Ahearn v. Mayo Clinic

• Decision Date: 06 November 2015
• Docket Number: No. 1D14–4256.,1D14–4256.
• Parties: Shawn AHEARN, on behalf of Himself and All Others Similarly Situated, Appellant, v. MAYO CLINIC, A Florida Corporation; Mayo Clinic Jacksonville, A Florida Corporation, Appellees.
• Court: Florida District Court of Appeals

180 So.3d 165

Shawn AHEARN, on behalf of Himself and All Others Similarly Situated, Appellant,

v.MAYO CLINIC, A Florida Corporation; Mayo Clinic Jacksonville, A Florida Corporation, Appellees.

No. 1D14–4256.

District Court of Appeal of Florida, First District.

Nov. 6, 2015.

Rehearing Denied Dec. 18, 2015.

Bryan S. Gowdy of Creedy and Gowdy, P.A., Jacksonville, for Appellant.

John A. Tucker of Foley & Lardner, LLP, Jacksonville; James A. McKee and Benjamin J. Grossman of Foley & Lardner, LLP, Tallahassee; Marjorie C. Allen of Mayo Clinic Jacksonville, Jacksonville, for Appellees.

BILBREY, J.

Appellant, Shawn Ahearn, individually and as a putative class representative, appeals the final summary judgment issued by the trial court which found that all of the causes of action asserted in Ahearn's complaint were moot as to him individually, and as such, he lacked standing to assert claims for a similarly situated class. We agree with the trial court that certain claims were rendered moot when, after Ahearn commenced litigation but before a class was certified, the Mayo Clinic of Jacksonville and Mayo Clinic of Florida (collectively "Mayo Clinic") waived Ahearn's balance owed to Mayo Clinic and offered to pay attorney's fees. However, we do not agree that the claim for declaratory and injunctive relief by Ahearn as an allegedly aggrieved party under the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), section 501.211(1), Florida Statutes, was extinguished by the Mayo Clinic's actions. We therefore reverse that portion of the final summary judgment.

Background and the Complaint

On September 14, 2013, Ahearn received emergency medical treatment at the Mayo Clinic in Jacksonville. Because he was not covered by health insurance or any governmental healthcare program, Ahearn was personally billed $5,953.26 for the treatment he received. On December 23, 2013, Ahearn, through counsel, filed a complaint raising four causes of action premised in the allegations that Mayo Clinic charged him and other uncovered patients rates in excess of the reasonable value of the services provided and substantially higher than rates Mayo Clinic charges those patients covered by insurance or a governmental healthcare program.¹

On March 14, 2014, Mayo Clinic, while continuing to deny fault, informed Ahearn that it was waiving the $5,623.26 which Ahearn still owed for the treatment following his payment of $330.00.² Mayo Clinic then moved for summary judgment and agreed to pay Ahearn's attorney's fees and costs, or allow the trial judge to assess them if an agreement could not be reached. At no time before the final summary judgment issued did Ahearn attempt to certify the class pursuant to rule 1.220(d), Florida Rules of Civil Procedure.

Summary Judgment and Standard of Review

Summary judgment "shall be rendered forthwith if the pleadings and summary evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(c). On an appeal of the entry of summary judgment "[w]e view the facts in a light most favorable to the nonmoving party and conduct a de novo review of such a judgment." Maronda Homes, Inc. of Fla. v. Lakeview Reserve Homeowners Ass'n, Inc., 127 So.3d 1258, 1268 (Fla.2013).

Breach of Contract Count

Ahearn's first count was for breach of contract. As to Ahearn individually, this became moot upon Mayo Clinic's waiver and agreement to pay attorney's fees. "An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect." Godwin v. State, 593 So.2d 211, 212 (Fla.1992) (citing DeHoff v. Imeson, 153 Fla. 553, 15 So.2d 258 (1943) ). On appeal, Ahearn raises the possibility that he might face some unspecified tax liability based on Mayo Clinic's waiver of the balance of the bill. However, he did not assert any claim below for possible tax liability or attempt to amend his complaint to assert such a claim. Since Ahearn did not plead these special damages, they are not recoverable. See Precision Tune Auto Care, Inc. v. Radcliffe, 804 So.2d 1287, 1292 (Fla. 4th DCA 2002) ("Evidence of special damages is inadmissible if those damages are not pled in the complaint."); see also Fla. R. Civ. P. 1.120(g).

Additionally, the agreement by Mayo Clinic to pay reasonable attorney's fees and costs, or submit the issue to the trial judge, made the fees and costs issue moot. See Ramon v. Aries Ins. Co., 769 So.2d 1053 (Fla. 3d DCA 2000). In discussing whether an adjudication on the merits was complete even though a determination of the amount of attorney's fees due remained, the United States Supreme Court has stated,

As a general matter, at least, we think it indisputable that a claim for attorney's fees is not part of the merits of the action to which the fees pertain. Such an award does not remedy the injury giving rise to the action, and indeed is often available to the party defending against the action.

Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988).

As no further relief could be granted to Ahearn individually on the breach of contract claim, it was therefore appropriate to grant summary judgment as to Ahearn individually on that count. See Cox v. CSX Intermodal, Inc., 732 So.2d 1092 (Fla. 1st DCA 1999). "A moot case generally will be dismissed." Godwin v. State, 593 So.2d at 212.

Ahearn asserts that even if the breach of contract cause of action as to him individually was rendered moot by the actions of Mayo Clinic, he still had standing to assert breach of contract as a class representative. Ahearn contends that Mayo Clinic should not benefit from its action of "picking off" a putative class representative. Ahearn cites to various federal cases to support his proposition.³

A majority of federal cases seems to support Ahearn's argument that a defendant cannot "pick off" a putative class representative by rendering moot the individual claim, even if the class has not yet been certified. However, we are compelled to follow Florida Supreme Court precedent which sets forth a bright-line rule. In Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 116 (Fla.2011), the Court held before a class can be certified the putative class representative must have standing and "[t]o satisfy the standing requirement for a class action claim, the class representative must illustrate that a case or controversy exists between him or her and the defendant, and that this case or controversy will continue throughout the existence of the litigation." In Sosa, the putative class representative had an existing case or controversy because he had a claim for an actual injury. Id. at 117. Since Ahearn no longer has a claim for individual damages for breach of contract, standing to serve as a class representative on that count is lacking as he has no case or controversy as to that claim.

Admittedly, Sosa did not involve the picking off of a putative class representative. However, other Florida district courts of appeal faced with the issue have held that if the claim of the putative class representative is extinguished before class certification, then the putative representative cannot bring a claim on behalf of a class. For instance, in Taran v. Blue Cross Blue Shield of Florida, Inc., 685 So.2d 1004 (Fla. 3d DCA 1997), plaintiffs, individually and as putative class representatives, brought statutory claims for allegedly being charged excessive health insurance premiums. After suit was filed, Blue Cross issued refunds to the plaintiffs, thereby extinguishing their individual causes of action and picking them off. Id. at 1007. "[I]f none of the named plaintiffs purporting to represent a class establishes a requisite of a case or controversy with the defendant, none may seek relief on behalf of himself or any other member of the class." Id. at 1006 (quoting O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674, 682 (1974) ) (footnote and citations omitted). See also Chinchilla v. Star Cas. Ins. Co., 833 So.2d 804 (Fla. 3d DCA 2002) ; Graham v. State Farm Fire & Cas. Co., 813 So.2d 273 (Fla. 5th DCA 2002) ; Syna v. Shell Oil Co., 241 So.2d 458 (Fla.1970).⁴

Implied Covenant of Good Faith and Fair Dealing

Ahearn's second count was for breach of the implied covenant of good faith and fair dealing. "Florida contract law does recognize an implied covenant of good faith and fair dealing in every contract." QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass'n, Inc., 94 So.3d 541, 548 (Fla.2012). However, "a duty of good faith must relate to the performance of an express term of the contract and is not an abstract and independent term of a contract which may be asserted as a source of breach when all other terms have been performed pursuant to the contract requirements." Hospital Corp. of Am. v. Florida Med. Ctr., Inc., 710 So.2d 573, 575 (Fla. 4th DCA 1998).

Since Ahearn's individual breach of contract claim was extinguished, any claim for breach of the implied covenant of good faith and fair dealing is also extinguished. See Insurance Concepts & Design, Inc. v. Healthplan Services, Inc., 785 So.2d 1232, 1234 (Fla. 4th DCA 2001) ("[A] claim for breach of the implied covenant of good faith and fair dealing cannot be maintained under Florida law absent an allegation that an express term of the contract has been breached."). Likewise, since Ahearn's individual claim was extinguished before a class was certified, under Sosa and Taran, Ahearn cannot purport to represent the class on claim of breach of the implied covenant of good faith and fair dealing without having a case or controversy of his own.

Florida Deceptive and Unfair Trade Practices Act Claim

Ahearn's third count alleged violations of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), sections 501. 201 through 501.213, Florida Statutes. In that count, Ahearn sought monetary damages, and declaratory and...