Frankel v. City of Miami Beach, No. 45932

CourtFlorida Supreme Court
Writing for the CourtPER CURIAM; OVERTON; BOYD
Citation340 So.2d 463
PartiesE. J. FRANKEL et al., d/b/a Roney Plaza Apartments, Petitioners, v. CITY OF MIAMI BEACH, Respondent.
Decision Date23 September 1976
Docket NumberNo. 45932

Page 463

340 So.2d 463
E. J. FRANKEL et al., d/b/a Roney Plaza Apartments, Petitioners,
v.
CITY OF MIAMI BEACH, Respondent.
No. 45932.
Supreme Court of Florida.
Sept. 23, 1976.
Rehearing Denied Jan. 10, 1977.

Page 464

Irving B. Levenson of Sibley, Giblin, Levenson & Ward, Miami Beach, for petitioners.

Joseph A. Wanick, City Atty., and Lee H. Schillinger, Chief Asst. City Atty., for respondent.

PER CURIAM.

We have before us a petition for a writ of certiorari which alleges that the decision of the District Court of Appeal, Third District, in Frankel v. City of Miami Beach, 296 So.2d 605 (Fla.App.3d 1974) conflicts with this Court's decision in Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188 (1942). We have jurisdiction pursuant to Article V, § 3(b)(3), Fla.Const.

The pertinent facts are as follows.

Petitioners, owners and operators of the Roney Plaza Apartments in Miami Beach, brought suit as a class action on behalf of themselves and all other consumers of water in Miami Beach, for a declaratory decree (judgment) against the City of Miami Beach as to the effective date of an ordinance increasing the water rate. Ordinance No. 1936 was passed and adopted by the City of Miami Beach on September 25, 1972, increasing the water rate charged all consumers by eight cents per thousand gallons on all billings effective October 1, 1972. This actually increased the rate at some time prior to October 1, 1972. Petitioners alleged that the City Charter (Chapter 45--20) prevented this increase from becoming binding until Petitioners and all other consumers were given thirty days written notice of the increase. Because the statements sent to water users on October 1st constituted the first written notice given of the increase, Petitioners contend that the increased rate could not become effective until thirty days thereafter. Inasmuch as, by its billing at the increased rate on October 1, the City maintains that there is an earlier effective date, there exists a genuine controversy justifying an action for declaratory judgment. The Circuit Court granted respondent's motion to dismiss and the Third District affirmed upon the authority of its decisions in Shell Oil Co. v. State, 295 So.2d 648 (Fla.App.3d 1974); Federated Department Stores, Inc. v. Pasco, 275 So.2d 46 (Fla.App.3d 1973); Curtis Publishing Co. v. Bader, 266 So.2d 78 (Fla.App.3d 1972), and the Supreme Court's decision in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Judge Pearson dissented on the grounds that the Frankel majority's affirmance of the trial court's dismissal of the class action was in conflict with this Court's decision in Tenney v. City of Miami Beach, supra. We agree. Autrey v. Carroll, 240 So.2d 474 (Fla.1970). The Third District's decision is also in conflict with this Court's decisions in City of Miami v. Keton, 115 So.2d 547 (Fla.1959); Town of Davenport v. Hughes, 147 Fla. 228, 2 So.2d 851 (1941); State Road Department v. Bender, 147 Fla. 15, 2 So.2d 298 (1941); Allen v. Avondale Co., 135 Fla. 6, 185 So. 137 (1938); Olds v. Alvord, 133 Fla. 345, 183 So. 711 (1938); Dunscombe v. Smith, 127 Fla. 797, 174 So. 38 (1937). Additionally, conflict certiorari jurisdiction is found in that the Third District in deciding Shell Oil Co. v. State; Pasco, and Bader, supra, enunciated a rule of law which conflicted with the rule this Court formulated in Osceola Groves v. Wiley, 78 So.2d 700 (Fla.1955) and Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960). Moreover, the Third District in deciding Frankel and the above cases created a conflict by purportedly accepting the Osceola Groves decision as controlling

Page 465

precedent in cases which materially varied with Osceola Groves, supra. McBurnette v. Playground Equipment Corp., 137 So.2d 563 (Fla.1962).

Florida Rule of Civil Procedure 1.220 provides that class actions may be maintained

'When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.'

In Harrell v. Hess Oil and Chemical Corp., 287 So.2d 291 (Fla.1973), this Court enumerated the prerequisites which a complaint in a class action must contain in order to withstand a motion to dismiss, these being that the complaint must:

'(1) show the Necessity for bringing the action as a class suit;

'(2) show plaintiff's Right to represent the class;

'(3) allege that plaintiff brought suit on behalf of himself and all others Similarly situated;

'(4) allege the existence of a class, described with some degree of Certainty;

'(5) allege that the members of the class were so Numerous as to make it impracticable to bring them all before the court;

'(6) make it clear that plaintiff adequately represents the class; and

'(7) show that the interests of the plaintiff were Co-extensive (common interest-community of interest) with the interests of other members of the class.' Harrell, supra, at 293--94. (Explanation and emphasis added)

These seven requirements have been held to have been met as to plaintiff classes in numerous cases, e.g., City of Miami v. Keton, 115 So.2d 547 (Fla.1959); State ex rel. Bailey v. Gomez, 152 Fla. 355, 11 So.2d 569 (1943); Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188 (1942); City of Miami Beach v. Tenney, 150 Fla. 241, 7 So.2d 136 (1942); Town of Davenport v. Hughes, 147 Fla. 228, 2 So.2d 851 (1941); State Road Department v. Bender, 147 Fla. 15, 2 So.2d 298 (1941); Knowles v. Central Allapattae Properties, 145 Fla. 123, 198 So. 819 (1940); Dunscombe v. Smith, 139 Fla. 497, 190 So. 796 (1939); Allen v. Avondale Co., 135 Fla. 6, 185 So. 137 (1938); Olds v. Alvord, 133 Fla. 345, 183 So. 711 (1938); Meier v. Johnston, 110 Fla. 374, 149 So. 185 (1933); Pinellas County v. Town of Belleair Shore, 180 So.2d 510 (Fla.App.2d 1965); and Port Royal, Inc. v. Conboy, 154 So.2d 734 (Fla.App.2d 1965). Similarly, these requirements have been held to be satisfied as to a single plaintiff suing the members of unincorporated associations as defendant classes in Ross v. Gerung, 69 So.2d 650 (Fla.1954) and State ex rel. Vile v. Shaw, 52 So.2d 676 (Fla.1951), whereas the complaints in 'plaintiff class actions' were found to be legally insufficient in Peters v. Meeks, 163 So.2d 753 (Fla.1964) and Larson v. Warren, 132 So.2d 177 (Fla.1961), and legally insufficient as to 'defendant classes' in City of Lakeland v. Chase National Co., 159 Fla. 783, 32 So.2d 833 (1947).

The decisions of this Court cited above have construed Rule 1.220 and its predecessor 1 as allowing class actions to be maintained in Frankel type situations. In Allen v. Avondale Co., supra, the plaintiff brought a class action challenging the continued enforcement of a restrictive covenant contained in the deeds of each purchaser of subdivision lots. This Court upheld the trial court's ruling that a class action could be maintained even though the rights of each purchaser were separate, and each purchaser sought a separate award of money damages. In Dunscombe v. Smith, supra, we held that one or more bank depositors could maintain a class action on behalf of other depositors who were also beneficiaries to enforce a trust. Even though each beneficiary had a separate and distinct interest from the others And did not have a pecuniary interest in the proceeds that each individual beneficiary was entitled to, we held that the suit presented a question of common and general interest to the class. In Meier v. Johnston, supra, this Court held that one or more members of an

Page 466

unincorporated association can maintain a class action on behalf of the organization and its membership. Similarly, in Town of Davenport v. Hughes, supra, the trial court allowed one property owner to maintain a class action on behalf of all the property owners affected to enjoin the collection of taxes for city bonds. Even though the rights of each property owner were separate, we held that a class action was proper because there were common questions of law and fact. In City of Miami Beach v. Tenney, supra, this Court affirmed the trial court's order allowing a class action to be maintained by two property owners who challenged the legality of a special assessment imposed on the lots of several hundred property owners. Again, we held that notwithstanding the separate rights of each property owner that there was a common question of law and fact. In the companion case of Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188 (1942), Mr. Justice Terrell, for the Court, succinctly summarized the purpose of...

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44 practice notes
  • Galen of Florida, Inc. v. Arscott, No. 93-79
    • United States
    • Court of Appeal of Florida (US)
    • August 13, 1993
    ...v. Gowin, 86 Fla. 376, 98 So. 140 (1923), is very helpful based on their facts. On the other hand, Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976), partially overruling on other grounds, Curtis Publishing Co. v. Bader, 266 So.2d 78 (Fla. 3d DCA), cert. denied, 271 So.2d 142 (Fla.19......
  • United States v. McAndrew, Cr. No. 79-00058-R.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • November 21, 1979
    ...(statute required that "reasonable efforts" be made to locate unidentifiable driver causing accident); Frankel v. City of Miami Beach, 340 So.2d 463, 470 (Fla.1976) ("reasonable efforts" required to be made to identify members of class in class-action). In Springett v. Colerick, 67 Mich. 36......
  • Spierer v. City of North Miami Beach, No. 88-118
    • United States
    • Court of Appeal of Florida (US)
    • March 6, 1990
    ...1144 (Fla.1981); Orlando Utilities Comm'n v. Rosalind Holding Co., 330 So.2d 56 (Fla. 4th DCA 1976); cf. Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976) (challenge of water rates; class action). While the complaint filed below was defective, it is susceptible of amendment to presen......
  • Estate of Bobinger v. Deltona Corp., No. 89-01524
    • United States
    • Florida District Court of Appeals
    • June 8, 1990
    ...Oil & Chemical Corp., 287 So.2d 291 (Fla.1973) ], at 293-94, can only be obtained through discovery." Frankel v. City of Miami Beach, 340 So.2d 463, 469 Page 743 (2) Numerosity Paragraph 11(a) of the complaint contains the allegations of numerosity. Unfortunately, in this paragraph the nume......
  • Request a trial to view additional results
44 cases
  • Galen of Florida, Inc. v. Arscott, No. 93-79
    • United States
    • Court of Appeal of Florida (US)
    • August 13, 1993
    ...v. Gowin, 86 Fla. 376, 98 So. 140 (1923), is very helpful based on their facts. On the other hand, Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976), partially overruling on other grounds, Curtis Publishing Co. v. Bader, 266 So.2d 78 (Fla. 3d DCA), cert. denied, 271 So.2d 142 (Fla.19......
  • United States v. McAndrew, Cr. No. 79-00058-R.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • November 21, 1979
    ...(statute required that "reasonable efforts" be made to locate unidentifiable driver causing accident); Frankel v. City of Miami Beach, 340 So.2d 463, 470 (Fla.1976) ("reasonable efforts" required to be made to identify members of class in class-action). In Springett v. Colerick, 67 Mich. 36......
  • Spierer v. City of North Miami Beach, No. 88-118
    • United States
    • Court of Appeal of Florida (US)
    • March 6, 1990
    ...1144 (Fla.1981); Orlando Utilities Comm'n v. Rosalind Holding Co., 330 So.2d 56 (Fla. 4th DCA 1976); cf. Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976) (challenge of water rates; class action). While the complaint filed below was defective, it is susceptible of amendment to presen......
  • Estate of Bobinger v. Deltona Corp., No. 89-01524
    • United States
    • Florida District Court of Appeals
    • June 8, 1990
    ...Oil & Chemical Corp., 287 So.2d 291 (Fla.1973) ], at 293-94, can only be obtained through discovery." Frankel v. City of Miami Beach, 340 So.2d 463, 469 Page 743 (2) Numerosity Paragraph 11(a) of the complaint contains the allegations of numerosity. Unfortunately, in this paragraph the nume......
  • Request a trial to view additional results

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