Borwick v. Bober, 73--114
| Decision Date | 30 October 1974 |
| Docket Number | No. 73--114,73--114 |
| Citation | 529 P.2d 1351,34 Colo.App. 423 |
| Parties | Douglas M. BORWICK et al., Plaintiffs-Appellants, v. Mitchell BOBER a/k/a M. J. Bober, d/b/a M. J. Bober Company, et al., Defendants-Appellees. . I |
| Court | Colorado Court of Appeals |
Brownstein, Hyatt & Farber, Jack N. Hyatt, Denver, for plaintiffs-appellants.
Calkins, Kramer, Grimshaw & Harring, Richard L. Harring, Denver, Rovira DeMuth & Eiberger, J. Walter Hyer, III, Denver, Gorsuch, Kirgis, Campbell, Walker & Grover, John J. Mullins, Jr., Denver, Cosgriff, Dunn & French, Eagle, for defendants-appellees.
The three plaintiffs in this action are land owners in Eagle County. Plaintiffs claim to represent themselves and two classes, one of which is all the property owners in Eagle County, and another class made up of all land owners who are subject to taxation by the Upper Eagle Valley Sanitation District. The defendant in this action are: The Upper Eagle Valley Sanitation District; the M. J. Bober Company, one of the contractors involved in the construction of a sewer line for the sanitation district in Eagle County; William F. Parker and Parker Associates, who planned the sewer line; the American Insurance Company which executed a performance bond for Bober; and the five directors of the sanitation district. The various claims for relief against the defendants include breach of contract, trespass, nuisance, negligence, and taking property without compensation.
The plaintiffs also claim that there was a construction contract between Bober and the district which has been breached by Bober and that they are third-party beneficiaries of said contract. They allege that Bober breached the contract in three respects. First, the complaint alleges Bober failed to clean up and restore the property as required by the contract. Second, the plaintiffs allege that Bober breached the contract in the manner of construction of the dikes. Third, it is alleged that the sewer lines were improperly installed. Plaintiffs also asserted a claim against the American Insurance Company as third-party beneficiary of the performance bond. Defendants moved for a dismissal of the contract actions against Bober and American Insurance Company on the ground that plaintiffs were not the third-party beneficiaries of the construction contract and the performance bond.
A preliminary hearing was held to determine whether this case should be allowed to proceed as a class action. The district court held the action did not meet the requirements set forth by C.R.C.P. 23, and denied the application to proceed as a class action. The district court then dismissed claims of the individual plaintiffs as third-party beneficiaries of contracts, and then dismissed the remaining portions of the complaint for violation of C.R.C.P. 8, with leave to file an amended complaint deleting all incorporations by reference so that the court could fully and adequately understand the complaint. The plaintiffs were granted thirty days to file an amended complaint. They elected to stand on their complaint and the case is here on their appeal.
The plaintiffs urge that each of these rulings by the district court constitutes error.
C.R.C.P. 23, which is substantially identical to the federal rule, sets forth the requirements to be met by a party claiming to represent a class, and the procedure to be followed by the court in determining whether a suit should proceed as a class action.
C.R.C.P. 23(a) reads as follows:
'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; and (4) the representative parties will fairly and adequately protect the interests of the class.'
Failure to meet the mandatory requirements of C.R.C.P. 23(a) is grounds for denial. Hyatt v. United Aircraft Corp., 50 F.R.D. 242 (D.C.Conn.). The trial court found that the plaintiffs did not adequately show that they complied with C.R.C.P. 23(a)(2) which requires that there be common questions of law and fact, or those of C.R.C.P. 23(a)(3) which requires that the claims of the individual plaintiffs be typical of the class.
The court's finding that the plaintiffs' claims were not typical of the other members of the class is amply supported by the record. The three plaintiffs lived within a quarter of a mile of each other in a subdivision located at the extreme eastern end of the sanitation district which extended a distance of approximately 22 miles and encompassed over 4,000 people.
The plaintiffs claimed that the activities of the defendants amounted to nuisance in that the improperly constructed sewer line caused pollution and some aesthetic damage to the landscape. However, one of the plaintiffs admitted in his testimony that the construction of the sewerage system alleviated a severe pollution problem further downstream, which had resulted from dumping untreated sewerage into the Eagle River. There was no showing that the alleged nuisance was widespread and existed throughout the entire district, nor that it was a problem common to all the class members. Instead just the opposite was shown, namely, that the pollution in the district was decreased by the construction of the sewage system.
Similarly, although the plaintiffs request damages of $2,500,000 for the reconstruction of a new system, they did not show that the problems with the system were widespread throughout the district, and thus common to all members, and not merely problems confined to their particular locale. Again the evidence supported the finding of the trial court.
The plaintiffs, on behalf of the entire class, also sought to recover damages resulting from the alleged trespass committed by the various defendants against the class members and for the damage to individual property resulting from the failure of the defendants to restore the property to its original condition. In this regard, the court found that any damages of this nature resulting from the defendants actions would be unique to each individual land owner and not typical of the class.
In any application to proceed as a class action, the burden of establishing that an action should proceed as a class action is on the party seeking to utilize the class action. Cook County College Teachers Union v. Byrd, 456 F.2d 882 (7th Cir.). In addition, the determination of whether an action does or does not meet the requirements of a class action is within the discretion of the trial court. Buford v. American Finance Co., D.C., 333 F.Supp. 1243. As an appellate court, we will not disturb the...
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