author: THERIOT, J.

text:
    Richard L. REYNOLDS v. Robert J. BORDELON III, Robert J. Bordelon Jr., Usagencies Casualty Insurance Company, Automobile Club Inter-Insurance Exchange, and/or Auto Club Family Insurance Company d/b/a Triple A Insurance, Nissan North America, Infinity Division Of Nissan North America, Inc., A Luxury Car Division Of Nissan Motors, Insurance Auto Auctions Corp., ABC Insurance Company, DEF Insurance Company and XYZ Insurance Company State Farm Mutual Automobile Insurance Company As Subrogee Of/And Linda Dupuy v. Robert Bordelon and Usagencies Casualty Insurance Company.
    Nos. 2013 CA 1848, 2013 CA 1849.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2014.
    Rehearing Denied Oct. 8, 2014.

      Christine Y. Voelkel Mandeville, Louisiana, for PlaintiffiAppellant Richard L. Reynolds.
    Richard A. Chopin Caroline S. Horst-mann Metairie, Louisiana, for Defendant/Appellee Automobile Club Inter-Insurance Exchange.
    Michael Q. Walshe, Jr. Justin P. Le-maire New Orleans, Louisiana, for Defendant/Appellee Insurance Auto Auctions Corp.
    Before GUIDRY, THERIOT, and DRAKE, JJ.
   THERIOT, J.

lain this case, plaintiff appeals a trial court judgment dismissing his claims with prejudice against two defendants for failure to state a cause of action. We affirm.

FACTS AND PROCEDURAL HISTORY

This suit arises from a March 15, 2008 motor vehicle accident between Richard Reynolds and Robert Bordelon III. Richard Reynolds filed a petition for damages against Robert Bordelon III, and a number of other defendants as a result of the accident. Mr. Reynolds’ petition alleges that the airbags in his 2003 Infíniti G35S, which was manufactured by Nissan North America (“Nissan”), failed to properly deploy upon impact, causing him further injury and damages. Mr. Reynolds made a claim against Nissan under the Louisiana Products Liability Act, La. R.S. 9:2800.51 et seq. The petition further alleges that subsequent to the accident, Mr. Reynolds’ insurer, Automobile Club Inter-Insurance Exchange (“ACHE”) and the custodian of his vehicle, Insurance Auto Auctions Corporation (“IAA”), were put on notice to preserve the vehicle until such time that it could be inspected to determine if there was defective equipment, but they failed to do so. As a result, Mr. Reynolds made claims against ACHE and IAA for spoliation of evidence.

ACHE and IAA each filed peremptory exceptions raising the objection of no cause of action on Mr. Reynolds’ spoliation claims because the petition contained no allegations of any intentional act by ACHE or IAA, an essential element of a claim for spoliation. After a September 17, 2009 hearing, the trial court granted the exceptions, but gave Reynolds fifteen days to amend his petition in order to state a cause of action against ACHE and IAA.

^Reynolds filed a First Supplemental and Amending Petition for Damages on October 2, 2009, in which he made allegations that ACHE and IAA “negligently spoil[ed]” the evidence which they owed a duty to preserve. ACHE and IAA again filed peremptory exceptions raising the ob-jeetion of no cause of action, and ACIIE filed a motion for summary judgment, in the alternative; which were denied by the trial court based upon a recent First Circuit opinion discussing the concept of “negligent spoliation.” This court denied supervisory writs on the grounds that the First Circuit “has not issued a studied opinion regarding whether a cause of action exists for negligent spoliation of evidence.”

After a later decision by the First Circuit in Clavier v. Our Lady of the Lake Hospital, Inc., 12-0560 (La.App. 1 Cir. 12/28/12), 112 So.3d 881, writ denied, 13-0264 (La.3/15/13), 109 So.3d 384, discussing and ultimately rejecting the concept of a “negligent spoliation” cause of action, ACHE and IAA filed renewed peremptory exceptions of no cause of action, and ACHE filed a motion for summary judgment in the alternative. After a hearing, the trial court .sustained the peremptory exceptions of no cause of action, finding that based on the recent First Circuit opinion in Clavier, there does not exist a cause of action for negligent spoliation. Further, finding that the grounds for the objection could not be cured by amendment, the trial court dismissed Mr. Reynolds’ claims against ACHE and IAA with prejudice. The motion |Bfor summary judgment filed in the alternative by ACHE was denied as moot. Mr. Reynolds appealed.

DISCUSSION

A peremptory exception raising the objection of no cause of action is authorized by Louisiana Code of Civil Procedure article 927(A)(5). The Louisiana Supreme Court summarized the nature of, and the procedure governing, this exception in Fink v. Bryant, 01-0987, pp. 3-4 (La.11/28/01), 801 So.2d 346, 348^9, as follows:

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether plaintiff is afforded a remedy in law based on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true, (citations omitted).

The supreme court in Fink further explained that, in reviewing a trial court’s ruling sustaining an exception of no cause of action, an appellate court should subject the case to de novo review because:

the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief.

Fink, 01-0987 at p. 4, 801 So.2d at 349 [citations omitted].

As the exception of no cause of action presents a question of law, our task is “simply a review of whether the trial court was legally correct or legally incorrect.” See Thinkstream, Inc. v. Rubin, 06-1595, p. 8 (La.App. 1 Cir. 9/26/07), 971 So.2d 1092, 1100, writ denied, 07-2113 (La.1/7/08), 973 So.2d 730.

[ (As stated previously, this court considered the viability of a claim for negligent spoliation of evidence in Clavier v. Our Lady of the Lake Hosp. Inc., 12-0560 (La.App. 1 Cir. 12/28/12), 112 So.3d 881. The Claviers made claims for spoliation of evidence against the hospital where their son died and the doctors who performed the surgery and the autopsy. The Claviers filed a separate malpractice suit arising from their son’s death, but they alleged in the spoliation suit that the defendants’ destruction of evidence prevented them from being able to prove the cause of their son’s death, which they believed was an adverse drug reaction, in their malpractice suit. Clavier, 12-0560 at pp. 2-3, 112 So.3d at 884. The actions which the Claviers alleged constituted spoliation include hospital employees unplugging their son’s pain pump after his death, resulting in the erasure of recorded data that would have shown the amounts of narcotic drugs he had received, and the failure to include toxicology screens in the autopsy. Clavier, 12-0560 at pp. 4-5, 112 So.3d at 885. On appeal, this court raised the peremptory exception raising the objection of no cause of action on its own motion and specifically rejected the theory of negligent spoliation of evidence. Clavier, 12-0560 at pp. 3-5, 112 So.3d at 884-885. This court held that a cause of action for spoliation of evidence requires allegations of an intentional act:

The theory of “spoliation” of evidence refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use. A plaintiff asserting a claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence. Allegations of negligent conduct are insufficient.

Clavier, 12-0560 at p. 5, 112 So.3d at 885 (citations omitted).

The court in Clavier held that the plaintiffs’ petition failed to state a cause of action and declined to allow plaintiffs an opportunity to amend their petition to state a cause of action for negligent spoliation, noting that 17“because a plaintiff asserting a claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence, there is no set of facts that would permit [a plaintiff] to claim entitlement to damages for negligent spoliation.” Clavier, 12-0560 at p. 10, 112 So.3d at 888 (citations omitted, emphasis added). Further, addressing the Clavier’s assertion that the First Circuit had previously acknowledged a cause of action for spoliation of evidence arising from negligent acts in an unpublished opinion, Harris v. St. Tammany Parish Hosp. Service Dist. No. 1, 11-0941, 11-0942 (La.App. 1 Cir. 12/29/11), 2011 WL 6916523 (unpublished), writ denied, 12-0585, 12-0678 (La.4/20/12), 85 So.3d 1275, 85 So.3d 1277, the court stated that the Clavier’s rebanee on Harris was misplaced, and explained that “any statements that could be construed to suggest the existence of a separate cause of action for negligent spoliation were merely dicta.” Clavier, 12-0560 at p. 10, fn. 5, 112 So.3d at 891, fn. 5.

Thus, it is clear that following Clavier there is no viable cause of action for negligent spoliation of evidence, and the court was correct in sustaining the peremptory exception of no cause of action.

CONCLUSION

The judgment of the trial court dismissing Mr. Reynolds’, claims against ACIIE and IAA for failure to state a cause of action is affirmed. Costs of this appeal are assessed to plaintiff, Richard L. Reynolds.

AFFIRMED.

      . Dennis v. Wiley, 90-0236 (La.App. 1 Cir. 9/11/09), 22 So.3d 189, involved a claim for negligent infliction of emotional distress by a rape victim against the sheriff for the actions of the sheriff's office in mistakenly disposing of the evidence from her 1989 unsolved rape. The plaintiff in Wiley did not have a typical "negligent spoliation” claim where the destruction or loss of evidence involves evidence that would have benefitted a potential or pending civil claim; rather, the plaintiff alleged that she suffered emotional distress when she discovered, fourteen years after the rape, that her evidence had been destroyed without the rapist ever being caught. The concept of negligent spoliation, which had not been previously recognized by the First Circuit as a valid claim, was discussed by the court in dicta, but the court ultimately held that the sheriff owed no duty to the plaintiff to preserve the evidence. As a result, the court never reached the issue of whether the First Circuit recognized a valid claim for negligent spoliation of evidence. Id.

        . Reynolds v. Bordelon, 2010CW0227, 2010CW0379, (La.App. 1 Cir. 6/23/10).


source: Caselaw Access Project

author: CRAIN, J.

license: Public Domain

text:
    STATE OF LOUISIANA v. Isreal DAWSON.
    No. 2014 KA 0326.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 24, 2014.

      James D. “Buddy” Caldwell, Attorney General, Camille A. Morvant, II, District Attorney, Joseph S. Soignet, S. Benjamin Caillouet, Assistant District Attorneys, Thibodaux, Louisiana, for Plaintiff/Appel-lee, State of Louisiana.
    Mary E. Roper, Louisiana Appellate Project, Baton Rouge, Louisiana, Attorney for Defendant/Appellant, Isreal Dawson.
    Before PARRO, McDONALD, and CRAIN, JJ.
   CRAIN, J.

| ¡After being charged by bill of information with violating Louisiana Revised Statutes 40:967 and 969 and pleading not guilty, the defendant, Isreal Dawson, was convicted following a jury trial of possession with intent to distribute a Schedule IV controlled' dangerous substance (Cariso-prodol) (count 1), possession with intent to distribute a Schedule IV controlled dangerous substance (Alprazolam) (count 2), possession with intent to distribute a Schedule IV controlled dangerous substance (Diazepam) (count 8), possession with intent to distribute a Schedule II controlled dangerous substance (cocaine) (count 4), possession of a Schedule IV controlled dangerous substance (Clonazepam) (count 6), and possession of a Schedule IV controlled dangerous substance (Phenter-mine) (count 7). The defendant was sentenced to ten years at hard labor on each of counts 1, 2, 3, and 4, with the first two years of the sentence on count 4 to be served without the benefit of probation, parole, or suspension of sentence, and five years at hard labor on each of counts 6 and 7. All sentences were ordered to run concurrently. We affirm the convictions and sentences.

FACTS

As part of a roundup of suspected narcotics dealers with active warrants, agents with the Lafourche Parish Sheriffs Office Drug Task Force knocked on the front door of the trailer where the defendant was living with his girlfriend. They heard movement inside the trailer and the sound of pills falling to the floor. Minutes later, the defendant opened the trailer door. The defendant was advised that there were active warrants for his arrest and asked if the agents could enter and talk to him. The defendant moved to the side and allowed the agents to enter. The agents saw multiple pills trailing over an approximately fifteen-foot area of the Rfloor between the doorway and the cabinet under the kitchen sink. The defendant claimed that the pills were his and that he had a prescription for them.

The defendant’s girlfriend, Crystal Davis, owned the trailer and consented both verbally and in writing to the agents searching the kitchen area. The agents recovered the pills on the floor and opened the partially opened cabinet door. Inside the cabinet, they found more pills, a powder substance in a clear plastic Ziploc bag, and digital scales. The pills were determined to contain Carisoprodol, Clonazepam, Phentermine, Alprazolam, and Diazepam. The powder substance was determined to be 10.85 grams of cocaine.

CONSTITUTIONAL CHALLENGE TO LOUISIANA REVISED STATUTE 40:991

In his first assignment of error, the defendant argues that Louisiana Revised Statute 40:991 is unconstitutional. Legislation is presumed to be valid and a party-wishing to challenge its constitutionality must raise the challenge in the district court, the challenge must be specially pled, and the grounds for the challenge must be particularized. State v. Hatton, 07-2377 (La.7/1/08), 985 So.2d 709, 718-19. The defendant did not raise his constitutional challenge to Section 991 in the district court. Accordingly, the issue is not properly before this court.

MOTION TO SUPPRESS

The defendant filed a motion to suppress the evidence against him, which was denied. In his second assignment of error, he contends that the district court erred by denying his motion and refusing to exclude the evidence seized during the warrantless search of Davis’s trailer. Specifically, he argues that Davis did not freely and voluntarily consent to the search of the trailer because she was threatened with the possibility of going to jail if she did not consent to the search.

The Fourth Amendment to the United States Constitution and Article I, § 5, of the Louisiana Constitution protect people against unreasonable searches and | ¿seizures. A search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure was justified by one of the narrow exceptions to the warrant requirement. State v. Surtain, 09-1835 (La.3/16/10), 31 So.3d 1037, 1043. Free and voluntary consent to search given by a person who possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected is a recognized exception to the warrant requirement. See United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). It is-the State’s burden to prove the admissibility of any evidence seized without a warrant. La.Code Crina. Pro. art. 703D. Therefore, the State bears the burden of proving that the consent was freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973); State v. Smith, 433 So.2d 688, 693 (La.1983). A district court’s decision relative to the suppression of evidence is entitled to great weight and will not be set aside unless there has been an abuse of discretion. State v. Thompson, 11-0915 (La.5/8/12), 93 So.3d 553, 563. Findings of fact based on the weight of the testimony and credibility of the witnesses are entitled to great deference and may not be overturned unless there is no evidence to support them. Legal findings are reviewed de novo, Id.

At the hearing on the motion to suppress, Agent Scott Pritchard testified that Davis gave both verbal and written consent to search. Agent Joshua Barbera testified that he told Davis that they could see pills on the floor and under the sink and that they only wanted to search those areas. Agent Barbera also told Davis that if a search warrant was obtained and something illegal that she had knowledge of was found, there was a possibility that she could go to jail, which he characterized as being “up front” with Davis. Agents Barbera and Pritchard, as well as Agent Aaron Montez who was also in the trailer when Davis gave consent, ^testified that no threats were made toward Davis. Agent Barbera described Davis as “very cooperative” and testified that he reviewed the written consent form with Davis before she voluntarily signed it. As completed, the written consent form indicated Davis’s understanding that items located in the area to be searched could be used against her in a court of law and that no promises had been made to her, nor was there any pressure or coercion to consent to the search. Agent Barbera testified that at no time did Davis state that they were not allowed to search.

Davis offered testimony, conflicting with that of the agents, claiming that multiple agents entered her trailer without permission, arrested the defendant, and removed him from the trailer in handcuffs. Three agents remained inside. She denied seeing pills on the floor and described the agents as being in the process of searching when one of them indicated he saw the pills. She claimed they were already looking inside of the kitchen cabinet when she was asked for permission to search. Davis testified that she gave permission to search after she was asked if she wanted her children and career taken away and was told that she had to let them search because if she did not, and they came back with a search warrant, they would “give [her] the charges.” She denied reading the written consent to search form before signing it.

The defendant testified that upon answering the door, the agents told him to step aside and have a seat, which he did. According to the defendant, the officers entered the trailer and, as one stated they had a warrant for the defendant’s arrest, others went into the kitchen and stated they saw pills on the floor. The defendant stated that the agents were taking pictures before they escorted him out of the trailer.

Agent Barbera was called on rebuttal after Davis and the defendant testified. He denied entering the trailer without permission and telling Davis that she was Ingoing to lose her child. On the morning in question a news crew was following the roundup, and Agent Barbera testified that he was wearing a microphone and everything that he said was being recorded. He was still being recorded when Davis signed the consent form. '

Because consent is a question of fact involving the credibility of witnesses, the determination of the district court, which had an opportunity to observe and hear the witnesses, is given great weight on review. State v. Yarbrough, 418 So.2d 503, 506 (La.l982j. In oral reasons for denying the defendant’s motion to suppress the evidence, the district court stated that the defendant’s testimony in no way substantiated that of Davis. The court pointed out that the three agents who testified at the hearing no longer worked on the drug task force. Agents Barbera and Montez moved to different departments, and Agent Pritchard no longer worked for the Lafourche Parish Sheriffs Office. Thus, the district court opined that the agents, especially Agent Pritch-ard, had little incentive to be dishonest. The court also noted that it was impressed by the fact that Agent Barbera was wearing a microphone and was being monitored at the time of the search. Considering all of the evidence, the district court found that the form executed by Davis was valid, and that no threats were used in obtaining Davis’s signature.

The district court rejected Davis’s testimony and that of the defendant and credited the testimony of the agents. According to all three agents, they did not use threats or coercion in obtaining Davis’s consent. A statement by police officers that they will apply for a warrant if refused consent for a search does not necessarily vitiate the voluntariness of the consent. State v. Franklin, 95-1876 (La.1/14/97), 686 So.2d 38, 41. Based on the agents’ testimony, the district court had a reasonable basis for finding valid consent. Therefore, the search and seizure ofjjthe evidence was. lawful, and the district court did not abuse its discretion in denying the defendant’s motion to suppress the evidence. ' This assignment of error is without merit.

NON-UNANIMOUS JURY VERDICT

In his fourth and fifth assignments of error, the defendant argues that Louisiana Constitution article I, § 17A, which allows for non-unanimous jury verdicts, violates the Fourteenth Amendment of the United States Constitution, and the non-unanimous verdicts rendered in this case violate his right to a jury trial under the Sixth and Fourteenth Amendments of the United States Constitution.

As set forth above, a constitutional challenge may not be considered by an appellate court unless it was properly pled and raised in the court below. Hatton, 985 So.2d at 718. The defendant failed to properly raise his challenge to Article I, § 17A in the district court. Accordingly the issue is not properly before this court.

Accordingly, these assignments of error are without merit.

EXCESSIVE SENTENCES

The defendant argues in his third assignment of error that the district court erred in- imposing excessive sentences. However, the record before this court does not contain a copy of a motion to reconsider sentence or evidence that the defendant orally moved for reconsideration of the sentences. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, |sshall preclude the State or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review. La.Code Crim. Pro. art. 881.1E. Thus, the defendant is procedurally barred from having. this assignment of error reviewed. See State v. Duncan, 94-1563 (La.App. 1 Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam); State v. Myles, 616 So.2d 754, 758-59 (La. App. 1 Cir.), writ denied, 629 So.2d 369 (La.1993).

CONVICTIONS AND SENTENCES AFFIRMED.

      . The State entered a nolle prosequi as to count 5, a charge of possession of a schedule II controlled dangerous substance (cocaine).

      . No footage or recordings were played at the hearing.

      . This court has repeatedly rejected the argument that recent legal developments have called the constitutionality of non-unanimous jury verdicts into question and held that the United States Supreme Court’s decision in McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), did nothing to alter the well-established jurisprudence holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials. See e.g. State v. Huey, 13-1227 (La.App. 1 Cir. 2/18/14), 142 So.3d 27, 32; State v. Dorsey, 12-1816 (La.App. 1 Cir. 2/4/14), 137 So.3d 651, 654-55, State v. Laurant, 12-1705 (La.App. 1 Cir. 4/26/13), 2013 WL 1791049, writ denied, 13-2323 (La.4/11/14), 139 So.3d 1014. For the same reasons, this court has rejected challenges to the constitutionality of Louisiana Code of Criminal Procedure article 782A, which provides that cases in which punishment is necessarily confinement at hard labor shall be tried by a jury of twelve, ten of whom must concur to render a verdict. See e.g. Huey, 142 So.3d at 32.


text:
    STATE of Louisiana, v. Jeffery STADEN.
    No. 2014 KA 0459.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 24, 2014.

      Hillar C. Moore, III, District Attorney, Allison M. Rutzen, Assistant District Attorney, Baton Rouge, LA, for Plaintiff/Ap-pellee, State of Louisiana.
    Bertha M. Hillman, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant, Jeffery Staden.
    Before PARRO, McDONALD, and CRAIN, JJ.
   CRAIN, J.

|2The defendant, Jeffery Staden, was charged by amended bill of information on count one with attempted first degree murder, a violation of Louisiana Revised Statutes 14:30 and 14:27, and on count two with armed robbery, a violation of Louisiana Revised Statute 14:64. He pled not guilty and, following a jury trial, was found guilty on count one of the responsive verdict of aggravated battery, a violation of Louisiana Revised Statute 14:34, and guilty as charged on count two. On count one, the trial court sentenced the defendant to ten years imprisonment at hard labor; and on count two, he was sentenced to fifty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, to be served concurrently. The trial court denied the defendant’s motion to reconsider sentence. The defendant now appeals, arguing that his constitutional right against double jeopardy was violated. We affirm the convictions and sentences.

STATEMENT OF FACTS

On December 1, 2009, the defendant and two accomplices entered Alby’s Market & Deli on North Sherwood Forest Boulevard in Baton Rouge. As the defendant approached the counter of a check-cashing station in the store, he pulled a gun from his pocket and pointed it at the employee working behind the counter. The defendant ordered the employee, Sam Tran, to get down on the floor. When Tran failed to immediately comply, the defendant jumped over the counter, hit Tran in the head with the gun, and pushed him to the floor. One perpetrator bound Tran’s wrists and placed a bag over his head; then the perpetrators proceeded to take the cash from the store’s cash registers. After removing all of the cash from the cash registers, the defendant then demanded that Tran disclose the location of more money in the store. When Tran replied that the store had a safe but that it would take ten minutes to open it, the defendant repeated the demand several times |sand shot Tran in the leg. Shortly thereafter, all of the perpetrators exited the store and fled the scene.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant asserts that his constitutional guarantee against double jeopardy was violated when he was tried for attempted first degree murder, which included the commission of an armed robbery as an essential element (sometimes referred to herein as “attempted felony murder”), and tried and sentenced for the underlying felony of armed robbery. As a consequence, according to the defendant, he received multiple punishments for the same criminal conduct. Although the defendant did not raise the double jeopardy issue in the trial court, we consider its merits because double jeopardy can be raised at any time. See La.Code Crim. Pro. art. 594; State v. Petitto, 12-1670 (La.App. 1 Cir. 4/26/13), 116 So.3d 761, 772, writ denied, 13-1183 (La.11/22/13), 126 So.3d 477.

The Double Jeopardy Clause of the federal and state constitutions not only prohibits successive trials for the same offense but also protects against multiple punishments for the same offense. See U.S. Const, amend. V; La. Const. art. I, § 15; La.Code Crim. Pro. art. 591; State v. Murray, 00-1258 (La.9/18/01), 799 So.2d 453, 454-55 (per curiam,). The defendant was subjected to only one trial, so he does not contend that his right to be free from multiple trials for the same offense has been violated. Rather, he invokes the Double Jeopardy Clause’s protection against multiple punishments for the same offense.

With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983); State v. Allen, 01-2494 (La.6/21/02), 824 So.2d 344, 345. While the Double Jeopardy Clause may ^protect a defendant against cumulative punishments for convictions on the same offense, it does not prohibit the state from prosecuting a defendant for such multiple offenses in a single prosecution. Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425 (1984); State v. Hall, 12-0601 (La.6/29/12), 91 So.3d 302, 303 (per cu-riam). When a question arises as to whether the same evidence required to convict a defendant of one offense is also the same evidence required to convict him of the other crime, the court should defer ruling on a motion to quash until the trial has fully developed the factual context of a claim that the prosecution has implicated the double jeopardy prohibition of multiple punishments for the same offense. Hall, 91 So.3d at 303. In the event that the evidence at trial supports a claim that the defendant has been punished in a single proceeding twice for the same offense, the court may take appropriate action by granting the motion to quash and vacating the conviction on the less seriously punishable offense. Hall, 91 So.3d at 303.

Pursuant to these principles, our courts have recognized that once a defendant is convicted of attempted felony murder, he is punished for the felony which he was perpetrating at the time of the attempted murder, and he cannot be punished a second time for the same offense. See State v. Stewart, 400 So.2d 633, 635 n. 4 (La.1981); State v. Cotten, 438 So.2d 1156, 1160 (La.App. 1 Cir.1983), writ denied, 444 So.2d 606 (La.1984), Consequently, convictions for both attempted felony murder and the underlying felony violate the Double Jeopardy Clause of the federal and state constitutions because the multiple convictions subject the defendant to double punishment for the same offense. See Stewart, 400 So.2d at 635 n. 4; Cotten, 438 So.2d at 1161; see also State ex rel. Nirtha v. State, 01-1011 (La.9/13/02), 824 So.2d 1179; State ex rel. Adams v. Butler, 558 So.2d 552, 553 (La.1990).

| .¡Because the defendant was not convicted of attempted first degree murder, we find no merit to his argument that the Double Jeopardy Clause was violated because he was “tried” on charges of attempted first degree felony murder and armed robbery. The prosecution of both charges in a single trial did not violate the prohibition against multiple punishment for the same offense and therefore did not implicate the Double Jeopardy Clause. Only convictions of those charges would have subjected the defendant to the proscribed multiple punishments for the same offense and therefore implicated the Double Jeopardy Clause. See Ohio, 467 U.S. at 500, 104 S.Ct. at 2541; Hall, 91 So.3d at 303.

Although not assigned as error, defense counsel summarily asserts at the conclusion of his brief that the defendant’s “conviction for aggravated battery, a responsive verdict to the charge of attempted first degree murder, and his conviction for armed robbery violate” the Double Jeopardy Clause. This assertion has no merit. In determining whether two offenses constitute the “same offense” for double jeopardy purposes, Louisiana courts have applied two different standards, the “same elements” test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), and the “same evidence” test. City of Baton Rouge v. Ross, 94-0695 (La.4/28/95), 654 So.2d 1311, 1322. The Blockburger “same elements” test requires a comparison of the elements of the statutes under which a defendant is charged. After the statutory elements are compared, if each statute requires proof of an additional fact which the other does not, then those statutes do not define the same offense for double jeopardy purposes. City of Baton Rouge, 654 So.2d at 1323. The “same evidence” test focuses upon the actual physical and testimonial evidence necessary to secure a conviction. City of Baton Rouge, 654 So.2d at 1322. Under this test, if the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of | fidouble jeopardy. City of Baton Rouge, 654 So.2d at 1322; State v. Steele, 387 So.2d 1175, 1177 (La.1980). The court’s concern is with the “evidential focus” of the facts adduced at trial in light of the verdict rendered, i.e., how the evidence presented satisfies the prosecution’s burden of proof. City of Baton Rouge, 654 So.2d at 1322; State v. Miller, 571 So.2d 603, 606 (La.1990).

Aggravated battery consists of the intentional use of force or violence with a dangerous weapon upon the person of another. See La. R.S. 14:33 and 14:34; State v. Howard, 94-0023 (La.6/3/94), 638 So.2d 216, 217 (per curiam). Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64A. Under the Blockburger test, each statute requires proof of an element or fact which the other does not. Aggravated battery requires the intentional use of force or violence “upon the person of another,” which is not required for armed robbery; while armed robbery requires “the taking of anything of value ... by use of force or intimidation,” which is not required for aggravated battery. Under the Blockburger test, these statutes do not define the same offense for double jeopardy purposes.

Likewise, applying the same evidence test, we conclude that the state did not rely upon the same evidence to satisfy its burden of proof for both convictions. The evidence demonstrated that the defendant pointed a gun at the victim, struck him on the head, and removed cash from the cash registers. That evidence is sufficient to support the conviction for armed robbery. After removing the cash from the cash registers, the defendant demanded to know the whereabouts of any more money and shot the victim in the leg. That evidence is sufficient to support the conviction for aggravated battery. Rather than being punished twice for the same offense, the evidence showed that two separate crimes occurred which were 17independently proven. An accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the principle of double jeopardy. State v. Nichols, 387 So.2d 1074, 1078 (La.1976); State v. Steward, 95-1693 (La.App. 1 Cir. 9/27/96), 681 So.2d 1007, 1016. The defendant’s assertion that his convictions for aggravated battery and armed robbery violate the Double Jeopardy Clause has no merit.

CONVICTIONS AND SENTENCES AFFIRMED.

McDONALD, J., concurs.


author: Judge EDWIN A. LOMBARD.

text:
    Luz CACERES and Lastenia Escobar v. UNITED AUTOMOBILE INSURANCE COMPANY.
    No. 2014-CA-0418.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 5, 2014.

      Cristian P. Silva, Maria Vargas, Cristian P. Silva Law Office, L.L.C., Harvey, LA, Arthur 0. Schott, III, Riguer Silva, L.L.C, New Orleans, LA, for Plaintiff/Appellant.
    M. Randall Brown, Cameron M. Mary, Brown & Mary, LLC, Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   Judge EDWIN A. LOMBARD.

It The Appellants, Luz Caceres and Lastenia Escobar, seek review of the February 7, 2014 judgment of the district court denying their motion for new trial. Finding that the judgment of the district court is not manifestly erroneous, we affirm.

In May 2012, the Appellants, who are Mississippi residents, were allegedly injured as a result of being involved in hit and run car accident in Orleans Parish. At the time of the accident, Ms. Escobar was driving a vehicle owned by Ms. Ca-ceres, who was riding as a passenger. Ms. Caceres’? vehicle was insured by United Automobile Insurance Company (“UAIC”), the Appellee. The Appellants were unable to locate the vehicle they were allegedly struck by and subsequently filed an insurance claim with UAIC seeking coverage under the uninsured/underinsured portion of Ms. Caceres’ policy.

After UAIC denied their claims, the Appellants filed suit against UAIC on January 29, 2013. UAIC answered the suit and subsequently filed a motion for summary judgment asserting that the terms of uninsured policy provisions excluded coverage for the accident and that the alleged phantom vehicle does not 12meet the definition of an uninsured/underinsured vehicle under the policy. UAIC further asserted that because Ms. Caceres is a Mississippi resident, who purchased her insurance policy in Mississippi from a Mississippi insurer, that Mississippi’s insurance contract laws should be applied by the district court in making its determination. At the January 10, 2014 hearing, the district court determined that Mississippi law was applicable and granted the motion.

On January 30, 2014, the Appellants filed a motion for new trial asserting that the secretary of their attorneys, Cristian P. Silva and Maria P. Vargas, failed to calendar the rule to show cause for the motion for summary judgment hearing; thus, neither of the attorneys appeared at the show cause hearing. They also argued that their attorneys failed to file an opposition to the motion for summary judgment. The district court denied the motion for new trial on February 7, 2014 and this timely appeal followed. The sole assignment of error raised by the Appellants is that the district court abused its discretion in denying their motion for new trial pursuant to La.Code Civ. Proc. art. 1978.

The appellate standard of review of the ruling on a motion for new trial is whether the trial court abused its discretion. Jackson v. Bally’s Louisiana, Inc., 09-1574, p. 4 (La.App. 4 Cir. 4/7/10), 36 So.Sd 1001, 1004. “Where one or more legal errors interdict the trial court’s fact-finding process, however, the manifest error standard becomes inapplicable, and the appellate court must conduct its own de novo review of the record.” Hamp’s Const., L.L.C. v. Hous. Auth. of New Orleans, 10-0816, p. 3 (La.App. 4 Cir. 12/1/10), 52 So.3d 970, 973 (citation omitted).

New Trial

The Appellants argue that the district court erred in denying their motion for new trial under La.Code Civ. Proc. art. 1973, which provides that a new trial may be granted in any case if there is good ground therefor, except as provided by law. The Appellants argue that La.Code Civ. Proc. art. 1973 necessitates an examination of the facts and circumstances of the individual case. "When the trial judge is convinced by his examination of the facts that the judgment would result in a miscarriage of justice, a new trial should be ordered. Hardy v. Kidder, 292 So.2d 575, 579 (La.1973).

Recognizing that although our jurisprudence holds that trial courts have discretion regarding the determination whether to grant a new trial, the Appellants aver that our court has the authority to set aside the ruling of the trial judge in a case of manifest abuse. La.Code Civ. Proc. art. 1971 comment (d); DeFrances v. Gauthier, 220 La. 145, 150, 55 So.2d 896, 897 (1951). The Appellants further argue that the Louisiana Supreme Court has consistently emphasized the need for the reviewing court to exercise particular caution when examining the circumstances underlying judgments that summarily deny the opportunity for a decision on the merits in an action due to the inherent injustice that can be affected if the litigant is not responsible for the failure. Hardy, 292 So.2d at 575; Lamb v. Lamb, 430 So.2d 51, 53-54 (La.1983).

The Appellants argue that a new trial is required because their case was summarily dismissed as a result of their attorneys’ failure to file an opposition brief 14to the UAIC’s motion for summary judgment and failure to appear at the summary judgment hearing. The Appellants argue that they should not be punished for their attorneys’ failure to submit an opposition brief or appear in court. As a result of their attorneys’ actions, they allege that they were denied their opportunity to have their case heard on the merits.

Moreover, they aver that their attorneys had a legitimate excuse for not submitting an opposition brief and appearing at the hearing. Their attorneys’ secretary, they contend, made an honest mistake as evidenced by the fact that said secretary had previously received notices of hearings and rules from the district court through either citation notices or post-card type notices issued specifically for the purpose of apprising the parties of the court date. They aver that the secretary’s failure to calendar the rule was excusable given her prior experiences with the district court. There was no indication that the documents received at their attorneys’ office came directly from the district court. They argue, the district court’s failure to grant a new trial was an abuse of discretion because their attorneys’ neglect was unfairly imputed to them; thus, they were denied the opportunity to refute UAIC’s allegations and present the merits of their case.

The Appellants principally rely upon three cases wherein La.Code Civ. Proc. art. 1978 was applied to grant a mistrial: Hardy, supra; Lamb, supra; and Smith v. Alliance Compressors, 05-855 (La.App. 3 Cir. 02/01/06), 922 So.2d 674.

In Hardy, the Appellants argue that the Louisiana Supreme Court held that good grounds existed under La.Code Civ. Proc. art. 1978 for the granting of a new trial where a defendant’s attorney was solely at fault in failing to provide an answer to the plaintiffs petition and failing to present an available and absolute defense on the litigant’s behalf. A default judgment was entered against a defendant, whose | Sdebts had been discharged in bankruptcy shortly after the plaintiffs suit was filed, in a personal injury suit. When the defendant’s motion for a new trial was denied, he appealed to the Third Circuit, which affirmed the judgment of the district court. Hardy, 292 So.2d at 576-579.

On rehearing, the Louisiana Supreme Court reasoned that the lower court abused its discretion in failing to grant a new trial because a judgment should not stand where the record showed that there was an absolute defense that was not pleaded due to the neglect of the defendant’s counsel. The Louisiana Supreme Court explained that a judgment that is substantively erroneous should not be allowed to stand as a result of a “violation of a technical pleading rule which results from counsel’s neglect rather than from the client’s fault.” In its analysis, the Court stated that the modern trend of the jurisprudence is to render justice upon the merits of the controversy, rather than defeat justice upon technicalities. The Appellants aver that the Supreme Court found that the district court had abused its discretion by not granting a new trial under La.Code Civ. Proc. art. 1973. Id. at 578-580.

Moreover, in Lamb, the Appellants’ argue that the Louisiana Supreme Court recognized that a default judgment entered because the litigant’s former attorney failed to file an answer constituted a miscarriage of justice that should be corrected with a new trial. The defendant’s attorney had failed to submit an answer to plaintiffs petition. The attorneys for the parties attempted to settle the dispute over several months. When those negotiations failed, the defendant fired her attorney; however, the defendant was not aware that her former attorney had not yet filed an answer to plaintiffs petition. The plaintiffs attorney sought and obtained a default judgment against the defendant, without providing notice to the defendant of his |fiintention to take a default judgment. When defendant’s new attorney found out that a default judgment had been entered against his client, he filed a motion for a new trial, which was subsequently denied. Lamb, 430 So.2d at 51-53.

On appeal, the Louisiana Supreme Court reversed the lower court’s denial on the basis that the defendant should not have been denied the opportunity to defend her case on the merits where the failure to plead the defense was the result of her attorney’s neglect. The Louisiana Supreme Court further noted that the defendant had no knowledge that the plaintiffs petition had not been answered, nor was she provided with prior notice by plaintiffs counsel of his intention to take a default judgment, even though plaintiffs counsel was aware that the defendant had fired her attorney. The Court held that with respect to cases wherein a timely motion for a new trial is denied after proper confirmation of a default judgment, courts have been particularly cautious in examining the circumstances underlying the judgment due to the general policy consideration, weighing in the defendant’s favor, that every litigant should be allowed his day in court. As a result, the Court reasoned that a miscarriage of justice would result by depriving the defendant of the opportunity to defend her case on the merits all the while she had been victimized by the neglect of her attorney, and the overzealous actions of plaintiffs counsel; to allow this judgment to stand would be to permit technical pleading rules to triumph over actual justice. Thus, the Appellants aver, the Louisiana Supreme Court held that failure to grant a new trial under La.Code Civ. Proc. art. 1973, was an abuse of discretion. Id. at 53-54.

In Smith, the plaintiff filed a worker’s compensation claim against her employer for injuries she suffered while in the course and scope of her employment. The defendant filed a motion for summary judgment and the motion |7was set for hearing. On the date of the hearing, the plaintiff realized that her attorney had failed to submit an opposition brief or any documentation opposing the defendant’s motion for summary judgment. Ultimately, the district court granted summary judgment in favor of the defendant and dismissed the plaintiffs suit with prejudice. The plaintiff retained a new attorney, who filed a motion for new trial alleging that her former counsel’s neglect in failing to provide a defense to the defendant’s motion for summary judgment should not be imputed to her. The request for a new trial was denied. Smith, 05-855, pp. 2-4, 922 So.2d at 676-678.

Reversing the district court, the Third Circuit held that the district court abused its discretion in failing to grant a new trial to the plaintiff on discretionary grounds under La.Code Civ. Proc. art. 1973. Id., 05-855, p. 9, 922 So.2d at 680. The Court applied the holdings of Hardy and Lamb reasoning that a proper application of La. Code Civ. Proc. art. 1973 necessitates a careful examination of the facts and circumstances of each case to prevent the miscarriage of justice when a party is prejudiced by their attorney’s error. Id., OS-855, pp. 9-10, 922 So.2d at 680-681. The Third Circuit, the Appellants contend, determined that it would be unjust to allow a judgment resulting in the dismissal of an action to stand in a case in which reasonable reliance by a party upon a neglectful attorney caused, or contributed to, the resulting decision. Id., 05-855, p. 13, 922 So.2d at 682.

The Appellants aver that similar to the appellants in the Lamb, Hardy and Smith cases, they were unfairly prejudiced through no fault of their own. The district court’s decision to deny a new trial on these facts would result in a miscarriage of justice because they were denied the opportunity to present their case on the merits. The district court’s failure to grant a new trial was an abuse of discretion they aver, which they argue, merits the reversal of the judgment at issue.

Rln response, UAIC argues that the district court did not err in denying the Appellants’ motion for new trial because they did not present evidence to the district court that warranted granting a motion for new trial on either peremptory or discretionary grounds. The district court explained in both of its judgments that there was no basis to grant the motion for new trial under either La. Civ.Code Proc. arts. 1972 or 1973. Thus, UAIC avers that that judgment is not clearly contrary to the law and evidence as there was no offer of newly discovered evidence proffered warranting a new trial on the motion for summary judgment.

The crux of Appellants’ argument, UAIC contends, is that “good grounds” exist to warrant the granting of a new trial because the Appellants’ counsel could have offered arguments and possibly evidence at the summary judgment hearing that would have warranted the denial of the motion for summary judgment. UAIC avers that the Appellants do not address that their counsel was served on December 17, 2013, by the Sheriff, with the motion for summary judgment, memorandum in support, and the rule to show cause. The return is in the record.

UAIC further avers that the Appellants seek to place the arguments they would have made before the district court at the motion for summary judgment hearing, such as whether the district court erred in applying Mississippi law to a Louisiana tort action, before this Court on appeal. UAIC argues that the district court correctly held that the insurance contact at issue should be interpreted under Mississippi’s law as that is the state where the policy was issued to a resident of that state. UAIC avers that it briefed the choice of law issue in its brief to the district court. It further contends that the remaining issues raised by the Appellants are red herring arguments that are unrelated to the district court’s basis for granting summary judgment.

laLastly, regarding the Appellants’? argument that Ms. Caceres, the owner of the vehicle, was licensed at the time of the collision, UAIC contends that her licensure status was not a factor that merits granting the motion for new trial because she was not driving at the time of the accident. The district court, UAIC avers, reasoned that the terms of the policy at issue did not provide that Ms. Escobar, an unlicensed driver, could be considered a permissive user. The district court, therefore, did not err in determining that there was no coverage for this incident and granting summary judgment under the facts and applicable law. We agree.

In the instant matter, the Appellants argue that the district court erred in failing to grant them a new trial under La. Code Civ. Proc. art. 1973. As stated above, art. 1973 gives the district court the discretion to grant a new trial in any case if there is “good ground” therefor, except as provided by law. The “La.Code of Civ. Proc. art. 1973 allows a district court to use its discretion to order a new trial whenever it is ‘convinced by [its] examination of the facts that the judgment would result in a miscarriage of justice.’ ” Horton v. Mayeaux, 05-1704, pp. 9-10 (La.5/30/06), 931 So.2d 338, 344 (citing Lamb, 430 So.2d at 53). Courts adopt “the well-established principle that a new trial should be granted in cases where the enforcement of the judgment would be inequitable and unconscionable.” Gauthier v. Gauthier, 04-198, pp. 11-13 (La.App. 3 Cir. 11/10/04), 886 So.2d 681, 688-89, writ not considered, 04-3019 (La.2/18/05), 896 So.2d 15 (citations omitted).

The Appellants contend that they are entitled to a new trial because of their attorneys’? failure to file an opposition to UAIC’s motion for summary judgment and to make an appearance at the summary judgment hearing. Although the Appellants rely upon the Supreme Court cases of Lamb and Hardy, we find those [ ,ncases to be distinguishable. Both cases involved a district court’s grant of a default judgment and the denial of a motion for new trial due to attorney error. The Supreme Court reversed the district court in both cases finding that the district court abused its discretion in failing to grant a new trial under La.Code Civ. Proc. art. 1973. We find these cases involving the reversal of default judgments to be distinguishable from the instant matter where a motion for summary judgment was granted by the district court. The Lamb Court relied upon the Supreme Court’s holding in Hardy, wherein the Court reasoned that “the modern trend of the jurisprudence is to render justice upon the merits of the controversy, rather than defeat justice upon technicalities.” Hardy, 292 So.2d at 578 (citing Succession of Robinson, 186 La. 389, 172 So. 429 (1987)). However, the granting of a default judgment against a party who failed to answer a lawsuit is the result of “technical” pleading rules whereas the granting of a motion for summary judgment is not. A motion for summary judgment, even if unopposed, requires the district court to determine that there are no genuine issues of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966(B)(2). In the matter sub judice, the record does not evidence that technicalities were at play in the district court’s decision, which was based upon the law and the facts presented. The district court did not grant UAIC’s motion for summary judgment on the basis that it was unopposed.

Additionally, we find that the Appellants’ reliance upon the Third Circuit’s opinion in Smith is misplaced. In Smith, the Third Circuit found that the plaintiff, who appeared in court prepared to testify at the summary judgment hearing, was entitled to her day in court due to her counsel’s negligence in failing to file an opposition to the defendant’s motion for summary judgment and the potential loss | T1of her worker’s compensation benefits through no fault of her own. Smith, 05-855, pp. 9-13, 922 So.2d at 680-682. The Court further took note of the fact that the plaintiff presented facts that supported the denial of the motion for summary judgment. As Smith demonstrates, while Louisiana courts have considered circumstances where a party asserts that the conduct of an attorney has created a miscarriage of justice warranting a new trial, appellate courts “have also considered whether a new trial would likely have a different result.” Gauthier, 04198, pp. 11-s, 886 So.2d at 688-689.

In the matter sub judice, we do not find that a new trial is warranted because of the alleged oversight of the Appellants’ counsel or their secretary, nor does the record indicate that a new trial would lead to a different result. Under our manifest error review of the facts of this case, we do not find that a miscarriage of justice exists in this matter. The district court reasoned that UAIC met its burden and proved that a genuine issue of material fact did not exist as to whether the Appellants’ claims were covered under a Mississippi-issued automobile insurance policy interpreted pursuant to the laws of Mississippi. Ms. Escobar, an uninsured and unlicensed driver or user of Ms. Caceres’ vehicle, was not covered as an unlicensed permissive user under the policy at issue interpreted under Mississippi law. See Champagne v. Ward, 03-3211, p. 27 (La.1/19/05), 893 So.2d 773, 789. The plain wording of the exclusions of the Uninsured Motorists portion of the policy «states that “[a]ny automobile while it is being driven or operated with your permission by a person who does not possess a valid driver’s license. For the purpose of this exclusion, a suspended, revoked, or expired license is not a valid driver’s license.” Ms. Escobar was an unlicensed driver. Thus, there is no indication that a new trial would likely have a different result. As the Supreme Court recognized in Lamb, 430 So.2d at 53, every timely filed motion for new trial does not warrant the granting of a new trial because not every case involves a miscarriage of justice. Therefore, finding that the decision of the district court is not manifestly erroneous, we affirm.

DECREE

For the foregoing reasons, the judgment of the district court denying the motion for new trial of Luz Caceres and Lastenia Escobar, is affirmed.

AFFIRMED.

LANDRIEU, J., concurs in the result.

      . The judgment of the district court was signed on February 6, 2014.

      . The district court later amended said judgment on February 12, 2014, to make a correetion regarding the procedural history of the case.

      . In Champagne, the Louisiana Supreme Court reasoned that Mississippi law applied where a Mississippi accident victim and resident brought a personal injury action against a Louisiana resident seeking underinsured motorist coverage for accident that occurred in Louisiana. The Supreme Court explained:
      Under the facts of this case, we find that Mississippi has a more substantial interest in the uniform application of its laws gov-eming insurance contracts than Louisiana has in providing an insurance remedy to an out-of-state resident who was injured while transitorily within the borders of Louisiana. The application of Louisiana law to the insurance policy would result in the abrogation of a Mississippi contract. Moreover, plaintiff’s premium for UM coverage was based on the application of Mississippi law to the contract. Under a conflicts-of-laws analysis, we conclude that Mississippi’s policies will be most seriously impaired if its law is not applied to the insurance policy. Champagne v. Ward, 03-3211, p. 27 (La. 1/19/05), 893 So.2d 773, 789.


author: TERRI F. LOVE, Judge.

text:
    Nolan ESTOPINAL, et al. v. PARISH OF ST. BERNARD, et al.
    No. 2013-CA-1561.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 5, 2014.

      Sidney D. Torres III, Roberta L. Burns, Beau F. Camel, Law Offices of Sidney D. Torres, III, APLC, Chalmette, LA Salvador Joseph Randazzo, Salvador J. Randaz-zo, Attorney at Law, Mandeville, LA, Jerald Norman Andry, Jr., Andry & Andry, L.L.C., New Orleans, LA, for Plaintiffs/Appellants, Nolan Estopinal, et al.
    Sue Buser, Dennis J. Phayer, Burglass- & Tankersley, Patricia S. LeBlanc, Deborah A. Villio, Michael L. Fantaci, LeBlanc Butler, LLC, Metairie, LA, for Defendant/Appellee, Barowka and Bonura Engineers and Consultants, LLC.
    Jeffrey C. Brennan, Jena A. Smith, De-gan, Blanchard & Nash, New Orleans, LA, for Defendant/Appellee, Unified Recovery Group, LLC.
    Kenan S. Rand, Jr., Plauché Maselli & Parkerson LLC, New Orleans, LA, for Defendant/Appellee, Houston Casualty Company.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge SANDRA CABRINA JENKINS).
   TERRI F. LOVE, Judge.

| ¡This appeal arises from the allegedly unconstitutional and unlawful condemnation of properties severely damaged by Hurricane Katrina located in St. Bernard Parish. The plaintiffs allege that a class action lawsuit is the proper procedural vehicle to seek recompense. The trial court found that variables between the plaintiffs precluded the usage of the class action procedure and denied their motion to certify the class. We find that a class action lawsuit is an inappropriate procedural device for these plaintiffs because commonality; typicality, adequacy, ascertainable class definition, predominance, and superiority do not exist, as required by La. C.C.P. art. 591. Therefore, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The St. Bernard Parish Government (“SBPG”) created a plan to address an ongoing problem with properties that were severely damaged by Hurricane Katrina, but remained in a state of disrepair years later. SBPG’s plan was allegedly utilized to condemn, and in some instances, demolish the property of approximately 10,000 property owners.

On February 26, 2009, sixteen plaintiffs, with the usage of joinder, filed a |2Petition for Damages alleging that SBPG’s plan caused them to suffer property damage and/or complete demolition of their property, monetary damages, and infringement upon their property rights. The plaintiffs proceeded to file numerous amended and supplemental petitions until, on January 19, 2010, the Thirteenth Amended and Supplemental Petition was filed naming only Nolan Estopinal as the plaintiff, as well as the “Class Plaintiff’ “on behalf of those individuals similarly situated” (collectively “Plaintiffs”). The Thirteenth Amended and Supplemental Petition named the defendants as the Parish of St. Bernard (“SBP”); the Department of Community Development, Office of Safety and Permits; Unified Recovery Group, L.L.C. (“URG”); Asplundh Construction Corporation (“ACC”); Barowka and Bonu-ra Engineers and Consultants, L.L.C. (“BBEC”); A.B.C. Insurance Company; AIG Casualty Company (“AIG”); Scottsdale Insurance Company (“Scottsdale”); and Houston Casualty Company (“Houston”).

Thereafter, the Plaintiffs filed a Motion for Class Action Certification seeking to have their claims proceed as a class action, pursuant to La. C.C.P. art. 591. The proposed class definition included:

All persons who owned real property or property rights in the Parish of St. Bernard, State of Louisiana on or after August 29, 2005, which property or property rights have been unconstitutionally taken or damaged through the actions of the Parish of St. Bernard and/or its agents/contractors, including UNIFIED RECOVERY GROUP, L.L.C., and BA-ROWKA AND BONURA ENGINEERS AND CONSULTANTS, L.L.C., without just compensation following Hurricane Katrina. The class also includes those who were forced to institute legal ^proceedings and incur expenses associated therewith, including motions for temporary restraining orders, to stop the defendants from illegally taking/damaging their properties.

The Plaintiffs’ Fourteenth Amended and Supplemental Petition categorized the Plaintiffs into three sub-groups: 1) “Demolished Property,” 2) “Damaged Property,” and 3) “Harassed.” Seventy-three Plaintiffs were named. BBEC filed a Motion for Partial Summary Judgment Denying Class Certification based upon the premise that the commonality, predominance, superiority, adequacy, and typicality requirements for class certification could not be met. ACC then filed a Motion to Adopt BBEC’s Motion for Partial Summary Judgment Denying Class Certification. URG, Houston, and Scottsdale also filed Motions for Partial Summary Judgment seeking the denial of class certification. The Plaintiffs subsequently dismissed their claims against ACC without prejudice.

Following a hearing and post-hearing written memoranda, the trial court denied the Plaintiffs’ Motion for Class Action Certification. Plaintiffs’ Motion and Order for Devolutive Appeal followed.

The Plaintiffs allege that the trial court erred “in failing to certify the class of plaintiffs in this matter under La. Code Civ. P. art. 591(B)(3) and 591(B)(1)(a)”, in “failing to properly apply the law relative to class certification to the facts established,” and “in granting SBP’s exception of no cause of action as to the plaintiffs’ claims for emotional distress.”

\ STANDARD of review

“The standard of review for certification of class actions is bifurcated.” Watters v. Dep’t of Soc. Servs., 05-0824, 05-0325, 05-0326, p. 6 (La.App. 4 Cir. 4/19/06), 929 So.2d 267, 273. “The factual findings are reviewed under the manifest error/clearly wrong standard; the trial court’s discretionary judgment on whether to certify the class or not is reviewed by the abuse of discretion standard.” Id. Therefore, our applicable standard of review is whether the trial court abused its discretion in denying the Plaintiffs’ Motion for Class Action Certification and whether the trial court’s findings in regards to the requirements of class certification were manifestly erroneous. Id.

“In reviewing factual findings, the reviewing court should not set aside the factual findings of the trial court absent manifest error or unless those findings are clearly wrong.” Marshall ex rel. minor children v. Air Liquide-Big Three, Inc., 08-0668, p. 5 (La.App. 4 Cir. 12/17/08), 2 So.3d 541, 546. “The issue to be resolved by a reviewing court is not whether the trier of fact was right or tvrong, but whether the factfinder’s conclusion was reasonable.” Id. “However, if a court of appeal determines that the trial court committed a reversible error of law or manifest error of fact, the court of appeal must ascertain the facts de novo from the record and render a judgment on the merits.” Id.

CLASS CERTIFICATION

“[A] class action is nothing more than a procedural device; it confers no substantive rights.” Id., 08-0668, p. 6, 2 So.3d at 546. “A class action ... permits 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 interest to persons so numerous as to make it impracticable to bring them |fiall before the court.” Brooks v. Union Pac. R. Co., 08-2035, pp. 9-10 (La.5/22/09), 13 So.3d 546, 554. “The purpose and intent of class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to persons who bring the action, but to all others who are ‘similarly situated.’ ” Id., 08-2035, p. 10, 13 So.3d at 554, quoting Ford v. Murphy Oil U.S.A., Inc., 96-2913, p. 4 (La.9/9/97), 703 So.2d 542, 544.

“Whether a class action meets the requirements imposed by law involves a ‘rigorous analysis.’ ” Dupree v. Lafayette Ins. Co., 09-2602, p. 6 (La.11/30/10), 51 So.3d 673, 679, quoting Brooks, 08-2035, p. 10, 13 So.3d at 554. When conducting this analysis, the trial court “ ‘must evaluate, quantify and weigh [the relevant factors] to determine to what extent the class action would in each instance promote or detract from the goals of effectuating substantive law, judicial efficiency, and individual fairness.’ ” Brooks, 08-2035, p. 10, 13 So.3d at 554, quoting McCastle v. Rollins Envtl. Servs. of Louisiana, Inc., 456 So.2d 612, 618 (La.1984).

While any errors to be made in deciding class action issues should, as a general rule, be in favor of and not against the maintenance of the class action because a class certification is always subject to modification or decertification if later developments so require, see La. C.C.P. art. 592(A)(3)(c), that general rule cannot and should not be used as a substitute for the rigorous analysis required to determine whether the prerequisites of Louisiana’s class action provisions have in fact been satisfied.

Price v. Martin, 11-0853, p. 7 (La.12/6/11), 79 So.3d'960, 967.

In order to qualify for class certification, the party seeking certification must prove that:

(1)The class is so numerous that join-der of all members is impracticable.
|⅜(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. This prerequisite shall not be satisfied if it is necessary for the court to inquire into the merits of each potential class member’s cause of action to determine whether an individual falls within the defined class.

La. C.C.P. art. 591(A). If all of the requirements of La. C.C.P. art. 591(A) are met, then one of the following must also be proven:

(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;
|7(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
(4) The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.

La. C.C.P. art. 591(B).

CLASS REPRESENTATIVES

Mr. Estopinal, the lead named class representative, gutted and cleaned out the residential property he owned at the time Hurricane Katrina struck. Mr. Estopinal did not recall receiving any letters from the SBPG regarding the condemnation/demolition of his house. However, he did receive letters from the SBPG about his failure to keep the lawn cut. Mr. Estopi-nal filed an appeal of the demolition, but he could not remember why, as he claimed he was unaware his property was going to be demolished. He attended the appeal hearing, but does not remember being present. Mr. Estopinal allegedly discovered that his house was marked for demolition when his daughter telephoned him about a bulldozer engaged in the demolition process in the front yard in January 2009.

Glenn Dixon gutted a portion of his residential property and repaired the roof, but made no other repairs. A few months after Hurricane Katrina, Mr. Dixon allegedly learned from a former neighbor that his property was marked with a demolition placard. Mr. Dixon received a building permit, but did not proceed with repairs. Then Mr. Dixon appealed the demolition of his property, received a notice of the appeal hearing in the mail, and his appeal was granted, based on the [ Rcaveat that he remediate the property. After receiving notice that his property was again slated for demolition, Mr. Dixon filed a second appeal in November 2008, and attended the second appeal hearing.

Ellen Dupriest, owned her residential property when Hurricane Katrina struck the region. Her property was allegedly gutted and sterilized. When Ms. Dupriest applied for a building permit in the summer of 2007, she was aware that homes were being demolished. However, she believed, through hearsay, that only houses remaining ungutted were being demolished. Ms. Dupriest stated that she was never aware that her property was slated for demolition and denied receiving any letters from the SBPG regarding same. Although a FEMA trailer was located on Ms. Dupriest’s property from 2006-2008, and she claimed that someone visited the property “frequently,” Ms. Dupriest was allegedly unaware that the exterior of the property was posted with a placard stating that it was subject to demolition. Ms. Dupriest stated that her family did not remove demolition placards from the exterior of her property. Ms. Dupriest did not appeal the condemnation/forced demolition.

Jeffrey Benedic, a member of Real Investments, L.L.C. (“RIL”), testified that RIL purchased property in April 2008. Mr. Benedic was unaware if the previous owners participated in the administrative process. The previous owner appealed the condemnation/demolition of the property. Mr. Benedic stated that the property was posted with yellow placards with a red “X,” which-was indicative of impending demolition. RIL received a letter from the SBPG stating that the property was subject to demolition. RIL filed an appeal of the demolition and the appeal hearing followed. Mr. Benedic stated that the appeal panel informed them that RIL had until July 15, 2009, to remodel the property to meet the minimum | standards. However, on February 6, 2009, RIL’s property was demolished. The letter denying RIL’s appeal was also dated February 6, 2009.

NUMEROSITY

The first prerequisite for sustaining a class action is that “[t]he class is so numerous that joinder of all members is impracticable.” La. C.C.P. art. 591(A)(1). “No set number of plaintiffs is required in order to fulfill this requirement.” Davis v. Jazz Casino Co., 03-0005, p. 7 (La.App. 4 Cir. 1/14/04), 864 So.2d 880, 888. The Plaintiffs allege in accordance with information provided by BBEC that approximately 8,298 properties were demolished. The trial court found that the numerosity requirement was “met” and this finding was uncontested on appeal. Therefore, the trial court did not commit manifest error in finding that the numerosity requirement was proven pursuant to La. C.C.P. art. 591(A)(1).

COMMONALITY

Next, the Plaintiffs must show that “[t]here are questions of law or fact common to the class.” La. C.C.P. art. 591(A)(2). “A common question is one which when answered as to one class member is answered as to all.” Smith ex rel. Upchurch v. McGuire Funeral Home, Inc., 46,826, pp. 9-10 (La.App. 2 Cir. 6/1/11), 70 So.3d 873, 881. “The mere existence of common questions, however, will not satisfy the commonality requirement.” Price, 11-0853, p. 10, 79 So.3d at 969. “To satisfy the commonality requirement, there must exist ‘as to the totality of the issues a common nucleus of operative facts-’” Id., quoting Dupree, 09-2602, p. 11, 51 So.3d at 682.

Commonality requires a party seeking certification to demonstrate the class members’ claims depend on a common contention, and that common contention must be one capable of class-wide resolution — one where the ‘determination of its truth or falsity will resolve an issue | inthat is central to the validity of each one of the claims in one stroke.’

Id., 11-0853, p. 10, 79 So.3d at 969, quoting Wal-Mart Stores, Inc. v. Dukes, — U.S. -, -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). “However, in order to meet the common cause requirement, each member of the class must be able to prove individual causation based on the same set of operative facts and law that would be used by any other class member to prove causation.” Brooks, 08-2035, p. 17, 13 So.3d at 559. When addressing commonality, the United States Supreme Court stated in Wal-Mart, that:

[h]ere respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.

— U.S. -, 131 S.Ct. 2541, 2552, 180 L.Ed.2d 374.

The Plaintiffs allege that the Defendants “involuntarily and unconstitutionally took” their “property and/or property rights without just compensation following Hurricane Katrina” and that SBPG “and its contractors committed trespasses in bad faith during the execution of all involuntary condemnations and demolitions.” Additionally, the Plaintiffs contend that “[t]his case is certifiable since all the claims arise from a singular, unlawful program initiated by the SBPG and executed by it and its contractors;” that “[t]he same arbitrary process was applied to all class members;” and that “[ejven when the rules changed the same legally deficient processes were employed class-wide.” Further, the Plaintiffs assert that the following issues are common to all Plaintiffs:

(1) Whether the condemnations and demolitions of the plaintiffs’ properties were lawfully authorized;
| n(2) Whether the procedure established and implemented by the defendants constituted a denial of due process and a violation of the substantive statutory and constitutional rights of plaintiffs resulting in negligent and/or unlawful, taking of and/or damage to the plaintiffs’ properties;
(3) Whether the actions of the defendants amounted to a “taking” or “damage” to plaintiffs’ property entitling them to compensation to the full extent of each of their losses; and,
(4) Whether the processes employed to involuntarily condemn and demolish the plaintiffs’ properties constituted trespasses upon the plaintiffs’ properties, causing damage to the properties, entitling them to general damages and compensation to the full extent of each of their losses.

The proposed class definition includes three classes of Plaintiffs: 1) those whose property was demolished, 2) those whose property was damaged, and 3) those who instituted legal proceedings to prevent the demolition of their property. Some Plaintiffs owned the subject property when Hurricane Katrina struck, while others purchased unremediated property after Hurricane Katrina.

Determining if a single plaintiffs property was lawfully condemned and/or demolished depends upon a myriad of different factors, which includes, but is not limited to, whether he/she: 1) received a letter from SBPG, 2) appealed the condemnation, 3) attended the appeal hearing, 4) instituted legal action to prevent the SBPG from demolishing the property, 5) previously requested that the SBPG demolish the property, 6) knew the property was going to be demolished and failed to participate in the administrative process, and 7) knew that the previous property owner requested that the SBPG demolish the property. Also, each plaintiffs alleged damages occurred on a different date and for varying reasons, depending on the Plaintiffs’ answers to the questions listed above. Accordingly, each plaintiff will have to prove a differing set of facts and circumstances in order to prove damages allegedly caused by one or more of the Defendants, which requires | ^evidence solely relating to each member of the proposed class. Likewise, each plaintiff must present separate and differing evidence for each of the individual Defendants, depending on the alleged liability of each defendant, if any, to each of the Plaintiffs.

Like the United States Supreme Court in Wal-Mart, we find that the Plaintiffs seek a singular remedy from thousands of decisions allegedly made by the Defendants that are unique to each plaintiff. Therefore, we do not find that the trial court committed manifest error in finding that “there is an absence of common questions of fact and law to adjudicate the claims of the various members or to assign or apportion responsibility on each defendant .in each of the myriad of factual situations encompassed by the definition to certify the class.” The proposed class does not meet the La. C.C.P. art. 951(A)(2) requirement of commonality.

TYPICALITY

“Typicality for class action certification is satisfied if the claims of the class representatives arise out of the same event, practice, or course of conduct that gives rise to the claims of other class members and those claims are based on the same legal theory.” Watters, 05-0324, 05-0325, 05-0326, p. 16, 929 So.2d at 279.

The trial court stated:

Under the facts pled in Plaintiffs’ petition and, even more poignantly and revealing, in the facts and circumstances of the plaintiffs in this case, it is honestly impossible to assert or illogical to believe that the plaintiffs suffered the same type of economic loss. Some properties were demolished, many of those were subsequent to plaintiffs participation in an administrative process or appeals. Others were not demolished but owners [sic] required to expend money to obtain injunctive relief from the threatened demolition. Some properties were purchased after Katrina in a damaged or 1 ^uninhabitable condition, some for profit on resale, some by individuals and others by business entities, some for commercial ventures and others as residences and some received hurricane disaster relief grants and of those, many chose to build elsewhere with funding by the grant. Some properties were purchased by Louisiana Land Trust for which consideration in varying amounts were paid to the former owners and, now, among plaintiffs seeking to certify this class.

The claims of the four class representatives do not arise out of the same event. As we discussed regarding commonality, the Plaintiffs were in different phases of the administrative process, if at all, all of the decisions regarding their respective properties were made at different times, and their claims involved varying degrees and types of damages. As for the same practice or course of conduct, the Plaintiffs contend that SBPG’s plan for dealing with blighted property caused their damages. However, BBEC and URG were not involved in the administrative process of determining which properties to condemn and/or demolish in the same capacity as the SBPG. The record evidence supports the trial court’s factual findings in regards to the lack of typicality of the Plaintiffs’ claims. Therefore, we do not find that the trial court committed manifest error in finding that the typicality requirement, pursuant to La. C.C.P. art. 591(A)(3), was not met.

ADEQUACY

“The fourth prerequisite to class certification is that the representative parties must fairly and adequately protect the interests of the class.” Husband v. Tenet HealthSystems Mem’l Med. Ctr., Inc., 08-1527, p. 11 (La.App. 4 Cir. 8/12/09), 16 So.3d 1220, 1230. “The representatives’ claims must be a cross section of, or typical of, the claims of the other class members.” Watters, 05-0324, 05-0325, 05-0326, p. 16, 929 So.2d at 279. “Class representatives can adequately represent absent class members, even though claims by a particular class | T representative with regard to the exact damages claimed may not be typical, as long as the class of damages asserted by each representative is.” Husband, 081527, p. 11, 16 So.3d at 1230. This Court enumerated factors that may be relevant to determining adequacy in Davis as follows:

(1) The representative must be able to demonstrate that he or she suffered an actual-vis-á-vis hypothetical-injury;
(2) The representative should possess first hand knowledge or experience of the conduct at issue in the litigation;
(3) The representative’s stake in the litigation, that is, the substantiality of his or her interest in winning the lawsuit, should be significant enough, relative to that of other class members to ensure that representative’s conscientious participation in the litigation; and
(4) The representative should not have interests seriously antagonistic to or in direct conflict with those of other class members, whether because the representative is subject to unique defenses or additional claims against him or her, or where the representative is seeking special or additional relief.

03-0005, pp. 8-9, 864 So.2d at 888, quoting Kent A. Lambert, Certification of Class Actions in Louisiana, 58 La. L.Rev. 1085 (1998).

A review of the class representatives, reveals that three participated in the administrative process by filing an appeal. Three class representatives owned their residential property when Hurricane Katrina struck. One class representative purchased the property after the demolition placard was placed on the exterior of the property. The property of all four of the class representatives was demolished.

However, a review of the named Plaintiffs’ depositions depicts a widely varied set of plaintiffs. Some of the Plaintiffs filled out forms requesting that the SBPG demolish their property, only to later attempt and rescind the request. Other Plaintiffs’ properties were not demolished, but allegedly pipes or other items outside of the structures were damaged. Still, more Plaintiffs’ properties were not | ^demolished or damaged because they utilized legal action to prevent the demolition of their properties. While some of the Plaintiffs appealed the demolitions and appeared at the appeal hearings, others either did not attend the appeal hearings or failed to participate in the administrative appeal process. Furthermore, Michael Truax, Sr., an expert appraiser, stated that “mass appraisal techniques ... would not likely result in the fair and accurate determination of damages.”

Given the trial court’s reasoning and our review of the variables among the class representatives and the other deposed Plaintiffs, as summarized above, we do not find that the trial court committed manifest error in finding that the adequacy requirement, pursuant to La. C.C.P. art. 591(4), was not met because “[t]he representative parties” would not “fairly and adequately protect the interests of the class.”

CLASS DEFINED BY ASCERTAINABLE CRITERIA

“The last requirement of La. C.C.P. art. 591 is that the class be defined objectively in terms of ascertainable criteria to allow the court to determine the constituency of the class for purposes of. the conclusiveness of any judgment.” Smith, 46,326, p. 14, 70 So.3d at 883. “The class definition requirement ensures that the class is not amorphous, indeterminate, or vague so that any potential class member can readily determine if he or she is a member of the class.” Id. “This prerequisite shall not be satisfied if it is necessary for the court to inquire into the merits of each potential class member’s cause of action to determine whether an individual falls within the defined class.” La. C.C.P. art. 591(A)(5). “Definability of the class by objective criteria is essential given the res judicata effect of the class action procedure.” Davis, 03-0005, p. 14, 864 So.2d at 891.

The Plaintiffs sought to define the class as follows:

|1rAH persons who owned real property or property rights in the Parish of St. Bernard, State of Louisiana on or after August 29, 2005, which property or property rights have been unconstitutionally taken or damaged through the actions of the Parish of St. Bernard and/or its agents/contractors, including UNIFIED RECOVERY GROUP, L.L.C., and BAROWKA AND BONU-RA ENGINEERS AND CONSULTANTS, L.L.C., without just compensation following Hurricane Katrina. The class also includes those who were forced to institute legal proceedings and incur expenses associated therewith, including motions for temporary restraining orders, to stop the defendants from illegally taking/damaging their properties.

While the proposed class definition provides a method for determining which individuals are members of the defined class, the trial court would still be required to “inquire into the merits of each potential class member’s cause of action to determine whether an individual falls within the defined class” because determining whether each plaintiffs property or property rights were unconstitutionally/illegally damaged or taken depends on individual facts and circumstances. La. C.C.P. art. 591(A)(5). As the trial court stated:

the class definition is faulty since the facts of each case and the cause of each claim are so diverse, a judgment for one member of the class could not support what would be normally considered a matter already adjudicated so as to bar another action or incapable of a conclusiveness of a judgment in a claim for another claim, or in legal terms incapable of supporting a plea of res adjudica-ta.

Accordingly, we find that the Plaintiffs failed to prove that thé class could be objectively defined in compliance with La. C.C.P. art. 591(A)(5).

PREDOMINANCE & SUPERIORITY

Because we found that the trial court did not commit manifest error in finding that the requirements for maintaining a class action pursuant to La. C.C.P. 591(A) were not met, we are not required to address whether the Plaintiffs met [17their burden of proof as to La. C.C.P. art. 591(B). See La. C.C.P. art. 591(B). However, we address these requirements out of an abundance of caution.

“[Plaintiffs were required to prove, pursuant to La. C.C.P. art. 591(B)(3), that common questions of law or fact predominate over any individual issues and that the class action procedure is superior to any other.” Price, 11-0853, pp. 21-22, 79 So.3d at 975. The Plaintiffs contend that the requirements of La. C.C.P. art. 591(B)(3) were met. La. C.C.P. art. 591(B)(3) provides:

(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 ...

Predominance

“An inquiry into predominance tests ‘whether the proposed classes are sufficiently cohesive to warrant adjudication by representation.’ ” Brooks, 08-2035, p. 19, 13 So.3d at 560, quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 2249, 138 L.Ed.2d 689 (1997). “The predominance requirement is more demanding than the commonality requirement and, as such, |18mandates caution, especially where ‘individual stakes are high and disparities among class members great.’ ” Brooks, 08-2035, p. 19, 13 So.3d at 560, quoting Amchem, 521 U.S. 591, 117 S.Ct. at 2250, 138 L.Ed.2d 689. “The predominance requirement ‘entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class,’ a process that ultimately ‘prevents the class from degenerating into a series of individual trials.’ ” Brooks, 08-2035, p. 19, 13 So.3d at 560, quoting O’Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 738 (5th Cir.2003).

We found that the trial court did not commit manifest error in finding that the commonality requirement for sustaining a class action was not proven. As stated above, whether each plaintiff was deprived of property rights, unconstitutionally or illegally, will depend upon an individual analysis of each case. Hence, the Defendants’ liability to each plaintiff cannot be established with evidence common to all class members. Accordingly, we find that the Plaintiffs have failed to demonstrate predominance. See Dupree, 09-2602, p. 41, 51 So.3d at 699.

Superiority

“When a common character of rights exists, a class action is superior to other available adjudicatory methods in effectuating substantive law, and promoting judicial efficiency and individual fairness.” Husband, 08-1527, p. 17, 16 So.3d at 1233. “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. “The basic goal or aim of any procedural device is ‘to implement the substantive law, and to implement that law |19in a manner which will provide maximum fairness to all parties with a minimum expenditure of judicial effort.’ ” Dupree, 09-2602, p. 41, 51 So.3d at 700, quoting Stevens v. Bd. of Trustees of Police Pension Fund of City of Shreveport, 309 So.2d 144, 151 (La.1975). “If each class member has to prove causation separately, this would defeat the purpose of a class action.” Brooks, 08-2035, p. 21, 13 So.3d at 561. “This is difficult when multiple defendants and causes are involved.” Id.

The trial court found that the following variables prevented class action certification:

[w]hether a claimant participated in the administrative process abrogated the necessity of notice, the extent of that participation, the length of time from participation or notice to demolition, the extent of the damage, the condition of the property, any efforts to repair or restore, voluntary demolitions, whether any payments were to claimants representing the value of the improvements which were later demolished, application or in applicability of the collateral oral source rule, threatened demolition, only to suggest a few distinctions and differences for factual consideration.

Similar to our discussion on predominance, we find that the superiority requirement is not met. The myriad of factual issues, damage issues, and liability issues specific to each plaintiff, as well as each defendant, precludes the utilization of a class action as a proper procedural device. As stated by the Louisiana Supreme Court, “it is clear that each member of the proposed class will necessarily have to offer different facts to establish liability and damages.” Alexander v. Norfolk S. Corp., 11-2793, p. 3 (La.3/9/12), 82 So.3d 1234, 1236. “Certification under these facts would create precisely the situation we cautioned against in Brooks, i.e., the class would degenerate into a series of individual trials.” Id. As such, we find that the trial court did not abuse its vast discretion by denying the Plaintiffs’ Motion for Class Action Certification based on the findings that the | ¡^Plaintiffs’ proposed class definition failed to comply with La. C.C.P. art. 591 and affirm.

DECREE

For the above-mentioned reasons, we find that the trial court did not abuse its vast discretion in denying the Plaintiffs’ Motion for Class Action Certification based on the findings that the proposed class failed to satisfy the requirements of La. C.C.P. art. 591. While numerosity was present, the Plaintiffs did not satisfy their evidentiary burden of proving that the characteristics of commonality, typicality, adequacy, ascertainable class definition, predominance, and superiority were present and required the certification of a class action. Accordingly, we affirm.

AFFIRMED

      . La. C.C.P. art. 463. Cumulation, plural plaintiffs or defendants provides that:

        Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if:
      (1) There is a community of interest between the parties joined;
      (2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
      (3) All of the actions cumulated are mutually consistent and employ the same form of procedure.
      Except as otherwise provided in Article 3657, inconsistent or mutually exclusive actions may be cumulated in the same suit if pleaded in the alternative.

      . Mr. Estopinal is now deceased.

      . URG, BBEC, Scottsdale, and Houston are collectively referred to as the Defendants.

      . On December 23, 2013, the Defendants filed an Ex Parte Motion To Dismiss and/or Strike Plaintiffs' Request for Appellate Review of the November 5, 2010 Ruling of the Trial Court Granting the Exception of No Cause of Action as to Damages. This Court granted the motion on January 23, 2014, and struck the "plaintiffs’ request for appellate review of the 2010 ruling of the trial court granting the exception of no cause of action.”