author: EDWIN A. LOMBARD, Judge.

text:
    Eddy OLIVER, Oscarlene Nixon and Mildred Goodwin v. ORLEANS PARISH SCHOOL BOARD.
    No. 2009-CA-0489.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2009.

      Willie M. Zanders, Sr., Walter I. Willard, The Willard Law Firm, Suzette P. Bagneris, The Bagneris Firm, L.L.C., Roderick Alvendia, Alvendia, Kelly & Demar-est, L.L.C., Anthony D. Irpino, Irpino Law Firm, L.L.C., Juana Marine-Lombard, Law Office of Juana Marine-Lombard, Clarence Roby, Jr., Law Offices of Clarence Roby, Jr., APLC, Larry Samuel, Rit-tenberg Samuel & Phillips, L.L.C., New Orleans, LA, for Eddy Oliver, et al.
    Michael H. Rubin, M. Brent Hicks, Jon Ann Giblin, McGlinchey Stafford, PLLC, James D. “Buddy” Caldwell, Attorney General, Angelique D. Freel, Assistant Attorney General, Baton Rouge, LA, for The State of Louisiana, The State Board of Elementary and Secondary Education, The State Department of Education and The Recovery School District.
    William D. Aaron, Jr., Renee F. Smith, Goins Aaron, P.L.C., New Orleans, LA, for Orleans Parish School Board.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

| j Plaintiffs, who were all certified, tenured, or permanent public school employees in August 2005, filed suit against Defendants, the Orleans Parish School Board (OPSB), the State of Louisiana, the State Board of Elementary and Secondary Education, and the Recovery School District (collectively referred to as the “State Defendants”), alleging that they were unlawfully terminated from their positions following Hurricane Katrina. After a hearing, the trial court certified the case as a class action on December 10, 2008 and Defendants filed this timely appeal. Because we find that Plaintiffs have satisfied all of the statutory requisites for a class action, we affirm the decision of the trial court.

Facts and Procedural History

Two months after Hurricane Katrina devastated the city of New Orleans, several public school employees, including Eddy Oliver, a public school principal, Oscarlene Nixon, a para-professional/teacher’s aide, and Mildred Goodwin, a custodian, originally filed this action as a Petition for Injunctive Relief and Declaratory Judgment seeking to protect their pre-Katrina employment at public schools which were being reopened as Charter Schools. A temporary restraining order was denied and petitioners amended their lawsuit to seek additional relief.

12Prior to the scheduled hearing for a preliminary injunction, Governor Kathleen Blanco called a special session of the Louisiana Legislature, during which the Legislature amended the State’s education statutes to allow the immediate takeover of all schools deemed “failing” by the New Orleans Public Schools pursuant to Act 35. (La. R.S. 17:1990; Act 35, First Extraordinary Session, effective. Nov. 30, 2005). This Act allowed the mass takeover of 102 New Orleans Public Schools by the Louisiana State Department of Education and the Louisiana Recovery School District under the direction and control of the State Board of Elementary and Secondary Education (BESE).

In December 2005, the OPSB passed Resolution No. 59-05 upon the advice and recommendation of its state-selected and controlled financial consultants, the New York-based firm of Alvarez & Marsal. The Resolution called for the termination of all New Orleans Public School employees placed on unpaid “Disaster Leave” after Hurricane Katrina, to take effect on January 31, 2006. On the day that the mass terminations were scheduled to take place, Plaintiffs amended their petition to seek a temporary restraining order preventing the OPSB from terminating all of its estimated 7,500 current employees at the close of business on that day. The trial court granted the TRO and this Court and the Louisiana Supreme Court denied writs on the issue. The TRO was later converted into a preliminary injunction that restrained, enjoined and prohibited the OPSB, et al, from “terminating the employment of Plaintiffs and other New Orleans Public School employees until they are afforded the due process safeguards provided in |3the Orleans Parish School Board’s Reduction in Force Policy 4118.4.” Nevertheless, Plaintiffs and thousands of other employees were terminated on March 24, 2006, after form letters were mailed to the last known address of all employees of record as of August 29, 2005.

Ultimately, while plaintiffs were not granted injunctive relief in the form of employment in the new Recovery School District, the trial court ruled that they had stated a cause of action for damages against all defendants. Defendants did not challenge this judgment. More than forty days after the trial court’s ruling that the plaintiffs stated a cause of action, the State Defendants filed a pleading styled as a “Motion for Reconsideration of State Defendants’ Exception of No Cause of Action Concerning the Constitutionality of Act 35.” The trial court denied the motion and the Fourth Circuit Court of Appeal denied Supervisory writs.

In March 2007, Plaintiffs filed a Fourth Amending and Supplemental Petition seeking class action certification. In response, the OPSB filed a motion to strike Plaintiffs’ entire pleading. The State Defendants filed another Exception of No cause of Action concerning the same constitutional issues raised previously regarding Act 35. The trial court did not rule on the constitutionality of Act 35 and rejected all merit-based oral arguments as procedurally improper. The State Defendants’ Supervisory Writ was denied by this Court as well as the Louisiana Supreme Court.

On December 10, 2008, following a 3-day hearing that had been held in May 2008, the district court granted plaintiffs’ motion to certify the case as a Class Action. It is from this judgment that Defendants now appeal.

Specifications of Error

The Defendants filed individual briefs specifying errors allegedly made by |4the trial court. The State Defendants contend that the trial court erred in certifying this case as a class action, and it asserts three specifications of error in support of its position. The State Defendants specifically argue that the trial court erred in:

1. failing to apply the correct legal standard in evaluating whether the plaintiffs, in then- class certification efforts against the State, met the requirements of commonality, typicality, numerosity, and adequacy, and whether the predominance/superiority test was met;

2. finding that the plaintiffs met their burden of proof against the State concerning commonality, typicality, numerosity, adequacy, and the predominance/superiority test for class certification; and

3. failing to admit into evidence at the class certification hearing the testimony of Dane Ciolino, one of the State’ experts, and erred in admitting into evidence.

While adopting the arguments made by the state Defendants on appeal, the OPSB further argues, in its brief, that the trial court erred in certifying the class by failing to recognize that the claims of the class representatives and putative class members are so unique that they can only be assessed on a case by case basis.

In addition to the specifications of error delineated above, the State Defendants filed a separate memorandum in support of exceptions of no right and no cause of action. In these Exceptions, the State Defendants contend that the class action should be dismissed with prejudice on the basis that Plaintiffs have no cause or right of action against them since Act 35 was held to be constitutional by the Louisiana First Circuit Court of Appeal in United Teachers of New Orleans v. State Board of Elementary and Secondary Education, 07-0031 (La.App. 1 Cir. 3/26/08), 985 So.2d 184, 192 and that Plaintiffs have no other viable claims against Rthem that survive after United Teachers and Triplett, et al. v. Board of Elementary and Secondary Education, 09-0691 (La.App. 1 Cir. 7/13/09), 21 So.3d 401.

Law & Discussion

At the outset, we note that the State Defendants have urged and reurged the same exceptions of no right and no cause of action in the trial court, this Court, and the Louisiana Supreme Court, without success. The State Defendants argue that it is this Court’s duty to determine whether Plaintiffs can state a viable cause of action against them in light of United Teachers (holding that any impairment of the contracts between the United Teacher’s Union and the OPSB, as a result of Act 35, “was not of a constitutional dimension”) and Triplett (wherein the court denied all constitutional and statutory attacks brought by a group of parents, citizens, and teachers from the East Baton Rouge School District after eight schools were transferred to the RSD pursuant to Act 35). Despite the fact that the state Defendants’ “Exception of No Cause of Action Concerning the Constitutionality of Act 35” has been denied three times by the trial court, twice by this Court and once by the Louisiana Supreme Court, the State Defendants argue that based on United Teachers and Triplett, their newly filed exceptions are now properly before this Court again as an integral part of our review of the class certification order. We disagree for several reasons.

First, the First Circuit’s decisions in United Teachers and Triplett are not binding on this Court. Moreover, the fact that the First Circuit, in United Teachers and Triplett, found that the plaintiffs in those cases had no cause of action against the defendants under the particular facts of those cases, does not persuade us that the Plaintiffs in this case possess no viable cause of action against the State Defendants under the facts of this case. Moreover, the question of whether Act 35 |fiis constitutional or not is irrelevant, since Plaintiffs voluntarily severed their claims regarding the constitutionality of Act 35 from the class action claims in September 2006. The trial court has previously entertained all of the State Defendants’ arguments that Plaintiffs have no viable cause of action and has denied them all. Importantly, the State Defendants failed to seek supervisory writs after the trial court’s September 1, 2006 ruling that Plaintiffs have stated a cause of action against the State Defendants as it pertains to interference with a contract and or/impairment of a contractual obligation between the Orleans Parish School Board. We decline to revisit this same issue again on appeal.

Furthermore, contrary to the arguments made by the State Defendants, is not necessary at this juncture for Plaintiffs to prove the facts of the underlying cause of action. Class certification is purely procedural. See, e.g., Davis v. Jazz Casino Co., et al., 03-0005, p. 15 (La.App. 4 Cir. 1/14/04), 864 So.2d 880, 891. Therefore, the issue at a class certification hearing is whether the class action is procedurally preferable, not whether any of the plaintiffs will be successful in urging the merits of their claims. Display South, Inc. v. Express Computer Supply, Inc., 06-1137, p. 7 (La.App. 1 Cir. 5/4/07), 961 So.2d 451, 455, citing Singleton v. Northfield Ins. Co., 01-0447 (La.App. 1 Cir. 5/15/02), 826 So.2d 55, 62. When reviewing the trial court’s ruling regarding class certification, we do not consider whether plaintiffs’ claims state a cause of action or have substantive merit, or whether plaintiffs will ultimately prevail on the merits. Munsey v. Cox Communications of New Orleans, Inc., 01-0548, p. 5 (La.App. 4 Cir. 3/20/02), 814 So.2d 633, 636. Rather, our task is to examine Plaintiffs’ legal claims and to determine only whether a class action is the appropriate procedural device in light of established Louisiana criteria. Id. Thus, the sole issue to be decided in this appeal is whether |7the district court abused its discretion in certifying this case as a class action.

Class Actions in General

The class action is a nontraditional litigation procedure permitting a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common or general interest to persons so numerous as to make it impracticable to bring them all before the court. The purpose and intent of class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable'not only to the representatives who bring the action, but to all others who are “similarly situated,” provided they are given adequate notice of the pending class action and do not timely exercise the option of exclusion from the class. Chiarella v. Sprint Spectrum LP, 04-1433, p. 16 (La.App. 4 Cir. 11/17/05), 921 So.2d 106, 118, citing Ford v. Murphy Oil U.S.A., Inc., 96-2913, 96-2917, 96-2929 (La.9/9/97), 703 So.2d 542, 544.

In Louisiana, the class action certification procedure is governed by Louisiana Code of Civil Procedure articles 591-597. The prerequisites for maintaining a class action are found in article 591. Those requirements have generally been summarized as: numerosity, commonality, typicality, the adequacy of the representative parties to protect the interest of the class, an objectively definable class, the predominance of common issues, and the superiority of the class action procedure.

|8In order to obtain class certification, the plaintiffs must meet all of the requirements of article 591(A) and also satisfy at least one of the subsections of article 591(B). Oubre v. Louisiana LCPIC Fair Plan, 07-66, p. 6 (La.App. 5 Cir. 5/29/07), 961 So.2d 504, 508, writ denied, 07-1329 (La.9/28/07), 964 So.2d 363, citing, Daniels v. Witco Corp., 03-1478 (La.App. 5 Cir. 6/1/04), 877 So.2d 1011, 1014, writ denied, 04-2287 (La.11/19/04), 888 So.2d 205. The burden of establishing that the statutory criteria are met falls on the party seeking to maintain the action as a class action. Oubre, 961 So.2d 504, 508.

The customary standard of review for a trial court’s ruling on a motion for class certification is tri-parte. Factual findings are subject to the manifest error standard, but the trial court’s ultimate decision of whether or not 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. The question of whether the district court applied the correct legal standards in determining whether to certify the class is reviewed de novo. Id.

A trial court has wide discretion in deciding whether or not to certify a class. Chiarella, 04-1433 at p. 16, 921 So.2d at 118. Any error to be made in deciding class action issues should be in favor of and not against maintenance of the class action, because a class certification order is subject to modification if later developments during the course of trial so require. McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612, 620 (La.1984).

In the instant case, the trial judge found that Plaintiffs’ claims meet all of the criteria set forth in Louisiana Code of Civil Procedure article 591(A), namely numerosity, commonality, typicality, adequacy of representation, and an objectively definable class. The trial judge also found that the elements of predominance and superiority set forth in Louisiana Code of Civil Procedure article 591(B)(3) have been satisfied. After reviewing the record before us, including the petitions, the arguments of the parties, the testimony at the certification hearing and the trial court’s reasons for judgment, we find that there was a sufficient factual basis for the trial court to certify this class.

|in Numerosity

The first requirement for certifying a class is numerosity. To satisfy this requirement, Plaintiffs must establish that the members of the class are so numerous that joinder of those members would be impracticable. No set number of putative plaintiffs has been established in order to fulfill the numerosity requirement for a class action. Davis v. Jazz Casino Co., LLC, 03-0005, p. 7 (La.App. 4 Cir. 1/14/04), 864 So.2d 880, 887. The determination of numerosity 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. Id., at 888.

At the certification hearing in the instant case, New Orleans Public School Superintendent, Mr. Darryl Lilbert, testified that over 7,500 employees of the OPSB were placed on disaster leave without pay and terminated in one common occurrence. Evidence was also introduced that 1,176 employees of the OPSB retired after August 29, 2005. The trial court found it possible that some of these employees may claim that they retired in view of a threat of termination. In determining that the numerosity requirement was met, the court found that there are at least 5,000 potential class members and as many as 7,500 class members and that “this large number of potential class members surely produces too many plaintiffs to join in a manner conducive to judicial economy.” We find no manifest error in this finding.

Commonality

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 | iisignificant 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, citing, Duhe v. Texaco, Inc., 99-2002 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, 1078.

In this case, the trial court found that the claims of class members are based on allegations of a common course of conduct — termination from gainful employment and/or interference with individual written and/or statutory contracts of employment — implemented by a common set of documents. The court heard testimony from witnesses that were employed by the OPSB as permanent employees up to the commencement of the 2005-06 school year, were placed on disaster leave, without pay, effective March 24, 2006, and allegedly suffered economic losses and emotional distress as a result of being terminated from employment. The trial court thus determined that the claims of the class members have a sufficient common character and are derived from a common source, such that the requirement of commonality was satisfied. Considering the testimony and evidence regarding this common issue, we cannot say that the trial court erred in finding that the commonality requirement had been met.

Typicality

The third prerequisite in certifying the class is typicality. The element of typicality requires that the claims of the class representatives be a cross-section of, or typical of, the claims of all class members. Davis, supra., 03-0005, p. 9, 864 So.2d 880, 890.

At the certification hearing, each of the class representatives testified about the type and nature of their claims. They-all testified that they experienced economic losses and emotional distress as a result of wrongful termination and breach/interference. with their employment contracts with the OPSB. All of the | |2class representatives testified that they were employed by the OPSB prior to August 29, 2005 and that they were placed on disaster leave, without pay, retroactive to August 29, 2005. According to their testimony, no one was excluded from the school board resolution to place all employees on OPSB disaster leave, and the decision applied to all employees. One common letter was written to them by Phyllis Landrieu advising them of the termination of all OPSB employees and another common letter was written to them by the superintendent advising of the termination of all OPSB employees.

The trial court found that the testimony of the class representatives was credible and that their testimony about the nature and type of their claims are typical of all persons who were employed as permanent employees of the OPSB and then were terminated by the OPSB in one common event. We find no error in the trial court’s finding on this issue.

Adequacy of Representation

The existence of representative parties who will adequately and fairly protect the interests of all those in the class is the fourth prerequisite for certifying a class. This element requires that the proposed class representatives prove that their claims are a cross-section of, or typical of, the claims of all class members. Johnson v. Orleans Parish School Bd., 00-0825 (La.App. 4 Cir. 6/27/01), 790 So.2d at 734.

During the hearing, each proposed class representative testified before the court about their personal and family background, their work background, their experience as an employee of the OPSB prior to their termination and the hardships and problems they claim that they each suffered as a result of the termination of their employment. Each of the proposed class representatives was | ^questioned about the nature of his/her claims and their understanding of his/her role as a class representative. The district court found that the proposed class representatives were credible, forthright in their answers and possessed a good sense of their role in the case.

The Defendants argue that potential conflicts of interest between class members who may be competing against each other for jobs creates a “nonconsenta-ble conflict of interest in representing class members.” However, Plaintiffs are no longer seeking injunctive and/or declaratory relief (i.e. reinstatement of their employment). Rather, Plaintiffs are seeking only monetary damages. Therefore, there is no conflict of interest between the class members and the attorneys’ representation of the class as a whole. Accordingly, we find no manifest error in the trial court’s finding that the requirement of adequacy of representation was satisfied.

Class Definition

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 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. Chiarella, supra, 04-1433 at p. 18. 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. Clement v. Occidental Chemical Corp., 97-246 (La.App. 5 Cir. 9/17/97), 699 So.2d 1110, 1113. So.2d at 1113.

114In this case, the trial court defined the class as:

All current or former employees of the Orleans Parish School Board prior to Hurricane Katrina [August 29, 2005], who were terminated and/or forced to retire under the threat of termination from employment by the Orleans Parish School board, and claim to have sustained economic injury and/or mental anguish and emotional distress as a result of termination and/or being forced to retire under the threat of termination of employment.

The class definition goes even further to objectively identify the class members and divide them into four subclasses: (1) Tenured, Certified Teachers; (2) Tenured, Certified Teachers Promoted to Positions of Higher Salary; (3) Employees with “permanent status” other than classroom teachers; and (4) Employees forced to retire under duress. Moreover, the court specifically excluded from the class casual, non-permanent or non-tenured employees, who may have been terminated by the OPSB at all times relevant to this litigation, finding that the claims of such a person are too dissimilar from the claims of those, like the proposed class representatives, who enjoyed property rights in their employment with the OPSB conferred either by statute or by written contract.

Plaintiffs argue that the trial court went to great lengths to objectively define the class with specificity so that only those OPSB employees with property rights in their jobs would be included in the class. We agree. Defendants do not argue that the class is not defined objectively in terms of ascertainable criteria. Accordingly, we find that he proposed class is sufficiently defined in order to give potential class members enough information to decide whether they are included within the class and to enable potential class members to decide whether to opt out of the class.

Based on the foregoing, we find the Plaintiffs have fulfilled the statutory requirements of Louisiana Code of Civil Procedure article 591(A). We must now 115turn to the question of whether at least one of requirements of article 591(B) has been met.

La.Code Civ, Proc. Art. 591(B)

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. Only one of the requirements of Section (B) must be met. In this case, the trial court found that the plaintiffs satisfied 591(B)(3), which requires the court to find that questions of law or fact common to members of the class predominate over any questions affecting only individual members, and that the class action is superior to other available methods of adjudicating the controversy.

La.Code Civ. Proc. Art. 591(B)(3)

Predominance

The Louisiana Supreme Court recently addressed the relationship between questions of liability and the propriety of class certification in Brooks v. Union Pacific Railroad Company, 08-2035 (La.5/22/09), 13 So.3d 546. In Brooks, the Court held that “[a]n inquiry into predominance tests ‘whether the proposed classes are sufficiently cohesive to warrant adjudication by representation.’ ” Id., p. 9. The process prescribed by the Court in making this determination is to identify the substantive issues that will control the outcome, to assess which issues will predominate, and then to determine whether the issues are common to the class. Id. This process is ultimately meant to prevent the class from degenerating into a series of individual trials. Id. According to the Brooks court, in order to meet the common cause requirement, each member of the class must be able to prove | ^individual causation based on the same set of operative facts and law that would be used by any other class member to prove causation.

Here, the trial court found not only that the class members claims are of a common nature, but also that their claims regarding termination from employment originate from the same common source — the conduct of Defendants who by act or omission caused the termination of the employment of all the class members. Therefore, the trial court found opined that if any defendant is found to be liable to just one class member due to the Defendant’s role in causing or contributing to the class member’s termination-related complaints, then the finding of liability as to that defendant should be binding on that defendant as to all class members, without the need for any other class member to have a trial on the merit of the same issues.

On appeal, Defendants argue that the trial court committed manifest error in finding that the predominance requirement had been satisfied in this case. Defendants aver that it is obvious that a class trial in this case would devolve into a series of individual trials regarding individual claims and defenses. They argue that separate proof will be needed on alleged “forced” terminations than on “outright” terminations and that separate damages will need to be considered for each group because retirees’ rights differ from those of terminated employees. Finally, Defendants argue that each putative class member has suffered differing levels of emotional distress and varying degrees of economic loss.

The plaintiffs, on the other hand, assert that there are many common issues of law and fact and that these common issues clearly predominate over any individual issues surrounding Plaintiffs’ damages. Plaintiffs argue that the only individualized issues among the class members are the degree of damages. Thus, according to Plaintiffs, once there is a common liability trial, the only individual 117analysis left will be causation/damages, which can be conducted without the need for repeated trials as to liability.

We find no error in the trial court’s finding that Plaintiffs have identified a common issue and that the common issue predominates over any of the plaintiffs’ individual issues. All of the class members’ claims are founded on an assertion of Defendants’ unlawful termination of their employment after Hurricane Katrina. This pivotal issue is common to all class members. Moreover, the acts or omissions of the Defendants created a set of circumstances which injured all of the class members and that this pivotal issue is common to all plaintiffs and predominates over any individual issues which may be presented by the circumstances surrounding the claim of an individual class member.

Of course, there may be differences in the amount of damages owed to an individual Plaintiff based on the varying pay scale and benefits offered, but in Brooks, the Louisiana Supreme Court noted that it is not necessary that the amount or extent of damages be common to all class members; rather, “the mere fact that varying degrees of damages may result from the same factual transaction and same legal relationship or that class members must individually prove their right to recover does not preclude class certification.” Bartlett v. Browning-Ferris Industries Chemical Services, Inc., 99-0494 (La.11/12/99), 759 So.2d 755, 756. Thus, we find that the predominance requirement has been satisfied in this case.

Superiority

We also find that in this case, the requirement of superiority has been met, pursuant to Louisiana Code of Civil Procedure article 591(B)(3). The district court stated that the class action procedure is superior because any expert testimony would be common to all class members and that trying the Defendants’ | pliability and fault in one common trial is superior to all the other available procedural methods of either mass joinder and consolidation, or repetitive individual trials. We agree.

When a common character of rights exists, a class action is superior to other available adjudicatory methods in effectuating substantive law, and promoting judicial efficiency and individual fairness. Davis v. Jazz Casino Co., LLC, supra, 03-0005, p. 11. If the superiority of a class action is disputed, the trial court must inquire into the aspects of the case and decide whether some other procedural device would better serve these goals. Id.

Here, each plaintiffs claim involves whether the Defendants unlawfully terminated him or her after Hurricane Katrina. Trying all the potential plaintiffs’ claims separately could result in non-uniformity in the application of this law and in consideration of Defendants’ anticipated defenses. Thus, uniformity in this case can best be obtained by employing the class action procedure. As plaintiffs correctly argue, the prosecution of as many as 7,500 separate lawsuits would pose a significant possibility of inconsistent adjudications on these common issues and could result in members of the class being negatively impacted by a decision from another court and impair their ability to pursue their claim. Accordingly, in this case, the class action procedure is a superior method under the circumstances to ensure individual fairness and to promote judicial efficiency.

The trial court exercised its discretion in determining whether class certification was superior to other available methods for the fair and efficient adjudication of the controversy. The trial court performed the rigorous analysis required by Brooks in determining whether this proposed class action meets the requirements imposed by law. The trial court actively inquired into every aspect ofjpjthe case and explored the facts and evidence beyond the pleadings. Considering the facts introduced at the class certification hearing and in the record before us, we find that the trial court did not err in finding that a class action is the superior procedural device for adjudicating this matter.

Finally, the State Defendants argue that the trial court erred in failing to admit into evidence at the class certification hearing the testimony of Dane Ciolino, an attorney and legal professor. Professor Ciolino was retained by the State Defendants to provide expert testimony regarding whether the joint representation of all putative class members falls within the standard of care and conduct governing Louisiana lawyers. The trial court excluded Professor Ciolino’s testimony because the court “did not require the assistance of a legal expert in the field of legal ethics to enable it to come to a proper conclusion regarding adequacy of class counsel.”

The testimony of an expert, with the attendant right to express opinions and conclusions, is proper for the purpose of assisting the court only in those fields in which the court lacks sufficient knowledge to enable it to come to a proper conclusion without such assistance. Clesi, Inc. v. Quaglino, 137 So.2d 500 (La.App. 4 Cir. 1962). Here, the court felt that it possessed sufficient knowledge in the area of legal ethics and that Professor Ciolino’s testimony would not be necessary. We find no abuse of the trial court’s discretion in its decision to exclude Professor Cioli-no’s testimony.

Conclusion

In conclusion, we find no manifest error in the trial court’s factual findings and no abuse of discretion in the trial judge’s determination that this case meets all of the requirements of Louisiana Code of Civil Procedure Article 591 for 12ncertification of this matter as a class action. Of course, the trial court always has the authority to re-visit or modify its decision regarding class certification if later developments during the course of trial so require. See Johnson v. E.I. Dupont deNemours and Co., 721 So.2d at 44. For the foregoing reasons, we affirm the trial court’s judgment, granting Plaintiffs’ motion for class certification, defining the class, and naming Antoinette Aubry-Guillory, Karen Marks, Gwendolyn Ridgley, Lois Lockhart, Linda Pichón, Barbara Moore and Cynthia Jordan as class representatives.

AFFIRMED.

      . "A resolution of the Orleans Parish School Board to authorize the Acting Superintendent and the staff members of Alvarez and Marsal to implement a Reduction in Force 'WHEREAS, the Orleans Parish School Board recognizes that due to the passage of Senate Bill 49, approximately 102 schools formerly under the jurisdiction of Orleans Parish School Board, will now be under the jurisdiction of the State of Louisiana, through the Recovery School District.’ "

      . Article 591 in its entirety provides:
      A. One or more of the members of a class may sue or be sued as representative parties on behalf of all, only if:
      (1) The class is so numerous that joinder of all members is impracticable;
      (2) There are questions of law or fact common to the class;
      (3) The claims or defenses of the representative parties are typical of the claims or defenses of the class;
      (4) The representative parties will fairly and adequately protect the interests of the class; and
      (5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.
      B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
      (1) The prosecution of separate actions by or against individual members of the class would create a risk of:
      (a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
      (b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
      (2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
      (3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
      (a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
      (b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
      (c) The desirability or undesirability of concentrating the litigation in the particular forum;
      (d) The difficulties likely to be encountered in the management of a class action;
      (e) The practical ability of individual class members to pursue their claims without class certification;
      (0 The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
      (4) The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.
      (C) Certification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class. However, following certification, the court shall retain jurisdiction over claims or defenses dependent for their resolution on proof individual to a member of the class. La.Code Civ. Proc. art. 591.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Chanda Prather RICHARDSON v. Steven Todd RICHARDSON.
    No. 09-609.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 18, 2009.

      Clay Williams, Williams & Nelson, Lees-ville, LA, for Defendant/Appellee — Steven Todd Richardson.
    Terry W. Lambright, Leesville, LA, for Plaintiff/Appellant — Chanda Prather Richardson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   THIBODEAUX, Chief Judge.

| jTIns case involves custody and relocation disputes between the appellant, Chan-da Richardson Lalonde, and her former husband, Steven Richardson. After initially stipulating to joint custody and visitation, with Chanda as the domiciliary parent of the parties’ two minor children, Steven sought, and was eventually awarded, primary custodial parent status. Subsequently, as a member of the military, Steven sought to relocate to Fort Carson, Colorado, pursuant to Army transfer orders. The trial court approved the relocation, and Chanda filed this appeal. For the following reasons, we affirm the trial court’s judgment approving the relocation of the minor children to Colorado with Steven.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in assessing the minor children’s testimony; and,

(2) whether the trial court erred in approving the relocation and thereby maintaining the children’s custody in the relocating parent.

II.

FACTS AND PROCEDURAL HISTORY

Chanda and Steven were married for eight years and divorced on November 12, 2003, when one child was seven years old, and the other was four years old. Steven initially stipulated to joint custody, with Chanda as the domiciliary parent. Over the next several years of this fractious relationship, several contentious legal proceedings resulted in psychological evaluations, civil warrants, and implementation of a modified plan for joint custody.

pin February 2008, following a hearing on Steven’s rule to modify custody, the trial court considered the psychological evaluations of the parties, the significant documentary evidence, depositions, reports, and live testimony, as well as the “best interest” factors of La.Civ.Code art. 134. In March 2008, finding that the mother’s own disorder had a profound effect on her ability to parent, and finding that she was unwilling to facilitate a close relationship between the children and Steven, the trial court ordered that the September 2003 joint custody order be modified to name Steven as the primary custodial parent, with visitation to Chan-da. The order also provided that if either parent was to be away for thirty days or more, the other parent would be allowed to keep the children before any other arrangements were made, but not if the children were in school at the time and would have to be transferred. In April of 2008, Steven received orders from the Department of the Army for a permanent station change (PSC) to Fort Carson, Colorado. He filed a motion with the court to relocate, and Chanda opposed the motion.

Following a hearing in August 2008, the trial court entered a judgment in December of 2008 allowing the relocation of the children to Colorado, with the provision that if Steven were deployed, Chanda could have the children for the entire school year. Chanda appealed the judgment.

III.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two tiered test must be applied in order to reverse the findings of the trial court:

|3a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
b. the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

Even where the appellate court believes its inferences are more reasonable than the fact finders, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Additionally, a reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.

Chanda contends that the trial court erred in assessing the testimony of the minor children and that the error is tantamount to a legal error that would require this court to conduct a de novo review of the record. We disagree. The trial court’s interpretation of the testimony in this case is based upon reasonable factual conclusions, and the standard of review is manifest error, not legal error.

The trial court considered the testimony of both children and indicated that only one child stated a preference, which was a strong preference, and that it would be given significant consideration. Taking the testimony as a whole, this was not a misstatement by the court. The trial court then considered the young age of the child with the stronger preference, and determined that a child of such tender years |4should not be put in a decision making position on custody and relocation issues. The “reasonable preference” of the child is a factor in determining the best interest of the child, “if the court deems the child to be of sufficient age to express a preference.” La.Civ.Code art. 134(9). Likewise, La. R.S. 9:355.12, governing relocation, provides that one of the factors used to determine a contested relocation is “[t]he child’s preference, taking into consideration the age and maturity of the child.”

Dr. John Simoneaux, who performed psychological evaluations on all family members stated that the custody issue should be determined by adults, not children. We find that the trial court’s factual conclusions regarding the testimony of the minor children were reasonable based upon the record as a whole, and we will not disturb its reasonable determinations and inferences of fact upon review.

Burden of Proof

Chanda further contends that the trial court elearfy erred and abused its discretion in allowing Steven to relocate with the minor children to Colorado. The question for this court then, upon appeal, is whether Steven, the relocating parent with custody of his two children, met his burden of proof with regard to the relocation. Steven’s burden of proof is found at La. R.S. 9:355.13:

§ 355.13. Burden of proof
The relocating parent has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child. In determining the child’s best interest, the court shall consider the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parent’s general quality of life.

Therefore, Steven’s burden of proof is two-fold, in that the relocation must be made (1) in good faith; and, must be (2) in the best interest of the children. With regard to the first prong, Chanda contends that Steven did not act in good faith Lin relocating, but rather orchestrated a transfer with the military to Fort Carson, Colorado, with the specific intent of separating the children from their mother. She argues that it had always been Steven’s wish to transfer to Colorado, and that after having been stationed in Louisiana for eleven years, he was suddenly transferred to Colorado just thirty days after he obtained custody of the minor children. The trial judge stated that he would be surprised if, in every soldier’s life, the soldier and spouse did not discuss their preferred stations and where they would like to live while in the military.

The court further indicated that just because Steven might have told Chanda years earlier that he wanted to be transferred to Fort Carson one day, this fact did not mean, and there was no evidence in support, that Steven and the military colluded or conspired to get the transfer through shortly after Steven won primary custody of the children. The trial court further stated that Chanda had only opinions regarding the relocation, while the military order dated April 3, 2008, was credible evidence that the military had taken charge of Steven’s life, as always, and transferred him to another location. The trial judge indicated that it was more surprising that the military had allowed Steven to stay in Louisiana for eleven years.

Steven testified that he had always wanted to go to Fort Carson, and that he had spoken about it, saying that he would probably be sent somewhere, and that if he had a choice, it would be Fort Carson. He stated that when he received the April 2008 notice, his choices were, Hawaii, New Jersey, and New York. He further stated that the Army considers you “stagnant” if you stay in one place too long. He stated that when he saw the choices, he held out for a short time to see if Fort Carson, Colorado became available, and it did. The record contained the official transfer orders to Fort Carson, Colorado, a letter from Steven’s commander stating the reason | (¡for the PSC, and a letter from his branch manager indicating the available locations. The trial court did not abuse its discretion in finding that Steven’s relocation of himself and the minor children to Colorado was done in good faith.

With regard to the second prong, the best interest of the children, the trial court went through the twelve factors of La. R.S. 9:355.12, governing relocation, and determined that the relocation was in the best interest of the children. For example, with regard to La. R.S. 9:355.12(5), “[w]hether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party,” the court reiterated its concerns about Chanda’s ability to foster a relationship between the children and their father, while there was nothing to suggest that Steven had sought to limit the mother’s visitation. With regard to factor number six, “[w]hether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity,” the trial judge indicated that the schools seemed comparable, and that the father’s opportunity for promotion was a positive. While the trial court may not have always articulated its conclusions regarding the relocation factors with great precision, its ultimate conclusion to approve the relocation was very well-founded.

|7More specifically, the best interest of the children was a factor when earlier determining the custody issue under La. Civ.Code art. 134. When determining the relocation issue under La. R.S. 9:355.12, and also under La. R.S. 9:355.13, the burden of proof statute pertaining to relocation, the best interest of the children, is also a factor. Chanda complains that the court commented on a lack of change, as if the burden of proof was on Chanda to prove changes in circumstance for a custody change, which would have been error. We disagree. First, the trial court properly | swent through the relocation factors in La. R.S. 9:355.12 and La. R.S. 9:355.13. Second, since Steven was ordered to transfer to Fort Carson, the court had to consider whether custody should remain with him or be changed back to Chanda. The court’s having occasionally mentioned that it saw no change occurring between February 2008 (custody hearing) and August 2008 (relocation hearing) does not render its analysis faulty. While the trial court did not explore the custody issue at the relocation hearing, we note that the underlying custody change from Chanda, as domiciliary parent, to Steven, as primary custodial parent, was well-reasoned, and undoubtedly still fresh in the court’s mind.

Dr. John Simoneaux evaluated both families in January and March of 2006, pursuant to the court’s request. His report, after all evaluations were completed, included an analysis of the twelve factors of La.Civ.Code art. 134 regarding the “best interest” of the children. His concerns were many, and included the poor judgment exercised by Chanda in relating information to the children that they were too young and too emotionally fragile to absorb. In Chanda’s interview with Dr. Simoneaux, she accused Steven of engaging in dangerous behavior and of being an alcoholic. However, Dr. Simoneaux found these remarks to be exaggerations or representations of youthful excess.

In Brenda Richardson’s interview with Dr. Simoneaux, she disclosed stalking by Chanda, extreme mood shifts, calls to Brenda’s supervisor’s causing her problems at the school where she taught, calls to the MP’s to drug search Steven and Brenda’s house at one o’clock in the morning, finally culminating with Chanda’s being banned from the post. Brenda reported that Chanda had gone to extremes to discredit her, her mother, and her father, and that Brenda and her mother had filed complaints because of the malicious lies told by Chanda.

|<iDr. Simoneaux was concerned particularly for the medical care that Chanda, who had a well-documented history of bipolar disorder, was providing to the girls. He characterized her as overly zealous and overly influential with the children’s medical providers and social worker in Baton Rouge, resulting in inaccurate information and over-medication of the children. He described Chanda’s emotional state as fragile and found most factors favoring Steven and Brenda Richardson as the primary custodial parents because they had a more stable family unit. Dr. Simoneaux’s greatest concern was that Chanda, who “demonized” Steven, and who seemed incapable of change, actually created danger for the children and their welfare. Dr. Simoneaux stated that Chanda should be in therapy, and that if she would not give up the fight and try to encourage the children’s relationship with their dad, then sole custody to Steven would be in order.

This evidence assisted the trial court in changing the primary domicile to Steven in February 2008, and it justified its statement at the relocation hearing in August 2008, that the court saw no reason to remove the children from the custody of their father and would, therefore, grant the relocation of the children to Colorado.

IV.

CONCLUSION

Based upon the foregoing, we find no abuse of discretion by the trial court in finding that the relocation of the minor children was in good faith and in the best interest of the children. Those determinations were reasonable based upon the record as a whole and will not be disturbed by this court. Accordingly, the judgment of the trial court is affirmed in its entirety. The costs of this appeal are to be borne by Chanda Richardson Lalonde.

AFFIRMED.

      . § 355.12. Factors to determine contested relocation
      A. In reaching its decision regarding a proposed relocation, the court shall consider the following factors:
      (1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child's life.
      (2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.
      (3) The feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
      (4) The child's preference, taking into consideration the age and maturity of the child.
      (5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocat-ing party.
      (6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
      (7) The reasons of each parent for seeking or opposing the relocation.
      (8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
      (9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
      (10) The feasibility of a relocation by the objecting parent.
      (11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
      (12) Any other factors affecting the best interest of the child.
      B. The court may not consider whether or not the person seeking relocation of the child will relocate without the child if relocation is denied or whether or not the person opposing relocation will also relocate if relocation is allowed.


author: THIBODEAUX, Chief Judge. AMY, J., SULLIVAN, J.,

text:
    Pamela Borskey VICKERS v. Williard Houston VICKERS.
    No. 09-280.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 18, 2009.
    Walter E. Dorroh, Jr., Dorroh & Kendrick, a PLC, Jena, LA, for Intervenor/Ap-pellee, Homeland Federal Savings Bank.
    Clayton M. Perkins, Jr., Perkins & Dupré, Zachary, LA, for Plaintiff/Appellant, Pamela Borskey Vickers.
    Donald D. McKeithen, Jr., Columbia, LA, for Intervenor/Appellee, Homeland Federal Savings Bank.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, MARC T. AMY, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

| iPamela Borskey Vickers appeals the trial court judgment which granted Homeland Federal Savings Bank’s previously-filed collateral mortgage priority over her judgment, despite the fact the collateral mortgage listed an incorrect mortgagor at the time it was recorded in the parish mortgage records. For the following reasons, we reverse and render.

I.

ISSUE

Does the error of listing an incorrect owner of immovable property in a recorded collateral mortgage constitute a substantive error that prevents the date of its correction from being given retroactive effect to the date the collateral mortgage was originally recorded?

II.

FACTUAL BACKGROUND

Mr. and Mrs. Vickers obtained a divorce in 2001. Their community property settlement remained unresolved. In 2005, Mr. Vickers granted to a financial institution, Homeland, a collateral mortgage on immovable property separately-owned by him. The collateral mortgage served to secure Mr. Vickers’ debt to Homeland. Homeland recorded the collateral mortgage in the LaSalle Parish mortgage records on July 20, 2005. The collateral mortgage, however, incorrectly identified the mortgagor of the immovable property as Automotive Trucks & Tractors, L.L.C., a company that Mr. Vickers solely-owned and in which he served as President. Mr. Vickers signed the collateral mortgage on behalf of Automotive Trucks & Tractors, L.L.C., as its President.

laOn January 13, 2006, Mrs. Vickers was awarded $92,000.00, in addition to the payment of her attorneys’ fees, as full and final settlement of her community property claims. She recorded that judgment in the LaSalle Parish mortgage records on October 16, 2006.

A few months later in 2007, Homeland’s collateral mortgage was amended by a notarial act of correction to change the name of the mortgagor from “Automotive Trucks & Tractors, L.L.C.” to “Willard Houston Vickers.” Mr. Vickers and the notary acknowledged the error in the act of correction, describing it as a “clerical error.” It was alleged therein that the collateral mortgage “incorrectly showed that [Mr. Vickers] was signing said Collateral Mortgage as President of Automotive Trucks & Tractors, L.L.C. when in truth and in fact, [Mr. Vickers] was signing said Collateral Mortgage as the Mortgagor, individually, and not as President of Automotive Trucks & Tractors.” The notarial act purporting to correct the error was recorded in the LaSalle Parish mortgage records on January 23, 2007.

In May of 2007, Mrs. Vickers moved that her judgment be made executory and requested that a writ of fieri facias be issued to the LaSalle Parish Sheriff, ordering him to seize and sell Mr. Vickers’ interest in the immovable property which was also the subject of Homeland’s collateral mortgage. Mrs. Vickers’ judgment was made executory and the writ was issued; the Sheriffs sale was scheduled to take place in July of 2007. Homeland, however, filed a Petition of Intervention prior to the sale, asserting itself as a secured creditor of Mr. Vickers, holding a first mortgage (the collateral mortgage) on the immovable property that was to be sold. Homeland asserted that its collateral mortgage was superior in rank to Mrs. Vickers’ judgment and asserted its privilege to be paid first from any proceeds of the Sheriffs sale of the immovable property.

IsThis matter was decided by the trial court based on the submission of written briefs, stipulated facts, and stipulated exhibits. The trial court rendered a judgment in favor of Homeland, stating therein that it found the collateral mortgage, recorded on July 20, 2005, ranked ahead of and primed the money judgment of Mrs. Vickers’ later-recorded judgment.

Mrs. Vickers filed this appeal, alleging the trial court’s judgment was erroneous for multiple reasons. She argued the erroneous listing of the mortgagor was a substantive error in the collateral mortgage that, when corrected and subsequently recorded, resulted in the collateral mortgage losing its status as first-ranked. She argues that the collateral mortgage was then ranked according to the recordation date of the notarial act of correction. She adds that because of the incorrect mortgagor, the collateral mortgage should not have been recognized as having a higher rank than hers because it was not an “established” mortgage, pursuant to La. Civ.Code art. 3292, when originally recorded. Finally, Mrs. Vickers contends that since Mr. Vickers’ ownership interest in the property was not made a part of the public records because of the error that existed when the collateral mortgage was originally filed, the public records doctrine protects her as a third-party.

Homeland argues that the error listing the limited liability company as the mortgagor of Mr. Vickers’ immovable property was not a substantive error. It was, instead, a “clerical” error, resulting from inadvertence that occurred during the physical preparation of the mortgage document. Therefore, according to Homeland, La.R.S. 35:2.1(B), a statute that is relevant to notarial acts of correction, is applicable. According to La.R.S. 35:2.1(B), the effective date of the notarial act of correction will relate back to the original recording date of the collateral mortgage if the error being |,.[Corrected is “clerical.” Therefore, Homeland argues it maintained its status as the holder of the first-recorded security interest, despite the existence of the error in the original document.

Homeland also refutes Mrs. Vickers’ argument that the collateral mortgage was not an “established” mortgage when it was originally recorded. Homeland contends the mortgage was, in fact, established due to the mutual intent of the parties — itself and Mr. Vickers — to create a collateral mortgage on the immovable property. Finally, Homeland asserts that Mrs. Vickers’ reliance on the public records doctrine is misplaced because of the lack of any evidence presented to the trial court that she reasonably relied on the original collateral mortgage.

III.

LAW AND ANALYSIS

The primary issue raised by this appeal is the effect of the error, and its subsequent correction by notarial act, on the rank of the collateral mortgage as a secured interest in Mr. Vickers’ property. Specifically, La.R.S. 35:2.1(A) and (B) state the following about notarial acts of correction:

A. A clerical error in a notarial act affecting movable or immovable property or any other rights, corporeal or incorporeal, may be corrected by an act of correction executed by the notary or one of the notaries before whom the act was passed, or by the notary who actually prepared the act containing the error. The act of correction shall be executed by the notary before two witnesses and another notary public.
B. The act of correction executed in compliance with this Section shall be given retroactive effect to the date of recordation of the original act. However, the act of comction shall not prejudice the rights acquired by any third person before the act of correction is recorded where the third person reasonably relied on the original act. The act of correction shall not alter the true agreement and intent of the parties.

15(Emphasis added).

The first question to be resolved is whether the notarial act of correction served to correct a clerical or substantive error. If the error was clerical, then the notarial act of correction that sought to amend the collateral mortgage is to be given retroactive effect to the date of re-cordation of the original act. La.R.S. 35:2.1(B). This would preserve the primacy in rank of Homeland’s collateral mortgage.

Here, the notarial act of correction substituted the immovable property’s true owner, Mr. Vickers, for the erroneously-stated owner, Automotive Trucks & Tractors, L.L.C. Homeland stipulated that at no time did the limited liability-company own the immovable property; however, no explanation was offered as to why this error was made.

We find that the error at issue does not constitute a clerical error, but is a substantive one. Black’s Law Dictionary, (8th ed.), provides, in part, that a clerical error is “[a]n error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.” In this case, there were repeated references to the limited liability company as the mortgagor throughout the multiple pages of the collateral mortgage. Also, as stated earlier, Mr. Vickers signed the collateral mortgage expressly on behalf of the company in his capacity as its President. These references evidence an express determination by those involved with the creation of the collateral mortgage, including Mr. Vickers, that the limited liability company be recognized as the mortgagor of the property at issue.

Although the parties to the collateral mortgage admitted the misidentification was an erroneous assertion, that alone does not justify classifying such an error as “clerical” in nature. Rather, this was a substantive error because | ¡¡there is no evidence to suggest that it was an error that resulted from a minor mistake or inadvertence during the document preparation process. See, e.g., In re Huber Oil of Louisiana, Inc., 311 B.R. 440 (Bankr. W.D.La. May 21, 2004). It was a deliberate and repetitive error that even the owner of the company, Mr. Vickers, expressly acknowledged by signing the collateral mortgage in his capacity as the company’s President. This suggests that there was a reasoned belief by those entering into the agreement that the limited liability company was the owner/mortgagor of the property at issue. This does not constitute a clerical error.

Homeland desired the collateral mortgage on the immovable property to secure Mr. Vickers’ debt. Louisiana Civil Code Article 3290 provides that to establish a conventional mortgage, the individual must have the power to alienate the property. Here, Automotive Trucks & Tractors, LLC did not own the piece of immovable property and, therefore, did not have the power to alienate it. The name of the mortgagor was not merely incorrectly spelled, nor was the description of the property incorrectly copied; rather, the incorrect owner of the immovable property was recorded as the mortgagor. An error of ownership rights does not constitute a minor mistake in writing or copying within the meaning of a clerical error. The error was substantive.

Consequently, we find that the trial court erred in finding that Homeland held a superior security interest in the immovable property at issue. The error in naming the limited liability company as the mortgagor is a substantive error; .therefore, La.R.S. 35:2.1 does not apply and the filing date of the notarial act of correction does not relate back to the original date on which the collateral mortgage was recorded. Because of this finding, we do not reach the additional issues asserted by Mrs. Vickers in this appeal.

J¿V.

CONCLUSION

The judgment of the trial court is reversed.

Costs of this appeal are assessed to Homeland Federal Savings Bank.

REVERSED AND RENDERED.

AMY, J., dissents and assigns reasons.

SULLIVAN, J., concurs and assigns written reasons.

AMY, J.,

dissenting.

hi respectfully disagree with the majority that, in the factual context of this case, the type of error at issue is a deliberate and willful one. Neither do I find that the correction made reflects a change in intent of the parties.

The record establishes that there was intent to mortgage the property now at issue. Mr. Vickers demonstrated his intent in the Act of Correction which reads as follows:

(1) Page 1 of the above described Collateral Mortgage incorrectly showed the Mortgagor as Automotive Trucks & Tractors, L.L.C., when in truth and in fact, Page 1 should have shown the Mortgagor to be WILLARD HOUSTON VICKERS;
(2) Page 13 of the above described Collateral Mortgage incorrectly showed the Mortgagor to be Automotive Trucks & Tractors, L.L.C., when in truth and in fact, the Mortgagor should have been shown to be WILLARD HOUSTON VICKERS; and
(3)Page 14 of the above described Collateral Mortgage incorrectly showed that WILLARD HOUSTON VICK-ERS was signing said Collateral Mortgage as President of Automotive Trucks & Tractors, L.L.C. when in truth and in fact, WILLIARD HOUSTON VICKERS was signing said Collateral Mortgage as the Mortgagor, individually, and not as President of Automotive Trucks & Tractors, L.L.C.

Homeland affirmed its intent to take a mortgage on the property in its petition for intervention and the joint stipulation of facts. Its intent to mortgage the property is also evidenced in the fact that the bank loaned Mr. Vickers $150,000.00.

|2Ms. Vickers also acknowledges that intent in the joint stipulation of facts, which reads:

[The mortgage] was intended by the mortgagor and mortgagee to collateralize the debt owed to HOMELAND FEDERAL SAVINGS BANK set out in paragraph 2 of the original Petition for Intervention. However, at the time the Mortgage was executed and recorded, the mortgagor, Automotive Trucks & Tractors, was not the record owner of the property. The property was actually owned by WILLARD HOUSTON VICKERS individually. The Mortgage of July 20, 2005, was subsequently amended by notarial act which acknowledged the clerical errors and purported to correct the clerical errors with said Notarial Act of Correction!.]

In light of the clear understanding evidenced between all of the parties, and stipulated on the record, I find that the trial court’s determination that this was a correction of a clerical error is supported by the record.

I also find that the trial court’s determination is consistent with In re Huber Oil of Louisiana, 311 B.R. 440 (Bkrtcy. W.D.La., 2004), wherein the court was faced with the question of whether an error was clerical or substantive. In that case, the error was related to a property description. The property description contained in the deed and a subsequent mortgage did not include certain property described in the purchase agreement. Ultimately, the Huber court reasoned that the record clearly reflected an intent between the parties to transfer the omitted portion and thus the error was clerical because it did not result from any conscious or reasoned decision to exclude the property. The court found that the transfer and mortgage documents, in addition to, affidavits of the parties were “uncon-troverted evidence [that] clearly establishes that the error was one occurring in the physical preparation of the documents and was not the result of any reasoning, determination or thought process-not one of the interested parties conscious and reasoned deeision[.]” Id. at 444. Accordingly I find that La.R.S. 35:2.1’s retroactive effect applies and the collateral mortgage primes Ms. Vickers judicial mortgage unless the retroactive effect |swill “prejudice the rights acquired by any third person [here, Ms. Vickers] before the act of correction [was] recorded where the third person reasonably relied on the original act.” La.R.S. 35:2.1(B). Ms. Vickers asserts in brief that when she recorded her “judgment in the LaSalle Parish public records on 10/16/2006, there was no entry in the mortgage records showing Mr. Vick-ers had a collateral mortgage on his immovable.” However, apart from this assertion, there is no evidence in the record that Ms. Vickers relied on the original collateral mortgage.

For these reasons, I believe an affirmation is warranted.

SULLIVAN, J.,

concurring.

hi agree with the result reached by Chief Judge Thibodeaux but for different reasons. The Notarial Act Acknowledging Clerical Errors and Correcting Clerical Errors (Notarial Act) was executed by the notary who notarized the mortgage and Mr. Vickers. It simply “acknowledged” that “clerical errors were committed in the Collateral Mortgage” and that the “Collateral Mortgage contained the following clerical errors which should be corrected.” The affidavit then itemized three errors which are the use of a corporate name, rather than Mr. Vickers’ name individually, in three places in the mortgage. One of those errors is the signature which has Mr. Vickers appearing as corporate representative.

In In re Huber Oil of Louisiana, Inc., 311 B.R. 440 (Bankr.W.D.La.2004), the court determined that the exclusion of property from a property description in a cash sale and the mortgage which secured the purchase of the property was a clerical error by considering the affidavits of the parties to the transactions. While the Huber opinion does not clearly specify who executed affidavits and what each affiant averred therein, it indicates that the affidavits therein say more than the Notarial Act submitted by Homeland Federal Savings Bank (Homeland). The opinion states:

|2The affidavits of all parties involved, including [the closing attorney], lead to the inescapable conclusion that the exclusion of the Omitted Property occurred during the physical preparation of the documents and that no reasoning or thought process was involved. The entire record of this proceeding clearly reflects an intent for Huber to transfer and Nelson to receive the Omitted Property. The court therefore finds that the inclusion of the Omitted Property in the less and except clause was a clerical error and the correction of such error is within the reach of LSA-R.S. 35:2.1.

Id. at 444.

The Notarial Act does not address the intent of the parties with regard to the mortgage, i.e., was it intended to secure a corporate loan or a personal loan to Mr. Vickers. A review of the mortgage itself does not lead to an answer because, while the title and the signature line of the document indicates that it is a corporate loan, the description of the appearer within the body of the mortgage is Mr. Vickers individually, not the corporation represented by Mr. Vickers. This supports Homeland’s claim that a clerical error occurred in the preparation of the mortgage. Furthermore, while the Petition for Intervention itemizes the indebtedness of Mr. Vickers to Homeland, no promissory notes evidencing the alleged indebtedness are attached to the Petition. The indebtedness could be Mr. Vickers’ personal debt. However, it could also be a corporate debt, as it is not unusual for the principal of a small corporation to be required to guarantee corporate loans and use personal property as collateral for such loans.

In conclusion, I find that the evidence does not establish that Homeland carried its burden of proof of establishing that the “error” sought to be corrected by the Notarial Act is a “clerical error” and would reverse the judgment of the trial court.

      . This article states that a special mortgage over property a mortgagor does not own is established when the property is acquired by the mortgagor.


author: SUSAN M. CHEHARDY, Judge.

text:
    Jo Kent TAYLOR (Widow of Gary M. Taylor) v. J. Phillip BOUDREAUX, M.D., et al.
    No. 09-CA-266.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 2009.
    Rehearing Denied Feb. 2, 2010.

      Robert J. David, Tara J. Gilbreath, Attorneys at Law, New Orleans, LA, For Plaintiff/Appellant, Jo Kent Taylor.
    James D. Caldwell, Attorney General, State of Louisiana, J. Marc Vezina, Kelli M. Khalaf, Emily Fournier, Special Assistant Attorneys General, Gretna, LA, for Defendants/Appellants, The State of Louisiana Through the Louisiana State University Health Sciences Center and J. Philip Boudreaux, M.D.
    Vance A. Gibbs, Jason R. Cashio, Randal R. Cangelosi, Attorneys at Law, Baton Rouge, LA, for Defendants/Appellees, James D. Fletcher, M.D. and Baton Rouge Radiology Group, Inc.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

|2This is a medical malpractice suit in which the plaintiff and a group of defendants appeal a summary judgment in favor of another group of defendants. We reverse and remand.

Jo Kent Taylor, widow of Gary M. Taylor, filed suit on June 24, 2008 against J. Philip Boudreaux, M.D.; Baton Rouge General Medical Center; James Fletcher, M.D.; and Fletcher’s employer, Baton Rouge Radiology Group, Inc. The following facts are derived from the allegations of the petition and other documents in the record:

On February 8, 2006 Dr. J. Philip Bou-dreaux performed surgery for cancer on Gary Taylor at Baton Rouge Medical Center. Dr. Boudreaux ordered a “post-procedure, inter-operative, full abdominal series of x-rays to confirm that no sponges, instruments, needles, or laparotomy pads were retained within the abdomen and that the sponge and needle counts were correct.” The radiologist, Dr. James D. Fletcher, reported the x-rays were clear.

| :iMr. Taylor was discharged from the hospital on February 17, 2006 and returned home, but his condition did not improve. He returned to Baton Rouge Medical Center on March 6, 2006, again under the care of Dr. Boudreaux. A CT scan of his abdomen revealed a foreign object had been left in his body during the February 8th surgery. Dr. Boudreaux performed a second surgery on Mr. Taylor on March 9, 2006 to remove the foreign object, which turned out to be a gauze pad or pads.

Following that surgery, Mr. Taylor developed an infection. His condition deteriorated over the following months and he died on July 14, 2006.

Mrs. Taylor filed a complaint with the Patient’s Compensation Fund on February 16, 2007. In argument to the medical review panel, Dr. Boudreaux contended that the gauze pad or sponge count was correct, leaving as the only inference that the nurses employed by Baton Rouge General Hospital failed to meet the appropriate standards of care. Dr. Boudreaux further contended that a post-operative x-ray was run solely to confirm the absence of all foreign materials in Mr. Taylor’s abdomen and the correctness of the gauze pad/ sponge count, and that the x-ray confirmed the absence of any foreign bodies and the correctness of the sponge count, leaving as the only inference a breach in the standard of care by Dr. James Fletcher.

The medical review panel rendered a decision on June 9, 2008 finding that Dr. J. Philip Boudreaux failed to comply with the appropriate standard of care as charged in the complaint, because there was a foreign body left in the patient at the time of surgery. The panel concluded the conduct complained of was a factor of the resultant damages because the patient required an additional operation, but it did not contribute to the patient’s death, which was due to progression of his cancer.

|/fhe panel concluded that Baton Rouge General Hospital and Dr. Fletcher did not fail to meet the applicable standard of care. As to Baton Rouge General Hospital, the panel found “an incorrect count was reported to the surgeon by the nursing staff’; as to Dr. Fletcher, the panel stated that “Dr. Fletcher reported two possible foreign bodies on the intraopera-tive studies. Only one drain was placed in the patient.”

Plaintiff filed this suit on June 24, 2008. After filing an answer, Dr. Fletcher and Baton Rouge Radiology Group, Inc. (hereafter collectively called “Fletcher”) filed a Motion for Summary Judgment. In support of the motion Fletcher filed affidavits and a copy of the medical review panel’s opinion. Fletcher listed as Uncontested Facts that the medical review panel found that Dr. Fletcher did not deviate from the applicable standards of care in the treatment of Mr. Taylor; that Plaintiffs claims against Baton Rouge Radiology Group, Inc. are limited to claims of vicarious liability for the acts and/or conduct of Dr. Fletcher; and that Plaintiff has no expert testimony or other evidence whatsoever that Dr. Fletcher breached the standard of care.

The first affidavit was by Dr. Fletcher himself; in it he stated as follows:

A. My treatment of the patient was limited to review of two portable intraoperative radiographs submitted simultaneously for interpretation on February 8, 2006. These studies included an abdominal radi-ograph (KUB) and a portable chest radiograph (PCXR). According to the reported clinical history, these studies were performed for an “instrument count.”
B. Although the KUB did not include the entire upper abdomen, the PCXR did include the upper abdomen. With the combination of both studies, the entire abdomen was able to be evaluated. A handwritten Temporary Radiology Report was sent to the patient’s operating room nurse at the time the PCXR and KUB were dictated. The handwritten report notes under Radiologist’s |sImpression: “KUB: radioo-paque drain LUQ.? Penrose RUQ. No metal instrument in abdomen. PCXR: Rij catheter (arrow indicating courses toward) SVC. No PTX.” Further, the PCXR and KUB reports were also officially typed and made available in the patient’s chart and identified the findings of the respective studies.
C. As set forth in my dictated report for the KUB study, I reported, “[mjultiple surgical clips within the left upper quadrant. Foley catheter. No radioopaque metal instrument is demonstrated. Bowel gas pattern appears unremarkable. Patient’s nurse was informed by written report at the time of the interpretation.” For the CXR study, I reported, “[cjomparison is made to February 7, 2006. Endotracheal tube terminates approximately 4 cm above the carina. Right internal jugular vascular catheter terminates in the SVC. There is a nasogastric tube in place. Normal heart size. Imaged lungs appear clear. Noted is a curvilinear drain which may be a Penrose drain right upper quadrant and drain in the upper quadrant. Patient’s nurse was informed by written report at the time of interpretation.”
D. That was the extent of my involvement with the treatment and/or care of Mr. Taylor as it relates to the claim filed against me.

Dr. Fletcher’s affidavit continued with statements that at all relevant times, he possessed the expected degree of knowledge and skill of a physician licensed to practice radiology, and utilized reasonable care and diligence, and his best judgment, in applying that skill and knowledge in this patient’s treatment and/or care; that his involvement with the treatment and/or treatment of the patient was well within the standard of care; that the claim against him was subject to a medical review panel proceeding, and the panel rendered a unanimous decision in his favor,

Dr. Fletcher’s affidavit was supported by affidavit of Dr. David Walker, who was a member of the medical review panel proceeding in this case. Dr. Walker attested he has been board-certified and practicing medicine in the field of | (¡radiology for 26 years; he was directly involved in rendering the panel decision in this case; he reviewed the medical records and other materials submitted by the parties, discussed the treatment at issue with the other members of the panel, discussed legal and procedural matters with the attorney chairman of the panel, and rendered a medical opinion in favor of Dr. Fletcher as to the treatment and/or care Dr. Fletcher provided to the decedent.

Fletcher asserted they are entitled to be dismissed from this suit because Plaintiff failed to identify an expert witness to refute the assertion of Dr. Fletcher and the members of the medical review panel that he did not meet the applicable standard of care. Further, Plaintiff failed to respond to Fletcher’s Request for Admission of Fact within the delay allowed by law. As such, Fletcher asserted, the requests are deemed admitted, and Plaintiff has no expert to support her claim that the treatment or services rendered by Dr. Fletcher to Mr. Taylor did not meet the applicable standard of care. Accordingly, Fletcher asserted they are entitled to summary judgment because Plaintiff will fail to carry her burden of proof at trial.

In opposition, Plaintiff asserted the pertinent questions are whether Dr. Fletcher correctly interpreted and reported the x-rays to the surgeon, Dr. Boudreaux, and/or whether Dr. Fletcher knew or should have known that the x-rays may not have visualized the correct area. Plaintiff filed her own affidavit in opposition to the motion for summary judgment, in which she stated that Dr. Boudreaux told her and her husband on March 6, the day before the surgery to remove the foreign object, that the x-ray taken post-operatively on February 8 was of the wrong area. She argued that raised the question of fact as to whether Dr. Fletcher should have recognized that the film did not fully identify the area sought to be visualized.

17Pr. Boudreaux and his employer, the State of Louisiana through the Louisiana State University Health Sciences Center, opposed the motion for summary judgment by arguing that Dr. Fletcher, the radiologist, had failed to visualize two retained gauze pads in the postoperative x-ray. Dr. Boudreaux asserted that the x-ray did not adequately visualize all required areas. In his affidavit, Dr. Boudreaux claimed that Dr. Fletcher did not take a full abdominal series of x-rays, did not include the entire upper abdomen, and he was not told by either Dr. Fletcher or the nurses that a complete abdominal series was not taken as ordered. Further, Dr. Boudreaux stated, he was not shown the Temporary Radiology Report. In addition, he reviewed with the nurses the operative report of February 8, 2006, recording a correct sponge count; if the sponge count eventually was recorded as incorrect, the record was altered post-operatively, after the close of the patient, and after the written operative report was reviewed by Dr. Bou-dreaux, the director of nursing, and the head OR nurse.

In response to the Movers’ requests for admission, Dr. Boudreaux admitted he “did not personally speak with,” “have any conversation directly with,” or “have any verbal communication with” Dr. Fletcher on February 8, 2006 regarding Mr. Taylor.

The district court granted the motion for summary judgment, giving oral reasons for judgment as follows:

Base[d] upon the review of the record and the pleadings filed, I do find persuasive the fact that no expert in the field of radiology can step forward and tell the Court that Doctor Fletcher breached his standard of care to the patient. I understand the arguments with regard to the communication, but at this stage I don’t believe that you have presented sufficient facts to put this issue in dispute. I’m granting the motion for summary judgment for those reasons.

Plaintiff appealed; Dr. Boudreaux and the State also appealed.

|sIn her brief Plaintiff adopts all arguments made by Boudreaux and the State (hereafter collectively called “Boudreaux”).

Boudreaux contends the trial court erred by granting the motion for summary judgment because there are genuine issues of material fact that should be determined by the finder of fact.

Boudreaux argues expert testimony is not necessary where a physician commits an “obvious careless act,” and that lack of communication is obvious negligence. Boudreaux asserts the substantive change in results from clear to a possible foreign body required Dr. Fletcher to confirm his communication to Dr. Boudreaux. Bou-dreaux contends it is a breach in the standard of care that involves the substance of the information, not the review or interpretation of films. Accordingly, he argues, this lack of communication is an obvious breach that requires no additional expert testimony.

In support of the argument, Boudreaux refers to the standards of the American College of Radiology, specifically the ACR Practice Guideline for Communication of Diagnostic Imaging Findings, section I, Introduction, page 3 (Revised 2005, Res. 11). Boudreaux attached a copy of the relevant portions of the Practice Guideline to their brief as Exhibit F.

Fletcher has filed a Motion to Strike in this Court, on the ground that the ACR Practice Guideline is not part of the record on appeal. Fletcher points out the Practice Guideline was not among the papers filed in the district court in opposition to the motion for summary judgment, and it is not a self-authenticating document. Because this Court cannot receive new evidence on appeal, Fletcher argues the Practice Guideline cannot be considered, and both Exhibit F and the arguments based on it in Boudreaux’s appellate brief should be stricken.

1¡/The Motion to Strike is granted. As Fletcher points out, this Court has no jurisdiction to receive new evidence on appeal. Palermo v. Morrison Cafeteria, 94-659 (La.App. 5 Cir. 12/28/94), 648 So.2d 1071. Accordingly, it was improper for Boudreaux to include the document as an exhibit to the brief, and to make arguments based on it because neither the documents nor the arguments were presented to the trial court.

Nevertheless, we find a valid basis for reversing the summary judgment. The primary argument by Plaintiff and Boudreaux is that Dr. Fletcher committed an obviously careless act in his treatment of the patient because he initially interpreted the diagnostic studies as “clear,” but subsequently changed his interpretation in a handwritten Temporary Radiology Report without informing Dr. Boudreaux. Dr. Fletcher’s report and the information contained in it, as well as his actions, are the crux of the dispute, yet neither the Temporary Radiology Report nor any report was among the documents provided in support of the motion for summary judgment. Rather, both the proponent and the opponents of the motion relied on affidavits, without including the underlying documents on which the statements in the affidavits were based.

That absence of links in the chain of evidence must defeat the motion for summary judgment. The case, as presented on this motion, was not shown to be ripe for summary judgment.

Accordingly, (1) the Motion to Strike is granted; (2) the judgment is reversed and the case is remanded for further proceedings. Costs of this appeal are assessed against the appellees, James D. Fletcher, M.D. and Baton Rouge Radiology Group.

REVERSED AND REMANDED.

      . Mr. Taylor had been diagnosed with neu-roendocrine tumor, carcinoid syndrome, and pancreatic primary carcinoma with liver metastases. The surgery involved six procedures: a distal pancreatectomy and splenecto-my, a takedown of splenic flexure, an open cholecystectomy, partial resection of the left lateral segment of the left lobe for two tumors, an ultrasound guided radiofrequency ablation of a third tumor in the right lobe of the liver, and an excision of the retroperitone-um and mesenteric tumor implants. The total operative time was 8.5 hours.


author: DECUIR, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. Paul Henry WAGNER.
    No. 09-644.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 9, 2009.

      Bernard L. Knobloch, Jr., Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellant, State of Louisiana, Department of Transportation and Development.
    R. Joseph Wilson, Donald R. Wilson, Attorneys at Law, for Defendant/Appellee, Paul Henry Wagner.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

Iiln this expropriation case, a jury determined the amount of damages to be paid to Paul Henry Wagner by the Louisiana Department of Transportation and Development (DOTD) for the taking of Wagner’s property in a road construction project. The $136,242.00 award consisted of $84,588.00 as the value of the property taken with improvements, and $51,654.00 in other economic losses. Wagner was also awarded attorney fees equal to 25% of $51,162.00, described in the judgment as “the difference between the amount awarded for compensation and the amount deposited into the Registry of Court.” Both Wagner and DOTD have appealed the economic loss portion of the award, and Wagner requests an increase in attorney fees. For the following reasons, the judgment rendered below is amended as urged by Wagner, and as amended, is hereby affirmed.

Wagner was the owner of 2.465 acres of land located at the intersection of U.S. Highway 165 and U.S. Highway 84 in La-Salle Parish near the town of Tullos. On January 27, 2006, in connection with the widening and improvement of U.S. Highway 165, DOTD expropriated a portion of the land owned by Wagner. The taking consisted of 0.885 acres and included two gutted buildings, built decades ago as a gas station and restaurant, leased at the time of the taking for a future flea market. The remaining property, which Wagner had never developed since inheriting the tract in the 1980s, consisted of a wooded lot fronting U.S. Highway 165 and restricted in part by a sewage servitude.

Wagner testified that he hoped to build a modern gas station and convenience store on the property. He presented the testimony of Michael Wilson, who was qualified as an expert in the planning, construction, and operation of convenience stores, who opined that the highest and best use of the subject property is as a ^convenience store due to several factors. The property is located at the only intersection of two U.S. highways in the parish, it is sixty miles along U.S. Highway 165 from the nearest similar facility, and it is the only corner at the intersection feasible for construction of such a facility. Wagner also presented the testimony of two experts who described the steps necessary to prepare the wooded, unimproved property for construction, including moving the sewage line, at a cost of nearly $130,000.00. In this appeal, Wagner does not ask the court to award damages for the construction of a new, modern building; rather, he requests an increase in damages to reflect the estimated cost of preparing his remaining tract for construction at his own expense. Mr. Shelby Loe, an expert contractor in the field of site preparation, estimated that cost at $129,291.50. Loe’s testimony was unrefuted.

By contrast, DOTD’s evidence consisted of estimates of the value of the property taken and severance damages, as well as a discussion of the lack of other economic damages. Severance damage is essentially the diminution in value of the landowner’s remaining property after the taking of the subject property. The State’s appraisers used different methods of calculating Wagner’s loss and ultimately offered Wagner a total of $85,080.00, representing the value of the land and improvements thereto, plus severance damages. DOTD deposited that amount into the registry of the court at the time of the taking.

After considering the evidence presented, the jury awarded Wagner a portion of the damages he claimed, assessed at $51,654.00 for “other economic losses,” a figure taken from Loe’s testimony and listed as an itemized expense in the work he proposed. DOTD contends Wagner has not proved any economic losses, while 13Wagner argues he is entitled to no less than $129,291.50, the full amount of Loe’s proposed work.

In the recent case of Lafayette City-Parish Consolidated Government v. Entergy Gulf States, Inc., 07-1065 (La.App. 3 Cir. 1/30/08), 975 So.2d 177, 181, writ denied, 08-685 (La.5/16/08), 980 So.2d 712, this court discussed the standard of review in an expropriation case:

The standard of appellate review of factual findings in a civil action is the manifest error/clearly wrong standard, and factual findings should not be reversed absent manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the reviewing court may not reverse. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Id.

An assessment of damages in an expropriation case must include consideration of the most profitable use to which the land can be put “by reason of its location, topography, and adaptability.” City of Shreveport v. Abe Meyer Corp., 219 La. 128, 52 So.2d 445, 447 (1951). The process of taking such factors into consideration is commonly known as the “highest and best use” doctrine. Exxon Pipeline Co. v. Hill, 00-2535 (La.5/15/01), 788 So.2d 1154, 1160; State, Dep’t of Highways v. Rapier, 246 La. 150, 164 So.2d 280 (1964). “It is well established that the current use of the property is presumed to be the highest and best use and the burden of overcoming that presumption by proving the existence of a different highest and best use based on a potential, future use is on the landowner.... The characteristics examined by the experts cannot be speculative and must consider the property in its use at the time of expropriation.” Exxon, 788 So.2d at 1160-62.

|4The jury was presented with evidence showing that the highest and best use of the subject property was as a commercial site. Wagner testified as to his intention to build a gas station and convenience store on the property. Wagner explained that he had not upgraded to a new gas facility which complied with current laws because the road construction project had been discussed for a decade or more; he did not want to build a modern gas station only to have it torn down by DOTD a few years later. The jury also heard evidence regarding the need to incur expenses in moving the sewage line on the remainder property. Mr. Loe’s testimony on that subject, as well as his written estimate of $129,291.50 in costs to properly prepare the property for construction, was uncontradicted by DOTD. Nevertheless, the jury quantified Wagner’s economic loss in the adaptation of the remainder property to commercial use at $51,654.00, a figure taken from the testimony of Mr. Loe, but which specifically did not include the cost of moving the sewage line. Finding error in the jury’s decision to award only part of the proven amount of damages, we increase the economic damages awarded to Wagner to $129,291.50.

In this appeal, Wagner also requests an increase in the amount of attorney fees awarded by the trial court, as well as additional attorney fees for work done pursuant to this appeal. As Wagner’s appellate efforts have been successful, we find he is entitled to the relief sought. We hereby increase attorney fees to 25% of $129,291.50, and we award $5,000.00 for work performed pursuant to this appeal

For the above and foregoing reasons, the judgment of the trial court is amended so as to increase the award of damages to $129,291.50, increase the award of attorney fees to 25% of $129,291.50, and award $5,000.00 in additional fees for work done |fion appeal. As so amended, the judgment is hereby affirmed. Costs of the appeal are assessed to DOTD, specified as $3,200.70.

AFFIRMED AS AMENDED.