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Easter v. City of Orlando

Florida Court of Appeals, Fifth District

June 8, 2018

RICHARD EASTER, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS SIMILARLY SITUATED, Appellant,
v.
CITY OF ORLANDO, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Non-Final Appeal from the Circuit Court for Orange County, Lisa T. Munyon, Judge.

          David M. Kerner and Jason E. Weisser, of Schuler, Halvorson, Weisser, Zoeller & Overbeck, P.A., and Andrew A. Harris, of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant.

          Vincent Falcone III, David B. King, and Thomas A. Zehnder, of King, Blackwell, Zehnder & Wermuth, P.A., Orlando, for Appellee.

          Stephen F. Rosenthal, of Podhurst Orseck, P.A., Miami, for Amicus Curiae Florida Justice Association.

          EVANDER, J.

         In this class action suit seeking refunds for fines paid pursuant to an unconstitutional red-light camera ordinance, the class representative, Richard Easter, appeals a non-final order denying his motion to certify the class. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi). In denying Easter's motion, the trial court found that Easter had failed to establish certain requirements for class certification-commonality, typicality, predominance, and superiority. The court's findings on these factors were based, in large part, on its determination that the voluntary payment defense applies to this case. The voluntary payment defense provides that "where one makes a payment of any sum under a claim of right with knowledge of the facts such a payment is voluntary and cannot be recovered." City of Miami v. Keton, 115 So.2d 547, 551 (Fla. 1959). On appeal, Easter argues that the voluntary payment defense is inapplicable under the facts of this case and that the trial court erred in denying his motion to certify the class. We affirm.

         Procedural and Factual Background

         This case concerns an ordinance ("the Ordinance") adopted by the City of Orlando ("the City") that authorized the use of cameras to record vehicles that failed to properly stop at red lights. In addition to authorizing civil fines, the Ordinance authorized city-appointed hearing officers to assess administrative charges against a vehicle owner in the amount of the City's costs if the owner's appeal was denied.[1]

         The City issued 49, 423 notices of infraction under the Ordinance. Of those vehicle owners who were issued citations, 35, 851 paid the fines without appeal, while 378 filed notices of appeal. Most people who appealed raised factual challenges; less than ten percent raised legal challenges. Of those people whose appeals were not summarily granted, 174 attended a scheduled hearing, while 51 abandoned their appeals by paying their fines without a hearing.

         In August 2009, Naveel Nasari filed a class action suit against the City and the company administering the program, seeking: (1) a declaration that the Ordinance was preempted by state law, (2) an injunction from further enforcement, and (3) class damages for various claims including unjust enrichment. Michael Udowychenko subsequently replaced Nasari as the class representative. The trial court later entered a final order determining that the Ordinance was invalid because it was preempted by state law and otherwise conflicted with state statutes. This Court affirmed the trial court's decision in City of Orlando v. Udowychenko, 98 So.3d 589 (Fla. 5th DCA 2012). In doing so, we certified conflict with City of Aventura v. Masone, 89 So.3d 233 (Fla. 3d DCA 2011), where our sister court upheld the validity of a similar red-light camera ordinance. In a footnote, we noted that Udowychenko's motion to certify the class had been denied:

This was initially a class action suit. Udowychenko's motion to certify the class was denied. The court noted that only Udowychenko had filed an action to challenge the ordinance and that others who paid the fine most likely would be barred by the doctrine of voluntary payment.

Udowychenko, 98 So.3d at 592 n.3. Because that denial was not challenged on appeal, we did not address it further.

         In April 2010, the City sent Easter a notice of infraction of the Ordinance. He filed a notice of appeal, arguing, in part, that the Ordinance was unlawful. After a hearing officer upheld the infraction, Easter paid the fine. Thereafter, Easter filed the instant class action suit against the City. In November 2012, the parties filed a joint motion to stay proceedings pending resolution of the Udowychenko and Masone cases in the Florida Supreme Court.

         The conflict between Udowychenko and Masone was resolved by the Florida Supreme Court in Masone v. City of Aventura, 147 So.3d 492 (Fla. 2014). There, in a 5-2 decision, the court held that both cities' ordinances were expressly preempted by state law. After the resolution of Udowychenko and Masone, and after engaging in discovery, Easter filed his motion to certify class. The trial court relied on the Florida Supreme Court's decision in Keton to conclude that the voluntary payment defense would be applicable in the instant ...


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