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NOT TO BE PUBLISHED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 MITCH 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.
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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 caused property damage. It was later 

revealed that this pumping 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 the 

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 neighborhood. 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, only that it was possible,
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Louisville 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 

legal 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 the 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. 
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satisfied before a class 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 requirements.” 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 failed to 

meet the first two factors of CR 23.01, numerosity and commonality. We will first 
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address numerosity. The trial court held that Appellant’s identification of around 

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

affected 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 impracticable 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 showing 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 dispersion. 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 have 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.
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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 conclusion. 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 . . . highlighted 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 central 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 of 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 
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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 disagree 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 quotation 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 

litigation. 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 completely 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 
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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 members, 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 requirement, 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 the 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.
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BRIEFS FOR APPELLANT:

Peter J. Jannace

Andrew E. Mize

Louisville, Kentucky

BRIEF FOR APPELLEES:

Adam T. Goebel

Angela S. Fetcher

Jamila Carter

Louisville, Kentucky