author: PAUL A. BONIN, Judge.

text:
    Leo POLLARD, Jr., Ronald P. Williams, Alan William, Sr., John Gros, III, Eliot Spencer Williams, Jack Roy, Clarence David Ross, Richard Meerman, Sr., Earl Williams, Jr., Merlin Williams, Sr. and John Hendrix v. ALPHA TECHNICAL, Chevron U.S.A., Inc. Conoco, Inc., Exxon Mobil Corporation, Homeco, Inc., Mobil Exploration & Producing U.S., Inc., Phillips Oil Co., Sexton Oil & Mineral Corporation, Shelloffshore, Inc., Shell Oil Company, System Fuels, Inc., et al. Glenda Bailey v. Exxon Mobil Corporation; Mobil Exploration & Producing U.S., Inc.; Alpha Technical; Chevron U.S.A., Inc.; Conoco, Inc., Homeco, Inc.; Phillips Oil Co.; Sexton Oil & Mineral Corporation, Shell Offshore, Inc.; Shell Oil Company; System Fuels, Inc.; Shell Western E & P, Inc.; Texaco, Inc., and Tubular. James A. Williams, Maxine Williams, Isom Sandifer, Vina Sandifer, Jacquelyn Nettles, Mary Shaw, Marian Woods, et al. v. Exxon Mobile Corporation, Alpha Technical Services, Inc., Chevron U.S.A., Inc., Conoco, Inc., Homeco, Inc., Intracoastal Tubular Services, Inc., Mobil Exploration & Producing U.S., Inc., Sexton Oil & Mineral Corporation, Shell Offshore, Inc., Shell Oil Company, Texaco, Inc., Tubular Corporation, Swepi, L.P., Joseph Grefer, Camile Grefer, Rose Marie Grefer Hassi, and Henry Grefer. Jo Ann B. Grigsby, Viola Hendricks, Shirley Ferrier, George Ferrier, Oscar Williams, Jr., Betty Collins, Edward Collins, Jr., Kirk Collins, Trent Collins, Ingrid Bloodworth, Allen P. Newton, Sr., Carol Newton, Bernice Griffith, Leslie Frank Griffith, et al. v. Joseph Grefer, Camile Grefer, Rose Marie Grefer, Exxon-Mobil Corporation, Intercoastal Tubular Services, Incorporated, Alpha Technical Services Incorporated, Chevron U.S.A., Incorporated, Homeco, Incorporated, Mobil Exploration & Producing Southeast, et al. Willie Williams, et al. v. Exxon Mobil Corporation, et al. Ida Rose Wilson; George L. Matthews, Jr.; Debra G. Celestine; and Prentiss S. Washington, III v. Exxon Mobil Corporation; Intracoastal Tubular Services, Inc, etc., et al.; Mobil Exploration & Producing U.S. Inc.; Alpha Technical; Chevron U.S.A., Inc.;’ Conoco, Inc.; Homeco, Inc.; Phillips Petroleum Company (also known as Phillips Oil Co.); et al. John H. Cotton, Teon Allen/ Arevia Cotton Antoinie, Individually, and on Behalf of Her Minor Child, Andia Christopher; et al. v. Exxon Mobil Corporation, Alpha Technical Services, Inc., Chevron U.S.A., Inc., Conoco, Inc., Homeco, Inc., Intracoastal Tubular Services, Inc., Mobil Exploration & Producing U.S., Inc., Sexton Oil & Mineral Corporation, Shell Offshore, Inc., Shell Oil Company, Texaco, Inc., Tubular Corporation, Swepi, L.P., Joseph Grefer, Camile Grefer, Rose Marie Grefer Hassi and Henry Grefer. Phil Burras, Robin Burras, Individually and on Behalf of her Minor Children, Rochell, Brown and Brandon Brown, el al. v. Exxon Mobile Corporation, Alpha Technical Services, Inc., et al. Shawn Walton v. Joseph Grefer, Camile Grefer, Rosemarie Grefer Hasse, Henry Greffer, Exxon-Mobil Corporation, et al.
    Nos. 2008-CA-1486, 2009-CA-0266 to 2009-CA-0273.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 2010.
    Rehearing Denied Feb. 24, 2010.

      Henry T. Dart, Grady J. Flattmann, Henry Dart, Attorney at Law, Covington, LA, for Plaintiffs/Appellants, Leo Pollard, Jr., Ronald P. Williams, Alan Williams, Sr., John Gros, III, Eliot Spencer Williams, Jack Roy, et al.
    John W. Hite III, Susan G. Guillot, Sal-ley Hite & Mercer, LLC, New Orleans, LA and Jacques F. Bezou, Candice L. Jenkins, The Bezou Law Firm, Covington, LA for Rathborne Properties, LLC, Rath-borne Land Company LLC, and Rath-borne Companies, LLC.
    Glen M. Pilie’, Ronald J. Sholes, Charles F. Gay, Jr., Martin A. Stern, Valeria M. Sercovich, Adams and Reese LLP, New Orleans, LA, for Exxon Mobil Corporation.
    ■ Gladstone N. Jones, III, Paul H. Villalo-bos, Kevin E. Huddell, Eberhard D. Garrison, Jones Swanson Huddell & Garrison, L.L.C., New Orleans, LA, for Joseph Gre-fer, Camile Grefer, Rose Marie Grefer Haase, Henry Grefer.
    Caleb H. Didriksen, III, Diane R. Co-senza, Richard J. Garvey, Jr., Loyd J. Bourgeois, Jr., Didriksen Law Firm, P.L.C., New Orleans, LA, for Alpha Technical Services, Inc.
    Darleen Jacobs, Jacobs Sarrat & Lovelace, and Robert G. Harvey, Sr., Law Office of Robert G. Harvey, Sr., APLC, New Orleans, LA, Amici Curiae.
    Thomas E. Balhoff, Judith R. Atkinson, Carlton Jones, III, Roedel Parsons Koch Blache, Balhoff & MeCollister, Baton Rouge, LA, for Intracoastal Tubular Services, Inc.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

|, The trial court denied class certification and the named plaintiffs in these consolidated actions have appealed. Finding no abuse of discretion by the trial court, as set forth in the reasons which follow, we affirm.

I

Over the course of more than forty years, industrial property located in Harvey, Louisiana, near residential neighborhoods was used for oilfield pipe and equipment-cleaning operations. The owners of the property leased various parcels to various businesses at various times and for various periods of time. The pipe was owned by several oil companies, which used several transportation companies to deliver the pipe to the various operations. The named defendants are the pipe cleaning businesses, the property owners and lessees, and the oil companies. The |2pipe cleaning operations conducted on the property are fully described in Grefer v. Alpha Technical, 02-1237 (La.App. 4 Cir. 3/31/05), 901 So.2d 1117.

The operations can be described generally as the mechanical cleaning and reaming of the inside of oilfield pipe to remove scale or crust that builds up on the interior of the tubing, thus returning the cleaned pipe to its original diameter. The scale, formed from natural elements, gradually clogs the pipes that are inserted deep into the ground during the course of petroleum production. Since the early 1900’s the oil industry has known that the underground water produced in conjunction with oilfield hydrocarbons leached certain mineral salts from the earth’s crust and then carried those mineral salts in solution up the tubing toward the surface. Change in pressure and temperature caused the mineral salts to precipitate out of solution and form a scale or crust on the interior of the tubing. The built-up scale eventually constricted and slowed the flow path of the oil and gas; at that point, the oil company extracted tubing and transported it to the pipe yard for the cleaning contractor to ream the pipe. The chemical composition of the scale was barium sulfate, later identified as radium sulfate, and other material determined to be radioactive, with varying half-lives (time for half of the atoms of a radioactive substance to decay), called NORM or TERM.

The acronym NORM, used by the defendants, stands for “naturally occurring radioactive material.” The oil industry tried to establish protocols for |smonitoring and set criteria for dangerous NORM levels. One defendant, ITCO, built a Controlled Environmental Cleaning unit to clean NORM-contaminated pipe. See, generally, James R. Cox, Naturally Occurring Radioactive Materials in the Oil Field: Changing the NORM, 67 Tul. L.R. 1197 (1993).

The plaintiffs define the proposed class as follows:

All persons, firms or other entities whose person or property was located within one mile of the outer boundary of “The Property.” And was exposed to any radioactive, hazardous, and/or toxic materials generated, stored or released as a result of operations conducted by one or more defendants on “The Property,” from 1946 through the present date.

They allege that over those years, and hidden from them, “toxic dust” (NORM/ TERM) was deposited in their neighborhood. The affected neighborhood was defined to be a tract of land adjoining the eastern boundary of the industrial property to a distance of about one mile. The plaintiffs attribute their various diseases and illnesses, including prenatal complications, various types of cancer, neurological disorders, impairment of kidney function, impairment of liver function, to the wrongful release of toxic dust by the defendants. The class action seeks damages and mandatory injunctive relief, including reparation of the industrial property.

The trial judge delegated a special master, appointed pursuant to the provisions of La. R.S. 13:4165 A, to conduct an evi-dentiary hearing on the class certification issue. The special master recommended against certifying the class. |4After a contradictory hearing, the trial court denied class certification. From this judgment the plaintiffs appeal. A judgment denying class certification is an appealable judgment. La. C.C.P. art. 592 A(3)(b).

II

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. Brooks v. Union Pacific Railroad Company, 08-2035, p. 10 (La.5/22/09), 13 So.3d 546, 554; Chalona v. Louisiana Citizens Property Ins. Corp., 08-0257, pp. 4-5 (La.App. 4 Cir. 6/11/08), 3 So.3d 494, 500.

These two standards of review correspond with the two-step process for determining whether to certify a class action. First, a trial court must find a factual basis exists to certify an action as a class action. Second, the court must exercise its discretion in deciding if certification is appropriate, [emphasis added]

Galjour v. Bank One Equity Investors-Bidco, Inc., 05-1360, p. 7 (La.App. 4 Cir. 6/21/06), 935 So.2d 716, 722, citing Singleton v. Northfield Ins. Co., 01-0447, p. 7 (La.App. 1 Cir. 5/15/02), 826 So.2d 55, 61.

The Louisiana Supreme Court recently stated, in Brooks, 08-2035 at p. 10, 13 So.3d at 554:

The determination of whether a class action meets the requirements imposed by law involves a rigorous analysis. The trial court “must evaluate, quantify and weigh [the relevant factors] to determine to what extent the class action would in each instance promote or detract from the goals of effectuating substantive law, Isjudicial efficiency, and individual fairness” [citation omitted]. In so doing, “the trial court must actively inquire into every aspect of the case and should not hesitate to require showings beyond the pleadings.” [citations omitted]

While any error to be made in deciding class action issues should be in favor of, not against, maintenance of the class action, McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612, 620 (La.1984), nevertheless,

Louisiana trial courts are afforded broad discretion in determining the class certification issues, and have wide latitude in considerations involving policy matters, and those requiring a preliminary analysis of the facts, [citation omitted]

Davis, 02-0942 at p. 6, 844 So.2d at 249.

The defendants argue that the trial court’s findings were correct, and that we must defer to the trial court’s findings absent manifest error, and defer to the trial court’s decision regarding certification absent abuse of discretion. See Banks v. New York Life Ins. Co., 98-0551 (La.7/2/99), 737 So.2d 1275; Stobart v. State Dept. of Transportation and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989).

We are especially mindful that a class action is a procedural tool, wherein substantive facts are not considered when deciding the issue of certification. Andry v. Murphy Oil, U.S.A., Inc., 97-0793, pp. 2-3 (La.App. 4 Cir.1998), 710 So.2d 1126, 1129. See also Thomas v. Mobil Oil Corp., 08-0541, p. 18 (La.App. 4 Cir. 3/31/09), 14 So.3d 7 at 18-19, (Bonin, J., dissenting).

| nThe central issue on appeal is whether the trial court abused its discretion when it found that the plaintiffs failed to establish the requirements for certification pursuant to La. C.C.P. art. 591, which provides in pertinent part:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law and 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 interest 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 conclusiveness of any judgment that may be rendered in the case.
B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, [emphasis added]

These prerequisites are generally known as numerosity, commonality, typicality, adequacy, and identifiability (class definition). Louisiana procedural law requires that a class action be certified only if all five requirements are present. La. C.C.P. art. 591 A. See also Davis v. American Home Products Corp., 02-0942, p. 5 (La. App. 4 Cir. 3/26/03), 844 So.2d 242, 249.

|7Our Supreme Court in Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La.9/9/97), 703 So.2d 542, explained the historical development of the Louisiana class action:

Early Louisiana class action jurisprudence recognized the stringent common interest requirements of the original Rule 23 “true” class action, although the tests employed by the circuits differed. We first interpreted this provision in Stevens v. Board of Trustees of Police Pension Fund, 309 So.2d 144 (La.1975). In Stevens, we held that the fact that different recoveries are sought, based upon the same factual transaction and same legal relationship, was not intended to defeat a class action (citation omitted). However we explained that ... [the legislature] intended that there be a relationship between the claims greater than simply that of sharing a common question of law or fact. Id. at 150.

Ford, 703 So.2d at 546.

To this effect, “the trial court must actively inquire into every aspect of the case and should not hesitate to require showings beyond the pleadings.” (citing McCastle and Stevens). The Brooks Court, differentiating the two standards of review for factual findings and the ultimate decision of the trial court to grant certification, stated:

Implicit in this deference] [to certification decisions] ... is recognition of the essentially factual basis of the certification inquiry [emphasis added] and of the district court’s inherent power to manage and control pending litigation, [citations omitted]

Brooks, 08-2035 at p. 11, 13 So.3d at 554.

Ill

Turning now to the instant case, we apply the manifest error/clearly wrong standard to our review of the criteria for certification.

Numerosity. The trial court found that the plaintiffs failed to prove numerosity. This court has defined numerosity as follows:

|sThe first prerequisite to class certification is that the class must be so numerous that joinder of all members is impracticable. La.Code Civ. Proc. Art. 591(A)(1). The determination of numer-osity is based in part upon the number of putative class members, but is also based upon considerations of judicial economy in avoiding a multiplicity of lawsuits, financial resources of class members, and the size of the individual claims.

Husband v. Tenet Healthsystems Memorial Medical Center, Inc., 08-1527, p. 8 (La.App. 4 Cir. 8/12/09), 16 So.3d 1220 at 1228; Chalona, 08-0257 at p. 6, 3 So.3d at 500-01, 503. The burden is on the plain-tifi/movant to “make a prima facie showing that a definable group of aggrieved persons exist [sic] and that the class is so numerous that joinder is impractical.” Johnson v. Orleans Parish School Board, 00-0825-0828, p. 7 (La.App. 4 Cir. 6/27/01), 790 So.2d 734, 741. No number automatically makes joinder impracticable; rather, the determination is based on the facts and circumstances of each case. Chiarella v. Sprint Spectrum LP, 04-0133, p. 19 (La.App. 4 Cir. 11/17/05), 921 So.2d 106, 119.

In support of its refusal to certify the instant class because the plaintiffs failed to establish numerosity, the trial court stated, “In the case of a mass tort, this burden of plausibility requires some evidence of a causal link between the incident and the injuries or damages claimed by sufficiently numerous class members,” citing Hampton v. Illinois Cent. R.R. Co., 98-0430 (La.App. 1 Cir. 4/1/99), 730 So.2d 1091. The judgment further denies numerosity “because so many potential class members have already opted out. Citing other lawsuits already filed by 3,748 individuals, the court stated, “it [is] impossible for Plaintiffs to establish numerosity,” citing three additional lawsuits: Earl Adams, Jr. v. Chevron U.S.A. Inc., No. 02-19308, Division D of Civil District Court for Orleans Parish; Dottie Adams v. Joseph Gre-fer, No. 524-278, Division K, 24th Judicial District Court for Jefferson Parish, and Warren Lester v. ExxonMobil Corp., 02-19657, Division N(8) of Civil District Court for Orleans Parish.

In this case, the trial court observed, the fact that significant numbers of residents or potential class members had opted out of the class made the establishment of numerosity impossible. Specifically, the judgment stated,

Plaintiffs cite no credible evidence to support their proposed class definition, which purports to extend to all persons residing within, visiting, or even travel-ling through, a one-mile radius of the outer boundary of the site identified by plaintiffs between 1946 and 1992. Instead, they argue only that thousands of people resided within the one-mile radius over the relevant time period. This bit of information would be relevant only if plaintiffs could make a prima facie showing that radioactive materials from pipe scale had actually been found in soils or homes distributed in a one-mile radius. But plaintiffs have not made this showing. They have no evidence whatsoever of actual contamination.

The trial court received evidence that the testing of residences in the suspect area revealed no evidence of radioactivity. The plaintiffs’ expert witness from the Louisiana Department of Environmental Quality failed to persuade the trial court that numerous residents were affected by toxicity from the defendants’ sites. The number of potential class members as estimated by plaintiffs themselves was between 2,000 and 4,000; however, of that number 3,748 have opted out, according to the trial court.

Opting out of a class before it is certified to exist is premature; the classification is itself provisional, capable of being changed by the trial court as its procedural efficacy evolves. Accordingly, the argument regarding opting out has no effect on a certification of the class. See La. C.C.P. art. 592 A(3)(c), B(2)(b), |inand B(2)(c). As plaintiffs in their brief argue, it is impossible to opt out of a class that does not yet exist. Hence, the trial court erroneously included as a reason to deny numerosity the argument that a large number of putative plaintiffs would opt out or had already filed claims, thus opting out.

In our evaluation of the correctness vel non of the trial court’s rejection of the numerosity criterion, we review the extensive evidence offered as expert testimony and tests regarding the plaintiffs, the property, and the effect of NORM. The trial judge has much discretion in determining whether the qualifications of a learned person will assist the court in its fact finding function. Cheairs v. State ex rel. DOTD, 03-680, p. 7 (La.12/3/03), 861 So.2d 536, 540-41; Rosell, 549 So.2d at 844; Katner v. Katner; p. 3 (La.App. 4 Cir. 12/23/09), 28 So.3d 566. “The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound.” Lasyone v. Kansas City Southern Railroad, 00-2628, p. 13 (La.4/3/01), 786 So.2d 682, 693. See also Beaucoudray v. Walsh, 07-0818, pp. 13-14 (La.App. 4 Cir. 3/12/09), 9 So.3d 916, 924. The trial court was not clearly erroneous in finding the expert reports and testimony of Drs. Resnikoff, Williams, and Biggs to be insufficient to establish the geographic elements of potential harmful exposures to the class.

The Louisiana Supreme Court in Adams v. Rhodia, Inc., 07-2110, pp. 10-11 (La.5/21/08), 983 So.2d 798, 806-07, stated:

_J_UWhere the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact. Indeed, whether the fact finder’s determination is based on its decision to credit the testimony of one of two witnesses, that finding can virtually never be manifestly erroneous.

See also Cotton v. Delta Queen Steamboat Co., Inc., 2009-CA-0736, p. 7 (La.App. 4 Cir. 1/6/2010), — So.3d-.

The plaintiffs contend, however, that until there is a certified class in existence, it cannot be “opted out of,” and there was no testimony, live or by affidavit, showing an intention by any putative class member to opt out.

We find that the trial court was manifestly erroneous in its finding that the plaintiffs failed to satisfy the numerosity requirement.

Commonality. This court has defined commonality as follows:
A showing of commonality of questions of law and fact among the class is the second prerequisite in certifying the class. The test for commonality requires only that there be at least one issue the resolution of which will affect all or a significant number of putative class members.

Watters v. Dept. of Social Serv., 05-0324, p. 15 (La.App. 4 Cir. 4/19/06), 929 So.2d 267, 278; Oliver v. Orleans Parish School Board, 2009-CA-0489, p. 5 (La.App. 4 Cir. 11/12/09), 25 So.Sd 189, 198. The trial court in the instant case stated, “[t]here is no question of law or fact common to the class.... [T]here are no diseases that all — or even most — of the putative class members claim.” Citing conclusions of other states’ courts and federal courts, the trial court rejected the criterion of commonality among the putative class members at bar.

However, definitions must evolve from concrete events, occurrences, real people, and specific places and facts, not mere nuance and speculation. For instance, the McCastle plaintiffs alleged 129 discrete acts over an eleven-month | ^period causing their specific and limited injuries, but there was only one source of odors and fumes. Ford, 703 So.2d at 548. In Ford, as in the instant case, the court noted that,

far from offering the same facts, each class member will necessarily have to offer different facts to establish that certain defendants’ emissions, either individually or in combination, caused them specific damages on yet unspecified dates (which dates may run into the hundreds or even thousands.) The causation issue is even more complicated considering the widely divergent types of personal, property and business damages claimed and considering each plaintiffs’[sic] unique habits, exposures, length of exposures, medications, medical conditions, employment, and location of residence or business. In addition, each plaintiff will have to prove that the specific harm he suffered surpassed the level of inconvenience that is tolerated under C.C. art. 668. By the very nature of the claims that have been made, the length of time involved, and the vast geographical area in which the class members live, the degree of inconvenience or damage suffered will vary greatly as to the individual plaintiffs.... There appear to be far too many individual liability issues which could not be tried separately.

Id. at 549.

The trial court had a factual scenario in the instant case that presented a breadth of times, durations, and various sources and intensities of exposures during nearly half a century among the plaintiffs, together with a wide variety of alleged medical complaints and conditions. The court stated:

[T]here is no controlling issue subject to proof on a class-wide basis. The differences in amounts and lengths of exposure, the personal history, habits and supposed illnesses of each particular claimant and the differences in operations and locations and customers of the five pipe-cleaning defendants, taken together and taken separately, mean that Plaintiffs cannot identify any common issue that can be resolved with respect to putative class members.

From this scenario the trial court did not find sufficient commonality for class certification. We find that the trial court was reasonable in finding that the plaintiffs failed to satisfy the commonality requirement.

11STypicality. The criterion of typicality requires that “[t]he claims or defenses of the representative parties are typical of the claims or defenses of the class.” La. C.C.P. art. 591 A(3). We have previously defined “[t]he element of typicality [as] requiring] ... that the claims of the class representatives be a cross-section of, or typical of, the claims of all class members.” Davis v. Jazz Casino Co., L.L.C., 03-0005, p. 9 (La.App. 4 Cir. 1/14/04), 864 So.2d 880, 889; Andry v. Murphy Oil, U.S.A., Inc., supra, 97-0793 at p. 5, 710 So.2d at 1129. The class representatives’ claims must stem from the same event or course of conduct, and interest and injuries must be the same. In the instant case, the trial court noted,

no single accident occurred and each plaintiff was exposed to different substances, if any, at different levels, and at different times, allegedly caused by different defendants, and each plaintiff is himself different.

Relying on testimony from class representatives as well as putative class members, the trial court stated further that “many of the class representatives reported a variety of diseases or symptoms vastly different from those reported, if any, by the putative class members.” Beyond the variety of medical complaints, the judgment noted that certain plaintiffs refused to undergo medical tests; other plaintiffs were inconsistent as to what conditions to monitor. The broad diversity in the ailments underscored the inadequacy of the class representatives’ representation, leading the court to conclude that there was no typicality. The trial court judgment observed:

[T]he class representatives’ claims are widely divergent from those of the putative class members.... Some class representatives claimed no medical condition whatsoever, implicitly conceding that none could have been caused.... Others claim widely varying medical problems, ranging from loss of smell to skin rashes to nosebleeds to hammer-toe to miscarriages to cancer.... Moreover, while some Plaintiffs would welcome medical testing, they are not consistent as to what conditions they want to monitor, or even whether they would trust the results, and other Plaintiffs expressly reject any such tests.

114After reviewing the record, we find that the trial court was reasonable in finding that the plaintiffs failed to satisfy the requirement of typicality.

Adequacy of Representation. This court has defined “adequacy of representation” in Dupree v. Lafayette Ins. Co., 2009 WL 3287607, 09-0321, p. 7 (La.App. 4 Cir. 10/14/09), - So.3d - :

Adequacy of representation for class certification requires that the claims of the proposed class representatives be a cross-section of, or typical of, the claims of all class members .... even though claims by a particular class representative with regard to the exact damages claimed may not be typical, as long as the class of damages asserted by each representative is. [citation omitted]

In Oliver v. Orleans Parish School Board, 09-0489 (La.App. 4 Cir. 11/12/09), 25 So.3d 189, this court affirmed the trial court’s examination of the potential conflicts of interest among potential class members to determine that the relief sought by School Board employees did not create conflicts arising from competition for jobs, in a suit for reinstatement of employment (i.e., injunctive and/or declaratory relief as opposed to monetary damages).

In the instant case, the trial court recognized that the class representatives would be unable to adequately represent class members’ interests, finding that the testimony established that any given class representative and class member alleged varying injuries caused by varying substances from varying sources, caused by varying acts of numerous defendants occurring over a period of more than four decades. The class representatives and potential class members were not found to meet the adequacy criteria, based on the broad diversity and undetermined characteristics of the alleged effects of the NORM and the vast and individual relationships the potential class members have or had to the several defendants. The trial court judgment stated:

| iaIt follows that adequacy of representation is lacking when class members’ complaints range, as shown above, from cancer to no symptoms at all.... This makes it impossible for some to pursue remedies for others.

The trial court’s reasonable finding that the putative class did not meet the adequacy-of-representation requirement was not manifestly erroneous.

Identifiability (Class Definition). This court has interpreted “class definition” as follows:

“The final prerequisite under article 591(A) is that the class be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for the purposes of the conclusiveness of any judgment that may be rendered in the case. The parties seeking certification must be able to establish a definable group of aggrieved persons based on objective criteria derived from the operative facts of the case, [citation omitted]. The purpose of the class definition requirement is to ensure that the class is not amorphous, indeterminate, or vague, so that any potential class members can readily determine if he/she is a member of the class.”

Oliver, 25 So.3d at 200. See also Watters, 15 So.3d at 1128.

The trial court judgment, described the inconsistencies and errors made by the plaintiffs’ expert, Dr. Biggs, in modeling air dispersion and opining regarding air and soil deposition of the pipe scale dust, which expert testimony was to serve as a foundation for the plaintiffs’ establishing times, spatial boundaries, and determinations of exposure for any particular plaintiff. The judgment stated:

[T]he definition could potentially include anyone who once drove through the area. The Special Master further noted that the definition could not be saved by restricting it to persons who suffered injury due to exposure because “[c]lass membership cannot be based on who prevails on the merits; to do so would require a mini-hearing on the merits of each plaintiffs claim to determine who is in the class.”

JjjThe trial court found that the proposed definition lacked temporal, residential, and geographic specificity and was thus “fatally defective.” The testimony of experts, including Dr. Biggs, described in detail in the reasons for judgment, supports the decision to deny class certification: tests were exaggerated, incorrect (“critical mistakes” and “flawed assumptions” and “outlandish premises”), or the experts were inconsistent and were impeached. As the trial court observed, so inadequate was the class definition that it would include even a person who simply drives within a mile of the site once within sixty years. “And there is no objective evidence supporting a one-mile radius in the first place.”

The plaintiffs contend that this court and the Louisiana Supreme Court have remanded class certifications for re-definition, citing the Supreme Court’s suggestion in Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La.9/9/97), 703 So.2d 542, and this court’s certification of a re-defined class in Andry v. Murphy Oil, U.S.A., Inc., 97-0793 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, one of Ford’s progeny. The trial court observed that the instant suit is the second attempt at certification, the first attempt having been rejected. The trial court reasonably found that the plaintiffs failed to satisfy the requirement of identifi-ability (class definition). The plaintiffs do not offer a revised or alternative re-definition of the class that would satisfy objectively ascertainable criteria for a class. We find that the trial court’s finding was reasonable and was not manifestly erroneous.

JjjIV

We now consider whether, overall and based on the lengthy proceedings and record below, the trial court abused its discretion in denying class certification. We find guidance in the McCastle Court’s consideration of fairness to parties tempered with judicial efficiency. The court noted,

In determining whether it would be unfair to require separate adjudications, for instance, the courts should consider the precedential value of the first decision, as well as the extent of injustice that will be produced by inconsistent judgments in separate actions.... [T]he evidence as to the nucleus of liability issues must be identical for each claim.... Four thousand separate suits involve the danger of inconsistent determinations and of earlier separate adjudications with prejudicial effect upon subsequent separate litigation.

456 So.2d at 621.

Cognizant of the McCastle duty to make inquiry “into every aspect of the case” and to “require showings beyond the pleadings,” id. at 618; Stevens, 309 So.2d at 152, we note that we review the trial judge’s findings, accompanied by lengthy reasons for judgment, on each element. The finding of insufficient numerosity was clearly wrong; however, the findings as to commonality, typicality, adequacy of representation, and identifiability (class definition) are reasonable.

This court in Thomas v. Mobil Oil Corp., 08-0541 (La.App. 4 Cir. 3/31/09), 14 So.3d 7, affirmed the trial court’s denial of class certification for factors reminiscent both of the case at bar and those of Ford, wherein the Louisiana Supreme Court rejected class certification. Pertinent factors are as follows:

|1S1) The proposed class members will have to offer different facts to establish that certain emissions, either individually or cumulatively, caused them specific damages on specific dates;
2) the causation issue requires consideration of the widely divergent types of personal, property and business damages claimed and requires consideration of each plaintiffs unique habits, medical history, exposures, length of exposures, concentration of chemical substances, medications, medical conditions, employment and location of businesses and residences;
3) each plaintiff will have to prove that the specific level of harm suffered surpassed the level of inconvenience tolerated under Louisiana Civil Code Art. 668;
4) the length of time involved spans from 1989 to at least 2003; ...
6) the degree of inconvenience or damage suffered will vary greatly as to individual plaintiffs.

Thomas, 08-0541 at p. 5, 13 So.3d at 10.

The trial court exceeded the narrow scope prescribed for the initial step in addressing class certification by attributing to the category “numerosity” the court’s fact findings properly made subsequent to the certification phase of class action litigation. Where the trial court improperly deviates from the realm of class certification and wanders into the merits of the claim, “a serious threat to the loss of-individual substantive rights” is posed. Id,., citing Williams v. State, 350 So.2d 131, 135 (La.1977).

Among numerous examples of that fact-finding which exceeds the scope of the preliminary inquiry for class certification are the following excerpts from the reasons for judgment:

Plaintiffs cite no credible evidence to meet their proposed class definition, which purports to extend to all persons residing within, visiting, or even traveling through, a one-mile radius of the outer boundary of the site identified by Plaintiffs between 1946 and 1992 ...
[T]hey argue only that thousands of people resided within the one-mile radius over the relevant period of time. This bit of information would be relevant only if Plaintiffs could make a prima facie showing that radioactive materials from pipe scale had actually been found in soils or homes distributed in a one-mile radius. But Plaintiffs have | ianot made this shoving. In sum, Plaintiffs presented no evidence whatsoever of radiation contamination on any Plaintiffs property.
Moreover, the only two Plaintiffs who allowed their homes to be tested by LDEQ revealed no contamination. And nor does every claimant purport to suffer from the same non-cancerous diseases .... Thus, resolving whether radiation can cause a particular disease, if that is even possible, does not resolve a common issue.
Plaintiffs argued that this is a “single source” case, even though they have consistently alleged exposure to numerous substances purportedly originating from different companies conducting different operations over varying time periods at different locations along a more than 1.5 mile stretch of Peters Road in Harvey Louisiana.

Nevertheless, the lack of commonality evident from the facts before the court defeats the claim for class certification, which requires all five factors, not four of them, to be present. The plaintiffs failed to support their claim for certification of a class with sufficient evidence of a definable group. Thus the trial court’s findings of absence of commonality, typicality, adequacy of representation, and identifiability (class definition) were not manifestly erroneous.

Were the deficiencies of the plaintiffs’ case as to commonality not so enormous, we would attempt to redefine a class or remand for the trial court to craft a more narrowly defined class, because “[b]y completely denying class certification, without even attempting to apply the provisions of La. C.C.P. art. 592(A)(3)(c), these plaintiffs are, we all know, effectively put out of court.” Thomas, supra 14 So.3d at 19 (Bonin, J., dissenting). Cognizant of La. C.C.P. art. 592 D, we conclude after our examination of the record that redefining the classJjjin this unique factual scenario would not help to maintain the class. Despite its exceeding the boundaries of examination into facts for certification of a class, the trial coui’t did not abuse its discretion in denying class certification.

DECREE

We therefore affirm the trial court’s judgment.

AFFIRMED.

      .The entire list of defendants, from the original and amending and supplemental pleadings includes Alpha Technical, Chevron USA, Inc., Conoco Inc., Exxon Mobil Corporation, Homeco, Inc., Mobil Exploration & Producing U.S., Inc., Phillips Oil Co., Sexton Oil & Mineral Corporation, ShellOffshore, Inc., Shell Oil Company, System Fuels, Inc., Shell Western E & P, Inc., Texaco, Inc., Tubular Corporation, Alpha Technical Services, Inc., Intracoastal Tubular Services, Inc. [ITCO], Swepi, L.P., Mobil Exploration & Producing Southeast, Phillips Petroleum Co. (also known as Phillips Oil Co.); landowners Joseph Gre-fer, Camile Grefer, Rose Marie Grefer Hassi, and Henry Grefer; also, Rathborne Properties, LLC, Rathborne Land Company LLC, and Rathborne Companies, LLC, were named in an amending petition as defendants with an interest in the property at issue.

      . The decision was vacated and remanded sub nom. Exxon Mobil Corp. v. Grefer, 549 U.S. 1249, 127 S.Ct. 1371, 167 L.Ed.2d 156 (2007).

      . Plaintiffs use the acronym TERM to refer to the deposits, the "TE” meaning "technologically enhanced"; and the substance is sometimes referred to as Technologically Enhanced Naturally Occurring Radioactive Material, TENORM, defined as "natural sources of radiation which would not normally appear without some technological activity not expressly designed to produce radiation.” Grefer, 02-1237 at p. 9, fn. 11; 901 So.2d at 1128, fn. 11.

      . Grefer, supra, 02-1237 at pp. 1-9, 901 So.2d at 1124-49, sets forth a fuller history of the oilfield discovery and response to the identification of NORM/TERM, and the Grefer landowners’ course of dealing with the condition of the property which is the subject of their lawsuit and the instant one.

      . "Toxic dust” refers to radioactive elements including uranium and thorium and their decay products, as well as arsenic, barium, cadmium, lead, mercury, selenium, silver, and nickel.

      .La. C.C.P. art. 592 A(3)(b) states:
      If the court finds that the action should not be maintained as a class action, the action may continue between the named parties. In either event, the court shall give in writing its findings of fact and reasons for judgment. ... A suspensive or devolutive appeal ... may be taken as a matter of right from an order or judgment provided for herein.

      . In addition to the five part A prerequisites, Article 591 B requires that one of the three following criteria be met to satisfy the certification requirements: (1) The prosecution of separate actions by or against individual members of the class would create a risk of (a) inconsistent or varying adjudications that would establish incompatible standards of conduct for the party opposing the class, or (b) Adjudications with respect to individual members of the class would, as a practical matter, be dispositive of the interests of other class members not parties to those adjudications or would substantially impair/impede their ability to protect those 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 is superior to other methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include: (a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions, (b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class, (c) The desirability or undesirability of concentrating the litigation in the particular forum; (d) The difficulties likely to be encountered in the management of a class action, (e) The practical ability of individual class members to pursue their claims without class certification, (f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation[.]

      . The judgment referred to the plaintiffs’ failure to establish the plausible numerosity, i.e., numerosity is not shown by mere allegations of a large number of potential claimants, or, in the case of a mass tort, by showing a certain population within a certain geographic radius or proximity of the event. Boyd v. Allied Signal, Inc., 03-1840, pp. 11-12 (La.App. 1 Cir. 12/20/04), 898 So.2d 450, 457, quoting Hampton, supra.

        . La. C.C.P. art. 592 B(2) lists requirements for notice to all putative members of the class, including an election form should a putative member desire to be excluded from the action. Article 592 B(2)(c) states that the judgment, favorable or not, will include all members who do not request exclusion from the class.

      . Patricia Williams, Ph.D., who made a "community health assessment” based on self-reported Proof of Claim forms completed by 2,351 putative plaintiffs but examined only a handful of medical records, did not include in her assessment asymptomatic people who lived or worked in the designated class area, and she based conclusions on Dr. Biggs' "flawed” air dispersion modeling. (See Judgment, p. 6, fn 3.)

      . The Special Master reported, "Based upon the evidence presented the proposed class is not susceptible of a definition.... The proof offered does not support a useful basis for a class definition in this instance. It would include persons who are alleged to be affected by the activity on the 'Property' regardless of whether the resided there, worked there or simply drove by the area. Accordingly, the proposed definition and the proof offered to support it is legally insufficient because it does not define an objective group of persons who would be bound by res judicata. La. Code Civ. Proc. art. 591(A)(5).”

      . We reiterate that we do not analyze the case under La. C.C.P. art. 591 B because to do so would be irrelevant: "The second level of analysis for determining whether to certify a class action is governed by La.Code Civ. Proc. Art. 591 B. A court reaches this level of analysis only if it finds that all the requirements of article 591 A have been satisfied.” Dupree v. Lafayette Insurance Company, 2009 WL 3287607, *9, 09-0321 (La.App. 4 Cir. 10/14/09), - So.3d -.

      . We recognize the weighing of concerns for "small” claims, inconsistency iii results, rights of absentees, and legislative policy considerations set forth by the McCastle Court, 456 So.2d at 619, and the record of this case shows that the trial court amply heard and reviewed and weighed sufficient evidence to support its denial of class certification in this case. While the Supreme Court reversed the appellate court and allowed the class action, the facts of McCastle are distinguishable from the factual scenario at bar.

      . The Special Master, Fred L. Herman, wrote on January 31, 1008, in his Special Master Recommendation:
      Based upon the evidence presented the proposed class is not susceptible of a definition. If the class is accepted as argued by the Plaintiffs, it would include persons who had only a very remote connection to the property without regard to proximity and time. The proof offered does not support a useful basis for a class definition in this instance .... [and] is legally insufficient because it does not define an objective group of persons who would be bound by res judicata. ... The aggrieved parties will have an opportunity to present their claims individually.
      The trial court judgment stated, "Plaintiffs ... have no evidence whatsoever of actual contamination.”

      . C.C.P. art. 592 D states in pertinent part: "When appropriate an action may be brought or maintained as a class action with respect to particular issues, or a class may be divided into subclasses and each subclass treated as a class." [emphasis added]


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Alfonso RHONE, Plaintiff-Appellant, v. Kelly WARD, Warden, et al., Defendants-Appellees.
    No. 45,008-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 3, 2010.

      Alfonso Rhone, In Proper Person.
    James D. “Buddy” Caldwell, Attorney General, Kenneth M. Henke, George 0. Luce, Special Assistant Attorneys General, for Appellees, Kelly Ward and Michael Rhodes.
    Louisiana Department of Justice by David G. Sanders, for Appellee James D. “Buddy” Caldwell.
    Before BROWN, WILLIAMS and LOLLEY, JJ.
   WILLIAMS, J.

| ¶ At issue in this appeal is the constitutionality of LSA-R.S. 15:118G(B)(2)(c), a provision of the Prison Litigation Reform Act (“PLRA”), which allows the dismissal of a civil action filed by a prisoner if the prisoner fails to pay the court costs or fees within three years from the date the costs or fees were incurred. Finding no constitutional violation, we affirm the dismissal of the civil action fried by appellant, Alfonso Rhone.

FACTS

On July 28, 1998, Alfonso Rhone, a prisoner at David Wade Correctional Center, filed a complaint with the Department of Corrections Administrative Remedy Procedure (“CARP”), alleging that he suffered medical problems caused by drinking contaminated water at the facility while he was incarcerated. He later filed a civil action in district court based on his complaint, and was allowed to proceed in for-ma pauperis, pursuant to LSA-R.S. 15:1186(B)(2). Although Rhone was granted permission to proceed informa pauper-is, in accordance with Section 15:1186(A)(2), he was required to pay the initial filing fee, in addition to all costs that accrue thereafter. Rhone failed to pay the filing fee or any other costs associated with this matter.

On October 15, 2003, the defendants filed a motion to enforce the automatic stay provision of the statute, requesting that the proceedings be stayed until all court costs were paid. The trial court granted the stay and Rhone fried a lawsuit seeking to have the automatic stay provision of the |2statute declared unconstitutional. The trial court denied relief. This court affirmed, rejecting Rhone’s claim that the statute was unconstitutional. This court also rejected Rhone’s argument that the statute could not be retroactively applied. Rhone v. Ward, 39,701 (La.App.2d Cir.5/11/05), 902 So.2d 1258 (“Rhone I”).

Subsequently, the Supreme Court granted Rhone’s writ application and remanded the matter to this court “to reconsider the retroactivity issue in light of Cheron v. LCS Corrections Services, Inc., 2004-0703 (La.1/19/05), 891 So.2d 1250.” On remand, this court rejected Rhone’s argument that the application of the statute to his lawsuit was improper. Rhone v. Ward, 39,701 (La.App.2d Cir.4/12/06), 926 So.2d 774, writ denied, 2006-1227 (La.9/29/06), 937 So.2d 861 (“Rhone II ”). We concluded as follows:

[W]e do not find that consideration of the retroactivity issue in light of Cheron, supra, would lead to the conclusion that application of the automatic stay to Rhone’s suit was improper. Applying Act 89 in Cheron’s case would have divested him of vested rights by the dismissal of his suit for having failed to exhaust administrative remedies prior to filing his tort claim. Here, application of the automatic stay does not divest Rhone of vested rights in his suit. His suit has not been dismissed. Rather, it is stayed pending payment of costs of fees which have accrued. In Rhone v. Ward, 39,701 (La.App.2d Cir.5/11/05), 902 So.2d 1258, we rejected the challenges to the constitutionality of the automatic stay provision. In doing so, we reasoned that the automatic stay provision discourages the filing of frivolous suits as well as unnecessary motions or discovery requests that prolong litigation, increase expenses, and strain limited judicial resources. Rhone may proceed with litigation of his claim upon payment of accrued costs and fees. We note that under La. R.S. 15:1186(B)(2)(c), Rhone’s suit may be subject to dismissal if costs are not paid within three years from |swhen they are incurred. However, that eventuality is not before us.

Id. at 778.

Thereafter, Rhone failed to pay fees and costs for more than three years. On April 29, 2009, the defendants filed an “Ex-Parte Motion to Dismiss for Abandonment,” pursuant to LSA-R.S. 15:1186(B)(2)(c). The district court granted the motion. Subsequently, the court denied Rhone’s motion to set aside the judgment of dismissal. Rhone appeals.

DISCUSSION

Rhone contends LSA-R.S. 15:1186(B)(2)(c) violates the equal protection clause of the Louisiana Constitution and deprives him of his right to access of the courts, as guaranteed by Article I, § 22 of the Louisiana Constitution. LSA-R.S. 15:1186(B)(2)(c) provides:

If the prisoner does not pay the full court costs or fees within three years from when they are incurred, the suit shall be abandoned and dismissed without prejudice. This provision shall be operative without formal order, but, on the court’s own motion or upon ex parte motion of any party, the clerk or other interested person by affidavit which provides that the full court costs and fees have not been paid within three years from when they were incurred, the trial court shall enter a formal order of dismissal as of the date of its abandonment.

Legislation is deemed a solemn expression of legislative will. LSA-C.C. art. 2. Statutes are presumed to be constitutional and their constitutionality will be preserved “when it is reasonable to do so.” State v. Granger, 2007-2285 (La.5/21/08), 982 So.2d 779, 786, quoting State v. Fleury, 2001-0871 (La.10/16/01), 799 So.2d 468, 472.

|4Since statutes are presumed to be constitutional, “the party challenging the validity of a statute generally has the burden of proving unconstitutionality.” State v. Granger, supra, at 786, quoting Moore v. RLCC Techs., Inc., 95-2621 (La.2/28/96), 668 So.2d 1135, 1140. To satisfy this burden, the challenging party must cite the specific constitutional provision that prohibits the legislative action. State v. Granger, supra; State v. Fleury, supra.

Equal Protection

As noted above, Rhone argues that LSA-R.S. 15:1186(B)(2)(c) violates the equal protection clause of the Louisiana Constitution. La. Const. Art. I, § 3 provides:

No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.

The United States Constitution and the Louisiana Constitution require that there exist a rational basis for laws which discriminate between similarly situated groups of persons (who are not members of a “suspect class”). See, Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974); State v. Brown, 94-1290 (La.1/17/95), 648 So.2d 872. When legislation classifies individuals on any basis other than those set forth in Art. I, § 3 (race or religious ideas, beliefs, or affiliations, birth, age, sex, culture, physical condition, or political ideas or affiliations), the party | schallenging the constitutionality of the legislation has the burden of showing that the classification does not suitably further any appropriate state interest. Sibley v. Board of Sup’vrs of Louisiana State Univ., 477 So.2d 1094 (La.1985). In Rhone I, supra, we stated:

Neither indigents nor prisoners are suspect classes for equal protection purposes. Additionally, an inmate does not have a fundamental right to file a cost-free suit for damages.

Id., at 1262 (internal citations omitted).

Thus, LSA-R.S. 15:1186(B)(2)(e) clearly does not affect any fundamental right. Additionally, it is not discriminatory on the basis of any classification set forth in the equal protection clause of the Louisiana Constitution. Therefore, Rhone has the burden of demonstrating that the statutory provision does not further any legitimate state interest.

In Rhone I, suprra, with regard to the automatic stay provision of LSA-R.S. 15:1186, we stated:

[T]he purpose of the PLRA is to curtail baseless and nuisance suits by prisoners. Reducing such suits and lessening the burdens such suits place on our court system and judicial resources are legitimate state interests. The automatic stay provision furthers these state interests by requiring indigent prisoners to pay the costs of litigation as they accrue. This discourages prisoners from filing suits that lack merit and that are filed for recreational or harassment purposes. It also discourages the filing of unnecessary motions and discovery requests that prolong litigation, increase the costs for litigants, and strain limited judicial resources. By knowing that their civil suit will be stayed pending payment of costs and fees associated with litigation, prisoners who might otherwise file countless unworthy suits are led to weigh the costs of litigation to determine whether they have a claim worthy of pursuit and | ^expenditure of their limited monetary resources.

Id., at 1262.

The same reasoning applies herein. The abandonment provision of the PLRA furthers the legitimate state interest of curtailing meritless civil lawsuits by requiring indigent prisoners to pay the costs of litigation as they accrue. An indigent prisoner — who knows that his or her lawsuit may be deemed abandoned and dismissed for failure to pay costs — may be persuaded to weigh the costs of litigation prior to filing a civil lawsuit. Therefore, we find that the abandonment provision of LSA-R.S. 15:1186(B)(2) is supported by a rational basis reasonably related to a legitimate governmental interest. Accordingly, we conclude that LSA-R.S. 15:1186(B)(2)(c) does not violate the equal protection clause of our state constitution.

Access to the Courts

Rhone also contends LSA-R.S. 15:1186(B)(2)(c) deprives him of his right to access of the courts. La. Const. Art. I, § 22 provides:

All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.

It is well settled that prisoners have a constitutional right of access to the courts. Rochon v. Roemer, 98-2444 (La.1/7/94), 630 So.2d 247, cert. denied, 512 U.S. 1224, 114 S.Ct. 2716, 129 L.Ed.2d 841 (1994); Rhone I, supra. However, a prisoner’s right to sue for civil damages does not |7involve a fundamental constitutional right. Rhone I, supra; Taylor v. Broom, 526 So.2d 1367 (La.App. 1st Cir.1988); see also, Carson v. Johnson, 112 F.3d 818, 821-22 (5th Cir.1997) (“Neither prisoners nor indigents constitute a suspect class”). Thus, when a claimant is asserting a right not subject to a special constitutional protection, access to the courts may be restricted if there is a rational basis for the restriction. Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973); Everett v. Goldman, 359 So.2d 1256 (La.1978); Rhone I, supra.

As noted above, the abandonment provision restricts access to the courts pending payment of filing fees and court costs associated with civil lawsuits filed by prisoners. The statute allows dismissal of such lawsuits, without prejudice, if the prisoner fails to pay the costs or fees within three years from the date they are incurred. As noted above, the abandonment provision discourages the filing of nuisance lawsuits by requiring indigent prisoners to weigh the costs of litigation against the merits of any potential claims. The application of the statutory provision is limited because it does not require the dismissal of all suits filed by prisoners, and thus, does not bar their access to the courts. Accordingly, we find no merit to Rhone’s argument that the abandonment provision is contrary to La. Const. Art. I, § 22.

CONCLUSION

For the reasons set forth herein, we find that LSA-R.S. 15:1186(B)(2)(c) does not violate the constitution, and we affirm the judgment of the district court dismissing Rhone’s lawsuit without prejudice. |sCosts of the appeal are assessed to the appellant, Alfonso Rhone.

AFFIRMED.

      . If a prisoner brings a civil action or files an appeal or writ application in forma pauperis, the prisoner shall still be required to pay the full amount of a filing fee. LSA-R.S. 15:1186(A)(2).


author: MAX N. TOBIAS, JR., Judge.

text:
    Nathaniel DOWL, Jr., Individually and as Administrator of the Succession of Nathaniel Dowl, Sr. v. REDI CARE HOME HEALTH ASSOCIATION d/b/a Redi Care/Primary Medical Group and the XYZ Insurance Company. Nathaniel Dowl, Jr. v. Scottsdale Insurance Company and Louisiana Patients’ Compensation Fund.
    Nos. 2009-CA-1300, 2009-CA-1301.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 3, 2010.
    Rehearing Denied Feb. 24, 2010.

      Nathaniel Dowl, Jr., New Orleans, LA, pro se Plaintiff/Appellant.
    James C. Young, Philip R. Sims, Loretta O. Hoskins, Chaffe McCall, L.L.P., New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   MAX N. TOBIAS, JR., Judge.

|tNathaniel Dowl, Jr., appeals the trial court’s judgment dismissing with prejudice his suit seeking court approval of a 2002 settlement of a medical malpractice claim and demand for payment from the Louisiana Patient’s Compensation Fund on exceptions of lack of subject matter jurisdiction, res judicata, prescription, and no cause of action, and further imposing conditional sanctions. He also appeals the denial of his motion for new trial. The Louisiana Patient’s Compensation Fund and The Louisiana Patient’s Compensation Fund Oversight Board (collectively, the “PCF”) have answered the appeal seeking modification of the trial court judgment and damages for frivolous appeal.

For the reasons that follow, we affirm the trial court’s dismissal of the appellant’s case with prejudice on the exception of no cause of action, its imposition of sanctions, and its denial of the motion for new trial. We further grant the PCF’s request for modification of the trial court judgment and award damages for frivolous appeal.

Nathaniel Dowl, Sr. died in April 2000 allegedly as a result of the negligent home care provided by Redi Care Home Health Association (“Redi Care”) and Dr. David Bass (“Dr. Bass”), a Veterans Administration Medical Center (“VA”) 12physician providing home health care assistance. Following his death, the decedent’s son, Nathaniel Dowl, Jr. (“Dowl”), appellant herein, filed two lawsuits.

In the first suit filed in 2001, Dowl sued Redi Care asserting negligence claims related to his father’s demise. Dowl filed a supplemental and amending petition adding Redi Care’s insurer, Scottsdale Insurance Company (“Scottsdale”) as a defendant. At no time, in his original or supplemental and amending petitions, did Dowl aver that Redi Care was a qualified health care provider under Louisiana’s Medical Malpractice Act, La. R.S. 40:1299.41, et seq. (the “MMA”), nor did he name the VA or any VA physician as a defendant in the case.

After Redi Care sought debtor relief under the U.S. Bankruptcy Code, which stayed the proceedings against them, Dowl and Scottsdale agreed to settle the case. On 23 September 2002, Dowl executed a General Release and Indemnity Agreement, whereby in consideration of $100,000.00, he settled all rights he possessed against Scottsdale and Redi Care. In addition, except for retaining any rights he might have solely against the VA, Dowl released all other parties, known or unknown, and all claims he might have arising out of the alleged negligence related to his father’s death. Specifically, the Agreement provides, in pertinent part:

That I, Nathaniel Dowl, Jr., for the sole consideration of the sum of ONE HUNDRED THOUSAND AND NO/100 ($100,000.00) DOLLARS, ... in hand paid by Scottsdale Insurance Company, for itself and for and on behalf of its insured, Redi Care Home Health Association, to me ..., the receipt whereof is hereby acknowledged, in consideration of which I do hereby release and forever discharge Redi RCare Home Health Association and Scottsdale Insurance Company, their officers, directors, agents, employees, subsidiaries, assignees, successors, adjusters, investigators, attorneys, and any and all other named or unnamed parties or insured, and all other persons or entities without any limitation whatsoever, excepting the claims reserved hereinafter against the Department of Veterans Affairs, of and from any and all claims or demands of whatsoever nature, for or because of any matter or thing done, omitted or suffered to be done by the Released Parties prior to including the date hereof, and particularly on account of any and all claims which I have or may have, or which Nathaniel Dowl, Sr. had, or may have had for bodily injury, wrongful death, pain, suffering, and all general and special damages, all loss, expense, medical expenses, attorney’s fees, penalties, costs, and any and all other damages of whatsoever kind or nature arising from acts or omissions of Released Parties or any of them during the course of home health or other medical services to Nathaniel Dowl, Sr. from and after December 1, 1999, including particularly, but exclusively, negligence or alleged negligence in the prevention, care or treatment of decubitus ulcers, and other medical conditions which allegedly resulted in Nathaniel Dowl, Sr.’s death on April 23, 2000.
The aforesaid payments ... are received in full compromise and settlement of any and all claims which I have or may have, individually, or in my capacity as Administrator of the Estate of Nathaniel Dowl, Sr., asserted or which might have been asserted in the matter entitled: “Nathaniel Dowl, Jr., individually, and as Administrator of the Succession of Nathaniel Dowl, Sr. v. Redi Care Home Health Association, d/b/a Redi Care/Primary Medical Group and The XYZ Insurance Company,” docket number 2001-6899 on the docket of the Civil District Court for the Parish of Orleans, State of Louisiana, and authorize and instruct my counsel of record to file a motion dismissing said suit with prejudice, each party to bear its own costs. [Emphasis supplied.]

I.,On the same day the settlement agreement was executed, the district court signed and issued a Final Order of Dismissal stating that “all claims asserted herein by plaintiff, Nathaniel Dowl, Jr., individually and as Administrator of the Succession of Nathaniel Dowl, Sr ... be and they are hereby dismissed, with prejudice ...”

Nearly four years after his father’s death, and over fifteen months after executing the release and the dismissal of his first lawsuit with prejudice, Dowl, appearing pro se, filed a second action seeking judicial approval of the original 2002 settlement and demanding payment from the PCF. The petition asserted claims against Scottsdale, the VA, and the PCF. On the same day, Dowl amended his petition, adding Dr. David Bass, the alleged treating physician from the VA, as a defendant. No allegations of liability were alleged on the part of Dr. Bass. In addition, Dowl filed a pauper application, that was granted. On Dowl’s motion, the 2004 action was consolidated with the original 2001 suit.

At the time Dowl filed his 2004 action, his former claims against Redi Care and Scottsdale had been compromised in full by the release executed by the parties and the order of dismissal signed by the district court. Scottsdale and the PCF filed numerous exceptions, including an exception of res judicata, to the 2004 action. At the hearing on the exceptions, the trial court determined that the case did not involve a MMA qualified health care provider and, consequently, Dowl had no claim against the PCF. Having determined the MMA did not apply, the trial court further held the settlement of the 2001 suit did not require court approval. Accordingly, the trial court granted the exceptions of res judicata filed by |sScottsdale and the PCF, and declared the remaining issues moot. Due to his $100,000 settlement, the trial court also revoked Dowl’s pauper status.

Following the hearing on the exceptions, but prior to the signing of the judgment, Dowl filed a motion to reopen testimony, which the court treated as a motion for new trial. The court denied the motion stating that Dowl failed to present any new evidence or show that the judgment was contrary to the law or evidence. Following Dowl’s appeal of the judgment, this Court affirmed. Dowl v. Redi Care Home Health Association, 04-1182 (La.App. 4 Cir. 4/6/05), 917 So.2d 434. Dowl’s subsequent application for review to the Louisiana Supreme Court was denied on 25 November 2005, at which time the judgment became final and definitive. Dowl v. Redi Care Home Health Association, 05-1187 (La.11/28/05), 916 So.2d 146.

In August 2008, Dowl filed a second “Petition for Court Approval of the Settlement of a Medical Malpractice Claim and Claimant Demand for Payment of Damages from the Patient’s Compensation Fund,” seeking approval of the same $100,000 settlement confected with Redi Care and Scottsdale in 2002, which he contends purportedly settled the liability of Redi Care and its employees, including a Dr. Joseph Braud. Dowl avers the PCF is liable for additional funds pursuant to the MMA for negligent acts resulting in his father’s death. According to Dowl, the |,;PCF is liable because Dr. Braud was a qualified health care provider in 2000 when the negligent acts occurred.

The PCF filed an objection to Dowl’s second petition for court approval of the 2002 settlement agreement, in addition to exceptions of lack of subject matter jurisdiction, res judicata, prescription and no cause of action. The PCF also moved for La. C.C.P. art. 863B sanctions against Dowl for filing claims against the PCF, because the appellate courts had declared his claims to be unfounded. Additionally, without notice to the PCF, Dowl filed another affidavit seeking pauper status, thereby reviving his previously revoked pauper status. At a hearing held on 12 December 2008, the pauper order was rescinded. Thereafter, following a subsequent hearing on 30 January 2009, the trial court rendered a judgment sustaining the PCF’s exceptions of lack of subject matter jurisdiction, res judicata, prescription, and no cause of action, dismissing all claims of Dowl against the PCF with prejudice at Dowl’s cost. Additionally, the court granted the PCF’s request for sanctions, assessing $1,000 against Dowl, made payable only in the event Dowl filed any future motions or pleadings or otherwise pursued his claims against the PCF. Dowl filed a motion for new trial that was denied.

Dowl devolutively appealed the trial court’s judgment dismissing his case setting forth four assignments of error. He alleges the trial court erred by: (1) allowing the PCF to raise exceptions; (2) sustaining the PCF’s exceptions of subject matter jurisdiction, res judicata, prescription, and no cause of action and the PCF’s request for sanctions; (3) failing to find Dowl’s petition for court approval of a settlement was unopposed; and (4) refusing to grant Dowl’s motion for new trial.

_JjThe PCF answered Dowl’s appeal seeking to have the trial court’s 30 January 2009 judgment modified and/or revised to: (1) recognize the $1,000 sanctions award against Dowl as collectible based on Dowl’s continued pursuit of his claims against the PCF, and (2) order Dowl to pay court costs incurred by him and by the PCF in the trial court in accordance with La. C.C.P. arts. 5186 and 5188. The PCF further seeks an award of damages, including attorney’s fees and costs, for frivolous appeal.

In Dowl’s first assignment of error, he contends that pursuant to the MMA, the PCF is without authority, whether the health care provider is qualified or not, to raise exceptions concerning the court approval of a settlement. This assignment is without merit.

When a settlement is governed by the MMA, the PCF cannot raise objections to a petition for approval of a settlement after the liability of a qualified health care provider is statutorily admitted by payment of $100,000. Tucker v. Lain, 98-2273, pp. 12-13 (La.App. 4 Cir. 9/5/01), 798 So.2d 1041, 1048-1049; Reed v. St Charles General Hospital, 08-0430, 08-0431, 08-0570, 08-0573 (La.App. 4 Cir. 5/6/09), 11 So.3d 1138; Harrison v. Smith, 02-477, pp. 8-9 (La.App. 5 Cir. 11/26/02), 832 So.2d 1064, 1069-1070. However, the MMA permits the PCF to assert exceptions under certain circumstances. Specifically, La. R.S. 40:1299.44 D(2)(b)(x) provides that the PCF shall be responsible and have full authority under the law for the defense of the fund and to specifically “[d]efend the fund from all claims due wholly or in part to the negligence of liability of anyone other than a qualified health care provider regardless of whether a qualified health care provider has settled and paid its statutory maximum or has been adjudged liable or negligent.” Additionally, La. R.S. 40.1299.44 C(3) provides that “[t]he | sboard and the insurer of the health care provider or the self-insured health care provider as the case may be, may file written objections to the payment of the amount demanded.” Thus, the rule prohibiting the PCF from filing exceptions and/or objections does not apply in cases where the settlement does not involve the PCF and a settlement does not involve a qualified health care provider under the MMA.

In the instant case, no dispute exists that the 2002 settlement agreement does not involve the PCF. Thus, in order to determine whether the trial court properly ruled that the PCF had authority to raise the exceptions to Dowl’s second petition for approval of the settlement, we must determine whether the settlement at issue is governed by the MMA. For the reasons that follow, we find the settlement is not governed by the MMA and that the trial court properly allowed the PCF to raise exceptions to Dowl’s second petition for approval of the settlement.

At the outset, we note that in Doivl v. Redi Care Home Health Ass’n, 04-1182 (La.App. 4 Cir. 4/6/05), 917 So.2d 434, this court previously determined that the 2002 settlement agreement entered into between Dowl and Scottsdale, reserving Dowl’s rights against the VA, was not an agreement governed by the MMA requiring court approval because it was not a settlement that involved a MMA qualified health care provider. Id., 04-1182, pp. 9-10, 917 So.2d at 442. Specifically, we determined that Redi Care was not a MMA qualified health care provider because it failed to comply with the requirements to become qualified. Additionally, citing Johns v. Agrawal, 00-0499, 99-0500, p. 7 (La.App. 4 Cir. 11/17/99), 748 So.2d 514, 519, we held the VA does not qualify as a qualified health care provider under the MMA. See Dowl, 04-1182, p. 8, 917 So.2d at 440. These determinations became final and definitive when the Supreme Court denied |gDowl’s application for supervisory writs. Dowl v. Redi Care Home Health Ass’n, 05-1187 (La.11/28/05), 916 So.2d 146. Accordingly, we hold these findings are res judicata and that our prior determination that the 2002 settlement agreement is not governed by the MMA is conclusive. See La. R.S. 13:4231(3).

We further find that Dowl’s assertions in various filed pleadings that Dr. Braud was a MMA qualified health care provider at the time of the alleged negligence does not operate to somehow now bring the 2002 settlement agreement within the purview of the MMA. The record is devoid of any evidence establishing Dr. Braud ever medically treated Dowl’s father or, even assuming he did treat the decedent, that Dr. Braud was a MMA qualified health care provider in 2000 at the time of the alleged negligent treatment and the decedent’s subsequent death. At no time did Dowl file a petition for medical review against Dr. Braud in connection with his father’s death as required by La. R.S. 40:1299.47 A(l)(a), which provides that “[a]ll malpractice claims against health care providers covered | inby this Part ... shall be reviewed by a medical review panel.” If, as Dowl contends, but which the record does not support, that Dr. Braud was a MMA qualified health care provider, Dowl was obligated to seek a medical review panel under La. R.S. 40:1299.47; pursuant to La. R.S. 9:5628, he was required to request a review of the malpractice claim before a medical review panel within one year from the date of his father’s death in April 2000. See Carter v. Ochsner Clinic Foundation, 07-889, p. 6 (La.App. 5 Cir. 3/11/08), 978 So.2d 562, 565 (“in a malpractice case in which the victim of the alleged malpractice dies, the damage resulting from the alleged malpractice is readily apparent. Thus, in a malpractice action for wrongful death, the prescriptive period begins running on the date of the malpractice victim’s death since that is the date the claimants are injured.”)

In summary, all malpractice claims against a MMA qualified health care provider must be reviewed by a medical review panel. La. R.S. 40:1299.47 A(l)(a). The procedure is initiated by filing a request for review with the Louisiana Division of Administration, which forwards the request to the PCF. La. R.S. 40:1299.47 A. The MMA prohibits the filing of a medical malpractice action against a MMA qualified health care provider pri- or to presenting the complaint to a medical review panel. La. R.S. 40:1299.47 B(l)(a)(i); see also LeBreton v. Rabito, 97-2221, p. 8 (La.7/8/98), 714 So.2d 1226, 1230. Dowl’s | ninitial filing of the wrongful death action in 2001 against Redi Care, a non MMA qualified health care provider (wherein Dr. Braud was not named as a party defendant), did not interrupt the one-year prescriptive period within which Dowl was required to request a review of the alleged malpractice claim against Dr. Braud as a MMA qualified health care provider and solidary obligor. Although the filing of a suit against a party suspends the prescriptive period against solidary ob-ligors under the general law of prescription of delictual claims, the one-year prescriptive period for claims against Dr. Braud could only be interrupted by filing a request for review of the malpractice claim under the provisions of the MMA, which Dowl has never done. See LeBreton, supra; Mitchell v. Rehabilitation Institute of New Orleans, Inc., 06-0910, pp. 8-9 (La.App. 4 Cir. 2/14/07), 953 So.2d 75, 79-80.

In short, some seven-and-a-half years after his father’s death, and five years after settling all claims related to that death and releasing all parties potentially liable for causing that death, Dowl is now trying to establish Dr. Braud’s qualified health care provider status by implying that he was somehow a party to the prior settlement agreement because he was an employee of Redi Care (a named party to |12the Agreement). For the reasons outlined above, Dowl’s efforts come too late, and any claim he may have had against Dr. Braud prescribed one year from the date of his father's death. Additionally, we find that Dowl has failed to establish that Dr. Braud was a MMA qualified health care provider — either before, at the time of, or after — his father’s death, or that he was a party to the 2002 settlement agreement entered into between Dowl and Scottsdale. Accordingly, any claim Dowl may have had against Dr. Braud was released at the time Dowl executed the settlement agreement. Finally, we find that contrary to Dowl’s assertions, he has failed to establish that the settlement of his claims relating to the death of his father was with a MMA qualified health care provider under the MMA or that he has a valid claim against the PCF for additional funds pursuant to the MMA.

As the settlement agreement at issue herein does not involve the PCF and is not a settlement under the MMA, the trial court properly allowed the PCF to raise exceptions to Dowl’s second petition for approval of the settlement. Accordingly, Dowl’s first assignment of error is without merit.

Dowl next contends the trial court erred in sustaining the PCF’s exceptions of subject matter jurisdiction, res judicata, prescription, and no cause of action, and the PCF’s request for sanctions. From the standpoint of purely logical application of basic legal principles of Louisiana law, discussed above, the trial court’s ruling is well considered; however, our choice is to dispose of Dowl’s appeal by affirming the trial court’s judgment granting the PCF’s exception of | 1sno cause of action and pre-termitting a discussion of the exceptions of subject matter jurisdiction, res judicata and prescription.

In order for courts to entertain an action, there must be a justiciable controversy at issue. Superior Oil Co. v. Reily, 284 La. 621, 629, 100 So.2d 888, 891 (La.1958); Gibson v. State, 03-1112, p. 4 (La.App. 5 Cir. 2/10/04), 866 So.2d 375, 378. In the instant case, the matter presented to the court consists of a pleading filed by Dowl in 2008 captioned, “Petition for Court Approval of the Settlement of a Medical Malpractice Claim and Claimant’s Demand for Payment of Damages from the Patient’s Compensation Fund.” We are of the opinion that Dowl’s petition does not create a justiciable controversy. Dowl has failed to show any justiciable controversy because he has failed to establish that Dr. Braud was a MMA qualified health care provider at the time of the alleged negligence or that he is otherwise entitled to any additional monies from the PCF in connection with the 2000 death of his father. Additionally, there is absolutely no evidence in the record substantiating Dowl’s contention that the 2002 settlement agreement between non-qualified health care providers and himself requires court approval. By sustaining the PCF’s exception of no cause of action, the district court made the determination that it did not. We agree and affirm.

Dowl avers the trial court erred in imposing sanctions against him on the basis that the PCF intentionally misconstrued the facts and law in this case. Dowl 114further contends this court should sanction the PCF “for their action.” We disagree on both counts.

The manifest error or clearly wrong standard applies to our review of the trial court’s decision to impose sanctions. In re Succession of Smith Watts, 04-1152, 04-1153, p. 7 (La.App. 4 Cir. 3/23/05), 901 So.2d 450, 455. The trial court has great discretion in deciding whether to impose sanctions; its determination to impose sanctions will not be reversed unless it is manifestly erroneous or clearly wrong. Bonilla v. Commodore Cruise Lines Ltd., 02-2182, pp. 6-7 (La.App. 4 Cir. 4/2/03), 844 So.2d 1025, 1029. Considering the record before us, which is devoid of any evidence suggesting that the PCF misconstrued facts or law in this case, we do not find that the trial court’s decision to impose sanctions against Dowl was manifestly erroneous or clearly wrong.

On the assumption that Dowl’s suggestion in his brief on appeal that “this Court should render sanctions against the PCF for their action” is actually a request for sanctions against the PCF, the request is denied. Dowl did not seek sanctions in the trial court. We cannot now address on appeal a request for sanctions that was never properly raised in the trial court. McDonald Enterprises, Inc. v. Age, 00-1938, p. 5 (La.App. 1 Cir. 11/9/01), 818 So.2d 70, 72.

In his third assignment of error, Dowl contends that his petition for approval of the settlement was unopposed because the PCF’s objections were untimely. The record indicates that while Dowl filed a memorandum in response to the PCF’s objections in the trial court, he did not object to the timeliness of the PCF’s filing of objections to his petition. Because Dowl failed to object below, the timeliness of the PCF’s objections will not be considered for the first time on appeal. Rule 1-3, Uniform Rules of Louisiana Courts of Appeal.

|1BIn his last assignment of error, Dowl argues the trial court erred in refusing to grant him a new trial on the basis that the trial court ruling is contrary to law. The trial court has wide discretion when deciding whether to grant a new trial. La. C.C.P. art. 1973. Despite the trial court’s wide discretion, we review the denial applying the abuse of discretion standard. Dowl, 04-1182, p. 7, 917 So.2d at 440. A motion for new trial may be denied in the absence of a clear showing of facts or law reasonably calculated to change the outcome or reasonably believed to have denied the applicant a fair trial. Williamson v. Haynes Best Western of Alexandria, Inc., 02-1076, p. 4 (La.App. 4 Cir. 1/21/04), 865 So.2d 224, 227.

Dowl requested a new trial on the basis that the judgment was “contrary to the law and evidence,” yet presented nothing new for the court to consider which would have warranted a new trial. His motion and memorandum merely reiterated the issues previously presented, considered, and decided by the trial court. Specifically, Dowl presented no new evidence demonstrating that he settled any claim with a MMA qualified health care provider or that he has a right to assert a claim against the PCF. Having reviewed the trial court’s determination within the abuse of discretion standard, and for all of the reasons set forth previously herein, we affirm the trial court’s decision to deny Dowl’s motion for new trial.

The PCF answered Dowl’s appeal requesting a modification of the district court’s 30 January 2009 judgment, which states:

Sanctions in the amount of $1,000.00 are hereby assessed against plaintiff, Nathaniel Dowl, Jr., with said sanctions to be collectible by defendants only in the event that plaintiff, Nathaniel Dowl, Jr., files any further motions or pleadings in this matter or otherwise continues to pursue his claims against the defendants.

11fiThe PCF asks this court to modify the lower court judgment to recognize that the $1,000 sanction award against Dowl is now collectible as a result of his continuing course of action against the PCF by filing a motion for new trial and by appealing the dismissal of his case. Having found sufficient cause to affirm the trial court’s imposition of sanctions against Dowl as noted above, we grant the PCF’s request for modification of the 30 January 2009 judgment, and order Dowl to pay the $1,000 within sixty days of the date of finality of this judgment.

The PCF further requests sanctions for frivolous appeal pursuant to La. C.C.P. art. 2164 and Rule 2-19 of the Uniform Rules of Louisiana Courts of Appeal. After thoroughly reviewing the record, we find merit to the PCF’s request.

Appeals are generally favored and an appellate court is thus restrained from granting damages for frivolous appeals because of the possible negative effect it may have on the appellate process. Winston v. Flamingo Casino, 99-0209, pp. 12-13 (La.App. 4 Cir. 9/22/99), 746 So.2d 622, 629. An appeal will be deemed frivolous if it does not present a substantial legal question or if it is obvious either that it was taken solely for delay or that appealing counsel (party) does not sincerely believe in the view of law that he advocates. Price v. City of New Orleans, 95-1851, p. 15 (La.App. 4 Cir. 3/27/96), 672 So.2d 1045, 1052-53. In this case, we are mindful of Dowl’s status as a pro se litigant and that a pro se plaintiff should be given more latitude than plaintiffs represented by counsel 117because they lack formal training in the law. See Bankston v. Alexandria Neurosurgical Clinic, 94-693, p. 4 (La.App. 3 Cir. 12/7/94), 659 So.2d 507, 510-511 (“Filing pro se offers a party neither an impenetrable shield nor a license to harass others, clog the judicial machinery with meritless litigation, or abuse already overloaded court dockets.”).

It is clear that no serious legal issue presented by Dowl in this appeal that has not previously been determined by this court in this case exists. We previously ruled that the settlement agreement, because it did not involve a MMA qualified health care provider, did not require court approval and that Dowl had no claim for additional money from the PCF for the death of his father. The trial court thoroughly explained to Dowl that, in settling the case and releasing all claims and all parties from liability arising out of his father’s death, including any claim he may have had against Dr. Braud, he is not entitled to any additional monies. Dowl was alerted by the district court as to the frivolous nature of his alleged claims against the PCF when the trial court awarded sanctions against him to be collectible if he persisted in pursuing his baseless claims. Nonetheless, Dowl proceeded with a motion for new trial and the instant appeal. And on appeal, Dowl presents no substantial legal issue; in fact, he does not even present a judiciable controversy to the court.

The attorney’s fee which an appellee must pay to defend a frivolous appeal has been held to be an element of damages. State Farm Mut. Auto. Ins. Co. v. Callahan, 571 So.2d 852, 855 (La.App. 3 Cir.1990). Consequently, we find that 11S$1,500.00 for damages in the form of attorney’s fees for the defense of this frivolous appeal should be awarded to the PCF and is assessed against Dowl.

Based on the foregoing, we affirm the trial court’s dismissal of Dowl’s petition for court approval of the settlement agreement on an exception of no cause of action and affirm its imposition of $1,000.00 in sanctions against Dowl, which we hold is now collectible by the PCF. We also find that Dowl has filed a frivolous appeal and, therefore, render judgment in favor of defendants, the Louisiana Patients’ Compensation Fund and the Louisiana Patient’s Compensation Fund Oversight Board, and against Dowl for $1,500.00 in damages. All costs of these proceedings are assessed against Dowl.

AFFIRMED; DAMAGES FOR FRIVOLOUS APPEAL IMPOSED.

      . Though Dowl did not name the VA or any VA physician in his suit, the malpractice petition did allege that, because of the substand-arc! care of Redi Care, bis father “had to be removed from his home to be admitted at The Veterans Administration Hospital.”

      . Immediately following the settlement, Dowl fired his attorney. It appears from the record that he has represented himself and appeared pro se in all proceedings since that time.

      . Dowl also filed a Motion to Annul the Judgment because it was not a La. C.C.P. art. 2592 summary proceeding. Also, prior to the hearing on the motion for new trial, the judge granted Dowl’s motion for devolutive appeal.

      . The court also stated that it lacked jurisdiction to rule on any alleged medical malpractice claims against Dr. Bass, who was employed by the VA at the time of the alleged negligence, because any alleged claim against him was not covered by the MMA.

      .The motion and order for appeal were premature because, at the time the motion was granted, no written judgment had been signed denying Dowl’s motion for new trial. Pursuant to La. C.C.P. art. 2087 D, the defect was cured, as a judgment following the hearing was subsequently signed.

      . La. R.S. 13:4231 provides:
      Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
      (1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the same transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
      (2) If the judgment is in favor of the defendant, all cause of action existing at the time of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
      (3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

      . It appears that Dowl posits that Dr. Braud was a MMA qualified health care provider and an employee of Redi Care at the time he negligently treated Dowl's father, and that because Dowl settled his claims against Redi Care for $100,000, and Dr. Braud was a qualified health care provider under the MMA at the time he negligently treated Dowl’s father, as a Redi Care employee, the $100,000 payment by Scottsdale on behalf of Redi Care was an admission of Dr. Braud’s liability, thereby triggering the liability of the PCF under the MMC. The record does not support this position. Moreover, the record is devoid of evidence that Dr. Braud was ever made a defendant in any of these proceedings or that he was a party to any settlement agreement in connection with the death of Dowl's father.

      . See also La. R.S. 40:1299.47 B(l)(a)(i) which requires that "[n]o action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section.”

      . La. R.S. 9:5628 controls the prescriptive period for medical malpractice actions stating that an action for damages against a health care provider must be brought within one year of the date of discovery of the alleged act and in any event witilin three years of the date of the alleged act.

      . At the veiy latest, the prescriptive period within which Dowl had to request a medical review panel would have be one year from the date of Dowl’s father's death.

      . Even if we were to assume Dr. Braud was a MMA qualified health care provider and that he negligently treated Dowl's father, any claim Dowl may have had against Dr. Braud would have prescribed one year from Dowl's father's death. Aside from prescription, the doctrine of res judicata required Dowl to bring all actions against parties, which would include Dr. Braud, for the negligent death of his father in his 2001 lawsuit. See La. C.C.P. art. 425 A, which provides that “[al party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” Additionally, pursuant to La. R.S. 13:4231(1), a final judgment that favors the plaintiff is conclusive as "to all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation.” Pursuant to La. C.C. art. 3080, "Ia] compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised.” Accordingly, the settlement agreement between Dowl and Scottsdale has the same preclusive effective as a judgment. Applying these legal principles to this case, any claim Dowl might have against Dr. Braud or the PCF for additional settlement monies is barred by the doctrine of res judicata.

      . Dr. Joseph Braud was clearly not a named party to the settlement agreement for which Dowl seeks court approval. The plain language of the 2002 settlement agreement states that it is between Nathaniel Dowl, Jr. and “Scottsdale Insurance Company for itself and for and on behalf of its insured. Redi Care Home Health Association.” Dr. Braud's name is not mentioned anywhere in tire settlement document.

      . We have previously indicated that any claim Dowl may have had against Dr. Braud, as an alleged qualified health care provider (which would have potentially obligated the PCF for the payment of additional funds under the MMA), are barred by the doctrine of res judicata and/or are prescribed for his failure to petition for a medical review of his claim in accord with the MMA within one year from the date of his father's death. We further note that until such time as Dowl has been through the medical review process before the PCF, the trial court was without subject matter jurisdiction except for purposes of making the determination as to whether Dowl properly proceeded through the medical review process; otherwise, any malpractice claim is premature and the court lacks jurisdiction. See LeBreton v. Rabito, supra.

      . La. C.C.P. art 2164 states:
      The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

      . Uniform Rules, Courts of Appeal, Rule 2-19 provides that ''[tjhe court may award damages for frivolous appeal in civil cases as provided by law.”