TERRY L. BRAUN, PA v. Campbell, 5D01-3246.

• Decision Date: 26 July 2002
• Docket Number: No. 5D01-3246.,5D01-3246.
• Citation: 827 So.2d 261
• Parties: TERRY L. BRAUN, P.A., d/b/a Ocala Dental Care, Appellant/Cross-Appellee, v. Jan CAMPBELL, and Robert Dailey, etc., et al., Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

827 So.2d 261

TERRY L. BRAUN, P.A., d/b/a Ocala Dental Care, Appellant/Cross-Appellee, v. Jan CAMPBELL, and Robert Dailey, etc., et al., Appellees/Cross-Appellants.

No. 5D01-3246.

District Court of Appeal of Florida, Fifth District.

July 26, 2002.

Rehearing Denied October 8, 2002.

Kathleen S. Cumming and David R. Kuhn, of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellant/Cross-Appellees.

Paul S. Rothstein, Gainesville, and N. Albert Bacharach, Jr., Gainesville, for Appellees/Cross-Appellants.

SHARP, W., J.

Terry Braun, P.A., doing business as Ocala Dental Care, appeals from a nonfinal order which certified a portion of the appellees' complaint which dealt with breach of an implied contract (Count VIII), negligence (Count XIII) and battery (Count XVII) as a class action lawsuit with findings, pursuant to Florida Rule of Civil Procedure 1.220. Appellees Jan Campbell and Robert Dailey cross-appeal from a portion of the same order which denied certification for two counts: Count I, which alleged deceptive and unfair trade practices, and Count V, which alleged breach of an express contract. We reverse the certification and affirm the cross-appeal.

This is the second time this matter has come to this court. In Braun v. Campbell, 781 So.2d 480 (Fla. 5th DCA 2001), we remanded this cause to the trial court for the purpose of making factual and legal findings required by Florida Rule of Civil Procedure 1.220(d)(1). The facts posed by this case are set forth in that opinion and we do not repeat them here.

After remand, the trial court made the following findings:

Defendant Terry L. Braun, P.A. does business as Ocala Dental Care, a dental office located in Marion County, Florida. Plaintiffs, with the exception of Plaintiff Pascucci,1 were all individuals who were treated at Ocala Dental Care by Defendant Illya Fitzgerald Hawthorn. It is undisputed that Defendant Hawthorn did not possess a license to practice dentistry from the State of Florida when he provided dental services to the Plaintiffs.

The Court finds that as to Count VIII, Implied Contract, Count XIII, Negligence, and Count XVII, battery, the Plaintiffs have met the criteria of Florida Rule of Civil Procedure 1.220 for Class Certification. The Court finds that there were between 25 and 31 individuals treated by Hawthorn at Ocala Dental Care. The members of the class are so numerous that separate joinder of each member is impracticable; and that the size of the class clearly satisfies the numerosity requirement of Rule 1.220(a)(1). Classes with as few as 25 members have satisfied the numerosity requirements. See, e.g., Estate of Bobinger v. Deltona Corporation, 563 So.2d 739 (Fla.2d D.C.A.1990).

The Court finds that the representatives' claims of implied contract, negligence and battery raise issues of law or fact common to the entire class; that common and typical questions clearly predominate over individual issues, and therefore, commonality under Florida Rule of Civil Procedure 1.220(a)(2) is satisfied. The Court finds that representatives' claims for implied contract, negligence and battery arise out of a common nexus of operative facts and are typical of the claims of the class. Therefore, typicality under Florida Rule of Civil Procedure 1.220(a)(3) is satisfied. The Court also finds that the class representatives can fairly and adequately protect and represent the interests of each member of the class.

The claims of the class are not maintainable under Florida Rule of Civil Procedure 1.220(b)(1) or 1.220(b)(2). The claims for implied contract, negligence and battery, although not maintainable under either subdivision (b)(1) or (b)(2), have questions of law or fact common to the claims of the representative parties and the claims of each member of the class which predominate over any question of law or fact affecting only individual members of the class. Furthermore, class representation is superior to other available methods for the fair and efficient adjudication of this controversy.

The Court's conclusions are derived from consideration of all relevant facts and circumstances, including: (A) the respective interests of each member of the class in claims or defenses; (B) the nature and extent of the pending litigation to which any member of the class is a party and in which any question of law or fact controverted in the subject action is to be adjudicated; (C) the desirability or undesirability of concentrating the litigation in the forum where the subject action is instituted; and, (D) the difficulties likely to be encountered in the management of the claim or defense on behalf of a class.

The Court finds that as to Plaintiffs' request for class certification pertaining to Count I, Deceptive and Unfair Trade Practices, individual questions predominate over any common questions, thus making any class action trial unmanageable. See Executec [Execu-Tech] Business Systems v. Appleton Papers, 743 So.2d 19 (Fla. 4th DCA 1999).

The Court finds that as to Count V, Express Contract, individual questions predominate over any common questions, thus making any class action trial unmanageable. See K.D. Lewis Enterprises Corporation v. Smith, 445 So.2d 1032 (Fla. 5th DCA 1984), Mathiason [Mathieson] v. General Motors Corporation, 529 So.2d 761 (Fla. 3d DCA 1988).

1. Pascucci brings a loss of consortium claim as the husband of Plaintiff Hunt.

Parties seeking class certification have the burden of pleading and proving each and every element required by rule 1.220.¹ A class action may be certified only after the trial court determines on the basis of a "rigorous analysis," that the elements of the class action rule have been satisfied.² The decision to certify a class should be made carefully on the basis of sufficient information, because the granting of class certification considerably expands the dimensions of the lawsuit and commits the court and the parties to much additional labor, over and above that entailed in an ordinary private lawsuit.³

Rule 1.220 states four threshold requirements applicable to all class actions:

(a) Prerequisites to Class Representation. Before any claim or defense may be maintained on behalf of a class by one party or more suing or being sued 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 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.

They are commonly referred to as numerosity, commonality, typicality and adequacy. Samples v. Hernando Taxpayers Ass'n, 682 So.2d 184 (Fla. 5th DCA 1996); Cheatwood v. Barry University, Inc., 2002 WL 4629, No. C1001-3986 (Fla.Cir.Ct. Jan. 1, 2002). See also Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).⁴

1. Numerosity.

Parties seeking class certification must demonstrate that the members of the class are so numerous that separate joinder of each member is impracticable. In this case, the trial judge found that 25 to 31 individuals were treated by Hawthorn (appellant's employee who was not licensed to practice dentistry) while at Ocala Dental Care. Noting that as few as 25 members of a class have satisfied this requirement, the judge concluded the numbers in this case were sufficient. See Fox v. Prudent Resources Trust, 69 F.R.D. 74 (E.D.Pa.1975). It appears that 25 members of a class does not automatically satisfy the numerosity requirement, however. One authority has stated a class should exceed fifty members to qualify. Henry P. Trawick, Jr., Florida Practice & Procedure § 4-8 (2000 ed). Trawick maintains the general test of impracticability is whether the names and number of members of the class will be unstable.

In deciding this issue for cases like this one which fall into the "gray area," courts must consider additional factors other than class size. They include: 1) judicial economy arising from avoiding multiple actions; 2) the geographic dispersion of members of the proposed class; 3) the financial resources of those members; 4) the ability of the members to file individual suits, and 5) requests for prospective relief that may have an effect on future class members. Ansari v. New York University, 179 F.R.D. 112 (S.D.N.Y.1998).

In this case, appellees presented no evidence relating to the factors concerning the practicability of joinder. Nor does the trial judge's order state facts to support his conclusion that members of the class are so numerous that separate joinder is impracticable. In this case it appears persons treated by the unlicensed dentist had been identified. They resided in and about the same area and were treated within a relatively short period of time (months). There was no evidence that joinder of all the members could not be accomplished. Individual lawsuits may, if appropriate, be consolidated under Florida Rule of Civil Procedure 1.270. See Lance v. Wade, 457 So.2d 1008 (Fla.1984).

2. Commonality

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. McFadden v. Staley, 687 So.2d 357 (Fla. 4th DCA 1997). See also Cheatwood. Where both liability and damages depend on individual factual determinations, resolution of these claims can only be decided on an individual basis which is inconsistent with the commonality requirement for class actions. Cheatwood.

In this case, the causes of action for which class...