author: LILJEBERG, J.

text:
    U.S. BANK NATIONAL ASSOCIATION, as Trustee FOR STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-BC4 v. Perry Thomas CUSTER, Jr. a/k/a Perry T. Custer, Jr., a/k/a Perry Custer, Jr.
    NO. 17-CA-443
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLANT, U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH, CERTIFICATES SERIES 2007-BC4, Stephen W. Rider, New Orleans, Aukse S. Joiner, Baton Rouge, Melissa Harris, Las Vegas
    COUNSEL FOR DEFENDANT/APPELLEE, PERRY THOMAS CUSTER, JR. A/K/A, PERRY T. CUSTER, JR., A/K/A, PERRY CUSTER, JR., Cynthia Etheridge Daniels, Robert Angelle, Metairie
    Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

In this proceeding for foreclosure by executory process, plaintiff seeks review of the trial court's judgment granting defendant's exception of prescription and dismissing its claims against defendant with prejudice. Defendant answered the appeal and seeks review of the trial court's denial of his petition for injunctive relief, which was based on a finding that it was moot. For the foregoing reasons, we vacate the trial court's judgment granting the exception of prescription, and we render judgment in favor of defendant, granting the injunctive relief he seeks.

FACTS AND PROCEDURAL HISTORY

On May 17, 2007, in connection with his purchase of the property located at 4204 Lime Street in Metairie, defendant, Perry Custer, executed a promissory note for $198,000, plus interest, and granted a mortgage encumbering the property. Plaintiff, U.S. Bank National Association, as Trustee for the Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2007-BC4 (hereinafter referred to as "U.S. Bank"), is the present holder of the promissory note. According to U.S. Bank, Mr. Custer stopped making payments and defaulted on the loan on September 1, 2007, less than six months after obtaining the loan.

On March 10, 2008, U.S. Bank filed a "Suit on Promissory Note," asserting that the promissory note had been misplaced and seeking foreclosure via ordinary process. U.S. Bank asserted in its petition that the note became in arrears on September 1, 2007, whereupon all remaining installments immediately became due pursuant to the terms of the note. Years later, on May 4, 2016, U.S. Bank's lawsuit was dismissed on the grounds of abandonment.

On October 6, 2016, U.S. Bank initiated the present lawsuit by filing a "Petition for Mortgage Foreclosure by Executory Process with Appraisal" against Mr. Custer. In its petition, U.S. Bank noted that it had located and was in possession of the promissory note. It indicated that Mr. Custer had been provided with the required notice of default, and it sought seizure and sale of the property located at 4204 Lime Street by executory process. In response to U.S. Bank's petition, on January 9, 2017, Mr. Custer filed a "Petition for Preliminary and Permanent Injunction to Arrest Seizure and Sale," along with "Peremptory Exceptions of No Cause of Action and Prescription." In his petition for injunctive relief, Mr. Custer asserted that the promissory note at issue had prescribed and was no longer legally enforceable, and that the exceptions of no cause of action and prescription were "incorporated herein by reference as defenses to this executory proceeding." U.S. Bank responded by filing "Exceptions, Affirmative Defenses and Answer to Custer's Petition for Preliminary and Permanent Injunction to Arrest Seizure and Sale." In this pleading, U.S. Bank raised exceptions of improper use of summary proceeding and non-joinder of an indispensable party.

On February 7, 2017, Mr. Custer's request for a preliminary injunction and the exceptions filed by both parties came for hearing before the trial court. At the hearing, four witnesses testified, primarily regarding U.S. Bank's claim of acknowledgment of the debt, and several exhibits were admitted into evidence. At the conclusion of the hearing, the trial court granted Mr. Custer's request for a preliminary injunction and kept the exception of prescription open for further testimony to be provided during the hearing on the request for a permanent injunction. The remaining exceptions were denied.

On March 7, 2017, Mr. Custer's petition for permanent injunction and his exception of prescription, which was continued from the February 7, 2017 hearing, came before the trial court. Additional testimony and evidence was presented, and at the conclusion of the hearing, the trial court took the matter under advisement. Thereafter, on May 1, 2017, the trial judge rendered a judgment granting the exception of prescription filed by Mr. Custer and dismissing U.S. Bank's claims against Mr. Custer with prejudice. The judgment further provided that the petition for permanent injunction was moot. U.S. Bank appeals the trial court's judgment, and Mr. Custer has filed an answer to the appeal.

LAW AND DISCUSSION

In its first argument on appeal, U.S. Bank contends that the trial court erred in considering and granting an exception of prescription filed in response to an executory process foreclosure proceeding. It argues that while defenses may be raised via exceptions in an ordinary proceeding, the assertion of defenses in an exception is not proper in an executory process foreclosure, pursuant to La. C.C.P. art. 2642. Accordingly, U.S. Bank asks this Court to vacate the judgment of the trial court.

Mr. Custer responds that the trial court properly considered his exception of prescription, noting that it was filed simultaneously with his petition for injunctive relief. He further notes that prescription was raised in his petition for injunctive relief and the exception of prescription was incorporated therein as a defense to the executory proceeding.

In Louisiana, an executory proceeding is an in rem action that provides a simple, expeditious, and inexpensive procedure by which creditors may seize and sell property upon which they enjoy a mortgage and privilege. Deutsche Bank National Trust Co. ex rel. Morgan Stanley ABS Capital I, Inc. v. Carter , 10-663 (La. App. 5 Cir. 1/25/11), 59 So.3d 1282, 1286, writ denied , 11-392 (La. 4/8/11), 61 So.3d 691 ; Walter Mortg. Co., L.L.C. v. Turner , 51,007 (La. App. 2 Cir. 11/16/16), 210 So.3d 425, 431. Executory proceedings are "used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment." La. C.C.P. art. 2631 ; Walter Mortg. Co., L.L.C. , 210 So.3d at 431.

La. C.C.P. art. 2642 provides, in pertinent part:

Defenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a suspensive appeal from the order directing the issuance of the writ of seizure and sale, or both.

In accordance with La. C.C.P. art. 2642, the courts of this state have found that a debtor has only two legal options to raise defenses and objections to an executory proceeding before the property is sold to a third party. The first option is to file a petition for injunction to arrest the seizure and sale of the property either in the executory proceeding or in a separate suit, and the second option is to file a suspensive appeal from the order of seizure and sale. Am. Thrift & Fin. Plan Inc. v. Richardson , 07-640 (La. App. 5 Cir. 1/22/08), 977 So.2d 105, 108 ; Knox v. W. Baton Rouge Credit , 08-1818 (La. App. 1 Cir. 3/27/09), 9 So.3d 1020, 1023-1024 ; Antoine v. Chrysler Fin. Corp. , 00-647 (La. App. 4 Cir. 3/7/01), 782 So.2d 651, 652-653.

The defendant in an executory proceeding may arrest the seizure and sale of the property by injunction when the debt secured by the security interest, mortgage, or privilege is extinguished, or legally unenforceable, or if the procedure required for executory process has not been followed. La. C.C.P. art. 2751 ; Deutsche Bank Trust Co. Am. v. Ochoa , 12-800 (La. App. 5 Cir. 5/23/13), 120 So.3d 735, 740, n. 4. Injunctive proceedings and suspensive appeals from an order directing the issuance of a writ of seizure and sale are aimed at stopping the executory proceeding before the property is sold. Walter Mortg. Co., L.L.C. , 210 So.3d at 432.

In the present case, Mr. Custer properly raised the defense of prescription by filing and asserting this defense in a petition for injunctive relief in the executory proceeding. Simultaneously with the filing of this petition, he also filed an exception of prescription. After hearings on the exception of prescription and the petition for injunction, the trial court granted the exception of prescription, dismissed U.S. Bank's claims against Mr. Custer, and found the petition for permanent injunction to be moot. We find that the trial court's decision to rule on the exception of prescription, in lieu of the petition for injunction, was in error.

Pursuant to La. C.C.P. art. 2642 and the pertinent jurisprudence, the trial court should not have considered the defense of prescription via an exception. Rather, it should have considered this defense when determining whether to grant permanent injunctive relief. Accordingly, we must vacate the judgment granting the exception of prescription filed by Mr. Custer.

Nevertheless, because Mr. Custer raised prescription in his petition for injunctive relief, he was entitled to have this issue considered as a defense to the executory proceeding and in support of his petition for injunctive relief. Accordingly, we now consider de novo whether Mr. Custer is entitled to the injunctive relief he seeks.

Based on our review of the record before us, along with the applicable law, we find that the promissory note did, in fact, prescribe prior to the initiation of this lawsuit, and thus, Mr. Custer's petition for permanent injunction should have been granted.

Actions on instruments, whether negotiable or not, and on promissory notes, whether negotiable or not, are subject to a liberative prescription of five years. La. C.C. art. 3498. This prescription begins to run from the day payment is exigible. Id. ; Occidental Properties, Ltd. v. Zufle , 14-494 (La. App. 5 Cir. 11/25/14), 165 So.3d 124, 128-129, writ denied , 14-2685 (La. 4/10/15), 163 So.3d 809. When a promissory note is payable in installments, as opposed to on demand, the five-year prescriptive period commences separately for each installment on its due date. JP Morgan Chase Bank, N.A. v. Boohaker , 14-594 (La. App. 1 Cir. 11/20/14), 168 So.3d 421, 428. However, if the installments are accelerated based upon a default, prescription for the entire accelerated amount commences on the day of acceleration. Id.

In the present case, the promissory note was signed on May 17, 2007, and it provided for payments to be due in monthly installments. After Mr. Custer defaulted, U.S. Bank filed suit on March 10, 2008, and accelerated the note. U.S. Bank asserts that after it filed its March 10, 2008 petition, the note was "decelerated" and the original payment terms of the promissory note were reinstated. It argues that the date of acceleration for the present case is October 6, 2016, when the instant suit was filed. However, the evidence in the record fails to establish that the note was "decelerated" or that the original payment terms were reinstated.

U.S. Bank also contends that it entered into a forbearance agreement with Mr. Custer, so the acceleration of the debt by filing the 2008 petition was waived. However, the record reflects that the forbearance agreement was signed by Mr. Custer on February 29, 2008, and U.S. Bank filed suit after that date on March 10, 2008. U.S. Bank also filed an amended petition reaffirming the allegations in its original petition on January 23, 2009.

Because the note was accelerated in March of 2008, which is greater than five years before the instant lawsuit was filed, we now consider whether prescription was interrupted by acknowledgment.

La. C.C. art. 3464 provides that "[p]rescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe." Acknowledgement of a debt or obligation interrupts prescription and erases the time that has accrued, with prescription commencing anew from the date of interruption. La. C.C. art. 3466 ; Occidental Properties , 165 So.3d at 129 ; Babin v. Babin , 08-776 (La. App. 5 Cir. 3/10/09), 10 So.3d 784, 786, writ denied , 09-813 (La. 6/19/09), 10 So.3d 735.

An acknowledgment may be express or tacit. No specific form is prescribed for an express acknowledgment. Demma v. Auto. Club Inter-Insurance Exch. , 08-2810 (La. 6/26/09), 15 So.3d 95, 99, citing Flowers v. United States Fidelity & Guaranty Co. , 381 So.2d 378 (La. 1979). A tacit acknowledgment occurs when a debtor performs an act of reparation or indemnity, makes an unconditional offer or payment, or lulls the creditor into believing he will not contest liability. Id. ; Good Acres, Inc. v. Jemison , 08-976 (La. App. 4 Cir. 3/11/09), 8 So.3d 749, 752. Mere recognition of a disputed claim is insufficient to constitute an acknowledgement. Rosen v. State Farm Mut. Auto. Ins. Co. , 03-1744 (La. App. 4 Cir. 3/17/04), 870 So.2d 1057, 1064, writ denied , 04-964 (La. 6/4/04), 876 So.2d 92.

U.S. Bank argues that Mr. Custer's actions, taken cumulatively, were sufficient to acknowledge his debt and interrupt prescription. Within the five years following acceleration, Mr. Custer made some payments on the promissory note. Payment on a debt represents an acknowledgment. Good Acres, Inc. , 8 So.3d at 752. However, Mr. Custer testified that he made his last payment on January 20, 2010, clearly more than five years prior to the filing of this lawsuit.

U.S. Bank also contends that Mr. Custer acknowledged the debt on June 29, 2012 and August 17, 2012, within the five years prior to filing the instant suit, when he authorized a real estate agent, Luke Jones, to contact U.S. Bank and inquire about a short sale. It asserts that U.S. Bank provided Mr. Jones with the requested short sale package on August 18, 2012.

An acknowledgment can be made by an authorized agent of the debtor, but the power to acknowledge the debt must be express and special. Dufrene v. Morgan Equip. Rental, Inc. , 98-1582 (La. App. 1 Cir. 9/24/99), 754 So.2d 1000, 1004, n. 2. In the present case, the record does not show that Mr. Jones acknowledged Mr. Custer's debt or had the express authority to do so.

U.S. Bank also asserts that the record shows it provided a loan modification agreement dated September 8, 2015 to Mr. Custer. However, the loan modification agreement in the record is unsigned, and this evidence does not show that Mr. Custer, or anyone else on his behalf, acknowledged the debt. U.S. Bank also argues that Mr. Custer took steps to assure the property was covered by property and casualty homeowner's insurance during the years prior to initiation of this lawsuit and listed the servicer for U.S. Bank as the mortgagee. However, these actions are insufficient to prove acknowledgment of the debt.

The evidence in the record before us does not establish that prescription was interrupted by acknowledgment within the five years prior to the filing of the instant lawsuit. Thus, we find that the promissory note is prescribed and unenforceable. Accordingly, because the promissory note is unenforceable, we grant an injunction against the seizure and sale of the property at issue.

DECREE

For the foregoing reasons, we vacate the trial court's judgment granting Mr. Custer's exception of prescription. We render an injunction prohibiting the seizure and sale of the property located at 4204 Lime Street in Metairie, Louisiana, and we dismiss U.S. Bank's "Petition for Executory Process Foreclosure with Appraisal."

VACATED AND RENDERED

      The note provides, in paragraph 7, in pertinent part:
      If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal that has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means.
      The mortgage provides, in paragraph 22, in pertinent part:
      Lender shall give notice to Borrower prior to acceleration following Borrower's failure to pay principal, interest, and other fees and charges as provided in the Note, or following Borrower's breach of any covenant or agreement in this Security Instrument.... If the default is not cured on or before the date specified in the notice, Lender at its option may accelerate and require immediate payment in full of all sums secured by this Security Instrument without further demand for payment.

      The parties stipulated that all of the testimony and evidence admitted during the hearing on the preliminary injunction would be admitted into evidence for purposes of the permanent injunction hearing.

      We note that in his answer to the appeal, Mr. Custer asserts that the trial court erred by failing to grant the petition for permanent injunction, rather than dismissing it as moot.

      The copy of the forbearance agreement in the record does not reflect that it was signed by a representative of U.S. Bank.

      Based on our decision to grant a permanent injunction in this matter, we pretermit consideration of Mr. Custer's second assignment of error in his answer to appeal pertaining to the admission of several exhibits.


source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    STATE of Louisiana v. Kevin DEUBLER
    NO. 17-KA-334
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017 Rehearing Denied February 20, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Anne M. Wallis, Molly Massey
    COUNSEL FOR DEFENDANT/APPELLANT, KEVIN DEUBLER, Mary Constance Hanes
    DEFENDANT/APPELLANT, KEVIN DEUBLER, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
   WICKER, J.

Defendant appeals his conviction for cruelty to the infirmed in violation of La. R.S. 14:93.3, and his enhanced twenty-year sentence as a multiple offender under La. R.S. 15:529.1. For the following reasons, we affirm defendant's conviction and his sentence, as amended, to remove the restriction on parole eligibility.

STATEMENT OF THE CASE

On July 3, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Kevin Deubler, with cruelty to the infirmed in violation of La. R.S. 14:93.3. On July 8, 2014, defendant was arraigned and entered a plea of not guilty. On September 2, 2015, the State filed a Motion to Perpetuate Victim/Witness for Preservation of Testimony for Trial. The trial court considered the State's motion and held a preliminary examination on December 17, 2015, at which the alleged victim and an investigating officer testified.

Defendant waived his right to a jury trial and, on November 28, 2016, the trial judge found defendant guilty as charged.

On January 3, 2017, defendant filed a Motion for New Trial, which the trial judge denied. On March 7, 2017, after defendant waived sentencing delays, the trial judge sentenced defendant to seven years at hard labor without any restrictions. The State filed a multiple offender bill against defendant and, on April 4, 2017, the trial judge found defendant to be a third felony offender pursuant to La. R.S. 15:529.1. The trial court vacated defendant's original sentence and sentenced defendant to twenty years in the Department of Corrections without benefit of probation, parole, or suspension of sentence. This timely appeal follows.

FACTUAL BACKGROUND

Officer Eric Meyers with the Harahan Police Department testified that, on May 21, 2014, he was on duty at the Harahan police station when Ms. Deubler walked in to report an incident involving her son. Ms. Deubler provided two recorded statements to Officer Meyers. In her statements, Ms. Deubler provided that on the morning of May 21, 2014, her son, defendant, came home from the store after he had consumed alcoholic beverages and "started roughing [her] up." Ms. Deubler reported that defendant hit her with a little baseball bat and that she tried to get away from him, but he kept following her around the house. She also reported that defendant grabbed her shirt, tore the buttons off, and tried to choke her with her shirt collar, to the point that she was briefly unable to breathe. She also reported that he showed her a "nice little knife" and its blade, which he threatened to use on her that night.

Officer Meyers recalled that at the time Ms. Deubler came in to the police station, she seemed frightened and feared for her safety. He further recalled that Ms. Deubler was "covered" in bruises, some of which appeared older and in the process of healing while others appeared fresh. Officer Meyers recalled that the bruises were consistent with Ms. Deubler's account of the events. Investigating officers took photographs of Ms. Deubler's injuries, which were introduced into evidence and reflect bruising and injuries consistent with Ms. Deubler's statements to Officer Meyers. After Ms. Deubler provided her statements, Officer Meyers obtained her permission to enter her home to arrest defendant.

When Officer Meyers and Jefferson Parish deputies arrived to the house, they attempted to enter by unlocking the front door but felt resistance. Eventually, the officers discovered that defendant had duct taped the door's locking mechanism from the inside. Once they realized this, they applied force to the duct tape to gain entrance to the house and arrested defendant. Defendant did not make any statements at the time of his arrest.

Rebecca Deist, a paramedic with the East Jefferson "EMS," was called on May 21, 2014, to assess Ms. Deubler's physical condition at the Harahan Police Department. Ms. Deist testified that Ms. Deubler refused medical treatment and refused to be transported to the hospital. Ms. Deist created a "run report" of her assessment, wherein she documented Ms. Deubler's sustained injuries.

Christine Butler testified at trial that she is Ms. Deubler's daughter and defendant's sister. Ms. Butler testified that her mother is eighty-six years old and suffers from dementia. She explained that Ms. Deubler was diagnosed with dementia approximately one year after the incident involving defendant and that, although she takes prescription medication, the condition continued to worsen.

Ms. Butler confirmed that, in 2014, defendant resided with their mother in Harahan. She received a phone call from her uncle on the morning of May 22, 2014, which caused her to bring her mother to Ochsner emergency room that morning. She further testified that the photographs introduced into evidence accurately depicted the visible bruising to Ms. Deubler's body and that she had never seen any similar bruising on her mother's body prior to May 22, 2014. At trial, Ms. Butler identified a letter dated July 31, 2014, written in defendant's handwriting, which was mailed to Ms. Deubler at her home address. The letter, introduced into evidence at trial, contains apologies and asks for Ms. Deubler's forgiveness, stating that she was never the "intended target of [his] angers."

Ms. Deubler testified at trial that she was eighty-six years old, her date of birth was December 20, 1929, and she had three children, Al Deubler, Christine Butler, and defendant. When asked about her memory, she said it was "shot," and it was "not there" for her. She stated clearly that her memory had "gotten worse" and that she could not make sense of many of the questions asked. Ms. Deubler stated she could not recall exactly why she was in court but that she knew she was there because of something to do with her son, defendant. When shown the photographs introduced into evidence of her injuries, Ms. Deubler identified the photographs of herself. She testified that, although she does bruise easily, the photographs were taken when she was "getting beat up." When asked who "beat her up," she replied her son, defendant, beat her up. She could not remember where she was when she sustained her injuries, but she "guess[ed]" it was at home. She recalled that she went to the police after she was beaten but could not remember what she told them.

Ms. Deubler admitted that she could not recall her prior testimony or what she told doctors at Ochsner emergency room, but indicated that she most likely told the truth to her treating doctors because she does not lie often. When she listened to her recorded statements to Officer Meyers, she testified that she did not recall giving the statements but responded that she "of course" would have provided the truth to investigating police officers. Ms. Deubler, in her testimony, could not recall how she got her injuries, including whether defendant threatened her with a knife or a bat. However, when asked directly who caused her injuries, she consistently responded that her son, defendant, caused the injuries.

Felicia Sullivan, Ms. Deubler's next door neighbor, testified at trial that defendant resided next door with Ms. Deubler "off and on" from late 2012 through May 2014. She testified that she overheard defendant screaming obscenities at Ms. Deubler "almost nightly" from her backyard. Ms. Sullivan testified that, on one Saturday night in April 2014, she stepped outside of her home to record the screaming because it was so loud. The State introduced into evidence two video and audio recordings, during which one can hear a male screaming loudly and calling someone a "bitch." Ms. Sullivan testified that for a period of time between January 2014 and May 2014, she and other neighbors discussed the screaming coming from Ms. Deubler's residence almost nightly.

DISCUSSION

In his pro se assignments of error as well as his first counseled assignment of error, defendant challenges the sufficiency of the evidence presented against him at trial. First, defendant claims there is no evidence to prove that his mother was competent at the time she reported the incident, pointing to Ms. Deubler's inconsistent testimony and lack of memory concerning the alleged offense. Second, defendant argues that the State failed to prove that Ms. Deubler sustained the statutorily required injuries, contending that the "simple bruising" Ms. Deubler sustained does not reach the level of "unjustifiable pain or suffering" required under La. R.S. 14:93.3.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. State v. Bone , 12-34 (La. App. 5 Cir. 09/11/12), 107 So.3d 49, 58, writ denied , 12-2229 (4/1/13), 110 So.3d 574, citing Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. King , 06-554 (La. App. 5 Cir. 1/16/07), 951 So.2d 384, 390, writ denied , 07-0371 (La. 5/4/07), 956 So.2d 600.

An appellate court's primary function is not to redetermine the defendant's guilt or innocence in accordance with its appreciation of the facts and credibility of the witnesses. Rather, our function is to review the evidence in the light most favorable to the prosecution and determine whether there is sufficient evidence to support the jury's conclusion. State v. Banford , 94-883 (La. App. 5 Cir. 3/15/95), 653 So.2d 671, 677. Evidence may be direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Bone, supra . All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

When the trier of fact is confronted by conflicting testimony, fact findings rest solely with the judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Watson , 08-214 (La. App. 5 Cir. 8/19/08), 993 So.2d 779, 785.

Defendant was found guilty as charged of cruelty to the infirmed, a violation of La. R.S. 14:93.3. At the time of the offense, La. R.S. 14:93.3 provided, in pertinent part:

A. Cruelty to the infirmed is the intentional or criminally negligent mistreatment or neglect by any person, including a caregiver, whereby unjustifiable pain, malnourishment, or suffering is caused to the infirmed, a disabled adult, or an aged person, including but not limited to a person who is a resident of a nursing home, mental retardation facility, mental health facility, hospital, or other residential facility.
* * *
C. For the purposes of this Section, an aged person is any individual sixty years of age or older.

Accordingly, cruelty to the infirmed is the intentional or criminally negligent mistreatment of an aged person whereby unjustifiable pain, malnourishment, or suffering is caused. The term "intentional" as used in this statute refers to a general criminal intent to mistreat or neglect and does not require an intent to cause unjustifiable pain and suffering. State v. Adams , 10-855 (La. App. 5 Cir. 11/15/11), 78 So.3d 222, 233, writ denied , 12-0434 (La. 6/1/12), 90 So.3d 434 ; State v. Scott , 582 So.2d 864, 867 (La. App. 5 Cir. 1991), writ denied , 584 So.2d 1171 (La. 1991). "Unjustifiable" within the meaning of La. R.S. 14:93.3 is a term of limitation intended to distinguish that pain and suffering, which is an inevitable consequence of care and treatment of an aged person, from that which is not justified by medical needs. State v. Brenner , 486 So.2d 101, 104 (La. 1986). "Mistreatment" is in common usage and is equated with "abuse." State v. Comeaux , 319 So.2d 897, 899 (La. 1975) ; Adams , supra . The determination of whether the requisite intent is present in a criminal case is a question of fact. Adams , supra .

The evidence presented at trial showed that Ms. Deubler, an eighty-four-year-old woman at the time of the offense, reported to officers that her son, defendant, had "roughed [her] up," hit her with a small baseball bat, strangled her with her own shirt collar, and threatened to use a knife "on" her. The testimony at trial established that Ms. Deubler reported the incident to medical and police personnel before she was diagnosed with dementia, at which time she was able to drive herself to the police station to report defendant's abuse. Ms. Deubler's audio-recorded statements taken by Officer Meyers further reflect her lucidity at the time of the incident. Although Ms. Deubler could not remember the specific details of abuse at the perpetuation of testimony hearing or at trial, the testimony established she had worsening dementia. Nevertheless, even though Ms. Deubler became confused during questioning concerning details of the abuse, during the preliminary examination and during trial, she never wavered that it was defendant who harmed her.

The medical records and photographs introduced into evidence show that Ms. Deubler was covered in bruises, both fresh and healing. The Ochsner Hospital medical records report Ms. Deubler's own account to treating physicians that her son hit her on the head with a bat, punched and kicked her, and dragged her across the house by her blouse. The photographs introduced into evidence reflect a red ring around Ms. Deubler's neck consistent with the statements she provided to Officer Meyers that defendant strangled her with a shirt collar. The EMS "run report" and Ms. Deubler's statements further corroborate that defendant "beat her up." The video recordings show a male, who Ms. Sullivan, Ms. Deubler's neighbor, knew to be defendant, screaming obscenities in the month leading up to the incident. Ms. Sullivan further testified that she heard loud screaming and cursing from Ms. Deubler's residence almost nightly in April and May of 2014.

Upon our review of the record, we find the evidence presented at trial was sufficient to support defendant's conviction for cruelty to the infirmed in violation of La. R.S. 14:93.3. The testimony and evidence introduced at trial established that defendant had the general criminal intent to mistreat or neglect his mother, an aged person, by screaming at and hitting her, which caused extensive bruising to multiple parts of her body.

In his second counseled assignment of error, defendant contends that his enhanced twenty-year sentence is constitutionally excessive. Defendant argues that he was sentenced to the statutory maximum under La. R.S. 15:529.1(A)(3) and that he is not the worst type of offender for which maximum sentences are reserved. The State responds that defendant's sentence is statutorily authorized and points out that defendant's two prior convictions are designated crimes of violence under La. R.S. 14:2, which demonstrates defendant's pattern of violence over a long period of time. The State further contends that it could have filed a "quad bill" against defendant and he could have been adjudicated a fourth-felony offender.

The record reflects that defendant orally objected to his enhanced sentence but did not allege any specific grounds for excessiveness. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional excessiveness only. State v. Warmack , 07-311 (La. App. 5 Cir. 11/27/07), 973 So.2d 104, 108 ; see also LSA-C.Cr.P. art 881.1.

The imposition of excessive punishment is prohibited by both the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution. State v. Evans , 09-477 (La. App. 5 Cir. 12/29/09), 30 So.3d 958, 966, writ denied , 10-0363 (La. 3/25/11), 61 So.3d 653 (citing State v. Lawson , 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 622 ). A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. Id. citing State v. Lobato , 603 So.2d 739, 751 (La. 1992) ; Lawson , 885 So.2d at 622 ). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Evans, supra at 966. An appellate court considers three factors in reviewing a trial court's sentencing discretion: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. McClure , 15-237 (La. App. 5 Cir. 09/23/15), 176 So.3d 730, 733, State v. Stewart , 03-920 (La. App. 5 Cir. 1/27/04), 866 So.2d 1016, 1027-28, writ denied , 04-0449 (La. 6/25/04), 876 So.2d 832.

On April 4, 2017, after a hearing at which the State presented competent evidence to prove the allegations in the multiple bill, the trial judge adjudicated defendant as a third felony offender pursuant to La. R.S. 15:529.1(A)(3). As a third felony offender, defendant faced an enhanced sentence of not less than two-thirds of the longest possible sentence for the underlying conviction of cruelty to the infirmed and not more than twice the longest possible sentence for a first conviction. Accordingly, defendant faced a sentencing range of seven-and-a-half years to twenty years imprisonment. At the multiple offender hearing, the State proved by competent evidence that defendant had two previous felony convictions, one for aggravated criminal damage to property in violation of La. R.S. 14:55 in the 24th Judicial District Court for the Parish of Jefferson from 2005, and one for aggravated battery in violation of La. R.S. 14:34 in Orleans Parish Criminal District Court in 1990. Defendant's predicate convictions are both classified as crimes of violence under La. R.S. 14:2. Therefore, the State demonstrated that defendant has maintained a pattern of violence since his first conviction for aggravated battery in 1990. Although cruelty to the infirmed under La. R.S. 14:93.3 is not a designated crime of violence under La. R.S. 14:2, the evidence at trial reflects that defendant used physical force in the commission of this crime, by beating and strangling his eighty-four-year-old mother.

The trial court is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7, 16 ; State v. Thompson , 02-0333 (La. 4/9/03), 842 So.2d 330, 338 ; State v. Diaz , 46,750 (La. App. 2 Cir. 12/14/11), 81 So.3d 228, 230. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and therefore, is given broad discretion in sentencing. State v. York , 48,230 (La. App. 2 Cir. 8/7/13), 121 So.3d 1226, 1241, writ denied , 13-2154 (La. 3/21/14), 135 So.3d 617 (citing State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957 ). We acknowledge that maximum sentences are generally reserved for the most serious violations and the worst offenders. State v. Farhood , 02-490 (La. App. 5 Cir. 3/25/03), 844 So.2d 217, 225 ; State v. Martinez , 09-1057 (La. App. 5 Cir. 5/25/10); 40 So.3d 1113, 1116. However, on review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra ; State v. Free , 46,894 (La. App. 2 Cir. 1/25/12), 86 So.3d 29, 31.

Upon review of the entirety of the record in this case, we find that the trial judge did not abuse his discretion in sentencing defendant to the statutory maximum twenty-year sentence under La. R.S. 15:529.1. As stated above, defendant's two predicate convictions are designated crimes of violence under La. R.S. 14:2. The record also reflects that the State discussed on the record its ability to charge defendant with a "quad bill." Further, the evidence presented at trial in this case reflects that defendant used physical force to strangle and beat his eighty-four-year-old mother on at least one occasion. The video recordings and testimony from next-door neighbor Ms. Sullivan further indicate that defendant had a pattern of screaming at Ms. Deubler, causing neighbors to frequently report such disturbances to the police.

In addition, Ms. Deubler reported to Officer Meyers that defendant had previously stepped on her chest and pushed her off of a toilet, prior to the incident where she alleged he strangled her with her shirt collar, struck her with a small bat, and threatened her with a knife. The photographs introduced into evidence further support a pattern of abuse, reflecting bruises all over Ms. Deubler's body with some appearing fresh and others in the process of healing.

Moreover, the record as a whole does not reflect that defendant showed any remorse for his actions. Although his letter to Ms. Deubler apologized for what he had "done," the letter also intended to coerce Ms. Deubler to recall her report to police-asking Ms. Deubler to speak to the district attorney to ask him to drop the charges against defendant, and further pleading with Ms. Deubler that his life, essentially, is in her hands.

Under the facts of this case, we cannot say that the trial judge abused his discretion in imposing the enhanced twenty-year sentence under La. R.S. 15:529.1(A)(3).

ERRORS PATENT

This Court has reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920, State v. Oliveaux , 312 So.2d 337 (La. 1975), and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). The record reflects the following errors patent:

Statutory Restrictions

Although defendant was sentenced within the sentencing range under La. R.S. 15:529.1, the record reflects an error favorable to defendant that needs to be corrected with regard to the restriction of parole eligibility. Defendant's conviction is for cruelty to the infirmed in violation of La. R.S. 14:93.3. The penalty provision for the crime of cruelty to the infirmed provides that the offender shall be fined not more than ten thousand dollars or imprisoned with or without hard labor for not more than ten years, or both. La. R.S. 14:93.3, prior to 2010, did not provide for any parole restrictions. In Acts 2010, No. 831 § 1, effective August 15, 2010, the legislature amended the penalty provisions for La. R.S. 14:93.3 to add that, "[a]t least one year of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence when the act of cruelty to the infirmed was intentional and malicious." (emphasis added). Therefore, a restriction on parole eligibility is not provided nor mandatory in the statute unless there is a finding that the offense was intentional and malicious.

For defendant's conviction for cruelty to the infirmed in violation of La. R.S. 14:93.3, the trial judge sentenced defendant to seven years at hard labor, without any restriction on parole eligibility. However, when he sentenced defendant as a third felony offender under La. R.S. 15:529.1, the trial judge sentenced defendant to twenty years imprisonment, without benefit of probation, parole, or suspension of sentence for the entire twenty-year sentence.

While La. R.S. 15:529.1(G) requires all multiple offender sentences to be served without the benefit of probation or suspension of sentence, the multiple offender statute does not impose a parole restriction. Rather, the restrictions imposed on parole eligibility in multiple offender sentences under La. R.S. 15:529.1"are those called for in the reference statute." State v. Esteen , 01-879 (La. App. 5 Cir. 5/15/02), 821 So.2d 60, 79, writ denied , 02-1540 (La. 12/13/02), 831 So.2d 983. Because defendant's underlying conviction for cruelty to the infirmed does not mandate a parole restriction, the trial judge erred in restricting parole eligibility when sentencing defendant as a multiple offender under La. R.S. 15:529.1.

Accordingly, we amend defendant's sentence to remove the restriction on parole eligibility. Further, we order the Clerk of Court for the 24th Judicial District Court to transmit notice of this amended sentence to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections' legal department.

Commitment

The uniform commitment order (UCO) for defendant's multiple offender adjudication reflects that defendant was adjudicated a third felony offender on November 28, 2016, which was the date defendant was convicted for his underlying cruelty to the infirmed charge. Accordingly, we remand this matter to the trial court to correct the date on defendant's UCO to reflect the correct date of his multiple offender adjudication. The Clerk of Court for the 24th Judicial District Court is ordered to transmit the corrected UCO to the appropriate authorities under La. C.Cr.P. art. 892(B)(2) and the Department of Corrections' legal department. See State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

Post-Conviction Advisal

The record reflects that defendant received an incomplete advisal of the time period within which he may seek post-conviction relief. It is well settled that if a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief. See State v. Neely , 08-707 (La. App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied , 09- 0248 (La. 10/30/09), 21 So.3d 272 ; State v. Davenport , 08-463 (La. App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied , 09-0158 (La. 10/16/09), 19 So.3d 473 ; State v. Jacobs , 07-887 (La. App. 5 Cir. 5/24/11), 67 So.3d 535, 600, writ denied , 11-1753 (La. 2/10/12), 80 So.3d 468, cert. den. 568 U.S. 838, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012).

Accordingly, we hereby advise defendant by way of this opinion that no application for post-conviction relief, including applications which seek an out-of time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. See also State v. Pham , 12-635 (La. App. 5 Cir. 05/16/13), 119 So.3d 202, 227-28, writ denied , 13-1398 (La. 12/6/13), 129 So.3d 531.

DECREE

Accordingly, for the reasons provided herein, defendant's conviction is affirmed. We hereby amend defendant's twenty-year sentence under La. R.S. 15:529.1 to remove the restriction on parole eligibility and, as amended, we affirm.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED; REMANDED FOR CORRECTION OF COMMITTMENT

      La. R.S. 14:93.3 was amended in 2014 to change the title of the offense to "Cruelty to persons with infirmities."

      The trial court heard the testimony of the alleged victim and found probable cause to hold defendant.

      Prior to the start of trial, the State amended the bill of information to reflect a date range in May 2014, and the defendant pled not guilty to the amended bill. The State also nolle prossed a misdemeanor charge of aggravated assault pending against defendant in case no. 14-3525.

      This Court has previously held that when the trial judge states that the defendant is sentenced to the "Department of Corrections," the sentence is necessarily at hard labor. State v. Jamison , 17-49 (La. App. 5 Cir. 5/17/17), 222 So.3d 908, 909 n.2.

      In the recorded statements, Officer Meyers identified himself as Officer Eric Ross. Officer Meyers testified that he changed his last name since the time of the recordings.

      Ms. Deubler advised that she did not take defendant seriously and thought he was only trying to scare her.

      They also discovered a curtain rod positioned in the rear sliding door which forced the door into a closed position.

      At trial, Officer Meyers denied finding a knife, a shirt with ripped buttons, or a small baseball bat at the house. However, Officer Meyers further explained that the officers did not obtain a search warrant for the house and admitted that the officers did not search for those items inside the house.

      In the letter, defendant pleaded with Ms. Deubler to write him back and advised her of how to address her return envelope to him "for his safety." With this advice, he included his CCN number and his location in the Jefferson Parish Correctional Center. The parties stipulated that defendant's CCN number and his location in the Jefferson Parish Correctional Center on July 31, 2014, matched those provided in the letter.

      The transcript from the December 17, 2015 hearing to perpetuate Ms. Deubler's testimony was introduced into evidence.

      These recordings were the subject of the State's motion to use 404(B) evidence, which the trial judge granted.

      Ms. Sullivan stated that other neighbors had called the police to report the situation but that nothing ever happened when the police arrived.

      When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold , 603 So.2d 731, 734 (La. 1992) ; State v. Stipe , 14-476 (La. App. 5 Cir. 02/11/15), 167 So.3d 942, 949. Defendant's pro se assignments of error challenge the credibility of the witnesses' trial testimony and the sufficiency of the evidence presented against him at trial.

      Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. La. R.S. 14:12.

      Although, in his pro se brief, defendant argues that the Ochsner medical records were inadmissible hearsay evidence, the record reflects that the medical records were admitted pursuant to a stipulation by the State and the defense.

      The trial judge's oral reasons for his judgment do not reflect that he made any finding as to whether he found defendant's conduct to be intentional and malicious.

      As stated above, had the trial judge determined that defendant acted intentionally and with malice in committing the offense, then a restriction on parole eligibility would have been permitted. However, because the record does not support that the trial judge made such a determination, particularly given that defendant's original seven-year sentence did not include such a restriction, we find that the parole eligibility restriction under La. R.S. 15:529.1 is not proper under the facts of this case.


author: GRAVOIS, J.

text:
    Robert HARVEY, Darleen Jacobs Levy and Susan and William Laurendine v. The BOARD OF COMMISSIONERS FOR the ORLEANS LEVEE DISTRICT, PARISH OF ORLEANS
    NO. 17-CA-271
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLANT, SUSAN AND WILLIAM LAURENDINE, ET AL, Darleen M. Jacobs, Hunter P. Harris, Richard M. Martin, Jr.
    COUNSEL FOR DEFENDANT/APPELLEE, STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Jeffrey M. Landry, Timothy W. Hassinger, Kelsey L. Bonnaffons
    COUNSEL FOR DEFENDANT/APPELLEE, SEWERAGE AND WATER BOARD OF NEW ORLEANS, Charles M. Lanier, Jr., J. Warren Gardner, Jr., Oscar M. Gwin, IV
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg
   GRAVOIS, J.

In this case arising out of flooding following Hurricane Katrina, plaintiffs/appellants appeal a trial court judgment that denied class certification under La. C.C.P. art. 591. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL BACKGROUND

On September 24, 2005, plaintiffs, Robert Harvey, Darleen Jacobs Levy, Susan Laurendine, and William Laurendine, filed a claim for damages with a request for class action certification against the Board of Commissioners for the Orleans Levee District for the Parish of Orleans (the "Levee District"), asserting that the Levee District was negligent in its design and construction of flood walls along the 17th Street and London Avenue Canals in Orleans Parish, which flood walls collapsed during and in the aftermath of Hurricane Katrina on August 29, 2005, resulting in damages to their respective properties located in Orleans Parish. Plaintiffs further asserted that "the number of business and property owners affected by the negligence of the defendant are too numerous to mention and that this lawsuit should be certified as a class action for all residents, business owners, and occupants of the affected areas in the New Orleans area."

On June 7, 2006, plaintiffs filed a First Supplemental and Amending Petition. Al LeBeouf, Aline Hodges, Pierre Ascani, Theresa Harvey, Dale Atkins and Anita L. Sarrat were added as plaintiffs, and Robert Harvey and Darlene Jacobs Levy were deleted as plaintiffs. Additional allegations of negligence were asserted against the Levee District. The next day, on June 8, 2006, plaintiffs filed a motion to certify the action as a class action pursuant to La. C.C.P. art. 592.

Plaintiffs filed a Second Supplemental and Amending Petition on July 10, 2006, adding as defendants the State of Louisiana, Department of Transportation and Development (the "DOTD"), and the Sewerage and Water Board for the Parish of Orleans (the "SWB"), asserting additional acts of negligence by these defendants.

In Case Management and Scheduling Order No. 1 signed by the trial court on December 23, 2013, the proposed class was defined by plaintiffs as follows: "All residents, domiciliaries, property owners and business owners of the parishes of Orleans and Jefferson (limited to Hoey's Basin) in the State of Louisiana whose properties or businesses were damaged by flooding caused by the failure of the 17th Street Canal and London Avenue Canal hurricane protection levees and floodwalls in New Orleans, Louisiana on or after August 29, 2005."

After a lengthy procedural history that is largely irrelevant to the instant appeal, the trial court conducted a hearing on plaintiffs' motion to certify the class on November 10 and 14, 2016. At the close of plaintiffs' evidence, the trial court granted defendants' oral motion for involuntary dismissal and denied class certification, finding that plaintiffs had failed to produce evidence to support the requirements of commonality and typicality, as required by La. C.C.P. art. 591(A)(2) and (3), respectively, and superiority, as required by La. C.C.P. art. 591(B)(3). The trial court gave detailed oral reasons for its ruling. A written judgment to this effect was signed on November 22, 2016. Plaintiffs' appeal follows.

On appeal, plaintiffs argue that the trial court procedurally erred in granting defendants' motion for involuntary dismissal, asserting that the class certification hearing was not a trial on the merits of the case. They also argue that the trial court erred in excluding the testimony and report of their expert engineer, James Phipps. Plaintiffs further argue that the trial court erred in finding that plaintiffs failed to prove commonality, as required by La. C.C.P. art. 591(A)(2), and superiority of the class action suit, as required by La. C.C.P. art. 591(B)(3).

STANDARD OF REVIEW AND APPLICABLE LAW

The standard of review for class certification is bifurcated: factual findings are reviewed under the manifest error/clearly wrong standard, but the trial court's judgment on whether to certify the class is reviewed by the abuse of discretion standard. Pollard v. Alpha Tech., Chevron U.S.A., Inc. , 08-1486 (La. App. 4 Cir. 1/28/10), 31 So.3d 576, 581, citing Brooks v. Union Pacific Railroad Company , 08-2035 (La. 5/22/09), 13 So.3d 546, 554.

The determination of whether a class action meets the requirements imposed by law involves a rigorous analysis. Brooks v. Union Pacific Railroad Company , 13 So.3d at 554. Such an analysis requires the district court to "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." Price v. Martin , 11-0853 (La. 12/6/11), 79 So.3d 960, 966-67, citing McCastle v. Rollins Environmental Services of Louisiana, Inc. , 456 So.2d 612, 618 (La. 1984). McCastle imparts a duty on the court to make active inquiry "into every aspect of the case" and "to require showings beyond the pleadings." Id. In practice, the analysis will frequently entail overlap with the merits of the underlying claim. Id. , citing Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011).

The threshold requirements for class certification are found in La. C.C.P. art. 591(A), which provides:

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

These prerequisites are generally known as numerosity, commonality, typicality, adequacy, and identifiability (class definition). Pollard v. Alpha Tech., Chevron U.S.A., Inc. , 31 So.3d at 583. An action may be certified as a class action only if all of the five prerequisites of Article 591(A) are present. Id.

If all of the prerequisites of Article 591(A) are satisfied, Article 591(B) provides that the court must also find that plaintiffs have met at least one of the following requirements found in Article 591(B)(1)-(3), to-wit:

(1) The prosecution of separate actions by or against individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification; [or]
(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[.]

A trial court has wide discretion whether or not to certify a class. Chicago Property Interests, LLC v. Broussard , 11-0788 (La. App. 4 Cir. 5/23/12), 90 So.3d 563, writ denied , 12-1413 (La. 10/08/12), 98 So.3d 857, stay denied , writ denied , 13-2983 (La. 1/8/14), 130 So.3d 314, stay denied , writ denied , 13-2984 (La. 1/8/14), 130 So.3d 315. Any error to be made in deciding class action issues should be in favor of and not against maintenance of the class action, because a class certification order is subject to modification if later developments during the course of trial so require. Id.

ASSIGNMENTS OF ERROR

Involuntary dismissal

On appeal, plaintiffs argue that the trial court erred in granting defendants' motion for involuntary dismissal, made orally following the presentation of plaintiffs' witnesses and evidence at the hearing to certify the class. They argue that the motion for involuntary dismissal was procedurally improper in the current posture of the case, because the certification hearing was not a trial on the merits of the case.

Upon review, we find that plaintiffs' arguments in this assignment of error are without merit. La. C.C.P. art. 1672(B) provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Article 1672(B), by its own terms, applies to "an action tried by the court without a jury." (Emphasis added.) The Article, therefore, is not limited in application to a trial on the merits. The term "action" is broader than a trial, and includes a hearing on a motion to certify a class. For instance, in Ladieux v. Jefferson Parish Hosp. Serv. Dist. No. 2 , 14-449 (La. App. 5 Cir. 11/25/14), 165 So.3d 109, 110, a motion for involuntary dismissal was granted by the trial court following the presentation of plaintiffs' evidence, denying class certification. Given that plaintiffs bore the burden of proof regarding class certification, we find no merit to plaintiffs' assertion that the use of this procedural device is inappropriate at a hearing for class certification.

Exclusion of expert testimony

Plaintiffs also argue that the trial court erred in excluding the testimony and report of James Phipps, a geotechnical engineer whom plaintiffs engaged to analyze the potential liability of the two remaining defendants in this case, the SWB and the DOTD. Plaintiffs argue that the trial court misapplied the standards of La. C.E. art. 702 by delving into the merits of the litigation as a whole, rather than the specific issue of whether plaintiffs bore their burden of proof to certify the class.

La. C.E. art. 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert has reliably applied the principles and methods to the facts of the case.

In its ruling to exclude Mr. Phipps' testimony and report, the trial court found that subparagraphs (1) and (2) of Article 702 were not met.

Mr. Phipps testified that he was retained in 2014 by plaintiffs to consider the potential liability of the two remaining defendants, the SWB and the DOTD. He was offered as an expert geotechnical engineer, which he described as the application of engineering principals to the interaction of soils and structures. He testified that he had a masters degree in civil engineering, which focuses on design and building of large structures, which could include drainage systems, levees, and floodwalls. He was a licensed professional engineer in three states: Texas, Oklahoma, and Arkansas. His job experience as a geotechnical engineer included designing and building high-rise buildings with deep excavations, distress evaluations, evaluations of retaining walls, and the occasional damn or levee project. He had experience in soil sampling. He had previously been offered as an expert witness in foundation distress cases.

As preparation for testifying in this case, Mr. Phipps said that he visited the 17th Street Canal and the London Avenue Canal, along with the adjoining neighborhoods, in 2014, prior to the certification hearing, but conducted no inspections or testing of any kind at the sites. He also reviewed several comprehensive reports made by other entities regarding the flooding, as well as historical documents that chronicled various dredging projects on the 17th Street Canal. These reports were referred to as IPET (Interagency Performance Evaluation Task Force), ILIT (Independent Levee Investigation Team), DOTD Team Louisiana, and the Delft University of Technology (Holland) reports. He also reviewed Corps of Engineer manuals regarding flood works and flood control projects, and the deposition of a SWB employee. Mr. Phipps prepared a report for this litigation, based on his review of the aforementioned materials provided by plaintiffs' counsel, before he visited New Orleans or saw the sites of the breaches. Between reviewing the background reports and writing his report, Mr. Phipps estimated that he spent approximately 20 hours of time.

On traversal, Mr. Phipps admitted that he had never designed a floodwall or a drainage canal. He also had never conducted a forensic analysis of levee, floodwall, or canal designs. He also had never conducted an engineering analysis of the design of a levee or floodwall. He also had never worked on a flood case prior to this one. Mr. Phipps admitted that he did not completely read the reports on which he relied (for instance, he testified that he read around 300 pages of the 8,000 page IPET report). Mr. Phipps acknowledged that he only considered the various reports and materials furnished to him by plaintiffs' counsel, and did not conduct any independent research into the failure of the 17th Street or London Avenue Canals, or read any other reports about the flooding, after acknowledging that other reports existed. He agreed that 30-40 per cent of his expert report was in fact written by plaintiffs' counsel, specifically the historical text section of the report, and the footnotes citing legal cases.

Mr. Phipps agreed that in the 20 hours he spent on this report, he did not have time to read the entirety of any of the source reports furnished to him by plaintiffs' counsel. Mr. Phipps acknowledged that he did not visit any of plaintiffs' properties. He clarified that he was not a hydrologist, and had done no calculations or hydrology assessments to determine all of the sources of water that accumulated within three "polders" of New Orleans included in this putative class action: the Lakeview polder, the west Gentilly polder, and the east Gentilly polder.

Mr. Phipps stated, during traversal, that he was not charged with trying to determine why the levees failed, or to do exhaustive research. He also confirmed that he was asked to focus on the actions of the SWB and the DOTD leading up to the breach, but was not to consider the actions of the Army Corps of Engineers, nor the Orleans Levee District.

At the hearing, the trial court noted that this was not a Daubert hearing. It considered Mr. Phipps' testimony only in the context of whether it would aid the court in determining whether to certify the proposed class and if it met the other criteria in Article 702. After considering Mr. Phipps' testimony at the hearing, the trial judge was careful to explain that while he recognized Mr. Phipps' educational qualifications, he found that Mr. Phipps' testimony and report would not be helpful to the court in determining whether to certify the class, i.e. , whether plaintiffs had met the requirements of numerosity, commonality, typicality, adequacy, and identifiability. The court implicitly found that Mr. Phipps' testimony was not based on sufficient facts or data, given the limited scope of materials he consulted prior to making his report, and further that the testimony was not the product of reliable principles and methods, given the facts that Mr. Phipps considered only materials furnished to him by plaintiffs' counsel, which he did not thoroughly read, that he did not conduct any other research into the levee breaches, and that he spent a relatively scant amount of time reviewing the materials and formulating his report, considering the volume of materials provided.

After careful review of the record and the applicable law, we find no abuse of the trial court's discretion in excluding the testimony and report of Mr. Phipps at the class certification hearing. The trial court's assessment of the limited scope of Mr. Phipps' report is supported by the record. Further, given that limited scope, we find no abuse of the trial court's discretion in its conclusion that the testimony would not aid the court in determining the existence of the required factors for class certification found in Article 591(A). This assignment of error is without merit.

Class certification: Commonality

On the issue of class certification, plaintiffs argue that the trial court erred in finding that they failed to prove the "commonality" of plaintiffs' claims. La. C.C.P. art. 591(A)(2). They argue that they have established at least three undisputed common facts that exist within the putative class: that defendants had a duty (or duties) to build and/or maintain the levee walls (of the 17th Street and London Avenue Canals) properly; that the levee walls failed; and that every one of the members of the proposed class suffered direct and ascertainable damage to some degree as a result of the flooding. In brief, they contend that the commonality prerequisite is "not high," citing federal Fifth Circuit cases from 1986 and earlier. Plaintiffs also note that the court certified the class in Chicago Property Interests , supra , in which residents of Jefferson Parish sued governmental entities for flooding damage caused by Hurricane Katrina. They argue that there is no material difference between the claims in Chicago Property Interests and the case at bar.

In order to meet the commonality 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 v. Union Pacific Railroad Company , 13 So.3d at 559.

In Price v. Martin , 79 So.3d at 969, the Supreme Court discussed the commonality requirement:

The commonality prerequisite requires a party seeking class certification to show that "[t]here are questions of law or fact common to the class." La. C.C.P. art. 591(A)(2). This language is "easy to misread, since '[a]ny competently crafted class complaint literally raises common "questions." ' " Wal-Mart Stores, Inc. , 131 S.Ct. at 2551, quoting Nagareda, Class Certification in the Age of Aggregate Proof , 84 N.Y.U.L. Rev. 97, 131-32 (2009). The mere existence of common questions, however, will not satisfy the commonality requirement. 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 that is central to the validity of each one of the claims in one stroke." Wal-Mart Stores, Inc. , 131 S.Ct. at 2551. As this court has succinctly explained:
To satisfy the commonality requirement, there must exist "as to the totality of the issues a common nucleus of operative facts...." A common question is one that, when answered as to one class member, is answered as to all of them. [Citations omitted.]
Dupree [v. Lafayette Ins. Co. ], 09-2602 at 11 [ (La.11/30/10) ], 51 So.3d [673] at 682-83.
In the context of mass tort litigation, this court has further refined the commonality requirement, stating that, in such cases, "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 at 17, 13 So.3d at 559.

In Price v. Martin , the Supreme Court reversed the certification of a class. The mass tort that allegedly caused damages to the putative class involved emissions from an industrial plant into a neighborhood over a significant period of years. The Court found that the factual scenario did not meet the commonality requirement of "only mass torts 'arising from a common cause or disaster' [being] appropriate for class certification." Price v. Martin , 79 So.3d at 974. Though the emissions came from one plant, the plant had at least three owners/operators over the time period in question, only two of which had been sued, thus making it extremely difficult to quantify each particular defendant's participation/fault. The Court found that the evidence showed that the issue of breach would turn on different conduct, by different defendants, at different times, under different legal standards. Id. at 971.

The instant matter shows similar parallels. Though the damages in question were alleged to have been caused by the failure of the flood walls following Hurricane Katrina, the evidence presented at the certification hearing shows two defendants along with at least two other actors whose fault must be considered, and the failure of floodwalls on two canals caused by different conduct by multiple actors, occurring at different times. Further, it was shown that flooding in the three polders in question was possibly caused by different sources, including but not limited to floodwall breach, floodwall overtopping, and accumulated rainfall, that varied depending on the particular location within each polder and the particularities of each property, making it difficult if not impossible to quantify each actor's contribution to the flooding at any particular property. Just as in Price v. Martin , the flooding damages of each property will not turn on common evidence, but rather on a myriad of property-specific facts.

The Brooks case involved flooding damages against multiple defendants following a heavy rain event. The class sought to be certified included three different "basins;" however, the testimony at the certification hearing showed that the predominate cause of the flooding varied from basin to basin, and that secondary causes of flooding damages would vary depending on specific property conditions such as elevation. The Supreme Court affirmed the court of appeal's decertification of the class originally granted by the trial court, observing that "the cause of flooding must be the same for each member of the class, and if there is more than one cause of flooding, each of these causes must be the same for each class member. This is difficult in a mass tort case involving more than one defendant, more than one cause, and more than one theory of liability." Brooks v. Union Pacific Railroad Company , 13 So.3d at 559. Though it applied the version of La. C.C.P. art. 591 as it read prior to the 1997 revision thereof, the case remains instructive for the applicability of the class action procedural device to mass torts. Brooks held that mass torts may only be brought as a class action if they arose from a common cause or disaster, based on the fact that causation is an essential part of the liability determination, and if causation differed for each plaintiff, individual trials would be required which would defeat the purpose of the class action device. Id. at 558.

Plaintiffs cite Chicago Property Interests as supportive of class certification, because that case allowed the certification of a class of property owners who suffered flooding damages in the aftermath of Hurricane Katrina in Jefferson Parish, finding commonality. However, that case is clearly distinguishable from the instant case because the evidence in Chicago Property Interests showed that the flooding arose from the same set of operative facts and related to all class members: the shutting off of drainage pumps in Jefferson Parish during the hurricane and its immediate aftermath, allegedly stemming from a plan or policy promulgated by Jefferson Parish. Chicago Property Interests, LLC v. Broussard , 11-0788 at p. 18. In the instant case, the evidence showed that the causes of flooding varied throughout the geographical area and thus were not common to all plaintiffs, as in Brooks and Chicago Property Interests . Thus, though the two cases both involved flooding in the aftermath of Hurricane Katrina, the plaintiffs in Chicago Property Interests met the required burden of proving commonality, whereas plaintiffs in this case did not. This assignment of error is without merit.

Class certification: Superiority

On the issue of class certification, the trial court also found that La. C.C.P. art. 591(B)(3)'s requirement of "superiority" was not met. In Brooks , the Supreme Court held that in making the superiority determination, the district 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, judgment efficiency, and individual fairness." Brooks v. Union Pacific Railroad Company , 13 So.3d at 554. The Price v. Martin court noted that by enacting La. C.C.P. art. 591, et seq. , the legislature has codified the Supreme Court's prior class certification jurisprudence. Price v. Martin , 79 So.3d at 966.

La. C.C.P. art. 591(C) cautions that class "[c]ertification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class."

In its extensive oral reasons for judgment, the trial court found that the superiority requirement had not been met because individual issues predominated this case. Plaintiffs argue in brief that the court erred because "aggrieved persons may be without effective means of redress absent the class action device" and that "the alternatives, (including joinder, intervention, consolidation, and the use of a test case), do not sufficiently protect the legal rights of the aggrieved parties," yet such statements are conclusions without supporting evidence. As such, plaintiffs have failed to show that the trial court abused its discretion in so finding. This assignment of error is without merit.

Class certification: Typicality

The trial court also found that the "typicality" requirement of La. C.C.P. art. 591(A)(3) was not met, but plaintiffs do not brief this on appeal. As previously noted, the trial court must find that plaintiff proved all of the requirements of Article 591(A), including typicality. Briefing only the commonality requirement and failing to brief the typicality requirement is thus necessarily fatal to this appeal.

CONCLUSION

For the foregoing reasons, we find no manifest error in the trial court's factual conclusions, nor abuse of discretion in its conclusion that plaintiffs failed to bear their burden of proof at the hearing of the motion to certify the class. Accordingly, the judgment denying class certification is affirmed.

AFFIRMED

      This suit was filed in Orleans Parish. It comes to this Court following the recusal of the Fourth Circuit Court of Appeal.

      The Levee District, one of the original defendants, was dismissed from this litigation in 2014, prior to the class certification hearing. All claims against the Levee District were settled through federal court litigation.

      It is important to note, however, that the grant of defendants' motion for involuntary dismissal pertained only to the class certification, and not to any individual claim against defendants.

      Mr. Phipps agreed that he was not a lawyer, did not have the skills to conduct legal research and determine the meanings of the legal cases cited in his report, and would not have included citations to legal cases in a report authored solely by him.

      "Polder" is a term of art that means a low-lying tract of land enclosed by dikes or similar boundaries that forms an artificial hydrological entity.

      The Army Corps of Engineers and the Orleans Levee District were at least two other actors involved in the drainage system of New Orleans, as evidenced by the pleadings in this case, information in the aforementioned reports, and this Court's judicial notice of case law cited to this Court by the parties.

      Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In State v. Foret , 628 So.2d 1116, 1123 (La. 1993), the Louisiana Supreme Court adopted Daubert 's requirement that expert scientific testimony must rise to a threshold level of reliability in order to be admissible under La. C.E. art. 702.

      In their responses to interrogatories, plaintiffs acknowledged that damages would be property-specific.

      Previously, we noted that class certification shall only be granted if each requirement in Paragraph A of Article 591 is met. Having found that the commonality requirement of paragraph A was not met, the trial court was not required to consider the requirements of paragraph (B)(3), predominance and superiority, though it did. Pollard v. Alpha Tech. , 31 So.3d at 590-91.