Preview
IN THE COUNTY COURT OF THE 15
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
JANUARY MARTIN,
Plaintiff,
vs. CASE NO.:2006 CA 002750 AN
MAROONE CHEVROLET OF CLASS REPRESENTATIO!
DELRAY, LLC., a Florida limited
liability corporation, AUTONATION
FINANCIAL SERVICES CORP.,
a Foreign corporation,
‘qaus
Defendants.
/
REPLY TO DEFENDANT'S AMENDED MOTION
TO DISMISS FOURTH AMENDED COMPLAINT AND MOTION FOR ENLARGEMENT
OF TIME AND/OR MOTION FOR PROTECTIVE ORDER
Plaintiff, JANUARY MARTIN, by and through her undersigned counsel, files her
Reply to Defendant's Amended Motion to Dismiss Fourth Amended Complaint and Motion
for Enlargement of Time and/or Motion for Protective Order and states:
1. Defendant's initial argument in paragraphs 1 - 8 of its Motion to Dismiss is
that it is too late to file a class action.
2. In response, Plaintiff would note that the original complaint was filed in
County Court in Dade County on June 17, 2002 (Exhibit 1).
3. The Defendant filed a Motion to Dismiss on July 22, 2002 (Exhibit 2). The
Motion to Dismiss was denied August 20, 2002.
4. Defendant's Answer and Affirmative Defenses were filed on August 30, 2002.5. On October 3, 2002, the Defendant filed a Motion to Dismiss or, in the
Alternative for Judgment on the Pleadings on the grounds of improper venue.
6. Plaintiff filed an amendment to the Complaint on August 5, 2003 and also
filed a Motion to Transfer the cause to the Circuit Court for Palm Beach County on that
date.
7. Defendant filed a response to the Motion to Amend Motion to Transfer Venue
and Request for Evidentiary Hearing on August 29, 2003.
8. Defendant answered the amended complaint on October 16, 2003 and also
filed a Motion to Dismiss Amended Complaint on the same date.
9. With respect to the class action the Defendant filed a Motion for Protective
Order dated April 13, 2004 in which Defendant states at paragraph 3:
As recently as last week, Plaintiffs counsel stated that he intended to seek
leave of this court to amend the Second Amended Complaint to add class
action allegations concerning Chapter 634 and the service agreements.
10. In fact on July 28, 2004, the Plaintiff filed the Third Amended Complaint
which was a class action complaint at which point the undersigned first appeared in the
case. (Exhibit 3)
11. Defendant filed a Motion to Dismiss the Third Amended Complaint on August
20, 2004.
12. The Motion to Dismiss did not raise the timeliness of the fact that the Plaintiff
asserted a class action. The Motion to Dismiss at paragraph 8 only alleges that the Plaintiff
has failed to adequately allege a class action. (Exhibit 4)
13. On August 20, 2004, Defendant filed a Motion on behalf of Defendant toTransfer Venue to Broward County stating:
On July 28, 2004, Plaintiff filed a Third Amended Complaint against
Defendants in the County Court of the Eleventh Judicial Circuit in and for
Miami, Dade County. Plaintiff on his Third Amended Complaint Plaintiff
sought relief solely in an individual capacity. Through the Third Amended
Complaint the Plaintiff has for the first time asserted a claim for class action
relief...Moreover, since Plaintiff is now seeking class action relief, the
aggregate damages of the proposed class would also exceed the
jurisdictional threshold of the county court (Exhibit 5).
14. On June 30, 2005, the undersigned withdrew from the case since he was
advised his services were no longer necessary.
15. | The Fourth Amended Complaint was filed on January 12, 2006, still in Dade
County Circuit Court.
16. On January 11, 2006, the case was transferred to Palm Beach County.
17. In May 2006 the undersigned was requested to again assist in the handling
of this matter and filed a Notice of Appearance in May of 2006.
18. The Motion to Dismiss filed on August 20, 2004 addressing the Third
Amended Complaint was not disposed of.
19. _ Inlight of the foregoing, the Defendant's Motion for Enlargement of Time and
Motion for Protective Order (Exhibit 6), is patently frivolous. The essential underlying
objections are the same which have already withstood a Motion to Dismiss the same
causes of action.
20. The only issue not heard or ruled on concerns the sufficiency of the class
action allegations. All of the other allegations have previously withstood Motions to
Dismiss addressed to those issues.
21. The Defendant states in paragraph 4 of its Motion for Enlargement of Timeand/or Motion for Protective Order, accompanying its Motion to Dismiss, that the “Plaintiff's
attempt to convert the suit from an individual action to a class action at this stage of the
proceedings is untimely.”
22. On the contrary, Defendant’s motion is untimely since the Complaint was
already amended back in 2004 and Defendant did not raise the issue at that time. Having
failed to raise it at that time, it is too late to raise it three years later.
23. Againin paragraph 7 of its Motion for Enlargement of Time and/or Motion for
Protective Order, Defendant states:
After Maroone Chevrolet served its Motion to Dismiss Fourth Amended
Complaint Plaintiff served the first set of interrogatories on October 19, 2007.
Through the discovery request Plaintiff seeks discovery relating to the
untimely class action claims.
24. Onthe contrary, the class claims are not untimely.
25. \ Defendant states at paragraph 9 of its Amended Motion to Dismiss Fourth
Amended Complaint that the case against Maroone Chevrolet and AutoNation Financial
Services is barred by Section 501.212(4)(d) Florida Statute arguing that “the FDUTPA does
not apply to any activity regulated under the insurance code” and therefore since Plaintiffs
alleged a cause of action under Chapter 501 arising out of conduct covered by §634.433
F.S., the Plaintiff cannot pursue this cause of action against these Defendants.
26. Defendant's argument is ill-founded.
27. Chapter 634 F.S. relates to Warranty Associations.
28. Part 3 of Chapter 634 relates to Service Warranty Associations.
29. §634.4025F.S. provides the exclusivity of its applicability to Service Warranty
Association stating:Except as provided in its part, service warranty associations shall be
governed by this part and shail be exempt from all other provisions of the
Florida Insurance Code.
30. These statutes govern the conduct of service warranty associations and do
not govern the conduct of non-service warranty association entities.
31. §634.401 F.S. Definitions provides, “as used in this part the term”
..-(13) “Service Warranty” means any warranty...which does not meet the exemption
in paragraph (a)
32. §634.401(13)(a) “provides:
...motor vehicle service agreements...”
33. so that it’s clear that motor vehicle service agreements are not service
warranties which are governed by this statute, and therefore the conduct at issue is not
regulated by this section of Chapter 634.
34. | However, the misrepresentations in the sale of such service warranties are
covered under 634.436, which under 501.203(3)(c) is a statute for the protection of
consumers and therefore would lend itself to class action treatment as alleged by the
Plaintiff.
35. It is also not clear that all activity except by those intended to be regulated
comes under the authority of the department.
36. State v. Commercial Leasing, 946 So.2d 1253 (Fla. 1% DCA 2007) involved
a case brought by the Florida Attorney General against Commercial Leasing as assignee
of certain rights to receive lease payments from small businesses who had contracted with
entities known as NorVergence, Inc. In that case, as here, the Defendant raised FDUTPA’s
“bank exemption” filed under F.S. 501.212. The trial court had found that the applicantswere exempt because they were subsidiaries of the bank or because they were engaged
in banking activity and therefore were exempt because they were regulated by state or
federal agencies. The court states at page 1257:
None of these "findings" by the trial judge include facts contained anywhere
within the four corners of the first amended complaint.
37. Likewise, in the case at bar none of the arguments made by the Defendant
with respect to its 501.212 argument are found within the four corners of this amended
complaint. All well pled allegations should be treated as true in consideration of a Motion
to Dismiss and the trial court must consider only the allegations within the four corners of
the pleading to determine whether the allegations state a proper cause of action. And for
this reason the First District found the trial court erred but it also disagreed with the trial
court's conclusion that all banking subsidiaries and all lease financiers are necessarily
exempt from the act. Stating at page 1257:
The language of the statute appears only to exempt banks. The logic
appears obvious: if a state or federal agency already regulates banks, there
is no need for the Act to interfere. It is quite a leap, however, to suggest that,
just because an entity is a subsidiary of a bank, it is necessarily exempt from
the Act. It is an even greater leap to suggest that, just because lease
financing (when conducted by banks) is regulated by federal agencies, that
all lease financing is therefore regulated, even when conducted by non-
banks. There was no evidence in the record, and certainly no allegation
within the four corners of the pleading pending before the trial court, that the
specific activities here were regulated by any other state or federal agency
so as to avoid proscription as a deceptive or unfair trade practice.
38. — Likewise in the case at bar, because the car dealer is selling an insurance
product does not make it an insurance company or because it is assisting in obtaining
financing does not make it a bank. The court continues in respect to the allegations of
deceptive and unfair trade practices as follows at page 1258:The trial court's order dismissing the complaint never discusses alleged
unconscionable trade practices and never discusses the alleged
unconscionability of the equipment rental cost term at all. The order does,
however, analyze the four specific contract terms mentioned on the reverse
side of the leases. We find the trial court's analysis focused too narrowly on
these four lease provisions only and ignored the remaining allegations of the
first amended complaint.
Continuing, the First DCA states at page 1258:
...the issue when considering a claim under the Act is whether the alleged
practice was "likely to deceive a consumer acting reasonably in the same
circumstances.”. .
A deceptive or unfair trade practice constitutes a somewhat unique tortious
act because, although it is similar to a claim of fraud, it is different in that
unlike fraud, a party asserting a deceptive trade practice claim need not
show actual reliance on the representation or omission at issue. (Emphasis
supplied)
39. The Defendant in the case at bar argues in subparagraph (b) of paragraph
9 of its motion that since the Plaintiff cannot state a cause of action for violation of 634.436,
it cannot state a cause of action under 501.
40. This argument too is not well founded. This is precisely the situation which
501.203(3)(c) provides for:
“Violation of this part” means any violation of this act or the rules adopted
under this act and may be based upon any of the following as of July 1,
2006:
...(c) Any law, statute, rule, regulation, or ordinance which prescribes unfair
methods of competition, or unfair, deceptive, or unconscionable acts or
practices.
41. See Jones v. TT of Longwood, Inc., 6:06-CV-651-ORL-19DAB (M.D. Fla.
2006) at page 12 as follows:
Florida law is clear that a violation of FDUTPA may be based upon "[a]ny
law, statute, rule, regulation, or ordinance which proscribes unfair methods
of competition, or unfair, deceptive, or unconscionable acts or practices."
See, e.g., F.S.A. §501.203(3)(c); Smith v. 2001 South Dixie Highway, Inc.,872 So. 2d 992, 994 (Fla. 4th DCA 2004).
Which quotes the 2002 version of the Florida Deceptive and Unfair Trade Practice
Act stating:
Florida Statute 501.201 - .213, Florida Statute (2002), provides a civil cause
of action for “Unfair methods of competition, unconscionable acts or
practices and unfair or deceptive acts or practices in conduct of any trade or
commerce.” A violation of FDUTPA may be based upon “any law, statute,
tule, regulation, or ordinance which prescribes unfair methods of competition,
or unfair, deceptive, or unconscionable acts or practices.” Citing Section
501.203(3)(c).
42.
In paragraph 9© of its motion the Defendant states the Plaintiffs must allege
and prove actual damages.
43.
Count | is for injunctive relief which is provided for under Section 501.211(1)
as set forth in the complaint and the applicable statute.
44. The court in Holt v. O’Brien, 862 So.2d 87, (Fla. 2° DCA 2003)
considering a claim for injunctive relief under FDUTPA states at page 89:
Section 501.211(1) Florida Statutes is broadly worded to authorize
declaratory and injunctive relief even if those remedies might not benefit the
individual consumers who filed the suit...FDUTPA is designed to
protect...the rights of the consuming public at large. Any attempt to limit
FDUTPA liability is contrary to public policy. “[AJn individual cannot waive the
protection of a statute that is designed to protect both the public and the
individual.”
45.
Defendant in paragraph 9(d) of its motion states that the relief is limited to
Florida residents. This came about as a limit to the statute which occurred in 2006 and
which would not affect substantive rights accruing prior to the passage of that statute. If the
activity is continuing then there would be a sub-class within the class for all Florida
residents after 2006. Prior to the 2006 amendment, the claim would apply to all
8Defendant’s customers.
46. Defendant’s argument with respect to Count Ill is that the notice provision
required under Section 634.433 was not given. If in fact this is true, the Plaintiff would
submit that the proper procedure would be to stay the proceedings with respect to Count
lll and Plaintiff would provide the required Civil Remedy Notice. However, Plaintiffs would
argue that Section 634.433 Florida Statute provides, as the Defendant has accurately
quoted, that written notice shall be given to “the department and the insurer’. Neither the
department nor the insurer are a Defendant in this lawsuit. The Plaintiff is not seeking relief
from either the department or the insurer. The Plaintiff is not complaining about practices
involving the department or the insurer. It is therefore difficult to conceive how either the
department or the insurer could rectify the wrongs committed by the Defendants to this
lawsuit and how any notice to the department or insurer would serve any useful purpose.
Should the court determine that this is a condition precedent without which the lawsuit
cannot proceed, the Plaintiffs would submit that the proper procedure would be to stay the
matter.
47. Inthe alternative the Plaintiff could amend the complaint to pursue her claim
individually and on behalf of the class under 634.282 (1)(b) due to the misleading nature
of the representations as alleged and pursue a civil remedy pursuant to 634.271 for actual
damages or $500 whichever is greater.
48. With respect to Defendant's argumentin paragraph 14(c) that Count II must
be dismissed because a class action is not authorized against a service warranty
association. Defendant, by definition, is not a service warranty association.
49. With respect to the Defendant's Motion to Dismiss regarding the class claim,the Florida Supreme Court in the case of Frankle v. City of Miami Beach, 340 So.2d 463
(Fla. 1976) made it very clear that it is not proper to dismiss the class claim until the
Plaintiff has had an opportunity to pursue sufficient discovery to discover the facts
necessary to be pled in the class action.
50. With respect to Defendant’s substantive arguments the Plaintiff would point
the Court to the case of Engle v. Liggett Group, 945 So.2d 1246 (Fla. 2006) which is the
most recent pronouncement from the Florida Supreme Court and validates issue
certification in Florida. That is if there is a single significant issue that can be resolved in
a class action then that in and of itself is sufficient for class certification.
51. The focus of the class action is the conduct of the Defendant and whether
that conduct is uniform with respect to a specified class. Individual damage issues,
individual causation issues, individual defenses will not defeat class certification. The court
in determining the appropriateness of certification of the class will determine whether the
conduct of the Defendant was uniform with respect to the class and whether the requisites
set forth in Rule 1.220, F.R.Civ.P.(b)(3) have been met. In doing so the court will seek
guidance from the Florida Supreme Court. As noted above, the most recent
pronouncement of the Florida Supreme Court on the issues framed by the Defendant's
motion is the Engle case. In Engle , the Supreme Court was considering the reversal by
the Third District Court of Appeal of a final judgment entered in a smoker's class action
lawsuit that sought damages against cigarette companies and industry organizations for
smoking related injuries. A final judgment awarded $12.7 million in compensatory damages
to three individual Plaintiffs and $145 billion in punitive damages for the entire class. The
Third District upheld class certification initially and also held that it was proper for the jury
10to make findings in phase one of the trial on: 1. General Causation, 2. Addiction to
Cigarettes, 3. Strict Liability in Tort, 4(a). Fraud by Concealment, 5(a). Civil Conspiracy
Concealment, 6. Breach of Implied Warranty, 7. Breach of Expressed Warranty, and 8.
Negligence. All of these findings were allowed to stand. The Engle case arose out of a
class action claim which was certified by the trial court and affirmed on appeal in the case
of RJ Reynolds Tobacco v. Engle, 672 So.2d 39 (Fla. 3° DCA 1996). In the 1996 Engle
decision the Third DCA stated:
This is an interlocutory appeal from a nonfinal trial court order certifying a
plaintiffs class in a products liability action brought by certain named
plaintiffs against the defendant R.J. Reynolds Tobacco Co. and a series of
other tobacco companies. We affirm... The plaintiffs, and all others similarly
situated, seek damages in the action below for certain diseases and medical
conditions allegedly contracted by the plaintiffs due to their asserted
addiction to smoking cigarettes containing nicotine produced by the
defendants. The operative complaint alleges causes of action for strict
liability in tort, fraud and misrepresentation, conspiracy to commit fraud and
misrepresentation, breach of implied warranty of merchantability and fitness,
negligence, breach of express warranty, intentional infliction of mental
distress, and equitable relief.
52. The Engle Defendants argued that the individual issues would predominate
over class issues and the class should not be certified. The court stated at page 41:
Although certain individual issues will have to be tried as to each class
member, principally the issue of damages, the basic issues of liability
common to all members of the class will clearly predominate over the
individual issues.
53. As set out by the Supreme Court ten years later, in 2006, at page 1256 the
trial court issued a trial plan involving three phases:
Phase | consisted of a year-long trial to consider the issues of liability and
entitlement to punitive damages for the class as a whole. See Engle //, 853
So.2d 441.The jury considered common issues relating exclusively to the defendants’
conduct and the general health effects of smoking...at the conclusion of
Phase |, the jury rendered a verdict for the Engle Class and against Tobacco
on all counts.
Phase II was divided into two subparts — Phase II-A and Phase II-B. Phase
I-A was intended to resolve the issues of entitlement and amount of
compensatory damages, if any, that the three individual class
representatives...should receive. Phase II-B was designed to result in a jury
determination of a total lump sum punitive damage award, if any, that should
be assessed in favor of the class as a whole.
54. Atpage 1258 the Supreme Court sets out the trial plan with respect to Phase
According to the trial plan, in Phase III, new juries are to decide the individual
liability and compensatory damages claims for each class member
(estimated to number approximately 700,000). Thereafter, the plan
contemplated that the trial court would divide the punitive damages
previously determined equally among any successful class members.
Pursuant to the omnibus order, interest on the punitive award began
accruing immediately.
55. At page 1263 the Supreme Court states:
In Phase I, the jury decided issues related to Tobacco's conduct but did not
consider whether any class members relied on Tobacco's misrepresentations
or were injured by Tobacco's conduct. As the Third District noted, the Phase
| jury "did not determine whether the defendants were liable to anyone."... It
was therefore error for the Phase | jury to consider whether Tobacco was
liable for punitive damages.
Even if it were not error to determine entitlement to punitive damages in
Phase |, it was clear error to allow the jury to go beyond mere entitlement
and award classwide punitive damages when total compensatory damages
had not been determined.
56. The court states at page 1265:
.-without having total compensatory damages determined it would be
“impossible to determine whether punitive damages bear a ‘reasonable’
relationship to the actual harm inflicted on the plaintiff.”57. The court states at page 1265, which is particularly germane here:
In concluding that the Engle Class must be decertified, the Third District in
Engle I ruled that the " ‘predominance’ or ‘commonality’ requirement is not
satisfied, where claims involve factual determinations unique to each
plaintiff.".. The district court explained that "common questions" did not
predominate over individual issues because the choice of law analysis would
require examination of numerous different state laws governing different
individual claims... The court also concluded that class representation would
not be “superior” to individual suits because: (1) individualized issues of
liability, affirmative defenses, and damages outweighed any common issues
in the case; (2) each class member had unique and different experiences,
which would necessitate litigation of substantially separate issues, including
legal causation, specific medical causation, reliance, and awareness of risks;
and (3) individualized choice of law issues would cause class proceedings
to be unmanageable.
We conclude that the Third District erred in nullifying its previous affirmance
of the trial court's certification order. Contrary to the Third District's
conclusion, Florida Rule of Civil Procedure 1.220(d)(1) did not authorize the
subsequent (and different) panel of appellate judges to simply substitute its
judgment for that of the prior panel and reverse the trial court's certification
order after the trial court entered its final judgment after Phase Il.
58. The court can read the balance of the Engle decision, but | think there’s
enough shown here that the issues confronted by this court certainly pale in comparison
to the issues confronted by the court in Engle and yet there was a case that not only
successfully resolved numerous issues on a class basis but afforded a manageable way
to resolve 700,000 claims. The Supreme Court's solution is set forth at page 1269 as
follows:
In this case, the Phase | trial has been completed. The pragmatic solution is
to now decertify the class, retaining the jury's Phase | findings other than
those on the fraud and intentional infliction of emotion distress claims, which
involved highly individualized determinations, and the finding of entitlement
to punitive damages questions, which was premature. Class members can
choose to initiate individual damages actions and the Phase | common core
findings we approved above will have res judicata effect in those trials... [t]he
Court's decision as to liability is res judicata in any damages action individual
class members decide to bring.Here the central issue is a very simple one and that is whether the Defendant
represented the product which it was selling as an AutoNation product or whether it
accurately disclosed it as a Fidelity Warranty product. If the representation created
confusion in the mind of the reasonable consumer, that in and of itself is a sufficient basis
for a class action and certification of that class.
59. Sonic Automotive, Inc. v. Galura, (2007 WestLaw Fla. 2" DCA) a FDUTPA
class action case in point states:
The complaint alleges that Sonic, through deceptive and unfair business
practices, orchestrated a scheme to “stuff” or “pack” Etch into vehicle sales
transactions without proper disclosure to customers. The complaint asserts
that Etch is an essentially worthless and “unconscionably overpriced” anti-
theft product...
60. In Galurathe trial court entered an order certifying a statewide FDUTPA class
of consumers who purchased vehicles from Sonic’s Florida dealerships and whose
purchases included Etch. The appellate court affirmed the trial court's 1.220(b)(3)
certification but redefined the class. The court relied on Veal v. Crown Auto Dealerships,
Inc, 236 F.R.D. 572 (M.D. Fla. 2006) stating:
There, the United States District Court for the Middle District of Florida
certified a class action against Crown Auto Dealerships, Inc., based upon
Crown’s sale of Etch as part of its car sales. The plaintiff's claims included
a FDUTPA claim similar to the claim brought here. The plaintiff alleged that
Crown engaged in deceptive and unfair business practices in order to profit
from the sale of the “Etch” product by routinely failing to make adequate
disclosures concerning the sale of the product, including accurate
disclosures of the amount financed, finance charges, and annual percentage
rates in its standard form retail installment sales contract. The plaintiff further
alleged that the product registration form “was misleading because it misled
consumers as to the true benefit it provided, it failed to specify the premium
paid for the ‘Etch’ product and it failed to name the insurer providing
coverage. (Emphasis supplied)
61. Cole v. Echevarria, (Fla. 1* DCA 9-28-2007) case number 1D02-4746
14involved appeal from a certification order in a class action involving the Florida Unfair and
Deceptive Trade Practices Act and Florida Consumer Collection Practices Act. The
essence of the complaint was that the Defendants engaged in an illegal collection practice
and deceptive trade practice by requiring the Plaintiff's to pay inflated costs for title
searches and title examinations in order to reinstate their mortgages. The court states at
page 7:
Similarly, with regard to a violation of the FDUTPA, the prospective class
member need not demonstrate that he or she relied upon a
misrepresentation because the members of the class have similar interests
in curtailing the deceptive activity. Badcock v. Myers, 696 So.2d 776, 780
(Fla. 1%" DCA 1996); Latman v. Costa Cruise Lines, Inc., 758 So.2d 699, 703
(Fla. 3 DCA 2000). Thus, whether the prospective class member actually
reinstated is not pertinent. Rather, the operative event, i.e., the transmission
of the reinstatement letter, impacted all prospective members of the class
similarly...the statutory causes of action were triggered by the transmission
of the reinstatement letter seeking illegitimate costs, not by the ultimate
outcome of any foreclosure proceedings.
62. — Broinv. Philip Morris Companies, 641 So.2d 888 (Fla. 3° DCA 1994) involved
dismissal of a class claim seeking damages under theories of strict tort liability, breach of
implied warranty, negligence, fraud, misrepresentation, and conspiracy to commit fraud.
The 3° DCA reversed the trial court's dismissal of the complaint finding inter alia:
Contrary to defendants’ assertion, plaintiffs’ legal claims need not be
completely identical. (Citations omitted) Plaintiffs must merely establish a
common claim “arising from the same practice or course of conduct that
gave rise to the remaining claims and _...based on the same legal theory.”
(Citations omitted) Claims that arise from different factual contexts may be
pled as a class action if they present a question of common interest. Love v.
General Development Corp., 555 So.2d 397, 398 (Fla. 3° DCA 1989). The
complaint satisfies this prerequisite. It is of no moment, as defendant claims.
that different statutes of limitation may apply, or that different choice of law
provisions may govern. Differences among the class members as to
applicable statutes of limitations do not require dismissal of a class
action.(Citation omitted) Entitlement to different amounts of damages is not
fatal to a class action. (Citation omitted) Should it become appropriate, the
1Scourt may divide the class into subclasses to resolve these issues.(Citation
omitted). (Emphasis supplied)
63. In Latman v. Costa Cruise Lines, 758 So.2d 699 (Fla. 3° DCA 2000) the
cruise line charged customers what was designated as a port charge but in fact retained
a substantial amount of the money so designated as additional profit for the cruise line
without disclosing that to the Plaintiffs. The court states:
We therefore conclude that when a cruise line bills the passenger for port
charges but keeps part of the money for itself, that is a deceptive practice
under FDUTPA. Reliance and damages are sufficiently shown by the fact
that the passenger parted with the money for what should have been a
“pass-through” port charge, but the cruise line kept the money.
64. | W.S. Badcock Corporation v. Myers, 696 So.2d 776 (Fla. 1** DCA 1996) was
a class action brought under the Florida Deceptive and Unfair Trade Practices Act where
Badcock charged a non-filing fee to every purchaser. The court certified the class finding
that it was an unfair and deceptive trade practice to charge the non-filing fee. Badcock
challenged that determination on appeal saying that class certification was prohibited with
respect to common law allegations for fraud since the charge was not properly disclosed
and was misrepresented. The court stated at page 779:
A finding of fraud is not necessary to sustain a violation under the DUTPA.
(Citations omitted) Violations of the TILA are determined on an objective
standard, based on the representations in the relevant disclosure
documents, with no necessity to establish the subjective misunderstanding
or reliance of particular customers.
The court continuing at page 781 states:
In the order, the trial court found Badcock had been guilty of deceptive and
unfair trade practices in violation of section 501.204, Florida Statutes,
because (1) Badcock represented the non-filing fee was for purchase of
insurance, when the relationship between Badcock and American Bankers
was not one of insurance; (2) if the relationship were deemed insurance, it
16was at best bankruptcy insurance or credit insurance, not non-filing
insurance as represented by Badcock; (3) the additional charge was not a
filing fee or a fee for purchase of non-filing insurance, thus was in direct
violation of the TILA; and (4) because Badcock was an automatically
perfected purchase money creditor, the additional charge for insurance,
which was included in the amount to be financed rather than in the total
finance charge, was a violation of the TILA.
65. Asa violation of TILA it became actionable under the Unfair and Deceptive
Trade Practice Act. The court then discussed the carve out position under * which states
that 501 does not apply to any activity regulated under the law as administered by the
Department of Insurance or the Florida Public Service Commission or banks and savings
and loan associations. The court did an analysis of whether the service provided to
Badcock by American Bankers constituted insurance finding that the arrangement between
Badcock and American Bankers constituted a form of default protection rather than non-
filing insurance and, as such, should have been included in the finance charge.
66. For all the foregoing reasons the Defendant's Amended Motion to Dismiss
Fourth Amended Complaint and Motion for Enlargement of Time and/or Motion for
Protective Order should be denied the Plaintiff should be allowed to pursue the discovery
necessary to obtain facts sufficient to amend the complaint if necessary regarding the class
claim and to move forward with the class certification.
WHEREFORE, for the reasons stated above, Plaintiff respectfully requests that the
Defendant’s Motions for Enlargement of Time and/or Motion for Protective Order and to
Dismiss be denied.
LYONS AND FARRAR, P.A.
Counsel for PlaintiffDOUGLAS S. LYONS, ESQ.
Florida Bar Number 128277
325 North Calhoun Street
Tallahassee, Florida 32301
(850) 222-8811
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to
RICHARD IVERS, Esq., Law Office of Richard A. Ivers, 1505 N. University Drive, Third
Floor, Coral Springs, Florida 33071 and CHARLES HARTZ, Esq., George, Hartz, Lundeen,
A
Johnston, King & Stevens, 4800 LeJuene Rd., Coral Gables, Florida 33146 on this a
See “Ze
Douglas S. Lyot a
day of January, 2008.
‘L:\Martin, January\Pleadings\Resporse\Supplemental Reply to M-Dismiss 1-3-08 wpdEXHIBIT 1IN THE COUNTY COURT OF THE 11%
JUDICIAL CIRCUIT IN AND FOR DADE
COUNTY, FLORIDA
CASENO.: 2: 6158 SP 25
THE ORIGINAL FILED |
JANUARY MARTIN IN THE OFFICE OF -
Plaintiff, CLERK CIRCUIT 8 COUNTY CouRTS
DADE COUNTY, 2
VS.
MAROONE CHEVROLET-OF DELRAY, LLC.,
a Florida limited liability corporation,
Defendant.
COMPLAINT
Plaintiff, JANUARY MARTIN, by and through her undersigned attorney,
sues Defendants, MAROONE CHEVROLET OF DELRAY, LLC., and avers the following
facts and allegations, a statement of which is contained herein: an
GENERAL ALLEGATIONS
1. This is an action for damages which exceeds $5,000.00, but which is
less than $15,000.00 exclusive: of interest, costs and attorney’s fees.
2. Plaintiff, JANUARY MARTIN, hereinafter sometimes referred to as
“PLAINTIFF” is, and at all times herein mentioned was, an individual, residing at 1915
Lavers Cr, #210, Delray Beach, FL 33444.
3. Defendant, MAROONE CHEVROLET OF DELRAY, hereinafter
“sometimes referred to as "MAROONE?” is, and at all times herein mentioned was, a
corporation, organized and existing under the laws of the State of Florida, having its
Glitfor
GEORGE, HARTZ, LUNDEEN, FULMER, JOHNSTONE, KING & STEVENS
4800 LEJEUNE ROAD, CORAL GABLES, FLORIDA 33146 + TELEPHONE (305) 662-4800delivery of her “new” Pre-owned Ford Explorer,
11. On November 10, 2000, MAROONE Prepared and obtained
PLAINTIFF’s Signature on a retail finance agreement for the purchase of the 1996 Ford
Explorer, vehicle identification number 1FMD032P6TZA08102 (“the Vehicle”),
12. On November 10, 2000, MAROONE represented to PLAINTIFF that
the Silver vehicle Protection plan (warranty) would Cover all mechanical problems accept
Power windows and Power door lock system problenis
13. The finance agreement does not accurately memorialize and reduce
to writing the Parties’ negotiations and agreement.
14, MAROONE’s Statements, representations, affirmations, assurances,
and conduct relating to the safety/mechanical inspection, overall quality and condition
15. By way of example and not as a means of limitation, listed below are
the acts, Conduct, statements, representations, assurances and/or Omissions. made or
omitted ‘to PLAINTIFF during the course of the lease transaction, which constitute
deceptive and unfair trade Practices;
(A) Misrepresenting to PLAINTIFF that because the vehicle had
GEORGE, HARTZ, LUNDEEN, FULMER, JOHNSTONE, KING & STEVENS
4800 LEJEUNE ROAD, Coral GABLES, FLORIDA 33146 + TELEPHONE (305) 662-ago0nundergone a 162 point safety and mechanical inspection it was determined by
MAROONE that the vehicle was in excellent mechanical condition, met their rigid
standards for pre-owned vehicle sales, and was teady for immediate delivery.
(B) Misrepresenting to PLAINTIFF during negotiations that
PLAINTIFF’s finance rate would be 10% annual percentage rate, not the 15.19% rate
reflected in the finance agreement.
(C) Misrepresenting to PLAINTIFF that MAROONE was. the only
dealer that would be able to acquire financing for the PLAINTIFF due to past credit
difficulties, :
(D) Preparing the November 10, 2000 finance agreement and
obtaining PLAINTIFF’s signature thereon, which fails to accurately memorialize and
reduce to writing the parties’ negotiations and agreement;
16. As a direct result of MAROONE’s deceptive and unfair trade
practices, PLAINTIFF was actually aggrieved and has sustained and incurred: damages.
The nature and extent of PLAINTIFF’s damages include, without limitation:
(A) The difference between the negotiated percentage rate and the
actual percentage rate as set forth in the finance agreement;
(B) Excessive charges paid by PLAINTIFF for repair of the vehicle
that should have been covered by the Silver protection plan (warranty);
(C) The difference between PLAINTIFF’s monthly installment
payments and the amount the monthly Payments would have been, including tax
differential, had the finance agreement been written in.such a manner as to accurately
memorialize and reduce to writing, the parties’ negotiations and agreement, including
GEORGE, HARTZ, LUNDEEN, FULMER, JOHNSTONE, KING & STEVENS
#800 LEJEUNE ROAD, CORAL GABLES, FLORIDA 33146 * TELEPHONE (308) 662-4800without limitation, the retail fair market value of the traded in vehicle on the date of lease
negotiations and contracting;
(D) Loss of the benefit of the bargain.
17.. PLAINTIFF financed the 1996 Ford Explorer primarily for personal,
family or household purposes.
18. ~All conditions precedent to PLAINTIFF’s right of action against
Defendants have occurred, have been performed or otherwise have been excused.
19. PLAINTIFF has retained the undersigned attorney to represent her
interests in this matter and is obligated to pay said attorney a reasonable fee for services
rendered. PLAINTIFF is entitled to attorneys’ fees pursuant to Florida Statutes; section
501.2105.
WHEREFORE PLAINTIFF, JANUARY MARTIN, demands judgment for
damages ‘against Defendant, MAROONE CHEVROLET OF DELRAY, a Florida
corporation, together with interest, costs and attorney's fees.
TRIAL BY JURY DEMANDED AND ALL ISSUES SO TRIABLE
O, ar
DATED:
Preview
IN THE COUNTY COURT OF THE 15 JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA JANUARY MARTIN, Plaintiff, vs. CASE NO.:2006 CA 002750 AN MAROONE CHEVROLET OF CLASS REPRESENTATIO! DELRAY, LLC., a Florida limited liability corporation, AUTONATION FINANCIAL SERVICES CORP., a Foreign corporation, ‘qaus Defendants. / REPLY TO DEFENDANT'S AMENDED MOTION TO DISMISS FOURTH AMENDED COMPLAINT AND MOTION FOR ENLARGEMENT OF TIME AND/OR MOTION FOR PROTECTIVE ORDER Plaintiff, JANUARY MARTIN, by and through her undersigned counsel, files her Reply to Defendant's Amended Motion to Dismiss Fourth Amended Complaint and Motion for Enlargement of Time and/or Motion for Protective Order and states: 1. Defendant's initial argument in paragraphs 1 - 8 of its Motion to Dismiss is that it is too late to file a class action. 2. In response, Plaintiff would note that the original complaint was filed in County Court in Dade County on June 17, 2002 (Exhibit 1). 3. The Defendant filed a Motion to Dismiss on July 22, 2002 (Exhibit 2). The Motion to Dismiss was denied August 20, 2002. 4. Defendant's Answer and Affirmative Defenses were filed on August 30, 2002.5. On October 3, 2002, the Defendant filed a Motion to Dismiss or, in the Alternative for Judgment on the Pleadings on the grounds of improper venue. 6. Plaintiff filed an amendment to the Complaint on August 5, 2003 and also filed a Motion to Transfer the cause to the Circuit Court for Palm Beach County on that date. 7. Defendant filed a response to the Motion to Amend Motion to Transfer Venue and Request for Evidentiary Hearing on August 29, 2003. 8. Defendant answered the amended complaint on October 16, 2003 and also filed a Motion to Dismiss Amended Complaint on the same date. 9. With respect to the class action the Defendant filed a Motion for Protective Order dated April 13, 2004 in which Defendant states at paragraph 3: As recently as last week, Plaintiffs counsel stated that he intended to seek leave of this court to amend the Second Amended Complaint to add class action allegations concerning Chapter 634 and the service agreements. 10. In fact on July 28, 2004, the Plaintiff filed the Third Amended Complaint which was a class action complaint at which point the undersigned first appeared in the case. (Exhibit 3) 11. Defendant filed a Motion to Dismiss the Third Amended Complaint on August 20, 2004. 12. The Motion to Dismiss did not raise the timeliness of the fact that the Plaintiff asserted a class action. The Motion to Dismiss at paragraph 8 only alleges that the Plaintiff has failed to adequately allege a class action. (Exhibit 4) 13. On August 20, 2004, Defendant filed a Motion on behalf of Defendant toTransfer Venue to Broward County stating: On July 28, 2004, Plaintiff filed a Third Amended Complaint against Defendants in the County Court of the Eleventh Judicial Circuit in and for Miami, Dade County. Plaintiff on his Third Amended Complaint Plaintiff sought relief solely in an individual capacity. Through the Third Amended Complaint the Plaintiff has for the first time asserted a claim for class action relief...Moreover, since Plaintiff is now seeking class action relief, the aggregate damages of the proposed class would also exceed the jurisdictional threshold of the county court (Exhibit 5). 14. On June 30, 2005, the undersigned withdrew from the case since he was advised his services were no longer necessary. 15. | The Fourth Amended Complaint was filed on January 12, 2006, still in Dade County Circuit Court. 16. On January 11, 2006, the case was transferred to Palm Beach County. 17. In May 2006 the undersigned was requested to again assist in the handling of this matter and filed a Notice of Appearance in May of 2006. 18. The Motion to Dismiss filed on August 20, 2004 addressing the Third Amended Complaint was not disposed of. 19. _ Inlight of the foregoing, the Defendant's Motion for Enlargement of Time and Motion for Protective Order (Exhibit 6), is patently frivolous. The essential underlying objections are the same which have already withstood a Motion to Dismiss the same causes of action. 20. The only issue not heard or ruled on concerns the sufficiency of the class action allegations. All of the other allegations have previously withstood Motions to Dismiss addressed to those issues. 21. The Defendant states in paragraph 4 of its Motion for Enlargement of Timeand/or Motion for Protective Order, accompanying its Motion to Dismiss, that the “Plaintiff's attempt to convert the suit from an individual action to a class action at this stage of the proceedings is untimely.” 22. On the contrary, Defendant’s motion is untimely since the Complaint was already amended back in 2004 and Defendant did not raise the issue at that time. Having failed to raise it at that time, it is too late to raise it three years later. 23. Againin paragraph 7 of its Motion for Enlargement of Time and/or Motion for Protective Order, Defendant states: After Maroone Chevrolet served its Motion to Dismiss Fourth Amended Complaint Plaintiff served the first set of interrogatories on October 19, 2007. Through the discovery request Plaintiff seeks discovery relating to the untimely class action claims. 24. Onthe contrary, the class claims are not untimely. 25. \ Defendant states at paragraph 9 of its Amended Motion to Dismiss Fourth Amended Complaint that the case against Maroone Chevrolet and AutoNation Financial Services is barred by Section 501.212(4)(d) Florida Statute arguing that “the FDUTPA does not apply to any activity regulated under the insurance code” and therefore since Plaintiffs alleged a cause of action under Chapter 501 arising out of conduct covered by §634.433 F.S., the Plaintiff cannot pursue this cause of action against these Defendants. 26. Defendant's argument is ill-founded. 27. Chapter 634 F.S. relates to Warranty Associations. 28. Part 3 of Chapter 634 relates to Service Warranty Associations. 29. §634.4025F.S. provides the exclusivity of its applicability to Service Warranty Association stating:Except as provided in its part, service warranty associations shall be governed by this part and shail be exempt from all other provisions of the Florida Insurance Code. 30. These statutes govern the conduct of service warranty associations and do not govern the conduct of non-service warranty association entities. 31. §634.401 F.S. Definitions provides, “as used in this part the term” ..-(13) “Service Warranty” means any warranty...which does not meet the exemption in paragraph (a) 32. §634.401(13)(a) “provides: ...motor vehicle service agreements...” 33. so that it’s clear that motor vehicle service agreements are not service warranties which are governed by this statute, and therefore the conduct at issue is not regulated by this section of Chapter 634. 34. | However, the misrepresentations in the sale of such service warranties are covered under 634.436, which under 501.203(3)(c) is a statute for the protection of consumers and therefore would lend itself to class action treatment as alleged by the Plaintiff. 35. It is also not clear that all activity except by those intended to be regulated comes under the authority of the department. 36. State v. Commercial Leasing, 946 So.2d 1253 (Fla. 1% DCA 2007) involved a case brought by the Florida Attorney General against Commercial Leasing as assignee of certain rights to receive lease payments from small businesses who had contracted with entities known as NorVergence, Inc. In that case, as here, the Defendant raised FDUTPA’s “bank exemption” filed under F.S. 501.212. The trial court had found that the applicantswere exempt because they were subsidiaries of the bank or because they were engaged in banking activity and therefore were exempt because they were regulated by state or federal agencies. The court states at page 1257: None of these "findings" by the trial judge include facts contained anywhere within the four corners of the first amended complaint. 37. Likewise, in the case at bar none of the arguments made by the Defendant with respect to its 501.212 argument are found within the four corners of this amended complaint. All well pled allegations should be treated as true in consideration of a Motion to Dismiss and the trial court must consider only the allegations within the four corners of the pleading to determine whether the allegations state a proper cause of action. And for this reason the First District found the trial court erred but it also disagreed with the trial court's conclusion that all banking subsidiaries and all lease financiers are necessarily exempt from the act. Stating at page 1257: The language of the statute appears only to exempt banks. The logic appears obvious: if a state or federal agency already regulates banks, there is no need for the Act to interfere. It is quite a leap, however, to suggest that, just because an entity is a subsidiary of a bank, it is necessarily exempt from the Act. It is an even greater leap to suggest that, just because lease financing (when conducted by banks) is regulated by federal agencies, that all lease financing is therefore regulated, even when conducted by non- banks. There was no evidence in the record, and certainly no allegation within the four corners of the pleading pending before the trial court, that the specific activities here were regulated by any other state or federal agency so as to avoid proscription as a deceptive or unfair trade practice. 38. — Likewise in the case at bar, because the car dealer is selling an insurance product does not make it an insurance company or because it is assisting in obtaining financing does not make it a bank. The court continues in respect to the allegations of deceptive and unfair trade practices as follows at page 1258:The trial court's order dismissing the complaint never discusses alleged unconscionable trade practices and never discusses the alleged unconscionability of the equipment rental cost term at all. The order does, however, analyze the four specific contract terms mentioned on the reverse side of the leases. We find the trial court's analysis focused too narrowly on these four lease provisions only and ignored the remaining allegations of the first amended complaint. Continuing, the First DCA states at page 1258: ...the issue when considering a claim under the Act is whether the alleged practice was "likely to deceive a consumer acting reasonably in the same circumstances.”. . A deceptive or unfair trade practice constitutes a somewhat unique tortious act because, although it is similar to a claim of fraud, it is different in that unlike fraud, a party asserting a deceptive trade practice claim need not show actual reliance on the representation or omission at issue. (Emphasis supplied) 39. The Defendant in the case at bar argues in subparagraph (b) of paragraph 9 of its motion that since the Plaintiff cannot state a cause of action for violation of 634.436, it cannot state a cause of action under 501. 40. This argument too is not well founded. This is precisely the situation which 501.203(3)(c) provides for: “Violation of this part” means any violation of this act or the rules adopted under this act and may be based upon any of the following as of July 1, 2006: ...(c) Any law, statute, rule, regulation, or ordinance which prescribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices. 41. See Jones v. TT of Longwood, Inc., 6:06-CV-651-ORL-19DAB (M.D. Fla. 2006) at page 12 as follows: Florida law is clear that a violation of FDUTPA may be based upon "[a]ny law, statute, rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices." See, e.g., F.S.A. §501.203(3)(c); Smith v. 2001 South Dixie Highway, Inc.,872 So. 2d 992, 994 (Fla. 4th DCA 2004). Which quotes the 2002 version of the Florida Deceptive and Unfair Trade Practice Act stating: Florida Statute 501.201 - .213, Florida Statute (2002), provides a civil cause of action for “Unfair methods of competition, unconscionable acts or practices and unfair or deceptive acts or practices in conduct of any trade or commerce.” A violation of FDUTPA may be based upon “any law, statute, tule, regulation, or ordinance which prescribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices.” Citing Section 501.203(3)(c). 42. In paragraph 9© of its motion the Defendant states the Plaintiffs must allege and prove actual damages. 43. Count | is for injunctive relief which is provided for under Section 501.211(1) as set forth in the complaint and the applicable statute. 44. The court in Holt v. O’Brien, 862 So.2d 87, (Fla. 2° DCA 2003) considering a claim for injunctive relief under FDUTPA states at page 89: Section 501.211(1) Florida Statutes is broadly worded to authorize declaratory and injunctive relief even if those remedies might not benefit the individual consumers who filed the suit...FDUTPA is designed to protect...the rights of the consuming public at large. Any attempt to limit FDUTPA liability is contrary to public policy. “[AJn individual cannot waive the protection of a statute that is designed to protect both the public and the individual.” 45. Defendant in paragraph 9(d) of its motion states that the relief is limited to Florida residents. This came about as a limit to the statute which occurred in 2006 and which would not affect substantive rights accruing prior to the passage of that statute. If the activity is continuing then there would be a sub-class within the class for all Florida residents after 2006. Prior to the 2006 amendment, the claim would apply to all 8Defendant’s customers. 46. Defendant’s argument with respect to Count Ill is that the notice provision required under Section 634.433 was not given. If in fact this is true, the Plaintiff would submit that the proper procedure would be to stay the proceedings with respect to Count lll and Plaintiff would provide the required Civil Remedy Notice. However, Plaintiffs would argue that Section 634.433 Florida Statute provides, as the Defendant has accurately quoted, that written notice shall be given to “the department and the insurer’. Neither the department nor the insurer are a Defendant in this lawsuit. The Plaintiff is not seeking relief from either the department or the insurer. The Plaintiff is not complaining about practices involving the department or the insurer. It is therefore difficult to conceive how either the department or the insurer could rectify the wrongs committed by the Defendants to this lawsuit and how any notice to the department or insurer would serve any useful purpose. Should the court determine that this is a condition precedent without which the lawsuit cannot proceed, the Plaintiffs would submit that the proper procedure would be to stay the matter. 47. Inthe alternative the Plaintiff could amend the complaint to pursue her claim individually and on behalf of the class under 634.282 (1)(b) due to the misleading nature of the representations as alleged and pursue a civil remedy pursuant to 634.271 for actual damages or $500 whichever is greater. 48. With respect to Defendant's argumentin paragraph 14(c) that Count II must be dismissed because a class action is not authorized against a service warranty association. Defendant, by definition, is not a service warranty association. 49. With respect to the Defendant's Motion to Dismiss regarding the class claim,the Florida Supreme Court in the case of Frankle v. City of Miami Beach, 340 So.2d 463 (Fla. 1976) made it very clear that it is not proper to dismiss the class claim until the Plaintiff has had an opportunity to pursue sufficient discovery to discover the facts necessary to be pled in the class action. 50. With respect to Defendant’s substantive arguments the Plaintiff would point the Court to the case of Engle v. Liggett Group, 945 So.2d 1246 (Fla. 2006) which is the most recent pronouncement from the Florida Supreme Court and validates issue certification in Florida. That is if there is a single significant issue that can be resolved in a class action then that in and of itself is sufficient for class certification. 51. The focus of the class action is the conduct of the Defendant and whether that conduct is uniform with respect to a specified class. Individual damage issues, individual causation issues, individual defenses will not defeat class certification. The court in determining the appropriateness of certification of the class will determine whether the conduct of the Defendant was uniform with respect to the class and whether the requisites set forth in Rule 1.220, F.R.Civ.P.(b)(3) have been met. In doing so the court will seek guidance from the Florida Supreme Court. As noted above, the most recent pronouncement of the Florida Supreme Court on the issues framed by the Defendant's motion is the Engle case. In Engle , the Supreme Court was considering the reversal by the Third District Court of Appeal of a final judgment entered in a smoker's class action lawsuit that sought damages against cigarette companies and industry organizations for smoking related injuries. A final judgment awarded $12.7 million in compensatory damages to three individual Plaintiffs and $145 billion in punitive damages for the entire class. The Third District upheld class certification initially and also held that it was proper for the jury 10to make findings in phase one of the trial on: 1. General Causation, 2. Addiction to Cigarettes, 3. Strict Liability in Tort, 4(a). Fraud by Concealment, 5(a). Civil Conspiracy Concealment, 6. Breach of Implied Warranty, 7. Breach of Expressed Warranty, and 8. Negligence. All of these findings were allowed to stand. The Engle case arose out of a class action claim which was certified by the trial court and affirmed on appeal in the case of RJ Reynolds Tobacco v. Engle, 672 So.2d 39 (Fla. 3° DCA 1996). In the 1996 Engle decision the Third DCA stated: This is an interlocutory appeal from a nonfinal trial court order certifying a plaintiffs class in a products liability action brought by certain named plaintiffs against the defendant R.J. Reynolds Tobacco Co. and a series of other tobacco companies. We affirm... The plaintiffs, and all others similarly situated, seek damages in the action below for certain diseases and medical conditions allegedly contracted by the plaintiffs due to their asserted addiction to smoking cigarettes containing nicotine produced by the defendants. The operative complaint alleges causes of action for strict liability in tort, fraud and misrepresentation, conspiracy to commit fraud and misrepresentation, breach of implied warranty of merchantability and fitness, negligence, breach of express warranty, intentional infliction of mental distress, and equitable relief. 52. The Engle Defendants argued that the individual issues would predominate over class issues and the class should not be certified. The court stated at page 41: Although certain individual issues will have to be tried as to each class member, principally the issue of damages, the basic issues of liability common to all members of the class will clearly predominate over the individual issues. 53. As set out by the Supreme Court ten years later, in 2006, at page 1256 the trial court issued a trial plan involving three phases: Phase | consisted of a year-long trial to consider the issues of liability and entitlement to punitive damages for the class as a whole. See Engle //, 853 So.2d 441.The jury considered common issues relating exclusively to the defendants’ conduct and the general health effects of smoking...at the conclusion of Phase |, the jury rendered a verdict for the Engle Class and against Tobacco on all counts. Phase II was divided into two subparts — Phase II-A and Phase II-B. Phase I-A was intended to resolve the issues of entitlement and amount of compensatory damages, if any, that the three individual class representatives...should receive. Phase II-B was designed to result in a jury determination of a total lump sum punitive damage award, if any, that should be assessed in favor of the class as a whole. 54. Atpage 1258 the Supreme Court sets out the trial plan with respect to Phase According to the trial plan, in Phase III, new juries are to decide the individual liability and compensatory damages claims for each class member (estimated to number approximately 700,000). Thereafter, the plan contemplated that the trial court would divide the punitive damages previously determined equally among any successful class members. Pursuant to the omnibus order, interest on the punitive award began accruing immediately. 55. At page 1263 the Supreme Court states: In Phase I, the jury decided issues related to Tobacco's conduct but did not consider whether any class members relied on Tobacco's misrepresentations or were injured by Tobacco's conduct. As the Third District noted, the Phase | jury "did not determine whether the defendants were liable to anyone."... It was therefore error for the Phase | jury to consider whether Tobacco was liable for punitive damages. Even if it were not error to determine entitlement to punitive damages in Phase |, it was clear error to allow the jury to go beyond mere entitlement and award classwide punitive damages when total compensatory damages had not been determined. 56. The court states at page 1265: .-without having total compensatory damages determined it would be “impossible to determine whether punitive damages bear a ‘reasonable’ relationship to the actual harm inflicted on the plaintiff.”57. The court states at page 1265, which is particularly germane here: In concluding that the Engle Class must be decertified, the Third District in Engle I ruled that the " ‘predominance’ or ‘commonality’ requirement is not satisfied, where claims involve factual determinations unique to each plaintiff.".. The district court explained that "common questions" did not predominate over individual issues because the choice of law analysis would require examination of numerous different state laws governing different individual claims... The court also concluded that class representation would not be “superior” to individual suits because: (1) individualized issues of liability, affirmative defenses, and damages outweighed any common issues in the case; (2) each class member had unique and different experiences, which would necessitate litigation of substantially separate issues, including legal causation, specific medical causation, reliance, and awareness of risks; and (3) individualized choice of law issues would cause class proceedings to be unmanageable. We conclude that the Third District erred in nullifying its previous affirmance of the trial court's certification order. Contrary to the Third District's conclusion, Florida Rule of Civil Procedure 1.220(d)(1) did not authorize the subsequent (and different) panel of appellate judges to simply substitute its judgment for that of the prior panel and reverse the trial court's certification order after the trial court entered its final judgment after Phase Il. 58. The court can read the balance of the Engle decision, but | think there’s enough shown here that the issues confronted by this court certainly pale in comparison to the issues confronted by the court in Engle and yet there was a case that not only successfully resolved numerous issues on a class basis but afforded a manageable way to resolve 700,000 claims. The Supreme Court's solution is set forth at page 1269 as follows: In this case, the Phase | trial has been completed. The pragmatic solution is to now decertify the class, retaining the jury's Phase | findings other than those on the fraud and intentional infliction of emotion distress claims, which involved highly individualized determinations, and the finding of entitlement to punitive damages questions, which was premature. Class members can choose to initiate individual damages actions and the Phase | common core findings we approved above will have res judicata effect in those trials... [t]he Court's decision as to liability is res judicata in any damages action individual class members decide to bring.Here the central issue is a very simple one and that is whether the Defendant represented the product which it was selling as an AutoNation product or whether it accurately disclosed it as a Fidelity Warranty product. If the representation created confusion in the mind of the reasonable consumer, that in and of itself is a sufficient basis for a class action and certification of that class. 59. Sonic Automotive, Inc. v. Galura, (2007 WestLaw Fla. 2" DCA) a FDUTPA class action case in point states: The complaint alleges that Sonic, through deceptive and unfair business practices, orchestrated a scheme to “stuff” or “pack” Etch into vehicle sales transactions without proper disclosure to customers. The complaint asserts that Etch is an essentially worthless and “unconscionably overpriced” anti- theft product... 60. In Galurathe trial court entered an order certifying a statewide FDUTPA class of consumers who purchased vehicles from Sonic’s Florida dealerships and whose purchases included Etch. The appellate court affirmed the trial court's 1.220(b)(3) certification but redefined the class. The court relied on Veal v. Crown Auto Dealerships, Inc, 236 F.R.D. 572 (M.D. Fla. 2006) stating: There, the United States District Court for the Middle District of Florida certified a class action against Crown Auto Dealerships, Inc., based upon Crown’s sale of Etch as part of its car sales. The plaintiff's claims included a FDUTPA claim similar to the claim brought here. The plaintiff alleged that Crown engaged in deceptive and unfair business practices in order to profit from the sale of the “Etch” product by routinely failing to make adequate disclosures concerning the sale of the product, including accurate disclosures of the amount financed, finance charges, and annual percentage rates in its standard form retail installment sales contract. The plaintiff further alleged that the product registration form “was misleading because it misled consumers as to the true benefit it provided, it failed to specify the premium paid for the ‘Etch’ product and it failed to name the insurer providing coverage. (Emphasis supplied) 61. Cole v. Echevarria, (Fla. 1* DCA 9-28-2007) case number 1D02-4746 14involved appeal from a certification order in a class action involving the Florida Unfair and Deceptive Trade Practices Act and Florida Consumer Collection Practices Act. The essence of the complaint was that the Defendants engaged in an illegal collection practice and deceptive trade practice by requiring the Plaintiff's to pay inflated costs for title searches and title examinations in order to reinstate their mortgages. The court states at page 7: Similarly, with regard to a violation of the FDUTPA, the prospective class member need not demonstrate that he or she relied upon a misrepresentation because the members of the class have similar interests in curtailing the deceptive activity. Badcock v. Myers, 696 So.2d 776, 780 (Fla. 1%" DCA 1996); Latman v. Costa Cruise Lines, Inc., 758 So.2d 699, 703 (Fla. 3 DCA 2000). Thus, whether the prospective class member actually reinstated is not pertinent. Rather, the operative event, i.e., the transmission of the reinstatement letter, impacted all prospective members of the class similarly...the statutory causes of action were triggered by the transmission of the reinstatement letter seeking illegitimate costs, not by the ultimate outcome of any foreclosure proceedings. 62. — Broinv. Philip Morris Companies, 641 So.2d 888 (Fla. 3° DCA 1994) involved dismissal of a class claim seeking damages under theories of strict tort liability, breach of implied warranty, negligence, fraud, misrepresentation, and conspiracy to commit fraud. The 3° DCA reversed the trial court's dismissal of the complaint finding inter alia: Contrary to defendants’ assertion, plaintiffs’ legal claims need not be completely identical. (Citations omitted) Plaintiffs must merely establish a common claim “arising from the same practice or course of conduct that gave rise to the remaining claims and _...based on the same legal theory.” (Citations omitted) Claims that arise from different factual contexts may be pled as a class action if they present a question of common interest. Love v. General Development Corp., 555 So.2d 397, 398 (Fla. 3° DCA 1989). The complaint satisfies this prerequisite. It is of no moment, as defendant claims. that different statutes of limitation may apply, or that different choice of law provisions may govern. Differences among the class members as to applicable statutes of limitations do not require dismissal of a class action.(Citation omitted) Entitlement to different amounts of damages is not fatal to a class action. (Citation omitted) Should it become appropriate, the 1Scourt may divide the class into subclasses to resolve these issues.(Citation omitted). (Emphasis supplied) 63. In Latman v. Costa Cruise Lines, 758 So.2d 699 (Fla. 3° DCA 2000) the cruise line charged customers what was designated as a port charge but in fact retained a substantial amount of the money so designated as additional profit for the cruise line without disclosing that to the Plaintiffs. The court states: We therefore conclude that when a cruise line bills the passenger for port charges but keeps part of the money for itself, that is a deceptive practice under FDUTPA. Reliance and damages are sufficiently shown by the fact that the passenger parted with the money for what should have been a “pass-through” port charge, but the cruise line kept the money. 64. | W.S. Badcock Corporation v. Myers, 696 So.2d 776 (Fla. 1** DCA 1996) was a class action brought under the Florida Deceptive and Unfair Trade Practices Act where Badcock charged a non-filing fee to every purchaser. The court certified the class finding that it was an unfair and deceptive trade practice to charge the non-filing fee. Badcock challenged that determination on appeal saying that class certification was prohibited with respect to common law allegations for fraud since the charge was not properly disclosed and was misrepresented. The court stated at page 779: A finding of fraud is not necessary to sustain a violation under the DUTPA. (Citations omitted) Violations of the TILA are determined on an objective standard, based on the representations in the relevant disclosure documents, with no necessity to establish the subjective misunderstanding or reliance of particular customers. The court continuing at page 781 states: In the order, the trial court found Badcock had been guilty of deceptive and unfair trade practices in violation of section 501.204, Florida Statutes, because (1) Badcock represented the non-filing fee was for purchase of insurance, when the relationship between Badcock and American Bankers was not one of insurance; (2) if the relationship were deemed insurance, it 16was at best bankruptcy insurance or credit insurance, not non-filing insurance as represented by Badcock; (3) the additional charge was not a filing fee or a fee for purchase of non-filing insurance, thus was in direct violation of the TILA; and (4) because Badcock was an automatically perfected purchase money creditor, the additional charge for insurance, which was included in the amount to be financed rather than in the total finance charge, was a violation of the TILA. 65. Asa violation of TILA it became actionable under the Unfair and Deceptive Trade Practice Act. The court then discussed the carve out position under * which states that 501 does not apply to any activity regulated under the law as administered by the Department of Insurance or the Florida Public Service Commission or banks and savings and loan associations. The court did an analysis of whether the service provided to Badcock by American Bankers constituted insurance finding that the arrangement between Badcock and American Bankers constituted a form of default protection rather than non- filing insurance and, as such, should have been included in the finance charge. 66. For all the foregoing reasons the Defendant's Amended Motion to Dismiss Fourth Amended Complaint and Motion for Enlargement of Time and/or Motion for Protective Order should be denied the Plaintiff should be allowed to pursue the discovery necessary to obtain facts sufficient to amend the complaint if necessary regarding the class claim and to move forward with the class certification. WHEREFORE, for the reasons stated above, Plaintiff respectfully requests that the Defendant’s Motions for Enlargement of Time and/or Motion for Protective Order and to Dismiss be denied. LYONS AND FARRAR, P.A. Counsel for PlaintiffDOUGLAS S. LYONS, ESQ. Florida Bar Number 128277 325 North Calhoun Street Tallahassee, Florida 32301 (850) 222-8811 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to RICHARD IVERS, Esq., Law Office of Richard A. Ivers, 1505 N. University Drive, Third Floor, Coral Springs, Florida 33071 and CHARLES HARTZ, Esq., George, Hartz, Lundeen, A Johnston, King & Stevens, 4800 LeJuene Rd., Coral Gables, Florida 33146 on this a See “Ze Douglas S. Lyot a day of January, 2008. ‘L:\Martin, January\Pleadings\Resporse\Supplemental Reply to M-Dismiss 1-3-08 wpdEXHIBIT 1IN THE COUNTY COURT OF THE 11% JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA CASENO.: 2: 6158 SP 25 THE ORIGINAL FILED | JANUARY MARTIN IN THE OFFICE OF - Plaintiff, CLERK CIRCUIT 8 COUNTY CouRTS DADE COUNTY, 2 VS. MAROONE CHEVROLET-OF DELRAY, LLC., a Florida limited liability corporation, Defendant. COMPLAINT Plaintiff, JANUARY MARTIN, by and through her undersigned attorney, sues Defendants, MAROONE CHEVROLET OF DELRAY, LLC., and avers the following facts and allegations, a statement of which is contained herein: an GENERAL ALLEGATIONS 1. This is an action for damages which exceeds $5,000.00, but which is less than $15,000.00 exclusive: of interest, costs and attorney’s fees. 2. Plaintiff, JANUARY MARTIN, hereinafter sometimes referred to as “PLAINTIFF” is, and at all times herein mentioned was, an individual, residing at 1915 Lavers Cr, #210, Delray Beach, FL 33444. 3. Defendant, MAROONE CHEVROLET OF DELRAY, hereinafter “sometimes referred to as "MAROONE?” is, and at all times herein mentioned was, a corporation, organized and existing under the laws of the State of Florida, having its Glitfor GEORGE, HARTZ, LUNDEEN, FULMER, JOHNSTONE, KING & STEVENS 4800 LEJEUNE ROAD, CORAL GABLES, FLORIDA 33146 + TELEPHONE (305) 662-4800delivery of her “new” Pre-owned Ford Explorer, 11. On November 10, 2000, MAROONE Prepared and obtained PLAINTIFF’s Signature on a retail finance agreement for the purchase of the 1996 Ford Explorer, vehicle identification number 1FMD032P6TZA08102 (“the Vehicle”), 12. On November 10, 2000, MAROONE represented to PLAINTIFF that the Silver vehicle Protection plan (warranty) would Cover all mechanical problems accept Power windows and Power door lock system problenis 13. The finance agreement does not accurately memorialize and reduce to writing the Parties’ negotiations and agreement. 14, MAROONE’s Statements, representations, affirmations, assurances, and conduct relating to the safety/mechanical inspection, overall quality and condition 15. By way of example and not as a means of limitation, listed below are the acts, Conduct, statements, representations, assurances and/or Omissions. made or omitted ‘to PLAINTIFF during the course of the lease transaction, which constitute deceptive and unfair trade Practices; (A) Misrepresenting to PLAINTIFF that because the vehicle had GEORGE, HARTZ, LUNDEEN, FULMER, JOHNSTONE, KING & STEVENS 4800 LEJEUNE ROAD, Coral GABLES, FLORIDA 33146 + TELEPHONE (305) 662-ago0nundergone a 162 point safety and mechanical inspection it was determined by MAROONE that the vehicle was in excellent mechanical condition, met their rigid standards for pre-owned vehicle sales, and was teady for immediate delivery. (B) Misrepresenting to PLAINTIFF during negotiations that PLAINTIFF’s finance rate would be 10% annual percentage rate, not the 15.19% rate reflected in the finance agreement. (C) Misrepresenting to PLAINTIFF that MAROONE was. the only dealer that would be able to acquire financing for the PLAINTIFF due to past credit difficulties, : (D) Preparing the November 10, 2000 finance agreement and obtaining PLAINTIFF’s signature thereon, which fails to accurately memorialize and reduce to writing the parties’ negotiations and agreement; 16. As a direct result of MAROONE’s deceptive and unfair trade practices, PLAINTIFF was actually aggrieved and has sustained and incurred: damages. The nature and extent of PLAINTIFF’s damages include, without limitation: (A) The difference between the negotiated percentage rate and the actual percentage rate as set forth in the finance agreement; (B) Excessive charges paid by PLAINTIFF for repair of the vehicle that should have been covered by the Silver protection plan (warranty); (C) The difference between PLAINTIFF’s monthly installment payments and the amount the monthly Payments would have been, including tax differential, had the finance agreement been written in.such a manner as to accurately memorialize and reduce to writing, the parties’ negotiations and agreement, including GEORGE, HARTZ, LUNDEEN, FULMER, JOHNSTONE, KING & STEVENS #800 LEJEUNE ROAD, CORAL GABLES, FLORIDA 33146 * TELEPHONE (308) 662-4800without limitation, the retail fair market value of the traded in vehicle on the date of lease negotiations and contracting; (D) Loss of the benefit of the bargain. 17.. PLAINTIFF financed the 1996 Ford Explorer primarily for personal, family or household purposes. 18. ~All conditions precedent to PLAINTIFF’s right of action against Defendants have occurred, have been performed or otherwise have been excused. 19. PLAINTIFF has retained the undersigned attorney to represent her interests in this matter and is obligated to pay said attorney a reasonable fee for services rendered. PLAINTIFF is entitled to attorneys’ fees pursuant to Florida Statutes; section 501.2105. WHEREFORE PLAINTIFF, JANUARY MARTIN, demands judgment for damages ‘against Defendant, MAROONE CHEVROLET OF DELRAY, a Florida corporation, together with interest, costs and attorney's fees. TRIAL BY JURY DEMANDED AND ALL ISSUES SO TRIABLE O, ar DATED: