Harrell v. Hess Oil & Chemical Corp., R--191
| Decision Date | 18 January 1973 |
| Docket Number | No. R--191,R--191 |
| Parties | Edward Allen HARRELL et al., Appellants. v. HESS OIL AND CHEMICAL CORPORATION, a corporation, and Parkhill-Goodloe Co., Inc., a corporation, Appellees. |
| Court | Florida District Court of Appeals |
Neal D. Evans, Jr., of Evans, Stewart, Perry & Stelogeannis, Jacksonville, for appellants.
Edna L. Caruso, of Howell, Kirby, Montgomery, D'Aiuto, Dean & Hallowes and E. Dale Joyner, of Kurz, Toole, Taylor, Moseley & Gabel, Jacksonville, for appellees.
Plaintiffs have appealed a final judgment dismissing their complaint for damages which plaintiffs claim to have suffered as a result of the alleged pollution by defendants of Dunn's Creek, a navigable stream or river in Duval County, Florida.
The judgment appealed was rendered consequent upon the court's prior order granting defendants' motion to dismiss the complaint which was brought as a class action by plaintiffs and all other persons owning property bordering on Dunn's Creek and all persons who have had occasion to use the waterway since its alleged pollution by defendants. In the order granting defendants' motion to dismiss the complaint, plaintiffs were allowed 20 days in which to file an amended complaint, upon failure of which the action would stand dismissed with prejudice at the cost of plaintiffs. Plaintiffs elected not to file an amended complaint, so final judgment of dismissal was rendered.
We agree with the trial court that the complaint as framed does not allege sufficient ultimate facts to constitute a class action within the meaning of the rule. 1 The allegations do not meet the standards for a class action as required by the established law of this state. 2
Appellants contend that even if their complaint was not sufficient to constitute a class suit, it was nevertheless sufficient to state a valid cause of action for damages suffered by plaintiffs in their individual capacities as a result of the unlawful acts of defendants in polluting Dunn's Creek. Because of this, appellants urge that their complaint should not have been dismissed but the allegations concerning the class action merely stricken. In support of this position appellants rely on the decision of Gordon Finance, Inc. v. Belzaguy. 3 It is our view that appellants' position and their reliance upon the cited suthority are not well taken. The Gordon Finance case is distinguishable on the facts and legal issues involved and did not directly pass upon the question of law present in the case sub judice. In Gordon the defendants' motion to dismiss the complaint because it was not sufficient to state a cause of action as a class suit was denied even though it was conceded that the allegations were sufficient to state a cause of action for damages suffered by plaintiffs in their individual capacities. Promptly after such order was rendered, plaintiffs moved to amend their complaint by eliminating the class suit aspects thereof and...
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Harrell v. Hess Oil & Chemical Corp.
...DEKLE, Justice. 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 S......
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Evans v. St. Regis Paper Co.
...the complaint, and the cause was dismissed. The District Court affirmed, per curiam, on the authority of its Harrell v. Hess Oil and Chemical Corp., 272 So.2d 542 (Fla.App.1st 1973), cert. granted 287 So.2d 291 Conflict exists between the decision of the 1st DCA in the instant action report......
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Evans v. St. Regis Paper Company, s. Q--383
...and James L. Ade, of Milam, Martin & Ade, Jacksonville, for appellees. PER CURIAM. Affirmed on authority of Harrell v. Hess Oil and Chemical Corporation, 272 So.2d 542 (Fla.App.1973). SPECTOR, C.J., JOHNSON, J., and MELTON, HOWELL W., Associate Judge, ...