author: SHEPHERD, J.

text:
    TIRE KINGDOM, INC., Appellant, v. Aimee DISHKIN, et al., Appellees.
    No. 3D08-2088.
    District Court of Appeal of Florida, Third District.
    July 6, 2011.

      Greenberg Traurig, Elliot H. Scherker, Miami, and Daniel M. Samson; Akerman Senterfitt, Michael B. Chavies and Ryan Roman, Miami; Thompson Hiñe and Scott A. King, Dayton, Ohio, for appellant.
    Podhurst Orseck and Stephen F. Rosen-thal, Miami; Grossman Roth and Seth Miles, Coral Gables; Baron & Herskowitz, Miami, for appellees.
    Before SHEPHERD, CORTINAS, and ROTHENBERG, JJ.
   SHEPHERD, J.

We have for review a non-final order approving the prosecution of a “coupon” class action by two classes of purchasers of Tire Kingdom automotive repair services — one class of statewide customers and the other a Miami-Dade County class — who either (1) “used or benefited” from a discount coupon that failed to disclose the store would add a “shop fee” to the discounted price advertised on the coupon or (2) were “overcharged” for a service at Tire Kingdom by the “imposition of a shop fee based upon a percentage of the retail price of the service, rather than the advertised or charged price,” in violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), §§ 501.201-.213, Fla. Stat. (2006), the Florida Motor Vehicle Repair Act, §§ 559.901-.9241, Fla. Stat. (2006), and the Miami-Dade County Vehicle Repair Ordinance, §§ 8A-161.1-.37 Miami-Dade County Code. Each of these enactments makes unfair or deceptive acts or practices unlawful. The plaintiffs seek an award of damages to each class member in the amount of the full “shop charge” or “overcharge,” levied against each customer. We conclude the trial court abused its discretion in certifying the classes. A detailed summary of the record is necessary to explain our decision.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. The Class Representatives

There are two class representatives in this case, Aimee Dishkin and James Soper. Both are practicing lawyers. Both are social acquaintances of plaintiffs’ counsel. The particulars of each plaintiffs experience with Tire Kingdom are as follows.

1. Aimee Dishkin

On July 17, 2006, Aimee Dishkin went to a Tire Kingdom store at 8495 S.W. 132nd Street in Miami, Florida, to obtain an oil change on her 1997 Jeep Wrangler. Dish-kin testified that prior to going to the store, she printed a coupon from the Tire Kingdom website, offering an oil change for $16.99, and presented it to the store at the time of service. The coupon did not mention shop fees, hazardous material disposal charge, or any other charge, including taxes. Tire Kingdom has no record of her presenting a coupon to the store, but the invoice provided to her upon completion of the service itemized the charges to her account as follows:

TIRE KINGDOM, INC.
* * * * INVOICE * * * *
Customer:
DISHKIN, AIMEE
Item Number Item Description_Price Extended
*OCB OIL CHG BULK OIL 16.99
Haz-Material Disp Ch PZ-34 Haz-Material Disp Charge 3.00
Special Credit: 5.00-
Total Charges.. 19.99
Total Credits ... 00
Sub-Total. 19.99
New Tire Fees* * .00
Shop Fees(*) 1.70
All Taxes. 1.52
Payments 23.21-
Net Amount.... 00

The asterisk next to “shop fees” directed Dishkin to the following explanation, clearly appearing at both the top and foot of the invoice: “ * CHARGE REPRESENTS COST/PROFIT TO THE VEHCILE REPAIR FACILITY MISC, SHOP SUPPLY OR WASTE DISP.” Dishkin testified that while she “looked at” the invoice and signed it before paying for the service, it was not until that evening she reviewed the invoice further and noticed the shop fee charge. She did not call or complain to anyone about the charge. Instead, she joined as a plaintiff in the class action complaint filed in this case nine months later. The only deception she alleges in her complaint, for which she seeks recovery, is the shop fee charge appearing on her invoice. The shop fee charge on her invoice was ten percent of the cost of the service.

Although the store patronized by Dish-kin had at least four signs prominently posted in the public area of the store-two affixed to the customer counter, one affixed to the wall in the same area, and a fourth perched on a stand in the customer waiting room-Dishkin stated she did not “specifically recall” seeing any of the signs. While it is company practice to have customers sign an estimate form before providing service, Dishkin testified she did not receive or sign a written estimate for the services she received in this case.

2. James Soper

On February 25, 2007, James Soper went to a Tire Kingdom store located at 3753 Bird Road in Coral Gables, Florida, for tire maintenance on his 2002 Land Rover. Soper testified that before going to the store, he printed a coupon from the Tire Kingdom website offering tire maintenance service (four-tire rotation, air pressure check, computerized spin balance and alignment check) for $19.99. The coupon applied to “Most Cars and Light Trucks.” The coupon did not mention shop fees, hazardous material disposal charge, or any other charge, including taxes.

In fact, Soper was not eligible to use the coupon because his vehicle was a Land Rover. When Soper arrived at the store, the salesperson at the customer service desk rejected the coupon. Soper then spoke with the store manager, Eduardo Alvarez, who gave him the discount anyway based upon a generic code entered into the computer. Alvarez testified he remembered Soper because Soper had called the store on the prior Thursday to ask whether he could use the coupon. Alvarez testified he told Soper that the coupon “did not apply,” but that if he came in, Alvarez would give him the discount anyway.

Soper paid $25.24 for the service he received. While eschewing the suggestion an estimate was presented prior to the beginning of his service, Soper acknowledged signing one for the services he received. In the statutorily prescribed black bordered box in the bottom left-hand corner of the estimate where Soper signed, there appears an “X” next to the line reading, “I DO NOT REQUEST A WRITTEN ESTIMATE AS LONG AS THE REPAIR COSTS DO NOT EXCEED $25.24.” In the middle of the estimate, in an open area, appears the signature of “Eddy,” the name by which Eduardo Alvarez was known in the store. The only record evidence of Alvarez being at the customer service desk, where these forms are prepared, during the course of Soper’s service, was when he approved the equivalent discount on Soper’s service before it commenced.

Adjacent to the black-bordered box in the bottom right-hand corner of the estimate appears the following itemization of anticipated services to be performed:

TIRE KINGDOM, INC.
Customer:
SOPER, JAMES
Item Number Item Description Price Extended
RNC ROTATION NO CHARGE ALL WHEEL
SBS STANDARD WHEEL BAL CO OS IO CO
mpto Tire Promotion 1- £>- 05 lO H
Special Credit:
35.96 Total Charges..
15.97-Total Credits..
19.99 Sub-Total.
.00 New Tire Fees* *
3.60 Shop Fees(*)
1.65 All Taxes.
25.24-Payments.
Net Amount... .00

As with the Dishkin invoice, the asterisk next to the phrase “shop fees” on the Soper estimate directed his attention to the statement, “ *CHARGE REPRESENTS COST/PROFIT TO THE VEHICLE REPAIR FACILITY MISC, SHOP SUPPLY OR WASTE DISP.” at the foot of the estimate.

Soper also received an invoice for the services rendered him. There is no dispute this document was presented to him upon completion of the service. The invoice he received is identical in form to that received by Dishkin seven months earlier at a different store. The same itemized list of charges on Soper’s invoice also appears in his estimate, sans, of course, the advice “Do Not Pay from this Form.” An asterisk appearing after the phrase “Shop Fees” again directed Soper to the same explanation at the foot of the invoice, as appeared at the foot of his estimate, namely the “ *CHARGE REPRESENTS COST/PROFIT TO THE VEHICLE REPAIR FACILITY MISC, SHOP SUPPLY OR WASTE DISP.” Consistent with the estimate, the total invoice amount for the service provided to Soper was $25.24, the amount which he paid. The invoice amount included a shop fee charge of ten percent of the undiscounted retail price of the service.

Although the store patronized by Soper had three signs prominently posted in the public area of the store — one affixed to the customer service counter, one affixed to a wall in the same area and a third perched on a stand in the customer waiting room— Soper testified he “did not recall” seeing any of the signs, despite the fact he ordered his service at the customer service counter and utilized the customer waiting room for about thirty minutes while his service was being performed. Like Dish-kin, Soper testified he did not notice the “shop fee” charge on the invoice until he got home that day, and did not complain to the store. Thirty days later, his counsel filed this class action complaint.

B. Tire Kingdom

Tire Kingdom sells tires and provides automotive repair services. The company operates more than 650 stores in eight states and charges a shop fee on certain services. The purpose of the fee is to recover some of the costs of motor vehicle services that cannot be charged individually, such as rags, solvents, cleaners, floor mats, seat covers, steering wheel covers, and minor hardware items. The amount of the fee has varied through the years, but has ranged from six percent to ten percent of the standard retail price of the service up to thirty dollars.

The Florida Motor Vehicle Repair Act requires all written estimates for repair work on a motor vehicle, the cost of which will exceed $100, to disclose the anticipated amount of any charge levied as a shop fee or hazardous waste removal fee together with the explanation, “This charge represents the costs and profits to the motor vehicle repair facility for miscellaneous shop supplies or waste disposal.” § 559.905(l)(h), Fla. Stat. (2006). Tire Kingdom requires every repair service customer to sign an estimate prior to service, even when the cost of the service is expected to fall below $100. For those services where Tire Kingdom charges a shop fee or hazardous waste disposal fee, the fee is computer calculated and included on both the estimate and invoice form. The statutorily required explanation is pre-printed on both forms and thus appears on the form whether or not such a fee will be charged to the customer. Each store also posts signs in its customer service area to inform Tire Kingdom customers about these charges.

Tire Kingdom markets its services in all media, including radio, television, print media, direct mail, and the internet. The company regularly includes discount coupons for its services in its print media, direct mail, and internet advertising. It began including discount coupons in its internet advertising, prominently including its own website, in February 2006. For all services for which Tire Kingdom charges a shop fee or hazardous waste disposal fee, it is Tire Kingdom’s policy to disclose that fact in both its advertisement and within any coupon included in the advertisement. Exemplar coupons in the record indicate the company places the disclosure near the advertised price for the service. However, the language of the disclosures employed by Tire Kingdom on its coupons and in its advertisements does not appear to be uniform. For example, one of the record exemplars includes the language, “Plus Shop Fee” adjacent to the advertised price. Another states, “Plus Shop Fee at 10%” at a similar location on that particular coupon.

It is the responsibility of Robert Crosta-rosa, Tire Kingdom’s Vice President of Marketing, to assure that Tire Kingdom’s print and internet advertising conforms to its company disclosure policy and that each state’s disclosure rules and regulations are met as well. Although he has no formal training in advertising, or advertising regulation, including the laws and rules of the various states, he does have some thirty years of experience in the retail tire and repair service industry, including stints with several of Tire Kingdom’s competitors where his responsibilities included advertising and marketing.

Although Tire Kingdom disputes the legal effect of the testimony, Crostarosa is of the view it is misleading to the consumer not to disclose fees, like a shop fee, in coupon advertisements. He reaches this conclusion based upon his common sense understanding, consistent with company policy, that the full price of any advertised service, excluding sales taxes, should be disclosed in company promotional materials disseminated to the public. He admits that Tire Kingdom occasionally has failed to include this disclosure in an advertisement or discount coupon. However, he believes the non-disclosure errors have been few in the print media and less than ten percent of internet postings. Tire Kingdom has available copies of its advertisements that have run in print, direct mail, or over the internet going back to 2003.

Tire Kingdom store managers and salespersons exercise wide berth in the grant of discounts and price adjustments on Tire Kingdom services. For example, while store managers are instructed to require the production of a coupon at the time of service to receive a coupon discount, the rule is honored as much in the breach as in the observance at Tire Kingdom. “Coupon discounts” regularly are afforded: to a customer who merely asks for or demands the “lowest [available] price” at the customer counter; a customer who states she came to the store because she saw, heard about, or had a coupon but did not have it in hand; to price an “add-on” when a mechanic sees a need while servicing a vehicle; to meet a competitor’s price; to reward customer loyalty or satisfaction; or simply because the salesperson knows there is a lower price than the standard retail price and elects to offer it. Although senior management might prefer that store managers and salespersons act with greater discipline in these regards, the business culture at Tire Kingdom is to afford store managers and salespersons a “free range on pricing” with the goal, as store manager Alvarez testified, to do whatever is necessary to “keep the customer” and “keep the customer happy.”

Perhaps as a corollary, the accounting for coupon use throughout Tire Kingdom is desultory at best. All Tire Kingdom discount coupons are imprinted with a code so Tire Kingdom can monitor the effectiveness of its advertising. However, just as the requirement imposed on store managers and salespersons to receive a coupon before giving a discount is honored as much in the breach as in the observance, so also are the in-store coupon recording and coupon accounting practices across Tire Kingdom. According to Eduardo Alvarez, his Coral Gables store uses a “generic code” to record every discount or price adjustment made by the store. Tire Kingdom has found that strict adherence to customer discount, price adjustment, and coupon account requirements to be “impossible of enforcement” in the milieu in which it operates.

ANALYSIS

Class certification is a serious decision, often the defining moment in a lawsuit (for it may sound the “death knell” of litigation on the part of plaintiffs, or create unwarranted pressure to settle non-meritorious claims on the part of defendants). A grant of certification considerably expands the dimensions of the lawsuit, and commits the court and parties to much additional labor over and above that entailed in an ordinary private lawsuit. It is thus often stated that a class action may be certified only after the trial court determines, on the basis of a rigorous analysis, the elements of the class action rule have been satisfied. See Miami Auto. Retail, Inc. v. Baldwin, — So.3d -, 2011 WL 2496609 (Fla. 3d DCA 2011); Baptist Hosp. of Miami v. Demario, 661 So.2d 319, 321 (Fla. 3d DCA 1995) (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).

Parties seeking class certification have the burden of pleading and proving each and every element required by Florida Rule of Civil Procedure 1.220. Terry L. Braun, P.A. v. Campbell, 827 So.2d 261, 265 (Fla. 5th DCA 2002). The rule contains four threshold requirements applicable to all class actions:

(1) the members of the class are so numerous that separate joinder of each member is impracticable [numerosity], (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class [commonality], (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class [typicality], and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class [adequacy],

Fla. R. Civ. P. 1.220(a). In addition to satisfying these requirements, a party seeking class certification also must satisfy one of the three subdivisions of Florida Rule of Civil Procedure 1.220(b). Tire Kingdom does not challenge the numerosity element of the class certification rule in this ease. Accordingly, we limit our discussion to the commonality, typicality, and adequacy elements of the rule. Because we conclude the plaintiffs presented insufficient evidence to satisfy two of the three challenged subsection (a) requirements— commonality and typicality—it is unnecessary for us to consider any of the subsection (b) requirements. We treat the elements necessary to our decision in this case in turn.

COMMONALITY

The primary concern on this element is “whether the representative members’ claims arise from the same practice or course of conduct that gave rise to the other claims, and whether the claims are based on the same legal theory.” Powell, 522 So.2d at 70; see also Olen Props. Corp. v. Moss, 981 So.2d 515, 520 (Fla. 4th DCA 2008); Braun, 827 So.2d at 267.

As we interpret the order under review, the trial court was of the impression that “Tire Kingdom repeatedly and with only non-material variations published the same advertisements across Miami-Dade County and the State of Florida,” such that the members of the class “were all victims of overcharges by the Defendant either through the omission of the shop fee in the advertisements or being charged a shop fee based on the retail price.” With these postulates in mind, the trial court summarized the “common issues” justifying class treatment of the case as follows:

a. Whether Defendant’s representations, omissions, and conduct regarding its coupons and/or advertisements were misleading or false as to any material fact;
b. Whether Defendant’s representations and conduct were likely to deceive consumers as to the complete purchase price;
c. Whether Defendant violated Miami-Dade Ordinances and/or Florida Law;
d. Whether Defendant made false promises of a character likely to influence, persuade, or induce customers to authorize the service;
e. Whether the Defendant advertised and represented repair work when there was a material contingency, condition or limitation on the offer, without such contingency, condition, or limitation being stated contemporaneously with the offer in a manner clearly and easily understood by the customer;
g. Whether Defendant initiated a deceptive marketing campaign;
h. Whether Defendant used or employed unconscionable commercial practices in its advertisement of its motor vehicle services;
i. Whether the members of Classes have been injured by Defendant’s conduct;
j. Whether the members of Classes have sustained damages and are entitled to restitution as a result of Defendant’s wrongdoing and, if so, what is the proper measure and appropriate formula to be applied in determining such damages and restitution.

(emphasis added).

The errors in this analysis are several. First, not only are the trial court’s impressions not supported by the record, but also they constitute improper incursion by the trial court into the merits of the case. Controlling precedent makes clear that a trial court considering whether an action may be maintained is not to focus on the merits of the case, but only on the requirements of the rule, see Ameriquest Mortg. Co. v. Scheb, 995 So.2d 573, 574 (Fla. 2d DCA 2008) (Altenbernd, J. concurring); City of Tampa v. Addison, 979 So.2d 246, 252 (Fla. 2d DCA 2007); Samples v. Hernando Taxpayers Ass’n, 682 So.2d 184, 185 (Fla. 5th DCA 1996); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (“We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.”), lest the cold neutrality of the trial judge expected in these important decisions be placed in jeopardy. The trial court crossed that line in this case by reaching its own preliminary conclusions on the merits of the case at the class action stage of the litigation. This alone is a sufficient ground upon which to reverse the class determination.

Second, a casual perusal of the “common issues” found by the court to justify class treatment of this case — whether “[defendant's representations ... were misleading,” “likely to deceive,” “violated Miami-Dade Ordinances and/or Florida Law,” or “[djefendant initiated a deceptive marketing campaign,” and “[wjhether the members of the class have been injured ... or sustained damages,” — while couched in soothing legal lexicon, are all questions that will be decided by an ultimate fact finder, in this case a jury. An incantation of ultimate legal issues, however variously and creatively they might be couched, does not suffice to meet the commonality element of our class action rule. See Wal-Mart Stores, Inc. v. Dukes, — U.S. -, -, 131 S.Ct. 2541, 180 L.Ed.2d 374, 2011 WL 2437013, at *7 (2011) (“ ‘What matters to class certification ... is not the raising of common ‘questions’ — even in droves— but, rather the capacity of a class[-]wide proceeding to generate common answers apt to drive the resolution of litigation.’ ”) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L.Rev. 97, 132 (2009)) (emphasis in WaV-Mart Stores ).

Third, while it frequently is said that the threshold for commonality is not high, see Morgan v. Coats, 33 So.3d 59, 64 (Fla. 2d DCA 2010), satisfaction of this element of class certification entails proof of a “common right of recovery based upon the same essential facts.” State Farm, Mut. Aiito. Ins. Co. v. Kendrick, 822 So.2d 516, 517 (Fla. 3d DCA 2002). On this point, it is important to remember the class as proposed by the plaintiffs and certified by the trial court includes not only Tire Kingdom customers who brought an allegedly defective coupon to a Tire Kingdom store, but also all customers who “benefited” from such a coupon. To capture the class, Plaintiffs first propose to identify those purchasers who used a coupon which failed to disclose a shop fee by consulting Tire Kingdom’s coupon archive to determine the coupon codes of those advertisements that omitted reference to a shop fee and then cross-check that data against Tire Kingdom’s electronically stored invoices. Plaintiffs then propose to add to that group all individuals who received a discount on their service and who were charged a shop fee based upon the retail price of the service rather than the discounted service price. The former group would receive a computer-calculated full refund of the shop fee charged. The latter group would receive a computer-calculated refund of any amount charged as a shop fee in excess of ten percent of the discounted price of the service, based upon a separate computerized review of Tire Kingdom’s electronically stored service invoices. Remarkably, all Tire Kingdom customers who received a discount — either through use of a coupon or otherwise — at a Tire Kingdom store and who were charged a shop fee, would be eligible to receive a refund of all or at least part of the shop fee paid. Plaintiffs’ legal justification for compensating the latter group, or “subclass” as characterized by them, is that these consumers were misled as a matter of law.

This, of course, flies in the face of a properly pled and proven consumer claim for damages under FDUTPA. Such a claim requires proof of: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages, see Rollins, Inc. v. But-land, 951 So.2d 860, 869 (Fla. 2d DCA 2006). For the class as certified, individualized proof would be required. The plaintiffs argue to the contrary, based upon our decision in Latman v. Costa Cruise Lines, N.V., 758 So.2d 699, 703 (Fla. 3d DCA 2000). In Latman, a class of cruise passengers sued several cruise lines for deceptively labeling a fee on their invoices as a “port charge” when, in reality, it was largely a hidden mark-up to the cruise price. In some cases, cruise passengers were given a separate breakdown for the cruise charge and the port charges, while others were given only the total cruise price. In every instance, the consumer knew at the outset the total price of the cruise and could make a decision whether the total price was acceptable. In opposing class certification, the cruise lines argued that because the total price was disclosed in advance of the purchase, only those consumers who “were influenced in some way by the port charges,” could claim to have been harmed, and “whether there was individual reliance and resulting damage in any individual case must ... necessarily be a case-by-case inquiry.” Id. at 702-03. Relying upon comparable authority from other jurisdictions as well as cases decided by the courts of this state, “[w]e held that members of a class proceeding under [FDUTPA] need not individually prove reliance on the alleged misrepresentations. It is sufficient if the class can establish that a reasonable person would have relied on the representations.” Id. at 703. We approved the certified class because each and every class member “parted with money for what should have been a ‘pass through’ port charge, but the cruise line kept the money.” Id.

We find Latman inapplicable. A very different case is presented where, as here, the plaintiffs do not rest on undisputed documentary evidence. See, e.g., Pop’s Pancakes, Inc. v. NuCO2, Inc., 251 F.R.D. 677, 688 (S.D.Fla.2008) (concluding Latman inapplicable to dispute over property-tax charges in lease because written documents were not dispositive of claim). In stark contrast, the plaintiffs here claim each class member “pa[id] more than was bargained for.” To make this determination, it follows that each class member’s Tire Kingdom experience — including the precise language of each advertisement, the class member’s awareness of Tire Kingdom’s shop-fee signage, and the class member’s conversations with Tire Kingdom employees— would have to be explored to determine Tire Kingdom’s liability to each class member. Latman represents the rare exception to the general rule that collective proof of individualized transactions cannot be used to prove the indispensable element of causation in a FDUTPA class action. See Rollins, Inc., 951 So.2d at 873-75.

Plaintiffs simply cannot evade the decision in Egwuatu v. South Lubes, Inc., 976 So.2d 50 (Fla. 1st DCA 2008), in which the trial court applied the principles on which Tire Kingdom relies to a similar FDUTPA scenario. In Egwuatu, the defendant, Jiffy Lube, “offered a service known as the ‘Signature Service Oil Change’ for an advertised price of $27.99 plus an environmental fee, which was added in varying amounts in a range of $1.00 to $2.50 per vehicle.” Id. at 51. The plaintiff alleged the assessment of the fee was a deceptive trade practice, in that it appeared to be a tax the company was collecting from consumers. The trial court denied the plaintiffs motion for class certification on the ground there were individualized differences among the potential plaintiffs as to whether they paid the fee or knew the fee was not a tax. Id. at 51-52. The First District Court of Appeal affirmed, stating:

In the present case, the trial court concluded that class litigation would be impractical because there would be many differences in the facts supporting the claims of the individual plaintiffs. This conclusion was based on the fact that the defendants have employed a variety of methods over the years to inform customers that the environmental fee was not a tax. For example, they posted menu boards stating that the environmental fee was added for the handling of hazardous products; they gave verbal explanations of the fee to customers who asked about it; they posted in all of their stores a letter from defendant Huntley explaining the fee; and they posted a fee notice explaining the environmental fee on written estimates exceeding $100. In these circumstances, the trial court reasoned that it would be necessary to make a number of individual inquiries to determine which potential class members had actual knowledge that the fee was not a tax.
Additionally, the trial court noted that some of the defendants’ commercial customers did not use the defendants’ service exclusively but that they also did business with other oil change companies. These customers must have known that the environmental fee the defendants charged was not a tax, because the other oil change companies they were doing business with did not charge it. Hence, the court concluded that an individualized inquiry would be required to determine the facts of each of the commercial customer’s experience with the defendants and whether that customer knew that the fee was not a tax.

Id. at 53-54. The same reasoning pertains here. In fact, James Soper, albeit not a Tire Kingdom commercial customer, did not use Tire Kingdom’s service exclusively, but also did business with at least one other entity that charged a shop fee. See supra note 8.

Plaintiffs attempt to characterize Eg-wuatu as an “outlier” decision and assert that this court should be “bound by its precedent of Latman.” Plaintiffs seek to evade Egwuatu because that decision “involved the review of a denial of a motion for class certification ... where the burden on appeal was the exact reverse of the burden in this case.” But allowing so-called “common proof’ to substitute for individually proving each class member’s unique claim is legal error that cannot hide behind the abuse of discretion standard. See Rollins, Inc., 951 So.2d at 873-75.

In Rollins, the court reversed a class certification because the individualized nature of the FDUTPA claims could not be “papered over” by proof of a “common scheme” or “business practice.” Id. at 873-74. (“[A]uthorizing the 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 [class action defendants] substantive due process of law.”); accord Kia Motors Am. Corp. v. Butler, 985 So.2d 1133, 1138 (Fla. 3d DCA 2008). That holding controls here.

This is not a case where the disputed issues are subject to being addressed on a class-wide basis.

TYPICALITY

Rule 1.220(a)(3) requires the claims of the representative class members to be typical of the claims of the class. This element focuses on the sufficiency of the named plaintiffs, see Kia Motors, 985 So.2d at 1133 n. 3, and the relationship between their claims and the class’s claims, see Kendrick, 822 So.2d at 517. On this element, the trial court concluded the plaintiffs “allege[d] and ... established that their claims and injury are identical to the claims of other class members.” The trial court appears to reach this conclusion based upon the fact the same theories of recovery are alleged to apply to each class member. However, “[mjerely pointing to common issues of law is insufficient to meet the typicality requirement when the facts required to prove the claims are markedly different between class members.” Olen Props., 981 So.2d at 520 (quoting Braun, 827 So.2d at 267). We find that to be the case here. Additionally, the trial court places substantial reliance on its belief Tire Kingdom engaged in “a common scheme” making “class action treatment particularly appropriate” for this ease. The evidence does not support such a conclusion. See Safeway Premium Fin. Co. v. Sosa, 15 So.3d 8 (Fla. 3d DCA 2009), review granted 37 So.3d 849 (Fla. 2010) (reversing class certification where record was devoid of evidence that Safeway’s failure to adjust premium financing agreements for service overcharges was based upon some uniform action by Safeway.).

On this element, it is not sufficient the plaintiff has “some claim.” Our adversary system works well only when “[the] system is confident that the ... litigant who does his best for himself also inescapably benefits his fellow class members.” Degnan, Ronan E., Foreward, Adequacy of Representation in Class Actions, 60 Calif L.Rev. 705, 716 (1972). When, as in this case, the factual basis of the claims asserted by the plaintiffs do not have the same basic structure as those of the certified class, the representation that might be given to the few will not be found to be adequate for those that differ significantly. Id. The plaintiffs in this case have failed in their obligation to demonstrate their sufficiency to maintain this action as a class action;

ADEQUACY

Rule 1.220(a)(4) requires the class representatives to demonstrate if the representative parties “can fairly and adequately protect and represent the interests of each member of the class.” The difference between this element and the typicality requirement is not crystal clear. Massengill v. Bd. of Ed., Antioch Cmty. High Sch., 88 F.R.D. 181, 186 (N.D.Ill., E.D.1980). However, typicality does not guarantee adequate representation. Two grounds frequently employed to determine adequacy of representation are the skill of the attorney to prosecute the case, see Browning v. Angelfish Swim Sch., Inc., 1 So.3d 355, 360-64 (Fla. 3d DCA 2009) (Shepherd, J., concurring in part, and dissenting in part), and lack of conflict between the interests of the representatives and those of the class they seek to represent. See Braun, 827 So.2d at 268 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624-26, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). In addition, inherent in this rule is “an expectation of a ‘minimal level of interest in the action.’ ” Massengill, 88 F.R.D. at 186 (quoting Sullivan v. Chase Inv. Servs., 79 F.R.D. 246, 258 (N.D.Cal.1978)).

We agree with the trial court that the plaintiffs presented sufficient evidence to satisfy this element. The record reflects the plaintiffs in this case have no direct conflict with any other members of the class, are represented by competent counsel, and appear to have maintained a minimal level of interest in the action.

CONCLUSION

The touchstone of class certification, dating to the origins of the device, see 7A Wright and Miller & Kane, Federal Practice & Procedure § 1751 (2005), is that the class representatives, by proving their own individual cases, necessarily will prove the cases for each one of the thousands of other members who may be members of the class. Kia Motors, 985 So.2d at 1136. By way of contrast, in complex cases, such as this, where no one set of operative facts establishes liability, where no single proximate cause applies to each defendant, and where individual issues outnumber common issues, trial courts should be hesitant to certify class actions. See id. at 1141.

We reverse the order on appeal and remand with directions to the trial court to decertify the class.

      . The class definitions are identical, except as to geographic scope:
      Any and all residents of [Florida][Miami Dade County] who were overcharged for a service at Tire ¡Kingdom by Tire Kingdom's inclusion of a shop fee when such shop fee was not disclosed in the advertisement that plaintiff used or benefited from; by Tire Kingdom's imposition of a shop fee based upon a percentage of the retail price of the service, rather than the advertised or charged price; or by both.

      . For this reason, we discuss the law of FDUTPA but intend its principles to apply as well to the similar private rights of action afforded by the Florida Motor Vehicle Repair Act and the Miami Dade Vehicle Repair Ordinance. See § 559.921, Fla. Stat. (2006); § 8A-161.21, Miami Dade County Code.

      . Soper previously participated as a named plaintiff in a class action involving energy surcharges against Wyndham International, also brought by plaintiffs' counsel.

      . Although class action hearings are eviden-tiary in nature, the parties elected to submit the class determination to the trial court based solely upon affidavits, depositions, and the circuit court record.

      .This language is prescribed by section 559.905(h) of the Florida Motor Vehicle Repair Act, to be included on all estimates for which the cost of the repair work will exceed $100. The language was pre-printed at the foot of all estimate and invoice forms utilized by Tire Kingdom during the period relevant to this proposed class action. See infra pp. 10-11.

      . Soper testified as follows in his deposition:
      Q. I asked you earlier whether you had signed anything before you had the service performed, and you said you were not sure. Does this [Exhibit D, the estimate] refresh your recollection?
      A. I'm not sure. I believe it was signed afterward, but I'm not sure. When I was checking out.

      . Section 559.905(2), Florida Statutes (2006), directs that if the repair cost:
      will exceed $100, the repair shop shall present to the customer a written notice conspicuously disclosing, in a separate, blocked section, only the following statement, in capital letters of at least twelve-point type:
      PLEASE READ CAREFULLY, CHECK ONE OF THE STATEMENTS BELOW, AND SIGN:
      I UNDERSTAND THAT, UNDER STATE LAW, I AM ENTITLED TO A WRITTEN ESTIMATE IF MY FINAL BILL WILL EXCEED $100.
      _ I REQUEST A WRITTEN ESTIMATE.
      _ I DO NOT REQUEST A WRITTEN ESTIMATE AS LONG AS THE REPAIR COSTS DO NOT EXCEED $_THE SHOP MAY NOT EXCEED THIS AMOUNT WITHOUT MY WRITTEN OR ORAL APPROVAL.
      _ I DO NOT REQUEST A WRITTEN ESTIMATE.
      SIGNED_DATE_

      . Repair invoices produced by Soper reflect that most maintenance and repair work done on his vehicle was performed by Land Rover Fort Lauderdale, the dealer from which he purchased the vehicle new in 2002. These invoices indicate Soper was charged and paid a shop fee to Land Rover Fort Lauderdale on at least two occasions before patronizing Tire Kingdom on March 27, 2007. Like Tire Kingdom, Land Rover Fort Lauderdale’s invoice forms carry this statutorily prescribed language. See supra note 5.

      . Store managers have no such discretion to discount or forgive shop fees or hazardous waste fees.

      . Florida Rule of Civil Procedure 1.220 was completely revised in 1980 to bring it in line with modem practice and is based upon Federal Rule of Civil Procedure 23. See The Fla. Bar, 391 So.2d 165, 170 (Fla.1980). We follow the federal construction and application by analogy where appropriate. See Powell v. River Ranch Prop. Owners Ass'n, 522 So.2d 69, 70 (Fla. 2d DCA 1988).

      . The relevant subdivision of subsection (b) applicable to this case is subdivision (b)(3), requiring that the common questions must predominate over any questions affecting only individual members, and that the class resolution must be superior to other available methods for the fair and efficient adjudication of the controversy. Since the predominance requirement of subsection (b)(3) is obviously more stringent than that prescribed by subdivision (a)(2), a proposed class which fails to meet this element necessarily fails to meet requirements of Florida Rule of Civil Procedure 1.220(b)(3). See 7A Wright, Miller & Kane, Federal Practice & Procedure § 1763 (2005).

      . The "evidence of commonality” advanced by the en banc majority of the United States Court of Appeals for the Ninth Circuit in Wal-Mart Stores as being “sufficient to " ‘raise [a] common question [was] whether Wal-Mart's female employees nationwide were subjected to a single set of corporate policies ... that may have worked to unlawfully discriminate against them in violation of Title VII.' " Wal-Mart Stores, Inc., — U.S. -, -, 131 S.Ct. 2541, 180 L.Ed.2d 374, 2011 WL 2437013, at *6 (quoting Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 612 (9th Cir.2010)), judgment reversed by Wal-Mart, — U.S. -, -, 131 S.Ct. 2541, 180 L.Ed.2d 374, 2011 WL 2437013, at *16. Rejecting the use of such conclusory statements to satisfy the commonality requirement of Federal Rule of Civil Procedure 23(a)(2), Justice Scalia wrote, "[Commonality] does not mean merely that [the proposed class] have all suffered a violation of the same pro-vision of law.” Wal-Mart, -U.S. -, -, 131 S.Ct. 2541, 180 L.Ed.2d 374, 2011 WL 2437013, at *7. Rather, "[satisfaction of the commonality element] requires the plaintiff to demonstrate that the class members 'have suffered the same injury.' ” Id. (citing Falcon, 457 U.S. at 157, 102 S.Ct. 2364). The purported "common questions” in this case are indistinguishable in kind from the common question rejected as insufficient by the United States Supreme Court in Wal-Mart.

      . The "benefited” purchasers, described by counsel for appellees in their brief as "people who went to Tire Kingdom and ... requested a discount based upon having seen a coupon containing no reference to a shop fee, but were charged a shop fee anyway.”

      . A few days prior to entering its order certifying the classes in this case, the trial court granted partial summary judgment to the plaintiffs on the FDUPTA, Florida Motor Vehicle Repair Act, and Miami-Dade County Vehicle Repair Ordinance counts of the complaint, the same counts which the trial court then certified for class treatment, stating, inter alia, "Tire Kingdom’s advertisements, both those that omitted mention of a shop fee and those that failed to disclose the shop fee was charged on the retail price, were untrue, deceptive and misleading.” Even if summary judgment was properly granted on this basis, that fact does not pretermit our decision today reversing the class certification decision. As next explained, proof of a deceptive act or unfair practice is but one element of proof required for recovery by the plaintiffs in this case.


source: Caselaw Access Project

author: LaROSE, Judge. MORRIS, Judge,

license: Public Domain

text:
    Danny PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3230.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2011.

      James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Danny Parker appeals his convictions and sentences for possession of child pornography. See §§ 775.0847, 827.071(5), Fla. Stat. (2007). More specifically, he challenges the trial court’s denial of his motion to dismiss the information. We have jurisdiction. See Fla. R. App. P. 9.140(b)(2)(A)(i). Mr. Parker’s conduct, as we will describe, is loathsome. But it escapes the grasp of the statute on which the State proceeds. Consequently, we must reverse.

Mr. Parker taught Sunday school. Over the years, he photographed many children. They posed innocently enough, much as in the style one would expect of a school photo, a yearbook, or a family scene. The innocence turned perverse. Mr. Parker cut the children’s heads from some of his photographs and pasted them to photographs of bodies of nude or partially nude adult women. Some depicted the bodies of adult women engaged in sexual activity. None of the images are computer generated. In his motion to dismiss, Mr. Parker argued that mere possession of these photographs was not unlawful. The trial court denied the motion.

Pursuant to a negotiated plea, the State nolle prossed counts eleven through ninety of the information. Mr. Parker pleaded no contest to counts one through ten, reserving his right to appeal the denial of the dispositive motion to dismiss. The trial court sentenced Mr. Parker to sixty months in prison to be followed by ten years of sex offender probation. On appeal, we confront ten photographs that the State characterizes as child pornography. We review issues involving statutory interpretation de novo. L.A.P. v. State, 62 So.3d 693, 694 (Fla. 2d DCA 2011) (citing Mendenhall v. State, 48 So.3d 740, 747 (Fla.2010)).

Based on our decision in Stelmack v. State, 58 So.3d 874 (Fla. 2d DCA 2010), and pursuant to the parties’ stipulation, we reverse as to seven photographs (counts 1, 2, 3, 5, 6, 7, and 10). Those photographs depict lewd exhibition of an adult female’s genitals with a child’s head superimposed on an adult female body. Those photographs require no further discussion. After thoughtful consideration of the parties’ briefs, listening to counsels’ compelling presentations at oral argument, and conducting our own research, we can discern no basis on which to affirm the convictions and sentences based on three photographs that depict sexual activity (counts 4, 8, and 9). Stelmack compels reversal.

Stelmack involved photographs depicting heads of children attached to the bodies of nude adult women. None depicted sexual activity. To prove the crime of possession of child pornography, a person must ‘“knowingly possess a photograph, ... representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child.’ ” 58 So.3d at 875 (emphasis omitted) (quoting § 827.071(5)). As defined in section 827.071(l)(g), “sexual conduct” includes

“actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadoma[so]chistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.”

Stelmack, 58 So.3d at 876 (emphasis omitted) (quoting § 827.071(l)(g)); accord § 775.0847(l)(f).

We determined in Stelmack that the only applicable conduct depicted was lewd exhibition of the genitals. 58 So.3d at 876. But, we held that a conviction required exhibition by a child. Id. at 877. Because the Stelmack photographs contained only images of adult genitalia, there was no “sexual conduct by a child” and, consequently, no violation of section 827.071(5). Stelmack, 58 So.3d at 876.

To be sure, the three remaining photographs before us are markedly different from those in Stelmack. Each depicts a child’s head superimposed on a body of an adult female engaged in sexual intercourse, deviate sexual intercourse, or masturbation. The conduct falls within the scope of section 827.071(l)(g). But, whether the conduct is “actual” or, as the dissent suggests, “simulated,” the conduct is that of an adult. The crudely constructed depictions, fortunately, leave no doubt that no child engaged in the sexual conduct. Accordingly, we cannot conclude that Mr. Parker possessed child pornography. The legislature’s words constrain us.

It bears repeating that a person is guilty of possessing child pornography if he “knowingly possess[es] a photograph, ... representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child.” § 827.071(5) (emphasis added). No matter how one parses the words, section 827.071 requires that the depicted sexual conduct be that of a child. The three photographs fail that test. The content of the three photographs offers us no meaningful basis on which to distinguish Stelmack. Without the sexual conduct of a child, the three photographs elude the statute’s reach.

We are not persuaded by the dissent’s effort to distinguish Stelmack: section 827.071(l)(g) extends to “actual” or “simulated” “sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadoma[so]ehistic abuse,” which include the conduct involved here, but excludes the word “simulated” for “lewd exhibition of the genitals,” an element of the offense of which Mr. Stelmack was convicted. We noted that distinction in Stelmack, but, in light of the record then before us, saw no need to discuss the constitutionality of a provision outlawing “simulated” sexual conduct. Id. at 876 n. 2, 877. The dissent concludes that “ ‘simulated’ sexual conduct by a child” includes composites made by attaching children’s heads to adult female bodies engaged in sexual activity. Respectfully, we must disagree.

“Simulated” is “the explicit depiction of conduct ... which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.” § 827.071(l)(i). The construction of “simulated” sexual conduct is explained in United States v. Williams, 553 U.S. 285, 297, 128 S.Ct. 1880, 170 L.Ed.2d 650 (2008), where the Supreme Court construed the word “simulated” as applied to a “visual depiction” of a minor engaging in “sexually explicit conduct” under 18 U.S.C. § 2252A(a)(3)(B)(ii). According to the Court, “a reasonable viewer [must] believe that the actors actually engaged in that conduct on camera” and “although the sexual intercourse may be simulated, it must involve actual children.” Williams, 553 U.S. at 297, 128 S.Ct. 1830. Williams’ analysis leads us to the same conclusion regarding Mr. Parker’s depictions; no child engaged in simulated conduct and no reasonable viewer could believe so.

To the extent that legislative history is a guide, we note that in enacting section 827.071, the legislature apparently was concerned with the exploitation of children. The 1983 legislative staff summary explains that this legislation “is directed at two types of people — those who use children in sexual performances and those who, being the parent or guardian of the child, ‘consent’ to the child’s participation in such activities.” Stelmack, 58 So.3d at 876-77 (quoting Fla. H.R. Comm, on Crim. Just., H.R. 148 (1983) Staff Analysis 2 (Apr. 14, 1983) (on file with comm.)). The titles given to the statute are also instructive. Chapter 827 is titled “Abuse of Children” and section 827.071 is titled, “Sexual performance by a child; penalties.” We observed in Stelmack that the legislative history “reveals that it was aimed at preventing the exploitation of children in sexual performances.” Stel-mack, 58 So.3d at 876.

This legislative history is not inconsistent with our polestar, the statutory language. No child performed a sexual act, actual or simulated. And, despite the dissent’s conclusion that the packaging of the photographs appears to indicate an intention to display them, we must emphasize that the State did not charge Mr. Parker with distribution of or intent to distribute obscene photographs. See § 847.011(l)(a), Fla. Stat. (2007). Neither was he charged with violating section 827.071(4), which prohibits “possess[ion] with the intent to promote any photograph ... which, in whole or in part, includes any sexual conduct by a child.” Even if the State had charged Mr. Parker under section 827.071(4), conviction still would have required sexual conduct by a child. Possession of the photographs is the only crime charged. Although not binding on us, we recognize that the New Hampshire Supreme Court in State v. Zidel, 156 N.H. 684, 940 A.2d 255 (2008), reached a similar result under a statute remarkably similar to section 827.071.

The dissent discusses federal cases involving First Amendment challenges to a broader federal child pornography statute, 18 U.S.C. § 2256(8)(C). The constitutionality of federal statutes is of little aid in interpreting the scope of section 827.071(5). Nevertheless, a brief overview of some of the federal authority demonstrates how the federal government has addressed the reach of child pornography statutes. The federal statute defines “child pornography” as “any visual depiction ... of sexually explicit conduct, where ... [the] depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(C); see United, States v. Bach, 400 F.3d 622 (8th Cir.2005); United States v. Hotaling, 599 F.Supp.2d 306 (N.D.N.Y.2008). Before 1996, Congress defined child pornography as images created using actual children. 599 F.Supp.2d at 309 (citing 18 U.S.C. § 2252 (1994 ed.)). The Child Pornography Prevention Action (CPPA) of 1996 added three other categories of prohibited conduct. Id. One of those was 18 U.S.C. § 2256(8)(C), which defined child pornography as “created, adapted, or modified to appear that an identifiable minor [was] engaging in sexually explicit conduct.”

Bach reviewed a conviction under the CPPA for a 2001 charge of receiving child pornography as defined by § 2256(8)(C). Bach, 400 F.3d 622. There, the face of a well-known child actor was “skillfully inserted onto the body of [a] nude boy so that the resulting depiction appeared] to be a picture of [the child actor] engaging in sexually explicit conduct.” Id. at 632. In affirming the conviction, the Eighth Circuit reasoned that Bach was “not the typical morphing case in which an innocent picture of a child has been altered to appear that the child is engaging in sexually explicit conduct, for the lasciviously posed body is that of a child.” Id. There was no question but that the depicted sexual conduct was that of a child. We assume that such a photograph certainly would fall within the scope of section 827.071(5).

In 2002, the Supreme Court struck down a different provision of the 1996 CPPA, 18. U.S.C. § 2256(8)(B), defining child pornography as any “visual depiction” that “is, or appears to be, of a minor engaging in sexually explicit conduct.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). The Court held that it was constitutionally overbroad because it allowed prosecution for images produced without using actual children, including “realistic images of children who do not exist” created with advanced computer techniques. Id. at 240, 122 S.Ct. 1389; see Hotaling, 599 F.Supp.2d at 310. Ashcroft did not challenge § 2256(8)(C). In response to Ashcroft, Congress crafted new legislation. Hotaling, 599 F.Supp.2d at 311.

The resulting PROTECT Act of 2003 defines child pornography to include not only images of actual children engaged in sexually explicit conduct (18 U.S.C. § 2256(8)(A)), but also images created by computer that are “indistinguishable” from images of actual minors engaging in sexually explicit conduct (§ 2256(8)(B)) and images created or modified to appear as though an identifiable minor is engaged in sexually explicit conduct (§ 2256(8)(C)). Hotaling, 599 F.Supp.2d at 311. Congress specifically removed the defense that no actual minor was involved in the production of the depiction. 18 U.S.C. § 2256(8)(C); Hotaling, 599 F.Supp.2d at 316, 317. Apparently, Congress may have been motivated to prohibit morphed images that do not use a sexually explicit image of any child. S.Rep. No. 108-2, 2003 WL 33068, at *51 n. 2 (2003); see Hotaling, 599 F.Supp.2d at 312, 316-17.

Hotaling construed this latest evolution of the federal child pornography statutes in denying a motion to dismiss a charge of possession of child pornography. 599 F.Supp.2d 306; see 18 U.S.C. § 2252A(a)(5)(B). The defendant was charged with possessing images in which heads of six identifiable minor females had been cut from original nonpornographic images and pasted onto the bodies of unidentified nude females engaged in sexually explicit conduct. Hotaling, 599 F.Supp.2d at 307-08. Under the PROTECT Act, child pornography is defined, as in Bach under the CPPA, by § 2256(8)(C), “visual depiction[s] ... created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” However, the new language of the Act eliminated any question of whether it criminalized images that did not depict actual children engaged in sexual conduct. The court ruled:

The statute defines child pornography as morphed images of “identifiable minors” engaged in sexually explicit activity. This requirement, together with an express exclusion of a defense for those who create such images without using actual children, leave no doubt the provision intends to criminalize the mere possession of pornographic images of children even when the images are morphed and no children actually engaged in the sexually explicit conduct depicted therein.

Hotaling, 599 F.Supp.2d at 322.

As this overview demonstrates, Congress enacted child pornography legislation three times, in 1994, 1996, and 2003; each time it broadened the definition of child pornography. Section 827.071(5) requires that actual children engage in sexual conduct. As the federal experience reflects, if our legislature wants to follow Congress’s example and prohibit the possession of the types of photographs involved here, we are confident that it can, and perhaps should, craft an appropriate statute.

Although the parties urge us to consider the First Amendment ramifications of section 827.071, we confine our analysis to the statutory language. Because our construction of it concludes that it does not apply to Mr. Parker’s conduct, we have no occasion to decide whether its application to him is unconstitutional. Such an analysis is unnecessary for our decision. See McKibben v. Mallory, 293 So.2d 48, 51 (Fla.1974) (“It is a fundamental principle that courts will not pass upon the constitutionality of a statute where the case before them may be disposed of upon any other ground.”).

Reversed.

LENDERMAN, JOHN C., Associate Senior Judge, Concurs.

MORRIS, J., Dissents with opinion.

MORRIS, Judge,

Concurring in part and dissenting in part.

Based on our decision in Stelmack, and pursuant to the parties’ stipulation, I concur with the majority’s decision to reverse the trial , court’s denial of Parker’s motion to dismiss the information as to counts 1, 2, 3, 5, 6, 7, and 10 which feature pictures depicting lewd exhibition of genitalia without sexual activity. However, I do respectfully disagree with my learned colleagues as to that part of the majority opinion that reverses the judgments and sentences as to counts 4, 8, and 9 which depict photographs featuring sexual activity. With regard to these last three pictures, the majority feels bound by our opinion in Stelmack and also appears to feel constrained by the unartful legislative drafting of section 827.071(5) of the Florida Statutes (2007). I disagree, and I would affirm the trial court’s order as it relates to these three photographs because they depict sexual activity.

Our decision in Stelmack dealt with photographs featuring the heads of children attached to the bodies of nude adult women. Unlike the three photographs here, none of the photographs in Stelmack depicted sexual activity. As the majority opinion points out, in Stelmack, we opined that to prove the crime of possession of child pornography, a person must “ ‘knowingly possess a photograph, ... representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child.’ ” 58 So.3d at 875 (emphasis omitted) (quoting § 827.071(5)). We then further noted that the definition of “sexual conduct” set forth in section 827.071(l)(g) included

“actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadoma[so]chistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.”

Stelmack, 58 So.3d at 876 (quoting § 827.071(l)(g)). In Stelmack, we read section 827.071(l)(g) and 827.071(5) together, and we determined that a conviction based on lewd exhibition required actual lewd exhibition by a child. Thus, because the photographs in Stelmack contained images of adult genitalia, there was no violation of section 827.071(5). Stelmack, 58 So.3d at 877. We explained that at most, the photographs depicted simulated lewd exhibition by a child. We pointed out that while the words “actual or simulated” were used to describe sexual intercourse and other sexual acts, the legislature did not use the word “simulated” to describe lewd exhibition of the genitals. Id. As a result, we concluded that the legislature intended to exclude simulated lewd exhibition of the genitals from the crime of possession of child pornography. Id.

The crux of this case rests on a crucial distinction from Stelmack. The three photographs at issue here contained children’s heads superimposed on the bodies of adult females engaged in sexual activity consisting of sexual intercourse, deviate sexual intercourse, and masturbation. And section 827.071(l)(g) specifically prohibits “simulated sexual intercourse, deviate sexual intercourse, [or] masturbation.” “Simulated” as defined in section 827.071(l)(i) “means the explicit depiction of conduct set forth in paragraph (g) which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.” The photographs here clearly contain an explicit depiction of the conduct set forth in paragraph (g). Because the statutory language is clear and unambiguous, I believe that we should give full effect to the plain meaning and hold that the three photographs in this case qualify as child pornography based on the definition of sexual conduct in section 827.071(l)(g).

Further, I believe that the holding in United States v. Bach, 400 F.3d 622 (8th Cir.2005), is relevant and instructive here. In Bach, the government sought to prosecute Bach under the authority of 18 U.S.C. § 2256(8)(C), which prohibits composite images of child pornography as well as pictures which are “modified to appear that an identifiable minor is engaging in sexually explicit conduct.” 400 F.3d at 629. The photograph at issue in Bach was a composite of a well-known child entertainer’s face attached to another child’s nude body. 400 F.3d at 625. The body portion of the photograph revealed that the child was sexually aroused. Id. In holding that the photograph came within the proscription of the federal statute, the court in Bach reasoned that

[although there is no contention that the nude body actually is that of [the well-known child entertainer] or that he was involved in the production of the image, a lasting record has been created of [him], an identifiable minor child, seemingly engaged in sexually explicit activity. He is thus victimized every time the picture is displayed.

Id. at 632.

While I acknowledge that the federal statute is more carefully drafted and broader in nature than section 827.071(l)(g) and (5), I also believe that the photographs in counts 4, 8, and 9 fall squarely within the proscription set forth in section 827.071(l)(g) and (5), and because the photographs contain images of identifiable minor children, the same concerns that arose in Bach are present here. These photographs created a lasting record, and these real and identifiable children were victimized every time the photographs were viewed.

I likewise strongly disagree with my colleagues that prohibiting photographs such as the ones at issue here does not comport with legislative intent. In support of our decision in Stelmack, we described the legislative intent as being to “ ‘facilitate the prosecution of persons who use or promote any sexual performance by a child.’ ” Stelmack, 58 So.3d at 877 (emphasis omitted) (quoting Fla. H.R. Comm, on Crim. Just., HB 148 (1983) Staff Analysis 2 (Apr. 14, 1983) (on file with comm.)). The legislature further indicated it was focused on child abusers versus pornography and thus the legislation was directed at people who use or promote the use of children in sexual performances as well as those who consent to the child’s participation. Id. (citing id.).

I acknowledge that the three photographs at issue here did not involve actual sexual performance by a child. However, it is clear that the purpose of the photographs is to promote sexual performance by a child. The photographs were packaged in photograph sleeves, much like a photograph album. The construction and manipulation of the photographs clearly appeased Parker’s own need for sexual gratification, but I also believe that the packaging of the photographs in this manner appears to indicate an intention to display the photographs. Certainly this type of promotion of sexual performance by a child was intended to be prohibited by the legislature.

Although the majority decided this case without the necessity of addressing the constitutionality of 827.071, because I do not fully join in their opinion, I feel compelled to address this issue. In his brief, Parker argued that the holding in State v. Zidel, 156 N.H. 684, 940 A.2d 255 (2008), supported his contention that section 827.071(5) is unconstitutional as applied to him. However, in United States v. Hotaling, 599 F.Supp.2d 306 (N.D.N.Y.2008), which was a case involving facts virtually identical to the case here under review, the court expressly rejected both the holding and rationale of Zidel.

In Zidel, the court held that where photographs of nude bodies do not actually depict body parts of children engaging in sexual activity, the image is not a product of sexual abuse and therefore the mere possession of such photographs does not constitute demonstrable harm to the child whose face is depicted. 940 A.2d at 263 (citing Ashcroft v. Free Speech Coalition, 535 U.S. 234, 249, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002)). The Zidel court also cited Osborne v. Ohio, 495 U.S. 103, 111, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), for the proposition that “[t]he mere possession of morphed images depicting no victims of child pornography cannot ‘haunt [] the children in years to come’ since the children do not know of their existence and did not participate in their production.” Zidel, 940 A.2d at 263 (quoting Osborne, 495 U.S. at 111, 110 S.Ct. 1691).

In rejecting the Zidel court’s analysis, the district court in Hotaling explained:

Zidel overlooked Bach’s recognition that [the well-known child entertainer] was harmed even though he had not actually engaged in the conduct depicted in the morphed photo.... The court in Zidel failed to recognize that Bach focused at least partly on the harm to [the well-known child entertainer], the child who had not engaged in sexually explicit activity, in rejecting the defendant’s argument. Based on its failure to analyze properly the nuances of Bach and the particular facts before it in light of current federal law, Zidel reached the improvident conclusion that lack of actual sexual conduct on the part of the identifiable minor in a morphed image — if such image is merely possessed and not distributed by a defendant — renders it protected speech under the First Amendment. See Zidel, 940 A.2d at 264-65.
The Court notes that the holding of Zidel is at odds with every other federal and state court which has confronted, even indirectly, the constitutional question raised by the dicta in Ashcroft concerning statutes which impose criminal penalties for possession of morphed images of child pornography....

Hotaling, 599 F.Supp.2d at 319 (emphasis omitted). The district court then went on to hold that

the creation and possession of pornographic images of living, breathing and identifiable children via computer morphing is not “protected expressive activity” under the Constitution [because such] images “implicate the interests of real children” and are “closer” to the types of images placed outside the protection of the First Amendment in Ferber. Ashcroft, 535 U.S. at 242, 254,122 S.Ct. 1389.

Hotaling, 599 F.Supp.2d at 321 (citation omitted).

While Hotaling was also based on 18 U.S.C. § 2256(8)(C), the analysis contained therein is helpful for an analysis of section 827.071(l)(g) and (5). I interpret the phrase “simulated sexual intercourse” as set forth in the definition of sexual conduct in section 827.071(l)(g) to include morphed images (computer generated or otherwise) such as the ones at issue in this case. Thus because the Florida statute prohibits some types of morphed images — at least those involving certain kinds of simulated sexual activity — Hotaling is instructive on whether such images are protected by the First Amendment. I reject Parker’s argument that Zidel should control the outcome of his case. Instead, I would align with Hotaling to the extent that it holds that where photographs depicting identifiable children are morphed with adult bodies engaged in sexual activity, such photographs are not protected by the First Amendment.

Accordingly, I would affirm in part, reverse in part, and remand.

      . At its core, child pornography is "any image depicting a minor engaged in sexual conduct.” § 775.0847(l)(b).

      . In ruling on the motion to dismiss, the trial court did not have the benefit of Stelmack; it issued subsequent to the trial court’s order.

      . 18 U.S.C. § 2252A provides:
      Any person who ... knowingly ... advertises, promotes, presents, distributes, or solicits through the mails, or using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains ... (ii) a visual depiction of an actual minor engaging in sexually explicit conduct ... shall be punished as provided in subsection (b).
      18 U.S.C. § 2252A(a)(3)(B)(ii).
      18 U.S.C. § 2256(2)(A) defines "sexually explicit conduct" as follows:
      "[Sjexually explicit conduct” means actual or simulated ... (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genital or pubic area of any person.
      18 U.S.C. § 2256(2)(A)(i)-(v).

      . The intent of this legislation is to facilitate the prosecution of persons who use or promote any sexual performance by a child, which is not necessarily obscene. A distinction is drawn between child abuse and pornography, with the focus on the child abuser. This legislation is directed at two types of people — those who use children in sexual per

        formances and those who, being the parent or guardian of the child, “consent” to the child’s participation in such activities.

      Fla. H.R. Comm, on Crim. Just., HB 148 (1983) Staff Analysis 2 (Apr. 14, 1983) (on file with comm.) (emphasis added).

      . Chapter 847 covers obscene materials. See, e.g., § 847.011, Fla. Stat. (2007) (prohibiting (1)distribution or possession with intent to distribute obscene material including photographs and (2) possession of obscene materials without intent to distribute).

      . Section 827.071 proscribes four levels of the offense of sexual performance by a child:
      (2) use of a child in a sexual performance, a second-degree felony;
      (3) promoting a sexual performance by a child, a second-degree felony;
      (4) possession with intent to promote “any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes any sexual conduct by a child,” where possession of three or more copies is prima facie evidence of such intent, a second-degree felony; and
      (5) possession of an item described in (4), a third-degree felony.

      . Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act. Hotaling, 599 F.Supp.2d at 307.

      . At least one district court of appeal has held section 827.071(5) constitutional on its face. See State v. Beckman, 547 So.2d 210 (Fla. 5th DCA 1989).

      . See Polite v. State, 973 So.2d 1107, 1111 (Fla.2007) (noting that in determining legislative intent, courts must first look at statute’s plain meaning).

      . New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).

      . See State v. Beckman, 547 So.2d 210 (Fla. 5th DCA 1989).


author: KHOUZAM, Judge.

text:
    Osanna S. CARMONA and Nelson L. Carmona, Appellants, v. WAL-MART STORES, EAST, LP, Appellee.
    No. 2D11-2695.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 2011.
    Rehearing Denied March 5, 2012.

      Osanna S. Carmona and Nelson L. Car-mona, pro se.
    Traci T. McKee of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Ap-pellee.
   KHOUZAM, Judge.

Osanna S. and Nelson L. Carmona, proceeding pro se, appeal the denial of their motion for relief from judgment after summary judgment was granted in Wal-Mart’s favor. They argue that they were denied procedural due process at the summary judgment hearing because they did not receive a meaningful opportunity to be heard. Because the Carmonas were given both proper notice and a full and fair chance to argue their case, their rights to procedural due process were not violated and we affirm.

On April 29, 2009, Mrs. Carmona was shopping at a Wal-Mart store in Cape Coral. A Wal-Mart loss prevention officer watched Mrs. Carmona place merchandise in the back compartment of her shopping cart and then place her purse over it. At the self-pay checkout register, Mrs. Car-mona paid for the items located in the large front compartment but did not scan or pay for the items beneath her purse.

After Mrs. Carmona passed the last point of sale in the store, the loss prevention officer approached her, identified himself, and asked to search her belongings. The search revealed the unpaid merchandise, which Mrs. Carmona explained had been mistakenly overlooked in the checkout process. The loss prevention officer contacted the police, who arrested Mrs. Carmona for theft. Mrs. Carmona was charged by information with petit theft, but the Assistant State Attorney later entered a nolle prosequi in the case because the arresting officer was unavailable to testify on the date scheduled for trial.

After the criminal case was dismissed, the Carmonas, acting pro se, filed a civil action against Wal-Mart, ultimately alleging five causes of action. Mrs. Carmona’s claims included malicious prosecution, slander, intentional infliction of emotional distress, and negligent hiring and retention. Mr. Carmona’s claim was essentially for loss of consortium. Wal-Mart moved for summary judgment on all five claims on October 13, 2010, and on the following day served the Carmonas with a notice of hearing scheduled for January 10, 2011. The Carmonas did not object to the scheduling or amount of time allotted for the hearing.

At the hearing on the motion for summary judgment, each side received an opportunity to present its case. Wal-Mart began and focused on the dispositive issue of probable cause. Specifically, Wal-Mart relied on an affidavit Mrs. Carmona had prepared for the criminal case against her, in which she admitted to leaving the checkout area with unpaid merchandise. Wal-Mart also argued that because the Carmo-nas had not filed any affidavits or other evidence in support of their claims, it was entitled to summary judgment.

After Wal-Mart had addressed each claim, Mr. Carmona spoke on behalf of both plaintiffs. He conceded that Mrs. Carmona had left with unpaid merchandise and therefore that Wal-Mart had probable cause to detain her. But he asserted that the loss prevention officer had included some of the paid items on the list of unpaid ones. According to Mr. Carmona, this misclassification should preclude granting summary judgment on Wal-Mart’s behalf. Once Mr. Carmona had described the plaintiffs’ position, the judge interrupted him to explain the evidentiary implications of a summary judgment proceeding and his view that the issue of probable cause was dispositive.

The judge then allowed each side to respond once more. After each party adhered to its original arguments, the judge granted summary judgment in favor of Wal-Mart because the dispositive issue of probable cause had been conceded and no evidence was filed in opposition to Wal-Mart’s affidavits. The hearing lasted approximately thirty minutes, and the Car-monas did not request more time to prepare or explain their case. The Carmonas later filed a Motion for Relief from Judgment under Florida Rule of Civil Procedure 1.540(b), arguing that the court violated their procedural due process rights at the summary judgment hearing by denying them a meaningful opportunity to be heard. The motion was denied, and the Carmonas timely brought this appeal.

The trial court did not err in denying the Carmonas’ motion for relief from judgment because their rights to procedural due process were not violated. “Procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue.” Dep’t of Law Enforcement v. Real Prop., 588 So.2d 957, 960 (Fla.1991). Procedural due process requires that each litigant be given proper notice and a full and fair opportunity to be heard. See, e.g., Vollmer v. Key Dev. Props., Inc., 966 So.2d 1022, 1027 (Fla. 2d DCA 2007); Cnty. of Pasco v. Riehl, 635 So.2d 17, 18-19 (Fla.1994). The same protection is provided by both the Florida and United States Constitutions. N.C. v. Anderson, 882 So.2d 990, 993 (Fla.2004).

Although all litigants have a right to procedural due process, there is no uniform test to determine its application:

The extent of procedural due process protection varies with the character of the interest and nature of the proceeding involved. There is, therefore, no single unchanging test which may be applied to determine whether the requirements of procedural due process have been met. Courts instead consider the facts of the particular case to determine whether the parties have been accorded that which the state and federal constitutions demand.

Carillon Cmty. Residential v. Seminole Cnty., 45 So.3d 7, 9 (Fla. 5th DCA 2010) (citing Hadley v. Dep’t of Admin., 411 So.2d 184, 187 (Fla.1982)). To be sufficient, the notice must be “ ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must ... convey the required information, and it must afford a reasonable time for those interested to make their appearance.’ ” N.C., 882 So.2d at 993 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). The proceeding itself must only be “essentially fair.” Carillon Cmty. Residential, 45 So.3d at 9 (citing Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997)). The standard of review for an order denying a motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b) is whether there has been an abuse of discretion. Leach v. Salehpour, 19 So.3d 342, 344 (Fla. 2d DCA 2009).

Here, the Carmonas were afforded both proper notice and a meaningful opportunity to be heard. It is undisputed that the Carmonas were served with notice of the summary judgment hearing approximately three months before the hearing took place. During the period of time between the date they received notice and the date of the hearing, the Carmonas raised no objections to either the scheduled date or duration of the hearing. As such, the notice provided to the Carmonas was constitutionally sufficient.

The Carmonas focus on the second prong of the procedural due process analysis, arguing that because Mr. Carmona was interrupted during the hearing, they were not given a meaningful opportunity to be heard. This argument fails, however, because the hearing was conducted in a fair manner appropriate to the nature of the proceeding. Each party spoke for a comparable amount of time during the thirty-minute hearing. Each party was allowed more than one opportunity to argue its position, and both did so. The judge asked Mr. Carmona questions to help guide his argument and even explained the procedural and legal aspects of the case to him. Further, the Carmonas never asked for more time to speak; instead, Mr. Carmona asked the judge how to appeal his decision.

On these facts, the trial court did not abuse its discretion in denying the Carmo-nas’ motion for relief from judgment. The Carmonas were provided three months’ notice of the hearing and did not object. The trial judge gave the Carmonas more than one opportunity to present their argument and even attempted to guide Mr. Carmona to the relevant issues. And summary judgment was granted only after the Carmonas conceded the issue of probable cause. Under these circumstances, we cannot say the Carmonas were denied due process.

Affirmed.

CASANUEVA and KELLY, JJ., Concur.