Marty Stanifer v. Louisville and Jefferson County Metropolitan Sewer District

RENDERED: JANUARY 20, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0704-ME
MARTY STANIFER APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MITCH PERRY, JUDGE
ACTION NO. 17-CI-001658
LOUISVILLE AND JEFFERSON
COUNTY METROPOLITAN SEWER
DISTRICT AND UNKNOWN MSD
PUMP OPERATOR APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND GOODWINE,
JUDGES.
THOMPSON, CHIEF JUDGE: Marty Stanifer appeals from an order denying his
motion for class certification. Appellant argues that the trial court abused its
discretion in denying his motion to certify a class action. We find no error and
affirm.
FACTS AND PROCEDURAL BACKGROUND
In April of 2015, Louisville, Kentucky was subjected to a large
amount of rainfall which caused significant flooding in the area. In March of
2017, Appellant filed the underlying lawsuit on behalf of himself and others
similarly situated. He claimed that a water pumping station near his home
malfunctioned and either caused or exacerbated the significant flooding which
occurred in 2015, and that this flooding caused property damage. It was later
revealed that this pumping station was not part of the storm water drainage system,
but was a sewer pumping station. Appellant later amended his complaint to allege
that the sewer pumping station was not working properly and caused a sewage
overflow. He went on to claim that this overflow caused or exacerbated the
flooding and led to the property damage.
In February of 2022, Appellant moved to have his cause of action
certified as a class action. He wanted to include in the class people who suffered
property damage from the flooding and who were within his neighborhood. He
specifically identified sixteen other people who suffered damages from the
flooding. He also identified around 150 other individual properties that were
within the geographical area in which he was basing his class membership.1 The
1
The geographical area was based on his expert’s opinion as to where a sewage overflow could
have occurred based on a schematic and layout of the sewage drainage system. Appellant’s
expert did not opine as to whether a sewage overflow actually occurred, only that it was possible,
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Louisville and Jefferson County Metropolitan Sewer District opposed the motion
and argued that Appellant’s class was too speculative.
A hearing was held on the issue in May of 2022. An order denying
the class certification motion was entered in June of 2022, and this appeal
followed.2
ANALYSIS
The decision to deny class certification is reviewed
for an abuse of discretion. The test for abuse of
discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound
legal principles. As this Court undertakes its review,
[w]e must focus our analysis on this limited issue [of
class certification] and in so doing scrupulously respect
the limitations of the crossover between (1) reviewing
issues implicating the merits of the case that happen to
affect the class-certification analysis and (2) limiting our
review to the class-certification issue itself.
Manning v. Liberty Tire Services of Ohio, LLC, 577 S.W.3d 102, 109-10 (Ky. App.
2019) (internal quotation marks, footnotes, and citations omitted). “In Kentucky,
CR 23.01 and 23.02 govern class certification. Taken together, the rules provide a
comprehensive roadmap to class certification. The mandates of both rules must be
and he would need to conduct further testing and computer modeling before he could express
such an opinion.
2
Kentucky Rule of Civil Procedure (CR) 23.06 allows for an immediate appeal from an order
granting or denying class certification.
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satisfied before a class may be certified. The party seeking certification bears the
burden of proof.” Id. at 110 (citation omitted).
Subject to the provisions of Rule 23.02, one or more
members of a class may sue or be sued as representative
parties on behalf of all only if (a) the class is so
numerous that joinder of all members is impracticable,
(b) there are questions of law or fact common to the
class, (c) the claims or defenses of the representative
parties are typical of the claims or defenses of the class,
and (d) the representative parties will fairly and
adequately protect the interests of the class.
CR 23.01. “The four requirements in CR 23.01 to maintaining a class action can
be summed up as numerosity, commonality, typicality, and adequacy of
representation requirements.” Hensley v. Haynes Trucking, LLC, 549 S.W.3d 430,
442-43 (Ky. 2018) (footnote and citation omitted) (emphasis in original).
Rule 23 requires a showing that questions common to the
class predominate, not that those questions will be
answered, on the merits, in favor of the class. Federal
circuit courts have addressed the issue even more bluntly:
The determination [of] whether there is a proper class
does not depend on the existence of a cause of action. A
suit may be a proper class action, conforming to Rule 23,
and still be dismissed for failure to state a cause of
action.
Id. at 437 (internal quotation marks, footnotes, and citations omitted) (emphasis in
original).
In the case at hand, the trial court held that Appellant had failed to
meet the first two factors of CR 23.01, numerosity and commonality. We will first
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address numerosity. The trial court held that Appellant’s identification of around
150 different properties, but only seventeen individuals,3 that could have been
affected by the flooding is not definitive enough to show an impracticality of
joinder.
There is no precise size or number of class
members that automatically satisfies the numerosity
requirement. Whether a number is so large that it would
be impracticable to join all parties depends not upon any
magic number or formula, but rather upon the
circumstances surrounding the case. The substantive
nature of the claim, the type of the class action, and the
relief requested bear on . . . the necessary showing of
numerosity in relation to impracticability of joinder.
Practicability of joinder also depends on the size of the
class, the ease of identifying its members and
determining their addresses, facility of making service on
them, and their geographic dispersion. Impracticability
does not mean impossibility. The class representative
need show only that it is extremely difficult or
inconvenient to join all members of the class.
Hensley, 549 S.W.3d at 443 (internal quotation marks, footnotes, and citations
omitted) (emphasis in original).
Keeping in mind that we review this issue for an abuse of discretion,
we find no error. The evidence so far indicates that the geographic area that
includes the 150 properties is where a sewage overflow could have occurred, not
that one did occur there. The evidence also shows that not all of those 150
3
The sixteen individuals mentioned previously and Appellant himself.
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properties actually incurred flood damage. Finally, there is no evidence that the
people who currently own those 150 properties also owned the properties in 2015
when the flooding occurred. The court held that the seventeen individuals
identified were not numerous enough to make joinder impractical and the other
150 property owners were too speculative. We agree and believe this was not an
unreasonable conclusion. Perhaps with additional investigation Appellant can
identify additional individuals who have a potential claim and can move for class
certification at a later date.
We now move on to the commonality requirement.
The U.S. Supreme Court . . . highlighted the focus
of the commonality question: Whether the class
plaintiffs’ claims depend upon a common contention . . .
that is capable of class wide resolution – which means
that determination of its truth or falsity will resolve an
issue that is central to the validity of each one of the
claims in one stroke. This Court has also expounded on
the commonality requirement: CR 23.01(b) requires that
there must be questions of law or fact common to the
class, but it does not require that all questions of law or
fact be common.
Id. (internal quotation marks, footnotes, and citations omitted) (emphasis in
original).
The trial court held that Appellant did not meet the commonality
requirement because there could have been multiple different causes of the
flooding. For example, the flooding could have been caused by the excessive
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rainfall or a potential sewage overflow. The court believed that without a common
cause of the flooding, there could be no commonality amongst the potential class
members. We disagree with the trial court as to this factor.
The commonality element requires there to be
common questions of law or fact to the class. CR 23.01.
It is unnecessary to have a complete identity of facts
relating to all members as long as there is a common
nucleus of operative facts. [F]or purposes of [CR
23.01(a)], [e]ven a single [common] question will do[.]
One significant issue common to the class may be
sufficient to warrant certification.
Manning, 577 S.W.3d at 113 (internal quotation marks and citations omitted).
What is important to the commonality inquiry is
not simply that common questions exist in the class, but
rather the capacity of a classwide proceeding to generate
common answers apt to drive the resolution of the
litigation. Meeting this requirement is not a herculean
task. . . . The questions common to the class members
must predominate over the questions which affect
individual members. . . . [E]ven if some individualized
determinations may be necessary to completely resolve
the claims of each putative class member . . . those are
not the focus of the commonality inquiry.
Nebraska All. Realty Company v. Brewer, 529 S.W.3d 307, 312 (Ky. App. 2017)
(internal quotation marks and citations omitted) (emphasis in original).
Let us assume that the primary cause of the flooding at issue in this
case was from the huge amount of rainfall experienced by Louisville. If Appellant
can prove that a sewage overflow also occurred, that the overflow was caused by
some negligence on the part of Appellees, and that the overflow exacerbated the
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flooding, then Appellant could show that Appellees caused some damage to the
property of the potential class members. These would all be common questions for
the class members, the answers to which would drive the resolution of the
litigation.
We believe that the trial court’s reasoning regarding the commonality
requirement was flawed in this instance. That being said, because Appellant failed
to satisfy the numerosity requirement, we are still affirming the judgment of the
trial court as to class certification. The trial court also briefly touched on the
typicality and adequacy requirements, but did not go into much detail because
Appellant had already failed to meet the numerosity and commonality
requirements. As the trial court did not sufficiently address typicality and
adequacy, we are unable to determine if the court erred in finding these
requirements were not met.
CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court.
Appellant did not successfully meet the numerosity requirement for class
certification; therefore, the trial court did not abuse its discretion in denying the
motion.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Peter J. Jannace Adam T. Goebel
Andrew E. Mize Angela S. Fetcher
Louisville, Kentucky Jamila Carter
Louisville, Kentucky
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