author: COOKS, Judge.

text:
    CAJUNS FOR CLEAN WATER, LLC et al. v. CECELIA WATER CORPORATION d/b/a Cecilia Water Corporation, et al.
    18-185
    Court of Appeal of Louisiana, Third Circuit.
    October 3, 2018
    John Michael Parker, L. Adam Thames, Taylor, Porter, Brooks & Phillips, LLP, P. O. Box 2471, Baton Rouge, LA 70821, (225) 381-0272, Attorneys for Defendant/Appellant Cecelia Water Corporation.
    Rachael S. Kellogg, Schafer & Schafer, LLP, 328 Lafayette Street, New Orleans, LA 70130, (504) 522-0011, Attorney for Defendant/Appellant American Alternative Insurance Corporation.
    Jacques P. Soileau, P.O. Box 344, Breaux Bridge, LA 70517, (337) 332-4561, Attorney for Plaintiffs/Appellees Jacqueline Berard, Glenn Richardson, Laci Soileau and Cajuns for Clean Water, LLC.
    Court composed of Sylvia R. Cooks, John D. Saunders and Elizabeth A. Pickett, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Jacqueline Berard, Brandi Berard and Cajuns for Clean Water, LLC (Plaintiffs) filed suit against Cecelia Water Corporation d/b/a Cecilia Water Corporation (CWC) and their insurer, American Alternative Insurance Corporation, alleging damages as a result of poor water quality, no and/or low water pressure, arsenic contamination, bacterial contamination, and insufficient water supplied to meet ordinary daily needs of Plaintiffs. In the "First Supplemental and Amending Petition," Glenn Richardson and Laci Soileau joined as additional Plaintiffs adopting all claims made by the original Plaintiffs and seeking the same relief for damages. Plaintiffs filed a "Motion to Certify Class" seeking to convert this suit to a class action pursuant to the provisions of La. Code Civ.P. art. 591, asserting there are approximately 11,700 potential putative class members who have sustained injuries as a result of Defendant's alleged actions and inactions concerning their supplying water to the local population served by (CWC). After a full hearing on the matter the trial court rendered judgment granting Plaintiffs' motion for class certification.

The trial court defined the class as follows:

All persons, businesses, or entities who belong to at least one of the following three groups, and who as a direct result of receiving their water service from Cecelia Water Corporation between December 1, 2010 and February 2015, have at least one of the following claims: mental and emotional distress; non-reimbursed personal expenses, non-reimbursed business expenses; loss of personal income; loss of business income; nuisance, annoyance, discomfort, and inconvenience; trespass; personal injury including fear of contraction of disease or illness; economic damages or property damage.
1. Households and their residents who at any time between December 1, 2010 and February 28, 2015, were receiving their water supply from the Cecelia Water Corporation;
2. Owners and/or occupants of businesses, schools or health care facilities who at any time between December 1, 2010 and February 28, 2015, were receiving their water supply to that business, school, or health care facility from the Cecelia Water Corporation;
3. Lessor/Lessees of residential and/or commercial property who at any time between December 1, 2010 and February 28, 2015, were receiving their water supply to that property from the Cecelia Water Corporation.

The trial court also confirmed Jacqueline Berard and Glenn Richardson as representatives of the class and confirmed Jacques Pierre Soileau and W. Glenn Soileau as counsel for the Class. Further, the trial court prohibited any contact between defense counsel and the class representatives or class members regarding this class action suit "unless otherwise approved by [the] Court in advance." The trial court rendered an eight-page written reasons for judgment setting forth its findings of fact and detailing its reasons for concluding Plaintiffs satisfied the numerosity, commonality, typicality, and adequacy requirements of La. Code Civ.P. art 591(A) as well as its reasons for identifying an objectively definable class of claimants. Plaintiffs also presented evidence satisfying "one or more criteria of La.C.C.P. art. 591(B)" according to the trial court.

Defendants appeal the trial court's order granting class certification and the trial court's definition of the class, asserting the trial court failed to "perform a rigorous analysis of the claims and defenses presented." They also assert Plaintiffs failed to establish commonality, predominance and superiority "because they cannot prove breach, causation, and damages on a class-wide basis." Additionally, Defendants maintain the trial court erroneously based its finding of "numerosity" on the "number of potentially aggrieved parties" rather than on the "number of individuals actually aggrieved."

LAW AND ANALYSIS

The supreme court has made clear "any errors to be made in deciding class action issues should be in favor of and not against the maintenance of the class action." McCastle v. Rollins Environmental Services of Louisiana, Inc. , 456 So.2d 612, 618 (La. 1984). In Baker v. PHC-Minden, L.P. , 14-2243 p. 12 (La. 5/5/15), 167 So.3d 528, 538 (emphasis added), the supreme court also set forth the applicable appellate standard of review:

A trial court has wide discretion in deciding whether to certify a class. Brooks [v. Union Pacific R. Co. ], 08-2035 at p. 10 [ (La.05/22/09) ], 13 So.3d [546] at 554. Subject to the manifest error standard, its factual findings can only be reversed upon finding, based on the entire record, no reasonable factual basis for the factual finding and the factfinder is clearly wrong. Stobart v. State, through Department of Transp. and Development, 617 So.2d 880, 882 (La.1993). However, we review its ultimate decision of whether or not to certify the class under the abuse of discretion standard. Dupree [v. Lafayette Ins. Co. ], 09-2602 at p. 7 [ (La.11/30/10) ], 51 So.3d [673] at 680. Implicit therein "is recognition of the essentially factual basis of the certification inquiry and of the district court's inherent power to manage and control pending litigation." Brooks, 08-2035 at p. 11, 13 So.3d at 554.

After a full review of the record we cannot say the trial court's factual findings are manifestly erroneous. The record is replete with evidence which wholly supports the trial court's well-reasoned decision regarding class certification and its thoughtful definition of the class. Further, we find no abuse of discretion in the trial court's ultimate decision to grant certification of this matter as a class action. We are impressed with the trial court's detailed reasons for judgment and quote at length its findings:

Plaintiffs, customers of Cecelia water Corporation ("Cecelia"), have brought this suit against Cecelia alleging continued problems with water quality and quantity. They have alleged that over the course of several years Cecelia has provided water of inadequate quality and quantity. As of 2014 the Defendant Cecelia Water Corporation had roughly 3,776 customers.
As to water quantity, Plaintiffs have alleged that water is regularly rendered by Cecelia to their homes as low to no water pressure. The evidence shows that the Cecelia Water Corporation has had continual and ongoing problems with water pressure and providing water to its customers in adequate amounts. In 1996 an extensive engineering report was written documenting Cecelia's inability to meet demand and Cecelia's low water pressure problems. The 1996 report recommended that a new plant be built on the Western end of the system at the D'Augerau Road location. Recognizing this continuing low-pressure problem, Cecelia has continued to discuss building a new plant at the D'Augerau Road location over the years. However, to date no new plant has been built.
Despite the documented demand problems, Cecelia has continued adding water lines and customers to its system throughout the years. Cecelia applied for a rate increase to the Louisiana Public Service Commission (LPSC), again noting the demand problems with their system and their inability to provide adequate amounts of water to the existing customer base. The proposed rate increase would cover the cost of a new plant at the D'Augereau Road location. This solution had been identified and proposed sixteen (16) years earlier in the 1996 engineering report. The 2011 rate increase to build the new plant was ultimately granted by the LPSC. Cecelia customers have been paying for a new plant now for over five years now. (sic) That plant has still not even begun to be built.
In 2015 Cecelia applied for a second rate increase with the LPSC, again citing the problems with demand and the need to build a new plant at the D'augereau Road location. The LPSC denied Cecelia's second rate increase application. The LPSC stated that one rate increase had already been granted for the new plant and Cecelia had still not even begun the construction of that plant. Customers had bene paying for the new plant all the while.
Separately, in 2014 Cecelia applied for a USDA loan in order to build the new plant. With that loan application Cecelia's engineer, Dale Leblanc, submitted a 2014 engineering report again detailing the pressure and demand problems with the Cecelia water system. Dale Leblanc testified that he began working for Cecelia in 2006, and that he has been discussing building the new plant with the Cecelia board since he began working there.
Corroborating the continuous pressure and demand problems documented by Cecelia's records, the class representatives and customers across the system have testified to regular water pressure problems. Aside from the regular pressure problems generally, the class representatives and other Cecelia customers have testified that they experienced specific no or low water pressure events in 2010, 2013, and 2014. During these events customers had little to no water. Customers could not bathe, flush toilets, and had to purchase bottled water. Alan Blanchard, a representative of St. Martin Parish School Board, testified that in 2014 all four of the public schools in Cecelia had to close because of low water pressure. Cathy Miles-Castille, the owner of the Holiday Inn in Cecelia, testified that many of the businesses around her hotel had to close in 2014 due to the low or no water pressure event. She testifies that her customers had no water and had to get buckets of water from the hotel swimming pool in order to flush their toilets. She also testified that she had to load up all of the hotel linens and bring them to a laundromat for cleaning during this event. Further, she had to supply all of her customers with bottled water during the periods of outage.
The customers' testimony describing these events are consistent with Cecelia's own records indicating that in 2014 two separate Boil Advisories had to be issued due to the low-pressure events. Additionally, in 2014 Cecelia sent out a low-pressure letter to all of its customers detailing the low-pressure problems. The letter explained that the low-pressure event was the result of tremendous strain on the system, which resulted in malfunctioning wells at the plant. Likewise, Cecelia's board minutes document a 2013 low pressure event that is consistent with the customers' testimony who have indicated that they experienced a low or no water pressure event during this time period. Cecelia also sent out a water conservation letter to all customers during this time period directing its customers to conserve their water usage.
Customers testifying to the pressure problems, also testified to discolored water, excessive water sediments, and foul-smelling water. Customers and business owners have testified to having ice machine damage because of excessive water sediment, and clothes ruined because of the discolored water. Customers also testified that they were concerned with the levels of Arsenic in Cecelia's water. Cecelia has been issuing water quality reports ("Consumer Confidence Reports") to all of its customers since at least 2010 indicating that the Arsenic in Cecelia's water exceeds regulatory levels. These annual reports also warn all customers that consuming water with Arsenic could cause cancer and other serious health problems. Some customers have testified that they buy bottled water in order to avoid these health risks. The Court finds the testimony of these customers credible and consistent with Cecelia's records.

The trial court then continued to explain its finding based on the evidence presented in each of the categories set forth on La. Code Civ.P. art. 591. Our review of the record discloses no abuse of discretion by the trial court. The record supports more than a reasonable basis for the findings of fact chronicled in accurate detail by the trial court as set forth above. In fact, the most compelling evidence and testimony supporting the reasonableness of the trial court's findings is supplied by Cecelia's own records and witnesses.

In its various engineering reports, applications for rate increases, and boil water notices Cecelia acknowledged its "problems with low pressure" system-wide and that both its storage and distribution/treatment capability "is not adequate to handle demand." It further acknowledged its system "does not meet the current Louisiana Department of Health Hospital requirements" nor is the system up to the "Ten States Standards" and is "not adequate to serve all of [its] existing customers." Cecelia further acknowledged that the current demand for water by its customers "has exceeded supply of both pressure and quantity " requiring it to purchase water from its neighbor, Breaux Bridge. But, it admits in its reports, that even this effort has not resulted in "increase[ing] the total system pressure." In fact, Cecelia's own engineering report refers to its purchase of water from Breaux Bridge as "only a temporary solution" to its multiple problems and lack of ability to adequately and safely supply its customers. Two boil water notices were issued to all of its customers after the Louisiana Department of Health and Hospitals "document[ed] low water pressure in the water system." Additionally, minutes of Cecelia's board meeting chronicle issues with low water pressure. Finally, even Cecelia admits that if the evidence at trial shows that Arsenic contamination is in fact present at levels exceeding regulatory standards, this poses a serious health threat to all who have consumed water supplied by Cecelia during the operative time frame defined by the trial court. Clearly, class action, as a procedural device, is appropriate in this case where such pervasive system-wide problems admittedly exist and affect all customers.

Louisiana courts are authorized to reference both federal and state class action jurisprudence in the interpretation and application of the statutory requirements for class actions. Duhe v. Texaco, Inc., 99-2002 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, writ denied, 01-0637 (La. 4/27/01), 791 So.2d 637. Moreover, "the trial court is given 'wide latitude' in considerations that require an analysis of the facts relative to the prerequisites for class certification in a given case, and its decision on certification must be affirmed unless it is manifestly erroneous." Parry v. Adm's of Tulane Educ. Fund, 98-2125, p. 3 (La.App. 4 Cir. 6/30/99), 740 So.2d 210, 212, writ denied, 99-2297 (La. 11/12/99), 750 So.2d 197, citing Adams v. CSX R.R., 615 So.2d 476, 481 (La.App. 4 Cir.1993).

West v. G & H Seed Co. , 01-1453 p. 8 (La. App. 3 Cir. 8/28/02), 832 So.2d 274, 281 (emphasis added).

The trial court went to great lengths to explain its application of the law to the facts presented carefully and methodically explaining its finding of numerosity, commonality, typicality, and adequacy all as set forth in La. Code Civ.P. art 591 which provides as follows:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case. This prerequisite shall not be satisfied if it is necessary for the court to inquire into the merits of each potential class member's cause of action to determine whether an individual falls within the defined class.
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;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
(4) The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.
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.

Defendants assert the trial court failed to "perform a rigorous analysis of the claims and defenses presented." Our review of the record finds no support for this contention. To the contrary, as demonstrated in the lengthy quote from the trial court's reasons for judgment, all of which are amply supported by the record as we have detailed above, it is clear to us the trial court delved deeply into Plaintiffs' allegations, heard a significant amount of testimony, and viewed compelling documentary evidence, especially Cecelia's own documents. Defendants also assert Plaintiffs "cannot prove breach, causation, and damages on a class-wide basis" and therefore fail to establish commonality, predominance and superiority. The Louisiana State Supreme Court, in Baker , 167 So.3d at 537 (emphasis added, footnote omitted) held:

The only issue to be considered by the trial court when ruling on certification, and by this Court on review, is whether the case at bar is one in which the procedural device is appropriate. In determining the propriety of such action, the court is not concerned with whether the plaintiffs have stated a cause of action or the likelihood they ultimately will prevail on the merits , but whether the statutory requirements have been met. Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2153, 40 L.Ed.2d 732 (1974).

Additionally, Defendants maintain the trial court erroneously based its finding of "numerosity" on the "number of potentially aggrieved parties" rather than on the "number of individuals actually aggrieved." Neither the Code of Civil Procedure, jurisprudence, nor common sense support this proposition. As we have already noted, the United States Supreme Court directs us that in our review of the trial court's granting class action status our focus is on "whether the case at bar is one in which the procedural device is appropriate. " Id. The record supports the trial court finding that the alleged problems with this water system are system-wide and thus affects some 3,776 customers throughout the Cecelia water system. There is no question here that numerosity is satisfied and that this is the very kind of litigation best addressed through the procedural mechanism of class action. In West , 832 So.2d at 284-85 (emphasis added), we explained why this very argument underscores the appropriateness of class certification:

Every member of the potential class has not been identified; however, this does not serve to defeat certification. To the contrary, it makes certification more appropriate. Indeed, in Royal St. Grocery, Inc. v. Entergy New Orleans, Inc., 99, 01-0374 (La. 4/12/01), 789 So.2d 594, because of difficulty identifying all aggrieved parties, the court found joinder impractical where there was evidence of 4,200 potential class members, but where only 62 aggrieved parties had been already identified for inclusion. In Johnson v. Orleans Parish Sch. Bd., 00-0825, 00-0826, 00-0827, 00-0828 (La.App. 4 Cir. 6/27/01), 790 So.2d 734, writs denied, 01-2216, 01-2225, 01-2215 (La.11/9/01), 801 So.2d 378, 379, the court reviewed the certifiability of a class action by former school students and employees for damages from exposure to hazardous and toxic substances. The fact that only one aggrieved plaintiff had come forward out of potentially thousands was irrelevant to the court, since testimony showed that the school served between 800 and 900 students per year during the time in question.
We note that our determination is based in part upon the number of putative class members, but is also based upon considerations of judicial economy in avoiding multiplicity of lawsuits, financial resources of class members, and the size of their individual claims. Johnson v. E.I. Dupont deNemours & Co., Inc., 98-229 (La.App. 5 Cir. 10/14/98), 721 So.2d 41.

Many of Cecelia's consumers may well be affected to differing degrees individually, but Plaintiff's expert evidence and Defendants' own documents clearly establish the problems alleged by Plaintiffs are system-wide. This means it affects all of Cecelia's customers, both individual residents as well as local schools, businesses and churches. Evidence was presented demonstrating that through the years individual residents as well as witnesses for the school and the Holiday Inn hotel all complained of problems with low or no water pressure and the resulting difficulties including health risks, inconvenience, and added costs. It may be that some consumers are unaware of the problems with the water system or the cause of the problem or it may be that some will not want to file a lawsuit or even join in this class action. But that is not determinative of the question of certification of this litigation as a class action. Defendants say that predominance is also not met here for the interwoven reason that damages suffered by Plaintiffs and class members are or will be individualized and thus prevents a finding of common issues that will be resolved in the class action. This argument, too, is without merit. The allegations of arsenic contamination endangering the health of any and all who drank or bathed in the water, poor water quality, and low or no water pressure resulting in what are really common inconveniences and a common threat to the health of all of the customers results from the admitted systemwide problem. In Allapattah Servs., Inc. v. Exxon Corp. , 333 F.3d 1248, 1261 (11th Cir. 2003), aff'd Exxon Mobil Corp. v. Allapattah Servs., Inc. , 545 U.S. 546, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (emphasis added) the federal court of appeal rejected this argument:

In similar situations, numerous courts have recognized that the presence of individualized damages issues does not prevent a finding that the common issues in the case predominate. See In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 139 (2d Cir.2001) ("Common issues may predominate when liability can be determined on a class-wide basis, even when there are some individualized damage issues"), cert. denied sub nom. Visa U.S.A. Inc. v. Wal-Mart Stores, Inc., 536 U.S. 917, 122 S.Ct. 2382, 153 L.Ed.2d 201 (2002) ; Bertulli v. Indep. Ass'n of Cont'l Pilots, 242 F.3d 290, 298 (5th Cir.2001) ("Although calculating damages will require some individualized determinations, it appears that virtually every issue prior to damages is a common issue"); [Aamco Automatic Transmissions, Inc. v. ] Tayloe, 67 F.R.D. [440] at 450 [ (E.D.Pa. 1975) ] ("[I]n the event of a finding of liability, damages might have to be established on an individual basis. This fact alone, however, does not preclude class action treatment." ). We agree. Based upon the facts of this case, we believe that Exxon's liability to the class for breach of the dealer agreements predominated over the individual issues relating to damages. Thus, the district court did not abuse its discretion in certifying the class.

We also rejected this argument in West and in Clark v. Trus Joist MacMillian , 02-676 (La.App. 3 Cir. 12/27/02), 836 So.2d 454, writ denied , 03-275 (La.4/21/03), 841 So.2d 793. In West , 832 So.2d at 287, we said:

The test of commonality is not a demanding one, and requires only that there be at least one issue, the resolution of which will affect all or a significant number of the putative class members. A common question is defined as one which when answered as to one class member is answered as to all of them." Duhe, 779 So.2d at 1078 (citations omitted). Moreover, "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 Indus. Chem. Serv., Inc., 99-494, p. 3 (La.11/12/99), 759 So.2d 755, 756.

The defendants in Clark , like the Defendants here, contended plaintiffs failed to prove "questions of law and fact common to members of the class predominate and a that (sic) class action is superior to other available methods of the fair and efficient adjudication of the claim." Supra. at 463. Defendants here also argue that some of their customers, such as those whose affidavits Defendants presented at the hearing, have suffered little or no adverse effects from Cecelia's no or low pressure problem and that those who claim to have suffered damage should proceed to sue individually. They also complain that few customers have come forward to date to file suit or join in the present suit. We reject Defendants' argument here based on the rationale we explained in West and Clark , 836 So.2d at 463-64 :

In deciding whether a common character exists the trial court may consider whether maintaining the class action will vindicate public policies or legal rights. The Court [in McCastle v. Rollins Environmental Services of Louisiana , 456 So.2d 612 (La. 1984) ] identified two ways in which use of a class action may effectuate substantive policy:
First, to the extent that they open courts to claims not ordinarily litigated, class actions enable court[s] to enforce policies underlying cause of action in circumstances where those policies might not otherwise be effectuated. Second, to the extent that they enable courts to see the full implications of recognizing rights or remedies, class action procedures assist courts in judging precisely what outcomes of litigation would best serve the policies underlying causes of action. Class action procedures are fair because courts are more likely to see both the significance of the claims of a plaintiff and the consequences of imposing liability upon a defendant, and thus are more likely to arrive at a substantively just conclusion.
McCastle, 456 So.2d at 618.
In this case, the plaintiffs all live in a low[-]income area. Several testified at the certification hearing. Some plaintiffs suffered substantial damage to their property and person, however, many claims appear to be relatively minor. In McCastle , the Supreme Court recognized many small claims, although valid, would not be brought as individual suits. The Court stated:
Although this fact must be considered in determining the propriety of a class action, or conclusion that most of the claims are relatively small is not intended to preclude any party from later proving a large claim. Nonetheless, since the claims do appear to be small, it is probable that a class action would open the courts to many claims which would not ordinarily be litigated because they could not be prosecuted economically as individual actions.
McCastle, 456 So.2d at 618.
The court in Andry [v. Murphy Oil, U.S.A., Co. , 97-793 (La.App. 4 Cir. 4/1/98),] 710 So.2d 1126, affirmed class certification of plaintiffs who suffered damage as a result of an explosion and fire at an electrical plant. Many of the claims asserted were minor in nature. The Andry court noted:
[B]ecause of the potentially large number of de minimus claims, a class action would allow access to the courts for claimants who ordinarily might not be able to litigate due to the relative size of their claims when compared with the expense of litigation. We agree that the nature of the incident favors allowing this case to proceed as a class action. As explained by Justice Tate in Williams v. State, [350 So.2d 131 (1977) ], when individual claims are small, disallowing a class action poses a serious threat to the loss of individual substantive rights....
Andry, 710 So.2d at 1130.
This Court in Duhe, 779 So.2d at 1086, stated:
The most dominant justification for a Rule 23(b)(3) class action is the vindication of the rights of groups of persons with negative value lawsuits ... This policy is at the very core of the class action mechanism ... It is often used as the sole rationale for finding superiority.

We are convinced that this record supports the trial court's findings and we find the procedural requirements for certification of this suit as a class action are fully met. We also find the trial court's class definition sufficiently identifies an objectively definable class of claimants. The judgment of the trial court is affirmed in all respects and costs of this appeal are assessed against Defendants.

AFFIRMED.

      By amended petition Brandi Berard was removed as a plaintiff in this matter.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Roderick Jermaine CAWTHORNE, Jr.
    18-155
    Court of Appeal of Louisiana, Third Circuit.
    October 3, 2018
    Paula C. Marx, Louisiana Appellate Project, P. O. Box 82389, Lafayette, LA 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Roderick Jermaine Cawthorne, Jr.
    Michael Cade Cassidy, District Attorney, Thirty-First Judicial District Court, P. O. Box 1388, Jennings, LA 70546, (337) 824-1893, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana.
    Carla S. Sigler, Special Assistant District Attorney, 901 Lakeshore Drive, Suite 845, Lake Charles, LA 70601, (337) 437-3400, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana.
    Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.
   SAUNDERS, Judge.

On April 29, 2015, Defendant, Roderick Jermaine Cawthorne, Jr., was charged by grand jury indictment with one count of first degree murder, a violation of La.R.S. 14:30, and one count of obstruction of justice, a violation of La.R.S. 14:130.1. On August 17, 2015, the indictment was amended from one count of first degree murder to one count of second degree murder, in violation of La.R.S. 14:30.1(A)(2), and Defendant waived a formal reading of the bill of indictment. Through his counsel, Defendant entered a plea of not guilty, and requested a trial by jury.

A "Motion for Psychiatric Examination of Defendant for Competency and for Insanity and Notice of Insanity Defense" and a "Motion and Order for Sanity Commission" were filed by Defendant's counsel on September 22, 2015. On the same date, Defendant's counsel also filed a "Motion to Change Plea," and Defendant changed his plea to not guilty by reason of insanity. Defendant was evaluated, and the results were submitted to the court, after which Defendant was found competent to stand trial.

On June 26, 2017, following a trial by jury, Defendant was convicted of both the second degree murder and obstruction of justice charges. At the September 11, 2017 sentencing hearing, Defendant was sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence as to the second degree murder charge and forty years at hard labor as to the obstruction of justice charge, to run consecutively to the second degree murder sentence, and Defendant was given credit for time served.

On September 14, 2017, Defendant filed a "Motion for Appeal and Designation of Record" in the trial court, which was granted on the same date.

FACTS

On February 21, 2015, Vermilion Parish Sheriff's deputies responded to a call regarding a burned vehicle in an isolated area about ten miles from Lake Arthur, Louisiana, in Gueydan, Louisiana. Based on paperwork recovered from the vehicle, it was traced to Charles Raymond Talen, a seventy-four-year-old man who lived in Lake Arthur, Louisiana. Jefferson Davis Parish deputies where contacted, and they went to Mr. Talen's home to check on him. There they discovered his body lying on the floor covered in blood, and his hands and feet were duct taped and tied with rope.

Authorities determined that Defendant and Brett Hebert planned to rob Mr. Talen. After waiting for hours outside of his home, they called Mr. Talen and told him that he had a package at his gate, which he went outside to retrieve. Defendant and Hebert then confronted Mr. Talen, hit him, and entered the home with Mr. Talen at gunpoint.

Mr. Talen grabbed a revolver out of his desk and pointed it at Hebert. Armed with an AK-47, Hebert shot at the floor. Defendant then hit Mr. Talen several times, and Mr. Talen hit his head as he fell. Defendant and Hebert found Mr. Talen's safe and used one of his vehicles to take it from the home. They were able to open the safe with a crow bar and hammer. After retrieving gold coins and paperwork from the safe, they dumped it into a river. They also attempted to get rid of their clothes by dumping them into the river as well. They then placed the duct tape, ski masks, and other items they had used into Mr. Talen's car and set it on fire in an attempt to destroy the evidence.

ERRORS PATENT:

In accordance with La. Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

We will combine these assigned errors as they are interrelated. As such, we will adjudicate them under one heading.

In Defendant's first assignment of error, he alleges that the trial court erred when it ordered an eighteen-year-old offender to serve excessive consecutive sentences of life in prison without benefits for the second degree murder conviction and a maximum sentence of forty years at hard labor for the obstruction of justice conviction. He separates this assignment into three parts: a) the denial of parole for the second degree murder conviction was excessive; b) the maximum sentence of forty years for the obstruction of justice conviction was excessive; and c) the consecutive sentences are not justified by the record, the trial court failed to give reasons to support imposing consecutive sentences, and the imposition of consecutive sentences is excessive. We find no merit to Defendant's arguments.

In his second assignment of error, Defendant stated that should we find that his first assignment of error was precluded from review or limited to a bare excessiveness claim for failure to file a motion to reconsider sentence, then he was denied effective assistance of counsel because of this failure. We find that Defendant's claim is limited, so discussion of this and Defendant's claim of ineffective assistance of counsel follow.

This court recently discussed a similar claim in State v. Green , 16-938, p. 40-41(La.App. 3 Cir. 7/19/17) 248 So.3d 360, 385-86, writ denied , 17-1348 (La. 4/27/18), 239 So.3d 836 :

[I]neffective assistance of counsel claims are usually raised in an application for post-conviction relief, but may be addressed on appeal when the record is sufficient to review them. [ State v. ] Nargo , [15-779 (La.App. 3 Cir. 6/1/16),] 193 So.3d [1263,] 1268. Additionally, a claim of ineffective assistance of counsel at sentencing is not cognizable on collateral review when the sentence imposed is within the authorized range of the sentencing statutes. State v. Thomas , 08-2912 (La. 10/16/09), 19 So.3d 466. Because the record is sufficient to review Green's ineffective assistance of counsel claim as to his counsel's failure to file a motion to reconsider sentence, and because Green is precluded from raising the claim on post-conviction, we will address the claim.
In State v. Parker , 16-1016 (La.App. 1 Cir. 2/17/17), 2017 WL 658256 (unpublished opinion), the first circuit stated the following regarding the ineffective assistance of counsel claim for failure to file a motion to reconsider sentence:
Louisiana Code of Criminal Procedure article 881.1(E) provides that the failure to make or file a motion to reconsider sentence precludes a defendant from raising an excessive sentence argument on appeal .... In the interest of judicial economy, however, we will consider the defendant's excessive sentence argument, even without a motion to reconsider sentence, to address his claim of ineffective assistance of counsel. Failure to file a motion to reconsider sentence in itself does not constitute ineffective assistance of counsel. Nevertheless, if the defendant can show a reasonable probability that, but for counsel's error, his sentence would have been different, a basis for an ineffective assistance claim may be found.
Parker , 16-1016 at p. 21 (citations omitted).
The court in Parker proceeded with an excessive sentence review and ultimately found that the defendant failed to show a reasonable probability that his sentence would have been different had his trial counsel filed a motion to reconsider sentence. Following this same framework, we will first review Green's sentence for excessiveness.

Given the above, this court will follow this same framework.

Excessive Sentence Review

Louisiana courts have laid out the following guidelines with regard to constitutionally excessive sentence review:

Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762 (La.1979). In State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell , 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-0165 (La.6/30/00), 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Further, in reviewing the defendant's sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee , 425 So.2d 1251 (La.1983) ), writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:
While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste , 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, 958.

State v. Soileau , 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005-06, writ denied , 14-452 (La. 9/26/14), 149 So.3d 261.

In State v. Dorthey , 623 So.2d 1276 (La.1993), the supreme court stated that the trial courts should abide by the legislatively mandated sentences unless such sentences are unconstitutional. The legislature has imposed only one possible sentence for second degree murder. Louisiana Revised Statutes 14:30.1(B) requires that anyone convicted of second degree murder "shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence."

It is within the legislature's prerogative to determine the length of the sentence imposed for the crimes classified as felonies, and the courts are charged with applying these punishments unless they are found to be unconstitutional. State v. Dorthey , [623 So.2d 1276 (La.1993) ]; State v. Armstrong , 32,279 (La.App.2d Cir.9/22/99), 743 So.2d 284, writ denied , 1999-3151 (La. 4/7/00), 759 So.2d 92. The decision to assess mandatory life sentences is within the prerogative of the legislature. State v. Parker , 416 So.2d 545 (La.1982) ; State v. Allen , 41,548 (La.App.2d Cir. 11/15/06), 942 So.2d 1244, writ denied , 2007-0530 (La. 12/7/07), 969 So.2d 619.
When there is a constitutional mandatory sentence, a trial court need not justify, under La. C. Cr. P. art. 894.1, a sentence it is legally required to impose. State v. Baker , 49,841 (La.App.2d Cir. 5/20/15), 166 So.3d 1152, writ denied , 2015-1219 (La. 3/4/16), 185 So.3d 745.
In rare circumstances, a downward departure from a mandatory sentence may be warranted if the defendant shows, by clear and convincing evidence, that he is exceptional, namely, that he is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Johnson , 1997-1906 (La. 3/4/98), 709 So.2d 672 ; State v. Dixon , 42,594 (La.App.2d Cir. 1/16/08), 974 So.2d 793, writ denied , 2008-0711 (La. 10/10/08), 993 So.2d 1282, cert. denied , 556 U.S. 1186, 129 S.Ct. 1989, 173 L.Ed.2d 1092 (2009). Although courts have the power to declare a mandatory minimum sentence excessive under Article 1, § 20 of the Louisiana Constitution, this power should be exercised only in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. State v. Ponsell , 33,543 (La.App.2d Cir. 8/23/00), 766 So.2d 678, writ denied , 2000-2726 (La. 10/12/01), 799 So.2d 490 ; State v. Baker, supra .

State v. Little , 50,776, pp. 4-5 (La.App. 2 Cir. 8/10/16), 200 So.3d 400, 403, writ denied , 16-1664 (La. 6/16/17), 219 So.3d 341 (emphasis omitted).

Defendant alleges that his circumstances are exceptional and warrant a downward departure from the legislatively mandated sentence of life without benefits because "he was only eighteen at the time of these offenses and has no criminal history. He has a young son. The opportunity to seek parole at some point in the future should have been granted." Defendant goes on to compare himself and his sentence to that of a juvenile offender, thus making a mandatory life sentence without benefits unconstitutional in his case pursuant to the ruling regarding life sentences for juvenile offenders in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Defendant essentially makes the same argument set forth in State v. Monceaux , 17-1052 (La.App. 3 Cir. 5/9/18), 2018 WL 2138289 (unpublished opinion). Although the defendant in Monceaux did not point specifically to the denial of parole as the reason for excessiveness, he did allege that because of his youth and diminished mental capacity the imposition of a mandatory life sentence without benefits of probation, parole, or suspension of sentence was unconstitutionally excessive, and his attorney's failure to file a motion to reconsider sentence constituted ineffective assistance of counsel.

In Monceaux , this court noted that the defendant pointed to "no jurisprudence indicating Miller is applicable to anyone other than juveniles." Monceaux , 17-1052, p. 3. Here, Defendant also failed to point to such jurisprudence. Further, like the defendants in Monceaux and Little , Defendant's argument here is based on his youth. In both of those cases, just as here, the defendants were examined by commissions to determine their competence to stand trial, and all were found competent to proceed. Monceaux , 17-1052. Little , 200 So.3d 400. In light of the second circuit's ruling in Little , this court determined that the defendant in Monceaux also failed to prove that his circumstances necessitated a downward departure from the statutorily mandated life sentence. Given this court's ruling in Monceaux , we find that Defendant has not proven that his youth creates circumstances to make the mandatory denial of parole for a second degree murder conviction unconstitutionally excessive.

At the sentencing hearing the trial court gave its reasons for imposing the sentences, stating:

The court has considered the following factors, as well as the nature of the present offense, in determining an appropriate sentence ....
....
According to the Presentence Investigation, on February 21st, 2015, deputies from the Jefferson Davis Parish Sheriff's Department responded to the residence of Charles Raymond Talen on a welfare check requested by Vermilion Parish authorities after they discovered a brunt [sic] car with papers inside indicating it belonged to Mr. Talen. When they finally entered the house, they found Mr. Talen bound and bloody on the floor. They were unable to locate a pulse. Numerous interviews were conducted, and the Forensic Investigation Unit from Calcasieu Parish assisted in processing the crime scene. You were later arrested and charged with second degree murder and obstruction of justice. Several other people were charged in connection with this crime. On June 26th, 2017, you were found guilty by the Jefferson Davis petit jury of second degree murder and obstruction of justice. I'm going to file the Presentence Investigation into the record for further reference, if necessary.
In Reviewing the Presentence Investigation, the Court takes note of the fact that you are 21 years of age, that you have a young son, and that this is your first felony conviction. This has been taken into consideration in mitigating against imposition of the maximum sentence in this matter. However, the Court can find no other mitigating factors. The Court will take notice that you still have failed to admit any responsibility or - - or involvement in this crime despite your conviction and despite forensic evidence linking you to the crime scene.
Therefore, the Court sentences you to the Department of Corrections, State of Louisiana, to life imprisonment without the benefit of probation, parole, or suspension of sentence on the second degree murder. The Court has considered the factors. I was here when the evidence was presented. It was - - the burning of the car, the throwing away clothes, the dumping of the safe, the hiding of the money, and no remorse whatsoever in your actions, the Court is going to order that you serve 40 years at hard labor, the maximum sentence on the obstruction of justice, which sentence is to run consecutive to the sentence I have previously imposed.

In reviewing an excessive sentence claim, we look to the nature of the crimes. Second degree murder is classified as a crime of violence under La.R.S. 14:2. At sentencing, the trial court specifically noted that authorities found the victim "bound and bloody, on the floor." Further, expert testimony during trial revealed that the victim died from "blunt force injuries of the head and neck" and detailed at least fifteen to twenty injuries to the victim, including bruises on his head, neck, and abdomen and lacerations on his scalp.

As set forth in La.R.S. 14:130.1, obstruction of justice is punishable by a maximum of forty years in prison if it involves a criminal proceeding in which the defendant could be sentenced to death or life imprisonment. This is a very lengthy sentence which indicates that obstruction of justice involving a very serious crime, like second degree murder, is also a serious offense.

Next, we look to Defendant's nature and background. The trial court ordered a pre-sentence investigation (PSI) which revealed that the defendant was twenty-one years of age at the time of the hearing, had a young son, had no juvenile criminal history, and had no adult criminal history. The trial court stated that it could find no other mitigating factors. Although Defendant was only eighteen at the time of the offense and had no prior criminal history, the trial court pointed to his refusal to take any responsibility or admit any involvement in the commission of the second degree murder, despite there being "forensic evidence" linking him to the scene as the reasons for imposing a life sentence.

The trial court noted Defendant's actions during the commission of the offense, such as burning the victim's car, throwing Defendant's clothes into the river, disposing of the victim's safe, and burying the victim's money, and Defendant's lack of remorse, in sentencing Defendant to the maximum sentence of forty years for obstruction of justice to run consecutively to the life sentence. Although Defendant's background was favorable, as he had no prior criminal history, his lack of remorse and refusal to take any responsibility along with his conduct during the commission of the offenses is also a reflection of his nature.

Finally, we look at the sentences imposed for similar crimes. Louisiana Revised Statutes 14:30.1(B) mandates a sentence of life imprisonment at hard labor without benefits for a conviction of second degree murder, so it follows that the vast majority of sentences imposed for other second degree murder convictions will be the same. This court has previously ruled in many cases that mandatory life without benefits for second degree murder is not unconstitutionally excessive. See State v. Cofer , 16-871 (La.App. 3 Cir. 4/5/17), 216 So.3d 313, writ denied , 17-1150 (La. 5/11/18), 241 So.3d 1014 (affirmed mandatory life sentence without benefits for second degree murder as constitutional despite defendant being a first time offender, college student, and mother); State v. Chehardy , 12-1337 (La.App. 3 Cir. 5/1/13), 157 So.3d 21 (affirmed mandatory life sentence without benefits for second degree murder as constitutional where defendant failed to show his circumstances warranted a downward departure from the mandatory minimum); State v. Boyer , 10-693 (La.App. 3 Cir. 2/2/11), 56 So.3d 1119, writ denied , 11-769 (La. 1/20/12), 78 So.3d 138, (affirmed mandatory life sentence without benefits for second degree murder as constitutional where defendant failed to show his circumstances were unusual such that he should be entitled to a downward departure from the mandatory minimum); State v. Adams , 04-77 (La.App. 3 Cir. 9/29/04), 884 So.2d 694, writ denied , 04-2709 (La. 2/25/05), 894 So.2d 1131, writ denied , 04-2880 (La. 2/25/05), 894 So.2d 1132 (affirmed mandatory life sentence without benefits for second degree murder as constitutional where defendant failed to prove his circumstances warranted a downward departure from the mandatory minimum).

Louisiana courts have frequently affirmed forty-year maximum sentences for obstruction of justice convictions. See State v. Ayala , 17-1041 (La.App. 3 Cir. 4/18/18), 243 So.3d 681 (upheld a maximum forty-year sentence for obstruction of a murder investigation where the defendant burned and bleached the evidence and buried the victim's body); State v. Roberson , 40,809 (La.App. 2 Cir. 4/19/06), 929 So.2d 789 (upheld a maximum forty-year sentence for obstruction of justice for a defendant convicted of second degree murder where the victim's body was found thirty miles from the murder site, and the victim's DNA was found in the trunk of the defendant's vehicle); State v. Royal , 03-439 (La.App. 5 Cir. 9/30/03), 857 So.2d 1167, writ denied , 03-3172 (La. 3/19/04), 869 So.2d 849 (affirmed defendant's forty-year sentence for an obstruction of justice conviction in a second degree murder case where the defendant disposed of the murder weapon in a river); State v. McKnight , 98-1790 (La.App. 1 Cir. 6/25/99), 739 So.2d 343, writ denied , 99-2226 (La. 2/25/00), 755 So.2d 247 (affirmed a forty-year sentence for obstruction of justice where evidence established that the defendant, a first-time felony offender, disposed of her twenty-two month old babysitting charge's body by throwing it from a car on the bridge into the water).

Additionally, in Roberson , 929 So.2d 789, the second circuit found that the trial court did not err in ordering the defendant's life sentence for second degree murder and forty-year sentence for obstruction of justice to be served consecutively.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. Code Crim.P. art. 883. It is within a trial court's discretion to order sentences to run consecutively rather than concurrently. State v. Robinson , 33,921 (La.App. 2d Cir. 11/1/00), 770 So.2d 868.

Id. at 804.

Defendant argued in his brief that the court failed to justify an imposition of consecutive sentences. Defendant pointed to this court in State v. Hurst , 10-1204 (La.App. 3 Cir. 4/13/11), 62 So.3d 327, writ denied , 11-975 (La. 10/21/11), 73 So.3d 383, where the court stated:

Before the trial court may impose consecutive sentences, it "must articulate particular justification for such a sentence beyond a mere articulation of the standard sentencing guidelines set forth in La.C.Cr.P. art. 894.1." State v. Dempsey , 02-1867, p. 5 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, 1040 (citing State v. Pittman , 604 So.2d 172 (La.App. 4 Cir.1992), writ denied , 610 So.2d 796 (La.1993) ). The following factors may be considered:
the defendant's criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant constitutes an unusual risk of danger to the public, the defendant's apparent disregard for the property of others, the potential for the defendant's rehabilitation, and whether the defendant has received a benefit from a plea bargain.
State v. Thibodeaux , 05-1187, pp. 8-9 (La.App. 3 Cir. 3/1/06), 924 So.2d 1205, 1211, writ denied , 06-700 (La. 10/6/06), 938 So.2d 65 (quoting State v. Coleman , 32,906, p. 42 (La.App. 2 Cir. 4/5/00), 756 So.2d 1218, 1247-48, writ denied , 00-1572 (La. 3/23/01), 787 So.2d 1010 ) (citations omitted).

As previously noted, in its reasons at the sentencing hearing and its "Reasons for Sentencing" filed on September 11, 2017, the trial court stated that it imposed a sentence of life imprisonment without benefits for second degree murder and forty years at hard labor for obstruction of justice, and ordered them to be run consecutively, because of the nature of the offense and Defendant's failure to take responsibility for the crime.

These reasons adequately set forth justification for imposing a consecutive sentence as required under Hurst as they address specific factors such as the nature and severity of the crime and Defendant's refusal to admit any fault. In light of these considerations, we cannot say that the Defendant's sentences to life imprisonment at hard labor without benefits for second degree murder and forty years at hard labor, to be served consecutively, for obstruction of justice were excessive.

Ineffective Assistance of Counsel

Under the two-prong test in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in order to prevail on a claim of ineffective assistance of counsel, Defendant must show counsel's performance was deficient; then, he must show the deficiency prejudiced him. We find no merit to the assertion by Defendant that his counsel was ineffective.

The defendant in Monceaux also claimed "ineffective assistance of counsel for failure to file a motion to reconsider." Monceaux , 17-1052, p. 3. "As failure to prove prejudice renders the question of deficient performance moot, we will review Defendant's two assignments of error simultaneously. If Defendant cannot prove a downward departure from the mandatory life sentence for aggravated rape was warranted, he cannot prove prejudice under Strickland , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674." Monceaux , 17-1052, p. 4. As previously discussed, Defendant has not proven that he is entitled to a downward departure from the legislatively-mandated sentence of life without parole for a second degree murder conviction, that the forty-year sentence for obstruction of justice was excessive, or that the trial courts order that the two sentences be served consecutively was either not justified by the record or excessive. Because of this, he has not shown prejudice as required under the second prong of the two-part test in Strickland , 466 U.S. 668, 104 S.Ct. 2052. In Monceaux , 17-1052, this court held that such a failure meant that the defendant there also failed to show prejudice thus meaning his claim of ineffective assistance of counsel also failed.

In light of this court's holding in Monceaux , 17-1053, the fact that here Defendant also failed to prove that his circumstances necessitated such a departure from the mandated sentence, failed to prove that his sentence for obstruction of justice was excessive, failed to prove that the consecutive sentences were not justified on the record or excessive, and considering that the reasons the court stated for imposing the sentences make it unlikely that the court would have adjusted the sentences if a motion to reconsider had been filed, we find that Defendant's claim of ineffective assistance of counsel likewise fails.

ASSIGNMENT OF ERROR NO. 3:

Defendant argues in his final assignment of error that the trial court erred in failing to make a factual finding that he was competent to proceed before moving forward with the trial in this case. This claim lacks merit.

At a contradictory hearing on July 6, 2016, reports by Dr. Patrick C. Hayes and Dr. Alfred Buxton detailing their evaluations to determine Defendant's competency were submitted to the court. In his brief, Defendant claims that although the reports entered into evidence found him to be competent to proceed, the trial court was required to make its own finding on the record before proceeding with the trial.

The supreme court has stated, "[a]lthough it may be impossible in a pretrial competency hearing to avoid reliance upon psychiatric prediction concerning the accused's capabilities, the trial court may not rely so extensively upon medical testimony as to commit the ultimate decision of competency to the physician." State v. Bennett , 345 So.2d 1129, 1137 (La.1977). Louisiana Code of Criminal Procedure Article 647 addresses the determination of a defendant's capacity to proceed:

The issue of the defendant's mental capacity to proceed shall be determined by the court in a contradictory hearing. The report of the sanity commission is admissible in evidence at the hearing, and members of the sanity commission may be called as witnesses by the court, the defense, or the district attorney. Regardless of who calls them as witnesses, the members of the commission are subject to cross-examination by the defense, by the district attorney, and by the court. Other evidence pertaining to the defendant's mental capacity to proceed may be introduced at the hearing by the defense and by the district attorney.

In State v. Odenbaugh , 10-268, pp. 7-8 (La. 12/6/11), 82 So.3d 215, 228, cert. denied , 568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012), the supreme court said:

In evaluating the legal capacity of a criminal defendant, this Court, noting [ State v. ] Bennett , [345 So.2d 1129 (La. 1977) ], explained that the trial court's decision regarding a defendant's competency to stand trial "should not turn solely upon whether he suffers from a mental disease or defect, but must be made with specific reference to the nature of the charge, the complexity of the case, and the gravity of the decision with which the defendant is faced." State v. Carmouche , 01-0405 (La. 5/14/02), 872 So.2d 1020, 1039. In Louisiana, a judicial examination of a defendant's competency has focused primarily on whether a defendant "understands the nature of the charge and can appreciate its seriousness."See , Bennett , 345 So.2d at 1138. Additionally, when a defendant's ability to assist in preparing his defense is at issue, the following questions must be considered:
whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives;
whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.
Carmouche , 872 So.2d at 1039 (citing Bennett , supra).
In the exercise of its discretion, the trial court may consider both lay and expert testimony when deciding whether reasonable grounds exist for evaluating a defendant's competency. [ State v.Martin , 00-0489 (La. 9/22/00), 769 So.2d 1168, 1169. An appellate court owes the trial court's determinations as to the defendant's competency great weight, and the trial court's ruling thereon will not be disturbed on appeal absent a clear abuse of discretion. [ State v.Bridgewater , 00-1529 (La. 1/15/02), 823 So.2d 877, 888.

The trial court stated that it reviewed the reports prior to filing them into the record, that the reports stated that Defendant was competent to stand trial and was competent at the time of the offense, and that he could assist counsel. Although the trial court did rely on the reports from the doctors, the court reviewed the reports independently. In the reports, it is clear that Defendant was asked the necessary questions to determine his competency, and the trial court stated that it reviewed them, stating:

All right. Well, the Court has reviewed the reports. The report states that Mr. Cawthorne, the defendant, is competent. Of course, he was also competent at the time of the offense. He can assist counsel.
So, at this time, the Court is going to go forward with the proceedings in this matter.

The trial court, therefore, did make a determination of competence to proceed on the record. Accordingly, this assignment of error lacks merit.

DECREE:

Defendant's convictions and sentences are affirmed.

AFFIRMED.

      The trial court did not specify what forensic evidence it was referencing; however, the record shows that a bloodstain on an envelope in Mr. Talen's office matched the DNA profile from a blood sample received from Defendant.

      Our Supreme Court granted certiorari on other grounds; however, it was subsequently dismissed as improvidently granted.


author: Judge Joy Cossich Lobrano

text:
    XAVIER UNIVERSITY OF LOUISIANA v. Elemuel COLEMAN
    NO. 2018-C-0660
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 3, 2018
    Mark C. Landry, NEWMAN, MATHIS, BRADY & SPEDALE, 433 Metairie Road, Suite 600, Metairie, LA 70005, COUNSEL FOR PLAINTIFF/RELATOR
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Joy Cossich Lobrano )
   Judge Joy Cossich Lobrano

Relator, Xavier University of Louisiana, seeks review of the district court's July 24, 2018 denial of its motion for preliminary default against respondent, Elemuel Coleman, an alleged former student, in a suit filed to recover education debt. We grant the writ and reverse the district court's denial of the motion for preliminary default.

On May 7, 2015, relator filed a petition naming respondent as defendant and demanding payment of a $21,536.31 student debt. The petition requested service upon respondent at 926 LeBoeuf Street, New Orleans, LA 70114 (the "LeBoeuf Street address"). On June 12, 2015, relator filed a motion to appoint special deputy to serve respondent, asserting that the "sheriff of this Parish has held the Citation and Petition which was designated for service on Elemuel Coleman, for an excess of ten days" and "has made a return certifying that he has been unable to effect service of process." On June 15, 2015, the district court appointed Curtis Stallworth to effect service on respondent. The district court again appointed Stallworth to effect service on respondent on June 6, 2018.

On June 21, 2018, Stallworth attested in an Affidavit of Service, in pertinent part, as follows:

On 6-20, 2018, I served Citation and Petition on Elemuel Coleman by leaving same at the domicile or usual place of abode of Elemuel Coleman at 926 LeBoeuf St., N.O. La. 70114 (address) in the hand of Bobby Bolds (name), a person of suitable age and discretion, residing therein as a member of said domiciliary establishment, the said Elemuel Coleman being absent from the domicile at the time of service.

The Affidavit of Service and service return on citation were filed into the record of the district court on June 25, 2018. On July 5, 2018, relator filed a motion for preliminary default, submitting that domiciliary service of the petition and citation was made on respondent on June 20, 2018, the delays for answering had elapsed, and respondent had failed to appear or file an answer. On July 24, 2018, the district court denied relator's motion for preliminary default. This writ application timely followed.

"A judgment of default is sometimes referred to as a 'preliminary default.' " Arias v. Stolthaven New Orleans, L.L.C. , 2008-1111, p. 6 (La. 5/5/09), 9 So.3d 815, 819 (citations omitted). "In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment." Id. , 2008-1111, p. 5, 9 So.3d at 818. "This determination is a factual one governed by the manifest error standard of review." Id.

Here, the petition was served by a private process server, as provided for in La. C.C.P. art. 1293(A), which states in pertinent part:

When the sheriff has not made service within ten days after receipt of the process or when a return has been made certifying that the sheriff has been unable to make service, whichever is earlier, on motion of a party the court shall appoint a person over the age of majority, not a party and residing within the state whom the court deems qualified to perform the duties required, to make service of process in the same manner as is required of sheriffs. Service of process made in this manner shall be proved like any other fact in the case. Any person who is a Louisiana licensed private investigator shall be presumed qualified to perform the duties required to make service.

Under La. C.C.P. art. 1293, the party asserting the validity of a private service return bears the burden of proof. Pendleton Mem'l Methodist Hosp. v. Brumfield , 619 So.2d 680, 682 (La. App. 4th Cir. 1993).

"Service of citation or other process may be either personal or domiciliary, and except as otherwise provided by law, each has the same effect." La. C.C.P. art. 1231. "Domiciliary service is made when a proper officer leaves the citation or other process at the dwelling house or usual place of abode of the person to be served with a person of suitable age and discretion residing in the domiciliary establishment." La. C.C.P. art. 1234.

"A defendant shall file his answer within fifteen days after service of citation upon him, except as otherwise provided by law." La. C.C.P. art. 1001. "If a defendant in the principal or incidental demand fails to answer or file other pleadings within the time prescribed by law or by the court, a preliminary default may be entered against him. The preliminary default may be obtained by oral motion in open court or by written motion mailed to the court..." La. C.C.P. art. 1701(A).

Relator contends that the district court erred in denying its motion for preliminary default. Relator submits to this Court that, on inquiry to the district court staff as to why the motion was denied, counsel for relator was advised that "the judge was of the opinion that there was no evidence in the record that the [respondent] resided at the address where service of process was effected, or that the person served did, in fact, live with the [respondent] at his domicile."

We find that relator made a prima facie showing that domiciliary service of the petition was made on respondent by a private process server, Stallworth. Stallworth attested in his affidavit that (1) the LeBoeuf Street address was respondent's usual place of abode; (2) Bobby Bolds resided at the LeBoeuf Street address; and (3) Stallworth left the citation in the hands of Bobby Bolds at the LeBoeuf Street address. As no contradictory hearing was held or required by La. C.C.P. art. 1701 for entry of a preliminary default, no evidence was introduced into the record to controvert Stallworth's affidavit. The record reflects that the respondent filed no answer to the petition. Accordingly, the district court erred in denying the motion for preliminary default.

Should respondent seek to defend against confirmation of the default judgment, he has the opportunity to do so, as provided in La. C.C.P. art. 1702. Respondent may also file an answer or responsive pleadings prior to confirmation of the default judgment. Moreover, should respondent claim that service was invalid and proceedings are null pursuant to La. C.C.P. art. 1201(A), he may bring an action for nullity at any time, as provided by La. C.C.P. art. 2002.

For these reasons, we grant the writ application and reverse the district court's denial of relator's motion for preliminary default.

WRIT GRANTED; REVERSED