Wednesday, June 24, 2009

Interesting Dissent by Judge Rothenberg

In Florida Department of Agriculture and Consumer Services, et al. v. In Re: Citrus Canker Litigation (3D08-3278) the Third District issued an opinion only stating "Affirmed." Judge Rothenberg wrote a seven page dissent. Judge Rothenberg disagreed on the merits and would have reversed for failure to comply with a prior mandate of the court. The dissent stated:

The Miami-Dade County homeowners initially pursued their citrus canker litigation as members of a class action certified in Broward County. The Fourth District Court of Appeal astutely recognized that venue for inverse condemnation rests in the county where the trees were located, and ordered that the Miami-Dade County homeowners be deleted from the Broward County class action litigation. See Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 829 So. 2d 928 (Fla. 4th DCA 2002). Thereafter, on April 4, 2003, the Broward circuit court transferred the claims involving the Miami-Dade County homeowners to the Miami-Dade circuit court. Instead of conducting its own independent certification hearing, the Miami-Dade circuit court adopted the Broward circuit court’s certification order. On October 25, 2006, this Court granted the Department’s petition for writ of certiorari, quashed the trial court’s order denying the Department’s motion to decertify the Miami-Dade County class, and ordered the Miami-Dade circuit court to conduct a class certification hearing. Fla. Dep’t of Agric. v. Citrus Canker Litig., 941 So. 2d 461 (Fla. 3d DCA 2006). This Court issued its mandate on November 16, 2006.

Despite this Court’s mandate in 2006 requiring that a class certification hearing be conducted, no such hearing has taken place for over two years, and on December 1, 2008, the Miami-Dade circuit court stayed the proceedings for an indeterminate period of time pending the outcome of the Broward County litigation, including the appellate process. The Miami-Dade County homeowners’ failure to move towards class certification and the Miami-Dade circuit court’s failure to hold its independent class certification hearing not only ignores this Court’s mandate issued in 2006, it ignores both section 73.071 and rule 1.220(d).


In the instant case, the Fourth District Court of Appeal ordered the Broward circuit court to delete the Miami-Dade County homeowners from the Broward County class action litigation in 2002. The Miami-Dade County homeowners’ class proceedings were transferred to Miami-Dade circuit court on April 4, 2003. To date, six years after the class was transferred to Miami-Dade circuit court and two-and-a-half years after this Court ordered the Miami-Dade circuit court to conduct the class certification proceeding, the Miami-Dade County homeowners have taken no steps to do so. The stay issued by the Miami-Dade circuit court, which will indefinitely delay the class certification process, is a clear abuse of discretion, thwarts the directives of section 73.071 and rule 1.220(d), flies in the face of the "soon as practicable" requirement of rule 1.220(d), and defeats the basic principles of fundamental fairness and the orderly administration of justice.

At this stage of the proceedings, the stay makes little, if any, sense. The class certification process not only tests the basic requirements of commonality and numerosity, it tests the adequacy of the class representatives and class counsel, which differ from, and are not dependent on, the rulings made by the Broward circuit court, the Fourth District Court of Appeal, or ultimately the Florida Supreme Court. Regardless of the outcome in the Broward County citrus canker class action lawsuit, the Miami-Dade County class litigation should proceed with certification of its own class. To wait several more years before that process even begins is a clear abuse of discretion requiring reversal.

Accordingly, I dissent.


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