                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

FLORIDA DEPARTMENT OF                NOT FINAL UNTIL TIME EXPIRES TO
TRANSPORTATION and JIM               FILE MOTION FOR REHEARING AND
BOXOLD, in his official capacity     DISPOSITION THEREOF IF FILED
as Secretary of the Florida
Department of Transportation,        CASE NO. 1D16-4586

      Appellants,

v.

TROPICAL TRAILER
LEASING, LLC, et al.,

     Appellees.
_____________________________/

Opinion filed November 6, 2017.

An appeal from the Circuit Court for Leon County.
Karen Gievers, Judge.

Clinton L. Doud, Chief Counsel, Civil Litigation; Ryan Scott Bourgoin, Assistant
General Counsel, Civil Litigation; George S. Reynolds, IV, and Marc A. Peoples,
Assistant General Counsels, Florida Department of Transportation, Tallahassee, for
Appellants.

Diane G. DeWolf of Akerman LLP, Tallahassee; A. Rodgers Traynor, Jr. and
Lawrence D. Silverman of Akerman LLP, Miami, for Appellees.


B.L. THOMAS, C.J.

      The Florida Department of Transportation appeals the trial court’s non-final

order certifying two sub-classes in favor of Appellee, Tropical Trailer Leasing,

LLC. The Department argues that the trial court abused its discretion on three
grounds: deciding the merits of Tropical Trailer’s claim; certifying broader sub-

classes than requested by Tropical Trailer; and finding that Tropical Trailer proved

the elements of rule 1.220, Florida Rules of Civil Procedure. We disagree with the

Department’s assertion that the trial court decided the merits of Tropical Trailer’s

underlying claim, but we reverse the order and remand, because the trial court

abused its discretion by expanding the class beyond that pled in Tropical Trailer’s

amended complaint. As we reverse on this issue, we do not reach the issue of

whether Tropical Trailer proved the elements of rule 1.220, Florida Rules of Civil

Procedure.

                                        Facts

      Tropical Trailer leases trailers to third parties. It filed suit to invalidate the

Department’s method of assessing tolls for towed trailers. Tolls were previously

assessed against the vehicle pulling the trailer. Following the advent of cashless

billing, SunPass transponders were installed on vehicles, and the Department

began assessing tolls without requiring vehicle drivers to stop; but not all semi-

trucks had SunPass transponders installed. The Department later implemented the

toll-by-plate billing system, using either front-plate cameras or rear-plate cameras

to capture photographs of license plates to assess tolls.

      In Florida, license plates on semi-trucks are attached to its front bumper, and

license plates on cars, trucks, and trailers are attached to the vehicle’s rear bumper.

                                           2
At some tolling locations, the Department has only installed rear-plate cameras,

which assess a toll against the trailer owner, while at other tolling locations, the

Department has installed both front and rear-plate cameras. In cases where a semi-

truck’s front-license plate is hidden, or when a vehicle is towing a trailer and the

vehicle’s rear license plate is obscured, the toll is assessed against the trailer

owner, rather than the vehicle owner, as the trailer’s rear license plate remains

visible.

       Tropical Trailer sued the Department for erroneously interpreting sections

316.003(21) and 316.1001, Florida Statutes (2010), to authorize the Department to

assess tolls against the trailer owner, instead of the owner of the vehicle towing the

trailer. Tropical Trailer asserted that its trailers were not “motor vehicles” within

the meaning of section 316.003(21), and that the Department should have charged

the vehicle owner the toll pursuant to section 316.1001, because the vehicle owner

was the “person” who “used” the toll road. Tropical Trailer argued that while it

may know who was driving the vehicle and thus could obtain reimbursement,

many times leasing contracts preclude identifying the driver.           Furthermore,

Tropical Trailer asserted that it was spending its resources to collect tolls for the

Department. Tropical Trailer also asserted that there were approximately forty

other trailer-leasing companies subject to the same unauthorized billing

procedures.

                                          3
      In its initial complaint, Tropical Trailer alleged it was suing on behalf of the

following class:

            All owners of a trailer or semitrailer or chassis who
            within the four years preceding the filing of this lawsuit
            were charged a highway toll by [the Department] because
            the driver of the motorized vehicle towing the trailer or
            semitrailer or chassis failed to immediately pay the
            applicable toll.

The Department moved to strike the class on the following grounds:

      This definition includes any person who within the preceding four
      years owned a trailer and used the Department’s Toll-By-Plate
      payment system. The proposed class is not limited to persons similar
      to Tropical Trailer who lease trailers to customers that incur tolls
      through Toll-By-Plate. Instead, it seeks to include anyone who owned
      a trailer and incurred a toll through Toll-By-Plate within the preceding
      four years. As proposed, the class definition would include trailer
      owners who themselves used the toll road but did not ‘immediately
      pay the applicable toll’ because they chose to pay through Toll-By-
      Plate. The inclusion of every trailer owner who received a Toll-By-
      Plate charge in the preceding four years is absurd and grossly
      overbroad.

(Emphasis in original.)

      After the Department filed its motion to strike the class, Tropical Trailer

amended its complaint, and alleged it was suing on behalf of a narrower class,

consisting of approximately 40 trailer-leasing companies:

            All owners of a trailer or semitrailer or chassis who
            within the four years preceding the filing of this lawsuit
            were charged a highway toll by [the Department] because
            the driver of the motorized vehicle towing the trailer or
            semitrailer or chassis failed to immediately pay the
            applicable toll. Excluded from this definition would be
                                          4
             owners of a trailer or semitrailer or chassis who also
             own the motorized vehicle which is towing their own
             trailer or semitrailer or chassis equipment at the time
             the toll is incurred.

(Emphasis added.)      The Department again moved to dismiss the amended

complaint and moved to strike the new class definition.           Responding to the

Department’s motion to dismiss, Tropical Trailer maintained that its action was on

behalf of “a class which includes the entire trailer leasing industry,” and assured

the trial court that “[p]laintiffs certainly do not contend that they have no liability

for any portion of the tolls which are payable to [the Department] by whomsoever

chooses to ‘use’ [the Department’s] toll roads.”

      During discovery, Tropical Trailer learned that the Department had assessed

over 180,000 tolls against trailer owners using the toll-by-plate system; roughly

half of these were assessed against commercial trailer owners, while the other half

were assessed against personal trailer owners. After learning such information,

Tropical Trailer filed a motion to certify four classes, proposing the following

classes:

      Class A -- DAMAGES AND INJUNCTIVE RELIEF: All trailer
      owners whose trailer license tag was used by [the Department]
      between 10/14/10 and 6/30/12[1] to charge a toll in any amount.

1
  Tropical Trailer argued that an amendment to section 316.003(21), Florida
Statutes (2011), which became effective on July 1, 2012, redefined “motor
vehicle” to include “trailers.” Ch. 2012-174, Laws of Fla.; see § 316.003(21), Fla.
Stat. (2012) (adopting meaning found in section 320.01(1)(a) for purposes of
section 316.1001, Florida Statutes).
                                         5
      Class B -- DAMAGES AND INJUNCTIVE RELIEF:             All trailer
      owners whose trailer license tag was used by [the Department]
      between 10/14/10 and 6/30/12 to charge a toll which is greater than
      the toll chargeable for two axle vehicles.

      Class C -- DAMAGES AND INJUNCTIVE RELIEF:                 All trailer
      owners whose trailer license tag was used by [the Department] after
      10/14/10 to charge a toll which is greater than the toll chargeable for
      three axle vehicles.

      Class D -- DAMAGES AND INJUNCTIVE RELIEF: All trailer
      owners whose license tag was used by [the Department] after
      10/14/10 to charge a toll in any amount. Excluded from Class D
      would be all trailer owners who also own the motorized vehicle
      pulling the trailer at the time the toll is incurred.

      Before filing its motion for class certification, and in response to the

Department’s motion to strike its initial class as “absurd and grossly overbroad,”

Tropical Trailer specifically limited its class definition to exclude trailer owners

that also owned the vehicle pulling the trailer. In its amended motion for class

certification, however, Tropical Trailer proposed Classes A, B, and C, which again

included all trailer owners before the 2012 amendment, while its proposed Class D

(starting after the 2012 amendment) still excluded those trailer owners “who also

own the motorized vehicle pulling the trailer at the time the toll is incurred.” The

proposed class definitions in its amended motion for class certification were based

on Tropical Trailer’s “contention that any toll violation notice issued based upon

the license plate of a trailer is improper, and indeed void ab initio.”


                                           6
      In its order granting Tropical Trailer’s motion, the trial court certified two

sub-classes, even broader than requested: “[T]he owners of all trailers towed on

the turnpike for which [the Department] used the toll-by-plate method of toll

imposition between October 6, 2010 and June 30, 2012,” and “the owners of all

trailers towed on the turnpike for which [the Department] used the toll-by-plate

method of toll imposition since July 1, 2012.”


                                      Analysis

      The trial court’s non-final order certifying a class is reviewed for abuse of

discretion, “because ‘the determination that a case meets the requirements of a

class action is a factual finding,’ which falls within the trial court’s discretion.”

Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 103 (Fla. 2011); Sacred Heart

Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1169

(11th Cir. 2010) (“‘A . . . court abuses its discretion if it . . . follows improper

procedures in making the determination . . . .’” (quoting Klay v. Humana, Inc., 382

F.3d 1241, 1251 (11th Cir. 2004)); Canal Ins. Co. v. Gibraltar Budget Plan, Inc.,

41 So. 3d 375, 377 (Fla. 4th DCA 2010) (holding that a trial court acts within its

discretion when it narrows a class); Stone v. Compuserve Interactive Servs., Inc.,

804 So. 2d 383, 387 (Fla. 4th DCA 2001) (noting that trial courts have broad

discretion in shaping the members of a class).


                                         7
      Rule 1.220(c)(2)(D)(ii), Florida Rules of Civil Procedure, provides that

“[a]ny pleading . . . shall contain . . . a definition of the alleged class . . . .” Rule

1.220(d)(1) provides that “after hearing the court shall enter an order determining

whether the claim . . . is maintainable on behalf of a class on the application of any

party or on the court’s initiative.” In Florida, the movant bears the burden of

proving the elements of rule 1.220, and the trial court must conduct a rigorous

analysis before determining whether to certify a class. Fla. Health Sciences Ctr.,

Inc. v. Elsenheimer, 952 So. 2d 575, 581 (Fla. 2d DCA 2007).

      Rule 1.220 was modeled after Rule 23, Federal Rules of Civil Procedure,

and decisions interpreting Rule 23, while not binding, are persuasive authority in

Florida courts. Rollins, Inc. v. Butland, 951 So. 2d 860, 879 (Fla. 2d DCA 2006).

And federal district courts have held that trial courts abuse their discretion when

they certify a class that is broader than the class defined in the complaint. See

Johnson v. Harley-Davidson Motor Co. Group, LLC, 285 F.R.D. 573, 577 n.2

(E.D. Ca. 2012) (declining to use expanded class definition proposed in motion for

class certification, and resorting to class definition in complaint); Clarke v. Baptist

Mem’l Healthcare Corp., 264 F.R.D. 375, 381 (W.D. Tenn. 2009) (requiring

plaintiffs to file an amended complaint to expand the proposed class definition);

Fisher v. Ciba Specialty Chem. Corp., 238 F.R.D. 273, 300 (S.D. Ala. 2006)

(“Having selected and litigated the class definition of their choice, plaintiffs must

                                           8
live with that choice.”); Heastie v. Cmty. Bank of Greater Peoria, 125 F.R.D. 669,

672 n.10 (N.D. Ill. 1989) (certifying class as originally proposed in the plaintiff’s

complaint, and noting that it may seek to change the definition through an

amended complaint); see generally Retired Chicago Police Ass’n v. City of

Chicago, 7 F.3d 584, 595 (7th Cir. 1993) (affirming trial court’s denial of class

certification, because motion “attempted to redefine and significantly expand the

scope of the class defined in the [plaintiff’s] complaint”).

      These cases are distinguishable from Farrar v. Mobil Oil Corporation,

where landowners sued Mobil Oil for breach of contract. 43 Kan. App. 2d 871,

889-90 (Kan. Ct. App. 2010). Three years into the litigation, “[t]hese claims were

expanded” to add members who suffered a different type of injury than those in the

original class. Id. at 874 (emphasis added). The Kansas appellate court affirmed

the trial court’s decision to certify such expanded class, noting that “[a] class may

be altered, expanded, subdivided or abandoned as a case develops.” Id. at 889.

Farrar is distinguishable, because there the plaintiffs’ claims were expanded,

meaning the complaint was amended, as opposed to moving to certify a more

expansive class.

      Here, we do not hold that a class may not be expanded once a definition has

been proposed in a complaint. We simply adhere to the rule that the proper




                                           9
procedural method to expand a class is by moving to amend the complaint, and

then moving to certify the newly defined class.

       When Tropical Trailer filed its initial complaint, the Department moved to

strike the class as overly broad, because it included any trailer owner (including

those trailer owners that also owned the vehicle towing the trailer). Tropical

Trailer amended its complaint to specifically exclude trailer owners that also

owned the vehicle towing the trailer, and the amended complaint also alleged the

class included at least forty of Tropical Trailer’s competitors. However, in its

motion for class certification, Tropical Trailer proposed Classes A-C which

included all trailer owners regardless of whether they also owned the vehicle

pulling the trailer, arguing that even trailer owners who owned the vehicle towing

the trailer suffered the injury of being assessed a toll based on the rear-plate video

billing method. Apparently based on this new argument, the trial court certified a

sub-class of all trailer owners, including those trailer owners excluded from the

class definition in the amended complaint – those that owned the vehicle pulling

the trailer.

       Based on such a definition, Tropical Trailer alleged in its motion for class

certification that the class grew exponentially from approximately 40 members to

over 180,000 members. The massive expansion went far beyond the alleged class

definition Tropical Trailer pled in its amended complaint, to which it was bound.

                                         10
See Reid v. Bradshaw, 302 So. 2d 180, 183 (Fla. 1st DCA 1974) (noting “[t]he

pleader is bound by his own allegations in the complaint.”).

      Expanding a class beyond what was pled in the complaint unfairly surprised

the Department, because it was not on notice to defend against such a broad class

definition. See generally Phillip Morris USA, Inc. v. Scott, 131 S. Ct. 1, 3-4 (2010)

(Scalia, J., in chambers) (quoting Lindsey v. Normet, 405 U.S. 56, 66 (1972), and

noting that due process guarantees “‘an opportunity to present every available

defense.’”). Further, the procedural requirements are in place to ensure and protect

the parties’ right to due process. See generally Ernie Haire Ford, Inc. v. Gilley,

903 So. 2d 956, 959 (Fla. 2d DCA 2005) (reversing a trial court’s class

certification where no motion for class certification was filed, on the grounds that

it violated the defendant’s due-process right to be heard on the issue).

      We hold that Tropical Trailer improperly sought to expand the scope of the

class through its motion for class certification and, instead, should have further

moved to amend its complaint. Fla. R. Civ. P. 1.220(d)(1). Further, the trial court

abused its discretion by expanding the scope of the class beyond the class

definition proposed in the amended complaint.

      REVERSED and REMANDED.

LEWIS and ROWE, JJ., CONCUR.




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