HERMAN ROSENWASSER, TRUSTEE, APPELLANT,
v.
MICHAEL H. FRAGER ET AL., APPELLEES
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This interlocutory appeal challenges an order denying a motion to dismiss or strike a class action for fraudulent misrepresentation filed by condominium unit owners against their developer. The court held that fraud actions are not maintainable as class actions and reversed the portion of the order allowing class action allegations to proceed.
The court affirmed the denial of the motion to dismiss, allowing the individual named plaintiffs to proceed with their fraud action, but reversed and struck the class action allegations from the complaint. The case must proceed as an action by the named plaintiffs only, not as a class action.
[1] An action based upon fraud and deceit is generally inappropriate as a class action.
[2] A court may deny a motion to dismiss a complaint if it states a cause of action, even if certain claims within the complaint are not maintainable as a class action.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“On appeal, the defendant-appellant contends that an action based upon fraud and deceit is inappropriate as a class action. We agree with this contention.”
Establishes the core holding that fraud actions cannot be maintained as class actions.
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Join FLexlaw to unlock all legal intelligenceEight named condominium unit owners purchased units in two Star Lake condominiums in Dade County, Florida, developed by Herman Rosenwasser, who also h…
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PER CURIAM.
This is an interlocutory appeal by the defendant, Herman Rosenwasser, Trustee, from an order denying a motion to dismiss or in the alternative to strike a class action.
The eight named plaintiffs are condominium unit owners in the Star Lake North Nautilus Condominium and the Star Lake Commodore Condominium located in Dade County, Florida. A complaint alleging fraudulent misrepresentation was filed on behalf of those unit owners named and all others similarly situated. It is alleged that the defendant, Herman Rosenwasser, Trustee, is the developer of both condominiums, as well as the lessor of a 99-year recreational lease to each condominium and that he created and served as an officer and director of both condominium associations. It is further alleged that the plaintiffs were induced to purchase their condominiums in reliance on representations made in a written brochure as to lakeside swimming, sandy beaches and courtesy bus service, none of which has been provided. The relief sought includes compensatory and punitive damages, damages for diminution in the value of the property purchased and recission and cancellation of the 99-year recreational lease. The defendant filed a motion to dismiss or strike for failure to state a cause of action in that this is not maintainable as a class action nor do the plaintiffs individually have standing to sue. The motion was denied and this interlocutory appeal ensued.
On appeal, the defendant-appellant contends that an action based upon fraud and deceit is inappropriate as a class action. We agree with this contention. On the authority of Osceola Groves v. Wiley,1 Equitable Life Assurance Society of the United States v. Fuller,2 and Harrell v. Hess Oil & Chemical Corporation,3 we affirm that portion of the order denying the defendant’s motion to dismiss and reverse that portion of the order denying the motion to strike from the complaint the allegations of a class action. The cause shall proceed as an action by the named plaintiffs only.
Affirmed in part, reversed in part and remanded.
. Fla.1955, 78 So. 2d 700.
. Fla.App.1973, 275 So. 2d 568.
. Fla.1973, 287 So. 2d 291.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wittington Condo. Apts., Inc. v. Braemar Corp., 313 So. 2d 463 (Fla. 4th DCA 1975)…ami Springs, supra; and Gordon Finance, Inc. v. Belzaguy, supra; see also Hargraves v. Costin, First District Court of Appeal, Case Nos. V-57, W-324 and W-336 opinion filed February 13, 1975 and Rosenwasser v. Frager, Third District Court of Appeal, 307 So. 2d 865 opinion, filed February 4, 1975. In examining the complaint we cannot conclude that it is totally deficient insofar as the standing or capacity of the named parties are concerned. The plaintiffs’ effort to take a “shotgun” approach in the descripti…
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Cordell v. World Ins. Co., 352 So. 2d 108 (Fla. 1st DCA 1977)…in the trial court could not be maintained as a class action. There is no indication in the opinion of the court that propriety of interlocutory review was there challenged. Likewise, our sister court of the Third District in Rosenwasser v. Frager, 307 So. 2d 865 (Fla. 3rd DCA 1975) entertained an interlocutory appeal from an order denying a motion to dismiss a class action commenced by condominium owners against a developer to recover compensatory and punitive damages on the ground of alleged fraudulent mis…
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Davidson v. Lely Ests., Inc., 330 So. 2d 528 (Fla. 2d DCA 1976)…ded by that corporation for conveyance of title. The trial judge granted a motion to dismiss filed by the defendant Lely, holding: “1. That an action based on fraud and deceit is inappropriate in a class action. Rosenwasser vs. Frager, [Fla.App.], 307 So. 2d 865. 2. That .Plaintiffs cannot aggregate their individual damage claim to [*530] meet jurisdictional requirements for circuit court. Curtis Publishing Co. vs. Robert Badger [Bader], 266 So. 2d 78, Zahn vs. International Paper Co., [414 U.S. 291, 94 S.…1 / 2
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Harrell v. Hess OIL & Chem. Corp., 287 So. 2d 291 (Fla. 1973)
- Edelblut v. Grady, 78 So. 2d 700 (Fla. 1955)
- Osceola Groves, Inc. v. Wiley, 78 So. 2d 700 (Fla. 1955)
- The Equitable Life Assurance Soc'y OF the United States v. Fuller, 275 So. 2d 568 (Fla. 3d DCA 1973)