Michael T. Angelo d/b/a Orange Park Auto Mall v. Timothy Parker, individually and on behalf of those similarly situated

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-1304
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MICHAEL T. ANGELO d/b/a
Orange Park Auto Mall,
Appellant,
v.
TIMOTHY PARKER, individually
and on behalf of those similarly
situated,
Appellee.
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On appeal from the Circuit Court for Duval County.
Thomas M. Beverly, Judge.
June 20, 2019
ROWE, J.
Michael T. Angelo d/b/a Orange Park Auto Mall (the
Dealership) appeals an order granting class certification in an
action brought under the Florida Deceptive and Unfair Trade
Practices Act (FDUTPA). Timothy Parker moved to certify a class
of consumers who the Dealership purportedly overcharged title
and registration fees. The Dealership argues that the trial court
abused its discretion in certifying the class because Parker did not
allege a legally sufficient FDUTPA claim, preventing the trial
court from conducting the rigorous analysis required before
ordering class certification. We agree.
Procedural History
Parker purchased a vehicle from the Dealership and was
charged $420 for title and registration fees. The sales contract
signed by Parker included a disclosure that the fees were
estimated at the time of sale but was silent about any overage.
Eleven days after the sale, the Dealership paid $403.90 to the
Department of Highway Safety and Motor Vehicles (DHSMV) for
the title and registration fees. The Dealership did not refund
Parker the difference between the estimate and the amount paid
to the DHSMV ($16.10).
Parker sued the Dealership alleging that it violated FDUTPA
by not refunding the difference between the estimated title and
registration fees and the amount paid to the DHSMV. He later
amended the complaint to assert claims on behalf of a class of
consumers defined as:
(a) All persons or entities with Florida addresses at the
time of the transaction, who purchased or leased a vehicle
from the Dealership;
(b) during the four-year period prior to the filing of his
action through class certification;
(c) and were charged and paid a title and registration fee
greater than the actual title and registration cost; and
(d) the difference between the amount charged and the
actual title cost was never refunded.
The class action complaint alleged two FDUTPA violations:
one of FDUTPA generally and the other of section 501.203(3)(c),
Florida Statutes (2016). But there were no allegations to describe
how the Dealership’s failure to refund the difference between the
actual and estimated cost of the title and registration fees was an
unfair or deceptive act. This omission led to confusion over the
substance of the FDUTPA claims asserted on behalf of the class.
At the hearing on the motion for class certification, the
Dealership sought clarification of the claims. The Dealership
asked whether the claims were based on the provision of FDUTPA
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prohibiting automobile dealers from adding certain fees to the
price of a motor vehicle. 1 Parker responded that the complaint was
not based on a violation of that FDUTPA provision. Instead, he
asserted that the class sought relief under the general provisions
of FDUTPA and section 501.203(3)(c). Parker asserted that a
violation of section 501.203(3)(c) occurred when the Dealership
violated sections 320.27(9)(b)3. and 320.27(9)(b)16., Florida
Statutes (2016), which prohibit automobile dealerships from
misrepresenting any terms of the sale or financing of a vehicle and
from willfully violating administrative rules. Yet Parker identified
no misrepresentation by the Dealership or any willful violation of
an administrative rule that would support a FDUTPA claim under
section 501.203(3)(c).
The remaining general FDUTPA count was similarly lacking
in detail. Parker did not allege that the Dealership engaged in any
deceptive or unfair conduct. He acknowledged that the sales
contracts disclosed that the fees charged to the proposed class
members were estimated, and he could identify no legal
requirement for the Dealership to refund the difference between
what the consumers were charged and what the Dealership later
paid to the DHSMV, days or even weeks later.
Based on the pleading deficiencies in both FDUTPA counts,
the Dealership moved to dismiss the complaint for failure to state
a claim, and in the alternative, for a more definite statement. The
court denied both defense motions and certified the class under all
three subsections of Florida Rule of Civil Procedure 1.220(b). The
Dealership appeals.
1 FDUTPA includes a subsection addressing unfair or
deceptive acts or practices by automobile dealers related to the sale
of motor vehicles. § 501.976, Fla. Stat. (2016). Section
501.976(11), Florida Statutes (2016), specifically requires
disclosure of all fees or charges added to the cash price of the sale
of a vehicle.
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Analysis
We review an order granting class certification for an abuse of
discretion. Fla. Dep’t of Transp. v. Tropical Trailer Leasing, LLC,
229 So. 3d 1251, 1254 (Fla. 1st DCA 2017). Before certifying a
class, a trial court must perform a rigorous analysis of the claims
asserted on behalf of the class because certification expands the
dimensions of the lawsuit and commits the court and the parties
to additional labor over and above a traditional lawsuit. Id.;
Miami Auto. Retail, Inc. v. Baldwin, 97 So. 3d 846, 851 (Fla. 3d
DCA 2012). Rule 1.220(a) provides that the party seeking
certification must show that the proposed class meets these four
requirements: numerosity, commonality, typicality, and adequacy
of representation. Earnest v. Amoco Oil Co., 859 So. 2d 1255, 1258
(Fla. 1st DCA 2003). When considering whether to certify a class,
the court’s focus is on whether the four requirements have been
satisfied, not on the merits of the case. Sosa v. Safeway Premium
Fin. Co., 73 So. 3d 91, 105 (Fla. 2011). That said, the merits of the
class claims remain relevant to the court’s analysis. Rule 1.220
requires the court to consider the law applicable to the claims and
the substance of the claims before ruling on a motion to certify a
class. Latman v. Costa Cruise Lines, N.V., 758 So. 2d 699, 702 (Fla.
3d DCA 2000).
The Dealership argues that the trial court erred in granting
class certification because: (1) it did not perform a rigorous
analysis of the substance of Parker’s FDUTPA claims; and (2) it
failed to make factual findings in the class certification order. As
stated earlier, two FDUTPA counts were asserted on behalf of the
class: one alleging a general violation of the Act, and the other
brought under section 501.203(3)(c), Florida Statutes. Only the
count brought under the general provision of FDUTPA remains at
issue in this appeal. 2
To state a legally sufficient claim under FDUTPA, a plaintiff
must allege: “(1) a deceptive act or unfair practice; (2) causation;
2 At oral argument, Parker abandoned the count brought
under section 501.203(3)(c), based on his concession that the count
was directed to the Dealership’s bond company, not to the
Dealership.
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and (3) actual damages.” Baptist Hosp., Inc. v. Baker, 84 So. 3d
1200, 1204 (Fla. 1st DCA 2012) (quoting Kia Motors Am. Corp. v.
Butler, 985 So. 2d 1133, 1140 (Fla. 3d DCA 2008)). A deceptive
practice is one “likely to mislead consumers acting reasonably in
the circumstances, to the consumers’ detriment.” State v. Beach
Blvd. Auto., Inc., 139 So. 3d 380, 387 (Fla. 1st DCA 2014). A
plaintiff must show that a reasonably objective person in the same
circumstances would have been deceived. Lombardo v. Johnson &
Johnson Consumer Cos., Inc., 124 F. Supp. 3d 1283, 1290 (S.D. Fla.
2015). “[A]n unfair practice is one which causes substantial injury
to a consumer which the consumer could not have reasonably
avoided and which is not outweighed by countervailing benefits to
the consumer or to competition.” Hill Dermaceuticals, Inc. v.
Anthem, Inc., 228 F. Supp. 3d 1292, 1302 (M.D. Fla. 2017).
The class complaint alleged that the Dealership violated
FDUTPA by: (1) overestimating the cost of title and registration
fees, and (2) failing to refund the difference between the amount
charged to class members and the amount paid to the DHSMV.
Parker admits that the contracts included the following disclosure:
*Title/Tag Fees are Estimated. Buyer may be responsible
for any shortage.
8. Any amount marked as an “estimate” on this
agreement is based on the best information available to
Dealer and is subject to change when the true amount is
determined. Buyer agrees to the changes in these
estimated amounts, as is necessary to reflect the
correction of such estimate.
Parker also concedes that the title and registration fees charged to
purchasers were based on specific information provided by each
individual purchaser, such as their date of birth and whether the
purchaser was transferring a title. Parker further acknowledges
that he had no expectation of receiving a refund for any
overpayment. But despite the express disclosure that the fees
were estimated, that the estimates were based on individual-
specific information, and that he did not expect a refund of any
overpayment, Parker maintains that the mere existence of the
overcharge is enough to state a claim under FDUTPA. We
disagree. Standing alone, the mere existence of an overcharge does
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not establish a violation of FDUTPA. See Lombardo, 124 F. Supp.
3d at 1290. Instead, to state a claim under FDUTPA, Parker had
to allege that the Dealership acted in a way that was
“unscrupulous, oppressive, unethical, or immoral” or in a way
likely to mislead the class members to their detriment. Beach
Blvd. Auto., Inc., 139 So. 3d at 386-87.
Parker alleged no deceptive or unfair acts by the Dealership. 3
Without a legally sufficient claim under the substantive law
applicable to this case, the court could not determine whether
Parker’s complaint satisfied the requirements of commonality,
typicality, numerosity, and adequacy. Nor could the court perform
the rigorous analysis required by rule 1.220. The court could not
assess commonality—whether Parker’s claim arose from the same
practices or course of conduct that gave rise to the claims of the
other class members. Sosa, 73 So. 3d at 107. The court could not
determine typicality—whether there was a strong similarity in the
legal theories between Parker’s claims and the claims of the other
class members. Id. at 114. Nor could the court evaluate the
number of people in the class or whether counsel was adequate.
Thus, we hold that the court erred in certifying the class because
Parker never alleged a facially sufficient violation of FDUTPA.
Olen Props. Corp. v. Moss, 981 So. 2d 515, 519 (Fla. 4th DCA 2008)
(holding that the court must look beyond the pleadings to
determine whether the claims and proof are amenable to class
treatment).
The court erred further when it failed to make factual findings
to support its conclusion that Parker satisfied each of the four
prerequisites for certification. Integon Corp. v. Gordon, 953 So. 2d
725, 725 (Fla. 1st DCA 2007) (reversing an order certifying a class
3 Moreover, without a more definite statement of the FDUTPA
claim alleged on behalf of the class, the Dealership was denied a
fair opportunity to defend against the claim. Walker v. Walker, 254
So. 2d 832, 834 (Fla. 1st DCA 1971) (“[T]he pleader must set forth
the facts in such a manner as to reasonably inform his adversary
of what is proposed to be proved in order to provide the latter with
a fair opportunity to meet it and prepare his evidence.”).
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when the order did not have separate factual findings as required
by rule 1.220(d)(1)); see also Fla. R. Civ. P. 1.220(d)(1)
(“Irrespective of whether the court determines that the claim or
defense is maintainable on behalf of a class, the order shall
separately state the findings of fact and conclusions of law upon
which the determination is based.”).
Because the trial court did not perform a rigorous analysis of
the substance of Parker’s FDUTPA claims and failed to make
sufficient factual findings in the class certification order, we
REVERSE the order granting class certification.
RAY and OSTERHAUS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Michael Fox Orr and Jeremy M. Paul of Dawson Orr, Professional
Association, Jacksonville, for Appellant.
Roger D. Mason, II and Elizabeth A. Buchwalter of Roger D.
Mason, II, P.A., Tampa, for Appellee.
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