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NOT TO BE PUBLISHED 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

v. APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE MITC H 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.- 2

- 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 cause d property damage. It was later

revealed that this pump ing 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 th e

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 neigh borhood. 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, o nly that it was possible,- 3

-

Louisvil le 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

le gal 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 t he 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.- 4

-

satisfied before a clas s 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 requ irements .” 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 fai led to

meet the first two factors of CR 23.01, numerosity and commonality. We will first- 5

-

address numerosity. The trial court held that Appellant’s identification of around

150 different properties, but only seventeen individuals, 3 that could have been

a ffected 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 impract icable 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 showin g 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 disp ersion

. 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 ha ve 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.- 6

-

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 conclusio n. 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

. . . h ighlighted 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 cen tral 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 o f 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- 7

-

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 di sagree 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 quotat ion 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

lit igation. 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 comple tely 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- 8

-

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 memb ers, 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 r equirement, 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 th e 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.- 9

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BRIEF S FOR APPELLANT:

Peter J. Jannace

Andrew E. Mize Louisville, Kentucky BRIEF FOR APPELLEE S :

Adam T. Goebel Angela S. Fetcher

Jamila Carter Louisville, Kentucky