source: Caselaw Access Project

author: Judge Rosemary Ledet

license: Public Domain

text:
    Sheila GUIDRY v. DOW CHEMICAL COMPANY and the State of Louisiana through the Department of Environmental Quality
    NO. 2016-CA-0757
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 1, 2017

      Gregory P. DiLeo, Benjamin W. Gulick, GREGORY P. DILEO, APLC, 300 Lafayette Street, Suite 101, New Orleans, LA 70130, Jeffrey P. Berniard, BERNIARD LAW FIRM, LLC, 300 Lafayette Street, Suite 101, New Orleans, LA 70130, Ron A. Austin, AUSTIN & ASSOCIATES, LLC, 400 Manhattan Boulevard, Harvey, LA 70058-4442, J. Bart Kelly, III, Roderick R. Alvendia, ALVENDIA KELLY & DE-MAREST, LLC, 909 Poydras Street, Suite 1625, New Orleans, LA 70112-4500, COUNSEL FOR PLAINTIFFS/APPEL-LEES
    Neil C. Abramson, Joe B. Norman, Kelly B. Becker, Kathryn Z. Gonski, Katie S. Roth, Nora B. Bilbro, Dana M. Douglas, LISKOW & LEWIS, 701 Poydras Street, Suite 5000, New Orleans, LA 70139-5099, Mark C. Dodart, PHELPS DUNBAR, LLP, 365 Canal Street, Suite 2000, New Orleans, LA 70130-6534, Phillip E. Foco, David M. Bienvenu, Jr., Lexi T. Holinga, BIENVENU, BONNECAZE, FOCO, VI-ATOR, HOLINGA, APLLC, 4210 Bluebonnet Blvd., Baton Rouge, LA 70809, COUNSEL FOR DEFENDANTS/APPELLANTS
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Rosemary Ledet)
   Judge Rosemary Ledet

I iThis is a mass tort, toxic exposure case. This is the second time this case has come before this court on appeal. The previous appeal was from the trial court’s December 15, 2011 judgment certifying a plaintiff class. Guidry v. Dow Chem. Co., 12-0436, 12-0198 (La.App. 4 Cir. 11/14/12), 105 So.3d 900 (“Guidry I”), writ granted in part, Guidry v. Dow Chem. Co., 12-2696 (La. 3/1/13), 108 So.3d 755 (“Guidry II”). In Guidryl, this court affirmed the certification decision. In Guidry II, the Louisiana Supreme Court denied writs on that issue. The instant appeal is from the trial court’s April 5, 2016 judgment denying the joint motion to decertify the class (the “Joint Motion”) filed by the defendants, Union Carbide Corporation (“UCC”) and The Dow Chemical Company (“Dow”) (the “Defendants”). For the reasons that follow, we affirm.

| .FACTUAL AND PROCEDURAL BACKGROUND

The basic underlying facts of this case are undisputed. In the early morning hours of July 7, 2009, a tank failure occurred at a chemical facility in Taft, Louisiana, which is located in St. Charles Parish. The chemical facility was owned and operated by UCC, a wholly owned corporate subsidiary of Dow. As a result of the tank failure, ethyl acrylate (“EA”), a volatile organic compound, was released into the air (the “EA Release”). The EA that was released from the tank was actually a mixture of three chemicals; it included two stabilizing chemicals in various quantities—Hydroquinone (“HQ”) and Methyl Ether of Hydroquinone (“MEHQ”).

On the morning of the EA Release, the St. Charles Parish Department of Emergency Preparedness closed nearby roads and evacuated residents within a two mile area east of UCC’s facility. As a result of the EA Release, residents and visitors in three parishes—St. Charles, Jefferson, and Orleans—voiced complaints of odors and physical symptoms. Immediately after the EA Release, multiple lawsuits were filed, including this one.

|sOn July 29, 2009, Sheila Guidry filed this suit in Orleans Parish against two defendants—Dow and the LDEQ. In her petition, Ms. Guidry averred that on July 7, 2009, she noticed a foul smell and that the smell caused her to experience headache, dizziness, and burning eyes. She further averred that EA is “an organic compound” and that it is “a possible carcinogen and should be considered hazardous at all times in any concentration.” Finally, she asserted various tort theories of liability against Dow for the EA Release.

On July 30, 2009, Ms. Guidry amended her petition to include class action allegations and to assert claims on behalf of a proposed class. In her petition, she set forth the following definition of the class:

Persons throughout Louisiana who were exposed to a release of any chemical by Defendants DOW and Union Carbide on or around July 7, 2009 and said release caused to that person personal injuries, emotional distress, loss of income, or the loss of the beneficial use, enjoyment, and exclusive possession of their property, or any other damages provable at the trial of this matter.

On August 6, 2009, she amended her petition again to name UCC as a defendant.

On June 9, 2010, Ms. Guidry filed a motion for class certification. On May 12, 2011, before the class certification hearing, Ms. Guidry filed a motion to substitute class representative. The trial court granted this motion; removed Ms. Guidry; and replaced her with Ramona Alexander, Vanessa Wilson, and Melissa Berniard. In May 2011, a two-day class certification hearing was held. Following the hearing, the trial court thus certified the following class:

The class consists of those persons living or located in the following described geographic areas: starting at the northwest corner of the class boundary, included in postal zip code 70068 in St. John the Baptist Parish, proceeding ' eastward along Lake Pontchartrain to 14postal zip code 70065, located in Jefferson Parish, and further eastward to postal zip code 70117, located in Orleans Parish; and proceeding from the southwest corner of the class boundary, included in postal zip code 70057 in St. Charles Parish, then proceeding further southeast to postal zip code 70031, then proceeding further eastward to postal zip code 70094 in Jefferson Parish, and then east/northeast to postal zip code 70117 in Orleans Parish, and all areas included in between those points; and who were present in these locations for some time, from 4:30 am on July 7, 2009, until 3:30 pm on July 8, 2009, and who experienced the physical symptoms which include any or all of the following—eyes, nose, throat irritation, coughing, choking or gagging, or nausea, or headaches, dizziness, trouble breathing or other respiratory issues, as a result of their exposure to Ethyl Acrylate or other chemical substance released from tank 2310 at Union Carbide Corporation’s Taft, Louisiana Facility. Those persons living or located in those geographic areas and who experienced any of these physical symptoms will constitute the class and will be bound by the decision in this case.

This court affirmed the trial court’s decision certifying the class. Guidry I, supra. Although the Louisiana Supreme Court denied the Defendants’ writ on the certification issue, it granted the Defendants’ writ, in part, on another issue, holding:

Melissa Bernard [the spouse of appointed class counsel] is disqualified from serving as a class representative. See Stull v. Pool, 63 F.R.D. 702 (S.D.N.Y. 1974). In all other respects, the writ is denied. The matter is remanded to the district court for further proceedings pursuant to this Order.

Guidry II, 12-2696 at p. 1, 108 So.3d at 756.

On remand, Ms. Berniard was removed as a class representative and replaced by Bates Whiteside and Henry Homes. The case then proceeded to discovery. Thereafter, the Defendants filed a Joint Motion to Decertify Class (the “Joint Motion”). On October 21, 2015, a hearing was held on the Joint Motion. On April 5, 2016, the trial court rendered judgment denying the Joint Motion. This appeal followed.

^DECERTIFICATION MOTION GENERAL PRINCIPLES

In reviewing a trial court’s ruling on a decertification motion, the following general principles apply. First, a trial court’s decision denying a decertification motion is an interlocutory judgment that is immediately appealable by law. La. C.C.P. art. 592 A(3)(c); Billieson v. City of New Orleans, 09-0410, 09-0811 p. 4, n. 2 (La. App. 4 Cir. 11/12/09), 26 So.3d 796, 799; Sutton Steel & Supply, Inc. v. BellSouth Mobility, Inc., 07-146, 07-512 p. 7 (La.App. 3 Cir. 12/12/07), 971 So.2d 1257, 1263.

Second, “[a] trial court’s decision denying a motion to decertify a class is one involving a valid exercise of discretion and therefore is reviewed under an abuse of discretion standard.” Jones v. Capitol Enterprises, Inc., 11-0956, pp. 11-12 (La.App. 4 Cir. 5/9/12), 89 So.3d 474, 484 (citing Billieson, 09-0410, 09-0811 at p. 9, 26 So.3d at 802 (citing Doerr v. Mobil Oil Co., 04-1789, p. 4 (La.App. 4 Cir. 6/14/06), 935 So.2d 231, 234); Richardson v. American Cyanamid Co., 99-675-82 (La. App. 5 Cir. 2/29/00), 757 So.2d 135). Stated differently, “[a] trial court has broad discretion in deciding whether to certify a class; it also has the same discretion to amend or reverse its decision at any time.” Mire v. Eatelcorp., Inc., 04-2603, p. 8 (La.App. 1 Cir. 12/22/05), 927 So.2d 1113, 1118 (citing Mathews v. Hixson Brothers, Inc., 03-1065, p. 4 (La.App. 3 Cir. 2/4/04), 865 So.2d 1024, 1028). “The appellate court will only decertify a class where there is an abuse of the trial judge’s vast discretion.” Mayho v. Amoco Pipeline Co., 99-620 to 99-624, p. 4 (La.App. 5 Cir. 12/15/99), 750 So.2d 278, 281.

Third, by statute, a trial court is authorized to modify or recall its certification decision at any time prior to a decision on the merits. La. C.C.P. art. 592 A(3)(d) (providing that “(i]n the process of class certification, or at any time thereafter before a decision on the merits of the common issues, the court may alter, amend, or recall its initial ruling on certification and may enlarge, restrict, or otherwise redefine the constituency of the class or the issues to be maintained in the class action.”). Thus, “Article 592 allows a trial judge to decertify a class at any time before a decision on the merits of the common issues.” Jones, 11-0956 at p. 23, 89 So.3d at 490.

Fourth, the “law of the case” doctrine does not prohibit an appellate court that has previously reviewed a class certification decision from reviewing the class certification on a subsequent appeal when the court is presented with new issues or questions as to whether the certification was proper. See Mire, 04-2603 at p. 8, 927 So.2d at 1117-18. Neither the trial court’s initial order of certification nor this court’s opinion affirming that order bars reconsideration of the propriety of maintaining the class if the fundamental nature of its cause of action changes. Id.

Fifth, Louisiana courts uniformly have held that *‘[i]n the absence of materially changed or clarified circumstances, or the occurrence of a condition on |7which the initial class ruling was expressly contingent, courts should not condone a series of rearguments on the class issues by either the proponent or the opponent of class, in the guise of motions to reconsider the class ruling.” Doerr, 04-1789 at p. 4, 935 So.2d at 234-35 (quoting 3 Alba Conte and Herbert Newberg, NEWBERG ON CLASS ACTIONS, § 7:47 (4th ed. 2002).; see also Orrill v. Louisiana Citizens Fair Plan, 11-1541, p. 3 (La.App. 4 Cir. 6/13/12), 96 So.3d 647, 649; Doe v. Jo Ellen Smith Med. Found., 12-0966, p. 6 (La.App. 4 Cir. 4/24/13), 115 So.3d 655, 660; Jones, 11-0956 at p. 27, 89 So.3d at 492.

Sixth, it is proper to grant a decer-tification motion “when there has been a material change in the facts, law, or circumstances since the initial class ruling.” Doe, supra (citing Billieson, 09-0410 at p. 9, 26 So.3d at 802).

Seventh, a change or clarification is material when it “eliminated or substantially impair[s] any of the requisite elements for maintenance of a class action.” Mire, 04-2603 at p. 8, 927 So.2d at 1118 (citing Richardson, 99-675 at pp. 7-10, 757 So.2d at 138-39); see also Mayho, 99-620 to 99-624 at p. 5, 750 So.2d at 281 (holding that a certified class is always subject to modification should later developments during the course of the proceedings require).

- Eighth, a significant factor in deciding a decertification motion is whether either the parties or the class would be unfairly prejudiced by a change in proceedings at that stage of the proceeding. Jones, 11-0956 at p. 26, 89 So.3d at 491-92 (citing 3 Alba Conte and Herbert Newberg, NEWBERG ON CLASS ACTIONS, § 7:47 (4th ed. 2002)(quoting MANUAL FOR COMPLEX LITIGATION, § 30.18 (2d ed.)). The procedural posture of the case thus is an|simportant consideration in assessing the prejudice that would result from a change in the proceedings. Id.

Ninth, “decertification is a ‘drastic step,’ not to be taken lightly.” 3 NEWBERG ON CLASS ACTIONS, § 7:37 at 190. “In lieu of decertification, courts may prefer less drastic alternatives, such as bifurcation of liability and damages.” Id. Alternatively, the court may modify the class definition. See La. C.C.P. art. 592 (A)(3)(d) (providing for modification of the class definition).

Tenth, and finally, Louisiana has a policy favoring class actions; “ ‘[t]he Louisiana Supreme Court has mandated that errors to be made in deciding class action issues should be in favor of and not against the maintenance of the class action.’” Orrill, 11-1541 at p. 2, 96 So.3d at 648 (quoting Wallace v. Louisiana Citizens Prop. Ins. Corp., 10-0647, p. 5 (La.App. 4 Cir. 12/6/10), 53 So.3d 514, 518).

DISCUSSION

The narrow issue before us is whether there has been a material change in the facts or circumstances since the initial class ruling that would warrant class de-certification. Here, it is undisputed that there has been no material change in the |9law. The determination of whether there has been a material change in the facts or circumstances to warrant decertification, as the trial court noted, requires a comparison of the pre-certification and post-certification evidence. In order to provide a background for analyzing that issue, it thus is necessary to summarize that evidence.

Evidence presented at the certification hearing

At the certification hearing, the sole causation evidence the Plaintiffs presented was the testimony of Patricia Williams, PhD, their expert toxicologist. Dr. Williams’ testimony focused on general— as opposed to specific—causation. Dr. Williams explained that she reviewed 116 client intake forms, which provided self-reported, specific clinical symptoms. Based on her review of those forms, she created three charts: (i) a chart categorizing those clients’ symptoms and complaints; (ii) a chart correlating those client’s symptoms with the chemicals released—EA, HQ, and MEHQ; and (ii) a chart summarizing the zip codes at which those clients resided at the time of their alleged exposure.

|inAs the trial court noted in its December 15, 2011 reasons for judgment on the certification motion, Dr. Williams testified that the EA that was released included two stabilizing chemicals in various amounts—HQ and MEHQ—and that “[e]ach chemical in various concentrations has health effects reflected on material safety data sheets, which were considered by the court and the parties[’] experts.” The trial court further noted the following:

Dr. Williams testified that there is scientific evidence that can be used and documented to show that a particular chemical can cause particular symptoms or diseases and that in her opinion the EA release also included the release of HQ and MEHQ in smaller but significant quantities, producing a cumulative effect on those exposed to these chemicals. Dr. Williams concluded that the chemicals released more probably than not did cause the symptoms as alleged by the class, and that the symptoms of class members she sampled were consistent with her general findings of general causation.
Dr. Williams also stated that to reach a general causation opinion one must look at peer reviewed journal articles, government documents, state documents, reference textbooks, and everything that is known about the chemical. Dr. Williams explained that the method she used to come to her general causation opinion on the chemicals involved in this case involved a review of over one hundred [116] intake forms of the class members who alleged the various grievances that could be caused by EA exposure. Dr. Williams concluded that the method was sound, generally accepted and supported her finding that more probably than not the symptoms alleged by the class were consistent with her general findings of causation from the release of EA.

The trial court stated that it was clear this class action arose out of a common disaster—the release of EA, which include HQ and MEHQ, by Dow and UCC on July 7, 2009. The trial court further stated that “[t]he common causation that plaintiffs’ class representatives present on behalf of the class is whether or not the EA, HQ, and MEHQ release can cause damages consistent with the class definition.” The trial court concluded as follows:

Despite the conflicting opinions as to the toxicity level that the class members were possibly exposed to, neither [the Plaintiffs’ nor | nthe Defendants’] expert disputed that determining the level necessary to cause harm cannot be accomplished by using a general causation approach. The actual damage that class members could have suffered given the level of exposure is not in before this Court in determining class action certification. The Court only needs to find and does hold that a method of assessing general causation for the whole of the class exists.

Affirming the certification decision, this court noted, in Guidry I, that Dr. Williams testified “it was more probable than not that the symptoms alleged by the class were caused by the chemical release from the Union Carbide facility and that the symptoms of the class members that she sampled were consistent with her findings of general causation.” 12-0436, 12-0198 at p. 2, 105 So.3d at 902-03.

Evidence presented at the decertification hearing

The Defendants’ primary evidence at the decertification hearing, as the trial court noted, was the air dispersion model of the Plaintiffs’ air dispersion expert, Dr. Paolo Zannetti, coupled with Dr. Williams’ post-certification deposition testimony. Dr. Zannetti’s model approximated the likely concentration of EA present in the relevant geographic area at various times following the EA Release.

Dr. Zannetti’s model, as the Defendants emphasize, established two points. First, the concentration of EA for the class members present in two zip codes included in the class definition—70068 (LaPlace) and 70070 (Luling)—was zero. Those class members present in those zip codes were not in the plume developed by Dr. Zannet-ti’s model. Second, for the remaining class members present in the other zip codes, the concentration of EA varied; however, it was uniformly less l^than the 8.3 parts per million (“ppm”) standard under the Acute Exposure Guideline Levels (the “AEGL”) set by the Environmental Protection Agency (“EPA”). Dr. Williams, as the Defendants emphasize, mentioned the AEGL 8.3 ppm standard several times in her certification hearing testimony.

In her post-certification deposition, Dr. Williams was questioned extensively regarding Dr. Zannetti’s model and the impact, if any, on her common causation opinion. Summarizing Dr. Williams’ deposition testimony on this point, the trial court, in its April 5, 2016 reasons for judgment on the decertification motion, stated:

Dr. Williams testified in her deposition that, among other things, the Emergency Response Planning Guidelines (ERPG) for EA promulgated by the American Industrial Hygiene Association is a protective action criteria used in emergency response planning when there is a release. She also testified that the ERPG level of 10 parts per billion “is a protective that only transient health effects would occur below that level.” Dr. Williams further testified that it is more appropriate to use the ERPG guideline since this case and the currently defined class is about those transient adverse health effects. Notably, the record shows that the ERPG level is defined as “the maximum airborne concentration below which it is believed nearly all individuals could be exposed for up to one hour without experiencing other than mild, transient adverse health effects .... ” The AEGL standards represent levels below which “mild and progressively increasing but transient and nondisabling odor, taste and sensory irritation or certain asymptomatic, nonsensory effects,” such as the symptoms defining the current class, can be produced. After reviewing Dr. Zan[n]etti’s concentration data on the air dispersion model, Dr. Williams testified in pertinent part that “they [the class representatives] were in a range that they would have these transient adverse health effects.” (Emphasis in original).

Trial court’s ruling on the Joint Motion

Addressing the merits of the Defendants’ Joint Motion, the trial court framed the Defendants’ position as follows:

Defendants specifically contend that the air dispersion model of Plaintiffs’ [air dispersion] expert, Dr. Paolo Zan[n]etti, subsequent to the initial certification hearing, and Dr. [Patricia] Williams’ deposition | ^testimony, contradict the ‘general causation’ opinion of Dr. Williams, [the Plaintiffs’ toxicology expert] upon which the class certification was based (predominance), and more particularly, upon which the geographic boundaries of the class are defined (nu-merosity and ascertainability); thereby, creating the requisite material change in circumstances so as to eliminate or substantially impair the numerosity, ascer-tainability and predominance requirements to maintain a class action under Article 591 et seq. of the Louisiana Code of Civil Procedure.

The trial court set forth its understanding of Dr. Williams’ causation testimony at the certification hearing in its reasons for judgment as follows:

[D]uring the initial certification hearing, Dr. Williams testified that her opinions were based on the general causation approach and she discussed the various concentration guidelines concerning exposures to EA as the underlying premise for her general causation opinions. When discussing the Acute Exposure Guideline Levels (AEGL), Dr. Williams testified, “EPA has come up with the decision that at 8.3 parts per million, you should not see the irritant symptoms or the transient symptoms that would occur from—that are known to occur from ethyl acrylate. She also discussed an article regarding a different model that indicated lower concentration levels triggering irritant effects—ie. irritancy and olfactory effect at 0.4 parts per million—and concluded, “[s]o there are much lower levels than the 8.3 parts per million.... ” Further, Dr. Williams discussed the comparatively low odor threshold for EA at 24 parts per billion and, after noting the “variability in the human race with the sense of smell,” she opined that it is possible for some people to smell EA at levels below the concentrations necessary to create toxic or irritant effects.

Comparing the certification and decerti-fication evidence, the trial court concluded that the Defendants failed to establish a material change to warrant decertification. In so finding, the trial court reasoned as follows:

[Nfeither Dr. Zan[n]etti’s air dispersion model nor Dr. Williams’ deposition testimony contradicts Dr. Williams’ pre-certification “general causation opinions that were used to define the geographical boundaries of the class” during the initial certification. Instead, Dr. Williams’ subsequent testimony, taken as a whole, expounded upon her pre-certification general causation opinion in light of Dr. Zan[n]etti’s air concentration data. Moreover, this Court | ]4notes that on appeal to the Fourth Circuit, Defendants, as they do now, contended that numerosity and ascertainability were not satisfied.... [T]his Court further finds that Defendants have failed to produce evidence of a material change that eliminates or substantially impairs the nu-merosity and ascertainability requirements.
In the same vein, Defendants contend that because Dr. Williams testified that there exists variabilities [sic] among individuals relating to their precise odor threshold, then individual trials are necessary; and therefore, the predominance element no longer exists.... [T]his Court finds that Defendants’ contention lacks merit for three reasons. First, Dr. Williams provided this testimony at the initial certification hearing, ... and Defendants made this same argument on appeal.... Thus, on this basis alone, Defendants’ argument fails because this Court will not condone a series of re-arguments on class issues under the guise of the instant motion to decertify. Second, even after considering Dr. Williams’ testimony, the class was certified and the Fourth Circuit upheld the trial court’s finding of predominance.... Lastly and most importantly, this Court notes the critical difference between general and individual causation, which, based on Defendants’ argument, they misinterpret.

Lack of a material change in the facts or circumstances

As noted earlier, the narrow issue presented here hinges on whether there has been a material change in the facts or circumstances since the certification decision. Defendants contend there was a material change in the facts and circumstances as a result of Dr. Zannetti’s air dispersion model. No air dispersion evidence was presented at the certification healing. Dr. Zannetti’s model, the Defendants contend, was not only new scientific evidence, but also materially changed Dr. Williams’ pre-certification, common causation opinion.

Continuing, Defendants contend that Dr. Zannetti’s model showed EA concentrations so low—zero in two of the zip codes—that health impacts would neither be expected nor extrapolated across the population as a whole. As a result, the Defendants contend that “[Dr.] Williams had to shift her focus in assessing general causation from the population as a whole to the individual.” Given this shift in focus, Defendants contend that Dr. Williams’ deposition testimony 11r,“renders it impossible for Appellees [the Plaintiffs] to prove causation on a class-wide basis; necessarily then, common issues of fact cannot and will not predominate over individual ones at trial.” The Defendants submit that this is the material change in the facts or circumstances on which their Joint Motion properly hinged and that the trial court erred in finding to the contrary.

Dr. Williams’ opinion at the time of the certification decision, the Defendants note, was premised on the assumption that either the EA concentration exceeded the AEGL threshold standard of 8.3 ppm or that the EA mixture—which included HQ and MEHQ—amplified the effects of lower levels of EA to achieve a community-wide health effect. The Defendants emphasize that Dr. Zannetti’s model established that the EA concentration level was well below the 8.3 ppm threshold across all the zip codes and zero in two zip codes—70068 and 70070. Since Dr. Zannetti did not model HQ or MEHQ, the Defendants contend there is no evidence in his reports or elsewhere in this record to sustain Dr. Williams’ alternative amplification theory.

The Defendants further contend that the trial court erred in concluding that Dr. Williams’ post-certification deposition testimony merely expounded upon her prior testimony based on the fact she referred in her earlier testimony to concentration levels below 8.3 ppm. The Defendants contend that the change in Dr. Williams’ testimony was that she abandoned her former testimony regarding EA levels above 8.3 ppm, which was the basis for her common causation opinion. According to the Defendants, “[w]hile [Dr.] Williams may have elaborated in her testimony on the issue of whether adverse health effects could occur at levels below 8.3 ppm, for the first time she changed her testimony to state that such effects at those lower levels [which are odor thresholds] are unique and specific to 11fian individual.” Given Dr. Williams’ testimony that there exist variations among individuals regarding their precise odor thresholds, the Defendants contend that individual trials will be necessary to establish liability and damages. It follows, the Defendants contend, that the predominance element no longer exists in this case, that a material change in the facts and circumstances has been established, and that the trial court erred in denying their Joint Motion.

In support of their position, the Defendants cite several cases including Alexander v. Norfolk S. Corp., 11-2793 (La. 3/9/12), 82 So.3d 1234; and Richardson, supra. Although the Alexander case was decided before Guidry I and Guidry II, the Defendants contend that the evidence in this case has drastically changed since Guidry I and Guidry II were decided. Given the new, post-certification evidence regarding the low concentration level of EA to which the class members were exposed, the Defendants contend that this case now is exactly like the Alexander case.

Likewise, the Defendants contend that this case is analogous to Richardson, which involved a sulfur dioxide release. In that case, the new evidence showed that the exposure to the class was so minimal that the sulfur dioxide release would not cause injury to the majority of the class members. There, the trial court decertified the class; and the appellate court affirmed. The rationale for decertifying the class, the Defendants point out, was twofold. First, the numerosity and commonality requirements previously found to exist were no longer met. Second, to the extent there were some people with high sensitivities who might suffer symptoms at low levels, those people could pursue their actions individually. Defendants contend that Richardson thus stands for the proposition that, when post-certification testimony negates the plaintiffs’ ability to prove causation at the class level, the l17testimony constitutes a material change in the facts and circumstances to justify decertification. The Defendants contend that such is the case here.

The Plaintiffs counter that the Defendants have confused the applicable principles of class certification with those of class decertification. The Plaintiffs further counter that the Defendants have failed “to appreciate pertinent standards and distinctions, including the critical difference between general or common causation (as is required for class certification) and individual causation (as is shown at trial of the class representatives).”

Addressing the two issues raised by Dr. Zannetti’s model, the Plaintiffs contend that the proper remedy for the class members located in the two zip codes that Dr. Zannetti’s model established the exposure concentration was zero would be to redefine the class, if the trial court determines it is warranted, not to decertify it. As to the other issue regarding the low concentrations of EA in the other zip codes, Plaintiffs emphasize that Dr. Williams’ opinion on common causation, which the trial court relied upon in certifying the class, was not tied to a specific EA concentration level.

Addressing these two issues, we first find, as the Plaintiffs contend, that although Dr. Zannetti’s model arguably called into question the geographic parameters of the class, this is an issue that does not warrant decertification. Rather, this is an issue that can be resolved by the less drastic procedural device of redefining the class. See La. C.C.P. art. 592 A(3)(d) (providing for modification of the class definition).

Second, we find the Defendants’ reliance on the fact that Dr. Zannetti’s model established exposure to low concentrations of EA across the remaining zip codes as supporting decertification is misplaced. Both at the certification hearing 11Rand in her post-certification deposition, the Plaintiffs’ expert, Dr. Williams, maintained her opinion that general causation was established—that EA, HQ, and MEHQ release (the mixture) can cause damage consistent with the class definition. Indeed, in her post-certification deposition, Dr. Williams testified that although she was not provided with exposure data for any chemical other than EA, “we do know you have a mixture and, so, you cannot ignore [the mixture].” She reiterated that this case is not about “individual chemicals;” and she emphasized that “for general causation, I have to include everything that’s in the mixture.” Accordingly, we find no error in the trial court’s finding that Dr. Williams’ post-certification deposition testimony merely expounded on her earlier certification testimony on common causation and that it did not change it.

Neither the Richardson case nor the Alexander case—two of the cases cited by the Defendants—dictate a different result here. In Richardson, the trial court decer-tified the class following a trial on the merits; here, there was no trial on the merits, only a motion hearing. See Rapp v. Iberia Par. Sch. Bd., 05-883, p. 9 (La.App. 3 Cir. 3/1/06), 926 So.2d 30, 37 (distinguishing Richardson on the same basis, noting “[h]ere, there has been no trial on the merits”). Moreover, in Richardson, the trial court decertified the class; in this case, the trial court refused to decertify the class. Doerr, 04-1789 at p. 4, 935 So.2d at 235.

Although the Alexander case involved a release of the same chemical (EA), the procedural posture and factual background of that case were entirely different from this case. Procedurally, Alexander was a certification decision. Our determination that the trial court did not err in finding there was no material change in the facts or circumstances since the class was certified renders it unnecessary for us to revisit all the criteria for class certification on this appeal.

1,(Regardless, factually, the expert scientific evidence in Alexander was not the same as in this case. Summarizing the facts in the case before it, the Supreme Court noted:

Dr. Marcus Iszard, plaintiffs’ toxicologist, testified that only those individuals with a unique susceptibility to ethyl acrylate would exhibit physical symptoms at the extremely low concentrations involved in the release, that this susceptibility would manifest itself in less than .1 percent of any given population, and determining whether any particular person was within this microcosm of the population would require an entirely individualized understanding of each person’s health, medical history, records, and other variables impacting exposure. In addition, Dr. Iszard testi-Red that the dose of exposure would be impacted by important individual variables, such as the specific location of the plaintiff at the time of the exposure, and whether the plaintiff moved from location to location during the exposure. Similarly, the defense toxicologist, Dr. Wernke, testified the symptoms complained of by the plaintiffs, such as irritation of the eyes and nose, respiratory irritation, coughing, nausea, and vomiting, are not specific or unique to ethyl acrylate exposure, but are common symptoms with a myriad of causes.

Alexander, 11-2793 at p. 3, 82 So.3d at 1236. Comparing the expert testimony in Alexander with Dr. Williams’ testimony, summarized throughout this opinion, we cannot conclude, as the Defendants urge, that the scientific evidence in this case is the same as in Alexander. We thus find Alexander distinguishable.

| so As mentioned earlier in this opinion, a significant factor in deciding a decertification motion is whether either the parties or the class would be unfairly prejudiced by a change in the proceedings at this juncture. Jones, 11-0956 at p. 26, 89 So.3d at 491-92. The Plaintiffs contends that such is the case here. As the Plaintiffs point out, this court has noted the appropriateness of the procedural device of a class action to aid plaintiffs in recovering damages in this type of case involving small claims. Jones, 11-0956 at p. 27, 89 So.3d at 492 (quoting Doerr, 04-1789 at p. 10, 935 So.2d at 238); see also Stephen H. Kupperman and David G. Radlauer, Louisiana Class Actions, 74 Tul. L. Rev. 2047, 2078 (2000) (noting that “the so-called ‘negative value’ suit ... often found voice in Louisiana cases as a statement that the ‘smallness of the recovery’ favors class treatment.”). Considering this policy consideration factor, we find the potential prejudice to the class that would result from a change in procedure at this stage of the litigation—which arises out of a 2009 incident and has been pending for multiple years—buttresses our finding that the trial court did not abuse its discretion in denying the Joint Motion to decertify.

21 Summarizing, the Defendants’ arguments for decertification—as the Plaintiffs contend and the trial court found—are very similar to those we rejected in our earlier decision affirming the trial court’s certification decision, Guidry I. The Defendants have failed to prove a material change in the facts or circumstances since the initial class certification ruling that would warrant class decertification. Accordingly, we cannot conclude the trial court abused its discretion in denying the Defendants’ Joint Motion.

DECREE

For the foregoing reasons, the judgment of the trial court denying the Defendants’ Joint Motion to decertify the class is affirmed.

AFFIRMED

      . In Guidry II, the Supreme Court granted the Defendants’ writ in part on another issue, holding that "Melissa Berniard [the spouse of appointed class counsel] is disqualified from serving as a class representative.” Guidry II, 12-2696 at p. 1, 108 So.3d at 756. On all other issues, the Supreme Court denied their writ.

      . Although the State of Louisiana through the Department of Environmental Quality ("LDEQ”) is also named as a defendant, the LDEQ is not a party to this appeal.

      . The instant suit, among others, was removed to federal court and remanded back to state court. Berniard v. Dow Chem. Co., 481 Fed.Appx. 859 (5th Cir. 2010) (unpub.). According to the Defendants, there are seventeen pending suits arising out of the EA Release; however, this is the only suit that was filed in Orleans Parish. The other suits were filed in St. Charles Parish, which is where the EA Release occurred. See Dufour v. Dow Chem. Co., 12-912, p. 2, n. 1 (La.App. 5 Cir. 5/23/13), 119 So.3d 630, 632 (noting that "[a]s a result of the toxic release, seventeen lawsuits were filed [in St. Charles Parish]. Of those seventeen lawsuits, twelve suits involved individually joined plaintiffs (the 'Mass Join-der Plaintiffs’); the trial court classified the other five suits as class action suits (the 'Class Action plaintiffs’). The trial court consolidated the twelve Mass Joinder Plaintiffs’ suits.”)

      . La. C.C.P. art. 592 A(3)(c) provides that "[a] suspensive or devolutive appeal, as provided in Article 2081 et seq. of the Code of Civil Procedure, may be taken as a matter of right from an order or judgment provided for herein.”

      . Pursuant to La. C.C.P. art. 2083, an interlocutory judgment is appealable only when expressly provided by law. The Code specifically designates a few interlocutory judgments as appealable; a judgment denying a motion to decertify a class is one, Frank Maraist, 1 LA. CIV. L. TREATISE, CIVIL PROCEDURE § 14:3 (2d ed.) (citing Sutton Steel, supra, for the proposition that the denial of a motion to decertify a class action is an appealable judgment).

      . On appeal, the Defendants assert the following three assignments of error:
      1. The trial court manifestly erred when it held that Williams' post-certification testimony that causation is a plaintiff-specific inquiry merely “expounded upon” not altered—Williams' pre-certification opinion that causation can be determined on a class-wide basis by looking at common exposure and common symptoms.
      2. The trial court applied the wrong legal standard in its analysis, erroneously concluding that commonality and predominance were one combined requirement for class certification. This legal error irreparably tainted the fact finding process, necessitating de novo review. Moreover, the trial court erroneously concluded that Zannetti’s report and Williams’ deposition testimony, both of which occurred post-certification, satisfied the predominance requirement for class certification.
      3. The trial court erred in determining that the new and different evidence from Zan-netti and Williams did not impair the ascer-tainability, numerosity, and superiority requirements for certification.

      . This court explained the distinction between general and specific causation in Watters v. Dep’t of Soc. Servs., 08-0977, p. 17, n. 18 (La.App. 4 Cir. 6/17/09), 15 So.3d 1128, 1143, as follows:
      General causation refers to proving exposure in a dose sufficient to cause health effects—that exposure to mold can cause disease. See Zimko v. American Cyanamid, 03-0658, p. 28 (La.App. 4 Cir. 6/8/05), 905 So.2d 465, 485-86, writ denied, 05-2102 (La. 3/17/06), 925 So.2d 538. Specific causation refers to proving a sufficient causative link between the alleged health problems and the specific type of mold. Id. Distinguishing these two causation problems, a commentator notes that "[o]ne is the problem of establishing that the chemical involved is capable of causing the type of harm from which the plaintiff suffers.... The other problem relating to proof of causation is that of establishing, given that the toxic substance in question can cause harm of the type suffered by the plaintiff, that the plaintiff’s harm did in fact result from such exposure.” Daniel A. Farber, Toxic Causation, 71 Minn. L.Rev. 1219, 1227-28 (1987).

      . The trial court noted that the Defendants’ Joint Motion was also based on the filing of the Motion to Re-Open and Extend the Opt-Out Deadline. The trial court expressly found that this factor did not support the Defendants' Joint Motion.

      . Actually, Dr. Zannetti ran two models; the second model showed the data on fifteen minute intervals. The Defendants note that, for purposes of this appeal, they accept the results of Dr. Zannetti's second model; however, they reserve the right to contest those findings later.

      . We note that different trial court judges ruled on the certification motion and the de-certification motion.

      . In Smith v. City of New Orleans, 13-0802, p. 14, n. 7 (La.App. 4 Cir. 12/23/13), 131 So.3d 511, 520, we distinguished the facts before us from those in Alexander and summarized the Supreme Court’s holding in Alexander as follows:
      In Alexander, the Supreme Court extensively discussed the predominance requirement of La. Code Civ. P. art. 591(B)(3) as it applied to putative class members who sought class certification to seek damages as a result of allegedly being impacted by a release of chemicals from parked railroad cars. The district court granted class certification, which our Court affirmed on appeal. The Supreme Court ultimately held that each member of the proposed class will necessarily have to offer different facts to establish liability and damages which controverts the purpose of preventing class certification from degenerating into a series of individual trials. Id., 11-2793, p. 3, 82 So.3d 1234, 1236. The Supreme Court held that common issues of law and fact did not predominate because there was ‘‘undisputed evidence in the record demonstrating that any determination of damages will be dependent upon proof of facts individual to each putative class member” regarding whether they had a unique susceptibility to the released chemical. Id., 11-2793, p. 3, 82 So.3d 1234, 1236.

      . This court in Doerr stated:
      “[I]t is a troubling proposition that a tort-feasor can be relieved of responsibility if its conduct produces minimal harm, albeit to many people. Surely a wrong that causes a hundred dollars of harm to ten thousand people is of no less concern than a wrong that causes a million dollars of harm to an individual. To declare the former harm de minimus, and not worthy of redress is to undermine the dual concerns of tort law: accountability for the wrongdoer and compensation for the victim.
      .,. [I]t is a legitimate concern that the courts not be bogged down by claims that are minimal. It makes little economic sense to have parties engage in litigation over sums greatly outweighed by the expense of the legal process. However, where, as here, the claims of a large population can be processed efficiently by virtue of class certification, there can be no valid reason not to hold a corporate wrongdoer accountable and to afford appropriate relief to the individual members of the class.”
      04-1789 at p. 10, 935 So.2d at 238.


author: Judge Daniel L. Dysart

text:
    STATE of Louisiana IN the INTEREST OF D.H.
    NO. 2016-CA-0963
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 15, 2017

      Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, J. Taylor Gray, ASSISTANT DISTRICT ATTORNEY, Parish of Orleans, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR AP-PELLEE/STATE OF LOUISIANA
    Katherine M. Franks, LOUISIANA APPELLATE PROJECT, P.O. Box 1677, Abita Springs, LA 70420, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Marion F. Edwards, Pro Tempore)
   Judge Daniel L. Dysart

hAs a result of a shooting incident on November 8, 2015, D.H., who was fifteen at the time of arrest, was charged with violations of La. R.S. 14:94, Illegal use of weapons or dangerous instrumentalities, and La. R.S. 14:95.8, Illegal possession of a handgun by a juvenile. Following an adjudication hearing, the trial court found D.H. delinquent on both charged offenses. The judgment of disposition ordered that D.H. serve six months imprisonment on each count, to be served concurrently. The trial court suspended the sentences, and ordered that D.H. serve a one year period of probation, with conditions.

D.H. appeals the adjudication raising three assignments of error.

BACKGROUND:

D.H. was admitted to University Hospital on November 8, 2015, with a gunshot wound to his left hand. The New Orleans Police Department was notified |aand Officer Hillary Smith was dispatched to investigate. Officer Smith’s initial impression was that D.H. was the victim of a crime.

D.H.’s mother was at the hospital when Officer Smith arrived. She told him that D.H. had been missing for several days. With his mother in the room, D.H. told Officer Smith that he was at a park with some friends on Lizardi Street, when a man entered the park and began firing a gun.

As he was a juvenile, D.H. was transferred to Children’s Hospital. When Officer Smith arrived at Children’s Hospital, Detective Anthony Bakewell was already in the room with D.H. and his mother. D.H. again told the story about being shot in a park, and gave a description of the man who shot him. Detective Bakewell continued to question D.H., but when it appeared that he would not give any more information, Detective Bakewell asked D.H.’s mother to step out of the room. He did not explain to her that she had a right to remain with her son, but she willingly stepped out. After a call to the Fifth District revealed that there were no reports of gun fire in that area, an officer was dispatched to the park to inquire if anyone had heard shots or witnessed the incident. After hearing that there were no such reports, Detective Bakewell told D.H. that he knew D.H. was lying.

The two policemen stepped into the hall and discussed with what crime, if any, D.H. should be charged. The officers clearly did not believe the account that D.H. had given, and discussed whether one of his friends had accidentally shot him.

IsThe interview continued and D.H. changed his story. He told the officers that he had attempted to burglarize a home, and the homeowner shot at him. At first he said, he did not have a gun. After the detective reminded him that a technician was on the way to test for gunshot residue, D.H. said he fired back at the homeowner.

Still not convinced that D.H. was telling the truth, the detective continued to question him, and to coax him to be truthful. The detective told D.H. that he did not believe him, as he thought one of D.H.’s friends had accidentally shot him, and that D.H. was covering for the friend. Finally, D.H., crying, admitted that he had accidentally shot himself in the hand.

DISCUSSION:

Our review of the record reveals one error patent which must be addressed. La. Childrens Code art. 844 provides that the petition utilized to commence a juvenile delinquency proceeding must be verified. The petition in this case is unverified. However, courts have held that the prosecution of the juvenile ratifies the unverified petition. State in the Interest of D.J., 08-345, p. 15, (La.App. 3 Cir. 8/28/08), 995 So.2d 1, 11; see also State v. Allen, 05-1622 (La.App. 1 Cir. 3/29/06), 934 So.2d 146, 158. Additionally, the Supreme Court has noted that the proper remedy for a lack of a signature on a petition is a motion to quash. If the motion is not filed, the error is waived. State v. White, 404 So.2d 1202, 1205 (La.1981).

Thus, while our review determined that the State failed to obtain a verification of the petition, we find that the prosecution of D.H. ratified the | unverified petition. Further, as D.H. failed to file a motion to quash the petition, we deem the error to be harmless.

D.H. raises three assignments of error, one of which is that the trial court erred in not suppressing statements made by D.H. while in police custody without being cautioned as to Miranda, , or advised of his right to consult with his mother or other interested adult. As we find that the trial court erred in not suppressing D.H.’s statements, we pretermit discussion of the other two assignments of error.

Louisiana Children’s Code art. 808 provides that “[a]ll rights guaranteed to criminal defendants by the Constitution of the United States or the Constitution of Louisiana, except the right to jury trial, shall be applicable in juvenile court proceedings brought under this Title.”

D.H. asserts, and the body camera videos of his interrogation confirm, that he was not given Miranda warnings at any point during the interview. Thus, he argues that his statements and ultimate confession were not free and voluntary in compliance with La. Ch. Code art. 881.1. The State argues that Miranda is not | .^applicable to the facts of this case as D.H. was not in custody at the time of the interview.

In Louisiana, a child’s confession is inadmissible unless the State proves beyond a reasonable doubt that the statement was given freely and voluntarily. State in the Interest of W.B., 16-0642, p. 8 (La.App. 4 Cir. 12/7/16), 206 So.3d 974, 980. Further, a suspect is considered to be “in custody” when he is placed under formal arrest or when a reasonable person in the suspect’s position would have understood the situation to constitute a restraint of freedom of movement of the degree associated with formal arrest. State v. Stewart, 13-0779, p. 10 (La.App. 4 Cir. 1/22/14), 133 So.3d 166, 172.

In State v. Shirley, the Louisiana Supreme Court stated:

Custody is decided by two distinct inquiries: an objective assessment of the circumstances surrounding the interrogation to determine whether there is a formal arrest or restraint on freedom of the degree associated with formal arrest; and freedom of action.

Shirley, 08-2106, pp. 7-8 (La. 5/5/09), 10 So.3d 224, 229, citing Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994).

At the time the statements were made, D.H. was confined to a hospital bed awaiting treatment for a gunshot wound to his hand. Although not specifically restrained by the police officers, D.H. was not free to leave the hospital. Initially, his mother was in the room with him, but she was asked to leave, which she did voluntarily. However, neither officer informed D.H.’s mother that she had the right to remain in the room. After his mother left, the detective told D.H. that it | ¿might be easier for him to talk without his mother present. Detective Bakewell suggested that he would not repeat what D.H. told him, but that D.H. needed to tell him the truth.

It is clear that the detective at first believed that D.H. was the victim, and was covering for his friends who may have accidentally shot him. However, after continuing to question D.H., and telling him that his story was not believable, D.H. changed his story and confessed to attempting to burglarize a home. At that point, as D.H. had confessed to a crime, the detective should have stopped any further questioning, even if he did not believe this second version of events. However, instead of terminating any questioning, Detective Bakewell continued to question D.H.’s story, and eventually got D.H. to confess to shooting himself in the hand.

Considering all the evidence presented, we find that the State failed to carry its burden of proving beyond a reasonable doubt that D.H.’s statements and ultimate confession were given freely and voluntarily as required by La. Ch. Code art. 881.1. Rather, the evidence proves that D.H. was in a custodial situation and that his statements were obtained due to the compelling influence of the police officers. Thus, we find the juvenile court erred in not suppressing D.H.’s statements.

Nonetheless, we must further determine if the admission of the subject statements amounts to harmless error. Arizona v. Fulminante, 499 U.S. 279, 285, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). In that case, the Supreme Court held that the admission into evidence of an involuntary confession during trial is a “trial error.” Id., 499 U.S. at 307, 111 S.Ct. 1246. “Trial error may be ‘quantitatively assessed in the context of other evidence presented in order to determine whether its admission |7was harmless beyond a reasonable doubt.’” State in the Interest of W.B., 16-0642, p. 14-15, 206 So.3d at 983; State v. Harris, 11-0941, pp. 19-20 (La.App. 4 Cir. 8/2/12), 98 So.3d 903, 917 (quoting Fulminante, 499 U.S. at 307-08), 111 S.Ct. 1246). Accordingly, it is the duty of the reviewing court to consider the remaining evidence against the defendant to determine whether the admission of the involuntary confession at trial was harmless beyond a reasonable doubt. Fulminante, 499 U.S. at 310, 111 S.Ct. 1246; State in the Interest of W.B., 16-0642, p. 14-15, 206 So.3d at 983.

Considering that the only evidence presented by the State was the testimony of the officers who were present at the hospital and conducted the interviews with D.H., we cannot say that the admission of the statements was harmless error.

Accordingly, as we find that the inculpa-tory statements made by D.H, as he waited for medical treatment in a hospital bed should have been suppressed, we therefore find there is insufficient evidence to adjudicate him delinquent. The judgment of the juvenile court is reversed.

REVERSED

      . Special conditions: Compulsory school attendance, with no suspensions or expulsions; no further law violations; no drug, alcohol or weapon possession; no association with others who have drugs, alcohol or weapons; curfew compliance; mental health counseling; drug testing; participation in any recommended OJJ services.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      . D.H. also questions the sufficiency of the evidence and whether he can be adjudicated delinquent solely on the basis of his uncorroborated confession.

      . La. Ch. Code art. 881.1 provides:
      A. A confession made by an accused child without a knowing and voluntary waiver shall not be admissible unless the state proves beyond a reasonable doubt that it was free and voluntarily given and was not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises.
      B. In making this determination, the court shall consider all of the following:
      (1)The age of the child.
      (2) The education of the child.
      (3) The knowledge of the child as to both the substance of the charge, if any has been filed, and the nature of his rights to consult with an attorney and to remain silent.
      (4) Whether the child is held incommunicado or allowed to' consult with relatives, friends, or an attorney.
      (5) Whether the child was interrogated before or after formal charges had been filed.
      (6) The methods used in the interrogation.
      (7) The length of the interrogation.
      (8) Whether or not the child refused to voluntarily give statements on prior occasions.
      (9) Whether the child has repudiated an extra-judicial statement at a later date.

      . In its opening statement, the State indicated it would introduce the results of a gunshot residue test, but ultimately the test was not introduced.


author: JUDGE SANDRA CABRINA JENKINS McKAY, C.J.,

text:
    Swenza Hienemann (Sic) THOMAS v. Royal THOMAS, Jr.
    NO. 2016-CA-0570
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 15, 2017
    Theon A. Wilson, 1100 Poydras Street, Suite 2900, New Orleans, LA 70163-2900, COUNSEL FOR PLAINTIFF/APPEL-LEE
    Mark D. Plaisance, Post Office Box 796, Thibodaux, LA 70302-0796, COUNSEL for defendant/Appellant
    (Court composed of Chief Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Sandra Cabrina Jenkins)
   JUDGE SANDRA CABRINA JENKINS

| iRoyal Thomas, Jr. appeals the trial court’s September 1, 2015 judgment awarding Swenja Heinemann Thomas $1,280.00 in final periodic spousal support. For the reasons that follow, we remand this matter for the sole purpose of correcting the record on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Thomas and Ms. Thomas were married on December 22, 2011. On January 23, 2014, Mr. Thomas filed a petition for divorce. On May 6, 2014, Ms. Thomas filed a motion seeking permanent spousal support. After a hearing on August 12, 2014, the trial court signed a judgment on September 1, 2015 ordering Mr. Thomas to pay final periodic spousal support to Ms. Thomas in the sum of $1,280.00 per month. Mr. Thomas timely appealed the judgment.

On appeal, Mr. Thomas argues that Ms. Thomas failed to prove that she was free from fault under La. C.C. art. 112(A). He also argues that the trial court erred in awarding sums for final periodic spousal support that included attorney’s fees, child care, travel expenses, and immigration costs. Mr. Thomas also contends | ¡.that the trial court erred by miscalculating his monthly income as part of its finding that he could afford to pay final spousal support.

DISCUSSION

Under La. C.C. art. 112(A), “[w]hen a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.” Under Paragraph B, two of the relevant factors to be considered by the court in determining the amount and duration of final support are “[t]he income and means of the parties, including the liquidity of such means,” and “[t]he financial obligations of the parties.” La. C.C. art. 112(B).

At the trial of this matter, the court admitted into evidence the following exhibits relating to the parties’ incomes and expenses: (1) documents supporting Ms. Thomas’s income and expenses (Exhibit ST-1); (2) “Retiree Account Statement” for Mr. Thomas (Exhibit ST-2); and (3) “Civilian Leave and Earnings Statement” for Mr. Thomas (Exhibit ST-3). The trial court also admitted an email from Mr. Thomas to Ms. Thomas that related to the issue of fault (Exhibit SW-4).

Correction of the Record Under La. C.C.P. arts. 2161 and 2132

This appeal was lodged on June 7, 2016. On August 9, 2016, counsel for Mr. Thomas filed a “Motion to Supplement.” In the motion, Mr. Thomas requested that the appellate record be supplemented with “a series of exhibits that were introduced at the hearing on this matter.” According to Mr. Thomas, the |adocuments “were allowed to be removed from the hearing,” and “were not filed with the [Civil District Court] clerk.” Mr. Thomas further stated in his Motion to Supplement that “[tjhese documents have been provided to this court by the Orleans Civil District Court.”

On August 16, 2016, this court granted Mr. Thomas’s Motion to Supplement. The Clerk of Court’s Office, however, has no record of having received the trial exhibits from the clerk of the Civil District Court. “An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record.” La. C.C.P. art. 2161. Under La. C.C.P. art. 2132, “[a] record on appeal which ... omits a material part of the trial record[ ] may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court.” In order for this court to properly address Mr. Thomas’s arguments regarding the trial court’s award of final periodic spousal support to Ms. Thomas, we must review the exhibits introduced at trial. Pursuant to La. C.C.P. arts. 2161 and 2132, therefore, we will remand this matter for the limited purpose of correcting the record.

Finally, Mr. Thomas filed a motion to strike all portions of Ms. Thomas’s brief that refer to court proceedings, rulings, or judgments not admitted or a part of these proceedings, including but not limited to a petition for and judgment of divorce between the parties. We deny Mr. Thomas’s motion to strike.

CONCLUSION

For the foregoing reasons, we remand this matter and instruct the trial court to correct the record to include the following exhibits that were admitted at trial:

14ST-1—Documents supporting income and expenses of Mr. Thomas

ST-2—“Retiree Account Statement” for Mr. Thomas

ST-3—“Civilian Leave and Earnings Statement” for Mr. Thomas

SW-4—E-mail from Mr. Thomas to Ms. Thomas

When the record is corrected on remand, this appeal will be re-docketed on the next available docket upon the lodging of the necessary supplemental record. Wood v. Omni Bancshares, Inc., 10-216, p. 4 (La.App. 5 Cir. 10/29/10), 69 So.3d 473, 475. We deny Mr. Thomas’s motion to strike.

REMANDED WITH INSTRUCTIONS

MCKAY, C.J., DISSENTS

McKAY, C.J.,

DISSENTS

hi respectfully dissent from the majority opinion and would affirm the judgment of the trial court.

      . Ms. Thomas’s name was misspelled "Hiene-mann” in the caption of the pleadings.

      . Although counsel for Mr. Thomas offered a "Statement of Income and Expenses” for Mr. Thomas, the trial transcript shows that the court did not formally admit it into evidence. That exhibit, therefore, cannot be considered by us on appeal. Cozzy Spot, LLC v. City of New Orleans, 16-0529, p. 2 (La.App. 4 Cir. 1/11/17), 209 So.3d 224, 227, 2017 WL 167578, *4.


author: Judge Joy Cossich Lobrano

text:
    Jane DOE v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY d/b/a Blue Cross/Blue Shield of Louisiana
    NO. 2016-CA-0552
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 15, 2017

      C. Gordon Starling, Jr., LAW OFFICE OF GORDON STARLING, LLC, Pan American Life Center, Suite 1660, 601 Poydras Street, New Orleans, LA 70130-6158, COUNSEL FOR PLAINTIFF/APPELLANT
    Charles A. O’Brien, III, Allison N. Pham, 5525 Reitz Avenue, Baton Rouge, LA 70809-3802, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Joy Cossich Lobrano)
   Judge Joy Cossich Lobrano

hln this attorney fee dispute, plain-tifi/appellant Jane Doe (“Doe”) appeals the February 19, 2016 judgment of the district court denying post-trial attorney’s fees to Doe.

The underlying litigation arises from Doe’s lawsuit against defendant/appellee Louisiana Health Service & Indemnity Company d/b/a Blue Cross/Blue Shield of Louisiana (“Blue Cross”) alleging violations of the Louisiana Genetic Information Non-Discrimination Act, La. R.S. 22:1023. Trial was held on February 13, 2014. On April 23, 2014, the district court entered judgment (the “2014 trial judgment”) awarding Doe $50,000.00 in statutory damages plus judicial interest, costs, and “reasonable attorney’s fees” in an amount “to be determined at a later date.”

On May 7, 2014, the parties entered into stipulations as to the amount of recoverable attorney’s fees and costs. The stipulations read:

1. If counsel for Jane Doe were called to testify he would testify that the reasonable attorneys’ fees in favor of Jane Doe, through April 29, 2014, are $36,440.50, an amount which defendant Louisiana Health Service & Indemnity Co. does not contest.
|22. Jane Doe’s recoverable court costs, as of April 29, 2014, are $756.36, an amount which defendant Louisiana Health Service & Indemnity Co. does not contest.
3. The parties agree[ ] that, in the event the judgment is not appealed, or is affirmed, the defendant will pay the foregoing sums for attorney[’]s fees and costs through April 29, 2014, together with any sums agreed to or awarded for attorney[’]s fees and costs after that date.

Blue Cross appealed the 2014 trial judgment, and Doe answered the appeal, requesting that this Court modify the 2014 trial judgment to increase statutory damages and award “judicial interest from the date of demand until paid, all costs and reasonable attorney’s fees.” On May 20, 2015, this Court affirmed the 2014 trial judgment. Doe v. La. Health Serv. & Indem. Co., 2014-0789 (La.App. 4 Cir. 5/20/15), 172 So.3d 132. This Court’s opinion did not address attorney’s fees specifically corresponding to work done by Doe’s counsel on appeal. See id. Doe did not apply to this Court for rehearing or seek supervisory review from the Louisiana Supreme Court. Blue Cross filed a writ application with the Louisiana Supreme Court, which was voluntarily dismissed. On August 20, 2015, Blue Cross issued payment to Doe in the amount of $101,134.40, which represented $50,000.00 damages awarded at trial, $13,864.04 in judicial interest as calculated by Blue Cross, plus $37,270.36 in attorney’s fees and costs.

On September 8, 2015, Doe filed a motion in the district court to set the amount of post-trial attorney’s fees relative to the appeal, the Supreme Court writ application, and the instant motion, and sought insurance penalties in connection |swith Blue Cross’ nonpayment of the attorney’s fees at issue. On February 19, 2016, the district court entered judgment denying Doe’s motion on the basis that the Fourth Circuit Court of Appeal did not award Doe attorney’s fees for work done on appeal of the 2014 trial judgment. This appeal of the district court’s February 19, 2016 judgment followed.

On appeal, Doe sets forth the following assignments of error:

1. The District Court erred in dismissing Jane Doe’s Motion for Attorney’s Fees based on the erroneous holding that this Court did not grant attorney’s fees to Jane Doe.
2. The District Court erred in not enforcing the stipulation between the parties to determine what additional attorneys’ fees were owed should the judgment of the District Court be affirmed, as it was.
3. The District Court erred in failing to enforce Blue Cross’ agreement to pay the $146,761.66 judgment.

Before addressing the substantive issues on appeal, we must address the jurisdictional and procedural issues affecting this matter. Blue Cross contends that the district court lacked jurisdiction to adjudicate the attorney fee dispute following the conclusion of the appeal and dismissal of the Supreme Court writ application. We disagree, as the 2014 trial judgment of the district court specifically reserved the issue of attorney’s fees to be adjudicated at a later date.

La. C.C.P. art. 2088 provides, in pertinent part:

The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal...

I .¡This article contains a list of specific actions over which a district court retains jurisdiction in a case after the filing of an order of appeal. As this Court has explained:

... the list of circumstances over which the trial court retains jurisdiction enumerated in La. C.C.P. art. 2088 is not intended to be exclusive.... Under the express provisions of the article, the trial court is not considered divested of jurisdiction to consider any issue that is “not reviewable on appeal.” This language, “not reviewable under the appeal,” has generally been interpreted to give the trial court continuing jurisdiction over all issues that are “unaffected by the appeal,” even if the issue is not specifically listed in La. C.C.P. art. 2088.

State Through Dep’t of Soc. Servs. on Behalf of Harden v. S. Baptist Hosp., 94-2228, pp. 6-7 (La.App. 4 Cir. 10/12/95), 663 So.2d 443, 448-49 (internal citations omitted)(emphasis added).

As the Louisiana Fifth Circuit Court of Appeal explained in Law Offices of Fred L. Herman, APLC v. Helmer, 2013-235, p. 4 (La.App. 5 Cir. 10/9/13), 128 So.3d 310, 312, “the enumerated list of matters in Article 2088 over which the trial court retains jurisdiction is not exclusive, and that the inquiry on this issue is instead whether the matters in question are reviewable in the appeal.” Id. The court determined that a particular attorney fee dispute, which was decided by the district court and was before the Fifth Circuit on a second appeal, was not reviewed on the original appeal of the underlying claim; the Fifth Circuit found that the adjudication of the amount of attorney’s fees was “specifically reserved by the trial judge for resolution at a later date.” Id. Under those facts, the Fifth Circuit rejected the argument that the district court lost jurisdiction when the underlying judgment was appealed. See also Quantum Res. Mgmt., L.L.C. v. Pirate Lake Oil Corp., 2013-74, pp. 7-8 (La.App. 5 Cir. 10/30/13), 128 So.3d 462, 466, Brandner v. Staf-Rath, L.L.C., 2012-62, p. 3 (La.App. 5 Cir. 5/31/12), 102 So.3d 186, 188-189 n. 3, Thibaut v. Thi baut, 607 So.2d 587, 609 (La. App. 1st Cir. 1992).

We find this reasoning persuasive. Here, the 2014 trial judgment awarded Doe “reasonable attorney fees to be determined at a later date.”'The district court specifically reserved determination of the amount of attorney’s fees for future adjudication, and this issue was not reviewed by this Court on the original appeal of the 2014 trial judgment. Thus, the district court was not divested of jurisdiction over the instant attorney fee dispute. This argument lacks merit.

We now turn to the merits of Doe’s claim for post-trial attorney’s fees. “Whether attorney’s fees should be awarded is left to the sound discretion of the trial court and an award should not be disturbed on appeal absent an abuse of discretion.” Dixie Servs., L.L.C. v. R & B Falcon Drilling USA, Inc., 2005-1212, p. 9 (La.App. 4 Cir. 3/21/07), 955 So.2d 214, 220 (citations omitted). “Attorney’s fees are not allowed except where authorized by statute or contract.” Id. (citations omitted).

In her first assignment of error, Doe argues that the district court erred concluding that this Court did not grant her attorney’s fees. According to Doe’s argument, post-trial attorney’s fees are owed as a matter of law. We disagree.

Doe correctly notes that this Court upheld the 2014 trial judgment, which included an award of “reasonable attorney fees” in an amount reserved for future adjudication. However, we find no support, in fact or. law, to support the contention] fl that this Court’s affirmance of the 2014 trial judgment equates to a neio award of post-trial attorney’s fees. We find no error in the lower court’s observation that this Court did not award additional attorney’s fees to Doe on the appeal of the 2014 trial judgment.

Doe cites to no authority, and we find none, mandating that post-trial attorney’s fees are required as a matter of law under the facts of this case. We recognize that, where attorney’s fees are requested via the proper appellate procedure, appellate courts have allowed an increase in attorney’s fees where a party was awarded attorney’s fees by the trial court and was forced to and successfully defended an appeal. See, e.g., Houston v. Blue Cross Blue Shield of La., 37,097, pp. 17-18 (La.App. 2 Cir. 4/9/03), 843 So.2d 542, 552. Courts have also found that whether to award attorney’s fees for work done on appeal, when the attorney is less than 100% successful, is an issue to be determined on a case by case basis. Vander v. Safeway Ins. Co. of La., 2008-888, p. 11 (La.App. 3 Cir. 2/25/09), 5 So.3d 968, 975. Moreover, awards of attorney’s fees are “not automatic ..., but rather rest within the discretion of the [fact finder]...” Sher v. Lafayette Ins. Co., 2007-2441, p. 21 (La. 4/8/08), 988 So.2d 186, 203, on reh’g in part (7/7/08)(quoting Sharbono v. Steve Lang & Son Loggers, 97-0110, p. 11 (La. 7/1/97), 696 So.2d 1382, 1389).

La. R.S. 22:1023(F)(1)(c) provides for an award of “reasonable attorney fees as determined by the court, in the case of a successful action to enforce any liability under this Section [the Louisiana Genetic Information - Non-Diserimination 17Act].” Again, “reasonable attorney fees to be determined at a later date” were awarded in the 2014 trial judgment. Doe answered Blue Cross’ appeal asking for an increase in statutory damages and “reasonable attorney’s fees.” This • Court affirmed the 2014 trial judgment in its entirety without awarding any additional amounts to Doe or providing any remand instructions to the district court to award additional attorney’s fees. See Doe, 2014-0789, 172 So.3d 132. Doe did not apply to this Court for rehearing or seek supervisory review from the Louisiana Supreme Court. This assignment of error is without merit.

We now consider together the remaining assignments of error, which address the agreement between the parties as to the amount of attorney’s fees. In her second assignment of error, Doe argues that the district court failed to enforce the stipulation between the parties to determine what additional attorney’s fees were owed upon affirmance of the 2014 trial judgment. Doe further contends, in her third assignment of error, that the lower court “erred in failing to enforce Blue Cross’ agreement to pay the $146,761.66 judgment.”

A “stipulation has the effect of a judicial admission or confession, which binds all parties and the court.” Peters v. Greyhound Lines, Inc., 2010-0969, p. 5 (La.App. 4 Cir. 11/17/10), 52 So.3d 229, 232 (citing Becht v. Morgan Bldg. & Spas, Inc., 2002-2047, p. 5 (La. 4/23/03), 843 So.2d 1109, 1112); see also La. C.C. art. 1853. “Stipulations between parties are thus binding on the trial court when not in derogation of law, and the stipulations become the law of the case.” Id.

|sThe record reflects that the parties submitted stipulations to the district court that Doe incurred $36,440.50 in attorney’s fees and $756.36 in costs through April 29, 2014. They further stipulated to the following: “in the event the [2014 trial] judgment is ... affirmed, the defendant [Blue Cross] will pay the foregoing sums for attorney[’]s fees and costs through April 29, 2014, together with any sums agreed to or awarded for attorney[]s fees and costs after that date” (emphasis added). Thus, the question before the district court was whether attorney’s fees were “agreed to” or “awarded” after April 29, 2014.

For the reasons discussed in this opinion, we are not persuaded by Doe’s argument that any sums were awarded for attorney’s fees on the prior appeal. Rather, 2014 trial judgment was merely affirmed and no additional attorney’s fees were awarded to Doe by this Court.

We must then consider whether the parties agreed to additional attorneys fees after April 29, 2014. Doe argues that Blue Cross agreed to pay post-trial attorneys fees, essentially, because Blue Cross’ attorney failed to dispute Doe’s $146,761.66 calculation of the judgment in certain email communications and because Blue Cross requested copies of Doe’s post-trial attorney fee invoices. The record before us does not contain any explicit agreement or contract to pay attorneys fees after April 29, 2014. Rather, the record reflects that, following the dismissal of Blue Cross’ Supreme Court writ application, Doe’s attorney inquired via email as to when the 2014 trial judgment would be paid and set forth his calculation of the amount due. Counsel for Blue Cross responded “Send me youi1a timesheets for the $28K”; “Working on it”; and “End of the week?”. It is undisputed that Blue Cross next paid Doe $101,134.40, inclusive of $36,440.50 in attorneys fees through April 29, 2014.

The stipulation at issue provided for Blue Cross to pay Doe’s post-April 29, 2014 attorneys fees, if those fees were “awarded” or “agreed to.” The district court made no findings construing these emails between counsel as an agreement to pay attorneys fees after April 29, 2014, and we find in the record no unequivocal agreement between the parties to pay such fees. “As this court has held, whether to award attorneys fees in a particular case is left to the sound discretion of the trial court.” St. Bernard Port, Harbor & Terminal Dist. v. Guy Hopkins Const. Co., 2012-0167, p. 26 (La.App. 4 Cir. 1/16/13), 108 So.3d 874, 889 (citing Dixie Servs., L.L.C., 2005-1212 at p. 9, 955 So.2d at 220). Under these circumstances, we cannot say that the district court abused its discretion in denying post-trial attorney’s fees, and we decline to disturb the district court’s ruling. These assignments of error are without merit.

For the reasons stated above, we affirm the judgment of the district court denying Jane Doe’s motion to set attorney’s fees.

AFFIRMED

      . We note that the attorney’s fees and costs as calculated here by Blue Cross are actually higher than the total of $36,440.50 in attorney’s fees and $756.36 in costs as described in the stipulation.


author: Judge Regina Bartholomew-Woods

text:
    STATE of Louisiana v. Alton GRAYSON
    NO. 2016-KA-0773
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 15, 2017
    Perry Michael Nicosia, District Attorney, David C. Jarrell, Assistant District Attorney, Parish of St. Bernard, 1101 W. St. Bernard Hwy., Chalmette, LA 70043, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    Craig J. Mordock, MORDOCK LAW GROUP, 3909 Bienville Street, Sutie 105 D, New Orleans, LA 70119, COUNSEL FOR APPELLANT/DEFENDANT

      (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods)
   Judge Regina Bartholomew-Woods

| -[Appellants, BailBonds.com and Financial Casualty and Surety, Inc., are sureties on a bond signed by Defendant, Alton Grayson. They appeal the May 2, 2016 judgment of the trial court denying their petition for nullity, which alleged the court’s previous grant of a judgment of bond forfeiture was null for vice of form. Appellants seek relief in the form of setting aside the bond forfeiture and release of all obligations under the bond. For the reasons that follow, we affirm the ruling of the trial court.

BACKGROUND

Defendant was arrested on May 10, 2014, in St. Bernard Parish. With Appellants as surety, Defendant posted a bail bond on May 13, 2014, in the amount of $7,500.00. The court scheduled arraignment for August 13, 2014. However, Defendant was incarcerated in Jefferson Parish prior to arraignment and failed to appear on August 13, 2014, resulting in a warrant and a judgment of bond forfeiture. The trial court signed the judgment on August 15, 2014, and it was mailed September 8, 2014.

|aOn March 10, 2016, Appellants intervened and filed a petition for nullity seeking to set aside the bond forfeiture based on Defendant’s incarceration in another parish, which the trial court denied.

Appellants submit the trial court’s judgment of forfeiture is null for vice of form under La.C.C.P. Art. 2002(A)(2), which provides, “[a] final judgment shall be annulled if it is rendered ... [ajgainst a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.” Appellants, emphasizing the latter portion of this article, suggest Defendant’s incarceration in another parish prevented the trial court from taking a valid judgment by default, rendering the judgment of bond forfeiture null for vice of form.

Appellants argue their failure to assert a defense pursuant to La.C.Cr.P. Art. 349.9, or a “nonforfeiture” defense, within the 180-day period provided for in La.C.Cr.P. Arts. 349.5(B) and 349.9 does not operate to permanently bar requesting that the judgment be set aside. In support, Appellants cite a number of cases in which bond forfeitures were declared absolute nullities, such as in cases of improper service. Appellants cite to La.C.Cr.P. Art. 349.5(A)(2), which authorizes nullity actions by the use of ordinary civil proceedings, which they assert was done here.

Appellants additionally note they complied with the requirements of La.C.Cr.P. Art. 345, which requires that a “defendant’s sureties pay ... the treasonable cost of returning the defendant to the officer originally charged with the defendant’s detention prior to the defendant’s return.”

Appellants argue the State failed to file any response, opposition, answer, or exception to their petition, though the State did appear at the scheduled hearing to oppose the petition orally. They suggest La.C.C.P. Art. 1001, requiring a written answer to a petition within fifteen days of service, applied. Appellants also take the position that Rule 9.9 of the Rules for Civil Proceedings in District Courts, relative to opposition memoranda to exceptions and motions, is also applicable. Accordingly, Appellants submit they were prejudiced by the State’s failure to provide notice of its opposition such that a response could be prepared by the time of the hearing. On a final note, Appellants assert the trial court refused to consider additional points of law they wished to make on the record.

The State responds that Appellants have not timely sought relief pursuant to La. C.Cr.P. Arts. 345 and 349.9. The State submits the code articles required Appellants to file a motion to set aside the judgment of bond forfeiture within one hundred eighty days after notice of the mailing of the judgment, or March 7, 2015. The State further submits Appellants never served them with the petition for nullity, but that it nevertheless appeared for the hearing after being “informally notified.”

The State takes the position that the trial court’s judgment of bond forfeiture, though rendered without the knowledge of Defendant’s incarceration in another parish, contains no vice of form. Accordingly, the State asserts that Appellant’s argument regarding the judgment being an “absolute nullity” is without merit.

The State first notes that Appellants were entitled to relief under La.C.Cr.P. Art. 349.9(C), but only to the extent that they filed their motion, to set aside “within Done hundred eighty days after the date of the mailing of the notice of the signing of the judgment of bond forfeiture[.]” However, the State disputes Appellants’ contention that such a “nonforfeiture” situation gives rise to a nullity. From the State’s point of view, La.C.Cr.P. Art. 349.9 simply allows a judgment to be set aside only under specific circumstances. It suggests that nonforfeiture situations “do not reflect any error on the part of the State or any vice of form” and instead reflect “seemingly justifiable reasons for failing to appear, provided that the reason is timely presented to the Court and State.”

The State similarly acknowledges Appellants may have been entitled to relief pursuant to La.C.Cr.P. Art. 345(D). However, the State again argues relief was only available until March 7, 2015, and that Appellants, as a precondition to relief, were required to file a motion and pay the reasonable costs of returning Defendant to the parish.

Additionally, the State asserts that because the articles in question required Appellants to file an ordinary civil suit, the action should have been filed in civil district court, and not in the underlying criminal action.

Appellants, in their reply, note that the relevant articles should be construed liberally in favor of the surety. They suggest the State’s position would impose the strictest interpretation possible, no matter the circumstances, and note that the State itself admits it did not begin to enforce the articles .until almost a year after their rights expired. Appellants suggest the interests of justice are not served “by suddenly and without warning imposing strict requirements on [their] rights to set aside a bond forfeiture.” Lastly, Appellants urge this Court to find that “under pthese circumstances,” and despite the lack of jurisprudential support therefore, the trial court’s judgment of bond forfeiture was an absolute nullity due to Defendant’s absence as a result of his incarceration outside the parish.

LAW AND ANALYSIS

We start by noting the well-established jurisprudence on bond forfeitures, set forth by this court in State v. Nellon, 12-1429, p. 5 (La.App. 4 Cir. 9/4/13), 124 So.3d 1115, 1118:

Bond forfeitures are not favored in Louisiana. State v. Brown, 11-0804, p. 2 (La.App. 4 Cir. 1/11/12), 80 So.3d 1288, 1290 (citing Bankers Ins. Co. v. State, 37,080, p. 3 (La.App. 2 Cir. 4/11/03), 843 So.2d 641, 644.) The purpose of a criminal bail bond is to ensure that the accused will appear at all stages of the criminal proceedings against him. Criminal bail bonds are contractual and, therefore, civil in nature. La. R.S. 15:83(A). The implementation of criminal bail bonds, however, is governed by both civil and criminal Louisiana law. Id. When entering into a criminal bail bond obligation on behalf of a defendant, a surety assumes those risks that are reasonably foreseeable. La. R.S. 15:83(B).

The main issue to be decided by this court is whether a defendant’s absence at arraignment due to his incarceration in another parish, and subsequent judgment of bond forfeiture as a result thereof, constitutes an “absolute nullity.”

In support of their contention that the trial court’s judgment of bond forfeiture was indeed an absolute nullity, Appellants cite two cases. The first case is State v. Posey, 550 So.2d 1368 (La.App. 5 Cir. 1989), writ granted, judgment rev’d, 556 So.2d 836 (La. 1990). However, the Louisiana Supreme Court reversed the holding in that case. State v. Posey, 556 So.2d 836, 836 (La. 1990).

The second case is State v. Fall, 08-295 (La.App. 5 Cir. 12/16/08), 3 So.3d 54. In Fall, the Fifth Circuit held “the trial court correctly found the defendant had not been served with notice of the arraignment hearing and therefore, the judgment |fiof bond forfeiture must be annulled.” Id. at 57. Indeed, the court noted that “the failure to serve defendant properly with process as required by law is a vice of form on which a bond forfeiture judgment may be nullified.” Id. at 56.

Here, Appellants attempt to equate the facts of this case to those cases relied upon, which involved defects in service of process. The Civil Code makes clear that lack of service of process is undeniably a vice of form warranting annulment. La. C.C.P. Art. 2002(A)(2). However, it is not the lack of service of process that Appellants argue is the basis for annulment here, but rather the trial court’s inability to take a “valid judgment of default” against the Defendant due to his incarceration outside the parish. Id.

The Louisiana Supreme Court has held that, “[i]n ascertaining the true meaning of a word, phrase, or section of a statute, the act as a whole must be considered.” Anderson v. Ochsner Health Sys., 13-2970, p. 4 (La. 7/1/14), 172 So.3d 579, 581. We find that reasoning instructive here, as the parties dispute the applicability of La. C.Cr.P. Art. 349.5. On the one hand, if the judgment of bond forfeiture was indeed an absolute nullity, La.C.Cr.P. Art. 349.5 would apply, which would permit a party to bring a nullity for vice of form “at any time.” La.C.Cr.P. Art. 349.5; La.C.C.P. Art. 2002(B). However, if the State’s argument were to prevail, only La.C.Cr.P. Arts. 345 and 349.9 would apply, both of which impose a one hundred eighty day time limit within which to file a motion to set aside the judgment.

Article 349.9 is entitled “Nonforfeiture situations.” Most significant to this court, when considering the bond forfeiture articles as a whole, is that article 349.9 17specifically provides that a bond forfeiture should not be rendered if the defendant “is prevented from attending because ... [h]e is being detained in the jail or penitentiary of another jurisdiction.” In such a “nonforfeiture situation,” the same article provides a remedy. That is,

[I]f the defendant or his sureties file a motion to set aside the judgment of bond forfeiture within one hundred eighty days after the date of the mailing of notice of the judgment of bond forfeiture, and it is shown to the satisfaction of the court that the defendant was prevented from attending for any cause enumerated in this Article, the court shall declare the judgment of bond forfeiture null and void.

La.C.Cr.P. Art. 349.9. Thus, according to the nonforfeiture situation article, a party must file a motion to set aside. Reading this clause in the context of the bond forfeiture articles as a whole, if a defendant failed to appear and a bond is forfeited because he or she was incarcerated in another jurisdiction, there already existed a specific remedy via La.C.Cr.P. Art. 349.9. Hence, there was no need to resort to La.C.Cr.P. Art. 349.5(A)(1)-(2) to declare the judgment an “absolute nullity.”

CONCLUSION

Despite Appellants’ urging, we decline to equate this case with those in which a bond forfeiture was declared to be an absolute nullity based on vices of form such as lack of service. Indeed, the legislature specifically contemplated the situation in which a defendant would fail to appear due to his or her incarceration in another jurisdiction, and specifically provided a remedy via motion to set aside. The judgment of the trial court is affirmed.

AFFIRMED

      . The provisions of the Code of Criminal Procedure discussed in this appeal, notably articles 345, 349.5, and 349.9, were repealed by the legislature effective January 1, 2017. 2016 La. Acts No. 613 (§ 4). However, at all times relevant to this appeal, these provisions were in effect and applicable.

      . It should also be noted that, under some circumstances not applicable here, the action may be filed in the underlying criminal action.

      . Under the now-repealed La.C.Cr.P. Art. 349.5, nullity actions brought within sixty days of the mailing of the notice of judgment could have been brought summarily, whereas all others were required to be brought by the use of ordinary civil proceedings.