Sheldrake v. Skyline Corp., No. S1269-01 Cncv (Katz, J., Mar. 29, 2004)



[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is
not guaranteed.]



STATE OF VERMONT
Chittenden County, ss.:




ROGER and HOLLY SHELDRAKE

v.

SKYLINE CORPORATION



                                  ENTRY

      This action began in 2001 when plaintiffs Roger and Holly
Sheldrake sought relief from injuries and damages sustained as a result of
purchasing a mobile home manufactured by defendant Skyline. Plaintiffs
now seek to certify a plaintiff class, under the present action against
Skyline, consisting of all individuals and entities who have purchased a


                                     1
Skyline Manufactured Home in New England. Defendant opposes
plaintiffs’ class certification motion and claims that it would be improper to
expand the present action to join such a large and amorphous group.

       Roger and Holly Sheldrake purchased a Skyline mobile home in
1995 from Lafonds Auto, an independent Skyline distributor. Following its
purchase and installation by Lafonds, the Sheldrakes claim to have
experienced a number of structural problems. These problems include: ice
build-up on the roof, inadequate blocking and anchoring of the home,
leaking ceiling, leaking skylight, electrical problems, rotting roof, and
clogged drains. (Pl. Compl. at ¶ 10). Plaintiffs contend that these problems
and defects come from the inferior construction, materials, and design of
Skyline homes. (Pl. Compl. at ¶ 11). Such defects, according to the
plaintiffs, are endemic to Skyline homes, which make the plaintiffs part of a
larger class of plaintiffs who through the act of buying a Skyline home have
suffered damages for which Skyline is liable. Id. Plaintiffs limit this class
to New England in part because Skyline has a Vermont manufacturing
center. (Pl. Compl. at ¶¶ 1, 13). Plaintiffs contend that Skyline homes are
particularly unsuited for New England climates and that the marketing and
sale of these homes in New England was misleading and constitutes
consumer fraud. (Pl. Compl. at ¶¶ 5, 22–25, 37–44).


       From these factual allegations plaintiffs allege five claims on behalf
of the class against Skyline. They claim: 1) That Skyline misled New
England consumers by selling defective mobile homes unsuited to New
England, thereby violating the Vermont consumer fraud statute, 9 V.S.A. §
2453. (Pl. Compl. at ¶¶ 73–79); 2) That the defective design and


                                      2
manufacture of the mobile homes breach Vermont’s implied warranty of
merchantability, 9 V.S.A. § 2-314. (Pl. Compl. at ¶¶ 80–83); 3) That the
home owners manual Skyline gives to each new home buyer creates an
express warranty which Skyline breached. (Pl. Compl. at ¶¶ 84–87); 4)
That Skyline negligently supervised the independent dealers who sell and
install the mobile homes. (Pl. Compl. at ¶¶ 88–92); and 5) That Skyline
was negligent for selling their mobile homes in New England. (Pl. Compl.
at ¶¶ 93–96).

      In response to plaintiffs’ allegations of liability affecting the class,
Skyline points out the following germane facts. First, Skyline
manufactures several different models of mobile homes that vary in design,
manufacture, and components. (Def. Opp’n to Pl. Mot. for Class
Certification, May 15, 2002, at 18–20). These homes can very widely and
are made up of dozens of smaller sub-components manufactured or
installed by various subcontractors. Id. Some homes sold in New England
are actually manufactured in Ohio and Pennsylvania. Id. at 19. The home
owners manual on which Sheldrakes base their express warranty was not
delivered until after the homes were sold and delivered. Id. at 22. Finally,
the dealers/agents, such as Lafond, are independent of Skyline, and while
they receive training, they are not supervised on sale pitches or
installations. See Id. at 3–5, 24.


                Preliminary Standards Surrounding Rule 23

       Historically, Class actions come from the joinder rules that chancery
courts developed to justify joining large groups of plaintiffs and defendants.


                                      3
George v. Town of Calais, 135 Vt. 244, 245 (1977). As part of the legacy
from equity, class actions, even in their modern Rule 23 incarnation, are
governed by concerns for fairness and practical necessity. They are equally
limited in application by the awareness that their use compromises the
principles and rules of due process and equality inherent in the standards
governing parties and more traditional joinder. See generally 7A C. Wright
et al., Federal Practice and Procedure § 1751 (1986). Since 1938, class
certifications have been governed by the modern rules of civil procedure
under Rule 23. Id. at §§ 1752 & 1753. In Vermont, V.R.C.P. 23 has
echoed the federal rule in language and purpose. V.R.C.P. 23 (Reporter’s
Note). Under this rule, all class actions must meet five initial requirements
on which plaintiff, or party asserting the class, has the burden of
persuasion. Nevertheless, it is important to underscore the equitable origins
of this rule, since the determinations under Rule 23 are fact dependant and
require us to consider the equity of creating or denying a class. As such,
we have broad discretion on the issue of class certification and must
ultimately be persuaded that justice requires the normal structure of due
process to be compromised in order to enhance economy and fairness. See,
e.g., Sanneman v. Chrysler Corp., 191 F.R.D. 441, 445 (E.D. Pa. 2000).

       As part of the rules of civil procedure for Vermont state courts,
V.R.C.P. 23 is a rule of limited use that only applies in clear circumstances.
See George, 135 Vt. at 245 (“[C]lass actions are intended to be of limited
and special application, not to be casually resorted to or authorized.”). This
warning accompanying V.R.C.P. 23 mirrors the federal courts’ wariness in
applying the F.R.C.P. 23 too liberally. Free World Foreign Cars, Inc. v.
Alfa Romeo, S.p.A., 55 F.R.D. 26, 30 (S.D.N.Y. 1972). Even while some


                                      4
federal courts have emphasized a liberal application of Rule 23 in certain
circumstances, see, e.g., Korn v. Franchard, 456 F.2d 1206, 108 (2d Cir.
1972) (emphasizing the liberality of applying Rule 23 in securities
litigation), the burden remains substantial, and the Sheldrakes must
persuade us that the application of Rule 23 is both necessary and
appropriate. Beyond such similarities, state courts are often more reluctant
than their federal courts to embroil themselves in multistate litigation. See
7B C. Wright et al., Federal Practice and Procedure § 1782 at 61 (1986)
(noting that some state court procedural systems discourage class actions in
consumer contexts). We, like any other state court, are reluctant to make
judicial decisions that will be binding on out-of-state individuals who are
not party to the litigation and who may have little or no connection to
Vermont. We are similarly disinclined to create a situation where we
would be forced to apply the law of other states to a case where the
outcome will affect so many who never sought a Vermont venue. See A.
Miller & D. Crump, Jurisdiction and Choice of Law in Multistate Class
Actions after Phillips Petroleum Co. v. Shutts, 96 Yale L.J. 1, 69–70 (1986)
(advocating the denial of certification in state courts where there are
management problems or similar procedural barriers since such forums lack
the tools of the federal courts such as national venue provisions). It is with
these additional concerns in mind that we understand George to provide us
with guidance in applying V.R.C.P. 23. George, 135 Vt. at 245.

        To qualify for class certification under Rule 23, the plaintiffs must
satisfy four elements under Rule 23(a): Numerosity, Commonality,
Typicality, and Ability of plaintiffs to represent the class. If plaintiff
satisfies all four of these elements, then they must satisfy one of three


                                       5
elements listed under Rule 23(b). Plaintiffs in this case have argued for
class certification solely under Rule 23(b)(3).


                         Application of Rule 23(a)

      The four requirements under V.R.C.P. 23(a) are not particularly
onerous. As one court described the application of Rule 23(a), “[I]t is not
uncommon for clearly non-frivolous class action suits to meet the criteria of
Rule 23(a). What separates the wheat from the chaff is the fact that once a
court finds that the threshold criteria . . . have been satisfied, Rule 23(b)
must be reckoned with.” Kuhn v. Skyline Corp., 1984 WL 62775, at *3
(M.D. Pa. 1984) (unpublished decision). While we find that the critical
issues in this present case lie in the preliminary considerations of class and
the requirements of Rule 23(b), we believe that for reasons of structure and
form that a brief Rule 23(a) analysis is useful. For the following Rule 23(a)
analysis we proceed on the supposition that plaintiffs’ class would exist as
essentially defined by Sheldrakes’ complaint.


        For class certification, plaintiffs must first show that the proposed
class “is so numerous that joinder of all members is impracticable.”
V.R.C.P. 23(a)(1). The requirement of numerosity in this case has not been
directly challenged by the defendants in this case since the plaintiffs’
proposed class would, if certified, “number at least in the thousands.” (Pl.
Mot. for Class Certification, Mar. 21, 2002, at 5). Such a class would be
quite impractical for joinder. The plaintiffs must next show that “there are
questions of law or fact common to the class.” V.R.C.P. 23(a)(2). The test
for commonality is not a particularly high one and requires plaintiffs to


                                      6
prove neither a quantitative or qualitative levels of commonality. See, e.g.,
Upper Valley Ass’n for Handicapped Citizens v. Mills, 168 F.R.D. 167,
170 (D. Vt. 1996). At this early juncture, significant legal and factual
commonality are enough. Plaintiffs’ claim of commonality rests on their
claim that the defendants defectively designed their mobile homes and
breached their warranties to the plaintiff class. (Pl. compl. at ¶¶ 69–70).
From proof of these common issues, plaintiffs could establish at the very
least a standard of care for the negligence claims, the existence of an
express warranty, the basic facts of what a merchantable mobile home
should be, and any general marketing program that Skyline created in New
England. Despite the conflicting individual facts of damages, causation,
breach, and reliance that would differ for each individual plaintiff, the
plaintiffs establish commonality to our satisfaction of this initial stage.

       The third requirement of Rule 23(a) is that the plaintiffs show that
“the claims or defenses of the representative parties are typical of the
claims or defenses of the class.” V.R.C.P. 23(a)(3). Again, this is a low
hurdle that requires plaintiffs’ claims not to be markedly different from the
class. Geisenberg v. Gagnon, 766 F.2d 770, 786 (3d Cir. 1985). Through
their complaint, plaintiffs claim to have suffered damages from the failure
of their mobile home. While this claim is susceptible to defenses such as
the statute of limitations and comparative negligence, these defenses would
be available in many if not most claims of this nature. Under this
reasoning, we find that the plaintiffs meet the requirements of typicality.
There is, however, a strong argument that the statute of limitations issue
makes the Shledrakes at odds with most of the class. It is foreseeable that
any certifiable class would have to exclude any member whose claims are


                                       7
precluded by the various statute of limitations in play under these claims.
Defendants have a serious question about whether these claims were filed
within the statute of limitations (six years elapsed between Sheldrakes
purchase of the mobile home and their initiation of litigation, which at the
very least may disqualify any implied warranty claims which must be
commenced within four years. 9A V.S.A. § 2-725. This may eventually
create antagonism between Sheldrakes and the plaintiff class within the
statutory time frame, but this issue is better addressed under the Rule 23(b)
analysis and cannot be determinative at this stage of the litigation since the
statute of limitation issue has not been decided. Still, the problem is
disturbing to Sheldrakes’ claim of typicality and indicative of the general
weakness of this proposed class since plaintiffs have not made any attempts
to address the statute of limitations problem or its impact on the definition
of the broader class. At this juncture, however, plaintiffs’ claim of
typicality satisfies the minimum of the rule.


      The final requirement of Rule 23(a) is that the plaintiffs show that
they “will fairly and adequately protect the interests of the class.” V.R.C.P.
23(a)(4). There are always questions of whether it is the plaintiffs or their
attorneys who drive a class action and whether the plaintiffs are
knowledgeable about the claims of class members. The requirements of
Rule 23(a)(4) at this preliminary stage, however, have primarily been
concerned with the competence of the plaintiff and counsel and the lack of
an antagonistic interest to the class. Kuhn v. Skyline Corp., 1984 WL
62775, at *3 (M.D. Pa. 1984). To analyze the antagonism of this
requirement, we must go to the heart of the controversy where there is a
danger that the representative plaintiff’s interest go against the class. See


                                      8
generally 7A C.Wright et al., Federal Practice and Procedure § 1768 (1986)
(discussing cases where antagonism has been found between the
representative). Sheldrakes claim liability and damages from Skyline from
the manufacture and sale of a defective and misleadingly marketed mobile
home product. There is nothing from this to conclude that any part of their
proposed class would not want damages from being mislead or sold a
defective product. Unless plaintiffs’ position shifted or further evidence
came to light, they have both motive and adequate counsel to pursue this
action. We find that plaintiffs satisfy Rule 23(a)(4).


                         Class Definition Concerns

       Any preliminary finding that plaintiffs’ proposed class would satisfy
the requirements of Rule 23(a) ignores the larger question of whether
Sheldrakes’ proposed class can be said to coherently exist. Although not
specified in the rule, the existence of the class is a standard preliminary
question for certification. 7A C. Wright Federal Practice & Procedure §
1760 at 115 (1986) (calling the existence of a class a “necessary
prerequisite”). This is a question of fact dependant on the circumstances of
each case. Id. Plaintiffs in this present case propose to certify a class
composed of anyone who affirmatively answers the question, “Have you
acquired a Skyline Home in New England?” (Pl. Reply in Support of their
Mot. for Class Certification, July 3, 2002, at 2). New England, as defined
by plaintiffs includes Maine, New Hampshire, Vermont, Massachusetts,
Rhode Island, Connecticut, and New York. (Pl. Compl. at ¶ 1). According
to the plaintiffs, this will create a class that will share the same claims of
consumer fraud, breach of implied warranty, breach of express warranty,


                                      9
negligent supervision, and negligence, as the named plaintiffs. (Pl. Compl.
at ¶¶ 73–100). The essence of plaintiffs’ allegations, however, comes down
to the central claim that the defendants misrepresented their product as a
quality house suitable for New England when it was not. (Pl. Compl. at ¶¶
29, 31, 32, 59).

       The problem with this class is that New England, as defined by
plaintiffs, encompasses a broad geography, whose climates and conditions
vary from one area to the next. Long Island and Cape Cod, for example,
have climates affected by the Gulf Stream which give them seasons and
precipitation rates that are more akin to the mid-Atlantic region than even
such nearby cities such as Boston and Hartford. Buffalo and Rochester,
notorious for their huge snowfalls, rarely suffer the cold snaps of northern
Maine where temperatures drop below freezing in November and stay
there. We find it instructive that the plaintiff’s New England region
encompasses over eight zones of plant hardiness on the United States
Department of Agriculture’s map. See U.S. Dep’t of Agri., Plant Hardiness
Zone Map (1990), available at http://www.usna.usda.gov (mapping plant
hardiness based on average minimum temperatures). While there are
regions of greater climactic disparity (although mostly in the western in
mountain ranges), the average minimum temperatures in the plaintiffs’
proposed New England region vary over 45 degrees from 35 degrees below
zero to 10 above.

       Furthermore, this disparity has little to do with political borders and
everything to do with geography and wind currents. This is a serious
question for defining the class. Should Skyline homeowners who live in


                                      10
temperate parts of New England be considered part of the same class as
those who live in colder or more extreme regions? Is a mobile home that is
defective in Franconia, New Hampshire equally defective in New Haven or
Binghamton? It seems that a mobile home buyer on Cape Cod would have
a different set of requirements and expectations than a buyer in Milton,
Vermont. To credit the Cape Cod buyer with the same knowledge and
expectations as the Milton buyer, would be as irrational and arbitrary as
crediting a Virginia purchaser with the same knowledge and expectations.
The premise that a home is equally defective for use in Newport, Rhode
Island as it is Orono, Maine is likewise flawed. This is to say nothing of
the differences in marketing, local distributors, model of mobile home
selected, or individual modifications made on the house that would affect
the defendants’ liability. Without getting into the merits of the plaintiffs’
claims, their proposed class is based on an oversimplified criteria that
dissolves under closer scrutiny.


       This is not to say that a workable plaintiffs’ class does not exist, but
it would require greater subtlety to establish a workable class of plaintiffs
who have enough in common with the named plaintiffs to justify
classification. The Sheldrakes have even failed to propose a time limitation
to the class based on the statute of limitations. Neither have they proposed
any separation between the classes in regards to the issue of damages. Cf.
Kuhn v. Skyline, 1984 WL 62775, at *1 (M.D. Pa. 1984) (proposing four
classes to encompass different permutations of those who have and have
not suffered damages). The Kuhn case is particularly instructive in this
situation since it deals with the same defendant and a proposed plaintiff
class of mobile home purchasers or residence complaining of a single


                                      11
problem, formaldehyde exposure. Id. Despite limiting the plaintiff class to
one state and creating different classes based on potential damage exposure,
Judge Rambo expressed the problems with the proposed class that mirror
some of the same problems with the Sheldrakes’ proposed class. Judge
Rambo wrote,
      There is a disturbing amount of imprecision and some
      inconsistency in the manner in which plaintiffs have
       designated and/or defined the various classes. The court
       notes that there are questions concerning appropriate statutes
       of limitations and their impact on class membership;
       questions regarding and [sic] closing dates affecting class
       membership; concerns as to whether class membership
       should be limited to owners or residents or both; questions
       concerning the membership of owners who have already sold
       their homes; and various other loose ends which would need
       to be tied up.

Id. Although Judge Rambo did not find this enough to preclude
certification on this issue, we find these lingering questions, when coupled
with the additional defects in the Sheldrake’s class definition, to be more
than enough to render their proposed class overbroad and indefinite.
Merely ordering the plaintiffs to refine their class definition will not reduce
these fundamental problems that really come from the individual nature of
negligence and warranty claims. Since the proposed plaintiffs encompass a
climatically diverse area, represent seven states with very different laws
governing consumer rights and liability, have purchased a number of
different models from a number of different retailers who have also


                                      12
performed the installation, and have suffered different levels of damages,
we find that there would inherently be members of the proposed plaintiffs’
class whose interests would be antagonistic to the named plaintiffs and
would create a class insufficiently homogenous. Hagans v. Wyman, 527
F.2d 1151, 1154 (2d Cir. 1975). We further reject the plaintiff’s motion for
class certification on this lack of a definite and homogenous class.


                         Application of Rule 23(b)

       Assuming for the sake of argument that the Sheldrakes could cobble
together a definite class and satisfy the requirements of Rule 23(a), they
could not satisfy the stricter requirements of Rule 23(b), which works as the
true flood gate of Rule 23. Kuhn v. Skyline Corp., 1984 WL 62775, at *3
(M.D. Pa. 1984). Since plaintiffs have limited their motion to Rule
23(b)(3), we will only review this section of the rule. Rule 23(b)(3) states
that to certify a class we must find “that the questions of law or fact
common to the class predominate over any questions affecting only
individual members and that the class action is superior to other available
methods for the fair and efficient adjudication of the controversy.”
V.R.C.P. 23(b)(3). Germane to these findings are:


       “(A) the interest of members of the class in individually
       controlling the prosecution or defense of separate actions; (B)
       the extent and nature of any litigation concerning the
       controversy already commenced by or against the members of
       the class; (C) the desirability or undesirability of
       concentrating the litigation of the claims in the particular

                                     13
       forum; (D) the difficulties likely to be encountered in the
       management of the class action. Id.


Rule 23(b)(3) asks two questions: do common issues predominate in the
class and is the class action the superior vehicle? We find the answer to
both questions to be no.


                                Predominance

       The question of predominance of common facts and law over
individual ones has been interpreted to require plaintiffs to prove “sufficient
cohesiveness to warrant adjudication by representation”. Anchem Prod. v.
Windsor, 521 U.S. 591, 623 (1997). Mere commonality or typicality that
would satisfy Rule 23(a)(2)&(3) will not satisfy predominance. Id. The
Sheldrakes’ claim to predominance centers on a “common nucleus of facts”
based on Skyline’s conduct toward the proposed class. (Pl. Mot. for Class
Certification, Mar. 15, 2002, at 14). The Sheldrakes focus on claims of
misleading representations and poor quality of the mobile homes but also
poor installation that they argue are necessary facts for every class member
to prove and that such proof will establish the first count of consumer fraud
that they claim. (Pl. Reply Memo. in Support of their Mot. for Class
Certification, Jul. 3, 2002, at 33–35).

       Beginning with the Sheldrakes’ claim of negligent supervision, we
find that the individual issues greatly outweigh any common issues that
litigation would resolve. First, the very subject of Skyline’s supervision is
a series of independent dealers that have a range of experience and

                                             14
competence in selling and installing mobile homes. The fact that Skyline
does not directly supervise these dealers or control their actions makes any
claim of negligence ultimately dependant on both the facts of the individual
purchase and the dealer involved. Proof that Skyline negligently
supervised Lafond does not establish negligence over all other dealers in
the New England area. Even if it were found that Skyline owed a duty to
buyers to exercise more control over their independent dealers, this would
still leave the issue of causation and damages. This is to say nothing of the
defenses, which would be individualized based on the relationship between
Skyline and each dealer, the standing of each buyer under the statute of
limitations, and any contributory defenses.


       For the Sheldrakes’ claims of negligence the issue is also dominated
by individual questions. While the Sheldrakes claim negligent design and
manufacture, proof for either requires evidence about the model of house,
the construction materials used, and the individual manufacturing that went
into it. Proof that the Sheldrakes’ house had a leaky roof because of poor
design does not prove that other models have the same problem, or if it was
assembled poorly the inference cannot be logically carried beyond its lot.
The item at issue in the Sheldrakes’ claims are prefabricated houses. These
are not simple or fungible objects. Some buyers may have experienced
roof and electrical problems like the Sheldrakes while others had floors that
rotted out too quickly or plumbing fixtures that failed. These are individual
inquiries that do not lend themselves to large scale determinations. Any
finding applicable to the class will be too general to be of any great value.
Furthermore, it will still lack any causal link, which each buyer will have to
prove in addition to any specific defect not covered by this determination.

                                      15
A significant portion of the Sheldrakes’ claims arise out of dealer actions—
even less likely to be uniform relative to the proposed class. Skyline’s
logical defenses of comparative negligence through misuse or modification,
statute of limitations, or supervening events are all based on individual
factual issues. If the Sheldrakes prove that they did not modify their roof,
there is no reason to extend that finding to any other home owner short of
individual findings.

       To illustrate this dichotomy more clearly, it is worth comparing the
Sheldrakes’ claims to the claims contained within Cook v. Rockwell Int’l
Corp, 151 F.R.D. 378 (D. Colo. 1993). In Cook, plaintiffs sought to certify
a class for claims against the Rockwell Corporation for damages resulting
from Rockwell’s release of radioactive and hazardous materials into the
area surrounding the Rocky Flats weapons production center. Id. at 380.
The District Court certified the class because the issues of control over the
hazardous material, common to all claims, was under Rockwell’s control
and the questions at the core of plaintiffs’ cases revolved around how
Rockwell cared for the material. Id. at 388–89. Three factors distinguish
this claim from the current case. First, this standard was only applied to the
question of property value damage, not personal or property damage. Id. at
388. Second, Rockwell was dealing with hazardous material and the issue
of strict liability. Once the proper standard of care and its breach was
established, the issue of causation was less important because this material
was harmful and should not exist in the ground. Id. The plaintiff class was
geographically limited to one state and one set of laws. Finally, causation
and damages were a function of proximity and exposure, both of which
could be calculated before any individuals were considered. See Id. at 388–

                                      16
89. As we have already discussed, the geographical composition of the
Sheldrakes’ proposed plaintiffs class is quite diverse. This geographical
diversity will not only affect damages and causation but arguably the
standard of care owed. Instead of a single dump site and its outward
leaching, there are thousands of different homes, of different models,
utilizing different materials and different subcontractors, individually built,
sold in separate transactions, through separate dealers, and serviced by
those individual dealers. Rather than a hazardous material that is dangerous
in any form and any concentration, we have houses whose defects are
buried within design and construction details. Instead of a simple
evaluation of property value, we have a complex determination of loss and
harm caused by defects linked to Skyline. Furthermore, all of these
determinations will be affected by the conflicts of state law that will not be
unilaterally resolved.


        The same predominance of individual issues and questions of law
exist for the claims of express warranty and implied warranty. The express
warranty claimed by the Sheldrakes is essentially a contract in which
Skyline promises to make certain repairs and cover certain damages. Since
it was part of the home owners manual delivered after the purchase and
installation of each mobile home, it cannot be considered an express
warranty under 9A V.S.A. § 2-313 since it was not part of the basis of the
bargain. Rather than getting into the merits of what exactly this “express
warranty” is, it is enough to know that even if it is an actionable promise, it
requires proof that it was breached. That is, plaintiffs must prove that
Skyline did not fulfill its promises in the “warranty.” This is completely an
individual determination based on the individual facts concerning Skyline

                                      17
and each plaintiff following the transaction. As for the implied warranty of
merchantability, the individual questions mirror the individual concerns of
the negligence claims. Under 9A V.S.A. § 2-314, plaintiffs must prove that
each mobile home was unmerchantable, which means that each mobile
home did not serve the purpose for what it was sold as. While each mobile
home Skyline has ever sold may contain defect that would be covered by
this warranty, they are most likely different and unique to the model and
individual house. Furthermore, the defenses such as notice, 9A V.S.A. § 2-
607(3)(a); disclaimer, 9A V.S.A. § 2-316; statute of limitations; or third-
party liability are all individualized and dependent on what Skyline did
with each plaintiff.


       The Sheldrakes’ final claim of consumer fraud suffers from similar
individual issues as above. The individuality is illustrated in the
Sheldrakes’ brief when they compare themselves to their would-be fellow
class member, the Morgans. (Pl. Reply Memo. in Support of their Mot. for
Class Certification, Jul. 3, 2002, at 28–29). While the Sheldrakes seem to
have relied solely on information supplied by Skyline and Lafonds, the
Morgans made their decision to buy a Skyline based in part on information
from the Sheldrakes and from inspection of the Sheldrakes’ house. Id.
This modifies the Morgans’ relationship to the dealers and manufacturers
since part of their decision to purchase a Skyline came from the Sheldrakes.
The Morgans may rightly feel that Skyline’s product has disappointed their
expectations, but it is unclear whether these expectations came from
promotional material or their additional knowledge. After all they
inspected a Skyline home, which has since been claimed defective, and still
purchased that model because they liked it. Consumer fraud is also a state

                                      18
law driven claim that may or may not apply to the entire class depending on
the choice of law analysis. This, however, is a concern best addressed
under the discussion for superiority.


                                 Superiority

       We find this class lacks superiority. To incorporate our previous
discussion, the individual legal and factual issues involved would make the
management of the class devolve into multiple lawsuits needing separate
trial. We find that the plaintiff and the class has several alternatives
available if class certification is not granted. Not the least of which is
individually trying these cases. While the Sheldrakes’ damages, which they
estimate to be $50,000 may not be a large amount, their claims have
provisions providing attorneys fees through state and federal statute. 9
V.S.A. § 2461(b); 15 U.S.C. §§ 2310 (detailing the attorney fee provisions
of the Magnuson–Moss Warranty Act). While this may seem modest to a
plaintiff’s attorney with thoughts of a multi-million dollar class action
dancing in her head, it is quite enough for many, and potential plaintiffs
seeking representation should have no problems finding competent counsel
willing to take their claim. We also find that with so many individual
issues at play that the common issues potentially resolved would not be in
the best interests of plaintiffs who would want to control the entire
litigation strategy since they would have to try the bulk of their claim. This
is indicative of the fact that there is no logical division to make in this case
between damages and liability. Sheldrakes are arguing that their class
would resolve core issues, but it is not clear exactly what core liability
issues will be resolved and such fragmentation is undesirable. In re

                                       19
Masonite Corp. Hardboard Siding Products, 170 F.R.D. 417, 426 (E.D. La.
1997).

        There are also several issues concerning the conflict of laws within
this class that would make the management difficult. We find that it is less
than apparent which law will cover each claim since each of the seven
states involved may have a different level of interest in having their law
cover the transaction. Under the Restatement (Second) of the Conflict of
Laws, the analysis depends on evaluating the individual factors involved in
each situation and the policies underlying each state’s law. See generally
H. Southerland, A Plea for the Proper Use of the Second Restatement of
Conflict of Laws, 27 Vt. L. Rev. 1 (2002) (noting that this area of the law
can be baffling and contains hard cases that cannot be clearly resolved).

       In conclusion, the class certification proposed by the Sheldrakes
lacks the cohesive unity necessary for certification. It is inferior to several
alternatives available to them under the rules of civil procedure. We find
that the benefits of adjudicating this case as a class action are far
outweighed by the problems and the resulting suspension of normal due
process is not justified by the resulting class. Morover, we find that the
Sheldrakes’ class does not warrant abridging normal due process and its
application would lower the standards of Rule 23. George v. Town of
Calais, 135 Vt. 244, 245 (1977).

       Based on the foregoing reasoning, we deny the Sheldrakes’ motion
for class certification.


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Dated at Burlington, Vermont________________, 2003.




                               ________________________
                               Judge




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