author: FREDERICKA HOMBERG WICKER, Judge. CHEHARDY, J.

text:
    George H. CONRAD, Brian Arthur and All Those Similarly Situated v. LAMARQUE FORD, INC.
    No. 08-CA-673.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 12, 2009.
    Rehearing Denied July 6, 2009.

      Robert D. Hoffman, Jr., Attorney at Law, Covington, LA, for Plaintiff/Appellee.
    James M. Garner, Richard P. Richter, Joshua S. Force, Attorneys at Law, New Orleans, LA, and Roy M. D’Aquila, Ronald J. Vega, Attorneys at Law, Kenner, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

1 ^Lamarque Ford Inc. appeals a final judgment certifying a class of “All persons who purchased a vehicle from Lamarque Ford from 1998 through the present, who were entitled to a rebate, but whose purchase documents do not disclose that they received that rebate.” Lamarque contends on appeal that the trial court erred by certifying the class. We disagree with Lamarque’s contentions and affirm the judgment.

Factual Background

Plaintiffs/Appellees George H. Conrad and Brian Arthur as purported class representatives sued defendant/appellant Lamarque due to its alleged failure to provide them with manufacturer rebates on their vehicle purchases. William P. Chauvin and William T. Cochran, Jr. later joined the suit as class representatives. The plaintiffs alleged that they purchased vehicles from Lamarque in 1999 and | ¡¡2000. They alleged that the manufacturer provided rebates for these vehicles but Lamarque did not so advise them. Instead, Lamarque received the rebate from the manufacturer when it should have been paid to the plaintiffs. They further alleged that in each case there was a “Customer Cash Authorization” form, which allowed Lamarque to receive the rebates. The plaintiffs alleged that a signature purporting to be that of each plaintiff was affixed to provide such authorization but none of the plaintiffs actually signed the form.

In the original and supplemental petitions, the plaintiffs defined the class as follows: “[a]ll persons who purchased motor vehicles from the defendant [who] were also entitled to rebates which were not disclosed to them, for which they received no credit and which were converted by the defendant.”

The plaintiffs alleged various causes of action, including fraud. They sought to recover the rebates, a refund of all loán finance charges or credit service charges, attorneys’ fees, and costs.

The court held a hearing on the request for class certification on November 28, 2007. On the morning of the hearing, plaintiffs’ counsel orally revised the parameters of the requested class definition to “all persons who purchased a vehicle from Lamarque Ford from 1998 through the present, who were entitled to a rebate, but whose purchase documents do not disclose that they received that rebate.” The revised definition changed in two respects. First, it now limited the membership in the class to those who purchased vehicles “from 1998 through the present” rather than “all persons who purchased vehicles.” Second, it removed the requirements that the member received no credit for the rebate and that the dealer converted the rebate. Rather, the member need only show that the person was entitled to a rebate, but his purchase documents did not disclose that he received the rebate.

RPlaintiffs argued that the goal at the certification hearing was not to prove whether the plaintiffs received the rebate. Plaintiffs’ counsel explained that the defendant only provided dealer files of the named plaintiffs but refused to give any further information. He stated that in order to engage in further discovery, to determine class membership, the class must be defined. However, plaintiffs’ counsel had documents that had already been produced in other litigation involving the defendant that he would attempt to introduce that day. He argued that the other files clearly indicated that these individuals were entitled to rebates but the documents did not reveal that they received them.

Lamarque’s counsel pointed out that the plaintiffs were attempting to change the definition of the class presented in their petition. He stated that the newly-defined class might essentially include almost everyone who purchased a vehicle. Also, he stated that the plaintiffs were trying to obtain class certification in order to conduct a fishing expedition and subpoena all of the defendant’s records. Counsel further stated that if the court proceeded to conduct a hearing to certify the class as newly-defined, he would “certainly put on a defense to that.” Thus, counsel did not specifically object to the trial judge’s proceeding with the hearing.

Plaintiffs’ counsel responded that he did not have to prove his case in a class certification hearing. At first, he stated that he would prove the elements required for class certification “after the class gets certified,” thus suggesting that he conceded that he did not meet the requirements for class certification. Next, however, he explained that he merely had to prove the elements required for class certification. He stated that whether or not the putative members actually did receive the rebate would be subject to further proof. Therefore, considering his statements in context, it appears that counsel was merely indicating that proof of the merits of the claims was inappropriate for a class certification hearing. He tasked the court for an opportunity to call witnesses and asked that the class be certified in accordance with his newly-defined class.

The trial judge replied: “Go ahead, call your first witness.”

Plaintiffs’ counsel introduced 1999 and 2000 customer sales documents from Lam-arque for thirty-eight customers involving approximately twenty-six salespersons. These sales pertained to various models and sales prices.

With the exception of one file, all files introduced into evidence included a document labeled “Customer Cash Payment Authorization.” One section of the authorization described incentive information for the vehicle, listing program number(s) and dealer amount(s). A second section provided the customer with two options. Option “A” was an assignment of the cash incentive to the dealer, Lamarque. Option “B” was direct payment to the customer. Also included on the document was a signature which purported to be that of the customer selecting Option “A,” the assignment.

Of the thirty-eight customer files introduced into evidence, twenty-two contained a “Retail Buyers Orders” form with the purported purchaser’s signature indicating that the form was explained to them and that they understood it. The “Retail Buyers Orders” form included a section labeled “Rebates.” But in those twenty-two cases, the rebate was not disclosed on the retail buyers order in that section or otherwise noted on the retail buyers order. Of these twenty-two, the files also contained a purported assignment of the rebate to Lamarque.

Of the thirty-eight customers’ files, thirteen contained the vehicle application to the state as well as the rebate assignment to Lamarque. The vehicle | ^application to the state in those thirteen files, however, did not disclose the rebate in the section provided for that purpose.

Plaintiffs’ counsel called William P. Chauvin, a purported class representative, and Guy Perniciario, a long-term Lam-arque employee, as witnesses. Mr. Chau-vin was the only plaintiff to testify at the hearing. He stated that he purchased a vehicle from the defendant in 2000. The rebate was never discussed with him at any time during the purchase negotiations. Although his signature was purportedly on the document assigning the rebate to Lam-arque, he testified that he did not sign the document.

Guy Perniciario testified that he was one of the two salespersons who handled the Chauvin sale. Counsel referred Mr. Per-niciario to Mr. Chauvin’s customer file documents. Mr. Perniciario agreed that Mr. Chauvin’s rebate assignment document indicated that he was entitled to a $1,000 rebate. He also agreed that this amount was not reflected on the retail buyers order or on Mr. Chauvin’s vehicle application with the Office of Motor vehicles.

When counsel asked Mr. Perniciario to explain his failure to indicate the rebate on the sales documents, he replied that he did not show a rebate on Mr. Chauvin’s buyers order because he gave the bottom-line price after everything was taken out. He testified that he did not recall whether he saw Mr. Chauvin sign the assignment form. However, the finance department completed most of the paperwork.

Counsel asked Mr. Perniciario whether he previously testified in his deposition that he omitted listing the rebate because he was attempting to save customers sales tax. Mr. Perniciario replied that there were times when rebates |7were taxable. According to Mr. Perniciario, rebates were taxable for a brief period of time. As a result, some customers asked to take the rebate off the selling price. He learned through an inquiry that rebates were not taxed at the time of the Chauvin sale. But he did not recall the exact dates when rebates were taxable.

During cross-examination, Mr. Pernici-ario testified that he could verify every potential rebate by running the vin number of the vehicle in the Ford system. Counsel referred him to a document in Mr. Chauvin’s customer file. Mr. Perniciario identified the document in Mr. Chauvin’s file that showed the running of the vin number for rebate eligibility. He testified that the document showed various rebate incentive programs. One program provided for $1,500 in cash. Another program provided for $1,000 in cash plus a low-interest rate. The $1,500 cash incentive did not include the low-interest rate. Mr. Perniciaro testified that he was convinced that Mr. Chauvin received the benefit of the $1,000 rebate because Mr. Chauvin’s file reflected that he received the low-interest rate, which the Ford program included with the $1,000 cash incentive.

Lamarque’s counsel called two Lam-arque employees to testify — Ray Hoffman, and Joe Gorman.

Joe Gorman testified that he processed rebates through the factory. Counsel showed him a document from Mr. Chau-vin’s file. Mr. Gorman recognized the form referred to as a Vincent program. It showed the incentive programs being offered to the customer and also to the dealer. He testified that based on his review of Mr. Chauvin’s file, Mr. Chauvin received the 0.9% financing incentive. He stated that Mr. Chauvin definitely received the customer cash rebate based on Mr. Chauvin’s signature assigning the rebate to Lamarque.

During cross-examination, counsel referred Mr. Gorman to various documents in Mr. Chauvin’s file. Mr. Gorman admitted that some of Mr. |8Chauvin’s purported signatures did not appear to be the same. On redirect examination, however, he admitted he had no expertise in analyzing signatures.

Ray Hoffman testified that he supervised the finance department. Counsel referred him to documents in Mr. Chauvin’s file. Mr. Hoffman testified that based on his review of these documents from Mr. Chauvin’s file, Mr. Chauvin received credit for the rebate. This was because a customer could not receive the low-interest rate without also receiving the cash incentive.

Counsel referred him to other documents that were contained in Mr. Chau-vin’s file. Mr. Hoffman identified a power of attorney form that was contained in Mr. Chauvin’s file.

Our review of that form indicates that it provided a section wherein the purchaser could sign designating an appointed party to act as his attorney-in-fact. The form contained Mr. Chauvin’s purported signature authorizing the appointment. However, the line that provided for naming the attorney-in-fact was blank. The form provided that the purpose of the appointment was “for transferring title and registration, assignment of title, and applications for titles to the above described motor vehicle and with full authority to sign on my(our) behalf all papers and documents and to do all things necessary to this appointment.”

According to Mr. Hoffman, it was customary to have a customer sign the form. He stated that the form allowed the dealership to sign any necessary documents on the customer’s behalf toward selling and registering the vehicle. He believed that the form included rebate assignment authorization.

Mr. Chauvin testified that although it appeared that it was his signature on the power of attorney form, no one explained that the power of attorney would allow someone at the dealership to sign the rebate authorization form in order for |9the dealer to obtain his rebate. Furthermore, he did not understand that document to authorize anyone to sign his name on a rebate authorization form.

Law

La.C.C.P. arts. 591 through 597 describe the basic requirements for a class action in Louisiana. La.C.C.P. art. 591(A) requires the following: (1) The class is so numerous that joinder of all members is impracticable. (2) There are questions of law or fact common to the class. (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.

Under Louisiana law, plaintiffs must meet all of the above requirements of La. C.C.P. art. 591(A) and fall within one of the subsections of 591(B). Daniels v. Witco Corp., 03-1478, p. 5 (La.App. 5 Cir. 6/1/04), 877 So.2d 1011, 1014, writs denied, 04-2283, 04-2287, 888 So.2d 204, 205 (Citation omitted).

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

(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 or |incorresponding 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 ...

Certification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class. However, following certification, the court shall retain jurisdiction over claims or defenses dependent for their resolution on proof individual to a member of the class. La. C.C.P. art. 591(C).

La.C.C.P. art. 592(A)(3)(c) pertinently provides: In the process of class certification, or at any time thereafter before a decision on the merits of the common issues, the court may alter, amend, or recall its initial ruling on | n certification and may enlarge, restrict, or otherwise redefine the constituency of the class or the issues to be maintained in the class action.

The burden of establishing that the statutory criteria are met falls on the party seeking to maintain the class action. Daniels, supra, 03-1478 at 5, 877 So.2d at 1014 (Citations omitted).

In the instant case, the trial judge found that the plaintiffs’ claims met all of the criteria set forth in Article 591(A), namely numerosity, commonality, typicality, adequacy of representation, and an objectively definable class. The trial judge also found that the elements of predominance and superiority set forth in Article 592(B)(3) had been satisfied.

Standard of Review

The standard of review for class action certifications is bifurcated. The factual findings are reviewed under the manifest error/clearly wrong standard, but the trial court’s judgment on whether or not to certify the class is reviewed by the abuse of discretion standard. Oubre v. Louisiana Citizens Fair Plan, 07-66, p. 6 (La. App. 5 Cir. 5/29/07), 961 So.2d 504, 509, unit denied, 07-1329 (La.9/28/07), 964 So.2d 363 (Citations omitted). A trial court has wide discretion in deciding whether or not to certify a class. Id. Any errors to be made in deciding class action issues should.be in favor of and not against maintenance of the class action, because a class certification order is subject to modification if later developments during the course of the trial so require. Id., 07-66 at 6-7, 961 So.2d at 509.

When reviewing the trial court’s ruling regarding class certification, we do not consider whether plaintiffs’ claims state a cause of action or have substantive merit, or whether plaintiffs will ultimately prevail on the merits. Oubre, supra, 07-66 at 7, 961 So.2d at 509 (Citations omitted). Rather, our task is to examine plaintiffs’ legal claims and to determine only whether a class action is the | ^appropriate procedural device in light of established Louisiana criteria. Id. (Citation omitted).

Plaintiffs’ evidence minimally establishes the requisites for class certification. Had this court been making the initial determination, we may have decided this case differently. However, our task, in this case, is not to make findings of fact; rather, we are called upon to determine whether the trial court’s findings of fact are manifestly erroneous or clearly wrong. Furthermore, given the trial judge s wide discretion in certifying a class, and mindful of La.C.C.P. art. 592(A)(3)(c) that allows a trial judge to decertify a class at any time before a decision on the merits of the common issues, we affirm the judgment for the reasons that follow.

Analysis

Numerosity/Definability

La.C.C.P. art. 591(A)(1) requires that “[t]he class is so numerous that join-der of all members is impracticable.” The numerosity requirement is not met by simply alleging a large number of potential claimants. Pulver v. 1st Lake Properties, Inc., 96-248, 5 (La.App. 5 Cir. 9/18/96), 681 So.2d 965, 968. To establish numerosity, a determination must be made on the facts and circumstances of each individual case. Id. (Citation omitted). Although the identification of all potential class members is unnecessary, the party seeking certification should be able to establish a definable group of aggrieved persons. Id.

La.C.C.P. art. 591(A)(5) requires that the class 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. Oubre v. Louisiana Citizens Fair Plan, 07-66, p. 14 (La.App. 5 Cir. 5/29/07), 961 So.2d 504, 513, writ denied, 07-1329 (La.9/28/07), 964 liaSo.2d 363. The parties seeking certification must be able to establish a definable group of aggrieved persons based on objective criteria derived from the operative facts of the case. Id. (Citation omitted). The definition of the class should provide a sufficient basis upon which to determine the scope of the class and the propriety of permitting plaintiffs to represent all or a part of it. Clement v. Occidental Chemical Corp., 97-246, p. 9 (La.App. 5 Cir. 9/17/97), 699 So.2d 1110, 1114, writ denied, 97-2884 (La.1/30/98), 709 So.2d 718 (Citation omitted).

Appellant argues that the “numer-osity” requirement was not satisfied because the class would necessarily include those customers who did not directly receive the rebate but who nonetheless received a reduction in the purchase price. Thus, the evidence did not demonstrate that there were a sufficient number of customers who were aggrieved in the same manner.

Also, appellant asserts that the plaintiffs acknowledged that there was insufficient evidence. As previously discussed, the thrust of the plaintiffs’ argument at the hearing, however, concerned the need to prove whether or not the customers actually received the rebate.

Additionally, appellant argues that the trial judge erred by holding that the plaintiffs satisfied the definability requirement because each member must be questioned regarding his negotiation with the salesperson. Therefore, the determination of class membership would require individual mini-trials.

Although appellant argues that customers could have received the rebate in the form of a discounted price, this argument goes to the defense. The subject of this appeal deals strictly with whether a class was properly certified. We will not delve into the merits of a case when reviewing an order denying or granting class certification. See: Oubre, supra, 07-66 at 7, 961 So.2d at 509 (Citations omitted). The question of whether a class member actually received the benefit of the rebate | nwould require this Court to go to the merits of the case, and this is simply not proper in determining if class certification was proper. Id.

Importantly, the class definition in this case rests on the common question: Did the defendant fail to advise these class plaintiffs about their entitlement to rebates and obtain an unauthorized assignment of their rebates to the defendant? The documents introduced at the hearing reveal inconsistencies regarding the defendant’s written rebate notification to the customer. In particular, despite written notification of the rebate through the “Customer Cash Payment Authorization” form (the form assigning the rebate to the dealer), the rebate was generally not listed on the retail buyers order form that the customer also purportedly signed. Moreover, in thirteen files, the rebate that had been noted elsewhere was not listed on the vehicle application to the state.

Whether the rebate incentive which appears in the sales documents was properly assigned to the defendant is an issue which applies to all class members equally, especially because of the common business practice of otherwise omitting written notification of the rebate on other sales documents. As such, our review in this case reveals that the trial judge’s factual findings that the evidence submitted was sufficient to satisfy the requisite elements of “numerosity” and “definability” were not manifestly erroneous. The class has been defined by a definable group of aggrieved persons based on objective criteria derived from the operative facts of the case.

Commonality

Article 591(A)(2) requires that “[t]here are questions of law or fact common to the class.” Under La. C.C.P. art. 591(B)(3), the “predominance requirement,” the trial court must determine whether questions of law or fact common to the members of the class predominate over any questions affecting only individual |1fimembers. Daniels v. Witco Corp., 03-1478, p. 6 (La.App. 5 Cir. 6/1/04), 877 So.2d 1011, 1015, writs denied, 04-2283, 04-2287 (La.11/19/04), 888 So.2d 204, 205 (Citation omitted). While subsection (A)(2) of that article requires that there be questions of law or fact common to the class, subsection (B)(3) requires further that these common questions predominate over any questions affecting only individual members. Id. This requirement restricts class actions to those cases in which it would achieve economies of time, effort, and expense, and promote uniformity of decisions as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. Id. (Citation omitted). Under certain circumstances, the existence of individual causation and liability issues as to each potential class member may so predominate over common issues that class certification is inappropriate. Bernard v. Thigpen Const. Co., Inc., 97-1877 (La. 11/21/97), 702 So.2d 1387, 1387 (per curiam).

Appellant argues that an alleged fraud case, such as this one, is not suitable for treatment as a class action due to the variation in the representation made and the customer’s degree of reliance on that representation. It relies on Banks v. New York Life Ins. Co., 98-0551 (La.7/2/99), 737 So.2d 1275, cert. denied, 528 U.S. 1158, 120 S.Ct. 1168, 145 L.Ed.2d 1078 (2000).

In Banks, the plaintiffs filed suit on behalf of those who had purchased life insurance from New York Life Insurance, Co. Illustrations such as charts and explanatory brochures were available to assist agents in the sales presentations. The misrepresentations in that case were allegedly written in the illustrations and based upon oral statements by the individual insurance agents. The Court found that the trial court would be required to scrutinize each plaintiffs case individually to determine whether the oral representations were at odds with the written disclosures and analyze whether the plaintiffs relied upon oral statements, written 11fimaterials or both. The Court concluded that there were too many individual issues affecting New York Life’s and its agents’ liability in that case to find that common issues predominate. 98-0551, pp. 4, 9, 10, 12 (La.7/2/99), 737 So.2d 1275, 1278, 1281-82, 1283.

Banks is distinguishable. That case involved approximately 1,000 insurance agents who sold 101,109 policies to Louisiana residents, 1,850 of whom comprised the class. 98-0551 at 3, 737 So.2d at 1278. The present case is less formidable. See also: West v. G & H Seed Co., 01-1453, 27 (La.App. 3 Cir. 8/28/02), 832 So.2d 274, 291 where, in a fraud class action, the Third Circuit distinguished Banks primarily on the basis that the West case did not involve such a large number of subjective inquiries.

Likewise, the present case is distinguishable from Chiarella v. Sprint Spectrum LP, 04-1433, p. 3 (La.App. 4 Cir. 11/17/05), 921 So.2d 106, 110, unit denied, 05-2539 (La.3/31/06), 925 So.2d 1263. In Chiarella, the plaintiffs sought a class action against numerous defendants. Some plaintiffs purchased their phones directly from the Sprint Defendants, while others purchased their phones from the Retail Defendants. The petition focused on alleged false representations made to the plaintiffs with the intent to deceive and defraud the class members and to induce them to purchase phones sold by the Sprint Defendants and Retail Defendants and subscribe to the Sprint PCS wireless service. Id. The purported class included all individuals, businesses, corporations, or other entities, who subscribed to Sprint PCS wireless service or who purchased a Sprint telephone in the Greater New Orleans market, from May 1997, and for two years thereafter. Based on that definition, the parties agreed that there were about 60,000 persons in the New Orleans area who were Sprint PCS wireless subscribers during that two-year period. Id. The plaintiffs’ suit against the Sprint Defendants and Retail 117Pefendants alleged that the Sprint PCS wireless system installed by the Sprint Defendants in the New Orleans area and the telephones sold with that system did not provide the plaintiffs with the services to which they were entitled and for which they had bargained. In particular, they experienced a high volume of blocked and dropped calls, as well as the inability to place and/or receive calls in geographical regions that the Sprint Defendants and Retail Defendants allegedly represented were available for use. Chiarella, supra, 04-1433 at 4, 921 So.2d 111. Relying in part on Banks, the Court concluded that the predominance requisite was not met. The Court found that the trial court would be required to analyze whether each plaintiff justifiably relied upon what he/she was told and/or saw before deciding to purchase Sprint PCS wireless service. 04-1433 at 25, 921 So.2d 123. The task here is not as daunting.

Here, the plaintiffs have not limited their allegations to fraud. They also alleged unfair trade practices, failure to act in good faith, concealment, and unjust enrichment. The common complaint is that the defendant’s business practice did not allegedly apprise the customers of the rebates, which were allegedly assigned to the defendant without their authorization. The source of contention in this case is the defendant’s decision to only provide written notice of the rebate on an assignment form. Mr. Chauvin testified that he did not sign the assignment form. Although Mr. Hoffman construed a power of attorney as giving authorization to assign rebates, Mr. Chauvin disagreed.

The common issues that predominate in the case at bar are the assignment authorization to the defendant which is common to all class members’ sales involving rebate incentives and the question of whether the class members gave that authorization.

[1RWe conclude that the trial judge was not manifestly erroneous in finding that common issues predominated over individual ones, and that the causative link between the defendant’s conduct and the plaintiffs’ damages is the same for all plaintiffs. The possibility that some persons may fail to prevail on their individual claims will not defeat class membership. Duhe v. Texaco, Inc., 99-2002, p. 15 (La. App. 3 Cir. 2/7/01), 779 So.2d 1070, 1080, writ denied, 01-0637 (La.4/27/01), 791 So.2d 637 citing Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624, n. 1 (5th Cir.1999), cert. denied, Treasure Chest Casino v. Mullen, 528 U.S. 1159, 120 S.Ct. 1169, 145 L.Ed.2d 1078 (2000).

The trial judge believed that common issues would predominate in the determination of liability on the merits, and that these issues were common to all class members. The trial court is in a better position to assess the relative strength of the class action procedural mechanism to do justice in this circumstance. Further, the trial court maintains the opportunity to address the appellant’s concerns through decertification of the class if necessary. We will not disturb the trial court’s discretionary findings on this point.

Typicality

Typicality, La.C.C.P. art. 591(A)(3), requires that the claims of the class representatives be a cross-section, or typical of, the claims of all class members. Schexnayder v. Entergy Louisiana, Inc., 04-636, p. 9 (La.App. 5 Cir. 3/29/05), 899 So.2d 107, 114, writ denied, 05-1255 (La.12/9/05), 916 So.2d 1058 quoting Duhe v. Texaco, Inc., 99-2002 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, 1079, writ denied, 01-0637 (La.4/27/01), 791 So.2d 637 (Citations omitted). The test for typicality, like commonality, is not demanding. Id. It satisfies typicality if the | ^representative plaintiffs’ claims arise out of the same event or course of conduct as the class members’ claims and are based on the same legal theory. Id.

Appellant argues that the trial judge erred in holding that Mr. Chauvin’s claims typify those of the absent class members. It asserts that fraud requires fact-intensive and individualized inquiries. Determining whether the alleged forgery was actually authorized would require individual testimony from each class member and the appellant’s salespersons. Furthermore, due the variance in negotiations, none of these individual negotiations were “typical.”

The trial judge found that the typicality element was established. She was aware of the possibility of factual variations. However, she concluded: “Though it may appear at trial that there are some factual variations, the overriding issues concern whether Lamarque intentionally failed to disclose the existence of customer rebates to which class members were entitled.” We find no manifest error in her factual determination.

Adequacy

The purpose of the adequacy requirement, La.C.C.P. art. 591(A)(4), is to protect the legal rights of the unnamed class members. Schexnayder v. Entergy Louisiana, Inc., 04-636, p. 9 (La.App. 5 Cir. 3/29/05), 899 So.2d 107, 115, writ denied, 05-1255 (La.12/9/05), 916 So.2d 1058 quoting Duhe v. Texaco, Inc., 99-2002 (La. App. 3 Cir. 2/7/01), 779 So.2d 1070, 1079, writ denied, 01-0637 (La.4/27/01), 791 So.2d 637 (Citation omitted). In federal law, it is not required that the named plaintiffs understand all of the legal intricacies of the suit in order to adequately represent the class. Id. The test often used for adequate representation consists of three elements: (1) the chosen class representatives cannot have antagonistic or conflicting claims with other members of the class; (2) the named representatives must have a sufficient interest in the outcome to insure vigorous | ^advocacy; and (3) counsel for the named plaintiffs must be competent, experienced, qualified, and generally able to conduct the proposed litigation vigorously. Id.

Appellant argues that the court erred by holding that the plaintiffs satisfied the adequacy requirement as Mr. Chauvin effectively abdicated his role as class representative to the attorney. Appellant points to Mr. Chauvin’s testimony. In particular, appellant notes that Mr. Chauvin testified that he understood his duty as a class representative as it was explained by his attorney. Mr. Chauvin had not contacted any other customer, had not looked at any records other than his own, and had not done any research as to how automobile rebate programs worked. He also testified that he did not know the difference between the invoice and the sticker price. Mr. Chauvin, however, also testified that he understood his duty was to represent others who had similar situations in an effort to secure relief for them as it would for himself. The trial judge found that Mr. Chauvin had “first hand knowledge” of the defendant’s alleged conduct; he submitted evidence sufficient to establish that he had suffered an actual injury; his stake in the litigation was typical of that of other class members; he demonstrated his willingness to fulfill his role by appearing to testify before the court about his claims; and, there was no indication that Mr. Chauvin had any conflicting interests. There is evidentiary support for the court’s finding that Mr. Chauvin will adequately represent the interests of the class, and the record as a whole does not indicate that this finding was manifestly erroneous.

Superiority

Appellant contends that the trial judge erred in finding that the class certification requirement of superiority had been met, pursuant to La.C.C.P. art. 591(B)(3).

| si When a common character of rights exists, a class action is superior to other available adjudicatory methods for the purpose of promoting the basic goals of a procedural device: 1) implementing the substantive law at issue in the case; 2) providing judicial efficiency in carrying out the substantive law; and 3) insuring individual fairness to all parties involved. Outre v. Louisiana Citizens Fair Plan, 07-66, p. 13 (La.App. 5 Cir. 5/29/07), 961 So.2d 504, 512, writ denied, 07-1329 (La.9/28/07), 964 So.2d 363 (Citations omitted). If the superiority of a class action is disputed, the trial court must inquire into the aspects of the case and decide whether some other procedural device would better serve these goals. Id.

Appellant argues that because the plaintiffs could not satisfy the other elements of Article 591, the class action device is procedurally inappropriate. We find no merit to this argument because we find that the plaintiffs satisfied the other elements of Article 591.

Appellant also argues that the trial judge erred because the plaintiffs could pursue their claims in a Justice of the Peace Court or Parish Court. And, due to the individualized and unique considerations presented by each claim, those fora would be superior to a class action.

The trial judge found that “because the plaintiffs’ claims are of modest monetary value, requiring them to proceed by individual trials will disenfranchise large numbers of injured persons from the legal system.” She concluded that the “costs associated with individual liability suits would exceed the value of plaintiffs claims.” Considering that “the ultimate goal of the class action is to efficiently and fairly ensure that the substantive- law underlying the plaintiffs’ claims is effectuated,’ the trial judge carefully balanced “considerations of procedural fairness with judicial efficiency.” She found “that class action [was] virtually the only method by which that goal will be achieved in this case.”

_[2gConsidering the trial judge’s well-reasoned conclusions in light of the record before us, we cannot say that the trial judge erred in finding that a class action is the superior procedural device in this matter.

Conclusion

In conclusion, 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 a class action. We note, however, that the trial court can revisit or modify its decision regarding class certification if later developments so require. See: La.C.C.P. art. 592(A)(3)(c).

Decree

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

AFFIRMED.

CHEHARDY, J. dissents with reasons.

CHEHARDY, J.

dissents with reasons.

hi disagree with the majority opinion in this matter on three main points. First, it appears that the Plaintiffs impermissibly expanded their pleadings during the certification hearing. In their amended petition, Plaintiffs sought to certify a class of “all persons who purchased motor vehicles from [Lamarque Ford] and who were entitled to a rebate, but did not receive the rebate, and received no credit for the rebate.” At the hearing on the matter, however, Plaintiffs sought to certify a class that included “people who purchased a vehicle from Lamarque Ford from 1998 through the present, who were entitled to a rebate, whose purchase documents do not disclose that they received the rebate.” In my view, these two groups represent significantly different classes of individuals, which expanded the class.

Moreover, Plaintiffs should not have been allowed to redefine the class without amending their pleadings. Furthermore, the impermissible expansion does little to cure the original problems in Plaintiffs’ quest for class certification. In fact, the expanded class appears to exacerbate the already problematic issues of commonality and typicality.

My second concern is that commonality cannot be established in this case because each separate claim will be grounded in very disparate questions of fact about the negotiation process between the parties and Lamarque, and how the claimant was credited for any rebate to which they may have been entitled. Plaintiffs’ class representative could not give details after reviewing other putative class members’ transaction documents that would indicate whether or not 12prospective purchasers were informed of the existence of rebates, if they were given the benefit of those rebates through some type of credit, or if Lamarque converted any undisclosed rebates. In sum, the class representative’s claim will not be common to those of other members of the class because the specific negotiation that led to each transaction will not be common.

Finally, in my view, the Plaintiffs cannot prove typicality because the class of claims are not grounded in any similar event. Each claim will, in fact, be subject to a mini trial, and the purpose of class certification will be thwarted. For these reasons, I would reverse the judgment of the trial court, and remand the case for further proceedings.

      . The petition was originally filed in St. Tammany Parish but was transferred to Jefferson Parish after the trial judge granted an exception as to venue.

      . Guy Perniciario, a Lamarque Ford employee, identified the documents as those that were regularly kept by his employer.

      . There were 15 types of incentives for rebate amounts that ranged from $300 to $1,500.

      .In contrast to the files that only provided written disclosure of the rebate through the assignment form, which the plaintiffs alleged was not signed by the customer, plaintiffs’ counsel introduced a file in which written disclosure of the rebate was indicated on the buyer's order as well as on the state’s vehicle application.


source: Caselaw Access Project

author: EDWARD A. DUFRESNE, JR., Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Stafford BOLDEN.
    No. 09-KA-33.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 12, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, William C. Credo, III, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. MeMANUS.
   EDWARD A. DUFRESNE, JR., Chief Judge.

l2On February 14, 2006, the Jefferson Parish District Attorney filed a bill of information charging defendant, Stafford Bolden, with possession of a firearm by a convicted felon, in violation of LSA-R.S. 14:95.1 (count one), and possession of cocaine between 28 and 199 grams, in violation of LSA-R.S. 40:967 F (count two). At the arraignment, defendant pled not guilty. Defendant then filed a motion to suppress evidence which was heard and denied on May 30, 2006.

Thereafter, on October 23, 2006, defendant withdrew his not guilty plea and pled guilty as charged pursuant to State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the denial of his motion to suppress. The trial court sentenced defendant on count one to imprisonment at hard labor for ten years without benefit of parole, probation, or suspension of sentence, and on count two to imprisonment at hard labor for ten years with the sentences to run concurrently.

The State filed a multiple offender bill of information pursuant to LSA-R.S. 15:529.1 alleging defendant to be a second felony offender. After defendant |i¡admitted the allegations, the trial court vacated the original sentence on count two and sentenced defendant as a multiple offender to imprisonment at hard labor for fifteen years without benefit of probation or suspension of sentence to run concurrently with any other sentence defendant was serving. Defendant subsequently filed an application for post-conviction relief seeking an out-of-time appeal which the trial court granted.

FACTS

On January 31, 2006, Agent Bryan Poison, defendant’s parole officer, went to defendant’s girlfriend’s apartment located at 161 Fredricks to conduct a residence check. The agent knocked on the door, and Brandon Atkins, an individual who was also staying at the apartment, answered it. After the agent identified himself, Atkins called to defendant who was in another room. Defendant came from the back bedroom and greeted the agent.

Defendant and Agent Poison conversed in the front room. Defendant then said he had to go brush his teeth, which Agent Poison thought was odd. Agent Poison followed defendant down the hallway. At that time he looked “catty-corner” and saw a gun in plain sight on the bedroom dresser. Because defendant had violated his parole by having a gun in the residence, Agent Poison placed defendant in handcuffs and called for his partner, Agent Guidry, to come inside the residence. Agent Guidry watched defendant while Agent Poison conducted a search of the residence. During that search, Agent Poison found 117 grams of cocaine, $1,709.00, a scale, and defendant’s identification with a razor blade and a crack cocaine rock on top of it. The agent also found, underneath the gun, the paper that he had recently given defendant showing his arrear-ages with parole.

After considering Agent Poison’s testimony as well as arguments of counsel, the trial judge denied the motion to suppress finding that the agent had the right to Renter the apartment, and further, that once the agent observed a gun in plain view in the bedroom of the residence, he had the right to conduct a search.

ASSIGNMENT OF ERROR NUMBER ONE

On appeal, defendant challenges the trial court’s denial of his motion to suppress evidence. For the reasons that follow, we find no error in the trial court’s ruling.

The Fourth Amendment of the U.S. Constitution and Article I, § 5 of the Louisiana Constitution protect individuals from unreasonable searches and seizures. Warrantless searches and seizures are unreasonable per se unless justified by a specific exception to the warrant requirement. State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 757, cert. denied, 01-2269 (La.9/20/02), 825 So.2d 1156. However, a person on parole or probation has a reduced expectation of privacy under the Fourth Amendment of the U.S. Constitution and under Article I, § 5 of the Louisiana Constitution. State v. Young, 07-988 (La.App. 5 Cir. 6/19/08), 988 So.2d 759, 762.

An individual on parole or probation does not have the same freedom from governmental intrusion into his affairs as does the average citizen. A probationer must necessarily have a reduced expectation of privacy, which allows for reasonable warrantless searches of his person and residence by his probation officer, even though less than probable cause may be shown. This reduced expectation of privacy derives from the probationer’s conviction and his agreement to allow a probation officer to investigate his activities in order to confirm that he is abiding by the provisions of his probation. State v. Saulsby, 04-880 (La.App. 5 Cir. 12/28/04), 892 So.2d 655, 657-658.

A probation officer may not use his authority as a subterfuge to help another police agency that desires to conduct a search, but lacks probable cause. State v. Malone, 403 So.2d 1234, 1238 (La. 1981). The parole or probation officer must believe that the search is necessary in the performance of his duties and reasonable in light of the total circumstances. State v. Saulsby, 892 So.2d at 658. In determining whether a warrantless search by a probation or parole officer was reasonable, the court must consider: (1) the scope of the particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it, and (4) the place in which it was conducted. State v. Malone, 403 So.2d at 1239; State v. Young, 988 So.2d at 763-764. Although the State still bears the burden of proving the admissibility of evidence seized without a warrant, when the search is conducted for probation violations, the State’s burden will be met when it establishes that there was reasonable suspicion that criminal activity was occurring. State v. Saulsby, 892 So.2d at 658.

In challenging the trial court’s denial of his motion, defendant argues that the evidence should have been suppressed because the search was conducted in his girlfriend’s residence and not the residence he listed on his parole plan, and his reduced expectation of privacy did not extend to his girlfriend’s residence.

In the present case, the record indicates that defendant was residing at his girlfriend’s apartment. The parole officer testified that defendant was never at his mother’s residence on Cabildo when he went to visit him, even though that address was listed as defendant’s residence on his parole plan. Defendant told his parole officer on January 19, 2006 and again on January 26, 2006, that he was living with his girlfriend at the King Fre-dricks Apartments and that the officer could visit him there. When Officer Poison went to conduct a residence check on January 31, 2006, defendant was at the Fredricks Street address; in fact, when he was advised that the officer was there, defendant came from a back bedroom, greeted the officer, and invited him in. Additionally, the parole officer found some of | ^defendant’s belongings in the apartment, namely, defendant’s identification and the paper the parole officer had given defendant a few days prior regarding his arrearages with the parole office which he found underneath the gun on the nightstand.

Even though defendant did not give the officer written notification of his change of residence, he verbally notified the officer on two occasions that he was living at his girlfriend’s residence. Because defendant resided in his girlfriend’s apartment, his parole officer had the right to enter the residence and speak to him due to defendant’s reduced expectation of privacy as a parolee. The evidence shows that the parole officer did not make a forced entry, and defendant greeted him in an apparently friendly manner. As the parole officer was walking toward the bathroom, he observed a gun on the nightstand in a bedroom. Under the plain view doctrine, if police officers are lawfully in a position from which they view an object that has an incriminating nature which is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. State v. Manson, 791 So.2d at 757. Because the parole officer had the authority to enter defendant’s residence due to his status as a parolee, the parole officer had the right to seize the gun he saw in plain view. Since the parole officer then had reasonable suspicion of criminal activity, he was authorized to conduct a thorough search of the apartment. State v. Saulsby, 892 So.2d at 658.

On appeal, defendant also argues that the evidence should have been suppressed because the State failed to prove that he had agreed to a search of his residence as a condition of parole.

At the suppression hearing, Agent Poison testified that, as part of his work as a parole officer, he is allowed to go into parolees’ homes without an invitation. He further testified that being allowed to go inside a parolee’s residence is one of |7the standard conditions of parole. In the instant case, the State did not provide documentation at the hearing that defendant had agreed to a search of his residence as a condition of parole. However, Agent Poison’s testimony that he was allowed to go into parolees’ homes and that that was a standard condition of parole was not refuted. As the State noted in its brief, this is consistent with LSA-R.S. 15:574.4 H(4)(m) and (r). Also, the jurisprudence recognizes such conditions. In State v. Wesley, 28,941 (La.App. 2 Cir. 12/13/96), 685 So.2d 1169, 1174, writ denied, 97-0279 (La.10/10/97), 703 So.2d 603, the appellate court noted that it is an appropriate function of a parole officer to conduct unannounced, random checks on parolees and further that a parolee agrees to submit to such unannounced visits from his parole officer as a condition of parole.

Defendant also argues on appeal that the evidence should have been suppressed because the warrantless search was unreasonable and a pretext for an unconstitutional search.

In State v. Shields, 614 So.2d 1279, 1284 (La.App. 2 Cir.1993), writ denied, 620 So.2d 874 (La.1993), the appellate court found that the search for a probation violation was not a subterfuge for a criminal investigation where there was no ongoing investigation of the defendant at the time the informant reported a possible probation violation and the search of the residence was conducted by probation officers only. Likewise, in State v. Odom, 34,054 (La.App. 2 Cir. 11/1/00), 772 So.2d 281, the court found that the search conducted by the probation officer was not a subterfuge to help the narcotics department conduct a search without the necessary probable cause. In that case, the appellate court noted Ifithat thére was no evidence of an ongoing investigation of defendant at the time the probation officer was notified of his illegal activity, and the search was conducted by the two probation officers.

In the instant case, there was no evidence of an ongoing investigation of defendant. Also, the search of the residence was apparently conducted by a parole officer only. Therefore, we conclude that the search of defendant’s residence was not a subterfuge for a criminal investigation.

In light of the foregoing discussion, we find no error in the trial court’s denial of defendant’s motion to suppress. Accordingly, the arguments raised by defendant in this assigned error are without merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir.1990). Our review reveals no errors which require corrective action.

For the reasons set forth herein, defendant’s convictions and sentences are hereby affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

      . LSA-R.S. 15:574.4 H(4)(m) provides that the Board of Parole may require that the parolee agree to be subject to visits by his parole officer at his home without prior notice. LSA-R.S. 15:574.4 H(4)(r) provides that the Board of Parole may require that the parolee agree to searches of his person, his property, his place of residence, his vehicle, or his personal effects at any time by the parole officer assigned to him, with or without an arrest or search warrant, when the parole officer has reasonable suspicion to believe that the person who is on parole is engaged in or has been engaged in criminal activity since his release on parole.


author: PAUL A. BONIN, Judge. BELSOME, J.,

text:
    Jessica GOLDFINCH v. UNITED CABS, INC., Academy Insurance Agency, Inc., Imperial Adjustment Corporation DBA “Imperial Fire and Casualty”, and Taxi Driver John Doe.
    No. 2008-CA-1447.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 2009.

      Craig V. Sweeney, Jennifer M. Stolier, Spyridon Palermo & Doman, L.L.C., Me-tairie, LA, for Jessica Goldfinch.
    B. Frank Davis, David M. McDonald, Bernard Cassisa Elliott & Davis, a PLC, Metairie, LA, for United Cabs, Inc.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

pin this personal injury suit, Jessica Goldfinch obtained a judgment by default against United Cabs, Inc. (“United Cabs”). The trial court denied United Cabs’ motion for new trial. This suspensive appeal followed. For the reasons which follow, we reverse the trial court and remand the matter for a new trial.

Background of proceedings. Ms. Goldfinch filed suit against United Cabs, Imperial Adjustment Corporation d/b/a/ “Imperial Fire and Casualty” and Academy Insurance Agency, Inc., on October 7, 2002, claiming that she was injured while a passenger in a United taxicab. United Cabs was served on November 21, 2002, and referred the lawsuit to its insurer, Imperial Fire and Casualty Company. Nothing further happened in the lawsuit until Ms. Goldfinch filed a series of preliminary defaults against the named defendants, including United Cabs, on April 27, 2005. On April 23, 2008, the trial court conducted an evidentiary hearing to confirm the preliminary default against United Cabs, Inc., hand Imperial Adjustment Corporation d/b/a Imperial Fire & Casualty, and it rendered judgment on May 5, 2008, confirming the default.

As soon as United Cabs was served the notice of judgment, it timely moved for a new trial. The trial court denied the motion on June 6, 2008, concluding that United Cabs had “ample opportunity over the five plus years this suit was pending to learn of its existence and to plead any and all defenses.”

General factual background. Ms. Goldfinch testified that she and three friends were passengers in an otherwise unidentified United Cabs taxicab on the night of March 7, 2002. After two of her friends had been dropped off, the unidentified and undescribed cab driver slammed on the brakes, which action caused Ms. Goldfinch to fall forward and strike her face on the rear of the driver’s seat. Her face became covered with blood. The cab driver then ordered the two passengers out of the cab. Ms. Goldfinch and her friend walked seven blocks to her home.

The next morning, Ms. Goldfinch presented herself to the student health clinic at the University of New Orleans. She says that the nurse referred her to the emergency room at Charity Hospital. At Charity a CT scan and x-rays were taken. She was referred to a specialist. Ms. Goldfinch began to experience headaches.

On July 2, 2002, a septorhinoplasty surgery was performed at Charity on Ms. Goldfinch to repair a deviated septum. She continued to suffer headaches and [3was treated by Dr. Dennis Casey. At the time of the confirmation hearing on April 23, 2008, Ms. Goldfinch’s nose was still tender and she experienced headaches about twice a month. The trial court’s judgment awarded her $20,000 in general damages and $8,622.25 in special damages.

Assignments of error. United Cabs argues on appeal that the trial court erred as a matter of law in denying the motion for new trial because the judgment in Ms. Goldfinch’s favor was “clearly contrary to the law and the evidence.” La. C.C.P. art.l972(l). United Cabs argues that the evidence introduced against it was not legally sufficient to support the judgment. Ms. Goldfinch responds that her evidence was legally sufficient. United Cabs alternatively argues that the trial court abused its discretion in not granting it a new trial because “there is good ground therefor.” La. C.C.P. art.1973. It contends that its referral of the lawsuit to its liability carrier, which Ms. Goldfinch had also sought to join as a defendant, and its reasonable belief that the liability carrier was responding to the lawsuit, constitutes the “good ground” for the granting of a new trial, especially since the court granted a new trial to the insurer. Ms. Goldfinch argues that the trial court’s refusal to grant a new trial on that ground does not constitute an abuse of the trial judge’s discretion. Importantly, the parties agree that the default judgment was procedurally proper.

|4I. The Law Requires Sufficient Evidence to Support a Default Judgment.

The Louisiana Supreme Court in Arias v. Stolthaven New Orleans, L.L.C., 08-1111, pp.5-8(La.5/5/09), 9 So.Sd 815, 818-820 stated the law applicable to a review of the evidence offered to support a judgment of confirmation of a default:

The appellate jurisdiction of courts of appeal extends to both law and facts. La. Const, art. V, § 10(B). A court of appeal may not overturn a judgment of the trial court absent an error of law or a factual finding that was manifestly erroneous or clearly wrong. Stobart v. State, Dept. of Transp. And Development, 617 So.2d 880, 882, n. 2, (La.1993). When the court of appeal finds that a reversible error or manifest error of material fact was made in the trial court, it is required to re-determine the facts de novo from the entire record and render judgment on the merits. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment, [citation omitted]. This determination is a factual one governed by the manifest error rule, [citation again omitted].
Confirmation of a default judgment is similar to a trial and requires, with admissible evidence, “proof of the demand sufficient to establish a prima facie case.” La. C.C.P. art. 1702(A); Power Marketing Direct[, Inc. v. Foster], 05-2023 at p. 10[(La.9/6/06)], 938 So.2d [662] at 670; Maraist, supra, at 452-453. The elements of a prima facie case are established with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258 (La.1993); Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989). In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial on the merits. Thibodaux, 538 So.2d at 1004. A plaintiff seeking to confirm a default must prove both the existence and the validity of his claim. A default judgment cannot be different in kind from what is demanded in the petition and the amount of damages must be proven to be properly due. La. C.C.P. art. 1703.
At the hearing, the rules of evidence generally apply. La. C.E. art. 1101(A); Maraist, supra, at 452^53. The plaintiff must follow |sthe rules of evidence even though there is no opponent. “Because at a default confirmation there is no objecting party, to prevent reversal on appeal, both plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence” that establishes a prima facie case. George W. Pugh, Robert Force, Gerald A. Rault, Jr., & Kerry Triche, Handbook on Louisiana Evidence Law 677 (2007). Thus, inadmissible evidence, except as specifically provided by law, may not support a default judgment even though it was not objected to because the defendant was not present. 19 Frank L. Maraist, Civil Law Treatise: Evidence and Proof § 1.1, at 5 (2d ed.2007).
There is a presumption that a default judgment is supported by sufficient evidence, but this presumption may be rebutted by the record upon which the judgment is rendered. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 527, 263 So.2d 875, 878 (1972).... (emphasis added.)

An exception to the general rule of inadmissible evidence is found at La. C.C.P. art. 1702(B)(1), which instructs the court on what kind of evidence in a tort case may be used to establish a prima facie case:

When a demand is based upon a delic-tual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits attached thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.

La. C.C.P. art. 1702(D) further expressly provides that “[w]hen the demand is based upon a claim for personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony.” Certified medical records and bills are also admissible evidence in a confirmation of default in support of establishing a prima facie case. La. R.S. 13:3714(A):

Whenever a certified copy of the chart or record of any hospital, signed by the administrator or the medical records librarian of the hospital in question, or a copy of a bill for services rendered, medical narrative, chart, or record of any other state health care provider, as defined by R.S. 40:1299.39(A)(1) and any other health care provider as defined in R.S. 40:1299.41(A), certified or attested to by the state health care provider or the private health care provider, is offered in | ¡¡evidence by such court as pri-ma facie proof of its contents, provided that the bills, medical narrative, chart, or record is sought to be used may summon and examine those making the original of the bills, medical narrative, chart, or record as witnesses under cross-examination.

See also, Arias v. Stolthaven New Orleans, L.L.C., 07-0650, pp. 12-15 (La.App. 4 Cir. 3/19/08), 980 So.2d 791 at 801-803, reversed on other grounds, Arias v. Stolthaven New Orleans, L.L.C., 08-1111 (La.5/5/09), 9 So.3d 815, 818,

These special legislative provisions relax the general rule as to the inadmissibility of hearsay. La. C.E. arts. 801(A) and 802. Unless one of these exceptions applies, hearsay evidence does not constitute competent evidence to establish a prima facie case.

A plaintiff who seeks to present evidence to confirm a default judgment based on his or her personal injury must introduce sufficient evidence to prove both a causal connection and the quantum of damages between the tortious event and the injuries. Hall v. Folger Coffee Co., 02-0920, p. 20 (La.App. 4 Cir. 10/1/03), 857 So.2d 1234, 1248. We, therefore, evaluate the evidence offered by the plaintiff to determine whether it is competent evidence.

II. The Evidence

A. Inadmissible Medical Evidence

Ms. Goldfinch reports that she was treated by three separate health care providers or facilities: the UNO student health clinic, Charity Hospital and its physicians, and Dr. Casey. Ms. Goldfinch, however, did not introduce live testimony, sworn affidavits, or certified medical records from the practitioner at the UNO clinic or from Dr. Casey. She introduced an unsworn report from Dr. 17Casey. Therefore, both health care providers’ evidence is not admissible and must be disregarded in determining whether a prima facie case has been established. Ms. Goldfinch relies upon Dr. Casey’s report to establish that she had no history of nasal problems before the date of the incident and to further establish that the septorhi-noplasty was a required surgery. This report is hearsay and cannot be used to establish a prima facie case unless it meets one of the exceptions of La. C.C.P. art. 1702(B)(1) or 1702(D). Article 1702(B)(1) would allow the report if it were attached to the physician’s affidavit, and article 1702(D) would allow the report if it were “a sworn narrative report.” (emphasis added) We, therefore, are compelled to exclude this unsworn report from evaluating whether Ms. Goldfinch has established a prima facie case.

B. Admissible Evidence: Medical Records and Bill of Charity Hospital

The certified medical record of Charity Hospital is the only acceptable medical evidence in this case. Although Ms. Goldfinch testified that she was treated at Charity Hospital on March 8, 2002, the certified medical records do not corroborate or substantiate this claim. The earliest dated record is June 27, 2002, which is an adult admission request form. The billing record, which is included, begins with the date of June 28, 2002. The operative report for the surgical repair of Ms. Goldfinch’s deviated septum on July 2, 2002, stated that the procedure was for the “correction of a nasal obstruction,” and stated that she suffered a nasal trauma in March 2002, with no further elaboration linking the surgery to the injuries sustained in the United Cab incident.

|sMs. Goldfinch attached as an exhibit five photographs she took of herself, in which a clock is in the background; the clock does not provide the date, just the time. Ms. Goldfinch testified that she took these photographs the day after she visited the emergency room.

C. Ms. Goldfinch’s Testimony Purged of Hearsay

We have reviewed the transcript and excised from Ms. Goldfinch’s testimony that material which is inadmissible. As edited, her testimony in support of her claim is as follows. Ms. Goldfinch testified that in the late evening of March 7, 2002, she and three friends called a cab, identified as a United cab, to take two friends to one location; then she and the fourth person, Charlie, were to be taken about fifteen blocks further, to her house. The driver drove “really jerky” and, as she was picking up her purse to look for money for the cab fare, the driver “slammed on the brakes really hard, and I just like fell forward and hit my face on the back of the seat.” After the driver resumed driving, after a block or so, he stopped the cab. She and Charlie in response to instructions got out. Ms. Goldfinch’s face was bleeding, and Charlie tried to help her. They paid the driver, then walked six or seven blocks to Ms. Goldfinch’s house, and she went to sleep. The next morning Ms. Goldfinch saw her swollen face, felt pain and nausea, and went to the UNO student health clinic, and later went to Charity Hospital’s emergency room. She testified that she underwent a CT scan and x-rays at Charity Hospital. She scheduled a surgical procedure that would remove the | flobstruction to her breathing. She claimed to have severe headaches and nausea, and denied having headaches prior to the incident. She underwent the elective outpatient nasal surgery on July 2, 2002, after having trouble breathing, bad headaches, and a rubbery feeling in her nose during the four-month waiting period.

After the surgery performed at Charity Hospital, Ms. Goldfinch’s nose was tender for “quite a while,” “a couple of most months.” She continued to have headaches, “even still.” She saw Dr. Casey in August 2005, complaining of headaches. She had started wearing reading glasses, and opined that “that spurred the headaches again.” She filled a prescribed medication, which she said did not help. She testified that as of 2008, when she testified, she has headaches once or twice a month, and avoids touching her nose or resting anything, like glasses, on it.

III. The Presumption Arising From Ms. Goldfinch’s Failure to Introduce Corroborating Evidence

According to Ms. Goldfinch, three other passengers were with her in the taxicab at the outset of the trip, one of whom, Charlie, remained with her in the cab at the time of the incident. She did not introduce live testimony or sworn affidavits of any of these witnesses. “The unexplained failure of a party to call a witness who possesses peculiar knowledge of material facts pertinent to the resolution of the case entitles the opposing party to a presumption that the witness’s testimony would be unfavorable.” Arnone v. Anzalone, 481 So.2d 1047, 1050 (La.App. 1st Cir.1985). “It is well established that such a presumption is available in this state [citations omitted].” Morgan v. Matlack, 366 So.2d 1071, 1073 (La.App. 1st Cir. |1979), writ denied, 369 So.2d 1352 (La. 1979); Lavigne v. Oechsner, 519 So.2d 870, 871 (La.App. 4th Cir.1988). In Ryder v. DHHR, 400 So.2d 1123, 1126 (La.App. 1st Cir. 1981), the First Circuit stated:

It should ... be noted that, in discharging its burden of proof, the authority failed to call three other witnesses who were present at this incident. Because their testimony would logically be part of the authority’s case, and their failure to testify being unexplained, it must be presumed that their testimony would not have aided the authority’s case.

Because of Ms. Goldfinch’s unexplained failure to introduce any corroborative evidence from any, or all, of her eo-passen-gers, we presume that their testimony would have been unfavorable to her.

IV. DISCUSSION

We find that the record does not contain sufficient evidence to prove a pri-ma facie case to support the judgment of default. The contents of the unsworn report of Dr. Casey are the glue between Ms. Goldfinch’s description of her injuries and the medical causation. The trial court erred in admitting the unsworn report of Dr. Casey. Without the contents of Dr. Casey’s report, we are unable to conclude de novo from admissible evidence that Ms. Goldfinch’s surgery in July 2008 was caused by the taxicab incident or that it was medically necessary. Her evidence contained no recommendation from a physician that her “elective” surgery on her nose four months later was recommended or required in order to treat or correct injuries sustained in the taxicab incident. Meshell v. Russell, 589 So.2d 86, 88-89 (La.App. 2d Cir.1991) (wherein the record was held insufficient to support confirmation of a default judgment when it did not include narrative report of treating physician or his testimony or proof that medical expenses were medically necessary).

| r. Moreover, while her testimony about the incident itself might ordinarily be sufficient to establish, however weakly, that she was injured due to the fault of the taxi driver, her unexplained failure to introduce the testimony of her eyewitness, Charlie, materially detracts from her own testimony, albeit uncontradicted. The compounded unexplained failure to introduce any corroborating testimony from the other passengers, at least to support that the incident occurred in a United cab, dilutes further the value of Ms. Goldfinch’s testimony.

Accordingly, we find that the trial court was manifestly erroneous in concluding that Ms. Goldfinch proved a prima facie case to support the judgment by default. The judgment was, therefore, contrary to the law and the evidence, and a new trial should have been granted by the trial court.

Because we decide the appeal on the basis that the evidence was insufficient to support the judgment, we need not review further United Cab’s second assignment of error that the trial court abused its discretion in failing to grant a new trial on the discretionary basis of “good ground therefor.”

DECREE

For the reasons set forth above, we reverse the trial court’s confirmation of the default judgment against United Cabs, Inc., and the denial of its motion for new trial. We remand the case to the trial court for further proceedings.

REVERSED AND REMANDED.

BELSOME, J., dissents with reasons.

BELSOME, J.,

Dissents with Reasons.

Li respectfully dissent from the majority’s opinion.

On appeal United claims that the trial court erred in finding sufficient evidence to award general and compensatory damages and also erred in denying its motion for new trial. I disagree.

The sufficiency of evidence in the confirmation of a default judgment is a question of fact that will not be reversed on review unless it is manifestly erroneous. Akerman v. Dawes, 1994-0757 (La.App. 4 Cir. 1/19/95), 658 So.2d 1270. La. C.C.P. article 1702 governs the confirmation of defaults. The statute reads in pertinent part:

A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.... * * *
(2) When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.
D. When the demand is based upon a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony.

laAt the confirmation hearing the trial judge was presented with Ms. Goldfinch’s testimony, photographs taken of her face after the incident, certified medical records from Charity Hospital and Dr. Dennis Casey’s report. First, Ms. Goldfinch’s testimony of the incident which occurred on March 7, 2002, in the back of the United cab was corroborated by the photographs of her injuries and the visit to the emergency room at Charity Hospital on the following day as noted within the certified medical records. The surgeon’s narrative, also part of the Charity Hospital records, clearly discusses the nasal trauma experienced by Ms. Goldfinch in March, 2002 and her need for surgery. Lastly, the report by Dr. Casey relates her long persisting headaches to the incident, stating that the severe damage caused to her nose likely caused some head trauma, which would be consistent with the continued complaints of headaches.

United challenges the sufficiency of the evidence in establishing a causal relationship between the alleged incident and Ms. Goldfinch’s surgery. More specifically, United argues that if the treating physician does not testify, La.C.C.P. art. 1702(D) requires a sworn narrative report in order to prove damages of a personal injury on default. This Court recently addressed that precise issue in Arias v. Stolthaven New Orleans, L.L.C., 2007-0650 (La.App. 4 Cir. 3/19/08), 980 So.2d 791, rev’d on other grounds, 08-1111 (La.5/5/09), 9 So.3d 815- (citing Oliver v. Cal Dive International, Inc., 02-1122 (La. App. 1 Cir 4/2/03), 844 So.2d 942). Arias, clarifies that the sworn narrative report in lieu of a physician’s testimony as referenced in La. C.C.P. art. 1702(D) is only necessary when the admissible medical records are not sufficient to establish a prima facie case as to the injury alleged. Id. p. 14, at 802. In the instant case, the trial court determined the ^evidence in the medical records and Dr. Casey’s report to be sufficient proof for a prima facie case for Ms. Goldfinch’s injuries and I do not find that she was manifestly erroneous in that ruling.

Next, United argues that the trial court erred in not granting its motion for new trial. This Court reviews the denial of a motion for new trial under an abuse of discretion standard. Campbell v. Tork, 2003-1341 (La.2004), 870 So.2d 968. United maintains that once it was properly served with the citation and petition for damages in 2002, it forwarded same to its insurer, Imperial, who failed to represent and defend as required by its policy. United further conceded that at no time over the more than five years after service did it follow up with its insurer on the status of the case. United avers that since Imperial was granted a motion for new trial its motion should have also been granted.

The issues between United and its insurer are outside the scope of Ms. Goldfinch’s claims and the judgment in her favor. As United explained in its brief, it has filed a reconventional demand against its carrier for failure to defend and indemnify and bad faith claims handling. There were no legal grounds presented to the trial court which warranted a new trial in favor of United. Accordingly, I find no abuse of discretion on the part of the trial court in denying United’s motion for new trial.

Therefore, I would affirm the- trial court’s granting of the default judgment against United and the subsequent denial of United’s motion for new trial.

      . Ms. Goldfinch incorrectly named and cited the liability insurer of United Cabs, Inc., i.e., Imperial Adjustment Corporation d/b/a/ Imperial Fire and Casualty. Imperial's motion for new trial was granted on August 14, 2008, and is not before this court. Academy Insurance Agency, which is not an insurance company, filed an exception of no cause of action and an answer to the petition, and is not before this court.

      .The trial court granted a new trial and set aside the default judgment as to the improperly named and cited Imperial Adjustment Corporation d/b/a Imperial Fire and Casualty Company because the judgment against it was “clearly contrary to the law and the evidence.'' La. C.C.P. art,1972(l).

      . This friend is identified in Ms. Goldfinch's testimony only as "Charlie.”

      . The original judgment awarded $38,622.25, but the later judgment corrected an error in calculation. La. C.C.P. art.!951(2).

      . Nothing in Dr. Casey's unsworn report contains any certification by him that the report is "true and correct”: see, Bordelon v. Sayer, 01-0717, p. 5 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, 1236.

      . Charity Hospital’s billing was for $8,622.25, which is the exact amount of the special damages award. There is no evidence of a bill from Dr. Casey or of any charges for prescriptions.

      . The record does not include any documentation of the visit to the UNO student health clinic.

      . The Charity Hospital records do not include these test results or bills therefor. The record does not have documentation of the visit to Charity on or about March 8, 2002 or any subsequent visit until the outpatient surgery preparation and procedure.

      .The record does not include any bill for Dr. Casey’s services, nor does it include copies of the prescription medication and invoices for it from any pharmacy.

      . We note that the holding of the Second Circuit in Meshell, supra at 89, also addressed appellate review of the discretionary ground under La. C.C.P. art. 1973 ("New trials are granted in the interest of justice ... [W]e are especially careful to review denials of new trials in cases of default judgments due to the general policy consideration, weighing in defendant's favor, that every litigant should be allowed his day in court.”)