Olen Properties Corp. v. Moss

• Decision Date: 16 April 2008
• Docket Number: No. 4D07-501.,4D07-501.
• Citation: 981 So.2d 515
• Parties: OLEN PROPERTIES CORPORATION and Olen Residential Realty Corporation, Appellants, v. Samantha S. MOSS, as Class Representative of those similarly situated, Appellee.
• Court: Florida District Court of Appeals

981 So.2d 515

OLEN PROPERTIES CORPORATION and Olen Residential Realty Corporation, Appellants, v. Samantha S. MOSS, as Class Representative of those similarly situated, Appellee.

No. 4D07-501.

District Court of Appeal of Florida, Fourth District.

April 16, 2008.

Rehearing Denied June 3, 2008.

Henry Trawick of Henry Trawick, P.A., Sarasota, and Sheridan Weissenborn of Papy Weissenborn Vraspir Paterno & Puga, P.A., Coral Gables, for appellants.

Jane Kreusler-Walsh and Barbara J. Compiani of Kreusler-Walsh, Compiani & Vargas, P.A., Joseph Johnson and Theodore Babbitt of Babbitt, Johnson, Osborne & LeClainche, P.A., and Rod Tennyson of Rod Tennyson, P.A., West Palm Beach, for appellee.

POLEN, J.

Appellants, Olen Properties Corporation and Olen Residential Realty Corporation, appeal the trial court's non-final order finding that a case or controversy existed between Appellants and Appellee Samantha S. Moss and in certifying a class action. Moss was a tenant in one of Appellants' apartment complexes who exercised her right of early termination of her lease and was charged an early cancellation fee amounting to one month's rent. Moss paid the charge and filed a class action complaint alleging that Appellants' lease contained fee provisions violating Florida law, specifically Chapter 83, as the charges did not take into consideration when the apartment was re-rented, resulting in greater damages to the landlord than actually sustained. The complaint also alleged that the liquidated damages clause found in the lease violated Florida law and common law because the lease also allowed the landlord the possibility of recovering contractual damages. The trial court denied Appellants' motion to dismiss the complaint and certified the class. Appellants argue the trial court erred in certifying the class as Moss has no standing and did not prove the elements necessary for class certification. We disagree with Appellants' arguments, affirm the trial court's holding and write to explain our holding.

Appellants first argue that Moss did not have standing to bring the action. "The issue of standing is a threshold inquiry which must be made at the outset of the case before addressing whether the case is properly maintainable as a class action." Ferreiro v. Philadelphia Indem. Ins. Co., 928 So.2d 374, 376 (Fla. 3d DCA 2006). "To satisfy the requirement of standing, the plaintiff must show that a case or controversy exists between the plaintiff and the defendant, and that such case or controversy continues from the commencement through the existence of the litigation." Id. at 377. In other words, individuals "must allege some threatened or actual injury resulting from the putatively illegal action." Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). Moss presented sufficient evidence that a case or controversy existed to allow the trial court to find Moss had standing.

The lease in question contained the following provision titled Cancellation Fee:

Provided RESIDENT has not been in default hereunder during the term of this lease, and provided that RESIDENT strictly complies with the provisions of this paragraph, and has completed at least seven (7) months of occupancy, RESIDENT may cancel this lease before the expiration of the initial term by:

(a) ensuring that MANAGEMENT receives 30 days written notice of cancellation, all before the first day of the month of RESIDENT's proposed cancellation; plus

(b) paying on the date RESIDENT gives written notice of cancellation, all monies due through the date of proposed move-out (the last day of the month of cancellation); plus

(c) paying on the date RESIDENT gives written notice of cancellation, an additional amount equal to one month's rent as liquidated damages; plus

(d) returning the apartment in clean, ready-to rent condition.

RESIDENT's exercise of this provision shall not relieve RESIDENT of any responsibilities regarding damage to the apartment. If the above conditions are met, RESIDENT will be entitled to the return of their security deposit described above less any damages in excess of normal wear and tear.

Moss brought the class action complaint, asserting this was an illegally assessed fee, which she was charged, and that Appellants had also illegally assessed fees to tenants who failed to give notice when leaving at the expiration of their leases.

In determining whether a case or controversy exists, the trial court is not required to determine the merits of the case, but rather is to determine whether sufficient facts have been alleged to establish that there is an issue to be decided. We find Moss has met this burden and affirm the trial court's holding regarding standing. The complaint alleged that Appellants illegally assessed fees to tenants who either terminated their leases early or who left at the end of their lease but failed to give a 30-day notice that they were not renewing their lease. The complaint alleged these policies violated Florida law and public policy, including the Landlord-Tenant Act, the Florida Consumer Collection Practices Act (FCCPA), and the Florida Deceptive and Unfair Trade Practices Act (FDUPTA). Moss fell into the first category, arguing she was charged an illegal cancellation fee that she was forced to pay or be faced with the consequence of being reported to a collections agency. Therefore, Moss fell with the category of individuals having a case or controversy regarding this issue.

Appellants also argue the trial court erred in certifying the class below because Moss failed to prove the elements necessary for certification. A trial court's certification of a class action is reviewed using an abuse of discretion standard. Equity Residential Props. Trust v. Yates, 910 So.2d 401, 403 (Fla. 4th DCA 2005). Fla. R. Civ. P. 1.220(a) provides:

Prerequisites to Class Representation. Before any claim or defense may be maintained on behalf of a class by one party or more suing or being sued as the representative of all the members of a class, the court shall first conclude that (1) the members of the class are so numerous that separate joinder of each member is impracticable, [numerosity] (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class, [commonality] (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class, [typicality] and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class [adequacy].

Fla. R. Civ. P. 1.220(a). The plaintiff must also prove predominance of common questions over individual ones and superiority of class representation over other available methods of adjudication.

A class action cannot be certified until the trial court is satisfied "after a rigorous analysis" that all the requirements of Rule 1.220 have been satisfied. Earnest v. Amoco Oil Co., 859 So.2d 1255, 1258 (Fla. 1st DCA 2003); Seven Hills, Inc. v. Bentley, 848 So.2d 345, 352 (Fla. 1st DCA 2003). A "rigorous analysis" requires the Court to look beyond the pleadings to determine whether the claims and proof are amenable to class treatment, because certification of a class "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 suit." Baptist Hosp. of Miami, Inc. v. Demario, 661 So.2d 319, 321 (Fla. 3d DCA 1995).

Welcome v. Arvida Cmty. Sales, Inc., No. 02-01279-CA, 2004 WL 2340249 at *3 (Fla. Cir.Ct. Sept. 13, 2004). We find Moss presented sufficient evidence of each element to uphold the trial court's class certification and briefly deal with each element below.

A. Numerosity

Rule 1.220(a)(1) states that before a case may be certified as a class action, the court must conclude that "the members of the class are so numerous that separate joinder of each member is impractical." Courts have generally held that this rule imposes two distinct, but related requirements for class certification. First, the class definition must permit the court to reasonably ascertain whether or not any particular individual is a member of the...