SEVEN HILLS v. BENTLEY

LEWIS, J.

In this consolidated action, appellants, Seven Hills, Inc., Adam Smith Enterprises, Inc., and City of Altamonte Springs, challenge the trial court's approval of a class settlement in which all appellants are members. The settlement resolved the class claims that appellee Florida Power Corporation ("FPC") exceeded the scope of its written easements over approximately 6,293 parcels of land located throughout the State of Florida by installing fiber optic communications lines on its easements and by permitting other entities to use the communications capacity.

Appellants raise three issues on appeal. Appellants first argue that the trial court lacked subject matter jurisdiction in this action with regard to all real property located outside of the Second Judicial Circuit, thereby rendering the class settlement a nullity. We affirm on this issue and hold that because the underlying major question in this action did not involve title to the class members' property, the trial court did have subject matter jurisdiction. In their second argument, appellants contend that the trial court erred in certifying a settlement class under Florida Rule of Civil Procedure 1.220(b)(1)(A). Within this argument, appellants also contend that the trial court erred in making the settlement class mandatory. Although we conclude that the trial court erred in certifying the settlement class under rule 1.220(b)(1)(A), we find such error to be harmless and affirm as to the certification under Florida Rule of Civil Procedure 1.220(b)(2) and Florida Rule of Civil Procedure 1.220(b)(3). However, because the trial court relied solely on rule 1.220(b)(1)(A) in making the class mandatory, we reverse the Final Judgment and remand for further proceedings. Finally, appellants argue that the trial court erred in approving the class settlement. Because we reverse and remand the Final Judgment, we decline to address this third issue. As to appellants Foundation to Fight Corruption and Jimmy Hatcher, we affirm without further discussion the trial court's denial of their Motions to Intervene as appellants failed to object timely to the settlement and as Jimmy Hatcher was not a class member. Therefore, appellants' arguments are not cognizable on appeal.

FPC began acquiring its easements as early as the 1950s under its charter for electric transmission and distribution. The typical form of the easements granted FPC, its successors and assigns, the right:

to construct, operate and maintain for such period of time as it may use the same or until the use thereof is abandoned, a single pole, H-frame and/or tower line for the transmission and distribution of electricity, including necessary communication and other wires, poles, guys, anchors, ground connections, attachments, fixtures, equipment and accessories, desirable in connection therewith over, upon, and across the following described land . . . together with the right to patrol, inspect, alter, improve, repair, rebuild or remove such lines, equipment and accessories, including the right to increase or decrease the number of wires and voltage, together with all the rights and privileges reasonably necessary or convenient for the enjoyment or use thereof for the purposes above described, . . . .

Upon their realization that FPC had installed fiber optic strands in its electric lines on its easements in twenty-three counties, a group of plaintiffs, who owned land within the Second Judicial Circuit, filed a lawsuit against appellees, averring that, "[t]he allegations which follow concern the [d]efendants' improper use of electric transmission easements for the leasing and licensing to third persons of unrelated, non-electric general fiber optic telecommunications." In their complaint, the plaintiffs, who requested class certification pursuant to Florida Rule of Civil Procedure 1.220, sought a declaratory judgment establishing the rights of the parties pursuant to the easements and injunctive relief. The complaint also included a trespass count and an unlawful entry and unlawful detainer count. In their amended complaint, the plaintiffs added an unjust enrichment cause of action and a fourth defendant, Progress Telecommunications Corporation ("PTC"), which is wholly owned by the same parent corporation that owns FPC. Following PTC's incorporation in 1998, FPC transferred ownership of its fiber optic communications system to PTC.

On January 7, 2000, following the parties' unsuccessful first attempt at mediation, the trial court certified a mandatory class pursuant to Florida Rule of Civil Procedure 1.220(b)(1)(A), finding that "[a] class action is appropriate in the instant case because prosecution of separate claims by individual members of the class would create a risk of inconsistent or varying adjudications concerning individual members of the class which would establish incompatible standards of conduct for the defendant." While the defendants' appeal regarding the class certification was pending before this Court, the parties were referred back to mediation, which lasted three days and resulted in the settlement agreement. This Court then stayed further appellate proceedings and relinquished its jurisdiction to the trial court to consider settlement class certification and approval of the class settlement.

The FPC settlement class includes all persons, except the owners of public and railroad rights-of-way occupied or used by FPC or PTC, who, on February 1, 2001, owned in fee or owned a fee interest in real property located in Florida, as reflected in the public ownership records, over which property FPC owns an easement that does not expressly provide for the installation and use of fiber optic communications wire(s), and which is traversed by a right-of-way containing fiber optic wire(s) as of December 31, 2000. The agreement provides for a mandatory class in order to resolve the class members' declaratory and injunctive relief claims. However, class members were permitted to opt out of the damages portion of the class to pursue their own damages within a one-year safe harbor period without having to prove FPC's liability. For those class members who chose to remain in the damages portion of the class, FPC will pay each member $12,000 per linear mile (or $2.27 per foot) of FPC's easement right-of-way, which is to escalate at a rate of 6.425% per year from June 9, 2000, through the date that the final judgment becomes final. Pursuant to the agreement, FPC assumed the class members' responsibility of identifying and notifying the entire class.

Regarding telecommunications use, the settlement agreement declares that FPC has the right to use all of its easements for general telecommunications use, including the licensing or leasing of fiber optic wires or capacity or providing other telecommunications services to telecommunications providers and customers. The agreement sets forth that there shall be no restriction on the number of telecommunications wires utilized by appellees on the easements. These rights will continue even if electricity is no longer being transmitted over the electric transmission or distribution lines unless FPC and/or its successors and assigns legally abandon the easements. Yet, no new additional ground or subsurface structure may be erected for telecommunications use unrelated to electric transmission or distribution. The trial court preliminarily approved the settlement in May 2000, and required that notice of the settlement be provided to the class members. FPC subsequently notified all class members by mail and through publication. Out of 7,069 class members, only 134 opted out of the damages portion of the class, including appellants.

During the settlement fairness hearing, which was conducted on June 22, June 28, and November 13, 2001, Barry Diskin, an expert witness who is a real estate appraiser and Florida State University professor, opined that $12,000 per mile was a reasonable valuation. Harry Purnell, a practicing attorney, opined that the attorney's fees were reasonable as well. While appellants cross-examined appellees' witnesses, none of the appellants offered any evidence to refute such testimony.

Appellants, Seven Hills, Inc., Adam Smith Enterprises, Inc., and City of Altamonte Springs, filed timely objections to the settlement. Following lengthy arguments by all sides, the trial court entered its Final Judgment Approving Class Settlement and Setting Attorney's Fees on November 16, 2001. Regarding the propriety of class treatment, the trial court certified the settlement class under rules 1.220(b)(1)(A) and (b)(2) for purposes of declaratory and injunctive relief claims and under rule 1.220(b)(3) for purposes of damages claims. In paragraph nineteen of the Final Judgment, the trial court, in discussing the mandatory nature of the class, set forth:

19. " Mandatory Class. " As reflected by the Court's Order Certifying Class, and as further underscored by the evidence presented at the fairness hearing, the Settlement Class is properly maintained as a "mandatory" class under Rule 1.220(b)(1)(A). Based on the uncontradicted evidence presented at the fairness hearing, permitting class members to exclude themselves from the Settlement Class (or opt out) in order to seek declaratory and/or injunctive relief . . . would expose Defendants to potentially inconsistent adjudications and incompatible standards of conduct that would be contrary to the very purpose of a (b)(1)(A) class. . . . [T]he purpose of the mandatory class is to avoid the disruption to the [communications] system that would be caused by such a break [in the system]. Consistent with its initial Order Certifying Class, the Court finds that the mandatory class under Rule 1.220(b)(1)(A) is proper as to the declaratory portion of the Class Settlement. The Settlement Class is also properly maintained as an "opt out" class under Rule 1.220(b)(3) with regards to class members' Claims for Damages.

The trial court granted appellants' Motions to Intervene in the Final Judgment as well. This appeal followed.

Appellants' first issue on appeal, whether a class action settlement serves as an appropriate procedural vehicle to render an interpretation of several thousand easements throughout the state, is an issue of first impression in Florida. Appellants argue on appeal that because the local action rule is applicable to this action, the trial court lacked subject matter jurisdiction with regard to all real property located outside of the Second Judicial Circuit. A court's subject matter jurisdiction, or its power to hear a controversy, is generally tested by the good-faith allegations in the complaint and is not dependent upon the ultimate disposition of the lawsuit. Calhoun v. N.H. Ins. Co., 354 So.2d 882, 883 (Fla. 1978). Subject matter jurisdiction, which arises only as a matter of law, cannot be created by waiver, acquiescence or agreement of the parties, by error or inadvertence of the parties or their counsel, or by the exercise of the power of the court. Fla. Exp. Tobacco Co. v. Dep't of Revenue, 510 So.2d 936, 943 (Fla. 1st DCA 1987). As such, we review this issue de novo. See Warren ex rel. Brassell v. K-Mart Corp., 765 So.2d 235, 236 (Fla. 1st DCA 2000).

While the circuit court has jurisdiction in all cases in equity and in law involving title to property, where the cause of action is in rem, the court has subject matter jurisdiction only if it has both jurisdictional power to adjudicate the class of cases to which the cause belongs and jurisdictional authority over the land which is the subject matter of the controversy. State, Dep't of Natural Res. v. Antioch Univ., 533 So.2d 869, 872 (Fla. 1st DCA 1988). If the cause of action has the object of requiring the court to act directly on property or on the title to property, it is an in rem action. Id.; see also State ex rel. S. Brevard Drainage Dist. v. Smith, 170 So. 440, 441 (Fla. 1936) (holding that a proceeding in rem is one taken against property, having for its object the disposition of property). We have previously held that the local action rule, which governs subject matter jurisdiction, provides that where land lies outside a circuit court's territorial jurisdiction and the purpose of an action is to determine the question of title to the land, the action is local to the circuit in which the land lies. Antioch Univ., 533 So.2d at 872. To determine whether the presence of real property in an action renders the action subject to the local action rule, the case's underlying major question must be determined. Id.

For instance, in Antioch University, Antioch, a residual beneficiary of an estate, brought an action against the state to seek a declaratory judgment that the state had violated conditions of the deed, thereby causing the property to revert back to Antioch in fee simple. Id. at 871. Antioch also sought to quiet title in the property. Id. In holding that the trial court erred in retaining jurisdiction over the complaint and remanding the case to the trial court having territorial jurisdiction over the property, we concluded that the underlying major question was whether Antioch, as a result of the state's breach, held fee simple title to the exclusion of the current titleholder, rendering the local action rule applicable. Id. at 873. Cf. Royal v. Parado, 462 So.2d 849, 853-54 (Fla. 1st DCA 1985) (holding that because the appellee's action in seeking the equitable rescission of a deed was not instituted primarily to seek transfer of title to the property in dispute, the local action rule was not applicable).

Here, the class representatives sought a determination of whether or not FPC's easements encompassed fiber optic use and the subsequent leasing of such. This is apparent from the complaint, which set forth, "[t]he allegations which follow concern the [d]efendants' improper use of electric transmission easements for the leasing or licensing to third parties of unrelated, non-electric general fiber optic telecommunications." (emphasis added). Appellants cite the supreme court's case of Lakeland Ideal Farm Drainage District v. Mitchell, 122 So. 516, 518 (Fla. 1929), for the proposition that a trespass action rests primarily upon the complainant's ownership of land and, thus, is local in nature. However, we find Mitchell to be distinguishable from the instant case because the supreme court in Mitchell stated, "[w]here, however, as here, a single cause of action is presented, in which a present and continuing trespass upon real estate is the sole basis of the suit and a determination of ownership is actually or potentially involved as a major issue . . . . Such an action is necessarily local in its nature, . . . ." Id. at 518 (emphasis added). Here, the class representatives alleged five causes of action in their amended complaint, including trespass. Although trespass was alleged, we do not find that the underlying major question in this lawsuit dealt with title to the class members' property.

Furthermore, the trespass to land of which the class representatives complained was not the physical installation of fiber optic cable. The main thrust of their complaint concerned the subsequent allocation or subletting of transmission rights. The alleged tort may well have been accomplished by executing documents in an office far from any affected parcel. See generally Goedmakers v. Goedmakers, 520 So.2d 575, 578-80 (Fla. 1988); Bd. of Pub. Instruction v. First Nat'l Bank, 143 So. 738, 741 (Fla. 1932) ("[A]ction was transitory where the transaction on which it was founded might have taken place anywhere . . . ."); McMullen v. McMullen, 122 So.2d 626, 630 (Fla. 2d DCA 1960) (holding suit for specific performance of contract for sale of land was a transitory action).

Appellants also contend that the local action rule is applicable to this action because the necessary result of the judgment sought was that one party gained or the other lost an interest in real estate, which rendered this action one involving title to real property. See In re Weiss' Estate, 106 So.2d 411, 415 (Fla. 1958). However, this argument is misplaced, because if this action had proceeded to trial on the merits, the existing easements would have remained intact as the class representatives merely sought an interpretation as to what uses the easements permitted. In addition, the third parties who were granted a license to utilize FPC's fiber optic capacity would not have lost an interest in the class members' property as a license confers no interest in land. See Dupont v. Whiteside, 721 So.2d 1259, 1263 (Fla. 5th DCA 1998). Accordingly, because title was not the underlying major question in this action, and because the necessary result of the Final Judgment did not cause one of the parties to gain or lose an interest in real estate, the local action rule is inapplicable. Therefore, we hold that the trial court did have subject matter jurisdiction.

In their second issue on appeal, appellants argue that the trial court erred in certifying a mandatory settlement class pursuant to Florida Rule of Civil Procedure 1.220(b)(1)(A). We review the issue of class certification under the abuse of discretion standard. See Execu-Tech Bus. Sys., Inc. v. Appleton Papers Inc., 743 So.2d 19, 20 n. 1 (Fla. 4th DCA 1999). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, or where no reasonable person would take the view adopted by the trial court. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980). If, however, reasonable people could differ as to the propriety of the action taken by the trial court, then it cannot be said that the court abused its discretion. Id.

Pursuant to Florida Rule of Civil Procedure 1.220(a), four prerequisites must be satisfied before any claim or defense may be maintained on behalf of a class. The members of the class must be so numerous that separate joinder of each member is impracticable. Fla. R.Civ.P. 1.220(a)(1). The claim or defense of the representative party must raise questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class. Fla. R.Civ.P. 1.220(a)(2). The claim or defense of the representative party must be typical of the claim or defense of each member of the class. Fla. R.Civ.P. 1.220(a)(3). Lastly, the representative party must be able to fairly and adequately protect and represent the class members' interests. Fla. R.Civ.P. 1.220(a)(4).

Pursuant to rule 1.220(b), if the rule 1.220(a) criteria are satisfied, a court must also conclude that the claims or defenses are maintainable in a class action. The court may find that the prosecution of separate claims or defenses by or against individual class members would create a risk of either inconsistent or varying adjudications concerning individual class members which would establish incompatible standards of conduct for the opposing party or that the adjudications concerning individual class members would be dispositive of the interests of the other class members who are not parties to the adjudications or would substantially impair their interests. Fla. R.Civ.P. 1.220(b)(1)(A)-(B). If the class is not maintainable under rules 1.220(b)(1)(A) or (b)(1)(B), the class may still be certified if the party opposing the class has acted or refused to act on grounds generally applicable to all the class members, thereby making final injunctive or declaratory relief concerning the class as a whole appropriate. Fla. R.Civ.P. 1.220(b)(2). Furthermore, the class can be certified if the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each class member predominate over any question of law or fact affecting only individual class members, and class representation is superior to other available methods of adjudication. Fla. R.Civ.P. 1.220(b)(3).

The party seeking class certification has the burden of pleading and proving the necessary elements pursuant to rule 1.220, and the trial court has the obligation to conduct a rigorous analysis to determine whether the elements of rule 1.220 have been satisfied. Appelton Papers Inc., 743 So.2d at 21-22. Because Florida's class action rule is based upon Federal Rule of Civil Procedure 23, Florida courts may look to federal cases as persuasive authority in their interpretation of rule 1.220.Concerned Class Members v. Sailfish Point, Inc., 704 So.2d 200, 201 (Fla. 4th DCA 1998).

In this matter, the trial court found that the rule 1.220(a) requirements were satisfied as the class consisted of more than 7,000 members, the easements were sufficiently similar to present common questions of law and fact, the class representatives' claims appeared typical, if not identical to those of the settlement class, and nothing suggested that the class representatives had not adequately represented the class members' interests. From our review of the record in this action, we find no error in these findings and, thus, hold that the trial court did not abuse its discretion in concluding that the rule 1.220(a) requirements were satisfied. See Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 637 (Tenn. 1996) (holding that the trial court properly exercised its discretion in certifying a statewide class for property owners who filed suit against Sprint, alleging that the installation of the company's cable on railroad rights-of-way without the owners' permission constituted a taking and trespass).

Proceeding to the rule 1.220(b) requirements, the trial court, for purposes of the settlement, certified the class pursuant to rules 1.220(b)(1)(A), (b)(2), and (b)(3). Regarding the mandatory nature of the class, the trial court found, pursuant to rule 1.220(b)(1)(A), that permitting class members to opt out of the settlement class posed the impermissible risk of individual suits resulting in different final judgments. As PTC's director testified during the fairness hearing, differing adjudications regarding whether the fiber optic communications system could continue to be utilized would result in a lack of connectivity. Appellants aver that FPC would not encounter incompatible standards of conduct if class members were permitted to opt out from the class completely as appellees would not be placed in the position of being unable to comply with one judgment without violating the terms of another. We agree.

The phrase "incompatible standards of conduct," as found in both Federal Rule of Civil Procedure 23(b)(1)(A) and Florida Rule of Civil Procedure 1.220(b)(1)(A), has been interpreted to refer to a situation in which different results in separate actions would impair the opposing party's ability to pursue a uniform continuing course of conduct. See 7A Charles Alan Wright et al., Federal Practice and Procedure § 1773 (2d ed. 1986) (internal footnotes omitted). In order to satisfy the rules' criterion, a plaintiff must establish that individual adjudications could force the defendant to act in legally conflicting ways. See Hallaba v. Worldcom Network Servs. Inc., 196 F.R.D. 630, 643 (N.D.Okla. 2000); see also Walker v. City of Houston, 341 F. Supp. 1124, 1131 (D.C. Tex. 1971) (concluding that rule 23(b)(1)(A) "was designed to `obviate the actual or virtual dilemma which would . . . confront the party opposing the class' when incompatible judgments would trap him in the inescapable legal quagmire of not being able to comply with one such judgment without violating the terms of another."). As one treatise has stated:

Under [rule 23(b)(1)(A)], it is not enough that separate litigation may result in inconsistent adjudications. Rather, the Rule explicitly requires that such adjudication impose incompatible standards of conduct on the party opposing the class. Accordingly, the mere possibility of varying or inconsistent adjudications in which a party may prevail against a putative class member in one case and lose in a second case to another such class member, does not, standing alone, impose incompatible standards of conduct on the party in satisfaction of Rule 23(b)(1)(A). Rather, Rule 23(b)(1)(A) is satisfied only if inconsistent judgments in separate suits would place the party opposing the class in the position of being unable to comply with one judgment without violating the terms of another judgment.

5 James Wm. Moore et al., Moore's Federal Practice, § 23.41(2)(a) (3d ed. 1997) (internal footnotes omitted) (emphasis added).

For instance, in Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 60 (S.D.Ohio 1991), the plaintiffs requested class certification as to their claims regarding the Portsmouth Gaseous Diffusion Plant. The plaintiffs claimed that they had been exposed to radioactive materials and non-radioactive hazardous wastes that were emitted by the plant. Id. As to their request for rule 23(b)(1)(A) certification, the plaintiffs argued that all of their requests for remediation could only be handled by a single judicial order. Id. at 67. The court found that if multiple courts addressed such issues, they could well order the defendants to take actions that could not be performed consistently with each other, thus forcing the defendants to choose which orders to obey and which to disregard under threat of contempt. Id. The court also determined that if the plaintiffs could demonstrate an entitlement to relief, it would undoubtedly be in the form of a complex order, addressing many specific features of plant operation. Id. Thus, it was unlikely that two courts would tailor a remedial order in the same fashion, making it entirely conceivable that different remedial orders would contain incompatible provisions. Id. Therefore, the court certified the class pursuant to rule 23(b)(1)(A). Id.; see also Becher v. Long Island Lighting Co., 164 F.R.D. 144, 153 (E.D.N.Y. 1996) (holding that separate cases could conceivably result in different courts reaching conflicting decisions regarding the defendant's employee pension plan).

While appellees argue that separate actions by class members could result in a lack of connectivity throughout the fiber optic system, this outcome, in contrast to the outcomes in both Boggs and Becher, would not present legally conflicting results that would prejudice appellees or raise concerns about inconsistent rulings within the judicial system. A judicial interpretation of a class member's easement in one circuit would not be legally inconsistent with a judicial interpretation of a separate easement in a different circuit even though the effect of such could be a lack of connectivity throughout the fiber optic system. Merely because different interpretations of the existing easements might result, such a situation would not place appellees in a dilemma of the sort contemplated by rule 1.220(b)(1)(A), as FPC would not be placed in the position of being unable to comply with one judgment without violating the terms of another judgment. See Moore, supra, § 23.41(2)(a).

As such, because the facts of this case do not satisfy the rule 1.220(b)(1)(A) requirements, we hold that the trial court abused its discretion in certifying the settlement class pursuant to rule 1.220(b)(1)(A). See Hallaba, 196 F.R.D. at 644 (holding that the class could not be certified pursuant to Federal Rule of Civil Procedure 23(b)(1)(A) because even if the defendants' fiber optic cable was trespassing on the plaintiffs' properties, and even if the defendants were forced to remove such cable, the outcome would not present legally conflicting results that would prejudice the defendants or raise concerns about inconsistent rulings within the judicial system); see also Walker, 341 F. Supp. at 1131 (holding that, while independent adjudications could result in the defendants being ordered to refund certain class members' pension fund contributions and not others' contributions, such inconsistencies or uncertainties would not place the defendants in a dilemma of the sort contemplated by rule 23(b)(1)(A), for the varying adjudications would not preclude compliance with the judgment in each case).

Although the trial court erred in certifying the settlement class under rule 1.220(b)(1)(A), we find such certification error to be harmless as the trial court also certified the settlement class pursuant to rule 1.220(b)(2) for purposes of the class members' declaratory and injunctive relief claims and rule 1.220(b)(3) for purposes of the class members' damages claims. See Nat'l Union Fire Ins. Co. v. Blackmon, 754 So.2d 840, 843 (Fla. 1st DCA 2000) (holding that the test for harmful error in a civil case is whether, but for such error, a different result may have been reached). This divided certification was proper because it introduced the rule 1.220(b)(3) protections of personal notice and the opportunity to opt out for the damages claims. See Lemon v. Int'l Union of Operating Eng'rs, Local No. 139, 216 F.3d 577, 581 (7th Cir. 2000). Rule 1.220(b)(2), like Federal Rule of Civil Procedure 23(b)(2), is applicable if the party opposing the class has acted or refused to act on grounds generally applicable to all class members, thereby making final injunctive relief or declaratory relief concerning the class appropriate. The rule 1.220(b)(2) certification was appropriate in the instant case because FPC acted or refused to act on grounds generally applicable to all class members.

Although the trial court's settlement class certification under rules 1.220(b)(2) and (b)(3) was proper, we must also determine whether the trial court erred in creating a mandatory class for purposes of declaratory and injunctive relief. Once a trial court certifies a class pursuant to rules 1.220(a) and (b), it must then determine whether class members will be permitted to opt out of the class. If a class is certified under rule 1.220(b)(3), class members must be given the right to opt out. Fla. R.Civ.P. 1.220(d)(1). If a class is certified under rules 1.220(b)(1) or (b)(2), the right to opt out is based upon whether "a showing is made that the notice [insofar as it advises of the right to opt out] is not required." Id. Florida Rule of Civil Procedure 1.220(d)(1) provides that:

If the court rules that the claim or defense shall be maintained on behalf of a class under subdivision (b)(3), the order shall also provide for the notice required by subdivision (d)(2). If the court rules that the claim or defense shall be maintained on behalf of a class under subdivision (b)(1) or subdivision (b)(2), the order shall also provide for the notice required by subdivision (d)(2), except when a showing is made that the notice is not required, the court may provide for another kind of notice to the class as is appropriate.

(emphasis added).

The "notice required by subdivision (d)(2)" contemplates class members' rights to opt out of the class by providing that, "[t]he notice shall inform each member of the class that . . . any member of the class who files a statement with the court by the date specified in the notice asking to be excluded shall be excluded from the class . . . ." Fla. R.Civ.P. 1.220(d)(2). See also Comm. Notes (1980 Amend.) ("Generally, the rule provides for . . . notice to all members of the class, provisions for the members of the class to exclude themselves . . . . The notice requirements have been made more explicit and stringent tha[n] those in the federal rule.").

Here, although the trial court certified the settlement class under rules 1.220(b)(1)(A) and (b)(2) for purposes of declaratory and injunctive relief, it created a mandatory class solely under rule 1.220(b)(1)(A). In the Final Judgment, the trial court set forth that, "the Settlement Class is properly maintained as a `mandatory' class under Rule 1.220(b)(1)(A). . . . [T]he purpose of the mandatory class is to avoid the disruption to the [communications] system that would be caused by such a break [in the system]." Thus, the creation of the mandatory class was based upon the trial court's reasoning that inconsistent standards of conduct would arise for FPC if class members were permitted to opt out for declaratory and injunctive relief. Yet, we have already concluded that the requirements under rule 1.220(b)(1)(A) were not satisfied in the instant case. The trial court's erroneous reasoning, which it used as the basis for the rule 1.220(b)(1)(A) class certification, was essentially the trial court's rule 1.220(d)(1) "showing" that the rule 1.220(d)(2) notice and right to opt out were not required. However, because the rule 1.220(b)(1)(A) requirements were not satisfied, the trial court could not certify a mandatory class under rule 1.220(d)(2) by relying on such requirements, as the rule 1.220(d) notice provisions only become pertinent after it has been determined that a claim or defense is maintainable on behalf of a class.

Although the trial court properly certified the settlement class for purposes of injunctive and declaratory relief under rule 1.220(b)(2), the record is devoid of the necessary rule 1.220(d)(1) showing as to why class members were not permitted to opt out of such a class. The trial court relied solely on the certification standard under rule 1.220(b)(1)(A) to support its determination that a mandatory class was necessary. Because this standard was inapplicable in the instant case, the trial court abused its discretion in creating a mandatory class. While appellants did not contend that rule 1.220(d) required that they be able to opt out of the rule 1.220(b)(2) class, the Final Judgment relied solely on rule 1.220(b)(1)(A) in making the settlement class mandatory. Had the trial court also relied upon rule 1.220(b)(2) in making the settlement class mandatory, we would be in a different posture with regard to our analysis. Accordingly, because the trial court's sole rule 1.220(d)(1) showing as to why the rule 1.220(d)(2) notice, and in turn the right to opt out for purposes of declaratory and injunctive relief, was improper, we reverse the Final Judgment and remand for further proceedings. We, therefore, decline to address appellants' third issue on appeal.

For the foregoing reasons, we conclude that the trial court had subject matter jurisdiction over this action. Although the trial court erred in certifying the settlement class under rule 1.220(b)(1)(A), such error was harmless as the trial court properly certified the settlement class under rule 1.220(b)(2) for purposes of declaratory and injunctive relief. However, because the trial court's sole reliance on the certification standard of rule 1.220(b)(1)(A), in creating a mandatory settlement class for purposes of declaratory and injunctive relief, was improper, we reverse the Final Judgment and remand for further proceedings.

REVERSED and REMANDED for further proceedings.

BENTON, J., CONCURS; POLSTON, J., CONCURS WITH WRITTEN OPINION.