author: ROTHENBERG, J.

text:
    MIAMI AUTOMOTIVE RETAIL, INC., Appellant, v. Christine F. BALDWIN, Appellee.
    No. 3D10-2136.
    District Court of Appeal of Florida, Third District.
    June 27, 2012.

      Waldman Trigoboff Hildebrandt Marx & Calnan, P.A., and Glenn J. Waldman and Craig J. Trigoboff, Weston, for appellant.
    Philip D. Parrish, P.A., and Philip D. Parrish, Miami, for appellee.
    Before CORTIÑAS, ROTHENBERG, and SALTER, JJ.
   On Motion for Rehearing

ROTHENBERG, J.

We deny the appellee’s motion for rehearing, but withdraw this Court’s opinion, dated June 15, 2011, and issue the instant opinion in its stead to clarify this Court’s findings.

This is an appeal from a non-final order certifying a class of automobile buyers who traded in a vehicle when they purchased a vehicle at Miami Automotive Retail (“MAR” or “Brickell Honda”), and MAR incorrectly estimated the amount owed on the trade-in vehicle. Because individual questions of law and fact predominate, and class representation is not superior to other available methods for the fair and efficient adjudication of the case, we conclude the trial court abused its discretion in certifying a class.

FACTS

In December 2004, Christine Baldwin (“Ms.Baldwin”) purchased a Honda CR-V from MAR, which sells automobiles at a dealership in Miami, Florida, under the tradename of Brickell Honda. At the time of the purchase, Ms. Baldwin was driving a leased Honda Civic. Pursuant to their agreement, Brickell Honda agreed to pay off the remaining amount Ms. Baldwin owed for the leased Honda Civic, and to treat the leased Honda Civic as a “trade-in.” As the exact amount Ms. Baldwin owed on her trade-in vehicle was not available at the time the parties negotiated the transaction and Ms. Baldwin signed the purchase documents, the parties calculated the amount still owing and the estimated trade-in value of the Honda CR-V, and Brickell Honda listed this estimated trade-in value on the purchase documents. Ms. Baldwin contends she was told that if the estimated payoff amount was less than what they had estimated, Brickell Honda would refund her the difference. As it turned out, the actual payoff amount was less than the estimated amount, but Bric-kell Honda did not notify Ms. Baldwin or give her a refund for the difference.

Ms. Baldwin sued, and, as relevant here, she contends Brickell Honda violated the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) by failing to give her a refund for the difference between the estimated payoff amount on her trade-in and the actual amount Brickell Honda paid. On September 30, 2009, Ms. Baldwin filed a motion seeking class certification under sections 501.201, 501.976(9), and 501.976(11), Florida Statutes (2008), and to serve as the class representative.

Section 501.201 et seq., is the more generalized section regarding unfair or deceptive acts or practices, whereas section 501.976 specifically addresses unfair or deceptive acts or practices involving vehicles. Section 501.976, titled “Actionable, unfair, or deceptive acts or practices,” provides in relevant part as follows:

It is an unfair or deceptive act or practice, actionable under the Florida Deceptive and Unfair Trade Practices Act, for a dealer to:
(9) Obtain signatures from a customer on contracts that are not fully completed at the time the customer signs or which do not reflect accurately the negotiations and agreement between the customer and the dealer.
(11) Add to the cash price of a vehicle as defined in s. 520.02(2) any fee or charge other than those provided in that section and in rule 69V-50.001, Florida Administrative Code. All fees or charges permitted to be added to the cash price by rule 69V-50.001, Florida Administrative Code, must be fully disclosed to customers in all binding contracts concerning the vehicle’s selling price.

After an evidentiary hearing, the trial court denied certification under sections 501.201 and 501.976(9), but granted certification under section 501.976(11) as follows:

All individuals and entities that purchased an automobile from Brickell Honda where: 1) an automobile encumbered by a lien was “traded-in” in the transaction; 2) the dealer overestimated the lien payoff on the trade-in; B) after paying off the lien, the dealer did not refund the resulting overcharge to the customer; and 4) no other complementary goods or services were provided in exchange for not refunding the overcharge.

In the order certifying the class, the trial court appointed Ms. Baldwin as class representative, disqualified Ms. Baldwin’s husband from serving as class counsel, and appointed counsel to represent the class. Brickell Honda appeals the order certifying the class under section 501.976(11); Ms. Baldwin has not appealed the denial of class certification under sections 501.201 and 501.976(9).

LEGAL ANALYSIS

A trial court’s order certifying a class is a non-final appealable order that is reviewed for an abuse of discretion. Fla. R. App. P. 9.130(a)(3)(C)(vi); Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 102-OS (Fla.2011); Ernie Haire Ford, Inc. v. Gilley, 903 So.2d 956, 958 (Fla. 2d DCA 2005); Adiel v. Elec. Fin. Sys., Inc., 513 So.2d 1347, 1347 (Fla. 3d DCA 1987). In certifying a class, the trial court is required to conduct a “rigorous analysis” regarding whether the case is one that meets the criteria set by Florida Rule of Civil Procedure 1.220. Baptist Hosp. of Miami Inc. v. Demario, 661 So.2d 319, 321 (Fla. 3d DCA 1995). “To obtain class certification, the proponent of class certification carries the burden of pleading and proving the elements required under rule 1.220.” Sosa, 73 So.3d at 106; see also InPhyNet Contracting Servs., Inc. v. Soria, 33 So.3d 766, 771 (Fla. 4th DCA 2010). “The discretion of a trial court is to be applied within the structure of rule 1.220.” Sosa, 73 So.3d at 103. The burden is only met if there is a “sound basis in fact, not supposition,” because the “granting of class certification considerably expands the dimensions of the lawsuit, and commits the court and the parties to much additional labor over and above that entailed in an ordinary private lawsuit.” Demario, 661 So.2d at 321.

To meet her burden, Ms. Baldwin was required to present evidence sufficient to meet each of the factors required under rule 1.220(a), and one of the three categories of factors listed in rule 1.220(b). As a prerequisite to class certification, the court must first conclude that:

(1) the members of the class are so numerous that separate joinder of each member is impracticable, (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, (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class.

Fla. R. Civ. P. 1.220(a) (emphasis added). These requirements are summarized as numerosity, commonality, typicality, and adequacy, respectively.

In addition to numerosity, commonality, typicality, and adequacy, a class must meet one of the three categories listed in subsection (b) of rule 1.220. The class category Ms. Baldwin relies on requires that “the questions of law or fact common to the claim ... of the representative party and the claim ... of each member of the class predominate over any question of law or fact affecting only individual members of the class.” Fla. R. Civ. P. 1.220(b)(3) (emphasis added). In addition, “class representation must be superior to other available methods for the fair and efficient adjudication of the controversy.” Id. (emphasis added). These factors are summarized as predominance and superiority. Because Ms. Baldwin failed to meet the requirements of rule 1.220(a) and rule 1.220(b), the trial court abused its discretion in certifying the class.

Numerosity

Ms. Baldwin has established nu-merosity. The numerosity requirement is met if “joinder is impracticable.” Fla. R. Civ. P. 1.220(a). Ms. Baldwin established numerosity by introducing a sixty-two-page Brickell Honda spreadsheet listing the instances when: (1) its estimate was accurate; (2) the lien payoff was overestimated; and (3) the lien payoff was underestimated. The spreadsheet shows 858 instances where Brickell Honda overestimated lien payoffs, resulting in an alleged windfall to Brickell Honda, which is sufficiently numerous to meet Ms. Baldwin’s burden. See Olen Props. Corp. v. Moss, 981 So.2d 515, 519 (Fla. 4th DCA 2008); Broin v. Philip Moms Cos., 641 So.2d 888, 889 (Fla. 3d DCA 1994).

Commonality

Ms. Baldwin also has established the commonality requirement. The primary concern regarding this element is whether the representative’s 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. Sosa, 73 So.3d at 107; Powell. v. River Ranch Prop. Owners Ass’n, 522 So.2d 69, 70 (Fla. 2d DCA 1988); see also Olen Props., 981 So.2d at 520; Terry L. Braun, P.A. v. Campbell, 827 So.2d 261, 267 (Fla. 5th DCA 2002). In Broin, this Court recognized that “[t]he threshold of ‘commonality’ is not high.” Broin, 641 So.2d at 890 (quoting Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 473 (5th Cir. 1986)). Here, the object of the litigation is the overestimation of the lien payoff, and the relief sought is compensation for the difference between the overestimation of the amount the customer owed on the vehicle he/she relinquished to Brickell Honda as a “trade-in,” and the amount Brickell Honda actually paid for the vehicle. Thus, Ms. Baldwin has established commonality. See Smith v. Glen Cove Apartments Condos. Master Ass’n, 847 So.2d 1107, 1110 (Fla. 4th DCA 2003) (affirming class certification where the issue of whether defendant violated its statutory duty or was negligent in its failure to maintain the roofs, causing damage to members of the class, presented common questions of law and fact); Colonial Penn Ins. Co. v. Magnetic Imaging Sys. I, Ltd., 694 So.2d 852, 853-54 (Fla. 3d DCA 1997) (finding that the commonality element was met where the question of the statutory interest due on late PIP benefit payments was common to all class members and they shared a similar interest in the relief sought, interest due on late payments).

Typicality

Brickell Honda argues that Ms. Baldwin cannot satisfy the typicality element because, when making her purchase at Brickell Honda, the car she traded in was a lease. Brickell Honda claims that because Ms. Baldwin did not own her vehicle, her claim will differ from the class members who owned their trade-ins, and as a lessee she would never be entitled to a refund and therefore was not damaged. We disagree.

When computing the value of a trade-in vehicle, Brickell Honda must compute how much the customer still owes on the trade-in vehicle and how much Brickell Honda must pay to obtain clear title to the vehicle. If the customer owns the vehicle outright, value is easy to calculate and a definite amount is established at the time it is “traded in” to purchase the new car. If the customer has financed the trade-in vehicle and still owes money to the finance company, the amount owed, and which must be assumed by Brickell Honda, is subtracted from the value of the trade-in to get the amount credited to the customer towards the purchase of the new vehicle. A similar calculation must be made on a leased vehicle, which includes an option to purchase the vehicle at a predetermined price at the end of the lease. Brickell Honda must compute how much the lessee still owes on the lease, plus how much the lessee must pay at the end of the lease to purchase the vehicle. The total of these two numbers determines the amount which must be paid to obtain clear title to the automobile. Thus, in determining the ultimate purchase price of the new Honda, Brickell Honda must compute its costs in obtaining Ms. Baldwin’s trade-in.

For example, when Ms. Baldwin traded in her leased vehicle to Brickell Honda, she still owed twenty-four monthly payments of $250.84 on her five-year lease, totaling $6020.16. The residual-value purchase price of the vehicle at the end of the lease was $7339 plus applicable taxes. Both amounts needed to be satisfied to transfer ownership of the vehicle to Ms. Baldwin (or Brickell Honda) when using the vehicle as a trade-in. This amount was factored into Ms. Baldwin’s purchase price for the new vehicle transaction. A similar analysis applies to satisfy the lien on an owned vehicle. Ms. Baldwin claims that in computing these two amounts, Brickell Honda overestimated the amount still owed on her lease, and by overestimating this cost, she was overcharged on the end price of her new vehicle.

We conclude that whether the trade-in vehicle is owned outright, financed, or leased, are differences without a distinction. The actual amount Brickell Honda must pay or credit the customer to obtain the trade-in vehicle will ultimately determine the balance owed by the customer, regardless of whether Brickell Honda must pay a lienholder to: (1) close out a lease and purchase a leased car at the lease contract’s agreed-upon residual value (leased car); (2) pay off a loan for a car that is owned but subject to a security interest lower than its market value (equity); or (3) purchase the vehicle from the owner. We therefore reject Brickell Honda’s argument that Ms. Baldwin did not satisfy the typicality requirement because her trade-in vehicle was a leased vehicle.

The record, however, reflects that Ms. Baldwin does have a typicality problem. Although Ms. Baldwin and the putative class members possess the same legal interest (return of the overestimated fees charged), Sosa, 73 So.3d at 114, Brickell Honda’s defenses to her specific unfair trade practices claim defeat typicality. See Green v. FedEx Nat’l, LTL, Inc., 272 F.R.D. 611, 615 (MJD.Fla.2011) (holding that “[t]ypicality may be destroyed by the existence of unique defenses that would preoccupy the named plaintiff to the detriment of the interests of absent class members”). The record reflects that Brickell Honda’s estimate regarding the balance owed on Ms. Baldwin’s leased vehicle was based on Ms. Baldwin’s representations to Brickell Honda, and the difference between. the estimated amount and the amount ultimately- paid by Brickell Honda to satisfy the lease was, in large part, created by Ms. Baldwin who inadvertently paid an additional monthly lease payment after she signed the contract with Brickell Honda. In fact, Ms. Baldwin conceded at the class certification hearing that she never notified Brickell Honda that she made an additional payment after signing the contract, thereby reducing the balance owed, and she never sought reimbursement for this payment from the leasing company or Brickell Honda.

Thus, although Ms. Baldwin’s claim meets' the typicality requirement, Brickell Honda’s defenses to Ms. Baldwin’s claim are unique; these defenses will preoccupy the named plaintiff to the detriment of the interest of absent class members; and Ms. Baldwin’s representations and actions when she signed the contract and thereafter will be pivotal. We, therefore, conclude that the trial court abused its discretion in failing to address these concerns and in concluding that typicality had been demonstrated.

Adequacy

We also conclude that Ms. Baldwin did not satisfy her burden in demonstrating that she is an adequate class representative, especially since her husband was disqualified as class counsel. Our finding is based on Ms. Baldwin’s failure to offer any evidence on her ability, or the ability of appointed class counsel, to assume the costs to litigate the case on behalf of the class. The trial court disqualified Ms. Baldwin’s husband as class counsel, whose two former law firms have asserted charging liens for costs that Ms. Baldwin has not paid in prosecuting this case. The record also reflects that, based on Mr. Baldwin’s misconduct in communications he sent to potential class members, the trial court prohibited Mr. Baldwin from further solicitation of possible class members in the pre-certification stage of the case.

Although Ms. Baldwin’s current class counsel has experience handling class action cases, and he has worked with Mr. Baldwin in other litigation, he was not materially involved in the early stages of this litigation and did not offer any evidence as to his willingness and ability to absorb the costs in prosecuting this case as a class action. Because neither Ms. Baldwin nor class counsel has offered any evidence on this issue, we conclude that adequacy has not been established, and thus the trial court abused its discretion in certifying the class. See, e.g., R.W. Brooks v. S. Bell Tel. & Tel. Co., 133 F.R.D. 54, 58 (S.D.Fla.1990) (noting that to meet the adequacy showing, “Plaintiffs must demonstrate that they will vigorously prosecute the action, and provide both adequate financing and competent counsel”); see also Rolex Emps. Ret. Trust v. Mentor Graphics Corp., 136 F.R.D. 658, 666 (D.Or.1991) (finding that to be adequate, a class representative must be able to “ ‘check the otherwise unfettered discretion of counsel in prosecuting the suit,’ not only with respect to the facts of the case but also with respect to economic consequences of the suit”) (quoting Weisman v. Darneille, 78 F.R.D. 669, 671 (S.D.N.Y.1978)). If this was the only deficiency in the certifications of this class, we would remand for further proceedings, but due to our findings regarding predominance and superiority, remand is unnecessary.

Predominance and Superiority

The predominance requirement is similar to commonality because “both require that common questions exist,” but the “predominance requirement is more stringent since common questions must pervade,” rather than merely exist. Wyeth, Inc. v. Gottlieb, 930 So.2d 635, 639 (Fla. 3d DCA 2006); see also InPhyNet, 33 So.3d at 771-72 (holding that “[w]hile the predominance requirement parallels the commonality requirement under rule 1.220(a), the predominance requirement in subdivision (b)(3) is more stringent because common questions must pervade”). Thus, “Florida Rule of Civil Procedure 1.220(b)(3) requires that common questions of law or fact predominate over any individual questions of the separate members, and that class representation is superior to other available methods for the fair and efficient adjudication of the controversy.” Kia Motors Am. Corp. v. Butler, 985 So.2d 1133, 1136 (Fla. 3d DCA 2008). To satisfy its burden, the class must therefore establish that common issues of fact predominate over the factual issues unique to each plaintiff. Black Diamond Props., Inc. v. Haines, 940 So.2d 1176, 1178 (Fla. 5th DCA 2006). The reason for this requirement is obvious. As the Fifth District aptly stated: “When significant individual issues exist, requiring proof from each member of the class, class representation is not appropriate because the lawsuit becomes unmanageable, thereby defeating the very purposes for which class representation is authorized.” Id. at 1178.

Thus, under Florida Rule of Civil Procedure 1.220(b)(3), “the trial court must determine whether the purported class representatives can prove their own individual case and, by doing so, necessarily prove the cases for each of the [class members] ... [and] [i]f they cannot, a class should not be certified.” Kia Motors, 985 So.2d at 1136; accord InPhyNet, 33 So.3d at 771.

Ms. Baldwin contends that because the trial court certified the class under section 501.976(11), the communications between Brickell Honda and Ms. Baldwin; Brickell Honda’s representations to Ms. Baldwin; and Ms. Baldwin’s representations to Bric-kell Honda, are irrelevant. Ms. Baldwin claims the only relevant issues under section 501.976(11) are whether Brickell Honda overestimated the lien payoff and whether Brickell Honda refunded the overestimated amount. Thus, Ms. Baldwin argues that no individualized issues exist. We respectfully disagree.

We begin with the statute itself. Section 501.976(11) provides that it is a FDUTPA violation to:

Add to the cash price of a vehicle as defined in s. 520.02(2) any fee or charge other than those provided in that section and in rule 69V-50.001, Florida Administrative Code. All fees or charges permitted to be added to the cash price by rule 69V-50.001, Florida Administrative Code, must be fully disclosed to customers in all binding contracts concerning the vehicle’s selling price.

(emphasis added). As to Ms. Baldwin’s contract, the estimation of the trade-in value of her leased vehicle was not an add-on to the price of the vehicle she was purchasing — it was a deduction, and that amount was fully disclosed, in writing, to Ms. Baldwin in her sales contract with Brickell Honda. Additionally, her contract specifies that the trade-in amount deduction was a “Trade-In Allowance.” Thus, the only way Ms. Baldwin potentially could prevail at trial is if she is able to prove oral representations she claims Brickell Honda’s sales representative made to her. And, as the trial court correctly concluded, Ms. Baldwin “did not satisfy the Court’s concerns regarding the need for individualized inquiry with respect to the other claims against [Brickell Honda] [in other words, her section 501.201 et seq. and section 501.976(9) claims], due to the need for each putative class member to testify as to them individual experience with [Brickell Honda].” Such individualized factual determinations defeat the predominance requirement.

To satisfy the predominance requirement, Ms. Baldwin was required to allege that similar representations she claims were made to her were also made to the other class members. Ms. Baldwin, however, has made no such claim, nor has she submitted any record evidence that similar representations were made to any of the other class members. And, as is readily obvious, Ms. Baldwin not only will have to prove her claim, but also she will have to prove each individual class member’s claim because each class member’s claim will require individualized determinations about what was represented or promised to each class member. Such individualized factual determinations defeat the predominance requirement.

In addressing the predominance issue, in InPhyNet, the Fourth District reversed class certification based on its conclusion that although there was commonality as to some of the issues, individual issues regarding the formation of each contract would predominate over the common issues, thus defeating the purpose of class treatment. InPhyNet, 33 So.3d at 774. The Fourth District concluded that “[i]f a class representative must still present a great deal of individualized proof or argue individualized legal points to establish most or all of the elements of his claims, class certification is not appropriate,” and because the determination of both liability and damages as to each class member required individualized factual findings, class treatment was inappropriate. Id. at 772. Specifically, the InPhyNet court concluded that:

Because there is no written obligation to pay a percentage of profits to the bonus pool, InPhyNet’s liability would have to be established by oral promises, if any, made to the individual physicians beyond the four corners of the PIP plans themselves. These claims would necessarily require individualized determinations about what was promised to each physician and the existence of a deceptive act for purposes of FDUTPA. Rather than being susceptible to class-wide proof, this case will ultimately require the very sort of mini-trials on liability which this court has explained are inappropriate for class treatment.

Id. at 773.

Similarly, the Fifth District found that class certification was inappropriate in Black Diamond, where “the very core of [the] plaintiffs’ complaint [was] the allegation that oral and written misrepresentations took place in 500 separate oral contract transactions spanning many years and involving numerous sales personnel.” Black Diamond,, 940 So.2d at 1178; see also Egwuatu v. S. Lubes, Inc., 976 So.2d 50, 53-54 (Fla. 1st DCA 2008) (affirming the trial court’s order denying class certification in a FDUTPA action regarding certain fees charged to customers receiving motor vehicle services where the trial court found that an individual inquiry would be required to determine the facts of each of the commercial customer’s experience with the defendants, and therefore, class certification would be impractical, thereby defeating the predominance factor); Volkswagen of Am., Inc. v. Sugarman, 909 So.2d 923, 924 (Fla. 3d DCA 2005) (finding that under Florida law, the predominance requirement “is not satisfied when the claims involve factual determinations which are unique to each plaintiff”).

Ms. Baldwin predicates her FDUTPA claim, as did the plaintiffs in InPhyNet, Black Diamond, and Egwuatu, on specific representations she claims Brickell Honda’s salesman made to her, and which she speculates may have been made to other class members regarding the value of their trade-in vehicles. Because there are no written obligations requiring Brickell Honda to notify a customer or to make an adjustment when there is a discrepancy between the estimated balance owed to a finance company or on a lease and the amount Brickell Honda actually paid to obtain clear title on a trade-in vehicle, and because Ms. Baldwin’s contract identifies the amount being deducted from the sales price as a “Trade-In Allowance,” individualized proof and individualized findings will be required as to each class member, resulting in the sort of mini-trials which defeat the purpose of class treatment. Because the claims “involve factual determinations which are unique to each plaintiff,” the predominance requirement has not been satisfied. Volkswagen, 909 So.2d at 924.

While not dispositive, Ms. Baldwin additionally argues that because the claims alleged here are under FDUTPA, collective proof of reliance is appropriate and individual mini-trials regarding reliance will not be required, and cites to Latman v. Costa Cruise Lines, N.V., 758 So.2d 699 (Fla. 3d DCA 2000). We are not persuaded by this argument because, while Lat-man suggests that in a case involving a uniform representation, individual reliance may not be necessary under FDUTPA, in this case, the communications made by and to each customer, as well as the actions taken by the parties, will be pivotal in determining the existence of a deceptive act as framed by the pleadings. In Lat-man, every customer received the same misrepresentation, that the “port charge” item on their ticket was a pass-through charge paid to a port, while in this case each plaintiff will have received a different communication and may have reacted differently. See Latman, 758 So.2d at 703. FDUTPA requires proof of each individual plaintiffs actual (not consequential) damage and defendant’s causation of damage, requiring evidence regarding how specific misrepresentations to individual Brickell Honda customers decreased the value of their deal for a car. See City First Mortg. Corp. v. Barton, 988 So.2d 82, 86 (Fla. 4th DCA 2008); Rollins, Inc. v. Heller, 454 So.2d 580, 585 (Fla. 3d DCA 1984). As the trial court’s order certifying a class acknowledged, each plaintiff in this case will have to show that “no other complementary goods or services were provided in exchange for not refunding the overcharge.” Thus, each customer’s interactions with Brickell Honda must be examined. See, e.g., Kia Motors, 985 So.2d at 1140 (finding no reasonable methodology for class-wide proof of damages).

Each customer’s interactions with Bric-kell Honda will affect the customer’s membership in the class, and the viability of his or her claim, as illustrated by Ms. Baldwin’s actions in this case. As already noted in this opinion, Brickell Honda’s estimate regarding the amount it expected to pay to obtain Ms. Baldwin’s leased vehicle as a trade-in was based on Ms. Baldwin’s representations to Brickell Honda as to the amount she still owed on her lease. In fact, the record reflects that the difference between the estimated amount Ms. Baldwin owed on the lease and how much Brickell Honda ultimately paid to satisfy the lease was, in large part, created by Ms. Baldwin when she inadvertently paid an additional monthly lease payment after she signed the contract with Brickell Honda. And, as also previously noted, Ms. Baldwin admits she never notified Brickell Honda that she made a payment after she purchased the new vehicle and traded in her leased vehicle to Brickell Honda, and she never sought reimbursement for the extra payment she made on the lease from the leasing company or from Brickell Honda. Thus, as the facts regarding Ms. Baldwin’s own claim demonstrate, mini-trials will be necessary to determine what representations were made by the customer and/or Brickell Honda at the time of the transaction, and the cause of the miscalculation.

Additionally, the payoff ledger relied on by Ms. Baldwin at the class certification hearing to establish the number of times Brickell Honda overestimated the payoff amount reflects that Brickell Honda equally correctly estimated, overestimated, and underestimated the amount owed on the trade-in value. Moreover, the record demonstrates that some customers received credit for the difference between the estimate and the amount Brickell Honda actually paid for the trade-in vehicle. Thus, while reliance on a particular representation need not be proven, the communications between the parties and their subsequent actions will be necessary to prove or disprove whether Brickell Honda’s actions were deceptive. See Egwuatu, 976 So.2d at 53-54.

Ms. Baldwin cannot cure the lack of predominance even as to claims that rely upon the portion of FDUTPA, section 501.976(11), that penalizes the absence of certain written elements in an automobile sales contract. Not only does this provision not create an exemption to rule 1.220(b)(3), it only addresses one of the elements necessary for proof of Ms. Baldwin’s claim. Subsection (11) provides an example of a deceptive act. But under Florida law, a FDUTPA claim has three elements: (1) a deceptive act; (2) causation; and (3) damages. See Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla. 2d DCA 2006). Thus, even assuming this provision provides for class-wide proof of the first element in this case, there must still be individualized proof as to causation and damages. As noted above, even Ms. Baldwin’s causation and damages are in question based upon her testimony, and thus individual class members would need to come forth with proof of causation and damages.

Where the facts necessary to determine liability are based upon the defendant’s interactions with specific plaintiffs, individual issues predominate over class-wide proof. In Chase Manhattan Mortgage Corp. v. Porcher, 898 So.2d 153, 158 (Fla. 4th DCA 2005), the Fourth District reversed class certification where the plaintiff homeowners claimed harm based upon errors in calculating when payments were received, which allegedly created incorrect interest charges on their mortgage. The Porcher court determined that whether an individual plaintiffs payment in a specific month was received within the grace period, and should have avoided interest, would predominate in determining liability. Porcher, 898 So.2d at 158.

Conversely, in Sosa, the Florida Supreme Court concluded that the putative class members had satisfied the predominance requirement “because the common class questions for Sosa and the putative class members require generalized proof and not individual inquiries or mini-trials.” Sosa, 73 So.3d at 113.

Thus, unlike Sosa and similar to Porch-er, there are questions that will predominate, and, therefore, defeat class certification, such as: (1) whether the consumer accurately stated the payoff balance (thus relieving Brickell Honda of possible liability since it did no “adding” to the purchase price); (2) whether the consumer received oral assurances regarding Brickell Honda’s estimation (rather than the required written elements of the sales contract); or (8) whether the consumer received other benefits that made the estimation immaterial to the purchaser’s decision (thus affecting whether the consumer was damaged).

Ms. Baldwin also cannot meet the superiority requirement. “To find superiority, a court must find all other methods of resolving the issues in a case to be inferior to a class action.” Kia Motors, 985 So.2d at 1141 (quoting Sanneman v. Chrylser Corp., 191 F.R.D. 441, 455 (E.D.Pa.2000)). In this case, class treatment is not superior because the harm Ms. Baldwin alleges arises from case-specific interactions, and every plaintiff would have to describe what representations were made to that plaintiff and how such representations affected them in negotiating, executing, and eventually paying off their vehicle purchase with Brickell Honda.

Brickell Honda’s representative testified that every customer, and every trade-in transaction, is unique to that customer’s desires and abilities for the deal made at that time, which makes case-by-case examination necessary. See Ortiz v. Ford Motor Co., 909 So.2d 479, 481 (Fla. 3d DCA 2005) (noting, in a case involving damages for decreased value to a vehicle alleged as “failure prone,” “the equities surrounding each class member’s purchase of their vehicle” required an individualized inquiry). Moreover, examining how Brickell Honda handled these negotiations, and whether such handling violated FDUTPA would be impractical on a class-wide or aggregate basis. See, e.g., Egwuatu, 976 So.2d at 53 (finding a class action impractical where the defendant communicated the alleged misrepresentation to its customers through a “variety of methods over the years”).

Further, class treatment is not a superi- or method for resolving the issues in this FDUTPA claim where the common facts do not predominate, and individual plaintiffs may bring their own suits, as FDUT-PA provides attorney’s fees to a prevailing plaintiff. See § 501.2015(1), Fla. Stat. (2008); Marino v. Home Depot U.S.A., Inc., 245 F.R.D. 729, 737 (S.D.Fla.2007) (denying class certification in FDUTPA claim, where the plaintiffs theory of deception was based on omissions by Home Depot regarding its price calculations, which would require numerous mini-trials, and where attorney’s fees are awarded to the prevailing plaintiff, and finding that “even in cases where the damages are small, the cost of bringing a suit would not deter potential FDUTPA plaintiffs”).

CONCLUSION

The trial court abused its discretion in certifying a class without determining the adequacy of Ms. Baldwin and her counsel to represent the class. More importantly, the trial court abused its discretion in certifying the class because Ms. Baldwin’s claims require determination of individual issues regarding representations and negotiations between each consumer and Bric-kell Honda as to the payoff amount of the trade-in vehicle. These individual determinations mean that individual issues of fact and law will predominate over common questions of fact and law. In addition, these individual determinations render class treatment impractical, and, therefore, not superior to individual adjudication. FDUTPA does not impose a threshold for claims, and even if the damages incurred by each plaintiff may be small, where attorney’s fees are awarded to the prevailing plaintiff, the cost of bringing a suit should not deter potential plaintiffs. Therefore, class treatment is not necessary to ensure that Ms. Baldwin’s claims are properly and efficiently adjudicated. Accordingly, we reverse the order certifying the class.

Reversed.

      . Although we are mindful of our standard of review, see Sosa, 73 So.3d at 102-03 (holding that the trial court's factual findings are reviewed under the abuse of discretion standard), because the trial court's order performs -no analysis and simply makes the requisite findings in a conclusory fashion, a complete review of the record was required to determine what evidence, if any, was presented to support these findings.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Lindsey Louise SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1924.
    District Court of Appeal of Florida, Second District.
    July 6, 2012.
    Lindsey Louise Smith, pro se.
   NORTHCUTT, Judge.

Lindsey Smith pleaded no contest to charges arising from two carjacking incidents. She did not appeal the convictions based on her pleas, but she did file a timely motion pursuant to Florida Rule of Criminal Procedure 3.850. She claimed that her counsel was ineffective for three reasons: (1) she failed to investigate and prepare a defense based on battered spouse syndrome; (2) she failed to interview witnesses who would have supported that defense; and (3) she did not seek a downward departure based on mitigating circumstances. The postconviction court summarily denied Smith’s motion. We agree that the third ground had no legal merit and we affirm as to it. But we reverse the court’s summary denial of the other two claims.

Smith’s motion alleged that her boyfriend beat her on a regular basis, held her at gunpoint, threatened her with death, and verbally assaulted her. She claimed that the boyfriend forced her to commit the carjackings by duress in the form of threats on her life and the lives of her family members if she didn’t cooperate in his criminal plans. Smith claimed that the witnesses identified in ground (2) would have supported a battered spouse defense.

The postconviction court correctly determined that a defense based on battered spouse syndrome would not have applied to Smith’s case. That syndrome has been used in Florida as a defense to crimes committed against the batterer. And, as courts have noted, that may be the only situation in which it applies. See Slater v. State, 915 So.2d 618, 621 (Fla. 5th DCA 2005) (“[T]he victim was not [the] allegedly abusive husband but was a friend and innocent victim ..., thus rendering the defense of Battered Spouse Syndrome problematical at best.”). The victims of Smith’s crimes were the blameless drivers of the vehicles she carjacked, not her abusive boyfriend.

Although Smith incorrectly referred to a battered spouse defense, her assertion that she was “forced to commit these crimes under the direction and duress of her boyfriend” actually described a defense of duress. Because of Smith’s unartful pleading, the postconviction court denied claims (1) and (2) solely on the ground that battered spouse syndrome did not apply; the court did not address whether counsel had investigated a duress defense or interviewed witnesses who could have supported that defense. See Reese v. State, 869 So.2d 1225, 1227 (Fla. 2d DCA 2004) (holding the postconviction court’s failure to address allegations of duress in a rule 3.850 motion required reversal). The allegations in ground (1) of Smith’s motion are facially sufficient to support a possible duress defense. See Driggers v. State, 917 So.2d 329, 331 (Fla. 5th DCA 2005) (listing elements of duress defense and citing Florida Standard Jury Instructions (Crim.) 3.6(k)). And the allegations in ground (2) are facially sufficient to support an allegation of ineffectiveness based on a failure to interview .witnesses. See Rangel-Pardo v. State, 879 So.2d 19, 20 (Fla. 2d DCA 2004) (stating allegations necessary to plead a facially sufficient claim of ineffective assistance for failing to investigate witnesses).

We reverse the summary denial of grounds (1) and (2) in Smith’s rule 3.850 motion because the postconviction court did not address the duress defense and did not attach documents that conclusively refuted Smith’s claims. We remand for further proceedings. If documents of record do refute the claims, the court may again summarily deny these grounds. Otherwise, the postconviction court must hold an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

SILBERMAN, C.J., and MORRIS, J., Concur.


author: PER CURIAM.

text:
    Phillip J. SHEA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3956.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Rehearing Denied Oct. 16, 2012.

      Phillip J. Shea, Daytona Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

We summarily reverse the trial court’s order denying appellant’s Rule 8.800(a) motion to correct illegal sentence.

Appellant’s motion raised various claims of scoresheet error and improper weapon enhancements. The court denied the motion without explanation, without a State response, and without any attachments. This was improper. Fleming v. State, 980 So.2d 1110 (Fla. 4th DCA 2008); Matyjasik v. State, 969 So.2d 1142 (Fla. 4th DCA 2007); Sheffield v. State, 903 So.2d 1009, 1011 (Fla. 4th DCA 2005). See also Terry v. State, 970 So.2d 863 (Fla. 4th DCA 2007) (summarily reversing the denial of a Rule 3.850 motion under the same circumstances); Dieudonne v. State, 958 So.2d 516 (Fla. 4th DCA 2007) (same); Anderson v. State, 627 So.2d 1170 (Fla.1993) (requiring a court summarily denying a Rule 3.850 motion to “state its rationale in its decision or attach those specific parts of the record that refute each claim presented”).

Although Rule 3.800(a) does not expressly require a court to attach records, caselaw has required a court to attach the records that refute a facially sufficient claim. See Thompson v. State, 17 So.3d 307 (Fla. 4th DCA 2009). Here, the trial court apparently found the claims sufficient, but provided no explanation for its denial of the motion. Summary reversal is warranted because the State is not permitted to attach records necessary to refute a Rule 3.800(a) claim on appeal. Collins v. State, 805 So.2d 73 (Fla. 4th DCA 2002); Sheffield, 903 So.2d at 1011.

We remand for further proceedings. We express no opinion as to the merits of appellant’s claims, which should be addressed in the first instance by the trial court.

Reversed and Remanded for further proceedings.

DAMOORGIAN, TAYLOR and GERBER, JJ., concur.


text:
    Jammie GORDON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3542.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2012.
    Rehearing Denied Oct. 3, 2012.
    Jammie Gordon, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

LEWIS, ROBERTS, and ROWE, JJ., concur.


text:
    Jerriel L. SWEET, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1972.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Rehearing Denied Oct. 16, 2012.
    Jerriel Sweet, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General, Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s petition for writ of habeas corpus. Habeas corpus may not be used as a substitute for a Rule 3.850 motion. Fla. R.Crim. P. 3.850(1); Baker v. State, 878 So.2d 1286,1241 (Fla.2004). A postconviction motion would be untimely and successive in this case. Fla. R.Crim. P. 3.850(b), (f).

Appellant’s claims that the information charging burglary of a dwelling was defective, and that the court lacked subject matter jurisdiction, are frivolous. Appellant appears to contend that, because the information specified that he entered or remained in the dwelling with intent to commit theft, he was therefore charged with two offenses in one count, and the jury’s verdict may not be unanimous.

The information charging burglary was not defective in specifying the nature of the offense that appellant intended to commit. If anything, specifying the nature of the intent, which is not required, increased the State’s burden of proof. See State v. Waters, 436 So.2d 66, 68-69 (Fla.1983). Appellant was charged, and the jury was required to find, that appellant entered or remained in a dwelling with the intent to commit an offense therein. No reasonable possibility exists that the jury’s verdict was not unanimous as to the elements of burglary.

Appellant is cautioned that the filing of frivolous postconviction challenges or appeals may result in the sanction of this court no longer accepting his pro se filings or referral to prison officials for disciplinary proceedings which may include forfeiture of gain-time. See State v. Spencer, 751 So.2d 47 (Fla.1999); §§ 944.279(1), 944.28(2)(a), Fla. Stat. (2012); Fla. R.Crim. P. 3.850(m).

Affirmed. Appellant cautioned against frivolous filing.

WARNER, DAMOORGIAN and LEVINE, JJ., concur.


text:
    Johnnie KOHN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3705.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2012.
    Rehearing Denied Oct. 3, 2012.
    Johnnie Kohn, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

LEWIS, ROBERTS, and ROWE, JJ., concur.


author: GROSS, J.

text:
    M.J.O. HOLDING CORPORATION, a Florida corporation, Appellant, v. John HELLER, Barbee & Associates, Inc., and Kenneth A. Welt, individually, Appellees.
    No. 4D11-2557.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Rehearing Denied Oct. 19, 2012.

      Michael Winer of The Law Office of Michael Winer, P.A., Fort Lauderdale, for appellant.
    Gary Irwin of Winget, Spadafora & Schwartzberg, LLP, Miami, for appellees, Barbee & Associates, Inc. and John Heller.
   GROSS, J.

We affirm the final summary judgment entered by the circuit court because the plaintiff filed its complaint after the limitations period had run.

On October 8, 2008, M.J.O. Holding Corporation filed a complaint against John Heller and Barbee & Associates, Inc. alleging various torts. All torts arose from the seizure of the inventory of a pawn shop owned by M.J.O. The seizure occurred on September 19, 2003. On that day, M.J.O. claimed that Heller went to the pawn shop and misrepresented himself as Kenneth Welt, a trustee appointed by the bankruptcy court. At a hearing in bankruptcy court in December, 2003, an agent of M.J.O. saw Welt in court and realized that he was not the person who had been in the pawn shop on September 19.

Four years is the applicable limitations period for the causes of action at issue. See § 95.11(3), Fla. Stat. (2003). M.J.O. contends that the running of the statute of limitations was tolled by Heller’s misrepresentation of himself as Welt on September 19, 2003. Section 95.051(l)(b), Florida Statutes (2003), provides that the “running of the time under any statute of limitations ... is tolled by,” the “[u]se by the person to be sued of a false name that is unknown to the person entitled to sue so that process cannot be served on the person to be sued.”

Under the undisputed facts of this case, if Heller misidentified himself in September, 2003, the statute of limitations was tolled only until December, 2003, when M.J.O. learned that the misrepresentation occurred. The phrase “that is unknown to the person entitled to sue” modifies the word “use” in section 95.051(l)(b). Thus, it is the use of the false name that tolls the limitations period; the plaintiffs discovery that a false name has been used causes the limitations clock to start ticking again. Discovery of the imposter’s actual identity is not a material event under the statute. See Putnam Berkley Group, Inc. v. Dinin, 734 So.2d 532 (Fla. 4th DCA 1999) (recognizing that a tortfeasor’s fraudulent concealment of his identity will not toll the statute of limitations under section 95.051). Assuming that Heller used a false name at the pawnshop, M.J.O. discovered that Heller did so in December 2003. The limitations period began to run in December, 2003 and ended in December, 2007. M.J.O. did not file its suit until October 2008, after the limitations period had expired.

Affirmed.

HAZOURI and CONNER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Garrett Scott CROFOOT, Appellee.
    No. 1D11-5692.
    District Court of Appeal of Florida, First District.
    Aug. 17, 2012.
    Rehearing Denied Oct. 4, 2012.

      Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellant.
    Curtis S. Fallgatter of Fallgatter, Far-mand, & Catlin, P.A., Jacksonville, for Ap-pellee.
   PER CURIAM.

The State appeals the trial court’s order granting Appellee’s motion to suppress the fruit of a warrantless search and seizure. We reverse and remand for further proceedings, holding that the trial court improperly considered inadmissible hearsay statements in arriving at its ruling. Our conclusion as to the evidentiary issue dispenses with the need to address the second issue regarding the Fourth Amendment.

Appellee was charged with possession of a firearm and moved to suppress the weapon as the fruit of an unlawful search and seizure. The central issue at the suppression hearing was whether the officers had reasonable suspicion to conduct the pat-down that revealed the firearm. The officers testified that they frisked Appellee in response to his “blading” motion. Officer Lamb defined “blading” as follows:

[IJt’s typically a fighting stance or if you’re getting ready to take some type of ... maneuver, you’re about to run, or you can pull something out of your pocket, you can conceal things.
As if I’m facing you and — if I blade my body and I turn and I place my hand in my pocket, it takes you more than a second to notice that I’m pulling something out of my pocket, whereas if I’m facing you and I pull something out, well, it’s easier to see.

To rebut the officers’ testimony that he bladed, Appellee presented three documents containing the out-of-court statements of Christian Rodriguez and Chris Brown, two young men who were present during the encounter. In two of the documents, Rodriguez and Brown each stated, “I have been advised that ... the officers who arrested [Appellee] testified that [Ap-pellee] ‘bladed’ himself.... That is not correct.... [Appellee] stood politely waiting for the officers to question him.” In the third document, a handwritten narrative, Rodriguez recited the events leading to the pat-down, making no mention of blading. In this narrative, Rodriguez also acknowledged he had been carrying marijuana. The trial court admitted each of these documents over the State’s hearsay objection, pursuant to the “statement against interest” exception. Ultimately, the court ruled that the officers lacked the reasonable suspicion necessary to pat Ap-pellee down, partly due to the finding that Appellee did not blade.

On appeal, the State argues that the trial court erred in applying the “statement against interest” exception to the statements Appellee introduced to show he did not blade. The threshold issue is whether the State properly preserved all aspects of its argument. Absent fundamental error, appellate courts do not review arguments unless the appellant timely raised the issue at the trial level. Castor v. State, 365 So.2d 701, 703 (Fla.1978). A “hearsay” objection need not specify the hearsay exception the objecting party will address on appeal, and is “sufficient to preserve for appellate review the failure of the proponent of the testimony to lay a proper predicate.” Richardson v. State, 875 So.2d 673, 675-76 (Fla. 1st DCA 2004). Thus, the State’s hearsay objection preserved its argument on appeal that the “statement against interest” exception does not apply to the statements at issue.

Turning to the merits of the issue on appeal, we review the trial court’s decision to admit the evidence for abuse of discretion. McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006). As to any evidentiary ruling, however, the evidence code and applicable case law limit a trial court’s discretion, and we review its interpretation of those authorities de novo. Id.

Generally, the hearsay exception for a “statement against interest” applies when two elements are met: first, the threshold finding of the declarant’s unavailability, section 90.804(l)(e), Florida Statutes (2011); and second, that the content of statement is against the declarant’s interest, section 90.804(2)(c), Florida Statutes (2011). When the statement tends to expose the declarant to criminal liability and is offered to exculpate the accused, a third element must be met: “corroborating circumstances showing] the trustworthiness of the statement.” § 90.804(2)(c). For the reasons explained below, we conclude that the statements at issue do not satisfy the content requirement of the hearsay exception. Due to this holding, we need not address the remaining two elements.

In pertinent part, the “statement against interest” hearsay exception requires that the content of the out-of-court statement be “so far contrary to the de-clarant’s pecuniary or proprietary interest or tended to subject the declarant to liability ... that a person in the declarant’s position would not have made the statement unless he or she believed it to be true.” § 90.804(2)(c), Fla. Stat. The rationale underlying the exception is that a statement against the declarant’s interest is reliable because of the declarant’s lack of motivation to fabricate a self-inculpatory statement. Peninsular Fire Ins. Co. v. Wells, 438 So.2d 46, 54 (Fla. 1st DCA 1983). The presumption of reliability— and, thus, the hearsay exception — applies only to self-inculpatory statements, not to neutral or self-exculpatory statements. See Perez v. State, 980 So.2d 1126, 1133 (Fla. 3d DCA 2008). Such statements are not exempt from the general rule excluding hearsay simply because they appear in the same document as comments that are ti’uly against the declarant’s interest. See id.; Brooks v. State, 787 So.2d 765, 776-77 (Fla.2001) (quoting Williamson v. United States, 512 U.S. 594, 600, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (“[T]he fact that a statement is collateral to a self-inculpatory statement says nothing at all about the collateral statement’s reliability. We see no reason why collateral statements ... should be treated any differently from other hearsay statements that are generally excluded.”)).

Appellee’s counsel introduced the documents at issue not to implicate someone other than Appellee, but to show that Ap-pellee did not blade. The relevant statements in those documents are neutral as to the declarants because they did not have anything to lose by stating that Appellee did not blade. To the extent the documents are against the declarants’ interests because they indicate complicity in Appel-lee’s possession of a concealed weapon, these admissions are simply collateral self-incriminatory statements and are not a vehicle for admitting the portions of the documents concerning blading. See Perez, 980 So.2d at 1133; Williamson, 512 U.S. at 600, 114 S.Ct. 2431 (interpreting Federal Rule of Evidence 804(b)(3)). The same reasoning applies to the portions of Rodriguez’s handwritten narrative where he admitted having possessed marijuana during the encounter. This portion of the narrative incriminates Rodriguez, but his description of the officer’s interaction with Appellee and the initiation of the pat-down does not. Therefore, neither the declar-ants’ denials that Appellee bladed nor Rodriguez’s description of the encounter meets the “statement against interest” exception, and the trial court erred in admitting those portions of the documents.

We must conclude that this error was harmful. Even when a trial court does not cite improperly admitted evidence in its ruling, appellate courts presume that the trial court considered evidence admitted over objection, absent an express assurance to the contrary. Petion v. State, 48 So.3d 726, 735 (Fla.2010). Because there was no such assurance in this case, we presume the trial court also took the inadmissible hearsay into account in coming to its finding concerning blading. Accordingly, we reverse and remand for reassessment of the motion to suppress without consideration of the inadmissible hearsay.

REVERSED and REMANDED.

WOLF, RAY, and MAKAR, JJ., concur.


author: WETHERELL, J.

text:
    CITY OF DELAND, Appellant/Cross-Appellee, v. Dominick LANDOLFI, Appellee/Cross-Appellant.
    No. 1D11-6567.
    District Court of Appeal of Florida, First District.
    Aug. 17, 2012.
    Rehearing Denied Oct. 5, 2012.

      David A. Young of Fisher & Phillips LLP, Orlando, for Appellant/Cross-Appel-lee.
    Joseph C. Wood, Maurice Arcadier, and Stephen Biggie of Arcadier & Associates, Melbourne, for Appellee/Cross Appellant.
   WETHERELL, J.

This administrative appeal from the Public Employees Relations Commission (PERC) arises out of a veterans’ preference complaint filed by Dominick Landolfi against the City of Deland after he was not hired for the position of deputy fire chief. PERC dismissed the complaint because the individual hired by the City was more qualified than Landolfi, but PERC awarded attorney’s fees and costs to Landolfi “due to the manner in which the City conducted the hiring process.” The City appeals the award of attorney’s fees and costs, and Landolfi cross-appeals the dismissal of his complaint. We affirm the issue raised on cross-appeal without further comment, and, for the reasons that follow, we reverse the award of attorney’s fees and costs.

Facts

Landolfi submitted his resume in response to the City’s vacancy announcement for the position of deputy fire chief. Landolfi’s resume listed his military experience as a firefighter, but it did not request a veterans’ preference. After submitting his resume, Landolfi informed the City’s human resources department that he was requesting a veterans’ preference. This request was not conveyed to the fire chief who was responsible for screening the resumes, conducting interviews, and making the hiring decision.

Landolfi did not receive an interview or any other special consideration during the hiring process. The fire chief only interviewed two applicants for the position, one of whom was a City employee who was entitled to be interviewed based on a City policy requiring interviews of all internal job applicants. The other applicant interviewed, the individual ultimately hired for the position, was determined by the fire chief to be the most qualified based on his resume.

After learning that another applicant was hired, Landolfi filed a veterans’ preference complaint with the Department of Veterans’ Affairs (DVA). DVA investigated the complaint and issued a report finding that Landolfi was a preference-eligible veteran who met the minimum qualifications for the position; that he was not afforded any special consideration in the hiring process as he should have been under the veterans’ preference statutes and rules; and that “[t]he non-veteran that was ultimately selected for this position ... does not appear to be MORE QUALIFIED than Mr. Landolfi.” Based on these findings, DVA concluded that Landolfi’s veterans’ preference complaint was “valid” and it directed the City to provide Landolfi a proposed plan to resolve his complaint.

When the City failed to resolve the complaint, Landolfi filed an appeal with PERC. After an evidentiary hearing, the PERC hearing officer concluded that the City should have given Landolfi an interview or other special consideration during the hiring process because he was a preference-eligible veteran who was qualified for the deputy fire chief position and the City was aware that he was claiming a veterans’ preference. Nevertheless, the hearing officer concluded that the City did not violate Chapter 295, Florida Statutes, because the individual hired for the position was more qualified than Landolfi. Accordingly, the hearing officer recommended that PERC dismiss Landolfi’s complaint.

In its final order, PERC rejected the exceptions filed by Landolfi and dismissed the complaint as recommended by the hearing officer. However, on its own initiative, PERC ordered the City to pay attorney’s fees and costs to Landolfi “due to the manner in which the City conducted its hiring process.” PERC reasoned that “[t]he City’s failure to provide Landolfi with an interview, or any other form of special consideration, is a clear violation of [section 295.07(2), Florida Statutes, and Florida Administrative Code Rule 55A-7.011(2)].” This timely appeal and cross-appeal followed.

Analysis

The award of attorney’s fees and costs in the final order was based on section 295.14(1), Florida Statutes (2010), which provides:

When the Public Employees Relations Commission, after a hearing on notice conducted according to rules adopted by the commission, determines that a violation of s. 295.07, s. 295.08, s. 295.085, or s. 295.09(l)(a) or (b) has occurred and sustains the veteran seeking redress, the commission shall order the offending agency, employee, or officer of the state to comply with the provisions of s. 295.07, s. 295.08, s. 295.085, or s. 295.09(l)(a) or (b); and, in the event of a violation of s. 295.07, s. 295.08, s. 295.085, or s. 295.09(l)(a) or (b), the commission may issue an order to compensate the veteran for the loss of any wages and reasonable attorney’s fees for actual hours worked, and costs of all work, including litigation, incurred as a result of such violation, which order shall be conclusive on the agency, employee, or officer concerned. The attorney’s fees and costs may not exceed $10,000.

The first sentence of this statute consists of two clauses. The first clause imposes a mandatory duty on PERC to order compliance when it finds a violation of certain enumerated statutes and sustains the veterans’ complaint. The second clause authorizes a discretionary award of monetary relief, including attorney’s fees and costs, when PERC finds a violation of the enumerated statutes.

Section 295.14(1) was broken into these two clauses in 1987. See Ch. 87-356, § 9, at 2212-13, Laws of Fla. Prior to 1987, the statute only applied to retention and reinstatement decisions and required PERC to order both compliance and lost wages upon finding a violation. See § 295.14(1), Fla. Stat. (1986 Supp.) (referring only to section 295.09(l)(a) and (b)). The 1987 amendments expanded the scope of the first clause to include the statutes applicable to the initial hiring decision, but retained the scope of the second clause. See Ch. 87-356, § 9, at 2212-13, Laws of Fla. (breaking section 295.14(1) into two clauses and adding sections 295.07, 295.08, and 295.085(1) to the first clause, but not the second clause). ■ Thus, after the 1987 amendments, PERC was required to order compliance upon finding a violation of any of the statutes enumerated in the first clause, but it was only authorized to order monetary relief in retention and reinstatement cases. See § 295.14(1), Fla. Stat. (1987). In 1998, the second clause was expanded to include all of the statutes listed in the first clause and also to allow PERC to award attorney’s fees and costs as part of the monetary relief. See ch. 98-33, § 7, at 248, Laws of Fla. Consequently, after the 1998 amendments, PERC had discretion to award monetary relief, including attorney’s fees and costs, for violations of any of the statutes listed in the first clause, including section 295.07. The statute has remained substantially unchanged since 1998.

In this case, the City contends that because the PERC hearing officer found that it hired a more qualified applicant for the deputy fire chief position, there was no statutory violation that would authorize PERC to award attorney’s fees and costs under section 295.14(1). Because an award of fees and costs under this statute is discretionary, we review the award for an abuse of discretion. See Pipping v. Dep’t of Corr., 700 So.2d 721 (Fla. 1st DCA 1997). However, we review de novo PERC’s determination that the City violated section 295.07(2) because that is an issue of law; and in doing so, we give deference to PERC so long as its determination is not clearly erroneous. See Doyle v. Dep’t of Bus. Regulation, 794 So.2d 686 (Fla. 1st DCA 2001).

The statutory prerequisite to an award of any relief under section 295.14(1) is a “violation” of one of the statutes enumerated in that section. If there is no statutory violation, then there is no basis for PERC to order compliance under the mandatory provisions of the first clause, nor is there any basis for PERC to award monetary relief under the discretionary provisions of the second clause. Thus, resolution of the issue raised by the City on appeal boils down to whether PERC erred in finding that the City violated section 295.07(2) by failing to give Landolfi special consideration in the interview process even though the City ultimately hired a more qualified applicant.

Section 295.07(2) does not require covered employers to do anything; the statute simply authorizes DVA to adopt rules that, among other things, “include procedures to ensure that veterans are given special consideration at each step of the employment selection process.” The rule adopted by DVA to implement this statute states that “[granting of an interview is one example of the type of special consideration which may be given to a preferred applicant,” but the rule also makes clear that a preference “does not require the employment of a preferred applicant over a nonpreferred applicant who is the most qualified applicant for the position.” Fla. Admin. Code R. 55A-7.01K2).

The City argues that PERC’s conclusion that it violated section 295.07(2) by failing to grant Landolfi an interview even though it ultimately hired a more qualified applicant is clearly erroneous because it is contrary to this court’s decision in Harris v. Public Employees Relations Commission, 568 So.2d 475 (Fla. 1st DCA 1990). We agree.

In Harris, a preference-eligible veteran filed a complaint against Sarasota County after he was not hired for a systems analyst position with the county. See Harris v. Sarasota Cnty., 16 FPER ¶ 21503, at IX-22. The PERC hearing officer found that the veteran, Harris, was qualified for the position based on information that was not apparent from his resume; that the non-veteran applicant hired by the county was more qualified than Harris for the position; and that the county violated sections 295.07 and 295.085 by not providing a preference to Harris at each step of the employment selection process. Id. at 23. The hearing officer recommended that, in order to remedy this statutory violation, the county should give preference to Harris for any other position with the county for which he was qualified. Id.

In its final order, PERC rejected the hearing officer’s conclusion that the county violated the veterans’ preference statute and expressly concluded that the county “did not violate the provisions of §§ 295.07 and 295.085, Florida Statutes (1987).” Id. PERC reasoned that the county did not violate the law in eliminating Harris from the interview pool for not meeting the minimum qualifications for the position because the information that led the hearing officer to conclude that Harris was minimally qualified for the position was not apparent from his resume. Id. Additionally, and most pertinent to this case, PERC reasoned that:

the hearing officer’s conclusion that Harris was minimally qualified for the position is not, in itself, dispositive of this case. The County was not required to grant an interview to all minimally qualified applicants, even if they had asserted a veteran’s preference. Rather, in order to prevail, Harris needed to demonstrate that he was qualified or more qualified than the employee ultimately hired for the position. [citations omitted] Our review of the record indicates that the hearing officer’s dispositive finding is that the County reasonably determined that [the other applicant] was more qualified for the position than was Harris. We agree with this finding and conclude that the County did not violate the veteran’s preference síaíuíe. [FN 2]
[FN 2] Even had we agreed with the hearing officer that a violation occurred, we conclude that the recommended remedy would have been improper. We have no authority to direct the County to consider a veteran for positions which he has not sought, or for which he has not filed an appeal.

Id. at 23-24 (emphasis added).

This court affirmed PERC’s final order. See Harris, 568 So.2d at 475. In doing so, the court expressly rejected the exact contention raised in this case: that, even though the employer hired a more qualified applicant, it violated sections 295.07 and 295.085 by failing to give the veteran a preference at each stage of the hiring process. Id. at 478. The court reasoned that because the veterans’ preference statutes do not mandate the hiring of a veteran over a more qualified non-veteran, there is no statutory violation if the employer proves that it hired a more qualified non-veteran. Id. at 477-79.

This court reaffirmed Harris in West Coast Regional Water Supply Auth. v. Harris, 604 So.2d 892 (Fla. 1st DCA 1992). There, the court explained that in veterans’ preference cases, the complainant has the initial burden to show that he is a preference-eligible veteran who submitted a timely and proper application for a covered position for which he was qualified and that a non-veteran was hired for the position. Id. at 893 (citing Wade v. Comptroller of Orange Cnty., 17 FPER ¶ 21517 (1990)). That showing will be sufficient to establish a violation of the veterans’ preference statute unless the employer meets its burden to show that the non-veteran hired was more qualified. Id.; see also Evans v. Fla. State. Univ. Bd. of Trs., 37 FPER ¶73 (2011) (holding that eligible veteran not entitled to interview if other applicants more qualified for position based on initial screening); Murray v. City of Largo, 36 FPER ¶ 119 (2010) (dismissing veterans’ preference complaint because non-veteran hired was more qualified); Wood v. Univ. of Cent. Fla., 31 FPER ¶ 47 (2005) (finding no violation of Chapter 295 because veteran not as qualified as other applicants); Price v. Dep’t of Prof'l Regulation, 18 FPER ¶ 23505 (1992) (holding that any procedural defects in hiring procedure were moot because agency proved non-veteran hired was more qualified than veteran); Ruiz v. Metro. Dade Cnty., 17 FPER ¶ 22512 (1991) (finding hiring of more qualified non-veteran lawful); Zumwalt v. Palm Beach Cnty. Cmty. Coll, 16 FPER ¶ 21510 (1990) (finding no violation of section 295.07 or 295.085 when employer hired more qualified non-veteran applicant over less qualified veteran).

PERC’s final order in this case is consistent with these authorities insofar as it dismissed Landolfi’s complaint based on the hearing officer’s finding that the City hired a more qualified applicant. However, the final order conflicts with these authorities in concluding that the City “violated” section 295.07(2) by failing to give Landolfi special consideration, such as an interview, during the hiring process. Indeed, this aspect of the final order directly conflicts with Harris because, in that case, both this court and PERC expressly concluded that the employer did not violate sections 295.07 or 295.085 by failing to give the veteran preference during the hiring process since the employer established that it hired a more qualified non-veteran.

Having said that, we have not overlooked Landolfi’s argument that the City’s failure to provide him an interview is a separate and distinct violation of the veterans’ preference statute and, thus, the City should be penalized for that violation through an award of attorney’s fees and costs even though it was determined that the ultimate hiring decision made by the City did not violate Chapter 295. There is some appeal to this argument in light of the important public policy served by the veterans’ preference statute. See Yates v. Rezeau, 62 So.2d 726, 727 (Fla.1952) (explaining that the purpose of the veterans’ preference statute is “to reward those who served their country in time of need” and to recognize the qualities and traits developed by military service which tend to make veterans superior public servants); see also Ch. 98-33, at 244, Laws of Fla. (“It is the policy of this State of Florida that in appreciation for their service to this state and the country, and in recognition of the time and advantage lost toward the pursuit of a civilian career, veterans ... shall be granted preference in employment with the state and political subdivisions of or in the state.”). However, since Harris, the dispositive issue in veterans’ preference cases has been whether the hiring decision violated Chapter 295. Indeed, our research did not locate any case in which PERC ordered relief under either clause of section 295.14(1) for a violation in the hiring process where it determined that the ultimate hiring decision did not violate Chapter 295. Accordingly, in light of Harris and its progeny, if the Legislature intended PERC to order relief and penalize employers under section 295.14(1) for not affording a veteran special consideration in the hiring process even if the employer establishes that it hired a more qualified non-veteran, it needs to clarify that intent.

Conclusion

For the reasons stated above, PERC erred in concluding that the City’s failure to provide Landolfi an interview was a violation of section 295.07 and, as a result, PERC abused its discretion in awarding attorney’s fees and costs to Landolfi under section 295.14(1). Accordingly, we reverse the award of attorney’s fees and costs in the final order. In all other respects, the final order is affirmed.

AFFIRMED in part; REVERSED in part.

THOMAS and MARSTILLER, JJ., concur.


author: CLARK, J.

text:
    Lewis E. CASTLEMAN and Iris K. Castleman, Appellant, v. R.J. REYNOLDS TOBACCO CO., Appellee.
    No. 1D11-4258.
    District Court of Appeal of Florida, First District.
    Aug. 17, 2012.
    Rehearing Denied Oct. 5, 2012.

      Willie E. Gary, Tricia P. Hoffler and Paul D. Mark Lucas of Gary, Williams, Lewis, & Watson, P.L., Stuart, and Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Each Gardens, for Appellants.
    J.W. Prichard, Jr., Robert B. Parrish and David C. Reeves of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville, Stephanie E. Parker, John F. Yarber and John M. Walker of Atlanta, and Kevin D. Boyce, Cleveland, for Appellee.
   CLARK, J.

Lewis and Iris Castleman appeal the final summary judgment against them and in favor of R. J. Reynolds Tobacco Co. The trial court found that R. J. Reynolds Tobacco Co. was entitled to judgment as a matter of law because the Castlemans did not qualify for membership in the class defined by Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006), and therefore did not qualify for the benefit of an extended limitations period for filing suit. For the reasons explained below, the summary judgment is affirmed.

The material facts are not in dispute. Mr. Castleman began regularly smoking cigarettes at age 19 and smoked for the next 30 years, from 1953 to 1983. He did not have symptoms of heart or lung disease when he quit smoking in 1983. In the early 1990’s Mr. Castleman began to experience shortness of breath and bouts of coughing. In 1993, he also began suffering from chest pain. Neither Mr. Castle-man nor any of his medical care providers attributed his health issues to his prior history of smoking until 1998, when Mr. Castleman underwent heart bypass surgery. In 1998, his medical care providers advised him for the first time that the symptoms he was experiencing and his heart and lung conditions were likely smoking-related.

The limitations period for products liability, fraud, and negligence actions is four years. § 95.11(3), Fla. Stat. However, the Florida Supreme Court extended the limitations cut-off date in Engle v. Liggett Group, Inc., for certain individual litigants. While the Florida Supreme Court decerti-fied the class for subsequent proceedings in Engle v. Liggett Group, it ruled that individuals fitting the class description could pursue separate actions against tobacco companies within the time limits set out in the opinion. The court specified that individual litigants eligible for class benefits were those “Florida residents fitting the class description as of the trial court’s order dated November 21, 1996.” Engle, 945 So.2d at 1277 (emphasis added). In addition, the qualifying individuals were required to file their lawsuits “within one year of the mandate in this case” even if the class member’s disease or condition “manifested” itself more than four years prior to the filing of the suit. Engle, 945 So.2d at 1276. The mandate was issued on January 11, 2007. Engle v. Liggett Group, Inc., No. SC03-1856. Thus, individuals fitting the class description by the cut-off date could file suit until January 11, 2008.

The Castlemans filed this action on January 10, 2008. Accordingly, if they fit the Engle class description as of November 21, 1996, their lawsuit was timely. If not, the suit was time-barred by section 95.11(3), Florida Statutes. Rearick v. R.J. Reynolds Tobacco Co., 68 So.3d 944 (Fla. 3d DCA 2011) (summary judgment for defendant affirmed where plaintiff filed suit in 2008; plaintiffs relative died 15 years pri- or to 2008; because plaintiff did not qualify for Engle class, lawsuit was time-barred).

Qualification for Engle class benefits does not require a formal diagnosis that a disease or condition was tobacco-related on or before November 21, 1996. As stated by the Court, “[t]he critical event is not when an illness was actually diagnosed by a physician, but when the disease or condition first manifested itself.” Engle, 945 So.2d at 1276; see also Frazier v. Philip Morris USA Inc., 89 So.3d 937 (Fla. 3d DCA 2012). The dis-positive issue here is thus whether Mr. Castleman’s smoking-related diseases or conditions “manifested” themselves on or before November 21, 1996, thus qualifying the Castlemans for Engle class membership.

In Frazier v. Philip Morris USA, Inc., the Third District Court of Appeal considered the meaning of “manifestation” of a smoking-related disease or condition for purposes of the limitations period for individual lawsuits. The court referred to the Engle rule that the critical date was not the date of diagnosis, but the date “the disease or condition manifested itself,” and noted that “[t]he context involved a class membership cutoff date rather than a limitations date, but Florida’s decisional law regarding so-called ‘creeping diseases’ such as asbestosis or silicosis is consistent with that formulation.” Frazier, 89 So.3d at 944. Applying the definition of “manifestation” set out in Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932 (Fla.2000), the Frazier court held that symptoms such as shortness of breath and persistent coughing did not constitute a sufficient legal basis for initiating a lawsuit against a tobacco company, but that “the ‘manifestations’ that are pertinent are symptoms or effects that actually disclose that the prospective claimant is suffering from a disease or medical condition caused by tobacco use, and which are thus sufficient to assert a cause of action against the responsible manufacturers.” Frazier, 89 So.3d at 945. The court further ruled that “[t]he issue was not whether Ms. Frazier ‘had’ the creeping, stealthy disease of COPD/emphysema ... the issue was whether she knew, or reasonably should have known, enough to permit her to commence a non-frivolous tort lawsuit against the appellees on the basis of those physical, observable, patent symptoms and effects (‘manifestations’) before that date.” Frazier, 89 So.3d at 946.

Applying the reasoning in Frazier, we conclude that because Mr. Castleman did not attribute his illnesses to his history of smoking until 1998, he was not aware of sufficient facts to permit the filing of a non-frivolous tort lawsuit against the tobacco company before 1998. It follows that his conditions had not “manifested themselves” as tobacco-related illness for purposes of Engle class membership on or before the cutoff date of November 21, 1996. Because the Castlemans did not meet the deadline to qualify for Engle class membership, their lawsuit was barred by the statute of limitations. The summary judgment for R.J. Reynolds is

AFFIRMED.

VAN NORTWICK and ROBERTS, JJ., concur.

      . In Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006), the Florida Supreme Court recognized a class of litigants: Florida citizens and residents and their survivors "who have suffered, presently suffer, or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” Engle, 945 So.2d at 1256.

      . Individuals fitting the Engle class description were also eligible to enjoy the benefit of res judicata on several findings of fact common to the members’ claims {“Engle Phase I findings” — see Engle v. Liggett Group, Inc., 945 So.2d at n. 4).


text:
    Bonnie BERGSTEIN, Appellant, v. PALM BEACH COUNTY SCHOOL BOARD and F.A. Richard & Associates, Inc., Appellees.
    No. 1D11-5035.
    District Court of Appeal of Florida, First District.
    Aug. 17, 2012.
    Kenneth B. Schwartz of Kenneth B. Schwartz, P.A., West Palm Beach, for Appellant.
    John B. Clarke of Clarke & Platt, P.A., West Palm Beach, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) finding the parties’ disagreement regarding payment of outstanding bills for medical care to be a reimbursement dispute over which she has no jurisdiction, on the authority of Avalon Ctr. v. Hardaway, 967 So.2d 268, 271 (Fla. 1st DCA 2007). We agree, and hold that assertion of this jurisdictional defense (codified at section 440.13(ll)(c), Florida Statutes (1994)) is a de facto concession by the Employer/Carrier (E/C) that the services or products billed were provided by an authorized provider for compensable injuries “in accordance with” or “pursuant to” chapter 440, Florida Statutes, so as to insulate a claimant from financial liability for such charges.

Here, the E/C’s defense to this claim for payment of bills was that some bills had been paid, others were duplicative, and still others had not been properly submitted to the carrier for payment. In presenting this defense, the E/C represented to the JCC that the outstanding bills were from authorized medical providers for compensable conditions, and the dispute about their payment does not implicate Claimant but is between only itself and the medical providers. The E/C’s representation was a binding legal concession, by operation of section 440.32(3), Florida Statutes, and it waived any challenge to the medical necessity of the care such as was asserted in Williams v. Triple J Enter prises, 650 So.2d 1114 (Fla. 1st DCA 1995). Thus, if any entity is financially responsible for these disputed bills, it is the carrier (per section 440.13(14)(a), Florida Statutes (1994)), and Claimant is thereby insulated from financial responsibility (per section 440.13(3)(g), Florida Statutes (1994)). We now hold that any E/C asserting this jurisdictional defense is conceding that, if any entity is financially responsible for the disputed bills, it is the carrier and not the claimant.

To the extent Claimant argues the JCC’s order lacks sufficient findings of fact or ultimate fact to support the ruling, we disagree; the operative finding here, premised on the affirmative averments made by the E/C, is contained in the order: the dispute is a reimbursement dispute. It follows from that finding, though, that section 440.13(3)(g) insulates Claimant from financial responsibility for the disputed bills.

AFFIRMED.

PADOVANO, THOMAS, and CLARK, JJ., concur.


text:
    John Horace MALONE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1968.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2012.
    Rehearing Denied Sept. 4, 2012.
    John Horace Malone, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412 (Fla.2012).

PADOVANO, THOMAS, and CLARK, JJ., concur.