COMBINED SERVICES, INC.

v.

CITY OF OPA-LOCKA, ET AL.

Third District Court of Appeal State of Florida

Opinion filed July³, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1413 Lower Tribunal No. 17-8285 ________________

Combined Services, Inc., Appellant,

vs.

City of Opa-Locka, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Alan Fine, Judge.

Sobota P.L., and Peter Sobota (Davie); Greenspoon Marder LLP, and John H. Pelzer (Ft. Lauderdale), for appellant.

Kuehne Davis Law, P.A., and Benedict P. Kuehne and Michael T. Davis; Michael A. Pizzi, Jr., P.A., and Michael A. Pizzi, Jr.; Reiner & Reiner, P.A., and David P. Reiner, II; Kozyak Tropin & Throckmorton LLP, and Dwayne A. Robinson and Detra Shaw-Wilder, for appellees.

Before FERNANDEZ, LINDSEY, and GORDO, JJ.

LINDSEY, J.

2

Appellant Combined Services, Inc. appeals from an order denying its motion for exclusion from class and an order denying its motion to intervene.¹ Combined Services contends that the trial court abused its discretion when it did not allow Combined Services to opt-out of a class action over two years after the opt-out deadline. Combined Services also argues that an amended class definition resulted in fundamental error. For the reasons set forth below, we hold that the trial court did not abuse its discretion and that no fundamental error has occurred. We therefore affirm.

I.

BACKGROUND

This appeal arises from a 2017 class action against Appellee the City of Opa-Locka for allegedly overbilling customers for water usage. Combined Services, which is not a named class representative, is an industrial, largescale water customer that provides laundry services to numerous health facilities. In June 2019, the trial court certified two classes: an overbilled class and a water deposit class. Only the overbilled class is relevant here. Notice (the “2019 Notice”) was mailed to 12,202 potential class members

2 The record reflects that ten customers timely opted out: eight corporate entities and two individuals.

3 This Court reversed class certification as to the water deposit class holding that these customers have not yet suffered an injury. Suarez, 314 So. 3d at 680 (Fla. 3d DCA 2021) (“The uncontroverted evidence demonstrated that Plaintiffs seeking to represent a water deposit class have suffered no damages and therefore have no standing to proceed in this case.”).

4 Combined Services does not challenge the fairness of the Settlement on appeal.

5 Combined Services claimed that if it had received the 2019 Notice, it would have timely opted out. Combined Services conceded that it received the 2022 Notice but did not explain why it did not raise its lack of notice argument in its timely March 11 objection or at the March 24 hearing. In July 2022, the trial court entered a final order approving the class but retained jurisdiction to rule on pending opt-out motions. In August 2022, Combined Services filed a motion to intervene, with supporting affidavit, again challenging the fairness of the Settlement and arguing that it did not receive actual notice of the class action prior to February 2022. The trial court held a hearing on Combined Services’ opt-out motion and its motion to intervene in September 2022. The court accepted Combined Services’ assertion that it did not receive the 2019 Notice but ultimately denied the opt-out motion because “actual notice is not a requirement, so long as . . . the method of notice is reasonably calculated to go to everybody, and the method of notice was to mail it to everybody and to publish it and to have a website about it . . . .” The court also denied Combined Services’ motion to intervene.⁶

6 Combined Services timely appealed.

II.

ANALYSIS

We review the trial court’s approval of the Class Action Settlement under the abuse of discretion standard. Barnhill v. Fla. Microsoft Anti-Tr. Litig., 905 So. 2d 195, 199 (Fla. 3d DCA 2005); see also Altamonte Springs Imaging, L.C. v. State Farm Mut. Auto. Ins. Co., 12 So. 3d 850, 854 (Fla. 3d DCA 2009) (reviewing class action settlement objections under the abuse of discretion standard). On appeal, Combined Services argues that the 2019 Notice was inadequate. Specifically, Combined Services contends that instead of the 2019 Notice being mailed by a commercial mailing service to water customers, the best and most practical method would have been to include a notice in each customer’s monthly water bill. Florida Rule of Civil Procedure 1.220(d)(2) requires that notice shall be given “in the manner determined by the court to be most practicable under the circumstances.” Based on the record before us, we cannot conclude that the trial court abused its discretion when it determined that the 2019 Notice—

final judgment and the order denying intervention.” Id. Combined Services followed this procedure. The appellate court may then “consider the merits of the challenge to the settlement.” Id. Because Combined Services does not prevail on the merits of its challenge to the Settlement, we affirm without further discussion the trial court’s order denying intervention.

Combined Services contends that it fell outside the 2019 class definition because it had not actually paid, and it only became part of the class when the definition was amended to include customers who were overbilled. Consequently, Combined Services asserts that we must vacate the Settlement and remand for the trial court to start anew with the class certification process.

As an initial matter, it is undisputed that Combined Services never raised this argument below. “The rule of preservation, which is a keystone in our appellate process, dictates that ‘[i]n the absence of fundamental error, an appellate court will not consider an issue that has been raised for the first time on appeal.’” Vorbeck v. Betancourt, 107 So. 3d 1142, 1147 (Fla. 3d

The Florida Supreme Court has defined fundamental error, which is a narrow exception to the preservation requirement, as “error which goes to the foundation of the case or goes to the merits of the cause of action.” Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970). Importantly, we exercise our “discretion under the doctrine of fundamental error very guardedly.” Id.

In support of its fundamental error argument, Combined Services contends that the amended class definition resulted in a violation of its due process rights. See Chiu v. Wells Fargo Bank, N.A., 242 So. 3d 461, 464 (Fla. 3d DCA 2018) (“A denial of due process constitutes fundamental error that may be raised for the first time on appeal.”). Based on the record before us, we disagree.

It is undisputed that Combined Services received notice of the Settlement in February 2022. Combined Services timely filed an objection and attended the final approval hearing. Combined Services then filed additional motions and attended other hearings until the trial court’s final resolution of its motions in September 2022. Combined Services undoubtedly had ample notice of the amended class definition and

Further, we reject Combined Services’ contention that the amended class definition was an impermissible expansion as applied to Combined Services. From the beginning of the class certification process below, the relevant class has been referred to as the “overbilled” class, and this remained consistent throughout the proceedings. Indeed, this Court consistently referred to the relevant class as the overbilled class in our January 2021 opinion affirming class certification. See Suarez, 314 So. 3d 675. But most fatal to Combined Services’ argument is that it consistently took the position below that it fell within the original definition of the overbilled class and that it would have timely objected had it received the 2019 Notice. Combined Services cannot now take an inconsistent position on appeal and argue that fundamental error has occurred. See, e.g., Harper ex rel. Daley v. Toler, 884 So. 2d 1124, 1135 (Fla. 2d DCA 2004) (“[A] party may not ordinarily take one position in proceedings at the trial level and then take an inconsistent position on appeal.”); Montero v. Compugraphic Corp., 531 So.

III.

CONCLUSION

The trial court did not abuse its discretion in denying Combined Services’ opt-out motion. Moreover, Combined Services has not established that fundamental error occurred with respect to the amended class definition. Accordingly, we affirm the orders on appeal. Affirmed.