VII. THE STANDING OF INDIVIDUAL LANDOWNERS WITH RESPECT TO SUIT
AGAINST THE COUNTY, INCLUDING THE POSSIBILITY OF A CLASS
ACTION LAWSUIT BY SUCH LANDOWNERS.
Landowners seeking to bring suit against the County in their
individual capacities stand in the same position as GAC with respect
to the property they currently own. Whether they may join their
claims in a class action raises a different question, however. The
large number of persons holding title to lands within the area of
Golden Gate Estates likely to be affected by Collier County's Interim
Action Program suggests, at least facially, that there exists the kind
of situation for which the class action was designed.
The purpose of a class suit is to avoid a multiplicity of suits,
to reduce the expense of litigation, to make legal processes more
effective and expeditious, and to make available a remedy that would
inot otherwise exist. Tenney v. City of Miami Beach, 152 Fla. 126, 11
So. 2d 188, 189 (Fla. 1942). It is brought on the theory that claims,
issues, and defenses are common and that when the rights of the nominal
parties are adjudicated, the rights as to all become in effect adjudi-
c ted. Id. at 190. It has been said that whether certain actions may
bp combined as a class suit should be determined early in the litigation.
9Oceola Groves, Inc. v. Wiley, 78 So. 2d 700, 702 (Fla. 1955). See also,
d. R. Civ. Proc. 23 (c)(1).
Class Action in Florida Courts
Florida Rule of Civil Procedure 1.220(a) provides that a class action
fay be maintained in certain areas. 'When the question is one of common or
general interest to many persons constituting a class so numerous as to
pike it impracticable to bring them before the court, one or more may sue
or defend for the whole."
It is clear that the numerosity of parties will not be enough, in
itself, to establish the right to bring a class action. City of Lakeland
v. Chase Nat. Co., 159 Fla. 783, So. 2d 833 (1947). Therefore, the mere
number of landowners in Golden Gate Estates alone, will not be sufficient
to permit a class action suit by them. A class must be described with
certainty and particularity. Id. In addition, Rule 1.220(a) requires
that there be a question of "common or general" interest.
What constitutes a question of common or general interest is not
made clear by the Rule, as was eloquently pointed out by the Florida
Supreme Court in City of Lakeland v. Chase Nat. Co., supra.
"A question" related to what? Question of law or fact?
A question related to the "subject matter" of the suit,
or to the "object" of the suit? A "question" related to
a common right-to several rights-or to joint rights? If
the "interest" be "common or general" may the rights be
separate and distinct? Also must they depend on the same
basic factors? Is the rule a matter of indulgence when
joinder would otherwise be required? Or is it a matter
of convenience for the benefit of the parties and the
court? Id. at 838.
The Court recognized that one could probably find legal support for
either side of these issues because of the Rule's broad language. It
concluded that the real test of the sufficiency of a class was no more
than a determination of fairness, convenience, due process and the
particular circumstances of each case. Id. The case law, before and
after the City of Lakeland decision, bears this proposition out.
Further insight into the pattern of reported decisions in which
the right to bring a class action was directly adjudicated by a Florida
court can be found in Watnick v. Florida Commercial Banks, Inc., 275 So.
2d 278 (Fla. 3d D.C.A. 1973), where the Third District Court of Appeal
stated, 'Although the courts never have commented expressly, it would
appear that a pattern is emerging wherein courts are more disposed to
allow class actions where public entities have become involved as
opposed to those actions where exclusively private entities are involved."
Id. at 280.
This proposition also appears to be correctly stated. Courts fre-
quently apply a restricted interpretation of the concept of community
of interests in suits between private parties. An example is the oft-
cited case of Osceola Groves v. Wiley, 78 So. 2d 700 (Fla. 1955). The
defendant, Osceola Groves, Inc., had sold numerous one acre units of
land and promised the purchasers that it would cultivate and market
citrus upon the parcels and pay to the owners 80% of the earnings from
each acre. Id. at 701. Thereafter, the defendant frauduently reported
its costs of maintenance so as to reduce the earnings that were due the
owners. Despite the apparent similarity in the plight of the owners,
the Osceola court held that the cause could not proceed as a class action.
In the instant case we note particularly that each of the
alleged numerous purchasers of units of land acquired his
land under separate contracts with the defendant and it
does not appear that in these contracts was any provision
showing a cooperative enterprise or any showing that any
purchaser had a pecuniary interest in any development of
lands other than those covered by his own contract. Fur-
ther, the complaint shows that other alleged purchasers,
if they have any cause of action against defendants, have
a choice of remedies available to their individual selec-
tion and their rights of actions may be subject to sepa-
rate and distinct defenses. Id. at 702.
A similar holding was the result in Federated Dept. Stores, Inc. v.
Pasco, 275 So. 2d 46 (Fla. 3d D.C.A. 1973), which involved a challenge of
the methodology used to compute finance charges on revolving charge
accounts on the store's credit cards. The plaintiffs claimed to re-
present all holders of similar credit cards. In dismissing the class
action, the court reasoned that there must be a common right or re-
covery based on the same essential facts. Id. at 48. Because each
credit card holder could have a different balance and exercise one of
several options in making payments on the account, the community of
interests requirements was not met. See also, Gordon Finance, Inc. v.
First Nat. Bank of Miami Springs, 254 So. 2d 362 (Fla. 3d D.C.A. 1971);
Watnick v. Florida Commercial Banks, Inc., supra.
If the same stringent standards that have been applied against the
plaintiffs who alleged commonality of interests in Osceola Groves and
Federated Dept. Stores were applied to the landowners in Golden Gate
Estates who might allege some injury arising from implementation of
the County's Interim Action Program, it would seem that a class action
would not be available. Each landowner holds his property through a
separate deed and the injuries, if any, that would occur to landowners
are certain to be different in degree and kind. Moreover, individual
access may be affected in diverse ways so that rights and defenses may
vary from landowner to landowner. Nevertheless, as was pointed out in
Watnick, supra, cases that involved public entities have resulted in a
somewhat more lenient application of the concept of common or general
In City of Lakeland, supra, a class action was permitted to
challenge the city's attempt to bring foreclosure actions on thousands
of tax and special assessment liens held by hundreds of property owners.
Although the amounts owed and the terms and conditions under which the
liens were held varied from person to person, the court determined that
fairness, convenience, and due process made the class action a proper
forum under the circumstances. Id. at 838. In Miami Beach v. Tenney,
7 So. 2d 136 (Fla. 1942), a class action was permitted to challenge the
city's special assessment for roads, sidewalks and sewer lines which
affected a number of landowners within the city. The Court found the
class of landowners to be certain and restricted and their community of
interest was satisfied by the special assessment applicable to all of them.
Another case in which a class action was upheld over challenge was
Port Royal, Inc. v. Conboy, 154 So. 2d 734 (Fla. 2d D.C.A. 1963). There,
a taxpayer claimed to represent all of the ad valorem taxpayers of the
city of Naples in his allegation that the city had improperly applied a
Submerged Lands Ordinance to a particular developer. The court held
that the legality of the city's tax benefit contracts with the developer
in conjunction with the ordinance was the common interest that bound the
class of ad valorem taxpayers in the city of Naples. Actually, only a
small percentage of the ad valorem taxpayers of the city had the kind of
property (submerged lands) which would have made them eligible for tax
relief under the provisions of the ordinance. In addition, the amount of
tax benefit that would have accrued to an individual owner of submerged
lands would have varied from owner to owner, depending on a number of
factors. It can be seen that these decisions, involving governmental
entities exercising taxing or related authority, are not consistent with
the Osceola Groves line of cases previously discussed unless one accepts
the proposition that the public party element creates an exception to the
general rule that each party in the class must have an actionable interest
in the claims of other parties in the class. Osceola, supra.
The mere fact that the Interim Action Program involves a public
entity, however, does not mean necessarily that a court would liberally
apply the concept of common interests to a group of landowners attempt-
ing to bring a class action suit against the County. No cases could be
found that resemble the unique factual circumstances presented here. It
seems that some aspects of the claims would be alike and some quite
different. For instance, the authority of the County to implement the
Interim Action Program may be a common question to the parties but the
alleged injuries would surely vary. As mentioned earlier, the important
right of access to one's property would be a separate and distinct ques-
tion for each plaintiff. If water levels were modified by the Program,
the amount and duration of flooding would also involve unique facts for
each landowner affected.
A frequently cited Florida case which involved an attempted class
action suit by private landowners against other landowners, Costin v.
Hargrove, 283 So. 2d 375 (Fla. 1st D.C.A. 1973), cert. den. 317 So. 2d
763 (Fla. 1975), would be important to any court examining the class
action issue as it may arise under the facts in Collier County. In
Costin, seventeen landowners purporting to represent 531 other landowners
brought suit against twenty-one owners of beachfront property in Gulf
County, alleging fraud, prescriptive easement, breach of covenants, and
dedication of certain beach areas. Id. at 376. The court refused to
permit the class action because the requisite community of interests was
The court stated that the claims, issues and defenses of the class
S must be common to all of them. Id. Because the complaint alleged four
grounds for relief which applied unequally to different members of the
class, no single fact was decisive of all the claims, and certain
defenses were available against some of the plaintiffs and not others,
class action was not appropriate. The fact that no plaintiff had a
pecuniary interest in the claim of other members of the class and each
plaintiff had gained title through a separate conveyance was also cited
in Costin as reason for dismissing the class action. Id.
The Costin opinion, like the opinion in Osceola Groves, would
seem to preclude the possibility of a class action suit arising out of
implementation of the Interim Action Program. The claims, issues and
defenses would not be identical for all the landowners who may allege
some injury or threatened injury as a result of the Interim Action Pro-
gram. While no public entity was involved in Costin, many of its facts
are similar to the circumstances in Golden Gate Estates. That cannot
be said for the Florida cases that did involve a public entity and held
that a class action was appropriate.
Class Action in The Federal Courts
In order to maintain a class action lawsuit in the federal courts,
complaints must first meet the jurisdictional requirements set out in
28 U.S.C. 11331, 1332. Section 1331 provides for bringing an action in
a federal district court for civil actions involving a federal question
and section 1332 provides for diversity of citizenship jurisdiction.
Both statutes additionally require that the matter in controversy exceed
the sum or value of $10,000 but this jurisdictional amount requirement is
no longer the same for each statute.
Although the $10,000 figure purportedly applies to federal question
cases as well as diversity actions, there are a number of other federal
_ I~___ _sl~__~ ___ ___~
statutes that have been enacted which grant jurisdiction without regard to
the amount in controversy in actions which otherwise would fall under the
federal question statute. See, Wright, Federal Courts 108 (2d ed. 1970).
The effect of these other federal grants of jurisdiction is to virtually
eliminate the $10,000 jurisdictional requirement for bringing a federal
question action in the federal courts. Id. Diversity jurisdiction, on
the other hand, consistently requires satisfaction of the jurisdictional
If the jurisdictional amount is imposed, it applies to each individual
member of the class in a class suit. The individual claims cannot be
aggregated to meet the $10,000 limit. Zahn v. International Paper Co., 414
U.S. 291, 94 S. Ct. 505 (1973); Snyder v. Harris, 384 U.S. 334, 89 S. Ct.
1053 (1969). However, even in those cases where the $10,000 minimum is
imposed, the plaintiff need only allege that the amount in controversy
exceeds the jurisdictional amount. A claim cannot be dismissed for lack
of the jurisdictional amount in controversy where the claim is alleged to
exceed $10,000 unless it appears "to a legal certainty" that the claim is
insufficient or made in bad faith. Joseph E. Bennet Co. v. Trio Indus-
tries, Inc., 306 F.2d 546 (1st Cir. 1962); Payne v. State Farm Mut. Auto.
Ins. Co., 266 F.2d 63 (5th Cir. 1959).
As discussed elsewhere in the report, if a taking were found to
exist because of the County's raising of water levels in the Golden Gate
Estates canal system, the measure of damages would be the diminution in
the fair market value of the affected property attributable to the County's
action. Because much of the area likely to be affected by the Interim
Action Program proposals is already subject to occasional flooding and is
virtually undeveloped at this time, the possibility that a number of
individual landowners would suffer damages exceeding $10,000 appears
quite slim. Therefore, it is not likely that a federal class action
based on diversity of citizenship jurisdiction would arise from the
County's proposals for Golden Gate Estates. There is also the possi-
bility that a federal district court would closely scrutinize the in-
dividial claims of landowners who brought a class action based on
federal question jurisdiction because of the difficulty most lot owners
would have in establishing a good faith claim of $10,000 damages. The
court's close look at individual claims, however, would probably have
to be initiated by an allegation in the County's answer to the class
action complaint that the action should be dismissed for failure to
satisfy in good faith the $10,000 jurisdictional minimum.
Besides the'jurisdictional amount requirement that might be imposed
in any attempted class action suit against Collier County, the provisions
of Rule 23 of the Federal Rules of Civil Procedure, 28 U.S.C., must also
(a) Prerequisites to a Class Action. One or more members
of a class may sue or be sued as representative parties on
behalf of all only if (1) the class is so numerous that
joinder of all members is impracticable, (2) there are
questions of law or fact common to the class, (3) the
claims or defenses of the representative parties are
typical of the claims or defenses of the class, and (4)
the representative parties will fairly and adequately
protect the interest of the class.
As under Florida law, the essential issue is the adequacy of representation
and the same general principles for determining adequacy in Florida appear
in the federal opinions interpreting Rule 23.
Some aspects of the federal rule are more lenient than comparable
elements of Florida's Rule 1.220 so that a class action might be more
readily permitted in the federal forum. For example, 23(b)(3) of the
federal rules provides that questions of law or fact which are common to
the members of the class must merely predominate over questions affecting
only individual members. See, e.g., Esplin v. Hirschi, 402 F.2d 94
(10th Cir. 1968), cert. den. 394 U.S. 928, 89 S. Ct. 194 (1969). Thus,
the federal "community of interest" concept is not as strict as Florida's
requirement that seems to require almost identical claims, issues and
In summary, both in Florida and federal courts, a high degree of
similarity in the claims of the individuals making up the class is
required. Because the actual effects that will arise from raising water
levels in the canal system cannot be known precisely beforehand, pre-
dictions of the adequacy of attempted class suits resulting therefrom
are difficult. In the federal courts, diversity of citizenship juris-
diction would create the initial obstacle of meeting the $10,000 minimum
for each individual member of the class. If alleged, however, the court
will not dismiss an otherwise valid class suit unless there appears to
be a legal certainty that the claim is insufficient or made in bad faith.
The case law in Florida and the federal court system does not present
consistent guidelines for determining whether the necessary community of
interests can be established in a class action brought by Golden Gate
Estates landowners. In deciding such questions, the courts seem to be
guided largely by considerations of fairness, convenience and due process
in the particular circumstances of each case. In Florida, it appears that
the existence of a public entity in the lawsuit is a significant factor
and tends to increase the likelihood that the class action will be permitted.
The reported cases, however, do not involve factual situations close
enough to those presented here to formulate clear legal analogies.
Perhaps the most that can be said about Florida law in this area
is that under circumstances such as will probably arise in Golden Gate
Estates, where some issues are common and some unique to individual
landowners, the determination of the validity of the class suit will
turn on the court's sense of the.predominant issues. If the case in-
volves numerous separate damage claims and defenses with no claim being
clearly shared pecuniarily by all of the members of the class, the court
will probably dismiss the action as improper. However, if a court can
find an important common issue which affects all of the members, the
diversity of the damage claims might be ignored and the class action
permitted as to the common claim.
The possible estoppel of the County is an issue that appears to
affect each potentially injured landowner within Golden Gate Estates.
Nevertheless, every other claim that might arise from raising water
levels could be described as separate and distinct. If the County
wished to avoid a class suit, its answer to the original complaint should
eaver that the claim of the landowners are predominantly individual in
nature, involving separate damages, privileges, and defenses. The same
approach could be effective in the federal courts, where the question of
.community interests is answered by the same factual considerations.