author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Robert Andrew BOURGEOIS; Dominick Epifano Danna Gerald Ray Kelley, Sr.; and Phil Carl Robichaux, et al. v. A.P. GREEN INDUSTRIES, INC., et al.
    No. 06-CA-87.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 28, 2006.
    See also 877 So.2d 991.

      Mickey P. Landry, Frank J. Swarr, David R. Cannella, New Orleans, Louisiana, for Plaintiff/Appellant.
    Steven J. Irwin, Blaine A. Moore, Louis O. Oubre, Madeleine Fischer, New Orleans, Louisiana, Leon Gary, Jr., William L. Schuette, Jr., Baton Rouge, Louisiana, Gary A. Lee, Richard M. Perles, Carl J. Hebert, Kirk N. Aurandt, New Orleans, Louisiana, Brian C. Bossier, Edwin A. El-linghausen, III, Erin H. Boyd, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

_j¿Facts and Procedural History

Plaintiffs, former employees of Avondale Shipyards, Inc. (“Avondale”), initiated this suit on behalf of a proposed class of current and former Avondale employees who have allegedly been significantly exposed to asbestos prior to 1976 during their employment and who have not been diagnosed with an asbestos-related disease. Named plaintiffs are former Avondale employees, Robert Andrew Bourgeois (“Bourgeois”), Phil Carl Robieheaux (“Robi-cheaux”), and Dominick Danna (“Danna”). Plaintiffs initially filed suit against defendants Avondale, various Executive Officers of Avondale, and several manufacturers, sellers, and/or suppliers of asbestos and asbestos containing products. Plaintiffs subsequently dismissed all defendants with the exception of Avondale and the various Executive Officers of Avondale. Defendants then filed third-party demands against the several manufacturers, sellers, and/or suppliers of asbestos and asbestos-containing insulation products. Plaintiffs state that as a result of this alleged significant exposure to asbestos, they now need regular medical examinations for the early |4detection and treatment of possible latent asbestos-related diseases. Plaintiffs seek the establishment of a judicially administered fund for the costs of medical monitoring.

The trial court granted defendants’ exceptions of no cause of action and this Court affirmed. The Louisiana Supreme Court granted certiorari and reversed, finding that the reasonable cost of medical monitoring is a compensable item of damage under La. C.C. art. 2315 , provided plaintiffs prove certain criteria. Subsequently, Plaintiffs filed a Motion for Summary Class Certification, which the trial court denied. For the following reasons, we affirm.

The trial court held a certification hearing that revealed the following testimony:

Robieheaux, a 61 year old former employee of Avondale, testified that he worked at Avondale from 1962-1972. He stated that he worked primarily in the warehouses of the Westwego and Main Yards at Avondale that supplied all of the asbestos containing products to the shipyard. He stated he handled asbestos-containing products directly for approximately six years. Sometimes he would leave the warehouse and work directly on the ships. Robieheaux testified that he would like to be monitored for asbestos related diseases and that he understood that he would be a class representative for other Avondale employees similarly situated.

|,J)anna, a 61 year old former employee of Avondale, testified that he worked at Avondale from 1965-1972. He stated that he primarily worked in the Main Yard at Avondale, on Wet Dock # 3 mainly and a brief time on Wet Dock # 1, as a tacker welder then as a shipfitter, and then as a supervisor. He also stated that he performed many duties on the ships in all areas of the ships, such as the engine rooms and on the main decks.

Danna further testified that, prior to his employment with Avondale, he worked for a boat company, where he was also exposed to asbestos. Further, Danna smoked one and a half packs of cigarettes a day for approximately 12-15 years. Danna testified that he does not smoke now and that he receives yearly chest x-rays. Danna testified that he is willing to be a class representative.

Danny Joyce, a safety consultant, testified and was accepted as an expert in industrial hygiene and in the use and regulation of asbestos products. Mr. Joyce testified that he worked for Avondale from 1980-1991 as an industrial hygienist and then as the Director of Health and Safety. He stated that his job at Avondale consisted of air monitoring for presence of asbestos fibers, conducting interviews for job hazard analysis, and helping Avondale comply with the current Occupational Safety and Health Administration standards. Mr. Joyce testified that the levels for permissible asbestos exposure changed drastically over the years from 5 million particles per cubic foot in the 1960’s to 2 fibers per cubic centimeter by 1976.

Mr. Joyce testified that Avondale is approximately half a mile wide and approximately three-quarters of a mile in length. He stated that there are separate facilities and divisions within Avondale and that the different facilities at Avondale had different levels of exposure to asbestos, if any, and handled different asbestos products. Mr. Joyce testified that he conducted interviews of Avondale employees [fito determine which employees were eligible to participate in the medical surveillance program that Avondale provides for those employees who may be exposed to greater than permitted levels of asbestos on the average of 30 days out of the year. He stated that the exposure would differ greatly among the different tasks, job descriptions, and job locations of the employees. Mr. Joyce testified that because of the many variables that may affect exposure levels, a series of questions would need to be answered to determine if someone would have been exposed to asbestos. For example, Mr. Joyce testified that different welders work in different areas and different stages of the shipbuilding process. He testified that likely only the welders working during the final stages of the shipbuilding process would have been exposed to asbestos. Similarly, some pipe-fitters may have been exposed to asbestos containing products, but only pipefitters who worked in certain facilities that carried those products. Further, while insulators would be the most likely to have been exposed to asbestos, some divisions or facilities of Avondale only used fiberglass insulation, so those insulators may not have been exposed to asbestos at all. Avondale has several warehouses, some of which stored asbestos-containing products and some of which contained no asbestos-containing products. Therefore, to determine if a warehouseman employed by Avondale was exposed, it would need to be determined which warehouse and at which facility he worked.

Mr. Joyce testified that the environment at Avondale is a dynamic one and that at any given time there would be different people of many crafts working on different ships being constructed in different places using different materials. Mr. Joyce testified that he would not know how to determine if an employee was exposed to significant levels of asbestos, if any, without conducting a full interview to determine their craft, daily tasks, which facility or facilities he/she worked, and the relevant employment period for that employee.

|7Pr. Jones and Dr. Emory, experts in pulmonary medicine, testified that “significant exposure” is not a known medical term to measure asbestos exposure. Further, their testimony revealed that a common person may not understand what “significant exposure” is because one may not know when an exposure becomes “significant”. They testified that this factor would make it difficult for one to know if he or she would fit the description of the class.

Following the certification hearing, the parties requested time to review the transcripts and to file post-hearing memoran-da. The trial judge took the matter under advisement and scheduled oral arguments. On January 5, 2005, the parties appeared before the court for oral arguments. Thereafter, the trial judge gave his ruling and oral reasons for judgment, denying Plaintiffs’ Motion for Summary Class Certification.

Standard of Review

The trial court is granted wide discretion in determining class action certification and such decision shall not be overturned on appeal absent finding of manifest error or abuse of discretion. Clement v. Occidental Chemical Corporation, 97-246 (La.App. 5 Cir. 9/17/97), 699 So.2d 1110, 1114; Schexnayder v. Entergy Louisiana, Inc., 04-636 (La.App. 5 Cir. 3/29/05), 899 So.2d 107, 113. Plaintiffs assert in their brief that the trial judge applied the incorrect law, and, therefore, this court should conduct a de novo review. Plaintiffs note that the trial judge applied the post-amendment version of La. C.C.P. art. 591. Acts 1997, No. 839, § 1 revised the class action provisions and the legislation amended La. C.C.P. art. 591. The provisions of the Act are only applicable to actions filed on or after July 1, 1997. Because this suit was filed in 1996, the pre-amendment law is applicable to this case. Plaintiffs further assert that the trial | {judge misinterpreted the findings of this Court’s decision in Bourgeois v. A.P. Green Industries, 02-713 (La.App. 5 Cir. 2/25/03), 841 So.2d 902.

Where a legal error of a trial court interdicts the fact-finding process, the manifest error standard is no longer applicable. Hughes v. New Orleans Saints & LWCC, 05-712 (La.App. 5 Cir. 2/27/06), 924 So.2d 1086. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Id. at 1091. Legal errors are prejudicial when they materially affect the outcome or deprive a party of substantial rights. Id. When a legal error of the trial court materially affects the outcome or deprives a party of substantial rights, the appellate court conducts a de novo review. Id. De novo review should be limited to consequential legal errors. Succession of Cyprian A. Sporl, Jr., 04-1373 (La.App. 4 Cir. 4/6/05), 900 So.2d 1054, 1058.

Analysis

Interpretation of Previous Bourgeois Decision

Regarding the trial judge’s interpretation of this Court’s previous decision, we note that the trial judge misinterpreted the findings of Bourgeois . The trial judge spoke incorrectly when he stated that only those workers employed before 1952 would have a cause of action. This Court in Bourgeois v. A.P. Green Industries, 02-713 (La.App. 5 Cir. 2/25/03), 841 So.2d 902, found that, in addition to those workers employed prior to 1952, those workers employed prior to 1976 also have a negligence claim against Avondale’s Executive Officers. However, this finding applies to the numerosity requirement; the trial court found Plaintiffs |asatisfied this requirement and, therefore, the misinterpretation does not substantially affect the outcome of the case or deprive any party of substantial rights.

Analysis of Class Action Articles (pre and post amendment)

The following analysis of the class certification requirements pre and post amendment will demonstrate that the trial judge did not apply incorrect principles of law and that the application of the post-amendment article in this case did not prejudice the outcome or deprive the parties of any substantial rights.

The narrow issue before this court is class certification. The Louisiana Supreme Court has extensively interpreted our class action certification Articles in several decisions. See Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La.9/9/97), 703 So.2d 542, 547-548; Banks v. New York Life Insurance Co., 98-0551 (La.7/2/99), 737 So.2d 1275; Stevens v. Board of Trustees, 309 So.2d 144 (La.1975); McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612 (La.1984); Williams v. State of Louisiana, 350 So.2d 131 (La.1977). “The class action is a nontraditional litigation procedure permitting a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common or general interest to persons so numerous as to make it impracticable to bring them all before the court.” Ford, 703 So.2d at 545, citing Herbert B. Newberg & Alba Conte, 1 Newberg on Class Actions, § 1.01, p. 1-2, 1-3 (3d ed.1992). The purpose of the class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to the representatives who bring the action, but to all others who are “similarly situated”; the objective of the action is the achievement of economies of time, effort, and expense. Id.; Clement, 699 So.2d at 1113.

|1flThe Louisiana Supreme Court has interpreted pre-amendment La. C.C.P. articles 591 and 592 to find that the basic requirements for the availability of class action certification are:

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

See McCastle, 456 So.2d at 616; Stevens, 309 So.2d at 148-150; Williams, 350 So.2d at 133.

Therefore, a class action could be certified only if the numerosity, adequacy of representation, and commonality requirements were met. All three elements must be satisfied to achieve class certification and it is well settled that it is plaintiffs’ burden to prove each element, by a preponderance of the evidence. Clement, 699 So.2d at 1113.

The first requirement is “nu-merosity.” This requirement is not satisfied simply by alleging a large number of potential claimants. Id. While all potential claimants do not need to be identified, a definable group of aggrieved persons lushould be established. Id. A person should be able to determine readily if he or she is a member of the class. A class definition is the framework against which the court can apply the statutory requirements to determine if certification is appropriate. “The purpose of the requirement that the class be capable of definition is to ensure that the proposed class is not amorphous, vague, or indeterminate.” Clement, 699 So.2d at 1113. Therefore, as part of the numerosity requirement, the requirement that the class be capable of definition was formed jurisprudentially.

The second requirement serves to ensure adequate representation of the absent class members by requiring that one or more of the class members will represent the interests of the entire class adequately. This element requires that the proposed class representatives prove that their claims are “a cross-section of, or typical of, the claims of all class members.” Billieson v. City of New Orleans, 1998-1232 (La.App. 4 Cir. 3/3/99), 729 So.2d 146, 155.

The third requirement is that plaintiffs must establish that a “common character” exists; plaintiffs must show that questions of law or fact common to the members of the class predominate over any questions affecting the individual class members. However, the existence of common questions of law or fact alone does not justify class action certification. Banks, 737 So.2d at 1280.

In addition to the requirements listed in La. C.C.P. art. 591 and 592, the Louisiana Supreme Court, through the aforementioned decisions, provided additional factors that a trial court should consider when determining if a proposed action is proper for class certification, such as those factors listed in Federal Rule 23(b). McCastle, 456 So.2d at 617. In addition to the factors presented in Federal |12Rule 23(b), the Court also suggested The Uniform Class Action Act, Section 3(a) for use and guidance in determining proper class certification. Id.

Another consideration for class certification is that “[t]he evidence as to the tort itself must be identical for each claim.” Williams, 350 So.2d at 135. If the evidence presented will likely require plaintiff-by-plaintiff adjudication of liability issues, thereby leading to a “mini-trial” for each plaintiff, the court must consider whether that issue militates against a finding of common character and the superiority of the class action procedure. Banks, 737 So.2d at 1281.

h3Acts 1997, No. 839, § 1 amended the class action certification articles. The amended article 591(A) provides:

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

La. C.C.P. art. 591(A) requires numerosity, commonality, typicality, adequate representation, and a class that may be objectively defined. All requirements provided in paragraph (A) must be satisfied to achieve class certification. The pre-amendment article, as stated above, also required that the party seeking certification satisfy the numerosity, commonality, and adequate | ^representation requirements. Although the pre-amendment article did not specifically provide for a typicality requirement, jurisprudence suggested that the proposed class representatives must prove that their claims are “a cross-section of, or typical of, the claims of all class members.” Billieson v. City of New Orleans, 1998-1232 (La.App. 4 Cir. 3/3/99), 729 So.2d 146, 155 (cited with approval in Defraites v. State Farm, 03-1081 (La.App. 5 Cir. 1/27/04), 864 So.2d 254, 259).

Plaintiffs argue that the applicable law in this case does not require that the class be objectively defined as required by La. C.C.P. art. 591 in its current form. The current article provides that “[T]he 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.” As discussed previously, the pre-amendment law jurisprudentially formed the requirement that the class be defined and “[T]he purpose of the requirement that the class be capable of definition is to ensure that the proposed class is not amorphous, vague, or indeterminate.” Clement, 699 So.2d at 1113. Therefore, the pre-amendment law also required that the proposed class be capable of definition. The current requirement also states that the class is to be defined for the purpose of the conclusiveness of any judgment that may be rendered in the case. This requirement complies with the main purpose of the class action procedure: to achieve a res judicata effect for all potential class members. The pre-amendment law is consistent with the post-amendment requirement that the class be capable of definition.

Further, the amended portions of article 591 more closely track the language of Federal Rule 23(b). The Louisiana Supreme Court has encouraged lower courts to follow Federal Rule 23(b) as a guide when determining if class certification is appropriate. The amended article 591 also appears to codify much of the Louisiana | jurisprudence, as set forth in McCastle v. Rollins. See La. C.C.P. art. 591, Editor’s Notes. Therefore, the post-amendment requirements provided in La. C.C.P. art. 591(A) are also required under the pre-amendment version of the article, applicable in this case. Because the pre-amendment requirements applicable in this case are also required in the current article cited by the trial judge, we find that the application of the current La. C.C.P. art. 591(A) did not affect the outcome or prejudice the substantive rights of any party. Therefore, we do not conduct a de novo review of the trial court’s ruling denying class certification. Rather, the trial court is afforded great discretion in class certification and, unless it has committed manifest error or abuse of discretion, we must affirm its decision. Clement, 699 So.2d at 1114.

The Findings of the Trial Court

The trial judge addressed each requirement separately. First, he found that the Plaintiffs satisfied the numerosity requirement because of the number of workers employed by Avondale since 1952 who may have been significantly exposed to asbestos; however, the trial judge found that Plaintiffs failed to meet their burden of proof in satisfying the other requirements.

Second, the trial judge found that the Plaintiffs did not satisfy the commonality requirement, finding that individual issues predominated in this case. The trial judge noted Ford v. Murphy Oil, a Louisiana Supreme Court case. In Ford v. Murphy Oil, U.S.A., Inc., plaintiffs, individuals and property owners, sought class certification for damages allegedly resulting from emissions of pollutants from four petrochemical plants near the residents’ area. The emissions in Ford were from four different chemical plants in the area and the exposure |1Roccurred over several years. The Louisiana Supreme Court in Ford denied class certification finding that “each class member will necessarily have to offer different facts to establish that certain defendants’ emissions ... caused them damage ... [T]he causation issue is even more complicated ... considering each plaintiffs unique habits, exposures, length of exposures, medications, medical conditions, employment, and location of residence or business.” The Court concluded stating that “This case simply strays too far from the ‘true’ class action that the Legislature intended to allow.” Ford, 703 So.2d at 549. The Court found that there were too many individual issues that complicated the action and made class certification inappropriate.

The trial judge found the instant case similar because the court would need to consider the circumstances of each employee’s working environment. Further, the judge states that the question of whether a former employee had been significantly exposed to asbestos was not a common one, but an individual one; each plaintiff would have to prove that he/she satisfies the criteria to state a valid cause of action for medical monitoring as set forth by the Louisiana Supreme Court in Bourgeois. The trial judge notes the expert testimony of Dr. Jones that discussed the evidence needed from each plaintiff to prove entitlement to medical monitoring. Dr. Jones testified that “what they did and where they did it is important.” The trial judge agreed that the specific job and location of each employee is important. Redefinition of the proposed class to several smaller, more specifically defined classes may address this issue. The trial judge found that the class action procedure would not be superior to joinder of individual claims in this 117case because each plaintiff would need to prove certain criteria and, therefore, individual questions predominated over any common questions of law or fact.

Thirdly, the trial judge found that Plaintiffs did not satisfy their burden of proof with regard to the typicality requirement and the adequate representation requirement. Regarding typicality, the trial judge found that, based on the previous Bourgeois decision of this Court, the remedies for each plaintiff may differ, depending on the time period of employment. Therefore, each plaintiffs claim would not be typical of the entire class as defined because of the different remedies determined by the time period of employment. Regarding the adequate representation requirement, the trial judge states that Bourgeois, the first named plaintiff in this ease, was not present at the certification hearing; the trial judge found Bourgeois inadequate as a class representative. Further, the trial judge notes that the named Plaintiffs, Robieheaux, Danna, and Bourgeois, are not representative of any workers employed by Avondale prior to 1952. Therefore, because all potential class members were not represented, the trial judge found, and this Court agrees, that the Plaintiffs did not fulfill the adequate representation requirement.

Lastly, the trial judge found that the class, as defined, did not satisfy the class definition requirement. In his oral reasons, the trial judge expressed concern that, as it is defined, an ex-worker may not be able to readily determine if he/she is a member of the class. He found that the term “significant exposure” is not a definable term or a term associated with asbestos. The trial judge stated that the [ isterm makes it difficult to distinguish the members of the class from the thousands of former Avondale workers who may not have been exposed; further, he found that ex-workers may have difficulty understanding whether they are members of the proposed class. The trial judge also expressed concern regarding the res judica-ta effect of any judgment made in this case and the possibility of that judgment infringing upon rights of workers who may not enter the class because they do not understand the criteria. The purpose of the class definition requirement is to ensure that the class is not amorphous, indeterminate, or vague, so that any potential class members can readily determine if he/she is a member of the class. Clement, 699 So.2d at 1113. The trial judge found that the Plaintiffs failed to satisfy the definition requirement. Again, multiple classes more narrowly and specifically defined may overcome this issue.

Review of Judgment

Class action is proper in those cases in which it would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated without sacrificing procedural fairness or bringing about other undesirable results. Id. at 1280. The party seeking certification must show that the class action procedure is superior to other adjudicatory methods. Id.

The trial court discussed Mr. Joyce’s testimony that each plaintiff would need to prove “significant exposure,” which may require different evidence from each plaintiff of when and where he or she worked; further, the specific time of employment may be necessary to determine what a “significant exposure” was at the time of plaintiffs employment, as the permissible levels changed over the years.

The testimony in the case before us revealed that each facility at Avondale used different asbestos containing products, which different third-party defendants BflUsed or provided, at different times. Avondale is a dynamic company with several different facilities that contain warehouses, several shops of sheet metal and other materials, loading docks, offices, many ships that are worksites, and several different shipbuilding yards. The job description of each employee would need to be examined to discover which products he or she may have been exposed to and if the exposure could be labeled “significant”, so to necessitate medical monitoring. Further, the different time periods of employment will determine which possible remedy applies for each employee and may affect the liability of each defendant. Moreover, other factors may become relevant and affect the liability issues, such as a history of cigarette smoking and past similar employment.

The trial judge found that Plaintiffs failed to meet the requirements for class certification and determined that the class action procedure was not superior to other adjudicatory methods. Applying the factors set forth in La. C.C.P. articles 591-592 and Federal Rule 23 and the jurisprudence interpreting our state articles and the federal rule, we find that, as the class is presently defined, the trial judge did not abuse his discretion in denying Plaintiffs’ Motion for Summary Class Certification. Decertification will not keep these plaintiffs out of court because individual actions, consolidated actions, or a series of more specifically defined class actions are still available.

Evidentiary Rulings

The Plaintiffs assign as errors of the trial court three evidentiary rulings. First, Plaintiffs state that the trial court erred in denying to admit into evidence the deposition of named plaintiff, Bourgeois, who did not attend the class certification hearing. Plaintiffs stated to the court that Bourgeois is blind and could not get transportation to the hearing because he now lives in Ocean Springs, Mississippi. Plaintiffs did not provide an affidavit presenting these facts; Plaintiffs simply told |¡>nthe trial court that, according to the internet, Bourgeois’ residence is 103 miles from the courthouse.

La. C.C.P. art. 1450 addresses the use of depositions and provides:

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(a) That the witness is unavailable;
(b) That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition

Therefore, the deposition of a party may be used if that party can show that he or she meets the criteria set forth in La. C.C.P. art. 1450. However, hearsay evidence may not be considered in the judicial inquiry of a witness’ unavailability. Reine v. Grillot, 505 So.2d 1179 (La.App. 5 Cir.1987); Wheeler v. New Orleans Public Service, Inc., 573 So.2d 1237 (La.App. 4 Cir.1991); Bland v. Interstate Fire and Casualty Co., 311 So.2d 480 (La.App. 4 Cir.1975). A party is not legally “unavailable” as a witness simply because he eschews the trial. Hoy v. Gilbert, 98-1565 (La.3/2/99), 754 So.2d 207; Dickens v. Commercial Union Ins. Co., 1999-0698 (La.App. 1 Cir. 6/23/00), 762 So.2d 1193. Additionally, a party whose absence from trial is attributable to his choice to be out of state on the date of trial is considered to have procured his own absence. Wehbe v. Waguespack, 98-475 (La.App. 5 Cir. 10/28/98), 720 So.2d 1267, writs denied, 98-2907 (La.1/15/99), 736 So.2d 211 and 98-2970 (La.1/15/99), 736 So.2d 213; Bruins v. United States Fleet Leasing, Inc., 430 So.2d 386 (La.App. 3 Cir.1983).

The trial court has much discretion in determining whether to allow the use of deposition testimony at trial, and its decision will not be disturbed upon review in the absence of an abuse of that discretion. State in the Interest of Bordelon v. Guichard, 94-1795 (La.App. 1 Cir. 5/5/95), 655 So.2d 1371, 1378, writ denied, 95-1405 (La.9/15/95); 660 So.2d 454. The trial court further has wide discretion in 121 determining a witness’ unavailability. Flannery v. Tastee Donuts, Inc., 529 So.2d 1360 (La.App. 5 Cir.1988).

Boúrgeois is the first named plaintiff who claims a desire to represent absent members of a proposed class of people in this case. The only evidence presented to the court to prove Bourgeois’ unavailability was hearsay evidence that the Plaintiffs’ attorney presented. Because the statements made by Plaintiffs’ attorney are not sufficient evidence and may not be considered by the trial judge, we find the trial judge did not abuse his discretion in sustaining defendant’s objection to the admittance of Bourgeois’ deposition.

Second, Plaintiffs state that the trial court erred in not admitting into evidence a brochure describing the Port-Allegheny Asbestos Health Program, a monitoring program conducted by Pittsburgh-Corning, an asbestos product manufacturer not involved in this case. The Defendants objected to its admission as hearsay. Plaintiffs stated that it was admissible under the business record exception to the hearsay rule, discussed in La. C.E. art. 803(6). However, under Art. 803(6), it is essential that a custodian or other qualified witness testimonially explain the record-keeping procedures of the business and thus lay the foundation for the admissibility of the records. Ruddock v. Jefferson Parish Fire Civil Service Bd., 96-831 (La.App. 5 Cir. 1/28/97), 688 So.2d 112. In the instant case, there was no testimony presented to lay a proper foundation for the admission of the brochure. Therefore, the trial court did not err in sustaining defendant’s objection to the admittance of the brochure.

Third, Plaintiffs state that the trial court erred in denying admittance of an Avondale questionnaire used to determine if an employee is eligible for its pulmonary medical monitoring program. Plaintiffs presented the Avondale questionnaire during oral arguments on January 5, 2005. The trial court held the ^certification hearing on July 21 and July 22, 2004 and then took the matter under advisement. No written motions to introduce the questionnaire were filed prior to the oral arguments. All parties presented their arguments and rested their cases on July 22, 2004. In sustaining defendants’ objection, the trial judge noted that the purpose of the January 5, 2005 court date was for the parties to present oral arguments and that the hearing on class certification was complete. The record evidences that all parties understood that the certification hearing was complete on July 22, 2004; Plaintiffs’ attorney stated, “The record is complete. I rest.”

La.C.C.P. arts. 1631 and 1632 give discretion to the trial judge to control the order of trial and procedure in the interest of justice. Mancuso v. Union Carbide Corp., 99-1273 (La.App. 5 Cir. 4/25/00), 762 So.2d 79, 81. The decision to hold open or re-open a case for the production of additional evidence rests within the sound discretion of the trial judge. deBen v. Bobby Collins Seafood, Inc., 00-306 (La.App. 5 Cir. 10/31/00), 772 So.2d 266, 267-268; See La. C.C.P. articles 1631 and 1632. A trial judge’s decision whether or not to reopen a case for additional evidence will not be disturbed absent a clear abuse of discretion. Adams v. Allstate, 01-1244 (La.App. 5 Cir. 2/26/02), 809 So.2d 1169, 1173. In the instant case, the certification hearing was complete and the trial judge did not re-open the matter for additional evidence. The Plaintiffs did not file any motions to introduce the questionnaire. The trial judge did not abuse his discretion in sustaining defendants’ objection to the admittance of the Avondale questionnaire.

Accordingly, for the aforementioned reasons, the judgment of the trial court is hereby affirmed.

AFFIRMED.

      . Subsequently, Acts 1999, No. 989 amended La. C.C. art. 2315 to clarify that medical monitoring is not a valid cause of action. On remand, the trial judge barred retroactive application of the article. Defendants appealed to the Louisiana Supreme Court, which affirmed the trial court’s decision and found that retroactive application of the amended article divests asymptomatic employees of vested right to assert causes of action for medical monitoring and violated due process.

      . See Bourgeois v. A.P. Green Industries, Inc., 1997-3188 (La.7/8/98), 716 So.2d 355, 360-361. The Louisiana Supreme Court, finding medical monitoring a compensable cause of action, lists the criteria a plaintiff must prove to prevail in a claim for medical monitoring. The Court notes that the merits of this case were not before it to determine if the instant case satisfied the criteria to support a valid cause of action. Bourgeois v. A.P. Green Industries, Inc., 2000-1528 (La.4/3/01), 783 So.2d 1251, 1261. The Court, in a separate opinion, notes that the proposed class had not yet been certified; the Court declined to address the certification issue. Bourgeois v. A.P. Green Industries, Inc., 1997-3188 (La.7/8/98), 716 So.2d 355, 357.

      . The trial court held a two day certification hearing on July 21 and July 22, 2004. The trial judge took the matter under advisement and asked for additional memoranda and oral arguments, which were heard January 5, 2005. The trial judge gave oral reasons for judgment on January 5, 2005.

      . The trial judge in his reasons for judgment states that he would have to "make a decision whether it's worth the time and expense to certify a class action essentially for some ex-workers, workers who tire over age seventy who may or may not be interested in a court-administered fund.” The Fifth Circuit in Bourgeois v. A.P. Green Industries, 02-713 (La.App. 5 Cir. 2/25/03), 841 So.2d 902, held that those class members employed by Avondale prior to 1952 would have a negligence claim against Avondale and its Executive Officers. However, those employed between 1952 and 1976 would have a negligence claim against Avondale's Executive Officers, but would only have a Workers' Compensation claim against Avondale. Those employed after 1976 would only have the remedy of a Workers’ Compensation claim. Therefore, there may be workers who were employed after 1952 but before 1976 who still have a negligence claim.

      . The applicable articles, at the time the suit was filed, are La. C.C.P. art. 591 and 592.
      La. C.C.P. art. 591 provided:
      A class action may be instituted when the persons constituting the class are so numerous as to make it impracticable for all of them to join or be joined as parties, and the character of the right sought to be enforced for or against the members of the class is:
      (1) Common to all members of the class; or
      (2) Secondary, in the sense that the owner of a primary right refuses to enforce it, and a member of the class thereby becomes entitled to enforce the right.
      La. C.C.P. art. 592 provided:
      One or more members of a class, who will fairly insure the adequate representation of all members, may sue or be sued in a class action on behalf of all members.

      . Fed. Rule 23(b) provides:
      (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) 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 dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
      (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
      (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 the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) tire 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 of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.

      . The Uniform Class Actions Act, Section 3(a) (National Conference of Commissioners on Uniform State Laws (1976)) (reprinted at 12 Uniform Laws Annotated, Supp. (1984, p. 21), provides in pertinent part:
      (a) In determining whether the class action should be permitted for the fair and efficient adjudication of the controversy, ... the court shall consider, and give appropriate weight to, the following and other relevant factors:
      (1)whether a joint or common interest exists among members of the class;
      (2) whether the prosecution of separate actions by or against individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class that would establish incompatible standards of conduct for a party opposing the class;
      (3) whether adjudications with respect to individual members of the class as a practical matter would be dispositive of the interests of other members not parties to the adjudication or substantially impair or impede their ability to protect their interests;
      (4) whether a party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final injunctive relief or corresponding declaratory relief appropriate with respect to the class as a whole;
      (5) whether common questions of law or fact predominate over any questions affecting only individual members;
      (6) whether other means of adjudicating the claims and defenses are impracticable or inefficient;
      (7) whether a class action offers the most appropriate means of adjudicating the claims and defenses;
      (8) whether the members not representative parties have a substantial interest in individually controlling the prosecution or defense of separate actions;
      (9) whether the class action involves a claim that is or has been the subject of a class action, a government action, or other proceeding;
      (10) whether it is desirable to bring the class action in other forum;
      (11) whether management of the class action poses unusual difficulties;
      (12) whether any conflict of laws issues involved pose unusual difficulties; and
      (13) whether the claims of individual class members are insufficient in the amounts or interest involved, in view of the complexities of the issues and the expenses of the litigation, to afford significant relief to the members of the class.

      . The current law requires that additionally, a party seeking class certification must also fall within one of the subsections of La. C.C.P. art. 591(B), which provides:
      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) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
      (2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
      (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;
      (£) 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 Subparagraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.

      . The trial judge, in his oral reasons for judgment, only discusses the requirements of Paragraph A of La. C.C.P. art. 591.

      . Compare Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La.9/9/97), 703 So.2d 542, and the instant case to Daniels v. Witco Corp., 03-1478 (La.App. 5 Cir. 6/1/04), 877 So.2d 1011, where exposure resulted from an isolated incident, a chemical explosion. This Court, reversing the trial court, certified the class, finding that common questions of law and fact predominated over any issues affecting only individuals.

      . Bourgeois v. A.P. Green Industries, Inc., 1997-3188 (La.7/8/98), 716 So.2d 355, 360-361.

      . See Bourgeois v. A.P. Green Industries, 02-713 (La.App. 5 Cir. 2/25/03), 841 So.2d 902. The Fifth Circuit in this case held that those class members employed by Avondale prior to 1952 would have a negligence claim against Avondale and its Executive Officers. However, those employed between 1952 and 1976 would have a negligence claim against Avon-dale's Executive Officers, but would only have a Workers' Compensation claim against Avon-dale. Those employed after 1976 would only have the remedy of a Workers’ Compensation claim.

      . This Court notes, however, that the Louisiana Supreme Court defined the term "significant exposure” as any "exposure greater than normal background levels” in Bourgeois v. A.P. Green Industries, Inc., 1997-3188 (La.7/8/98), 716 So.2d 355, 360.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    THEUS CONSULTING COMPANY, L.L.C., Plaintiff-Appellee v. Willie EALY and Ezell Ealy, Jr., Defendants-Appellants.
    No. 41,306-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.
    Rehearing Denied Sept. 21, 2006.

      Willie Hunter, Jr., for Appellants.
    Donald L. Kneipp, Monroe, for Appellee.
    C. Lynn Tubb for Intervenor/Appellee, Century 21, Shackelford-French Real Estate.
    Jefferson B. Joyce, Monroe, for Interve-nor/Appellees, Jay Johnson & John Rea Realty.
    Before GASKINS, PEATROSS & DREW, JJ.
   PEATROSS, J.

Iiln this case involving the potential sale of real property, the trial court granted a motion for summary judgment in favor of the prospective purchaser and ordered specific performance. The sellers refused to comply, were held in contempt of court and, ultimately, the trial court vested ownership of the subject property in the purchasers and directed that the sales price be deposited in the registry of the court. This appeal by the sellers ensued. For the reasons stated herein, the judgment of the trial court is reversed, the orders disbursing realtor fees are vacated and judgment is rendered in favor of Defendants/sellers.

FACTS

The real property involved in this case is 39 acres located in Ouachita Parish, Louisiana. Defendants and “would-be sellers” Willie Ealy and Ezell Ealy, Jr. entered into an Exclusive Right to Sell Agreement (“the Listing Agreement”) with Century 21, Shackelford-French Real Estate, Inc. (“Century 21”) to act as its broker in selling the property at a listing price of $2.9 million. The Listing Agreement stated an expiration date of October 23, 2004. Theus Consulting Company, L.L.C. (“Theus”), represented by Jay Johnson and John Rea Realty, initially tendered an offer to purchase the property for $2.4 million. The Ealys responded with a counter offer of $2.545 million, which was accepted by Theus. Prior to closing, however, Theus was informed that one of the Ealys failed to sign the contract for sale and that there would be no sale at that price. Ultimately, in September 2004, Theus verbally advised Luther Shackelford | ¡¡of Century 21 that it would agree to pay the asking price of $2.9 million. According to Theus, Mr. Shackel-ford indicated that they had a “deal.” Subsequently, Theus submitted to Century 21 an Agreement to Buy and Sell Land (“the Purchase Agreement”) for 2.9 million. The Ealys never signed the Purchase Agreement and refused to convey the property to Theus.

On October 22, 2004, Theus filed suit for specific performance and cross-motions for summary judgment were filed. Theus argued that the Listing Agreement was a valid offer setting forth price and thing and that the Purchase Agreement was an acceptance of that offer making the agreement binding on the Ealys, even absent their signatures on the Purchase Agreement. On the other hand, the Ealys argued that the Listing Agreement was merely a contract between them and Century 21 and was not an offer to potential purchasers. In addition, they asserted that there were terms contained in the Purchase Agreement that did not appear in the Listing Agreement and the Ealys never agreed to these extraneous provisions.

The trial court found that the Listing Agreement was an offer to sell for $2.9 million that was accepted by the Ealys and, as such, was not required to be in writing' — or, specifically, the fact that the Purchase Agreement was not signed by the Ealys did not invalidate the offer and acceptance. The trial court gave the parties one week to “work out their differences,” during which time a closing was scheduled. The Ealys, again, did not show up for the closing. Subsequently, the trial court granted Theus’ motion for summary judgment, ordering specific performance of the | o$2.9 million sales price. The Ealys failed to comply and were held in contempt by order of the trial court. The order further vested ownership of the property in Theus upon deposit of the $2.9 million into the registry of the court. This appeal by the Ealys ensued.

DISCUSSION

In determining whether summary judgment is appropriate, appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is proper. Suire v. Lafayette City-Parish Consol. Government, 04-1459 (La.4/12/05), 907 So.2d 37. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

In the case sub judice, the Ealys assert the following assignments of error (verbatim):

1. The trial court erred as a matter of both fact and law in granting summary judgment.
2. The trial court erred as a matter of both fact and law in finding that the exclusive right to sell/listing agreement was valid in that it did not bear the signature of all owners in indivisión and named appellees were aware of this fact.
3. The trial court erred as a matter of both fact and law in holding the purchase agreement valid.
U4. The trial court erred as a matter of both fact and law in ordering the transfer of community property, the payment of realtor fees, and holding of appellants in contempt for failure to sign said sell/purchase agreement.
5. The trial court erred as a matter of both fact and law in rendering a judgment against unrepresented parties.

These assignments of error can be condensed to two primary questions: (1) whether or not the Listing Agreement was, in fact, a valid agreement and/or offer and, if so, (2) whether the Purchase Agreement constituted an acceptance of that offer resulting in an enforceable contract for the sale of the property.

Regarding the first question concerning the Listing Agreement, La. R.S. 37:1431(30) defines a listing agreement as follows:

(30) “Listing agreement” means a written document signed by all owners of real estate or their authorized attorney in fact authorizing a broker to offer or advertise real estate described in such document for sale or lease on specified terms for a defined period of time. A listing agreement shall only be valid if signed by all owners or their authorized attorney in fact. (Emphasis added.)

The Listing Agreement in this case was signed by Willie Ealy and Ezell Ealy, Jr. The subsequent Purchase Agreement, drafted and presented to Century 21 by Theus, states the sellers to be “Willie Ealy, Ezell Ealy, -ET AL.” The settlement statement for this proposed closing, which is contained in the record on appeal, indicates the sellers of this land to be “Willie Ealy and Dorothy Tarver Ealy.” From a reading of these documents, which are contained in the record on appeal, it is apparent that there exist additional owners of the subject property whose signatures do not appear on the Listing Agreement. We find no definitive answer in this | ¡¡record as to who comprises the “ET AL” as noted on the Purchase Agreement, but this notation indicates that Theus was aware that there were more owners than Willie and Ezell Ealy. For this reason, we conclude that the Listing Agreement was not valid and, further, did not constitute a valid offer to sell the property.

We will now briefly address the second question raised regarding the sufficiency of the Purchase Agreement as an acceptance. Assuming, arguendo, that the Listing Agreement did suffice as a valid offer (even if only as to Willie and Ezell Ealy’s undivided interest in the property) or that there exist factual issues as to its validity, we conclude that the Purchase Agreement was not an acceptance of that offer, but was a counteroffer, which was never accepted by the Ealys.

In order for a contract to be formed, an acceptance must be in all things conformable to the offer. An offer must be accepted as made to constitute a contract. A modification in the acceptance of an offer constitutes a new offer which must be accepted in order to become a binding contract. LaSalle v. Cannata Corp., 03-0954 (La.App. 1st Cir.4/2/04), 878 So.2d 622, writ denied, 04-1100 (La.6/25/04), 876 So.2d 840, citing Rodrigue v. Gebhardt, 416 So.2d 160 (La.App. 4th Cir.1982). The Purchase Agreement contains two provisions that were not contained in the Listing Agreement. First, the Purchase Agreement provides that the “[b]uyer has the sole right to assign this Agreement prior to closing.” J^Second, it provides that, in the event of litigation, the losing party will pay the prevailing party’s costs and reasonable attorney fees. These provisions modify or add to the provisions of the original “offer” and, therefore, constitute a counteroffer rather than an acceptance. The verbal assurance of Theus’ counsel to the trial court that these provisions were not integral to the agreement does not change the express conditions contained in the documents at issue. On its face, the Purchase Agreement contains additional provisions to which the proposed sellers did not agree. There was no acceptance and, thus, no enforceable contract of sale.

DECREE

For the foregoing reasons, the judgment of the trial court granting Theus Consulting Company, L.L.C.’s motion for summary judgment is reversed. The orders of the court disbursing realtor fees to Century 21, Shackelford-French Real Estate, Inc. and Jay Johnson and John Rea Realty are vacated and judgment is hereby rendered in favor of Defendants Willie Ealy and Ezell Ealy, Jr. Costs of this appeal are assessed to Theus Consulting Company, L.L.C.

REVERSED; ORDERS VACATED AND JUDGMENT RENDERED.

GASKINS, J., concurs without reasons.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, PEATROSS, DREW and LOLLEY, JJ.

Rehearing denied.

      . This offer was actually made by American Capital, Inc., Theus' predecessor in interest. For clarity, we will refer to the entity as Theus throughout this opinion.

      . In addition, we note that Willie Ealy and Ezell Ealy, Jr., as partial owners of the property, could not convey marketable title to this property as provided in the Listing Agreement. The only interest these two individuals could convey is their undivided interest in the property. Any intent of Willie Ealy and/or Ezell Ealy, Jr. to this effect is not stated in any of the documents contained in this record.

      . We also note Theus' assertion that it verbally accepted the "offer” to Mr. Shackelford, who, according to Theus, indicated there was a "deal.” We do not find this verbal exchange, followed by the written counteroffer (Purchase Agreement), to constitute a valid acceptance,


author: STEWART, J.

text:
    Jerry Wallace PETCH and Olita Mae Bennet Petch, Plaintiffs-Appellants v. Dr. Dallas D. HUMBLE, Leslie R. Humble, Chad Pickle, and P & H Enterprises, Defendants-Appellees.
    No. 41,301-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.
    Rehearing Denied Sept. 21, 2006.

      J. Arthur Smith, Baton Rouge, for Appellants.
    Daniel P. Parker, for Appellees.
    Before BROWN, STEWART and GASKINS, JJ.
   STEWART, J.

| plaintiffs, Jerry Wallace Petch and Oli-ta Mae Bennet Petch, seek reversal of the partial summary judgment rendered by the trial court dismissing their claims against defendants, Dr. Dallas D. Humble, Leslie R. Humble, and Chad Pickle. For the following reasons, the judgment of the trial court is hereby affirmed.

FACTS

Jerry and Olita Petch own and reside on approximately five acres of land located on the Wall Williams Road in West Monroe, Louisiana. In addition to their residence, the land contains a recreational fishing pond which is the alleged focal point of the property. Its aesthetic appeal is one of the main reasons the Petches purchased the property.

On May 10, 2005, plaintiffs filed suit for an injunction and damages against Dr. Dallas D. Humble, Leslie R. Humble, Chad Pickle, and P & H Enterprises. The petition claims that Dr. Dallas D. Humble, Leslie R. Humble and Chad Pickle, doing business as an unincorporated association by the name of P & H Enterprises, are the owners of property located directly across the Wall Williams Road from the Petches’ property and are developing a subdivision by the name of Delta Point Subdivision thereon. The Petches allege that defendants have removed the vegetative cover on the property causing it to erode and drain onto the plaintiffs’ property and deposit large volumes of silt, sand and sediment into the plaintiffs’ fishing pond. The petition claims that the defendants have been negligent in failing to obtain a storm-water permit from the Louisiana Department of |?Environmental Quality (“LDEQ”) before commencing operations and in failing to employ a stormwater pollution prevention plan.

On May 24, 2005, defendants filed an answer generally denying the allegations of the plaintiffs’ petition. The answer also asserts that P & H Enterprises is not an unincorporated association but a limited liability company established under the laws of the State of Louisiana. On May 31, 2005, the defendants filed an amending answer substituting the proper name of the limited liability company, P & H Development, L.L.C., for P & H Enterprises.

On July 8, 2005, Dr. Dallas D. Humble, Leslie R. Humble, and Chad Pickle filed a motion for partial summary judgment requesting dismissal of the plaintiffs’ claims against them on the basis that they are neither the owners of the property on which Delta Point Subdivision is being developed nor the developers thereof. Attached to the motion for summary judgment were affidavits of each of the three movers in which each asserts that he never had any individual ownership interest in any of the property being developed as the Delta Point Subdivision, nor performed any acts or omissions in relation to the development outside his role as an agent or employee of P & H Development, L.L.C. The articles of organization and initial report of P & H Development, L.L.C. reflecting that the movers were all members of the limited liability company since its inception on January 26, 2004, were also attached to the motion.

In opposing the motion for summary judgment, plaintiffs submitted copies of the following documents:

|gl. A Cash Deed dated January 27, 2004, wherein P & H Development, L.L.C. purchased the property on which Delta Point Subdivision was to be developed;
2. An Act of Cash Sale dated January 14, 2005, wherein P & H Development, L.L.C., appearing as seller, sold a subdivided lot within the property purchased on January 27, 2004;
3. A Declaration of Building Restrictions and Covenants for Delta Point Subdivision dated January 25, 2004;
4. Two separate documents entitled CERTIFICATION OF AUTHORITY TO ACT FOR P & H DEVELOPMENT, L.L.C. A LIMITED LIABILITY COMPANY dated January 31, 2005, and March 7, 2005, the first of which gives Leslie R. Humble the authority to act on behalf of the company and the second of which gives that authority to both Leslie R. Humble and Dallas D. Humble.

While references to and the signatures of Dallas D. Humble, Leslie R. Humble, and Chad Pickle appear throughout these documents, they are always in their representative capacity as “members” of P & H Development, L.L.C. Plaintiffs argue that these documents reflect that one or more of the defendants seeking dismissal from the suit was a “party” to each of these transactions, thus evidencing their “active, functional involvement in the decision-making process” of P & H Development, L.L.C. Plaintiffs asserted that this “involvement” caused damage to their property giving them the right to seek redress from these individuals under La. C.C. arts. 667 and 2315.

On August 9, 2005, the trial court granted the plaintiffs’ request to be allowed to amend their original petition to add P & H Development L.L.C. as a defendant. The individual defendants’ motion for partial summary judgment and the plaintiffs’ request for the preliminary injunction came for hearing on August 11, 2005. The parties stipulated to the issuance of a [¿preliminary injunction ordering the defendants to comply with the requirements of the permit issued to them by the LDEQ in connection with the subdivision development. After hearing argument on the motion for summary judgment, the trial court took the matter under advisement. On November 16, 2005, the trial court issued written reasons for judgment granting the partial motion for summary judgment. A final judgment to this effect was signed the same day. The instant appeal followed.

STANDARD OF REVIEW

Louisiana Code of Civil Procedure Article 966(B) provides, in part, that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Paragraph C(2) sets forth the burden of proof applicable to the motion for summary judgment, providing:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

On appeal, a trial court’s ruling on a motion for summary judgment is reviewed pursuant to the de novo standard of review. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002.

| .DISCUSSION

Assignment of Error Numbers One and Two

The Petches argue in their first two assignments of error that the trial court erred both in concluding that defendants could not be held liable for their acts or omissions as members of a limited liability company and in shifting the burden of proof to plaintiffs to prove a genuine issue of material fact precluding summary judgment.

Specifically, the Petches argue that because their petition made allegations of fault on the part of the individual defendants, the defendants were required, but failed, to present evidence tending to show they were not at fault. Absent any such evidence, the burden should not have been shifted to the Petches. Furthermore, the Petches claim that La. C.C. arts. 667 and 2315 allow them to bring an action against the members of a limited liability company in their individual capacity for acts or omissions attributable to them while acting on behalf of the limited liability company. As such, the Petches allege that their failure to present any evidence of fault on the part of the defendants, separate and apart from the acts on behalf of the company, did not entitle defendants to summary judgment as a matter of law.

La. C.C. art. 667 provides:

Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by | .the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. Nonetheless, the proprietor is answerable for damages without regard to his knowledge or his exercise of reasonable care, if the damage is caused by an ultrahazardous activity. An ultra-hazardous activity as used in this Article is strictly limited to pile driving or blasting with explosives.

A limited liability company offers, among other benefits, a company’s members the benefit of limited liability. Hamilton v. AAI Ventures, L.L.C., 99-1849 (La.App. 1st Cir.9/22/00), 768 So.2d 298. With respect to the liability of the members and managers of a limited liability company to third parties, La. R.S. 12:1320 provides:

A. The liability of members, managers, employees, or agents, as such, of a limited liability company organized and existing under this Chapter shall at all times be determined solely and exclusively by the provisions of this Chapter.
B. Except as otherwise specifically set forth .in this Chapter, no member, manager, employee, or agent of a limited liability company is liable in such capacity for a debt, obligation, or liability of the limited liability company.
C. A member, manager, employee, or agent of a limited liability company is not a proper party to a proceeding by or against a limited liability company, except when the object is to enforce such a person’s rights against or liability to the limited liability company.
D. Nothing in this Chapter shall be construed as being in derogation of any rights which any person may by law have against a member, manager, employee, or agent of a limited liability company because of any fraud practiced upon him, because of any breach of professional duty or other negligent or wrongful act by such person, or in derogation of any right which the limited liability company may have against any such person because of any fraud practiced upon it by him.

Thus, under La. R.S. 12:1320(B), members of a limited liability company generally may not be assessed with personal liability for the debts Land obligations of their limited liability company to third parties absent proof of fraud, negligence or wrongful conduct on the part of that person. See La. R.S. 12:1320(D).

We find no merit to the Petches’ contention that because the defendants are the individuals who are members of P & H Development L.L.C., with the authority to act on behalf of it, and because the Petches have alleged that P & H Development L.L.C. acted negligently, ergo defendants have been negligent in their individual capacities. This interpretation ultimately removes the entire limitation on liability which the entity is designed to afford and renders La. R.S. 12:1320 practically meaningless. To have meaning within the statute, the phrase “or other negligent or wrongful act by such person” must refer to acts that are either done outside one’s capacity as a member, manager, employee, or agent of a limited liability company or which while done in one’s capacity as a member, manager, employee, or agent of a limited liability company also violate some personal duty owed by the individual to the injured party. In other words, some duty owed by the individual defendant to the plaintiff outside his capacity as a member must have been breached. However, the Petches have made no allegations as to any specific conduct on the part of the individual defendants from which such a breach could be inferred.

We find inapposite the Petches’ reliance on this court’s opinion in Barr v. Smith, 598 So.2d 438 (La.App. 2d Cir.1992), writ denied 604 So.2d 998 (La.1992), and on the Louisiana Supreme Court’s opinion in H.B. “Buster” Hughes, Inc. v. Bernard, 318 So.2d 9 (La.1975), for the blanket | sproposition that a member of a limited liability company can be held liable for his actions on behalf of the limited liability company. In Barr, supra, this court held that liability under La. C.C. art. 667 could be imposed on a defendant who was not the record landowner but who had personally directed excavation work which caused damage to a neighboring landowner. This court was merely recognizing the established principle that a “proprietor” under La. C.C. art. 667 encompasses lessees, agents, contractors, etc. That holding, however, did not change the requirement that the proprietor from whom damages are being sought has to have performed some work on the property of which he is the proprietor and from which damage to a neighboring property resulted. Moreover, nothing in Barr, supra, suggests that the limitations on liability for members of an L.L.C., can be overcome by invoking La. C.C. art. 667 absent some personal act of negligence against the plaintiff by the member. The Petches have made no allegation of work performed by any of the three individual defendants from which any such liability could arise.

In Hughes, supra, the defendant corporation, a sublessee of a barge, was performing a contract whereby certain buildings were moved for Plaquemines Parish. In the course of the work, the barge operator inadvertently dug a canal through a portion of land that was to be used as a levee base. Plaintiff, as the sublessor, paid for the damage and then sued the sublessee corporation performing the work and its principal corporate officer, Mr. Bernard, for reimbursement. The trial court held Mr. Bernard personally liable for failing to properly supervise the work and for failing to [9communicate certain information to the barge operator, but the Fourth Circuit Court of Appeal reversed as to Bernard’s personal liability because the contract was entered into with the corporation only. In affirming the court of appeal’s decision, the Louisiana Supreme Court recognized that a cause of action for personal liability of a corporate officer can be maintained under certain circumstances:

The law is settled that if an officer or agent of a corporation through his fault injures another to whom he owes a personal duty, whether or not the act culminating in the injury is committed by or for the corporation, the officer or agent is liable personally to the injured third person, and it does not matter that liability might also attach to the corporation. Article 2315 Civil Code; Canter v. Koehring Company, La., 283 So.2d 716 (1973); 3 Fletcher Cyclopedia of the Law of Private Corporations, section 1135; 19 Am.Jur.2d, Corporations, section 1382.

However, the Supreme Court found no error in the appellate court’s conclusion that Mr. Bernard had no personal liability since there was no evidence that he had personally directed the barge operator to dig the canal. We find the principle enunciated therein to be indistinguishable from that enunciated above regarding the personal liability of members of a limited liability company. However, the Petches likewise failed to present evidence in opposition to the motion for summary judgment of any personal conduct which would give rise to personal liability on the part of the individual defendants.

That brings us to the question of whether the motion for summary judgment was properly supported by the movers so as to have shifted the burden to the Petches to present evidence of any such conduct. We find that it was. The law on summary judgment clearly provides that if the mover linwill not bear the burden of proof, he need merely point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The conduct complained of by the Petches in their original petition was attributable to the limited liability company of which the individual defendants were members. Accordingly, the mere fact that the individual defendants moved for summary judgment on the issue of their personal liability in light of the limitations of liability applicable to members of a limited liability company brought the absence of any specific allegations or evidence of their individual negligence into question. That being the case, the burden shifted to the plaintiffs to bring forth some evidence to show a genuine issue of fact as to some conduct which could give rise to personal liability on the part of the individual defendants. The plaintiffs failed to do so, relying only on the allegations of their petition which do not allege personal acts of negligence by the individual defendants. Therefore, we find the trial court did not err in rendering summary judgment on the record presented.

Assignment of Error Number Three

In their third assignment of error the Petches complain that the trial court acted prematurely in ruling on the motion for summary judgment only two and a half months after the original petition was filed and before adequate discovery could be conducted. Under La. C.C.P. art. 966, a motion for summary judgment is appropriate only after “adequate | n discovery.” However, it is not an abuse of the trial court’s wide discretion in discovery matters to entertain a motion for summary judgment before discovery has been completed. Simoneaux v. E.I. du Pont de Nemours & Co., Inc., 483 So.2d 908 (La.1986). It is within the trial court’s discretion to render a summary judgment or require further discovery. Eason v. Finch, 32,157 (La.App. 2d Cir.8/18/99), 738 So.2d 1205, writ denied 99-2767 (La.12/10/99), 751 So.2d 861.

We are mindful, however, that in the present case the time allotted for adequate discovery was limited at best. Nevertheless, because the Petches failed to allege before the trial court or in brief to this court any specific facts upon which the opportunity for further discovery might have allowed them to defeat this motion for summary judgment, we cannot say the trial court was premature in this regard. Discovery is not to be used as a fishing expedition, and as was correctly noted by the trial court, the plaintiffs were obligated under La. C.C.P. art. 863 to make a reasonable inquiry that their claims are grounded in fact and warranted by existing law. If after such reasonable inquiry and an additional two and a half months, the plaintiffs are unable to even allege a fact upon which personal liability could be imposed, we cannot conclude that the trial court erred in refusing to allow more time for additional discovery.

'CONCLUSION

For the foregoing reasons, we find no error in the trial court’s grant of summary judgment. The judgment is affirmed, and the plaintiffs are cast to pay the costs of this appeal.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, GASKINS, MOORE and LOLLEY, JJ.

Rehearing denied.

      . It is worth noting that in their original petition, the Petches alleged the individual defendants to be operating as an unincorporated association by the name of P & H Enterprises, thus explaining the Petches’ initial inference of personal liability on the part of the individual defendants.


author: BROWN, Chief Judge.

text:
    Gerald B. BROUSSARD, M.D., d/b/a Broussard Cataract and Eye Institute, Plaintiff-Appellant v. COMPULINK BUSINESS SYSTEMS, INC., Defendant-Appellee.
    No. 41,276-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Donald L. Kneipp, Monroe, for Appellant.
    Dollar Laird, LLP, by Johnny E. Dollar, Monroe, for Appellee.

      Before BROWN, WILLIAMS, and MOORE, JJ.
   BROWN, Chief Judge.

[!Plaintiff, Gerald Broussard, M.D., d/b/a Broussard Cataract and Eye ' Institute (“Dr. Broussard”), initiated this action against defendant, Compulink Business Systems, Inc. (“Compulink”), for breach of contract. Defendant filed an exception of prematurity asserting that its contract with Dr. Broussard contained a binding arbitration clause. The trial court sustained the exception and denied plaintiffs motion for a new trial. Plaintiff has appealed. We reverse and remand.

Facts

In December of 1999, Dr. Broussard, an ophthalmologist practicing in Monroe, contracted with Compulink to provide a medical software package, training and support services. The purchase price was $24,000, which Dr. Broussard paid. Problems with the product and services occurred from the outset. Dr. Broussard sent Compulink a letter dated January 31, 2000, outlining the “hardships and problems” encountered. When Compulink failed to adequately respond, Dr. Broussard purchased and installed a different medical software package. Plaintiff filed this action on August 17, 2000.

On October 30, 2000, Compulink filed a dilatory exception of prematurity alleging that its contract with Dr. Broussard provided that “[I]n the event of any dispute, the parties agree to waive their rights to a jury trial and submit to binding arbitration in, and under the jurisdiction of (California).” The exception states that “[T]he contract dated December 06, 1999 is attached hereto as Exhibit A.” (Emphasis added). However, there was no document attached with the exception. The following day, on [ gOctober 31, 2000, Compulink supplemented its filing with “Exhibit A” which was inadvertently left off its exception. That document titled “License Agreement and Limited Product Warranty,” did not name the licensee and contained no date or signature.

It was Dr. Broussard’s position that he never saw, much less agreed to, any binding arbitration provision and that Compu-link failed to show any direct evidence that he signed or otherwise consented to arbitration.

The exception of prematurity was heard by the trial court on February 13, 2001. On March 5, 2001, with the court’s permission, Compulink supplemented the record with a facsimile copy of a contract that does not state the name of the Licensee but does have the signature of “Danica Nelson, ins/bill mgt” and is dated December 27, 1999. There was nothing further as to the identity of Danica Nelson. This filing also contained a facsimile copy of the affidavit of Janet Picarelli, Compulink’s account administrative assistant, attesting to the true and correct nature of the document and that she received the document by fax from the Broussard Cataract and Eye Institute on December 27,1999.

The trial court issued its written reasons for judgment sustaining Compulink’s exception of prematurity on February 7, 2002. The trial court held that Compulink proved Dr. Broussard’s knowledge of the arbitration provision and that the License Agreement was signed by an authorized agent of the institute. The trial court further held that arbitration clauses |slike the one Compulink used were neither against Louisiana public policy nor adhe-sionary.

It is from the trial court’s judgment sustaining Compulink’s dilatory exception of prematurity, as well as the trial court’s denial of Dr. Broussard’s motion for a new trial, that plaintiff has appealed.

Discussion

Louisiana has adopted a policy favoring arbitration. Aguillard v. Auction Management Corp., 04-2804 (La.06/29/05), 908 So.2d 1. Louisiana Revised Statutes 9:4201 provides as follows:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

Thus, an arbitration clause may be invalidated if, under general contract law, grounds exist to revoke this provision of the contract.

|4When the issue of a party’s failure to arbitrate is raised through a dilatory exception of prematurity, the exceptor has the burden of showing a valid contract to arbitrate. Johnson’s, Inc. v. GERS, Inc., 34,268 (La.App. 2d Cir.01/24/01), 778 So.2d 740. In determining whether a party is bound by an arbitration agreement, we apply ordinary contract principles. Id.; Tresch v. Kilgore, 03-0035 (La.App. 1st Cir.11/07/03), 868 So.2d 91. A party cannot be required to submit to arbitration any dispute which he has not agreed to so submit. Horseshoe Entertainment v. Lepinski, 40,753 (La.App. 2d Cir.03/08/06), 923 So.2d 929, writ denied, 06-0792 (La.06/02/06), 929 So.2d 1259. Thus, before we can make a determination as to whether Dr. Broussard’s action is premature, we must first determine if Compulink proved that a valid contract to arbitrate existed.

An agency relationship is never presumed; it must be clearly shown. Bamburg Steel Buildings, Inc. v. Lawrence General Corp., 36,005 (La.App. 2d Cir.05/08/02), 817 So.2d 427; Where Angels Tread, Ltd. v. Dansby, 37,689 (La.App. 2d 09/24/03), 855 So.2d 906. The burden of proving apparent authority is on the party seeking to bind the principal. Bamburg Steel Buildings, Inc., supra; Where Angels Tread, Ltd., supra.

In the case sub judice, the record is void of any attempt by Compulink to prove apparent authority, as well as any manifestation by Dr. Broussard that would lead Compulink to reasonably conclude that Danica Nelson was acting on his behalf when she signed the License Agreement. In fact, the only evidence Compulink has put forward to support its contention that Ms. Nelson was bathed with apparent authority is the fact that the cover sheet | Kaccompanying the faxed contract was on letterhead of Broussard Cataract & Eye Institute. Compulink has not offered any evidence to show that Ms. Nelson typically entered into similar contracts on Dr. Broussard’s behalf, nor has Compulink attempted to show that Dr. Broussard gave it reason to believe that Ms. Nelson could enter into such agreements.

Compulink’s second argument— that Ms. Nelson’s authority was ratified by Dr. Broussard’s acceptance and silence — is also erroneous. Dr. Broussard does not deny, in fact he asserts, that he bought Compulink’s software and services. It would be a tremendous stretch to say that such a purchase includes an agreement to travel from Louisiana to California to settle any disputes by arbitration. Dr. Broussard has consistently stated throughout the proceedings that he did not consent to arbitration. He opposed the exception of prematurity on the grounds that he neither saw nor consented to the License Agreement; he did not even know that it existed until after the evidentiary hearing when Compulink supplemented the record with an alleged executed copy by Danica Nelson. By filing the present suit and continually stating that he did not consent to the arbitration agreement, it is evident that Dr. Broussard did not ratify Ms. Nelson’s authority through acceptance and silence.

A trial court’s determination of an agency relationship and scope of authority are essentially factual matters and therefore, are subject to the manifest error standard of review. Bamburg Steel Buildings, Inc., supra; Salley v. Colonial Marine Industries, Inc., 95-2215 (La.App. 4th Cir.09/11/96), 680 So.2d 1242. Thus, the appellate court will not reverse the | fidecision below if credible evidence providing a reasonable factual basis for the trial court’s conclusion was presented. Id. In the instant case, there was no testimony or documentation from which one could reasonably conclude that Compulink met its burden of proving apparent authority. Accordingly, the trial court’s finding that the License Agreement was signed by an authorized agent is without evidentiary support and is therefore manifestly erroneous.

In so finding, we reverse the trial court’s judgment and remand for further proceedings.

Conclusion

For the foregoing reasons, the judgment of the trial court sustaining defendant’s dilatory exception of prematurity is reversed. The case is remanded for further proceedings consistent with this opinion.

      . Final judgment was not signed until four years later, on January 25, 2006, and then by Judge Benjamin Jones. Broussard filed a motion and order for appeal on February 6, 2006, and the order of appeal was signed by-Judge Jones on February 8, 2006. On March 23, 2006, this court, on its own motion, annulled the January 25, 2006, judgment since it was not signed by the judge who heard the exception, and remanded the matter to the district court. On March 29, 2006, a final judgment was signed by Judge Carl Sharp, the judge who heard the exception. Dr. Broussard filed a motion for a new trial on April 5, 2006. With his motion for a new trial outstanding, Dr. Broussard moved to have appellate proceedings suspended and the matter remanded to the trial court. This court ordered that appellate proceedings be suspended and remanded the matter to the trial court to decide any pending motion for a new trial. On April 19, 2006, Judge Sharp denied Dr. Broussard's motion for a new trial and, accordingly, this court lifted the stay on May 4, 2006.

      . Due to our disposition of this matter, we pretermit discussion of the remaining assignments of error.