South Telecommunications, Inc.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   PARRO, J.

|aThe plaintiffs, who are the parents of a minor child who was injured in a single vehicle accident, appeal from a judgment of the trial court, which granted a public entity’s motion for summary judgment and dismissed the plaintiffs’ claims against it. For the following reasons, we reverse and remand.

Factual and Procedural Background

On the afternoon of July 2, 1998, Matthew D. Richard (Matthew), the then seventeen-year-old son of Michael D. Richard (Mr. Richard), was driving a 1998 Chevrolet Blazer owned by his father. He was accompanied by his twelve-year-old sister, Abigail, and her friend, Meredith Granda. The girls were seated in the rear seat of the vehicle' — Abigail on the driver’s side and Meredith on the passenger’s side. Matthew left his home with the intention of dropping something off for his mother at the local insurance office, bringing the two girls to a nearby movie theater, and going to work at a local grocery store. Matthew was aware that he had no time to waste if he did not want to be late for work. He was traveling east on Three Rivers Road, the road on which he lived and had traveled many times before, toward Highway 190.

Three Rivers Road is a two-lane, asphalt road belonging to the Parish of St. Tammany. The traveled portion of the roadway was approximately 18 feet wide. There was a limited shoulder, and a roadside drainage ditch along both sides of the road with an intersecting drainage culvert within the accident area that ran the width of the road, extending out from the edge of the roadway. Utility poles were located along the back edge of the ditch as mandated by a local ordinance. The posted speed limit was 35 miles per hour.

When Matthew was about one-half of a mile from his home, he veered off of the roadway while attempting to adjust the side-view mirrors on the Blazer, crossed the shoulder, descended into a ditch, and struck a utility pole. Matthew had forgotten that the mirror selection switch had a center stop that had prevented him from being able to [smake the desired adjustment. In order to determine how to adjust the mirrors, Matthew took his left hand off of the steering wheel and his eyes off of the road. He refocused his attention on his driving when he felt the car riding rough. When he attempted to steer back onto the roadway, Matthew found that the steepness of the ditch precluded his efforts to recover.

After leaving the roadway and shoulder and traveling in the ditch, the Blazer hit the intersecting culvert that was located approximately 160 feet from where the Blazer left the road. The vehicle then went airborne and struck a utility pole located approximately seven feet from the edge of the roadway and about 186 feet from the point at which the Blazer left the roadway.

In light of the injuries sustained by Meredith as a result of the accident, Meredith’s parents, Dale and Jo Ann Granda, filed a petition for damages against Matthew, Mr. Richard, State Farm Mutual Insurance Company — Mr. Richard’s automobile liability Insurer (State Farm), Louisiana Department of Transportation and Development (DOTD), St. Tammany Parish Police Jury (Parish), BellSouth Telecommunications, Inc. (BellSouth), and Cle-co Corporation (Cleco). In their petition, the Grandas sought to have the Parish and/or DOTD held liable for their acts of negligence with regard to the sufficiency of the shoulders, placement of a utility pole, the posted speed, the slope of the ditch, and signage. In connection with the placement of the utility pole, the Grandas alleged that BellSouth and/or Cleco, as owners with garde, custody, and control of the utility pole, were liable for their negligence and/or strict liability for the placement of the utility pole in an unreasonably dangerous location.

Upon being granted authority to settle Meredith’s claims against Matthew, Mr. Richard, and State Farm, the Grandas dismissed these defendants from the suit with full prejudice. Following a denial in its answer of ownership, garde, custody, and/or control of the utility pole in question, Cleco was dismissed, without prejudice, from the suit. Since Three Rivers Road was neither part of the Louisiana highway system nor maintained by the DOTD, the DOTD filed a motion for summary judgment seeking to be dismissed from the suit. Subsequently, the Grandas also voluntarily dismissed the DOTD, without prejudice. After the dismissal of these defendants, the remaining defendants, BellSouth |4and the Parish, filed separate motions for summary judgment. Both of these motions were granted by the trial court in separate judgments resulting in the dismissal of these remaining defendants. The Grandas have appealed the judgment in favor of the Parish, contending that summary judgment was improper since there are many factual disputes that were fatal to the granting of a summary judgment in this case.

Summary Judgment Law

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Jarrell v. Carter, 632 So.2d 321, 323 (La.App. 1st Cir.1993), writ denied, 94-0700 (La.4/29/94), 637 So.2d 467. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Rambo v. Walker, 96-2538 (La.App. 1st Cir.11/7/97), 704 So.2d 30, 32. The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the nonmoving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2); Clark v. Favalora, 98-1802 (La.App. 1st Cir.9/24/99), 745 So.2d 666, 673. Notably, issues that require the determination of reasonableness of acts and conduct of parties under all facts | fiand circumstances of the case can not ordinarily be disposed of by summary judgment. Matthews v. Ashland Chemical, Inc., 703 F.2d 921, 925-26 (5th Cir.1983).

Analysis

On appeal, the Grandas have seemingly abandoned their argument that the Parish tó liable as a result of the location of the utility pole. Their appellate argument is instead focused on the width of the travel lane and the condition of the shoulder. The Grandas contend that the documentation in the record shows that there are genuine issues of material fact as to the existence of defects in the roadway and shoulder that prevented Matthew from regaining control of his vehicle.

In support of their argument, the Gran-das submitted the deposition testimony, written report, and affidavit of Dr. Edward Rhomberg, who was offered as an expert in engineering. Dr. Rhomberg explained that the lane in which Matthew was traveling should have been ten or eleven feet instead of nine feet in width. He opined that the narrower lane, combined, with an inadequate shoulder, were causally related to Matthew entering the roadside ditch. This evidence, the Grandas argue, gave rise to a major factual dispute that should have served as a basis for denying the Parish’s motion for summary judgment. Alternatively, relying on the opinion of Dr. Rhomberg, they maintain that even if the lane width was not a contributing cause for Matthew leaving the roadway and that Matthew’s inattentiveness and inexperience set the accident in motion, there is a genuine issue of material fact as to whether the condition of the shoulder prevented him from regaining control of his vehicle and was thus a cause-in-fact of Meredith’s injuries.

Louisiana Civil Code articles 2315 and 2316 provide the basic codal foundation for delictual liability for intentional torts and negligence in our state. Louisiana Civil Code articles 2317 and 2317.1 define the basis for delictual liability for defective things. In pertinent part, LSA-C.C. art. 2317.1 provides:

| fiThe owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Thus, to establish liability based on ownership or custody of a thing, the plaintiff must show that (1) the defendant was the owner or custodian of a thing which caused the damage, (2) the thing had a ruin, vice, or defect that created an unreasonable risk of harm, (3) the ruin, vice, or defect of the thing caused the damage, (4) the defendant knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect, (5) the damage could have been prevented by the exercise of reasonable care, and (6) the defendant failed to exercise such reasonable care. LSA-C.C. art. 2317.1.

A governmental entity that owns or has custody of a public roadway owes a duty to the traveling public to maintain the roadway in a condition that is reasonably safe for vehicular use and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. Myers v. State Farm, Mutual Automobile Insurance Company, 493 So.2d 1170, 1171-72 (La.1986); Brown v. Louisiana Indemnity Company, 97-1344 (La.3/4/98), 707 So.2d 1240, 1242, citing LSA-R.S. 48:21; Wilkinson v. Town of Baker, 506 So.2d 739, 742 (La.App. 1st Cir.1987); Robinson v. State, Through Department of Transportation and Development, 454 So.2d 257, 260 (La.App. 1st Cir.), writ denied, 458 So.2d 122 (La.1984). The governmental entity must maintain the shoulders in such a condition that they do not present an unreasonable risk of harm to motorists using the adjacent roadway and to others, such as 17pedestrians, who are using the area in a reasonably prudent manner. Brown, 707 So.2d at 1242; Oster v. Department of Transportation and Development, 582 So.2d 1285, 1289-91 (La.1991). A governmental entity’s duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons a motorist might find himself on, or partially on, the shoulder. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566, 572; Rue v. State, Department of Highways, 372 So.2d 1197, 1199 (La.1979). This duty extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive. Ledbetter v. State, Through Louisiana Department of Transportation and Development, 502 So.2d 1383, 1387 (La.1987).

This duty, however, does not render a governmental entity the guarantor for the safety of all the motoring public. Further, the governmental entity is not the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway or its appurtenances. Graves, 703 So.2d at 572; Briggs v. Hartford Insurance Company, 532 So.2d 1154, 1156 (La.1988). Moreover, not every imperfection or irregularity will give rise to liability, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983). The existence of an unreasonable risk of harm may not be inferred solely from the fact that an accident occurred. Netecke v. State, Through DOTD, 98-1182, 98-1197 (La.10/19/99), 747 So.2d 489, 495. Whether a governmental entity breached its duty to the public, by knowingly maintaining a defective or unreasonably dangerous roadway, depends on all the facts and circumstances determined on a case by case basis. Campbell v. Louisiana Department of Transportation and Development, 94-1052 (La.1/17/95), 648 So.2d 898, 901-02.

In attempting to hold the Parish liable, the Grandas urged the width of the lane and the condition of the shoulder as possible defects. Notably, the jurisprudence of this court has generally required the existence of a defective condition of the surface of the roadway that is causally related to the vehicle leaving the road for a governmental entity to be liable. Capone v. Ormet Corporation, 01-0060 (La.App. 1st Cir.6/21/02), 822 So.2d 684, 704, writ denied, 02-2379 (La.11/22/02), 829 So.2d 1051. In Capone, this court | aconcluded, based on the evidence in the record after a trial on the merits, that Capone’s negligence caused him to leave the roadway; a defect in and/or on the roadway did not. Relying on Cormier v. Comeaux, 98-2378 (La.7/7/99), 748 So.2d 1123, 1129-30, this court in Capone noted that such a finding should conclude the analysis. Nonetheless, out of an abundance of caution, after considering pertinent jurisprudence by the Louisiana Supreme Court, the Capone court also analyzed liability pursuant to the unreasonable risk of harm criterion of Netecke. Capone, 822 So.2d at 704. Applying the unreasonable risk of harm analysis, this court, after recognizing the economic reality that it is impossible for governmental entities to bring all roads up to present, ideal, design standards, found that the two-foot shoulder, the 1:1.7 roadside ditch slope, and the lack of a clear zone for recovery did not constitute an unreasonable risk of harm. Capone, 822 So.2d at 703-05.

Relative to his assertion that the width of the shoulder constituted a defect, Dr. Rhomberg opined that Three Rivers Road was defective because of its narrow shoulders in the area in question, which ranged from 12 to 24 inches. According to Dr. Rhomberg, once the wheels of Matthew’s vehicle got over the edge of the shoulder he began to lose control, rendering it virtually impossible for him to regain control of the vehicle upon entering the roadside ditch.

The determination of whether the shoulder is dangerous and creates a defective condition which may give rise to liability on the part of a governmental entity is a factual one. The court should consider the physical aspects of a roadway and shoulder, the frequency of accidents at that place in the highway, and the testimony of expert witnesses. See Thompson v. Coates, 29,333 (La.App. 2nd Cir.5/7/97), 694 So.2d 599, 602, writs denied, 97-1442 and 97-1521 (La.9/26/97), 701 So.2d 985 and 987. In light of the documentation in the record offered in support of and in opposition to the Parish’s motion for summary judgment, we conclude that there is a genuine issue of material fact as to whether the condition of the shoulder of the road presented an unreasonable risk of laharm that may have caused damage to the Grandas. Accordingly, the Parish was not entitled to summary judgment as a matter of law.

Decree

For the foregoing reasons, the summary judgment granted in favor of the St. Tammany Parish Police Jury is reversed, and this case is remanded for further proceedings. Costs of this appeal in the amount of $1,254.25 are assessed to the St. Tammany Parish Police Jury.

REVERSED AND REMANDED.

      . Meredith, who resided in Peoria, Illinois, was visiting with Abigail.

      . Admittedly, Matthew had learned in driver's education class that the mirrors should be adjusted before driving.

      . The Grandas have also appealed the judgment in favor of BellSouth, and this court has rendered its opinion in that appeal this date. Granda v. State Farm Mutual Insurance Company, 04-2012 (La.App. 1st Cir.2/10/06), 935 So.2d 698, 2006 WL 305845.

      . The Grandas also offered excerpts from the depositions of Deputy Guy Willie, the deposition of Meredith Granda, and the accident report of Deputy Willie.

      . The 1996 legislation enacting LSA-C.C. art. 2317.1, effective April 16, 1996, abolished the concept of strict liability governed by prior interpretations of LSA-C.C. art. 2317. See Dennis v. The Finish Line, Inc., 99-1413, 99-1414 (La.App. 1st Cir. 12/22/00), 781 So.2d 12, 20 n. 8, writ denied, 01-0214 (La.3/16/01), 787 So.2d 319. A more appropriate term now for liability under LSA-C.C. arts. 2317 and 2317.1 and LSA-R.S. 9:2800 might be "custodial liability,” but such liability is nevertheless predicated upon a finding of knowledge or constructive knowledge. See Rogers v. City of Baton Rouge, 04-1001 (La.App. 1st Cir.6/29/05), 916 So.2d 1099, 1102.

      . The term "vice" has been defined in the jurisprudence as an unreasonable risk of injury (or harm) to another. See Loescher v. Parr, 324 So.2d 441, 446-47 (La.1975).

      . See Moory v. Allstate Insurance Company, 04-0319 (La.App. 1st Cir.2/11/05), 906 So.2d 474, 480, writ denied, 05-0668 (La.4/29/05), 901 So.2d 1076; Higginbotham v. Community Christian Academy, Inc., 03-0462 (La.App. 1st Cir. 12/31/03), 868 So.2d 765, 769.

      . In Myers, a motorist on a state roadway took evasive action and veered right to avoid an oncoming vehicle. His vehicle slid into the roadside ditch and ran into a large oak tree located on the right side of the roadside ditch causing serious injuries to a guest passenger. On review, the supreme court reversed the trial court and this court’s judgments in favor of the plaintiffs. Myers, 493 So.2d at 1173.

      . Brown involved the issue of what duty DOTD owed to a motorist who struck an obstruction in the roadside ditch. In Brown, the motorist ran off the roadway in a curve, traveled thirty-nine feet on the shoulder, traveled another thirty feet in the roadside ditch and struck a driveway, became airborne and, thereafter, struck two pine trees. The supreme court rejected the trial court's determination that DOTD was responsible for any damage caused by the driveway in the roadside ditch. Brown, 707 So.2d at 1244.

      . In Cormier, the driver of a vehicle apparently went to sleep and drove off the roadway across the shoulder and into the back embankment of the roadside ditch.

      . Notably, we do not suggest that the Gran-das can or should prevail on the merits of the case, but we only conclude that based on the record in this case, a trial on the merits is warranted.


author: TERRI F. LOVE, Judge.

text:
    BANK ONE, N.A., f/k/a The First National Bank of Chicago, as Trustee v. Ora Lee Payne BOURGEOIS and Garfield Payton.
    No. 2005-CA-0744.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 24, 2006.
    Opinion Granting Rehearing June 30, 3006.

      Charles H. Heck, Dean Morris, L.L.P., Monroe, LA, for PlaintifiyAppellee.
    Patrick D. Breeden, P. Michael Breeden, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS JR.).
   TERRI F. LOVE, Judge.

| tThis appeal arises from the trial court’s grant of a petition for executory process. The defendant filed a petition seeking a preliminary or permanent injunction and/or damages. The plaintiffs motion for summary judgment followed and was granted. The defendant timely appealed. After lodging the appeal, both parties allegedly entered into a compromise to stop the seizure and sale of the mortgaged property. However, the plaintiff did not dismiss the appeal. Thus, the defendant filed a motion to dismiss appeal/exception of res judicata and motion to remand. We now remand the matter to the trial court for consideration of the res judicata plea.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 6, 2003, Bank One, N.A., F/K/A The First National Bank of Chicago (“Bank One”), as a trustee, filed a Petition for Executory Process on property, located at 309 Hendee Street in New Orleans, mortgaged to Ora Lee Payne Bourgeois (“Ms. Bourgeois”) and Garfield Payton, Jr. (“Mr. Payton”). The trial court signed an order that entitled Bank One to the seizure and sale of Mr. Payton’s property. Mr. Payton filed a petition seeking a preliminary or permanent 12injunction, damages, and the return of the seized property. Bank One filed a Motion for Summary Judgment seeking to dismiss Mr. Payton’s claims with prejudice. The trial court granted Bank One’s motion, dismissed Mr. Payton’s motion with prejudice, and designated the judgment as final and appeal-able.

Mr. Payton filed a devolutive appeal alleging the trial court erred by granting Bank One’s summary judgment and denying his plea for an injunction or damages. Bank One cancelled the seizure and sale of Mr. Payton’s property following an alleged compromise between Bank One and Mr. Payton. The trial court dismissed Bank One’s Petition for Executory Process without prejudice.

After the lodging of the appeal, Bank One filed a Motion to Dismiss Appeal/Exception of Res Judicata and Motion to Remand based on the alleged compromise between itself and Mr. Payton. This Court ordered the matters “referred to the merits of the appeal.” Bank One also filed a Motion and Order For Stay in Order to Supplement the Record For Expedited Consideration. This Court partially granted the motion, solely on the issue of supplementing the record, by ordering that the record be supplemented with a letter, dated April 6, 2005, which allegedly confirmed the compromise, and “other written communications relating to an agreement of April 6, 2005.”

Mr. Payton filed a Motion to Expunge Opposition Brief, a Motion to File Payton’s Response to Bank One’s Reply, Opposition to Expunge and Supplemental Memorandum Received March 15, 2006, and a Motion to Supplement the Record with an affidavit of Linda Bourgeois Payton. These motions are hereby denied.

RES JUDICATA

The peremptory exception of res judica-ta may be plead and considered for pthe first time on appeal “if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.” La. C.C.P. art. 2163. The Louisiana Supreme Court held that an appellate court may remand the exception of res judicata if the “grounds alleged for the exception did not come into existence until after the appeal had been lodged.” Smith v. State, Dep’t of Transp. & Dev., 04-1317 and 04-1594, pp. 22-23 (La.3/11/05); 899 So.2d 516, 530, citing Lewis v. Lewis, 155 La. 231, 99 So. 202 (1923).

A transaction or compromise can be the basis for a plea of res judicata. La. C.C. art. 3078; Ortego v. State, Dep’t of Transp. & Dev., 96-1322 (La.2/25/97); 689 So.2d 1358, 1364, citing Rivett v. State Farm Fire and Cas. Co., 508 So.2d 1356, 1359 (La.1987). A “transaction or compromise is an agreement between two or more persons, who ... adjust their differences by mutual consent.” La. C.C. art. 3071.

Bank One avers the compromise was effected, after Mr. Payton lodged the appeal, during a phone call in which Mr. Payton’s attorney allegedly stated that he would dismiss the appeal if Bank One postponed the foreclosure. The supplemented record contains a letter from Mr. Payton’s attorney confirming this phone conversation. The letter confirms that Bank One agreed to delay the foreclosure and states that Mr. Payton will “take whatever steps are necessary to abandon the appeal.” Bank One cancelled the seizure and sale of Mr. Payton’s property pursuant to the agreement. These circumstances arose after the lodging of the appeal and the record documents some evidence of the alleged compromise. Therefore, remand is proper for the trial court to resolve the res judicata exception.

J¿DECREE

We remand to the trial court for consideration of the plea of res judicata and deny the abovementioned outstanding motions.

REMANDED.

PER CURIAM.

11 Considering the foregoing rehearing application filed by Appellant, Mr. Payton, the application is granted from the sole purpose of clarification regarding the Court’s reference to a letter, dated April 6, 2005, contained in the supplemented record. We clarify the Court’s opinion with the inserted footnote.

[D]uring a phone call in which Mr. Pay-ton’s attorney allegedly stated that he would dismiss the appeal if Bank One postponed the foreclosure. The supplemented record contains a letter from Mr. Payton’s attorney confirming this phone conversation. The letter confirms that Bank One agreed to delay the foreclosure and states that Mr. Payton will “take whatever steps are necessary to abandon the appeal.”

In all other respects, this Court’s original opinion remains unchanged.

      . Ms. Bourgeois died prior to the filing of the petition for executory process.

      . The confusion surrounding the alleged compromise prompted this Court to remand the case in its original opinion for examination of the alleged compromise. This Court did not intend to imply that Attorney Breeden breached a compromise or settlement based on this letter by mistakenly referring to the letter discussing the alleged compromise as written by Mr. Payton’s attorney, meaning, Attorney Breeden. The letter was clearly written by Attorney Eric O. Person. However, the alleged telephone conversation and the record are unclear as to whom Attorney Person represented at the time he wrote the letter.


author: MICHAEL E. KIRBY, Judge.

text:
    SUCCESSION OF Anna Rita Babin King CAILLOUET.
    No. 2005-CA-0957.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 14, 2006.

      Stephanie M. Quinlan, Jules J. Mumme, III, New Orleans, LA and Michael F. Es-cudier, Metairie, LA, for Appellants (Robert J. Jenevein, Administrator, Joann Bau-mann Lotz and Gary P. Jenevein).
    Corinne Ann Morrison, James C. Young, Douglas L. Grundmeyer, Chaffe McCall, L.L.P., New Orleans, LA, for Appellee (Children’s Hospital).
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   MICHAEL E. KIRBY, Judge.

11This case involves a dispute over the validity of a handwritten document purporting to be the last will and testament of Anna Rita Babin King Caillouet. Robert J. Jenevein, the Administrator of the Succession of Anna Rita Babin King Caillouet, appeals the trial court judgment, which decreed that the document at issue met the form requirements of an olographic testament and that the olographic testament had been proven. The appellee in this appeal is Children’s Hospital of New Orleans, the universal legatee named by Ms. Caillouet in the purported will.

Ms. Caillouet died on July 8, 2003. She was widowed twice, and had no children. On August 11, 2003, Ms. Caillouet’s niece and two nephews, Jo Ann Baumann Lotz, Robert J. Jenevein and Gary P. Jenevein, filed a Petition to File Purported Olo-graphic Testament. The petitioners alleged that they are the only heirs of Ms. Caillouet. Attached to the petition was a two page handwritten document dated February 7, 2001, which was entitled “My Last Will” and which was signed “Auntie.” In this document, Ms. Caillouet included several particular | ¡^legacies to petitioners and others, but left the balance and majority of her estate to Children’s Hospital.

The petition asked that Mr. Robert Je-nevein be confirmed as testamentary executor as requested by Ms. Caillouet in the purported testament, and that the trial court determine the validity of the document. Petitioners’ position is that the handwritten document does not meet the requirements for an olographic will as set forth in La. C.C. article 1575. Specifically, they allege that the word “Auntie” at the end of the document does not fulfill the signature requirement of La. C.C. article 1575. Children’s Hospital answered the petition, asserting that the document is a valid enforceable olographic will, and that the will expressed the desires and intent of Ms. Caillouet.

Following trial, the trial court rendered judgment decreeing that the document at issue met the form requirements of an olographic testament, and that the olo-graphic testament had been proven. In reasons for judgment, the trial court rejected the Administrator’s argument that the document lacked the requisite testamentary intent because it was not written in its entirety on the date indicated. The court found that the decedent’s testamentary intent was clear due the inclusion of the language, “I, Anna Rita Babin King Caillouet, hereby make this my last will and testament, revoking all prior wills that I may have made.” The trial court also cited the Louisiana Supreme Court case of Succession of Smart, 214 La. 63, 36 So.2d 639 (1948), which held that an olographic will does not need to be written entirely on the same date.

|30n the issue of whether the decedent’s signing at the end of the document with the word “Auntie” fulfilled the signature requirement of La. C.C. article 1575, the trial court found that the word “Auntie” was written by Ms. Caillouet, and that Ms. Caillouet intended for the word “Auntie” to serve as her signature and that this act executed the testament. The court cited the case of Succession of Diaz, 617 So.2d 34 (La.App. 4 Cir.1993), in which this Court stated that when a testament is written in olographic form without the aid of counsel, the intention of the testator is to be given paramount importance.

On appeal, the appellant argues that the trial court erred in finding (1) that the handwritten document met the formal requirements of an olographic testament, (2) that the document bears a signature as required by La. C.C. article 1575 and (3) that the document was proven by the ap-pellee to be an olographic testament. La. C.C. article 1575 sets forth the requirements for an olographic testament as follows:

A.An olographic testament is one entirely written, dated, and signed in the handwriting of the testator. Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament. If anything is written by the testator after his signature, the testament shall not be invalid and such writing may be considered by the court, in its discretion, as part of the testament. The olographic testament is subject to no other requirement as to form. The date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament, as clarified by extrinsic evidence, if necessary.
B.Additions and deletions on the testament may be given effect only if made by the hand of the testator.

The proponent of an olographic will has the burden of proving that it was entirely written, dated and signed by the testator. La. C.C.P. article 2903; Hamilton v. Kelley, 25,820, p. 6 (La.App. 2 Cir. 8/17/94), 641 So.2d 981, 986. Absent a finding of manifest error, in will contest cases, the factual findings of the trial court are accorded great weight and will not be disturbed on appeal. Succession of Armstrong, 93-2385 (La.App. 4 Cir. 4/28/94), 636 So.2d 1109, 1111, citing Succession of Daigle, 601 So.2d 10, 12-13 (La.App. 3 Cir.1992).

The main disputed issue in this appeal is whether or not Ms. Caillouet’s signing the word “Auntie” at the end of the purported olographic will satisfies the signature requirement of La. C.C. article 1575. Other issues presented at trial included whether the document lacked testamentary intent because it was not written entirely on the same date and whether the document was in Ms. Caillouet’s handwriting. We note that the appellant’s brief does not include any argument regarding the will not being written entirely on the same day. Appellant concedes in his brief that the document was written by Ms. Caillouet. The evidence presented at trial supports the trial court’s conclusion that Ms. Caillouet intended for this document to be her last will and testament. The trial court also correctly noted that La. C.C. article 1575 does not require that an olographic will be written in its entirety on the same date, and the Louisiana Supreme Court, in Succession of Smart, 214 La. 63, 36 So.2d 639 (1948), specifically found that there is no such requirement for an olo-graphic will.

On the issue of whether or not the word “Auntie” qualifies as a signature, we refer to this Court’s decision in Succession of Bacot, 502 So.2d 1118 (La.App. 4 Cir.1987). In that case, a man who was known by his middle name signed an olographic will with his middle and last name only. An opponent of the will argued that the signature was invalid because the testator did not sign his full legal name. This Court agreed with the trial court’s finding that the signature was valid, |sstating that the fact that a testator does not use his full legal name does not render his signature invalid as long as the actual identity of the testator can be ascertained. Id. at 1122-1123, citing Succession of Cordaro, 126 So.2d 809 (La.App. 2 Cir.1961).

In Succession of Cordaro, 126 So.2d 809 (La.App. 2 Cir.1961), a woman made a disposition of her property in a document in the form of a letter addressed to her sister, and signed it using her first name only. In agreeing with the trial court’s finding that the signature was sufficient for the document to qualify as an olo-graphic will, the Second Circuit held that the sole object of a signature is the identification of the testator, and that any signature that will identify the testator as the author of the testament will suffice. Id. at 813.

In this case, the evidence presented at trial included testimony from Ms. Cail-ouet’s niece, Jo Ann Lotz, who stated that her children and grandchildren called Ms. Caillouet “Auntie” when they were young. Additionally, Ms. Caillouet’s cousin, Ruth Demandre, testified that Ms. Caillouet always referred to herself as “Auntie” when speaking of her nieces and nephews and their children. The trial court obviously found this evidence credible, and we find no error in that determination.

When a testament is written in olo-graphic form without the aid of counsel, the intention of the testator is to be given paramount importance. Succession of Diaz, 617 So.2d 34 (La.App. 4 Cir.1993). The trial court found that Ms. Caillouet intended to execute a last will and testament and intended for the word “Auntie” to serve as her signature, thereby fulfilling the signature requirement of La. C.C. article 1575. The record establishes that the word “Auntie” sufficiently identified Ms. Caillouet as the author of the testament. Considering the above-discussed | ficases on the issue of signatures in olographic wills, along with the evidence presented at trial on the issue of Ms. Caillouet being known as “Auntie,” we find no manifest error in the trial court’s ruling that the handwritten document meets the form requirements of an olographic testament, and that the validity of the olographic testament was proven.

For the reasons stated above, we affirm the trial court judgment.

AFFIRMED.

      .The appellant’s brief also lists Jo Ann Bau-mann Lotz and Gary P. Jenevein as appellants, but the motion for suspensive appeal was filed only on behalf of Mr. Robert J. Jenevein, in his capacity as the Administrator of the Succession of Anna Rita Babin King Caillouet.

      . A universal legacy is a disposition of all of the estate, or the balance of the estate that remains after particular legacies. La. C.C. article 1585.

      . A legacy that is neither general nor universal is a particular legacy. La. C.C. article 1587.


author: PATRICIA RIVET MURRAY, Judge.

text:
    Roland GALJOUR, Individually and on Behalf of all Others Similarly Situated. v. BANK ONE EQUITY INVESTORS-BIDCO, INC., Seaport Capital Partners, II L.P., Surgient Networks, Inc., David McCrory, Kevin Brandon, Andrew Meyers, Jim Collis, Michael Kirby, Ronald Hardy and James Roussel, Jr.
    No. 2005-CA-1360.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 21, 2006.

      Joseph N. Mole, Miles P. Clements, Kerry J. Miller, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, for Plaintiff/Appellant.
    Thomas K. Potter, III, Amy L. Glovin-sky, Coleman D. Ridley, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., New Orleans, LA, for Defendants/Appellees (Seaport Capital Partners, II, L.P., David McCrory, Kevin Brandon, Andrew Meyers, Jim Collis, Michael Kirby, Ronald Hardy, and James Roussel, Jr.).
    Robert S. Rooth, Douglas L. Grundmeyer, Peter J. Rotolo, III, Chaffe McCall, L.L.P., New Orleans, LA, for Defendant/Appellee (Bank One Equity Investors-Bidco, Inc.).
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   PATRICIA RIVET MURRAY, Judge.

hThe issue in case is whether the trial court properly denied the motion to certify this shareholder breach of fiduciary duty suit as a class action. Answering that question in the affirmative, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This suit arises out of the April 2003 merger of two privately-held companies: ProTier Corporation (“ProTier”) and Sur-gient Networks, Inc. (“Surgient”). The plaintiff, Roland Galjour, brought this suit in April 2004 as a class action on behalf of the common stockholders of ProTier whose stock was eliminated in the merger. The defendants are ProTier’s board of directors at the time of the merger and its two primary-preferred stockholders, Seaport Capital Partners, II, L.P. (“Seaport Capital”) and Bank One Equity Investors-BIDCO, Inc. (“Bank One”).

In the petition, Mr. Galjour alleges the following pertinent facts:

• In the spring of 2000, the plaintiff and other members of the class (or the persons from whom members of the class acquired their shares of ProTier | ?common stock) invested in a new Louisiana company named Applique, Inc. (“Applique”). Applique was a start-up company headquartered in New Orleans, Louisiana.
• The plaintiff purchased 10,000 shares of Applique’s common stock in February 2000 as an investment for the plaintiff and his wife. The plaintiff made this investment at or around the same time that other members of the class invested in Applique’s common stock.
• In all, the members of the class, a majority of which are residents of South Louisiana, invested approximately $1,300,000 in cash for 1,300,000 shares of Applique’s common stock. Some members of the class did not invest cash in Applique; rather, they had received approximately 600,000 shares of Applique’s common stock in August 1999 when they co-founded the company and agreed to work for Applique and carry out its business plan.
• In the summer of 2000, Applique began discussing an investment transaction with representatives of Seaport Capital and Bank One.
• Seaport Capital insisted that Applique change its state of incorporation from Louisiana to Delaware. Accordingly, Applique was reorganized as a Delaware company named ProTier Corporation.
• Seaport Capital and Bank One made their investment in ProTier in the form of preferred stock. Their shares of preferred stock had a “preference” in the amount of approximately $5.4 million, which increased annually at 8%. Accordingly, if ProTier were to be sold to a third party, the first $5.4 million (plus accrued increases) in value realized from the sale (after the payment of ProTier’s debts) would be recovered by these preferred shareholders. [This is referred to as the “preference amount.”] Thereafter, the holders of ProTier’s preferred stock and the holders of ProTier’s common stock would share in the excess proceeds of the sale. In any such transaction, after the preferred shareholders had recovered their preference amount, the remaining value of the company would be shared; the preferred shareholders would receive 52% of that excess value, and the common shareholders (including the class representative) would receive 48% of that excess value. [This is referred to as the “shared portion.”]
• After the issuance of the preferred stock to Seaport Capital and Bank One, management of ProTier virtually stopped all communications with the plaintiff and the other members of the class. The plaintiff received no financial statements or other information.
|⅞« After the defendants negotiated their deal [ie., the merger] with Surgient, the defendants who were directors of ProTier sent an “Information Statement” to the plaintiff and some other members of the class. The Information Statement indicated that a merger agreement had been entered into between ProTier and Surgient, that in the merger only the preferred shareholders of ProTier would receive any value, and the shared portion would be eliminated.

The Information Statement includes the following explanation as to why ProTier’s common shareholders received no consideration in the merger: “[g]iven the aggregate value of the Surgient common stock to be issued in the merger and the aggregate liquidation preference of the ProTier preferred stock, the common stock will not receive any consideration in the merger.” The Information Statement also explains that the shares of common stock would be cancelled, extinguished, and cease to exist without payment of any consideration.

In the petition, Mr. Galjour alleges that defendants breached their fiduciary duties of care, loyalty, and candor by causing ProTier to enter into the merger agreement with Surgient. He further alleges that defendants enriched themselves by appropriating value that belonged to the members of the class. He still further alleges that “[t]he plaintiff and other members of the class are entitled to recover from Surgient (the merged corporation) and the other defendants an amount in cash equal to the value of their ProTier common stock that was extinguished by the merger.”

On March 16, 2005, the trial court held a hearing on Mr. Galjour’s motion to certify the class. In connection with that motion, the parties entered a joint stipulation to the following facts:

|41. During 1999 and 2000, [Mr.] Galjour and others bought or received as compensation for services common stock of Applique Corporation (“Applique”).
2. In August 2000, Applique reorganized under Delaware law, and changed its name to ProTier Corporation (“ProTier”).
3. ProTier entered into a merger agreement with Surgient Networks, Inc. (“Surgient”), a Delaware corporation, on April 10, 2003. On April 30, 2003, pursuant to the merger agreement, ProTier was merged with Surgient.

The parties also stipulated to the introduction of Mr. Galjour’s deposition and various other documents. The documents establish that in the merger ProTier’s preferred shareholders received shares of Surgient common stock; however, ProTier’s common shareholders received nothing of value for their stock. The documents further establish that at the time of the merger ProTier had approximately fifty common stockholders and that the identity of all the stockholders was known.

On May 27, 2005, the trial court rendered judgment denying Mr. Galjour’s motion for class certification. In its reasons for judgment, the trial court stated:

The putative plaintiffs are a group of Southern Louisiana investors who invested in Applique in the spring of 2000.... The putative class consists of approximately fifty persons. Although there are more than forty putative class members, defendants point out that their identities and addresses are known. Further, plaintiff admits that the putative class members are in Louisiana. The Court finds that although the number of putative plaintiffs is substantial, it does not warrant class action status.

From that judgment, Mr. Galjour appeals asserting the following three assignments of error:

(1) The trial court committed reversible error in treating this matter as a derivative action because shareholder lawsuits against directors and officers for personal losses from breaches of fiduciary duties are specifically suited to proceed as class actions.
(2) The trial court’s denying certification based on numerosity lacks evi-dentiary support and constitutes a flagrant abuse of its otherwise great discretion.
|fi(3) The trial court abused its great discretion and clearly erred when it failed to consider, much less recognize, that [Mr.] Galjour had established all the other prerequisites for this lawsuit to proceed as a class action.

Defendants counter that Mr. Galjour’s appeal is moot and that the trial court did not err in finding Mr. Galjour failed to establish the impracticability of joinder.

DISCUSSION

Before addressing the primary issue of class certification, we address the mootness issue defendants raise and the derivative suit issue Mr. Galjour raises. Citing La. C.C.P. art. 596, defendants contend that the claims of the unnamed putative class members are barred by prescription. Because the claims of the unnamed putative class members have prescribed, defendants contend that any change in the trial court’s judgment would neither serve any purpose nor have any practical legal effect. Defendants thus contend that Mr. Galjour’s motion for certification is now moot. We disagree.

Article 596 is “a special provision that prevents prescription from accruing against the claims of members of a putative class action until the propriety of the class action or the member’s participation in the action is determined.” 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 4.12 (1999) (“Maraist & Lemmon”). This special provision, as Mr. Galjour contends, applies only to the claims of the individual class member; it does not apply to the claims of the class. See Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1383 (11th Cir.1998)(recognizing the right of dismissed class member whose individual claim prescribed to appeal district court’s class certification decision). Mr. Galjour’s appeal of the trial court’s decision denying class certification is not moot.

| (¡Turning to the derivative suit issue, Mr. Galjour contends that the trial court erred in classifying this suit as a shareholder’s derivative suit. Indeed, he contends that even if he were inclined to bring a derivative suit, he lacks standing to bring one because he is no longer a shareholder. Regardless of whether this is a derivative suit or not, the same requirement of nu-merosity — impracticability of joinder — applies. See La. C.C.P. art. 616 (requiring to pursue a derivative suit that 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 La. C.C.P. art. 591(A)(l)(requiring to maintain a class action that the class be so numerous that joinder of all members is impracticable). For this reason, we find that the issue of whether this is a derivative suit need not be resolved.

We now turn to the central issue in this case of whether the trial court erred in denying class certification. A trial court’s decision denying certification is an appealable judgment. La. C.C.P. art. 592 A(3)(b)(providing that “[a] suspensive or devolutive appeal, as provided in Article 2081 et seq. of the Code of Civil Procedure, may be taken as a matter of right from an order or judgment provided for herein”). A trial court’s decision denying certification is reviewed under both a manifest error and an abuse of discretion standard. Parry v. Administrators of Tulane Educational Fund, 98-2125, p. 3 (La.App. 4 Cir. 6/30/99), 740 So.2d 210, 212; Adams v. CSX Railroads, 92-1077 (La.App. 4 Cir. 2/26/93), 615 So.2d 476. The standard of review of class certification decisions is a bifurcated one. Watters v. Department of Social Services, 2005-0324, p. 3 (La.App. 4 Cir. 4/19/06), 929 So.2d 267, 272. The factual findings are reviewed under the manifest error/clearly wrong standard; the trial court’s discretionary judgment on whether to certify the class or not is reviewed by the abuse of discretion standard. Id. (citing Boudreaux v. State, Dep’t of Transp. and Dev., 96-0137, p. 5 (La.App. 1 Cir. 2/14/97), 690 So.2d 114, 119). These two standards of review correspond with the two-step process for determining whether to certify a class action. First, a trial court must find a factual basis exists to certify an action as a class action. Second, the court must exercise its discretion in deciding if certification is appropriate. Singleton v. Northfield Ins. Co., 2001-0447, p. 7. (La.App. 1 Cir. 5/15/02), 826 So.2d 55, 61.

A class action is simply a procedural device; it confers no substantive rights. When deciding a motion to certify, a court is limited to considering whether the procedural device is appropriate. Cooper v. City of New Orleans, 2001-0115, p. 3 (La.App. 4 Cir. 2/14/01), 780 So.2d 1158, 1160, [superseded by statute on other grounds]. The purpose of a class action is to adjudicate and obtain res judicata effect on all common issues applicable not only to the class representative who brings the suit, but also all others who are similarly situated, provided they are given adequate notice of the pending class action and do not timely exercise their right to opt out of the class. Doerr v. Mobil Oil Corp., 2001-0775, p. 7 (La.App. 4 Cir. 2/27/02), 811 So.2d 1135, 1141.

| sIn order to maintain a class action, three basic elements are essential: (1) a class so numerous as to make it impracticable for all of them to join or to be joined as parties; (2) one or more adequate representatives of the class who are before the court either as plaintiffs or defendants; and (3) a “right sought to be enforced for or against the members of the class [which is] [c]ommon to all members of the class.” Maraist & Lemmon, supra. These elements are codified in La. C.C.P. art. 591, which has been noted to require proof of five threshold requirements: nu-merosity, commonality, typicality, adequacy of representation, and identifiability. Howard v. Willis-Knighton Medical Center, 40,634, p. 26 (La.App. 2 Cir. 3/8/06), 924 So.2d 1245, 1260. The burden is on the plaintiff, as the party seeking to utilize the class action procedure, to establish each element by a preponderance of the evidence. Royal Street Grocery, Inc. v. Entergy New Orleans, Inc., 99-3089, 99-3090, p. 6 (La.App. 4 Cir. 1/10/01), 778 So.2d 679, 684. All of these elements must be established in order for a class action to be appropriate. Billieson v. City of New Orleans, 98-1232, p. 10 (La.App. 4 Cir. 3/3/99), 729 So.2d 146, 154. The failure to establish any element precludes certification.

| ¡¡Numerosity is the first prerequisite for certifying a class. To satisfy the numerosity requirement, the party seeking certification must establish that the members of the class are so numerous that joinder is impracticable. The key is “impracticality, and not impossibility of joinder.” Maraist & Lemmon, supra. This requirement reflects the basic function of the class action device of allowing a small number of persons to enforce claims for the benefit of many when it would be inequitable and impracticable to join every person sharing such claims at issue in the suit. Davis v. Jazz Casino Co., L.L.C., 2003-0005, p. 6 (La.App. 4 Cir. 1/14/04), 864 So.2d 880, 887 (citing Kent A. Lambert, Certification of Class Actions in Louisiana, 58 La. L.Rev. 1085 (1998)(“Lara6eri ”)). Although identificá-tion of all potential class members is not necessary, the party seeking certification must establish a definable group of aggrieved claimants. Farlough v. Smallwood, 524 So.2d 201, 203 (La.App. 4th Cir.1988). Conclusory allegations do not carry the plaintiffs burden to establish numerosity. Lewis v. Roemer, 94-0317 (La.App. 4 Cir. 9/29/94), 643 So.2d 819, 822.

Like the parallel federal rule, Rule 23(a)(1), Article 591 “is not a nu-merosity requirement in isolation.” 1 Alba Conte and Herbert Newberg, New-berg on Class Actions, § 3.3 (4th ed. 2002)(“Newberg”). The words of this statutory requirement, “a class so numerous” are immediately followed by the limiting language “as to make it impracticable for all of them to join or to be joined as parties.” La. C.C.P. art. 591(A)(1). This requirement, like Rule 23(a)(1), is thus “an impracticability of joinder requirement, of which class size is an inherent consideration within the |inrationale of joinder concepts. The practicability of joinder must be evaluated in light of the circumstances of the particular litigation.” Newberg, supra.

Although the impracticability of joinder is a case-by-case determination, the jurisprudence has developed a number of factors that should be considered in making that determination, including:

1. the geographic dispersion of the class,
2. the ease with which class members may be identified,
3. the nature of the action, and
4. the size of each plaintiffs claim.

Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir.1981). A fifth factor the jurisprudence has considered is the judicial economy arising from avoiding multiple actions. 5 Moore’s Federal Practice, § 23.22[l][a](Matthew Bender 3d ed.){“Moore’s Federal Practice ”); see also Davis v. American Home Products Corp., 2002-0942, 2002-0943, 2002-0944, p. 19 (La.App. 4 Cir. 3/26/03), 844 So.2d 242, 257, writ denied, 2003-1180 (La.6/27/03), 847 So.2d 1279. Analyzing those factors and applying them to the facts of this case, we find no error in the trial court’s finding that the numerosity requirement is not met.

1. the geographic dispersion of the class

“Wide geographic dispersion of class members supports a finding of impracticability of joinder and, therefore, a conclusion that the numerosity requirement is satisfied.” Moore’s Federal Practice, § 23.22[l][d]. The trial court stated in the reasons for judgment that Mr. Galjour “admits that the putative class members are in Louisiana.” The trial court’s statement is supported by Mr. Galjour’s petition in which he avers that the majority of the class members “are residents of South Louisiana.” Given the class members are geographically concentrated in Southern Louisiana, this factor supports the trial court’s finding that the numerosity requirement is not met.

2. the ease with which members of the class may be identified

“Knowledge of names and existence of members has been called the ‘most important’ factor, precisely because it renders joinder practicable.” Primavera Familienstiftung v. Askin, 178 F.R.D. 405, 410 (S.D.N.Y.1998). “When the group is small and the individual members are identifiable, joinder rarely will be impracticable.” Maraist & Lemmon, supra (citing Compass v. Pan American Life Ins. Co., 443 So.2d 720 (La.App. 4th Cir.1983)).

In the reasons for judgment, the trial court notes that the identities and addresses of the more than forty class members are known. The identities of the h ¡¡class members are established by a document in the record that lists the names of all the ProTier shareholders. In his deposition, Mr. Galjour was questioned about the document, and he conceded that the list of about fifty-one ProTier shareholders was consistent with his understanding of the total number of shareholders at the time of the merger. Moreover, the parties jointly stipulated to the authenticity of the document. The record thus supports the trial court’s factual finding that the identity of all the class members is known. This factor supports a finding that joinder is practical and that the numerosity requirement is not met.

S. the nature of the action

This is a shareholder suit alleging breaches of fiduciary duty. Mr. Galjour argues that certification is appropriate because the class action device is particularly well-suited for these type of actions. “ ‘Joinder impracticality (numerosity) is rarely contested in class actions brought on behalf of shareholders or traders in publicly owned corporations.’ ” Zeidman, 651 F.2d at 1039 (quoting 5 J. Newberg, Class Actions § 8812, at 836 (1977)). This is because in those type of cases “class members are usually so geographically dispersed and numerous that the joinder impracticability requirement is easily satisfied.” 7 Alba Conte and Herbert New-berg, Newberg on Class Actions, § 22:16 (4th ed.2002). This case, however, does not involve publicly traded securities. As noted elsewhere, all of ProTier’s shares of stock are restricted securities, meaning the stock is not publicly traded. Indeed, for this reason, the identity of its stockholders at the time of the liamerger is known. The nature of the action thus does not support a finding of numerosity.

J. the size of each plaintiff’s claim

“Some sources have suggested that the size of the claims of class members or their financial ability to bring individual suits may be relevant to the issue of joinder impracticability.” Newberg, supra § 3:6. Mr. Galjour states in his brief that the class members “who lost the significant stock value by defendants’ actions and omissions may well not have, nor want to risk, the equally significant resources needed to vigorously pursue individual lawsuits.” However, he put on no evidence regarding either the size of the class members’ claims or their financial ability to bring their own suits. For this reason, we cannot determine if this factor supports a finding of numerosity.

5. judicial economy

The judicial economy factor recognizes that certification of actions as class actions is generally appropriate whenever the interested parties appear to be so numerous that separate suits would unduly burden the courts, and a class action would be more useful and judicially expedient than any other available procedures. Watters, 2005-0324 at p. 7, 929 So.2d at 273 (citing Cotton v. Gaylord Container, 96-1958, 96-2029, 96-2049, p. 13 (La.App. 1 Cir. 3/27/97), 691 So.2d 760, 768). The jurisprudence addressing this factor can be divided into two categories. Stephen H. Kupperman, Louisiana Class Actions, 74 Tul. L.Rev.2047, 2058-59 (2000). First, “[m]any cases specifically finding the nu-merosity requirement to have been satisfied usually have done so not only on the ground that substantial numbers of people may have been affected by the defendant’s actions, but also on the basis that numerous people have filed or joined in various suits or have 114indicated a desire to assert a claim.” Id. (citing Livingston Parish Police Jury v. Acadiana Shipyards, Inc., 598 So.2d 1177, 1180-81 (La.App. 1st Cir. 1992); Johnson v. E.I. Dupont deNemours & Co., 98-229, p. 7 (La.App. 5 Cir. 10/14/98), 721 So.2d 41, 44). Conversely, in the other category of cases in which numerosity has been found lacking “often rest on the proposition that, despite large potential numbers of class members, an insufficient number have indicated a dissatisfaction with the defendant or a desire to assert a claim,” Id. (citing Furlough, 524 So.2d at 201-02; Olavarriette v. Tonti Properties, Inc., 95-151, p. 3 (La.App. 5 Cir. 6/28/95), 658 So.2d 25, 26-27).

This case falls in the second category in which the numerosity requirement is not met. The maximum class size is about fifty. There is only one named plaintiff in this suit, Mr. Galjour. In his deposition, Mr. Galjour could only identify three other putative class members interested in pursuing this suit. None of the class members have filed their own suit or sought to intervene in this suit after the trial court’s denial of certification.

In sum, the putative class members are all identified and the class members are geographically concentrated. Mr. Galjour presented no evidence regarding the size of the class members’ claims or their financial ability to bring their own suits. Likewise, he presented no evidence to indicate that all the class members or a substantial number of them have been aggrieved by defendants’ alleged conduct. An analysis of these factors thus establishes that the trial court did not abuse its discretion in finding the numerosity requirement is not met.

Lastly, we note, contrary to Mr. Galjour’s contention, that the trial court did not err in failing to address the other certification requirements. “Consideration of numerosity alone is sufficient to establish that class action certification should be 11Bdenied.” Ewh v. Monarch Wine Co., 73 F.R.D. 131, 132 (E.D.N.Y.1977). Such is the case here.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . In the petition, the class is defined as “all owners of common stock of ProTier on the date that ProTier was merged into Surgient [April 10, 2003], except for those common stockholders who were directors, officers and employees of ProTier on such date.”

      . Surgient was originally named as a defendant, but was voluntarily dismissed from the suit.

      . ProTier is a "provider of software and services that allow information technology managers to utilize their computing resources (such as CPU, storage, memory and networking) ⅛ a more efficient manner.” All of Pro-Tier’s shares of stock are -restricted securities>” meaning that they were issued in transactions not involving public offerings,

      . Surgient is an Austin, Texas based software company that, like ProTier, was engaged in the business of developing and marketing "virtualization” software. Like ProTier, all of Surgient's shares of stock are "restricted securities.”

      . Likewise, we do not reach the standing issue alluded to by Mr. Galjour. See 8 Glenn G. Morris and Wendell H. Holmes, Louisiana Civil Law Treatise: Business Organizations § 34.05 (1999)(discussing the "continuous shareholder” rule requirement for bringing a derivative action).

      . It is well settled that a trial court's factual findings are reviewed under a manifest error standard of review. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). Likewise, it is well settled that a trial court's decisions regarding certification issues are reviewed un~ der an abuse of discretion standard. See Banks v. New York Life Ins. Co., 98-0551, p. 6 (La.12/7/98), Ill So.2d 990, 993-94 (holding that an appellate court will only decertify a class when there is an abuse of a trial court's vast discretion); see also Billieson v. City of New Orleans, 98-1232, p. 8 (La.App. 4 Cir. 3/3/99), 729 So.2d 146, 152-53.

      .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, 620 (La.1984).

      . La. C.C.P. art. 591(A) provides:
      One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
      (1)The class is so numerous that joinder of all members is impracticable.
      (2)There are questions of law or fact common to the class.
      is) 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.
      La. C.C.P. art. 591(A).

      . In the reasons for judgment, the trial court noted that ''[a] presumption arises that join-der is impractical if more than forty class members exist.” In support of this proposition, the trial court cites Vela v. Plaquemines Parish Gov’t, 94-1161, 94-1162, 94-1163, 94-1164 (La.App. 4 Cir. 6/29/95), 658 So.2d 46, 48, but also cites for a contrary proposition West v. G & H Seed Co., 2001-1453 (La.App. 3 Cir. 8/28/03), 832 So.2d 274, and Boudreaux v. State, Dep’t. of Transp. and Dev., 96-0137 (La.App. 1 Cir. 2/14/97), 690 So.2d 114. Summarizing the conflicting jurisprudence regarding the use of a presumption based on a class of greater than forty members, a commentator notes:
      [In Vela,] the Louisiana Fourth Circuit Court of Appeal certified a class, stating "A presumption arises that joinder is impractical if more than 40 class members exist.” This statement was unnecessary, however, for "the class range[d] somewhere between 150 and 600 members, if not more.” Id. Moreover, the sole authority cited involved a class of thousands, with the court expressly noting that "whether the class is sufficiently numerous is not dependent upon a specified figure; this determination must be made upon review of the facts of each case.” Adams, 615 So.2d at 481. The First Circuit specifically declined to express an opinion on the Vela presumption. See Bou-dreaux, 690 So.2d at 123, n. 7. The better course would be to implement no presumption, but to determine numerosity on a case-by-case basis.
      Kent A. Lambert, Certification of Class Actions in Louisiana, 58 La. L.Rev. 1085, 1114, n. 63. Lambert, supra, 58 La. L.Rev. at 1114, n. 63. Likewise, another commentator has criticized the use of a presumption for measuring impracticability of joinder as overly rigid and noted that the generally accepted approach is to recognize that "numerical guidelines exist but are not controlling.” See also 5 Moore's Federal Practice, § 23.22[l][b] (Matthew Bender 3d ed.)("Moore’s Federal Practice ”).
      Despite the dicta language in Vela regarding the use of a presumption, this court has recognized that "no set number has been established that automatically makes joinder impracticable; rather the determination is based on the facts and circumstances of each case.” Cooper, 2001-0115 at p. 4, 780 So.2d at 1160 (citing Dumas v. Angus Chemical Co., 25,632 (La.App. 2 Cir. 3/30/94), 635 So.2d 446, 450).

      . On appeal, Mr. Galjour raises an issue regarding the accuracy of the trial court’s factual finding that the addresses of the class members are all known. The gist of his argument is that due to the displacement of residents in Southern Louisiana caused by Hurricane Katrina the trial court's finding that the addresses are known is inaccurate. However, ProTier’s records contain the addresses of the common shareholders at the time of the merger, April 2003. To the extent any of the shareholders were displaced in August 2005 due to the hurricane, it is likely they filed change of address requests with the post office. Given the relatively small number of putative class members coupled with the fact that the identity of all the class members is known, we find it unnecessary to remand in this case for the trial court to consider this potential change in circumstances. Under other circumstances, however, we might find it appropriate to remand for the trial court to consider a post-certification change in circumstances.


text:
    STATE of Louisiana v. Casey REICHARD.
    No. 2005-KA-1262.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 21, 2006.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Battle Bell, IV, Assistant District Attorney of Orleans Parish, New Orleans, LA, for PlaintiffiAppellee.
    William R. Campbell, Jr., Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD).
   PATRICIA RIVET MURRAY, Judge.

hln this criminal case, the defendant, Casey Reichard, appeals his conviction and sentence for unauthorized use of a motor vehicle. For the reasons that follow, we affirm his conviction.

STATEMENT OF THE CASE

On December 14, 2004, the State filed a bill of information charging Mr. Reichard with one count of unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4. On January 6, 2005, Mr. Reichard was arraigned and entered a not guilty plea. On February 24, 2005, the trial court denied Mr. Reichard’s pretrial motion to suppress a confession. On March 21, 2005, a six-person jury tried the case, and returned a verdict of guilty as charged. On April 15, 2005, the trial court sentenced Mr. Reichard to serve six years at hard labor. Mr. Reichard filed a motion to reconsider sentence, which the minute entry indicates the trial court denied. He also filed a motion for an appeal, which the court granted. This appeal followed.

| STATEMENT OF THE FACTS

On November 6, 2004, Janette Orlando went shopping at the Esplanade Mall in Kenner, Louisiana. When she left the mall, she discovered that her car- — a 1991 Camry that was registered in the name of her father, George Orlando — was missing. Ms. Orlando and her father reported the stolen vehicle to the Kenner Police Department.

On November 8, 2004, New Orleans Police Department (“NOPD”) officers Rita Franklin and Orlynthia Miller-White were conducting seatbelt and insurance checks in the area of the Lafitte Housing Development when they spotted Mr. Reichard driving without a seatbelt. The officers checked the license plate of the vehicle Mr. Reichard was driving, and discovered that the vehicle had been reported stolen. The officers initially stopped Mr. Reichard on the corner of Orleans and North Derbigny. As the officers approached the vehicle, they noticed that Mr. Reichard was rolling a cigarette. Officer Franklin instructed him to put it down and to produce the documents relating to the vehicle. Officer Franklin testified that Mr. Reichard “discarded the cigarette and reached inside the seat and came up with a gun.” She further testified that she “stepped back and shouted to her partner that he had a gun.” Mr. Reichard then sped off. A high-speed chase ensued. The chase, which lasted about twenty minutes, covered various parts of the city and went into the neighboring parish, Jefferson Parish. The chase ended in Jefferson Parish where Mr. Reichard was apprehended.

NOPD Officer Scott Seymour testified that he and his partner assisted in the chase and the apprehension of Mr. Reich-ard in Jefferson Parish. Officer Seymour testified that he used a taser to subdue Mr. Reichard. He explained that he did so |3because, after Mr. Reichard abandoned the stolen vehicle, he attempted to break free, from the other officers.

Officers Franklin and Miller-White testified that during the chase Mr. Reichard threw various items from the vehicle. However, because the chase covered such a wide area, nothing that he discarded was ever found. Once Mr. Reichard was apprehended, a single key was removed from the ignition of the vehicle. The key had imprinted on it “Mid City Lock and Key X15911.” Officer Franklin testified that the ignition lock was jimmied.

Ms. Orlando and her father testified at trial that they neither knew Mr. Reichard, nor gave him permission to use the vehicle. Ms. Orlando’s father also testified that, to his knowledge, there were only two keys to the vehicle, that both keys had the word “Toyota” printed on them, and that he and bis daughter each had one of the keys. Mr. Orlando identified photographs of the vehicle, including a picture of the ignition area. He testified that the ignition did not appear to be in the same condition as it had been on the morning of the theft when he drove the vehicle to the shop to be serviced. He also testified that when he retrieved the vehicle, it had no oil in it and no longer ran properly.

ERRORS PATENT

A review of the record reveals that there are no errors patent.

\ ¿DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In the assignment of error raised by counsel, Mr. Reichard argues that his trial counsel was ineffective because he failed to object to the State’s introduction of other crimes evidence, ie., that he pulled a gun when the officers stopped him.

Ordinarily, an ineffective assistance claim is better addressed in an application for post-conviction relief filed in the trial court in which a full evidentiary hearing can be held. State v. Howard, 98-0064, p. 15 (La.4/23/99), 751 So.2d 783, 802. However, where the record is sufficient to permit a determination of counsel’s effectiveness at trial, the claims may be addressed on appeal. State v. Wessinger, 98-1234, (La.5/28/99), 736 So.2d 162; State v. Bordes, 98-0086, p. 7 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147; State v. McGee, 98-1508, p. 4 (La.App. 4 Cir. 3/15/00), 758 So.2d 338, 341; State v. Causey, 96-2723, p. 10 (La.App. 4 Cir. 10/21/98), 721 So.2d 78, 84. Indeed, when the appellate record is sufficient, “the interests of judicial economy justify consideration of the issues on appeal.” State v. Kanost, 99-1822, p. 6 (La.App. 4 Cir. 3/29/00), 759 So.2d 184, 188. Such is the case here.

The standard for assessing an ineffective assistance of counsel claim is well-settled; the two-prong standard enunciated in the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), must be applied. State v. Fuller, 454 So.2d 119 (La.1984); State v. Brooks, 94-2438, p. 6 (La.10/16/95), 661 So.2d 1333, 1337 (on reh’g); State v. Robinson, 98-1606, p. 10 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 126. In order to prevail, a defendant must establish both that counsel’s performance was deficient and that the ^deficiency prejudiced the defendant. State v. Jackson, 97-2220, p. 8 (La.App. 4 Cir. 5/12/99), 733 So.2d 736, 741. As to the former, the defendant must show that counsel made errors so serious that counsel was not functioning as the “counsel” the Sixth Amendment guarantees. Strickland, 466 U.S. at 686, 104 S.Ct. at 2064; State v. Ash, 97-2061, p. 9 (La.App. 4 Cir. 2/10/99), 729 So.2d 664, 669. As to the latter, the defendant must show that “counsel’s errors were so serious as to deprive him of a fair trial, i.e., a trial whose result is reliable.” McGee, 98-1508 at p. 5, 758 So.2d at 342. To carry his burden, the defendant must show that there is a reasonable probability that, but for counsel’s deficient performance the result of the proceeding would have been different; “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 693, 104 S.Ct. at 2068; State v. Guy, 97-1387, p. 7 (La.App. 4 Cir. 5/19/99), 737 So.2d 231, 236.

An “effective counsel” has been defined as “not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” State v. Anderson, 97-2587, p. 7 (La.App. 4 Cir. 11/18/98), 728 So.2d 14, 19 (citing, State v. Seiss, 428 So.2d 444 (La.1983)). Given that “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” State v. Crowell, 99-2238, p. 8 (La.App. 4 Cir. 11/21/00), 773 So.2d 871, 878 (quoting State v. Brooks, 505 So.2d 714, 724 (La.1987)). It follows then “trial strategy” type errors do not constitute ineffective assistance of counsel. Crowell, 99-2238, at p. 8, 773 So.2d at 878 (citing State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986)); State v. Bordes, 98—0086, p. 8 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147 (quoting Bienemy, 483 So.2d at 1107 (noting that “[t]his court has previously recognized that if an alleged error falls ‘within the ambit of trial strategy’ it does not ‘establish ineffective assistance of counsel.’ ”))

In this case, Mr. Reichard contends that his trial counsel was ineffective for failing to challenge the admission of the other crimes evidence. He contends that the officers’ testimony regarding his alleged display of a gun at the time he was initially stopped was irrelevant to the charged crime of unauthorized use of a motor vehicle. The State counters that this evidence is res gestae because it is an integral part of the act for which Mr. Reichard was arrested.

The res gestae exception to the other crimes exclusion is codified in the last sentence of La. C.E. art. 404(B)(1), which provides that:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

La. C.E. Art. 404(B)(1). If evidence is admissible under the res gestae exception, it is not subject to any notice requirements. State v. Brown, 03-1616 (La.App. 4 Cir. 3/31/04), 871 So.2d 1240; writ denied, 04-1285 (La.10/15/04), 883 So.2d 1044; State v. Williams, 03-0987 (La.App. 4 Cir. 12/10/03), 863 So.2d 652; writ denied, 04-0261 (La.6/04/04), 876 So.2d 75 (noting that if the evidence of other crimes is introduced because it was an integral part of the act that is the subject of the case, no advance notice is required).

|7The Louisiana Supreme Court discussed the res gestae principle in State v. Taylor, 01-1638, pp. 10-11 (La.1/14/03), 838 So.2d 729, 741-42, cert. denied, Taylor v. Louisiana, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004).

Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them.The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances .... [I]ntegral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the state’s case would lose its “narrative momentum and cohesiveness, ‘with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’ ”

Taylor; 01-1638 at pp. 10-11 (La.1/14/03), 838 So.2d at 741-42 (quoting State v. Colomb, 98-2813, p. 4 (La.10/1/99), 747 So.2d 1074, 1076 (quoting Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997))).

In State v. Walker, 99-2217 (La.App. 4 Cir. 10/25/00), 775 So.2d 484, which was cited in Brovm, the defendant argued on appeal that his counsel was ineffective for his failure to object to the introduction of testimony regarding cocaine seized from the trunk of a car and his conviction for possession of that cocaine. The defendant was on trial for being a convicted felon in possession of a firearm. The police officers testified that they observed the defendant open the trunk of a car and place a handgun into it from his waistband. The police apprehended the defendant, seized the key to the trunk, opened it, and found the gun. Next to the gun were several grams of crack cocaine. The defendant argued on appeal that there was no need to include any testimony regarding the narcotics |sin order to substantiate the charge regarding the firearm. Finding the res gestae exception applicable, this court reasoned that the police officers’ “narrative testimony established that all of the events leading up to the defendant’s arrest ... occurred within a short period of time.” Walker, 99-2217 at p. 7, 775 So.2d at 489.

This court in Walker further found that the defendant’s ineffective assistance of counsel claim was unpersuasive. The court reasoned that the defendant’s trial counsel may have believed that any objection to the evidence would have been overruled by the trial court on the grounds that the evidence was admissible under the res gestae exception because the evidence “was so closely related to the State’s case as to the charge of felon in possession of a firearm.” Walker, 99-2217 at p. 8, 775 So.2d at 489. The Court stated that “[cjounsel could have made a strategic decision not to object to the evidence if only to avoid emphasizing it to the jury.” Id. As noted above, such trial strategy decisions do not establish ineffective assistance of counsel.

Mr. Reichard argues that the testimony about him displaying a gun before fleeing from the officers could have been excised from the officers’ testimony without a loss of narrative cohesion. Therefore, he argues that it does not qualify as a res gestae exception to the exclusion of other crimes evidence. However, the testimony about the weapon was as much an integral part of the events leading up to Mr. Reichard’s arrest as was the discovery of the cocaine in Walker, if not more so. Furthermore, it is possible that trial counsel in this case did not object to the testimony about the gun because Mr. Reichard’s possession of the gun arguably gave an explanation for his flight from the officers, other than guilt over possessing a stolen vehicle, leaving counsel free to argue that Mr. Reichard’s possession of the vehicle was authorized. Alternatively, trial counsel may have accepted that an 13objection would have been overruled. In either event, under Walker, this assignment of error is not persuasive.

DECREE

For the foregoing reasons, the defendant’s conviction is affirmed.

CONVICTION AFFIRMED.

      . A possible error patent pertaining to the sentence was raised by Mr. Reichard in his pro se filing. Mr. Reichard contended that the trial court improperly changed his sentence from four years to six years after he requested an appeal bond. However, while this appeal was pending, Mr. Reichard filed an application for supervisory writ raising the issue of the appeal bond. State v. Reichard, 2006-K-0397. In response, this court requested the trial court provide a per curiam. In the per curiam, the trial court requested that the matter be remanded for resentencing. On May 23, 2006, this court granted that request and ordered the matter remanded for resentencing. The issue Mr. Reichard raises regarding his initial sentence is thus now moot.

      . The counts had been severed, and he was tried on the narcotics charge first.