Green v. Fred Weber, Inc.

• Decision Date: 10 June 2008
• Docket Number: No. SC 88780.,SC 88780.
• Citation: 254 S.W.3d 874
• Parties: Peggy GREEN, et al., Respondents, v. FRED WEBER, INC., Appellant.
• Court: Missouri Supreme Court

254 S.W.3d 874

Peggy GREEN, et al., Respondents, v. FRED WEBER, INC., Appellant.

No. SC 88780.

Supreme Court of Missouri, En Banc.

June 10, 2008.

Lawrence F. Hartstein, Clayton, for Appellant.

David Knieriem, J. Christian Goeke, Clayton, for Respondents.

LAURA DENVIR STITH, Chief Justice.

Fred Weber, Inc. ("Weber") owns and operates a quarry in O'Fallon where blasting is among the operations. Peggy Green and other named plaintiffs reside near Weber's quarry. They filed a petition alleging that the manner in which Weber conducts blasting operations is unreasonable and constitutes a private nuisance. They have sued on behalf of themselves and a proposed "class of persons, with [sic] an unknown amount, that have residences within two (2) miles of Defendant's quarry," seeking solely money damages for alleged injuries to their properties caused by the blasting. The plaintiffs sought class certification under Rule 52.08(b)(1), but the trial court certified the proposed class under Rule 52.08(b)(3).

This Court rejects Weber's contention that common issues cannot predominate in a claim for a private nuisance. While individual issues of injury and damage may not be susceptible to common determination, the trial court did not err in finding common questions are presented as to whether the blasting constituted a nuisance and, if so, whether the blasting substantially impairs the use and enjoyment of the plaintiffs' property in a manner sufficient to entitle them to nominal damages.

Nonetheless, this Court agrees with Weber that the trial court abused its discretion in certifying the proposed class under Rule 52.08(b)(3). Certification under Rule 52.08(b)(3) is proper only where common issues predominate for the class as defined. Here, the two common issues the trial court found to exist are the reasonableness of Weber's blasting and whether that blasting substantially impaired the class members' use and enjoyment of their property. The very minimal record made below fails to establish a reasonable basis to include within the class all those homeowners living within a 2-mile radius of the quarry.¹ Indeed, all of the named plaintiffs live in the same direction from the quarry — approximately one-quarter to one-third mile away and across Interstate 70. The record did not support the certification of the class as ordered by the court below.

For these reasons, this Court reverses and remands the class certification.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Requirements for Class Action Certification

Certification of a class action is governed by Rule 52.08. Rule 52.08(a) provides that a class will be certified only if a plaintiff shows that, as defined by the plaintiff or as modified by the court: (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. Rule 52.08(a).

If these four prerequisites are met, the court will certify a class if plaintiff also shows that the class falls within one of the categories set out in Rule 52.08(b). Rule 52.08(b) states, in relevant part²:

An action may be maintained as a class action if ...:

(1) the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

* * * *

(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

The burden to establish that the action complies with the requirements of Rule 52.08(b) rests entirely with the plaintiff.

B. Allegations of Class Action Status and Supporting Record

Plaintiffs' motion for class certification consisted of a single page, with one substantive paragraph stating that "this action is proper for certification as a class action on all issues for the reasons set forth in plaintiffs' Third Amended Petition attached hereto as Exhibit A and the affidavits attached hereto as exhibits B through F."

The four-page petition alleges that the named plaintiffs live near Weber's quarry and that they experience vibrations constituting a nuisance caused by the quarry's blasting operations. It also includes stock allegations that the action meets the Rule 52.08(a) prerequisites for class certification, i.e.: the number of property owners is so numerous that joinder is impractical; the class would be adequately represented by the named plaintiffs; the named plaintiffs' claims are typical of those of the class, and each class member's claim presents two common issues of fact: whether the defendants maintained a nuisance and whether the member sustained at least nominal damages. The petition also paraphrases Rule 52.08(b)(1) and alleges that a class should be certified because "the prosecution of separate actions by the individual members of the class and the defense of separate actions against the individual members of the class would create a strong risk of inconsistent and varying adjudications of the common questions of law and fact." Facts supporting these allegations are not set out in the petition itself.

The class certification motion also refers to five supporting affidavits, one from each of the named plaintiffs. These plaintiffs aver that they live within one-quarter to one-third mile of the quarry and that they felt vibrations from the blasting at the quarry and were injured thereby.³ Based on the motion, petition, and accompanying affidavits, the trial court conducted an evidentiary hearing. At the evidentiary hearing, two witnesses testified: the lead plaintiff, Peggy Green,⁴ and David Knieriem, one of the attorneys for the putative class.

1. Peggy Green's Testimony

Ms. Green first noticed the blasting activity in October 1999, and her neighbors informed her that the blasting originated in Weber's quarry. According to Ms. Green, the number of blasts ranged between five and ten per week. After becoming aware of the blasting, Ms. Green began to canvass the neighborhood to learn whether others were similarly affected by the blasting. She called two meetings, one in her subdivision, which has approximately 410 homes, and one in another subdivision, with approximately 300 homes, to address the issues associated with the blasting. Ms. Green also attended meetings of the O'Fallon city council and the St. Charles county commission to raise concerns regarding the blasting. She testified that she spoke to hundreds of individuals in the community regarding this blasting.

At the time of the hearing, however, Ms. Green had moved from her home in the subdivision to another residence much farther from the quarry. Although she believed that her new home was within a two-mile radius of the quarry, she stated that she did not feel any vibrations in her new home and that her claimed class membership derives from her prior residence, which was within one-quarter mile of the quarry.

Ms. Green did not suggest that she had obtained any scientific or statistical evidence or geographic survey as to how far the vibrations would travel in the varying ground conditions surrounding the quarry. Nor did Ms. Green attempt to determine how far in each direction the vibrations traveled by conducting a survey of residents within set distances from the quarry. Rather, she explained, the class definition was offered as those who owned homes within a two-mile radius of the quarry because she had received telephone calls from people to the north and east of the quarry who said they felt vibrations. Ms. Green spoke to one person who lived about two miles away in an unspecified direction. She also said that Fizey Road, a thoroughfare in the community, was approximately 2 miles from the quarry. During cross-examination, Ms. Green agreed that she did not have any personal information regarding whether the blast could be felt at two miles distance, nor did she identify anyone who lives at that distance who was affected by the blasting.

2. Mr. Knierem's Testimony

David Knierem, one of the counsel for the proposed class, testified that he personally attended some meetings called to address blasting issues in the community. The meetings he attended had over 150 persons present. Based on Mr. Knierem's understanding of the community, he testified that the class would include approximately 1500 homeowners.⁵ Counsel also, over objection, offered the affidavit of a person who averred that he lives 1.6 miles in an unspecified direction from the quarry and that he had suffered damage from vibrations.

3. Trial Court's Class Certification Order

Following the hearing, the trial court granted plaintiffs' motion for class certification. Although the plaintiffs sought— and the defendant opposed — class certification only under Rule 52.08(b)(1), the trial court did not certify the class under that provision. The trial court noted that if the plaintiffs' allegations that their claims would be subject to inconsistent or varying adjudications were true, "this would satisfy Rule 52.08(b)(1)." But it did not address whether plaintiffs had met their burden of proof, and indeed, no evidence or even supporting argument was made below on this issue.

Instead, the trial court determined that, "[a] fair reading...