Kohl v. Bay Colony Club Condominium, Inc.
| Decision Date | 21 May 1980 |
| Docket Number | No. 79-2394,79-2394 |
| Citation | 385 So.2d 1028 |
| Parties | Sidney KOHL and Dorothy Kohl, his wife, and Landmark First National Bank of Fort Lauderdale, as Trustee, Appellants, v. BAY COLONY CLUB CONDOMINIUM, INC., a Florida Corporation, not for profit, Albert A. Lucy and Roselind G. Lucy, his wife, Individually and as representatives for the class, Appellees. |
| Court | Florida District Court of Appeals |
Davis W. Duke Jr. of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for appellants.
Mark B. Schorr of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appellees.
By Petition for Writ of Common Law Certiorari we are asked to review certain pre-trial orders determining that a condominium association and the owners of a condominium unit have standing to maintain a class action.
Applying standards frequently reiterated by this Court we determine that the writ should not issue. It has not been demonstrated either that the trial court exceeded its jurisdiction or that the essential requirements of law and procedural due process have been violated. See G-W Development Corp. v. Village of Palm Beach, 317 So.2d 828 (Fla. 4th DCA 1975).
However, the fact that petitioners seek the wrong remedy is not fatal to their endeavor. We have authority to provide another remedy if one is available. Fla.R.App.P. 9.040(c).
The question then becomes whether a determination that plaintiffs have standing to pursue a class action is such a non-final order as will support an interlocutory appeal. We answered this question in the negative in Atreco-Florida, Inc. v. Berliner, 360 So.2d 784 (Fla. 4th DCA 1978). The fifth district followed our lead in American Heritage Institutional Securities, Inc. v. Price, 379 So.2d 420 (1980) (Fla. 5th DCA 1980). We propose to revisit the question.
The substantive right of a condominium association to bring a class action under appropriate circumstances is embodied in Subsection 718.111(2), Florida Statutes (1979). The procedural machinery for exercising that right is established by Rule 1.220(b), Florida Rules of Civil Procedure. See In re Rule 1.220(b), 353 So.2d 95 (Fla.1977).
In a class action the plaintiff is asserting the right to litigate on behalf of a class of persons not joined with him in the action. Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1977). The court obtains personal jurisdiction over the members of the class.
When the court permits a class suit to be brought or defended by one or more of the class, it necessarily follows that absent parties are properly represented and are bound by the decree. Tenny v. City of Miami Beach, ...
To continue reading
Request your trial
-
Mitchem v. Melton, 15136
...708, 54 A.L.R.3d 592 (1972); Daar v. Yellow Cab Co., 67 Cal.2d 695, 433 P.2d 732, 63 Cal.Rptr. 724 (1967); Kohl v. Bay Colony Club Condominium, Inc., 385 So.2d 1028 (Fla.App.1980); Roemisch v. Mutual of Omaha Insurance Company, 39 Ohio St.2d 119, 314 N.E.2d 386 (1974); Olive v. Graceland Sa......
-
General Development Corp. v. Stanislaus
...So.2d 879 (Fla.1988), review denied sub nom., Chemical Bank v. Hessen, 525 So.2d 876 (Fla.1988). But see Kohl v. Bay Colony Club Condominium, Inc., 385 So.2d 1028 (Fla. 4th DCA 1980) (wherein a three judge panel, without benefit of an en banc hearing, disapproved the prior decision of its o......
-
Crown Trading Co. v. Systems for Sec., Inc., 80-677
...the matter shall proceed as a class action. We have jurisdiction to review this non-final order, Kohl v. Bay Colony Club Condominium, Inc., 385 So.2d 1028, (Fla.4th DCA 1980), and Two issues raised by appellants require consideration. 1 The first is notice to the members of the class. Upon ......
-
Maner Properties, Inc. v. Siksay, 85-1567
...the class in an action brought by residents and lot owners of the park. Such an order is appealable. Kohl v. Bay Colony Club Condominium, Inc., 385 So.2d 1028 (Fla. 4th DCA 1980). Of the three plaintiffs who filed the multi-count complaint only appellee, Barbara Felton, remained in the acti......
-
Chapter § 6.01 THE IMPACT OF CLASS ACTIONS
...Bay Colony Club Condominiums, Inc., 406 So. 2d 515 (Fla. App. 1981) (certification granted); Kohl v. Bay Colony Club Condominium, Inc., 385 So. 2d 1028 (Fla. App. 1980) (Certification granted). Illinois: Tassan v. United Development Co., 88 Ill. App. 3d 581, 43 Ill. Dec. 769, 410 N.E.2d 902......
-
A Not-So-Little Problem with Precedent: Intra-district Conflict in Florida District Courts of Appeal.
...392 So. 2d 256 (Fla. 3d DCA 1980), decision quashed, cause remanded, 414 So. 2d 1063 (Fla. 1982); Kohl v. Bay Colony Club Condo., 385 So. 2d 1028 (Fla. 4th DCA 1980); In Interest of G. A. R., 387 So. 2d 404 (Fla. 4th DCA 1980); Lawrence v. State, 388 So. 2d 1250, 1252 (Fla. 4th DCA 1980), a......