Gloria Martello v. City of Ferriday

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-90

GLORIA MARTELLO

VERSUS

CITY OF FERRIDAY, ET AL.

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 36358
HONORABLE CHARLES RAY BRACKIN, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of John D. Saunders, Michael G. Sullivan, and Elizabeth A. Pickett,
Judges.

REVERSED AND REMANDED.

Linda Suzanna Harang
Law Offices of Linda S. Harang, LLC
5817 Citrus Blvd., Suite H
Jefferson, LA 70123
(504) 734-2486
Counsel for Plaintiff/Appellant:
Gloria Martello

Charles Shelby Norris, Jr.
Attorney at Law
P. O. Box 400
Vidalia, LA 71373
(318) 336-1999
Counsel for Plaintiff/Appellant:
Gloria Martello

Stephen B. Murray
Julie A. Jacobs
Murray Law Firm
909 Poydras Street, Ste. 2550
New Orleans, LA 70112
(504) 525-8100
Counsel for Plaintiff/Appellant:
Gloria Martello

Robert E. Kerrigan, Jr.
Victor J. Franckiewicz, Jr.
W. Clay McGehee
Deutsch, Kerrigan & Stiles, L.L.P.
755 Magazine Street
New Orleans, LA 70130
(504) 581-5141
Counsel for Defendant/Appellee:
U.S. Filter Waste Water Group, Inc.

John P. Wolff, III
Stephen R. Wilson
Nancy B. Gilbert
Anthony P. Iannitelli
Keogh, Cox & Wilson, Ltd.
701 Main Street
P. O. Box 1151
Baton Rouge, LA 70821
(225) 383-3796
Counsel for Defendants/Appellees:
Owen & White, Inc., Eugene H. Owen,
Peter R. Hollis and Roy A. Waggenspack

PICKETT, Judge.

FACTS

On October 25, 1999, Gloria Martello filed a Petition for Damages and for

Class Certification against the City of Ferriday (the City), the engineering firm that

designed the city’s water plant, Owen & White, Inc., and the manufacturer of the

City’s water treatment plant, U.S. Filter Waste Water Group, Inc. (U.S. Filter),

seeking damages resulting from the failure of the Ferriday water plant to supply safe

water. The case was certified as a class action by the district court on July 25, 2001.

On July 27, 2001, the plaintiffs filed a Motion and Order for Leave to File a

Superceding, Consolidated and Amending Petition. In the amended petition, the

plaintiffs named as defendants Eugene H. Owen, Peter R. Hollis and Roy A.

Waggenspack, civil engineers employed by Owen & White, and involved in the

design of the Ferriday water plant. The plaintiffs also alleged fraud against Owen

& White and the three engineers. The defendants filed a suspensive appeal from the

judgment certifying the class on August 9, 2001, which had the effect of staying all

matters pertaining to the class action, including the motion to file an amended

petition.

The class certification was affirmed by this court, and the Louisiana Supreme

Court denied writs. See Martello v. City of Ferriday, 01-1240 (La.App. 3 Cir.

3/6/02), 813 So.2d 467, writs denied, 02-1002 (La. 6/7/02), 818 So.2d 769; 02-0990

(La. 6/7/02), 818 So.2d 770; 02-1514 (La. 6/7/02), 818 So.2d 771.

Following the denial of writs, the plaintiffs’ Motion to Amend the Petition was

heard on August 20, 2002. The trial court issued Reasons for Judgment granting the

plaintiffs’ motion on October 2, 2002. Owen & White and the three engineers were

served with the amended petition on October 15, 2002. Thereafter, on November 20,

2002, defense counsel contacted the plaintiffs, seeking to settle the matter through

mediation. On April 10, 2003, the parties attempted to mediate the case; however,

after five months of negotiations, they were unable to settle the matter.

On April 25, 2003, Owen & White filed a Notice of Failure to Move for

Certification. The defendants asserted that more than ninety days had passed since

they received service of the plaintiffs amended petition that included a new

allegation of fraud. They contended that pursuant to La.Code Civ.P. art. 592(A)(1),

the plaintiffs were required to move to certify the fraud claim as a class action and

requested a contradictory hearing for the purpose of determining whether the

plaintiffs’ fraud claim could be certified as a class action. A hearing was held on the

defendants’ motion to strike on June 30, 2003. On September 26, 2003, the trial

court granted the defendants’ Motion to Strike and dismissed the fraud allegations

and the three engineers named as defendants from the class action proceedings. It

is from this judgment the plaintiffs appeal.

ASSIGNMENTS OF ERROR

1. The plaintiffs (appellants) timely filed a motion for certification,
as required by the Code. Therefore, the trial court erred in
holding that the plaintiffs (appellants) have to file another
motion to add a fraud claim to the already certified case against
parties who, according to the district court, “have been fully
aware of these proceedings from the outset”. (emphasis in
original)

2. The plaintiffs (appellants) had good cause for not filing a second
motion to certify the fraud claim, because the case was already
certified as a class action against the parties toward whom the
fraud claim was being directed. Therefore, the trial judge erred
in dismissing the class-wide allegations of fraud against Owen
& White and the three engineers based on a strict application of
the “90-day rule”.

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DISCUSSION

In their first assignment of error, the appellants argue that the trial court erred

in dismissing their fraud claim and the three engineers from the class action

proceeding on the grounds that they failed to timely file a second motion to certify.

The issue before us is whether, under the provisions of La.Code Civ.P. art. 592(A)(1),

additional hearings for certification are necessary when a plaintiff adds new

defendants and claims to a class action that has been previously certified. This issue

has not previously been addressed by a Louisiana court.

The Louisiana Code of Civil Procedure provides for class actions, setting forth

guidelines for class certification in Articles 591 through 597. One of the fundamental

objectives of a class action is to achieve economy of time, effort and expense.

McCastle v. Rollins Envtl. Serv. of Louisiana, Inc., 456 So.2d 612 (La.1984).

Louisiana Code of Civil Procedure Article 592(A)(1) provides:

Within ninety days after service on all adverse parties of the initial
pleading demanding relief on behalf of or against a class, the proponent
of the class shall file a motion to certify the action as a class action. The
delay for filing the motion may be extended by stipulation of the parties
or on motion for good cause show.

Louisiana Code Civil Procedure Article 592(A)(3)©) provides:

In the process of class certification, or at any time thereafter,
before a decision of the merits of the common issues, the court may
restrict, or otherwise redefine the constituency of the class or the issues
to be maintained in the class action.
(Emphasis added.)

It is not uncommon for an initial petition in a class action to be amended,

sometimes several times, prior to a determination on the merits. Louisiana Code of

Civil Procedure Article 592(A)(1) does not require that a new certification hearing

be requested each time a petition is amended, either to add an additional defendant

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or to set forth a new cause of action. The clear wording of Article 592(A)(1) requires

that a motion to certify the action as a class action must be filed “within ninety days

after service on all adverse parties of the initial pleading . . . .” The initial pleading

in this matter is the Original Petition filed October 25, 1999. A Motion to Certify that

action as a class action was timely filed on January 24, 2000.

As there is no codal provision that requires a new certification hearing when

a previously certified class suit is amended, the trial court erred in dismissing the

plaintiffs’ fraud claim and the three engineers from the class action suit.

Because we find Article 592(A)(1) does not require a new motion to certify

when an initial petition is amended, the plaintiffs’ second assignment of error is moot.

DECREE

The trial court erred in dismissing the plaintiffs’ fraud claim and in dismissing

Eugene H. Owen, Peter R. Hollis and Roy A. Waggenspack from the class action suit.

The judgment of the trial court is reversed and remanded. The costs of this appeal are

to be borne by the defendants-appellees.

REVERSED AND REMANDED.

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