The opinion
JOSEPH ROBERT, GLORIA * NO. 2023-CA-0397
DECUIR-ROBERT, ALBERT
BIERRIA, GWENDOLYN *
BIERRIA, ET AL COURT OF APPEAL
*
VERSUS FOURTH CIRCUIT
*
STATE OF LOUISIANA, STATE OF LOUISIANA
THROUGH THE GOVERNOR, *******
THE DIVISION OF
ADMINISTRATION, STATE
LAND OFFICE, AND THE
ORLEANS LEVEE DISTRICT,
AND THE SOUTHEAST
LOUISIANA FLOOD
PROTECTION AUTHORITY -
EAST
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-09374, DIVISION “F-14”
Honorable Jennifer M Medley,
******
Judge Tiffany Gautier Chase
******
(Court composed of Judge Roland L. Belsome, Judge Paula A. Brown, Judge
Tiffany Gautier Chase)
Roy J. Rodney, Jr.
RODNEY & ETTER, LLC
935 Gravier Street, Suite 2110
New Orleans, LA 70112
Michael G. Bagneris
BAGNERIS, PIEKSEN AND ASSOCIATES, LLC
935 Gravier Street, Suite 2011
New Orleans, LA 70112
COUNSEL FOR PLAINTIFF/APPELLEE
Andre' C. Gaudin
Christopher K. Tankersley
Craig J. Canizaro
BURGLASS & TANKERSLEY, LLC
5213 Airline Drive
Metairie, LA 70001
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
DECEMBER 06, 2023
TGC
RLB
PAB
This appeal seeks review of the trial court’s April 26, 2023 judgment
granting the motion to certify class and motion to admit exhibits filed by Plaintiffs,
Joseph Robert, Gloria Decuir-Robert and Gwendolyn Bierria (hereinafter
collectively “the proposed class representatives”). The appeal is filed by Southeast
Louisiana Flood Protection Authority-East and Orleans Levee District (hereinafter
collectively “the Flood Protection Authority”). After consideration of the record
before this Court, and the applicable law, we affirm the trial court’s judgment.
Facts and Procedural History
The pertinent facts have previously been articulated by this Court:
Defendants are political subdivisions of the State of Louisiana.
Plaintiffs are owners of immovable property that abuts the London
Avenue Canal… .
In 2016, Plaintiffs filed suit against the State of Louisiana, and in
2017, Plaintiffs amended their petition and specifically named
Defendants. The petition alleged Defendants committed an
uncompensated taking of Plaintiffs’ property through the 2015
amendment to La. R.S. 38:225.
***
In 2015, by Acts 2015 Number 287, Section 1, La. R.S. 38:225 was
amended effective August 1, 2015. Section (A)(1)(a) of 38:225
2
continued the fifteen-foot buffer to any waterway fronting a levee,
whereas, Section (A)(1)(b)(i) and (ii) provided that the three named
waterways, which included the [London Avenue] Canal, have a six-
foot buffer, unless the federal government determined that a fifteen-
foot buffer was necessary. Section (A)(1)(b)(i) and (ii) provided in
pertinent part:
A. No person shall:
***
(b)(i) Place or cause to be placed upon or within six feet
of any part of a levee fronting the 17th Street, Orleans
Avenue, or London Avenue outfall drainage canals
located in Orleans Parish that is not used for commercial
navigation, and is subject to the control or surveillance of
police juries, levee boards, municipal corporations, or
other authorized boards or departments, any object,
material, or matter of any kind or character which
obstructs or interferes with the safety of the levees, or is
an obstacle to the inspection, construction, maintenance,
or repair of any levee; or place or cause to be placed any
object, structure, material, or matter of any kind or
character upon any part of any land which the state or
any agency or subdivision thereof may own or acquire by
deed, lease, servitude, charge, or otherwise, and through
its authorized representative, may donate, grant, or
otherwise convey to the United States rights-of-way,
easements, or other servitudes for the construction,
improvement, or maintenance of any flood-control
structures, or natural or other waterway, which may
obstruct or interfere with the improvement or
maintenance of such waterway, or use of the land for
flood-control purposes.
(ii) Item (i) of this Subparagraph shall not be applied if
the federal government, including but not limited to the
United States Army Corps of Engineers or the Federal
Emergency Management Agency, requires, by law or
regulation, the prohibition in Item (i) of this
Subparagraph to be greater than six feet. In that event,
the prohibition in Subparagraph (1)(a) of this Subsection
shall apply to any part of a levee fronting the 17th Street,
Orleans Avenue, or London Avenue outfall drainage
canals located in Orleans Parish.
***
In the petition, Plaintiffs alleged a legislative taking as [a] result of La.
R.S. 38:225, as amended in 2015. Specifically, they asserted the
3
following causes of action: (1) Fifth Amendment Takings Clause
Violation pursuant to the Fifth Amendment of the United States
Constitution and Louisiana Constitution, Article I, § 4; (2) inverse
condemnation; and (3) denial of equal protection under the Louisiana
State Constitution.
Robert v. State, 2020-0524, pp. 2-5 (La.App. 4 Cir. 8/12/21), 327 So.3d 546, 549-
51 (footnotes omitted). After this Court reversed the trial court’s granting of the
motion for partial summary judgment and affirmed the trial court’s denial of the
Flood Protection Authority’s prescription claim, the matter was remanded for
further proceedings.1 Id., 2020-0524, p. 27, 327 So.3d at 565-66.
On December 29, 2016, the proposed class representatives filed a motion to
certify the class and a hearing was initially scheduled on March 24, 2017.
However, after numerous continuances, the parties jointly moved to submit the
motion to certify the class on the pleadings.2 The trial court granted the motion and
by judgment dated April 26, 2023, granted the proposed class representatives’
motion to certify the class and motion to admit exhibits. The trial court defined the
class as follows:
ALL PROPERTY OWNERS WHO OWNED IMMOVABLE
PROPERTY ABUTTING THE LONDON AVENUE CANAL,
NEW ORLEANS, LOUISIANA, ON AUGUST 1, 2015, WHEN
THE ALLEGED UNCOMPENSATED TAKING OCCURRED
TO THE PRESENT.
1 With respect to the reversal of the trial court’s grant of the proposed class representatives’
motion for partial summary judgment, this Court found that the trial court “legally erred in
finding La. R.S. 38:225, as amended in 2015, was a per se taking as a matter of law, and genuine
issues of material fact remain if a taking is supported after a factual inquiry… .” Robert, 2020-
0524, p. 24, 327 So.3d at 564.
2 La. C.C.P. art. 592(3)(a) provides that “[n]o motion to certify an action as a class action shall
be granted prior to a hearing on the motion… .” However, the parties filed a joint motion to
certify the class on the pleadings and waived a formal hearing on the matter.
4
The trial court adopted, in toto, the following pleadings as its reasons for
judgment: (1) the supplemental memorandum in support of [the proposed class
representatives’] motion to certify class action; (2) the reply memorandum in
support of [the proposed class representatives’] motion to certify class action and
opposition to the Flood Protection Authority’s objections to [the proposed class
representatives’] exhibits; and (3) [the proposed class representatives’] motion and
reply memorandum in support of the motion to admit exhibits. This appeal
followed.3
Assignments of Error
By its assignments of error, the Flood Protection Authority challenges the
trial court’s judgment granting of the proposed class representatives’ motion to
certify the class.4 The Flood Protection Authority also seeks review of the portion
of the judgment granting the proposed class representatives’ motion to admit
exhibits.
Standard of Review
“The standard of review for class certification is bifurcated: factual findings
are reviewed under the manifest error/clearly wrong standard, but the trial court’s
3 An amicus curiae brief was filed by the Association of Levee Boards of Louisiana, Inc. – the
coordinating entity of levee districts, drainage districts and parish government in Louisiana. The
amicus curiae brief addresses the same issues raised by the Flood Protection Authority however,
expounds on certain arguments. Amicus curiae briefs are limited to only those issues raised by
the parties. See U. S. Fid. & Guar. Co. v. Victory Land Co., 410 So.2d 359, 361 (La.App. 4th
Cir. 1982) (citations omitted) (“The law is well settled that issues not raised by the litigants
cannot be raised by amicus curiae on appeal… . [R]elief beyond that which is sought by the
parties cannot be requested by amicus curiae.”).
4 The Flood Protection Authority also list as an assignment of error that the trial court erred in
adopting the proposed class representatives’ memoranda as its written reasons for judgment in
granting class certification. Appellate courts review judgments, not reasons for judgment. Miccol
Enterprises, Inc. v. City of New Orleans, 2012-0864, p. 14 (La.App. 4 Cir. 12/19/12), 106 So.3d
746, 754 (quoting Succession of Velasquez-Bain, 471 So.2d 731, 751 (La.App. 4th Cir. 1985)).
Additionally, judgments are often upheld on appeal for reasons different from those assigned by
the trial court. Wooley v. Lucksinger, 2009-0571, p. 77 (La. 4/1/11), 61 So.3d 507, 572.
5
judgment on whether to certify the class is reviewed by the abuse of discretion
standard.” Pollard v. Alpha Tech, 2008-1486, p. 4 (La.App. 4 Cir. 1/28/10), 31
So.3d 576, 581 (citations omitted). As articulated in Pollard,
These two standards of review correspond with the two-step process
for determining whether to certify a class action. First, a trial court
must find a factual basis exists to certify an action as a class action.
Second, the court must exercise its discretion in deciding if
certification is appropriate.
Id., (quoting Galijour v. Bank One Equity Investors-Bidco, Inc., 2005-1360, p. 7
(La.App. 4 Cir. 6/21/06), 935 So.2d 716, 722) (citation omitted) (emphasis
omitted).
Class Actions
A class action is not a traditional litigation procedure as it permits a
representative with a typical claim to stand in judgment for similarly situated
individuals. Baker v. PHC-Minden, L.P., 2014-2243, p. 10 (La. 5/5/15), 167 So.3d
528, 537 (quoting Ford v. Murphy Oil U.S.A., Inc., 1996-2913 (La. 9/9/97), 703
So.2d 542, 544). The procedure is utilized where a common interest exists for so
many people that bringing each claim before the court is impracticable. Id. “The
only issue to be considered by the trial court when ruling on certification…is
whether the case at bar is one in which the procedural device is appropriate.”
Baker, 2014-2243, p. 10, 167 So.3d at 537. Whether plaintiffs have stated a cause
of action or whether they will prevail on the merits of that cause of action is
irrelevant at this stage of the proceedings. Id. (citation omitted). The only
requirement for class certification is that the statutory elements have been satisfied.
Id. (citation omitted).
Whether a class meets the requirements for certification requires a rigorous
analysis. Brooks v. Union Pacific R. Co., 2008-2035, p. 10 (La. 5/22/09), 13 So.3d,
6
546, 554. The trial court is required to evaluate and weigh the relevant factors in
conjunction with the evidence presented. See Id. The party seeking to maintain the
class has the burden of establishing that the statutory requirements for certifying a
class have been satisfied. Dupree v. Lafayette Ins. Co., 2009-2602, p. 10 (La.
11/30/10), 51 So.3d 673, 682. “Any errors to be made in deciding class action
issues should be in favor of and not against the maintenance of the class action,
because a class certification order is always subject to modification or
decertification, ‘if later developments during the course of the trial so require.’”
Baker, 2014-2243, p. 11, 167 So.3d at 537 (quoting McCastle v. Rollins Envtl.
Servs. of Louisiana, Inc., 456 So.2d 612, 620 (La. 1984). Implicit in the decision to
certify a class is recognizing that the certification inquiry is premised on factual
determinations and the trial court’s inherent power to manage litigation. Id., 2014-
2243, p. 12, 167 So.3d at 538 (quoting Brooks, 2008-2035, p. 11, 13 So.3d at 554).
Class Certification
La. C.C.P. arts. 591-597 govern Louisiana class action proceedings. La.
C.C.P. art. 591 sets forth the requirements for class certification and provides, in
pertinent part:
A. One or more members of a class may sue or be sued as
representative parties on behalf of all, only if:
(1) The class is so numerous that 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.
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(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.
La. C.C.P. art. 591(A). The requirements in La. C.C.P. art. 591(A) are often
referred to as the following elements: numerosity, commonality, typicality,
adequacy of representation and objective definability. Once the five prerequisites
are satisfied, La. C.C.P. art. 591(B) “lists three additional criteria, one of which
must also be satisfied for certification depending on the type of class action
sought.” Baker, 2014-2243, pp. 12-13, 167 So.3d at 538.5 In the pleadings before
this Court, and the trial court, the proposed class representatives assert that La.
C.C.P. art. 591(B)(3) is the applicable additional element. La. C.C.P. art. 591(B)(3)
provides, in pertinent part:
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:
***
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.
With these principles in mind, we analyze whether the trial court erred in certifying
the class.
5 The Flood Protection Authority argues that the proposed class representatives do not satisfy La.
C.C.P. art. 591(B)(1) as the proposed class representatives fail to prove that separate actions
would create a risk of inconsistent or varying adjudications; or create a risk that individual
adjudications would dispose of the interests of other properties not subject to the adjudication.
See La. C.C.P. art. 591(B)(1). However, we find La. C.C.P. art. 591(B)(1) inapplicable.
8
Numerosity
The first element considered for class certification is that the members of the
class be so numerous that joinder is impracticable. La. C.C.P. art. 591(A)(1). “A
class action is appropriate whenever the interested parties appear to be so
numerous that separate suits would unduly burden the courts, and a class action
would clearly be more useful and judicially expedient than the other available
procedures.” Davis v. Am. Home Products Corp., 2002-0942, p. 19 (La.App. 4 Cir.
3/26/03), 844 So.2d 242, 257 (citation omitted). Plaintiffs are not required to
identify every member of the class prior to certification. Id. (citation omitted).
The proposed class representatives maintain that they satisfy the numerosity
element as evidenced by the number of homeowners affected by La. R.S. 38:225.
The Flood Protection Authority rejects this argument, contending that the putative
class has no members because enforcement of the statute has not occurred. Thus,
the record is devoid of evidence that a taking materialized.
“The determination of numerosity in part is based 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.” Davis, 2002-0942, p. 19, 844 So.2d at 257 (citations
omitted). The proposed class representatives assert that there are approximately
220 properties that abut the London Avenue Canal that could potentially be
impacted by the 2015 amendment to La. R.S. 38:225. Considering judicial
efficiency and the unknown financial resources of class members, we agree that it
would be impractical for 220 interested parties to file separate suits. Moreover, the
Flood Protection Authority’s argument that the numerosity element is not satisfied
because it has not enforced the statute is unpersuasive. Class certification is not
9
contingent upon whether a party will prevail on the merits. See Baker, 2014-2243,
p. 10, 167 So.3d at 537. Accordingly, we find no error in the trial court’s
determination that the proposed class representatives have satisfied the numerosity
element.
Commonality
The second element considered for class certification is whether questions of
fact or law exist that are common to the class. Dupree, 2009-2602, p. 11, 51 So.3d
at 682. “A common question is one that, when answered as to one class member, is
answered as to them all.” Id., 2009-2602, p. 11, 51 So.3d at 683 (citations omitted).
“[P]laintiffs seeking to satisfy this requirement must demonstrate their ‘claims
depend on a common contention, and that common contention must be one capable
of class-wide resolution—one where the ‘determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one
stroke.’” Baker, 2014-2243, p. 20, 167 So.3d at 543 (quoting Price v. Martin,
2011-853, p. 10 (La. 12/6/11), 79 So.3d 960, 969.
The proposed class representatives assert that they share a common issue
with the putative class––the impact of restricted use of their property pursuant to
La. R.S. 38:225. The proposed class representatives also contend that they share
the common relief sought with the putative class––compensation and injunctive
relief. The Flood Protection Authority argues that the only common thread is the
location of the properties and contend that each claim differs based on the use of
the property and knowledge of the statutory restriction, which ultimately
determines whether an individual will have a viable claim. We find the Flood
Protection Authority’s argument unpersuasive.
10
The proposed class representatives and the putative class own property that
abuts the London Avenue Canal. Each property is subject to the restriction of La.
R.S. 38:225 by the same government entity. Notwithstanding differences in use of
the property and knowledge of the statutory restrictions, each claim shares a
common issue that is central to the validity of all the claims––whether the
restrictions imposed by La. R.S. 38:225 constitute a taking. This issue is common
between the proposed class representatives and the putative class irrespective of
the manner in which the property is being used. Accordingly, we find no error in
the trial court’s determination that the proposed class representatives have satisfied
the commonality element.
Typicality and Adequacy of Representation
The next two elements considered for class certification are typicality and
adequacy of representation. Typicality requires the proposed class representatives’
claims to be typical of the claims of the class. Chalona v. Louisiana Citizens Prop.
Ins. Corp., 2008-0257, p. 8 (La.App. 4 Cir. 6/11/08), 3 So.3d 494, 501. “A
plaintiff's claim is typical if it rises out of the same event, practice, or course of
conduct giving rise to the claims of the other class members and those claims arise
from the same legal theory.” Baker, 2014-2243, p. 21, 167 So.3d at 543 (citations
omitted). For satisfaction of the typicality element, “[t]he representatives’ claims
need not exhibit all of the various types of possible injuries or elements of damages
claimed by the class as a whole.” Allen v. Edwards, 2019-0125, p. 15 (La.App. 1
Cir. 3/12/21), 322 So.3d 800, 811, writ denied, 2021-00502 (La. 6/22/21), 318
So.3d 705 (citing Boyd v. Allied Signal, Inc., 2003-1840 (La.App. 1 Cir. 12/30/04),
898 So.2d 450, 464-65). Adequacy of representation requires “[t]he existence of
representative parties who will adequately and fairly protect the interests of all
11
those in the class… .” Chalona, 2008-0257, p. 8, 3 So.3d at 501-02. “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.” Id., at 502 (citation
omitted). Our Supreme Court has enumerated four “factors which may be relevant”
in analyzing the adequacy of representation element:
1. The representative must be able to demonstrate that he or she
suffered an actual-vis-à-vis hypothetical-injury;
2. The representative should possess [first-hand] knowledge or
experience of the conduct at issue in the litigation;
3. The representative’s stake in the litigation, that is, the
substantiality of his or her interest in winning the lawsuit,
should be significant enough, relative to that of other class
members, to ensure that representative’s conscientious
participation in the litigation; and
4. The representative should not have interests seriously
antagonistic to or in direct conflict with those of other class
members, whether because the representative is subject to
unique defenses or additional claims against him or her, or
where the representative is seeking special or additional relief.
Baker, 2014-2243, p. 22, 167 So.3d at 543-44 (citations omitted). “The law only
requires that the plaintiffs ‘typically’ and ‘adequately’ demonstrate that they
represent a cross-section of the claims asserted on behalf of the class.” Johnson v.
Orleans Par. Sch. Bd., 2000-0825, p. 10 (La.App. 4 Cir. 6/27/01), 790 So.2d 734,
742.
The proposed class representatives argue that their claims are typical and
adequately represent the claims of the putative class because all claimants are
similarly situated. The proposed class representatives contend that they share the
following with the putative class: (1) all own property abutting the London Avenue
Canal; (2) are unable to fully use and enjoy the property based on the restrictions
outlined in La. R.S. 38:225; and (3) have not been compensated for the restricted
12
use of the property. The Flood Protection Authority maintains that the proposed
class representatives cannot adequately represent the putative class because they do
not share a typical claim and each claim differs because use of the property and
knowledge of the statutory restrictions dictate whether an individual will have a
viable claim.
The proposed class representatives and the putative class seek damages for
injuries which occurred because of the same event. The proposed class
representatives allege the same cause of action as the putative class––restricted use
of their property; first-hand knowledge of the restrictions to their property as a
result of La. R.S. 38:225; have a shared interest in winning the litigation with the
putative class; and have not demonstrated a conflict with other class members. The
proposed class representatives and the putative class likewise assert the same legal
theory of whether the restrictions imposed by La. R.S. 38:225 constitute a taking.
Additionally, the record reflects that potential members of the putative class
testified that the proposed class representatives have actively participated in the
proceedings and believe the proposed class representatives will adequately
represent their interests. The record demonstrates that the proposed class
representatives’ claims are typical of the claims of the putative class and that the
proposed class representatives can adequately represent the interests of the putative
class. Accordingly, we find no error in the trial court’s determination that the class
representatives have satisfied the typicality and adequacy of representation
elements.
Objective Definability
The fifth element considered for class certification is that the proposed class
representatives demonstrate that the class is objectively defined in terms of
13
ascertainable criteria, in order to determine the constituency of the class for
judgment purposes. La. C.C.P. art. 591(A)(5). The trial court’s definition satisfies
this element and provides as follows:
ALL PROPERTY OWNERS WHO OWNED IMMOVABLE
PROPERTY ABUTTING THE LONDON AVENUE CANAL,
NEW ORLEANS, LOUISIANA, ON AUGUST 1, 2015, WHEN
THE ALLEGED UNCOMPENSATED TAKING OCCURRED
TO THE PRESENT.
We find this definition sufficient to identify those property owners whose property
is subject to the restrictions of La. R.S. 38:225. Accordingly, we find no error in
the trial court’s determination that the proposed class representatives have satisfied
the objective definability element.
Predominance and Superiority
To obtain class certification, in addition to proving all elements of La. C.C.P.
art. 591(A), the proposed class representatives must also demonstrate that common
questions of law or fact predominate over any individual issues and that a class
action proceeding is superior to any other procedural mechanism. La. C.C.P. art.
591(B)(3). Six factors are considered when weighing whether the predominance
and superiority elements are satisfied:
(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;
14
(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.
La. C.C.P. art. 591(B)(3)(a)-(f). The inquiry into whether a common issue
predominates over an individual issue tests whether the proposed class warrants
adjudication by representation instead of on an individual basis. See Dupree, 2009-
2602, p. 11, 51 So.3d at 682 (citations omitted). In explaining that the
predominance element is more demanding than the commonality element, our
Supreme Court has stated that the commonality element “entails identifying the
substantive issues that will control the outcome, assessing which issues will
predominate, and then determining whether the issues are common to the class.”
Brooks, 2008-2035, p. 19, 13 So.3d at 560 (quoting O’Sullivan v. Countrywide
Home Loans, Inc., 319 F.3d 732, 738 (5th Cir. 2003)). Thus, we will weigh the
predominance and commonality arguments of the parties.
The proposed class representatives maintain that the common issue of
restricted use of their property, without just compensation, is shared among the
putative class. Additionally, the proposed class representatives assert that damages
are not required to be identical for class certification. Conversely, the Flood
Protection Authority argues that the proposed class representatives fail to satisfy
La. C.C.P. art. 591(B)(3) because each putative class member has a unique set of
facts which defeats commonality of the legal issue. Thus, resolution of one claim is
not dispositive of the claims of the entire class. The Flood Protection Authority
argues that among the putative class, there exists differences concerning the date of
purchase of the individual properties; existence of a rear fence on each property;
whether the owners reside or rent the property; knowledge of the restricted area
15
and debris removal following Hurricane Katrina; and location of the “levee toe”
relative to the rear of each property.6
The overriding substantive common issue that predominates in this case is
the restricted use of the putative class’ property pursuant to La. R.S. 38:225. The
same set of operative facts––that the putative class’ properties abut the London
Avenue Canal––forms the basis of the common issue––a property owner’s right to
be compensated for restricted use of their property by the government. As a
determination of this substantive issue controls the outcome of the matter, it
predominates over any individual issues that may be presented by any individual
circumstance. Additionally, requiring the putative class to proceed individually
seems financially impracticable and ultimately burdensome. “The trial court ‘must
evaluate, quantify and weigh [the relevant factors] to determine to what extent the
class action would in each instance promote or detract from the goals of
effectuating substantive law, judicial efficiency, and individual fairness.’” Brooks,
2008–2035, p. 10, 13 So.3d at 554 (quoting McCastle, 456 So.2d at 618). Given
that the goal of most procedural devices, including class certification, is “to
implement the substantive law, and to implement that law in a manner which will
provide maximum fairness to all parties with a minimum expenditure of judicial
effort,” a class action is the superior procedural device in this matter. Dupree,
2009-2602, p. 41, 51 So.3d at 700 (quoting Stevens v. Bd. of Trustees of Police
Pension Fund of City of Shreveport, 309 So.2d 144, 151 (La. 1975)). Accordingly,
we find no error in the trial court’s determination that the proposed class
representatives have satisfied the predominance and superiority elements.
6 A “levee toe” refers to the point of intersection of the levee slope with natural ground.
16
Evidentiary Issues
The Flood Protection Authority argues that the trial court erred in granting
the proposed class representatives’ motion to admit exhibits over the objections
articulated in its opposition. “A trial court is afforded great discretion concerning
the admission of evidence…and its decision to admit or exclude evidence may not
be reversed on appeal in the absence of an abuse of that discretion.” Alfred
Conhagen, Inc., of Louisiana v. Ruhrpumpen, Inc., 2021-0396, p. 5 (La.App. 4 Cir.
4/13/22), 338 So.3d 55, 62 (citation omitted). The Flood Protection Authority
objects to specific exhibits on the basis that: (1) the United States Army Corps of
Engineers’ aerial photos and detailed coordinates, as well as a special warranty
deed are irrelevant to class certification; (2) the United States Army Corps of
Engineers’ aerial photos and detailed coordinates, a building permit and emails
regarding the text of the 2015 amendment to La. R.S. 38:225 were not properly
authenticated; (3) the trial court improperly considered witnesses’ affidavits; (4)
the trial court improperly considered deposition testimony from a witness who was
not designated as an expert; and (5) the trial court improperly considered the Flood
Protection Authority’s board meeting minutes as the minutes constitute
inadmissible hearsay. For ease of discussion, we categorize the Flood Protection
Authority’s objections to the exhibits as follows: irrelevant evidence, lack of
proper authentication and inadmissible evidence. We will discuss each in turn.
Irrelevant Evidence
The Flood Protection Authority argues the trial court erred in considering the
United States Army Corps of Engineers’ outdated aerial photos and detailed
coordinates, and a special warranty deed. It contends that the United States Army
Corps of Engineers’ aerial photos and detailed coordinates from 2006 and 2008 are
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irrelevant because the aerial photos and detailed coordinates have not been applied
to any property by the Flood Protection Authority since the 2015 amendment to
La. R.S. 38:225. The Flood Protection Authority also maintains that the special
warranty deed is irrelevant. Despite the Flood Protection Authority’s blanket
statement, it fails to provide the reasoning behind the assertion.
Relevant evidence is “evidence having a tendency to make the existence of
any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence.” La. C.E. art. 401. “The trial court
is accorded great discretion in determining whether evidence is relevant; and,
absent a clear abuse of discretion, rulings on relevancy will not be disturbed on
appeal.” Melerine v. Tom’s Marine & Salvage, LLC, 2020-00571, p. 12 (La.
3/24/21), 315 So.3d 806, 815 (citation omitted). Relevance is not based on whether
the aerial photos and detailed coordinates have been utilized by the Flood
Protection Authority, rather the pertinent inquiry starts with the actual document.
The documents provided the trial court with an aerial view and detailed
coordinates of the properties of the proposed class. This information is relevant and
germane to the trial court’s determination as to which properties are impacted by
the restrictions of La. R.S. 38:225. Additionally, the special warranty deed is
another document submitted by the proposed class representatives which gives
information about a property located in the area. This document depicts one
property and was submitted for reference only. The inclusion of this document
does not appear to give any weight to the determination of the merits. Considering
the great discretion afforded a trial court in determining the relevancy of evidence,
we will not disturb the trial court’s ruling. Accordingly, the trial court did not
abuse its discretion in considering the evidence.
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Lack of Proper Authentication
The Flood Protection Authority argues the trial court erred in considering the
United States Army Corps of Engineers’ aerial photos and detailed coordinates, a
building permit and emails regarding the text of the 2015 amendment to La. R.S.
38:225 because the documents were not properly authenticated by testifying
witnesses. “The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims.” La. C.E. art. 901(A).
Evidence may be authenticated to conform to the requirement of La. C.E. art. 901
through the “[a]ppearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with circumstances” surrounding
the evidence. La. C.E. art. 901(B)(4). The United States Army Corps of Engineers’
aerial photos and detailed coordinates are distinctive documents whose contents
are self-explanatory. Likewise, the building permit and the emails regarding the
text of the 2015 amendment to La. R.S. 38:225 are also self-explanatory.
Accordingly, the trial court did not abuse its discretion in considering the evidence.
Inadmissible Evidence
Affidavits
The Flood Protection Authority argues that the trial court improperly
considered the affidavits of the proposed class representatives and their experts
rather than considering their deposition testimony. The Flood Protection Authority
also contends that the trial court erred in admitting the affidavit of Stradford Goins,
Sr.–– a former Flood Protection Authority commissioner. An affidavit is generally
inadmissible hearsay. King’s Joint Venture v. Marino, 2002-0847, p. 5 (La.App. 4
Cir. 9/25/02), 827 So.2d 521, 524 (citations omitted). “In the rare instances where
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an affidavit is acceptable as a substitute for testimony, an affidavit must be based
on personal knowledge, must set forth only facts admissible in evidence, and must
show that the affiant is competent to testify to the matters contained therein.” Id.
The Flood Protection Authority challenges the trial court’s consideration of
the affidavits submitted in conjunction with the witnesses’ deposition transcripts.
We find the Flood Protection Authority’s challenge lacks merit. The joint motion
to certify the class permitted submission of any documents in conjunction with any
deposition taken in the matter. A review of the record reveals that the affidavits
were submitted in conjunction with the deposition transcripts of the proposed class
representatives. Thus, we find no error in the trial court’s consideration of the
affidavits.
As to the affidavit of Mr. Goins, the affidavit provides his educational
background and employment tenure with the Flood Protection Authority. His work
with the Orleans Levee District, the Flood Protection Authority and the United
States Army Corps of Engineers relative to the levee along the London Avenue
Canal and potential property restrictions during his tenure as commissioner is also
set forth in the affidavit. An affidavit is generally inadmissible hearsay. King’s
Joint Venture, p. 5, 827 So.2d at 524 (citations omitted). However, a review of the
affidavit of Mr. Goins demonstrates that it is predicated on his personal knowledge
in his capacity as commissioner, sets forth admissible facts and demonstrates that
he is competent to testify regarding the London Avenue Canal restrictions. See Id.
We find the trial court’s acceptance of Mr. Goins’ affidavit appropriate and thus
find no error in the trial court’s consideration of the affidavit.
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Opinion Testimony
The Flood Protection Authority contends the trial court erred in considering
opinion testimony from Stephen Estopinal, a former president of the Flood
Protection Authority, who was not qualified as an expert.
“If the witness is not testifying as an expert, his testimony in the form of
opinions…is limited to those opinions…which are: (1) [r]ationally based on the
perception of the witness; and (2) [h]elpful to a clear understanding of his
testimony or the determination of a fact at issue.” La. C.E. art. 701. Mr. Estopinal
provided testimony regarding the role of the Flood Protection Authority, in
conjunction with other government entities, in lawfully obtaining the desired
fifteen-foot buffer fronting the levee of the London Avenue Canal. Mr. Estopinal
was president of the Flood Protection Authority during the time of the drafting of
the 2015 amendment to La. R.S. 38:225 and provided specific insight of the need
for the fifteen-foot buffer. Mr. Estopinal’s opinion was based on his role as
president of the Flood Protection Authority and provided the trial court with
insight as to the deliberative process when determining the potential restrictions of
La. R.S. 38:225. Accordingly, the trial court did not abuse its discretion in
considering the evidence.
Hearsay Documents
The Flood Protection Authority maintains the trial court erred in considering
emails regarding the text of the 2015 amendment to La. R.S. 38:225 and the Flood
Protection Authority’s board meeting minutes because the documents constitute
inadmissible hearsay. La. C.E. art. 801(C) defines hearsay as “a statement, other
than one made by the declarant while testifying at the present trial or hearing,
offered in evidence to prove the truth of the matter asserted.” A statement is
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defined, in pertinent part, as “[a]n oral or written assertion.” La. C.E. art.
801(A)(1). However, “[w]hen testimony concerning an out-of-court statement is
not ‘offered as an assertion to show the truth of the matter asserted therein,’ such
testimony is, by definition, not hearsay.” Buckbee v. United Gas Pipe Line Co.,
Inc., 561 So.2d 76, 80 (La. 1990) (citations omitted). A review of the record
demonstrates that the emails and the board meeting minutes were not offered to
prove the truth of the matter asserted. The documents were offered by the proposed
class representatives to assist the trial court in understanding the complexity of the
situation relative to the need for class certification. Accordingly, the trial court did
not abuse its discretion in considering the evidence.
Conclusion
1 The trial court found that the proposed class representatives satisfied the
2 requirements of La. C.C.P. art. 591(A) and La. C.C.P. art. 591(B)(3). A trial court
3 has vast discretion regarding class certification. Brooks, 2008-2035, p. 10, 13
4 So.3d at 554. A review of the record demonstrates that the evidence supports class
5 certification as the numerosity, commonality, typicality, adequacy of
6 representation, objective definability, predominance and superiority elements are
7 all satisfied. Thus, we find no manifest error in the trial court’s findings and no
8 abuse of discretion in the determination that the requirements of La. C.C.P. art. 591
9 are satisfied.7
10 Moreover, we conclude that the trial court did not err in considering the
11 exhibits admitted by the proposed class representatives. The joint motion to certify
12 the class on the pleadings permitted both parties the ability to submit exhibits
7 The parties are not bound by the certification order, as that class certification order is always
subject to withdrawal, i.e. a class can be decertified. See Baker, 2014-2243, p. 11, 167 So.3d at
537 (quoting McCastle, 456 So.2d at 620).
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1 including deposition transcripts and any documents produced in the matter, subject
2 to objections by either party. The exhibits submitted by the proposed class
3 representatives were necessary for the trial court’s rigorous analysis in determining
4 whether to certify the class. Considering that the parties agreed to have class
5 certification determined based on the pleadings, without the benefit of live
6 testimony, the trial court required any and all documents for its analysis. Given that
7 we have determined the trial court did not err in certifying the class, we find the
8 trial court appropriately weighed and considered the evidence submitted in support
9 of class certification. Therefore, the trial court did not abuse its discretion in
10 granting the proposed class representatives’ motion to admit exhibits.
11 Accordingly, the trial court’s judgment granting the proposed class
12 representatives’ motion to certify the class and motion to admit exhibits is
13 affirmed.
14 Decree
15 For the foregoing reasons, the April 26, 2023 judgment of the trial court is
16 affirmed.
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18 AFFIRMED
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