Ario v. Metropolitan Airports Com'n, C1-83-1320

• Citation: 367 N.W.2d 509
• Decision Date: 17 May 1985
• Docket Number: No. C1-83-1320,C1-83-1320
• Parties: Frank L. ARIO, et al., Respondents, v. METROPOLITAN AIRPORTS COMMISSION, Petitioner.
• Court: Supreme Court of Minnesota (US)

Page 509

367 N.W.2d 509

49 A.L.R.4th 603

Frank L. ARIO, et al., Respondents, v. METROPOLITAN AIRPORTS COMMISSION, Petitioner.

No. C1-83-1320.

Supreme Court of Minnesota.

May 17, 1985.

Syllabus by the Court

1. Although, at an earlier stage in these proceedings, this court had affirmed a denial of petitioners' proposed class action, that prior ruling is not the "law of the case" so as to preclude consideration of a new proposal for a class, where the current proposed class and the basis for it are so different as to constitute a new issue.

2. The proposed class in this proceeding for inverse condemnation of avigational easements meets the four prerequisites of Minn.R.Civ.P. 23.01.

3. The proposed class action fails, however, to meet the two conditions for maintenance of a class action required by Minn.R.Civ.P. 23.02(3).

Michael Berens, Madge S. Thorsen, Lucinda E. Jesson, Minneapolis, for petitioner; Thomas W. Anderson, Minneapolis, of counsel.

Richard J. Gunn, Bradley J. Gunn, Minneapolis, for respondents.

Heard, considered, and decided by the court en banc.

SIMONETT, Justice.

Presented here is the propriety of an order of the Hennepin County District Court certifying approximately 2,000 residential property owners living near Minneapolis-St. Paul International Airport as a class for the bringing of an inverse condemnation action to take "avigational easements" on their properties. We reverse the order for a class action.

In 1970, plaintiffs and others commenced a class action seeking a remedy for airport noise affecting their properties. The action reached us in Alevizos v. Metropolitan Airports Comm'n, 298 Minn. 471, 216 N.W.2d 651 (1974) (Alevizos I ), where we held that a property owner had a remedy in inverse condemnation for the taking of an avigational easement. We held that for a taking the property owner must show: (1) that the airport noise is a direct and substantial invasion of property rights of such proportion that the owner is deprived of the practical enjoyment of the property, and (2) that the invasion results in a definite and measurable diminution in the market value of the property. We also held, however, that the trial court had properly denied class action status. We said a class action was unwarranted because of the "multitude of individual issues and an absence of common issues." Id. at 498, 216 N.W.2d at 668.

The case was remanded to district court, where a mandamus trial was held on the taking of an easement on the parcel owned by plaintiffs Frank and Georgette Ario. After an extensive trial, the district court found that airport noise did constitute a "substantial invasion" of the Ario property interests but dismissed the action for failure to establish a definite and measurable diminution in market value attributable to the airport noise. On appeal, this court affirmed the trial court's findings; but, finding that the Arios had been deprived of a jury trial because they were misled by language in our earlier opinion, we reversed and remanded once again for a new trial. Alevizos v. Metropolitan Airports Comm'n, 317 N.W.2d 352 (Minn.1982) (Alevizos II ).

On this second remand, instead of proceeding immediately with retrial of the Ario parcel, plaintiffs, in June 1983, renewed their request for class certification. This time, a class action was ordered by the trial court but, deeming the question important and doubtful, the trial court has certified the question to us.

I.

The first issue is whether this court's denial of a class action in Alevizos I is "the law of the case" and precludes the trial court from now allowing a class action in this proceeding. The Airports Commission so argues, but we are not persuaded.

Ordinarily, issues considered and adjudicated on a first appeal become the law of the case and will not be reconsidered on a second appeal of the same case. Lange v. Nelson-Ryan Flight Service, Inc., 263 Minn. 152, 116 N.W.2d 266 (1962). See also Cayse v. Foley Brothers, Inc., 260 Minn. 248, 253, 110 N.W.2d 201, 205 (1961) (a decision on appeal will not generally be reexamined on subsequent appeal, but questions not decided may be considered on a second appeal). It seems to us, however, that we do not have the same issue of class certification now that we had in Alevizos I.

In Alevizos I, the proposed class consisted of "approximately 27,565 homes, apartments, churches, places of business, and other buildings," located within the four corridors or sound cones emanating from the airport. Alevizos I, 298 Minn. at 473-74, 216 N.W.2d at 655. Because the proposed class was so diverse and lacked commonality of issues, this court ruled that a class action was inappropriate, although three members of the court disagreed. Id. at 497 n. 7, 216 N.W.2d at 667 n. 7.

Here, however, the trial court has allowed a class action limited to all persons with residential property located within the area defined as Zone 1 by the Metropolitan Noisemap Project. About 2,000 property owners are involved. The Metropolitan Noisemap Project was initiated in 1977, designed in part to identify the current and probable future aircraft noise environment around Minneapolis-St. Paul International Airport and to establish practical guidelines for land use compatibility planning. The Noisemap is a computer-generated series of contours surrounding the airport, and it identifies four zones of increasing intensity of noise exposure. Zone 1, the area closest to the airport and located at the ends of all three runways, was deemed to be subject to "severe and permanent" noise exposure. The noise impact in Zone 2 was considered "serious," while the noise in Zones 3 and 4 was considered "significant" and "moderate," respectively. The Noisemap was adopted by the Metropolitan Council in March 1983. See Metropolitan Council of the Twin Cities Area, Guidelines for Land Use Compatability with Aircraft Noise 4-6 (March 1983). ¹

Clearly, in this situation, the class currently proposed is markedly different from that proposed 15 years ago, both in numbers and types of properties involved and in the scientific and logical basis for defining the members of the class. We hold that the doctrine of "law of the case" is inapplicable and does not preclude consideration of the new proposed class on its own merits.

II.

We now reach the main issue, which is whether the proposed class meets the requirements of Minn.R.Civ.P. 23. This requires, first, a consideration of Rule 23.01, and if those prerequisites are met, then a consideration of the maintenance requirements of Rule 23.02.

1. We are satisfied that the proposed class meets the four prerequisites of Rule 23.01. ² A class of 2,000 residential home owners is clearly so numerous as to make joinder impracticable, thus satisfying the first prerequisite. The second prerequisite is that there be questions of law or fact common to the class, i.e., that there be common legal grievances among the class members' claims. See Compact Electra Corp. v. Paul, 93 Misc.2d 807, 403 N.Y.S.2d 611 (1977). Here all members of the class have properties which share in common "severe and permanent" aircraft noise as delineated on the Noisemap, and all seek the same inverse condemnation of avigational easements. The third prerequisite is typicality, that is, that the representative parties have an interest compatible with that of the class sought to be represented. See Brandt v. Owens-Illinois, Inc., 62 F.R.D. 160, 165 (S.D.N.Y.1973). This test, too, is met. The fact that some members of the class may prefer to cooperate with the government to minimize aircraft noise rather than to seek inverse condemnation damages, does not, as the Airport Commission argues, defeat typicality. Any class member who wishes to do so may opt out. Also, typicality refers to the potential for rivalry and conflict which may jeopardize the interests of the class, Marshall v. Electric Hose & Rubber Co., 68 F.R.D. 287, 291 (D.Del.1975), and that kind of tension is not involved here. Finally, the fourth prerequisite is that the representative parties will fairly and adequately protect the interests of the class. This means plaintiffs' interests must coincide with the interests of other class members and that plaintiffs and their counsel will competently and vigorously prosecute the lawsuit. See Jenson v. Financial Corp., 404 F.Supp. 806, 811-12 (D.Minn.1975). This test is fully met.

2. The four prerequisites having been satisfied, the more difficult question remaining is whether the proposed class meets the requirements of Rule 23.02(3). ³ We think this last hurdle is not overcome.

Under Rule 23.02(3), the two basic conditions that must be met before a class action may be maintained are whether common questions predominate over individual issues and whether a class action is superior to other available methods for the fair and efficient adjudication of the controversy. This determination "approaches a grant of discretionary power to allow class actions whenever the court sees fit." 2 D. McFarland & W. Keppel, Minnesota Civil Practice § 1472 at 443 (1979). Whether a class action is best suited here can only be determined by again analyzing the property interest sought to be taken.

In Alevizos I, we stated that the property interest involved consisted of the owner's right to the enjoyment of his property. While cautioning that every metropolitan residential owner must expect a certain amount of discomfort, disquiet, and inconvenience from modern, urban living, we went on to say, in the case of aircraft noise, that "when those interferences reach the point where they cause a measurable decrease in property market value," the law will consider this to be a compensable taking for which inverse condemnation will lie. Alevizos I, 298 Minn. at 486-87, 216 N.W.2d at 662. The test for a taking, we stated, was: (1) The landowner must show "a direct and substantial invasion of his property rights of such a magnitude ...