final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Escambia County. J. Scott
R. Linscott, Julie S. Brady, Susan M. Johns, and Maureen
Berard Soles of Baker & Hostetler, LLP, Orlando, for
Charles Phillip Hall of Phil Hall, P.A., Pensacola; James M.
Stephens of McCallum, Methvin & Terrell PC, Birmingham;
J. Phillip Warren of Taylor, Warren & Weidner, P.A.,
Pensacola, for Appellee.
Pro USA and Waste Pro of Florida appeal the lower court's
nonfinal order certifying a Florida Deceptive and Unfair
Trade Practices Act ("FDUTPA") class for all
customers who paid Waste Pro's "environmental
fee." For the reasons that follow, we affirm.
Pro of Florida, Inc. provides waste disposal services to
residential and commercial customers in Florida, including
Appellee Vision Construction ENT., Inc., a Pensacola
brought an action for alleged violations of FDUTPA and a
claim of unjust enrichment against Appellant Waste Pro
USA. Vision alleged that two fees
charged by Waste Pro, a "fuel surcharge" and an
"environmental fee," were deceptive. With regards
to the "environmental fee," Vision alleged that
"[t]he Environmental Fee bears no relation to Waste
Pro's increased environmental costs (or its actual
environmental costs) it might incur and the proceeds it
receives are not used to offset such increased costs."
Vision asserted that, while the title "environmental
fee" would lead a reasonable consumer to believe that
the fees are used to offset environmental costs imposed by a
regulator, the fees in fact are retained by Waste Pro.
filed a class action complaint requesting that the court
certify two classes under Florida Rule of Civil Procedure
1.220: a class composed of customers who paid the fuel
surcharge fee, and a class composed of customers who paid the
class certification hearing, the court heard evidence that
Waste Pro began charging the environmental fee in 2009 and
has always charged it as a percentage of a base fee, unless a
customer individually negotiated otherwise.
2008-2010, Waste Pro service agreements contained fill-in
blanks labeled "fuel surcharge" and
"environmental fee," and the back of the forms
contained an explanation that Waste Pro "may adjust
charges for increases in" charges for various items or
services, such as landfill charges, fuel costs, or insurance
in 2011, the service agreements stated that "[a] fuel
surcharge and environmental compliance cost recovery charge,
calculated as a percentage of the Charge(s), will be included
on your invoice."
Pro's CFO testified that he could not recall Waste Pro
incurring any environmental costs that it didn't have
before 2009. He testified that he did not track any
environmental costs that existed from 2006-2016. The CFO
testified that he had never seen any calculations done for
Waste Pro's environmental costs. At least once, the
environmental fee increased from six to eight percent solely
because a competitor's increased to eight percent; no
analysis of environmental costs contributed to the increase.
Pro's environmental expert submitted an analysis
indicating that Waste Pro incurred between approximately
$6.8-7.7 million in "major environmental expenses"
between 2011 and 2015 and collected approximately $6.1
million in environmental fees in that time.
Pro corporate representative testified that Waste Pro's
environmental costs are not netted against the environmental
revenues it receives. The representative testified that no
document provided to a Waste Pro customer contains an
explanation of the environmental fee "except the
website." The representative testified that he did not
think Waste Pro's sales representative should inform
customers that if Waste Pro's environmental costs
decreased, the customers would still be charged an
environmental fee; he testified that the sales
representatives don't know what the environmental costs
are and could not disclose them to customers.
Pro sales representative testified that he would inform
customers inquiring about the environmental fee that it was
intended to "try to recover part of the increased costs
of compliance." Another Waste Pro sales representative,
likewise testified that Waste Pro's environmental fee was
used to recoup some of Waste Pro's environmental
compliance costs. This representative testified that
occasionally, customers inquiring about the environmental fee
were directed to Waste Pro's website.
website, in varying iterations, informed customers that the
"Environmental Charge is related to our costs of meeting
a high standard of environmental compliance set by internal
management and external governmental regulatory agencies. . .
. This charge will help support our costs to operate our
collection, transfer, recycling and landfills in a safe and
environmentally responsible manner." The website did not
inform customers what Waste Pro's environmental costs
were, or the method Waste Pro used to calculate the fee.
Pro regional sales managers submitted affidavits stating that
they are encouraged to, but are not required to impose the
environmental fee, and they may reduce or waive the fee at a
customer's request. Waste Pro's CEO and a Waste Pro
corporate executive both testified that they wouldn't
expect Waste Pro's customers to know what Waste Pro's
environmental costs were.
Pro submitted evidence that Waste Pro's five regional
vice presidents had autonomy and discretion regarding whether
to charge the fuel and environmental fees. Each region made
its own determinations on whether to waive, reduce, or cap
began contracting with Waste Pro in 2009 and was not charged
an environmental fee until 2014. Waste Pro charged Vision the
environmental fee on fewer than 10 of the 170 service
invoices between Vision and Waste Pro. Vision continued using
Waste Pro after filing suit in this case and was using it at
the time of Vision President Garry Crook's deposition.
paid environmental fees to vendors other than Waste Pro;
Crook testified that Vision was sometimes charged an
environmental fee by concrete companies. Crook testified that
he assumed that the other companies were also imposing these
fees to recover their costs for "environmental
Pro submitted affidavits from some putative class members
stating that they understood that the environmental fee was
intended to offset Waste Pro's total costs and would
expect that those fees included a profit component. However,
when Vision deposed these affiants, they stated that they did
not draft or have personal knowledge of those statements in
the affidavits and testified that they either had no
knowledge of whether the environmental fee was intended to