In a 5-2 decision, the Florida Supreme Court restored class certification Thursday in a deceptive trade practices case against Tire Kingdom Inc.

With a one-paragraph conclusion, the majority quashed a Third District Court of Appeal decision dismantling the statewide class certified in 2008. The case was in direct conflict with the court’s 2011 decision in Sosa v. Safeway Premium Finance, the justices said.

Justice Charles Canady offered a six-page dissent, insisting the court should recede from Sosa and shift to federal rules and the standard set in the U.S. Supreme Court’s 2011 ruling in Wal-Mart Stores v. Dukes.

Seth Miles of Grossman Roth in Coral Gables, co-counsel for the class, said Canady’s assessment amounted to “apples and oranges.”

“Wal-Mart was a very different case with lots of employees with different issues. The facts in this case are more uniform, and it applies to customers in the same way,” he said.

In Tire Kingdom, two lawyers had similar experiences when they relied on coupons promised a sale price for a service. The tire shop then added a hidden “shop fee,” and they were charged more. The class action claimed the extra fees are typically 10 percent of the bill.

The Third District relied on the Wal-Mart case for guidance. But the day after the Tire Kingdom decision was issued by the Miami appellate court, the state Supreme Court released Sosa, reinstating a class of auto insurance customers claiming they were overcharged on six-month contracts.

“I assume that had the Sosa opinion come out the day before, then the Third DCA opinion in Tire Kingdom would have been very different,” Miles said.

CommONality Test

Canady, however, still disagrees with Sosa, referring to it as a “sea change in Florida’s law governing class actions.”

The majority erred in concluding class representatives didn’t have to show a valid claim or that Sosa did not need to provide prove Safeway knowingly overcharged, he said, focusing much of his opinion on his disagreements with Sosa.

“The majority’s commonality analysis in Sosa cannot be reconciled with the reasoning of Wal-Mart. We should have concluded that Sosa was required to allege sufficient facts to demonstrate that Safeway ‘knowingly’ overcharged members of the putative class prior to attaining class certification,” Canady wrote.

Had Canady’s argument prevailed, Miles said it would have severely limited class actions, and corporations would enjoy immunity and be able to overcharge consumers small amounts with impunity.

Tire Kingdom’s appellate counsel, Elliot Scherker of Greenberg Traurig in Miami, did not respond to a request for comment by deadline. In his brief, Scherker told the court the Third District correctly found the trial court judge made legal errors.

Miami-Dade Circuit Judge Thomas Wilson Jr., now retired, based certification on “ ’purported merits’ of the claims, allowed ‘common proof’ to substitute for individually proving each class member’s unique claim and merely pointed to common issues of law.”

Stephen Rosenthal at Podhurst Orseck in Miami, the customers’ appellate lawyer, said the Third District and Canady argued for a standard that focuses on each consumer’s impressions and experiences.

“A company can always invent all kinds of ways consumer would have different thoughts,” Rosenthal said. “The Florida deceptive trade practices act is there to preclude that kind of thinking.”

Rosenthal added that it was noteworthy that the Supreme Court remanded the case to the trial court instead of letting the Third District correct itself.

Wilson granted partial summary judgment, Miles said. During a deposition, he said a Tire Kingdom executive admitted the practice was deceptive. Nevertheless, Tire Kingdom appealed, hoping to prevail on procedural issues.

“I don’t believe there’s much of a liability issue left,” Miles said. “It will largely be about determining damages.”