Smith v. GLEN COVE APARTMENTS CONDOMINIUMS MASTER ASS'N, INC., 4D02-4592.

• Decision Date: 18 June 2003
• Docket Number: No. 4D02-4592.,4D02-4592.
• Citation: 847 So.2d 1107
• Parties: Joy SMITH, Kimberly Johnson and James Webb, Appellants, v. GLEN COVE APARTMENTS CONDOMINIUMS MASTER ASSOCIATION, INC., and Neighborhood Housing Corp., Dewitt Investment, Inc., R.C. Properties International, Inc., Richard C. Weit, Constance Jefferson, Daisy Henry, and all others similarly situated, Appellees.
• Court: Florida District Court of Appeals

847 So.2d 1107

Joy SMITH, Kimberly Johnson and James Webb, Appellants, v. GLEN COVE APARTMENTS CONDOMINIUMS MASTER ASSOCIATION, INC., and Neighborhood Housing Corp., Dewitt Investment, Inc., R.C. Properties International, Inc., Richard C. Weit, Constance Jefferson, Daisy Henry, and all others similarly situated, Appellees.

No. 4D02-4592.

District Court of Appeal of Florida, Fourth District.

June 18, 2003.

William J. Cornwell of Weiss & Handler, P.A., Boca Raton, and Mikel Jones, Fort Lauderdale, for appellants.

Julie A. Porter of Thomas J. Morgan, P.A., Coconut Grove, for appellee Glen Cove Apartments Condominiums Master Association, Inc.

HAZOURI, J.

Appellants, Joy Smith, Kimberly Johnson, and James Webb, appeal from the non-final order of the trial court denying their motion for class action certification. They argue that the trial court abused its discretion in denying their motion in that the evidence they presented met the prerequisites to class representation as provided in Florida Rule of Civil Procedure 1.220. We agree.

Appellants filed a class action complaint against appellee, Glen Cove Apartments Condominium Association, Inc., and other defendants who were owners/lessors of the Glen Cove Condominium units occupied by appellants and other class members. Appellants filed their complaint against appellee for failure to maintain the roofs of two buildings in the Glen Cove complex. As a result, the leaking roofs collapsed and the two buildings were condemned by the City of Lauderdale Lakes resulting in the constructive eviction of appellants.

The claims against the owners/lessors were subsequently dismissed and there remained three claims against appellee: (I) breach of statutory duty under section 718.110, Florida Statutes (2000), for appellee's failure to maintain the common elements of the condemned condominium buildings; (IV) negligence, gross negligence and/or negligence per se for appellee's failure to manage, maintain and repair the roofs; and (V) constructive and wrongful eviction as a result of the condemnation order.

In order to qualify for class certification, a party must meet the prerequisites of rule 1.220. The prerequisites as provided by the rule are:

(1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class, (3) the claim or defense of the representative party is typical of the claim or defense 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.

These prerequisites are commonly referred to as numerosity, commonality, typicality, and adequacy of representation.

Under rule 1.220(d)(1) the trial court is required to state in its order findings of fact and conclusions of law "[i]rrespective of whether the court determines that the claim or defense is maintainable on behalf of the class...." The trial court entered a lengthy order denying the motion for class certification. We find, however, that the trial court relied on allegations and evidence that were not relevant to appellants' motion as will be discussed below.

NUMEROSITY

Appellants asserted in their complaint and in testimony at the hearing that the proposed class consists of more than 100 tenants and their family members who were evicted from their Glen Cove residence when the buildings were condemned. Appellee does not specifically respond to whether the members of the class are so numerous that separate joinder of each member is impracticable. The trial court's order does not make a finding on the issue of numerosity except to the extent that it states that each of the tenants had individual leases with his/her landlord.

Rule 1.220(a)(1) requires that the court first conclude that the members of the class are so numerous that separate joinder of each member is impracticable. In Fifth Moorings Condominium, Inc. v. Shere, 81 F.R.D. 712 (S.D.Fla.1979), the court was presented with allegations asserting the class had 144 members. The court stated in considering whether the allegations were sufficient:

It is widely recognized that members alone are but one factor to consider in determining whether the "numerosity" requirement is satisfied ... The judgment as to whether a given number is sufficient is not susceptible to hard and fast standards "since `numerosity' is tied to `impracticability' of joinder under specific circumstances."

"Impracticability" does not mean impossibility. It is sufficient if it is inconvenient or difficult to join all members of the class.

Id. at 715-16 (citations omitted). The court concluded as follows in holding that sufficient impracticability of joinder exists:

The Court views the size of the class, the inconvenience of proceeding as a non-class action, and the nature of the case as being determinative facts in this holding.

Id. at 716.

As the class in this case has approximately 100 members who were residents of low income housing indicating that they lacked the resources to bring separate actions, we find that separate joinder would be impracticable and the numerosity requirement of the rule is met. See, e.g., Colonial Penn Ins. Co. v. Magnetic Imaging Sys. I, Ltd., 694 So.2d 852, 853 (Fla. 3d DCA 1997)

.

COMMONALITY

In their complaint, appellants list fourteen questions of fact they allege are common to the claims of the representative parties as well as the claims of the individual members of each class. In its order, the trial court cited to four of these allegations and held that these allegations show a lack of commonality. The trial court also held that appellants stated fraud claims based upon separate contracts which is not appropriate for class action certification, citing Avila South Condominium Ass'n v. Kappa Corp., 347 So.2d 599 (Fla.1977), and Lance v. Wade, 457 So.2d 1008 (Fla.1984).

The allegations in the complaint against appellee do not allege fraud or misrepresentation by appellee and they are not based upon the leases appellants had with their landlords. The common questions of law and fact against appellee are whether appellee violated its statutory duty or was negligent in its failure to maintain the roofs causing damages to appellants and the members of the class.

"The primary concern in determining commonality is whether the representative members' claims arise from the same course of conduct that gave rise to the other claims, and whether the claims are based on the same legal theory." Terry L. Braun, P.A. v. Campbell, 827 So.2d 261, 267 (Fla. 5th DCA 2002)...