PR MARKETING GROUP v. GTE Florida, Inc.
| Decision Date | 20 August 1999 |
| Docket Number | No. 98-02561.,98-02561. |
| Citation | 747 So.2d 962 |
| Parties | P.R. MARKETING GROUP, INC., and World Financial Services, Inc., d/b/a The Mortgage Lending Group, Appellants, v. GTE FLORIDA, INC., and State of Florida, Department of Revenue, Appellees. |
| Court | Florida District Court of Appeals |
F. Wallace Pope, Jr., and Jonathan S. Coleman of Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A., Clearwater, for Appellants.
Anthony P. Gillman, Tampa, and Marvin E. Barkin and Lansing S. Scriven of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Tampa, for Appellee GTE Florida, Inc. and Robert A. Butterworth, Attorney General, and Jarrell L. Murchison, Assistant Attorney General, Tallahassee, for Appellee Department of Revenue.
The appellants, P.R. Marketing Group, Inc., and World Financial Services Inc., appeal the trial court's nonfinal order denying their motion to certify as a class. Based on the Florida supreme court's recent decisions in Pub. Medic. Assistance Trust Fund v. Hameroff, 736 So.2d 1150 (Fla.1999), Miami Tiresoles, Inc. v. Dep't of Revenue, 732 So.2d 322 (Fla.1999), and Dep't of Revenue v. Nemeth, 733 So.2d 970 (Fla.1999), we must affirm.
The appellants filed a complaint against GTE Florida (hereinafter "GTE") and the State of Florida, Department of Revenue (hereinafter "DOR"), alleging that GTE charged an improper sales tax for calls and services, then remitted that tax to the DOR. Specifically, the appellants alleged that GTE collected more sales tax than the law allows by improperly using the "bracket method" of calculating sales tax on long distance calls, thereby overcharging its customers. Additionally, the appellants claimed that GTE charged its customers a tax of seven percent on calls, instead of six percent, which the appellants alleged would have been the correct percentage.
The appellants sought to certify their action as a class action with the plaintiff class represented by all present, past, and future customers of GTE whose calls were improperly taxed. The appellants attempted to include all Florida local and long distance telephone companies as the defendant class, with GTE as its class representative. GTE and the DOR filed motions to dismiss the appellants' complaint. GTE stated that the relief appellants requested must come from the DOR, while the DOR asserted that it must come from GTE. The trial court issued an order granting in part both motions to dismiss, stating that the appellants had not exhausted their administrative remedies regarding the refund of erroneously collected taxes.
A motion for reconsideration was filed by the appellants stating that, based on depositions of representatives from DOR, the appellants had no further administrative remedy available to them. The trial court denied the appellants' motion for reconsideration.
The appellants then applied for a tax refund on behalf of their proposed class, which the DOR denied in full. After the refund was denied, the appellants filed a motion to reinstate causes of action and to certify the plaintiff class. A hearing was held on both motions.
After the hearing, the trial court issued an order granting the appellants' motion to reinstate the causes of action. However, the trial court denied the appellants' motion to certify as a class.
Even though the appellants P.R. Marketing Group and World Financial Services applied for a tax refund on behalf of the entire proposed class, the trial court treated the DOR's denial of the application as if P.R. Marketing Group and World Financial Services filed the claim solely for their individual refund and not on behalf of the proposed class. Therefore, the trial court stated, because the appellants P.R. Marketing Group and World Financial Services had applied for and been denied a refund, they could continue to pursue their individual claim, while others similarly situated must each make a refund application to the DOR and be denied that refund in order to be represented in any future class action suit. The appellants filed a notice of appeal from the trial court's nonfinal order, which in part denied the motion to certify as a class. Pursuant to Florida Rules of Appellate Procedure, 9.130(a)(3)(C)(vii), we have jurisdiction.
The trial court based its decision on the holding in State ex rel. Devlin v. Dickinson, 305 So.2d 848 (Fla. 1st DCA 1974). The named appellants in Devlin were tenant-stockholders in their respective cooperative apartment corporations prior to October 1, 1970. Id. at 849. All named appellants paid a documentary stamp tax and sought a refund from the DOR. Id.
The named appellants attempted to certify all tenant-stockholders of cooperative apartment corporations, even those who had not applied for a refund of the documentary stamp tax. Id. The trial court granted the appellees' motion to strike from appellants' pleading all references to a class action. The First District reversed the trial court's order as it related to the pleading references to a class action, but limited its holding by stating:
However, Florida law requires a taxpayer to apply for a refund of illegally imposed taxes within a certain time period and unless this is done, no refund is available. F.S. § 215.26. Thus, only those who applied for a refund are entitled to be represented in the class action herein.... We thus reverse that portion of the order appealed herein which struck all class action allegations from the pleadings below and remand with instructions to limit the class represented to those who have paid the tax applied for a refund and were denied such a refund.
Following the Devlin case, the trial court in this case concluded that all potential members of the class must first comply with the administrative procedures for acquiring a tax refund before they can be certified as a class. See § 215.26, Fla. Stat. (1997). According to the trial court, the appellants did not present any evidence that other potential members of the class applied for a refund pursuant to the statute, and therefore, the motion to certify as a class was denied. Nonetheless, appellants P.R. Marketing Group and World Financial Services were allowed to reinstate their suit, since they had applied for the refund. In Dep't of Revenue v. Kuhnlein, 646 So.2d 717 (Fla.1994), certain Florida residents challenged the constitutionality of an impact fee imposed on cars purchased out of state and later registered in Florida. The state contended that the class action was barred because none of the class representatives had applied for a refund pursuant to sections 26.012(2)(e) and 215.26, Florida Statutes (1993). Id. The court stated:
We also do not believe there is any requirement that the plaintiff must pay the fee or request a refund, at least in the present case. The fact that these plaintiffs face penalties for...
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