Harrell v. Hess Oil & Chemical Corp.
| Citation | 287 So.2d 291 |
| Decision Date | 05 December 1973 |
| Docket Number | No. 43515,43515 |
| Parties | Edward Allen HARRELL et al., Petitioners, v. HESS OIL AND CHEMICAL CORPORATION, a corporation and Parkhill-Goodloe, Co., Inc., a corporation, Respondents. |
| Court | United States State Supreme Court of Florida |
Neal D. Evans, Jr., of Evans, Stewart, Perry & Stelogeannis, Jacksonville, for petitioners.
Edna L. Caruso of Howell, Kirby, Montgomery, D'Aiuto, Dean & Hallowes, West Palm Beach, for respondent Hess Oil and Chemical Corp.
E. Dale Joyner of Toole, Taylor, Moseley, Gabel & Milton, Jacksonville, for respondent Parkhill-Goodloe Co., Inc.
This case comes to us on petition for writ of certiorari alleging conflict between the decision of the First District at 272 So.2d 542 and Gordon Finance, Inc. v. Belzaguy, 216 So.id 240 (Fla.App.3d 1968). Jurisdiction is asserted under Article V, § 3(b)(3), F.S.A., of our State Constitution.
Petitioners sought to bring a class action against respondents seeking damages for the respondents' alleged discharge of sand and silt into Dunn's Creek, a navigable waterway in Duval County. The named plaintiffs were owners of land bordering on the creek, with riparian rights incident to the titles to their lands; they alleged the specific items of damage they claimed to have suffered as a result of the discharges in question. The class asserted in the complaint was 'all persons owning property bordering on Dunn's Creek in Duval County, Florida, and all persons who have had occasion to use such waterway since the happening of the events hereinafter alleged.' A motion to dismiss the complaint for failure to state a cause of action was granted, and petitioners were allowed twenty days to amend; petitioners elected to stand on their complaint and, pursuant to the prior order granting the motion to dismiss, the action was then dismissed with prejudice. The First District at 272 So.2d 542 (1973), distinguished Gordon Finance, inc. and affirmed.
Petitioners assert that the dismissal was erroneous in that: (1) the complaint properly alleged the necessary elements of a class action; (2) even if no class action was properly plead, the action should not have been dismissed, but rather the allegations relating solely to a class action should have been stricken and the action allowed to continue as one for individual relief only; and (3) the complaint stated a cause of action on behalf of the individual named plaintiffs. It is the second contention that involves the asserted direct conflict giving rise to our jurisdiction.
In Gordon Finance, Inc. v. Belzaguy, Supra, the court affirmed a trial court ruling which held that the complaint involved did not meet the requisites for a class action, but the Gordon court did refuse to dismiss the complaint where it stated an individual cause of action. On slightly differing facts, the trial court in the instant case dismissed the complaint with prejudice, and this dismissal was affirmed by the district court. Direct decisional conflict exists sufficient to support our jurisdiction under Article V, § 3(b)(3), F.S.A., Florida Constitution.
The standards which must be met in order properly to plead a class action have been stated many times, but are perhaps set out best in Port Royal, Inc. v. Conboy, 154 So.2d 734 (Fla.App.2d 1963). As noted there, a complaint in a class action suit 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 with the interests of the other members of the class.
Measuring the complaint in the instant case by these standards, it becomes clear that a class action has not been properly plead and on this score the learned judges are imminently correct. The class asserted is not a distinct class described with some degree of certainty, but a combination of persons owning land bordering on the creek in question and unidentified other persons who have happened to use the creek since the asserted discharges began. There is no showing in the complaint that the interests of the named plaintiffs are Co-extensive with those of other riparian landowners included in the asserted class, much less with the persons who merely happened to use the creek. Nor have the named plaintiffs, in their complaint, shown that they adequately represent the class asserted.
The attempted showing that the class is sufficiently numerous to necessitate a class action is directed at a class consisting of both riparian landowners and incidental users; even if the trial court could 'sever' the class (or if the petitioners had amended thus to restrict the class) and remove from it the incidental users of the creek, there would be no proper showing of the requisite Numerousness of the class. Just as a court may not take judicial notice of the number of persons owning land bordering on a lake, 1 it may not take judicial notice of the number of persons owning property bordering on a creek. The complaint here not having met the requisites set forth in Port Royal, Inc. v. Conboy, Supra, no class action was properly plead.
The dismissal of the class action did not justify the trial court in dismissing the complaint for failure to state an individual cause of action. Misjoinder of parties is not a ground for Dismissal. 2 The fact that in Gordon Finance, Inc. v. Belzaguy, Supra, an amended complaint had been filed in the trial court, while the petitioners here elected to stand on their complaint, will not serve to distinguish that case from the one before us today.
The courts of this state have said on numerous occasions that if a complaint, taken as a whole, states a cause of action, it should not be dismissed, but that extraneous portions of the complaint should be treated as...
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Frankel v. City of Miami Beach
...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......
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