City of Roswell v. David Bible

FIFTH DIVISION
MCFADDEN, C. J.,
MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

September 16, 2019

In the Court of Appeals of Georgia
A19A1310. CITY OF ROSWELL v. BIBLE et al.

MCMILLIAN, Presiding Judge.

In August 2017, David Bible and Brian Rogers (collectively “Appellees”) filed

suit against the City of Roswell (the “City”), seeking to represent a class of similarly

situated firefighters on various claims arising from the City’s classification of the

putative class members as part-time rather than full-time employees, thereby

depriving them of full-time benefits under the City’s “Policy Manual.” Following

discovery limited to the issue of class certification, the trial court entered an order

certifying the proposed class. On appeal, the City asserts that the trial court erred by

(1) relying on the Appellees’ unsupported allegations; (2) finding that class issues

predominate; (3) finding that Appellees met their burden of proof as to numerosity;
and (4) finding that Appellees satisfy the typicality requirement. For the reasons that

follow, we find no error and affirm.

The record shows that the City has a population of nearly 100,000 and

employed over 100 firefighters each year during the class period.1 In 2000, the City

converted from a system of employing mostly full-time firefighters – with some

reliance on volunteer firefighters – to a system of employing a significant number of

“part-time” firefighters who are not entitled to the same benefits as full-time City

employees.2 Bible worked at the Roswell Fire Department (the “Department”) in

various capacities, including as a firefighter, fire lieutenant, fire captain, and

emergency medical technician, from 1992 until his retirement in March 2017. Rogers

worked at the Department from 2007 to 2018 as a firefighter, a fire captain, and a

1
The class period spans August 29, 2011 through August 29, 2017.
2
Appellees allege the City converted to this system in order to cut
approximately $8 million from its budget.

2
paramedic.3 All City employees, including the putative class members, are subject to

the provisions of the City’s Policy Manual.4

City Ordinance 2.2.1 defines “regular” employees as those who work “full-time

whether salary is hourly, weekly or some other pay rate,” whereas part-time

employees are those who “work at irregular intervals on a short-term basis.” Section

3.8 of the Policy Manual further specifies that “[a]n employee whose standard

workweek is forty hours or more is a regular full-time employee. An employee whose

standard workweek is less than forty hours per week is a part-time employee.” And

finally, the Policy Manual provides that “[a] person appointed to a part-time position

shall not be eligible for the privileges and benefits conferred through the [Policy

Manual] to regular full-time City employees.”5

3
Rogers was terminated shortly after he provided deposition testimony in this
case. Two weeks later, class plaintiffs Willey McCluskey and Ronnie Harper
withdrew from the case.
4
City Ordinance 2.2.2 provides that “[t]he employment practices of the City
of Roswell shall be set forth in a document known as the City of Roswell Personnel
Manual.” Ordinance 2.2.4 further provides that “[e]ligibility for benefits and the cost
to employees shall be specified in the personnel manual.”
5
The benefits enjoyed by full-time employees include retirement benefits,
holiday pay, paid time off, and paid sick leave.

3
 Appellees allege that for each year during the class period, they worked forty

hours or more per standard workweek “virtually every week.” And they both testified

at their depositions that they believed throughout their employment with the City that

they were considered part-time employees and were therefore not eligible for most

of the benefits available to full-time employees. In 2016, Rogers asked the City’s

benefits manager about participating in the City’s retirement plan, and she told

Rogers that he should do some research about how part-time employees are treated

in other jurisdictions. Approximately one year later, Appellees filed their complaint

against the City, asserting claims for breach of contract, breach of duty of good faith

and fair dealing, quantum meruit, declaratory judgment, and attorney fees.

The trial court directed the parties to engage in discovery limited to the issue

of class certification, and in June 2018, Appellees filed a motion to certify a class of

similarly situated firefighters as follows:

All persons currently and/or formerly employed as firefighters by the
Roswell Fire Department between August 29, 2011 and the date of the
filing of the Complaint (inclusive), who worked forty (40) hours or more
per standard workweek, but did not receive the benefits conferred upon
regular full-time employees.

4
The City opposed the motion and moved to strike Rogers’ and Bible’s declarations

and to suppress a former plaintiff’s deposition errata sheet. In its order granting class

certification for the proposed class, the trial court found that the estimated 149 class

members’ claims arise out of a single contract -- the Policy Manual -- and were

confined to a limited time period of August 29, 2011 to August 29, 2017. The trial

court ultimately concluded that the Appellees had satisfied each of the class

certification requirements under OCGA § 9-11-23 (a) and that class issues

predominate over the issues of any individual class members. This appeal followed.

1. In its first enumeration of error, the City simply asserts that the Appellees

failed to meet their burden of proof in establishing class certification – without

specifying which factor(s) the Appellees failed to establish – because the trial court

improperly relied on the Appellees’ unsworn allegations in their complaint and other

assertions outside their personal knowledge for “key factual propositions,” including

the allegations about the City and the Department’s benefits practices and the number

of hours worked by Appellees and other class members.

We begin by noting that “[i]n determining the propriety of a class action, the

first issue to be resolved is not whether the plaintiffs have stated a cause of action or

may ultimately prevail on the merits, but whether the requirements of OCGA § 9-11-

5
23 (a) have been met.” (Citation and punctuation omitted.) Endochoice Holdings, Inc.

v. Raczewski, __ Ga. App. __, (830 SE2d 597) (2019). Trial courts are “vested with

broad discretion to decide whether to certify a class, and absent an abuse of that

discretion, we will not disturb the trial court’s decision.” (Citation and punctuation

omitted.) Id. at ___ (“Implicit in this deferential standard of review is a recognition

of the fact-intensive basis of the certification inquiry and of the trial court’s inherent

power to manage and control pending litigation.”). And “we will affirm the trial

court’s factual findings unless they are clearly erroneous.” (Citation and punctuation

omitted.) Id. at ___

In order to certify a class, the trial court must find:

(1) [t]he class is so numerous that joinder of all members is
impracticable;

(2) [t]here are questions of law or fact common to the class;

(3) [t]he claims or defenses of the representative parties are typical of
the claims or defenses of the class; and

(4) [t]he representative parties will fairly and adequately protect the
interests of the class.

6
OCGA § 9-11-23 (a). In addition, the trial court must determine that at least one

ground included in OCGA § 9-11-23 (b) is satisfied. See SunTrust Bank v.

Bickerstaff, 349 Ga. App. 794, 801 (2) (824 SE2d 717) (2019). Pertinent to this case,

OCGA § 9-11-23 (b) (3) provides that a class action may be maintained if the trial

court “finds that the questions of law or fact common to the members of the class

predominate over any questions affecting only individual members, and that a class

action is superior to other available methods for the fair and efficient adjudication of

the controversy.”

The City is correct that the Appellees, as the class proponents, bear the burden

of proving that class certification is appropriate. See Georgia-Pacific Consumer

Prods., LP v. Ratner, 295 Ga. 524, 526 (1) (762 SE2d 419) (2014). And, in doing so,

they are required “to come forward with evidence to prove their satisfaction of the

statutory requirements.” Id. But see also City of Rome v. Hotels.com, LP, No. 4:05-

CV-249-HLM, 2011 U.S. Dist. LEXIS 158580, at *21 (N.D. Ga., March 21, 2011)

(rules of evidence are not strictly enforced at the class certification stage because of

the preliminary nature of the proceedings); Fischer v. Ciba Specialty Chems. Corp.,

238 FRD 273, 279 (II) (A) (1) (S.D. Ala. 2006) (“Courts confronted with Rule 23

7
issues may consider evidence that may not ultimately be admissible at trial.”).6 With

these principles in mind, we will turn to the City’s specific arguments regarding the

Appellees’ failure to establish that their claims are entitled to class treatment.

2. In its second enumeration of error, the City asserts that the Appellees cannot

establish that common issues predominate over individual issues.

“The Rule 23 (b) (3) predominance inquiry tests whether proposed classes are

sufficiently cohesive to warrant adjudication by representation.” Brenntag Mid South,

Inc. v. Smart, 308 Ga. App. 899, 906 (2) (b) (i) (710 SE2d 569) (2011). Class

plaintiffs “may satisfy this requirement by showing that issues subject to class-wide

proof predominate over issues requiring proof that is unique to the individual class

members.” Id. “In considering whether common questions will predominate, we look

to the specific claims asserted.” Raczewski, __ Ga. App. at ___.

Here, the trial court found that there is a single contract that applies only to

City employees and that within that single document the plaintiffs are challenging

only those provisions regarding benefits to full-time employees. Thus, where each of

the class members’ claims arise out of identical terms in the Policy Manual and each

6
We look to federal cases interpreting Rule 23 of the Federal Rules of
Procedure, the rule upon which OCGA § 9-11-23 was based, for guidance. American
Debt Foundation, Inc. v. Hodzic, 312 Ga. App. 806, 808 (720 SE2d 283) (2011).

8
of their claims are brought under the same causes of action, the issue of the City’s

contractual liability will be determined on a class-wide basis. And we have previously

held that similar claims arising from the breach of a single contract present a classic

case for treatment as a class action. See, e.g., Unum Life Ins. Co. of America v.

Crutchfield, 256 Ga. App. 582, 583 (568 SE2d 767) (2002) (“Georgia case law

provides that common questions of law and fact predominate when an action is

brought on behalf of purchasers of agreements from a common source, the character

of the right to be enforced is common, and common relief is sought.”) (citations and

punctuation omitted). See also Venerus v. Avis Budget Car Rental, LLC, 723 F. App’x

807, 815 (2) (11th Cir. 2018) (“form contracts are ideal for class treatment”).

The City argues, however, that the Appellees worked for years without

challenging their non-benefitted status and that this action therefore involves “highly

individualized questions of waiver.”7 Although Georgia law recognizes that a party

7
The City also asserts that the Appellees’ quantum meruit claim will require
a highly individualized inquiry. We first question whether the quantum meruit claim
in this case – arising from a single class of City firefighters over a specific period of
time – would in fact require such a highly individualized inquiry that it would
predominate over the issues common to the class. See In re Scientific-Atlanta, Inc.
Securities Litigation, 571 F. Supp. 2d 1315, 1342 (II) (A) (2) (N.D. Ga. 2007) (“The
mere fact that damages may have to be calculated on an individualized basis does not
necessarily establish that individual issues predominate.”). Moreover, it is clear that
this claim was pleaded in the alternative to the breach of contract claim. Thus, if the

9
to a contract may waive contractual provisions for his benefit, “waiver is not favored

under the law,” and “the evidence relied upon to prove a waiver must be so clearly

indicative of an intent to relinquish a then known particular right or benefit as to

exclude any other reasonable explanation.” (Citation omitted.) Greenberg Farrow

Architecture, Inc. v. JMLS 1422, LLC, 339 Ga. App. 325, 331 (2) (791 SE2d 635)

(2016). “One cannot intentionally waive a right one does not know exists.” Id. at 333

(2).

However, we need not resolve the issue of waiver at this juncture because

“merit-based disputes are not ripe for resolution at the class certification stage,

particularly where no dispositive motions have been filed, argued, or ruled on below,

and merits discovery has not concluded.”8 Village Auto Inc. Co. v. Rush, 286 Ga.

App. 688, 692 (2) (649 SE2d 862) (2007). Moreover, “where corporate policies

class is successful on its primary claim, it will not proceed to the recovery of damages
on the quantum meruit claim. “It has long been the law in Geogia that although a
party may plead in alternative counts, no recovery may be had in quantum meruit
when a contract governs all claimed rights and responsibilities of the parties.”
(Citation and punctuation omitted.) Graybill v. Attaway Constr. & Assoc., 341 Ga.
App. 805, 811-12 (3) (802 SE2d 91) (2017).
8
We note that where a contract is divisible, such as where services are accepted
by successive performances, the statute of limitation runs separately as to each
payment when it becomes due. See Teachers Retirement System v. Plymel, 296 Ga.
App. 839, 845 (2) (676 SE2d 234) (2009).

10
constitute the very heart of the plaintiffs’ claims, as they do here, common issues will

predominate because those policies would necessarily have to be re-proven by every

plaintiff.” (Citations and punctuation omitted.) In re Checking Account Overdraft

Litigation, 286 FRD 645, 656 (III) (C) (1) (S.D. Fla. 2012). Thus, even where “a

defense may arise and may affect different class members differently, this occurrence

does not compel a finding that individual issues predominate over common ones. So

long as a sufficient constellation of common issues binds class members together,

variations in the sources and application of a defense will not automatically foreclose

class certification.” (Citation omitted.) Fortis Ins. Co. v. Kahn, 299 Ga. App. 319, 324

(2) (b) (683 SE2d 4) (2009). See also In re Checking Account Overdraft Litigation,

286 FRD at 656 (III) (C) (1) (unique affirmative defenses will rarely predominate

where a common course of conduct is established).

Accordingly, the trial court did not abuse its discretion in finding that

individual considerations do not predominate over those relevant to the entire class.9

3. The City next asserts that the Appellees failed to meet their burden to prove

numerosity.

9
The City essentially concedes that if predominance is met in this case, then
the additional requirement of superiority under OCGA § 9-11-23 (b) (3) would also
be satisfied. Therefore, we will not separately address superiority.

11
 Under Georgia law, there is no minimum number of class members required

to meet the requirements of OCGA § 9-11-23 (a) (1). The Medical Center, Inc. v.

Bowden, 348 Ga. App. 165, 174 (2) (a) (820 SE2d 289) (2018) (if after further

discovery it becomes clear that fewer persons than initially anticipated constitute the

class, the trial court can modify or de-certify the class as may be necessary) (physical

precedent only). However, “impracticability of joinder is generally presumed if the

class includes more than 40 members.” American Debt Foundation, Inc. v. Hodzic,

312 Ga. App. 806, 809 (1) (720 SE2d 283) (2011). And “[p]arties seeking class

certification do not need to know the precise number of class members but they must

make reasonable estimates with support as to the size of the proposed class.” (Citation

and punctuation omitted.) In re Checking Account Overdraft Litigation, 286 FRD at

651 (III) (B) (1) (generally less than 21 is inadequate, more than 40 is sufficient). See

also Smart, 308 Ga. App. at 903 (2) (a) (i) (plaintiffs need not allege exact number

and identity of class members; they need only establish that joinder is impracticable

“through some evidence or reasonable estimate of the number of purported class

members”) (citation and punctuation omitted).

Although the City’s argument is not entirely clear on appeal, it appears that in

contesting numerosity below, the City did not actually dispute the fact that the

12
proposed class would exceed the general threshold for numerosity. Rather, the City

disputed the Appellees’ reliance on the Policy Manual’s definition of full-time, i.e.,

“[a]n employee whose standard workweek is forty hours or more.”10 In any event,

documents produced by the City during discovery provided the names and work

hours of potential class members during the relevant time period.11 “Case law is clear

that there is no requirement that every classmember, other than the named plaintiffs,

be identified at the outset of the litigation. Instead, a class definition is necessary only

to establish that the class does, in fact, exist and that its members will be identifiable.”

(Citation and punctuation omitted.) Campos v. ChoicePoint, Inc., 237 FRD 478, 488

(II) (D) (1) (N.D. Ga. 2006).

Based on our review of the City’s own records, we find the trial court did not

abuse its discretion in finding that the Appellees satisfied the numerosity requirement.

Accordingly, this enumeration of error provides no basis for reversal.

10
The City argued that in order to be considered a full-time employee, the
employee should have worked 2,080 hours each year (a number that would require
the employee to work 40 hours per week for each of the 52 weeks per year). However,
even under the City’s proposed definition, the Appellees maintained that the class
would include 86 members.
11
These documents were filed as exhibits to the City’s opposition to the
Appellees’ motion to certify.

13
 4. And lastly, the City asserts that the Appellees’ claims are not typical of the

class. “The typicality test centers on whether other members have the same or similar

injury, whether the action is based on conduct which is not unique to the named class

plaintiffs, and whether other class members have been injured by the same course of

conduct.” (Citation and punctuation omitted.) In re Checking Account Overdraft

Litigation, 286 FRD at 653 (III) (B) (3). This test is not demanding and is satisfied

“if the claims or defenses of the class and the class representative arise from the same

event or pattern or practice and are based on the same legal theory.” (Citation and

punctuation omitted.) Ault v. Walt Disney World Co., 692 F3d 1212, 1216 (III) (11th

Cir. 2012). See also Bowden, 348 Ga. App. at 179 (2) (c) (sufficient nexus is

established if claims or defenses of the class and class representatives arise from the

same event or pattern or practice and are based on same legal theory).

The City alleges that because Bible and Rogers acquiesced in their non-

benefitted status and worked over 2,080 hours per year, they are not typical of other

class members who did not waive their entitlement to any benefits or those who

worked less than 2,080 hours per year. However, it is clear that Appellees’ breach of

contract claims, arising from the City’s denial of full-time employment benefits, are

virtually identical to the claims of each proposed class member. And for the reasons

14
discussed in Division 2, we need not reach the merits of the City’s waiver defense at

this juncture. Finally, with respect to the number of hours worked, we are not

persuaded that any numerical difference between the amount of hours worked by

Rogers and Bible and the remaining class members – assuming the class members

otherwise meet the class definition – defeats a finding of typicality. See Local 703,

I.B. of T. Grocery & Food Employees Welfare Fund v. Regions Financial Corp., 762

F3d 1248,1260 (V) (11th Cir. 2014) (“The typicality requirement may be satisfied

despite substantial factual differences when there is a strong similarity of legal

theories.”) (citation and punctuation omitted). Accordingly, this enumeration of error

provides no basis for reversal.

Judgment affirmed. McFadden, C. J., and Senior Appellate Judge Herbert E.

Phipps concur.

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