Concerned Class Members v. Sailfish Point, Inc., 96-3986

• Decision Date: 07 January 1998
• Docket Number: No. 96-3986,96-3986
• Citation: 704 So.2d 200
• Parties: 23 Fla. L. Weekly D145 CONCERNED CLASS MEMBERS, Appellants, v. SAILFISH POINT, INC., Mobil Land Development Corp., Sailfish Point Marina Corporation, Sailfish Point Utility Corporation, and Sailfish Property Owners and Country Club Association, Inc., Sailfish Point Owners Representatives by Jeff Jaffe, Chairman, Harold Hansen, Vice Chairman, and Michael Delcollo, Member, Appellees.
• Court: Florida District Court of Appeals

Page 200

704 So.2d 200

23 Fla. L. Weekly D145

CONCERNED CLASS MEMBERS, Appellants, v. SAILFISH POINT, INC., Mobil Land Development Corp., Sailfish Point Marina Corporation, Sailfish Point Utility Corporation, and Sailfish Property Owners and Country Club Association, Inc., Sailfish Point Owners Representatives by Jeff Jaffe, Chairman, Harold Hansen, Vice Chairman, and Michael Delcollo, Member, Appellees.

No. 96-3986.

District Court of Appeal of Florida Fourth District.

Jan. 7, 1998.

Stevan J. Pardo and Elissa Gainsburg of Zarco & Pardo, P.A., Miami, and Laurence S. Fordham, Stuart, for appellants.

Noel A. Bobko of McCarthy, Summers, Bobko, McKey, Wood & Sawyer, P.A., Stuart, James N. Krivok of St. John, King & Dicker, West Palm Beach, Steven E. Stark of Fowler, White, Burnett, Hurley, Banick & Strickroot, Miami, and Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, for appellees.

ON MOTION TO DISMISS

POLEN, Judge.

Prior to approval of a settlement agreement ending class action litigation between the 524 residents of the Sailfish Point development and the developer, Mobil Land Development Corporation, a group of fourteen class members calling themselves "Concerned Class Members" sought to be named as additional party plaintiffs and to intervene in the litigation as a subclass. The trial court denied their motion; however, it allowed the Concerned Class Members to be heard on a distinct motion seeking to put the proposed settlement to a vote of Sailfish Point residents. The Concerned Class Members did not pursue their motion to intervene any further, nor did they appeal the trial court's denial of that motion.

The trial court allowed the residents to vote on the proposed settlement agreement, and a majority of those residents who voted approved the settlement. The Concerned Class Members were allowed to participate in further discovery and to be heard during the final hearing, after which the court approved the settlement agreement. Twelve of the fourteen Concerned Class Members filed a notice of appeal from the order approving the settlement, and appellees Sailfish Point Owners' Representatives and Sailfish Property Owner's and County Club Association, Inc., filed a motion to dismiss. We grant the motion and dismiss this appeal.

Appellees' motion to dismiss raises an issue of first impression for Florida state courts: whether individual, non-named class members who have not formally intervened in a class action have standing to appeal a final judgment binding on all class members. Florida's Class Action rule, Florida Rule of Civil Procedure 1.220, is based on Federal Rule of Civil Procedure 23, and this court may look to federal cases as persuasive authority in the interpretation of rule 1.220. Broin v. Philip Morris Companies, Inc., 641 So.2d 888, 889 (Fla. 3d DCA 1994), rev. denied, 654 So.2d 919 (Fla.1995).

Federal courts addressing this issue are split, with the Eleventh Circuit joining the majority of federal courts in holding non-named class members must intervene formally in the class action to gain standing to appeal. Guthrie v. Evans, 815 F.2d 626, 628 (11th Cir.1987). In Guthrie the court stated three reasons underlying its holding:

First, such individuals cannot represent the class absent the procedures provided for in Rule 23 of the Federal Rules of Civil Procedure. Second, class members who disagree with the course of a class action have available...