BELLA COLLINA VICTIMS

Federal Class Action Against Bella Collina – amended (page 3 of 4)

“The typicality requirement in Fed. R. Civ. P. 23 measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large.
Randall Greene was Accused of Stealing Bella Collina House

iii. Typicality – Rule 23(a)(3)

“The typicality requirement in Fed. R. Civ. P. 23 measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large. All putative class members are not required to have identical claims, and factual differences among the claims of the putative class members do not defeat certification. However, the named plaintiffs’ claims must still share the same essential characteristics as the claims of the class at large.” Susan J. v. Riley, 254 F.R.D. 439, 444, (M.D. Ala. Oct. 24, 2008).

“The commonality and typicality requirements of Rule 23(a) tend to merge.” AHM, 2000 U.S. Dist. LEXIS 14788 at *8 (quoting Griffin v. Carlin, 755 F.2d 1516 (11th Cir. 1985))(citation omitted).” Ass’n for Disabled Americans, Inc. v. Amoco Oil Co., 211 F.R.D. 457, 463, (S.D. Fla. Feb. 19, 2002). “Although the considerations of subsections [23]a(2), a(3), and a(4) tend to overlap, [see De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225 (7th Cir.1983); 7 C. Wright & A. Miller, Federal Practice and Procedure § 1764 (1972);] subsection a(3) primarily directs the district court to focus on whether named representatives’ claims have the same essential characteristics as the claims of the class at large. 713 F.2d at 232.” Appleyard v. Wallace, 754 F.2d 955, 958, (11th Cir. Ala. 1985).

Plaintiffs have set forth an action with the same essential characteristics of the class at large. As stated above, in the instant action, Plaintiffs seek to certify a class action in a case that, at its heart, involves the Developer of a community common to all prospective class members and the Property Owner’s Association that owes fiduciary duties to all prospective class members by virtue of owning property within the community. All prospective class members either currently own or at one-time owned property within the community, and have incurred the same alleged illegal actions alleged within Plaintiffs’ Complaint. By usurping control of the POA, passing various self-serving special assessments subsequent to passing improper and illegal amendments to the CC&R, and acting as a debt collector on behalf of the privately-owned Bella Collina Club, all prospective class members were subjected to the alleged illegal actions of the Defendants.

These specific claims of the named Plaintiffs are typical of the claims of the class. Plaintiffs, needing to show that their claims share the same essential characteristics as the claims of the class at large, have met their burden for typicality.

iv. Adequacy of Representation – Rule 23(a)(4)

The adequacy requirement encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action. [Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1323 (11th Cir. 2008)]. Susan J. v. Riley, 254 F.R.D. 439, 461, (M.D. Ala. Oct. 24, 2008).

A substantial conflict occurs when “some party members claim to have been harmed by the same conduct that benefitted other members of the class.” [Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003)]. Id. at 461.

Plaintiffs do not have any substantial conflict with proposed class members. As has been previously noted to the contrary, Plaintiffs have nearly identical factual situations to the proposed class members, share common interests with proposed class members and have suffered the same damages as proposed class members.

Further, as more particularly described above in the paragraph titled “Class Representative and Class Counsel,” both Widerman Malek, PL and E. Timothy McCullough are more than qualified to fairly and adequately manage and prosecute this case as a class action. Class counsel also possess the financial capabilities and resources to properly fund this case through completion.

Plaintiffs, needing to show that there are no substantial conflicts of interest exist between the representatives and the class, and that they as representatives will adequately prosecute the action, have met their burden.

B. THE PROPOSED CLASS ALSO FITS THE QUALIFICATIONS OF RULE 23(b)(3)

Once all of the requirements of Rule 23(a) are met, then the party seeking class certification must satisfy one of the requirements of Rule 23(b). Gittens v. Sch. Bd., 2017 U.S. Dist. LEXIS 115987, *40-41 (M.D. Fla. July 7, 2017) [citing Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1188 (11th Cir. 2003)]. In the instant Motion, Plaintiffs seek certification under Rule 23(b)(3).

A class action may be maintained under Rule 23(b)(3) if “the court finds that the  questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). There are two prongs to satisfy the requirements of Rule 23(b)(3) to achieve class certification, “predominance” and “superiority.”

  1. Predominance

For a Plaintiff to satisfy the first prong, predominance, to obtain Rule 23(b)(3) class certification, “the issues in the class action that are subject to generalized proof and applicable to the class as a whole must predominate over those issues that are subject only to individualized proof. Babineau, 576 F.3d at 1191. ‘Common issues of fact and law predominate if they have a direct impact on every class member’s effort to establish liability and on every class member’s entitlement to injunctive and monetary relief.’ Williams, 568 F.3d at 1357.” Gittens v. Sch. Bd., 2017 U.S. Dist. LEXIS 115987, *45 (M.D. Fla. July 7, 2017).

“To determine whether class or individual issues predominate, a court must take into account the claims, defenses, relevant facts, and applicable substantive law to assess the degree to which resolution of class-wide issues will further each individual class member’s claim against the defendant. (citations omitted). The common issues will not predominate over individual questions if the ‘resolution of [an] overarching common issue breaks down into an unmanageable variety of individual legal and factual issues.’” Id. at 46-47.

In the instant action, Plaintiffs’ claims, as applied to a class, predominate over any potential issues that are subject only to individualized proof. A resolution of a common issue will not break down into an unmanageable variety of individual and legal issues. As stated above, in the instant action, Plaintiffs seek to certify a class action in a case that, at its heart, involves the Developer of a community common to all prospective class members and the Property Owner’s Association that owes fiduciary duties to all prospective class members by virtue of owning property within the community. All prospective class members either currently own or at one-time owned property within the community, and have incurred the same alleged illegal actions alleged within Plaintiffs’ Complaint. By usurping control of the POA, passing various self-serving special assessments subsequent to passing improper and illegal amendments to the CC&R, and acting as a debt collector on behalf of the privately-owned Bella Collina Club, all prospective class members were subjected to the alleged illegal actions of the Defendants.

This express purpose of the alleged illegal actions of the Defendants was to extort lot ownership from legitimate lot owners to, and for the sole benefit of, the Defendants. Approximately 700 lots to date have been appropriated from prior lot owners. The developer- controlled POA’s actions, as have been detailed above, amount to a gross breach of the fiduciary duty owed to its members, both past and present. As a direct result, all class members, whether present or past lot owners, have been deprived of property value and have been subjected to a shocking deprivation of rights afforded to lot owners by Florida law and the governing documents. “Common issues of fact and law predominate if they ‘have a direct impact on every class member’s effort to establish liability and on every class member’s entitlement to injunctive and monetary relief.’” Klay v. Humana, Inc., 382 F.3d 1241, 1255 (11th Cir. 2004).

Members of the prospective class need not introduce a great deal of individualized proof of their claims or argue a number of individualized legal theories. The alleged illegal actions of the Defendants have impacted every member of the class, and have resulted in common damages. The individual damages are easily calculable since the individual lots were all originally sold and recorded at their inherent value at that time. Therefore, those lots will each have a set percentage value in comparison to the entire development, based upon real value prior to the alleged illegal actions of the Defendants. Any award by this Court could be easily calculated and distributed according to that identical percentage. Expert testimony can be utilized to determine the true value of the entire development at the time any determination of actual damages is needed by this Court. This Court would not be required to determine the individualized value of each lot, and instead could simply value the entire development as a whole. That overall development value could then be proportionately divided amongst each individual lot according to each lots’ original, true inherent percentage value, as explained above.

The proposed classes are sufficiently cohesive to warrant adjudication by representation. Therefore, Plaintiffs have met their burden for predominance.

Pages 1 24

Share on facebook
Share on twitter
Share on pinterest

Leave a Reply

Your email address will not be published. Required fields are marked *