author: PAGE,' Justice.

text:
    Michael K. RILEY, Sr., Nicollet County Attorney, Respondent, v. 1987 STATION WAGON, VIN: 1JCMT7840HTI07485 (Owner: Jerry Joseph Duwenhoegger), petitioner, Appellant.
    No. C8-01-21.
    Supreme Court of Minnesota.
    Aug. 29, 2002.
    Cathryn Middlebrook, Legal Assistant to Minnesota Prisoners, Minneapolis, MN, for Appellant.
    Michael K. Riley, Sr., Nicollet County Attorney, Michelle M. Zehnder Fischer, Assistant County Attorney, St. Peter, MN, for Respondent.
   OPINION

PAGE,' Justice.

Jerry Joseph Duwenhoegger, the owner of 1J CMT7840HTI07485 1987 Station Wagon (Jeep), was convicted of two counts of conspiracy to commit first-degree murder in violation of Minn.Stat. § 609.175, subd. 2(2) (2000). The Nicollet County Attorney, Michael K. Riley, Sr. (county), sought forfeiture of the Jeep pursuant to MinmStat. § 609.5312, subd. 1 (2000). The district court ordered forfeiture of the Jeep and the court of appeals affirmed. For the reasons set forth below, we reverse.

In September 1998, Duwenhoegger enlisted an acquaintance, John Sullivan, to assist him in killing Jeffrey Shanks and Esther Meschke, respectively the son and mother of Duwenhoegger’s girlfriend, No-rine Shanks. Sullivan, who went tu the police and became an informant, met with Duwenhoegger on four occasions in September 1998: September 17, September 18, September 20, and September 21. At each of these meetings, Duwenhoegger drove his Jeep to the meeting place, exited the Jeep, and entered Sullivan’s vehicle, where the two made their plans.

The final meeting was a reconnaissance mission to get a sense of the layout of Meschke’s house. On that occasion, Du-wenhoegger brought with him in the Jeep a number of items, including a flashlight, a drill, a drill bit, a screwdriver, some wire, and gloves, all of which he planned to use to enter a basement window in Meschke’s house. Using Sullivan’s vehicle, Sullivan and Duwenhoegger drove to Meschke’s house and, while Sullivan acted as lookout, Duwenhoegger attempted to break in. The break-in was unsuccessful, and Du-wenhoegger returned to -the vehicle to rethink his plan. Sullivan later took Du-wenhoegger back to his Jeep, where Du-wenhoegger was arrested. Duwenhoegger was charged with and convicted of two counts of conspiracy to commit first-degree murder.

The county instituted this forfeiture proceeding pursuant to MinmStat. § 609.5312, subd. 1, and moved fór summary judgment on the basis that Duwenhoegger used the Jeep to commit and facilitate the conspiracy to commit murder, a designated offense under the statute. Duwenhoegger also moved for summary judgment, contending that he did not use the Jeep as the county alleged. Duwenhoegger further contended that, on these facts, civil forfeiture of the Jeep would amount to a second punishment in violation of the Double Jeopardy Clauses of both the United States and Minnesota Constitutions.

The district court granted the county’s motion for summary judgment and ordered forfeiture, concluding that Duwenho-egger had used the Jeep in furtherance of the conspiracy to commit the murders. In the memorandum supporting its forfeiture order, the district court stated: “The transporting of the tools by Mr. Duwenho-egger in [the Jeep] in preparation for entry into the proposed victim’s home clearly constitutes use of [the Jeep] to facilitate the commission of the designated offense. Therefore, [the county] is entitled to summary judgment on this issue.” The district court further concluded that there was no basis for Duwenhoegger’s double jeopardy claim because the forfeiture in this case was “remedial” and not punitive.

In affirming the district court’s decision, the court of appeals held:

[T]he use of the vehicle to transport tools used to commit an overt act in furtherance of a conspiracy, and its use in transporting a conspirator to a site where he formulated the conspiracy plan with a co-conspirator, facilitated the crime and provided a sufficient nexus to warrant forfeiture of the vehicle.

Riley v. 1987 Station Wagon, 634 N.W.2d 434, 437 (Minn.App.2001). Concerning Duwenhoegger’s double jeopardy claim, the court of appeals held that “the forfeiture of a 14-year-old vehicle after a conviction for conspiracy to commit first-degree murder is not the type of forfeiture that is so punitive so as to constitute a second punishment.”

I.

Resolution of this appeal hinges on what the legislature meant by the language “used or intended for use to commit or facilitate the commission of a designated offense” as set out in Minn.Stat. § 609.5312, subd. 1. Statutory construction is subject to de novo review. Blanche v. 1995 Pontiac Grand Prix (Vin: 162WJ12M95F268403), 599 N.W.2d 161, 164 (Minn.1999). “The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions.” Minn.Stat. § 645.16 (2000); see also Boutin v. LaFleur, 591 N.W.2d 711, 715 (Minn.1999).

In Minnesota, an action for forfeiture is a civil in rem action. Minn.Stat. § 609.531, subd. 6a (2000). The property seized becomes the defendant based on the legal fiction that it is the inanimate object itself, not its possessor or owner, that is guilty of wrongdoing. See Austin v. United States, 509 U.S. 602, 615-17, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); 37 C.J.S. Forfeitures § 2 (1997). According to Minn.Stat. § 609.531, subd. la (2000), Minnesota’s forfeiture statutes are remedial in nature and are to be liberally construed. Yet, the United States Supreme Court has stated that “forfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment.” Austin, 509 U.S. at 618,113 S.Ct. 2801. The Court has also stated that “[fjorfeitures are not favored; they should be enforced only when within both letter and spirit of the law.” United States v. One 1936 Model Ford V-8 De Luxe Coach, Motor No. 18-3306511, 307 U.S. 219, 226, 59 S.Ct. 861, 83 L.Ed. 1249 (1939). Accordingly, to the extent that the forfeiture law at issue here is, in part, “punishment” and, therefore, disfavored generally, we strictly construe its language and resolve any doubt in favor of the party challenging it. See State v. Olson, 325 N.W.2d 13, 19 (Minn.1982); State v. Haas, 280 Minn. 197, 200-01, 159 N.W.2d 118, 121 (1968).

II.

Duwenhoegger argues that, under a plain reading of Minn.Stat. § 609.5312, subd. 1, his Jeep was not used to commit or facilitate the conspiracy to commit the murders. He argues that the conduct of driving the Jeep to the four meetings with Sullivan and carrying items in the Jeep that were ultimately placed in Sullivan’s vehicle and used to attempt the break-in did not create a sufficient nexus between the Jeep and the designated offense.

In response, the state argues that, under a broad interpretation of section 609.5312, subdivision 1, a vehicle used to transport a conspirator to meetings with another conspirator, to transport items used to commit an overt act in furtherance of the conspiracy, and to provide cover and diversion for the vehicle owner’s illegal conduct facilitates the conspiracy and therefore is subject to forfeiture under the statute. According to the state, the seized property need not have been an integral or an essential component of the crime.

Before 1988, Minnesota had one forfeiture statute, Minn.Stat. § 609.531 (1986). Subdivision 2(a) of that statute provided that certain property “associated with the commission or utilized in the commission of a designated offense ⅜ * ⅜ shall be subject to forfeiture.” Minn.Stat. § 609.531, subd. 2(a) (1986). In 1988, the legislature amended section 609.531 and repealed subdivision 2, replacing it with Minn.Stat. §§ 609.5311 and 609.5312 (1988). Act of Apr. 26, 1988, ch. 665, §§ 5-17, 1988 Minn. Laws. 941, 942-951. The current version of section 609.5311 deals with forfeitures of property connected to controlled substance offenses and applies to “[a]ll property, real and personal, that * * * has in any way facilitated, in whole or in part,” certain controlled substance offenses. Minn.Stat. § 609.5311, subd. 2 (2000). The current version of section 609.5312 deals with forfeiture relating to certain designated offenses and applies to all property “used or intended for use to commit or facilitate the commission of’ certain designated offenses. Minn.Stat. § 609.5312, subd. 1. Here, the legislature did not precede the term “facilitate” in section 609.5312 with phrases such as “in any way” or “in whole or in part,” as it did in section 609.5311.

While we do not opine as to the significance of such modifying language as in any way, we note that, in some jurisdictions, courts have held that with such express statutory language, even the slightest connection between a vehicle and criminal activity, such as transportation to the scene of criminal activity, may subject the vehicle in question to forfeiture. See, e.g., United States v. 1990 Toyota 4Runner, 9 F.3d 651, 652-54 (7th Cir.1993); United States v.1964 Beechcraft Baron Aircraft, TC-740, FAA Reg., No. N444CP, Actual No. N914C, 691 F.2d 725, 728 (5th Cir.1982) (per curiam); United States v. One 1974 Cadillac Eldorado Sedan, Serial No. 6L47S4Q407966, 548 F.2d 421, 422-27 (2d Cir.1977).

Mirroring this approach, some courts have declined to hold that transportation to the scene of criminal activity is sufficient to subject the vehicle to forfeiture, absent such modifying language. See, e.g., United States v. Lane Motor Co., 344 U.S. 630, 630-31, 73 S.Ct. 459, 97 L.Ed. 622 (1953) (per curiam); Howard v. United States, 423 F.2d 1102, 1103-04 (9th Cir.1970); Simpson v. United States, 272 F.2d 229, 230-31 (9th Cir.1959); Platt v. United States, 163 F.2d 165, 166-67 (10th Cir. 1947).

Indeed, even when language equivalent to “in any way” has modified the term “facilitate,” some courts have interpreted that language to require at least a “substantial connection” between seized property and criminal activity. See, e.g., United States v. One 1976 Ford F-150 Pick-Up VIN F14YUB03797, 769 F.2d 525, 527 (8th Cir.1985) (per curiam) (holding that vehicle was not “substantially associated” with criminal activity and, therefore, that forfeiture was not authorized when vehicle was observed only on one occasion visiting and inspecting marijuana crop). Such reasoning seems to avoid attenuated and even absurd results that would flow from an application of the language “in any way facilitate.”

With respect to vehicular conveyances in particular, “common sense dictates that the law require a substantially significant connection with criminal activity before an ordinary automobile may be seized and forfeited to the Government.” United States v. One 1972 Datsun Vehicle Identification No. LB1100355950, 378 F.Supp. 1200, 1206 (D.N.H.1974). The reason is that the use of the automobile in our society is pervasive. Id. A car by itself is not contraband and there is little activity that the use of a car does not “facilitate” to some degree. Id. With respect to vehicular conveyances, we hold that the term “facilitate,” as used in section 609.5312, subdivision 1, requires a direct and substantial connection between the vehicle being forfeited and the designated offense.

In this case, the sole connection between the Jeep and the criminal activity was the transportation of Duwenhoegger and, at one point, Duwenhoegger and his tools, to the meeting place with Sullivan. At no point did any of the conspiring acts occur in the Jeep. At all times, the Jeep was one vehicle removed from facilitating the commission of conspiracy and, thus, was not directly involved in the commission of the designated offense. As such, we hold that the connection between the Jeep and the conspiracy was neither direct nor substantial; that, as a result, the Jeep was neither a “tool” nor an “instrument” of the eon-spiracy; and, therefore, that the Jeep is not subject to forfeiture.

Reversed.

MEYER, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . Minnesota Statutes § 609.5312, subdivision 1, provides:
      All personal property is subject to forfeiture if it was used or intended for use to commit or facilitate the commission of a designated offense. All money and other property, real and personal, that represent proceeds of a designated offense, and all contraband property, are subject to forfei-fure, except as provided in this section.

      . Duwenhoegger does not argue in his brief to this court that forfeiture of the Jeep violates the Double Jeopardy Clause of either the United States or Minnesota Constitutions. Therefore, we deem the argument waived. State v. Grecinger, 569 N.W.2d 189, 193 n. 8 (Minn.1997); Balder v. Haley, 399 N.W.2d 77, 80 (Minn.1987).

      . As noted above, we decline to apply a broad interpretation to section 609.5312, subdivision 1, but rather strictly construe it based on its quasi-penal character.

      . On these facts, we note that the tools could have been subject to forfeiture. As section 609.5312, subdivision 1, requires, the tools were intended for use and ultimately used in the commission of a designated offense.


source: Caselaw Access Project

author: LANSING, Judge.

license: Public Domain

text:
    Glen LEWY 1990 TRUST, By Its Trustees Cheryl LEWY and Janice Winter, on behalf of the Class described in the Amended Complaint, Appellants, v. INVESTMENT ADVISORS, INC., et al., Respondents.
    No. C6-02-416.
    Court of Appeals of Minnesota.
    Sept. 3, 2002.

      Richard A. Lockridge, Gregg M. Fish-bein, Gregory J. Myers, Lockridge Grindal Ñauen P.L.L.P., Minneapolis, for appellants.
    Charles F. Webber, Karen E. Wilson, Deborah A. Ellingboe, Faegre & Benson LLP, Minneapolis, for respondents.
    Considered and decided by LANSING, Presiding Judge, KALITOWSKI, Judge, and SCHUMACHER, Judge.
   OPINION

LANSING, Judge.

The trustees of a family trust moved for class certification in their breach-of-fiduciary-duty action against a mutual fund management company and its principals. The district court denied certification. The trustees appeal, arguing that the undisputed facts establish that they have met the certification requirements in Minn. R. Civ. P. 23 and that the district court abused its discretion in denying their motion to amend the complaint to include unchallenged factual clarifications. We affirm the denial of the amendment as within the district court’s discretion, but, because the facts establish the requirements necessary for certification under rule 23, we reverse and remand for certification of the class.

FACTS

Cheryl Lewy and Janice Winter, trustees for the Glen Lewy 1990 Trust, filed a class action complaint against Investment Advisors, Inc., and six of IAI’s principals (collectively IAI). The trustees alleged that IAI breached its fiduciary duties by failing to disclose planned distribution of unusually large short-term capital gains to shareholders who had shares in IAI’s Emerging Growth Fund (fund). The trustees also alleged that IAI, by withholding disclosure of the unusually large capital-gains distribution, communicated false and misleading information to shareholders to obtain approval of the lucrative sale of its management rights to another mutual fund company.

The trustees first invested assets in IAI’s Emerging Growth Fund in 1993. IAI’s prospectus stated that the fund objective was long-term capital appreciation. The trust’s total investment in the fund equaled $210,000. From 1993 to 2000, the fund made capital-gains distributions to shareholders twice a year. From 1993 to 1995 and from 1997 to 1998, the fund distributed only long-term capital gains. During 1996, the fund distributed nominal short-term capital gains once and long-term capital gains once. During 1999, the fund distributed nominal short-term capital gains in June and again in December. But during 2000, the fund distributed both long-term and the unusually large short-term capital gains in June and again in September. By September 15, 2000, the trust’s investment was worth $699,715.18.

The fund’s general pattern was to recognize long-term capital gains and then distribute them to shareholders, who would incur tax liability on the capital gains. In the fiscal year ending March 31, 2000, however, the fund recognized unusually large short-term gains and decided to distribute half the capital gains in June 2000 but defer distribution of the other half until September 2000. The decision to defer distribution of half the gains was not explicitly communicated to shareholders when the June distribution was made.

In June 2000, IAI negotiated an agreement with Federated, another mutual fund manager, to sell IAI’s mutual fund business under a proposed plan of reorganization and termination, subject to approval by shareholders. In July 2000, IAI sent its shareholders a prospectus describing the proposal. The prospectus correctly stated that the sale would not result in tax liability for the shareholders but failed to address the capital-gains distribution coming in September. The fund’s shareholders approved the transaction, and IAI completed the sale on September 15, 2000, for an undisclosed price measured by the value of the IAI funds together with contingent payments. Following the sale the fund was transferred into the Federated Aggressive Growth Fund. Immediately prior to the closing of the sale, the fund distributed the short-term capital gains.

In December 2000, the trustees brought this action alleging that IAI breached its fiduciary duties by failing to disclose the unusually large short-term capital gains in advance of distribution and by communicating false and misleading information in the prospectus that described the proposed transaction with Federated. The trustees claim that, had they known of the upcoming distribution, they would have redeemed their shares and been able to obtain more favorable long-term capital-gains treatment.

After filing the action, the trustees requested supplemental discovery to obtain documents sufficient to identify the fund’s shareholders as members of a proposed class. The district court denied that request and instead ordered IAI to produce documents that disclosed only the number and type of shareholders in the fund.

Following discovery, the trustees moved for class certification and to amend their complaint to include factual allegations that are largely undisputed. IAI moved for summary judgment on the merits. The district court determined that the trustees had established the necessary pri-ma facie case to withstand summary judgment on their individual claim, but denied the trustees’ class-certification motion, and also denied the trustees’ motion to amend their complaint. The trustees and IAI negotiated a stipulation under which IAI paid the full amount of the trustees’ claim, but the trustees retained the right to appeal the denial of class certification.

In this appeal from the final judgment the trustees challenge- three separate rulings: the denial of class certification, the denial of their motion to amend their complaint, and the limitation of discovery to preclude them from obtaining the names and account information of the fund’s shareholders.

ISSUES

I. Did the trustees establish the requirements for class certification under Minn. R. Civ. P. 23?

II. Did the district court abuse its discretion by denying the trustees’ motion to add unchallenged allegations to their complaint?

ANALYSIS

I

A Minnesota court may not certify a class unless the class satisfies the requirements of Minnesota Rule of Civil Procedure 23. Class certification under rule 23 is a two-step process. First, the class must satisfy all four mandatory requirements of rule 23.01: numerosity, commonality, typicality, and adequacy of representation. Minn. R. Civ. P. 23.01. Second, a class must also satisfy the requirements of one of the subdivisions of Rule 23.02. Minn. R. Civ. P. 23.02.

The trustees contend that they have satisfied all four mandatory requirements of rule 23.01 and have also satisfied the requirements of rule 23.02(c) by demonstrating that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Id. § 23.02(c).

The district court applied Minn. R. Civ. P. 23 and concluded that, although the class met the commonality requirement, it did not meet the numerosity, typicality, or representational-adequacy requirements. The court also found that common legal issues would not predominate and that the class action was not a superior method of adjudication. Minn. R. Civ. P. 23 is modeled after Fed.R.Civ.P. 23. Compare Fed. R.Civ.P. 23 with Minn. R. Civ. P. 23. Because the procedural rules are essentially parallel, federal precedent is instructive in interpreting our rule. See Johnson v. Soo Line R.R., 463 N.W.2d 894, 899 n. 7 (Minn. 1990) (“federal cases interpreting the federal rule are helpful and instructive but not necessarily controlling”).

Numerosity

Rule 23.01(a) requires that the class be “so numerous that joinder of all members is impracticable.” See Jenson v. Cont’l Fin. Corp., 404 F.Supp. 806, 809 (D.Minn.1975) (stating that numerosity is satisfied if joinder of plaintiffs, while theoretically feasible, is impracticable). Courts have not developed “arbitrary or rigid rules” to define the required size of a class, and impracticability is a fact-specific determination. Parkhill v. Minn. Mut. Life Ins. Co., 188 F.R.D. 332, 337 (D.Minn.1999) (citing Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 54 (8th Cir.1977)). In determining impracticability, courts generally consider a number of factors, including the size of the putative class, the size of the class member’s individual claim, the inconvenience of trying individual suits, and the nature of the action itself. See Parkhill, 188 F.R.D. at 337 (citing Paxton v. Union Nat’l Bank, 688 F.2d 552, 559-60 (8th Cir.1982)).

Although the trustees need not show the exact number in the putative class, mere speculation as to the size of the class is insufficient to satisfy the numerosity requirement. Irvin E. Schermer Trust v. Sun Equities Corp., 116 F.R.D. 332, 336 (D.Minn.1987). When the class is very large — numbering in the hundreds' — join-der is almost always impracticable, but the difficulty of joining as few as 40 class members may also raise a presumption that joinder is impracticable. Lockwood Motors, Inc. v. Gen. Motors Corp., 162 F.R.D. 569, 574 (D.Minn.1995) (citing 1 Herbert B. Newberg & Alba Conte, New-berg on Class Actions § 3.05 (3d ed.1992)).

The trustees established that as of June 30, 2000, the fund had 2,300 shareholders, 1,000 of which were tax-paying rather than tax-deferred entities. The trustees contend that they are unable to identify specifically the potential members of the class because the district court limited the trustees’ discovery to the number and type of shareholders in the fund. In light of the discovery limitation, it is not persuasive to conclude that class certification should be denied because the trustees failed to point to particular shareholders who were adversely affected by the distribution. Furthermore, the fact that a precise number of class members cannot be specified is not decisive, as the trustees need only show “ ‘some evidence or reasonable estimate of the number of purported class members.’ ” Linquist v. Bowen, 633 F.Supp. 846, 858 (W.D.Mo.1986) (quoting Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir.1981). aff'd, 813 F.2d 884 (8th Cir.1987)).

The trustees have provided a reasonable, good-faith estimate of a potential class of 1,000 shareholders. Without further discovery, the exact membership cannot be ascertained. In these circumstances, a good-faith estimate is sufficient to satisfy the numerosity requirement. Long v. Thornton Township High Sch. Dist. 205, 82 F.R.D. 186, 189 (N.D.Ill.1979). The trustees have adequately demonstrated numerosity.

Commonality

Rule 23.01(b) requires that certification be based on “questions of law or fact common to the class.” The threshold for commonality requires that the resolution of the common questions affect all or a substantial number of class members. Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir.1986). For commonality to exist, behavior causing a common effect must be subject to some dispute. In Re Objections & Defenses To Real Property Taxes for 1980 Assessment, 335 N.W.2d 717, 719 (Minn.1983). The district court properly concluded that commonality existed, and IAI does not challenge this conclusion.

Typicality

Rule 23.01(c) requires that the claims and defenses of the representative parties must be “typical of the claims or defenses of the class.” This requirement functions jointly with the representational-adequacy requirement “to insure that the claims of the class members are fully presented and vigorously prosecuted.” Sley v. Jamaica Water & Utils., Inc., 77 F.R.D. 391, 394 (E.D.Pa.1977).

Typicality requires that the representative parties “have an interest compatible with that of the class sought to be represented.” Ario v. Metro. Airports Comm’n, 367 N.W.2d 509, 513 (Minn.1985). A potential for rivalry or a conflict that may jeopardize the interests of the class weighs against a finding of typicality. Id.

The typicality requirement is met when the claims of the named plaintiffs arise from the same event or are based on the same legal theory as the claims of the class members. See Alpem v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir.1996) (stating that typicality exists if there are “other members of the class who have the same or similar grievances as the plaintiff’); Paxton v. Union Nat’l Bank, 688 F.2d 552, 561-62 (8th Cir.1982); Lockwood, 162 F.R.D. at 575. “The typicality requirement is designed to align the interests of the class and the class representatives so that the latter will work to benefit the entire class through the pursuit of their own goals.” In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 311 (3rd Cir.1998). A “strong similarity of legal theories” satisfies the typicality requirement even if substantial factual differences exist. Lockwood, 162 F.R.D. at 575.

The district court, relying on its numerosity finding, ruled that by failing to show that other class members exist, the trustees necessarily failed to show that their claim is typical of the proposed class. We disagree. First, the trustees cannot reasonably be expected to show that other class members exist when they have been denied discovery aimed at this specific purpose. But even without the discovery, the record adequately demonstrates the similarity of claims and alignment of interests. The trustees’ claims are typical of the potential class because both are based on the identical legal theory — breach of fiduciary duty — and both arise from the same facts — the distribution of unusually large short-term capital gains in 2000 and the information or lack of information relating to capital gains in the prospectus outlining the transaction with Federated. No evidence suggests that the trustees have a conflict or a misalignment with the interests of the putative class. The trustees’ claims are typical of the proposed class claims.

Adequacy of Representation

Rule 23.01(d) requires that “the representative parties will fairly and adequately protect the interests of the class.” Representational adequacy means the representative parties’ interests must coincide with the interests of other class members and that the parties and then-counsel will competently and vigorously prosecute the lawsuit. Ario, 367 N.W.2d at 513. Factors used to determine if rep-resentivity is satisfied include: (1) whether the representatives’ interests are sufficiently identical to those of absent class members so that the representatives will vigorously prosecute the suit on their behalf; (2) whether the attorneys are qualified, experienced, and capable of conducting the litigation; and (3) whether the representatives have any interests that conflict with the objective of the class they represent. See Smith v. B & O R.R., 473 F.Supp. 572, 581 (D.Md.1979).

IAI does not dispute the ability of the trustees’ counsel to represent the interests of the proposed class or the absence of conflict between the trustees, the proposed class representatives, and the proposed class. Therefore, the only issue is whether the trustees’ interests are sufficiently similar to guarantee that the trustees will vigorously prosecute this case on behalf of the members of the proposed class.

The district court concluded that “[b]y their actions, the trustees showed that they are unsuitable to protect the class’ interests,” because they lack knowledge of the case. The court also relied on the fact that the trustees “failed to demonstrate that a single potential class member had a loss and that that loss was for the same reason.”

Class representatives in complex cases are not required to have the detailed level of firsthand knowledge of facts or law that IAI or the district court seeks to impose. See In re Workers’ Comp., 130 F.R.D. 99, 107-108 (D.Minn.1990); Harman v. LyphoMed, Inc., 122 F.R.D. 522, 528 (N.D.Ill.1988) (“[i]n a complex securities case involving novel economic and legal theories * * * it is irrational to expect plaintiffs to exhibit a detailed knowledge of the issues”). What is required with respect to adequacy of representation is that a named plaintiff have “a basic understanding of the allegations made in the case, and what law is alleged to have been violated, and be willing to contest an action by his attorneys with which he did not agree.” In re Resource Am. Sec. Litig., 202 F.R.D. 177,187-88 (E.D.Pa.2001).

In deposition testimony, Cheryl Lewy demonstrated a basic understanding of the allegations, knowledge of the laws alleged to have been violated, and an intention and willingness to contest IAI’s actions. Although Janice Winter demonstrated less understanding, she is assisted by her son-in-law, Glen Lewy, who is the settlor of the trust, an attorney, and fully knowledgeable about the details of this action. See Randle v. Spectran, 129 F.R.D. 386, 392 (D.Mass.1988) (finding that plaintiff was an adequate representative when fellow representatives were able to assist her and counsel agreed to advance the costs of litigation).

General knowledge and participation in discovery are enough to demonstrate representational adequacy. Schwartz v. Sys. Software Assocs., Inc., 138 F.R.D. 105, 107-08 (N.D.Ill.1991); Harman, 122 F.R.D. 522, 528-29 (N.D.Ill.1988); Grossman v. Waste Mgmt, Inc., 100 F.R.D. 781, 790 (N.D.Ill.1984). “Also, it is familiar law that a class representative need not have personal knowledge of the evidence and the law involved in pursuing a litigation. It is the lawyer’s task to prepare the case both on the facts and the law.” Nathan Gordon Trust v. Northgate Exploration, Ltd., 148 F.R.D. 105, 107 (S.D.N.Y.1993).

The trustees’ capacity and willingness to prosecute this action vigorously through qualified counsel sufficiently protects and advances the interests of the entire class. See In re Select Comfort Corp. Sec. Litig., 202 F.R.D. 598, 609 (D.Minn.2001). The trustees meet the adequacy-of-representation requirement.

Predominance and Superiority

In addition to satisfying the requirements of rule 23.01, the action must also come within one of three categories described in Minn. R. Civ. P. 23.02. See Peterson v. BASF Corp., 618 N.W.2d 821, 826 (Minn.App.2000) (stating “[o]nce appellants have satisfied the four prerequisites of rule 23.01, they must show that their proposed class meets one of the requirements of Minn. R. Civ. P. 23.02”), review denied (Minn. Jan. 26, 2001). The trustees contend that they meet the requirements of Rule 23.02(c). Under rule 23.02(c), a class action may be maintained if two basic conditions are met. First, common questions must predominate over individual issues, and second, the class action must be superior to other available methods for the fair and efficient adjudication of the controversy. Minn. R. Civ. P. 23.02(c). We address, first, predominance and, then, superiority.

Predominance

The trustees challenge the district court’s conclusion that common issues do not predominate. The district court ruled that the common legal issue was “whether IAI had a duty to notify [other fund shareholders] of upcoming short term capital gain distributions.” But the district court found that question was secondary to the predominant factual question: “[A]re individual shareholders situated in circumstances similar to Plaintiff Lewy’s that also caused them harm?”

No bright-line rules determine whether common questions predominate. See Lockwood, 162 F.R.D. at 580. Instead, a court must consider whether the generalized evidence will prove or disprove an element on a simultaneous, class-wide basis that would not require examining each class member’s individual position. Thus, a class action is appropriate when common questions representing the significant aspect of a case can be resolved in a single action. In re Workers’ Comp., 130 F.R.D. at 108-09. The common question need not be dispositive of the entire action because “predominance” as used in the rule is not automatically equated with “determinative.” Id; see also Lockwood Motors, 162 F.R.D. at 580 (“[c]ommon questions need only predominate; they need not be dispositive of the litigation”).

“[Predominance will be found where generalized evidence may prove or disprove elements of a claim.” In re Hartford Sales Practices Litig., 192 F.R.D. 592, 604 (D.Minn.1999) (citation omitted). As with the commonality and typicality requirements, the predominance inquiry is directed toward the issue of liability. “When determining whether common questions predominate courts ‘focus on the liability issue * * * and if the liability issue is common to the class, common questions are held to predominate over individual questions.’ ” Genden v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 114 F.R.D. 48, 52 (S.D.N.Y.1987) (quoting Dura-Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87, 93 (S.D.N.Y.1981)); see also Lockwood Motors, 162 F.R.D. at 580 (“ ‘the fundamental question is whether the group aspiring to class status is seeking to remedy a common legal grievance’ ”) (quoting 3B Moore’s Federal Practice § 23.45 at 23-306 to -07 (2d ed.1994)). Thus, we look first to the elements necessary to recover on the claim against IAI. To predominate, common issues must constitute a significant part of the individual cases. Streich v. Am. Family Mut. Ins. Co., 399 N.W.2d 210, 217 (Minn.App.1987), review denied (Minn.Mar. 25,1987).

The trustees assert that IAI breached a fiduciary duty by failing to tell shareholders about an upcoming short-term capital-gains distribution and by providing misleading information in the prospectus. Both parties agree that this case is governed by the substantive law of Delaware.

Under Delaware law, a plaintiff claiming breach of fiduciary duty must prove by a preponderance of evidence that a fiduciary duty existed and that a fiduciary breached that duty. See York Linings v. Roach, 1999 WL 608850, at *2 (Del.Ch.1999). “It is well established that directors of a Delaware corporation owe fiduciary duties to the corporation.” Id. Furthermore, “under Delaware law there is a rule of per se damages for breach of the fiduciary duty of disclosure.” O’Reilly v. Transworld Healthcare, Inc., 745 A.2d 902, 917 (Del.Ch.1999).

If the trustees and their proposed class are to recover, the two elements for breach of a fiduciary duty would have to be established for all of the fund’s shareholders. Evaluated solely on elements, common issues predominate. The district court, however, relied on causation, damages, and the lack of a finding of numerosity to justify its ruling against predominance. Because damages can be assumed per se for a breach of fiduciary duty and because the trustees satisfied numerosity, the district court’s conclusion against predominance is not sustainable.

IAI argues that the court’s holding can alternatively be sustained on the grounds that the measure of damages would be too difficult to calculate and would require hundreds of mini-trials. In Keating v. Philip Morris, Inc., 417 N.W.2d 132, 137 (Minn.App.1987), we stated that if a different damages calculation would be required for each shareholder, the necessity of separate calculations weighs against satisfaction of the predominance requirement. But when injury and damage is capable of mathematical or formulaic calculation, individualized claims are not a barrier to managing the case as a class action. Id.

If, however, the damages do not lend themselves to mechanical calculation, the necessity of a large number of mini-trials would cause the damage aspects to predominate and weigh against certification. Windham at 68; Bogosian v. Gulf Oil Corp., 561 F.2d 434, 455 (3d Cir.1977) (dicta); Keating, 417 N.W.2d at 137. But the mere fact that there are certain issues that may need to be determined on an individual basis does not necessarily preclude the satisfaction of the predominance requirement. See Newberg & Conte, supra, § 4.25 (“[t]he very definition of the requirement of the predominance of common questions contemplates that individual issues will usually remain after the common issues are adjudicated”).

Courts frequently grant class certification despite individual differences in class members’ damages. See White v. NFL, 822 F.Supp. 1389, 1403-04 (D.Minn.1993); B & B Inv. Club v. Kleinert’s Inc., 62 F.R.D. 140, 144 (E.D.Pa.1974); In re Memorex Sec. Cases, 61 F.R.D. 88, 103 (N.D.Cal.1973); Minnesota v. U.S. Steel Corp., 44 F.R.D. 559, 567 (D.Minn.1968). IAI contends that it will require a minimum of eight hours for damage calculations for each plaintiff and that that length of time should foreclose the possibility of a class action. The trustees dispute that estimate. But the necessity of calculating separate damages does not destroy the appropriateness of the class-action method. See U.S. Steel, 44 F.R.D. at 567. If IAI has breached a fiduciary duty to the class, then calculating the damages for all the affected shareholders in one action makes more sense then forcing each shareholder to bring a separate action just to split the damage-calculation time.

Common questions of law and fact predominate on the cause of damages. The fact that the amount of damages may vary, and thus require more or less time to calculate, does not defeat certification.

Superiority

Factors to consider in a “superiority” analysis include “manageability, fairness, efficiency, and available alternatives.” Streich, 399 N.W.2d at 218 (citation omitted). The class action is most often needed in litigation in which individual claims are small. Forcier v. State Farm Mut. Auto. Ins. Co., 310 N.W.2d 124, 130 (Minn. 1981). When collective adjudication promises substantial efficiency benefits or makes it possible for class members with small claims to bring suit and enforce the substantive law, a class action is superior to other available methods for the fair adjudication of the controversy. See Vernon J. Rockier & Co. v. Graphic Enter., Inc., 52 F.R.D. 335, 347 (D.Minn.1971) (“ ‘[a] class action must be deemed the only practical method of litigating * * * when the complex nature of the litigation and the comparatively small individual financial interests are considered’ ”) (quoting Weiss v. Tenney Corp., 47 F.R.D. 283, 291 (S.D.N.Y.1969)). The trustees’ counsel estimates that the damages will average only $3,000 per shareholder.

The record discloses no unusual difficulties in management or notification of class members. The fund has records of all shareholders and no facts suggest that management of this class would impose problems. Both IAI and the trustees agree that Delaware law applies, so the court will not be confronted with complex choice-of-law issues. The trustees’ counsel is experienced and has handled other similar actions.

Because this case presents no unusual management problems and will provide representation to an otherwise unrepresented class, the facts compel certification of a class action as the superior method of adjudication. We remand to the district court for certification of the class. In light of our determination, it is unnecessary to reach the trustees’ third issue of whether the district court abused its discretion in limiting discovery of shareholder information to establish a class.

II

The trustees argue that the district court abused its discretion by not allowing them to amend their complaint to include largely unchallenged factual clarifications and an allegation relating to the risks involved in the equalization method of accounting.

The district court has broad discretion to grant or deny leave to amend a complaint, and its ruling will not be reversed absent a clear abuse of discretion. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). The only argument that the trustees advance as an abuse of discretion is that almost all the clarifications the trustees suggested in their proposed second amended complaint were unchallenged by IAI and, therefore, must be allowed. The trustees cite two foreign-jurisdiction cases to support their conclusion that clarification should be allowed.

But allowing amendment of the complaint is discretionary with the district court, and the exercise of discretion reasonably depends on the stage of the action. See Tomlinson Lumber Sales, Inc. v. J.D. Harrold Co., 263 Minn. 470, 474-75, 117 N.W.2d 203, 207 (1962). Given the late stage at which the trustees moved to amend their complaint, the district court was within its discretion in refusing to allow the amendment.

DECISION

The trustees have satisfied the numerosity, commonality, typicality, and representational-adequacy requirements of Minn. R. Civ. P. 23.01. They have also demonstrated that common legal issues predominate and that a class action is a superior method for resolving the dispute. We reverse and remand so that the district court may certify the trustees’ proposed class. We affirm the district court’s denial of the trustees’ motion to amend their complaint.

Affirmed in part, reversed in part, and remanded.


author: GILBERTSON, Chief Justice.

text:
    2002 SD 100
    Duane VITEK, Michael Neth, Sandy Neth, Steven Neth, and Sharon Neth, Petitioners and Appellants, v. BON HOMME COUNTY BOARD OF COMMISSIONERS, Eugene Kokesh, Allen Sternhagen, John Fathke, John Pesek, Russell Jelsma, and Linda Pesek, Bon Homme County Auditor, Respondents and Appellees, Leo PEDERSEN and Linda Pedersen, Intervenors and Appellees.
    No. 22216.
    Supreme Court of South Dakota.
    Considered on Briefs on May 28, 2002.
    Decided Aug. 14, 2002.

      James G. Abourezk, Sioux Falls, for petitioners and appellants.
    Lisa Z. Rothschadl, Bon Homme County State’s Attorney, Tyndall, for respondents and appellees.
    James D. Taylor of Taylor & Miskimins, P.C., Mitchell, for intervenors and appel-lees.
   GILBERTSON, Chief Justice.

[¶ 1.] Duane Vitek, Michael Neth, Sandy Neth, Steven Neth and Sharon Neth (collectively Vitek) appealed the decision of the Bon Homme County Board of Commissioners (County) in granting a variance for the construction of a 3300-head hog finishing facility. The circuit court dismissed for failure to timely and properly perfect the appeal. We reverse and remand.

FACTS AND PROCEDURE

[¶ 2.] On April 26, 2001, the Bon Hom-me County Board of Adjustment (Board) granted a variance to Leo and Linda Ped-ersen (Pedersen), allowing them to construct a hog confinement facility in Bon Homme County. The state’s attorney for Bon Homme County prepared findings of fact and conclusions of law, which Board adopted on May 25. On June 28, County held a hearing regarding Board’s decision to grant the variance. County affirmed the decision and adopted Board’s findings of fact and conclusions of law, which were later published on July 25. On July 27, Vitek filed a direct appeal to the First Judicial Circuit.

[¶ 3.] On August 18, 723 citizens of Bon Homme County signed petitions with the county auditor seeking a referendum vote. On August 21, County voted unanimously to reject the petitions. In doing so, County stated its action of granting the variance was a quasi-judicial administrative decision, as opposed to a legislative decision, and therefore not subject to the referendum process set forth in SDCL 7-18A-15.1

[¶ 4.] On August 29, Vitek filed an application for writ of mandamus with the circuit court while his direct appeal was still pending. Vitek sought to compel County to submit its decision regarding the variance to a vote. The circuit court denied the writ on September 7, reasoning Vitek had an adequate remedy at law, in the form of his direct appeal, pursuant to SDCL 7-8-27. The circuit court further stated that the appeal constituted Vitek’s exclusive remedy under SDCL 7-8-32. Vitek appealed the circuit court’s denial of the writ to this Court. See Vitek I, 2002 SD 45, 644 N.W.2d 231. This Court recognized the grant of a writ of mandamus is contingent upon whether the petitioner has “a clear legal right to performance of the specific duty sought to be compelled....” Id. at ¶ 8. We also noted the incomplete nature of the record regarding a detailed ruling on the legislative versus administrative portion of the analysis. Therefore, we reversed the. circuit court’s decision and remanded for a determination of whether Vitek had a clear legal right to referendum without reference to the exclusive remedy provision in SDCL 7-8-32.

[¶ 5.] In the interim, Vitek proceeded with his direct appeal before the circuit court. Publication of County’s decisión on July 25 triggered the beginning of the 20-day statutory period to appeal under SDCL 7-8-29. Vitek mailed notice of his appeal on July 26 to the Bon Homme County Clerk of Courts. He also served copies of the notice by mail on the Chairman of the Bon Homme County Board of Commissioners and the Bon Homme County State’s Attorney. Pursuant to an agreement of the parties, the circuit court granted a stay of the direct appeal on August 22, 2001. On October 22, Vitek filed a $250 cash bond in the form of a check, which was cashed on October 24. The circuit court lifted the stay of the direct appeal on October 26.

[¶ 6.] Pedersen moved for judgment on the pleadings on November 21. He alleged that Vitek had failed to personally serve at least one member of the Bon Homme County Board of Commissioners and failed to timely file the bond required in SDCL 7-8-27. County joined in the motion. The circuit court granted Peder-sen’s motion for judgment by order dated December 17, 2001. Vitek now appeals the circuit court’s decision, raising the following issues:

1. Whether service by mail of a notice of appeal on the. Chairman of the Bon Homme County Board of Commissioners and on the Bon Homme County State’s Attorney is sufficient to perfect Vitek’s appeal.
2. Whether Vitek’s posting of the $250 cash bond, after the 20-day time limit has expired, deprives the circuit court of jurisdiction.

STANDARD OF REVIEW

[¶ 7.] Vitek appeals the circuit court’s judgment on the pleadings in favor of County.

A motion to dismiss under SDCL 15 — 6— 12(b) tests the legal sufficiency of the pleading, not the facts which support it. For purposes of the pleading, the court must treat as true all facts properly pled in the complaint and resolve all doubts in favor of the pleader. “Our standard of review of a trial court’s grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment — is the pleader entitled to judgment as a matter of law?”

Steiner v.. County of Marshall, 1997 SD 109, ¶ 16, 568 N.W.2d 627, 631 (quoting Estate of Billings v. Deadwood Congregation, 506 N.W.2d 138, 140 (S.D.1993)) (internal citations omitted). Thus, all reasonable inferences of fact must be drawn in favor of the non-moving party and we give no deference to the trial court’s conclusions of law. Hansen v. Kjellsen, 2002 SD 1, ¶ 6, 638 N.W.2d 548, 549 (citations omitted).

[¶ 8.] This case also involves the statutory interpretation of SDCL 7-8-27 and 7-8-29, which is reviewed de novo. Our rules of statutory construction are as follows:

The purpose of statutory construction is to discover the true intention of the law, which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the Legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and [this] Court’s only function is to declare the meaning of the statute as clearly expressed.

Associated Sch. Bds. of S.D., Inc. v. Hughes County, 2002 SD 41, ¶ 9, 643 N.W.2d 417, 420 (quoting Martinnaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611).

ANALYSIS AND DECISION

[¶ 9.] 1. Whether service by mail of a notice of appeal on the Chairman of the Bon Homme County Board of Commissioners and on the Bon Homme County State’s Attorney is sufficient to perfect Vitek’s appeal.

[¶ 10.] When County granted Pedersen a variance to build the hog finishing facility, Vitek appealed County’s decision to the circuit court. An aggrieved party may appeal a county commission’s decision pursuant to SDCL 7-8-27, which reads:

From all decisions of the board of county commissioners upon matters properly before it, there may be an appeal to the circuit court by any person aggrieved upon filing a bond in the amount of two hundred fifty dollars with one or more sureties to be approved by the county auditor conditioned that the appellant shall prosecute the appeal without delay and pay all costs that he may be adjudged to pay in the circuit court. Such bond shall be executed to the county and may be sued in the name of the county upon breach of any condition therein.

Additionally, SDCL 7-8-29 states, “Such appeal shall be taken within twenty days after the publication of the decision of the board by serving a written notice on one of the members of the board....” While these statutes direct when and to whom service is made, they do not direct the method, of service.

[¶ 11;] We must note at the outset that this type of appeal falls somewhere between an administrative appeal and an appeal to this Court. An appeal from a county commission decision is’not covered by chapter 1-26, which refers to administrative appeals, because the term “agency” does not include “any unit of local government.” See SDCL 1-26-1. Neither, however, is it completely covered by chapter 15-6, which refers to civil appeals generally. “When the question is which of two enactments the [Legislature intended to apply to a particular situation, terms of a statute relating to a particular subject will prevail over the general terms of another statute.” Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citations omitted). But where such an enactment leaves a particular question unanswered, we look to other applicable statutes for guidance. Therefore, chapter 7-8 controls the procedure for appealing a county commission decision as far as it goes, but in determining the proper method of service, it is necessary to look elsewhere.

[¶ 12.] We recently addressed this problem in the case of Bison Township v. Perkins County, 2002 SD 22, 640 N.W.2d 503. There, the circuit court dismissed the township’s appeal because service was mailed to the appropriate parties on day 20, but was not received until day 21. Id. at ¶ 10. The county contended that the service was defective, not only because it was untimely, but also because the service was not personal. Id. at ¶ 11. The county directed this Court to SDCL 15-6-4(d)(4)© for support of its assertion. This Court noted, however, that SDCL 15-6-4 did not apply to service of a notice of appeal, as that section was only applicable to service of summons. Id. at ¶ 12. We went on to unanimously hold that “[service of a notice of appeal falls within [SDCL 15-6-5(a) ] and therefore can be deemed complete upon mailing.” Id.

[¶ 13.] Notwithstanding this Court’s Bison Township decision, County asserts that this Court’s decision in Maasjo v. McLaughlin School District No. 15-2, 489 N.W.2d 618 (S.D.1992), is controlling. We disagree. We are aware that this Court applied SDCL 15-6-4(d)(4) in that case to require personal service upon a school board member in an appeal from a school board’s decision. Id. at 624. There, this Court was faced with the same statutory deficiency in SDCL 13-46-3 as we find in SDCL 7-8-29. Neither statute directs the method of service of a notice of appeal. In Maasjo, both parties directed this Court to SDCL 15-6-4, a provision referring to service of summons. Id. The board advocated use of SDCL 15 — 6—4(d), requiring personal service, while the other party preferred SDCL 15 — 6—4(e), providing for substituted service. Neither party considered SDCL 15-6-5, which covers all filings after the initial pleadings. Even though SDCL 15-64(d)(4)(v) applied only to service of summons, this Court decided application of that statute, rather than SDCL 15-6-5, was more appropriate because of its specific reference to school boards. Id.

[¶ 14.] However, there is no such reason in this case to depart from the statutory authority set out in SDCL 15-6-5' or this Court’s decision in Bison Township. Thus, we decline to follow the Ma-asjo decision. Moreover, due process does not automatically require that jurisdiction be obtained by personal service when the statute is silent as to the particular method. See Mullane v. Cent. Hanover Bank, 339 U.S. 306, 314-15, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950). Lest there be any confusion, we now reiterate our holding that an appeal to a circuit court from the decision of a county commission is begun by service of a notice of appeal and that service is complete upon mailing.

[¶ 15.] 2. Whether Vitek’s posting of the $250 cash bond after the 20-day time limit has expired, deprives the circuit court of jurisdiction.

[¶ 16.] County argues that the posting of a bond under SDCL 7-8-27 is the triggering event for the circuit court’s jurisdiction over the appeal. This section provides for appeals “to the circuit court by any person aggrieved upon filing a bond in the amount of two hundred fifty dollars with one or more sureties to be approved by the county auditor....” County maintains the phrase “upon filing a bond” is determinative. Additionally, County contends SDCL 7-8-29 requires the cost bond to be filed within 20 days. If the bond is not timely filed, County maintains that an appeal to the circuit court is not perfected and the circuit court does not have jurisdiction over the appeal. We disagree.

[¶ 17.] There are two clauses contained within SDCL 7-8-29: the time requirement for serving notice of appeal and the direction to the county auditor to prepare and deliver a transcript. SDCL 7-8-29 provides:

Such appeal shall be taken within twenty days after the publication of the decision of the board by serving a written notice on one of the members of the board ...; and the county auditor shall upon the filing of the required bond and the payment of his fees, which shall be the same as allowed registers of deeds for like services, make out a complete transcript of the proceedings of the board relating to the matter of its decision and deliver the same to the clerk of courts.

(emphasis added). County claims that the statute is written in the conjunctive. As such, the 20-day time limit applies to the filing of the cost bond as well as the filing of a notice of appeal. The fallacy of this argument is evident in both the construction of the statute and its purpose.

[¶ 18.] First, we note that the “and” separating the two clauses, contrary to County’s assertion, does not import the 20-day time requirement of the first clause into the second clause. The two clauses are clearly separated by a semicolon, indicating that the two clauses should be read in the disjunctive. Accordingly, the construction of the statute indicates the Legislature’s intent to apply the 20-day limit only to the service of a notice of appeal.

[¶ 19.] Second, the purpose behind this statute was to expedite the appeals process by: (a) requiring the initiation of the appeal within 20 days of the county commission’s decision through service of a notice of appeal; and (b) requiring the appel-lee to post a bond to pay for the required transcript. County’s strained construction would force the 20-day requirement to also apply to the auditor’s duty to prepare and submit a transcript. See Martin-maas, 2000 SD 85 at ¶49, 612 N.W.2d at 611 (stating statutes should be construed as a whole and according to their intent, but “it is presumed that the [Legislature did not intend an absurd or unreasonable result.”). If an appellant filed its bond at the eleventh hour on day 20, County’s construction of this statute would yield the absurd result of requiring the auditor to immediately produce and submit a transcript or the court would be forced to dismiss the appeal. This was not the intention of the Legislature in enacting SDCL 7-8-29.

[¶ 20.] County further claims that this Court’s holding in Bison Township is contrary to our holding in Claggett v. South Dakota Department of Revenue, 464 N.W.2d 212 (S.D.1990). In Claggett, the appellant was contesting the Department of Revenue’s assessment of a tax deficiency. SDCL 1-26-31 requires that an appeal from the Department’s decision must be commenced within 30 days of its final decision. SDCL 10-59-9 provides, in pertinent part, “[n]o appeal,from a final decision of the secretary upon an assessment may be taken unless any amount ordered paid by the secretary is paid or a bond filed to insure payment of such amount.” In Claggett, this Court held that because the appellant had failed to pay the tax assessment within the 30 day time limit, the circuit court had no subject matter jurisdiction over the appeal. Id. at 214.

[¶ 21.] Claggett, however, differs markedly from both Bison Township and the case at bar for one very important reason: Claggett dealt with SDCL 10-59-9, which specifically prohibits the initiation of an appeal without payment of the tax assessment or the positing of a bond. Clearly, no such statute was at issue in Bison Township. Nor is one at issue here. Thus, Claggett is not determinative of the outcome in this case.

[¶ 22.] Furthermore, the failure to provide a timely bond in its proper form, contrary to County’s assertion, does not mandate dismissal of an appeal. As noted above, the circuit court acquires jurisdiction upon service of a notice of appeal. This Court has routinely upheld the policy that an appellant is allowed to cure a deficiency in the bond so long as the bond is properly undertaken prior to hearing the appeal. See, e.g., Bison Township, 2002 SD 22, 640 N.W.2d 503 (holding failure to file bond does not deprive court of jurisdiction); Landstrom v. Shaver, 1996 SD 49, 550 N.W.2d 699 (holding judgment debtors should be^ allowed to provide adequate security when executed bonds are invalid); Reich, 61 S.D. 311, 248 N.W. 495 (holding this Court acquires jurisdiction when notice of appeal is filed and served, thus deficient bond may be amended without detriment to jurisdiction); Fullerton Lumber Co. v. Tinker, 21 S.D. 647, 115 N.W. 91 (1908) (holding filing of notice of appeal confers jurisdiction even if appeal is not perfected by execution of bond); Morrison v. O’Brien, 17 S.D. 372, 97 N.W. 2 (1903) (holding failure to file bond by reason of mistake or accident is a curable defect). Neither are we persuaded by County’s argument that a cash bond, as opposed to a bond “filed with one or more sureties” as described in SDCL 7-8-27, is somehow inferior.

[¶ 23.] We now hold that the circuit court erred in dismissing Vitek’s appeal. We reverse and remand for a determination of the substantive issues raised by Vitek on the merits.

[¶ 24.] SABERS, AMUNDSON, KONENKAMP, and ZINTER, Justices, concur.

      . See Vitek v. Bon Homme County Board of Commissioners (Vitek I), 2002 SD 45, 644 N.W.2d 231.

      . We find it interesting to note that the certificate of service names Pedersen as Intervener, even though he did not move to intervene until October 23 and the motion was not granted until November 14.

      . County also argues that our decision in Bison Township was incorrect as it "consistently refers to filings with the circuit court clerk [instead of with the auditor] as if such an appeal was a continuation of a prior judicial proceeding.” This assertion is wrong in two respects. First, cost bonds are filed with the clerk and approved by the auditor. See SDCL 15-26A-23. Second, an appeal to the circuit court from the decision of a county commission is the continuation of a prior proceeding, not a new proceeding. This Court has stated:
      In this jurisdiction the appeal is a continuation of the original action and not a separate proceeding. SDCL 1960 Supp. 33.0104 provides that: "An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment be sooner satisfied.”

        Wentzel v. Huebner, 78 S.D. 471, 475, 104 N.W.2d 476, 478 (1960). See also State Highway Comm’n On Behalf of State v. Wieczorek, 248 N.W.2d 369, 375 (S.D.1976) (quoting same language). That statute has since been replaced by SDCL 15-1-3, which reads, "An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment be sooner satisfied.” County cites no authority supporting its illogical assertion that an appeal from a previous decision is somehow a new proceeding.

      . County cites Aldrich v. Public Opinion Publishing Co., 27 S.D. 589, 132 N.W. 278 (1911), in support if its assertion that, because this is a cost bond and not a supersedeas bond, strict compliance with the statute is required or jurisdiction fails. Aldrich, however, was overruled by this Court’s decision in Reich v. Martin, 61 S.D. 311, 248 N.W. 495, 496 (1933). In Reich, this Court stated:
      Few questions of procedure under our law are in a state of worse confusion than those which have arisen as to the power of this court under section 3167, supra, with reference to undertakings on appeal. We have recently had occasion to advert to this matter in Haines v. Waite, [60 S.D. 199,] 244 N.W. 113 (S.D.1932) where the cases will be found collected. As we there said, the position of this court has been by no means consistent and to reconcile our decisions would be impossible. It was attempted in Aldrich v. Public Opinion Publishing Co.,
        (1911) 27 S.D. 589, 132 N.W. 278, to establish the practice with reference to the point. An examination of subsequent decisions gives rise to grave doubt whether the well-intentioned effort of the majority opinion in the Aldrich Case has been in any wise beneficial. It rather looks, on the contrary, as though that effort to reconcile the irreconcilable has but made confusion worse confounded. We are of the opinion that it is the wiser course for this court now to adopt (and we therefore do adopt) the view advocated by Judges Corson and Haney, dissenting, in the Aldrich Case, which may be succinctly paraphrased as follows: “When notice of appeal is saved and filed in good faith this court acquires jurisdiction of the cause, at least to such an extent as to authorize and permit this court (even though the time for taking the appeal has expired) in its discretion and upon sufficient showing to permit the subsequent doing of any other act necessary to perfect the appeal or malee it effectual, including the amendment of an undertaking, the serving of an undertaking, or the filing of an undertaking, even though no such undertaking has been previously served or filed.'' Any rule laid down in Aldrich v. Public Opinion Publishing Co. (or in prior or subsequent cases) contrary to the statement above set out is expressly overruled.

        Id. at 495-96 (emphasis added).


author: AMUNDSON, Justice. SABERS, Justice GILBERTSON, Chief Justice

text:
    2002 SD 104
    Loren BECK and John and Jane Doe 1-50, Plaintiffs and Appellees, v. CITY OF RAPID CITY, Defendant and Appellant.
    No. 21960.
    Supreme Court of South Dakota.
    Argued April 24, 2002.
    Decided Aug. 14, 2002.

      Courtney R. Clayborne of Johnson, Eis-land, Huffman & Clayborne, Rapid City, for plaintiff and appellees.
    Adam Altman, Assistant City Attorney, Rapid City, for defendant and appellant.
   AMUNDSON, Justice.

[¶ 1.] Loren Beck and John and Jane Doe 1-50 (Beck), Plaintiff/Appellee, moved the circuit court for class certification in a class action suit brought against the City of Rapid City (City), Defendant/Appellant. The circuit court granted certification of the class. City appeals. We remand for reexamination by the circuit court.

FACTS

[¶ 2.] A lawsuit by Beck against City stemmed from our decision in City of Rapid City v. Anderson, 2000 SD 77, 612 N.W.2d 289. In that case we determined that the annexation of property encompassing “the Rapid City Airport [Airport] was invalid because of the lack of contiguity between Rapid City and the annexed airport.” Id. at ¶ 15. Prior to June 14, 2000, City had been collecting sales tax from the businesses operating at the Airport. Beck filed a complaint on July 18, 2000, alleging he had wrongfully been paying sales tax during the time of the subsequently determined wrongful annexation. Beck also alleged that he represented the class of consumers who had been wronged by the tax, and he, on behalf of himself and those similarly situated, sought a refund of all sales tax proceeds paid to City, as well as attorney’s fees, interest and costs.

[¶ 3.] About six months after Beck filed suit, City set up a procedure whereby those who paid city tax during the time of annexation of the subject property could receive a refund. City also passed Ordinance 3640, which appropriated $250,000 to refund money to those who provided proper documentation that they paid sales tax within the annexed property. City then posted notice of the available refunds at the Airport and retail establishments in the Airport.

[¶ 4.] On March 26, 2001, Beck filed a motion to certify the class. The circuit court granted the motion, and appointed Beck to serve as the class representative for those who paid retail sales or service tax to City on the wrongfully annexed property that encompassed the Airport. City appeals, raising the following issue:

Whether the trial court erred by certifying the class.

STANDARD OF REVIEW

[¶ 5.] We have previously held that the standard of review for class action certification is the abuse of discretion standard. Swanson v. Sioux Valley Empire Elec. Ass’n, 535 N.W.2d 755, 759 (S.D.1995) (citing Trapp v. Madera Pacific, Inc., 390 N.W.2d 558, 562 (S.D.1986)).

DECISION

[¶ 6.] The memorandum decision issued by the trial court granted class certification, stating that the requirements for certification are present and that alternative methods of recovery are not superior to the class action lawsuit. City argues the administrative procedure set up, which would permit those entitled to obtain refunds to apply to City for such refunds, is superior to the class action suit, thereby denigrating the need for a class action suit. It argues that under its method, it would be easier for claimants to prove their right to a refund, and that the less formal method of proof is superior to the class action. City further claims the administrative remedy provided by City would provide for instant payment, whereas the class action claimants would have to await the close of litigation and exhaustion of appeals. Finally, City contends the class action would require trial on the merits, where submitting a claim directly to City would ensure, with certainty, the claimant would recover.

[¶ 7.] Our Legislature has enumerated several pre-requisites for class actions. See SDCL 15-6-2S(a); SDCL 15-6-23(b). Of these statutory requirements, City only disputes the circuit court’s finding that the class action is superior to City’s administrative remedy pursuant to SDCL 15 — 6—23(a)(3). We have previously stated that “[i]n deciding whether to allow a class action, a primary determination to be made is whether the class action is superior to, and not just as good as, other available methods for handling the controversy, and such a determination lies in an area where the trial court’s discretion is paramount.” Trapp, 390 N.W.2d at 560. We have further held that the party requesting certification of the class has the burden of proving that the statutory requirements for a class action have been met. See id. We have not, however, had the opportunity to discuss or expound on

the requirement that the class action class be “superior to other available methods for the fair and efficient adjudication of the controversy.” SDCL 15-6 -23(b)(3).

[¶ 8.] In considering the superiority issue, we consider the interests of the class members, litigation already commenced by class members, whether it is desirable to litigate in one forum and management involved with the class. Id. Also, other courts in analyzing this issue consider the amount of potential damages to individual class members. The Minnesota District, Court stated the following:

Unfortunately, this [cjourt’s experience with class actions involving class members whose financial circumstances make it difficult to ascertain their identities or their present whereabouts convinces this [cjourt that a class action is not a superi- or vehicle to provide an appropriate remedy in this situation. The [c]ourt anticipates tremendous difficulty and only limited success in notifying perspective class members of the class action and their rights to opt out and recover a potentially greater damage award under the [Fair Debt Collection Practices Act] if they proceed individually. The Court also anticipates difficulty in ensuring that class members who do not opt out actually receive their damage awards. It is the [c]ourt[’]s experience that the benefits of .such a class action would inure, if at all, to class counsel and the designated recipients of class finds that the Court is unable to distribute to class members. Thus, the Court finds that presentation of individualized claims in separate proceedings would be superior to the vehicle of a class action.

Sonmore v. CheckRite Recovery Serv., Inc., 206 F.R.D. 257, 266 (D.Minn.2001) (denying motion for class certification).

[¶ 9.] A litany of cases from California courts have upheld and expanded upon the same proposition presented in Sonmore. In Blue Chip Stamps v. Superior Court, the California Superior Court stated the following:

When potential recovery to the individual is small and when substantial time and expense would be consumed in distribution, the purported class member is unlikely to receive any appreciable benefit. The damage action being unmanageable and without substantial benefit to class members it must then be dismissed. And, when the individual’s interests are no longer served by group action, the principal' — if not the sole— beneficiary then becomes the class action attorney. To allow this is “to sacrifice the goal for the going,” burdening if not abusing our crowded courts with actions lacking proper purpose.

18 Cal.3d 381, 134 Cal.Rptr. 393, 556 P.2d 755, 758 (1976) (internal citations omitted). The Blue Chip Stamps court directed the lower court to vacate the order certifying the class and to dismiss the class action. Id. at 756. In Caro v. Procter & Gamble Co., the court cited Blue Chip Stamps approvingly and found that where class members would receive miniscule amounts of damages and the court’s burden was not eased by the class action, no certification would be granted. 18 Cal.App.4th 644, 22 Cal.Rptr.2d 419, 426-27 (1993) (addressing denial of class certification in suit for false representation of the characteristics of orange juice products). Caro affirmed the trial court’s denial of class certification because of the lack of substantial benefit to the litigants involved. Id. at 424-25.

[¶ 10.] Next, in Linder v. Thrifty Oil Company, the California Supreme Court analyzed a trial court’s denial of class certification and expanded on the significance placed on small damage amounts by stating that the trial court has an obligation to deter and redress wrongdoing, in spite of small damage claims. 23 Cal.4th 429, 97 Cal.Rptr.2d 179, 2 P.3d 27, 38 (2000). The Linder court explained that the “problems which arise in the management of a class action involving numerous small claims do not justify a judicial policy that would permit the defendant to retain the benefits of its wrongful conduct and continue that conduct with impunity.” Id. Linder further explained:

While the potential amount of each individual recovery is a significant factor in weighing the benefits of a class action, it is not the only factor requiring consideration .... Moreover, the Court of Appeals assumed that substantial time and expense would be required to provide legally adequate notice to class members, even though the trial court had yet to take evidence and rule on the matter. Accordingly, without intimating any view on the matter, we find it appropriate to leave this issue to the trial court for reexamination.

Id. at 39. Thus, the Linder court remanded so that the trial court could determine whether the class certification was appropriate when placing the proper emphasis on benefits other than financial recovery. Id. at 40.

[¶ 11.] These cases make it clear that small damage amounts are considered, but are not the sole determining factor when looking at the superiority of a class action in comparison'to other methods of resolution. Courts also consider factors like judicial efficiency and manageability of the group involved. Williamson v. Sanofi Winthrop Pharm., Inc., 347 Ark. 89, 60 S.W.3d 428, 435 (2001) (affirming the denial of class certification and stating the “superiority requirement is satisfied if class certification is the more ‘efficient’ way of handling the case, and it is fair to both sides”). Further .yet, the Supreme Court of Minnesota has said that “where potential recovery is too small to justify individual litigation, a class action is proper” as it is “unreasonable to assume” that each individual would litigate on their own. Forder v. State Farm Mut. Auto. Ins. Co., 310 N.W.2d 124, 130 (Minn.1981) (analyzing the certification of a class and remanding so the trial court could reconsider whether a class action was the “superior” method of recovery).

[¶ 12.] Great discretion is usually given to the trial judge in certification cases, and certification itself is favored by courts in questionable cases.

The weight of authority suggests that “even in doubtful cases the maintenance of class action is favored,” because de-certification is always possible, and that wherever a question exists, “the court should give the benefit of the doubt to approving the class.... [I]f [the court] does have doubts ... the law requires that they be resolved in favor of certification.”

Coleman v. Cannon Oil Co., 141 F.R.D. 516, 530 (M.D.Ala.1992) (internal citations omitted) (upholding class certification of class in price fixing conspiracy suit against gasoline sellers). Keeping this discretion in mind, we also note the unique factual scenario faced in this case. In Blue Chip Stamps, 134 Cal.Rptr. 393, 556 P.2d at 759-60, the concurrence by Justice Tobri-ner states that “given the unusual facts of this case, neither proof of claim procedures nor fluid recovery mechanisms could function as effective means of affording class members meaningful compensation for the alleged overpayments of the sales tax.” Similarly, this may be the same result in the attempted class action suit by Beck against City. Also, in this case there is no recorded evidence that City intentionally deceived those injured by the improper annexation of the land at issue. This in turn eliminates the potential of punishing a wrongdoer, which has been the objective in some class action suits. Linder, 97 Cal.Rptr.2d 179, 2 P.3d at 39.

[¶ 13.] Furthermore, there is evidence that tens of thousands of potential class members exist, but there is no evidence in the record before us of how counsel for the plaintiffs plans to locate class members and efficiently manage the class he plans to represent. We also note that some of the information presented at oral argument by Beck’s counsel, such as the ability to obtain specific information about class members from car rental businesses who had operated out of the Airport during the time of annexation, is not part of the record before us. Thus, we decline to utilize that information in our decision in this case. On the limited record presented we cannot analyze whether there are class members risking more than nominal damages; whether the class members will be effectively contacted; whether judicial efficiency is bettered by the use of a class action; or whether any other matters pertinent to finding superiority as listed in SDCL 15 — 6—23(b)(3) exist.

[¶ 14.] Further development of the record must be had before we can effectively determine whether the class action is superior to City’s administrative remedy. See City of Sioux Falls v. Johnson, 2001 SD 108, ¶ 22, 632 N.W.2d 849, 855 (stating that because the Court was unable to do a “meaningful appellate review” the case is remanded to the trial court for a determination on the issue); Jensen v. Weyrens, 474 N.W.2d 261, 266 (S.D.1991) (stating “ ‘the appellate court may remand for ... further findings’ .if necessary to a meaningful review of the decision”) (citation omitted). We cannot place a stamp of approval on the eertification of the class because the record is inadequate for a meaningful appellate review. See Warner v. Waste Mgmt., Inc., 36 Ohio St.3d 91, 521 N.E.2d 1091, 1096 (1988) (remanding decision to certify class because the record was “devoid of any evidence indicating the representatives are members of the class seeking injunctive relief’). We remand for further proceedings at the trial court level so that the record can fully be developed regarding this issue. Therefore, it remains to be seen whether the trial court’s certification should be decertified, modified or remain unchanged. On remand, when determining whether the class should remain certified, the trial court should consider the class characteristics, including the amount of money involved.

[¶ 15.] Based on our decision on this issue, we find it unnecessary to address any of the sub-issues presented.

[¶ 16.] KONENKAMP, Justice, concurs.

[¶ 17.] SABERS, Justice and GORS, Circuit Judge, concur in result.

[¶ 18.] GILBERTSON, Chief Justice, dissents.

[¶ 19.] GORS, Circuit Judge, sitting for ZINTER, Justice, disqualified.

SABERS, Justice

(concurring in result).

[¶ 20.] I join that part of Justice Amundson’s writing which reverses and remands the certification of the class action in full. Therefore, I would reverse the certification of the class action in full and limit it to identifiable persons and amounts.

[¶ 21.] The claim procedure established by the City appears to be the best and fairest as to non-identifiable persons and amounts, and those who prefer to opt out of the limited class action provided for above.

[¶ 22.] The limited class action and the City procedure combined will be the most effective and economical method and provide an option to those who wish to obtain refunds and avoid expenses for attorneys. The two methods combined should guarantee the most refunds at less cost and expense to all concerned. See, e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) (holding that a limited fund set aside by the defendants for payment of injured persons, in combination with a limited class action suit, was the appropriate remedy for plaintiffs). See also Smith v. United Healthcare Svcs., Inc., 2002 WL 192565 (D.Minn.2002) (holding that “the relatively small amounts at stake for each member render the class action a superior method for fair and efficient adjudication of this dispute”); Zeigler v. Gibralter Life Ins. Co. of Am., 43 F.R.D. 169, 173 (D.S.D.1967) (stating that class action is the preferred method when it is “superior to other available methods for the fair and efficient adjudication of the controversy”) (citation omitted); Trapp, 390 N.W.2d at 561 (same).

GILBERTSON, Chief Justice

(dissenting).

[¶ 23.] Before this Court addresses issues such as the optimum course of action for refund mechanisms, it must first determine if there is jurisdiction for the trial court to implement a particular proposal such as a class action.

[¶ 24.] City argues that because it is a government entity, sovereign immunity precludes certification of a class against it. Article III § 27 of the South Dakota Constitution provides: “The Legislature shall direct by law and in what manner and in what court suit may be brought against the state.” In Lick v. Dahl, this Court considered whether a class action could be maintained by a taxpayer against a county for the recovery of “refunds attributable to an alleged illegal tax.” 285 N.W.2d 594, 599, 10 A.L.R.4th 645, 652 (S.D.1979). This Court, after reviewing ease law on the issue, concluded, “since class actions are not expressly provided for in either [tax refund] statute, SDCL 15-6-23 cannot be employed in suits for tax refunds.” Id. at 600. Cf. Van Emmerik v. State, 298 N.W.2d 804 (S.D.1980) (allowing action by utility retailers against state for tax refund based on authority in SDCL 10-45-53).

[¶ 25.] The fundamental reason is twofold. Most obviously, SDCL 15-6-23 contains no express language abrogating sovereign immunity. Id. Nor is any identified by this Court. Secondly, any such abrogation language, if existent, would be void, as SDCL 15-6-23 is not a statute, but only a procedural rule adopted by this Court. Article III § 23 does not authorize abrogation of sovereign immunity by rule of this Court.

[¶ 26.] Thus, I would reverse the trial court with instructions to deny class certification. For the above reasons I respectfully dissent.

      . City states the $250,000 is not an approximation of the amount of tax collected during annexation, and that that amount has yet to be accurately calculated. It further states that measures have been taken to ensure supplemental funds will be appropriated if necessary.

      . Under City's refund guidelines, it would accept dated receipts showing the location of the purchase or other verifiable evidence showing purchase of taxable goods and/or services. The class action, City alleges, would require claimants to have all receipts showing the amount of tax paid, or be denied a refund.

      . SDCL 15-6-23(a) provides:
      One or more members of a class may sue or be sued as representative parties on behalf of all only if
      (1) the class is so numerous that joinder of all members is impracticable,
      (2) there are questions of law or fact common to the class,
      (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class,
      (4) the representative parties will fairly and adequately protect the interest of the class, and
      (5) the suit is not against this state for recovery of a tax imposed by chapter 10-39, 10-39A, 10-40, 10-41, 10-43, 10-44, 10-45, 10-46, 10-46A, 10-46B, or 10-52.

      . In addition to meeting the pre-requisites of SDCL 15-6-23(a), the following conditions must be met pursuant to SDCL 15 — 6—23(b):
      (1)the prosecution of separate actions by or against an individual member of the class would create a risk of
      (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or,
      (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interest of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interest; or
      (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate permanent injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
      (3) the court finds that the questions of law or fact common to the members of the class predominate over any question affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
      (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 members of the class;
      (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;
      (D) the difficulties likely to be encountered in the management of a class action.

      . We note that during proceedings on remand, the trial court will have broad discretion in class certification, in part, because the class "is always subject to modification should new developments ... require.” Boudreaux v. State Dep’t of Transp. and Dev., 690 So.2d 114, 122 (La.Ct.App.1997).
      A court may modify a proposed definition of the class where the court believes that the original definition is inadequate. To this end, the trial court may order the plaintiff class representatives in a class action to amend their complaint to define with particularity the class of individuals whom the plaintiffs seek to represent, where the original complaint fails to sufficiently or properly define the class sought to be represented. Leave to amend the complaint in a class action to redefine the class is to be freely given, except where prejudice may result to either the defendants or to those persons dropped from the class. Where the definition of the class is overbroad, amorphous, or otherwise inadequately defined, the proposed class representatives will be given leave to amend the pleadings so as to allow the representative to adequately define a clearly ascertainable class, which representatives are qualified to represent.... Leave to amend to redefine the class may also be justified by factors bearing on the manageability of the class, including problems related to the identity of the members and class notice. The class definition may be modified and subclasses defined as a result of discovery or even developments at trial.
      32B Am.Jur.2d Federal Courts § 1837 (1996): Additionally, the trial court may de-certify the class if the evidence provides for decertification. Duhe v. Texaco, Inc., 779 So.2d 1070, 1086 (La.Ct.App.2001) (holding class certification appropriate and stating that anytime "before a decision on the merits of the common issues, the court may alter, amend, or recall its initial ruling on certification”). See also 59 Am.Jur.2d Parties § 106 (stating that "[a]s evidentiary facts are developed, the trial court may decertify, subclassify or modify a previously certified class action”).

      . The record reflects that many persons and amounts are identifiable through the business records of the retailers at the Airport.

      . Likewise, several other courts have held that statutory procedures for obtaining refunds of unlawfully exacted taxes, such as those implemented by City, are exclusive remedies. See Propriety of Class Action in State Courts to Recover Taxes, 10 A.L.R.4th 655, 663 (1981) (citing Lick, 285 N.W.2d 594, Ellsworth Freight Lines, Inc. v. State Tax Com., 651 S.W.2d 130 (Mo.1983); Lilian v. Commonwealth, 467 Pa. 15, 354 A.2d 250 (1976); Charles v. Spradling, 524 S.W.2d 820 (Mo.1975); Henderson v. Carter, 229 Ga. 876, 195 S.E.2d 4 (1972); Hooks v. Comptroller of Treasury, 265 Md. 380, 289 A.2d 332 (1972); Hansen v. Lincoln County, 188 Neb. 461, 197 N.W.2d 651 (1972)). Those courts reasoned that states had waived their sovereign immunity only to the extent that persons seeking refunds complied with the statutory procedures, which did not include class actions. Id.

      . SD RC, Rule 23 was adopted by Supreme Court Order # 2 on March 31, 1969, and became effective July 1, 1969. The only subsequent legislative amendments to this Court rule occurred in 1982 and 1985 when the Legislature made it even more explicit that class actions could not be maintained against the state, itself, for recovery of certain taxes. See 1982 Sudses. ch. 99 § 9; 1985 Sudses. ch. 15 § 31. However, these amendments are consistent with Lick and in no way lessened Lick's rationale by enacting language that would result in an abrogation of sovereign immunity against a municipality. Article V § 12 of the South Dakota Constitution authorizes the Legislature to amend or change the rules of this Court.