A recent Florida appellate decision determined that a Florida health care provider effectively “picked off” (or mooted) a plaintiff’s damages claims that had been asserted pursuant to the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), but did not moot the non- damages claims under FDUTPA such as declaratory and injunctive relief.
In Ahearn v. Mayo Clinic, 40 Fla. L. Weekly D2502d (Fla. 1st DCA Nov. 6, 2015), the First District Court of Appeal partially reversed a trial court’s determination on summary judgment that all causes of action asserted by a former emergency room patient regarding alleged excessive charges were mooted by Mayo Clinic’s affirmative waiver of its right to collect those charges. The appellate court determined that the former patient’s damages claims were moot, and therefore could not form the basis of any potential class claims, but the non-damages claims seeking declaratory and injunctive relief were not moot. Therefore, the non-damages claims were remanded back to the trial court for further proceedings.
The appellate court explained that prevailing Florida law on the subject of “picking off” class representative claims differs from most federal court holdings:
A majority of federal cases seems to support Ahearn’s argument that a defendant cannot “pick off” a putative class representative by rendering moot the individual claim, even if the class has not yet been certified. However, we are compelled to follow Florida Supreme Court precedent which sets forth a bright-line rule. In Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 116 (Fla. 2011), the Court held before a class can be certified the putative class representative must have standing and “[t]o satisfy the standing requirement for a class action claim, the class representative must illustrate that a case or controversy exists between him or her and the defendant, and that this case or controversy will continue throughout the existence of the litigation.” In Sosa, the putative class representative had an existing case or controversy because he had a claim for an actual injury. Id.at 117. Since Ahearn no longer has a claim for individual damages for breach of contract, standing to serve as a class representative on that count is lacking as he has no case or controversy as to that claim.
Admittedly, Sosa did not involve the picking off of a putative class representative. However, other Florida district courts of appeal faced with the issue have held that if the claim of the putative class representative is extinguished before class certification, then the putative representative cannot bring a claim on behalf of a class. For instance, in Taran v. Blue Cross Blue Shield of Florida, Inc., 685 So. 2d 1004 (Fla. 3d DCA 1997), plaintiffs, individually and as putative class representatives, brought statutory claims for allegedly being charged excessive health insurance premiums. After suit was filed, Blue Cross issued refunds to the plaintiffs, thereby extinguishing their individual causes of action and picking them off. Id. at 1007. “[I]f none of the named plaintiffs purporting to represent a class establishes a requisite of a case or controversy with the defendant, none may seek relief on behalf of himself or any other member of the class.” Id. at 1006 (quoting O’Shea v. Littleton, 414 U.S. 488, 494, 94 S. Ct. 669, 675, 38 L. Ed. 2d 674, 682 (1974)) (footnote and citations omitted). See also Chinchilla v. Star Cas. Ins. Co., 833 So. 2d 804 (Fla. 3d DCA 2002); Graham v. State Farm Fire & Cas. Co., 813 So. 2d 273 (Fla. 5th DCA 2002); Syna v. Shell Oil Co., 241 So. 2d 458 (Fla. 1970).
Ahearn, 40 Fla. L. Weekly D250d at *2-3.
Based upon prevailing Florida law, the appellate court determined that the former patient’s damages claims for breach of the implied covenant of good faith and fair dealing, as well as for actual damages under FDUTPA, were moot and subject to summary judgment. However, the Court also concluded that, because FDUTPA creates an independent claim for “aggrieved” plaintiffs to seek injunctive and declaratory relief, and to be “aggrieved” a plaintiff need not necessarily suffer actual damages, such claims under FDUTPA were not mooted by the Mayo Clinic’s affirmative waiver of its collection rights. The appellate court explained:
Section 501.211(2), Florida Statutes, provides in part, “[i]n any action brought by a person who has suffered a loss as a result of a violation of this part, such person may recover actual damages, plus attorney’s fees and court costs.” As is the case with Ahearn’s breach of contract claim, his claim under section 501.211(2) for damages was made moot when Mayo Clinic waived his balance and agreed to pay attorney’s fees and costs. Since he has no claim for actual damages, and only the amount of fees and costs is left to determine, he has no claim under section 501.211(2). Since he has no individual claim for damages, Ahearn has no standing to sue on behalf of a class for damages under section 501.211(2). See Baptist Hosp. Inc. v. Baker, 84 So. 3d 1200 (Fla. 1st DCA 2012) (holding lack of actual injury by class representative precluded class action for damages under section 501.211(2)).
As to Ahearn’s claim in count three for declaratory and injunctive relief under FDUTPA, such claims are governed by section 501.211(1), which provides,
[w]ithout regard to any other remedy or relief to which a person is entitled, anyone aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise likely to violate this part.
The term “aggrieved” is not defined in FDUTPA. Mayo Clinic contends that “aggrieved” has the same meaning as “harmed,” “adversely affected,” or “suffered damages.” Such an argument is unpersuasive given the Legislature’s use of the distinctive wording of subsections (1) and (2) of section 501.211. As indicated, subsection (1) affords declaratory relief to “anyone aggrieved” by a violation of FDUTPA. On the other hand, subsection (2) provides that a person may recover “actual damages” for a “loss as a result of a violation” of FDUTPA. “It is well settled that legislative intent is the polestar that guides a court’s statutory construction analysis.” State v. J.M., 824 So. 2d 105, 109 (Fla. 2002). “[L]egislative intent may be discerned from the Legislature’s election to use different words to convey different meanings within a statute.” Dep’t of Revenue v. Central Dade Malpractice Trust Fund, 673 So. 2d 899, 901 (Fla. 1st DCA 1996). “[W]here the document has used one term in one place, and a materially different term in another, the presumption is that the different term denotes a different idea.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts § 25, p. 170 (2012).
Since it is presumed that the Legislature intentionally used different terminology in subsections (1) and (2), the question becomes how to define these terms. Black’s Law Dictionary (10th ed. 2014) defines “aggrieved” as “1. (Of a person or entity) having legal rights that are adversely affected; having been harmed by an infringement of legal rights. 2. (Of a person) angry or sad on grounds of perceived unfair treatment.”5 The first definition in Black’s would be synonymous with damaged or suffered a loss. If the Legislature intended such, it would have said “suffered a loss” or “damaged” based on the text of 501.211(2). The second definition in Black’s is more consistent with the meaning of aggrieved in the context of the statute. It is this meaning we adopt as the meaning of “aggrieved” under section 501.211(1).
This definition of “aggrieved” as being more expansive than “damaged” or “suffered a loss” is consistent with cases from this and other courts analyzing FDUTPA. In Davis v. Powertel, Inc., 776 So. 2d 971, 975 (Fla. 1st DCA 2000), we did not precisely define “aggrieved” but held, it follows that an aggrieved party may pursue a claim for declaratory or injunctive relief under the Act, even if the effect of those remedies would be limited to the protection of consumers who have not yet been harmed by the unlawful trade practice.
Clearly, Davis construed “aggrieved” to be broader than “suffered a loss.” In Davis, Judge Webster wrote a concurring opinion and expressed concern that the expansive view of the meaning of aggrieved and broad standing allowed under this provision of FDUTPA provided “the potential for mischief.” Id. But Judge Webster felt “compelled by the remarkably broad language of the Florida Deceptive and Unfair Trade Practices Act” to reverse. Id. Judge Webster further noted that if the Davis court was giving too broad a reading of FDUTPA, the Legislature could always remedy the problem. In the over fourteen years since Davis was decided, the Legislature has not limited the definition of “aggrieved” in section 501.211(1).
In Wyndham Vacation Resorts, Inc. v. Timeshares Direct, Inc., 123 So. 3d 1149 (Fla. 5th DCA 2012), the Fifth District Court of Appeal was faced with the question of whether an aggrieved party had to suffer monetary damages to be able to maintain an action for an injunction under section 501.211(1). It was alleged that Timeshares Direct used stolen information from Wyndham to solicit owners of Wyndham timeshares to use Timeshares Direct’s services. Id. at 1150. Similar to the instant case, the trial court ruled in Wyndham that because Wyndham could not prove actual damages on its FDUTPA claims, injunctive relief under FDUTPA was precluded as a matter of law. Id. at 1151. In reversing the trial court, our sister court reviewed the purpose of FDUTPA and held, as we hold here, that “regardless of whether an aggrieved party can recover ‘actual damages’ under section 501.211(2), it may obtain injunctive relief under section 501.211(1).” Id. at 1152 (citing Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 136 F. Supp. 2d 1271, 1292-93 (S.D. Fla. 2001), and Big Tomato v. Tasty Concepts, Inc., 972 F. Supp. 662, 664 (S.D. Fla. 1997)). Furthermore, in Kelly v. Palmer, Reifler, & Assocs., P.A., 681 F. Supp. 2d 1356 (S.D. Fla. 2010), the federal district court held that a party is aggrieved for purposes of section 501.211(1) even though the offending conduct was voluntarily ceased.
We do not attempt here to establish a bright-line test as to when a person is or is not aggrieved under FDUTPA. We note that for someone to be aggrieved, the injury claimed to have been suffered cannot be merely speculative. Macias v. HBC of Florida, Inc., 694 So. 2d 88 (Fla. 3d DCA 1997). It should be emphasized the plain language of section 501.211(1) offers declaratory and injunctive relief against a party “who has violated, is violating, or is otherwise likely to violate this part.” (Emphasis added). Thus, the deliberate use of the past tense establishes that the offending conduct need not be continuing in order to seek declaratory or injunctive relief. But, an “aggrieved” person for purposes of section 501.211(1) nevertheless must be able to demonstrate some specific past, present, or future grievance, otherwise the statute would have no meaning in violation of settled rules of statutory construction. See Unruh v. State, 669 So. 2d 242 (Fla. 1996) (explaining courts should avoid reading a statute in a manner which renders part of the statute meaningless).
We are guided by the definition of “aggrieved” in the context of “standing to enforce local comprehensive plans through development orders,” which is contained in section 163.3215(2), Florida Statutes. This statute provides in pertinent part,
As used in this section, the term “aggrieved or adversely affected party” means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons.
Therefore, a material issue of fact remains as to whether Ahearn was “aggrieved” under section 501.211(1). Since Ahearn individually has a case or controversy as to his claim for declaratory and injunctive relief under section 501.211(1), he may also attempt to assert a claim as class representative for this relief pursuant to Sosa and Taran. We do not address whether certification of the class is appropriate per rule 1.220, Florida Rules of Civil Procedure, as this issue is not before us. The summary judgment granted by the trial court as to count three of the complaint is reversed as to the claims for declaratory and injunctive relief both individually and as putative class representative.
Ahearn, 40 Fla. L. Weekly D250d at *4-5.
Thus, when attempting to “pick off” class representative claims by eliminating the named plaintiff’s alleged damages, defendants need to be mindful that non-damages claims under FDUTPA may nonetheless survive. This issue should be factored into strategy considerations regarding whether the waivers required by the defendant to “pick off” the damages claims might result in a waiver of substantive defenses to non-damages claims.