BJ'S WHOLESALE CLUB, INC., ETC.,

v.

LAURA BUGLIARO, ET AL.,

Third District Court of Appeal State of Florida

Opinion filed December², 2020. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D19-2038 Lower Tribunal No. 15-6256 ________________

BJ's Wholesale Club, Inc., etc., Appellant,

vs.

Laura Bugliaro, et al., Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, William Thomas, Judge.

Foley & Lardner LLP, Kevin A. Reck and Christina M. Kennedy (Orlando); Foley & Lardner LLP, and James A. McKee (Tallahassee); Foley & Lardner LLP, and Angelica L. Novick, for appellant.

Kluger, Kaplan, Silverman, Katzen and Levine, P.L., and Alan J. Kluger, Steve I. Silverman and Erin E. Bohannon; VM Díaz & Partners, LLC, and Victor M. Díaz, Jr., for appellees.

Before EMAS, C.J., and GORDO and BOKOR, JJ.

GORDO, J.

FACTS & PROCEDURAL HISTORY

On March 17, 2015, Laura Bugliaro filed the underlying class action complaint. The fourth amended complaint—the operative complaint in this appeal—alleges that BJ’s engaged in deceptive and unfair trade practices by improperly collecting from its members a charge denominated as a “sales tax” on the full, undiscounted price of products purchased with a discount, funded in part by BJ’s, at all of BJ’s thirty-one Florida locations. Bugliaro asserts that when members of BJ’s Wholesale Club’s thirty-one Florida stores use discounts, issued and funded in whole or part by BJ’s, to make in-store purchases, BJ’s still charges and purports to collect “sales tax” on the full price of the item, without application of the portion of the discount that is funded by BJ’s to reduce the sales price of the item. Bugliaro

1 We lack jurisdiction to, and therefore do not, review the portion of the order denying the motion to dismiss the fourth amended complaint.

Id. On September⁵, 2017, while Bugliaro I was pending on appeal, the trial court entered an order denying BJ’s’ motion to compel arbitration of prospective putative class members finding that BJ’s waived its right to arbitration and that compelling arbitration would result in substantial prejudice to the plaintiffs. BJ’s appealed. On

LEGAL ANALYSIS

BJ’s misconstrues this Court’s Bugliaro I opinion in claiming that the trial court lacked subject matter jurisdiction over the entire case. This Court’s opinion regarding subject matter jurisdiction in Bugliaro I was limited to the claim over

Recognizing that the trial court maintained subject matter jurisdiction over the action, we address the ruling on the motion to compel arbitration. In the order on appeal, the trial court appropriately concluded it lacked jurisdiction to reconsider its prior arbitration ruling as to the then-certified class because the matter was pending on appeal before this Court. See Fonseca v. Taverna Imports, Inc., 193 So. 3d 92, 94 (Fla. 3d DCA 2016) (“[A] trial court is divested of jurisdiction upon the filing of a notice of appeal.”). Notwithstanding this jurisdictional impediment, the trial court went further, explicitly making rulings regarding BJ’s’ right to compel arbitration as to Bugliaro and the putative class members. We conclude the trial court lacked jurisdiction to determine BJ’s’ right to arbitration while that matter was pending on appeal. See Stoppa v. Sussco, Inc., 943 So. 2d 309, 314 (Fla. 3d DCA 2006) (concluding the trial court was without jurisdiction to consider a non-final order while the subject of that

We quash the portion of the order addressing BJ’s’ entitlement to arbitration because the court lacked jurisdiction to consider the matter while Bugliaro II was pending and we remand with instructions to vacate all factual findings and legal conclusions adjudicating the substantive merits of the motion to compel arbitration.