DISCOUNT SLEEP OF OCALA, LLC D/B/A MATTRESS WAREHOUSE, INDIVIDUALLY, AND AS A REPRESENTATIVE OF A CLASS OF ALL SIMILARLY SITUATED OTHERS, AND DALE W, BIRCH, INDIVIDUALLY, ETC., Appellants/Cross-Appellees,
CITY OF OCALA, FLORIDA, Appellee/Cross-Appellant.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Marion County, Lisa D.
A. Schroth, James A. Myers and Sasha O. Garcia, of
Bowen/Schroth, Eustis, for Appellants/Cross-Appellees.
Franjola and Patrick G. Gilligan, of Gilligan, Gooding,
Franjola & Batsel, P.A., Ocala, for
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
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established, repealed, and later reinstated the fire service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2010-43, which repealed an earlier ordinance and reinstated
the previously repealed fire service fees.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
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.
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).
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
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.
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). 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).
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 ...