DFG GROUP, LLC., a Florida Limited Liability Company d/b/a THE GARDENS; HERITAGE MANOR OF MEMORIAL PARK, INC., a Florida corporation; and MEMORIAL PARK OF BOCA RATON, INC., a Florida corporation, Appellants,
MARK S. STERN, Appellee.
final until disposition of timely filed motion for rehearing.
of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Catherine M. Brunson,
Judge; L.T. Case No. 2012CA018827MB.
C. Borucke of Cole, Scott & Kissane, P.A., Tampa, and Lee
M. Cohen and Ian Koven of Cole, Scott & Kissane, P.A.,
West Palm Beach, for appellant DFG Group, LLC.
H. Charlip of Charlip Law Group, LC, North Miami, for
DFG Group challenges the trial court's order approving a
class action with appellee as the class representative in
this litigation over alleged violations of the Florida
Deceptive and Unfair Trade Practices Act ("FDUTPA")
in connection with the purchase of mausoleum crypts.
§§ 501.201-.213, Fla. Stat. (2012). Appellant
claims that appellee lacks standing to be a class
representative as it made no representations to him to give
rise to any liability, and it is not liable for FDUTPA
violations by its predecessor. We agree and reverse.
initial complaint, which was not filed as a class action,
alleged that appellee, Mark S. Stern, through his companion,
purchased a crypt in Heritage Manor Memorial Park of Boca
Raton in 1999. At the time, Stern alleged that
representatives of Heritage Manor made several material
representations to him: 1) the North Sanctuary was designated
and reserved only for the burial or encrypting of the remains
of persons of the Jewish faith; 2) the North Sanctuary
construction was to include certain materials and/or design
elements; and 3) the interior crypts and niches sold as
"chapel view" in the North Sanctuary would remain
as "chapel view" crypts and niches.
Stern's purchase, Heritage Manor sold the cemetery to DFG
Group, d/b/a "The Gardens." Thereafter, Stern made
several visits to the cemetery over the years and discovered
that not all persons buried in the North Sanctuary appeared
to be of the Jewish faith; the North Sanctuary was being
redesigned and did not include the same design elements
represented to him at his purchase; and his crypt no longer
had a chapel view.
he had negotiated the right to sell his crypt back to
Heritage Manor in his purchase contract (a provision unique
to his agreement), Stern sued Heritage Manor and DFG in 2012
for FDUTPA violations and violations of the Funeral,
Cemetery, and Consumer Services Act. The complaint alleged
various misrepresentations, all of which were made by
Heritage Manor representatives. The deceptive acts concerned
marketing that the North Sanctuary of the Mausoleum was to be
exclusively Jewish; the sanctuary was intended to be
"beautiful" with specific attributes (stained
glass, high ceiling, inlaid with gold leaf); and the
"chapel view" for which he and class members paid a
premium would remain a chapel view. Sometime after the filing
of the complaint, Heritage Manor settled with Stern and
ceased to be a party to the proceedings.
years later, Stern moved to amend his complaint to allege a
class action and for class certification, seeking to
represent the class. After a hearing, the trial court
certified three subclasses to include "[a]ll natural
persons and business entities who purchased a crypt or niche
from DFG Group, LLC or its predecessor based upon deceptive
or unfair representations" related to the North
Sanctuary being dedicated to the Jewish faith, being built
with certain design elements, and maintaining the
"chapel view" of certain crypts and niches.
appeals from this order. Initially, DFG contends that Stern
lacks standing to bring a class action against it because it
made no representations to Stern, nor did Stern purchase any
crypts from DFG. Further, DFG contends that it did not assume
any FDUTPA liability in its asset purchase agreement with
Heritage. The issue of standing is reviewed de novo. See
Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 116 (Fla.
2011). We agree that Stern lacks standing.
standing of the class representative is a threshold inquiry
that must be addressed and answered in determining
commonality and typicality of a class." Neighborhood
Health P'ship, Inc. v. Fischer, 913 So.2d 703, 706
(Fla. 3d DCA 2005). Where the purported class representative
has no live claim against the defendant, the class should not
be certified. Id.; see also Olen Props. Corp. v.
Moss, 981 So.2d 515, 517 (Fla. 4th DCA 2008); United
Auto. Ins. Co. v. Diagnostics of S. Fla., Inc., 921
So.2d 23, 25 (Fla. 3d DCA 2006).
consumer claim for damages under FDUTPA has three elements:
(1) a deceptive act or unfair practice; (2) causation; and
(3) actual damages." Rollins, Inc. v. Butland,
951 So.2d 860, 869 (Fla. 2d DCA 2006). Stern did not purchase
any crypt from DFG. DFG made no representations to him to
induce him to enter into a purchase contract. Therefore, he
suffered no injury caused by representations made by DFG.
Wooden v. Bd. of Regents of the Univ. Sys. of Ga.,
247 F.3d 1262, 1288 (11th Cir. 2001) ("[J]ust as a
plaintiff cannot pursue an individual claim unless he proves
standing, a plaintiff cannot represent a class unless he has
standing to raise the claims of the class he seeks to
addition, DFG has no liability for any possible FDUTPA claim
Stern may have had against Heritage. In Bernard v. Kee
Manufacturing Co.,409 So.2d 1047 (Fla. 1982), the court
established the requirements to impose ...