Two couples who own homes in central Florida attempted to bring a class action against a homebuilder, stemming from alleged violations of Florida's building code. Section 553.84, Florida Statutes, provides for such a private cause of action, but also provides a statutory defense for homebuilders where: (1) the homebuilder obtained any required building permits, and the appropriate agency approved the plans; (2) the project passed all inspections required under the Code; and (3) there was no personal injury or damage to property other than the property that is the subject of the permits, plans, and inspections. This defense, however, does not apply if the homebuilder knew or should have known of the code violation.

In this case, the representative plaintiffs alleged violations of ASTM standards incorporated into the Florida building code, which standards addressed proper application of stucco to the exterior of homes.  Specifically, the representative plaintiffs alleged that many of the homes this builder constructed in Florida between April 18, 2006 and April 18, 2016 had one or more of three stucco-related code violations that resulted in stucco cracking. The alleged violations related to the spacing between the stucco-coated portions and other portions of the exterior not covered by stucco and/or an alleged lack of proper control joints within the stucco-coated portions of the homes' exteriors.

Based on these allegations, the representative plaintiffs sought to bring a corresponding class action under Rule 23(b)(3) – i.e., an alleged class in which common questions of law or fact predominate over questions affecting only individual members, and as to which a class action is a superior means of adjudicating the dispute.

The district court disagreed and denied plaintiffs' motion to certify a class on several grounds. First, it found that the class failed Rule 23's implicit ascertainability requirement because the defendant's own records did not necessarily reveal which homeowners had such stucco problems and did not account for subsequent purchasers. In addition, resolving the ascertainability issue through self-identification of class members would have been administratively infeasible and would have resulted in individualized mini-trials to determine whether each potential claimant actually fell within the proposed class definition.

Second, the asserted class failed the Rule 23(a)'s commonality requirement. Commonality requires that the class members have suffered the same injury (not just a violation of the same provision of the law).  Plaintiffs had not attempted to show, and likely could not show, through common proof, that all potential class members' stucco issues were caused by one or more of the alleged ASTM violations. As the district court explained, "merely showing that a house has Code violations and cracked stucco is not enough to establish that the former caused the latter."

Third and finally, the class failed Rule 23(b)(3)'s predominance and superiority requirements because each instance of alleged stucco cracking would have to be individually examined – not established through common proof – and thus individualized issues would predominate. Further, there were other individualized issues such as the potential applicability of Florida's pertinent five-year statute of limitations for actions founded on the construction of improvements to real property. Superiority failed for largely the same reasons because where common issues of law or fact do not predominate, a class action will not be a superior vehicle for adjudicating the claims at issue.

For all of these reasons, the district court denied plaintiffs' class-certification motion.

Gazzara v. Pulte Home Corp., No. 616CV657ORL31TBS, 2017 WL 1331364 (M.D. Fla. Apr. 11, 2017).

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