Peggy Green, et al., Respondents v. Fred Weber, Inc., Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Peggy Green, et al., Respondents v. Fred Weber, Inc., Appellant. Case Number: ED89176 Handdown Date: 07/17/2007 Appeal From: Circuit Court of the City of St. Louis, Hon. Thomas C. Grady Counsel for Appellant: Lawrence F. Hartstein Counsel for Respondent: David C. Knieriem and J. Christian Goeke Opinion Summary: Fred Weber, Inc. appeals the judgment granting class action certification to Peggy Green and other residents. The residents own homes near a quarry operated by Weber. They sued Weber for private nuisance alleging explosions at the quarry cause vibrations substantially impairing the use of their property. The trial court certified a class, defining it to include residential homeowners within two miles of Weber's quarry, residing therein within five years preceding the petition. REVERSED. Division Four holds: The impact of Weber's blasting on each proposed class member is likely to be different, affected by a proposed class member's distance from Weber's quarry and the character of his own property. Consequently, because proof of a prima facie case of private nuisance would require each proposed class member to present varying evidence, whether Weber's use of its land is unreasonable, unusual or unnatural is an individual inquiry. Therefore, no common questions predominate and the trial court abused its discretion in finding class action certification proper under Rule 52.08(b)(3). Citation:

Opinion Author: Roy L. Richter, Presiding Judge Opinion Vote: REVERSED. Crane, J., and Sullivan, J., concur. Opinion: Fred Weber, Inc. ("Weber") appeals the judgment granting class action certification to Peggy Green, et. al. ("Residents") based on private nuisance. We reverse. I. BACKGROUND Residents own homes near a quarry operated by Weber. In their claim for private nuisance, Residents alleged that ongoing explosions at Weber's quarry cause vibrations that substantially impair Residents' use of their property. After hearing testimony, the trial court certified a class, defining it to include residential homeowners within two miles of Weber's quarry, residing therein within five years preceding the petition. The trial court further stated that there were questions common to the class. Weber appeals.(FN1) II. DISCUSSION Decisions regarding class certification under Rule 52.08 lie within the sound discretion of the trial court. State ex rel. Union Planters Bank, N.A. v. Kendrick, 142 S.W.3d 729, 735 (Mo. banc 2004). We review an order granting or denying class certification for abuse of discretion. Craft v. Philip Morris Companies, Inc., 190 S.W.3d 368, 376 (Mo. App. E.D. 2005). Rule 52.08 governs class certification. Doyle v. Fluor Corp., 199 S.W.3d 784, 788 (Mo. App. E.D. 2006). The following prerequisites must be met before a court may certify a class: 1) the class must be so numerous that joinder of all members is impracticable; 2) there must be questions of law or fact common to the class; 3) the claims or defenses of the representative parties must be typical of the claims or defenses of the class; and 4) the representative parties must be able to fairly and adequately protect the class' interests. Rule 52.08(a).

After a proposed class satisfies the prerequisites of Rule 52.08(a), a court must determine whether class certification is appropriate under Rule 52.08(b). Doyle, 199 S.W.3d at 788. Here, Residents alleged Rule 52.08(b)(1) and 52.08(b)(3) supported the existence of a class. The trial court found class certification proper under Rule 52.08(b)(3). Weber raises a number of points on appeal. Weber first alleges that the trial court erred in granting Residents' motion for class certification under Rule 52.08(b)(3) because no questions of law or fact predominated in that there is no issue whose resolution will have a predominating effect on the claim of each individual proposed class member. We agree. Because we find this point dispositive, we need not discuss Weber's remaining points of error. Rule 52.08(b)(3) indicates class certification is proper when a court finds that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." This Court has earlier addressed how a court may determine whether a question is common or individual in making a predominance determination. A court must examine the "nature of the evidence that will suffice to resolve the question." Craft, 190 S.W.3d at 382. If, in order to make a prima facie showing on a question, the members of a proposed class will need to present evidence varying among members, that question is individual. Id. If, however, the same evidence is sufficient for each member's prima facie showing, then such a question is common. Id. The trial court found four questions common to the proposed class: 1) "Whether [Weber's] blasting activity caused noise and vibrations to pass through the earth and through [Residents'] property;" 2) "Whether that blasting constituted an unreasonable, unusual, or unnatural use;" 3) "Whether that use substantially impaired [Residents'] right to peaceful enjoyment of their property[;] and 4) "Whether [Residents] were damaged thereby." We address each in turn.(FN2) The trial court's first, third and fourth questions regarding whether Weber's blasting caused noise and vibration to travel through Residents' property, whether Weber's blasting infringed on Residents' right to peaceful enjoyment and whether Residents were damaged, respectively, are all individual questions. The resolution of each question would require differing evidence, unique to every proposed class member. Because proof of a prima facie case would require the proposed class members to present varying evidence, these questions are not common. See Id. Whether the trial court's second question is individual or common is less straightforward. Weber asserts that an evaluation of whether a defendant's use of his land is unreasonable, unusual, or unnatural depends on the way in which a

defendant's use affects a plaintiff. Residents, conversely, allege that the inquiry is only whether a defendant's use is unreasonable on his own property, without regard to a specific plaintiff. Residents misconstrue Missouri law. In Rychnovsky v. Cole, 119 S.W.3d 204, 209-10 (Mo. App. W.D. 2003), the Western District stated that "[a]lthough the strict definition of nuisance refers to the defendant's unreasonable use of his property, the primary focus is on defendant's unreasonable interference with the use and enjoyment of plaintiff's land." Whether a defendant acts unreasonably is, therefore, in part, dependent on a plaintiff's injury. Here, the impact of Weber's land use on each proposed class member is likely to differ, affected by a proposed class member's distance from Weber's quarry and the character of his own property. Proof of a prima facie case of private nuisance would require each proposed class member to present varying evidence. Consequently, whether Weber's use of its land is unreasonable, unusual, or unnatural is an individual inquiry. In sum, the questions defined by the trial court are all individual. Therefore, no common questions predominate. Moreover, Residents have also failed to show that class certification was proper under Rule 52.08(b)(1), which requires that "the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class . . . ." Because the issues of this case are individual in nature, any judgment entered for one proposed class member on a private nuisance theory would have no bearing on future suits by other members. Accordingly, the trial court abused its discretion in finding that common questions of law or fact predominated and therefore erred in certifying a class. Point granted. III. CONCLUSION The judgment is reversed. Footnotes: FN1.This Court has jurisdiction pursuant to Section 512.020(3) RSMo Cum. Supp. 2004. FN2."Nuisance is the unreasonable, unusual, or unnatural use of another's property substantially impairing that individual's right to peacefully enjoy his property." Doyle, 199 S.W.3d at 789.

Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.