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PATRICIA GRANT, wife of/and richard grant, et
al., Individually and on Behalf of All Others Similarly Situated |
NO.: 2008-11536 DIVISION: “H” 22ND JUDICIAL DISTRICT COURT PARISH OF STATE OF |
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Versus |
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SUN CONSTRUCTION, L.L.C., |
MEMORANDUM IN SUPPORT OF MOTION TO CERTIFY CLASS
MAY IT PLEASE THE COURT:
I.
NATURE OF THE MOTION BEFORE THE COURT
Plaintiffs, PATRICIA AND RICHARD
GRANT, et al, are all homeowners
in the Penn Mill Lakes Subdivision, located completely within the territorial
jurisdiction of this Court. This is a request, pursuant to LSA-C.C.P.
art. 592, to certify this as a class action under LSA-C.C.P. art. 591, et seq.
This class action arises out
of serious drainage issues in the Penn Mill Lakes Subdivision, which affect the
entire subdivision and all of the homeowners therein. The class in this action
is defined by the original petition very simply as follows:
33.
The class is defined as
those individuals who are homeowners in the Penn Mill Lakes Subdivision in St.
Tammany Parish,
The class includes the class
representatives named hereinabove, who filed the original petition herein. The
said class also includes an unknown number of additional persons who own homes
in the subdivision. The total number of the class exceeds several hundred,
assuming one to two homeowners per lot/home owned.
II.
PERTINENT PROCEDURAL HISTORY
The original petition was
filed on March 20, 2008, by MR. AND MRS. RICHARD GRANT, ET AL., all
individually and all also on behalf of the class of persons to be herein
certified. This motion is therefore timely under LSA-C.C.P.
art. 592, as it is being filed within ninety (90) days of that original filing date.
Written discovery in the
form of interrogatories, requests for admissions and requests for production
were served on each and every defendant along with the original petition. One
of the purposes of this discovery is to ascertain with certainty the total
number of the class and to further demonstrate the appropriateness of the
action for class certification. Service of process (and service of the
discovery requests) was made on all the defendants on the same day, April 3,
2008.
All of the defendants asked
the plaintiffs for thirty (30) day extensions of time to respond to the
petition, which requests were all granted by the plaintiffs. Defendant Sun
Construction subsequently filed an exception to the petition. No other
responses to the petition nor to the discovery
requests have been made by the defendants as of the date of the filing of this class
certification motion.
III.
FACTS RELEVANT TO THE CLASS CERTIFICATION MOTION
Defendants designed and
built a new subdivision called Penn Mill Lakes Subdivision.
There is a common drainage
system utilized throughout the subdivision, which incorporates the use of
swales, catch basins, drainage pipes, drainage lines, culverts, drainage
ditches, sewers, and retention ponds. Large portions of the drainage system,
including the retention ponds, ditches/swales, culverts, catch basins, and
other offsite improvements are common areas and are under the exclusive control
of Penn Mill.
The drainage system
throughout the subdivision is defective in its design, construction, and
installation. Inadequacies and defects in the design, construction, and
installation of drainage system components include the following illustrative
list, which was alleged in its entirety in the original petition:
a. The
drainage system is improperly graded and improperly designed so that water does
not drain at a fast enough rate from the subdivision to prevent foreseeable
flooding;
b. Many
of the drainage pipes and drain lines were not properly installed and were not
properly fitted together and sealed, so that there are leaks in various lines;
c. The
water retention ponds were improperly designed and placed at points in the
subdivision which resulted in inadequate drainage;
d. The
drainage ditches were improperly designed and improperly constructed, so that
water does not drain properly;
e. Some
drainage ditches are essentially nonexistent, being little more than a two-inch
wide by one-inch deep trench, so that water does not drain properly through
them;
f. The
drainage system improperly incorporates many of the plaintiffs’ driveways, and
the water flow and/or standing water blocks ingress and egress from many of the
subdivision properties;
g. Culverts
were improperly installed and/or were omitted in many places where culverts
were necessary for proper drainage;
h. The
catch basins which capture and divert surface waters into the retention ponds
are improperly placed and/or insufficient in number to keep the driveway aprons
from flooding or holding water impeding the sole access in and out of the
residences;
i. The
sewers were improperly designed and installed and do not allow for the free
flow of water causing periodic unsanitary backups;
j. The
drainage for homes that were constructed in later phases is even more
inadequate than that of the earlier phases and has aggravated an already
overburdened system;
k. Some
of the streets, e.g.,
Plaintiffs brought this suit
to force compliance by the defendants with their duties to remedy these known
problems and to bring the subdivision’s drainage system—including the common
area portions of the drainage system—into compliance with standard engineering
and construction practices, as well as the St. Tammany Code of Ordinances. The
plaintiffs also seek damages for the alleged fraudulent actions of the
defendants, as well as breaches of warranties, and actual damages. Given the
nature of the claims asserted, the action was brought as a class action. There are currently ten (10) named plaintiffs
representing hundreds of class members, all of whom live or own land in Penn
Mill Lakes Subdivision.
IV.
LEGAL STANDARDS OF CONSIDERATION
LSA-C.C.P. art 591 establishes a two-level analysis for determining
whether to certify a class action. The first level of analysis is governed by
Subsection (A), which allows a class action against one or more members of a
class, who act as representative plaintiffs or defendants, only if all of the
following five specific requirements are met:
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 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.
The second level of analysis for determining whether to
certify a class action is governed by Subsection (B). A court reaches this
level of analysis only if all of the requirements for qualifying as a class set
out by Subsection (A) have been met. Once a court determines that a class action
is appropriate under Subsection (A), he must also determine whether one of the
requirements of Subsection (B) is also applicable. Thus, Subsection (B) further
qualifies the right to file class actions by setting up alternative additional
requirements for maintaining a class action. Even if all of the prerequisites
for maintaining class actions listed in LSA-C.C.P.
art 591(A) are present, a class action may not be maintained unless one or more
of the following is also found:
1. The prosecution of separate actions by or against individual
members of the class would create a risk either of inconsistent or varying
adjudications with respect to individual members of the class that would
establish incompatible standards of conduct for the party opposing the class,
or if 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.
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.
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.
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.
Moreover, Subsection (B)(3) establishes the following
criteria for determining whether common questions of law or fact predominate
over questions which affect only individual members, making a class action
superior over other available methods for fairly and efficiently adjudicating
the controversy:
1. The interest of the members of the class in individually
controlling the prosecution or defense of separate actions.
2. The extent and nature of any litigation concerning the
controversy already commenced by or against members of the class.
3. The desirability or undesirability of concentrating litigation
in the particular forum.
4. The difficulties likely to be encountered in management of the
class action.
5. The practical ability of individual class members to pursue
their claims without class certification.
6. 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.
Finally, LSA-C.C.P. art 591(C)
provides that certification of a class may not be used to adjudicate claims or
defenses which depend on proof which is individual to a single member of the
class. Courts are nevertheless allowed to retain jurisdiction over those
individual claims and defenses following certification.
The
V.
APPLICABILITY OF THE LEGAL STANDARDS TO THIS CLASS
The purpose of a class action is to allow a small number of
persons to sue on behalf of all members of the class. Verdin v. Thomas.[2]
Here, the nominate class
representatives named herein as plaintiffs/class representatives have brought
suit on their own behalf and on behalf of all others similarly situated within
the Penn Mill Lakes Subdivision. The very nature of this case is such that
class adjudication is certainly the most appropriate (perhaps the only
possible) means of litigation. The case concerns drainage issues that are
common to the entire subdivision. The problems arise on numerous properties and
common areas throughout the subdivision and they should only be addressed in
one case at one time in one forum.
Under the requirements of LSA-C.C.P.
art. 591, et seq., this matter
is properly brought before this Honorable Court as a class action and the
plaintiffs therefore submit that, for the following reasons, the class should
be certified:
A. The requirements of LSA-C.C.P.
art 591(A) are met.
1. Numerosity. The
first prerequisite for maintaining a class action established by article Subsection
(A)(1) is that the members of the class be so numerous that joinder is
impracticable; sometimes called the “numerosity requirement.”[3] Although the party seeking certification is not required to
identify all potential class members, he should be able to establish a
“definable group of aggrieved persons.”[4]
While the class in this case is easily and simply defined as,
“Those individuals who are homeowners in the Penn Mill Lakes Subdivision
in St. Tammany Parish,
2. Commonality. The
second prerequisite for maintaining a class action, established by Subsection (A)(2), is the existence of questions of law or fact common to
the class. The Louisiana Practice Series
states of this requirement: [5]
This
requirement was recognized by the pre-1997 amendment jurisprudence, but was generally
combined with numerous other factors into the “common character” requirement,
which was done away with. Because the factors traditionally used to determine
the “common character” requirement are now listed in 591(B) as alternative
additional requirements for maintaining a class action, the second prerequisite
for maintaining a class action—a question of fact or law common to the class—is
presumably very straightforward under the new law. No cases have interpreted
the new law, but a showing that all
members of the class are affected by a common question of fact or law is
obviously sufficient.
There are certainly questions of law or fact common to the
class in this case, including the questions of law and fact related to the
above-cited injunctive relief, which the plaintiffs herein seek on behalf of
the class. The nature of the claims themselves, including the fact that much of
the drainage system exists on common areas, show that commonality is certainly
present.
3. Typicality. The
third requirement under Subsection (A)(3) is that the
claims or defenses of the representative parties must be typical of the claims
or defenses of the class. In this case, the defendants’ common course of action, repeated and continued fraudulent statements and
actions vis-ŕ-vis the class members, and defective design, construction, and
installation of the drainage system were all committed on the class members as
a whole and/or were repeated nearly identically towards each class member. From just a cursory review of the individual
stories told by the class representatives and by all of the other class members
and as will be shown by testimony at the certification hearing, it is clear
that these representatives’ claims are quite typical of all the claims of all
the landowners in the subdivision.
4. Adequacy. The
adequate representation requirement of Subsection (A)(4)
is based on the theory that a class representative who has a personal interest
in the result of the litigation will be likely to undertake a full prosecution
or defense.[6] The requirement
guarantees that the representative will adequately protect the interests of the
absent class members.[7] In this case, the representative parties are highly
motivated and exceedingly organized as a group.
They have retained multiple attorneys who are all well versed in the law
to assist them and they will all fairly and adequately protect the interests of
the class.
5. Objective,
Ascertainable Criteria. The fifth prerequisite for maintaining a class
action established by Subsection (A)(5) is that the class must be capable of
objective definition by ascertainable criteria, so that the court will be able
to determine the constituency of the class in order to make any judgment
rendered in the case conclusive.
Generally, a trial court should not deny a class action on
the grounds that identification of all the members of the class would be
difficult.[8] That principle was explained as follows by the Louisiana
Supreme Court in the McCastle
case:[9]
It
is not essential that every member of the class be identified before a class
action can be certified. Difficulty in identifying the claimants is one of the
factors which makes joinder impracticable and a class action appropriate. To
prevent a class action on the grounds that every member of the class cannot be
identified would bar the class action where it is usually needed most.
Therefore, as long as the class itself is reasonably identified, it is not
necessary that all the members of the class be identified at the commencement
of the action.
The Louisiana Fourth Circuit Court of Appeal allowed a class
action despite the fact that the named plaintiff did not have access to the
names or identities of the other members of the class, which were in
defendant's sole possession.[10] Once the plaintiff had established a “prima facie case for
class certification,” he was entitled to discover the names and identities of
other potential members of the class in order to provide notification, the
court said.[11] While the Louisiana First Circuit Court of Appeals has taken
a more restrictive view of this criteria, the First Circuit has held that
classes should be confirmed when the class has, as this class clearly does,
established “geographic boundaries.”[12]
As is apparent from the concise and concrete definition of
the class in this case, defined by the plaintiffs simply as “landowners in the
Penn Mill Lakes Subdivision,” this class clearly has those clear “geographic
boundaries” and is clearly capable of objective definition by ascertainable
criteria.
Lastly, before leaving this last criteria,
it is well worth noting that the plaintiffs have already sent discovery
requests to all defendants asking them to turn over documents currently in
their possession which would enable the discovery of the precise names and
addresses of each and every class member.
As of the date of the filing of this motion, those discovery requests
have not been answered by the defendants.
B. The requirements of LSA-C.C.P.
art. 591(B) are also met.
The second level of analysis for determining whether to
certify a class action is governed by LSA-C.C.P. art
591(B). Once a court determines that a class action is appropriate under Subsection
(A), it must also be determined whether any one of the
requirements of Subsection (B) is also applicable. Therefore, pursuant to
591(B), a class action may not be maintained unless one or more of the
following is also true:
(1) The prosecution of separate actions by or against individual members of the class would create a risk either of (a) inconsistent or varying adjudications with respect to individual members of the class that would establish incompatible standards of conduct for the party opposing the class, or (b) if 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.
LSA-C.C.P. art. 591(B)(1) establishes the first alternative additional
requirement for maintenance of a class action. This provision allows a class
action in the event the class meets all the prerequisites of article Subsection
(A), if the prosecution of separate actions by or against the individual members
of the class would create either of two risks. First, a class action is
appropriate, under provisions of Subsection (B)(1)(a),
if suits by individual members of the class might result in inconsistent or
varying decisions concerning the claims of individual members of the class that
would cause confusion concerning the standards of conduct required of the party
opposing the class because the standards established by the different cases
might not be compatible with one another. Second, a class action is appropriate,
under the provisions of Subsection (B)(1)(b), if suits
by individual members of the class might result in decisions that would, as a
practical matter, dispose of interests of other members of the class who are
not parties to the individual actions or if decisions in the individual cases
might impair or impede the ability of other members of the class to protect
their own interests.
In this case, the suit seeks to compel the defendants to
answer for and repair the defective drainage system in the entire subdivision,
including many component parts of which are present on land belonging to the
class members and on land owned in common, such as the lakes and retention
ponds. If individual suits were filed on these issues, the confusion to the parties
as to their rights and obligations would be immense and the threat of
inconsistency of judgments would certainly be high.
(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.
The second alternative additional requirement for maintenance
of a class action is established by 591(B)(2), which allows a class action in
the event the class meets all the prerequisites 591(A), based on the improper
actions or inactions of the party(ies) opposing the
class. If the opposing party has “acted or refused to act on grounds generally
applicable to the class, thereby making final injunctive relief or
corresponding declaratory relief with respect to the class as a whole
appropriate, the class action may be maintained.”[13] This factor has no counterpoint in the pre-amendment
jurisprudence interpreting class actions.[14]
As stated above, the defendants continued actions in (1)
continuing to develop future phases of the subdivision (while still using the
same flawed design) and (2) refusing to adequately address the existing known
problems in the drainage systems, have necessitated the seeking of declaratory
and injunctive relief on behalf of the entire class. This is precisely the type
of case which was envisioned by this Subsection.
(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.
Pursuant to art. 591(B)(3), a class action is appropriate in the event that the
class meets all the prerequisites of 591(A), along with the presence of two
additional factors: (1) that the common questions of law or fact affecting all
the members of the class “predominate over any question affecting only
individual members,” and (2) that deciding the controversy in a class action
would be superior to other available methods of deciding the controversy
because it would result in a more fair, efficient adjudication.
As for the first of those two factors, the Louisiana Supreme
Court has held that “the mere fact that varying degrees of damages may result
from the same factual transaction and the same legal relationship, or that
class members must individually prove their right to recover, does not preclude
class certification.”[15]
The 1997 amendment to Article 591 lists in Subsection (B)(3) the six specific “matters” which have been
legislatively declared “pertinent to the findings” of: (1) whether the common
questions of fact and law affecting all members of the class predominate over
any questions affecting only individual members of the class, and (2) whether a
class action is a superior procedural vehicle over other available methods for
fairly and efficiently deciding the controversy. Those six “matters” are as follows:
1.
"The interest of the members of the class in individually controlling the
prosecution or defense of separate actions."
2.
"The extent and nature of any litigation concerning the controversy
already commenced by or against members of the class."
3.
"The desirability or undesirability of concentrating the litigation in the
particular forum."
4.
"The difficulties likely to be encountered in the management of the class
action."
5. "The
practical ability of individual class members to pursue their claims without
class certification."
6.
"The extent to which the relief plausibly demanded on behalf of or against
the class, including vindication of such public policies or legal rights as may
be implicated, justifies the costs and burdens of class litigation."
The interest of each member of the class in individually
controlling the prosecution of separate actions is relatively low. While there
would certainly be interest from each class member to seek remedies at law for
these drainage issues, the nature of this litigation (even if brought as
individual suits) is such that it will likely be very time consuming,
difficult, and expensive. Any individual suit relating to all of these subdivision-wide
drainage issues would likely garner a net loss of money for an individual
plaintiff, due to the expense and complexity of the litigation. Therefore, interest for an individual to
pursue these issues on a systemic and subdivision-wide basis would, in the end,
likely be nil.
As to the extent and nature of any litigation already
commenced, there has been no other class action filed concerning this matter
and, to the plaintiffs’ knowledge, only two other lawsuits which raises these
types of issues. Those other suits were brought by individuals in this Court
for issues surrounding those plaintiffs’ homes, as well as drainage issues existing
on those homeowners’ individual lots. And, while those plaintiffs may be able
to obtain a net gain by pursuing relief for specific problems with their lots,
their suit only evidences the need for a single class in one forum, whereby all
issues for all lots and all common areas can receive appropriate relief, while
promoting judicial efficiency. These issues should be addressed on a systemic
level for all lots and all common areas in one suit, not piecemeal in repeated
individual litigation.[16]
CONCLUSION
For the foregoing reasons,
this matter should be certified as a class action, the class defined as
proposed by the plaintiffs, the named plaintiffs appointed as the
representatives of the class, and undersigned counsel appointed as class
counsel.
RESPECTFULLY
SUBMITTED BY:
LE GARDEUR,
LTD.
_____________________________________
Maurice
Le Gardeur (#8274)
222 N. Massachusetts Street
Phone: (985) 892-1420
Fax: (985) 892-1797
Co-Counsel for the plaintiffs
AND:
______________________________________
ADAM S. LAMBERT
(#25134)
Tel.: (504) 433-0289
Fax: (504) 433-0840
Email: LSULawyer@aol.com
URL: http://www.Lambert-Law.com
Co-Counsel for the plaintiffs
AND:
KOERNER LAW FIRM
By: ________________________________
Louis R. Koerner, Jr.
Louisiana
Bar 7817
Telephone:
985-580-0350
Telecopier: 985-580-0980
Cellular:
985-232-7547
e-mail: koerner@koerner-law.com
URL:
http://www.koerner-law.com
Co-Counsel
for the plaintiffs
AND:
________________________________
EMERY NORTON VOORHIES
(#13124)
Telephone: (985) 898-0940
Facsimile: (985) 893-2184
Co-counsel for plaintiffs
CERTIFICATE
I hereby certify that a copy of the foregoing pleading has been served upon all interested counsel, by FAX, by email, by hand delivery, or by placing copy of same into the First Class mail, postage prepaid and properly addressed, on this the ________ day of ___________________, 2008
____________________________
Maurice LeGardeur