Palm Beach County v. Gene A. Bernard & Associates, Inc.
| Decision Date | 12 September 1990 |
| Docket Number | Nos. 88-2706,s. 88-2706 |
| Citation | 566 So.2d 886 |
| Parties | 15 Fla. L. Weekly D2268 PALM BEACH COUNTY, Appellant, v. GENE A. BERNARD & ASSOC., INC., etc., et al., Appellees. to 88-2708, 88-2710 to 88-2712, 88-2714 to 88-2717, 88-2719 to 88-2721, 88-2723 to 88-2726, 88-2728 to 88-2733, 89-0232 and 89-0233. |
| Court | Florida District Court of Appeals |
Robert P. Banks, Asst. County Atty., Richard W. Carlson, Jr., and Thomas Callan, West Palm Beach, for appellant.
Robert C. Eber, Miami, for appellees Marvin L. Clements and Clements and Clements, Inc.
Adam G. Heffner and Steven J. Jacobson of Schneider & Heffner, Boca Raton, for appellee Jeffrey D. Ahl.
Kenneth A. Rubin of Abrams, Anton, Robbins, Resnick & Schneider, P.A., Hollywood, for appellees Lindemar, Inc., Mark Schneider, Independent Const. Co., and Jimmy E. Loyd.
Dale W. Vash of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa, for appellees Stratton of Florida, Inc. and Victor Lowry.
Timothy P. McCarthy of Merola, McCarthy & Cox, P.A., Palm Beach Gardens, for appellees J.B. Evans, Inc. and Jeffrey S. Schoenfeldt.
Frank D. Newman of Wallace, Engels, Pertnoy, Solowsky, Newman & Allen, P.A., Miami, for appellees Habitation Planning, Inc. and Murray Norkin.
We affirm the dismissal of consolidated cases filed by the county to collect unpaid impact fees. In 1979 a class action, Homebuilders and Contractors Assoc., Inc. et al. v. Board of County Commissioners, was brought seeking the refund of impact fees and to have the county impact fee ordinance declared unconstitutional. A temporary injunction was entered in that case restraining the county from further collection of the fees prior to final judgment. The class certification order in that case specifically mandated that notice of the action be furnished by certified mail to every present and future member of the class. In 1982, a final judgment was entered upholding the ordinance. At that time the temporary injunction ended and the county was free to collect all fees notwithstanding subsequent appeals. But no effort was made by the county to collect fees for permits issued between November 1979 and March 1982. Rather, four years, to the day, after the final class action judgment, these suits were instituted to collect the past due fees. We note that some of the appellees' building permits were pulled before the class action was filed and some after. We also note that the county had up to a year following the final judgment to file its claims.
The trial court in each of these cases determined that the four year statute of limitations was not tolled by the temporary injunction as to persons who were not members of the class and who had not received notice of the class action. An evidentiary hearing was then conducted in these cases to factually determine the notice issues. The trial court found that these appellees did not receive notice in the class action. That finding is not disputed by the county in this appeal. Rather, the county asserts that the tolling of the statute of limitations, during the term of the temporary injunction in the earlier case, is res judicata as to all potential class members even if unnamed and without notice in the class action notwithstanding the explicit order of the trial court in that case requiring that notice be given.
Following the evidentiary hearing separate orders were entered dismissing each of the consolidated cases because the four year statute of limitations was not tolled by the temporary injunction. 1
The county asserts that procedural due process does not always require individual notice to members of a class. See Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Scott v. Walker, 378 So.2d 828 (Fla. 2d DCA 1979). However, in Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976), our supreme court noted that due process in class actions requires notice to all class members who are identifiable through reasonable efforts. And in Ves Carpenter Contractors, Inc. v. City of Dania, 422 So.2d 342 (Fla. 4th DCA 1982), this court held that due process requires reasonable notice to class members, citing Frankel. See also Hastings-Murtagh v. Texas Air Corp., 119 F.R.D. 450 (S....
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