Rosenwasser v. Frager, 74--1504
| Decision Date | 04 February 1975 |
| Docket Number | No. 74--1504,74--1504 |
| Citation | 307 So.2d 865 |
| Parties | Herman ROSENWASSER, Trustee, Appellant, v. Michael H. FRAGER et al., Appellees. |
| Court | Florida District Court of Appeals |
Snyder, Young, Stern & Tannenbaum, and Paul R. Lipton, North Miami Beach, for appellant.
Weissenborn, Burr & Hyman and Gary M. Carman, Miami, for appellees.
Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
This is an interlocutory appeal by the defendant, Herman Rosenwasser, Trustee, from an order denying a motion to dismiss or in the alternative to strike a class action.
The eight named plaintiffs are condominium unit owners in the Star Lake North Nautilus Condominium and the Star Lake Commodore Condominium located in Dade County, Florida. A complaint alleging fraudulent misrepresentation was filed on behalf of those unit owners named and all others similarly situated. It is alleged that the defendant, Herman Rosenwasser, Trustee, is the developer of both condominiums, as well as the lessor of a 99-year recreational lease to each condominium and that he created and served as an officer and director of both condominium associations. It is further alleged that the plaintiffs were induced to purchase their condominiums in reliance on representations made in a written brochure as to lakeside swimming, sandy beaches and courtesy bus service, none of which has been provided. The relief sought includes compensatory and punitive damages, damages for diminution in the value of the property purchased and recission and cancellation of the 99-year recreational lease. The defendant filed a motion to dismiss or strike for failure to state a cause of action in that this is not maintainable as a class action nor do the plaintiffs individually have standing to sue. The motion was denied and this interlocutory appeal ensued.
On appeal, the defendant-appellant contends that an action based upon fraud and deceit is inappropriate as a class action. We agree with this contention.
On the authority of Osceola Groves v. Wiley, 1 Equitable Life Assurance Society of the United States v. Fuller, 2 and Harrell v. Hess Oil & Chemical Corporation, 3 we affirm that portion of the order denying the defendant's motion to dismiss and reverse that portion of the order denying the motion to strike from the complaint the allegations of a class action. The cause shall proceed as an action by the named plaintiffs only.
Affirmed...
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Wittington Condominium Apartments, Inc. v. Braemar Corp., 74--424
...Costin, First District Court of Appeal, Case Nos. V--57, W--324 and W--336 opinion filed February 13, 1975 and Rosenwasser v. Frager, Third District Court of Appeal, 307 So.2d 865 opinion filed February 4, 1975. In examining the complaint we cannot conclude that it is totally deficient inso......
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Davidson v. Lely Estates, Inc., 75--1180
...filed by the defendant Lely, holding: '1. That an action based on fraud and deceit is inappropriate in a class action. Rosenwasser vs. Frager, (Fla.App.), 307 So.2d 865. 2. That Plaintiffs cannot aggregate their individual damage claim to meet jurisdictional requirements for circuit court. ......
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Cordell v. World Ins. Co.
...that propriety of interlocutory review was there challenged. Likewise, our sister court of the Third District in Rosenwasser v. Frager, 307 So.2d 865 (Fla. 3rd DCA 1975) entertained an interlocutory appeal from an order denying a motion to dismiss a class action commenced by condominium own......
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American Heritage Institutional Securities, Inc. v. Price
...to the District Courts of Appeal of Florida. See Davidson v. Lely Estates, Inc., 330 So.2d 528 (Fla. 2d DCA 1976); Rosenwasser v. Frager, 307 So.2d 865 (Fla. 3rd DCA 1975); Hendler v. Rogers House Condominium, Inc., 234 So.2d 128 (Fla. 4th DCA 1970). These appeals were taken as "interlocuto......