STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2021 CA 1391
ASHLEY PRATT, INDIVIDUALLY AND ON BEHALF OF

ALL OTHERS SIMILARLY SITUATED l VERSUS

UNIVERSITY OF LOUISIANA AT LAFAYETTE, THE BOARD OF SUPERVISORS FOR THE UNIVERSITY OF LOUISIANA SYSTEMS, AND

THE UNIVERSITY OF LOUISIANA SYSTEM 

## f Judgment Rendered: 

### OCT 21 2022 vi On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge

State of Louisiana Trial Court Docket Number C632647, Section 24 

### Honorable Donald Johnson, Judge Presiding

Jerry L. Lavespere, Jr. Counsel for Plaintiffs/Appellees, Alexandria, LA 

### Ashley Pratt, Rachelle Phillips, Jenae Jean,

and 

### Krystiana Guillory, Krista Drew, Kevin L. Camel Candance Carmouche, Dana Davis, Lake Charles, LA Danica Broussard, Brock Broussard, 

### Robin Leday, and Elizabeth Brown JeffLandry Counsel for Defendant/Appellant, 

### Attorney General 

### Board ofSupervisors forthe University of Cearley W. Fontenot Louisiana System Daniel J. Phillips Special Assistant Attorneys General Lafayette, LA

BEFORE: WHIPPLE, C.J., McCLENDON, HOLDRIDGE,

PENZATO, AND HESTER, JJ.

tPENZATO, J.



### This matter is before us on appeal by defendant, the Board of Supervisors for the University of Louisiana System (" the Board"'), from an order ofthe trial court certifying this matter as a class action. For the reasons that follow, we reverse.

BACKGROUND AND APPLICABLE LAW In 2003, the Legislature enacted La. R.S. 17: 3351. 9, which pertinently 

### authorizes the Board to assess an " academic excellence fee" to be paid by students, 

### in addition to any other tuition or attendance fees or charges established by the Board. A year later, La. R.S. 17:3351( A)(5)( d) was enacted and authorizes each 

### postsecondary system management board to assess an " operational fee" at each institution under its management and supervision. Although both statutes state that 

### the respective fee shall be paid by all students,they also provide forthe availability of a waiver in cases of "

### financial hardship." Neither statute defines " financial 

### hardship." 

### Specifically, as it relates to the waiver, La. R.S. 17: 3351( A)(5)( d)( iv) provides, in part, 

### T]he boards shall establish criteria for waiving the fee in cases of financial hardship as determined by each board. Information relative 

### to such waivers and the criteria and procedures for obtaining awaiver 

### shall be made available to all prospective students in a timely manner such that each student is informed ofthe availability ofa waiver prior 

### to the student making a final decision concerning attendance at any institution under the management and supervision ofthe board. Louisiana Revised Statutes 17:33519(B)( 3) places identical requirements on the Board, 

### which is the governing postsecondary management board for the University ofLouisiana at Lafayette (ULL). La. R.S. 17: 3217( 7). 

### On July 18, 2011, plaintiffs, 

### Ashley Pratt, Rachelle Phillips, Jenae Jean, 

### Krystiana Guillory, Krista Drew, Candance Carmouche, Dana Davis, Danica 

### Broussard, Brock Broussard, Robin Leday, and Elizabeth Brown, students and former students at ULL, filed a class action petition for damages against the Board, 

### asserting claims individually and as representatives of other similarly situated

2individuals.' The plaintiffs averred that, pursuant to the statutes cited above, the

Board failed to " provide a proper means" 

### for Pell Grant recipients to apply for a waiver of the academic excellence fee and/or the operational fee ( sometimes collectively referred to as " the fees").' 

### They alleged that the Board violated these statutes and asserted causes of action for negligence, conversion, and unjust
enrichment. 

### Finally,the plaintiffs sought certification ofa class consisting of: individuals who applied for and were granted Pell Grants to attend U.L.L., and, who were unaware ofthe availabilityto request waivers of the Academic Excellence fee and the Operational fee, and, if these 

### people knewofthe availabilityto requestsaidwaivers,theywould have requested said waivers. 

### Students who were not adequately notified of the Academic Excellence fee waiver and the Operational fee waiver. Emphasis removed.] 

### The plaintiffs filed amotion to certifythe case as a class action in May2020, asserting that all criteria required to certify the class are satisfied. 

### Specifically, La. C.C. P. art. 591( A) provides that one or more members of a class may sue as 

### representative partieson behalfofall only if: ( 1) the class is so numerous thatjoinder ofall members is impracticable (" numerosity"); ( 2) there are questions oflaw or fact

common to the class (" commonality"); ( 3) the claims of the representative parties

are typical ofthe claims ofthe class (" typicality"); (4) the representative parties will 

### fairly and adequately protect the interests of the class (" adequacy of representation"); and ( 5) 

### the class is or may be defined objectively in terms of ascertainable criteria,such thatthe court maydetermine the constituency ofthe class 

### forpurposes ofthe conclusiveness ofanyjudgmentthatmay be rendered in the case objectively defined class"). This final prerequisite shall not be satisfied if it is 

### necessary for the court to inquire into the merits of each potential class member' s

i ULLand the University ofLouisiana System were also named as defendants butwere dismissed, with prejudice, pursuantto a dilatory exception of lack ofprocedural capacity. a The plaintiffs also cited La. R.S. 17:3351. 3( 0) and (D), La. R.S. 17: 3351. 7, La. R.S. 17: 3351. 8, and La. R.S. 17: 1855. 1, which are not at issue in this appeal.
3cause ofaction to determine whether an individual falls within the defined class. La.

C.C. P. art. 591( A)(5). Once these five prerequisites have been met, Article 591( B) sets forth three 

### additional criteria,one ofwhich must also be satisfied forcertification depending on the type of class action sought. Article 591( B)(3), at issue here, provides that an 

### action may be maintained as a class ifthe court finds that questions of law or fact common to the members ofthe class predominate over any questions affecting only individual members, and a class action is superiorto otheravailable methods forthe 

### fairand efficient adjudication ofthe controversy. Pertinent to our discussion, the plaintiffs maintain that commonality and 

### typicality are satisfied because their damages are identical and were caused by the same conduct by ULL — assessment ofthe fees. 

### They asserted that the members of the class are ascertainable through the " acquisition ofthe list ofPell Grant recipients 

### during the applicable years." Finally, they sought certification pursuant to Article 591( B)(3) and identified one issue that predominates over individual considerations the waiver was not available to the class members before the final decision was 

### made regarding enrollment" at ULL. 

### The Board opposed the motion to certify, primarily contending that, since 2003, 

### it has utilized a six - factor test to determine fee waiver eligibility based on 

### financial hardship and that this information was, and still is, publicly available on various University websites. The Board maintained that, to be eligible for a waiver ofthe fees at ULL, a student must: ( 1) be a Louisiana resident, (2) be enrolled as a full-time student ( 12 hours or more), ( 3) be eligible for a Pell Grant, (

### 4) apply for federal financial aid, (5) accept all financial aid for which the student qualifies, and b) have total qualified educational expenses that exceed the student' s total financial

aid package. Thus, the Board argued that class certification was improper because the court would have to conduct " a multifaceted, individualized analysis" to

4determine whether each student/putative class member met all six criteria for each

semester that the student claims fees should have been waived. The Board further argued that the trial court would be required to determine whether each student knew 

### aboutthe waiver and, ifnot,whetherthe student's unawareness was caused by ULL or some other reason, such as inattention. For these reasons, the Board asserted that 

### the class cannot be objectively defined, as required, and does not meet the commonality, typicality, and predominance requirements. La. C.C.P. art. 591( A) and (B)( 3). 

### A hearing on the motion to certify the class was held on July 7, 2021. The evidence established that, since the enactment of La. R.S. 17: 3351. 9 and La. R.S. 17: 3351( A)(5)( d), ULL has collected an academic excellence fee of $120. 00 per student persemester and an operational fee of $ 61. 20 per student per semester. ULL 

### submitted deposition testimony from Dr. DeWayne Bowie, Registrar, and Cindy Perez, Director of Financial Aid. 

### Together, they established the criteria to be used 

### to determine eligibility fora waiver ofthe fees based on financial hardship. Receipt of a Pell Grant is a threshold waiver requirement but does not conclude the 

### University' s inquiry. 

### Each student's ability to meet all six factors is examined. DLL' s witnesses and evidence also confirmed that these criteria are used to 

### determine waiver eligibility for all fees collected by the University, not only the academic excellence and operational fees. Thus, once an individual satisfies all six 

### criteria, the student is eligible for a waiver of all fees collected by ULL for the semester, including the academic excellence and operational fees. The plaintiffs' biostatistics expert did not refute the existence of DLL' s six - 

### factor test and confirmed his understanding that receipt of a Pell Grant is the " first level." However, whether an individual is awarded a waiver is based on the criteria 

### indicated by Dr. Bowie.

5

### After taking the matter under advisement and receiving proposed findings of

fact and conclusions oflawfrom the parties,the trial certified the class and appointed 

### Ashley Prattasthe class representative.' 

### The certification order,dated July23, 2021, defines the class as: All individuals who were awarded Pell Grants to attend [ ULL], who 

### were charged theAcademic Excellence Fee and the Operational Fee by ULL], 

### and who were not notified oftheir rightto apply for a waiverof the Academic Excellence [ F]ee and the Operational [ Flee pursuant to Louisiana Revised Statutes 17: 3351. 9 and 17: 3351. The trial court also issued written " findings of fact and conclusions of law." The trial court concluded that ULL "

### had no criteria" pertaining to either ofthe fees and, instead, "

### simply used" the waivercriteria previously adopted bythe University, 

### which it used to determine waiver eligibility ;for fees other than the academic excellence and operational fees. 

### Finding ULL had no criteria in place, the trial court determined that the class certification requirements are satisfied because all class members received Pell Grants ( estimated at 4,000-6,000 students/plaintiffs per semester), 

### attended ULL from 2003 to present,the fees atissue apply, and each class member has the same damage per semester ($ 120 and $61. 20). 

### Thetrial court also found thatthe class, as setforth inthe order,is objectively defined. 

### According to the trial court, inquiry into the merits ofeach putative class member' s cause ofaction is not required, because "[ 

### p] laintiffclass members are Pell Grant recipients who attended ULL." 

### Finally, the trial court concluded that 

### questions oflaw and fact predominate overquestions affecting individual members and that the class action procedure is superior to other available methods of adjudication. No legal or factual findings are cited to support this conclusion.



### 3ThecourtappointedJerry L.Lavespere,Jr.andSamuel DavidAbrahamasplaintiffclasscounsel. In its July 23, 2021 order, the trial court also overruled exceptions of no cause of action and no right ofaction filed bythe Board. These rulings are not at issue in this appeal.
MThe Board filed the instant suspensive appeal, pursuant to La. C. C.P. art.

592(A)(3 )(

### C), 4 seeking reversal ofthe trial court's order certifying the class. The 

### Board asserts thatthe trial court manifestly erred when it found that receipt ofa Pell 

### Grant isthe only criteriathatwas (orcould be) used for awaiverofthe fees at ULL.$ We agree, and, after reviewing the record de novo, we conclude the plaintiffs failed to establish thatthe criteria set forth in Article 591( A)(1) through (5) and (B)(3) have been satisfied. See Baker v. PHC-Minden, L.P., 2014-2243 ( La. 515115), 167 So.3d 

### 525, 539 (the burden of establishing that the statutory criteria have been satisfied falls on the party seeking to maintain the class action). DISCUSSION In 

### determining the appropriateness of class certification, the court is concerned only with whether the statutory requirements are met, not whether the 

### plaintiffs have stated a cause ofaction orthe likelihood they will ultimately prevail

on the merits. 

### Baker, 167 So.3d at 537; Pobichaux v. State ex rel.Department of Health and Hospitals, 2006-0437 ( La. App. 1st Cir. 12128/06), 952 So.2d 27, 34, writs denied, 2007-0567, 2007-0580, 2007-0583 ( La. 6/22/07), 959 So.2d 503 and 504. Nevertheless, the Louisiana Supreme Court has recognized that, in practice, 

### the analysis of whether the class action criteria have been satisfied frequently overlaps with the merits ofthe underlying claim. Price v. Martin, 2011- 0853 ( La. 12/6/ 11), 79 So.3d 960, 967. The general rule —

### that any errors to be made in 

### deciding class action issues should be in favor of the maintenance of the class — cannot and should not be used as a substitute for the rigorous analysis required to

4 Louisiana Code of Civil Procedure article 592(A)(3)( c) provides that a party may take a suspensive or devolutive appeal as amatterofright from an orderorjudgmentcertifying the action as a class action. 5 Because we find merit in the Board's first assignment of error, we pretermit discussion of its second assignment of error, i.e., that the trial court erred when it found that each putative class member' s award would be identical.

7determine whether the prerequisites of Louisiana' s class action provisions have in

fact been satisfied. Id. See also La. C. C. P art. 591( A)(3)( d). 

### Whether the trial court applied the correct legal standard in determining to 

### certify the class is reviewed de novo, but the court's ultimate decision ofwhetherto certify the class is reviewed under an abuse ofdiscretion standard. Doe v. Southern Gyms, LLC, 2012- 1566 ( La. 3/ 19/ 13), 112 So.3d 822, 830. The manifest error 

### standard applies to the trial court' s factual findings, which may only be reversed upon a finding that, based on the entire record, no reasonable factual basis exists for 

### the factual finding and the factfinder is clearly wrong. Stobart v. State, through 

### Department ofTransportation and Development, 617 So.2d 880, 882 (La.1993). Although the merits ofthe plaintiffs' claims are not before us, the parties focus 

### on the adequacy ofULL's waiver criteriato supporttheir arguments for and against

class certification. 

### This threshold issue requires consideration of the statutory language of La. R.S. 17: 3351. 9 and La. R.S. 17: 3351( A)(5)( d) and the legal 

### sufficiency ofULL's method fordetermining financial hardship. See Price,79 So.3d at 967. As set forth above, the trial court recognized that ULL used criteria to 

### determine fee waiver eligibility but also made the factual finding that ULL "had no
criteria" specifically pertaining to the academic excellence and operational fees. These findings reflect that the court determined, as a matter of law, that La. R.S. 17:3351. 9 and La. R.S. 17: 3351( A)(5)( 

### d) require more than or something different 

### from the criteria used by ULL . 6 See Baackv. McIntosh, 2020-01054 (La.6/30/21), 333 So.3d 1206, 1211 ( 

### statutory interpretation is a question of law). Thus, the 

### determination that the six - factor test utilized by ULL is legally insufficient for

6 Although it is well settled that appeals are taken fromjudgments, not reasons forjudgment, a trial court's reasons forjudgment may elucidate the trial court' s thought process when reaching factual findings. Wooley v. Lucksinger, 2009-0571 ( La. 4/l/ 11), 61 So.3d 507, 572. 11purposes of La. R.S. 17: 3351. 9 and La. R.S. 17: 3351(A)(5)( d) is implicit in the trial
court' s conclusions. 

### We find the trial court erred as a matter oflaw in interpreting the statutes at 

### issue and this legal error interdicted the fact-finding process such thatthe trial court manifestly erred by finding that no waiver criteria exist. These combined errors led 

### the trial court to certify the class upon concluding that receipt ofa Pell Grant is the sole criteria required to receive a waiver ofthe fees, which is both statutorily and 

### factually incorrect. The trial court failed to conduct the rigorous analysis required 

### to determine whethera class action meets the requirements imposed by law. Doe v. Southern Gyms, 112 So.3d at 829. Neither La. R.S. 17:3351. 9 nor La. R.S. 17:3351( A)(5)( d) state that a board 

### or university under its supervision must waive the fee for individuals who receive Pell Grants. Instead, La. R.S. 17: 3351( A)(5)( d)( iv) allows each postsecondary system management board to " 

### establish criteria for waiving the [operational] fee in 

### cases of financial hardship as determined by each board. " ( Emphasis added.) Louisiana Revised Statutes 17:3351. 9(B)(3) likewise states that the Board " shall 

### establish criteria for waiving the [ academic excellence] fee in cases of financial 

### hardship as determined by the board." ( Emphasis added.) 

### Considering this express 

### authority, we find no merit in the plaintiffs' assertion that the class was properly limited to Pell Grant recipients in keeping with the policy ofthe applicable statutes 

### that the waivers be limited to those who demonstrate financial hardship." An examination of La. R.S. 17: 3351. 3, a similar statute on the same subject, further belies this argument, as well as the trial court' s conclusion that receipt of a 

### Pell Grant is all that is statutorily required to qualify for a waiver of the fees. Louisiana Revised Statutes 17:3351. 3 provides for the assessment of an academic 

### excellence fee bythe Board ofSupervisors ofLouisiana State University located in Baton Rouge and expressly states that the fee shall be paid by all students except,

01among others, those who receive Pell Grants. La. R.S, 17: 3351. 3( B)(3)( a). This

statute was enacted in 2000, prior to the enactment of La. R.S. 17: 3351. 9 and La. R.S. 17: 3351( A)(5)( d). The Legislature could have chosen to waive the fees 

### established by La. K.S. 17:3351. 9 and La. R.S. 17:3351( A)(5)( d) for all students who attend ULL and receive Pell Grants, as it had in the past for those who attend 

### Louisiana State University at its Baton Rouge campus. 1t did not. Laws on thesame subject matter must be interpreted in reference to each other. La. C.C. art. 13. The Legislature is presumed to have enacted each statute with deliberation and with full 

### knowledge ofall existing laws on the same subject. Marco OutdoorAdvert.,Inc. v. 

### Department ofTransportation and Development By and Through Wilson, 2021- 0123 (La. App. 1st Cir. 7/ 13/21), 329 So.3d 288, 299, wit denied,2021- 01195 ( La. 11/ 10/21), 326 So.3d 1247. 

### ULL, as authorized by the Board, had the discretion to rely on the criteria it 

### deemed appropriate to determine financial hardship, including anycriteria also used 

### to determine financial hardship and waivereligibility for other fees assessed bythe University. 

### ULL was not statutorily required to create a new or unique standard solely used to determine a student' s eligibility for a waiver of the academic

excellence and operational fees. See La. R.S. 17:3351. 9 and La. R.S. 17:3351(A)(5)( d). DLL' s uncontradicted evidence establishes that it utilizes six 

### factors to determine waivereligibility based on financial hardship. A student who satisfies all factors —

### thus, proving financial hardship as determined by ULL —is 

### eligible for a waiver of all assessed fees, including the academic excellence and operational fees. 

### Nothing in the statutes at issue prohibits this procedure.



### 7 The plaintiffs' biomechanics expert,who soughtto identify any correlation betweenthe waiver applications and the waiver amounts awarded, testified only that ULL' s process of providing a single waiver for all fees and " gaps" in information supplied to him made it impossible to determine the amount awarded by ULL as waivers forthese the fees.

10Thus, we find the Board established that the determination of waiver



### eligibility at ULL requires each putative class memberto demonstrate that she would 

### have satisfied all six criteria for every semester in which she claims the fees should have been waived. 

### Each plaintiffs waiver eligibility is relevant to her success on the asserted causes of action, 

### including unjust enrichment, negligent misrepresentation, and conversion.$ This required individual analysis precludes

class certification, 

### particularly because the commonality and predominance requirements are not met. Price, 79 So.3d at 969 ( 

### Commonality requires a party seeking certification to demonstrate the class members' claims depend on a common contention capable of class - wide resolution such that the determination of its truth 

### orfalsitywill resolve an issue central to the validity ofeach one ofthe claims in one stroke.) As a " 

### logical corollary" to the conclusion that commonality did not exist, the Price court also concluded that predominance was not satisfied. Id.at 976. See 

### Fontcuberta v. Cleco Corp., 2016- 1477 ( La. App. 1 st Cir. 612117), 222 So. 3d 235, 243 ( 

### One class member must be able to prove the cause of his injury or damage 

### based on the same setofoperative facts aswould be offered byevery other member ofthe class.) 

### The facts established atthe certification hearing demonstrate that each

8 Unjust enrichment requires a person who has been enriched without cause at the expense of another person to provide compensation to that person. La. C. C. art. 2298. The plaintiff must prove an enrichment, an impoverishment, a connection between the two, an absence of justification 

### orcause forthe enrichmentand impoverishment,and the lackofanother remedy at law.Calloway v. Lobrano, 2016- 1170 ( La. App. 1st Cir.4112117), 218 So.3d 644, 649. To recover for negligent misrepresentation, there must be a legal duty on the part of the defendant to supply correct information, a breach of that duty, and damage to the plaintiff caused by the breach. Riedel v. Fenasci, 2018-0540 ( La. App. 1st Cir. 12128118), 270 So.3d 583, 592. The intentional tort of 

### conversion is committed when one wrongfully does any act of dominion over the property of another in denial oforinconsistent with the owner's rights. A conversion is anywrongful exercise or assumption ofauthority over another's goods, depriving him ofthe possession, permanently or for an indefinite time. Jones v. Americas Ins. Co., 2016-0904 ( La. App. 1st Cir. 8/ 16117), 226 So.3d 537, 542.

11

### plaintiffs cause ofaction against the Board involves many individual variables not

capable ofclass -

wide resolution.9 Upon de novo review ofthe record, we also find the plaintiffs' proposed class 

### definition is not comprised of an easily identifiable group of similarly situated

persons. 

### Therefore, it does not satisfy Article 591(A)(5), which requires the class 

### be objectively defined. 

### The plaintiffs sought to certify a class that includes individuals who were unaware ofthe ability to request waivers ofthe fees and " if 

### these people knew of the availability to request said waivers, they would have requested said waivers."" The determination ofwhether a putative class member 

### satisfies this definition requires consideration ofwhat each individual knew, when the knowledge was obtained, and the cause ofthe individual' s ignorance ifshe was

unaware. 

### As the Board points out, each plaintiff must individually establish that ULL caused herto be unaware ofthe abilityto request a waiver; otherwise, there is no liability. Finally, consideration must be given to each individual' s subjective 

### beliefs concerning what hypothetical action she may have taken in the past had she known about the ability to request a waiver. These individual inquiries require 

### credibility determinations not subject to resolution on a class - wide basis. Until such 

### an inquiry is made, a court cannot decide whether the elements ofnumerosity and commonality are satisfied. 

### Forthese reasons,we findthe plaintiffs failedto carrytheir burden ofproving class certification is proper.



### 9 We also conclude that the trial court erred by appointing Ashley Pratt as class representative. The plaintiffs offered no evidence ofPratt's claims or Pratt' s interest in this proceeding nor did they otherwise demonstrate that Pratt's claims are typical ofthe claims ofthe class and that Pratt will fairly and adequately protectthe interests ofthe class. La. C.C.P, art. 591(A)(4) and (5). 

## 10The class definition included intheJuly23, 2021 orderdiffersfromthe definition proposed by the plaintiffs and does not include this precise consideration, although itdoes require consideration of whether the putative class member was " notified." It is unclear when or why the original 

### definition set forth in the petition and in the plaintiffs' motion to certify the class was changed. However, in our de novo review, consideration is given to the plaintiffs' proposed definition to determine the appropriateness ofclass certification.

12CONCLUSION



### Forthe above and foregoing reasons, we reverse the trial court'sJuly23, 2021 order granting the motion to certify the class filed by plaintiffs, Ashley Pratt, Rachelle Phillips, Jenac Jean, 

### Krystiana Guillory, Krista Drew, Candance 

### Carmouche, Dana Davis, Danica Broussard, Brock Broussard, Robin Leday, and Elizabeth Brown. Costs ofthis appeal are assessed to the plaintiffs. I'll y I" It "O

13ASHLEY PRATT, INDIVIDUALLY

AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED VERSUS UNIVERSITY OF LOUISIANA AT LAFAYETTE, THE BOARD OF SUPERVISORS FOR THE UNIVERSITY OF LOUISIANA SYSTEMS AND THE UNIVERSITY OF LOUISIANA SYSTEM STATE OF LOUISIANA

COURT OF APPEAL FIRST CIRCUIT

NUMBER 2021 CA 1 391 

# 4k,

WHIPPLE, C.J., 

### concurring in part and dissenting in part. 

### I respectfully dissent from the majority opinion herein and would affirm the trial court' s September 21, 

### 2021 order certifying the class due to the heightened standard of review applicable herein; 

### however, I agree with the majority that the trial court erred by appointing Ashley Pratt as class representative. 

### The only issueto be considered bythe trial courtwhen ruling on certification, and bythis Court on review, iswhetherthe case at bar is one in which the procedural 

### device isappropriate. Atrial courthaswidediscretion in decidingwhetherto certify

a class. Baker v. PHC-Minden, L.P., 2014-2243 ( La. 5/5/ 15), 167 So. 3d 528, 537- 38. 

### In reviewing a trial court's judgment regarding class certification, the trial court' s factual findings are subject to the manifest error standard. However, the 

### ultimate decision ofwhether or not to certify the class is reviewed under the abuse 

### ofdiscretion standard and any errors made in deciding class action issues should be resolved in favor of and not against the maintenance ofthe 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." Dupreey. Lafayette Ins. Co., 20092602 (La. 11/ 30/ 10), 51 So. 3d 673, 680; Baker, 167 So. 3d at 537. Thus, at any time, the trial court " may alter, amend, 

### or recall its initial ruling on certification and may enlarge, restrict, or otherwise redefine the constituency ofthe class or the issues to be maintained in the class action." LSA-C. C.P. art. 592(A)(3)( d).

1

### On our review ofatrial court' s order certifying a class, we are mandated to



### refrain from considering ( or ruling on) substantive issues of the case, except as pertinent to the assignments of error alleged in the appeal. 

### Additionally, in 

### determining the propriety ofa class action, the court is not concerned with whether the plaintiffs have stated a cause of action or even the likelihood that they will ultimately prevail on the merits. Baker, 167 So. 3d at 537. 

### On appeal, the Board generally challenges the trial court's determination that this matter satisfied the five requisites for class action as laid out in LSA-C.C.P. art. 

### 591(A)and also complains that,based on the class definition as certified bythe trial court,the trial court certified the class based upon the trial court' s erroneous implicit 

### finding that the receipt ofa Pell Grant is the only criteria for a waiver ofthe Fees, and thus, that the trial court erred factually. 

### However, based on my review ofthe 

### record, I find no basis to say that by certifying a class that consisted of only Pell 

### Grantrecipients,thetrial courterroneously certifiedthe classasaresultofimplicitly finding that receipt ofa Pell Grant was the only acceptable criteria for determining awaiver ofthe Fees, as claimed bythe Board. While the plaintiffs argue that receipt 

### ofa Pell Grant should be sufficient to qualify them fora waiverofthe Fees, there is nothing in the trial court's signed order or findings offact and conclusions oflaw to indicate that the trial court made the determination that receipt of a Pell Grant 

### established the rightto a waiver based on hardship.' Additionally, I find that, while each plaintiff may have attended ULL for a different amount ofsemesters, or may have been entitled to a waiver ofthe fees for 

### adifferentamount ofsemesters, as recognized bythe Louisiana Supreme Court, " the 

### mere fact that varying degrees of damages may result from the same factual

While the decision to seek certification of a class of solely Pell Grant recipients may ultimately prove fatal to the plaintiff's claim, we are purely concerned with the procedural mechanism of class action litigation and not with whether the plaintiffs have stated a cause of action. See Baker, 167 So. 3d at 537.

### transaction and same legal relationship or that class members must individually

prove their right to recover does not preclude class certification." Bartlett v. 

### Browning-Ferris Industries Chemical Services, Inc., 99- 0494 ( La. 11112199), 759 So. 2d 755, 756 ( per curiam). In this case, it is undisputed that the amount of each of the Fees has remained the same since the Fees were enacted. In fact, the trial 

### court merely found thatthe amount ofeach member' s award would be the same per semester, because the Fees remained the same each semester, a finding which is not manifestly erroneous or clearly wrong. 

### Recognizing that the analysis of whether the class action criteria has been satisfied may sometimes overlap with the merits ofthe underlying claim, see Price
v. Martin, 2011- 0853 ( La. 1216111), 79 So. 3d 960, 967, I find that the dispute in this 

### matter essentially turns on a question of law and statutory interpretation, namely, whether the criteria or procedure utilized by ULL satisfies the Board' s obligation to 

### establish criteria forwaiving the fee[s] in cases offinancial hardship." See LSAR.S. 17: 3351( A)(5)( d) and 17:3351. 9. 

### According to Dr. Bowie, who was the 

### University Registrar atthe time the criteriawas "created," the waiver ofthe two Fees 

### at issue herein is lumped togetherwith the waiver ofother fees, namely the building use fee and the tuition increase fees. The unanswered question is whether this 

### procedure complies with the mandates in the statutes creating same. Additionally, 

### Dr. Bowie conceded that ULL is responsible for maintaining records regarding the number of waiver applications received, as well as the number and value of awards granted for each Fee for compliance ifthe fees are collected, imposed, or waived. Nevertheless, despite the claim that the criteria was made available on a website ifa student looked for it, based on the waiver records provided herein, it is impossible to determine which Fees were waived for which awardee. Instead, Dr. Bowie testified thatthe waiver is a " package deal" ofall ofthe Fees, and the amount waived is onlythe difference between a student' s financial aid package and whatthe student

3

### owes.a Notably,Dr.Bowie testified thata student is unable to apply forthe waiver

if the student is not a Pell Grant recipient, but that receipt of a Pell Grant does not 

### automatically mean a student will qualify for the waiver. Pell Grants are the trigger" for the waiver analysis. 

### However, I do agree with the majority' s conclusion that the trial court erred in appointing Ashley Pratt as class representative, because the plaintiffs herein did 

### not present any evidence, in the form ofdepositions, affidavits, oral testimony, or otherwise, that she is similarly situated to the absent class members. Carr v. GAF, Inc., 

### 97-0838 (La.App. I" Cir. 4/8/98), 711 So. 2d 802, 806, writ denied, 98- 1244 La. 6/ 19/98), 721 So. 2d 472 (" Because the record contains no evidence or testimony to suggestthatthe class representatives are similarly situated to the absent 

### class members, the trial court surely did not have sufficient information to make a determination that the representatives would 

### fairly ensure the adequate representation of the absent members.") 

### Accordingly, pretermitting whether the plaintiffs can establish a cause of action under the applicable statutes or prevail on the merits of their claims 

### challenging the procedure actually used by ULL, I find the plaintiffs met the 

### threshold obligation of establishing that they could proceed as a class in litigating their claims, particularly given the heightened standard of review applicable to the 

### trial court's findings and ultimate decision to certifythe class in these matters. For 

### these reasons, I respectfully concur in part and dissent in part.



### 2Based on Dr.Bowie's testimony that all ofthe Fees are lumped together for purposes of waivers, it is possible thatthe only fees being waived are the amount ofthe tuition increase each 

### year,andnotthetwo Feesatissue in thiscase. Furthermore,the statutes that applytotheAcademic Excellence Fee and Operational Fee specifically provide that each fee is to be used for a particular 

### purpose and further, that the Academic Excellence Fee must not be used to paythe salary ofany university or university system administrator. Because the fees are all lumped together and considered as a " package deal," andthe amountwaived is onlythe difference between a student's 

### financial aid package and what is owed, it is essentially impossible to track the two Fees or to determine precisely the funds generated by each fee and to determinewhetherthe Fees and waivers are being properly administered. C!ASHLEY PRATT, INDIVIDUALLY

AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED VERSUS UNIVERSITY OF LAFAYETTE, THE BOARD OF SUPERVISORS FOR THE UNIVERSITY OF LOUISIANA SYSTEMS, AND THE UNIVERSITY OF LOUISIANA SYSTEM 1 HOLDRIDGE, J., agreeing STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2021 CA 1391

I agree. 

### I write further to add that while clearly the class certification ordered by the trial court was not appropriate or legally correct, certification of a 

### class on a more limited basis, utilizing the appropriate standards, may be proper. See e.g., 

### Brooks v. Union Pacific Railroad Company, 2008-2035 ( La. 5122109), 13 So.3d 546,561.