Inphynet Contracting Services, Inc., d/b/a Emergency Physicians of Delray, a Florida corporation, MD Now Medical Centers, etc. v. R v. Matthews III, Patricia Maher, Ron Depaolo, and Lauren McKelvey, as Personal Representative of the Estate of Scott M. McKelvey, etc. , 196 So. 3d 449 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
INPHYNET CONTRACTING SERVICES, INC., d/b/a Emergency Physicians of
Delray, a Florida corporation; MD NOW MEDICAL CENTERS, INC., a Florida
corporation; SELECT PHYSICAL THERAPY HOLDINGS, INC., d/b/a Select
Physical Therapy, a foreign corporation authorized to do business in Florida;
PREMIER FAMILY HEALTH, P.A., a Florida Professional Association;
WELLINGTON MEDICAL CARE ASSOCIATES, LLC, a Florida limited liability
company; HEALTHPORT TECHNOLOGIES, LLC; and all other persons and
entities similarly situated,
Appellants,
v.
R.V. MATTHEWS III, PATRICIA MAHER, RON DEPAOLO, and LAUREN
MCKELVEY, as Personal Representative of the Estate of Scott M. McKelvey,
individually and on behalf of all persons similarly situated,
Appellees.
Nos. 4D14-3382, 4D14-3387, 4D14-3391 and 4D14-3392
[June 22, 2016]
Consolidated appeals of a non-final order from the Circuit Court for the
Fifteenth Judicial Circuit, Palm Beach County; Lucy Chernow Brown, Judge;
L.T. Case No. 50-2013-CA-009428-MB (AH).
Beverly A. Pohl, Barbara Viota-Sawisch, Vanessa M. Serrano, and Peter R.
Goldman of Broad and Cassel, Fort Lauderdale, for appellant Inphynet
Contracting Services, Inc.
Michael Fox Orr and Amanda E. Ferrelle of Dawson | Orr, P.A., Jacksonville,
for appellant Premier Family Health, P.A.
Charles M. Auslander, John G. Crabtree and George R. Baise Jr. of Crabtree
& Auslander, Key Biscayne, for appellant Wellington Medical Care Associates,
LLC.
Roberto M. Vargas of Jones, Foster, Johnston & Stubbs, P.A., West Palm
Beach, for appellant/intervenor HealthPort Technologies, LLC.
William J. Cornwell, Seth A. Kolton, Sylvia L. Wenger and Howard I. Weiss of
Weiss Handler & Cornwell, P.A., and Bruce F. Silver of Silver & Silver, P.A., Boca
Raton, for appellees.
CONNER, J.
This is a consolidated appeal of a trial court order granting bilateral class
certification, certifying both a plaintiff and a defendant class, in an action
challenging fees charged for copies of health care records. This portion of the
order is appealable as a non-final order pursuant to Florida Rule of Appellate
Procedure 9.130(a)(3)(C)(vi). For the reasons set forth below, we reverse the order
insofar as it certified a defendant class and a defendant subclass. We affirm,
without discussion, the order certifying a plaintiff class. The other aspect of the
order which denied stay is reviewable by certiorari, as discussed below. We grant
certiorari relief and quash the order denying stay of the entire action pending
resolution of two other prior-filed class actions currently pending in the Circuit
Court of Hillsborough County. Additionally, we quash that portion of the trial
court order that applied a limited stay to the plaintiff subclass, and reverse the
imposition of that subclass.
Factual Background and Trial Court Proceedings
The four named plaintiffs in this case are existing or past patients of health
care providers who received treatment and requested copies of their medical
records, bills generated from such treatment, or both, through attorneys as their
legal representatives. The plaintiffs filed a class action asserting claims that
charges assessed to their legal representatives for these records exceeded the
limits of section 456.057, Florida Statutes (2013), and the administrative
regulations governing the various providers. The plaintiffs contend that their
legal representatives paid the excessive charges and passed the charges on to
them. Additionally, the plaintiffs allege the excessive charges violate the Florida
Deceptive and Unfair Trade Practices Act (FDUTPA). The amended complaint
(“the Complaint”) asserts a bilateral class action, asking the trial court to certify
both a plaintiff class, consisting of:
For the period from June 1, 2009 through the date of entry of
judgment herein (the “Class Period”), any person or any person’s
legal representative who, in violation of Florida law, was charged an
excessive amount to obtain copies of health care records from any
Florida Record Owner,
(emphasis added) and a defendant class, consisting of:
All Record Owners located in the State of Florida who, during the
Class Period, violated Florida law by charging any person or any
person’s legal representative an excessive amount to obtain copies
of requested health care records.
(emphasis added). The Complaint seeks declaratory relief, damages,
supplemental relief, and attorney’s fees.
2
The Complaint specifically cites statutory and rule authority for the alleged
violations of law. First, the Complaint references section 456.057(6), Florida
Statutes (2013), which provides:
Any health care practitioner[ 1] licensed by the department or a board
within the department who makes a physical or mental examination
of, or administers treatment or dispenses legend drugs to, any
person shall, upon request of such person or the person’s legal
representative, furnish, in a timely manner, without delays for legal
review, copies of all reports and records relating to such examination
or treatment, including X rays and insurance information.
Id. Next, the Complaint references section 456.057(17), Florida Statutes (2013),
which provides:
A health care practitioner or records owner furnishing copies of
reports or records or making the reports or records available for
digital scanning pursuant to this section shall charge no more than
the actual cost of copying, including reasonable staff time, or the
amount specified in administrative rule by the appropriate board, or
the department when there is no board.
Id. Finally, the Complaint references four administrative rules governing fees for
medical records: Florida Administrative Code Section 64B8-10.003 (applicable
to medical doctors); Section 64B15-15.003 (applicable to osteopaths); Section
64B2-17.0055 (applicable to chiropractors); and Section 64B17-6.005
(applicable to physical therapists). All four administrative codes provide that the
reasonable cost of reproducing copies of written or typed documents shall be no
more than $1.00 per page for the first twenty-five pages, and no more than $0.25
for each additional page in excess of twenty-five pages. Fla. Admin. Code R.
64B8-10.003(2), 64B15-15.003(2), 64B2-17.0055(2), 64B17-6.005(2).
The Complaint alleges that the defendants, Premier Family Health, P.A.
(“Premier”), Wellington Medical Care Associates, LLC (“Wellington”), and
InPhyNet Contracting Services, Inc. (“Inphynet”), are either corporate entities or
professional associations providing health care services. In the trial court and
on appeal, Inphynet contends that it is not a health care provider, a medical
1 The term “health care practitioner” or “record owner” excludes certain professionals
such as certified nursing assistants, pharmacists, dental hygienists, respiratory
therapists and others specified in section 456.057(2), Florida Statutes (2013). However,
terms include health care professionals who are not covered by the four administrative
rules alleged in the Complaint. Thus, by defining the classes with reference to “all record
owners,” both the purported plaintiff and defendant classes contained members for
whom none of the four administrative rules are applicable.
3
record owner, or a record custodian. Because we reverse the defendant class
certification for other reasons, we do not address this argument.
With respect to Premier, the plaintiffs alleged that Premier violated the
statutes and administrative rule by contracting services through another entity,
BACTES Imaging Solutions, Inc. BACTES is considered a “ROI” (Release of
Information) provider of medical records. 2 Significant to the proceedings below
and to this appeal is the fact that BACTES is named as a defendant in a prior-
filed class action suit that was pending at all times material to this case in the
Circuit Court of Hillsborough County (“the Webber Case”).
Another ROI provider, HealthPort Technologies, LLC (“HealthPort”), was
involved in providing medical records to one of the named plaintiffs and
successfully moved to intervene in this case. Although not granted full party
status, HealthPort was able to participate in the proceedings below, and has
appeared in this appeal. Like BACTES, HealthPort asserts an interest in this
case because it is a named defendant in another prior-filed class action
proceeding, also pending in the Circuit Court of Hillsborough County (“the Allen
Case”). All three defendants in this case, as well as HealthPort, contend that the
Webber Case and the Allen Case assert the same claims and legal theories the
plaintiffs are pursuing in this case. The named plaintiffs in this case contend
that the class actions filed in the Webber Case and the Allen Case are not similar
to this case because, in both of those cases, a ROI is a defendant, whereas in
this case, no ROI has been directly sued and the defendant class is composed of
medical record owners.
The trial court found that the plaintiffs adequately demonstrated the
requirements of Florida Rule of Civil Procedure 1.220(a) and (b) to justify bilateral
class certification. As to the defendant class, the trial court found that each
named defendant and the defendant class are subject to the limitations on
copying costs imposed by either a statute or the respective regulatory boards
under which the medical record owner was licensed, and that a class
representative could fairly and adequately protect the interests of the defendant
class. The trial court determined that “[t]here are no substantial or fundamental
conflicts between the Defendants that go to the specific issue in controversy in
this litigation.” It also found that “multiple lawsuits would create a substantial
risk of inconsistent rulings which would impose incompatible standards of
conduct on Defendants.” To address the possibility that there may be some
overlap between the named and class defendants in this case and the defendants
or defendant classes in the Webber Case and the Allen Case, the trial court
created a plaintiff and defendant subclass to include the class parties in this
2 ROIs service medical records for record owners to assure compliance with state and
federal privacy laws.
4
case who may have their claims resolved by either of those cases. The trial court
entered a stay as to the proceedings involving the subclasses.
The three defendants and HealthPort gave notice of appeal of the order
certifying bilateral classes in this case.
Appellate Analysis
Certification of Defendant Class
Class Certification
Orders granting or denying class certification are reviewed for an abuse of
discretion. Freedom Life Ins. Co. of Am. v. Wallant, 891 So. 2d 1109, 1113-14
(Fla. 4th DCA 2004) (citing Renaissance Cruises, Inc. v. Glassman, 738 So. 2d
436, 438 (Fla. 4th DCA 1999)). “A trial court’s decision as to whether a party
has satisfied the standing requirement is reviewed de novo.” Sosa v. Safeway
Premium Fin. Co., 73 So. 3d 91, 116 (Fla. 2011). “Because Florida’s class action
rule is based on Federal Rule of Civil Procedure 23, Florida courts may generally
look to federal cases as persuasive authority in their interpretation of rule 1.220.”
InPhyNet Contracting Servs., Inc. v. Soria, 33 So. 3d 766, 770-71 (Fla. 4th DCA
2010) (citing Seven Hills, Inc. v. Bentley, 848 So. 2d 345, 352-53 (Fla. 1st DCA
2003)).
“The movant for class certification bears the burden of establishing all the
requirements of Florida Rule of Civil Procedure 1.220.” Id. at 771 (citing Chase
Manhattan Mortg. Corp. v. Porcher, 898 So. 2d 153, 156 (Fla. 4th DCA 2005)).
“The trial court must conduct a ‘rigorous analysis’ to determine whether class
certification is warranted.” Id.; Execu-Tech Bus. Sys., Inc. v. Appleton Papers,
Inc., 743 So. 2d 19, 21-22 (Fla. 4th DCA 1999). Compliance with rule 1.220
requires a rigorous analysis “because the granting of class certification
considerably expands the dimensions of the lawsuit, and commits the court and
the parties to much additional labor over and above that entailed in an ordinary
private lawsuit.” Baptist Hosp. of Miami, Inc. v. Demario, 661 So. 2d 319, 321
(Fla. 3d DCA 1995).
A movant for class certification must demonstrate the following four
prerequisites required by 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.
5
Soria, 33 So. 3d at 771; see also Fla. R. Civ. P. 1.220(a). Courts refer to these
elements as “the numerosity, commonality, typicality, and adequacy of
representation elements of class certification.” Soria, 33 So. 3d at 771 (internal
quotation mark omitted) (quoting Marco Island Civic Ass’n v. Mazzini, 805 So. 2d
928, 930 (Fla. 2d DCA 2001)). In addition to satisfying rule 1.220(a), the movant
must also satisfy one of the three subdivisions of rule 1.220(b). Fla. R. Civ. P.
1.220(b); Sosa, 73 So. 3d at 106.
The trial court granted class certification pursuant to subsections (b)(1) and
(b)(2); thus subsection (b)(3) of the rule is not at issue in this case. Rule 1.220(b)
provides in part:
(b) Claims and Defenses Maintainable. A claim or defense may be
maintained on behalf of a class if the court concludes that the
prerequisites of subdivision (a) are satisfied, and that:
(1) the prosecution of separate claims or defenses by or against
individual members of the class would create a risk of either:
(A) inconsistent or varying adjudications concerning individual
members of the class which would establish incompatible
standards of conduct for the party opposing the class; or
(B) adjudications concerning individual members of the class
which would, as a practical matter, be dispositive of the interests
of other members of the class who are not parties to the
adjudications, or substantially impair or impede the ability of
other members of the class who are not parties to the
adjudications to protect their interests; or
(2) the party opposing the class has acted or refused to act on
grounds generally applicable to all the members of the class, thereby
making final injunctive relief or declaratory relief concerning the
class as a whole appropriate[.]
Defendant Class Certification
As a general proposition, a motion to certify a defendant class raises
heightened due process concerns, as compared to a motion to certify a plaintiff
class. See City of Tampa v. Addison, 979 So. 2d 246, 254 (Fla. 2d DCA 2007).
As the federal district court in Marchwinski v. Oliver Tyrone Corp., 81 F.R.D. 487(W.D. Pa. 1979), observed:
[A] defendant class differs in vital respects from a plaintiff class, and
. . . the very notion of a defendant class raises immediate due
process concerns. When one is an unnamed member of a plaintiff
6
class one generally stands to gain from the litigation. The most one
can lose in cases where res judicata operates is the right to later
bring the same cause of action. However, when one is an unnamed
member of a defendant class, one may be required to pay a judgment
without having had the opportunity to personally defend the suit.
Although we believe that the Rule 23 [the federal rule pertaining to
class actions] requirements of adequacy of representation and notice
to class members were designed to safeguard due process rights, we
note the inherent difference in the nature of plaintiffs and
defendants in most suits and suggest that a defendant class should
be certified and such an action tried only after careful attention to
these safeguards.
Id. at 489.
Because the trial court’s certification of the defendant class in this case
creates a mandatory class without an “opt out” provision, due process rights of
the putative defendants are at greater risk. To the extent the plaintiffs are
seeking monetary damages, courts have recognized the risk of diverging interests
among the putative defendants. Phillips Petroleum Co. v. Shutts, 472 U.S. 797,
804-05 (1985). Although the named plaintiffs assert with emphasis that the
primary objective of the class action litigation is to obtain declaratory and
injunctive relief, a proper analysis as to the propriety of certifying a defendant
class action nonetheless requires a rigorous assessment due to the risk of
diverging interests among the putative defendants. The declaratory judgment
will establish entitlement to an award of damages and attorney’s fees.
The due process concerns regarding defendant class certification are even
more pronounced in bilateral class actions. Bilateral class actions raise unique
and overlapping issues of standing, commonality, typicality, and adequacy of
representation. The overlap of issues regarding bilateral class actions makes
appellate analysis sometimes difficult because different appellate opinions focus
on different aspects of the problem. 3 For example, the Eleventh Circuit Court of
Appeals has observed that “[i]n many ways, the commonality and typicality
requirements of [class certification] overlap. Both requirements focus on
whether a sufficient nexus exists between the legal claims of the named class
representatives and those of individual class members to warrant class
certification.” Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1278 (11th
Cir. 2000). Another example of the overlap of issues is demonstrated in Sosa,
3 The lack of a cohesive approach in analysis is undoubtedly due to different approaches
taken by advocates in opposing class treatment. For example, the four appellants in
this case argued different issues in different ways when asserting trial court error.
Although there are many issues we could have addressed in this opinion, we have
focused on those which we have considered primary to a proper resolution of the case.
7
where our supreme court stated that the issues of typicality and adequacy of
representation require an analysis of whether the claims and interests of a class
representative and class members are antagonistic. Sosa, 73 So. 3d at 114-15(explaining that typicality is satisfied “when the claims of the class representative
and class members are not antagonistic to one another” and “[t]he second prong
[of the adequacy requirement] pertains to whether the class representative’s
interests are antagonistic to the interests of the class members”). Finally, as
discussed more fully below, there is arguably some overlap between issues of
standing and typicality. As asserted by the Eleventh Circuit, “[w]ithout
individual standing to raise a legal claim, a named representative does not have
the requisite typicality to raise the same claim on behalf of a class.” Prado-
Steiman, 221 F.3d at 1279. Thus, the Eleventh Circuit has opined that “[a]ny
analysis of class certification must begin with the issue of standing.” 4 Id. at 1280
(internal quotation marks omitted) (quoting Griffin v. Dugger, 823 F.2d 1476,
1482 (11th Cir. 1987)). The difficulty presented by the overlap of issues is
perhaps best illustrated by the doctrine of “juridical link” discussed below.
The issues and problems unique to defendant class certification have led
courts to conclude that certification of defendant classes are, and should be,
sparingly granted. The federal district court in Thillens, Inc. v. Community
Currency Exchange Ass’n. of Illinois, Inc., 97 F.R.D. 668, 674-76 (N.D. Ill. 1983),
asserted that defendant classes seldom are certified. In discussing In re Gap
Stores Securities Litigation, 79 F.R.D. 283 (N.D. Cal. 1978), as a case which
explores the due process issues surrounding defendant class certification in
bilateral actions, the Illinois Federal District Court said:
The In re Gap opinion also provides a thoughtful framework for
understanding why certification of defendant classes often is denied.
There is great judicial reluctance to certify a defendant class when
the action is brought by a plaintiff class. The primary concern with
bilateral actions, antitrust or other types, is a fear that each plaintiff
member has not been injured by each defendant member. . . .
Several rules, useful in unilateral as well as bilateral defendant
class actions, emerge from In re Gap and similar cases: (1) A
defendant class will not be certified unless each named plaintiff has
a colorable claim against each defendant class member; (2) A
defendant class will not be certified under Fed. R. Civ. P. 23(b)(3)
without a clear showing that common questions do in fact
predominate over individual issues; (3) The requirement that each
named plaintiff must have a claim against each defendant may be
4 Likewise, our supreme court considers standing to be a threshold issue to be
considered before class certification. Sosa, 73 So. 3d at 116.
8
waived where the defendant members are related by a conspiracy or
“juridical link.”
A “juridical link” is some legal relationship which relates all
defendants in a way such that single resolution of the dispute is
preferred to a multiplicity of similar actions. Absent such juridical
link, a defendant class fails the Article III test requiring a case or
controversy to support the assertion of jurisdiction.
Thillens, Inc., 97 F.R.D. at 676 (internal citations and footnote omitted).
Standing and Juridical Link
The trial court in this case properly addressed the issue of standing before
analyzing the other requirements for defendant class certification. The trial
court was satisfied that a proper showing of standing was made based on a
juridical link between the plaintiff class representatives, the plaintiff class, and
all of the members of the defendant class. Regarding standing, the order on
appeal states:
While typically a class representative must be able to maintain a
cause of action against each and every named defendant, courts
have recognized certain exceptions, such as where defendants are
“juridically” related so that a single resolution of the particular
dispute would be expeditious. A plaintiff class has standing to
pursue its claims against multiple defendants if the actions forming
the basis for the lawsuit provide the requisite “juridical link” that
authorizes defendants’ inclusion in the law suit. See, e.g., Moore v.
Comfed Savings Bank, 908 F.2d 834, 838 (11th Cir. 1990).
Recognizing case law holding that where there was either a
contractual obligation among all defendants or a state or local
statute requiring common action by the defendants, it is
appropriate to join as a defendant a party with whom the named
class representative, did not have a direct contract. See, City of
Tampa v. Addison, 979 So. 2d 246, 253 (Fla. 2d DCA 2007).
While it is true that the juridical link exception has been applied by one of our
colleague district courts to the issue of standing in certifying a defendant class
in a bilateral class action, see Addison, 979 So. 2d at 253, the exception is
limited, and we are not inclined to interpret the exception broadly enough to
apply it in this case. 5
5 Another example of the difficulty of analysis regarding defendant class certification
due to the overlap of issues is demonstrated by case law which contends that the
juridical link exception has nothing to do with standing; instead, the exception applies
9
Although it has evolved over time, the juridical link exception first found
expression in LaMar v. H & B Novelty & Loan Co., 489 F.2d 461 (9th Cir. 1973).
The LaMar opinion was issued after the 1966 amendment to the federal rules of
procedure which allowed for an expanded use of class actions. Id. at 465. The
Ninth Circuit at that time was concerned that class actions could become
rampant. Id. In an attempt to limit a flood of class action cases, the LaMar
court held that a plaintiff class representative “cannot represent those having
causes of action against other defendants against whom the plaintiff [class
representative] has no cause of action and from whose hands he suffered no
injury.” Id. at 462. However, the court went on to say:
Obviously this position does not embrace situations in which all
injuries are the result of a conspiracy or concerted schemes between
the defendants at whose hands the class suffered injury. Nor is it
intended to apply in instances in which all defendants are juridically
related in a manner that suggests a single resolution of the dispute
would be expeditious.
Id. at 466 (emphasis added and footnotes omitted).
Initially, the juridical link exception was applied to government defendants.
Leer v. Washington Educ. Ass’n., 172 F.R.D. 439, 448 (W.D. Wash. 1997) (“La
Mar only briefly discussed what types of relationships might qualify as ‘juridical
links,’ and cited a few prior cases where a juridical link was present. Such cases
generally involved class actions brought against state officials applying a
common rule.”). Eventually, the exception was extended to private actors as
defendants who were connected by a common agreement or uniform practice.
Id. As the Thillens court noted, defendant class “certification most commonly
occurs (1) in patent infringement cases, (2) in suits against local public officials
challenging the validity of state laws, or (3) in securities litigation.” Thillens, 97
F.R.D. at 674 (citations omitted). Courts have been reluctant to expand the
exception to private sector cases, unless the common agreement or uniform
practice truly standardizes the questions involved. See Angel Music, Inc. v. ABC
Sports, Inc., 112 F.R.D. 70, 75 (S.D.N.Y. 1986) (explaining that the “juridical link”
exception is limited to cases where the defendants’ conduct “is standardized by
a common link to an agreement, contract or enforced system which acts to
standardize the factual underpinnings of the claims and to insure the assertion
of defenses common to the class”); Leer, 172 F.R.D. at 449 (discussing private
sector cases but finding no juridical link where defendant class members had
delegated authority to class representative to mail uniform notices); Clark v.
McDonald’s Corp., 213 F.R.D. 198, 223 n.21 (D.N.J. 2003) (holding that
defendant class of franchisees did not satisfy juridical link doctrine because
to issues of typicality and adequacy of representation. Matte v. Sunshine Mobile Homes,
Inc., 270 F. Supp. 2d 805, 822 (W.D. La. 2003).
10
there was no “common link to an agreement, contract or enforced system which
acts to standardize the factual underpinnings of the claims and to insure the
assertion of defenses common to the class” (citation omitted)).
Regarding standing for certification of a plaintiff class, Florida law is clear.
“To 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.” Sosa, 73 So. 3d at 116 (emphasis
added). However, no Florida court has addressed the issue of standing with
regards to certifying a defendant class, except for the Second District in Addison.
979 So. 2d at 253. In other words, no Florida case has squarely addressed the
standing requirement where a plaintiff class representative was not injured by a
significant portion of the defendant class. Although the Second District
seemingly discusses the juridical link exception to the standing issue in Addison,
the discussion of the issue of standing is intertwined with the issue of adequacy
of representation. Id. (“Generally speaking, issues relating to standing and
adequacy of representation arise where, as in this case, the plaintiffs seek to
certify a bilateral class action, but the defendant class includes parties against
whom the nominal plaintiffs have no claim.”).
As a matter of standing, we agree with those federal courts which have
determined that a class of defendants alleged to be violating a law do not display
juridical links merely because its members are subject to a common regulatory
scheme. See Matte, 270 F. Supp. 2d at 827–28 (holding that “regulation under
a common statute, or similar actions in violation of statutory or regulatory
provisions,” does not establish a juridical link); Monaco v. Stone, 2002 WL
32984617, *45 (E.D.N.Y. 2002) (finding juridical link doctrine inapplicable where
defendant hospital director class members were not alleged to be following a
statute or uniform policy but rather alleged to be making autonomous decisions
in violation of state law); Turpeau v. Fidelity Fin. Servs., Inc., 936 F. Supp. 975,
978–79 (N.D. Ga. 1996) (finding no juridical link among defendant lenders and
life insurance companies although each allegedly violated same state statute in
same manner; defendants were not state officials charged with enforcing state
statute or common rule or practice).
In applying the juridical link doctrine to establish the standing of the plaintiff
class to maintain an action against the defendant class, the trial court in this
case relied upon the only Florida state case granting defense class certification
in a bilateral class action, Addison. However, reliance on Addison is not
persuasive because it involved certifying a defendant class consisting of
governmental entities which had enacted various occupational license tax
ordinances under the authority of the same enabling legislation. Thus, Addison
involved the application of the juridical exception in the context of the original
discussion of the exception in LaMar. Moreover, there is nothing in the record
before us to support a finding that members of the defendant class are private
11
actors who are connected by a common agreement or uniform practice. Thus,
the juridical link was improperly applied in this case to establish standing as to
the defendant class.
Having determined that the trial court erred in determining that the plaintiff
class had standing to bring a class action against the defendant class, we reverse
and remand for further proceedings to decertify the defendant class and the
defendant subclass.
Denial of Stay of Entire Case
Premier and HealthPort seek review of the trial court order denying the motion
to stay, asserting the trial court erred in denying a stay of the entire action
because of the pending litigation in both the Webber Case and the Allen Case.
Premier contends the parties and issues are similar enough in all three cases to
require a stay of the entire case to avoid unnecessary and duplicitous litigation
and possibly inconsistent judgments. In opposition, the plaintiffs contend that
the plaintiff classes in the Webber Case and the Allen Case are substantively
different from the plaintiff class in this case because the Webber Case and the
Allen Case involve ROI providers, whereas this case involves the medical record
owners.
Although it is not argued in the briefs, we initially observe that the order
denying the motion to stay the entire proceeding is a non-final, non-appealable
order. Thus, we do not have jurisdiction as to that order on direct appeal.
Nonetheless, we treat the appeal as a petition for writ of certiorari. See Fla. R.
App. P. 9.040(c) (stating that if a party seeks an improper appellate remedy, “the
cause shall be treated as if the proper remedy had been sought”); Fla. R. App. P.
9.030(b)(2)(A) (“The certiorari jurisdiction of district courts of appeal may be
sought to review . . . non-final orders of lower tribunals other than as prescribed
by rule 9.130.”); Marchetti v. School Bd. of Broward Cty., 117 So. 3d 811, 812-13
(Fla. 4th DCA 2013).
“For an appellate court to review a nonfinal order by petition for certiorari,
the petitioner must demonstrate that the trial court departed from the essential
requirements of the law, thereby causing irreparable injury which cannot be
adequately remedied on appeal following final judgment.” Belair v. Drew, 770
So. 2d 1164, 1166 (Fla. 2000). Premier has argued on appeal that the trial court
abused its discretion in denying a stay of the entire action, and that the class
defendants are significantly exposed to the risk of inconsistent rulings on the
same issues by other courts. We agree with Premier that the trial court abused
its discretion in denying a stay of the entire action, and determine that the abuse
of discretion constitutes a departure from the essential requirements of law. We
also determine the denial of a stay of the entire proceeding creates the risk of
irreparable harm that cannot be remedied on appeal.
12
Irreparable Harm
As to irreparable harm, we have previously said that exposure to a potential
inconsistent ruling on the same issue by another court constitutes irreparable
harm. Cole v. Cole, 937 So. 2d 261, 262 (Fla. 4th DCA 2006) (determining there
would be irreparable harm due to the potential of an inconsistent ruling in a
separate proceeding which could affect the ability of the family court to equitably
divide marital assets); REWJB Gas Investments v. Land O’Sun Realty, Ltd., 645
So. 2d 1055, 1056 (Fla. 4th DCA 1994) (quashing denial of stay of the entire
proceedings regarding the eviction of multiple defendants until a declaratory
action filed in another circuit as to the validity of the underlying lease was
resolved, after concluding irreparable harm from risk of conflicting decisions).
In this case, the plaintiff class is seeking damages and “any other relief the
Court deems proper and just” for violation of FDUTPA, as well as, “supplemental
relief that may be appropriate under Section 86.061, Fla. Stat.” FDUTPA allows
for injunctive relief, and injunctive relief is also appropriate under section
86.061. To the extent that the plaintiff class is seeking declaratory relief which
will determine the amount of damages awarded, we are satisfied there is a
potential that declaratory relief entered by the trial court in the proceeding below
could be inconsistent with declaratory relief entered in the Allen Case, currently
on appeal in the Second District. 6 Thus, Premier has established the potential
for irreparable harm that justifies certiorari review of the order denying a stay of
the entire proceeding.
Departure from the Essential Requirements of Law
The trial court’s limited stay order, denying the request for a blanket stay of
the entire action, is reviewed for abuse of discretion. REWJB Gas Invs., 645 So.
2d at 1055. As discussed below, the principle of priority applies to the analysis
of whether a stay of the entire proceeding should have been granted by the trial
court below. “‘Absent extraordinary circumstances . . . a trial court abuses its
discretion when it fails to respect the principle of priority.’” Parker v. Estate of
Bealer, 890 So. 2d 508, 512 (Fla. 4th DCA 2005) (quoting Hirsch v. DiGaetano,
732 So. 2d 1177, 1177-78 (Fla. 5th DCA 1999)).
6We note that on March 2, 2016, the Second District per curiam affirmed the trial court
decision certifying a plaintiff class in the Allen Case; however, a ruling on motions for
rehearing, rehearing en banc, clarification and for written opinion remains pending.
HealthPort Technologies, LLC v. Allen, 2016 WL 802065 (Fla. 2d DCA Mar. 2, 2016). We
also note that our review of online records does not indicate that any appeal of the trial
court decision certifying a plaintiff class in the Webber Case has been filed as of the date
this opinion.
13
We determine that the principle of priority, as a matter of comity, applies to
the motion to stay the entire proceeding in this case. In a class action case, the
Third District described the principle of priority as follows:
Principles of comity between sovereigns suggest that a court of one
state should stay a proceeding pending before it on grounds that a
prior-filed case involving substantially the same subject matter and
parties is pending in another state’s courts.
Polaris Pub. Income Funds v. Einhorn, 625 So. 2d 128, 129 (Fla. 3d DCA 1993)
(citation omitted).
The rationale for the application of the principle of priority, as a matter of
comity, is the avoidance of wasting judicial resources in duplicative and
unnecessary proceedings and the risk of inconsistent judgments regarding the
application of law to the same factual dispute. Robeson v. Melton, 52 So. 3d 676,
679 (Fla. 4th DCA 2009) (holding that the trial court abused its discretion in not
granting a stay where two duplicative proceedings could result in the possibility
of inconsistent results); In re Guardianship of Morrison, 972 So. 2d 905, 908 (Fla.
2d DCA 2007) (“The purpose of applying the principle of priority as a matter of
comity is to prevent ‘unnecessary and duplicitous lawsuits’ that ‘would be
oppressive to both parties.’” (quoting Siegel v. Siegel, 575 So. 2d 1267, 1272 (Fla.
1991)); Edgar v. Cape Coral Med. Ctr., Inc., 712 So. 2d 1209, 1211 (Fla. 2d DCA
1998) (upholding a stay order where “[i]t would be a waste of judicial resources
for both actions, involving the same set of facts and requesting virtually identical
relief, to proceed side-by-side”); REWJB Gas Invs., 645 So. 2d at 1056.
In applying the principle of priority, the pivotal question is whether the
second-filed action is sufficiently similar in parties and issues as to be
unnecessarily duplicative of the prior-filed proceeding. Pilevsky v. Morgans Hotel
Grp. Mgmt., LLC, 961 So. 2d 1032, 1035 (Fla. 3d DCA 2007). Florida law is clear
that “the causes of action do not have to be identical” to require a stay of the
second-filed action. Id. (quotation marks omitted) (quoting Florida Crushed
Stone Co. v. Travelers Indem. Co., 632 So. 2d 217, 220 (Fla. 5th DCA 1994)). “‘It
is sufficient that the two actions involve a single set of facts and that resolution
of the one case will resolve many of the issues involved in the subsequently filed
case.’” Id. (quoting Travelers, 632 So. 2d at 220). Nor does the principle of
priority require an absolute identity of parties between the two actions, with
regards to the propriety of a stay. 7 Sorena v. Gerald J. Tobin, P.A., 47 So. 3d 875,
7We note that the case law more stringently requires identity of parties with regard to
abatement of an action. See REWJB Gas Invests., 645 So. 2d at 1057 (noting that
abatement would not have been available where there was not a complete identity of
parties); Sauder v. Rayman, 800 So. 2d 355, 358 (Fla. 4th DCA 2001) (“While abatement
14
878 (Fla. 3d DCA 2010) (“Complete identity of the parties and claims is not
required [in applying the principle of priority to a motion to stay].” (citing In re
Guardianship of Morrison, 972 So. 2d at 910)); see also Ricigliano v. Peat,
Marwick, Main & Co., 585 So. 2d 387, 387 (Fla. 4th DCA 1991) (holding that it
is within a trial court’s discretion to grant stay in subsequently filed state action
where the allegations in previously filed federal action are the same,
notwithstanding a disparity in the parties to the two actions); REWJB Gas
Invests., 645 So. 2d at 1056 (reversing the denial of a stay despite the fact there
was not a “complete identity of parties,” where there was a “common contract
interpretation issue” that would be dispositive of both related actions and “it
would not be in the interest of judicial economy to have more than one court
make the same decision”); Edgar, 712 So. 2d at 1211 (affirming a stay of the
state action in favor of the previously filed federal action, without requiring a
complete identity of parties and noting “many of the issues in the state action
would be made moot by a final determination of the federal action”).
Although the principle of priority is generally applied to cases pending
concurrently in a federal court and a state court or currently in courts of two
different states, the principle is also applicable when two cases are pending in
different circuits within this state. See REWJB Gas Invests., 645 So. 2d at 1056(holding it error to deny stay in later-filed Palm Beach County eviction proceeding
where a prior declaratory action was filed in Dade County); Ewing Indus., Inc. v.
Miami Wall Sys’t, Inc., 583 So. 2d 713, 714 (Fla. 3d DCA 1991) (analyzing a case
where parties brought similar actions in the Fifth and the Eleventh Judicial
Circuits; pendency of the prior action was grounds to abate later-filed action);
Lightsey v. Williams, 526 So. 2d 764, 765-66 (Fla. 5th DCA 1988) (failure to stay
trespass proceedings pending earlier-filed declaratory judgment action in
another county which involved the same parties and the same, or substantially
the same, causes of action constitutes an abuse of discretion and a departure
from the essential requirements of the law).
In the context of class actions, we have said that where federal and state
courts have concurrent jurisdiction over the parties and identical causes of
action, the latter court to obtain jurisdiction should stay all proceedings in
deference to the first court. Black v. Rouse, 587 So. 2d 1359, 1363 (Fla. 4th DCA
1991). Likewise, the Third District has stated that when there is a previously-
filed class action case which involves substantially similar parties and issues,
the subsequently-filed action should be stayed. See Beckford v. GMC, 919 So.
2d 612, 613 (Fla. 3d DCA 2006); J.M. Smucker Co. v. Rudge, 877 So. 2d 820, 822
(Fla. 3d DCA 2004); Einhorn, 625 So. 2d at 129-30.
requires complete identity of parties and causes of action, . . . a stay should require
substantial similarity of parties and actions.”).
15
The record in this case does not reveal a valid reason to depart from the
principle of priority. Because, as discussed above, the failure to observe the
principle of priority is an abuse of discretion, and because the class action suit
below exposes the named defendants to the potential of inconsistent rulings by
different courts considering the sufficiently similar issues, we hold that the
failure to stay the entire proceedings is a departure from the essential
requirements of law. A stay of the entire case was warranted, and we quash the
trial court’s denial of the motion to stay the entire case. If a stay of the entire
proceeding had been granted, then there would have been no need to carve out a
plaintiff subclass. Thus, we also reverse the portion of the order creating a
plaintiff subclass.
Insofar as we have granted certiorari and quashed the trial court’s order
denying stay of the entire cause, the matter of stay will return to the trial court
for further consideration. This Court has no jurisdiction to compel the trial court
to institute a complete stay since this issue arose under principles of certiorari.
See Broward Cty. v. G.B.V. Int'l Ltd., 787 So. 2d 838, 844 n.18 (Fla. 2001) (“[O]n
certiorari an appellate court can only deny the writ or quash the order under
review. It has no authority to take any action resulting in the entry of a judgment
or orders on the merits or to direct that any particular judgment or order be
entered.” (alteration in original) (quoting Snyder v. Douglas, 647 So.2d 275, 279
(Fla. 2d DCA 1994))). However, on remand, the parties may once more seek a
stay pending final resolution of the Allen Case, and the trial court may determine
whether the issues in the pending appeal remain and are sufficiently similar given
the nature of the record providers in this cause and that pending in the Allen
case. 8
Affirmed in part, reversed in part, certiorari granted in part, and cause
remanded.
GERBER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
8 We assume an appellate determination in the Allen Case will resolve issues raised in
the Webber Case, since no appeal of the plaintiff class certification was filed in the
Webber Case.
16