COOPER v. FESTIVA RESORTS LLC LLC (2015)

This matter arises from the filing of two separate lawsuits involving approximately one hundred sixty plaintiffs. Defendants filed an exception of improper cumulation of actions and/or improper joinder of parties with its answer in each action, which was granted in the first proceeding and denied in the second. Plaintiffs timely appeal the judgment granting the exception in the earlier-filed proceeding, and in a separate writ application, consolidated herein with this appeal, defendants seek supervisory review of the inconsistent ruling in the latter-filed proceeding.

For the following reasons, we reverse the judgment granting defendants' exception and remand the matter to the trial court for further proceedings. In addition, we grant defendants' writ application and affirm the judgment denying their exception.

FACTS AND PROCEDURAL HISTORY

Defendants, Festiva Resorts, LLC and Festiva Development Group, LLC (collectively “Festiva”), develop and market memberships in a points-based vacation club (“the Club”). Festiva encourages consumers to attend an individual or group sales presentation in New Orleans, Louisiana, and the attendees are offered the opportunity to purchase memberships in the Club. Those who purchase a membership enter into an agreement with Festiva, and the member is allotted points based on their level of membership, which can then be used to book accommodations.

On November 27, 2013, eighty-six individuals, each of whom purchased a membership from Festiva, jointly filed suit against Festiva (“the Cooper action”).¹ The Cooper action was assigned to Judge Paula Brown of the Orleans Parish Civil District Court, bearing docket number 2013–11147. On May 27, 2014, eighty additional individuals filed a separate action against Festiva (“the Adams action”).² The Adams action was assigned to Judge Piper Griffin of the Orleans Parish Civil District Court, bearing docket number 2014–05151.

The Petitions for Damages in both proceedings are nearly identical. In their petitions, plaintiffs allege that they were subjected to a high-pressured sales approach designed by Festiva to unreasonably induce customers to purchase defendants' “product.” Plaintiffs assert that when they ultimately succumbed to the sales pitch, they were coerced into signing various documents without reading them, were not provided documents that were referenced in the sales pitch concerning incorporations, bylaws, rules and regulations, and a declaration, and were not disclosed critical information regarding costs and availability of the Club. Thus, plaintiffs claim they were victims of unfair, deceptive, and misleading advertising and there was no meeting of the minds because plaintiffs could not possibly have understood the depth of the obligation to which they were agreeing. Finally, plaintiffs contend that after making their purchases, they were unable to reserve the properties because the facilities were unavailable or not available at the rates promised by Festiva, and that they were charged collection and maintenance fees, travel insurance, and other assessments, which were not disclosed; attempts to contact Festiva about said charges were unsuccessful.

Accordingly, plaintiffs' petitions pray for rescission of the sale and the contract to be declared absolutely null, the return of funds paid to Festiva and third parties, compensatory and treble damages, pre-judgment interest from the date of demand, costs and attorney's fees, the reversal of negative credit reports to credit agencies, specific performance of the gifts that were promised at the presentation, and the termination of any relationships between plaintiffs and associated third parties.

Festiva timely filed its answer along with multiple exceptions in both actions, including an exception of improper cumulation of actions and/or improper joinder of parties (“the Exception”). After plaintiffs filed oppositions and the matter came for hearings, Judge Brown granted the Exception on September 4, 2014,³ in the Cooper action, dismissing it without prejudice, and Judge Griffin denied the Exception on January 15, 2015,⁴ in the Adams action.

Plaintiffs now appeal the judgment in the Cooper action and Festiva seeks supervisory review of the ruling in the Adams action.

LAW AND ANALYSIS

The Cooper Action 5

In their sole assignment, plaintiffs contend that the judgment granting the Exception is reversible error because it is contrary to La. C.C.P. art. 463.

La. C.C.P. art. 463 provides, in pertinent part:

Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if:

(1) There is a community of interest between the parties joined;

(2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and

(3) All of the actions cumulated are mutually consistent and employ the same form of procedure.

The second and third element of La. C.C.P. art. 463 are satisfied here as the sales took place in New Orleans and the claims employ the same ordinary procedure. Thus, it is clear that this case turns on one issue-whether the plaintiffs share a “community of interest.”

In maintaining the Exception, Judge Brown acknowledged the similarities amongst the claims, but found that:

Having reviewed the record and after weighing the arguments advanced by counsel, this Court is of the opinion that a mass joinder of claims in the case at bar is inappropriate. While it remains undisputed that plaintiffs undoubtedly share a commonality of interest with respect to the resolution of their individual claims stemming from the solicitation and their subsequent purchase of timeshares, if they bought timeshares; [sic] it also stands to reason that the underlying factual circumstances necessary to establish liability against Festiva will vary by plaintiff․

To satisfy La. C.C.P. art. 463(1), the parties must share a community of interest such that the cumulated actions arise out of the same facts or present the same factual and legal issues. Mauberret–Lavie v. Lavie, 03–0099, p. 2 (La.App. 4 Cir. 6/11/03), 850 So.2d 1, 2 (citing Strahan v. Maytag Corp., 99–0869, p. 8 (La.App. 4 Cir. 4/5/00), 760 So.2d 463, 468). A community of interest is present when there is enough factual overlap between the cases to make it “commonsensical to litigate them together.” Id. (citations omitted).

We believe the plaintiffs' actions herein do reflect the same factual and legal issues. The facts of the plaintiffs will undoubtedly vary, but not significantly, as the assertions made in the petitions show that all plaintiffs attended a ninety-minute sales presentation, experienced a sales pitch from Festiva,⁶ paid Festiva for what the plaintiffs understood to be a timeshare, signed contracts with Festiva,⁷ and experienced not being able to use what they had purchased. Likewise, the legal theories are substantially similar as the plaintiffs' claims are all generally based in contract. Thus, enough factual overlap is present between the cases and the legal theories are sufficiently similar such that joinder is commonsensical.

Nevertheless, we recognize the discretion of the trial court in the management of these cases as provided for in La. C.C.P. art. 465, which states “[w]hen the court is of the opinion that it would simplify the proceedings, would permit a more orderly disposition of the case, or would otherwise be in the interest of justice, at any time prior to trial, it may order a separate trial of cumulated actions, even if the cumulation is proper.”

Judge Brown granted the Exception and dismissed the action without prejudice. La. C.C.P. art. 464 provides that when jurisdiction or venue is improper, the action shall be dismissed. However, when, as in the instant case, the cumulation is deemed improper for other reasons, the court may “(1) order separate trials of the actions; or (2) order the plaintiff to elect which actions he shall proceed with, and to amend his petition so as to delete therefrom all allegations relating to the action which he elects to discontinue.” La. C.C.P. art. 464.

Under these circumstances and in light of the above cited articles, we find the proper remedy would be to order separate trials of the cumulated actions,⁸ or to order the plaintiffs to elect which actions they wish to continue to litigate. Thus, because Judge Brown found that the cumulation was improper for reasons other than jurisdiction and venue, the judgment is reversed and the matter is remanded to the trial court for further proceedings.

The Adams Action 9

Festiva's writ application asserts that Judge Griffin erred in finding that plaintiffs' claims satisfy the requirements for joinder and by not dismissing the lawsuit or severing plaintiffs' claims into individual actions. Festiva further contends the trial court focused solely on one plaintiff's cause of action and one factor of Festiva's defense in deciding the community-of-interest element. Finally, Festiva alleges the trial court erred in considering judicial economy in its joinder analysis because it is not a statutorily provided factor.

For the same reasons we find that Judge Brown erred in granting the Exception in the Cooper action, we find that Judge Griffin did not abuse her discretion in denying the Exception in the Adams action. Therefore, Festiva's writ application is granted and the judgment is affirmed.

DECREE

For the above and foregoing reasons, the judgment granting Festiva's exception of improper cumulation of actions and/or improper joinder of parties is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion. The consolidated writ application is granted and that judgment is affirmed.

JUDGMENT REVERSED AND REMANDED IN 2014–CA–1327; WRIT GRANTED AND JUDGMENT AFFIRMED IN 2015–C–0159

I respectfully dissent from the majority opinion. I would find that the trial court abused its discretion in granting the motion to quash filed by Defendant, Dominique Domino. The majority opinion is primarily based on a finding that the State failed to present evidence to show its own due diligence in discovering and monitoring the whereabouts of Defendant so that prosecution against Defendant could be commenced in a timely manner.¹ However, Louisiana jurisprudence, in particular State v. Romar² and State v. McQuirter³ , compels a different result: Once a defendant receives actual notice of a pending hearing or trial date and subsequently fails to appear in court, the effort made by the State to locate a defendant who is “theoretically ‘locatable’ “ is of no significance as prescription was interrupted until the cause of the interruption no longer exists.

In State v. Romar, the defendant was charged with a third offense of operating a vehicle while intoxicated in 1997 and arraigned in January 1998. The defendant appeared for a pretrial motion hearing, which was then reset for April 1998. The court issued an attachment for the defendant's arrest when he failed to appear in April 1998 and again in June 1998. Eight years later, the defendant was arrested on another charge of operating a vehicle while intoxicated and as a result of the capias for his arrest previously issued. The defendant then filed a motion to quash on the basis that the State had failed to exercise due diligence to execute the outstanding warrant in the years following the defendant's failure to appear for the scheduled hearings. The trial court granted the motion to quash and the appellate court affirmed. Romar, 2007–2140, pp. 1–2, 985 So.2d at 724.

The Louisiana Supreme Court, however, reversed. The Court initially recognized that the State “bears the heavy burden of showing that it is excused from trying the accused on a charge later than the period mandated by [La.C.Cr. P. art.] 578 ․ which “ordinarily requires the State to exercise due diligence in discovering the whereabouts of the defendant as well as taking appropriate steps to secure his presence for trial once it has found him.” Id. at p. 3, 985 So.2d at 725. However, the Court found that when prescription is interrupted under La.C.Cr.P. art. 579(A)(3), as a result of the defendant's failure to appear at any proceeding pursuant to actual notice, proof of which appears in the record, the State no longer has an affirmative duty to search for the defendant. Id. at p. 6, 985 So.2d at 726. Since an arrest warrant remains in effect until executed,⁴ the Romar Court found that Louisiana law grants the State the discretion to keep the attachment open as a “trip wire” against the day when a defendant again comes under the scrutiny of authorities. Id. at pp. 7–8, 985 So.2d at 727. The Louisiana Supreme Court stated:

In the present case, the period of limitation did not begin to run anew until the cause of the interruption no longer existed, i.e., until defendant was finally arrested on the open attachment and appeared in court to dispose of the criminal contempt proceeding. The burden under La.C.Cr. P. art. 579(A)(3) thus falls not on the state to show that defendant had placed himself outside of its control to secure his presence at trial but on the defendant and his sureties to avoid the consequences of his failure to appear in court after receiving notice, and one of those consequence, since 1984, is the interruption of the time limits placed on trial.

The Romar Court thus found that, although the defendant was theoretically “locatable,” the State's efforts to find him were of no significance once it was established that the defendant had failed to appear in court after receiving actual notice.

In State v. McQuirter, the defendant/appellee was charged in Orleans Parish by bill of information with the crime of Simple Burglary on June 19, 2003. McQuirter, 2012–0486, pp. 1–2,108 So .3d at 371. Bond was set at $7,500. The defendant was arraigned on June 24, 2003, and pled not guilty. As a special condition of her bond, she was ordered to participate in the court's intensive probation program and to report for weekly drug tests beginning on June 25, 2003. The record indicated that the defendant was notified that her next hearing date would be July 14, 2003. The July 14th hearing was subsequently reset several times due to the defendant not being served. The trial court issued an alias capias and set the matter for bond forfeiture on August 27, 2003. The matter was reset on August 27, 2003, and, again on September 15, 2003 when the court learned that the appellee had not been served. When the defendant did not appear for the September 15, 2003 bond forfeiture hearing, the trial court issued an alias capias and ordered that no bond be set. The bond forfeiture hearing was continued without date.

Meanwhile, the defendant in McQuirter was arrested by Jefferson Parish authorities on December 29, 2003, and was sentenced to serve seven years with the Louisiana Department of Corrections on March 25, 2004. An arrest warrant was issued by the Orleans Parish Sheriff on December 6, 2011, based on the alias capias of September 15, 2003. With the defendant scheduled to be released from custody on the Jefferson Parish conviction on December 7, 2011, the defense attorney made an unscheduled court appearance in Orleans Parish on December 6, 2011, where a capias for the arrest of the defendant was issued for December 7, 2011. On December 7, 2011, the defendant appeared before the Orleans Parish trial court where her bond obligation was set at $1,000.00. The matter was reset for a status hearing on December 19, 2011. At the status hearing of December 19, 2011, counsel for the defendant orally moved to quash the State's bill of information of June 19, 2003. After a hearing on January 12, 2012, the trial court granted defendant's motion to quash and the State appealed.

This Court in McQuirter found no statutory basis for quashing the bill of information in that the State had carried its burden of proving that the defendant had received notice in open court on June 24, 2003 that she was to appear on July 14, 2003 and yet she failed to do so. This Court stated:

Further, we do not find that the State had an obligation to bring the appellee to trial while she was incarcerated in Jefferson Parish once the prescription period was interrupted when appellee failed to appear in court. See State v. Williams, 20111231, pp. 6–7 (La.App. 4 Cir. 5/23/12), 95 So.3d 554, 558, (whereby this Court held that the State is under no obligation to locate a defendant who was subsequently incarcerated in another parish once the prescriptive period has been interrupted by record proof of actual notice.)

McQuirter, 2012–0486, pp. 9–10, 108 So.3d at 375–76. The Court therefore reversed the judgment of the trial court, which had granted the motion to quash. Id. at pp. 9–10, 108 So.3d at 375–76.

In the case sub judice, the record reveals that Defendant was charged by bill of information on August 20, 2011, and therefore the State had to proceed to trial no later than August 20, 2013. See La.C.Cr.P. art. 578(A)(2). The time period set forth in La.C.Cr. P. art. 578(A)(2) is interrupted if “the defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears in the record.” La. C. Cr. P. art. 579(A)(3). The record reveals that Defendant had actual notice at the October 13, 2011 hearing that he was to appear on October 31, 2011, and failed to do so, triggering the issuance of a capias for his arrest. Based upon the aforementioned jurisprudence, although the State learned of Defendant's incarceration in Florida as early as October 2011, the State had no affirmative duty to monitor the status of the outstanding arrest warrant issued for Defendant. Thus, the running of the limitation period commenced to “run anew” once the cause of the interruption no longer existed⁵ and prescription was interrupted until Defendant reappeared in court on July 23, 2014, and the trial court recalled the alias capias. Accordingly, I would reverse the ruling of the trial court granting Defendant's motion to quash and remand the case for further proceedings.

FOOTNOTES

1.  On June 13, 2014, a motion to dismiss two plaintiffs was entered on the minutes. Thus, the Cooper action now consists of eighty-four plaintiffs.

2.  On December 19, 2014, a motion to dismiss four plaintiffs was entered on the minutes. Thus, the Adams action now consists of seventy-six plaintiffs.

3.  Judge Brown actually issued a judgment on July 8, 2014, which stated:[G]ranting of Defendant's Exception is deferred for a period of 30 days from the date this matter came on for hearing. During that time, the parties are to attempt to fashion a mutually-agreeable plan for consolidating certain of the individual claimants into sub-groups. The parties shall return to Court on August 1, 2014 at 9:00 a.m. to present their proposal to the Court for approval. If at that time the parties inform the Court that despite diligent efforts, they are unable to reach an agreement in accordance with the foregoing, Defendants' Exception will be granted.Festiva then filed a Notice of Compliance on August 28, 2014, advising that attempts to fashion an agreement pursuant to the provisional judgment were unsuccessful. Judge Brown then signed the judgment granting the Exception on September 4, 2014.

4.  The Exception was denied after four plaintiffs were dismissed because of lack of jurisdiction and/or venue. See supra note 2.

5.  As pointed out by Festiva, plaintiffs attach Exhibits A, C, D, E, F, I, J, and K to its appellant brief, which are not part of the appellate record. As a court of record, we must limit our review to evidence in the record before us. Kerrigan v. Bourgeois, 08–1457, pp. 4–5 (La.App. 4 Cir. 7/15/09), 16 So.3d 612, 614 (citing Ventura v. Rubio, 00–0682, pp. 3–4 (La.App. 4 Cir. 3/16/01), 785 So.2d 880, 885). Thus, we are prohibited from considering the above referenced exhibits to the extent that the information contained therein does not otherwise appear in the record. Miccol Enterprises, Inc. v. City of New Orleans, 12–0864, p. 7 (La.App. 4 Cir. 12/19/12), 106 So.3d 746, 750–51 (citing Bd. of Directors of Indus. Dev. Bd. of City of New Orleans v. All Taxpayers, Property Owners, Citizens of City of New Orleans, 03–0826, p. 4 (La.App. 4 Cir. 5/29/03), 848 So.2d 740, 744).

6.  Plaintiffs contend that although different employees presented the plaintiffs with the sales pitch, the script of the speech itself did not change.

7.  Plaintiffs contend that there are only two versions of the contract that all of the plaintiffs signed.

8.  This is, presumably, what Judge Brown was attempting to accomplish when she stated:I do think that, Plaintiff, you may be able to capture some—as opposed to filing 80 lawsuits, you may be able to capture some that will fall under a joinder and then some that will fall in a joinder. In other words ․ if you get all of the people that bought in this group, and then you get some who rented and they're in this group, or however. There has to be some closer commonality․However, as noted in note 3, supra, at the conclusion of the Exception hearing, Judge Brown deferred her ruling in order to give the parties 30 days “to attempt to fashion a mutually-agreeable plan for consolidating certain of the individual claimants into sub-groups.” Plaintiffs alleged that sub-groups were unnecessary, considering the commonality amongst all of the claims already, their attempts proved unsuccessful, and Judge Brown granted the Exception. The dictates of La. C.C.P. arts. 464 and 465 provide that the trial court is to order the separate trials, not have the parties do so themselves. Thus, as the trial judge, it is Judge Brown's responsibility to formulate the subgroups if she believes it “would simplify the proceedings, would permit a more orderly disposition of the case, or would otherwise be in the interest of justice.” La. C .C.P. art. 465.

9.  We note that a handful of the cases cited by Festiva in its writ application and reply brief involve cumulation of actions, not cumulation of parties, the issue in the instant case. Therefore, Festiva's reliance on those cases is misplaced.

1.  The majority also faults the State for arguing in favor of prescription being suspended, an issue the State failed to first raise with the trial court. Moreover, the majority notes that the State advocated for application of La.C.Cr. P. art. 579(C), a provision which was not yet in effect at the time Defendant was incarcerated. While the State certainly made some erroneous arguments to the trial court in support of its opposition to the motion to quash, the State did properly raise the issue to the trial court that Defendant's failure to appear at the scheduled hearing was sufficient to interrupt prescription.

2.  State v. Romar, 2007–2140, pp. 7–8 (La.7/1/08); 985 So.2d 722, 727.

3.  State v. McQuirter, 2012–0486, p. 5 (La.App. 4 Cir. 1/23/13); 108 So.3d 370, 373.

4.  See La.C.Cr. P. art. 205.

5.  See State v. Williams, 11–1231, pp. 4–5 (La.App. 4 Cir 5/23/12); 95 So.3d 554, 557, writ denied, 12–1447 (La.1/18/13); 107 So.3d 623 (where the State had no “affirmative duty to search for a defendant” after he failed to appear at the May 5, 2005 bond hearing, and, as such, the interruption of the time limitation for commencing trial began to run anew when the cause of the interruption no longer existed).

SANDRA CABRINA JENKINS, Judge.