(1) Actions may be brought on behalf of two or
more of the unit owners, as their respective inter-
ests may appear, by the manager with respect to any
cause of action relating to the common elements or
more than one unit.
The Association contends that this statute is broad enough to
give it standing as the manager of the Association to bring
this action which concerns the common elements of the condo-
minium units and is brought on behalf of more than two of the
unit owners.
The Association relies upon Brickyard Homeowners' Ass'n.
v. Gibbons Realty (Utah 1983), 668 P.2d 535, in which the
Supreme Court of Utah applied a statute similar to our
5 70-23-901, MCA. The Utah Court concluded that the
statute-authorized management committee could bring suit on
behalf of unit owners without making it a class action or
joining the unit owners as necessary parties. While the Utah
statute was not identical to the Montana statute, it is
definitely comparable. The Utah case involved questions with
regard to fresh water ponds and glass installation in common
areas, and other negligent design and workmanship. The
defects were not alleged to have been sufficient to render
the Utah condominiums unusable. In holding that the manage-
ment committee could represent all of the unit owners, the
Utah Court also concluded that the holdings would be binding
upon the unit owners as a matter of res judicata. ~owerhill
Condo. Assoc. v. American Condo. (Ct.App.Ore. 1983), 675 P.2d
1051, was decided in a similar way although the Oregon
statute clearly gave the right to the Association to insti-
tute, defend, or intervene in behalf of two or more unit
owners.
We distinguish the present case from the cases cited.
The following significant factors present in this case were
not present in the Utah and Oregon cases. Twenty-seven
percent of the condominium units are owned by Boyne, a party
which does not wish to have the Association represent it.
Boyne is also a party defendant, which raises a further
difficulty. Next, the materials furnished to us demonstrate
that some but not all of the other unit owners have executed
postcard consents to be bound by the results of this litiga-
tion. Some of the postcards indicate that the unit owners
reserve the right to take further action on their own. Me
find a very confused position so far as individual unit
owners are concerned which was not present in the Utah or
Oregon cases.
The Unit Ownership Act of Montana provides no procedure
describing how a manager is to proceed where a difference of
opinion is present as in this case. Without ruling on the
obvious constitutional questions involved, we conclude that
it would be inappropriate to allow the action to proceed in
the absence of authority to represent so many of the unit
owners. We grant the petition for supervisory control.
Under Rule 19(a), M.R.Civ.P., a person who is subject to
service of process must be joined as a party if he claims an
interest relating to the subject of the action and is so
situated that the disposition of the action in his absence
may leave any of the persons already parties subject to
substantial risk of incurring double, multiple or otherwise
inconsistent obligations. Certainly that type of contention
may be made in the present case. Several of the defendants
have requested that this Court dismiss the action below for
lack of a real party in interest. Yet clearly, various
parties in the action are properly parties plaintiff. That,
of course, includes the Association. We conclude that it
would be inappropriate to dismiss the underlying action for
lack of real parties in interest.
On July 2, 1987, the District Court denied defendants'
motion to designate this case as a class action. Defendants
and the relator have asked this Court to direct that the
action be maintained as a class action. Rule 23, M.R.Civ.P.,
sets forth the class action requirements in Montana. In
substance, Rule 23(a) provides that parties may sue as a
class if the class is so numerous that joining all members is
impractical, there are questions of law or fact common to the
class, claims are typical of the claims of the class, and
representative parties will fairly and adequately protect the
interest of the class. Rule 23(b) and (c) describe in detail
when a class action may be maintained and the determinations
which are normally required by the court.
We note that in a class action maintained under Rule
23 (b)(3), M. R.Civ.P., the court shall direct to the members
of the class the best notice practicable under the circum-
stances, including individual notice to all members who can
be identified through reasonable effort. Rule 23 (c)(2),
M.R.Civ.P. The notice must advise each member that (A) the
court will exclude that member from the class if so requested
by a specified date; ( B ) the judgment, whether favorable or
not, will include all members who do not request exclusion;
and (C) any member who does not request exclusion may, if
desired, enter an appearance through counsel. Under the
facts of this case as presented to us, this type of procedure
appears to be most fair as to all parties. It will allow
Boyne to request exclusion and to appear through its own
counsel. It will also allow others of the unit owners to be
excluded if they choose to do so. Last, and important for
the plaintiffs, if a unit owner does not request exclusion,
then the judgment will be binding upon him. This appears to
be the appropriate result in the present case.
From the uncontradicted materials presented by both
relator and respondents, we conclude that the requirements of
Rule 23 (a), M. R.Civ.P., are met. We conclude that the class
of unit owners is so numerous that joinder of all members is
impractical, and that there are questions of law and fact
common to the class and that the claims of the plaintiffs are
typical of the claims of the class. We further conclude that
there is a sufficient identity to the types of claims made by
the various unit owners that the representative parties will
fairly and adequately protect the interests of the class. As
a result, no further findings are required by the District
Court on Rule 23 (a). As we analyze Rule 23 (b), M. R.Civ.P. ,
we conclude that the questions of law or fact common to the
members of the plaintiff class predominate over any questions
affecting only individual members and that a class action is
superior to other available methods for the fair and effi-
cient adjudication of the controversy.
We hold that the underlying action shall proceed as a
class action on the part of the unit owners as plaintiffs.
In doing so, we recognize that the District Court will be
required to make additional decisions and orders. In partic-
ular, the District Court shall order the unit owners be given
the best notice practicable under the circumstances, includ-
ing individual notice to all unit owners who can be identi-
fied through reasonable effort. The notice shall meet the
requirements of Rule 23 (c)(2), M. R.Civ. P. We specifically
recognize the continuing jurisdiction on the part of the
District Court under Rule 23(d), M.R.Civ.P., so that the
power of the District Court to make appropriate orders in the
course of this litigation is not in any way restricted, so
long as such orders are consistent with this opinion.
We decline to exercise supervisory control as to the
orders and motions on statutes of limitation. In a similar
manner, we do not address the other requests of the parties.
We conclude it would be premature to rule on these until the
final determination has been made as to the parties consti-
tuting both plaintiffs and defendants. All of such parties
should be given the opportunity to present their contentions
on such motions and requests.
The matter is remanded to the District Court for further
action consistent with this opinion. We Concur* V
r