IN THE SUPREME COURT OF FLORIDA. Petitioners, Case No. SC ON REVIEW FROM THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

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1 IN THE SUPREME COURT OF FLORIDA RAWLIS LESLIE, DEBORAH CROSBY, DONELL PITTMAN, LINDA TSCHUDI, LASHARAW, INC., and THADUS RUSS, on behalf of themselves and all others similarly situated, v. Petitioners, Case No. SC THE ST. JOE COMPANY, Respondent. ON REVIEW FROM THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA RESPONDENT'S JURISDICTIONAL BRIEF McGUIREWOODS LLP David M. Wells Florida Bar No Donald D. Anderson Florida Bar No Bryan S. Gowdy Florida Bar No N. Laura St., Suite 3300 Jacksonville, FL Tel: Fax: Attorneys for Respondent The St. Joe Company

2 TABLE OF CONTENTS Page Table of Contents... i, ii Table of Citations... iii, iv Statement of the Case and Facts... 1 Summary of the Argument... 1 Argument... 2 I. The Opinion s Class Certification and Predominance Analyses Do Not Conflict with Other Decisions... 2 A. Consistent with Other Florida Decisions, the First District Held that Each Plaintiff Was Required to Show that Proof of their Own Individual Case Would Prove the Cases of Other Class Members... 2 B. The Opinion Does Not Conflict with Any Decisions Like the Opinion, the Allegedly Conflicting Decisions Required Plaintiffs to Show that they had an Actual Method by which they could Prove Class-Wide Impact The First District Held that the Predominant Issue of Causation Would Vary Parcel to Parcel Because of Alternative Sources, not that Plaintiffs had to Disprove the Alternative Sources The First District Properly Considered the Lack of Any Actual Contamination on Plaintiffs Individual Parcels to Determine that Common Issues Did Not Predominate... 6 i

3 TABLE OF CONTENTS (cont'd) Page II. III. No Florida Court Has Ever Held That a Plaintiff Has a Cause of Action Based on Contamination of Another s Property... 8 Even if Plaintiffs Show a Conflict, This Court Should Decline to Exercise Its Jurisdiction... 9 Conclusion Certificate of Service Certificate of Compliance ii

4 TABLE OF CITATIONS Page CASES Baptist Hosp. of Miami, Inc. v. Demario, 661 So. 2d 319 (Fla. 3d DCA 1995)... 5 Bouchard Transp. Co. v. Updegraff, 807 So. 2d 768 (Fla. 2d DCA 2002)...3, 6, 8 Chase Manhattan Mortgage Corp. v. Porcher, 898 So.2d 153 (Fla. 4th DCA 2005)... 3 Earnest v. Amoco Oil Co., 859 So. 2d 1255 (Fla. 1st DCA 2003)... 2 Execu-Tech Business Sys., Inc. v. Appleton Papers Inc., 743 So. 2d 19 (Fla. 4th DCA 1999)... 4, 5 Florida Power & Light Co. v. Jennings, 518 So. 2d 895 (Fla. 1987)... 8, 9 Freedom Life Ins. Co. of Am. v. Wallant, 891 So. 2d 1109 (Fla. 4th DCA 2004)...3, 4, 7, 10 Hoechest Celanese Corp. v. Fry, 753 So. 2d 626 (Fla. 5th DCA 2000)... 6 Humana, Inc. v. Castillo, 728 So. 2d 261 (Fla. 2d DCA 1999)... Jones v. Trawick, 75 So. 2d 785 (Fla. 1954)... 9 Oce Printing Sys. USA, Inc. v. Mailers Data Servs., Inc., 760 So. 2d 1037 (Fla. 2d DCA 2000)... 4, 5 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 1 iii

5 TABLE OF CITATIONS (cont'd) Page OTHER AUTHORITY 7A Wright, Miller, and Kane, Federal Practice and Procedure, 1778 (2d ed. 1986) (3), Florida Statutes... 8 Fla. R. Civ. P (a)(2) Fla. R. Civ. P (b)(3)... 1 iv

6 STATEMENT OF THE CASE AND FACTS The First District issued its opinion on July 29, 2005 ( Opinion ). The issue of this Court's conflict jurisdiction depends entirely on what appears in the "four corners" of the Opinion. Reaves v. State, 485 So. 2d 829, 830 & n.3 (Fla. 1986). The nine-page Opinion speaks for itself. Respondent objects to Petitioners statement of the case and facts insofar as it differs from the Opinion. This brief refers to Respondent as St. Joe and Petitioners as Plaintiffs. SUMMARY OF THE ARGUMENT Plaintiffs incorrectly claim that the Opinion conflicts with decisions of the Second and Fourth Districts because, they allege, it required them to "provide evidence" or "proof" of their individual claims at the class certification stage. No conflict exists because the Opinion did not require Plaintiffs to prove their individual claims. Instead, consistent with the decisions they claim are in conflict, the First District merely considered evidence on the merits (together with elements of the underlying claims and defenses) in deciding that Plaintiffs did not satisfy the predominance prong of Fla. R. Civ. P (b)(3) -- that is, Plaintiffs did not show that the method by which they intended to prove their own individual cases would also necessarily prove the cases for each one of the other members of the class. Plaintiffs also claim that the Opinion conflicts with other decisions insofar as it held that Plaintiffs had to show actual contamination of their properties to 1

7 establish liability under their six separate legal theories. The two decisions they cite as conflicting do not address this holding from the Opinion. One was an eminent domain case, and the other was a suit to enjoin placement of a cemetery. ARGUMENT I. THE OPINION S CLASS CERTIFICATION AND PREDOMINANCE ANALYSES DO NOT CONFLICT WITH OTHER DECISIONS. A. Consistent with Other Florida Decisions, the First District Held that Each Plaintiff Was Required to Show that Proof of her Own Individual Case Would Prove the Cases of Other Class Members. Earnest, a First District decision and the primary case cited in the Opinion, aptly describes the process for evaluating whether common issues predominate and whether class certification is appropriate: [A] trial court must envision how a class action trial would proceed. Under this [predominance] analysis, the trial court must determine whether the purported class representatives can prove their own individual cases and, by so doing, necessarily prove the cases of each one of the thousands of other members of the class. If they cannot, a class should not be certified. Earnest v. Amoco Oil Co., 859 So. 2d 1255, 1258 (Fla. 1st DCA 2003) (internal quotes omitted). Moreover, a court may consider evidence "beyond the pleadings" to "determine how disputed issues might be addressed on a classwide basis." Id. The Opinion applied this same standard but stated it more succinctly: Each party must be able to prove their own individual case, and in so doing, prove the case of the other unnamed class members. See Earnest, 859 So. 2d at If Plaintiffs must still present a great deal of individualized proof or argue individualized legal points to 2

8 Op establish most or all of the elements of their claims, class certification is not appropriate. Other Florida decisions, including Freedom Life (cited by Plaintiffs as being in "conflict"), universally have accepted these basic maxims stated in Earnest and the Opinion. Freedom Life Ins. Co. of Am. v. Wallant, 891 So. 2d 1109, 1114 (Fla. 4th DCA 2004) (cited at Pets.' Juris. Br. 5) ("It is to be determined whether the purported class representatives can prove their own individual cases and, by doing so, necessarily prove the cases for each one of the other members of the class." (internal punctuation omitted)); id. at 1115 ("[A] court may still consider evidence of the merits... in determining whether the prerequisites for class certification have been established."); Humana, Inc. v. Castillo, 728 So. 2d 261, 266 (Fla. 2d DCA 1999) ("[T]he trial court must determine whether the purported class representatives can prove their own individual cases and, by so doing, necessarily prove the cases for each... [the] other members of the class. If they cannot, a class should not be certified."); Chase Manhattan Mortgage Corp. v. Porcher, 898 So.2d 153, 158 (Fla. 4th DCA 2005) (same); Bouchard Transp. Co. v. Updegraff, 807 So. 2d 768, 771 (Fla. 2d DCA 2002) (same). B. The Opinion Does Not Conflict with Any Decisions. Notwithstanding the overwhelming authority supporting the Opinion s holding, Plaintiffs claim an "express and direct conflict" between the Opinion and 3

9 three decisions because the First District purportedly required them "to offer evidence to prove their own claims." Pets.' Juris. Br. 4-5 (citing Freedom Life, 891 So. 2d at ; Oce Printing Sys. USA, Inc. v. Mailers Data Servs., Inc., 760 So. 2d 1037, 1045 (Fla. 2d DCA 2000); Execu-Tech Business Sys., Inc. v. Appleton Papers Inc., 743 So. 2d 19, 21 (Fla. 4th DCA 1999)). Plaintiffs mischaracterize both the Opinion and the decisions with which they say it conflicts. 1. Like the Opinion, the Allegedly Conflicting Decisions Required or Relied on an Actual Method to Prove Class-Wide Impact. Plaintiffs argue that the Opinion conflicts with other decisions in requiring them to "actually conduct" their proposed mass appraisal to prove class-wide impact (i.e., "stigma" damages). Pets.' Juris. Br. 5. But, like here, in two of the allegedly conflicting decisions, the courts required or relied on actual methods to prove class-wide impact and class certification. 1 Oce Printing, 760 So. 2d at 1043; Execu-Tech Business, 743 So. 2d at 21, 22. Rather than being in conflict, Execu-Tech Business is strikingly similar to the Opinion here. There, the plaintiffs' expert testified that an incidence analysis "could be used" to show class-wide impact, but his analysis was based on "simple assumptions" and had "little support in the real world." Id. at 21 (emphasis added). The court held that plaintiffs had failed to show a "reasonable methodology for 1 The third allegedly conflicting decision, Freedom Life, did not address the issue of a suitable method for proving class-wide impact So. 2d at

10 generalized proof of class-wide impact and damages." Id. at 21, 22. Similarly, here, Plaintiffs' expert (Dr. Friedman) opined that a regression analysis "could be done" to measure the class-wide impact and damages. Op. 5-6, 7-8 (emphasis added). But his method was worse than one with "little support in the real world"; it was non-existent and purely theoretical. Id. Plaintiffs produced no evidence that it was accepted in the relevant property appraiser community as valid. 2 Id. Thus, the First District properly rejected it as insufficient to prove common impact. Id. Plaintiffs failure to conduct an actual method deprived the lower courts and St. Joe of a meaningful way to evaluate whether Plaintiffs, in fact, could prove this case on a class-wide basis. Plaintiffs approach was trust us, we can prove it. Neither Execu-Tech Business, Oce Printing, nor any other case suggests, much less expressly decides, that such an approach is sufficient for a party to prove common, class-wide impact. Therefore, the Opinion s rejection of this trust us method does not conflict with other decisions. 3 2 By comparison, the other pertinent so-called "conflicting" decision accepted as sufficient the plaintiffs method for proving common impact apparently because it was grounded on sound economic principles. Oce Printing, 760 So. 2d at 1043 (emphasis added). 3 To certify a class based on Plaintiffs' "trust us" method would conflict with the policy of those cases recognizing that the burdens and costs of trying a class action are significantly higher than an ordinary suit. See Baptist Hosp. of Miami, Inc. v. Demario, 661 So. 2d 319, 321 (Fla. 3d DCA 1995). 5

11 2. The First District Held that the Predominant Issue of Causation Would Vary Parcel to Parcel Because of Alternative Sources, not that Plaintiffs had to Disprove the Alternative Sources. Plaintiffs misstate the Opinion insofar as they claim it required them to "disprove" alternative sources of contamination. Pets.' Juris. Br. 5. It did not. Instead, the Opinion held that "the issue of causation would likely vary with each class member", as "evidence was produced that numerous other substances or items existed that could cause lead and arsenic contamination", and "[t]hus, [Plaintiffs] failed to prove how each class representative would be able to prove his or her own claim, thereby proving the claims of the unnamed class members." Op. 8, 9 (emphasis added). This holding was consistent with other cases holding that, if the issue of causation varies among class members, class certification is precluded. See Hoechest Celanese Corp. v. Fry, 753 So. 2d 626, (Fla. 5th DCA 2000); Bouchard Transp. Co. v. Updegraff, 807 So. 2d 768, 771 (Fla. 2d DCA 2002). Nothing in the three decisions cited by Plaintiffs suggests a contrary holding or result; in fact, the three decisions do not even discuss causation. 3. The First District Properly Considered the Lack of Any Actual Contamination on Plaintiffs Individual Parcels to Determine that Common Issues Did Not Predominate. Plaintiffs take out of context the Opinion s statement that none of the [Plaintiffs] testified that dumping occurred on their property, much less that their property was contaminated. Op. 6. They suggest that the statement indicates that 6

12 that the First District required them to prove that their own properties were actually contaminated. Pets. Juris. Br To the contrary, the First District considered this issue only in determining whether Plaintiffs had met their burden of showing that common issues predominate. This consideration of the merits was consistent with the decisions cited by Plaintiff, such as Freedom Life, 891 So. 2d at 1115 (cited at Pets Juris. Br. 5) (holding that a court may consider merits issues because they are often interwined with class certification issues). In Freedom Life, the trial court found a contract provision to be unconscionable and commented on that finding in its class certification order. Id. at On appeal, the defendants argued that the trial court had improperly pass[ed] on the merits. Id. at The Fourth District disagreed, holding that the court could still consider evidence on the merits of the case, such as whether procedural unconscionability exists, in determining whether the prerequisites for class certification have been established. Id. at 1115 (emphasis added). Similarly, in this environmental case, it was proper for the First District to consider whether actual contamination existed because, for all six of Plaintiffs claims, St. Joe would be liable to the entire class only if it actually contaminated each class member s parcel. Op. 6 & n.1. Plaintiffs presented no evidence of how they would prove that each class member s parcel was contaminated, and this lack of actual contamination extended to their own individual parcels. Id. at 3, 4, 7

13 6. The First District commented on Plaintiffs failure to show actual contamination because the individual differences between themselves (i.e., class members without contaminated parcels) and class members with contaminated parcels were fatal to class certification. As the Opinion noted: Because individualized factual determinations will be necessary to determine whether a class member's property is contaminated and, if so, what caused the contamination, the trial court abused its discretion by finding that common issues predominate. Id.; see Bouchard, 807 So. 2d at (reversing certification of classes consisting of properties not physically invaded by oil spill). Thus, the First District s consideration of this issue did not conflict with other decisions. II. NO FLORIDA COURT HAS EVER HELD THAT A PLAINTIFF HAS A CAUSE OF ACTION BASED ON CONTAMINATION OF ANOTHER S PROPERTY. Plaintiffs six claims are trespass, unjust enrichment, nuisance, strict liability, negligence, and a claim under Section (3), Florida Statutes. Op. 2. As Plaintiffs agree, the Opinion held that, under each of these claims, Plaintiffs were required to prove that St. Joe contaminated or physically harmed their individual properties. Id. at 6 & n.1; Pets. Juris. Br. 6. In other words, it held that Plaintiffs could not state a cause of action and recover stigma damages based on nothing more than the alleged contamination of another putative class member s property. Plaintiffs argue that this holding conflicts with two decisions: Florida 8

14 Power & Light Co. v. Jennings, 518 So. 2d 895 (Fla. 1987) and Jones v. Trawick, 75 So. 2d 785 (Fla. 1954). Neither Florida Power, Jones, nor any other Florida decision holds that a plaintiff has a cause of action because another person s property is contaminated. Indeed, Florida Power did not involve allegations of contamination or any of the six claims made by Plaintiffs. It was an eminent domain case. 518 So. 2d at 895. Thus, liability had already been established, and the only issue was whether evidence of public fear was admissible to value the taken land. Id. By contrast, here, St. Joe s liability has not been established, and the issue is not admissibility but instead goes to St. Joe s liability --- that is, whether Plaintiffs must prove actual contamination to hold St. Joe liable. Florida Power and the Opinion do not conflict, as the two decisions concern wholly different facts and legal issues. Nor does the Opinion conflict with Jones. There, the plaintiffs were neither alleging contamination nor seeking any type of money damages, stigma or otherwise. Rather, they successfully sought to enjoin the placement of a proposed cemetery under a nuisance theory. 75 So. 2d at 786. III. EVEN IF PLAINTIFFS SHOW A CONFLICT, THIS COURT SHOULD DECLINE TO EXERCISE ITS JURISDICTION. Plaintiffs argue that this case is "perfect" for resolving "two competing procedural approaches." Pets.' Br. 7. Plaintiffs' "approach" allows for class certification if common issues merely exist but do not predominate. See id. at 8 9

15 (noting common issues but never explaining how they predominate per decisions cited supra at 3). This approach consistently has been rejected because it impermissibly conflates Rule 1.220(a)(2)'s requirement that common issues exist with Rule 1.220(b)(3)'s requirement that common issues predominate. 4 Indeed, Plaintiffs fail to cite a single case to support their approach. This Court's scarce resources should not be wasted on such a clearly barred approach. Plaintiffs want to re-draft Rule to erase the predominance requirement. The rule-making process, not this case, is the method for resolving these "competing approaches." Review is also ill advised on the stigma damages issue, as this is an appeal of an interlocutory order addressing issues of class certification and predominance. The ultimate result of the Opinion does not turn on the First District's holding on stigma damages. As the Opinion expressly noted, Even if the concept of stigma damages [were] applicable,.... [Plaintiffs] failed to prove there was an existing methodology to prove stigma damages on a class-wide basis. Op This Court would be better served to examine this issue in another appeal where the issue is dispositive. CONCLUSION This Court should deny Plaintiffs' petition requesting review. 4 E.g., Freedom Life, 891 So. 2d at (noting predominance is "far more demanding" than mere commonality); 7A Wright, Miller, and Kane, Federal Practice and Procedure, 1778, at & n.4 (2d ed. 1986) (noting the law is "clear" that "it is not sufficient that common questions merely exist"). 10

16 McGuireWoods LLP By:s/Bryan S. Gowdy David M. Wells Florida Bar No Donald D. Anderson Florida Bar No Bryan S. Gowdy Florida Bar No N. Laura St., Suite 3300 Jacksonville, FL Tel: Fax: Attorneys for Appellant The St. Joe Company 11

17 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail to the following on October 14, 2005: John S. Mills MILLS & CARLIN, P.A. 865 May Street Jacksonville, Florida J. Michael Papantonio, Esquire Steven A. Medina, Esquire Kathleen P. Toolan, Esquire LEVIN, PAPANTONIO, THOMAS, MITCHELL ECHSNER & PROCTOR, P.A. 316 S. Baylen Street, Suite 600 Pensacola, Florida Robert G. Kerrigan, Esquire KERRIGAN, ESTESS, RANKIN & MCLEOD, LLP 400 East Government Street P. O. Box Pensacola, FL Lawrence Keefe, Esquire ANCHORS, FOSTER, MCINNIS & KEEFE, P.A. 909 Mar Walt Drive, Suite 1014 Fort Walton Beach, FL Steven R. Andrews, Esquire Tracy P. Moye, Esquire ANDREWS MOYE, LLC 822 North Monroe Street Tallahassee, FL s/bryan S. Gowdy ATTORNEY 12

18 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing brief uses Times New Roman 14- point font and complies with the font requirements of Rule 9.210(a)(2), Florida Rules of Appellate Procedure. s/bryan S. Gowdy Bryan S. Gowdy, Esquire \\COM\