The Florida Bar, 51800

• Decision Date: 08 December 1977
• Docket Number: No. 51800,51800
• Citation: 353 So.2d 95
• Parties: THE FLORIDA BAR. In re RULE 1.220(b), FLORIDA RULES OF CIVIL PROCEDURE (PETITION TO MODIFY).
• Court: Florida Supreme Court

Page 95

353 So.2d 95

THE FLORIDA BAR.

In re RULE 1.220(b), FLORIDA RULES OF CIVIL PROCEDURE (PETITION TO MODIFY).

No. 51800.

Supreme Court of Florida.

Dec. 8, 1977.

Russell Troutman, President of The Florida Bar, Winter Park, Robert L. Floyd, President-elect of The Florida Bar, Miami, Bill Wagner, Chairman, Tampa, and Joseph P. Klock, Jr., Vice Chairman and Clerk of the Civil Procedure Rules Committee, Miami, for petitioner.

Paul Regensdorf of Fleming, O'Bryan & Fleming, Fort Lauderdale, and Henry P. Trawick, Jr., a member of The Florida Bar, Sarasota, supporting Petition.

Rod Tennyson, Chairman of the Consumer Protection Law Committee, The Florida Bar, West Palm Beach, for respondent.

Jay H. Beckerman, State of Fla., Dept. of Transp., Jeffrey E. Streitfeld of Becker, Poliakoff & Sachs, Fort Lauderdale, opposing Petition.

PER CURIAM.

This matter is before the Court upon the petition of The Florida Bar, acting through its Civil Procedure Rules Committee (petitioner), to modify Florida Rules of Civil Procedure 1.220(b). ¹ The petition for modification is opposed, principally by the Consumer Protection Law Committee of The Florida Bar (respondent). Florida Rules of Civil Procedure 1.220(b) was promulgated by this Court as an emergency rule in connection with its review of the constitutionality of Section 711.12(2), Florida Statutes (1975), and Section 718.111(2), Florida Statutes (Supp.1976), in Avila South Condominium Association, Inc. v. Kappa Corporation, 347 So.2d 599 (Fla.1977). Because of the matters raised in its petition and brief herein, petitioner sought to intervene on rehearing in Avila. The petition for intervention and for rehearing was denied. However, due to the substantiality of the assertions made by petitioner, we directed that these proceedings be entertained in a separate docket with opportunity for all interested parties to be heard. We have jurisdiction pursuant to Article V, Section 2, Florida Constitution.

The competing positions of petitioner and respondent can be characterized as follows: (i) Petitioner maintains that Rule 1.220(b) is unnecessary in view of the repeal in 1976 of Section 711.12(2), Florida Statutes (1975), and enactment of Section 718.111(2), Florida Statutes (Supp.1976); (ii) respondent asserts that not only is the rule necessary, but it is essential to foster the public policy enunciated in both the 1975 and 1976 legislative enactments once this Court invalidated portions of each statute which dealt with practice and procedure. Petitioner suggests that although Section 711.12(2), Florida Statutes (1975), and to a lesser degree, Section 718.111(2), Florida Statutes (Supp.1976), represented an unconstitutional incursion by the legislature into the Court's rule-making prerogative, nevertheless the Court in Avila intruded the realm of the legislature by invalidating all but the first two sentences of each section and enacting Rule 1.220(b). It is contended that "capacity" to sue is a matter of substantive right which is the prerogative of the legislature and that, at least, Section 718.111(2), Florida Statutes (Supp.1976), went no further than to create capacity in condominium associations. Petitioner concedes that even the 1976 enactment of the legislature requires some delicate surgical excision to reach this constitutional result.

Having laid this predicate petitioner then argues that the postoperative version of Section 718.111(2), Florida Statutes (Supp.1976), creates capacity in favor of condominium associations avoiding the impediment created by the decisions in Wittington Condominium Apartments, Inc. v. Braemar, 313 So.2d 463 (Fla. 4th DCA 1975), and Hendler v. Rogers House Condominium, Inc., 234 So.2d 128 (Fla. 4th DCA 1970) ² and, consequently, nothing in addition to Florida Rules of Civil Procedure 1.220(a) is necessary to vindicate the interests of condominium unit owners through the vehicle of a class action. This is so because once capacity is created the application of existing case law under Rule 1.220(a) will determine the standing of a particular condominium association to maintain a class action under particular factual situations. See Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976), and Harrell v. Hess Oil and Chemical Corp., 287 So.2d 291 (Fla.1973). Petitioner argues that this analysis and conclusion offers the advantage of preserving the body of case law which has developed with respect to interpretation of Rule 1.220(a) when a condominium association seeks to maintain or defend a class action. To do otherwise, it is argued, will lead to uncertainty and a multiplicity of appeals in the future where condominium associations are concerned. More importantly, petitioner asserts that individual unit owners who do not wish to be bound as plaintiffs or defendants in a class action maintained by their condominium association will be better served by adhering to the traditional rule.

On the other hand, respondent asserts that the rule is necessary and that public policy is advanced by expressly declaring condominium association members a class as a matter of law without the necessity for pleading or proving the traditional seven class action elements enunciated in Frankel and Harrell, supra. Respondent's position essentially is that the elements traditionally required to establish the efficacy of a class are inherent in a condominium association relationship making pleading and proof of such elements unnecessary and burdensome. This position is reinforced by the argument that individual association members are protected from capricious or arbitrary class actions by the governing authority of the association through provisions of Chapter 718, Florida Statutes (Supp.1976), as well as decisions which impose a fiduciary duty upon the governing body of such associations to afford due process and equal protection to its members. See McCune v. Wilson, 237 So.2d 169 (Fla.1970), and Franklin v. White Egret Condominium, Inc., Case No. 76-1535, opinion filed Aug. 9, 1977 (Fla. 4th DCA 1977).

We concur with the respondent. As was articulated in Avila, supra, "the peculiar features of condominium development, ownership, and operation indicate the wisdom of providing a procedural vehicle for settlement of disputes affecting condominium owners concerning matters of common interest." Id. at 608. Petitioner is quite correct in its assertion that the legislature granted the substantive...