The Pinnacle Condo Assoc. v. Haney

Third District Court of Appeal
State of Florida

Opinion filed January 9, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-2723
Lower Tribunal No. 12-17609
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The Pinnacle Condominium Association, Inc.,
Appellant,

vs.

Richard Haney, et al.,
Appellees.

An appeal from a non-final order from the Circuit Court for Miami-Dade
County, Rodney Smith, Judge.

Cole Scott & Kissane, P.A., and Kathryn L. Ender and Therese A. Savona,
for appellant.

Baron & Herskowitz, and Jon Herskowitz, for appellees.

Before SCALES, and LINDSEY, JJ., and SUAREZ, Senior Judge.

SUAREZ, Senior Judge.

Appellant, The Pinnacle Condominium Association, Inc., appeals the trial

court’s November 9, 2017 non-final order certifying a class of condominium unit
owners encumbered by a settlement agreement in a prior cause. For the reasons that

follow, we affirm.

This Court reviews a trial court’s order on class certification for an abuse of

discretion; examines a trial court’s factual findings for competent, substantial

evidence; and reviews conclusions of law de novo. Sosa v. Safeway Premium Fin.

Co., 73 So. 3d 91, 102-103, 105 (Fla. 2011).

To certify a class, a trial court must determine whether the class

representative(s) and putative class members meet the requirements for class

certification enumerated in Florida Rule of Civil Procedure 1.220. The proponent

of class certification has the burden of pleading and proving the class certification

requirements contained in rule 1.220(a): (1) numerosity, (2) commonality, (3)

typicality, and (4) adequacy.1 “A trial court should resolve doubts with regard to

certification in favor of certification, especially in the early stages of litigation.”

1
Rule 1.220(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 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 [numerosity], (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
[commonality], (3) the claim or defense of the representative party is typical of the
claim or defense of each member of the class [typicality], and (4) the representative
party can fairly and adequately protect and represent the interests of each member
of the class [adequacy].

2
Sosa, 73 So. 3d at 105 (citing Chase Manhattan Mortg. Corp. v. Porcher, 898 So. 2d

153, 156 (Fla. 4th DCA 2005)).

On appeal, Appellant argues the trial court abused its discretion in certifying

the class because Appellees, the putative class representatives, failed to fulfill the

numerosity, typicality, and adequacy requirements of rule 1.220(a).2 We find

Appellant’s arguments to be unfounded.

First, numerosity speaks to whether “the members of the class are so

numerous that separate joinder of each member is impracticable.” Fla. R. Civ. P.

1.220(a)(1). Appellant contends the trial court failed to address the impracticability

of joinder and that the Appellees failed to present evidence that identified the class.

Appellant incorrectly suggests the trial court was required to make findings as to the

individual ability of each putative class member to bring separate actions. The plain

language of rule 1.220(a)(1) requires no such thing. Moreover, as the Florida

Supreme Court has made clear, no specific number is needed to sustain the

numerosity requirement, and class certification is proper if the class representative

does not base the projected class size on mere speculation. Sosa, 73 So. 3d at 114

(citing Toledo v. Hillsborough Cty. Hosp. Auth., 747 So. 2d 958, 961 (Fla. 2d DCA

1999)).

2
Appellant does not raise commonality as an issue.

3
 Here, the projected class size of 230 members is based on record evidence and

not on speculation. Thus, the trial court did not abuse its discretion in finding

Appellees satisfied the numerosity element by determining the putative class

members were so numerous as to make separate joinder of each member

impracticable.

Second, “[t]he key inquiry for a trial court when it determines whether a

proposed class satisfies the typicality requirement is whether the class representative

possesses the same legal interest and has endured the same legal injury as the class

members.” Sosa, 73 So. 3d at 114. Appellant contends that one of the putative class

representatives may not have been encumbered by the subject settlement agreement

underlying the proposed class action. However, as was noted at the relevant hearing

on the motion to certify the class, Appellees produced affidavits attesting to said

putative class member’s encumbrance. Appellant produced no such evidence to the

contrary.3 Here, the claims of the putative class representatives are typical of the

claims of each member of the class. Therefore, the trial court properly concluded

the Appellees satisfied the typicality requirement.

Third, adequacy rests on whether “the representative party can fairly and

adequately protect and represent the interests of each member of the class.” Fla. R.

3
For these same reasons, and based on the record evidence before us, we find no
merit to Appellant’s argument with regard to standing.

4
Civ. P. 1.220(a)(4).4 Appellant argues the trial court failed to address Appellees’

“unreasonable delay” in moving for class certification, and instead only relied on the

qualifications of class counsel. On the contrary, the trial court’s order specifically

finds that class counsel have acted in a diligent and timely manner. This finding is

supported by competent, substantial evidence. A trial court’s determination as to the

qualifications of class counsel to adequately represent a class will not be disturbed

on appeal absent a showing of clear abuse of discretion. Colonial Penn Ins. Co. v.

Magnetic Imaging Sys. I, Ltd., 694 So. 2d 852, 854 (Fla. 3d DCA 1997). Absent

such a showing here, the trial court’s adequacy determination stands.

Based on the foregoing, the trial court did not abuse its discretion in certifying

class. We therefore affirm.

Affirmed.

4
In examining adequacy, a trial court’s inquiry is two-pronged: (1) whether class
counsel has the qualifications, experience, and ability to conduct the litigation; and
(2) whether the class representative’s interests are antagonistic to the interests of the
class members. See Sosa, 73 So. 3d at 115, see also Leibell v. Miami-Dade Cty., 84
So. 3d 1078, 1085 (Fla. 3d DCA 2012).

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