author: WALLACE, Judge. WHATLEY, Judge,

text:
    ROLLINS, INC., and Orkin Exterminating Company, Inc., Appellants, v. Mark BUTLAND and Christine Rutland, Kris Cornett, and Maria Garcia, on behalf of themselves and others similarly situated, Appellees.
    No. 2D05-368.
    District Court of Appeal of Florida, Second District.
    June 30, 2006.

      Theodore R. Scarborough, Michael W. Davis, Constantine L. Trela, Jr., and Robert N. Hochman of Sidley Austin Brown & Wood LLP, Chicago, Illinois; and Douglas B. Brown of Rumberger, Kirk & Caldwell, P.A., Orlando, for Appellants.
    David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa, and J. Daniel Clark of Clark & Martino, P.A., Tampa, for Ap-pellees.
    Mark H. Ruff of Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for Ami-cus Curiae Florida Pest Management Association, Inc.
   WALLACE, Judge.

Mark Butland, Christine Butland, Kris Cornett, and Maria Garcia (the Appellees) filed a class action complaint in the circuit court against Rollins, Inc., and Orkin Exterminating Company, Inc. (the Appellants), for multiple claims arising from Or-kin’s contractual undertakings related to the control of subterranean termites. The Appellees moved for class certification. The circuit court certified a class and one subclass under Florida Rule of Civil Procedure 1.220(b)(2) and (b)(3). On this appeal, the Appellants challenge the order granting the Appellees’ motion for class certification. Because we conclude that the Appellees’ claims did not meet the requirements for class certification under either subsection (b)(2) or subsection (b)(3) of rule 1.220, we reverse the order granting class certification.

I. THE APPELLEES’ CLAIMS

Each of the Appellees entered into a “Subterranean Termite Agreement” with Orkin (the Contract). In the Contract, Orkin agrees to treat the customer’s property for subterranean termites in exchange for the payment of an initial fee. Thereafter, the Contract is renewable annually upon payment of a renewal fee. The Contract provides for reinspections of the customer’s property “when Orkin believes it necessary, or annually if [the customer] request[s] it.” If an infestation of subterranean termites is found during the term of the Contract, Orkin undertakes to retreat the property at no additional cost to the customer. The Contract includes various disclaimers, including a disclaimer of any obligation “to repair any damage to [the customer’s] building or its contents caused by an infestation of Subterranean Termites.” Each of the Appellees claims that they sustained extensive termite damage to their homes caused by Orkin’s deficient performance of its obligations under the Contract.

The allegations of Appellees’ complaint against the Appellants are detailed and extensive. The complaint is 45 pages long and contains over 166 paragraphs. In the class certification order, the circuit court summarized the crux of the dispute as follows:

a. Orkin, through alleged deceptive and unfair business practices at the control and direction of its parent, Rollins, is alleged to have entered into Standard Termite Contracts with the [Appellees] and the Orkin Termite Class that are void ab initio because such contracts are alleged to be illegal and in violation of Florida’ Pest Control Act, chapter 482, and Florida’s Deceptive and Unfair Trade Practices Act, Florida Statutes, chapter 501;
b. [Through] its alleged deceptive and unfair trade practices, Orkin, at the control and direction of its parent, Rollins, is alleged to have taken money from [the Appellees] and the Orkin Termite Class, both through initial payments and annual renewals, without providing agreed upon services for inspection and treatment of subterranean termites, most specifically annual reinspections in exchange for customers’ annual renewal payments; and
c. [Through] its alleged deceptive and unfair trade practices, Orkin, again at the control and direction of Rollins, is alleged to have disseminated to [the Ap-pellees] and the Orkin Termite Class standardized advertising brochures used by its sales representatives that are alleged to contain false and non-factual statements in violation of Florida law.

Based on this wide-ranging dispute, the Appellees’ complaint asserted six claims against the Appellants: deceptive and unfair trade practices (count I); misleading advertising (count II); Florida RICO-eriminal racketeering (count III); breach of contract (count IV); unjust enrichment (count V); and declaratory and injunctive relief relating to the validity of the disclaimers in the Contract under section 482.227, Florida Statutes (count VI).

In their complaint, the Appellees sought two distinct types of damages: (1) actual damages for the payments made to Orkin for the initial treatment fee and the annual renewal fees by the Appellees and the putative class members and (2) property damages incurred by the Appellees and the putative class members as a result of damage to their residences caused by subterranean termites. It is important to note that membership in the proposed class was not limited to customers who sustained damage to their residences as a result of an infestation of subterranean termites. For members of the putative class who had sustained no such damage, the recovery of damages — if any — would be limited to the first category of damages sought.

II. THE CLASS CERTIFICATION ORDER

This is the second appearance of this matter before this court on the issue of class certification. We reversed an earlier order granting class certification and remanded for further proceedings because the order did not contain the factual and legal findings required by rule 1.220(d)(1). Rollins, Inc. v. Butland, 852 So.2d 895 (Fla. 2d DCA 2003). On remand, the circuit court conducted a three-day hearing on the class certification issue. After the hearing, the circuit court entered the class certification order under review and a separate case management order. The class certification order is 58 pages long and contains over 245 paragraphs with findings of fact and conclusions of law. The current findings of fact and conclusions of law are sufficient to comply with the requirements of the rule.

In the order under review, the circuit court certified an “Orkin Termite Class” and an “Orkin RICO Subclass.” The Or-kin Termite Class is defined as “all Orkin customers who either entered into a lifetime renewable subterranean termite contract (without an arbitration provision), referenced herein as the ‘Standard Termite Contract’ or renewed that contract after March 9, 1995[,] through the present.” The Orkin RICO Subclass is defined as “all Orkin customers who are members of the ‘Orkin Termite Class’ defined above, and were induced to and entered into a Standard Termite Contract based on Or-kin’s misleading advertisements and representations that violate Florida Statutes, sections 772.104, 817.06, and 817.41.” The circuit court certified both the Orkin Termite Class and the Orkin RICO Subclass under rule 1.220(b)(2) and (b)(3). The certification order directed class counsel to submit a proposed class notice for the circuit court’s approval within thirty days. The parties estimated the number of members of the putative class at 65,000.

III. THE APPELLANTS’ ARGUMENTS

The Appellants challenge the class certification order on four grounds. First, because individual issues predominate over common issues, the putative class litigation is unmanageable and does not meet the criteria for class certification under rule 1.220(b)(3). Second, the named class representatives are inadequate to represent the class because their claims are time-barred and because they have divergent interests from other members of the putative class. Third, the case management order violates the Appellants’ right to a jury trial. Fourth, the circuit court abused its discretion by certifying classes under rule 1.220(b)(2) that are seeking money damages. We need address only the first and fourth grounds.

IV. THE REQUIREMENTS FOR CLASS CERTIFICATION

Before a class action can be certified, the trial court must conduct a rigorous analysis to determine that the elements of rule 1.220, the class action rule, have been met. See Ortiz v. Ford Motor Co., 909 So.2d 479, 480 (Fla. 3d DCA 2005). First, the trial court must conclude that a plaintiff has established the prerequisites to class representation described in rule 1.220(a). Under rule 1.220(a), the threshold requirements for class action representation are that (1) the members of the class are so numerous that separate join-der of each member is impracticable, (2) the claim raises questions of law or fact common to each member of the class, (3) the claim of the representative party is typical of the claim of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of other members of the class. Id. “These requirements are commonly referred to as the numerosity, commonality, typicality, and adequacy of representation elements of class certification.” Marco Island Civic Ass’n v. Mazzini, 805 So.2d 928, 930 (Fla. 2d DCA 2001).

In addition to satisfying rule 1.220(a), a plaintiff must also satisfy one of the three subdivisions of rule 1.220(b). The subdivisions relevant to this case are contained in subsections (b)(2) and (b)(3). Rule 1.220(b)(2) requires that the party opposing the class has acted or refused to act on grounds applicable to all class members, thereby making final injunctive or declaratory relief appropriate. Rule 1.220(b)(3) requires that common questions of law or fact predominate over any individual questions of the separate members and the class action must be superior to other available methods for a fair and efficient adjudication of the controversy. The rule 1.220(b)(3) requirement parallels the commonality requirement under rule 1.220(a) because both require that common questions exist, but the predominance requirement in subsection (b)(3) is more stringent “since common questions must pervade.” Wyeth, Inc. v. Gottlieb, 930 So.2d 635, 639 (Fla. 3d DCA 2006).

The party moving to certify the class has the burden of proving the propriety of class action status. See Marco Island, 805 So.2d at 930. There must be an evidentiary basis to support an order certifying a class when the nonmoving party contests class certification and it is not clear from the pleadings that a lawsuit qualifies for class action status. See Ernie Haire Ford, Inc. v. Gilley, 903 So.2d 956, 959 (Fla. 2d DCA 2005). 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. See Samples v. Hernando Taxpayers Ass’n, 682 So.2d 184, 185 (Fla. 5th DCA 1996) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)).

A “determination that a case meets the requirements of a class action is ... within the trial court’s discretion and will be reversed on appeal only if an abuse of discretion is shown.” Bouchard Transp. Co. v. Updegraff, 807 So.2d 768, 771 (Fla. 2d DCA 2002) (citing Marco Island, 805 So.2d 928).

V. DISCUSSION

A. Introduction

The circuit court certified the Orkin Termite Class and the Orkin RICO Subclass under both rule 1.220(b)(2) and (b)(3) on all six of the claims alleged in the Appellees’ complaint. However, only the claim asserted in Count VI — which seeks declaratory and injunctive relief — is a candidate for certification under rule 1.220(b)(2). The remaining claims all seek money damages and should be evaluated for certification under rule 1.220(b)(3). In the discussion which follows, we will first consider the claims asserted in counts I through Y under rule 1.220(b)(3) and then consider the claim asserted in count VI under rule 1.220(b)(2).

B. Certification Under Rule 1.220(b)(3)

1. Deceptive and Unfair Trade Practices (Count I)

a. The Elements of a Claim Under FDUTPA

In count I of their complaint, the Appellees assert a claim against the Appellants under Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA), sections 501.201-.213, Florida Statutes. FDUTPA is intended to “protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.” § 501.202(2). See also Delgado v. J.W. Courtesy Pontiac GMC-Truck, Inc., 693 So.2d 602, 605-06 (Fla. 2d DCA 1997) (discussing the purpose of FDUTPA in light of its legislative history). A deceptive practice is one that is “likely to mislead” consumers. Davis v. Powertel, Inc., 776 So.2d 971, 974 (Fla. 1st DCA 2000). An unfair practice is one that “offends established public policy” and one that is “immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 499 (Fla. 4th DCA 2001) (quoting Spiegel, Inc. v. Fed. Trade Comm’n, 540 F.2d 287, 293 (7th Cir.1976)).

“[I]n order for the consumer to be entitled to any relief under FDUTPA, the consumer must not only plead and prove that the conduct complained of was unfair and deceptive but the consumer must also plead and prove that he or she was aggrieved by the unfair and deceptive act.” Macias v. HBC of Fla., Inc., 694 So.2d 88, 90 (Fla. 3d DCA 1997); accord Chicken Unlimited, Inc. v. Bockover, 374 So.2d 96, 97 (Fla. 2d DCA 1979); Gen. Motors Acceptance Corp. v. Laesser, 718 So.2d 276, 277 (Fla. 4th DCA 1998). In other words, a consumer claim for relief under FDUTPA has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages. The standard for determining the actual damages recoverable under FDUTPA is well-defined in the case law:

“[T]he measure of actual damages is the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties. [... ] A notable exception to the rule may exist when the product is rendered valueless as a result of the defect — then the purchase price is the appropriate measure of actual damages.”

Rollins, Inc. v. Heller, 454 So.2d 580, 585 (Fla. 3d DCA 1984) (quoting from Raye v. Fred Oakley Motors, Inc., 646 S.W.2d 288, 290 (Tex.App.1983)).

For purposes of recovery under FDUTPA, “actual damages” do not include consequential damages. See Fort Lauderdale Lincoln Mercury, Inc. v. Corgnati, 715 So.2d 311, 314 (Fla. 4th DCA 1998). FDUTPA’s bar on the recovery of consequential damages precludes the recovery of the costs to repair a building resulting from a deficient inspection for termites. See Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 263 (Fla. 2d DCA 2004); Urling v. Helms Exterminators, Inc., 468 So.2d 451, 454 (Fla. 1st DCA 1985). Similarly, the recovery afforded under FDUT-PA does not include diminution in value or stigma damages caused by termite damage. See Orkin Exterminating Co. v. Del-Guidice, 790 So.2d 1158, 1162 (Fla. 5th DCA 2001).

b. The Appellees’ FDUTPA Claim

The scope of the Appellees’ FDUTPA claim against the Appellants is extremely ambitious. The Appellees do not base their FDUTPA claim on a single act or practice. Instead, they allege that the Appellants have committed no less than fourteen separate deceptive or unfair practices. The Appellees’ allegations against the Appellants on the FDUTPA claim may be summarized as follows:

• The various disclaimers in the Contract were not in conspicuous type on the face of the contract and improperly attempted to limit the termite protection guarantee, all in violation of section 482.227(2), Florida Statutes.
• The Appellants falsified reinspection documents and forged reinspection tickets and other treatment records.
• The Appellants failed to disclose termite infestation to customers.
• The Appellants engaged in false and misleading advertising.
• The Appellants failed to inspect customers’ homes and falsified the company records to indicate that inspections had been performed when they had not.
• The Appellants misused the word “guarantee” in the Contract in violation of section 482.227(1), Florida Statutes.

The circuit court devoted most of its attention in the certification order to the allegations concerning the various disclaimers in the Contract. Nevertheless, the circuit court certified the class based on all fourteen of the separate alleged violations. Thus we must consider whether certification was appropriate based on all of the alleged violations, not just those relating to the disclaimers.

c. Predominance Analysis

(I) The Applicable Test for Assessing Predominance

Our initial task in reviewing the Appellants’ challenge to class certification on the FDUTPA claim under rule 1.220(b)(3) is to determine if common questions predominate over individual questions with respect to the matters to be proved at trial. In approaching this task, we are guided by this court’s decision in Humana, Inc. v. Castillo, 728 So.2d 261, 266 (Fla. 2d DCA 1999), where we said:

To certify a class, rule 1.220(b) requires not only that common questions exist, but that those common questions predominate over individual questions. Rule 1.220 also requires a class action to be manageable and superior to other proceedings. To determine if the requirements of Rule 1.220 have been met, a trial court must envision how a class action trial would proceed.
Under this analysis, the trial court must determine whether the purported class representatives can prove their own individual cases and, by so doing, necessarily prove the cases for each one of the thousands of other members of the class. If they cannot, a class should not be certified.

If individual questions predominate, a class action is unmanageable. Id.

Our analysis of the predominance question is necessarily based on the elements of the Appellees’ FDUTPA claim. See Latman v. Costa Cruise Lines, N.V., 758 So.2d 699, 702 (Fla. 3d DCA 2000). To promote clarity in our analysis, we will first address this issue in the context of the proposed proof of deceptive acts and unfair practices and then address the same issue as it relates to the proposed proof of causation and damages.

(2) The Proposed Proof of Deceptive Acts and Unfair Practices

We begin our examination of the certification of the FDUTPA claim with the proposed proof of deceptive acts and unfair practices — the first leg of the FDUTPA liability tripod. In the circuit court’s analysis of the predominance question, it devoted most of its attention to the issues of Orkin’s alleged misuse of the word “guarantee” and the validity of the various disclaimers in the Contract. Because these issues concern questions of law arising from the terms of the Contract, they are arguably common to all members of the putative class. However, the Appel-lees’ FDUTPA claim is not limited to legal issues arising from the terms of the Contract. On the contrary, the FDUTPA claim addresses numerous issues relating to the Appellants’ alleged misdeeds in inducing customers to choose Orkin for pest control services and in the performance or nonperformance of those services for individual customers.

A review of the fourteen separate violations of FDUTPA alleged in the complaint demonstrates that the Appellees cannot— by proving their own cases — prove the cases for each of the thousands of other members of the putative class as required by Humana. For example, proof that Or-kin failed to inspect the Butlands’ home and falsified company records to indicate that the inspections had been performed would not prove that Orkin had failed to inspect the home of any other member of the putative class. Proof that Orkin forged Kris Cornett’s name to a reinspection ticket would not prove the forgery of the name of any other class member to a reinspection ticket. And proof that Orkin failed to disclose a termite infestation to Maria Garcia would not prove that Orkin discovered and failed to disclose a termite infestation in the home of any other member of the putative class. In short, the adjudication of the Appellees’ FDUTPA claim would require multiple factual determinations that are unique to each member of the class. The need to resolve these multiple individual factual issues overwhelms any common legal issues relating to the provisions of the Contract. Because individual questions predominate, the Ap-pellees’ FDUTPA claim is unmanageable as a class action. See Humana, 728 So.2d at 266; St. Joe Co. v. Leslie, 912 So.2d 21, 24 (Fla. 1st DCA 2005); Liggett Group Inc. v. Engle, 853 So.2d 434, 445 (Fla. 3d DCA 2003); Terry L. Braun, P.A. v. Campbell, 827 So.2d 261, 265 (Fla. 5th DCA 2002).

(3) The Proposed Proof of Causation and Damages

We turn now to an examination of the predominance issue in the context of the second and third legs of the FDUTPA liability tripod — causation and damages. In the certification order, the circuit court ignored the element of causation and treated the element of damages in a cursory fashion as follows:

227.... [I]n the present case, many damages issues can be handled on a class-wide basis.
228. For example, [the Appellees] contend, and the Court finds based on the evidence submitted to date, that [the Appellants] have all the information necessary to establish total damages in their financial records, showing the amount of money received both initially and annually from payments of renewal premiums....
229. Thus, the recovery for the class as a whole will be fixed through common proof. Thereafter, the calculation of sums due to individual class members can be determined using techniques employed in other large class actions, such as questionnaires or proofs of claims. In such circumstances, once the total recovery is fixed, the need for individual mini-trials or any further defense involvement is eliminated.

Thus the circuit court concluded that the amount of damages due to each member of the putative class could be determined by calculating the total amount paid by each customer to Orkin for the initial treatment and each annual renewal of the Contract. The circuit court seems to have been of the view that upon proof by the Appellees that the Appellants had committed deceptive acts or unfair practices, each putative class member would be entitled to a damages award measured by a refund of all monies he or she had previously paid to Orkin.

In their brief filed in this court, the Appellees urge a slightly different approach to the issues of causation and damages. The Appellees’ theory of causation and damages focuses on the “diminished market value” of the putative class members’ individual contracts with Orkin. The Appellees’ argument on this point is as follows:

[I]t is not necessary for [the Appellees] to prove that every class member did not receive an annual reinspection or some other form of services they paid for, or that every class member relied on false advertising. Rather, [the Appel-lees] merely need to demonstrate that as a result of these common schemes and business practices, the contracts have diminished market value....
Proof of such pervasive schemes will also establish [the Appellants] have violated, are violating, and/or are otherwise likely to violate FDUTPA....
In sum, [the Appellees] will demonstrate the existence of company-wide pervasive common schemes and business practices of false advertising and collecting money without rendering services. If so, the entire class will be entitled to monetary, declaratory, and/or injunctive relief under FDUTPA.

At oral argument, counsel for the Appel-lees informed us that proof of the diminished market value of the individual customer contracts with Orkin could be made by expert witness testimony.

In order for the circuit court to certify the class on the FDUTPA claim, the Ap-pellees had to demonstrate the existence of a “reasonable methodology for generalized proof of class-wide impact and damages.” Execu-Tech Bus. Sys. v. Appleton Papers Inc., 743 So.2d 19, 22 (Fla. 4th DCA 1999); see also Green v. McNeil Nutritionals, LLC, 2005 WL 3388158 (Fla. 4th Cir.Ct. Nov. 16, 2005) (denying motion to certify class on FDUTPA claim where a common right of recovery based on the same essential facts did not exist). In this case, such generalized or class-wide proof does not exist for either causation or damages.

The Appellees claim that the Appellants are guilty of no less than fourteen separate deceptive acts and unfair practices. Thus, to the extent that any member of the putative class sustained actual damages recoverable under FDUTPA, those damages could be the result of any one or a combination of the fourteen alleged violations. A different violation or combination of violations might be the cause of loss to another member of the putative class. Thus the number of possible causative factors and combinations thereof for each of 65,000 putative class members is quite large. Under these circumstances, class-wide proof of causation is impossible, and individual issues are overwhelmingly predominant.

On the question of damages, similar considerations apply. Neither the circuit court’s refund approach nor the Ap-pellees’ diminished market value theory provides a methodology for class-wide proof of damages under the facts of this case. After Orkin completed its initial treatment of the customer’s property for subterranean termites, the Contract became a conditional service agreement. Or-kin’s contractual undertaking was limited to re-treating the customer’s building if a reinfestation of subterranean termites occurred. Absent a reinfestation, Orkin had no obligation to do anything except to periodically inspect the property.

The Appellees claim to have sustained actual loss, e.g., termite damage to their homes. We assume that some members of the putative class would make similar claims. Nevertheless, it is certain that many members of the putative class did not experience any actual loss resulting from any deficient performance by Orkin or from a reinfestation of subterranean termites. The members of the putative class who experienced no actual loss have no claim under FDUTPA because they are not aggrieved. See Macias, 694 So.2d 88; Himes v. Brown & Co. Sec. Corp., 518 So.2d 937 (Fla. 3d DCA 1987). To be sure, some of the deceptive acts and unfair practices alleged by the Appellees might constitute breaches of contract for which a customer who experienced no actual loss might recover nominal damages in a separate action on the Contract. But FDUT-PA does not provide for the recovery of nominal damages, speculative losses, or compensation for subjective feelings of disappointment. See In re Crown Auto Dealerships, Inc., 187 B.R. 1009, 1018-19 (Bankr.M.D.Fla.1995); Macias, 694 So.2d at 90; Maroone Chevrolet, Inc. v. Nordstrom, 587 So.2d 514, 519 (Fla. 4th DCA 1991). It follows that some members of the putative class have sustained an actual loss for which recovery could be sought under FDUTPA, while many others have not. For this reason, there is no class-wide proof of damages available on the FDUTPA claim. Thus individual issues also predominate over common questions on the third leg of the FDUTPA liability tripod.

d. The Impermissibility of Proof by “Pattern and Practice”

The circuit court recognized the hurdle these individual issues of fact posed for class certification on the Appellees’ FDUTPA claim. Its solution to the problem was to obviate the need for individual proof and instead authorize proof of the Appellants’ “alleged pattern and practice of unfair and deceptive acts in taking money from its customers without rendering services.” In other words, the circuit court proposed to allow the Appellees to prove the FDUTPA claim for the class by presenting proof of the Appellants’ alleged common schemes and business practices.

We reject the circuit court’s solution to the need for class-wide proof. In a case such as this, authorizing class-wide proof to be made based on alleged company-wide pervasive schemes and business practices is not only inconsistent with established Florida precedent, but it also has the potential to deny the Appellants substantive due process of law. Under the substantive law applicable to FDUTPA claims, each member of the putative class must establish that the Appellants committed a deceptive act or unfair practice that caused their actual loss. Under the circumstances present here, collective proof cannot satisfy the class members’ burden. However, if the Appellees are permitted to establish the putative class members’ claims by proof of common schemes or patterns of behavior, the Appellants will be unable to defend against individual claims where there may be no liability. By any standard, this would amount to a violation of substantive due process of law. See Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th Cir.1998) (holding that class action defendant may have been denied a fair trial where it was forced to defend against a “perfect plaintiff’ pieced together for litigation); Cheatwood v. Barry Univ., Inc., 2001 WL 1769914, at *17 n. 54 (Fla.Cir.Ct Dec. 26, 2001) (“[T]he Universities have a constitutional right to require that each putative class member prove their alleged contract, negligent misrepresentation, statutory and other claims within a constitutional format. Such a format includes individual demonstrations of the substantive elements of Plaintiffs’ claims, including causation and damages.”). See generally Markham R. Leventhal, Class Actions: Fundamentals of Certification Analysis, 72 Fla. B.J. 10, 14-16 (May 1998) (discussing why the trial of an improperly certified class action is likely to violate a defendant’s due process rights).

The Supreme Court of Florida has authorized class actions by virtue of its rule-making authority under the Florida Constitution. Art. V, § 2(a), Fla. Const. However, the court’s rule-making authority “is limited to rules governing procedural matters and does not extend to substantive rights.” Boyd v. Becker, 627 So.2d 481, 484 (Fla.1993). It follows that Florida courts may not certify a class action under rule 1.220 if the effect of class certification is to deprive one or more of the parties of their right to substantive due process of law.

Arguments for substituting proof of a pattern of conduct or a common scheme for proof of individual liability in the trial of a class action generally rest on the justifications of “administrative convenience” and “fairness.” Neither of these justifications supports the approach to class-wide proof adopted by the circuit court in this case. Although a trial court confronting a massive class action may find it tempting to allow proof of “patterns” and “common schemes” to paper over the dissimilarities attendant to individual claims, considerations of administrative convenience do not trump the class action defendant’s right to due process of law. See Cheatwood, 2001 WL 1769914, at *17. See generally Allan Erbsen, From “Predominance” to “Resolvability”: A New Approach to Regulating Class Actions, 58 Vand. L. Rev. 995, 1012-14 (2005); Mark Moller, The Rule of Law Problem: Unconstitutional Class Actions and Options for Reform, 28 Harv. J.L. & Pub. Pol’y 855, 875-76 (2005).

The argument for authorizing proof by “patterns” and “common schemes” based on considerations of fairness may be stated as follows: The ordinary standards concerning rules of evidence, burdens of proof, or proof of the elements of a cause of action must be relaxed in the class action context. Otherwise, the high cost of pursuing individual claims will leave the individual members of the putative class without a remedy. Like the argument from administrative convenience, the argument based on considerations of fairness ignores the class action defendant’s substantive rights. But the fairness argument suffers from the additional defect of circularity. It assumes what remains to be proved: that the individual members of the putative class have a right to a recovery in the first place.

e. Comparison to Other FDUTPA Claims Where Class Certification Was at Issue

The extremely ambitious scope of the Appellees’ FDUTPA claim probably made it inevitable that they would propose to establish the claims of the putative class members by presenting generalized proof based on patterns and common schemes. Nevertheless, rule 1.220(b)(3) did not authorize the circuit court to adopt the Ap-pellees’ proposal and thereby to relax other procedural rules or to alter the Appellants’ substantive rights. We recognize that our sister district courts have approved the certification of other FDUT-PA claims as class actions in several cases. However, the Florida appellate decisions in which the class certification of FDUTPA claims has been approved have involved either allegations of a single defect in a standard consumer product or a single improper charge imposed uniformly on all consumers purchasing the product or service at the point of sale. See, e.g., Turner Greenberg Assocs., Inc. v. Pathman, 885 So.2d 1004 (Fla. 4th DCA 2004) (undisclosed profit in “freight/insurance” collected by high-end furniture retailer); Powertel, 776 So.2d 971 (seller of cellular telephone failed to disclose to its subscribers that telephone had been programmed to work only with the seller’s wireless communications service); Latman, 768 So.2d 699 (cruise line collected “port charge” and passed through only a portion of the port charges to port authorities and kept the remainder for itself); W.S. Badcock Corp. v. Myers, 696 So.2d 776 (Fla. 1st DCA 1996) (collection of charge for unnecessary “non-filing” insurance). In these cases, each of the consumers was treated alike, and individual issues about liability for alleged violations of FDUTPA did not arise.

Here, the Appellees’ FDUTPA claim arises in the context of a complex contractual relationship. The Contract is a service agreement. In it, Orkin undertakes not only to provide initial treatment for subterranean termites but also to perform reinspection services. If an infestation of subterranean termites is found during the term of the Contract, Orkin agrees to retreat the customer’s property at no additional cost. The contract is renewable annually upon payment of a renewal fee. Thus the agreement between Orkin and the customer could theoretically continue for as long as the customer paid the annual renewal fee and Orkin remained in business. The class includes all Orkin customers who have entered into the Contract or renewed it after March 9, 1995, “through the present.” Consequently, the period of time Orkin’s performance of the Contract is under review for each of the estimated 65,000 members of the putative class could encompass many years. The alleged deceptive acts and unfair practices could occur prior to or upon entering into the individual agreements, on renewal, or at any time during the period of the contractual relationship between Orkin and the customer. For these reasons, the Appel-lees’ broad spectrum of asserted FDUTPA violations would require consideration at trial of all aspects of the putative class members’ contractual relationship with Orkin. See Williams v. Ford Motor Co., 192 F.R.D. 580, 584 (N.D.Ill.2000) (stating that all phases of alleged deception relative to sale and performance of automotive extended service plan had to be considered in assessing motion to certify class on claim for alleged violation of Illinois Consumer Fraud Act). Furthermore, the extent of the loss experienced by each customer caused by one of the alleged unfair or deceptive acts could vary widely. For some customers, such losses might involve the repair of extensive structural damage to a home or the cost of a re-treatment for subterranean termites. Other customers might sustain no loss at all.

In cases such as this one involving complex contractual arrangements with extended periods of performance, Florida courts have generally declined to approve class certification of FDUTPA claims. See, e.g., Chase Manhattan Mortgage Corp. v. Porcher, 898 So.2d 153 (Fla. 4th DCA 2005) (alleged wrongful assessment of late fees on monthly mortgage payments received on time); Earnest v. Amoco Oil Co., 859 So.2d 1255 (Fla. 1st DCA 2003) (termination of distribution of petroleum products in Leon County to independent distributors and/or station owners commonly known as “jobbers”); Terry L. Braun, P.A., 827 So.2d 261 (treatment by unlicensed dental practitioner); Execur-Tech, 743 So.2d 19 (consumer claim for conspiracy to fix and fixing the price of jumbo roll thermal fax paper sold by manufacturers to middlemen and retailers). Here, cases such as Powertel and Batman are inapposite. The circuit court’s order certifying the class in this case was inconsistent with prior Florida decisions involving similar FDUTPA claims.

2. Breach of Contract and Unjust Enrichment (Counts IV And V)

a.The Elements of Claims for Breach of Contact and for Unjust Enrichment

The elements of an action for breach of contract are: (1) the existence of a contract, (2) a breach of the contract, and (3) damages resulting from the breach. See Knowles v. C.I.T. Corp., 346 So.2d 1042, 1043 (Fla. 1st DCA 1977). In addition, in order to maintain an action for breach of contract, a claimant must also prove performance of its obligations under the contract or a legal excuse for its nonperformance. See Old Republic Ins. Co. v. Von Onweller Constr. Co., 239 So.2d 503, 505 (Fla. 2d DCA 1970); Marshall Constr., Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So.2d 845, 848 (Fla. 1st DCA 1990). The essential elements of a claim for unjust enrichment are: (1) a benefit conferred upon a defendant by the plaintiff, (2) the defendant’s appreciation of the benefit, and (3) the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof. See Swindell v. Crowson, 712 So.2d 1162, 1163 (Fla. 2d DCA 1998).

b. The Appellees’ Claims for Breach of Contract and for Unjust Enrichment

The Appellees’ claim for breach of contract alleges that Orkin breached the Contract “by failing to inspect and treat their homes in order to control and eradicate termite infestation.” In their claim for unjust enrichment, the Appellees allege that the Appellants “received income to which they had no legal right and were thereby enriched at [the Appellees’] expense.”

c. Predominance Analysis

The individual issues concerning liability and damages that make class certification on the FDUTPA claim inappropriate would also predominate in a trial of the contract and unjust enrichment claims. Indeed, the contract and unjust enrichment claims would require the consideration of additional individualized questions not at issue on the FDUTPA claim. The Contract imposes various obligations on the customers. Each class member would be required to prove at trial his or her performance of these obligations, e.g., making the building or premises available for Orkin’s inspection. The predominance of individual issues over common questions makes class certification on the breach of contract and unjust enrichment claims inappropriate under rule 1.220(b)(3). See Hutson v. Rexall Sundown, Inc., 837 So.2d 1090 (Fla. 4th DCA 2003) (affirming denial of certification of unjust enrichment claim for alleged deceptive labeling and point-of-purchase advertising for calcium supplements because of predominance of individualized fact issues); Stone v. CompuServe Interactive Servs., 804 So.2d 383 (Fla. 4th DCA 2001) (affirming denial of class certification of breach of contract claim based on alleged deficient performance of contract for payment of $400 rebate upon signing up for three years of internet service because each class member’s history was unique and obligor’s liability for deficient performance could not be adjudicated by looking to the class as a whole).

3. The Misleading Advertising and Florida RICO Claims (Counts II and III)

a. The Appellees’ Claims for Misleading Advertising and Florida RICO-Racketeering

In count II of the complaint, the Appel-lees alleged that the Appellants had disseminated misleading advertising before the general public of the State of Florida in violation of section 817.41(1), Florida Statutes. For the redress of this alleged violation of the statute, the Appellees are pursuing a civil remedy. A person prevailing in a civil action for a violation of the statute may recover costs, including reasonable attorney’s fees, and punitive damages in addition to the actual damages proven. § 817.41(6), Fla. Stat. In count III of the complaint, the Appellees pleaded a racketeering claim based on the Appellants’ alleged misleading advertisements in violation of section 817.41(1). See §§ 772.104, 817.06. The circuit court certified the class on both of these claims.

b. The Requirement to Prove Fraud

Misleading advertising is a particularized form of fraud. In order to establish their claim for misleading advertising under section 817.41(1) and the related racketeering claim, the Appellees will be required to prove each of the elements of common law fraud in the inducement, including reliance and detriment. See Joseph v. Liberty Nat’l Bank, 873 So.2d 384, 388 (Fla. 5th DCA 2004); Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So.2d 1367, 1370 (Fla. 4th DCA 1981). Consequently, Florida case law concerning the suitability of fraud claims for certification as class actions guides our review of the circuit court’s decision to certify the class on the misleading advertising and racketeering claims.

c.Claims for Fraud Based on Individual Contracts and Class Actions

The leading ease in Florida on the certification of actions for fraud based on individual contracts as class actions is Lance v. Wade, 457 So.2d 1008 (Fla.1984). In Lance, our supreme court reaffirmed its prior decisions holding that claims for fraud based on individual contracts cannot be the basis for a class action. Id. at 1009. After reviewing the elements of a cause of action for fraud, the court explained the rationale for its ban on certifying class actions based on separate contracts:

In a situation such as this, involving multiple contractual sales, each of the parties has his own separate and distinct contract and must make a determination as to which terms are important to him. What one purchaser may rely upon in entering into a contract may not be material to another purchaser.

Id. at 1011. In Humana, this court applied Lance in deciding to reverse an order certifying a class action for alleged misrepresentations or failure to disclose information to potential enrollees in a health maintenance organization. Humana, 728 So.2d at 266. Here, each of the 65,000 members of the putative class either has or once had a separate contract with Orkin. Thus certification of the misleading advertising and racketeering claims was error under both Lance and Humana.

d. Analysis of the Cases Relied on by the Circuit Court

In finding that the misleading advertising and racketeering claims qualify for class certification, the circuit court relied primarily on two decisions: Broin v. Philip Morris Cos., 641 So.2d 888 (Fla. 3d DCA 1994), and Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir.2004). Neither of these decisions supports the circuit court’s order.

In Broin, thirty nonsmoking flight attendants filed a class action against several tobacco companies on their own behalf and on behalf of a class consisting of approximately 60,000 current and former flight attendants employed by various airlines in the United States, who were continuously forced to inhale secondhand cigarette smoke in airplane cabins. 641 So.2d at 889. The class action complaint sought recovery of damages for diseases and disorders allegedly caused by the flight attendants’ exposure to secondhand cigarette smoke. Id. The class action complaint was predicated on multiple theories, including fraud and conspiracy to commit fraud. Id. The circuit court granted the tobacco companies’ motion to dismiss all class allegations in the complaint. Id.

On appeal, the Third District reversed the circuit court’s order of dismissal and remanded the case to the circuit court with instructions to reinstate the class allegations. The district court distinguished Lance and similar decisions as follows:

Contrary to defendants’ assertions, dismissal is not required under Lance v. Wade, 457 So.2d 1008 (Fla.1984), K.D. Lewis Enter. Corp., Inc. v. Smith, 445 So.2d 1032 (Fla. 5th DCA 1984), Mathieson v. General Motors Corp., 529 So.2d 761 (Fla. 3d DCA 1988), or [Cohen v.] Camino Sheridan[, Inc., 466 So.2d 1212 (Fla. 4th DCA 1985) ]. These eases do not dictate affirmance; they merely demonstrate Florida’s aversion to class action treatment for breach of contract or fraud claims. Lance held that fraud on individual contracts for the purchase of home lots could not be the basis for class action. The Lance court reasoned that class action treatment was inappropriate under those circumstances because “[w]hat one purchaser may rely upon in entering into a contract may not be material to another purchaser.” Lance, 457 So.2d at 1011. The court in K.D. Lewis Enter. Corp., held that tenants in an apartment complex could not bring a class action against the landlord because the landlord’s omissions and noncompliance varied from tenant to tenant. The homeowners’ class action complaint against the home builder in Camino Sheridan was dismissed because it did not allege that the house roofs or contracts in question were similar. In the present case, no discrepancies analogous to those inherent in the cited fraud and contract cases support the trial court’s erroneous dismissal.

Id. at 891. Concerning the fraud claims, the Third District reasoned that the trial of the case would emphasize issues applicable to the class as a whole. Id. The common issues would include whether the tobacco companies’ behavior constituted an intent to defraud the class members and whether they conspired to conceal the dangers of secondhand smoke. Id.

Broin does not support the circuit court’s order in this case. The Broin court expressly distinguished the factual situation presented to it from cases such as this one involving a claim of fraud arising from a contract. 641 So.2d at 891. As the Fifth District has noted in a similar context, “[i]n Broin, the class members were passive inhalers of secondhand smoke. They never even used the defendants’ products. Individualized reliance was irrelevant.” Hoechst Celanese Corp. v. Fry, 753 So.2d 626, 628 (Fla. 5th DCA 2000) (en banc). Here, the class claims for misleading advertising and racketeering are based on individual contracts. Thus reliance is an element of the claims, and Lance and Hu-mana apply to preclude class certification.

The circuit court’s reliance on the Eleventh Circuit’s decision in Klay was also misplaced. Klay involved a class action brought on behalf of a large number of doctors against almost all major health maintenance organizations. 382 F.3d 1241. The district court had certified the plaintiffs’ fraud-based RICO claims under Federal Rule of Civil Procedure 23(b)(3). 382 F.3d at 1250. On appeal, the defendants argued that the district court erred in certifying the class on the RICO claims because common issues of fact and law did not predominate over the individual issues specific to each plaintiff. Id. at 1254. The defendants pointed out that the RICO claims were based, in large part, on allegations of mail and wire fraud. Id. at 1257. They argued that because reliance may not be presumed in fraud-based RICO actions, the evidence had to demonstrate that each individual plaintiff actually relied on the misrepresentations at issue. Id. Despite these arguments, the Eleventh Circuit approved the district court’s certification of the class on the fraud-based RICO action. Id. at 1258-61.

In this case, the circuit court found the Eleventh Circuit’s analysis of the reliance issue in the context of federal rule 23(b)(3) persuasive for its interpretation of the Florida counterpart, rule 1.220(b)(3). It is true that federal cases are persuasive authority for the interpretation of rule 1.220. See Toledo v. Hillsborough County Hosp. Auth., 747 So.2d 958, 960 n. 1 (Fla. 2d DCA 1999). Nevertheless, the federal cases construing rule 23 are not binding on Florida courts. In this case, Lance and Humana are the controlling Florida authorities on the issue of whether the fraud-based advertising and racketeering claims are eligible for class certification. The circuit court was led into error when it decided to rely instead on Klay. See State v. Lott, 286 So.2d 565 (Fla.1973); Bozeman v. Higginbotham, 923 So.2d 535 (Fla. 1st DCA 2006). Moreover, the Eleventh Circuit specifically noted in Klay that because of the nature of the misrepresentations at issue in that case, circumstantial evidence could be used to show that reliance was common to the whole class. 382 F.3d at 1259. In this case, no proof could establish that each of the 65,000 members of the putative class reviewed or relied on the identical advertising in deciding to select Orkin as a provider of pest control services. For this reason, Klay is distinguishable on its facts.

4. Class Certification Under Rule 1.220(b)(3) Was an Abuse of Discretion

As the foregoing analysis demonstrates, questions affecting individual members of the putative class on counts I through V overwhelm the common questions arising from the provisions of the Contract. Viewed from the perspective of how the case could be tried, this matter is an assortment of 65,000 mini-trials masquerading as a class action. A trial of the proposed class action with a due regard for the Appellants’ substantive rights and the provisions of the Evidence Code could not be completed during the lives of the current participants. Cf. Galloway v. Am. Brands, Inc., 81 F.R.D. 580 (E.D.N.C.1978) (declining to certify class where trial of individual damage claims alone would consume well over 100 years). The proposed class action does not meet the requirements for certification under rule 1.220(b)(3) because it is unmanageable.

Moreover, class certification is not superior to other methods available for the fair and efficient adjudication of the controversy for several reasons. First, because individual issues predominate, it is inappropriate to bind absent class members to the possibility of a negative outcome when the Appellees’ claims may raise different issues from those of the absent class members. See Liggett Group, 853 So.2d at 445. Second, adequate incentives exist for consumers who have sustained an actual loss to obtain redress. We note that customers who succeed in establishing one of the statutory claims pleaded in the complaint would be entitled to an award of attorney’s fees. See § 501.2105, Fla. Stat. (FDUTPA); § 817.41(6), Fla. Stat. (misleading advertising); § 772.104, Fla. Stat. (Florida RICO). In addition, the Contract contains a provision for the award of attorney’s fees in favor of Orkin. Thus consumers who successfully prosecute an action for breach of contract against Orkin could recover their attorney’s fees on that claim as well. See § 57.105(7), Fla. Stat. Third, we doubt that allowing the matter to proceed as a class action on only one of the claims — as the dissent proposes — will promote judicial economy by consolidating into one action other claims pending around the State. Consumers claiming losses such as damage to their homes from termite infestation who have already filed suit against the Appellants will certainly wish to pursue multiple claims, not just the FDUTPA claim.

Before leaving this point, we should pause to consider the utility of the proposed class action in the context of the legal system as a whole. Assuming that the Appellees’ claims about the Appellants’ business practices are true, a class action is not the only way of addressing them. Some would argue that other methods would be superior to a class action. Of course, injured customers may pursue separate actions against the Appellants. In an action where the facts warrant it, an injured customer may request an award of punitive damages in addition to actual damages. See §§ 768.72-.737, Fla. Stat. In addition, we note that Orkin and other members of Florida’s pest control industry are regulated by the Florida Department of Agriculture and Consumer Services. Disciplinary procedures, fines, and criminal sanctions are available to address the behavior of pest control operators who will not operate in accordance with the rules. See §§ 482.161-.191, Fla. Stat. Furthermore, both the State Attorney’s Office and the Department of Legal Affairs may address violations of FDUTPA administratively. §§ 501.203, 501.207, Fla. Stat.; see Fonte v. AT & T Wireless Servs., 903 So.2d 1019, 1025 (Fla. 4th DCA 2005). Administrative enforcement of FDUTPA has an advantage over private remedies in that the state agencies need not prove that victims suffered actual damages. See Chicken Unlimited, 374 So.2d at 97; Himes, 518 So.2d at 938 n. 1. Consequently, allowing the proposed class action to proceed is not essential to address deficiencies- — if any exist — in the Appellants’ business practices.

For these reasons, the class action is unmanageable, and it is not superior to other methods of adjudicating the controversy. The circuit court abused its discretion in certifying the class under rule 1.220(b)(3).

C. Certification Under Rule 1.220(b)(2)

1. The Appellees’ Claim for Injunc-tive and Declaratory Relief (Count VI)

In their request for declaratory and in-junctive relief, the Appellees allege the existence of a dispute with the Appellants concerning the enforceability of the disclaimers in the Contract. The Appellees’ position is that they are entitled to the repair of the damage to their homes resulting from the alleged termite infestations and that the disclaimers limiting them to only re-treatment of their homes are unenforceable. The Appellees also contend that the disclaimers releasing Or-kin from liability for its own negligence and breach of contract are unenforceable. According to the Appellees, Orkin’s position is that the disclaimers were enforceable. In their prayer for relief, the Appel-lees request a judgment “declaring the rights, status, and obligations of the parties with respect to the termite contracts and guarantees and related legal rights and duties, which include, without limitation, a declaration the Disclaimers violated Florida law and are void and unenforceable as against public policy and enjoining [the Appellants] from further reliance on Orkin’s disclaimers.” Based on the allegations of count VI and the prayer for declaratory and injunctive relief, the circuit court certified the class under rule 1.220(b)(2).

2. The Requirements for Class Certification Under Rule 1.220(b)(2)

Rule 1.220(b)(2) provides for class certification where “the party opposing the class has acted or refused to act on grounds generally applicable to all the members of the class, thereby making final injunctive relief or declaratory relief concerning the class as a whole appropriate.” The advisory committee’s note to federal rule 23, the counterpart to rule 1.220, states that certification under section (b)(2) is not proper in “cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Fed. R. Civ. P. 23, advisory committee’s note. The Fourth District has explained this limitation on the scope of rule 1.220(b)(2) as follows:

Monetary relief predominates unless such relief is incidental to the requested declaratory relief, meaning that “damages flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” “[IJncidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established.” “[S]uch damages should at least be capable of computation by means of objective standards not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances,” nor require additional hearings or evidence to ascertain.

Freedom Life Ins. Co. of Am. v. Wallant, 891 So.2d 1109, 1117-18 (Fla. 4th DCA 2004) (citations omitted). See also Océ Printing Sys. USA, Inc. v. Mailers Data Servs., 760 So.2d 1037, 1044 (Fla. 2d DCA 2000) (holding that trial court did not abuse its discretion in certifying class under rule 1.220(b)(2) because plaintiffs’ injunction count sought actual injunctive relief rather than monetary damages through the roundabout method of an injunction requiring the disgorgement of illegal profits).

3. The Requirements for Class Certification Under Rule 1.220(b)(2) Were Not Met

The circuit court concluded — without any analysis — that the class is appropriate for certification under rule 1.220(b)(2). We disagree. The goal of the Appellees’ action against the Appellants is the recovery of substantial money damages for themselves and for the putative class members. The recovery of money damages is at the core of the dispute; it is certainly not incidental to any claims for declaratory and injunctive relief. On the contrary, the only function served by the claim for declaratory and injunctive relief in count VI is to lay a legal foundation for the recovery of money damages against the Appellants. In this case, the injunc-tive relief requested would be little more than an overture to the damages opera. What is more, none of the putative class members would automatically be entitled to money damages once the claim for declaratory relief is determined. Many other liability issues would remain to be resolved, along with individual claims for damages. Because issues pertaining to money damages predominate in this ease, certification under rule 1.220(b)(2) is inappropriate. See Freedom Life, 891 So.2d at 1118; see also Cooper v. Southern Co., 390 F.3d 695, 721 (11th Cir.2004) (holding that claims for monetary damages could not be considered “incidental” to claims for in-junctive and declaratory relief where “complex, individualized determinations” would be necessary to fix the appropriate level of individual damage awards).

VI. CONCLUSION

For these reasons, the circuit court abused its discretion in certifying the class. We reverse the order of class certification, and we remand this case to the circuit court with directions to decertify the class.

Reversed and remanded with directions.

ALTENBERND, J., Concurs.

WHATLEY, J., Concurs in part and dissents in part with opinion.

WHATLEY, Judge,

Concurring in part and dissenting in part.

I agree that class certification was improper as to counts II through VI, but I would affirm the certification of a class as to count I, the FDUTPA claim. Section 501.204(1), provides as follows: “Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Although the FDUTPA does not define “unfair or deceptive acts or practices,” it does provide that a violation of “[a]ny law, statute, rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices” is a violation of this statute. § 501.203(3)(c).

The Appellees’ complaint alleges that Florida’s Structural Pest Control Act, §§ 482.011-.242, Florida Statutes (2001), proscribes unfair, deceptive, and unconscionable acts and practices, and the complaint alleges that the Appellants committed several acts in violation of this statute. The complaint also alleges that the Appellants engaged in the following unfair or deceptive acts or practices: making or disseminating false and misleading advertisements in violation of sections 817.06 and 817.41, Florida Statutes (2001), forging consumers’ signatures on inspection documents in violation of section 831.01, Florida Statutes (2001), defrauding and cheating consumers in violation of section 817.29, Florida Statutes (2001), and improperly accepting annual renewal payments and other money from consumers in violation of section 812.014, Florida Statutes (2001). The complaint further alleges that the Appellants established a practice of falsifying inspection documents and structured the compensation system to encourage such practice. It also alleges that the Appellants failed to disclose termite infestations to consumers and inaccurately represented that homes did not have such infestations.

Courts have held that FDUTPA claims may be brought in a class action lawsuit. In Latman v. Costa Cruise Lines, N.V., 758 So.2d 699, 702 (Fla. 3d DCA 2000), the Third District Court of Appeal held that class certification was appropriate in the appellants’ suit filed pursuant to FDUT-PA. In Latman, as in this case, the appel-lees argued that FDUTPA required the appellants to prove reliance and damages as to each class member, which necessarily entails a case-by-case adjudication that is not appropriate for class consideration. The Third District disagreed, holding that in a FDUTPA claim, members of the class do not need to individually prove reliance on the alleged misrepresentations, and it “is sufficient if the class can establish that a reasonable person would have relied on the representations.” Id. at 703 (quoting Dix v. Am. Bankers Life Assurance Co. of Fla., 429 Mich. 410, 415 N.W.2d 206, 209 (1987)).

In Davis v. Powertel, Inc., 776 So.2d 971, 973 (Fla. 1st DCA 2000), the First District agreed with Latman, noting that “[a] party asserting a deceptive trade practice claim need not show actual reliance on the representation or omission at issue.” Rather, the party must establish that “the practice was likely to deceive a consumer acting reasonably in the same circumstances.” Id. at 974. In the present case, I believe that the issues of proof related to unfair or deceptive practices common to the class predominate over individual questions of law or fact. For example, the Appellees allege in their complaint that the Appellants engaged in unfair or deceptive acts or practices by using illegal disclaimers that appear in minute fine print on the reverse side of the standard termite contract, limiting Orkin’s termite protection guarantee. This issue of proof as to whether Orkin’s contracts were illegal is common to all putative members of the class. In determining whether class certification is appropriate, “ ‘it is not necessary that all questions of fact or law be common, but only that some questions are common and that they predominate over individual questions.’ ” Klay v. Humana, Inc., 382 F.3d 1241, 1254 (11th Cir.2004) (quoting In re Theragenics Corp. Sec. Litig., 205 F.R.D. 687, 697 (N.D.Ga.2002)).

I also believe that issues of proof related to causation and damages common to the class predominate over individual questions of law or fact. In Davis, 776 So.2d at 974-75, the First District held that the claims for damages can be asserted on behalf of the class, because they share one essential common feature: the alleged defective practice reduced the value of the agreements. But see Philip Morris USA Inc. v. Hines, 883 So.2d 292 (Fla. 4th DCA 2003) (concluding that FDUTPA claim could not be litigated as class action where amount of damages depended on manner in which individual consumer used the product).

The First District has applied FDUTPA to a case involving the adequacy of a termite inspection. In Urling v. Helms Exterminators, Inc., 468 So.2d 451 (Fla. 1st DCA 1985), the appellants filed suit under FDUTPA, alleging that they relied on the appellees’ inspector’s report that a home had no termite damage, and the inspector later admitted that he never signed the report and the inspection never took place. The court held that this evidence created a jury question as to whether FDUTPA applied to the claim. Id. at 454. As to damages, the court held that FDUTPA “entitles a consumer to recover damages attributable to the diminished value of the goods or services received, but does not authorize recovery of consequential damages to other property attributable to the consumer’s use of such goods or services.” Id.

Similarly here, actual damages will not include consequential damages, such as the cost to repair a structure damaged by termites. Therefore, it is irrelevant that perhaps only some of the Appellees incurred termite damage to their homes. Under FDUTPA, damages must be measured by the reduction in value of the agreements caused by the deceptive or unfair acts or practices. See id.; Orkin Exterminating Co. v. Petsch, 872 So.2d 259 (Fla. 2d DCA 2004) (holding that section 501.211 allows consumers to recover damages for only the diminished value of the services received). Consequently, issues pertaining to proof of damages will be identical for every member of the class, and those issues common to the class predominate over individual questions of law or fact.

      . We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi).

      . The definition of the Orkin RICO Subclass calls to mind the classic example of a loaded question, "Have you stopped beating your wife yet?” The Appellants did not concede that Orkin's advertisements and representations were misleading or that they violated the statutes mentioned. The Appellees would have to prove their contentions about Orkin’s advertisements and representations. The definition of the subclass is untenable because a mini-hearing on the merits of each claim would be required to determine membership in the subclass. See Forman v. Data Transfer, Inc., 164 F.R.D. 400, 403 (E.D.Pa.1995).

      . For this reason, neither the circuit court’s order certifying the class nor our decision reversing that order should be interpreted as expressing any opinion on the merits of the Appellees’ claims against the Appellants.

      . Assuming that the disclaimers in the Contract were unenforceable as the Appellees contend, then Orkin may also have had a conditional duty to repair termite damage. We express no opinion on the validity of the various disclaimers in the Contract.

        . Mark Moller makes this point in The Rule of Law Problem, 28 Harv. J.L. & Pub. Pol'y at 874.

      . Kris Cornett, Maria Garcia, and the But-lands executed their agreements with Orkin in 1991, 1992, and 1993 respectively.

      . Section 482.227 provides that any contract for the treatment of wood-destroying organisms must use the term “limited” with the term "guarantee” or “warranty,” "[i]f the licensee promises only to provide additional treatment if infestation occurs during a specified period after treatment,” except for when the term "guarantee” or "warranty” is used in a disclaimer. Further, if the licensee promises neither restoration of the property nor additional treatment when infestation occurs, then the term "guarantee” or "warranty” may be used only in a disclaimer. Any such disclaimer "must appear in conspicuous type on the face of the contract.”

      . The complaint also alleges various violations of Florida Administrative Code Rule 5E-14.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ashley Terria SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4175.
    District Court of Appeal of Florida, Second District.
    June 30, 2006.
    Catherine L. Combee, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed without prejudice to file a timely motion for posteonviction relief pursuant to Florida Rule of Criminal Procedure 3.850, if desired.

ALTENBERND, SALCINES, and SILBERMAN, JJ., Concur.


author: BROWNING, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant, v. P.S.: In the Interest of C.S., G.S. and M.S., Appellee.
    No. 1D05-4421.
    District Court of Appeal of Florida, First District.
    July 3, 2006.

      Joann M. Humburg, Attorney Supervisor, Lake City, for Appellant.
    Donald K. Rudser, Jasper, for Appellee.
   BROWNING, J.

The Florida Department of Children & Family Services (Department) appeals the circuit court’s final judgment of adoption, which allowed the minor children, C.S., G.S., and M.S., to be adopted by their paternal grandmother, P.S. (formerly known as P.C.). The Department contends that the trial court reversibly erred in allowing an out-of-state relative to adopt these children (whose parental rights previously had been terminated) without statutory findings and a favorable preliminary adoptive home study being done and filed with the petition for adoption. Having determined that the trial court misconstrued and misapplied the pertinent statutes in granting the paternal grandmother’s petition for adoption, we reverse the final judgment of adoption and remand for further proceedings consistent with the opinions expressed herein.

FACTS

In August 2003, while dependency proceedings were ongoing in Suwannee County, Florida, pursuant to chapter 39, Florida Statutes (2003), the three children were placed in the physical care and custody of their paternal grandparents and have continuously remained with them. When the grandparents and the three children moved to Georgia, the Department (as required by law) requested an Interstate Compact for the Placement of Children (ICPC) home study. On August 21, 2003, the Department filed the State of Georgia’s response to the Department’s request for a home study. The Georgia Department of Human Resources’ response neither “approved” nor “disapproved” the paternal grandmother as a permanent placement option. Instead, the Georgia Department stated:

At this time all we can recommend is that [the paternal grandmother] be considered as a placement resource for [the three grandchildren], but due to concerns with [the paternal grandmother’s] stability we cannot approve change of custody or assignment of guardianship for these children. We request a minimum 6 month supervisory period in order to monitor this placement and assure that stability will be maintained.

Subsequently, the three children’s parents signed voluntary surrenders, and their parental rights were terminated. See § 39.811, Fla. Stat. (2003). On June 7, 2004, the children were committed by court order to the Department’s permanent custody for purposes of adoption. See §§ 39.622 & 39.812, Fla. Stat. (2004). In mid-2004, the Georgia Department voiced “many concerns” about the children’s safety and welfare, supported by specific written allegations, which were reported to the trial court in Florida. Given these ongoing concerns, and pursuant to the request of the Georgia family service workers (sent through the Florida office of the ICPC), the Department asked the trial court to remove the children from the paternal grandmother’s custody. Specifically, the Department presented the court with documentation, notes, and testimony of the Georgia ease workers expressing their serious concerns.

On August 30, 2004, the trial court denied the request to remove the children, terminated the Department’s protective supervision of them, and left the children in the long-term custody of the paternal grandmother in Georgia.

On April 12, 2005, the paternal grandmother filed a petition to adopt the three children, supported by her affidavit, based on the termination of the children’s parental rights. The paternal grandmother did not file a preliminary favorable adoptive home study with her petition for adoption. The only home evaluation conducted on the paternal grandmother and the three children was the previously mentioned one, which was tentative at best. No adoptive home study had been sought or conducted. At the hearing on the petition for adoption, the Department was made a party to the adoption proceedings. The Department presented oral and written objections to the trial court’s granting the petition where proper statutory procedures had not been followed.

On June 15, 2005, the trial court sua sponte entered a “Corrected Order Terminating Parental Rights,” which did not alter its ruling terminating the parental rights under chapter 39, but “revoked” the language permanently committing the three children to the Department for purposes of subsequent adoption, and reaffirmed the previous placement of the children in the long-term relative custody of their paternal grandmother.

On July 12, 2005, the trial court entered an order “granting” the adoption; a final judgment of adoption was entered subsequently. The Department moved for a rehearing, requested that the trial court require the paternal grandmother to obtain a favorable preliminary adoptive home study before the adoption was granted, and asked the court to stay the children’s adoption until the home study could be reviewed by the Department and by the court. The trial court denied rehearing but agreed to stay the adoption pending the Department’s filing this direct appeal.

LAW

We have de novo review of issues involving the interpretation of statutes. See Dep’t of Revenue v. Lockheed Martin Corp., 905 So.2d 1017, 1020 (Fla. 1st DCA 2005). The starting point in determining what procedures are to be followed under Florida law relating to post-termination adoptions is section 63.037, Florida Statutes (2005), which states:

63.037 Proceedings applicable to cases resulting from a termination of parental rights under chapter 39.
A ease in which a minor becomes available for adoption after the parental rights of each parent have been terminated by a judgment entered pursuant to chapter 39 shall be governed by s. 39.812 and this chapter. Adoption proceedings initiated under chapter 39 are exempt from the following provisions of this chapter: disclosure requirements for the adoption entity provided in s. 63.085; general provisions governing termination of parental rights pending adoption provided in s. 63.087; notice and service provisions governing termination of parental rights pending adoption provided in s. 63.088; and procedures for terminating parental rights pending adoption provided in s. 63.089.

The children’s parental rights were terminated by judgment entered pursuant to chapter 39, Florida Statutes. Thus, by the express terms of section 6S.037, Florida Statutes, this case “shall be governed by s. 39.812 and this chapter [63].” Another provision in chapter 63, Florida Statutes, addresses persons required to consent to adoption. The statutory language is as follows:

63.062 Persons required to consent to adoption; affidavit of nonpaternity; waiver of venue.—
* * ⅜
(7) If parental rights to the minor have previously been terminated, the adoption entity with which the minor has been placed for subsequent adoption may provide consent to the adoption. In such case, no other consent is required. The consent of the department shall be waived upon a determination by the court that such consent is being unreasonably withheld, provided that the petitioner has filed with the court a favorable preliminary adoptive home study performed by a licensed child-placing agency, a child-caring agency registered under s. 409.176, or a licensed professional or agency described in s. 61.20(2).

§ 63.062(7), Fla. Stat. (2005). In its June 7, 2004, order, after the parental rights were terminated, the trial court committed the children to the Department’s permanent custody for purposes of adoption. Therefore, under the express terms of section 63.062(7), the Department, being the adoption entity with which the children were placed for subsequent adoption, could provide consent to the adoption, whereupon no other consent would be required. In the case at bar, the Department not only refused to consent to the children’s adoption by their paternal grandmother, but also filed objections to the adoption proceedings continuing without a favorable home study. The Department’s consent is waived upon the trial court’s determination that consent is being unreasonably withheld, but no such determination was made by the court. Even had such a determination of unreasonably withheld consent been made by the court, the statute waives the Department’s consent, “provided that the petitioner has filed with the court a favorable preliminary adoptive home study performed by a licensed child-placing agency, a child-caring agency registered under s. 409.176, or a licensed professional or agency described in s. 61.20(2).” The Department correctly contends that neither one of the two requirements for a waiver of Department’s consent was satisfied in this case.

The express language in section 63.037 directs us not only to the other governing provisions in chapter 63, but also to section 39.812, Florida Statutes, which specifically addresses the petition for adoption. One of its subsections states:

39.812 Postdisposition relief; petition for adoption.—
(5) The petition for adoption must be filed in the division of the circuit court which entered the judgment terminating parental rights, unless a motion for change of venue is granted pursuant to s. 47.122. A copy of the consent executed by the department as required under s. 63.062(7) must be attached to the petition, unless the court determines that such consent is being unreasonably withheld and provided that the petitioner has filed with the court a favorable preliminary adoptive home study performed by a licensed child-placing agency, a child-caring agency registered under s. 409.176, or a licensed professional or agency described in s. 61.20(2). The petition must be accompanied by a form provided by the department which details the social and medical history of the child and each parent and includes the social security number and date of birth for each parent, if such information is available or readily obtainable. The person seeking to adopt the child may not file a petition for adoption until the judgment terminating parental rights becomes final. An adoption proceeding under this subsection is governed by chapter 63, as limited under s. 63.037.

§ 39.812(5), Fla. Stat. (2005). When the petition for adoption is filed in the circuit court, this statutory subsection expressly requires a copy of the consent executed by the Department pursuant to section 63.062(7), supra, to be attached to the petition “unless the court determines that such consent is being unreasonably withheld and provided that the petitioner has filed with the court a favorable preliminary adoptive home study performed” by a qualified entity. In other words, sections 63.062(7) and 39.812(5) include virtually identical requirements addressing the Department’s consent or, if it is not given, the court’s finding that the withholding of consent is unreasonable. Consent is waived only if the petitioner has filed the requisite favorable preliminary adoptive home study. Because the Department refused to execute a consent for attachment to the petition for adoption, these parallel statutes provide that the only remaining option was for the trial court to determine that such consent was being unreasonably withheld (which was not done), and for the petitioner to file with the court a favorable preliminary adoptive home study (which was not done).

The trial court reasoned that, notwithstanding the express requirements of section 63.037, Florida Statutes, supra, the provisions of section 39.812 do not apply in this case because the Department was not given custody of these children for subsequent adoption and the Department’s consent is not required. Even assuming (without having to decide) that the trial court properly “revoked” its earlier ruling permanently committing the three children to the Department for purposes of subsequent adoption, we find nothing in the applicable statutes or in the case law supporting the conclusion that the children’s adoption by the paternal grandmother could proceed to finality without either the Department’s consent or the trial court’s determination of unreasonably withheld consent and the filing of a favorable preliminary adoptive home study.

Because the trial court approved the children’s adoption by their paternal grandmother without complying with these statutory requirements, we are constrained to reverse the final judgment of adoption and to remand for further proceedings in accordance with the pertinent statutes. Chapter 39, “Proceedings Relating to Children,” is suffused with clear legislative expressions of concern for children’s best interests and overall well-being. See, e.g., § 39.001(1)(a), Fla. Stat. (2005) (stating the purposes of this chapter are “[t]o provide for the care, safety, and protection of children in an environment that fosters healthy social, emotional, intellectual, and physical development; to ensure secure and safe custody; and to promote the health and well-being of all children under the state’s care”); § 39.001(3); § 39.810 (pertaining to proceedings to terminate parental rights and requiring the trial court to consider “the manifest best interests of the child”); see B.Y. v. Dep’t of Children & Families, 887 So.2d 1253, 1255-56 (Fla.2004) (recognizing the Department’s important role in achieving these salutary goals). Likewise, the statutory chapter dealing with adoption recognizes “[t]he state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner-” § 63.022(1)(a), Fla. Stat. (2005); see § 63.022(2) (articulating legislative intent “that in every adoption, the best interest of the child should govern and be of foremost concern in the court’s determination”).

The purpose of the adoptive home study is to assist the Department in making an informed recommendation and to allow the trial court to make an informed decision about permanent placements for children. Under the interpretation of the Florida statutes made by the trial court, these children can be adopted without the Department’s consent — in fact, over its strong objection — and without a favorable preliminary adoptive home study performed by an appropriate entity, simply because the petitioner is a relative. The trial court noted that section 63.112(2)(b), Florida Statutes (2005), states that the favorable preliminary home study must be filed with the clerk of the court when the petition for adoption is filed “unless the petitioner is a stepparent or a relative.” Subsection (3) of this same provision states:

Unless ordered by the court, no report or recommendation is required when the placement is a stepparent adoption or an adult adoption or when the minor is a relative of one of the adoptive parents.

The Department correctly observes that the trial court based its ruling, in large measure, on the language in section 63.112(2)(b) & (3) stating that the favorable preliminary home study made by an appropriate entity is required to be filed with the clerk of the court when the petition is filed “unless the petitioner is a ... relative”; and that unless the trial court orders it, no report or recommendation is required “when the minor is a relative of one of the adoptive parents.” This language in one provision of the “Adoption” chapter renders meaningless the provisions in another provision, section 63.062(7), supra, as well as in chapter 39, governing “Proceedings Relating to Children,” which specifically address those cases, like the case at bar, in which the children’s parental rights have been terminated before adoption proceedings commenced. As we have noted above, in these post-termination cases, the adoption entity where the children have been placed for subsequent adoption “may provide consent to the adoption,” in which case “no other consent is required.” § 63.062(7), Fla. Stat. (2005). Where the Department refuses to give consent, such consent can be waived upon the court’s finding of unreasonable withholding of consent, but only if the petitioner has filed with the court a favorable preliminary adoptive home study performed by a qualified entity. See §§ 39.812(5) & 63.062(7), Fla. Stat. (2005). No other method of waiving consent is stated or implied in the relevant statutes. Had it intended to do so, the Legislature easily could have stated in section 63.062(7) that the Department’s consent to the adoption is waived if the court makes a finding of unreasonably withheld consent and the petitioner is a relative. The Legislature did not do so.

“It is well settled that a statute should be construed in its entirety and as a harmonious whole.... Further, where two laws are in conflict, courts should adopt an interpretation that harmonizes the laws, for the Legislature is presumed to have intended that both laws are to operate coextensively and have the fullest possible effect.” Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1273, 1287 (Fla.2000). Sections 63.062(7) and 63.112(2)(b) & (3) can be read in pari materia by applying the latter provisions only to those cases in which the children’s parental rights were not terminated under chapter 39. The Legislature’s recognition of the need for greater monitoring of the prospective adoptive home in cases like this one, where parental rights previously have been terminated and “red flags” have been raised by trained social workers, makes eminent sense.

Even were we to find these two provisions to be in direct conflict, it is well-established that “where two statutory provisions are in conflict, the specific statute controls the general statute.” Id. Section 63.062(7) deals specifically with “persons required to consent to adoption” in cases, like this one, where the children’s parental rights have previously been terminated under chapter 39, whereas section 63.112(2)(b) & (3) is part of a generic provision setting forth the requirements for a petition for adoption and related filings. These latter provisions do not address post-termination cases. Being the more specific and restrictive of the two chapter 63 provisions, section 63.062(7) controls. “[I]t also is well settled that when two statutes are in conflict, the more recently enacted statute controls the older statute.” Id. Section 63.112(2) & (3) was last amended in 2003, see Laws of Florida 2003-58, section 23; whereas sections 39.812(5) and 63.062(7) were amended in 2004, see Laws of Florida 2004-389, section 2, to provide the trial court with statutory authority to waive the Department’s consent upon a finding of unreasonably withheld consent, provided that a favorable preliminary adoptive home study is filed too. See B.Y., 887 So.2d at 1257 n. 2. Therefore, the more recently enacted provisions control, and the trial court reversibly erred in failing to make the requisite finding and in waiving the requirement to file a favorable preliminary adoptive home study.

“A statutory provision will not be construed in such a way that it renders meaningless or absurd any other statutory provision.” Harris, 772 So.2d at 1287. Given the Legislature’s clear intent to protect the best interests of children who are the subjects of adoption proceedings, we cannot reasonably conceive that the lawmakers would have intended a result allowing children (whose parental rights have been terminated under chapter 39 proceedings) to be adopted by any relative without either the consent of the appropriate entity or an appropriate finding by the trial court and the filing of a favorable preliminary adoptive home study.

Because the trial court failed to comply with the statutory requirements, we REVERSE the final judgment of adoption and REMAND the case for further proceedings in accordance with the pertinent statutes. On remand, the trial court also should consider the requirements of sections 63.207(3) (stating that when applicable, the ICPC shall be used in placing children outside the state for adoption) and 63.212(l)(a), Florida Statutes (2005) (stating it is unlawful for any person to place or attempt to place a minor for adoption with a person who primarily lives and works out-of-state unless all the requirements of the ICPC, when applicable, have been met), and its impact on the adoption proceedings.

WOLF and WEBSTER, JJ., concur.

      . Department did not seek rehearing or any further review of that order.


text:
    Walter James CUNNINGHAM, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1743.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We withdraw our previously issued opinion and substitute the following in its place.

Cunningham appeals the denial of his rule 3.800(a) motion to correct illegal sentence. Therein, Cunningham claimed the lower court illegally increased his sentence by removing 261 days of jail credit after he began serving his sentence. Upon review of the record, we affirm the denial of the motion without prejudice to Cunningham seeking administrative remedies through the Department of Corrections (DOC) and filing a petition for writ of mandamus if no relief is forthcoming after exhausting his administrative remedies.

The sentencing court, after accepting guilty pleas on two counts, imposed a five-year prison term and a consecutive four-year prison term. The oral pronouncement was made on April 1, 2004. Cunningham had served 261 days in jail prior to this date, and in the written sentencing orders, the judge awarded 261 days of jail credit for each count. On May 27, 2004, the DOC contacted the judge to inquire about the apparent error in double jail credits, and the judge responded by letter that the sentence should include just 261 days of jail credit. At no time did the judge issue any order correcting, modifying, or altering the sentence originally imposed. Thus, appellant must challenge the DOC’s interpretation of the sentence. To do so, appellant must first seek his administrative remedies. See generally Smith v. State, 785 So.2d 1237, 1237 (Fla. 4th DCA 2001) (“Any complaint Appellant has concerning how the Department interprets his sentences must be addressed by filing an administrative complaint with the [Department, and then, if necessary, by filing a petition for writ of mandamus against the Department in the circuit court where he is incarcerated.”).

Because Cunningham is attempting to challenge the DOC’s interpretation of his sentences, his remedy is not through rule 3.800(a), despite the letter written by the trial judge. Instead, Cunningham must pursue and exhaust his administrative remedies before returning to the circuit court. Therefore, we affirm denial of the rule 3.800(a) motion without prejudice to Cunningham seeking the relief described above.

STONE, FARMER and TAYLOR, JJ., concur.

      . We note that appellant had not included the transcripts of the oral pronouncement of the sentence in the record before the trial court, thus any such record is not properly before this Court. Additionally, the appellant has not alleged that the oral pronouncement is different from the ultimate sentence imposed by the DOC.


text:
    David THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1341.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.
    David Thomas, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the State’s motion for rehearing, withdraw our prior opinion, and substitute this opinion in its place.

David Thomas appeals the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. The motion was untimely filed under rule 3.850, but raised a claim to correct an illegal sentence that is evident from the face of the record; as such, the issue can be raised under rule 3.800. Thomas was sentenced under the unconstitutional 1995 guidelines and has standing to challenge his sentence as to counts three, four, and five. Heggs v. State, 759 So.2d 620 (Fla.2000); Trapp v. State, 760 So.2d 924 (Fla.2000).

The Florida Supreme Court recently addressed the test to be applied to sentencing errors raised in rule 3.850 motions. State v. Anderson, 905 So.2d 111 (Fla.2005). We have recently held that the test to be applied in considering rule 3.800(a) motions is whether the defendant’s sentence “could-have-been imposed.” See Brooks v. State, 930 So.2d 835, 836 (Fla. 4th DCA 2006).

Applying this test to the present case, we find that under the 1994 guidelines, the trial court could have imposed a sentence greater than that presently imposed. The error in sentencing is therefore harmless. We find no merit in the other issues argued.

Affirmed.

STONE, HAZOURI and MAY, JJ„ concur.


text:
    Sheriff F. RASHID, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4704.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2006.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   Corrected Opinion

PER CURIAM.

We withdraw our previously issued opinion and substitute the following in its place.

Sheriff F. Rashid appeals his convictions and sentences for felony battery and possession of a concealed weapon by a convicted felon. His assistant public defender filed a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

We grant the motion to withdraw and affirm Rashid’s convictions and sentences, except for his five-year mandatory sentence as a prison releasee reoffender (“PRR”) on the count for possession of a concealed weapon. Rashid challenged this sentence as illegal in a motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b), and the state conceded in its response to that motion that the PRR designation was illegal on that count because section 775.082(9)(a)(l), Florida Statutes (2003), does not include possession of a concealed weapon by a convicted felon as an offense for which the court may impose PRR sentencing. However, the trial court did not rule on this motion within sixty days, and it was deemed denied pursuant to Florida Rule of Criminal Procedure 3.800(b)(1)(B).

Appellant’s Anders counsel acknowledges that PRR sentencing was illegal on this count and presents it as a minor sentencing issue which should be disposed of in this Anders proceeding. While the Supreme Court of Florida has recognized that appellate courts must follow Anders procedure even when costs or other minor sentencing errors are raised in “no merits” briefs, “Anders procedure is not appropriate where counsel raise substantial sentencing errors of any kind.” In re Anders Briefs, 581 So.2d 149, 152 (Fla.1991). There is no bright line test for determining what constitutes a “minor sentencing error” and what makes an error “substantial,” thereby removing it from Anders procedure. However, we acknowledge that the second district entertained a comparable challenge to a PRR sentence in an Anders appeal, reversing and remanding to strike the PRR designation on one count in Bozeman v. State, 846 So.2d 616 (Fla. 2d DCA 2003). There, the state advised the court that it did not object to striking the PRR designation.

Here, the state conceded in its response filed in the trial court that the PRR sentence is illegal on the possession count. We see no reason to remove this issue from the Anders procedure in these circumstances.

Accordingly, we reverse and remand to the trial court with instructions to strike the PRR designation and mandatory minimum sentence on count two. Otherwise, we affirm.

WARNER, FARMER and TAYLOR, JJ., concur. ■