NANCY ARROWSMITH, ET AL., APPELLANTS,
v.
BROWARD COUNTY, ET AL., APPELLEES
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Appellants sought to certify a class action against Broward County and others for nuisance damages from airport activities. The trial court denied class certification, finding that appellants failed to meet the statutory notice requirement under Florida law, which was fatal to establishing the commonality and numerosity prerequisites for class certification. The appellate court affirmed.
The court affirmed the denial of class certification because appellants failed to meet their burden of establishing the Rule 1.220 prerequisites. The failure of potential class members to provide statutory notice under Section 768.28(6) was fatal to certification because it prevented appellants from establishing that claims, issues, and defenses were common to all class members, defeated numerosity, and made certain potential class members subject to dismissal.
[1] A proponent of class certification bears the burden of pleading and proving each element required under Rule 1.220, Florida Rules of Civil Procedure.
[2] The prerequisites for bringing a class action include numerous members, common questions of law or fact, typical claims or defenses, and adequate representation.
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Join FLexlaw to unlock all legal intelligence“Under Florida law, a proponent of class certification has the burden of pleading, and proving, each and every element required under Rule 1.220, Florida Rules of Civil Procedure.”
Establishes the burden of proof that appellants must satisfy to obtain class certification
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Join FLexlaw to unlock all legal intelligenceNinety-three individuals sued on their own behalf and as class representatives of a proposed class of 3,000 to 5,000 members residing near Fort Lauder…
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PER CURIAM.
This is a timely appeal from a non-final order denying certification of a class in an action against Broward County, several airlines and Princess Hotels International. We affirm.1
Appellants are 93 individuals who are suing on their own behalf and as class representatives of a class consisting of from 3,000 to 5,000 members, seeking damages against Broward County, several airlines and a hotel corporation for personal injuries and property damages due to activities at the Fort Lauderdale-Hollywood International Airport. The class members reside close to the airport, and claim that negligence by Broward County and others created a nuisance which caused them and their class members damages. For the reasons set out in the trial court’s order, we affirm. The trial court stated:
Under Florida law, a proponent of class certification has the burden of pleading, and proving, each and every element required under Rule 1.220, Florida Rules of Civil Procedure. Southern Bell Tel. & Tel. Co. v. Wilson, 305 So. 2d 302 (Fla. 3d DCA1974) [, cert. denied, 327 So. 2d 220 (Fla.1976)]. Under Rule 1.220, the prerequisites for bringing a class action are as follows:
(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.
Plaintiffs must allege with specificity each and every element of these prerequisites, and then the Court, based upon the evidentiary record, must make a determination that the Plaintiffs have met this burden. Paradise Shores Apartment, Inc. v. Practical Maintenance Co. [Inc.], 344 So. 2d 200, [sic 299] 303 (Fla. 2d DCA1977). “It must further appear that the claims, issues, and defenses are common to all the members of the class.” Costin v. Hargraves, 283 So. 2d 375, 376 (Fla. 1st DCA1973) [emphasis in original].
In the case at bar, the Court finds that Plaintiffs have failed to meet this burden. The Plaintiffs have failed to specifically allege, or prove, that each claimant has provided notice to BROWARD COUNTY and the Department of Insurance, pursuant to the requirements of Section 768.-28(6), Florida Statutes. Further, “(w)here the time for such notice has expired so that it is apparent that the plaintiff cannot fulfill the requirement, the trial court has no alternative but to dismiss the complaint with prejudice.” Levine v. Dade County School Board, 442 So. 2d 210 (Fla.1983). The acts of which Plaintiffs complain occurred from May 1989 until July 1989. More than three years have elapsed, and further notice of claims from the unnamed potential class members would therefore be untimely.
This lack of notice from the potential claimants who constitute the majority of the proposed class is fatal to the class certification in that Plaintiffs are unable to establish the necessary prerequisites of commonality of claims, issues and defenses by all members of the class. Certain potential class members would be subject to dismissal because of this lack of statutory notice, thus defeating Plaintiffs’ attempts to meet its burden under Rule 1.220(a)(2) and (a)(3). Additionally, due to this failure to provide notice, Plaintiffs have not provided the requisite showing under 1.220(a)(1), that the class is so numerous that separate joinder of each member is impracticable. For the foregoing reasons, the Motion to Certify the Class is denied.
ANSTEAD, HERSEY and POLEN, JJ., concur. . We reject appellee's claim that we do not have jurisdiction under Rule 9.130, Florida Rules of Appellate Procedure, allowing review of orders determining class status, because the rule became effective January 1, 1993, and this action was filed in 1989. The order reviewed was entered on January 19, 1993.
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Execu-Tech Bus. Sys., Inc. v. Appleton Papers Inc., 743 So. 2d 19 (Fla. 4th DCA 1999)…ssue of whether the case was proper for class certification. A party seeking class certification has the burden of pleading and proving each and every element required under rule 1.220, Florida Rules of Civil Procedure, Arrowsmith v. Broward County, 633 So. 2d 21 (Fla. 4th DCA 1993); Southern Bell Tel. & Tel. Co. v. Wilson, 305 So. 2d 302 (Fla. 3d DCA 1974), cert. discharged, 327 So. 2d 220 (Fla.1976), and the trial court has the obligation to conduct a rigorous analysis to [*22] determine whether the elemen…
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Goldfarb v. Ins. Co. OF N. Am., 642 So. 2d 586 (Fla. 3d DCA 1994)…, and without such, the trial court should be affirmed in denying the class certification. See and compare East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977); Arrowsmith v. Broward County, 633 So. 2d 21 (Fla. 4th DCA 1993); Love v. General Dev. Corp., 555 So. 2d 397, 398 (Fla. 3d DCA 1989); Adiel v. Electronic Fin. Sys., Inc., 513 So. 2d 1347 (Fla. 3d DCA 1987); Cordell v. World Ins. Co., 418 So. 2d 1162, 1164 (Fla. 1st DCA 1982), rev. denied, 429…
Authorities Cited
- Levine v. Dade Cnty. Sch. Bd., 442 So. 2d 210 (Fla. 1983)
- Costin v. Ansel L. Hargraves, 283 So. 2d 375 (Fla. 1st DCA 1973)
- S. Bell Tel. & Tel. Co. v. Wilson, 305 So. 2d 302 (Fla. 3d DCA 1974)
- Wilson v. S. Bell Tel. & Tel. Co., 327 So. 2d 220 (Fla. 1976)