author: JAMES C. GULOTTA, Judge Pro Tempore.

text:
    Charlie WEEDON v. BERRY CONTRACTING.
    No. 07-CA-190.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 2007.

      Brian G. Shearman, John H. Denenea, Jr., Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellee.
    Robert E. Kerrigan, Jr., Jonathan M. Walsh, Attorneys at Law, New Orleans, Louisiana for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, GREG G. GUIDRY, and JAMES C. GULOTTA, Pro Tempore.
   JAMES C. GULOTTA, Judge Pro Tempore.

Lin this workers’ compensation case defendant, Berry Contracting, appeals from the granting of a default judgment awarding plaintiff, Charlie Weeden, temporary total disability benefits, penalties and attorney’s fees.

The error complained of is that the trial judge erroneously admitted uncertified medical records in the default judgment hearing. According to defendant, because uncertified medical records are not admissible, plaintiff failed to prove, in the confirmation of the default hearing, a prima facie case. Defendant claims R.S. 23:1316.1(0 requires that medical evidence shall include “oral testimony or certified medical records from all treating and all examining health care providers.” It is defendant’s contention that four of the seven medical exhibits admitted into evidence were not certified. Defendant argues that plaintiff failed to establish that he was entitled to benefits because the medical records were | scontradictory regarding his ability to return to work and because plaintiff, the only witness to testify at the confirmation hearing, did not testify that he was disabled or that he could not work.

According to defendant, while the trial judge did not in his judgment use the words “temporary total disability,” the judge awarded benefits to the extent of 2/3 of claimant’s average weekly wage of $750, which amounts to a temporary total disability award. Defendant further complains of a $4,000 award in penalties and an $8,000 attorney’s fees award.

Plaintiff, on the other hand, claims that the workers’ compensation judge did not manifestly err. Plaintiff contends that his testimony and the three certified medical records admitted were sufficient to meet his burden in this case.

At the hearing, plaintiff testified that he sustained injuries as a result of a tool box falling from a scaffold and striking him on the head and shoulder on May 25, 2004, while employed at Berry Contracting Company. According to plaintiff he was sent to the defendant’s doctor, Dr. Serio, who then referred plaintiff to an orthopedic specialist, Dr. Earl Rozas.

While treated by Dr. Rozas, plaintiff underwent two (2) epidural steroid injections. He was further treated by a Dr. D.C. Mohnot at the New Orleans headache clinic. He was also, according to plaintiff, under the medical care of Dr. Jamison of the Advanced Medical Clinic on Jefferson Highway. Plaintiff claims that the certified medical records of Dr. Rozas state that plaintiff, as of January 24, 2005 is “still not allowed to return to work.”

At the time of the hearing, plaintiff testified, on August 8, 2006, he. was still under the care of Dr. Rebecca Jameson for the injuries as a result of the May 25, 2004 accident. Plaintiff testified workers’ compensation had not paid any of his medical expenses. Plaintiff testified further that he had not worked for his ^employer since September 26, 2004. His attorney stated that he stopped working on the instruction of Dr. Rozas. His attorney further stated that plaintiff was disabled from that time until the time of the hearing and had not been released to return to work. Additionally, plaintiffs attorney stated that at the time of the injury, plaintiffs average weekly wage was $750.00 per week.

In connection with the penalty award, plaintiff claims that Berry Contracting Company did not pay any indemnity benefits, paid very little medical benefits during the pendency of the claim, and made no appearance despite having been notified of a preliminary default having been taken.

According to plaintiff, the award was properly made based on the certified medical evidence and the failure of the defendant to pay benefits.

LAW

The first issue presented by defendant is whether plaintiff met his burden of establishing a prima facie case where no oral medical testimony was offered and where only some medical records were certified. La. R.S. 23:1316.1(C) provides in pertinent part:

C. Medical evidence shall include oral testimony or certified medical records from all treating and all examining health care providers ...

In Davis v. Petroleum Club of Lafayette, 01-0142 (La.App. 3 Cir. 9/19/01), 795 So.2d 506, the Third Circuit affirmed a default judgment, even though uncertified and un-sworn medical records of a claimant’s treating physician were admitted. The Third Circuit stated that a relaxed eviden-tiary standard was applicable in workers’ compensation cases. The Louisiana Supreme Court granted writs and reversed in Davis v. Petroleum Club of Lafayette, 01-2818 (La.1/11/02), 806 So.2d 654, stating in pertinent part:

| ¡¿Because Wilson Joseph Davis, Sr. has not complied with the requirement of La. Rev.Stat. Ann. Sec. 23:1316.1 in presenting statutorily sufficient medical evidence, we set aside the judgment of the hearing officer and remand this matter to the hearing officer for further proceedings.

The Supreme Court in Davis cited Nickens v. Patriot Home Systems, 97-0291 (La.App. 1 Cir. 6/29/98), 713 So.2d 1179, set aside the confirmation judgment and remanded the matter to the commissioner for further proceedings.

In the Nickens case, cited by the Supreme Court, the First Circuit held that medical evidence in a workers’ compensation case was insufficient to support a judgment against an employer where the medical evidence was neither oral testimony from the treating physician nor was it in the form of a sworn narrative report. The First Circuit in Nickens stated that there is no entitlement to a default judgment absent strict compliance with procedural requirements. Id. at 1182.

An interesting argument is raised by defendant in connection with the interpretation of R.S. 23:1316.1. According to defendant, because the statute provides that medical evidence shall include oral testimony or certified medical records from all treating and all examining health care providers, any attempt to introduce or to consider only those records that are certified, does not comport with the wording of the statute. It is defendant’s contention that it is necessary, under the statute, that all medical records from all treating and examining healthcare providers must be certified and if not, no uncertified medical records are admissible. Defendant further claims that, because all of the medical records were not certified, none of the medical evidence is admissible, whether certified or not.

We do not address defendant’s argument in the instant case, because even if we considered only the certified records, plaintiff has failed to establish a prima facie case to support the trial court’s finding of an award commensurate with [ ^temporary total disability. Therefore we need not consider the interpretation of R.S. 23:1316.1(0) as advanced by defendant.

EVIDENCE

In the instant case, no oral testimony of a physician was offered by plaintiff in the confirmation hearing. Three of the medical records were certified, while four were not. Pretermitting the defendant’s first argument, we consider only those three certified records.

Certified records from Dr. Earl Rozas at the Bone & Joint Clinic indicated that plaintiff was examined by Dr. Rozas on August 13, 2004 for complaints of pain in the right neck/shoulder area. The physical exam showed pain on movement. The x-rays of the shoulder were normal but the x-ray of the neck showed pathology at C6-C7. An EMG of the right arm performed September 1, 2004 was normal. An MRI performed on September 22, 2004 showed multilevel pathology in the C-spine at 3^4, 5-6 and 6-7 levels. A report from Dr. Rozas dated September 29, 2004 states the degenerative disc disease pre-existed the injury but the injury aggravated the preexisting condition. There are return to work slips dated August 18, 2004 and August 25, 2004, releasing plaintiff to return to regular work with restrictions on lifting and a September 29, 2004 slip releasing plaintiff to return to light work with restriction of no lifting or pulling in excess of 25 pounds. These records indicate that plaintiff additionally visited Dr. Rozas on October 27, 2004, January 24, 2005, and June 5, 2006. There is a handwritten notation which is dated January 24, 2005, stating “still not allowed to return to work.” Numerous prescriptions for Lor-tab and Soma were prescribed in during this time period.

17Records from the Same Day Surgery Center, where cervical epidural steroid injections were performed on October 12, 2004 and November 12, 2004 reflect plaintiff was diagnosed with cervical foraminal stenosis with radiculopathy.

When we consider the certified records, these are not sufficient to support the judgment. The most recently dated return to work slip, dated September 29, 2004, states plaintiff may return to work with restrictions. The January 24, 2005 handwritten notation in Dr. Rozas’ records vaguely states, “still not allowed to return to work.” This notation can be interpreted in a number of ways and does not convince us that Dr. Rozas had instructed plaintiff not return to work. First, this handwritten notation is inconsistent with the return to work slips releasing plaintiff to work with restrictions on lifting and to return to light work with restriction of no lifting or pulling in excess of 25 pounds. Further, Dr. Rozas’ records reflect that, on previous occasions, he wrote plaintiffs instructions regarding his work status on a separate return to work slip. There is no separate slip from Dr. Rozas indicating that plaintiff was not allowed to return to work to correspond with this vague notation in the medical records. Accordingly, we do not find anything in the records to show that plaintiff was disabled and/or that Dr. Rozas recommended that plaintiff stop working.

Regardless of whether we consider none of the records offered by plaintiff, as suggested by defendant or whether we consider just the certified records offered in the confirmation of the default, plaintiff has failed to establish a prima facie case supporting an award for temporary total disability.

Accordingly, we reverse and set aside the judgment of the commissioner. The matter is remanded to the trial court for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.

      . The EMG was performed by Dr. Mohnot at the New Orleans Headache and Neurology Clinic. These medical records were certified and were included in our review.


source: Caselaw Access Project

author: GREG G. GUIDRY, Judge.

license: Public Domain

text:
    Kellie JOHNSON v. Wayne BERGERON.
    No. 07-CA-161.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 2007.

      J. Courtney Wilson, Attorney at Law, Metairie, Louisiana, for Plaintiff/Appellant.
    Panel composed of Judges THOMAS F. DALEY, GREG G. GUIDRY, and JAMES C. GULOTTA, Pro Tempore.
   GREG G. GUIDRY, Judge.

1 ¡¡The Plaintiff, Kellie Johnson, appeals from a judgment dismissing her suit for assault and battery filed against the Defendant, Wayne Bergeron. We affirm.

On November 10, 2004, the Plaintiff, a 47 year-old woman suffering from paranoid schizophrenia, was allegedly battered by the Defendant, his now deceased girlfriend, Cathy Mooney, and her granddaughter, Natasha Starkey. The attack caused bruises and scratches on the Plaintiffs arms and back. The matter was reported to the police by a neighbor, Danielle Casey. The Defendant was never questioned or arrested.

This lawsuit was filed in October of 2005. Following a trial in which the Plaintiff was absent, the trial judge found that the incident occurred and that the Plaintiff suffered injuries. However, he concluded that the Plaintiff failed to prove the identity of the person who struck her.

On appeal, the Plaintiff asserts that the trial judge erred in failing to find the Defendant battered the Plaintiff.

|sLa.C.C. art. 2315 provides that a person may recover damages for injuries caused by a wrongful act of another. The fault concept includes the intentional tort of battery. Landry v. Bellanger, 02-1443, p. 6 (La.5/20/03), 851 So.2d 943, 949. Battery is “[a] harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact ...” Caudle v. Betts, 512 So.2d 389, 391 (La.1987); Landry, 02-1443 at 6, 851 So.2d at 954. The defendant’s intention need not be malicious nor need it be an intention to inflict actual damage. Landry, 02-1443 at 6, 851 So.2d at 954. It is sufficient if the defendant intends to inflict either a harmful or offensive contact without the other’s consent. Id.

In order to succeed on a battery claim, the Plaintiff must prove “all prima facie elements of the tort, including lack of consent to the invasive conduct.” Landry, 02-1443 at 6, 851 So.2d at 954; Touchet v. Hampton, 06-1120, p. 4 (La.App. 3rd Cir.2/7/07), 950 So.2d 895, 898. The Defendant may then seek to prove lack of fault on the basis that his actions were privileged, or justified, as in self-defense. Landry, 02-1443 at 6, 851 So.2d at 954. These are fact questions subject to the manifest error standard of review by the appellate court. See: Robinson v. Dunn, 96-0341, p. 6 (La.App. 1st Cir.11/8/96), 683 So.2d 894, 897.

The Plaintiff did not testify at trial. Although she is not interdicted, her mother, Marion Johnson, manages her affairs. She claimed that the Plaintiff was incompetent to testify. Ms. Johnson produced a Power of Attorney given to her by the Plaintiff, and a doctor’s note to support the claim. Ms. Johnson also presented a statement of the event that she wrote, but was signed by the Plaintiff. The trial judge found the Power of Attorney insufficient proof of incompetence in light of the absence of any other evidence, and excluded the doctor’s note and written statement as hearsay.

|4The testimony shows that the Plaintiff lives alone in a trailer behind a house owned by her mother, and inhabited by the Plaintiffs nephew, Corey Johnson. At the time of this incident, the Defendant and Ms. Stuckey lived in the house next door.

The only evidence identifying the Defendant as the perpetrator was presented by Ms. Casey. Ms. Casey moved into the house across the street from the Plaintiff three months prior to the incident. A hairdresser, Ms. Casey usually did not arrive home until after late evening. She did not know the Defendant or Ms. Starkey personally, but recognized them from the neighborhood.

On the evening in question, Ms. Casey left her house at around 5:30-5:45 p.m. to go to church. She claimed that, as she was leaving, she witnessed an altercation in the Plaintiffs yard involving the Plaintiff, the Defendant, Ms. Stucky, and Ms. •Mooney. Ms. Casey said she watched the Defendant strike the Plaintiff with force several times on her back, while Ms. Mooney and Ms. Stuckey yelled at the Plaintiff and threw chairs around. The Plaintiff was bowed over and attempting to get to her trailer. Ms. Casey could not see if the Defendant’s hand was open or closed.

The trailer is located in a wooded area, and some distance from Ms. Casey’s house. Ms. Casey admitted that in the time she lived in the house, she had never seen the Defendant communicate with the Plaintiff, or act violently toward anyone.

Ms. Casey called the police and reported the incident. That officer did not make a report. Later that evening, she told Corey Johnson about the altercation. He notified the Plaintiffs mother. Mrs. Johnson came to the house and treated Plaintiffs scratches and abrasions. She did not take her to a physician. The next day, another police officer was dispatched to investigate the incident. He | ¡^interviewed Ms. Johnson and wrote a report based on her version of the events. However, she admitted the report included details that had not been reported by Ms. Casey.

Ms. Casey and Ms. Johnson claimed they did not know each other, but Ms. Johnson later disclosed that Ms. Casey is her distant cousin. Ms. Johnson explained that she omitted the information because she did not see Ms. Casey often.

The Defendant denied battering the Plaintiff. He said that and his family had little contact with her because the Plaintiffs brother, Darwin Johnson, told him she was not sane. The Defendant said he also generally had no contact with the rest of the family. He only spoke to Corey when Corey’s grass needed trimming. He claimed he did not know or recognize Ms. Casey, although he goes outside regularly, and remembered two other neighbors that had previously lived in the same house.

The Defendant testified that two adversarial incidents between the families occurred prior to this battery accusation. In the first, he accused Ms. Johnson’s son of stealing electronic items from his house, based on another neighbor’s information. The son had access to the house because he was supposedly watching it while the Defendant was out of town. In a second dispute, Ms. Johnson sued the Defendant after the Plaintiff sustained cat scratches from a cat that had been given to Ms. Starkey by the Plaintiff. Nevertheless, neither the Defendant nor Ms. Starkey believed that the Plaintiff was antagonistic toward them. They denied being hostile to the Johnson family despite the previous problems, although the Defendant was not happy with the controversies between the families.

Ms. Starkey testified that she lived with the Defendant and her grandmother from childhood. After her grandmother died, he became her guardian. She was 17 | ¿years old at the time of trial. Ms. Starkey testified that the Defendant was not violent, and that neither of them went onto the Johnsons’ property, or communicated with them. She denied that she or any of her family attacked the Plaintiff.

The trial judge found that the evidence was not sufficient to prove that the Defendant attacked the Plaintiff. He questioned the claim due to the Plaintiffs failure to testify, the low lighting at that time of year, the wooded nature of the area the Plaintiff was injured in, the lack of police interest in the matter, and the Defendant’s peaceful nature. After our review, we find no manifest error in this finding.

Accordingly, the judgment of the trial court is hereby affirmed. The costs of this appeal are to be paid by the Plaintiff.

AFFIRMED.

      . She moved out several months later.


text:
    PONTCHARTRAIN TAVERN, INC. v. Rustin D. JOHNSON and Joseph D.R. Sobol.
    No. 07-CA-115.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 2007.
    John J. Messina, Attorney at Law, Ken-ner, Louisiana, for Plaintiff/Appellee.
    Anthony L. Glorioso, Attorney at Law, Metairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, GREG G. GUIDRY, and JAMES C. GULOTTA, Judge, Pro Tempore.
   GREG G. GUIDRY, Judge.

lijThe Defendant, Rustin D. Johnson, appeals from a partial summary judgment granted in favor of the Plaintiff, Pontchartrain Tavern, Inc., in this lease termination case, awarding Pontchartrain Tavern partial damages for unpaid rent, insurance premiums, taxes and late fees. For the reasons which follow, we find this Court lacks jurisdiction to review the partial summary judgment and order the appeal dismissed.

The litigation arises from a lease agreement entered into by Pontchartrain Tavern and Johnson, dated June 22, 1995. The property subject to the lease bears municipal address 324 Hammond Hwy, in the Parish of Jefferson, State of Louisiana. The lease was for a fixed three year term beginning June 24, 1995, with the right to renew for an additional three years. Rent of $4,000.00 was due on the first day of each month.

With the approval of Pontchartrain Tavern, Johnson entered into a sublease agreement with Joseph D.R. Sobol on April 25, 1996. The terms and conditions |aof the original lease were contained in the sublease and included, among others, the lessee’s obligation to pay taxes due on the property and maintain insurance on the property. On June 9, 2000, an attorney, Evan Howell, purporting to represent Pontchartrain Tavern, notified Johnson and Sobol by registered letter addressed to them at the leased premises that they were in default under the agreement for non-payment of taxes, insurance and late fees. Demand was made in a specified sum and Johnson and Sobol were given five days to comply. On June 16, 2000, again by registered letter addressed to Johnson and Sobol at the leased premises’ address, Johnson and Sobol were notified that Pontchartrain Tavern was canceling the lease-and sublease.

Thereafter, Pontchartrain Tavern instituted eviction proceedings which resulted in a judgment, dated October 19, 2000, ordering Johnson and Sobol to vacate the premises by November 1, 2000. On May 22, 2001, Pontchartrain Tavern filed suit against Johnson and Sobol for unpaid rent, liquidated damages, unpaid taxes, past due insurance premiums, repair costs, sustained vandalism damages and attorney fees, all allegedly due according to the lease and sublease agreements. The amounts requested totaled $349,496.63. In response, Johnson filed an answer and re-conventional demand. Thereafter, Pontchartrain Tavern moved for summary judgment for the amount prayed for. Johnson contested Pontchartrain Tavern’s right to recover the amount prayed for.

Following a hearing on November 5, 2003, a partial summary judgment was granted in favor of Pontchartrain Tavern in the amount of $123,552.34. Following a motion for new trial and a hearing on January 18, 2006, the trial court, on July 6, 2006, issued an amended judgment in the amount of $29,080.30 covering past due rent, taxes, insurance premiums, and late fees. The right to attorney fees was acknowledged, in an amount to be determined later, as was the outstanding issue of | liquidated damages. It is from the partial summary judgment and amendment thereto that Johnson appeals.

La. C.C.P. art.2083, addressing appeal-able judgments, provides in pertinent part:

A. A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.
C. An interlocutory judgment is ap-pealable only when expressly provided by law.

The trial court judgment rendered on November 5, 2003 and amended on July ,6, 2006 is a partial summary judgment. A partial judgment may be a final judgment even if it does not grant the successful party all of the relief prayed for or adjudicate all of the issues in the case. La. C.C.P. art. 1915(A). La. C.C.P. art. 1915(A) lists partial judgments that are final. That list includes a trial court grant of “a motion for summary judgment, as provided by [Louisiana Code of Civil Procedure] Articles 966 through 969, but not including a summary judgment granted pursuant to [Louisiana Code of Civil Procedure] Article 966(E).” La. C.C.P. art. 1915(A)(3).

La. C.C.P. art. 966(E) provides for the grant of summary judgments in favor of any one or more of the- parties to the litigation that are “dispositive of a particular issue, theory of recovery, cause of action, or defense” even if the grant of “the summary judgment does not dispose of the entire case.” The summary judgment at issue does not dispose of the entire litigation, but only resolves some of Pontchartrain Tavern’s damage claims. Therefore, it is not a partial final judgment as contemplated by La. C.C.P. art. 1915(A)(3).

Nevertheless, even if a partial summary judgment does not qualify as a final judgment under La. C.C.P. art. 1915(A)(3), it may still constitute a final judgment |fifor the purpose of an immediate appeal if it is designated as a final judgment by the trial court after an express determination that there is no just reason for delay. La. C.C.P. art. 1915(B)(1). However, in the absence of such a designation, such a judgment “shall not constitute a final judgment for the purpose of an immediate appeal.” La. C.C.P. art. 1915(B)(2). The trial court in this case has not designated its partial summary judgment a final judgment in accordance with La. C.C.P. art. 1915(B)(1).

Thus, since the judgment at issue is not a final judgment under La. C.C.P. art. 1915(A) and has not been properly designated a final judgment as provided in La. C.C.P. art. 1915(B), it is not appealable as one “in which appeals are given by law.” La. C.C.P. art. 2083(A).

In brief, Johnson acknowledges that the partial summary judgment granted by the trial court is not a final appealable judgment and that the case should be remanded to the trial court for complete disposition of the claims of both parties.

Accordingly, upon finding that we have no jurisdiction over the matter, we dismiss the appeal and remand the case to the district court for further proceedings.

APPEAL DISMISSED.


author: DAVID S. GORBATY, Judge. ARMSTRONG, C.J., MURRAY, J.,

text:
    Terri Barrack, Wife of/and Dr. Robert BARRACK v. J.F. DAY & COMPANY, INC., d/b/a Pella Windows & Doors, Pella Corporation, Charlotte Spencer Smith and SpencerSmith, A Professional Corporation, f/k/a SpencerSmith, Inc.
    No. 2007-CA-0097.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 29, 2007.

      Stewart E. Niles Jr., Lawrence J. Cen-tola, Niles, Bourque & Fontana, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Richard S. Vale, Christopher K. LeM-ieux, Pamela F. Noya, Blue Williams, L.L.P., Metairie, LA, for Defendant, Ap-pellee.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge DAVID S. GORBATY.
   DAVID S. GORBATY, Judge.

bDr. and Mrs. Robert Barrack (hereinafter Barrack) appeal a summary judgment granted in favor of Spencersmith, a Professional Corporation, f/k/a SpencerS-mith, Inc. (hereinafter SpencerSmith), with regard to construction defect claims. For the following reasons, we affirm in part, and reverse in part.

FACTS AND PROCEDURAL HISTORY:

On November 1, 1996, the Barrack’s contracted with Rick Smith, a licensed general contractor, and Charlotte Spencer Smith, a licensed architect, in their capacity as employees of SpencerSmith, Inc., to build a home in English Turn. The design contract provided for the installation of Pella brand windows, many of which were to be “mulled” or joined together in groups on the outer walls of the home.

The Barrack’s moved into their new home in February of 1999, and in December of that year discovered that certain windows were leaking. The Barrack’s contacted Rick Smith, who in turn contacted J.F. Day, Pella’s local 12distributor. In February of 2000, J.F. Day replaced some of the sashes on the leaking windows. However, in December of 2000, the windows were still leaking and the Barrack’s again notified Rick Smith, who notified J.F. Day. J.F. Day again replaced sashes on the windows.

When the Barrack’s again noticed leaks in the late summer/early fall of 2002, they called Rick Smith, who personally inspected the windows and told the Barrack’s that the Pella windows were failed due to defects in the manufacture and/or design of the windows. A J.F. Day sales representative subsequently inspected the windows and concurred with Rick Smith. However, in November 2002, a Pella senior field representative inspected the windows and concluded that the windows had failed because of product design, but also because the windows had been improperly installed and/or mulled. The dispute then arose as to who had installed and/or mulled the windows, SpencerSmith, Inc., or J.F. Day.

PROCEDURAL HISTORY:

The Barrack’s filed suit on May 29, 2003 against Pella Corporation and J.F. Day under the Louisiana Products Liability Act for damages caused by the defectively designed windows, for breach of contract, and for redhibition. Alternatively, the Barrack’s sued SpencerSmith, Inc., and Charlotte Spencer Smith for damages caused by the window problems should J.F. Day allege the home design was defective, and for improper installation.

SpencerSmith, Inc., filed a Motion for Summary Judgment arguing that the Barrack’s had failed to comply with the “fix first” provision of La. R.S. 9:3145, a Issubpart of the New Home Warranty Act (hereinafter NHWA). The statute provides the exclusive remedy between homeowners and builders, and that an owner shall give a builder written notice, by registered or certified mail, within one year of notice of the defect, thereby allowing the builder an opportunity to fix the problem. If the homeowner does not comply, he has no other recourse against the builder.

Although the Barrack’s admit that they did not give written notice, they argue that they gave SpencerSmith, Inc., actual notice on numerous occasions, and that Rick Smith attempted to remedy the leaks in the windows. Thus, SpencerSmith, Inc., waived its right to claim lack of notice pursuant to the NHWA.

The trial court granted summary judgment in favor of SpencerSmith, Inc., with regard to claims under the NHWA. The court found that the NHWA was the Barrack’s exclusive remedy concerning construction defects, and dismissed all such claims against SpencerSmith, Inc., for failure to give written notice. Summary judgment was denied as it related to architectural claims against SpencerSmith, Inc., and Charlotte Spencer Smith. This appeal followed.

DISCUSSION:

Assignments of Error 2, 3, 4, 5, 6, 8 and 10 all involve errors allegedly made by the trial court with regard to the NHWA. The main argument asserted is that the Barrack’s gave SpencerSmith, Inc., actual notice of the defects in their home, and afforded SpencerSmith, Inc., the opportunity to fix the leaks in the windows | ¿prior to filing suit. Thus, although the Barrack’s admit they did not comply with the notice by certified mail requirement of La. R.S. 9:3145, they complied with the “spirit” of the law.

The Barracks argument that they complied with the spirit of the statute is well-founded, because although they gave Spen-cerSmith, Inc., only verbal notice of the defects, they did so within the time limits provided by the statute, and allowed him the opportunity to fix the defects. They also provided proof that they gave written notice to SpencerSmith, Inc., albeit after the time limitations of the statute had run, but before filing suit. The fact that Rick Smith notified J.F. Day and Pella of the problem on numerous occasions is proof of notification, and further demonstrates their compliance with the purpose of the law.

The sole reason given by the trial court for granting summary judgment was the Barracks failure to notify SpencerSmith, Inc., by certified mail of the defects in the home. The trial court relied on Carter v. Duke, 05-0390 (La.01/19/06), 921 So.2d 963, in support of its ruling. In oral reasons for judgment, the trial judge specifically invited, and in fact, implored this Court to reverse the ruling in Carter. Unfortunately, this Court has no authority to overrule a Louisiana Supreme Court decision; however, because the facts of this case distinguishable, we are not bound by the ruling in Carter.

However, we do note that in Carter, the Supreme Court stated: “The legislature decided the builder should not be responsible for defects of which he was never made aware and never given the chance to remedy in accordance |5with the standards of the NHWA. Without notice of defects, the builder is deprived of the more economically sound and judicially efficient alternative, i.e., the opportunity to cure the defects, an alternative in accord with the legislative intent to promote commerce and stability.” (emphasis added.)

The Louisiana legislature enacted the New Home Warranty Act in 1986, and amended it in 1999. La. R.S. 9:3141 expresses the legislature’s purpose for the Act:

The legislature finds a need to promote commerce in Louisiana by providing clear, concise, and mandatory warranties for the purchasers and occupants of new homes in Louisiana and by providing for the use of homeowners’ insurance as additional protection for the public against defects in the construction of new homes. This need can be met by providing a warranty for a new home purchaser defining the responsibility of the builder to that purchaser and subsequent purchasers during the warranty periods herein. The warranty, which is mandatory in most cases, shall apply whether or not building code regulations are in effect in the location of the structure, thereby promoting uniformity of defined building standards. Additionally, all provisions of this Chapter shall apply to any defect although there is no building standard directly regulating the defective workmanship or materials.

Louisiana Revised Statute 9:3144 sets forth the warranties and exclusions of the NHWA. Section B provides that “[ujnless the parties otherwise agree in writing, the builder’s warranty shall exclude the following items: ...” The subsections pertinent to this litigation are Section B(4), B(4)(c) and B(16):

B(4) Any damage to the extent it is caused or made worse by any of the following:
|fi(4)(c) Failure by the owner to give written notice by written or registered mail to the builder of any defect within the time set forth in R.S. 9:3145. However, the provisions of this Subpara-graph shall not be construed to change either the warranty periods enumerated in Subsection A of this Section or the notice requirements provided by R.S. 9:3145.
B(16) Any defect not reported in writing by registered or certified mail to the builder or insurance company, as appropriate, prior to the expiration of the period specified in Subsection A of this Section for such defect plus thirty days.

Louisiana Revised Statute 9:3145 provides for the notice requirements applicable to both the builder and the homeowner:

Before undertaking any repair himself or instituting any action for breach of warranty, the owner shall give the builder written notice, by registered or certified mail, within one year after knowledge of the defect, advising him of all defects and giving the builder a reasonable opportunity to comply with the provisions of this Chapter. The builder shall give the owner written notice of the requirements of this Chapter at the time of the closing.

When read together, these subparts provide that unless agreed to in writing, the builder’s warranty shall exclude any damage to the extent it is caused or made worse by failure of the owner to give written notice of any defect within a reasonable time, which is prior to the expiration of one year plus thirty days. La. R.S. 9:3145 instructs that this notice shall be given prior to the owner trying to repair the defect himself, or filing suit for breach of warranty.

The meaning and intent of a law is determined by considering the law in its entirety and all other laws concerning the same subject matter and construing the provisions in a manner that is consistent with the express terms of the statute and l7with the obvious intent of the lawmaker enacting it. SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695, PP. 11-12 (La.2001), 808 So.2d 294, 302. The court should give effect to all parts of the statute and should not adopt a statutory construction that makes any part superfluous or meaningless, if that result can be avoided. The starting point for interpretation of any statute is the language of the statute itself. Id. As we interpret these statutes and apply them to the facts of this case, the damages complained of by the Barracks were not caused or made worse by their failure to give SpencerSmith, Inc., written notice. To interpret the statute otherwise, would make the express purpose of the statute meaningless.

We find that the Barracks’ verbal notice of the defects in their home, given in a timely manner, afforded SpencerSmith, Inc., the opportunity to remedy the defects. The Barracks were in compliance with the meaning and intent of the New Home Warranty Act, and should not be precluded from pursuing an action against SpencerSmith, Inc., for any actions not perempted by the statute. Accordingly, we affirm the judgment denying summary judgment in favor of Charlotte Spencer Smith and SpencerSmith, Inc., for architectural claims, and reverse the judgment granting summary judgment to SpencerS-mith, Inc., relative to the NHWA.

AFFIRMED IN PART, REVERSED IN PART

ARMSTRONG, C.J., concurs in the result.

MURRAY, J., concurs and assigns reasons.

ARMSTRONG, C.J.,

Concurring.

hi respectfully concur in the result reached by the majority.

MURRAY, J.,

Concurring.

hThe issue in this case, which appears to be res nova, is whether actual notice to the builder within the time limits set forth in La. R.S. 9:3145 (as opposed to written notice by registered or certified mail) is sufficient to maintain a cause of action under the NHWA. I agree with the majority that Carter v. Duke, 05-0390 (La.01/19/06), 921 So.2d 963, upon which the trial court relied, is distinguishable. The issue in Carter was whether the builder could invoke the protections of the NHWA despite his having failed to comply with a separate requirement of R.S. 9:3145, which is that the builder give the homeowner written notice of the provisions of the NHWA at the time of closing. The Supreme Court in Carter decided that the builder was protected by the statute despite his failure to strictly comply with this notice requirement.

Although the issue in Carter is not the same as that presented in the instant case, I find the Supreme Court’s approach to that decision and its interpretation of the statute to be instructional. If the builder does not forfeit the protections of the NHWA by failing to comply with the notice requirement, neither should the homeowner forfeit his rights under the statute by failing to strictly comply with |2R.S. 9:3145’s express stipulation as to the form of notice, especially where actual notice within the proper time limits is undisputed.

In the instant case, I find that actual notice to the defendant/builder clearly complies with the spirit and purpose of the statute. Accordingly, I respectfully concur in the majority’s reversal of the trial court’s granting of summary judgment.

      . Summary judgment was denied as to architectural claims against SpencerSmith, Inc., and Charlotte Spencer Smith, Inc.

      . The statute also provides that a builder shall give an owner written notice of the provisions of the Act at the time of closing. This is not an issue in this case.

      . This ruling renders all other assignments of error moot.


author: JAMES F. McKAY III, Judge.

text:
    Rose GUDO, Individually and on behalf of all others similarly situated, and Tony Gudo, Individually and on Behalf of all others similarly situated v. The ADMINISTRATORS OF the TULANE EDUCATIONAL FUND d/b/a The Tulane University of Louisiana and d/b/a Tulane University Hospital and d/b/a Tulane University School of Medicine, Mary Bitner Anderson, et al.
    No. 2006-CA-1515.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 5, 2007.

      Stephen B. Murray, Sr., Stephen B. Murray, Jr., James R. Dugan II, Douglas R. Plymale, Murray Law Firm, and David L. Browne, The Law Offices of David L. Browne, L.L.C., and Kenneth M. Carter, Kenneth M. Carter, APLC, and Lewis Kahn, Kevin Oufnac, Kahn Gauthier Swiek, L.L.C., New Orleans, Louisiana, and James M. Williams, John W. Hough-taling II, Gauthier, Houghtaling & Williams, L.L.C., Metairie, LA, for Plaintiffs/Appellees.
    Phillip A. Wittmann, Stephen G. Bullock, John P. Farnsworth, Jason M. Bilbe, Kathryn M. Knight, Stone Pigman Walther Wittmann, L.L.C., New Orleans, Louisiana, for Defendants/Appellants, The Administrators of the Tulane Educational Fund and Mary Bitner Anderson.
    Gregory J. McDonald, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, Louisiana, for Defendant/Appellant, National Anatomical Service, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge LEON A. CANNIZZARO, JR.).
   JAMES F. McKAY III, Judge.

_JjThe issue in this case is whether the trial court properly granted the appellees’ motion to certify the matter as a class action. We find that the trial court was correct and affirm the judgment.

The trial court conducted a class certification hearing on June 19, 2006, and took the matter under advisement. On August 22, 2006, the trial court issued its Judgment and Reasons for Judgment, granting the plaintiffs’ motion and adopting plaintiffs’ proposed class certification arguments.

The appellants, the administrators of the Tulane Educational Fund d/b/a the Tulane University of Louisiana and d/b/a Tulane University Hospital and d/b/a Tulane University School of Medicine (“Tulane”), Mary Bitner Anderson, individually and in her capacity as Director of the Tulane Willed Body Program, and National Anatomical Services, Inc. (“NAS”), appeal the judgment of the trial court granting the plaintiffs’, Rose Goudeau and Tony Gou-deau, individually and on behalf of all other similarly situated, motion for class certification.

L.The case at bar primarily involves allegations that Tulane sold donated cadavers, both decedent donated by testament and post death family donated, to other facilities without proper notification to the families of the decedents; primarily cadavers that were sold to the NAS and ultimately to the U.S. Army. The concern appears to be related to the type of testing allegedly used on the cadavers and final disposition of the remains. Pursuant to contracts for donation, the donated cadavers were to be cremated and the ashes were either to be returned to the families (if so requested) or interred in a cemetery plot that the Louisiana Bureau of Anatomical Services maintained.

The appellees asserted various allegations in their original class action petition for damages pursuant to La. C. Civ. Pro. art. 591, et seq. The willed body program was established for the purpose of medical research and training. Tulane accepted such donations and arranged for the cadavers to be delivered to Tulane University School of Medicine. Tulane actively solicited and collected more bodies than its medical school training programs could use and in turn, as early as 1998, sold the bodies that it did not use to NAS, a body broker based in New York, who in turn sold the cadavers on the open market, specifically to the U.S. Army. The appel-lees assert that they were never notified that the cadavers would be sold and used for purposes other than medical training or medical research at Tulane. They argue that Tulane’s conduct violated Louisiana laws of unjust enrichment and negligent misrepresentation, and constituted fraud, breach of contract and | ¡¡unauthorized mutilation of dead bodies. In short, Tulane failed to meet the obligation to ensure that the donated cadavers were being used in accordance with the terms of the donations. The appellees further argue that Tulane’s unauthorized conduct violates La. C.C. art. 2315, and constitutes unauthorized mutilation, desecration, and mishandling of dead bodies and gave rise to their negligence claims for emotional distress damages.

The appellants contend that the trial court erred in certifying this class action by finding that the plaintiffs met their burden of proof on each of the requisite elements of numerosity, commonality, typicality, and adequate representation necessary for class certification. They argue that the trial court erred in certifying the class action, given evidence suggesting that the plaintiffs failed to identify a single common issue that could be tried on a class-wide basis.

LAW

The central issue for this Court to address is whether the trial court erred in granting the motion for class certification. The standard of review of class certification decisions is a bifurcated one. Watters v. Department of Social Services, 2005-0324, p. 3 (La.App. 4 Cir. 4/19/06), 929 So.2d 267, 272. A trial court’s decision concerning class certification is reviewed under both a manifest error and an abuse of discretion standard. Parry v. Administrators of Tulane Educational Fund, 98-2125, p. 3 (La.App. 4 Cir. 6/30/99), 740 So.2d 210, 212; Adams v. CSX Railroads, 92-1077 (La.App. 4 Cir. 2/26/93), 615 So.2d 476. The |4factual findings are reviewed under the manifest error/clearly wrong standard; the trial court’s discretionary judgment on- whether to certify the class or not is reviewed by the abuse of discretion standard. Id. (citing Boudreaux v. State, Dep’t of Transp. and Dev., 96-0137, p. 5 (La.App. 1 Cir. 2/14/97), 690 So.2d 114, 119). These two standards of review corr respond with the two-step process for determining whether to certify a class action. First, a trial court must find a factual basis exists to certify an action as a class action. Second, the court must exercise its discretion in deciding if certification is appropriate. Singleton v. Northfield Ins. Co., 2001-0447, p. 7 (La.App. 1 Cir. 5/15/02), 826 So.2d 55, 61.

In Galijour v. Bank One Equity Investors-BIDCO, Inc., 2005-1360 (La.App. 4 Cir. 6/21/06), 935 So.2d 716, 723, this Court noted that in order to maintain a class action, three basic elements are essential: (1) a class so numerous as to make it impracticable for all of them to join or to be joined as parties; (2) one or more adequate representatives of the class who are before the court either as plaintiffs or defendants; and (3) a “right sought to be enforced for or against the members of the class [which is] [cjommon to all members of the class.” 1 Frank Maraist & Harry T. Lemmon Louisiana Civil Law Treatise; Civil Procedure § 4-12 (1999) (“Maraist & Lemmon”). These elements are codified in La. C.C.P. art. 591, which has been noted to require proof of five threshold requirements: numerosity, commonality, typicality, adequacy of representation, and identifiability. Howard v. Willis-Knighton Medical Center, 40,634, p. 26 (La.App. 2 Cir. 3/8/06), 924 So.2d 1245, 1260. The burden is on the plaintiff, as the party seeking to utilize the | .class action procedure, to establish each element by a preponderance of the evidence. Royal Street Grocery, Inc. v. Entergy New Orleans, Inc., 99-3089, 99-3090, p. 6 (La.App. 4 Cir. 1/10/01), 778 So.2d 679, 684. All of these elements must be established in order for a class action to be appropriate. Billieson v. City of New Orleans, 98-1232, p. 10 (La.App. 4 Cir. 3/3/99), 729 So.2d 146, 154. The failure to establish any element precludes certification.

In the case sub judice the trial court made a factual finding noted in its reasons for judgment as follows:

The Court finds that their claims are based on the same acts, omissions and legal theories that have given rise to the damages sought by the entire proposed class. The arguments of counsel and the record reveal that each of the proposed class representatives are near relatives of those who participated in the Willed Body Program. Moreover, there is no opposition to the adequacy of counsels representing the proposed class representatives. Thus, the Court finds that the claims are typical of all class members, and the proposed class representatives are in accordance with Article 591(A)(3)(4).

A class action is simply a procedural device; it confers no substantive rights. When deciding a motion to certify, a court is limited to considering whether the procedural device is appropriate. Id. at 153; Cooper v. City of New Orleans, 2001-0115, p. 3 (La.App. 4 Cir. 2/14/01), 780 So.2d 1158, 1160. The purpose of a class action is to adjudicate and obtain res judicata effect on all common issues applicable not only to the class representative who brings the suit, but also all others who are similarly situated, provided they are given adequate notice of the pending class action and do not timely exercise their right to opt out of the class. Doerr v. Mobil Oil Corp., 2001-0775, p. 7 (La.App. 4 Cir. 2/27/02), 811 So.2d 1135, 1141.

| .MANDATORY REQUIREMENTS FOR CLASS CERTIFICATION

Louisiana Code of Civil Procedure Articles 591-597 govern the class action procedure. La.C.C.P. art. 591(A) provides the general rule for certification of a class. 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; and
(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.

In addition, La. C.C.P. art. 591(B) provides in pertinent part:

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) Adjudications with respect to individual members of the class 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; or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final in-junctive relief |7or corresponding declaratory relief with respect to the class as a whole; or
(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 forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
(4)The parties to a settlement request certification under Subpara-graph B(3) for purposes of settlement, even though the requirements of Sub-paragraph B(3) might not otherwise be met.

Further, it is well-settled that a “trial court may consider the pleadings, affidavits, depositions, briefs, exhibits and testimony presented at the certification hearing.” Billieson v. City of New Orleans, 729 So.2d at 154.

NUMEROSITY

Numerosity is the first prerequisite for certifying a class. To satisfy the numerosity requirement, the party seeking certification must establish that the members of the class are so numerous that joinder is impracticable. The key is “impracticality, and not impossibility of joinder.” Maraist & Lemmon, supra. |sThis requirement reflects the basic function of the class action device of allowing a small number of persons to enforce claims for the benefit of many when it would be inequitable and impracticable to join every person sharing such claims at issue in the suit. Davis v. Jazz Casino Co., L.L.C., 2003-0005, p. 6 (La.App. 4 Cir. 1/14/04), 864 So.2d 880, 887 (citing Kent A. Lambert, Certification of Class Actions in Louisiana, 58 La. L.Rev. 1085 (1998)(“Lambert”)). Although identification of all potential class members is not necessary, the party seeking certification must establish a definable group of aggrieved claimants. Farlough v. Smallwood, 98-8106 (La.App. 4th Cir.4/12/88), 524 So.2d 201, 203. Conclusory allegations do not carry the plaintiffs burden to establish numerosity. Lewis v. Roemer, 94-0317 (La.App. 4 Cir. 9/29/94), 643 So.2d 819, 822. In Hampton v. Illinois Central Railroad Company, 98-0430 at p. 8 (La.App. 1st Cir.4/1/99), 730 So.2d at 1091 at 1094-95, the First Circuit required that the plaintiffs seeking certification meet a threshold burden of “plausibility” as a component element of a prima facie showing of numerosity. In doing so, it emphasized that numerosity is not shown by mere allegations of a large number of potential claimants, or, in the case of a mass tort, by showing a certain population within a certain geographic radius or proximity of the event. Id. In the case of a mass tort, this burden of plausibility requires some evidence of a causal link between the incident and the injuries or damages claimed by sufficiently numerous class members. This prima facie showing need not rise to the status of proof by a preponderance of the evidence, as would be necessary to prevail on the merits. Hampton, Id. at 1096.

lain the record at least sixteen class members are currently identified with a projection of many more potential plaintiffs to be added. All of the named plaintiffs had some familial relationship to the donors and assert emotional damages. The plausibility of their claims is not necessary at this juncture in this litigation as class action certification is merely a procedural mechanism and confers no substantive rights on the parties. In the reasons for judgment, the trial court notes that:

... [pjlaintiffs estimate that there are more than 1,000 members of the proposed class. Plaintiffs start the basis of their estimate on a ten year span from 1994 to 2004, when the lawsuit was filed. Defendant estimate [sicjthat Tulane has received more than 100 excess willed bodies each year. Tulane’s Willed Body Program has had a relationship with National Anatomical Service, Inc for at least the past six years, since 1996. The Court finds that the plaintiffs have satisfied the numerosity requirement.

The original petition and supplemental petitions set forth the names of sixteen class representatives. The record thus supports the factual finding that there is a significant number of the class members known and a potential for a significant number of plaintiffs yet to be determined. These factors supports a finding that join-der is practical and that the numerosity requirement is met. When incorporated into' judicial economy considerations in avoiding a multiplicity of lawsuits we agree with the trial court’s determination that the numerosity element of the certification process is satisfied.

COMMONALITY

The next requisite for class certification is the requirement of commonality. In affirming the certification of the class in West v. G & H Seed Co., 2001-1453 (La.App. 3 Cir. 8/28/02), 832 So.2d 274, at 287, the Third Circuit stated:

|, (/Representative class members may sue if “[t]here are questions of law or fact common to the class.” La.Code Civ.P. art. 591(A)(2). The common questions must predominate over questions affecting individual members. La. Code Civ.P. art. 591(B)(3). “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 the 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, 779 So.2d at 1078 (citations omitted). Moreover, “the mere fact that varying degrees of damages may result from the same factual transaction and same legal relationship or that class members must individually prove their right to recover does not preclude class certification.” Bartlett v. Browning-Ferris Indus. Chem. Serv., Inc., 99-494, p. 3 (La.11/12/99); 759 So.2d 755, 756.

The trial court in it reasons for judgment sites to Billieson v. City of New Orleans, 98-1232 (La.App. 4 Cir. 3/3/99), 729 So.2d 146.

Commonality requires that questions of law and fact common to the class as a whole predominate over those questions germane only to the claims of individual class members. Billieson v. City of New Orleans, 729 So.2d 146 (La.App. 4 Cir.1999). The commonality requirements involves a two-step inquiry: (1) a determination that common issues predominate over questions affecting only individual members, and (2) a determination that the class action procedure is superior to other procedural mechanisms. Id.
In determining whether the class action procedure is superior to other procedural mechanisms available to the proposed class, jurisprudence directs the Court to consider whether the following three (3) “intertwined goals” would be best served by the use of a class action: (1) effectuating substantive law, (2) judicial efficiency, and (3) individual fairness. Id.
To evaluate whether a class action in the instant matter would effectuate substantive law, the Court must first determine the policy behind the adjudication of the underlying cause of action. The plaintiffs assert unjust enrichment, breach of contract and negligence against the defendants, (footnote omitted) The plaintiffs have also alleged fraud and misrepresentation against the Administrators of the Tulane Educational Fund d/b/a Tulane University, The Willed Body Program and Dr. Anderson with respect to Tulane’s misrepresentations and concealment of the alleged truth behind the Willed Body Program. The Court, however, finds through a thorough review of the record and arguments of counsel that the underlying cause of action relates to plaintiffs cause of action for unauthorized desecration/mutilation of their deceased loved ones’ bodies.
Louisiana courts have held that Article 2315 of the Louisiana Civil Code is broad enough to encompass an action for the |, j unauthorized desecration/mutilation of a dead body. Green v. Southern Transplant Services, Inc., 97-1133,(La.App. 4. Cir.8/31/97), 698 So.2d 699, 701; See Blanchard v. Brawley, 75 So.2d 891 (La.App. 1 Cir.1954). In order to maintain an action for the tort of unauthorized mutilation of a dead human body, the plaintiff [sic] must [sic] near relatives of the decedent; the mutilation to the human corpse must be negligent or wanton; the mutilation must be unauthorized; and the plaintiff must have suffered emotional distress as a direct result of being aware of the unauthorized mutilation. Id.
In the instant case, the plaintiffs, and proposed class representatives, are the near relatives of those persons who have donated their bodies to the Willed Body program. The plaintiffs have alleged that the desecration/mutilation of the bodies donated to the Willed Body Program were unauthorized and negligent. As a result, the plaintiffs have suffered damages as a result of the unauthorized desecration of their loved-ones’ bodies. Moreover, the Court finds that it would be judicially inefficient or unfair to allow these claims to be litigated separately because they involve the same questions of law and fact. Accordingly, the Court finds the plaintiffs have satisfied the commonality requirement of Articles 591(A)(2).

We find that there is a plausible basis for the plaintiffs’ allegations sufficient to support a prima facie case against the defendants.

After reviewing the trial court’s reasons above, we agree with its determination that the plaintiffs have satisfied the commonality prerequisite for class certification.

ADEQUACY OF REPRESENTATION AND TYPICALITY

The next prerequisites for maintaining a class action is proof of adequate representation for the absent class members and typicality.

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 of the other class | ^members, 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.

Typicality, in 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 463, 469. The element of typicality requires that the claims of the class representatives be a cross-section of, or typical of, the claims of all class members. Andry v. Murphy Oil, U.S.A., Inc., 97-0793, p. 5 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, 1129. Louisiana jurisprudence does not require a “Noah-like” tabulation of class representatives and claims. Johnson v. Orleans Parish School Bd., 00-0825, 00-0826, 00-0827, 00-0828, p. 10 (La.App. 4 Cir. 6/27/01), 790 So.2d 734, 742. The plaintiffs are not required to produce two, or even one, of every kind of claim or of every person included in the class. The law only requires that the plaintiffs “typically” and “adequately” demonstrate that they represent a cross-section of the claims asserted on behalf of the class. Johnson, 00-0825, p. 10, 790 So.2d at 742; Andry, 97-0793 at p. 6, 710 So.2d at 1131.

I isThe representative plaintiffs’ claims arise out of the “Willed Body Program”, with respect to Tulane’s misrepresentations and concealment of the alleged truth concerning the use and disposition of the donated bodies of the class members loved ones. The putative class members’ claims are also all based on the same theory of law. As such, the representative plaintiff in the instant case typically and adequately represents a cross-section of the claims asserted on behalf of the class; all plaintiffs in this purported class bring identical claims, relying on identical legal and remedial theories, based on Tulane’s actions.

In the case sub judice the class representatives were confronted with the same potential injury as other class members, flowing from the same type of contract for donation of cadavers, the same scenario, questions of law and theories of recovery, thereby, satisfying the representation requirement.

The class was clearly and objectively defined as “all members similarly situated.” The trial court in its reasons for judgment found that:

... their [plaintiffs] claims are based on the same acts, omissions and legal theories that have given rise to the damages sought by the entire proposed class. The argument of counsel and the record reveal that each of the proposed class representatives are near relatives of those who participated in the Willed Body Program. Moreover, there is no opposition to the adequacy of counsels representing the proposed class representatives. Thus, the Court finds that the claims are typical of all class members, and the proposed class representatives are in accordance with Article 591(A)(3)(4).

The trial court in its reasons for judgment has compiled a list of class representatives. The appellants assert that the named plaintiffs have failed to | upropose a “definable group of aggrieved persons” or a class “defined objectively in terms of ascertainable criteria” as is required to satisfy La. C.C.P. art. 591(A)(5)., This assertion lacks sufficient substance to overrule the judgment of the trial court.

We find that the trial court in its reasons for judgment adequately evaluates the issues concerning the adequate representation and typicality to sustain the class certification prerequisites.

The final threshold to sustain class certification is definability or identifl-ability of the class. 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., 864 So.2d at 886. The trial court in its reasons for judgment defined the class as “the plaintiffs, and the proposed class representatives, are the near relatives of those persons who have donated their bodies to the Willed Body Program” and found that “the class definition is appropriate because the members of the proposed class have standing to assert claims based upon their relationship with the decedent.” We find that the trial court was correct in adopting the plaintiffs’ definition of the class thus fulfilling the final pre-requisite to class certification.

Accordingly, this Court finds that the trial court amply discussed the various prerequisites for the maintaining of a class action pursuant to La. C.C. P. art. 591(A), and how each of the criteria has been met in its reasons for judgment.

This Court also recognizes that the trial court has wide latitude in considerations that required an analysis of the facts relative to the prerequisites for class certification in a given case, and its decision on certification must be affirmed h ¿unless it is manifestly erroneous. Parry v. Administrators of Tulane Educational Fund, 740 So.2d at 212. Based on the bifurcated standard of review for class action certification enumerated in Watters v. Department of Social Services, 929 So.2d 267, 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. Accordingly we affirm the judgment of the trial court.

AFFIRMED.

      . Although the appellees are referred to in the caption as Rose and Tony Gudo, the actual spelling of their surname is Goudeau and will be referred to as such in this opinion.

      . Plaintiffs’ claim of unjust enrichment against all defendants was dismissed by the trial court on May 19, 2006 on defendants’ motion for summary judgment.

      . Rose Goudeau, Tony Goudeau; Dawn Daz-et, individually and for her minor child, Nicole Elizabeth Dazet; Elaine Wagener; Leola M. Ajan; Leona E. Falgout; Patricia Hurst; John S. Burk, Sr.; John S. Burk, Jr.; Judy A. Lynn; Susan Cook; Pamela M. Beach; Richard B. Beach, II; and Shari Beach.


author: MAX N. TOBIAS, JR., Judge.

text:
    ERNST CAFE, INC. v. Jeffrey LANDRY.
    No. 2007-CA-0126.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 5, 2007.

      Henry L. Klein, New Orleans, LA, for Plaintiff/Appellant.
    Kyle Schonekas, Andrea V. Timpa, Schonekas, Winsberg, Evans & McGoey, L.L.C., New Orleans, LA, for Defen-danVAppellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., and Judge Roland L. Belsome).
   MAX N. TOBIAS, JR., Judge.

hThe plaintiff/appellant, Ernst Café, Inc. (“Ernst Café”), has appealed from a judgment ordering it to pay costs and fees to receiver/appellee, Claude C. Lightfoot, Jr. (“Lightfoot”), and his attorneys, Schonekas, Winsberg, Evans, and McGoey, L.L.C. (collectively referred to as “Schone-kas”). The judgment equally divides the amount due between Ernst Café and Jeffrey Landry (“Landry”), who did not appeal the trial court’s judgment. For the reasons that follow, we affirm.

This case arose out of a dispute between Landry, the minority shareholder, and James M. Besselman, Jr. (“Besselman”), the majority shareholder of Ernst Café. Suit was filed by Ernst Café against Landry on 22 October 2004 seeking damages from Landry for mismanagement of the business and a declaration that the shareholder agreement, which purportedly sold 200 shares of the company to Landry, was null and void. On 3 February 2005, Landry answered the petition and requested the appointment of a temporary receiver. Ernst Café did not oppose, and actually consented to, the appointment of the receiver.

| aLightfoot was appointed as the temporary receiver of Ernst Café by the trial court pursuant to La. R.S. 12:151(0 to oversee the business pending a trial of the disputes between Ernst Café and Landry. In addition to appointing Lightfoot, the trial court prohibited Besselman and anyone else associated with Ernst Café from changing the affairs of the business or to control the company’s finances and accounts in any way without further order of the court.

When appointed, Lightfoot informed the court and the parties that his hourly rate was $250.00. Ernst Café did not object to this amount. Ernst Café initially cooperated with Lightfoot’s requests for information regarding its finances and business operations.

IsDespite repeated demands, complete financial records and accountings were not provided to Lightfoot. Lightfoot found questionable transactions for which he could not obtain adequate explanations. Accordingly, Lightfoot employed counsel to compel the production of documents and records and to pursue possible causes of action Ernst Café might have in connection with misappropriation of funds and property since his appointment. Lightfoot was authorized by statute to retain counsel. However, in an abundance of caution, Lightfoot sought and received court approval for the appointment of Schonekas as his counsel on 28 June 2005. Ernst Café never challenged the appointment.

Schonekas made written demand on Ernst Café for financial records, account-ings, and other information related to the café’s operations. The records provided indicated that there may have been a misappropriation of funds from the café in violation of the court’s previous order. A status conference was held on 2 August 2005 to discuss the problems Lightfoot was having in obtaining the documents necessary to protect Ernst Café.

Shortly after the status conference, Bes-selman purchased Landry’s shares in Ernst Café. Once the transaction was completed, ownership in the corporation was no longer in dispute and the receivership was not needed. The parties agreed to a termination of the receivership and discharge of Lightfoot as receiver by unopposed motion; Lightfoot was discharged on 4 November 2005. The agreement also relieved Lightfoot of any obligation to file reports of his receivership.

LLightfoot filed an application for fees and costs for himself and his counsel on 13 December 2005, seeking $7,750.00 for himself, and a total of $7,790.55 for Schonekas. The application for fees and costs was accompanied by detailed invoices and statements from the applicants.

After the application for fees and costs was filed, Ernst Café sought the production of Lightfoot’s entire file, to which Lightfoot, through counsel, objected. Ernst Café also sought to take Lightfoot’s deposition and filed a motion to compel discovery, which Lightfoot opposed. A hearing on the motion took place on 10 March 2006. The trial court, noting that Ernst Café did not timely object to the appointment of either Lightfoot or his counsel, denied the request for production of Lightfoot’s entire file, and limited Light-foot’s deposition to two hours and to questions regarding his invoices and bills. Ernst Café noticed, and then cancelled, Lightfoot’s deposition. Lightfoot and his counsel supplemented and increased the application for costs and fees to totals of $9,731.00 for Lightfoot and $18,965.43 for Schonekas.

The application for fees and costs was. heard by the trial court on 31 May 2006. A judgment with written reasons was rendered on 26 June 2006, awarding $7,700.00 to Lightfoot and $5,917.55 to his counsel and against Ernst Café and Landry. In its reasons for judgment, the trial court stated that Lightfoot admitted that the stock ownership dispute was resolved in August 2005; Lightfoot was discharged as temporary receiver on 4 November 2005. Thus, the trial court found that the fees and costs incurred by Lightfoot and Schonekas after August 2005 were not related to the proper operation of the corporation. On 7 July 2006, the judgment was clarified and- amended to hold that the obligation was divisible between Ernst Café, with each party to bear 50% of the total amount due.

| sErnst Café has assigned three errors for review. First, it contends that the trial court erred in awarding fees and costs because Lightfoot failed or refused to file his receivership report as mandated by La. R.S. 12:152(C). Second, it argues that Ernst Café should not be assessed with any fees or costs because it was not the party responsible for causing an unnecessary receivership, but was responsible for having the receivership dismissed. Lastly, Ernst Café maintains that all the fees and costs should have been assessed against the “guilty party,” (Landry), and the bond he posted pursuant to court order when the receivership was established.

Under La. R.S. 12:151(D), the trial court must exercise its discretion in setting a reasonable fee under the circumstances of a particular case. Depuy v. Riley, 492 So.2d 215, 217 (La.App. 4 Cir.1986).

We find the first assignment of error to be without merit. The testimony revealed that Lightfoot was precluded from filing a report, in part, due to the failure of Ernst Café to timely provide all requested records and explanations for various items that caused Lightfoot concern. Further, when the receivership was concluded, the parties agreed that the duties of the receiver were terminated, including the duty to file any required reports. Thus, we find that this assignment of error does not preclude the trial court’s award of fees and costs to Light-foot and his counsel.

|fiNext, Ernst Café contends that it is not responsible for any part of the fees and costs awarded to Lightfoot and Schonekas because it did not cause the “unnecessary” receivership and was the party which had the receivership dismissed. Ernst Café cites no legal authority to support its position. We further note that Ernst Café neither objected to the receivership nor the appointment of counsel. Under these circumstances, we find that Ernst Café is precluded from arguing that the receivership was unnecessary. It is well settled that the order appointing or refusing to appoint a receiver is a final judgment. Beuhler v. Beuhler Realty Co., 155 La. 319, 322, 99 So. 276, 277 (1924). We find, therefore, that this assignment of error lacks merit.

Finally, Ernst Café argues that the entirety of the costs and fees awarded Lightfoot and Schonekas should be assessed against Landry and his surety. Again, this assignment of error has no merit. The record contains no evidence that Ernst Café proved that Landry was the “guilty party.” In addition, because the corporation sat by quietly and permitted Lightfoot to administer the estate without objection, it is liable for part of the costs and fees assessed by the trial court. International Harvester Co. of America v. Union Irrigation Co., 150 La. 405, 421-22, 90 So. 741, 747 (La.1920).

In sum, we find that the trial court neither erred nor abused its discretion. Based on the foregoing, we affirm the judgment of the trial court.

AFFIRMED.

      . La. R.S. 12:151 states in pertinent part:
      A. The court may, after trial, appoint a receiver to take charge of the corporation’s property when it is made to appear, in a proceeding instituted against the corporation:

      (5) By any shareholder, that a majority of the shareholders are violating the rights of minority shareholders and endangering their interests; or

        (6) By a shareholder or shareholders, severally or jointly, who have been registered owners for a period of not less than six months of not less than twenty per cent of the entire outstanding shares of the corporation, that either of the grounds for involuntary dissolution set forth in R.S. 12:143(A)(4) and (5) exists.

      C. The court may, ex parte, pending trial, (1) appoint a temporary receiver whose authority shall cease upon appointment of a receiver after trial or upon dismissal of the proceeding, (2) on the applicant furnishing security in the amount fixed by the court, enjoin the corporation and its directors, officers, agents and shareholders from disposing of its property or changing the status of its affairs to the injury of the applicant, and (3) stay proceedings by other persons against the corporation’s property.
      D. If a receiver is appointed, after trial, on application by a shareholder or shareholders, the court shall make a reasonable allowance for the fees of the applicants’ counsel, which, together with their other costs, shall be taxed as costs and paid out of the corporate assets. The corporation or the receiver shall have the right to recover the amount of such costs from any directors, officers or shareholders whose conduct was the cause of the proceeding under subsection A(l) or (5) of this section.

      . See La. R.S. 12:146(C), La. R.S.12:145(C)(10), made applicable to receiv-erships under La. R.S. 12:152(B).

      . La. R.S. 12:152(C) states:
      C. The receiver shall file with the court, quarterly, or oftener if required by the court, an accurate statement showing the condition of the corporation's business, and shall file, within ninety days after the close of the corporation's fiscal year, a balance sheet as of the last day of, and a combined statement of income and earned surplus for, such year. The annual financial statements shall be audited by an independent certified public accountant if required by the court.

      . Despite Ernst Café’s claim that it objected “vehemently” to the receivership, this statement is not supported by the record on appeal. In fact, at the trial of the application for fees and costs, the transcript reflects that counsel for Ernst Café stated that he did not want to attack the appointment of the receiver and did not attack it when it happened.


author: TERRI F. LOVE, Judge.

text:
    Calvin L. GORDON, Sr. v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2007-CA-0262.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 2007.
    Rehearing Denied Oct. 17, 2007.

      Madro Bandaries, Madro Bandaries, P.L.C., Desiree M. Charbonnet, Charbon-net and Charbonnet, Gregory P. DiLeo New Orleans, LA, for Calvin Gordon, Sr.
    John W. Waters, Jr., Christopher M. G’sell, Bienvenu, Foster, Ryan & O’Ban-non, LLC, Randall L. Kleinman, Hulse & Wanek, New Orleans, LA, for Louisiana Citizens Property Insurance Corporation.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

|! This appeal arises from a request for a temporary restraining order, declaratory judgment, and injunction. Calvin Gordon, Sr. asserts that he does not owe the Louisiana Citizens Property Insurance Corporation’s increased insurance policy premium for the 2007 calendar year because his insurance claims from Hurricanes Katrina and Rita have not been settled to his satisfaction. The trial court denied the temporary restraining order and granted the preliminary injunction. For the following reasons, we find that venue is not proper in Orleans Parish. Therefore, we vacate and remand for transfer to East Baton Rouge Parish, as that is the proper venue.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Calvin Gordon, Sr. (“Mr. Gordon”) was insured by the Louisiana Citizens Property Insurance Corporation (“LCPIC”) during Hurricanes Katrina and Rita. Mr. Gordon filed an insurance claim for damage to his property, which he estimated to be around $86,787.36. LCPIC paid Mr. Gordon $19,072. Mr. ^Gordon’s attempt to get further reimbursement from LCPIC failed. Mr. Gordon received notice of a premium rate increase for the 2006 calendar year, which he did not believe he should pay because his damage claim had not been settled to his satisfaction.

Mr. Gordon filed a petition for declaratory judgment and injunction seeking a temporary restraining order (“TRO”) to prohibit the LCPIC from increasing Mr. Gordon’s premium asserting that the LCPIC was insolvent. The trial court .denied Mr. Gordon’s TRO request and set a preliminary injunction hearing date. LCPIC filed exceptions to Mr. Gordon’s petition including the exceptions of: improper venue; lack of subject matter jurisdiction; prematurity; nonjoinder of parties; lack of procedural capacity; and no right or cause of action. LCPIC then filed a counterclaim asserting it was entitled to security to indemnify it for payment of costs sustained if the trial court granted the preliminary injunction.

The trial court granted LCPIC’s exceptions of no right or cause of action and lack of procedural capacity on the issue of Mr. Gordon’s attempt to maintain a class action based on the allegations in his petition. The trial court denied the exceptions of improper venue, lack of subject matter jurisdiction, prematurity, and nonjoinder of parties. Further, the trial court granted Mr. Gordon’s preliminary injunction and prohibited LCPIC from increasing Mr. Gordon’s premium “until his claim for property damages as a result of Hurricanes Katrina and Rita have been resolved.”

The LCPIC’s timely appeal followed asserting that the trial court erred by finding that: 1) Orleans Parish was a proper venue; 2) it possessed subject matter jurisdiction; 3) Mr. Gordon’s lawsuit was not premature; 4) Mr. Gordon has a cause of action; and 5) by issuing a preliminary injunction because Mr. Gordon |s“has not, and will not, suffer irreparable harm as a result of paying more premium, the surcharge for the ‘regular’ assessment and the ‘emergency’ assessment.”

STANDARD OF REVIEW

The exception of improper venue is a question of law, which warrants a de novo review by the appellate court. Premier Dodge, L.L.C. v. Perrilloux, 05-0554, pp. 2-3 (La.App. 4 Cir. 1/25/06), 926 So.2d 576, 577, citing Crawford v. Blue Cross and Blue Shield of La., 00-2026, p. 4 (La.App. 4 Cir. 12/5/01), 814 So.2d 574, 577.

VENUE

The general venue provision applicable to residential property insurance at issue in the case sub judice provides that an action “may be brought in the parish where the loss occurred or the insured is domiciled.” La. C.C.P. art 76. The trial court relied on La. C.C.P. art. 76 in determining that venue was proper in Orleans Parish. The trial court stated: “if this suit is on plaintiffs claim for property damages under the policy it would fall within the confines of this article.” However, this lawsuit is not a lawsuit regarding Mr. Gordon’s claim for property damages. In the case sub judice, Mr. Gordon asserts he is not required to pay the increased premium because he believes the LCPIC owes him additional money.

The LCPIC, created by La. R.S. 22:1430.2, is a non-profit corporation “whose domicile for purpose of suit shall be East Baton Rouge Parish, Louisiana.” La. R.S. 22:1430.2. “The corporation shall be considered a political instrumentality of the state” and “is not and shall not be deemed a department, unit or agency of the state.” La. R.S. 22:1430.17. However, the LCPIC is a political subdivision, which Louisiana law defines as “[a]ny ... corporation ... and other public or governmental body of any kind which is not a state agency.” La. R.S. L13:5102(B)(1). As such, the proper venue is provided in La. R.S. 13:5104, which states, in pertinent part:

[a]ll suits filed against a political subdivision of the state or against an officer or employee of a political subdivision for conduct arising out of the discharge of his official duties or within the course and scope of his employment shall be instituted before the district court of the judicial district in which the political subdivision is located or in the district court having jurisdiction in the parish in which the cause of action arises.

La. R.S. 13:5104(B). Therefore, East Baton Rouge Parish, where the LCPIC is domiciled, or the parish where the cause of action arose is the proper venue for Mr. Gordon’s lawsuit regarding the payment of the increased premium.

The Louisiana Supreme Court recently-held that La. R.S. 13:5104(A) superseded the general venue provisions as contained in La. C.C.P. art. 42, and 71-85. Colvin v. La. Patient’s Comp. Fund Oversight Bd., 06-1104, p. 1 (La.1/17/07), 947 So.2d 15, 16. As noted above, La. R.S. 13:5104(B) contains the word “shall,” which makes the provision mandatory with “no other venue provisions or exceptions” available as opposed to La. R.S. 13:5104(A), which states “may.” Id. at p. 4, 947 So.2d at 19.

Although, Colvin discusses La. R.S. 13:5104(A) regarding state agencies, we find the Louisiana Supreme Court’s discussion of determining where a cause of action arises analogous to the same examination regarding political subdivisions pursuant to La. R.S. 13:5104(B). Colvin adopted the test that the cause of action arises in the place “where the operative facts occurred which support plaintiffs entitlement to recovery.” 06-1104, p. 13, 947 So.2d at 24, quoting Avenal v. State, Dep’t of Natural Res., 95-0836 (La.App. 4 Cir. 11/30/95), 668 So.2d 1150, 1151. Further, the Louisiana Supreme Court noted that “several courts have held that |fiwhere a state agency’s ministerial or administrative actions are called into question, East Baton Rouge offers the only appropriate forum. ...” Colvin, 06-1104, p. 14, 947 So.2d at 24.

The Rating Commission issued decisions regarding Mr. Gordon’s premium in East Baton Rouge Parish. The administrative action of increasing the LCPIC’s premiums occurred in East Baton Rouge Parish. The Department of Insurance, the Rating Commission, and the Louisiana State Bond Commission, which certify, verify, and approve assessments of insurance bonds, are located in East Baton Rouge Parish. Considering the activities involved in increasing Mr. Gordon’s premium, which his petition asserts he does not have to pay, all occurred in East Baton Rouge Parish, we find that Mr. Gordon’s cause of action arose in East Baton Rouge Parish. Therefore, because the domicile of the LCPIC is East Baton Rouge Parish and Mr. Gordon’s cause of action arose in East Baton Rouge Parish, we find that the proper venue is East Baton Rouge Parish.

REMAINING ASSIGNMENTS OF ERROR

We pretermit the discussion of the LCPIC’s remaining assignments of error, as we find that East Baton Rouge Parish is the proper venue.

DECREE

We find that East Baton Rouge Parish is the proper venue in the case sub judice; therefore, we vacate and remand for transfer to the court of proper venue.

VACATED AND REMANDED.

      . The petition states that the estimated damages were $86,787.36. However, Mr. Gordon’s affidavit states that his damages included $67,715.36, not including around $10,000 for living expenses and contents.