Home   Federal Cases   State Cases   News   Search   Cart   Log In 
 
Search 591,341 Cases and Articles on TJV!
 
Florida State Categories







Tire Kingdom, Inc. v Dishkin

Case No. 3D08-2088 (FL Dist. 3 Ct. App., Jul. 6, 2011)

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

FACTUAL BACKGROUND AND PROCEDURAL HISTORY



A. The Class Representatives



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

1. Aimee Dishkin



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

["Invoice"]



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

 

Judge(s): Frank A. Shepherd
Jurisdiction: Florida Court of Appeals, Third District
Related Categories: Civil Procedure
 
Trial Court Judge(s)
Thomas Wilson, Jr.

 
Court of Appeals Judge(s)
Angel Cortiñas
Leslie Rothenberg
Frank Shepherd

 
Appellant Lawyer(s) Appellant Law Firm(s)
Michael Chavies Akerman Senterfitt LLP
Ryan Roman Akerman Senterfitt LLP
Daniel Samson Greenberg Traurig LLP
Elliot Scherker Greenberg Traurig LLP
Scott King Thompson Hine LLP

 
Appellee Lawyer(s) Appellee Law Firm(s)
Unlisted Unlisted Baron & Herskowitz
Seth Miles Grossman Roth PA
Stephen Rosenthal Podhurst Orseck PA

 

CUSTOM EMAIL ALERTS!

With your FREE registration, you can select an unlimited number of Alert categories for daily, weekly or monthly deliveries of the Federal and State Cases most relevant
to you!

Click Here to sign up.

 



Click the maroon box above for a formatted PDF of the decision.
4 responsibilities included advertising and marketing. on february 25, 2007, james soper went to a tire kingdom store located at charges, while others were given only the total cruise price. in every instance, the also appears in his estimate, sans, of course, the advice "do not pay from this twelve-point type: a shop fee, in coupon advertisements. he reaches this conclusion based upon his "people who went to tire kingdom and . . . requested a discount based upon although the store patronized by dishkin had at least four signs prominently all wheel 11 legal issues, however variously and creatively they might be couched, does not cleaners, floor mats, seat covers, steering wheel covers, and minor hardware items. between their claims and the class's claims, see kendrick, 822 so. 2d at 517. on id. at 53-54. the same reasoning pertains here. in fact, james soper, albeit not a common sense understanding, consistent with company policy, that the full price service desk rejected the coupon. soper then spoke with the store manager, customer service area to inform tire kingdom customers about these charges. dishkin testified that while she "looked at" upon our decision in latman v. costa cruise lines, n.v., 758 so. 2d 699, 703 named plaintiffs, see kia motors, 985 so. 2d at 1133 n.3, and the relationship (emphasis added). including stints with several of tire kingdom's competitors where his factual background and procedural history each and every element required by florida rule of civil procedure 1.220. terry we agree with the trial court that the plaintiffs presented sufficient evidence 822 so. 2d 516, 517 (fla. 3d dca 2002). on this point, it is important to we find latman inapplicable. a very different case is presented where, as third district court of appeal certain services. the purpose of the fee is to recover some of the costs of motor its own website, in february 2006. for all services for which tire kingdom the touchstone of class certification, dating to the origins of the device, see counts of the complaint, the same counts which the trial court then certified for suffice to meet the commonality element of our class action rule. see wal-mart act or unfair practice; (2) causation; and (3) actual damages, see rollins, inc. v. in the bottom left-hand corner of the estimate complex cases, such as this, where no one set of operative facts establishes adequately protect and represent the interests of each member of the were misleading or false as to any material fact; of the signs. while it is company practice to have customers sign an estimate form land rover. when soper arrived at the store, the salesperson at the customer had the service performed, and you said you were not sure. does this 2008). that holding controls here. the "evidence of commonality" advanced by the en banc majority of the united the fee was not a tax. full refund of the shop fee charged. the latter group would receive a computer- 16 entitled to a written estimate if my final bill 12 commercial customers did not use the defendants' service exclusively prescribed black bordered box7 store managers have no such discretion to discount or forgive shop fees or item number item description price extended for class certification . . . where the burden on appeal was the exact reverse of the sub-total...... 19.99 tire kingdom sells tires and provides automotive repair services. the store. the only record evidence of alvarez being at the customer service desk, make a number of individual inquiries to determine which potential environmental fee was added for the handling of hazardous products; explanation is pre-printed on both forms and thus appears on the form whether or defendants). a grant of certification considerably expands the dimensions of the for this reason, we discuss the law of fdutpa but intend its principles to apply not to focus on the merits of the case, but only on the requirements of the rule, see customer waiting room for about thirty minutes while his service was being 2 on the merits of the case at the class action stage of the litigation. this alone is a legal justification for compensating the latter group, or "subclass" as characterized in, alvarez would give him the discount anyway. clearly appearing at both the top and foot of the invoice: "*charge 3 analysis, the elements of the class action rule have been satisfied. see miami fla. r. civ. p. 1.220(a). in addition to satisfying these requirements, a party this language is prescribed by section 559.905(h) of the florida motor vehicle section 559.905(2), florida statutes (2006), directs that if the repair cost: defendant's wrongdoing and, if so, what is the proper estimate for the services she received in this case. expectation of a `minimal level of interest in the action.'" massengill, 88 f.r.d. at as the repair costs do not exceed $___. the shop wrangler. dishkin testified that prior to going to the store, she printed a coupon pricing" with the goal, as store manager alvarez testified, to do whatever is proof to be made based on alleged company-wide pervasive schemes and business of the trial judge expected in these important decisions be placed in jeopardy. the inclusion of a shop fee when such shop fee was not disclosed in the fee charge of ten percent of the undiscounted retail price of the service. either through the omission of the shop fee in the advertisements or being charged provided to her upon completion of the service itemized the charges to her account written notice conspicuously disclosing, in a separate, blocked having seen a coupon containing no reference to a shop fee, but were charged a appearing on her invoice. the shop fee charge on her invoice was ten percent of coupon to a tire kingdom store, but also all customers who "benefited" from such kingdom's electronically stored invoices.13 24 appeal affirmed, stating: were misleading," "likely to deceive," "violated miami-dade ordinances and/or jurisdictions as well as cases decided by the courts of this state, "[w]e held that sufficient ground upon which to reverse the class determination. adjustment, and coupon account requirements to be "impossible of enforcement" in sub-total...... 19.99 circumstances, the trial court reasoned that it would be necessary to occasionally has failed to include this disclosure in an advertisement or discount (citing gen. tel. co. of sw. v. falcon, 457 u.s. 147, 161 (1982)).10 anticipated amount of any charge levied as a shop fee or hazardous waste removal affixed to the wall in the same area, and a fourth perched on a stand in the sbs standard wheel bal 35.96 tire kingdom website offering tire maintenance service (four-tire rotation, air eduardo alvarez, who gave him the discount anyway based upon a generic code tire kingdom is to afford store managers and salespersons a "free range on repair act and the miami dade vehicle repair ordinance. see § 559.921, fla. 9 evidence does not support such a conclusion. see safeway premium fin. co. v. action as a class action. defendant, jiffy lube, "offered a service known as the `signature service oil only those consumers who "were influenced in some way by the port charges," done on his vehicle was performed by land rover fort lauderdale, the dealer mart, 2011 wl 2437013, at *16. rejecting the use of such conclusory statements the florida motor vehicle repair act requires all written estimates for 7a wright and miller & kane, federal practice & procedure § 1751 (2005), is that liability, where no single proximate cause applies to each defendant, and where 1. aimee dishkin approved the equivalent discount on soper's service before it commenced. h. whether defendant used or employed unconscionable alvarez testified he told soper that the coupon "did not apply," but that if he came the cost of the service. summarized the "common issues" justifying class treatment of the case as follows: other available methods for the fair and efficient adjudication of the controversy. repair work when there was a material contingency, affixed to a wall in the same area and a third perched on a stand in the customer individually proving each class member's unique claim is legal error that cannot class members had actual knowledge that the fee was not a tax. section, only the following statement, in capital letters of at least these customers must have known that the environmental fee the special credit: (altenbernd, j. concurring); city of tampa v. addison, 979 so. 2d 246, 252 (fla. estimate, namely the "*charge represents cost/profit to the found to be adequate for those that differ significantly. id. the plaintiffs in this claim for damages under fdutpa. such a claim requires proof of: (1) a deceptive vehicle services; certify class actions. see id. at 1141. typicality--it is unnecessary for us to consider any of the subsection (b) whether the total price was acceptable. in opposing class certification, the cruise environmental fee on written estimates exceeding $100. in these to the store at the time of service. the coupon did not mention shop fees, making "class action treatment particularly appropriate" for this case. the to generate common answers apt to drive the resolution of litigation.'") (quoting the language, "plus shop fee" adjacent to the advertised price. another states, rule of civil procedure 1.220(b). tire kingdom does not challenge the time of service to receive a coupon discount, the rule is honored as much in the estimate appears the following itemization of anticipated services to be performed: the relevant subdivision of subsection (b) applicable to this case is subdivision payments...... 25.24- construction and application by analogy where appropriate. see powell v. river members." degnan, ronan e., foreward, adequacy of representation in class the class representatives, by proving their own individual cases, necessarily will mart, 2011 wl 2437013, at *7. rather, "[satisfaction of the commonality coupon applied to "most cars and light trucks." the coupon did not mention afforded: to a customer who merely asks for or demands the "lowest [available] to satisfy this element. the record reflects the plaintiffs in this case have no direct with a code so tire kingdom can monitor the effectiveness of its advertising. in fact, soper was not eligible to use the coupon because his vehicle was a prescribed language. see supra note 5. promotional materials disseminated to the public. he admits that tire kingdom a shop fee based on the retail price." with these postulates in mind, the trial court contemporaneously with the offer in a manner clearly auto. retail, inc. v. baldwin, no. 3d10-2136 (fla. 3d dca june xx, 2011); performed. like dishkin, soper testified he did not notice the "shop fee" charge on the invoice until he got home that day, and did not complain to the store. thirty disposal." § 559.905(1)(h), fla. stat. (2006). tire kingdom requires every repair of the class [typicality], and (4) the representative party can fairly and king (dayton, ohio), for appellant. 2 i. whether the members of classes have been injured that entailed in an ordinary private lawsuit. it is thus often stated that a class action s.w. 132nd street in miami, florida, to obtain an oil change on her 1997 jeep 7 to satisfy the commonality requirement of federal rule of civil procedure and regulations are met as well. although he has no formal training in advertising, be impractical because there would be many differences in the facts total credits.. 15.97- that their claims and injury are identical to the claims of other class members." reality, it was largely a hidden mark-up to the cruise price. in some cases, cruise 23(a)(2), justice scalia wrote, "[commonality] does not mean merely that [the this element, the trial court concluded the plaintiffs "allege[d] and . . . established vii.'" wal-mart stores, inc., 2011 wl 2437013, at *6 (quoting dukes v. wal- on which tire kingdom relies to a similar fdutpa scenario. in egwuatu, the contingency, condition, or limitation being stated companies they were doing business with did not charge it. hence, damages and are entitled to restitution as a result of this element of class certification entails proof of a "common right of recovery invoice he received is identical in form to that received by dishkin seven months podhurst orseck and stephen f. rosenthal; grossman roth and seth miles; l. braun, p.a. v. campbell, 827 so. 2d 261, 265 (fla. 5th dca 2002). the rule 17 tire kingdom's electronically stored service invoices. remarkably, all tire class [adequacy]. lawsuit (for it may sound the "death knell" of litigation on the part of plaintiffs, or the particulars of each plaintiff's experience with tire kingdom are as earlier at a different store. the same itemized list of charges on soper's invoice not final until disposition of timely filed motion for rehearing. (2006), the florida motor vehicle repair act, §§ 559.901-.9241, fla. stat. (2006), rule 1.220(a)(4) requires the class representatives to demonstrate if the to decertify the class. conversations with tire kingdom employees--would have to be explored to competitor's price; to reward customer loyalty or satisfaction; or simply because butland, 951 so. 2d 860, 869 (fla. 2d dca 2006). for the class as certified, was not a tax. for example, they posted menu boards stating that the that a reasonable person would have relied on the representations." id. at 703. supporting the claims of the individual plaintiffs. this conclusion was 25 shepherd, j. 10 coupon. however, he believes the non-disclosure errors have been few in the print practices across tire kingdom. according to eduardo alvarez, his coral gables member in the amount of the full "shop charge" or "overcharge," levied against guarantee adequate representation. two grounds frequently employed to prove the cases for each one of the thousands of other members who may be invoice forms utilized by tire kingdom during the period relevant to this proposed where soper signed, there appears an "x" next to the line reading, "i do not hazardous material disposal charge, or any other charge, including taxes. tire high, see morgan v. coats, 33 so. 3d 59, 64 (fla. 2d dca 2010), satisfaction of they gave verbal explanations of the fee to customers who asked about case have failed in their obligation to demonstrate their sufficiency to maintain this j. whether the members of classes have sustained suggestion an estimate was presented prior to the beginning of his service,6 28 media and less than ten percent of internet postings. tire kingdom has available adversary system works well only when "[the] system is confident that the . . . rule. because we conclude the plaintiffs presented insufficient evidence to satisfy summary judgment was properly granted on this basis, that fact does not pretermit soper. both are practicing lawyers. both are social acquaintances of plaintiffs' 3 were likely to deceive consumers as to the complete questions" in this case are indistinguishable in kind from the common question practices unlawful.2 request a written estimate as long as the repair costs do counsel. special credit: 5.00- depositions, and the circuit court record. advertisement. exemplar coupons in the record indicate the company places the the invoice and signed it before paying for the service, it was not until that evening by the "imposition of a shop fee based upon a percentage of the retail price of the 2. james soper mart stores, inc., 603 f.3d 571, 612 (9th cir. 2010)), judgment reversed by wal- 26 accord kia motors am. corp. v. butler, 985 so. 2d 1133, 1138 (fla. 3d dca procedure § 1763 (2005). "coupon" class action by two classes of purchasers of tire kingdom automotive evade egwuatu because that decision "involved the review of a denial of a motion pz-34 rule 1.220(a)(3) requires the claims of the representative class members to repair services--one class of statewide customers and the other a miami-dade signed ___________ date __________ *ocb oil chg bulk oil 16.99 soper 9 experience--including the precise language of each advertisement, the class in line with modern practice and is based upon federal rule of civil procedure 23. likely to influence, persuade, or induce customers to shop fee anyway." see the fla. bar, 391 so. 2d 165, 170 (fla. 1981). we follow the federal vehicle services that cannot be charged individually, such as rags, solvents, commercial practices in its advertisement of its motor richard a. nagareda, class certification in the age of aggregate proof, 84 opinion filed july 6, 2011. florida law," or "[d]efendant initiated a deceptive marketing campaign," and trial court crossed that line in this case by reaching its own preliminary conclusions the "benefited" purchasers, described by counsel for appellees in their brief as procedure 1.220(b)(3). see 7a wright, miller & kane, federal practice & damages,"--while couched in soothing legal lexicon, are all questions that will be of the claims asserted by the plaintiffs do not have the same basic structure as those the trial court appears to reach this conclusion based upon the fact the same 10 12 individualized differences among the potential plaintiffs as to whether they paid g. whether defendant initiated a deceptive marketing a coupon. to capture the class, plaintiffs first propose to identify those purchasers this is not a case where the disputed issues are subject to being addressed on case, see browning v. angelfish swim sch., inc., 1 so. 3d 355, 360-64 (fla. 3d will exceed $100. based upon the same essential facts." state farm mut. auto. ins. co. v. kendrick, determine whether it may be maintained as a class action."), lest the cold neutrality service customer to sign an estimate prior to service, even when the cost of the c. whether defendant violated miami-dade ordinances she reviewed the invoice further and noticed the shop fee charge. she did not call change' for an advertised price of $27.99 plus an environmental fee, which was remember the class as proposed by the plaintiffs and certified by the trial court third, while it frequently is said that the threshold for commonality is not ranch prop. owners ass'n, 522 so. 2d 69, 70 (fla. 2d dca 1988). price" at the customer counter; a customer who states she came to the store n.y.u. l. rev. 97, 132 (2009)) (emphasis in wal-mart stores).12 disclosure near the advertised price for the service. however, the language of the of the representative party raises questions of law or fact common to the errors in this analysis are several. first, not only are the trial court's 976 so. 2d 50 (fla. 1st dca 2008), in which the trial court applied the principles members of the class. kia motors, 985 so. 2d at 1136. by way of contrast, in and easily understood by the customer; adequacy coupons for its services in its print media, direct mail, and internet advertising. it 20 upon some uniform action by safeway.). or complain to anyone about the charge. instead, she joined as a plaintiff in the we have for review a non-final order approving the prosecution of a burden in this case." but allowing so-called "common proof" to substitute for net amount... .00 each of these enactments makes unfair or deceptive acts or 18 limit our discussion to the commonality, typicality, and adequacy elements of the breach as in the observance at tire kingdom. "coupon discounts" regularly are passengers were given a separate breakdown for the cruise charge and the port same advertisements across miami-dade county and the state of florida," such overcharged for a service at tire kingdom by tire kingdom's kingdom's imposition of a shop fee based upon a percentage of the lines argued that because the total price was disclosed in advance of the purchase, ________________ the milieu in which it operates. from which he purchased the vehicle new in 2002. these invoices indicate soper or oral approval. 27 exclusively, but also did business with at least one other entity that charged a shop florida rule of civil procedure 1.220 was completely revised in 1980 to bring it added in varying amounts in a range of $1.00 to $2.50 per vehicle." id. at 51. the failure to adjust premium financing agreements for service overcharges was based (fla. 4th dca 2008); braun, 827 so. 2d at 267. alleges in her complaint, for which she seeks recovery, is the shop fee charge seeking class certification also must satisfy one of the three subdivisions of florida store uses a "generic code" to record every discount or price adjustment made by members of a class proceeding under [fdutpa] need not individually prove denied the plaintiff's motion for class certification on the ground there were makes clear that a trial court considering whether an action may be maintained is mpto tire promotion 1- 15.97- b. tire kingdom greenberg traurig, elliot h. scherker and daniel m. samson; akerman each member is impracticable [numerosity], (2) the claim or defense fdutpa class action. see rollins, inc., 951 so. 2d at 873-75. all taxes...... 1.65 each customer. we conclude the trial court abused its discretion in certifying the that "tire kingdom repeatedly and with only non-material variations published the baptist hosp. of miami v. demario, 661 so. 2d 319, 321 (fla. 3d dca 1995) although tire kingdom disputes the legal effect of the testimony, shop fees(*) 1.70 or by both. any and all residents of [florida][miami dade county] who were additionally, the trial court noted that some of the defendants' analysis of the certified class, the representation that might be given to the few will not be this, of course, flies in the face of a properly pled and proven consumer lawsuit, and commits the court and parties to much additional labor over and above that this court should be "bound by its precedent of latman." plaintiffs seek to the discounted price of the service, based upon a separate computerized review of fee. see supra note 8. ("`what matters to class certification . . . is not the raising of common the signature of "eddy," the name by which eduardo alvarez was known in the perhaps as a corollary, the accounting for coupon use throughout tire net amount... .00 although senior management might prefer that store managers kingdom is desultory at best. all tire kingdom discount coupons are imprinted will exceed $100, the repair shop shall present to the customer a class certification is a serious decision, often the defining moment in a had called the store on the prior thursday to ask whether he could use the coupon. where these forms are prepared, during the course of soper's service, was when he appeared to be a tax the company was collecting from consumers. the trial court the court concluded that an individualized inquiry would be required adjacent to the black-bordered box in the bottom right-hand corner of the grant of discounts and price adjustments on tire kingdom services. for example, windsor, 521 u.s. 591, 624-26 (1997)). in addition, inherent in this rule is "an form." an asterisk appearing after the phrase "shop fees" again directed soper to before providing service, dishkin testified she did not receive or sign a written contains four threshold requirements applicable to all class actions: conflict between the interests of the representatives and those of the class they seek determining such damages and restitution. customer: energy surcharges against wyndham international, also brought by plaintiffs' service is expected to fall below $100. for those services where tire kingdom classes. a detailed summary of the record is necessary to explain our decision. resulting damage in any individual case must . . . necessarily be a case-by-case plaintiff alleged the assessment of the fee was a deceptive trade practice, in that it experience with the defendants and whether that customer knew that otherwise--at a tire kingdom store and who were charged a shop fee, would be total charges.. 35.96 i understand that, under state law, i am commonality 4 plaintiffs simply cannot evade the decision in egwuatu v. south lubes, inc., determine tire kingdom's liability to each class member. latman represents the 2d dca 2007); samples v. hernando taxpayers ass'n, 682 so. 2d 184, 185 (fla. condition or limitation on the offer, without such actions, 60 calif l. rev. 705, 716 (1972). when, as in this case, the factual basis "[w]hether the members of the class have been injured . . . or sustained that omitted reference to a shop fee and then cross-check that data against tire posted in the public area of the store--two affixed to the customer counter, one b. whether defendant's representations and conduct 14 disclosures employed by tire kingdom on its coupons and in its advertisements parties seeking class certification have the burden of pleading and proving calculated refund of any amount charged as a shop fee in excess of ten percent of 19 13 fee together with the explanation, "this charge represents the costs and profits to 14 charges a shop fee or hazardous waste disposal fee, it is tire kingdom's policy to member's awareness of tire kingdom's shop-fee signage, and the class member's soper paid $25.24 for the service he received. while eschewing the as follows: in the present case, the trial court concluded that class litigation would please read carefully, check one of the defendants charged was not a tax, because the other oil change "plus shop fee at 10%" at a similar location on that particular coupon. (concluding latman inapplicable to dispute over property-tax charges in lease advertisement that plaintiff used or benefited from; by tire class action. see infra pp. 10-11. states court of appeals for the ninth circuit in wal-mart stores as being ("we find nothing in either the language or history of rule 23 that gives a court the class definitions are identical, except as to geographic scope: does not appear to be uniform. for example, one of the record exemplars includes dispute this document was presented to him upon completion of the service. the dade county code.1 the potential to deny [class action defendants] substantive due process of law."); tire kingdom commercial customer, did not use tire kingdom's service lower tribunal no. 07-8453 shop fees(*) 3.60 began including discount coupons in its internet advertising, prominently including employees nationwide were subjected to a single set of corporate policies . . . that acknowledged signing one for the services he received. in the statutorily total charges.. 19.99 because written documents were not dispositive of claim). in stark contrast, the money for what should have been a `pass through' port charge, but the cruise line kingdom customers who received a discount--either through use of a coupon or plaintiffs here claim each class member "pa[id] more than was bargained for." to and included on both the estimate and invoice form. the statutorily required the plaintiffs seek an award of damages to each class new tire fees** .00 omitted mention of a shop fee and those that failed to disclose the shop fee was e. whether the defendant advertised and represented 6 plaintiffs attempt to characterize egwuatu as an "outlier" decision and assert stat. (2006); § 8a-161.21, miami dade county code. (1) the members of the class are so numerous that separate joinder of the fee or knew the fee was not a tax. id. at 51-52. the first district court of but that they also did business with other oil change companies. a. the class representatives all taxes...... 1.52 may have worked to unlawfully discriminate against them in violation of title cost/profit to the vehicle repair facility misc, shop supply no. 3d08-2088 second, a casual perusal of the "common issues" found by the court to soper testified as follows in his deposition: service, rather than the advertised or charged price," in violation of the florida dishkin, aimee of each member of the class." the difference between this element and the inquiry." id. at 702-03. relying upon comparable authority from other there are two class representatives in this case, aimee dishkin and james 8 (fla. 3d dca 2000). in latman, a class of cruise passengers sued several cruise consistent with the estimate, the total invoice amount for the service provided to haz-material disp ch haz-material disp charge 3.00 ________________ customer waiting room--dishkin stated she did not "specifically recall" seeing any ameriquest mortg. co. v. scheb, 995 so. 2d 573, 574 (fla. 2d dca 2008) proof of a deceptive act or unfair practice is but one element of proof required for it; they posted in all of their stores a letter from defendant huntley 13 practices is not only inconsistent with established florida precedent, but it also has the store. tire kingdom has found that strict adherence to customer discount, price numerosity element of the class certification rule in this case. accordingly, we individualized proof would be required. the plaintiffs argue to the contrary, based in the public area of the store--one affixed to the customer service counter, one representative party is typical of the claim or defense of each member (reversing class certification where record was devoid of evidence that safeway's follows.4 element] requires the plaintiff to demonstrate that the class members `have suffered motor vehicle repair act, and miami-dade county vehicle repair ordinance group all individuals who received a discount on their service and who were 5 counsel.3 stores, inc. v. dukes, no. 10-277, 2011 wl 2437013, at *7 (u.s. june 20, 2011) powell, 522 so. 2d at 70; see also olen props. corp. v. moss, 981 so. 2d 515, 520 we reverse the order on appeal and remand with directions to the trial court total credits.. .00 deceptive and unfair trade practices act (fdutpa), §§ 501.201-.213, fla. stat. between class members." olen props., 981 so. 2d at 520 (quoting braun, 827 so. authorize the service; and salespersons act with greater discipline in these regards, the business culture at recovery by the plaintiffs in this case. tire kingdom, inc., class action complaint filed in this case nine months later. the only deception she rover. soper testified that before going to the store, he printed a coupon from the soper, james in rollins, the court reversed a class certification because the individualized a few days prior to entering its order certifying the classes in this case, the trial days later, his counsel filed this class action complaint. may not exceed this amount without my written to represent. see braun, 827 so. 2d at 268 (citing amchem prods., inc. v. hazardous waste fees. represents cost/profit to the vehcile repair facility misc, appellant, by defendant's conduct; _____ i do not request a written estimate as long have some thirty years of experience in the retail tire and repair service industry, state of florida, january term, a.d. 2011 includes not only tire kingdom customers who brought an allegedly defective charged a shop fee based upon the retail price of the service rather than the 22 dca 2009) (shepherd, j., concurring in part, and dissenting in part), and lack of soper also received an invoice for the services rendered him. there is no _____ i request a written estimate. as we interpret the order under review, the trial court was of the impression make this determination, it follows that each class member's tire kingdom receive a coupon before giving a discount is honored as much in the breach as in _____ i do not request a written estimate. the same explanation at the foot of the invoice, as appeared at the foot of his who used a coupon which failed to disclose a shop fee by consulting tire measure and appropriate formula to be applied in 75. transactions cannot be used to prove the indispensable element of causation in a "[m]erely pointing to common issues of law is insufficient to meet the typicality 23 the motor vehicle repair facility for miscellaneous shop supplies or waste "sufficient to "`raise [a] common question [was] whether wal-mart's female consumer knew at the outset the total price of the cruise and could make a decision repair invoices produced by soper reflect that most maintenance and repair work any authority to conduct a preliminary inquiry into the merits of a suit in order to **** i n v o i c e **** rnc rotation no charge counsel, and appear to have maintained a minimal level of interest in the action. on this element, it is not sufficient the plaintiff has "some claim." our the amount of the fee has varied through the years, but has ranged from six justify class treatment of this case--whether "[d]efendant's representations . . . waiting room--soper testified he "did not recall" seeing any of the signs, despite necessary to "keep the customer" and "keep the customer happy." percent to ten percent of the standard retail price of the service up to thirty dollars. member of the class [commonality], (3) the claim or defense of the tire kingdom store managers and salespersons exercise wide berth in the shop supply or waste disp."5 of marketing, to assure that tire kingdom's print and internet advertising since the predominance requirement of subsection (b)(3) is obviously more purchase price; kingdom, land rover fort lauderdale's invoice forms carry this statutorily not exceed $25.24." in the middle of the estimate, in an open area, appears two of the three challenged subsection (a) requirements--commonality and going back to 2003. senterfitt, michael b. chavies and ryan roman; thompson hine and scott a. reliance on the alleged misrepresentations. it is sufficient if the class can establish methods over the years to inform customers that the environmental fee as with the dishkin invoice, the asterisk next to the phrase "shop fees" on the not such a fee will be charged to the customer. each store also posts signs in its d. whether defendant made false promises of a character determine adequacy of representation are the skill of the attorney to prosecute the retail price of the service, rather than the advertised or charged price; 1 affecting only individual members, and that the class resolution must be superior to to determine the facts of each of the commercial customer's a class-wide basis. statements below, and sign: by them, is that these consumers were misled as a matter of law.14 we approved the certified class because each and every class member "parted with 186 (quoting sullivan v. chase inv. servs., 79 f.r.d. 246, 258 (n.d. cal. 1978)). discounted service price. the former group would receive a computer-calculated was charged and paid a shop fee to land rover fort lauderdale on at least two 5th dca 1996); see also eisen v. carlisle & jacquelin, 417 u.s. 156, 177 (1974) baron & herskowitz, for appellees. q. i asked you earlier whether you had signed anything before you customer: rejected as insufficient by the united states supreme court in wal-mart. representative parties "can fairly and adequately protect and represent the interests from the tire kingdom website, offering an oil change for $16.99, and presented it soper was $25.24, the amount which he paid. the invoice amount included a shop and the miami-dade county vehicle repair ordinance, §§ 8a-161.1-.37 miami- plaintiffs then propose to add to that [exhibit d, the estimate] refresh your recollection? a. whether defendant's representations, omissions, and soper estimate directed his attention to the statement, "*charge represents to the other claims, and whether the claims are based on the same legal theory." because she saw, heard about, or had a coupon but did not have it in hand; to price tire kingdom markets its services in all media, including radio, television, the asterisk next to "shop fees" directed dishkin to the following explanation, vehicle repair facility misc, shop supply or waste disp." that the members of the class "were all victims of overcharges by the defendant the salesperson knows there is a lower price than the standard retail price and failed to disclose the store would add a "shop fee" to the discounted price county class--who either (1) "used or benefited" from a discount coupon that occasions before patronizing tire kingdom on march 27, 2007. like tire kingdom has no record of her presenting a coupon to the store, but the invoice advertised on the coupon or (2) were "overcharged" for a service at tire kingdom could claim to have been harmed, and "whether there was individual reliance and aimee dishkin, et al., litigant who does his best for himself also inescapably benefits his fellow class members' claims arise from the same practice or course of conduct that gave rise eligible to receive a refund of all or at least part of the shop fee paid. plaintiffs' on july 17, 2006, aimee dishkin went to a tire kingdom store at 8495 turn. sosa, 15 so. 3d 8 (fla. 3d dca 2009), review granted 37 so. 3d 849 (fla. 2010) the same injury.'" id. (citing falcon, 457 u.s. at 157. the purported "common before shepherd, cortiÑas, and rothenberg, jj. it is the responsibility of robert crostarosa, tire kingdom's vice president company operates more than 650 stores in eight states and charges a shop fee on when i was checking out. submit the class determination to the trial court based solely upon affidavits, although the store patronized by soper had three signs prominently posted an "add-on" when a mechanic sees a need while servicing a vehicle; to meet a be typical of the claims of the class. this element focuses on the sufficiency of the new tire fees** .00 pop's pancakes, inc. v. nuco2, inc., 251 f.r.d. 677, 688 (s.d. fla. 2008) while store managers are instructed to require the production of a coupon at the tire kingdom, inc. theories of recovery are alleged to apply to each class member. however, and/or florida law; individual issues outnumber common issues, trial courts should be hesitant to requirement when the facts required to prove the claims are markedly different payments...... 23.21- rare exception to the general rule that collective proof of individualized nature of the fdutpa claims could not be "papered over" by proof of a "common of any advertised service, excluding sales taxes, should be disclosed in company soper previously participated as a named plaintiff in a class action involving or advertising regulation, including the laws and rules of the various states, he does 7 5 elects to offer it.9 appellees. campaign; tire kingdom, inc. requirements.11 `questions'--even in droves--but, rather the capacity of a class[-]wide proceeding 11 kingdom's coupon archive to determine the coupon codes of those advertisements or waste disp." at the foot of the estimate.8 wilson, jr., judge. proposed class] have all suffered a violation of the same pro-vision of law." wal- conclusion entered into the computer. alvarez testified he remembered soper because soper the primary concern on this element is "whether the representative substantial reliance on its belief tire kingdom engaged in "a common scheme" an appeal from the circuit court for miami-dade county, thomas s. although class action hearings are evidentiary in nature, the parties elected to conflict with any other members of the class, are represented by competent court granted partial summary judgment to the plaintiffs on the fdupta, florida repair act, to be included on all estimates for which the cost of the repair work however, just as the requirement imposed on store managers and salespersons to conforms to its company disclosure policy and that each state's disclosure rules meet this element necessarily fails to meet requirements of florida rule of civil decided by an ultimate fact finder, in this case a jury. an incantation of ultimate 21 the questions of law or fact raised by the claim or defense of each shop fees, hazardous material disposal charge, or any other charge, including taxes. hide behind the abuse of discretion standard. see rollins, inc, 951 so. 2d at 873- typicality a. i'm not sure. i believe it was signed afterward, but i'm not sure. may be certified only after the trial court determines, on the basis of a rigorous 3753 bird road in coral gables, florida, for tire maintenance on his 2002 land crostarosa is of the view it is misleading to the consumer not to disclose fees, like scheme" or "business practice." id. at 873-74. ("[a]uthorizing the class-wide explaining the fee; and they posted a fee notice explaining the high sch., 88 f.r.d. 181, 186 (n.d. ill., e.d. 1980). however, typicality does not print media, direct mail, and the internet. the company regularly includes discount charges a shop fee or hazardous waste disposal fee, the fee is computer calculated vs. charged on the retail price, were untrue, deceptive and misleading." even if class treatment, stating, inter alia, "tire kingdom's advertisements, both those that will exceed $100. the language was pre-printed at the foot of all estimate and disclose that fact in both its advertisement and within any coupon included in the pressure check, computerized spin balance and alignment check) for $19.99. the the observance, so also are the in-store coupon recording and coupon accounting item number item description price extended 6 2d at 267). we find that to be the case here. additionally, the trial court places the fact he ordered his service at the customer service counter and utilized the repair work on a motor vehicle, the cost of which will exceed $100, to disclose the we treat the elements necessary to our decision in this case in our decision today reversing the class certification decision. as next explained, incursion by the trial court into the merits of the case. controlling precedent as well to the similar private rights of action afforded by the florida motor vehicle create unwarranted pressure to settle non-meritorious claims on the part of based on the fact that the defendants have employed a variety of stringent than that prescribed by subdivision (a)(2), a proposed class which fails to typicality requirement is not crystal clear. massengill v. bd. of ed., antioch cmty. copies of its advertisements that have run in print, direct mail, or over the internet lines for deceptively labeling a fee on their invoices as a "port charge" when, in here, the plaintiffs do not rest on undisputed documentary evidence. see, e.g., conduct regarding its coupons and/or advertisements 8 impressions not supported by the record, but also they constitute improper (b)(3), requiring that the common questions must predominate over any questions 15 kept the money." id.


All Content © 2007-2012 The Judicial View, L.L.C. All Right Reserved.
About The Judicial View ®  | Privacy Policy   |  Terms of Use   |  Contact Us  |  Advertise