Seminole County v. Tivoli Orlando Assocs., 5D05-684.

• Decision Date: 17 February 2006
• Docket Number: No. 5D05-684.,5D05-684.
• Citation: 920 So.2d 818
• Parties: SEMINOLE COUNTY, Appellant, v. TIVOLI ORLANDO ASSOCIATES LTD., etc., Appellee.
• Court: Florida District Court of Appeals

920 So.2d 818

SEMINOLE COUNTY, Appellant, v. TIVOLI ORLANDO ASSOCIATES LTD., etc., Appellee.

No. 5D05-684.

District Court of Appeal of Florida, Fifth District.

February 17, 2006.

Robert A. McMillan, County Attorney, and Arnold W. Schneider, Assistant County Attorney, Sanford, for Appellant.

Leonard E. Ireland, Jr., of Clayton-Johnston, P.A., Gainesville, for Appellee.

THOMPSON, J.

This is an appeal from a non-final order granting a motion for class certification. This case involves Seminole County's ("County") calculation of building permit fees and water and wastewater impact fees that builders must pay before the County issues a building permit. Tivoli Orlando Associates, Ltd., by the Tivoli 2900 Corp. (collectively "Tivoli"), sued for declaratory judgment in 2001, alleging that the County's determination of fees with respect to two apartment building projects was arbitrary and capricious. On 1 February 2005, the court entered an order certifying a class of "all developers and builders who have paid fees to Seminole County, Florida for building permits and water and waste water connections since August 30, 1997." The County timely appealed. Because Tivoli did not prove the elements required for class certification, and the trial court's order lacked evidentiary support, we reverse.

FACTS

Two relevant County resolutions preceded the conflict between Tivoli and the County. Resolution 97-R-245, adopted in November 1997, established building permit fees and utilized the most recent building valuation data sheet created by Southern Building Code Congress International Inc. ("SBCCI"). The data sheet estimates average construction costs per square foot for either "good" or "average" construction. Its building valuation varies greatly depending on the type of building being constructed and which of six construction types applies. The portion of the Resolution addressing building permit fees encompasses both buildings and other structures, such as power poles, retaining walls, solar panels, wood decks, and swimming pools. Resolution 98-120, adopted in May 1998, established water service connection fees and wastewater service connection fees, or impact fees. An attached schedule outlined waste and wastewater service capacity guidelines, establishing varying presumed usages for different buildings, including, for example, multi-family three-bedroom housing, fast food restaurants, barber shops, gas stations, and dentists' offices.

Tivoli was required to pay building permit fees and impact fees before it could receive building permits for its apartments. Building permit fees for its apartments, given their classification and type of construction, were valued at $60 per square foot for "good" construction, rather than $47 for "average" construction. Tivoli paid the fees for its first building in June 2000 "under protest." It claimed the apartments would cost less than $31 per square foot to build and submitted a one-page compilation of expected costs as proof. The County denied the request. Tivoli's request for lower impact fees, based on its own estimated water usage, was also unavailing. In June 2001, Tivoli paid "under protest" for its second apartment project; its request for lower fees was again denied, despite its submission of a one-page sheet showing water usage of Gainesville apartments over six non-consecutive months in 1999.

Tivoli sued for declaratory judgment, alleging that the County's calculation of cost was subjective, arbitrary, and capricious because it did not accept Tivoli's estimated costs rather than the fees established by County resolutions. Tivoli's amended complaint, filed about two years later, alleged a class action for a class of all developers who paid fees to the County after 30 August 1997. The complaint contained language tracking rule 1.220, Florida Rules of Civil Procedure, and repeated its specific allegations regarding Tivoli's construction projects. Tivoli's experience was typical for all builders because, with one exception, the County "computed its fees for building permits and water and waste water connections in exactly the same way." Tivoli sought a refund to itself and all class members. Neither Tivoli's amended complaint nor motion to certify class was accompanied by any affidavits.

The December 2004 hearing on Tivoli's motion was an argument of law. Tivoli presented no evidence other than three depositions taken in July 2002.¹ The order certifying the class repeated the complaint's allegations and found that Tivoli's assertions were supported by the depositions.

An order certifying a class is reviewed for abuse of discretion. Courtesy Auto Group, Inc. v. Garcia, 778 So.2d 1000, 1002 (Fla. 5th DCA 2000); Ernie Haire Ford, Inc. v. Gilley, 903 So.2d 956, 958 (Fla. 2d DCA 2005). This court has jurisdiction. Fla. R.App. P. 9.130(a)(3)(C)(vi).

ANALYSIS

Rule 1.220(a), Florida Rules of Civil Procedure, provides that numerosity, commonality, typicality, and adequacy is required for all class actions:

Before any claim ... may be maintained on behalf of a class by one party ... suing ... as the representative of all the members of a class, the court shall first conclude that (1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim ... of the representative party raises questions of a law or fact common to the questions of law or fact raised by the claim ... of each member of the class, (3) the claim ... of the representative party is typical of the claim ... of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class.

Every pleading alleging a class's existence must include a specific recitation of:

(A) the particular provision of subdivision (b) under which it is claimed that the claim ... is maintainable on behalf of a class,

(B) the questions of law or fact that are common to the claim ... of the representative party and the claim ... of each member of the class;

(C) the particular facts and circumstances that show the claim ... advanced by the representative party is typical of the claim ... of each member of the class;

(D) (i) the approximate number of class members, (ii) a definition of the alleged class, and (iii) the particular facts and circumstances that show the representative party will fairly and adequately protect and represent the interests of each member of the class; and

(E) the particular facts and circumstances that support the conclusions required of the court in determining that the action may be maintained as a class action pursuant to the particular provision of subdivision (b) under which it is claimed that the claim or defense is maintainable on behalf of a class.

Fla. R. Civ. P. 1.220(c)(2) (emphasis added).

The claims in Tivoli's complaint contained only facts and circumstances regarding its individual action, coupled with mere pleadings to satisfy the language of rule 1.220. The class, as alleged, consisted of "[a]ll developers and builders who have paid fees to Seminole County, Florida for building permits and water and waste water connections since August 30, 1997." The claim, in its entirety, stated that the County was arbitrary and capricious in its calculation of fees. Tivoli asserted, as a legal conclusion, that its claim was typical of the claims of all class members. The allegations of "particular facts and circumstances" to meet this essential requirement of a class action consisted of: (1) Tivoli's claim that Seminole County treats everyone the same way; and (2) Tivoli's recitation of facts from its initial complaint concerning the County's rejection of Tivoli's estimate of construction cost or water usage. Tivoli did not include any specific facts or circumstances to show its claim was typical of members in its class and described no names, costs, transactions, or projects occurring anywhere else in the County. More important, because there were six categories of construction types described in the resolution, Tivoli never pled how the disparate types could be joined as members of the same class with a common interest that would lead to a common right of recovery based on the same essential facts. Arvida/JMB Partners v. Council of Villages, Inc., 733 So.2d 1026, 1030 (Fla. 4th DCA 1999). Tivoli never pled, let alone proved, that multi-family projects, industrial construction, single family residences, and commercial retail projects with different construction modalities and costs could belong to the same class. Thus, Tivoli's amended complaint failed to allege a proper class action as required by the criteria in Fla. R. Civ. P. 1.220(c)(2)(C). See Dade County Police Benevolent Ass'n v. Metropolitan Dade County, 452 So.2d 6, 8 (Fla. 3d DCA 1984). Therefore, without a common nexus, the complaint did not properly plead a valid class action. See Dade County Police Benevolent Ass'n, 452 So.2d at 8; see also Frankel v. City of Miami Beach, 340 So.2d 463, 469 (Fla.1976) (holding that "more is required than the mere pleading of the language of the statute").

PROCEDURAL ERROR

Furthermore, even if Tivoli had properly alleged a class action, it did not prove the elements required by the rule; it did not accept its burden of presenting evidence to support its claim. It is well settled that parties seeking class certification must plead and prove each element required by rule 1.220. Terry L. Braun, P.A. v. Campbell, 827 So.2d 261, 265 (Fla. 5th DCA 2002); Courtesy Auto Group, Inc., 778 So.2d at 1002. Tivoli disagreed that it had this burden. Instead, Tivoli argued alternatively that the County had the burden of proving that Tivoli's representations concerning the elements of class certification were inadequate or that the Court must accept as true Tivoli's allegations. Tivoli erred when presenting these arguments.

Tivoli argued below and on appeal that the County must show that Tivoli's...