Hoechst Celanese Corp v. Fry
| Decision Date | 19 March 1997 |
| Docket Number | 96-1215,Nos. 96-1211,s. 96-1211 |
| Citation | 693 So.2d 1003 |
| Parties | 22 Fla. L. Weekly D699 HOECHST CELANESE CORPORATION, and Shell Oil Company d/b/a Shell Chemical Company, Appellants, v. Robert FRY, Gerald Garske, Edwin Kasanders, Jr., Edwin Kasanders, III, Mill Dam Development Corporation, Ralph Rudolph and Johnnie Voorhees, on behalf of themselves and all others similarly situated, Appellees. |
| Court | Florida District Court of Appeals |
Aragon, Burlington, Weil & Crockett, P.A., Rudolph F. Aragon and Kevin C. Kaplan, Miami; Kasowitz, Benson, Torres & Friedman, L.L.P., Hector Torres, Paul M. O'Connor, III, and Barry M. Kazan, New York City, for appellant, Hoechst Celanese Corporation.
Holland & Knight, Daniel S. Pearson, James M. Porter, D. Bruce Hoffman, and Lucinda A. Hofmann, Miami, for appellant, Shell Oil Company.
Shutts & Bowen, Richard M. Leslie, Maxine M. Long, and Rene J. Gonzalez-Llorens, Miami; Hicks & MacQuarrie, and Christopher J. MacQuarrie, Ocala, for appellees.
Before NESBITT, GODERICH and GREEN, JJ.
Shell Oil Company ("Shell") and Hoechst Celanese Corporation ("HCC") appeal a non-final order granting class certification in the cause below. We do not reach the asserted challenges to this order based upon our independent determination from the record that the trial court lacked jurisdiction to enter this order in the first instance. We therefore vacate the order under review and dismiss the cause below.
This case has had a rather unusual and intricate procedural history. To fully comprehend how it has finally made its way before us, it is necessary to provide a somewhat detailed recitation of its procedural background.
The case below was actually filed on April 3, 1995 by one Gilberto Viera purportedly on behalf of 500,000 Florida residents (hereinafter the "Viera Group") who sought to maintain the action as a class action suit against Shell, HCC and other manufacturers of raw materials used in polybutylene plumbing systems. 1 According to the complaint, the proposed Viera Group class consisted of all persons and entities that presently or previously owned structures and/or improvements to real estate in Florida containing polybutylene plumbing and who incurred any costs or expenses "by reasons of leakage from or failure, repair, or removal of, all or any portion of polybutylene plumbing." Appellees, Robert Fry, Gerald Garske, Edwin Kasanders, Jr., Edwin Kasanders, III, Mill Dam Development Corporation, Ralph Randolph and Johnnie Voorhees (collectively the "Fry Group") were not party plaintiffs to the class action filed by the Viera Group. A month after the Viera Group filed its action, the Fry Group, through separate counsel, instituted a similar proposed class action suit against Shell and HCC in Ocala, Marion County, Florida. The Fry Group essentially asserted the same claims in Marion County as the Viera Group had below. The Fry Group's proposed class, however, consisted of all individuals and entities authorized to do business in the State of Florida that presently owned or previously owned mobile homes in Florida in which there is polybutylene plumbing and who incurred costs or expenses "by reasons of leakage from or failure, repair, or removal, of all or any portion of polybutylene plumbing."
While the Viera Group's action was pending in Miami and the Fry Group's action was pending in Ocala, but prior to class certification in either case, a group of non-Florida residents led by a Tina Cox filed a national class action suit against Shell and HCC in a Tennessee state court ("Tennessee Group") on June 3, 1995, which raised substantially the same issues involved in the two Florida proceedings. 2 Unlike the Florida actions, the Tennessee Group's action was certified by the court as a class action on the very same day that the suit was filed, without objection from either Shell or HCC. The class, as certified by the Tennessee court, would have encompassed both the proposed classes in the Miami and Ocala actions. 3 Shortly thereafter, the Tennessee Group settled its claims with Shell and HCC. The settlement was initially approved by a Tennessee court in a judgment dated November 17, 1995. The Tennessee court then set October 20, 1995 as the deadline for any persons or entities subject to the Tennessee class action to opt out of the certified class. Pursuant to this order, Joan Norwood, a member of the Viera Group filed a motion with the Tennessee court to exclude all Florida residents from the Tennessee class as certified. That motion, however, was denied by the Tennessee court on October 19, 1995 on the grounds that Ms. Norwood lacked standing to exclude anyone other than herself from the class. 4 On the very next day, the Fry Group specially appeared before the Tennessee court to file their notice to opt out of the certified class.
Meanwhile, while the Tennessee Group's national class action was being resolved through settlement, Shell and HCC successfully moved to stay or abate the Fry Group's Ocala action pending a determination of the class certification issue in the Viera Group's Dade action. 5 By order dated September 26, 1995, the Ocala court stayed all of its proceedings until January 1, 1996 pending a determination of the class certification in the Viera Group's Dade action. 6
After the Ocala action was stayed, the Fry Group moved to intervene in the Dade action below pursuant to Rule 1.230, Fla.R.Civ.P. The Fry Group's motion for intervention was granted over objection on November 28, 1995. Significantly, the order granting the intervention did not confer party status on the Fry Group members so as to permit them to file any pleadings for affirmative relief against Shell and HCC in the cause below. 7 In apparent recognition of this fact, the intervening Fry Group members subsequently filed a motion for the Dade court below to recognize them as additional plaintiff representatives and to terminate their subordinate status as mere intervenors pursuant to Fla.R.Civ.P. 1.230. The record before us, however, is totally devoid of any hearing being conducted on this motion or any order or stipulation being entered pursuant to this motion. In fact, there is no record evidence before us of any order permitting the Fry Group intervenors to file any pleading for affirmative relief against the appellants.
On Friday, December 29, 1995, at approximately 5:00 P.M. and prior to any class certification determination in the action below, the Viera Group members settled all of their claims with the appellants and voluntarily dismissed the action below. On the following Tuesday, January 2, 1996, counsel for the Fry Group filed an amended complaint in the action below naming themselves and the previously dismissed Viera Group members as party plaintiffs. Although the Fry Group asserts on appeal that this was done pursuant to a court order, we have not found any such order in our exhaustive review of the voluminous record before us. 8 In response, Shell and HCC each filed separate motions for the court below to vacate its order granting intervenor status to the Fry Group. Essentially, they argued that the reasons in support of the Fry Group's initial intervention into the proceedings below no longer existed by virtue of the Viera settlement and subsequent voluntary dismissal. The court agreed and granted the appellant's respective motions and sent the parties back to Ocala. The Fry Group did, however, timely move for the court's reconsideration of this order.
When the parties returned to the Ocala court, Shell and HCC moved to dismiss the action with prejudice based upon their arguments that the Fry Group was subject to the Tennessee class action settlement and that the judgement approving this settlement was entitled to be granted full, faith and credit by the Ocala court. The Ocala court apparently agreed that the Fry Group had not effectively opted out of the Tennessee action and entered an order dated January 29, 1996 granting the motion to dismiss. A final order of dismissal on this motion, however, was not entered by the Ocala court until August 22, 1996. That final order was ultimately appealed to the Fifth District Court of Appeal.
After the Ocala court granted the motion to dismiss but before the entry of its final order, the parties reappeared before the Dade court on the Fry Group's motion for reconsideration of the order vacating their intervention in the action below. During the course of this hearing, appellants informed the court that the Ocala court had granted their motion to dismiss with prejudice based upon its determination that the Tennessee judgment was entitled to be given full, faith and credit. When the Dade court below raised the issue of whether the Ocala order might then have a res judicata effect on the matter pending before it, the appellees pointed out to the court that the Ocala order was not yet a final judgment hence, it could not have a preclusive effect at that point. 9 At that point, the Fry Group's motion for reconsideration was granted to allow them back into Dade County to proceed with a class certification hearing pursuant to their amended complaint filed four days after the Viera Group's voluntary dismissal of the action below.
Thereafter, the Fry Group proceeded with the class certification hearing. At the conclusion of the hearing, the court certified the proposed Fry Group's class pursuant to Rule 1.220, Fla.R.Civ.P. It is from this order granting class certification that this appeal has been taken.
Shell and HCC have challenged the class certification order on numerous grounds on this appeal. We note, however, that neither of these appellants has questioned the trial court's subject matter jurisdiction to entertain the class certification hearing in the first instance. Their failure to raise this issue below does not preclude us, however, from addressing it for the...
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