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Discount Sleep of Ocala, LLC v. City of Ocala

Florida Court of Appeals, Fifth District

January 5, 2018

CITY OF OCALA, FLORIDA, Appellee/Cross-Appellant.


         Non-Final Appeal from the Circuit Court for Marion County, Lisa D. Herndon, Judge.

          Derek A. Schroth, James A. Myers and Sasha O. Garcia, of Bowen/Schroth, Eustis, for Appellants/Cross-Appellees.

          George Franjola and Patrick G. Gilligan, of Gilligan, Gooding, Franjola & Batsel, P.A., Ocala, for Appellee/Cross-Appellant.

          ORFINGER, J.

         Discount Sleep of Ocala LLC, d/b/a Mattress Warehouse, and Dale W. Birch, individually and as representatives of a putative class of others similarly situated (collectively "Appellants"), appeal from a non-final order denying class certification. We reverse the order denying class certification. On the City of Ocala's ("the City") cross-appeal, we affirm without further discussion.


         This case concerns the City's imposition of a fire service user fee charged to customers of its city-owned utility. Since 2006, the City has enacted several ordinances that established, repealed, and later reinstated the fire service user fees. In 2014, Appellants filed a class action lawsuit against the City, challenging the validity of Ordinance 2010-43, which repealed an earlier ordinance and reinstated the previously repealed fire service fees. The trial court dismissed Appellants' original complaint with prejudice based on the statute of limitations. This Court reversed the order of dismissal, concluding that Appellants' complaint was timely filed. See Disc. Sleep of Ocala, LLC v. City of Ocala, 200 So.3d 156, 157 (Fla. 5th DCA 2016).[1]

         On remand, Appellants filed a second amended complaint, seeking a declaration that the fire service user fee enacted by the City and collected from them and all other City utility customers as part of the monthly utility bill is invalid, illegal, and unconstitutional. Appellants further asked the court to order the City to refund the fees collected. Appellants also filed a second motion for class certification, which the trial court denied after conducting an evidentiary hearing. The trial court concluded that Appellants lacked standing to represent the putative class members, and that the class could not be certified because Appellants failed to satisfy the commonality, typicality, and adequacy prongs of the class certification test. The trial court further found that Appellants failed to prove that common issues predominated over individual questions and that a class action was the superior means of adjudicating the controversy. As we will explain, we disagree.


         A. Standing.

         The standing of a plaintiff to bring an action is a threshold inquiry that must be made before addressing whether the case is properly maintainable as a class action. Ferreiro v. Phila. Indem. Ins. Co., 928 So.2d 374, 376 (Fla. 3d DCA 2006). "A trial court's decision as to whether a party has satisfied the standing requirement is reviewed de novo." Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 116 (Fla. 2011).

         "To meet the . . . standing requirement, a plaintiff must have suffered an 'injury in fact' that is 'distinct and palpable'; the injury must be fairly traceable to the challenged action; and the injury must be likely redressable by a favorable decision." Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). The putative class representative must establish that a case or controversy exists between him or her and the defendant that will continue throughout the litigation. Id. at 117. A case or controversy exists if a party alleges an actual or legal injury that the relief sought will address. Id. Here, in their second amended complaint, Appellants alleged they and the other putative class members paid the fire service user fees that the City charged and continues to charge. Appellants have alleged an economic injury, fulfilling the actual injury requirement of standing in their claim for declaratory relief and damages against the City. See id. ("In this case, Sosa has suffered an economic injury, fulfilling the actual injury requirement of standing.").

         The trial court erred in determining that the class should not be certified because the class could not include members who "paid the fire service user fee but who are no longer required to do so." Here, even if a customer no longer pays the fire service user fee, the customer would still be able to be part of the class, or subclass, if the customer paid the fire service user fee during the relevant time period. Those members suffered the same injury, i.e., their payment of the allegedly invalid fire service user fee; their injury is concrete and particularized; and their injury would be redressed by the requested refund.

         B. Rule 1.220(a).

         After establishing standing, but before a class may be certified, the trial court must conduct a "rigorous analysis" to determine whether the class representative and putative class members meet the requirements for class certification pursuant to Florida Rule of Civil Procedure 1.220(a).[2] Terry L. Braun, P.A. v. Campbell, 827 So.2d 261, 265 (Fla. 5th DCA 2002). These elements are commonly referred to as the numerosity, commonality, typicality, and adequacy of representation elements of class certification. InPhyNet Contracting Servs., Inc. v. Soria, 33 So.3d 766, 771 (Fla. 4th DCA 2010). The party seeking class certification bears the burden of satisfying all the requirements of rule 1.220(a). Campbell, 827 So.2d at 265. We review the trial court's order denying class certification for an abuse of discretion, but examine a trial court's factual findings for competent, substantial evidence, and review conclusions of law de novo. Sosa, 73 So.3d at 102-03, 105. "Although a trial court will generally be required to conduct an evidentiary hearing to determine whether to certify a class, the trial court's proper focus is on whether the requirements of rule 1.220 have been met and not on whether the moving party will prevail on the merits." City of Tampa v. Addison, 979 So.2d 246, 252 (Fla. 2d DCA 2007); see Sosa, 73 So.3d at 105; Morgan v. Coats, 33 So.3d 59, 63-64 (Fla. 2d DCA 2010).

         1. Commonality.

         The trial court found that Appellants failed to meet the commonality prong because some class members are no longer subject to the fee. As such, the trial court determined that their claims could not ...

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