         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                            NOT FINAL UNTIL TIME EXPIRES TO
                                            FILE MOTION FOR REHEARING AND
                                            DISPOSITION THEREOF IF FILED


RICHARD EASTER, ON BEHALF OF
HIMSELF AND ALL OTHER PERSONS
SIMILARLY SITUATED,

             Appellant,

 v.                                              Case No. 5D17-276

CITY OF ORLANDO,

             Appellee.

________________________________/

Opinion filed June 8, 2018

Non-Final Appeal from the Circuit Court
for Orange County,
Lisa T. Munyon, Judge.

David M. Kerner and Jason E. Weisser, of
Schuler, Halvorson, Weisser, Zoeller &
Overbeck, P.A., and Andrew A. Harris, of
Burlington & Rockenbach, P.A., West
Palm Beach, for Appellant.

Vincent Falcone III, David B. King, and
Thomas A. Zehnder, of King, Blackwell,
Zehnder & Wermuth, P.A., Orlando, for
Appellee.

Stephen F. Rosenthal, of Podhurst Orseck,
P.A., Miami, for Amicus Curiae Florida
Justice Association.
EVANDER, J.

       In this class action suit seeking refunds for fines paid pursuant to an

unconstitutional red-light camera ordinance, the class representative, Richard Easter,

appeals a non-final order denying his motion to certify the class. We have jurisdiction

pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi). In denying Easter’s

motion, the trial court found that Easter had failed to establish certain requirements for

class certification—commonality, typicality, predominance, and superiority. The court’s

findings on these factors were based, in large part, on its determination that the voluntary

payment defense applies to this case. The voluntary payment defense provides that

“where one makes a payment of any sum under a claim of right with knowledge of the

facts such a payment is voluntary and cannot be recovered.” City of Miami v. Keton, 115

So. 2d 547, 551 (Fla. 1959). On appeal, Easter argues that the voluntary payment

defense is inapplicable under the facts of this case and that the trial court erred in denying

his motion to certify the class. We affirm.

                          Procedural and Factual Background

       This case concerns an ordinance (“the Ordinance”) adopted by the City of Orlando

(“the City”) that authorized the use of cameras to record vehicles that failed to properly

stop at red lights. In addition to authorizing civil fines, the Ordinance authorized city-

appointed hearing officers to assess administrative charges against a vehicle owner in

the amount of the City’s costs if the owner’s appeal was denied.1




       1 The Ordinance also authorized a penalty for nonpayment of a fine, requiring the
City to deny the vehicle owner the “right to obtain and maintain any city permits or
licenses, including, but not limited to, occupational licenses (business tax receipts) and
building permits until the civil fine and any assessed costs of appeal were paid in full.”


                                              2
       The City issued 49,423 notices of infraction under the Ordinance. Of those vehicle

owners who were issued citations, 35,851 paid the fines without appeal, while 378 filed

notices of appeal. Most people who appealed raised factual challenges; less than ten

percent raised legal challenges. Of those people whose appeals were not summarily

granted, 174 attended a scheduled hearing, while 51 abandoned their appeals by paying

their fines without a hearing.

       In August 2009, Naveel Nasari filed a class action suit against the City and the

company administering the program, seeking: (1) a declaration that the Ordinance was

preempted by state law, (2) an injunction from further enforcement, and (3) class

damages for various claims including unjust enrichment.          Michael Udowychenko

subsequently replaced Nasari as the class representative. The trial court later entered a

final order determining that the Ordinance was invalid because it was preempted by state

law and otherwise conflicted with state statutes. This Court affirmed the trial court’s

decision in City of Orlando v. Udowychenko, 98 So. 3d 589 (Fla. 5th DCA 2012). In doing

so, we certified conflict with City of Aventura v. Masone, 89 So. 3d 233 (Fla. 3d DCA

2011), where our sister court upheld the validity of a similar red-light camera ordinance.

In a footnote, we noted that Udowychenko’s motion to certify the class had been denied:

              This was initially a class action suit. Udowychenko’s motion
              to certify the class was denied. The court noted that only
              Udowychenko had filed an action to challenge the ordinance
              and that others who paid the fine most likely would be barred
              by the doctrine of voluntary payment.




However, the City did not list the denial of city licenses or permits as a nonpayment
penalty in the notices of infraction, and it never imposed such penalties.


                                            3
Udowychenko, 98 So. 3d at 592 n.3. Because that denial was not challenged on appeal,

we did not address it further.

       In April 2010, the City sent Easter a notice of infraction of the Ordinance. He filed

a notice of appeal, arguing, in part, that the Ordinance was unlawful. After a hearing

officer upheld the infraction, Easter paid the fine. Thereafter, Easter filed the instant class

action suit against the City. In November 2012, the parties filed a joint motion to stay

proceedings pending resolution of the Udowychenko and Masone cases in the Florida

Supreme Court.

       The conflict between Udowychenko and Masone was resolved by the Florida

Supreme Court in Masone v. City of Aventura, 147 So. 3d 492 (Fla. 2014). There, in a 5-

2 decision, the court held that both cities’ ordinances were expressly preempted by state

law. After the resolution of Udowychenko and Masone, and after engaging in discovery,

Easter filed his motion to certify class. The trial court relied on the Florida Supreme

Court’s decision in Keton to conclude that the voluntary payment defense would be

applicable in the instant case, stating, “[T]he Florida Supreme Court has long held that

the doctrine applies when a local government imposes a fine later found preempted.”

                                 Voluntary Payment Defense

       On appeal, Easter argues that it was error for the trial court to rely on the

application of the voluntary payment defense in denying his motion for class certification.

We disagree.

       The voluntary payment defense has existed in Florida for over a century. In 1887,

the Florida Supreme Court noted that “money voluntarily paid upon claim of right, with full

knowledge of all the facts, cannot be recovered back merely because the party, at the




                                              4
the court noted that there had been no showing that any of the payments “were made

under protest.” Id.2

       In City of Hollywood v. Miller, 471 So. 2d 655 (Fla. 4th DCA 1985), our sister court

referenced Keton in reversing a final summary judgment entered in a class action in favor

of an individual challenging the procedural due process elements of a city parking

ordinance. After concluding that the city’s ordinance provided adequate due process for

those contesting parking citations, the court noted that Keton would have nevertheless

barred the plaintiff’s claim for a refund of amounts already paid:

                     Lastly, we note that even if [plaintiff] had been deprived
              of due process, under City of Miami v. Keton, 115 So. 2d 547
              (Fla. 1959), he would be precluded on these facts from any
              recovery.

Id. at 656.

       Subsequent to Keton, our court has recognized the continued viability of the

voluntary payment defense. See, e.g., Chateau Cmtys., Inc. v. Ludtke, 783 So. 2d 1227,

1231 (Fla. 5th DCA 2001) (“Equally individual are each tenant’s claim of coercion and

available defenses such as voluntary payment.”); Hall v. Humana Hosp. Daytona Beach,

686 So. 2d 653, 658 (Fla. 5th DCA 1996) (holding that statute did not bar hospital from

asserting voluntary payment defense). The purpose of the voluntary payment doctrine is

to promote stability in transactions so that the entity receiving payment may rely upon

payments without protest to use those funds in future activities, without fear of a claim of




       2A showing that the payor made a legal protest is not required where the penalty
for nonpayment “is so severe that it constitutes coercion and duress.” Broward Cty., Fla.
Bd. of Cty. Comm’rs v. Burnstein, 470 So. 2d 793, 795 (Fla. 4th DCA 1985). In the instant
case, Easter has not argued that the penalties for nonpayment were so severe that they
negated the protest requirement.


                                             6
the court noted that there had been no showing that any of the payments “were made

under protest.” Id.2

       In City of Hollywood v. Miller, 471 So. 2d 655 (Fla. 4th DCA 1985), our sister court

referenced Keton in reversing a final summary judgment entered in a class action in favor

of an individual challenging the procedural due process elements of a city parking

ordinance. After concluding that the city’s ordinance provided adequate due process for

those contesting parking citations, the court noted that Keton would have nevertheless

barred the plaintiff’s claim for a refund of amounts already paid:

                     Lastly, we note that even if [plaintiff] had been deprived
              of due process, under City of Miami v. Keton, 115 So. 2d 547
              (Fla. 1959), he would be precluded on these facts from any
              recovery.

Id. at 656.

       Subsequent to Keton, our court has recognized the continued viability of the

voluntary payment defense. See, e.g., Chateau Cmtys., Inc. v. Ludtke, 783 So. 2d 1227,

1231 (Fla. 5th DCA 2001) (“Equally individual are each tenant’s claim of coercion and

available defenses such as voluntary payment.”); Hall v. Humana Hosp. Daytona Beach,

686 So. 2d 653, 658 (Fla. 5th DCA 1996) (holding that statute did not bar hospital from

asserting voluntary payment defense). The purpose of the voluntary payment doctrine is

to promote stability in transactions so that the entity receiving payment may rely upon

payments without protest to use those funds in future activities, without fear of a claim of




       2A showing that the payor made a legal protest is not required where the penalty
for nonpayment “is so severe that it constitutes coercion and duress.” Broward Cty., Fla.
Bd. of Cty. Comm’rs v. Burnstein, 470 So. 2d 793, 795 (Fla. 4th DCA 1985). In the instant
case, Easter has not argued that the penalties for nonpayment were so severe that they
negated the protest requirement.


                                             6
find no error in the trial court’s determination that Easter failed to establish the

commonality, typicality, predominance, and superiority elements.

       Before addressing these elements individually, it is significant to note that Easter

filed his motion to certify the class after the Florida Supreme Court had determined that

the Ordinance was invalid. As a result, there was no longer an issue as to whether the

City had improperly imposed fines against potential class members. It had. The primary

issue became whether the City was required to refund monies paid, notwithstanding the

fact that fines had been improperly imposed in the first place. The City’s primary defense

against a timely claim for refund would be the voluntary payment defense.

       To establish the commonality requirement, the class proponent must establish that

its claim or defense “raises questions of law or fact common to the questions of law or

fact raised by the claim or defense of each member of the class.” Fla. R. Civ. P. 1.220(a).

The primary concern in a consideration of commonality is whether the representative’s

claim arises from the same practice or course of conduct that gave rise to the remaining

claims and whether the claims are based on the same legal theory. Sosa, 73 So. 3d at

107. However, the court may also consider the application of defenses in analyzing the

commonality element. Id. at 109. Here, because the issue of whether the City improperly

assessed fines under the Ordinance has been resolved, the trial court would be called

upon to determine whether each class member’s claim was precluded by the voluntary

payment defense. In considering the application of the voluntary payment defense,

Easter’s course of conduct was significantly different than that of virtually all other

members of the proposed class. Specifically, Easter paid his fine under protest after

raising a legal challenge to the validity of the Ordinance. As a result, the trial court could




                                             10
seeking a refund for the same the taxpayer need not comply with the ‘administrative’

requirements in section 215.26.” (Emphasis added).3

       Significantly, the Kuhnlein opinion did not reference Keton or the voluntary

payment defense. The Florida Supreme Court has made clear that it does not overrule

itself sub silentio:

                      We take this opportunity to expressly state that this
               Court does not intentionally overrule itself sub silentio. Where
               a court encounters an express holding from this Court on a
               specific issue and a subsequent contrary dicta statement on
               the same specific issue, the court is to apply our express
               holding in the former decision until such time as this Court
               recedes from the express holding.

Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002).

       Accordingly, we agree with the trial court that Keton is controlling in the instant

case and, thus, it was proper for the trial court to consider the application of the voluntary

payment defense in determining whether to grant Easter’s motion to certify the class.

                                    Class Certification

       A trial court’s decision to grant or deny class certification is reviewed for an abuse

of discretion. Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 102-03 (Fla. 2011).

However, we examine a trial court’s factual findings for competent, substantial evidence,

and review conclusions of law de novo. Discount Sleep of Ocala, LLC v. City of Ocala,

43 Fla. L. Weekly D123, D124 (Fla. 5th DCA Jan. 5, 2018).




       3 The United States Supreme Court has noted that Florida has a “longstanding
practice of permitting taxpayers to seek refunds under § 215.26 for taxes paid under an
unconstitutional statute.” Newsweek, Inc. v. Fla. Dep’t of Rev., 522 U.S. 442, 444 (1998).



                                              8
       Class actions in Florida are governed by Florida Rule of Civil Procedure 1.220.

The class proponent has the burden to prove four prerequisites to class certification under

rule 1.220(a):

                 (1) the members of the class are so numerous that separate
                 joinder of each member is impracticable, (2) the claim or
                 defense of the representative party raises questions of law or
                 fact common to the questions of law or fact raised by the claim
                 or defense of each member of the class, (3) the claim or
                 defense of the representative party is typical of the claim or
                 defense of each member of the class, and (4) the
                 representative party can fairly and adequately protect and
                 represent the interests of each member of the class.

Fla. R. Civ. P. 1.220(a); Terry L. Braun, P.A. v. Campbell, 827 So. 2d 261, 265-66 (Fla.

5th DCA 2002). These four prerequisites are referred to as numerosity, commonality,

typicality, and adequacy. Terry L. Braun, P.A., 827 So. 2d at 266. In addition to satisfying

the four prerequisites in rule 1.220(a), the class proponent must prove one of three

requirements in subsection (b) of the rule. Discount Sleep, 43 Fla. L. Weekly at D126.

Easter sought certification under subsection (b)(3), which requires that

                 [q]uestions of law or fact common to the claim or defense of
                 the representative party and the claim or defense of each
                 member of the class predominate over any question of law or
                 fact affecting only individual members of the class, and class
                 representation is superior to other available methods for the
                 fair and efficient adjudication of the controversy.

Fla. R. Civ. P. 1.220(b)(3). These requirements are known as the predominance and

superiority requirements.      Terry L. Braun, P.A., 827 So. 2d at 269.            As the class

proponent, Easter had the burden to establish each and every element required by rule

1.220. Id. A class action may be certified only after the trial court determines after

“rigorous analysis” that the elements of the class action rules have been satisfied. Id. We




                                               9
find no error in the trial court’s determination that Easter failed to establish the

commonality, typicality, predominance, and superiority elements.

       Before addressing these elements individually, it is significant to note that Easter

filed his motion to certify the class after the Florida Supreme Court had determined that

the Ordinance was invalid. As a result, there was no longer an issue as to whether the

City had improperly imposed fines against potential class members. It had. The primary

issue became whether the City was required to refund monies paid, notwithstanding the

fact that fines had been improperly imposed in the first place. The City’s primary defense

against a timely claim for refund would be the voluntary payment defense.

       To establish the commonality requirement, the class proponent must establish that

its claim or defense “raises questions of law or fact common to the questions of law or

fact raised by the claim or defense of each member of the class.” Fla. R. Civ. P. 1.220(a).

The primary concern in a consideration of commonality is whether the representative’s

claim arises from the same practice or course of conduct that gave rise to the remaining

claims and whether the claims are based on the same legal theory. Sosa, 73 So. 3d at

107. However, the court may also consider the application of defenses in analyzing the

commonality element. Id. at 109. Here, because the issue of whether the City improperly

assessed fines under the Ordinance has been resolved, the trial court would be called

upon to determine whether each class member’s claim was precluded by the voluntary

payment defense. In considering the application of the voluntary payment defense,

Easter’s course of conduct was significantly different than that of virtually all other

members of the proposed class. Specifically, Easter paid his fine under protest after

raising a legal challenge to the validity of the Ordinance. As a result, the trial court could




                                             10
properly conclude that the questions of law or fact that would need to be addressed on

Easter’s claim are not common to the questions of law or fact that would need to be

addressed on the claims of other proposed class members.

       To establish the typicality requirement, the class proponent must establish that its

claim or defense is typical of the claim or defense of each member of the class. Fla. R.

Civ. P. 1.220(a). Although the focus is usually whether the class representative has the

same legal interest and has endured the same legal injury as the class members, Sosa,

73 So. 3d at 114-15, courts may consider the applicability of defenses in determining

typicality. See Wyeth, Inc. v. Gottlieb, 930 So. 2d 635, 643 (Fla. 3d DCA 2006) (“Since

factual differences among the class members’ claims and the defenses which Wyeth can

assert vary depending on each plaintiff’s individual circumstances and conditions, Ms.

Gottlieb’s claims are not typical of the class.”); Seminole Cty. v. Tivoli Orlando Assocs.

Ltd., 920 So. 2d 818, 823 (Fla. 5th DCA 2006) (holding plaintiff failed to satisfy typicality

requirement where it presented no evidence and complaint alleged plaintiff “was the only

developer described in the claim, the only developer to pay under protest, and the only

developer to challenge the fees”); Mathieson v. Gen. Motors Corp., 529 So. 2d 761, 762

(Fla. 3d DCA 1988) (“A claim is not representative where the defenses of each plaintiff

would be dependent on different facts and circumstances.”). Easter made significant

efforts to contest his fine, prior to eventually making payment under protest. By contrast,

most of the proposed class members simply paid the fine. Accordingly, the trial court

could properly conclude that Easter’s claim was not typical of the claims of the other class

members.




                                             11
       To establish the predominance element, the class proponent must establish that

“the questions of law or fact common to the claim or defense of the representative party

and the claim or defense of each member of the class predominate over any question of

law or fact affecting only individual members of the class.” Fla. R. Civ. P. 1.220(b)(3).

The Florida Supreme Court has observed that the determination of whether a party has

shown actual compulsion or coercion sufficient to overcome the voluntary payment

defense normally requires an individualized, fact-intensive inquiry. See Pacific Mut. Life

Ins. Co. of Cal., 170 So. at 583 (stating that because of difficulty in setting forth a definite

and exact rule of universal application to determine whether a payment is voluntary or

involuntary, each case “must depend somewhat upon its own peculiar facts”); see also

Chateau Cmtys., Inc., 783 So. 2d at 1231 (reversing certification of class members where

plaintiff’s claims, as pled, were not suitable for class action; stating “[e]qually individual

are each tenant’s claim of coercion and available defenses such as voluntary payment”).

       Here, the application of the voluntary payment defense doctrine supports the trial

court’s conclusion that Easter failed to prove the predominance element. In discussing

predominance, the trial judge noted that even if those proposed class members who

“objected to their fines but did not seek judicial relief” were not immediately barred,

overcoming the voluntary payment defense would require a “highly individualized”

determination regarding the nature of the objection, the extent to which each person

pursued the objection, and whether the potential penalties compelled or coerced payment

from that person. Thus, the trial court could properly conclude that in determining whether

the City was required to pay refunds to potential claimants, individual issues would

predominate over common issues.




                                              12
       To establish the superiority requirement, the class proponent must establish that

class representation “is superior to other available methods for the fair and efficient

adjudication of the controversy.” Fla. R. Civ. P. 1.220(b)(3). In affirming the trial court’s

conclusion that Easter failed to establish the superiority element, we find it appropriate to

quote from Judge Frederick Lauten’s order denying the motion to certify class in the

Udowychenko case:

              If Plaintiff’s putative class is certified, all drivers cited under
              the Ordinance would be included in the class and be entitled
              to class notice, a time consuming and expensive proposition.
              Only later, after unnecessary consumption of party and
              judicial resources, would the other members of the class very
              likely be told that, pursuant to binding Florida Supreme Court
              precedent in Keaton [sic], they are unable to recover the fines
              they paid because of the voluntary payment defense. Surely
              the law does not require such a pointless, time-consuming
              and fruitless action. In some ways, there is a certain cruelty
              to Plaintiff’s argument when he asserts that the Court should
              ignore the voluntary payment doctrine, certify the class with
              the attendant effect of raising hopes that notified class
              members only to later announce to them that they voluntarily
              paid their fines and are not equally entitled to relief.

       AFFIRMED.


BERGER and EDWARDS, JJ., concur.




                                              13
