Federated Dept. Stores, Inc. v. Pasco

275 So. 2d 46
CourtDistrict Court of Appeal of Florida
DecidedMarch 20, 1973
Docket72-491, 72-495, 72-492, 72-496, 72-493, 72-497, 72-494, 72-509, 72-503, 72-506, 72-525
StatusPublished
Cited by19 cases

This text of 275 So. 2d 46 (Federated Dept. Stores, Inc. v. Pasco) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federated Dept. Stores, Inc. v. Pasco, 275 So. 2d 46 (Fla. Ct. App. 1973).

Opinion

275 So.2d 46 (1973)

FEDERATED DEPT. STORES, INC., D/B/a Burdine's Appellant,
v.
Charles PASCO et al., Appellees.
SEARS, ROEBUCK AND CO., Appellant,
v.
William M. HICKS et al., Appellees.
CITY STORES CO., D/B/a Richards, Appellant,
v.
Ann UNGER et al., Appellees.
BYRONS DEPARTMENT STORE, INC., D/B/a Jackson Byrons, Inc., Appellant,
v.
Ann BROCKINGTON et al., Appellees.
JORDAN MARSH COMPANY, a Florida Corporation, Appellant,
v.
Shirley R. WILLIAMS et al., Appellees.
The FIRESTONE TIRE AND RUBBER COMPANY, Appellant,
v.
Alberto PEREZ, Appellee.

Nos. 72-491, 72-495, 72-492, 72-496, 72-493, 72-497, 72-494, 72-509, 72-503, 72-506, 72-525.

District Court of Appeal of Florida, Third District.

March 20, 1973.

*47 Mershon, Sawyer, Johnston, Dunwody & Cole and Woodrow M. Melvin, Jr. and George W. Wright, Jr., Miami, for Sears, Roebuck & Co., Federated Department Stores, d/b/a Burdine's and City Stores Co., d/b/a Richards.

Adams, George & Wood, Miami, Shackleford, Farrior, Stallings & Evans, Tampa, for Byrons Department Stores.

McCarthy, Steel, Hector & Davis, Miami, for Jordan Marsh Co.

Preddy, Haddad, Kutner & Hardy, Horton, Schwartz & Perse, Miami, for Firestone Tire and Rubber Co.

Colson & Hicks, Podhurst, Orseck & Parks, Miami, for appellees.

Before PEARSON, CHARLES CARROLL and HENDRY, JJ.

PEARSON, Judge.

These consolidated interlocutory appeals and petitions for certiorari are brought by the defendants. They seek review of the orders of the trial court which denied the defendants' motions to dismiss plaintiffs' complaints and the orders denying defendants' motions for summary judgment. The common questions presented are: (1) Did the trial court err in holding that plaintiffs' suits were properly brought as class actions? (2) Is the "previous balance" method of computing finance charges on "revolving charge accounts" permitted by Fla. Stat. § 520.35, F.S.A.?[1] We think that it is necessary to answer both questions in order to expedite future litigation on the subject. We hold, (1) that the motions to dismiss were erroneously denied because the instant suits do not qualify as class actions, and (2) that the motions to dismiss were erroneously denied because the "previous balance" method of computing finance charges on "revolving charge accounts" is not prohibited by the statute.

*48 Class actions are permitted in Florida under Rule 1.220, RCP, 30 F.S.A.[2] The appellees describe the class which they desire to represent as follows:

"The instant class of plaintiffs is comprised of all those persons who have been extended credit by the defendant stores and have been assessed and paid finance charges on the Previous Balance Method."

The appellees contend that the courts of this state have consistently held that the rule allowing class actions is applicable to situations where there is a "single legal question" which will determine liability. Although this assertion is not inaccurate, it is merely the initial stepping stone in considering whether a class action may be initiated. In this connection, the appellees properly cite the case of Port Royal, Inc. v. Conboy, Fla.App. 1963, 154 So.2d 734, as more fully determining the principles to be evaluated in ascertaining whether a class action may be maintained. In the Port Royal case, the court stated:

* * * * * *
"It is fundamental that an action is not a class suit merely because the plaintiff designates it as such in the complaint and uses the language of the rule. Whether it is or is not a class suit depends upon the circumstances surrounding the case. However, the complaint should allege facts showing the necessity for bringing the action as a class suit and the plaintiff's right to represent the class. The plaintiff should allege that he brings the suit on behalf of himself and others similarly situated. The complaint should allege the existence of a class, described with some degree of certainty, and that the members of the class are so numerous as to make it impracticable to bring them all before the court. It should be made clear that the plaintiff adequately represents the class, and whether a party adequately represents the persons on whose behalf he sues depends on the facts of the particular case. Generally, the interest of the plaintiff must be co-extensive with the interest of the other members of the class. A class suit is maintainable where the subject of the action presents a question of common or general interest, and where all members of the class have a similar interest in obtaining the relief sought. The common or general interest must be in the object of the action, in the result sought to be accomplished in the proceedings, or in the question involved in the action. There must be a common right of recovery based on the same essential facts." [Emphasis supplied.]

At this juncture, it should be noted that the members of appellees' proposed class all possess separate and individual contracts with the appellants. It appears to us that the leading case in Florida concerning the principles for maintaining a class action in a suit based upon separate contracts is Osceola Groves, Inc. v. Wiley, Fla. 1955, 78 So.2d 700. In the Osceola case, a purported class action was commenced to recover monies due under sale and lease-back agreements. It was alleged that many such sale and lease-back agreements, all virtually identical, had been executed between the defendant and a large class of persons upon whose behalf the plaintiffs brought the action. The court held that the suit could not be entertained as a class action and stated:

"In the instant case we note particularly that each of the alleged numerous purchasers of units of land acquired his interest under separate contracts with the defendant and it does not appear that in these contracts was any provision showing a cooperative enterprise or any showing that any purchaser had a pecuniary *49 interest in any development of lands other than those covered by his own contract. Further, the complaint shows that other alleged purchasers, if they have any cause of action against defendants, have a choice of remedies available to their individual selection and their rights of actions may be subject to separate and distinct defenses.
* * * * * *
"We fail to find any community of interest between the two plaintiffs in this suit and no common ground upon which they can join in building a single action on behalf of themselves and upon all other purchasers of units from defendant corporation." [Emphasis supplied.]

See Wilson v. First National Bank of Miami Springs, Fla.App. 1971, 254 So.2d 362.

The appellants point out, and we agree, that despite the allegations of the appellees' complaint, it is clear that the appellants offer separate and individual contracts to their customers according to the terms of which purchases charged against the customers' accounts are financed in consideration of the payment of interest on the balance. According to appellants' reasoning, such a "previous balance" charge customer is permitted to manage his account as he chooses.

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Bluebook (online)
275 So. 2d 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federated-dept-stores-inc-v-pasco-fladistctapp-1973.