author: TERRI F. LOVE, Judge. TOBIAS, J., PER CURIAM.

text:
    Sherry WATTERS, Frances M. Breyne, Gina Recasner, Gretchen Wiltz and Wendy Lemieux Individually and on Behalf of Others Similarly Situated v. DEPARTMENT OF SOCIAL SERVICES, Department of Health and Hospitals, Division of Administration, BG Real Estate Services, Inc., Baha Towers Limited Partnership, et al. Kristen M. Rhodes, Donalisa Augustus-Jones, and Gerald J. Washington, Sr. v. BG Real Estate Services, Inc., Baha Towers Limited Partnership, Bahar Development, Inc., Noob I GP, LLC, Noob I, LP, Monticello Insurance Company, and Evanston Insurance Company. Mary Johnson, Sharon Cheneau, Bernard Singleton, Valerie Eddington, Marion Van Buren, Mary Williams, Carolyn Reeves-Davis, Richard Eddington, Clara Reeves, et al. v. Department of Social Services, Division of Administration, BG Real Estate Services, Inc., Baha Towers Limited Partnership, Bahar Development, Inc., Noob I GP, LLC, Noob I LP, Monticello Insurance Company, Evanston Insurance Company, et al.
    No. 2005-CA-0324 to 2005-CA-0326.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 19, 2006.
    Opinion Granting Rehearing May 22, 2006.

      Mickey P. Landry, Frank J. Swarr, Landry & Swarr, L.L.C., New Orleans, Robert G. Creely, The Creely Law Firm, L.L.C., Gretna, Craig Mitchell, Mitchell and Associates, New Orleans, Madro Bandaries, Madro Bandaries, P.L.C., Gretna, Counsel for Plaintiffs/Appellees.
    Neil C. Abramson, Benjamin Ward, Phelps Dunbar LLP, New Orleans, Counsel for Specialty National Insurance Company.
    Charles C. Foti, Jr., Attorney General, James J. Bolner, Jr., Special Assistant Attorney General, Berrigan Litchfield Schonekas Mann, Traína & Bolner, LLC, New Orleans, Counsel for State of Louisiana.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr., Judge LEON A. CANNIZZARO, Jr.)
   TERRI F. LOVE, Judge.

_JjThis appeal arises from the trial court’s judgment granting plaintiffs’ Motions for Certification as Class Actions in two consolidated cases. We affirm the trial court’s class action certification. We remand for the trial court to determine whether there was a causal connection between the exposure to the toxic substance and injury sustained in the defining of the classes.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In September 1996, the Division of Administration (“DOA”), which is vested with the power to approve or disapprove leases entered into by the State of Louisiana (“State”), approved a lease executed with the Plaza Tower Office Building (“the Plaza Tower”), located at 1001 Howard Avenue, New Orleans, Louisiana, for the use of its building as office space for various State departments. The DOA, acting through the Director of Office of Facility Planning and Control, Roger Magendie, approved the Department of Social Services’ (“DSS”) request to | ^cancel its lease with the owners of the Plaza Tower and in February 2002, DSS vacated the building and terminated its lease citing as reasons for the termination that the building owners violated the fire code and asbestos regulations, and that the building had chronic water leaks, which permitted mold to grow in leased office space.

WATTERS PLAINTIFFS

Prior to DSS’ request to terminate its lease with the Plaza Tower, plaintiffs, Sherry Watters, Frances M. Breyne, Gina Reeasner, Gretchen Wiltz, and Wendy Lemieux (hereinafter collectively referred to as “Watters plaintiffs”) filed a petition on October 25, 2001, seeking damages as a result of their exposure to mold, asbestos, and other toxins alleged to have been contained in the Plaza Tower. The Watters matter was filed on behalf of all State employees who were assigned to work in the Plaza Tower from September 23, 1996, until February of 2002.

RHODES PLAINTIFFS

In November of 2001, plaintiffs, Kristen M. Rhodes, Donalisa Augustus-Jones, and Gerald J. Washington, Sr., individually and on behalf of others similarly situated, (hereinafter collectively referred to as “Rhodes plaintiffs”) filed a petition for damages and recognition as a class action. Plaintiffs, who included employees of the New Orleans District Attorney’s Office of Child Support and Enforcement and the Orleans Parish Civil Sheriffs Office, alleged that they were housed in the | sPIaza Tower and exposed to mold, asbestos, and other toxins. As a result of those exposures, they sustained injuries. The Rhodes matter was filed on behalf of employees of the New Orleans District Attorney’s Office of Child Support Enforcement and the Orleans Parish Civil Sheriffs Office, who occupied the Plaza Tower, from September 1998, until April 2002.

JOHNSON PLAINTIFFS

In September of 2002, plaintiffs, Mary Johnson, Sharon Chenear, Bernard Singleton, Valerie Eddington, Marion Van Bu-rén, Mary Williams, Carolyn Reeves-Davis, Richard Eddington, Clara Reeves, Diane Trim, and Francis Sowell (hereinafter collectively referred to as “Johnson plaintiffs”) filed a petition for damages seeking class certification. The Johnson plaintiffs, contract foster parents for the DSS, assert that they suffered various illnesses as a result of water leaks, mold, and exposure to various conditions at the Plaza Tower building. The Johnson case was filed on behalf of all contract foster parents who occupied the Plaza Tower from 1995, until February 2002.

MOTION FOR CLASS ACTION CERTIFICATION

In April 2004, plaintiffs named Specialty National Insurance Company (“Specialty National”), alleged insurer of Baha Towers Limited Partnership, Bahar Development, Inc., and L & B Serbo Fun, DBA: Plaza Tower, as defendants in their claims of exposure. However, plaintiffs’ claims against the owners and operators |4of the Plaza Tower, and the owners’ and operators’ insurers reached a preliminary settlement agreement, but not with Specialty National. Accordingly, the plaintiffs severed and stayed all claims against the owners and operators of the Plaza Tower and their insurers that provided policy coverage from 1997 until 2001. The Motions for Cei’tification as Class Actions proceeded against the State and Specialty National.

The trial court granted plaintiffs’ Motions for Certification as Class Actions pursuant to La. C.C.P. art. 591, specifically, pursuant to La. C.C.P. art. 591(B)(1). In the trial court’s judgment, the trial court certified and defined the class involving the Watters plaintiffs, as all present or past individuals employed by the State who worked in Plaza Tower at any time from 1996, to present, who have been exposed to toxic substances and all individuals assigned after the day of filing of the petition. The trial court also appointed named plaintiffs and individuals Sherry Watters, Frances M. Breyne, Gina Recas-ner, Gretchen Wiltz, and Wendy Lemieux, as Class Representatives in the Watters matter.

The trial court’s judgment also certified and defined the class involving the Johnson plaintiffs as all present or past “contract foster-parents” of the DSS who were required by the terms of their contractual duties to occupy the Plaza Tower from 1995, to the date of their departure from the Plaza Tower, who were exposed to fungal substances such as mold and mold spores which were growing on building materials and the by-product of the mold and mold spores that were released into the air. The trial court also appointed named plaintiffs and individuals Mary Johnson, Sharon Chenear, Bernard Singleton, Valerie Eddington, [sMarion Van Bu-rén, Mary Williams, Carolyn Reeves-Davis, Richard Eddington, Clara Reeves, Diane Trim, and Frances Sowell, as Class Representatives in the Johnson matter.

It is from the trial court judgment in favor of the Watters plaintiffs’ and the Johnson plaintiffs’ Motions for Certification as Class Actions and against defendants, the State, through DHH, DSS, as well as Specialty National for the years covered by their policy that Security National and the State appeal.

Specialty National and the State appeal the trial court’s judgment certifying as class actions the Watters and Johnson matters. Specialty National perfected a suspensive appeal, asserting that the trial court’s judgment was properly appealable as an interlocutory judgment, which causes irreparable injury.

Specialty National avers that the trial court erred in certifying the actions as class actions, stating that the plaintiffs failed to prove the presence of mold during Specialty National’s policy period, which was for the first six months plaintiffs worked in or visited the building. Specialty National also asserts that the trial court erred in certifying the class pursuant to La. C.C.P. art. 591(B)(1) and that the absence of an existing single common exposure and individual issues of causation predominate.

The State asserts that the trial court was manifestly erroneous in certifying these two cases as class actions. In its specifications of error, the State asserts that the trial court was manifestly erroneous in finding that the plaintiffs presented common issues of law and fact, in finding that the Johnson plaintiffs met the numer-osity requirement, and in finding that the class representatives satisfied the requisite typicality and adequacy standards. The State also asserts that the trial |Rcourt erred in failing to require the plaintiffs to establish numerosity and that the class definition is vague.

STANDARD OF REVIEW

The issue before this Court is not the merits of the ensuing claims, but rather whether the trial court erred in granting plaintiffs’ motions for certification as class actions. The standard of review for certification of class actions is bifurcated. 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. 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. Accordingly, the standard of review in the case sub judice is whether the trial court abused its discretion in certifying the plaintiffs’ claims as class actions, and whether the trial court was manifestly erroneous in its factual finding that the evidence submitted was sufficient to satisfy the requisite elements of adequacy of representation, commonality, and numerosity for class certification.

The bifurcated test for the appellate review of factual findings is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). An appellate court may not set aside a trial court’s factual finding unless, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). The judgment certifying the class in this consolidated action is ap-pealable. Davis v. Am. Home Prods. Corp., 02-0942, p. 4 (La.App. 4 Cir. 3/26/03), 844 So.2d 242, 248, citing Eastin v. Entergy Corp., 97-1094 (La.App. 5 Cir. 4/15/98), 710 So.2d 835.

FACTUAL FINDINGS

Specialty National avers that the trial court erred in certifying the actions as class actions, averring that the plaintiffs failed to prove the presence of mold during Specialty National’s policy period. At a hearing on class certification, the only issue to be considered by the court is whether the case is one in which the class action procedural device is appropriate. Munsey v. Cox Communications of New Orleans, Inc., 01-0548, p. 5 (La.App. 4 Cir. 3/20/02), 814 So.2d 633, 636, citing Andry v. Murphy Oil, U.S.A., Co., 97-0793 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, 1129. Thus, “the court is not concerned with whether the plaintiffs have stated a cause of action or the likelihood that they ultimately will prevail on the merits.” Munsey, p. 5, 814 So.2d at 636, quoting Andry, 97-0793, p. 3, 710 So.2d at 1129 and Miller v. Mackey Int’l, Inc., 452 F.2d 424 (5th Cir.1971).

In its reasons for judgment, the trial court in the case sub judice opined:

The problems began as soon as employees began occupying the building. Within weeks water pipes burst and people were ankle deep in water. Letters and memos were circulated questioning why employees were sick with nose burning, breathing difficulties and upper respiratory problems. Numerous complaints were made to the building managers and to state supervisory personnel complaining about water leaks, ceiling leaks, dampness and buckling and wet ceiling tiles. In a letter report of October 12, 2001, Mr. Kenneth Lanier further observed a water soaked building with visible mold growth, uncleaned air conditioning coils and air quality in floors 17 and 27 that is known to produce potent mycotoxims [sic] and mold spores. These are the floors visited on a regular basis by the class comprising the plaintiffs in the Mary Johnson et. al. vs. Department of Social Services et. al. lawsuit.

The State entered into a lease with the Plaza Tower on September 23, 1996, during which, Specialty National provided a commercial general liability policy to Plaza Tower. Specialty National did not cancel its insurance coverage of the Plaza |sTower until March 15,1997. Plaintiffs assert that they were exposed to toxic substances and fungal substances such as mold and mold spores, which were growing on the building material, and the by-product of the mold and mold spores that were released into the air. Specialty National avers that the record is absent of evidence that mold existed or that the plaintiffs were exposed to mold during the period Specialty National provided commercial general liability coverage to Plaza Tower.

The State called Dr. Bruce Kelman to testify at the certification hearing. Dr. Kelman, an expert in the filed of toxicology, testified that there was not enough mold spores to cause the reported illness claimed by the five class representatives. He further testified as to the spore count made in 2001; however, the defendants compromised a scheduled examination pri- or to 2001, because they placed bleach and other cleaning products into the duct work at the Plaza Tower and began to clean up. Thus, the 2001 spore count was collected subsequent to the implementation of the bleach and clean-up procedures.

Dr. Kelman specifically testified that he did not believe there was sufficient mold spores present in the Plaza Tower to sustain plaintiffs’ claims of illness as a result of exposure to mold, etc., in the workplace. However, Dr. Kelman also testified that mold in an indoor environment should be cleaned because it is bad and that water damage in a building can indicate mold growth.

Further, Dr. David C. Straus, plaintiffs’ expert, testified that if water intrusion exists and the building material stays wet for more than seventy-two hours, then he would recommend that it be disposed of, as mold has already begun to grow on the item that has retained the water. Dr. Chin S. Yang testified that if | flwater damage exists, it is more likely than not that mold spores would be produced.

It is evidenced in the record that the employees housed in the Plaza Tower since September 23, 1996, were exposed to unremitting water damage from the time the State of Louisiana employees began to occupy office space in the Plaza Tower from September 23, 1996, until they vacated the building in September of 2001. Shirley Dean, Program Specialist for DHH, Bureau of Health Services Financing, New Orleans Regional Office, forwarded a letter to the Plaza Tower in February of 1997, complaining of the continuing rainwater seepage problems with her office. She further informed the Plaza Tower of the mildew growing on the walls as a result of the water damage, and despite her personal efforts to kill the mildew, the smell of mildew was extremely strong. She further informed the Plaza Tower that the presence of mildew had caused her respiratory problems among other concerns.

After careful review of the record before us, we do not find that the trial court was manifestly erroneous in certifying plaintiffs’ claims as class actions against Specialty National.

CLASS CERTIFICATION

Specialty National further asserts that the trial court erred in certifying the Class pursuant to La. C.C.P. art. 591(B)(1) and that there is an absence of a single common exposure; therefore, individual issues of causation predominate. The State also asserts that the trial court was manifestly erroneous in finding that the Johnson plaintiffs met the numerosity requirement; in finding that the plaintiffs presented common issues of law and fact; in finding that the class representatives satisfy the | ^requisite typicality and adequacy standards; and that the trial court erred in failing to require the plaintiffs to establish numerosity.

Louisiana Code of Civil Procedure articles 591 et seq., governs the class action procedure. La. C.C.P. art. 591(A) provides in pertinent part:

One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

The burden is placed on the party seeking class certification to demonstrate that all of the requisite elements for certification exist. Accordingly, the plaintiff must show that the class is definable and that it satisfies the requirements of numerosity, commonality, typicality, and adequacy of representation. Davis v. Jazz Casino Co., 03-0005, p. 4 (La.App. 4 Cir. 1/14/04), 864 So.2d 880, 886. In the trial court’s judgment in the case sub judice, the trial court stated:

[Although the requested elements for both Article 591(B)(1) and (B)(3) classes are satisfied, both the classes herein are certified and maintained pursuant to Article 591(B)(1).

La. C.C.P art. 591(B)(1) provides:

An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
(1) The prosecution of separate actions by or against individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompa-tibie standards of conduct for the party-opposing the class, or
(b) Adjudications with respect to individual members of the class l^which would as a practical matter be disposi-tive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;

In its written reasons for judgment, the trial court stated:

[T]his Court has allowed all parties to do extensive discovery regarding class certification issues. The parties have conducted written discovery and Defendant deposed plaintiffs sought to be made class representatives. The court has reviewed the pleadings, memoranda, the written discovery and transcripts of the deposition testimony of the class representatives as well as the entire record of these proceeding [sic] all contained in four large boxes,- and is satisfied that the elements provided for by Articles [sic] 591 of the Louisiana Code of Civil Procedure are clearly satisfied. The Court intends to maintain both class actions [sic] as pursuant to Article 591(B)(1).
With respect to Article 591(A), the court finds:
(1)The potential classes are numerous enough, there being many hundred [sic] of members of class.
(2)Common issues of facts and law exist, primarily the existence of mold, spores and microtoxins and their detrimental effect on class representatives. Also the lack of recognition and correction by State Offices.
(3)The named class representatives [sic] claims are typical of the classes. Those claims arise out of the same alleged conduct of Defendants and rely on the same legal theories.
(4)There has been presented no reason as to why the named class representative or proposed class counsel are inadequate to represent the class and none appear from the record.
(5)The class is objectively defined because it consists of an objectively identifiable group. With respect to Article 591(B)(1), the court finds:
As pointed out above, common issues of fact and law exist. There is evidence that absent certification of a class herein individual lawsuits will be brought. Certainly individuals prosecuting separated actions on their own behalf under the facts and law at issue could conceivably result in varying interpretations. Such differing results have the effect not only of establishing different standards of conduct with respect to Defendant’s alleged actions, but will almost inevitable [sic] affect the interests of other class members and impede their ability to protect those interest [sic].

Ntimerosity

The defendants assert that the trial court erred as it pertains to the issue of numerosity. The first prerequisite, as enumerated in La. C.C.P. art. 591(A)(1), is that the members of the class be so numerous that joinder is impracticable. This 11 ¿requirement reflects the basic function of the class action as a device for allowing a small number of persons to protect or enforce rights or claims for the benefit of many where it would be inequitable and impracticable to join every person sharing an interest in the rights or claims at issue in the suit. Davis, 03-0005, p. 6, 864 So.2d at 887, citing Kent A. Lambert, Certification of Class Actions in Louisiana, 58 LA. L. REV. 1085 (1998). Certification of actions as class actions are 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 judi-dally expedient than any other available procedures. Cotton v. Gaylord Container, 96-1958, 96-2029, and 96-2049, p.13 (La.App. 1 Cir. 3/27/97), 691 So.2d 760, 768. Determination of whether this requirement has been fulfilled depends on the facts and circumstances of each individual case. Id. However, the plaintiffs are not required to identify every member of the class prior to certification. Davis v. Am. Home Prods. Corp., 02-0942, 02-0943, and 02-0944, p. 19 (La.App. 4 Cir. 3/26/03), 844 So.2d 242, 257. The determination of nu-merosity is partly based upon the number of putative class members and considerations of judicial economy in avoiding a multiplicity of lawsuits, financial resources of class members, and the size of the individual claims. Id.

In the case subjudice, it is asserted that approximately six hundred eighty employees occupied or visited the Plaza Tower between September of 1996 until February of 2001. The trial court, in its judgment, included one of the definable groups as:

[a]ll past or present “contract foster-parents” of the Department of Social Services who were required by the terms of their contractual duties to occupy the “Plaza Tower” office building from 1995 to the date of their departure who were exposed to fungal substances such as mold and mold spores which were growing on building materials and | isthe by-products of the mold and mold spores that were released into the air.

The other definable group included by the trial in the certification of class actions was defined as:

[a]ll present or past individuals employed by the State who worked in Plaza Towers at any time from 1996 to present, who have [sic] exposed to toxic substances and all individuals assigned after the day of filing of this petition.

The trial court also found that the numer-osity requirement of the class certification process was satisfied based on the probability that well over five hundred individual suits would be filed if the class certification was denied. Thus, the plaintiffs presented sufficient evidence to prove the numerosity prerequisite for class certification. We find no error in the trial court’s determination that the class satisfied the numerosity requirement for class certification. Appellant’s assertion that the trial court erred in failing to require plaintiffs to prove numer-osity is without merit.

Vagueness

Further, the State of Louisiana asserts that the trial court erred in its class definition in the Watters matter as being too vague. The trial court defined the class as “[a]ny employee of the State of Louisiana who worked in Plaza Towers at any time from 1996 to the present, who have been exposed to toxic substances and all individuals assigned after the date of filing of these proceedings.” We find that the trial court did err in the class definition provided for the Watters plaintiffs. In an effort to determine whether a class action may be maintained, a class definition provides the framework against which the court must apply the statutory requirements of La. C.C.P. art. 591. In the case at bar, the trial court, in its judgment, does not provide any requirement for a causal connection between the 114exposure to the toxic substance and injury sustained. Notwithstanding, “because of a trial court’s authority to redefine the class before a decision on the merits of the common issues, appellate courts often allow certification despite a finding that the definition is inadequate for one reason or another.” Sutton Steel & Supply, Inc. v. BellSouth Mobility, Inc., 03-1536, p. 5 (La.App. 3 Cir. 6/9/04), 875 So.2d 1062, 1068, citing Duke v. Texaco, Inc., 99-2002, p. 15 (La.App. 3 Cir. 2/7/04), 779 So.2d 1070, 1080. See Billieson v. City of New Orleans, 98-1232, p. 34 (La.App. 4 Cir. 3/3/99), 729 So.2d 146, 166. Appellate courts may remand the matter to allow any inadequacies to be resolved if appropriate. Sutton, 03-1536, p. 5, 875 So.2d at 1068.

Commonality

Defendants also assert that the trial court erred in finding that the plaintiffs presented common issues of law and fact. We find this specification of error without merit. Another requisite element for certification of a class action is that questions of law and fact common to the class exist. Billieson, 98-1232, p. 19, 729 So.2d at 157. The jurisprudence generally mandates that the common questions preponderate over the individual issues because “[c]lass actions are limited to cases in which it would achieve economics of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Scott v. Am. Tobacco Co., 98-0452, pp. 8-9 (La.App. 4 Cir. 11/4/98), 725 So.2d 10, 14.

“[I]f the superiority of a class action is disputed, the trial court must inquire into the aspects of the case and decide whether the intertwined goals of effectuating substantive law, judicial efficiency, and individual fairness would be better served by some other procedural device.” Johnson v. Orleans Parish Sch. | ifBd., 00-0825 — 00-0828, p. 13 (La.App. 4 Cir. 6/27/01), 790 So.2d 734, 744. Accordingly, the test of commonality is not a demanding one, and requires only that there be at least one issue, the resolution of which will affect all or a significant number of putative class members. A common question is defined as one which when answered as to one class member is answered as to all of them. Duhe, 99-2002, p. 1 2, 779 So.2d at 1078.

After careful review of the record, we do not find that the trial court was manifestly erroneous in finding the commonality element was satisfied. A common trial would be the most efficient method to determine the potential liability of Specialty National as well as the State of Louisiana defendants. The ensuing trial would not require the loss of judicial efficiency. Specialty National, as well as the State of Louisiana, generally asserts that plaintiffs’ damages have different causes, which defeats class certification. We find this contention in error. This Court, in Scott, 98-0452, pp. 4-5, 725 So.2d at 12-13, dealt with one substance, nicotine, and one effect, health complications. It did not matter that each member of the class was harmed on different dates and sustained different injuries. In Davis, this Court quoted Scott and stated: “Tracing the complaint of the class in the instant case to a single source, nicotine, is consistent with the admonition found in Ford [v. Murphy Oil U.S.A., Inc., 96-2913(La.9/9/97), 703 So.2d 542] that only mass torts ‘arising form a common cause’ ... may be appropriate for class certification ...” Davis, 02-0942, p. 16, 844 So.2d at 255, quoting Scott, 98-0452, p.3, 725 So.2d at 13. In the case sub judice, the complaints of the class are traced to the Plaza Tower as a single source and is appropriate for class certification. Accordingly, we find this specification of error without merit.

| ^Typicality or Adequacy of Representation

Defendants assert that the trial court erred in finding that the class representatives meet the requirements of typicality and adequacy. Typicality for class action certification is satisfied if the claims of the class representatives arise out of the same event, practice, or course of conduct that gives rise to the claims of other class members and those claims are based on the same legal theory. Andrews v. Trans Union Corp., 04-2158, p. 8 (La.App. 4 Cir. 8/17/05), 917 So.2d 468, 469. The representative plaintiffs’ claims arise out of the Plaza Tower and the State of Louisiana’s actions of exposing them to toxic/fungal substances, the same action that gives rise to all of the other putative class members’ claims against Specialty National and the State of Louisiana. The putative class members’ claims are also all based on the same theory of law. Accordingly, we find defendants’ specification of error without merit.

Adequacy is a principal requirement for certification where the class representatives must be adequate for the class. The representatives’ claims must be a cross section of, or typical of, the claims of the other class members. Adams v. CSX R.R.s, 615 So.2d 476, 481 (La.App. 4 Cir.1993). In the case sub judice, the class of damages asserted by each representative is typical, although a claim by a particular class representative regarding the exact damage may not be typical. The class representatives will adequately represent the absent class members. The class representatives have suffered injuries that are typical of the class. Accordingly, we do not find that the trial court erred in finding that the class representatives satisfied the requisite elements of typicality and adequacy.

117DECREE

Based on the aforementioned reasons, we do not find that the trial court erred in granting plaintiffs’ motions for certification of class actions. In light of the evidence submitted, we do not find that the trial court’s findings of facts were manifestly erroneous, nor do we find that the trial court abused its discretion to certify the plaintiffs’ claims as class actions.

We, however, remand this matter to the trial court to determine whether a causal connection exists between the exposure to the toxic substance and the alleged injury sustained because it will alleviate the inadequacy as to vagueness and redefine the class.

AFFIRMED IN PART; REMANDED IN PART.

TOBIAS, J., dissents in part and assigns reasons.

TOBIAS, J.,

Dissenting in Part and

Assigns Reasons.

Li respectfully dissent in part. I find that the majority is correct in holding that the plaintiffs have established that class certification is appropriate; rather than remanding for the trial court to amend its order as to who is a member of the class, I would amend to redefine the class since the change to be made is minor and established by the record on appeal; that is, I would amend and as amended affirm the trial court’s judgment. La. C.C.P. art. 2164; Lailhengue v. Mobil Oil Co., 94-2114, 94-2115, 94-2116 (La.App. 4 Cir. 6/7/95), 657 So.2d 542. Our remand merely delays the inevitable, resulting possibly in a further appeal by the appellants.

PER CURIAM.

| ^Considering the foregoing rehearing application filed by appellant, Specialty National, the application is granted for the sole purpose of clarification of this Court’s class certification analysis, specifically, La. C.C.P. art. 591(B)(1). We amend our previous opinion as follows.

The trial court certified the class pursuant to La. C.C.P. art. 591(B)(1). The trial court’s reasons for judgment stated:

With respect to Article 591(B)(1), the court finds:

As pointed out above, common issues of fact and law exist. There is evidence that absent certification of a class herein individual lawsuits will be brought. Certainly individuals prosecuting separated [sic] actions on their own behalf under the facts and law at issue could conceivably result in varying interpretations. Such differing results have the effect not only of establishing different
standards of conduct with respect to Defendant’s alleged actions, but will almost inevitable [sic] affect the interests of other class members and impede then-ability to protect those interest [sic].

|sSpecialty National alleges that no other toxic tort case has been certified pursuant to La. C.C.P. art. 591(B)(1). Specialty National cites federal case law that rejected certification of toxic tort class actions pursuant to the Federal Rules of Civil Procedure. While both class action statutes, La. C.C.P. art. 591 and FED. R. CIV. P. 23, are similar, Specialty National cited no direct Louisiana case law supporting its interpretation of La. C.C.P. art. 591(B)(1).

Specialty National also requests that this Court remand the issue of class certification pursuant to La. C.C.P. art. 591(B)(3). However, the plaintiffs pre-

sented evidence with respect to certification pursuant to La. C.C.P. art. 591(B)(3). The trial court weighed the evidence and declined to extend class certification under (B)(3).

We agree with the trial court’s reasoning. The trial court found that over five hundred individual lawsuits would be filed without class certification. The trial court also found that common issues of law and fact exist. Additionally, all claims rely on the same legal theory. Thus, numerous individual lawsuits could result in differing interpretations, which would create different standards of conduct and “affect the interests of other class members.”

Therefore, we do not find that the trial court committed manifest error or abused its discretion by certifying the class pursuant to La. C.C.P. art. 591(B)(1).

|Jn all other respects, the application for rehearing is denied.

The appellees have also filed an application for rehearing and we deny the rehearing. The trial court is vested with vast discretion to resolve the matter on remand with judicial efficiency. La. C.C.P. art. 592.

      . The other remaining defendants in the Wat-ters matter are the Department of Health and Hospitals ("DHH”), DSS, DOA, and Specialty National Insurance Company (“Specialty National”), previously Calvert Insurance Company, an insurer for Plaza Tower from September 23, 1996 until March 15, 1997. DOA, DHH, and DSS are hereinafter collectively referred to as the "State of Louisiana.”

      . In their original petition, the Rhodes plaintiffs named as defendants NOOB 1, LP, and NOOB I GC, LLC, the present owners and managers of the Plaza Tower; BG Real Estate Services, Inc. (“BG Real Estate”), leasing and management agent for the owners of Plaza Tower; Monticello Insurance Company, insurer of BG Real Estate; NOOB 1, LP DBA: Plaza Tower Building; Evanston Insurance Company, insurer of BG Real Estate; Baha Towers Ltd. Partnership; and BAHAR Development, Inc., the previous owners or managers of the Plaza Tower.

      . The matter entitled Rhodes, et al. v. BG Real Estate Services, Inc., District Court Case No. 01-18355, was transferred to Civil District Court, Division "J”, and consolidated with the matter entitled Sherry Watters, et al. v. Department of Social Services, et al., District Court Case No. 01-17775.

      . In their original petition, the Johnson plaintiffs named as defendants the DSS, DOA, BG Real Estate, Baha Towers Limited Partnership, Bahar Development, Inc., NOOB 1 GP, LLC, NOOB 1 LP, Monticello Insurance Company, Evanston Insurance Company, Clarendon American Insurance Company, United National Insurance Company, American Equity Insurance Company, Great Lakes Insurance Company, Alliance General Insurance Company, NOOB 2 GP, LLC, NOOB 2 LP, Schumann Rafizadeh, Mondona Rafizadeh, Behzad Ben Erfany, Cheyda Chaney and MBA Services, LLC.

      . The plaintiffs in the third consolidated case, Rhodes, et al. v. BG Real Estate Services, Inc., et al. did not join in the Motion for Class Certification.

      . La. C.C.P. art. 591: Prerequisites; maintainable class actions reads, in pertinent part:
      B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
      (1) The prosecution of separate actions by or against individual members of the class would create a risk of:
      (a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
      (b) Adjudication with respect to individual members of the class which would as a practical matter be dispositive of the interest of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

      . La. C.C.P. art. 591: Prerequisites; maintainable class actions reads, in pertinent part: B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
      (3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
      (a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
      (b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
      (c) The desirability or undesirability of concentrating the litigation in the particular form;
      (d) The difficulties likely to be encountered in the management of a class action;
      (e) The practical ability of individual class members to pursue their claims without class certification;
      (f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or

      . La. C.C.P. art. 592: Certification procedure; notice; judgment; orders reads, in pertinent part:
      (A)(3)(c) In the process of class certification, or at any time thereafter before a decision on the merits of the common issues, the court may alter, amend, or recall its initial ruling on certification ■ and may enlarge, restrict or otherwise redefine the constituency of the class or the issues to be maintained in the class action.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellant, v. Larry Gerard HALL, Defendant-Appellant.
    No. 40,824-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 26, 2006.
    Rehearing Denied May 11, 2006.

      Louisiana Appellate Project by Mary Constance Hanes, Paula Corley Marx, for Defendanb-Appellant.
    Paul Joseph Carmouche, District Attorney, Jason Trevor Brown, Assistant District Attorney, for Plaintiff-Appellant.
    Before STEWART, CARAWAY and DREW, JJ.
   DREW, J.

Larry Gerard Hall was convicted at bench trial of unauthorized entry of a place of business, La. R.S.14:62.4, adjudicated a fourth felony habitual offender, and sentenced to eight years at hard labor, without benefit of probation or suspension of sentence. Both the defendant and the state appeal. We affirm in all respects.

FACTS

On Sunday afternoon, August 1, 2002, a silent alarm sounded at Berg, Inc., a plumbing, heating and air conditioning business, which was completely surrounded by an eight-foot fence, most of it topped with barbed and razor wire. Security officer David Semon responded to the alarm and spotted an intruder removing two armloads of copper pipe from inside a Berg building. The man threw a third load over the fence. Approaching to within five feet of the man, Semon asked him if he was a Berg employee. The culprit threw down the pipe and ran for approximately 150 yards. Semon saw the man jump over the fence and run across an open field, where he witnessed the man’s apprehension by Shreveport police officers. Semon testified that he never lost sight of the man at any time before his arrest.

When Officer Barry Hornsby and Corporal S.W. Plunkett of the Shreveport Police Department first arrived at the scene, they observed a black male moving pipes around inside the fenced-in area of the Berg property. They then observed him run and jump over the fence. Corporal Plunkett pursued the man on foot while Officer Hornsby drove the police 12car one block north, where they arrested him. The defendant was identified by both officers at trial as the same man they arrested.

The defendant was never given permission to be inside the Berg, Inc. property, and did not present any witnesses at trial.

Hall was charged with unauthorized entry of a place of business, La. R.S. 14:62.4. He waived his right to trial by jury and was convicted as charged. The state successfully adjudicated Hall as a fourth felony habitual offender. The defendant filed a motion to deviate from the minimum fourth felony habitual offender sentence. The state presented no evidence in opposition to this motion.

At the sentencing hearing, the learned trial court found that the minimum sentence of imprisonment for 20 years was constitutionally excessive under the circumstances of this habitual offender proceeding. Hall was sentenced to eight years at hard labor, without benefit of probation or suspension of sentence, and with credit for time served. Both defendant and state now appeal. We affirm.

Sufficiency of the Evidence

Defendant argues that the state failed to prove an element of the offense of unauthorized entry of a place of business because it was not proven that the barrier surrounding the business was at least six feet high. We disagree.

The defendant was convicted of unauthorized entry of a place of business, a violation of La. R.S. 14:62.4(A), which provides:

Unauthorized entry of a place of business is the intentional entry by a person without authority into any structure or onto | sany premises, belonging to another, that is completely enclosed by any type of physical barrier that is at least six feet in height and used in whole or in part as a place of business.

The law on reviewing convictions for sufficiency of the evidence is clear.

A review of this sparse record clearly reveals that, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime of unauthorized entry of a place of business proven beyond a reasonable doubt. At least three of the state’s witnesses testified that the fence enclosing the business was at least six feet tall. Apparently the trial judge believed these witnesses. The defense does not argue that the remaining elements of the crime were not sufficiently proved.

| ¿Photographs

On direct examination during the testimony of Robert Hamm, C.E.O. of Berg, Inc., the state offered into evidence four photographs of the fence that Mr. Hamm had taken. Defendant timely objected, complaining that the photographs were not provided during discovery. Indeed the photographs were not produced until the commencement of trial, as the state related that it had only received the photos on the morning of trial. The defense was allowed to examine the photos. After argument, the court allowed the photos to be introduced into evidence. These photos were forwarded with the record for appellate review.

Although the trial court noted its concern at the untimeliness of the state in turning over evidence, it held that the probative value of the photographs outweighed any prejudicial effect caused by the untimely provision of the photos.

Defendant argues that:
1.the photographs were not representative of the entire fence;
2. the photographs were not merely illustrative, but were presented to prove that the fence surrounding the business was six feet high; and
3. it was reversible error for the trial court to admit the photographs.

All relevant evidence is admissible, except where limited by law. La. C.E. art. 402. Relevant evidence is evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. Although relevant, evidence may nonetheless be excluded |sif the probative value is substantially outweighed by its prejudicial effect. La. C.E. art. 403. A trial judge’s determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Myles, 04-677 (La.App. 5th Cir.1/25/05), 894 So.2d 515.

Photographs are generally admissible if they illustrate any fact, shed any light upon an issue in the case, or are relevant to describe the person, thing or place depicted, assuming that their probative value outweighs any prejudicial effect. See State v. Hopkins, 39,730 (La.App.2d Cir.8/17/05), 908 So.2d 1265; State v. Battaglia, 03-692 (La.App. 5th Cir.11/25/03), 861 So.2d 704, writ denied, 04-1701 (La.4/29/05), 901 So.2d 1058.

The trial court has great discretion in admitting photographs into evidence, and the court’s ruling will not be disturbed absent an abuse of that discretion. State v. Hopkins, supra.

A review of the record reveals that the trial court did not abuse its great discretion in admitting the photographs into evidence. The photos of the fence shed some light on the issue of whether the fence was at least six feet in height and is therefore relevant to an element of the crime of unauthorized entry of a place of business. However, considering that several witnesses testified as to the height of the fence, the photographs were merely cumulative as to this issue, with little or no prejudicial effect. See La. C.E. arts. 401, 403; State v. Battaglia, supra.

The purpose of discovery rules in criminal trials is to eliminate unwarranted prejudice from surprise testimony. State v. Toomer, 395 So.2d 1320 (La.1981); State v. Williams, 25,835 (La.App.2d Cir.2/23/94), 632 So.2d 893.

The failure of the state to comply with the discovery procedure will not automatically command reversal. The defendant must show prejudice in order for his conviction to be reversed. State v. Williams, supra.

Although there is a continuing duty of disclosure, there is no duty on the part of the state to disclose information which it does not possess. Exclusion of the evidence is not an appropriate sanction where the state has promptly informed the defendant of the receipt of additional evidence, even though the new material is uncovered at an inopportune time for the defense. See State v. Craig, 95-2499 (La.5/20/97), 699 So.2d 865, cert denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997); State v. Williams, 40,381 (La.App.2d Cir.12/14/05), 916 So.2d 1285.

By notifying the defendant of the photographs promptly after learning of them on the morning of trial, the state marginally fulfilled its continuing duty to disclose.

The Sentence

The state asks us to vacate this sentence, citing the Habitual Offender Law, La. R.S. 15:529.1 A(l)(c)(i) and applicable jurisprudence. It argues that the defendant failed to show by clear and convincing evidence that he is an exceptional defendant who, because of unusual circumstances, is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to his culpability, the gravity of the offense and the circumstances of the case. The state summarizes the trial court’s reasons for sentencing and |7asserts that it failed to articulate any reasoning to support a downward departure from the statutorily minimum sentence. It concludes that the defendant’s sentence is illegally lenient and should be vacated and remanded for resentencing.

After the defendant was adjudicated a fourth felony habitual offender, defendant filed a motion to deviate downward from the minimum 20 years required by the adjudication, pointing out that Hall had no convictions for violent crimes.

At the sentencing hearing, the state declined to present any argument or evidence. The trial court noted the defendant’s history of victimizing businesses and business owners, which it stated was cause for great concern, observing that the defendant had a tendency to commit an offense, serve his time, get out of prison and then commit another similar offense — noting that this “repeat offender” behavior is the reason for habitual offender laws. However, the trial court concluded that the minimum sentence of imprisonment for 20 years was constitutionally excessive under the instant circumstances. The trial court cautioned the defendant that it takes sentencing very seriously, but then sentenced the defendant to serve eight years at hard labor, without benefit of probation or suspension of sentence, with credit for time served. Though the state objected to the sentence and announced the intention to seek supervisory review, it nonetheless then dismissed yet another charge against Hall. The trial court then noted that | Rthe state never indicated to the court what sentence it would support, despite the court requesting input on that issue.

In this case, the mandated sentence under La. R.S. 15:529.1(A)(l)(c)(i) for a fourth felony habitual offender is as follows:

(e) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life;

(Emphasis added.)

Since the habitual offender law is constitutional in its entirety, the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Grant, 39,102 (La.App.2d Cir.12/15/04), 890 So.2d 689, writ denied, 2005-1372 (La.1/13/06), 920 So.2d 233.

Although the supreme court stated in State v. Dorthey, 623 So.2d 1276 (La.1993) that courts have the power to declare a mandatory minimum sentence excessive under Art. I, § 20 of the Louisiana Constitution, this power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. State v. Grant, supra.

pin order to rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:

[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

State v. Johnson, 709 So.2d at 676 (citing Judge Plotkin’s concurrence in State v. Young, 94-1636 (La.App. 4th Cir.10/26/95), 663 So.2d 525, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223).

In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Jackson, 612 So.2d 993 (La.App. 2d Cir.1993). The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof that the defendant committed the other offenses. State v. Jones, 31,569 (La.App.2d Cir.12/9/98), 724 So.2d 810.

A trial judge may not rely solely upon the nonviolent nature of the instant or past crimes to justify rebutting the presumption of constitutionality. The lack of violence cannot be the only reason, or even the main reason, for declaring such a sentence excessive. State v. Lindsey, 99-3256 (La.10/17/00), 770 So.2d 339; State v. Johnson, supra; State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 2002-2875 (La.4/4/03), 840 So.2d 1213.

The thin justification announced by the trial court as support for its downward deviation comes close to running afoul of these jurisprudential rulings. However, this truncated record tepidly supports the trial court’s deviation from the mandatory minimum sentence. In addition to the non-violent nature of the defendant’s previous crimes, the trial court articulated that its deviation from the mandatory minimum sentence was based on the circumstances regarding the (presumably lack of) gravity of the current offense. Though this is a drastically lenient sentence, we still cannot say that the learned trial court abused its great discretion in imposing sentence, based on what we do and do not have before us.

DECREE

The conviction and sentence are AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, DREW and LOLLEY, JJ.

Rehearing denied.

      . Semon testified that he got a very clear look at the man.

      . When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.
      This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760, 98-0282 (La.6/26/98), 719 So.2d 1048.

      . Slightly over three pages of transcript, in-eluding the sentencing itself;

      . The record is devoid of a pre-sentence investigation, and apparently all sentencing exhibits have been lost.


author: LEON A. CANNIZZARO, JR., Judge. JONES, J.,

text:
    Karen RAIFORD v. U.S. INDUSTRIES/AMES LAWN & GARDEN TOOLS, National Union Insurance Company, Rockery Ace Hardware and St. Paul Fire and Marine Insurance Company.
    No. 2005-CA-0815.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 3, 2006.
    Rehearing Denied May 24, 2006.

      Julian R. Murray, Jr., Chehardy Sherman Ellis Breslin Murray & Recile, L.L.P., Metairie, Counsel for Plaintiff/Appellant, Karen Raiford.
    Paul V. Kaulas, McVey & Parsky, LLC, Chicago, IL, Donald A. Hoffman, Mary Ann Wegmann, Hoffman Seydel LLC, New Orleans, Counsel for Defendants/Ap-pellees, Ames Lawn & Garden Tools and National Union Insurance Company. '
    (Court Composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, Sr., Judge LEON A. CANNIZZARO, Jr.)
   LEON A. CANNIZZARO, JR., Judge.

hThe plaintiff, Karen Raiford, is appealing a judgment by the trial court against her and in favor of the defendants, Ames Lawn & Garden Tools and its insurer, National Union Insurance Company. She is also appealing a judgment denying her motion for a new trial that would have allowed her the opportunity to conduct discovery regarding an item of evidence that was unknown to Ms. Raiford until it was introduced into evidence by Ames on the second day of the trial.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Ms. Raiford was planting a rose garden along the side of a house belonging to her fiancé, Evangelist King. Ms. Raiford was using a shovel that had been purchased from Rockery Ace Hardware. The shovel was manufactured by Ames. As she was pushing the blade of the shovel into the ground with her foot, the shovel broke without warning, causing Ms. Raiford to fall forward. Ms. Raiford used her hands in an attempt to break her fall, and as a result, she injured her hands and wrists when she fell on a cement driveway adjacent to the area where she was gardening.

lüAfter the fall, Mr. King took Ms. Rai-ford to a hospital emergency room where she was treated for pain in her wrists, hands, and back. Ms. Raiford never completely recovered from her injuries. Seven years after her fall, she had surgery on her hands to alleviate the bilateral carpal tunnel syndrome that she claimed was a consequence of her fall. She also suffered from herniated disks in her lumbar spine, and she further contended that they were a result of the fall. •

A few days prior to Ms. Raiford’s fall, Mr. Kings’ son, Jason, was digging in the same garden in which Ms. Raiford was working when she fell. Jason was using a new shovel that had been purchased from Rockery, and as he was using the shovel, it broke at the point where the wooden handle on the shovel entered the blade of the shovel. Ms. Raiford returned to Rockery the shovel that had broken while Jason was using it, and she was given a new shovel that was the same model as the broken shovel. The replacement shovel that was given to Ms. Raiford was the one that subsequently broke while Ms. Raiford was using it, causing her to fall.

Mr. King testified that he reported to Rockery’s owner that the replacement shovel had broken and had caused Ms. Raiford to fall and injure herself. When the storeowner offered to replace the second broken shovel with another shovel of the same model, Mr. King said that he refused to take the shovel, because two shovels of the same model had already broken while they were being used. Therefore, the |3storeowner gave Mr. King a replacement shovel with a fiberglass, rather than a wooden, handle. Mr. King testified that he did not return the second broken shovel to Rockery. Instead, he kept the shovel, and he ultimately gave it to the attorney, who was originally representing Ms. Raiford in the instant case. When Ms. Raiford’s current attorney assumed Ms. Raiford’s representation in this matter, her previous attorney gave the shovel to her current attorney, who, in turn, gave it to the expert witness who testified on Ms. Raiford’s behalf at the trial. That shovel was introduced into evidence on the first day of the trial as Plaintiffs Exhibit 29.

On the second day of the trial, however, the identity of the shovel that had broken while Ms. Raiford was using it was called into question. During the evening after the first day of the trial, one of the attorneys for Ames and its insurer had received a telephone call from the wife of Rockery’s owner. In that telephone call, she told the attorney that she and her husband had possession of the shovel that Ms. Raiford was using when she was injured. That shovel had allegedly been in the possession of the storeowner since shortly after Ms. Raiford’s accident, • and it was introduced into evidence on the second day of the trial as Defense Exhibit 31.

Also on the second day of the trial, an employee of Rockery testified that he had thrown away the first shovel that had been returned to Rockery after the shovel had broken while it was being used by Jason King. He also asserted that Ms. Raiford had returned the shovel that broke while she was using it to Rockery and that Defense Exhibit 31 was the shovel that had been returned. The employee also | testified that after Ms. Raiford returned the shovel that broke while she was using it, “we stuck it upstairs and left it in the warehouse and it just sat there and [was] kind of like forgotten until this came up.”

At the conclusion of the trial, the trial court judge found that Ms. Raiford had not proven that the shovel that she was using was defective. Therefore, the trial court rendered judgment in favor of Ames and its insurer. Ms. Raiford then filed a motion for a new trial on the limited issue of the identification of the shovels that were introduced into evidence. Ms. Raiford contends that she did not have an opportunity to have an expert examine Defense Exhibit 31 and that she should have had such an opportunity. The trial court denied Ms. Raiford’s motion for a new trial.

DISCUSSION

Ms. Raiford has raised two assignments of error. First, she contends that the trial court erred in admitting Defense Exhibit 31 into evidence. Second, she contends that it was manifest error for the trial court judge to accept the testimony of the Rockery employee as credible.

Assignment of Error No. 1: The court erred in admitting crucial evidence only discovered by the defense on the second day of the trial notwithstanding the fact that discovery relating to the defendants had been pending eight years.

When Ames sought to introduce into evidence on the second day of trial the shovel that had until that time allegedly been in the possession of Rockery, Ms. Raiford objected to its introduction. Nevertheless, the second shovel was introduced into evidence over her objection.

| rrAdmissibility of Newly Discovered Evidence

La. C.E. art. 403 provides for the exclusion of relevant evidence in certain cases. Article 403 provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” Thus, in the instant case Defense Exhibit 31 could have been excluded from evidence if its probative value were substantially outweighed by the danger that it would unfairly prejudice the trier of fact in this case.'

In Williams v. General Motors Corp., 93-0287 (La.App. 4 Cir. 2/11/94), 639 So.2d 275, this Court held on rehearing that it was impermissible for the trial court to allow expert testimony to advance a theory of causation at trial that differed from the theory of causation upon which all of the pretrial discovery had been based. In Judge Ward’s dissent, which became the basis for this Court’s opinion on rehearing, he stated:

The trial court either should have excluded the expert’s testimony because it was not disclosed prior to trial or should have granted a mistrial. The failure to identify this new theory in advance of trial unfairly deprived the defendant of the ability to respond in a timely and prepared manner.... It is unconscionable and inappropriate to force a party to engage in pre-trial preparation, discovery and investigation of a new theory of recovery during a trial.

639 So.2d at 286 (Ward, J., dissenting).

Unlike the Williams case, however, the instant case was tried before a judge rather than before a jury. A trial judge, unlike a jury, is well versed in the rules of evidence, and is, therefore, trained to give the appropriate weight to evidence and to evaluate evidence without bias. Additionally, because of the training and | ^experience a trial judge has, a trial judge is in a far better position than a jury to disregard, and not consider, evidence that has been improperly admitted at a trial.

In Mistich v. Volkswagen of Germany, Inc., 95-0939 (La.1/29/96), 666 So.2d 1073, the Louisiana Supreme Court stated that “[tjrial judges are allowed much discretion in determining whether or not to allow a person whose location is unknown during the pendency of trial and who appears shortly before trial to testify.” 666 So.2d at 1079. Similarly, trial judges should be allowed discretion in determining whether or not to allow the introduction of evidence that is newly discovered during a trial, provided that the provisions of La. C.E. art. 403 are followed.

Ms. Raiford contends that her credibility was damaged by the introduction of Defense Exhibit 31 into evidence and by the testimony regarding the shovel. She argues that the trial court judge found that Defense Exhibit 31, not the shovel introduced into evidence by Ms. Raiford as Plaintiffs Exhibit 29, was the shovel that she was using when she fell. Therefore, Ms. Raiford believes that her credibility was unfairly brought into question and, as a result, the trial court judge did not believe her testimony. We note, however, that the trial court judge did not determine which shovel Ms. Raiford was using when she fell. Specifically, the trial court judge stated in the Reasons for Judgment that “[b]ecause of the dispute as to what shovel caused this accident, the Court finds it impossible under the circumstances of this case to prove that the shovel was defective and unreasonably dangerous.” (Emphasis added.) The trial court judge expressly stated that she did not know which shovel caused the accident.

Nevertheless, the trial court judge also said in her Reasons for Judgment that “even if the Court were to find that the shovel introduced by Ms. Raiford caused |7her accident, the expert testimony of Dr. Lyon outweighs that of Mr. Gernon considering his qualifications and the facts upon which he based his opinion.” Thus, the trial court judge determined that it did not matter which shovel Ms. Raiford was using when she fell. Ms. Raiford failed to prove that the shovel that she identified at the trial as the shovel that she was using, Plaintiffs Exhibit 29, was defective.

Doctrine of Res Ipsa Loquitur

Ms. Raiford argues that she should be entitled to rely on the doctrine of res ipsa loquitur to prove that the shovel that she was using was defective. The Louisiana Supreme Court discussed the doctrine of res ipsa loquitur as follows in Spott v. Otis Elevator Co., 91-2522 (La.6/18/92), 601 So.2d 1355:

Res ipsa loquitur, as “a qualification of the general rule that negligence is not to be presumed,” must be sparingly applied. Generally, it obtains when three requirements are met: 1) the circumstances surrounding the accident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence on the part of the defendant; 2) the defendant had exclusive control over the thing causing the injury; and 3) the circumstances are such that the only reasonable and fair conclusion is that the accident was due to a breach of duty on defendant’s part. The second requirement, that the defendant have exclusive control over the thing, has not, in our jurisprudence, been strictly applied. Indeed, it is satisfied if the circumstances indicate that it is more probable than not that the defendant caused the accident and other plausible explanations do not appear to be the probable cause of the accident.

601 So.2d at 1362 (citations omitted).

Although the doctrine of res ipsa loqui-tur may have been properly invoked in the instant case, the trial judge determined that Ames sufficiently rebutted any presumption of negligence through .the testimony of its expert witness. Ames’ expert testified that based on the direction of the broken fibers in the handle of | sPlaintiff s Exhibit 29 and tests on the strength of shovel handles made of ash wood, the handle of Plaintiffs Exhibit 29 broke, not because it was defective but rather because the handle was overstressed in a forward motion. Ames’ expert opined that this could have occurred if Ms. Raiford had fallen onto the handle of the shovel as she fell onto the adjacent driveway from the area where she was gardening.

Standard of Review

In Rosell v. ESCO, 549 So.2d 840 (La.1989), the Louisiana Supreme Court stated that it is well settled that an appellate court may set aside a factual finding of a trial court only where the finding was based on a “manifest error” or was “clearly wrong”. Id. at 844. Further, where there is conflict in the testimony, a trial court’s reasonable evaluations of credibility and reasonable inference of fact should not be disturbed on appeal, even though the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court or jury. Id. Finally, where there are two permissible views of the evidence, the trial court’s choice between them cannot be manifestly erroneous or clearly wrong. Id. See also Harvey v. Cole, 00-1849 (La.App. 4 Cir. 1/23/02), 808 So.2d 771, 776.

In LeBlanc v. Stevenson, 00-0157 (La.10/17/00), 770 So.2d 766, 770, however, the Louisiana Supreme Court stated that “[ajlthough the appellate court must accord deference to the trial court, it is cognizant of our constitutional duty to review facts, not to decide if it, as a reviewing court, would have found the facts differently, but to determine whether the trial court’s verdict was manifestly erroneous, clearly wrong based on the evidence, or clearly without evidentiary support.” A trial court’s factual finding may not be reversed unless (1) the record | flrefiects that a reasonable factual basis for the finding does not exist, or (2) the record establishes that the finding is clearly wrong or manifestly erroneous. Id.

After reviewing the evidence presented by both Ms. Raiford and Ames, we do not find that the trial court’s factual determination that Plaintiffs Exhibit 29 was not defective was clearly wrong, was manifestly erroneous, or was without any supporting evidence. Therefore, under the Rosell and the LeBlane cases, we must accept the trial judge’s factual finding that, based on the testimony of Ames’ expert, Plaintiffs Exhibit 29 did not have a manufacturing defect.

Although the doctrine of res ipsa loqui-tur could have shifted the burden of proof from Ms. Raiford to Ames, Ms. Raiford is still not entitled to judgment in her favor, because the trial court found that Ames met its burden of proving that Plaintiffs Exhibit 29 was not defective. Because the trial court’s decision was based on factual findings that were not manifestly erroneous or clearly wrong, the trial court’s factual findings cannot be disturbed by this Court.

Grounds for New Trial

La. C.C.P. art. 1971 provides that a new trial may be granted after a contradictory motion of any party or by the court on its own motion on all or any part of the issues in the original trial. La. C.C.P. art. 1972 provides in relevant part that “[w]hen the verdict or judgment appears clearly contrary to the law and the evidence,” a new trial must be granted. La. C.C.P. art 1973 additionally permits a new trial to be granted if there is any “good ground” for a new trial except to the extent that the law provides otherwise.

La. C.C.P. art. 1972 does not apply to the instant case. We have determined that the judgment of the trial court was not clearly contrary to the law and the 1 inevidence. The trial court judge could have granted a new trial pursuant to La. C.C.P. art. 1973, however.

This Court has set forth as follows the standard of review that this Court should use in determining whether a trial court judge has erred in denying a motion for a new trial:

The jurisprudence recognizes the trial judge’s great discretion in deciding a motion for new trial and, on appeal, the appellate court is limited to a determination of whether a trial judge abused his “much discretion” in granting or denying a new trial. Zatarain v. WDSU-Television, 95-2600 (La.App. 4 Cir. 4/24/96), 673 So.2d 1181.

In re New Orleans Train Car Leakage Fire Litigation, 00-1919 (4/20/05), 903 So.2d 9, 15, writ denied, 05-1297 (La.2/3/06), 922 So.2d 1171. In the instant case, we do not find that the trial court abused her discretion in denying Ms. Rai-ford’s motion for a new trial.

Summary

It is within the trial court judge’s discretion to permit the introduction of evidence at a trial. We need not determine, however, whether the trial court judge abused her discretion in allowing Ames to introduce Defense Exhibit 31 into evidence, because she specifically found that Plaintiffs Exhibit 29 was not defective. Thus, any error in admitting Defense Exhibit 31 into evidence was a harmless error. Ms. Raiford’s first assignment of error is without merit.

Assignment of Error No. 2: The trial court committed manifest error in crediting as true the testimony of the defense witness that identiñed Defense Exhibit 31 when all of the objective and corroborating evidence indicated that he was wrong.

The trial court judge clearly stated in her Reasons for Judgment that she did not find that Plaintiffs Exhibit 29 was defective. She based her conclusion on the Inexpert witness testimony at the trial. Therefore, whether or not the trial court judge found the Rockery employee’s testimony to be credible is irrelevant. The trial judge’s determination that Ms. Rai-ford had not met her burden of proof with respect to the shovel that she identified as the one involved in her fall did not depend on the credibility or the lack of credibility of either Ms. Raiford or the employee. The trial court judge based her judgment on the factual testimony of Ames’ expert witness in wood science.

Additionally, this Court must accord great deference to a trial court’s determinations of credibility. In the Rosell case, discussed above, the Supreme Court stated that “[wjhen findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Rosell, 549 So.2d at 844.

In the instant case, the trial court judge did not base her judgment on the Rockery employee’s testimony. She based it on the testimony of Ames’ expert witness. Additionally, even if she had based her judgment on the employee’s testimony, we would have to accord her evaluation of the credibility of his testimony great deference. This assignment of error is without merit.

CONCLUSION

We find no reversible error in the trial court’s judgment. The judgment is affirmed.

AFFIRMED.

JONES, J., dissents with reasons.

JONES, J.,

Dissenting.

jjThis case presents a classic example of a plaintiff being denied fundamental justice, and the majority herein find no error with her plight.

The very tool with which she was injured was surreptitiously withheld from her until trial had commenced; no expert testing thereof; and yet, the district court found that plaintiff did not prove her case. And, in fact, the district court chose to adopt the expert testimony of an expert who also tested the wrong tool. Go figure.

I, therefore, respectfully dissent.

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author: GRAVES, Justice, for the Court.

text:
    Courtney ALDRIDGE and Kevin Colbert, Individually and on Behalf of Other Concerned Citizens of the City of Natchez, Mississippi v. Phillip C. WEST, In His Capacity as Mayor of the City of Natchez, Mississippi; Joyce T. Arceneaux; James E. Gray, Jr.; Robert E. Pollard, Theodore J. West, David M. Massey; and John W. Middleton, Jr., In Their Official Capacities as Alderwoman and Aldermen of the City of Natchez, Mississippi.
    No. 2005-CA-00960-SCT.
    Supreme Court of Mississippi.
    May 18, 2006.

      Walter Kevin Colbert, attorney for appellants.
    L. Clark Hicks, Jr., Hattiesburg, attorney for appellees.
   GRAVES, Justice, for the Court.

¶ 1. Appellees voted to hire a policeman without going through the Civil Service Commission. Appellants, as concerned citizens, filed a Complaint for Writ of Mandamus to require appellees to comply with applicable law. Appellees filed a Motion to Dismiss, which the circuit court granted. Appellants now challenge the decision of the circuit court. We find appellants lacked standing to bring the instant action and affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2. At a city board meeting on October 12, 2004, Natchez alderman Theodore West made a motion to rehire Willie B. Jones as a patrolman with the city’s police department. Some aldermen questioned the propriety of the action because it circumvented the Civil Service Commission’s (“CSC”) authority to make such employment decisions. The city’s attorney, Walter Brown, even stated that the Board of Alderman did not have the authority to employ, re-employ, or promote a police officer because such a decision must first be submitted to the CSC. Despite the advice of the city’s attorney, Jones was rehired by a 4 — B margin, with Mayor Phillip West casting the deciding vote.

¶ 3. Courtney Aldridge and Kevin Colbert (“Plaintiffs”), as concerned citizens, filed a Complaint for Writ of Mandamus against the Mayor and Board of Aldermen of Natchez (“Board”) in the Circuit Court of Adams County on November 22, 2004. Plaintiffs alleged the Board had acted in direct violation of Miss.Code Ann. Section 21-31-13 by rehiring Willie Jones and that all citizens of Natchez had been aggrieved by the Board’s actions. In seeking a Writ of Mandamus, plaintiffs asked the court to command the Board to: (1) rescind their illegal vote, (2) discharge Willie Jones from his position, (3) repay the city any salary, costs, or expenses associated with the illegal hiring of Jones, and (4) abide by all state statutes and all CSC rules and regulations regarding the hiring of police officers.

¶ 4. Plaintiffs later filed an amended complaint on February 11, 2005. In the amendment, plaintiffs alleged that Willie Jones was being paid in violation of the Board’s November 9th decision to disallow payment of Jones’ salary until it received a ruling from the Attorney General’s Office concerning the propriety of Jones’ hiring. The Board filed motions to dismiss both the initial and amended complaints. Both circuit judges recused themselves from this matter, and we appointed Mike Smith as Special Judge to hear the case.

¶ 5. Judge Smith held a hearing on the Board’s motions for dismissal on April 19, 2005, and ultimately granted the motions to dismiss. In dismissing Plaintiffs’ complaints, the judge ruled that Plaintiffs’ exclusive remedy was to seek an investigation by the CSC under Miss.Code Ann. Section 21-31-23, and that the circuit court was without jurisdiction to direct the city to terminate or reinstate a police officer. Plaintiffs timely filed their notice of appeal and raise three issues on appeal.

DISCUSSION

¶ 6. “This Court reviews errors of law, which include summary judgments and motions to dismiss, de novo.” City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000).

I. Applicability of Miss.Code Ann. Section 21-31-23.

¶ 7. Plaintiffs contend the trial court erred in ruling it was without jurisdiction to^hear their Complaint for Writ of Mandamus and that the CSC had exclusive jurisdiction of the matter. They note that the trial court was correct in asserting private citizens may only bring a mandamus action “to compel public officials and bodies to act only as to non-discretionary duties plainly required by law.” Hobson v. City of Vicksburg, 848 So.2d 199, 202 (Miss.Ct.App.2003) (citing USPCI of Miss., Inc. v. State ex rel. McGowan, 688 So.2d 783, 789 (Miss.1997); Jackson County Sch. Bd. v. Osborn, 605 So.2d 731, 734 (Miss.1992); Powell v. State Tax Comm’n, 233 Miss. 185, 101 So.2d 350, 352-53 (1958)). Additionally, plaintiffs do not challenge the trial court’s assertion that CSC provides the only forum for a terminated public employee to contest his dismissal and seek reinstatement. See City of Jackson v. Thomas, 331 So.2d 926, 927 (Miss.1976). The plaintiffs do, however, challenge the trial court’s finding that Miss.Code Ann. Section 21-31-23 is applicable to them and is their exclusive remedy.

¶ 8. The plain language of Section 21-31-23 provides the civil servant himself, not an outside party (such as Plaintiffs), the right to seek an investigation into his removal, suspension, etc., as this section states in part:

[a]ny person so removed, suspended, demoted, discharged or combination thereof may, within (10) days from the time of such disciplinary action, file with the commission a written demand for an investigation, whereupon the commission shall conduct such investigation.

Miss.Code Ann. § 21-31-23 (Rev.2001). Because Plaintiffs are not civil servants under this statutory scheme and have not been discharged from such a position, they do not have standing to seek an investigation under this provision. Furthermore, Jones himself would not have the benefit of this provision if, as plaintiffs argue, he was illegally hired by the Board because he would not be a civil servant who was “permanently appointed or inducted into civil service under the provisions of Sections 21-31-1 through 21-31-27.” See Miss.Code Ann. § 21-31-23.

¶ 9. We find the trial court’s dismissal of the instant case was erroneous to the extent it was predicated on a finding that Miss.Code Ann. Section 21-31-23 applied to Plaintiffs. Because Plaintiffs were not civil servants contesting their dismissal or seeking a reinstatement to a former position, they clearly did not have standing to seek an investigation under Section 21-31-23. While Plaintiffs may be able to seek an investigation under another statutory provision, i.e., Miss.Code Ann. Section 25-4-21, they clearly could not obtain relief under Section 21-31-23 as the trial court found.

II. Applicability of Miss.Code. Ann. Section 11-51-75.

¶ 10. Plaintiffs also argue the trial court erred when it failed to address the sole issue the Board had raised in its motions to dismiss. The Board, in its motions, had alleged the circuit court was without subject matter jurisdiction to hear the Plaintiffs’ case because Plaintiffs were subject to the requirements of Miss.Code Ann. Section 11-51-75 and had failed to object to the rehiring of Jones within ten days of the Board’s October 12, 2004 decision. See Newell v. Jones County, 731 So.2d 580 (Miss.1999) (holding that ten-day time limit to appeal is both mandatory and jurisdictional and an appellate court has no jurisdiction over an untimely filed appeal).

¶ 11. Plaintiffs acknowledge they had no standing to seek redress for the Board’s illegal decision under Miss.Code Ann. Section 11-51-75 because they have not alleged an injury separate and apart from that suffered by other citizens of Natchez. As this Court has stated previously, “the fact that a person resides in a municipality alone is insufficient to confer standing” and “a party challenging a municipal decision under Miss.Code. Ann. § 11-51-75 has the burden of ‘demons-tratpng] a specific impact or harm felt by him that was not suffered by the general public’ ” in order to maintain suit. City of Jackson v. Greene, 869 So.2d 1020, 1024 (Miss.2004) (quoting Burgess v. City of Gulfport, 814 So.2d 149, 153 (Miss.2002)). Plaintiffs make the unusual argument that the Board’s motions to dismiss, which were predicated on the applicability of Miss. Code Ann. Section 11-51-75, should have been denied by the trial court upon a finding that they (Plaintiffs) did not have standing to proceed under the statute upon which the Board sought to have the

action dismissed. Plaintiffs argue that if the trial judge had found they were without standing to proceed under Section 11-51-75, he would have been required to allow the Plaintiffs to maintain their action for a writ of mandamus as the only appropriate remedy available to them.

¶ 12. We agree that plaintiffs do not have standing to obtain relief under Section 11-51-75, irrespective of the timeliness issue, because they did not plead any special injury in their complaints or even now on appeal. We do not, however, agree with plaintiffs’ contention that their lack of standing under Section 11-51-75 confers on them the right to pursue a mandamus action. Though the trial court did not address the applicability of Section 11-51-75, this omission is of no consequence because we affirm the trial court’s dismissal of this case for the reason stated below.

III. Plaintiffs’ Right to Seek a Writ of Mandamus.

¶ 13. Plaintiffs’ third allegation of error is that the trial court erred in ruling it was without jurisdiction to hear their Complaint for Writ of Mandamus. This State’s mandamus statute states:

On the complaint of the state, by its Attorney General or a district attorney, in any matter affecting the public interest, or on the complaint of any private person who is interested, the judgment shall be issued by the circuit court, commanding any inferior tribunal, corporation, board, officer, or person to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station, where there is not a plain, adequate, and speedy remedy in the ordinary course of law. All procedural aspects of this action shall be governed by the Mississippi Rules of Civil Procedure.

Miss.Code Ann. § 11-41-1 (Rev.2002) (emphasis added). This Court has articulated a four-part test to determine if a party is entitled to obtain a writ of mandamus. To obtain relief:

it must affirmatively appear that four essential elements are present: (1) the petition must be brought by the officers or persons authorized to bring the suit; (2) there must appear a clear right in petitioner to the relief sought; (3) there must exist a legal duty on the part of the defendant to do the thing which the petitioner seeks to compel; and (4) there must be an absence of another remedy at law.

Board of Educ. of Forrest County v. Sigler, 208 So.2d 890, 892 (Miss.1968) (citing Board of Supervisors of Prentiss County v. Mississippi State Highway Comm’n, 207 Miss. 839, 42 So.2d 802 (1949)). Plaintiffs claim they meet the four requirements for obtaining a writ of mandamus and that jurisdiction of this action was proper in circuit court.

1. Petition Brought by Officers or Persons Authorized to Bring Suit.

¶ 14. Plaintiffs argue they have standing to bring the instant suit, citing Hobson “for the proposition that private citizens may resort to the remedy of mandamus to compel public officials and bodies to act only as to non-discretionary duties plainly required by law.” Hobson, 848 So.2d at 202 (citations omitted). They note that the mandamus statute authorizes the Attorney General, a district attorney, or “any private person who is interested” to bring a mandamus action. See Miss. Code Ann. § 11-41-1. Plaintiffs argue that they, as private citizens seeking to have their local officials comply with non-discretionary state laws, are interested parties who have standing to seek a writ of mandamus because they do not have standing to appeal the Board’s decision under Miss.Code Ann. Section 11-51-75.

¶ 15. As the Board points out, because Plaintiffs have previously taken the position that they have not suffered a separate or independent injury from the other citizens of Natchez, they do not have standing to pursue the instant mandamus action. In Osborn, we dealt with a situation where a private person sought a writ of mandamus to require a public body to take an action he alleged was mandatory. We stated that a private person may petition for a writ of mandamus “if he can show an interest separate from or in excess of that of the general public” and that because the party seeking the writ admitted having “no separate interest, he was not a proper party to seek a writ of mandamus and the circuit judge should have dismissed the action for want of standing.” Osborn, 605 So.2d at 734 (citing Fondren v. State Tax Comm’n, 350 So.2d 1329, 1332 (Miss.1977)).

¶ 16. We find it disingenuous for the Plaintiffs to argue they were without standing to pursue a remedy on the grounds raised in Issues I & II, in an attempt to establish that a writ of mandamus was their only course of action, while asserting that they do have standing under the mandamus statute, when Osborn (which was cited in their own brief) clearly states that a private citizen must have a separate interest from the general public to seek a writ of mandamus. We, therefore, find the Plaintiffs were without standing to seek a writ of mandamus and that the trial court did not err in dismissing their complaint. Because Plaintiffs cannot meet the first requirement for seeking a writ of mandamus as articulated in Sigler, we decline to address whether they can meet the other requirements. Regardless of what other the remedies may or may not be available to Plaintiffs, it is clear they are not entitled to bring a mandamus action in the instant case.

CONCLUSION

¶ 17. We affirm the trial court’s dismissal of Plaintiffs’ Complaint for Writ of Mandamus. Though the trial court based its decision on an improper ground, Plaintiffs clearly did not have standing to pursue a mandamus action under Miss.Code Ann. Section 11-41-1, because they admitted that they did not suffer distinct injury from the other citizens of Natchez. See Osborn, 605 So.2d at 734 (finding that a private person can only obtain a writ of mandamus upon showing “an interest separate from or in excess of that of the general public”). Though the trial judge’s decision was based on the wrong legal grounds, he reached the right result, and his decision shall remain undisturbed. See Briggs v. Benjamin, 467 So.2d 932, 934 (Miss.1985) (“[A] long-standing rule of this Court is that we will not reverse a lower court’s decision where that court reaches the right conclusion although for the wrong reason.”) (citations omitted).

¶ 18. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Miss.Code Ann. § 11-51-75 (Rev.2002) provides in part:
      Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities.

      . In the April 19th hearing, Plaintiffs' counsel stated that "[njothing gives us standing. We never claimed to have any additional injury that every citizen doesn’t have. That’s for the appeal statute.” While counsel was clearly taking the position that Plaintiffs did not have standing under the appeal statute, this statement applies with equal force to the mandamus statute.