Roderick Sanders on behalf of Himself and A Class Of Similarly Situated Louisiana Residents v. City of Winnfield

Judgment rendered May 26, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,872-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

RODERICK SANDERS ON BEHALF OF
HIMSELF AND A CLASS OF SIMILARLY
SITUATED LOUISIANA RESIDENTS Appellees

versus

CITY OF WINNFIELD Appellants

*****

Appealed from the
Eighth Judicial District Court for the
Parish of Winn, Louisiana
Trial Court No. 45347

Honorable Jacque Derr, Judge

*****

PETTIETTE, ARMAND, DUNKELMAN,
WOODLEY, BYRD & CROMWELL, L.L.P. Counsel for Appellants,
By: Edwin H. Byrd, III City of Winnfield and
Marshall L. Perkins The Charter Oak Fire
Insurance Company

LAW OFFICES OF HALES & STRICKLAND Counsel for Appellees
By: Myrt T. Hales, Jr.
Joshua L. Strickland

*****

Before MOORE, COX, and THOMPSON, JJ.

COX, J.

This civil suit arises from the 8th Judicial District Court, Winn Parish,

Louisiana, the Honorable Judge Jacque Derr presiding. The City of

Winnfield (“the City”), the defendant in this matter, appeals from, and seeks

review of a trial court judgment certifying a putative class action filed by

Roderick Sanders (“Mr. Sanders”) individually and on behalf of other

similarly situated persons residing in southwest Winn Parish in April 2017.

For the following reasons, we reverse the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On June 5, 2017, Mr. Sanders individually and on behalf of the

residents of southwest Winn Parish instituted this action with the filing of a

class action petition for damages against the City.1 The initial petition named

Mr. Sanders as an individual who purported to represent a class of persons

similarly situated, i.e., those persons within a residential neighborhood in

southwest Winn Parish who sustained damage as a result of flood waters. On

behalf of the putative class, Mr. Sanders alleged that the City of Winnfield

failed to uphold its duties as a Louisiana municipality to properly design,

construct, and maintain the drainage facilities within its jurisdictional limits;

particularly, those facilities in and throughout this area.

According to Mr. Sanders, he and the residents sustained severe

damage from floodwaters after a rainstorm on April 30, 2017,2 as a direct

1
The Charter Oak Fire Insurance Company (“Charter Oak”), the City’s insurer, is
also named as a defendant in this suit and is represented by the same counsel. Charter Oak
likewise opposed the court’s grant of class certification and joins the City in this appeal.
2
A weather report, included in Mr. Vanderbrook’s assessment of the area,
indicated the neighborhood received approximately five to ten inches of rain on the date in
question.

result of the City’s failure to adequately maintain the drainage facility in this

neighborhood. The petition listed the sustained damages suffered as damage

to property, loss of use, inconvenience, aggravation and distress, and health

hazard(s). Mr. Sanders sought further damages pursuant to the Equal

Protection Clause, 42 U.S.C. §1981, and the La. Constitution, 42 U.S.C.

§1983. He maintained that the City systematically and intentionally

discriminated against him and the residents in this area because its drainage

and land use policies did not protect the property or provide adequate

drainage throughout this area. In particular, the City’s drainage practices

resulted in varying degrees of quality of municipal services and facilities

throughout the residences, prioritizing predominately white neighborhoods to

the detriment of his own neighborhood, which was predominately African

American.

The City removed this matter to the United States District Court for the

Western District of Louisiana. The federal court dismissed, without

prejudice, Mr. Sanders’s federal claims of equal protection violations, finding

that he failed to adequately allege an unconstitutional policy of the City or

that he, as a member of the protected class, was treated differently than other

similarly situated persons outside of the class. The remaining negligence

claims under state tort law were remanded to the district court. The petition

was subsequently amended to exclusively assert a claim of negligence against

the City for failure to adequately design, construct, and maintain its drainage

facilities. The petition stated that the class’s geographic area, or “area of

flooding,” was located “on the west side of Highway 34 and south of West

2

Court Street, east of Pine Ridge Country Club, and north of Country Club

Road.”

Regarding the location, function, and condition of the drainage system

after the City installed culverts and catch basins,3 and prior to the rainstorm

on April 30th, Mr. Sanders attached the opinion of engineer, Kevin C.

Vanderbrook (“Mr. Vanderbrook”). The report provided:

The drainage system in the area is located on the south
side of the east/west railroad tracks and on the west side of
Highway 34. A drainage canal passed under Highway 34
immediately south of the railroad tracks and this served as the
termination point for the watershed which drained the adjacent
neighborhood. The system is designed so that the water will
drain by means of a two-box culvert under the highway with an
additional round culvert. The two openings of the box culvert
measure approximately ten (10) feet by ten (10) feet and are
located on the east side of a large creek bank which has been
partially paved to prevent erosion. On the west side of the creek
bank near the highway there is a round culvert which measures
approximately five (5) feet in diameter which serves as the
termination point for the drainage system of the original
Creosote Creek watershed.

The termination of the end round culvert is in extremely
bad condition with extensive long-term deterioration to the
bottom of the metal culvert. The culvert had originally been
asphalt coated but the asphalt has deteriorated to the point where
the metal has rusted away, creating an opening along much of the
culvert. The culvert has corroded and slumped downward,
decreasing the cross-sectional area. Within the culvert system
there is widespread deterioration of the drainage pipes though the
system with significant corrosion and deterioration to the bottom
of the culvert in virtually every section of the pipe, creating both
a path for erosion of [soil] and introduction of debris into the
pipe. Further, virtually all of the culvert pipe joints were
deteriorated and allowed erosion and intrusion of debris into the
culvert system.

The culvert pipe extends in a westward direction from
Highway 34 approximately one-half (1/2) mile with various
branches to secondary culverts and catch basins. There are

3
Mr. Sanders’s petition specified that approximately 20 years before the storm in
2017, the City installed culverts along Creosote Creek, which ran through the area, in an
attempt to improve the drainage in the defined area.

3

numerous locations with widespread deterioration of the culvert
pipes, widespread intrusion of debris, deterioration of joints and
culvert pipes, and significant sloughage and erosion of soil into
the culvert system, creating bypasses around the catch basins. In
many areas the soil has eroded significantly around the catch
basins due to a hole or opening into the culvert pipe and water
bypasses the catch basins into the eroded soil area and enters the
system through deterioration of either joints or pipes.

Mr. Sanders further alleged that the City’s negligence in the

construction, maintenance, and repair of the drainage system was a direct

cause of the continual flooding in the area and the damage sustained to the

land and property of those persons who lived, worked, and owned property in

the area. In particular, it was alleged that the City was negligent in:

1) Failing to maintain the drainage system in a reasonable
manner;
2) Failing to maintain the east side of Highway 34 by allowing
trees, shrubbery, and debris to block the flow of water
downstream;
3) Failing to maintain the catch basins within the system;
4) Failing to maintain the culverts within the system;
5) Failing to protect its citizens from storm waters despite taking
on the responsibility. . . twenty (20) years ago;
6) Failing to maintain its drainage systems to be able to
withstand expected amounts of rainfall;
7) Failing to repair the system despite having knowledge of its
poor condition;
8) Failing to remove the system despite having knowledge of its
poor condition; and
9) Res Ipsa Loquitur.

In support of these allegations, Mr. Sanders relied on Mr. Vanderbrook’s

opinion after the drainage system was inspected on October 7, 2017. Mr.

Vaderbrook opined, in brevi, that the flooding on April 30, 2017, was caused

by the City’s “widespread neglect.” Particularly, that the deterioration of the

drainage system and underground culvert pipes reduced drainage capacity,

causing significant safety hazards throughout, and that overgrown vegetation

4

significantly restricted runoff, elevating the water level and flooding nearby

homes.

On March 9, 2018, Mr. Sanders filed a motion for class certification,

requesting that the trial court certify the class for prosecution of claims

against the City. In a supplemental memorandum on behalf of and in support

of the motion, Mr. Sanders claimed that the requirements for class

certification were satisfied under La. C. C. P. art. 591(A), and attached a copy

of a preliminary engineering report prepared by Oscar J. Boudreaux (“Mr.

Boudreaux”) for the City in 2013.4 Mr. Sanders argued that the report

supported class certification because it acknowledged that the drainage

system and structure were located in a densely populated area with numerous

homes on each block, and that the deterioration of the system and its

structures was a hazard and liability to both persons and property.

On March 2, 2020, a contradictory hearing was held in the trial court on

the motion to certify the class action. The trial court requested both parties to

brief the application of Brooks v. Union Pac. R.R. Co., 2008-2035 (La.

5/22/09), 13 So. 3d 546, and took the issue under advisement. Thereafter, the

trial court granted the motion to certify the class action on March 17, 2020,

and issued supplemental written findings of fact and reasons for judgment on

June 24, 2020. In its stated reasons, the court provided:

The Class Area is defined as those properties located in
the City of Winnfield, Winn Parish, Louisiana, bounded on the
North by the railroad tracks; on the East by Highway 34; on the
South by West Jones Street; and on the West by Patton Street.

4
The preliminary engineering report was prepared by Environmental Engineering
Services, Inc. in May 2013. The report refers to the geographic area of the class as the
Orange Street Drainage System. It detailed, in full, an evaluation of the capabilities and
physical characteristics of the drainage system in southwest Winnfield in 2013.

5

The class will be those persons residing or owning
property within the Class Area on or about April 30, 2017, who
suffered property damage as a result of flooding which occurred
in the Class Area on or about April 30, 2017.

It is clear from the reports of the two experts that the area
of the alleged flooding is populated with numerous houses or
other structures. Joinder of all class members under these
circumstances is impractical.

There are common issues of law and fact common to the
class. In particular, the Court notes that the major issue common
to the class would be whether the City of Winnfield failed to
properly design, construct, and maintain the drainage system for
the neighborhood resulting in flooding of the neighborhood on or
about April 30, 2017.

The claims or defenses of the representative parties for
property damage caused by the flooding are typical of the claims
or defenses of the class.

The Court also finds that the plaintiff in this matter and his
counsel will adequately protect the interests of the class.

The Court further finds that the plaintiff has satisfied the
conditions of Code of Civil Procedure Article 591(B)(3). All of
the proposed class claims are based on the actions and/or
inactions of the defendant and all of the damages resulted from
the same occurrence which took place on or about April 30,
2017. The Court believes that class action is particularly
appropriate in this case in that many of the class members may
have no value claims which could not be pursued absent class
certification. The class action is the only efficient and viable
method of adjudicating the claims in this case.

In short, the Court finds that the persons affected are too
numerous and [it] is impracticable to bring individual suits. In
addition, many of the class may be too poor and their claims too
small to litigate individually. Therefore, class action treatment is
certainly appropriate in this case.

The City now appeals.

DISCUSSION

On appeal, the City argues that the trial court erred in certifying the

class in this matter because Mr. Sanders and the residents failed to satisfy any

of the requirements to certify a class of mass tort plaintiffs as set forth in La.

6

C. C. P. art. 591. For the following reasons, we find merit in this assignment

of error.

It is well-established law that a class action is a nontraditional litigation

procedure that permits a representative with typical claims to sue or defend on

behalf of, and stand in judgment for, a class of similarly situated persons

when the question is one of common interest to persons so numerous as to

make it impracticable to bring them all before the court. Its purpose and

intent is to adjudicate and obtain a res judicata effect on all common issues

applicable not only to persons who bring the action, but also to all others who

are “similarly situated.” Baker v. PHC-Minden, L.P., 2014-2243 (La. 5/5/15),

167 So. 3d 528; Dupree v. Lafayette Ins. Co., 2009-2602 (La. 11/30/10), 51

So. 3d 673; Reeves v. Explo Systems, Inc., 53,219 (La. App. 2 Cir. 3/4/20),

293 So. 3d 119.

Because class actions are an exception to the general rule that litigation

must be conducted by and on behalf of the individually named parties only,

the determination of whether a class action satisfies the requirements imposed

by law involves a rigorous analysis. As such, 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.

Baker v. PHC-Minden, L.P., supra; Dupree v. Lafayette Ins. Co., supra. The

court must actively inquire into every aspect of the case and not hesitate to

require showings beyond the pleadings because it must understand the claims,

defenses, relevant facts, and applicable substantive law in order to make a

7

meaningful determination of the certification issues. Baker v. PHC-Minden,

L.P., supra.

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 v. PHC-Minden,

L.P., supra. However, this general rule should not be used as a substitute for

the rigorous analysis required to determine whether the prerequisites of

Louisiana’s class action provisions have, in fact, been satisfied. Price v.

Martin, 2011-0853 (La. 12/6/11), 79 So. 3d 960. Accordingly, the trial court

should evaluate the case closely before certifying the class in light of the

consequent burdens of giving notice and additional discovery. Baker v. PHC-

Minden, L.P., supra; Dupree v. Lafayette Ins. Co., supra. In the review of a

trial court’s judgment on class certification, its factual findings are subject to

a manifest error standard, such that it can only be reversed upon finding that

no reasonable factual basis exists for the factual finding and the factfinder is

clearly wrong. Stobart v. State, through Dept. of Transp. & Dev., 617 So. 2d

880 (La. 1993). However, the court’s ultimate decision regarding whether to

certify the class is reviewed under the abuse of discretion standard.

La. C. C. P. art 591 sets forth five threshold prerequisites for class

certification 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.

8

(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.

Each of these requirements must be met for an action to be maintained as a

class action; failure to meet one of these threshold requirements precludes

class certification. La. C.C.P. art. 591(B); Doe v. Southern Gyms, LLC, 2012-

1566 (La. 3/9/13), 112 So. 3d 822, 828. The burden of proving that the

statutory class certification criteria have been satisfied in full falls upon the

party seeking to maintain the class action. Dupree v. Lafayette Ins. Co.,

supra; Marsh v. USAgencies Cas. Ins. Co., 42,176 (La. App. 2 Cir. 5/16/07),

957 So. 2d 901, writ denied, 2007-1286 (La. 10/26/07), 966 So. 2d

575; Howard v. Willis-Knighton Med. Ctr., 40,634 (La. App. 2 Cir. 3/8/06),

924 So. 2d 1245, writ denied, 2006-0850 (La. 6/14/06), 929 So. 2d 1268,

and writ denied, 2006-1064 (La. 6/14/06), 929 So. 2d 1271.

Once the five prerequisites have been satisfied, La. C.C.P. art.

591(B) provides three additional criteria, one of which must also be satisfied

for certification, depending on the type of class action sought. Baker v.

PHC-Minden, L.P., supra; Dupree v. Lafayette Ins. Co., supra. Often, the

additional requirement that must be met for certification is set forth in La.

C.C.P. art. 591(B)(3), which provides:

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:

9

(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.

However, class “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.” La. C. C. P. art. 591(C); Baker v. PHC-Minden, L.P.,

supra. Nevertheless, where certification is maintained, “the court shall retain

jurisdiction over claims or defenses dependent for their resolution on proof

individual to a member of the class.”

We note that this appeal does not encompass the merits of Mr.

Sanders’s claim, but is instead limited to a review of the trial court’s

certification of the class.

Commonality

The commonality requirement for class certification requires a party

seeking class certification to show that there exist questions of law or fact

common to the class. See La. C. C. P. art 591(A)(2). The mere existence of

common questions alone, however, will not satisfy the commonality

requirement because “[a]ny competently crafted class complaint literally

raises common questions.” Price v. Martin, supra. Rather, this element

requires a party seeking certification to demonstrate the class members’

10

claims depend on a common contention, and that common contention must be

one capable of classwide resolution, or “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 v. PHC-Minden, L.P., supra; Price v.

Martin, supra.

Therefore, to satisfy this requirement, there must exist a common

nucleus of operative facts. A common question is one that, when answered as

to one class member, is answered as to all of them. Price v. Martin,

supra; Dupree v. Lafayette Ins. Co., supra; Smith ex rel. Upchurch v.

McGuire Funeral Home, Inc., 46,326 (La. App. 2 Cir. 6/1/11), 70 So. 3d

873, writ denied, 2011-1419 (La. 9/30/11), 71 So. 3d 290, and writ

denied, 2011-1454 (La. 9/30/11), 71 So. 3d 297. As part of the analysis for

commonality and predominance in mass tort cases, it has been determined

that only mass torts which arise from a common cause or disaster may be

appropriate for class certification. Causation is a crucial part of determining

liability and, if causation is not the same for each potential class member,

individual trials on causation would be required, which would defeat the

purpose of the class action device. Brooks v. Union Pac. R.R. Co., supra.

This does not, however, require that the amount or extent of damages

sustained be common to all class members. The mere fact that varying

degrees of damages can result from the same factual transaction and legal

relationship or that class members must individually prove their right to

recover, does not preclude class certification. Brooks v. Union Pac. R.R. Co.,

supra; Reeves v. Explo Systems, Inc., supra; Bartlett v. Browning-Ferris

Industries Chem. Servs., Inc., 99-0494 (La. 11/12/99), 759 So. 2d 755. In

11

order to meet the common cause requirement, each member of the class must

be able to prove individual causation based on the same set of operative facts

and law that would be used by any other class member to prove causation.

Price v. Martin, supra; Brooks v. Union Pac. R.R. Co., supra. To satisfy the

commonality requirement, Mr. Sanders was required to show that the claims

asserted arose from a common cause or disaster and that causation was the

same for all class members with the same set of operative facts and law.

The trial court found that the common issue as to the class was whether

the City failed to properly design, construct, and maintain the drainage system

for the neighborhood, resulting in flooding and subsequent damage to

property. Mr. Sanders argues that the trial court correctly determined the

common issue central to the class. He argues that the class should be certified

on the basis of commonality because all of the claims are based on the same

legal theory- the City’s failure to adequalety design, construct, and maintain

the drainage system for this area and that the damages sustained were from

the same event, the rainstorm on April 30, 2017.

Mr. Sanders argues that the findings of both reports indicated that the

area in question is encompassed by a single drainage system that impacts the

entire area and that the cause of the flooding in the area was due to 1) the

drainage system’s inadequate ability to export run-off water and 2) the

widespread neglect and deterioration of the drainage system. Mr. Sanders

asserts that each affected home sustained damage as a result of this one

system because it was deteriorated, eroded, and that all catch basins were

overgrown and blocked with debris. He argues that each of these causes is

uniform to the area and those who sustained damage.

12

Regarding the City’s failure, Mr. Sanders attempts to distinguish the

present case from that of Brooks v. Union Pac. R.R. Co., supra, in which the

plaintiffs alleged that the city and the railroads failed to design and maintain

box culverts and as a result, their homes were damaged during a flood. The

plaintiffs argued that because the actions of the city and the railroad caused

water levels to rise in all of the drainage basins, the only factor left to be

determined was the amount of water each home received.

The Louisiana Supreme Court affirmed the decertification of the class.

It noted that “the cause of the flooding must be the same for each member of

the class, and if there is more than one cause of flooding, each of these causes

must be the same for each class member.” Brooks v. Union Pac. R. R. Co.,

supra. The Court observed that the plaintiffs in this case resided in three

different watersheds or basins, the cause of the flooding varied from basin to

basin, and any secondary causes of flooding damages, such as elevation,

would vary depending on specific property conditions. Id. In addition, there

were multiple defendants whose collective actions contributed to the damage

sustained. Id. Accordingly, the Court concluded that in a mass tort case

involving more than one defendant, more than one cause, and more than one

theory of liability, class action would not be an appropriate mechanism. Id.

Here, Mr. Sanders argues that unlike Brooks v. Union Pac. R.R. Co.,

supra, there is only one defendant, the City, whose actions or inactions

created one set of circumstances which injured all of the class members.

Additionally, because the “neighborhood slopes on the west towards the east,

and from both the north-to-south, and south-to-north forming a three-sided

bowl that discharges at the far east,” the injured all reside within a single

13

watershed or basin so that there is only one common cause for the flood.

However, after a review of the record, we find that commonality has not been

established because there were multiple contributing factors within the

drainage system as well as secondary causes for the flooding.

Mr. Boudreaux’s report indicated that this area is located on a slope

encompassed by a single drainage system. Importantly, he indicated that the

system is composed of two distinct tributaries that each branch throughout the

area, leading to different culverts or catch basins at different locations in the

area. Further, Mr. Vanderbrook, who physically entered the system at various

locations, reported the following:

[F]looding in the neighborhood on April 30, 2017, was caused by
widespread neglect and deterioration of the storm water drainage
system. . . Virtually all of the catch basins were either overgrown
with vegetation, or blocked with debris. . . In addition,
widespread deterioration. . . has allowed significant erosion of
debris and soil into the system which reduced the drainage
capacity. . . Overgrown vegetation on the east side of Hwy 34
also significantly restricts runoff on the downstream side of the
system and causes water to back up throughout the system. . .

The report also indicated that while there was soil erosion around some

culverts, others were deteriorated or blocked by debris or vegetation; that

some catch basins were overgrown with vegetation, others at different

locations were blocked with debris, while still some other were blocked by

both debris and an overgrowth of vegetation. Moreover, Mr. Sanders

acknowledged that there were multiple causes for the flooding: “deteriorated

drain system, all catch basins being overgrown and blocked with debris,

erosion reducing drainage capacity, overgrown vegetation in the stream on the

east side of Highway 34, etc.” Based on the information provided in the

reports, we conclude that there are simply too many different factors and

14

causes which impact this system to determine that there is only one single

common cause.

The Supreme Court in Brooks v. Union Pac. R.R. Co., supra, stated that

if “there is more than one cause of flooding, each of these causes must be the

same for each class member.” It cannot be said that the resolution of whether

the City failed to properly design, construct, and maintain the drainage system

for the neighborhood would be the same as to each potential class member

because there are multiple alleged failures within the system making

causation different for each individual.

Mr. Sanders stated that he and another neighbor who lived a few blocks

over had to remove debris from their catch basin, otherwise storm water

would not drain; notably, Mr. Sanders did not testify that any other neighbor

complained of an overgrowth in vegetation preventing water from draining

properly. From this, it can be concluded that the cause of any particular home

flooding could be any combination of factors: its location on the slope of the

area; whether it is near a culvert that was eroded; or whether a particular catch

basin in its area was either overgrown with vegetation, blocked with debris, or

a combination of both.

Therefore, we find that the trial court erred in finding that there were

common questions of law and fact in this matter sufficient to certify the class

action. As stated previously, all five prerequisites of La. C.C.P. art 591(A)

must be satisfied to certify a class action. Thus, the failure to satisfy the

commonality requirement precludes class certification.

Numerosity and Joinder

15

Numerosity, as set forth in La. C.C.P. art. 591(A)(1), is based on the

facts and circumstances of a particular case. This requirement reflects the

basic function of a class action as a device for allowing a small number of

persons to protect or enforce rights or claims for the benefit of many where it

would be inequitable and impracticable to join every person sharing an

interest in the rights at issue in the suit. Baker v. PHC-Minden, L.P., supra.

Although there is no strict numerosity threshold, this element does require

more than just the mere allegation that a large number of potential claimants

exist. However, it is not required to identify every member of the potential

class prior to certification. Doe v. Southern Gyms, LLC, supra.

While the determination of numerosity is, in part, based upon the

number of putative class members, it is also based upon considerations such

as the geographic dispersion of the class; the ease of identification of the

class; the nature of the action; the size of the individual clams; the financial

resources of class members; and judicial economy in avoiding a multiplicity

of lawsuits. Doe v. Southern Gyms, LLC, supra; Galjour v. Bank One Equity

Investors-Bidco, Inc., 2005-1360 (La. App. 4 Cir. 6/21/06), 935 So. 2d 716.

Therefore, to satisfy this requirement, the plaintiff must show that joinder is

impracticable, yet, there is a definable group of aggrieved persons. Baker v.

PHC-Minden, L.P., supra; Doe v. Southern Gyms, LLC, supra.

From the findings of Mr. Boudreaux’s report, Mr. Sanders maintains

that the area, which is encompassed by the drainage system, is densely

populated and inundated with homes and other residential properties that were

each impacted by the same system. Within each home, he argues that there

likely to reside multiple people who would each have separate and individual

16

claims against the City for flood damage. Therefore, the totality of these

potential claimants would give rise to potentially hundreds of claims against

the City. In support, Mr. Sanders identifies his own household as an example;

at the time of the flood, he with lived his mother, his niece, and his nephew,

who would each have individual claims for loss of property. Additionally,

because the home was inherited by his mother and her five siblings, they

would also have separate claims for property damage.

However, after a review of the record, we find that the class is not

sufficiently numerous such that joinder would be impractical. Mr. Sanders

failed to present sufficient evidence to satisfy the numerosity requirement of

La. C. C. P. art 591(A). Although Mr. Sanders was not required to present

evidence of the exact and actual number of persons who will come forward

with a claim in this matter, he was required to show that the class was so

numerous that joinder of all potential class members is impractical. Instead,

he merely alleged in his petition that the class would potentially contain “in

excess of one hundred properties, as well as the number of people connected

with each property via ownership, residency, etc.” However, no evidence was

produced in court to show the population of this area, how many permanent

residents existed at the time of the rainstorm, or how many people actually

suffered damage. Numerosity is not satisfied by merely alleging that a large

number of potential claims exist; it is pertinent that the party seeking

certification “show that joinder is impracticable and there is a definable group

of aggrieved persons.” Doe v. Southern Gyms, LLC, supra.

In support of certification, Mr. Sanders presented the following

documentation: 1) Mr. Vanderbrook’s expert report, 2) Mr. Boudreaux’s

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assessment of the drainage system for the City, and 3) Mr. Sanders’s

deposition testimony. Mr. Vanderbrook’s report however, only referenced

that the area was densely populated; it did not provide an exact or even

estimated figure as to the number of individuals within in the area. Moreover,

the report did not provide even a rough estimation of the number of

potentially aggrieved persons in connection with this matter. Mr.

Boudreaux’s assessment also provided that the area encompassed by the

drainage system was densely populated. However, this assessment was

produced for the City in 2013, four year prior to the rainstorm, and the

findings of the assessment itself were based on the population of the City

from the year 2000.

Arguably, the size of the population for this area has changed; there has

either been an increase or decrease in population size since the census was

compiled and the report issued. No accurate number, or even an estimation,

as to the number of aggrieved persons could be determined from either report

as to the potentially aggrieved persons. Instead, only a speculation as to the

size of the area itself, not the number of aggrieved persons, could be made.

The argument that because the area encompassed by the drainage system is

densely populated, “in excess of a hundred homes,” and will likely lead to

several claims, alone, is insufficient to establish numerosity.

In his deposition Mr. Sanders recalled that at least ten homes and an

apartment complex received interior water damage, resulting in damage not

only to the property itself, but also to personal effects. He also recalled at

least five others, including himself, who either lost or received damage to

their vehicles. However, we find that this is insufficient to establish that a

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sufficient number of individuals existed such that joinder would be

impractical. Specifically, Mr. Sanders argued that the area was densely

populated in excess of hundreds of homes; yet he could only recall ten homes

that experienced water damage and a few others with damage to personal

property. No evidence as to the damage itself was presented. Mr. Sanders

stated that he had a Facebook page of pictures of the damage that the area

sustained from different homes, however, none of the pictures were produced

to demonstrate that several individuals were actually aggrieved.

Although Mr. Sanders stated that at one point he canvassed the

neighborhood and counted the number of homes impacted, he could not recall

the exact number. He also stated that after this storm, through the help of a

local church, he was able to compile a list of those in the area who were

impacted by the storm. Mr. Sanders also stated that he had a meeting with

those in the aggrieved area, where he then collected the names, addresses,

phone numbers, and requested pictures of damage and produced a copy of the

list to the mayor’s office. Although Mr. Sanders stated that he kept a copy of

this list, it was never offered into evidence, or even indicated the number of

people on the list.

Additionally, Mr. Sanders stated that during a previous flood, FEMA or

another similar agency came to the area to aid those in need by providing

cleaning supplies and other necessities and that a reporter covered a story of

the event. However, neither the story of the incident, nor any information that

the emergency organization collected was introduced to attest to the number

of potentially aggrieved persons in this area. Moreover, even if Mr. Sanders

established that a large number of persons could be established, the law has

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provided that where there is a large number of potential class members but

few have indicated a dissatisfaction with the defendant or a desire to assert a

claim, this may be weighed against a finding that the claims are so numerous

that their joinder would be impactable. Doe v. Southern Gyms, LLC, supra;

Pulver v. 1st Lake Props., 96-248 (La. App. 5 Cir. 9/18/96), 681 So. 2d 965.

Here, there are simply not enough individuals who expressed a dissatisfaction

with the City or a desire to file suit as a result of this event. Mr. Sanders has

not presented any evidence that there is, in fact, a large number of dissatisfied

persons that have come forward since the flood on April 30, 2017, or since

the filing of Mr. Sanders’ original petition who expressed a desire to pursue a

claim for damages by filing a separate suit or claims.

Mr. Sanders stated in his deposition that he went around the

neighborhood and spoke with several people who had interior water damage

from the storm. He stated, “I just asked them did they sustain any damages

due to the flood. Did they get any water in their house[?] Some of them was

like yeah, let me show you where water was at or let me show you the

waterline in my house.” He did not testify whether those persons, or if any of

the persons from the meeting he held, were interested in pursuing claims or

seeking redress for damages.

Mr. Sanders stated that he was able to garner a list of impacted

individuals from simply walking around the neighborhood, or either driving

through the area, yet, despite the ease in with which these individuals could

be contacted or identified, Mr. Sanders never testified that any of these

individuals were ever interested in filing a claim against the City, or that any

claims had ever been filed in relation to this matter. Although Mr. Sanders’s

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counsel attested that he sought to represent at least twenty other individuals in

this matter, neither the names of these individuals were produced, nor did

they join Mr. Sanders in the filing of this action. Moreover, Mr. Sanders

argued that because a single household could contain multiple claims for

damage, even referencing his own as an example, we note that of the several

members of his household, none have joined him as a plaintiff. Therefore, it

cannot be said that a sufficient number of potential claimants existed to

establish numerosity in this action.

Based on the findings of Mr. Boudreaux’s report, Mr. Sanders further

asserts that because the area in question encompasses most of Winnfield’s

poverty area, many aggrieved individuals would lack the financial resources

needed to pursue a claim against the City for their individual losses. In part,

Mr. Boudreaux’s report indicated that “. . . [a] casual ride throughout this

neighborhood would reveal that the 75% threshold for low to moderate

income. . . would easily be achievable.” Based on this section of the

assessment and his own personal knowledge of the area, the trial court took

notice of the poverty in this particular area in determining that that

numerosity should be satisfied.

We recognize that the financial resources of potential class members is

an important factor in “determining whether to maintain a class action

because not all potential class members may have the financial resources to

pursue individual claims for damages.” Bagot v. James Holdings, LLC, 17-

121 (La. App. 5 Cir. 12/20/17), 235 So. 3d 1330, writ denied, 2018-0124 (La.

3/9/18), 238 So. 3d 451. However, “a plaintiff’s financial ability concerning

tort claims is usually cured by the fact that these actions can feasibly be

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undertaken on a contingency basis.” Doe v. Univ. Healthcare Sys., LLC, 13-

1457 (La. App. 4 Cir. 7/09/14), 145 So. 3d 557. Accordingly, we conclude

that Mr. Sanders failed to establish that the class was sufficiently numerous to

satisfy the requirements of class certification.

Because we find that Mr. Sanders failed to satisfy the numerosity

requirement of La. C. C. P. art 591, there is no need to address the remaining

requirements for class certification because the “consideration of numerosity

alone is sufficient to establish that class action certification should be denied.”

Galjour v. Bank One Equity Investors-Bidco, Inc., supra. Thus, whether the

remaining criteria for class certification are met is rendered moot. Reeves v.

Explo Systems, Inc.

CONCLUSION

For the reasons stated above, we find that the trial court erred in

determining that the prerequisites for class certification under La. C. C. P. art.

591 were satisfied. The judgment of the trial court is reversed. Costs in this

matter are assessed to the Appellees.

REVERSED.

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