Lindley v. Cisneros

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 94-2257

D. C. Docket No. 89-195-CIV-T-15B

GERTRUDE LINDLEY, JULIA DOLCE, F. J. BURR,
BERNADEEN L. BURR, EVE MONTALDO, MARY RIEDEL,
PAUL RIEDEL, LORENCE TIERNEY, WILLIAM TIERNEY,
EVA HARM, MARGUERITTE MITCHELL MANN, LASSIE
MAYHUE MEYER, RALPH MEYER, EUBERT F. TAFFERT,
IRENE ELBERT, GERALD PURDY, DORIS PURDY,
JUNE KNISTOFT, EDWARD KNISTOFT, MSGR. ROBICHAUD,
Personal Representative of the Estate of Dora
Wade; JANICE OLESON, Personal Representative
of the estate of Edna Bromhed; GEORGE OLMSTED,
Personal Representative of the estate of Thelma
Olmsted,

Plaintiffs-Appellants,

versus

HENRY CISNEROS and UNITED STATES OF AMERICA
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

Defendants-Appellees.

Appeal from the United States District Court
for the Middle District of Florida

(January 25, 1996)

Before TJOFLAT, Chief Judge, DYER and GARTH*, Senior Circuit
Judges.

*Honorable Leonard I. Garth, Senior U.S. Circuit Judge for the
Third Circuit, sitting by designation.
PER CURIAM:

Appellants are former tenants in a multi-story apartment

building known as the Mandalay Shores Apartments located in

Clearwater, Florida. At the time appellants were tenants, the

apartment building was owned by the United States Department of

Housing and Urban Development ("HUD"); each appellant occupied

his or her apartment under a lease with HUD. In this action

appellants seek to recover money damages under both Florida

landlord-tenant law and their leases for HUD's failure, despite

their pleas, properly to maintain the apartment building and

their respective units.

Tenants of the same apartment complex similarly brought suit

in Mann v. Pierce, 803 F.2d 1552 (11th Cir. 1986), also seeking

to recover damages under Florida landlord-tenant law and their

leases. They claimed that, while HUD was their landlord, the

apartment building was "infested with a wide array of vermin and

that the ceiling tiles were crumbling and spewing asbestos

whenever the roof leaked or the air conditioning was operated.

[In addition, they claimed that] HUD failed to make reasonable

provisions for running water and failed to maintain the project's

elevators, plumbing, roof and common areas. [They sought]

redress, including equitable restitution of rent paid while HUD

. . . maintained the project in substandard conditions." Id. at
1554.

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 While Mann was pending in the district court, the Mandalay

Shores Cooperative Housing Association (the "Association"), which

had been a tenant in the building, brought suit to obtain the

same relief as the Mann plaintiffs. Its case and Mann were

consolidated. Thereafter, in an effort to obtain in a single

adjudication relief for all of the building's former tenants, the

plaintiffs in the consolidated cases sought class certification

under Federal Rule of Civil Procedure 23. The district judge

presiding over the cases refused to certify a class, however,

because the causes of action of the individual plaintiffs were

not identical; the plaintiffs had separate leases and the facts

underpinning their claims were not likely to be common.

Moreover, HUD and the Secretary opposed the idea of a mass

adjudication of the tenants' claims.

In an effort to have the claims of all of the former tenants

resolved in the consolidated cases, the Association obtained

assignments from the tenants, the appellants here, and then moved

the court for leave to amend its complaint to bring the assigned

claims. HUD and the Secretary opposed the motion, claiming that

the assignments were invalid, and that consequently the

Association could not represent the assignors. The court denied

the Association's motion, concluding that allowing the

Association to proceed as the tenants' representative would not

promote the economic and speedy disposition of the controversy.

The adjudication of appellants' claims would be left to another

day. While the consolidated suit (of the Association and the

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Mann plaintiffs) was pending, appellants brought the instant

suit.

HUD and the Secretary prevailed in the consolidated case and

then moved for summary judgment in the instant case, contending

that the doctrine of res judicata foreclosed appellants' causes

of action. Appellants opposed the motion. They argued that the

defendants, having urged the court to reject the Association's

effort to litigate appellants' claims in the consolidated cases

and to defer consideration of these claims to another day, should

stand by their word. Common decency, if not fundamental due

process, they claimed, required that they be given their day in

court.

The district court, while acknowledging the merits of

appellants' fairness argument, rejected their plea and granted

the defendants summary judgment. We reverse, and direct the

court to reinstate appellants' claims.

Res judicata does not bar a claim unless the parties to both

actions--here, appellants and either the Mann plaintiffs or the

Association (or both)--are identical or are in privity with one

another. See Richardson v. Alabama State Bd. of Educ., 935 F.2d
1240, 1244 (11th Cir. 1991). The parties are not identical; nor

are they in privity with one another. HUD and the Secretary

argue that appellants were virtually represented in the prior

litigation by the Association. For a number of years, they point

out, the tenants, including appellants, had voluntarily aligned

themselves with and supported the goals of the Association. That

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may well be so, but such an alignment does not alter the fact

that appellants' claims are based on their individual leases,

that they assert discrete breaches on HUD's part, and that they

assert separate injuries. After all, this is why HUD and the

Secretary opposed class certification in Mann, and this is why

the district court denied class certification.

As the district court stated when it rejected the

Association's attempt to litigate appellants' claims as

appellants' assignee: appellants will have their day in court--

later. That time is now. The judgment of the district court is

accordingly VACATED and the case is REMANDED for further

proceedings.

SO ORDERED.

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